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Home My WebLink About2026-01-23 Proposed Amended FOF, COL, D&O (PL-BOA-2024-000104) RENEE N. C. SCHOEN 5936 Corporation Counsel SYLVIA A. WAN 9586 Deputy Corporation Counsel Office of the Corporation Counsel County of Hawai`i 101 Aupuni Street, Suite 325 Hilo, Hawai`i 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: sylviaa.wan@hawaiicounty.gov Attorneys for the BOARD OF APPEALS BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI`I CASE NO.: PL-BOA-2024-000104 In the Matter of Appeal of PROPOSED AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW, 1250 OCEANSIDE, LLC DECISION AND ORDER; BOARD OF APPEALS' CERTIFICATE OF SERVICE From the Decisions of the Planning Director, dated April 29, 2024 (Docket No. 24-0001) PROPOSED AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER 1 RENEE N. C. SCHOEN 5936 Corporation Counsel SYLVIA A. WAN 9586 Deputy Corporation Counsel Office of the Corporation Counsel County of Hawai`i 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: sylviaa.wan@hawaiicounty.gov Attorneys for the BOARD OF APPEALS BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI`I CASE NO.: PL-BOA-2024-000104 In the Matter of Appeal of AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND 1250 OCEANSIDE, LLC ORDER; BOARD OF APPEALS' CERTIFICATE OF SERVICE From the Decisions of the Planning Director, dated April 29, 2024 (Docket No. 24-0001) AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER Hawaii County Board of Appeals received and reviewed a PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER filed by the Appellee on November 13, 2024, and 1250 OCEANSIDE, LLC'S OBJECTIONS TO COUNTY OF HAWAII PLANNING DIRECTOR'S PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER, filed by the Appellant on December 3, 2024. 1 Those findings of fact, conclusions of law otherwise proposed by the parties that are not incorporated herein, are hereby rejected. The Board of Appeals, having held a hearing on the above-entitled matter on October 11, 2024, finds, concludes and orders as follows: FINDINGS OF FACT 1. On February 7, 2024, C&J Coupe Family Limited Partnership ("Intervenor") filed its Petition for Declaratory Ruling, and on March 27, 2024, filed its Supplement to Petition for Declaratory Ruling, (collectively, "Petition")requesting declaratory rulings from the Director of the Planning Department of the County of Hawaii ("Planning Director"). 2. On April 29, 2024, the Planning Director issued Zendo Kern, Planning Director, County ofHawai`i's Declaratory Order in the Matter of C&J Coupe Family Limited Partnership, Petitioner, Docket No. 24-0001 ("Order") in response to the Petition. 3. On May 28, 2024, 1250 Oceanside, LLC ("Appellant") filed its General Petition for Appeal of Decisions by Planning Director or Public Works Director("Appeal") with the Board of Appeals, County of Hawaii ("Board") appealing the Planning Director's issuance of the Order. Appellant argued the following points of error: a. Planning Director erred by not interpreting Ord. 96-7, standing alone, because no dedication requirement is contained within Ord. 96-7; b. Planning Director erred by seemingly qualifying the 2010 dedication of the Mauka Haleki`i Extension and corresponding satisfaction of the Ordinances' conditions related to the roadway; and c. Planning Director erred by ruling that the Makai Haleki`i Extension and Connector Road have not been constructed as required under the Ordinances because (1) both roadways were constructed pursuant to plans approved by 2 DPW and are covered by the Variance, and(2)the Planning Director lacks authority to rule upon the sufficiency of the roadway for dedication. 4. Appellant's Appeal sought to modify the Order or have the Order remanded to the Planning Director to correct alleged errors. 5. On July 3, 2024, Intervenor filed its Petition to Intervene in General Petition for Appeal of Decision by the Planning Director("Petition to Intervene"). 6. On July 15, 2024, Appellant filed its Position Statement on Petition to Intervene in General Petition for Appeal of Decision by Planning Director, dated July 3, 2024. 7. On July 17, 2024, the County filed its County ofHawai`i Planning Director's Statement of No Position to Petition to Intervene in General Petition for Appeal of Decision of Planning Director, dated July 3, 2024. 8. A hearing on the Petition to Intervene was held on August 9, 2024, at which the Board approved the Petition to Intervene. 9. On October 11, 2024, the Board heard oral arguments and presentation of evidence, including exhibits, and testimony on the Appeal at the West Hawaii Civic Center with all Board Members present in person. Michael Kaleihoku Vitousek, Manager of Land and Development of 1250 Oceanside, LLC, Derek B. Simon, Esq., and Ian R. Wesley-Smith, Esq. appeared on behalf of Appellant. Zendo Kern, Hawaii County Planning Director and E. Britt Bailey, Deputy Corporation Counsel, appeared on behalf of the Planning Department. Charles Coupe of C&J Coupe Family Limited Partnership, Kenneth R. Kupchak, Esq., and Mark M. Murakami, Esq. appeared on behalf of Intervenor. 10. Appellant's witness, Michael Kaleihoku Vitousek, testified that Planning Director's declaratory order did not provide enough or specific information for Appellant to understand how to comply with its compliance obligations under Ord. 96-7 and Ord. 96-8. 3 11. Planning Director testified, and his testimony was consistent with the contents of his Order. Planning Director testified he exercised discretion in not answering some questions posed by the petitions. Planning Director's order and testimony did not"qualify"the dedication of the Mauka Halekii Extension in relation to the satisfaction of the Ord. 96-7 and 96-8 requirements as argued by Appellant. Planning Director acknowledged in his Order that the Mauka Halekii Extension was accepted by County Council Resolution 317-12 after input from Department of Public Works. Planning Director correctly identified that he had no authority to interpret the acceptance of the dedication of the road by County Council or Department of Public Works. 12. Neither the testimony of Mr. Vitousek nor the Planning Director needed reconciliation with the content of the Order. The testimony was irrelevant to the determination as to whether the Planning Director abused his authority and/or discretion. Nothing in Planning Department's Rules of Practice and Procedure ("PRPP") Rule 3-1 or Chapter 91, Hawaii Revised Statutes, requires Planning Director to issue a declaratory ruling to the satisfaction of the petitioner for said declaratory ruling. Planning Director was not required to inform Appellant of their legal obligations with respect to the issues raised in the Petition for a Declaratory Ruling. Likewise, eliciting testimony showing Planning Director did not answer specific questions or provided additional information that was not requested did not show the Planning Director abused his authority and/or discretion. 13. The exhibits did not show the Order was issued in error or an abuse of discretion. 14. Planning Director did not err, and acted within his discretion in refusing to answer on the effect of Ord. 96-7 alone, as requested by Appellant, when Ord. 96-8 was also applicable to the Hokulea development and enacted at the same time. 4 15. The Planning Director correctly identified questions that sought a review of actions of the Hawai`i County Council, and matters under the jurisdiction of a different department, Department of Public Works. 16. The Planning Director did not rule that any roadway is not constructed as required. The Planning Director ruled the roadways in question must be constructed to a condition approved by DPW, which does not take a position on whether or not any roadway is or was currently approved by DPW, and instead leaves those determinations to DPW and the Hawaii County Council. 17. The Board finds that the Order addressed the questions raised by the Appellant in its appeal, even if the Planning Director did not provide the level of clarity or specifics desired by the Appellant. CONCLUSIONS OF LAW 1. Hawai`i Revised Statues Section 91-8 allows that: Any interested person may petition an agency for a declaratory order as to the applicability of any statutory provision or of any rule or order of the agency. Each agency shall adopt rules prescribing the form of the petitions and the procedure for their submission, consideration, and prompt disposition. Orders disposing of petitions in such cases shall have the same status as other agency orders. 2. Planning Department's Rules of Practice and Procedure ("PRPP") Rule 3-1(a) states: (a) On petition of an interested person, the Director may issue a declaratory order as to the applicability of any statutory provision, ordinance, or of any rule or order of the Director or the Department. (emphasis added). 3. PRPP Rule 3-1(c) states: 5 (c) Within sixty days after the submission of a petition for declaratory ruling, the Director shall either deny the petition in writing, stating the reasons for such denial or issue a declaratory order on the matters contained in the petition, or set the matter for a public hearing, as provided in Sections 3-2, 3-3 and 3-4 of these rules. 4. PRPP Rule 3-1(a) gives the Planning Director the discretion to "issue a declaratory order as to the applicability of any statutory provision, ordinance, or any rule or order of the Director or the Department." 5. PRPP Rule 3-1(a) does not require the Planning Director to answer all questions posed in a petition once the Planning Director decides to issue a declaratory ruling on a petition. The Planning Director has discretion in the manner and method in addressing questions posed for a declaratory ruling. 6. PRPP Rule 3-1(c)provides when the Planning Director shall respond to the request for a declaratory order. 7. Hawaii County Code ("HCC") Section 25-2-23 [Standard of Review], provides that: The board of appeals may affirm the decision of the director, or it may reverse or modify the decision or remand the decision with appropriate instructions if based upon the preponderance of evidence the board finds that: (1) The director erred in its decision; or (2) The decision violated this chapter or other applicable law; or (3) The decision was arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion. 8. Board of Appeals Rules of Practice and Procedures, Rule 8-4(4)requires that a general petition for an appeal must include: A statement explaining: (A)How the decision appealed from violates the law; or (B)How the decision appealed from is clearly erroneous; or 6 (C)How the decision appealed from was arbitrary and capricious, or characterized by an abuse of discretion or clearly unwarranted exercise of discretion. 9. The Planning Director acted within his jurisdiction and discretion in the manner in which the Planning Director addressed the Appellant's posed questions. The Planning Director was not required to respond to the questions in the form or format posed by the Appellant. 10. The Planning Director correctly identified issues and questions outside the Planning Director's jurisdiction and discretion. 11. The Order sufficiently addressed the questions raised by the Appellant even though the Order did not reflect the specifics desired by the Appellant. 12. Having considered the testimony and evidence provided, including the submitted exhibits, the Board unanimously concluded that in issuing his Order, the Planning Director in issuing the order did not clearly err, was not arbitrary or capricious, nor did he abuse his discretion. Therefore, the Board affirmed Zendo Kern, Planning Director, County of Hawaii's Declaratory Order in the Matter of C&J Coupe Family Limited Partnership, Petitioner, Docket No. 24-0001. DECISION AND ORDER Based on its consideration of the evidence and argument presented at hearing, including the Record on Appeal, the documents on file herein, and applying the reliable probative evidence and law, the Board hereby Orders as follows: The Planning Director's April 29, 2024, Zendo Kern, Planning Director, County of Hawaii's Declaratory Order In the Matter of C&J Coupe Family Limited Partnership, Petitioner, Docket No. 24-0001 is AFFIRMED. The above-captioned Board of Appeals case is dismissed with prejudice in its entirety. 7 Dated: , Hawai`i, , 2026. By: Cathy Lewis, Chair Board of Appeals, County of Hawai`i State of Hawai`i In the Matter of Appeal of 1250 OCEANSIDE, LLC From the Decisions of the Planning Director, dated April 29, 2024 (Docket No. 24-0001), PL-BOA-2024-000104; AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER 8 BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI`I In the Matter of Appeal CASE NO.: PL-BOA-2024-000104 of BOARD OF APPEALS' CERTIFICATE OF SERVICE 1250 OCEANSIDE, LLC From the Decisions of the Planning Director, dated April 29, 2024 (Docket No. 24-0001 ) BOARD OF APPEALS' CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document was served upon the parties identified below by electronic mail service pursuant to Board of Appeals Rule 3-19 on January 23, 2026 Delivered via Electronic Mail (E-Mail and/or EPIC): Derek B. Simon, Esq. Patrick K. Wong, Esq. Ian R. Wesley-Smith, Esq. Attorneys for Appellant Kenneth R. Kupchak, Esq. Mark M. Murakami, Esq. Toren K. Yamamoto, Esq. Attorneys for Interventors Jean K. Campbell Demetri G. Lametti Deputies Corporation Counsel Office of the Corporation Counsel Attorney for Appellee Dated: Hilo, Hawaii, January 23, 2026 G&kfrtj-DeVera ASHLEY DEVERA Staff to the Board of Appeals 1