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HomeMy WebLinkAbout2026-02-27 PL-BOA-2024-000104 Coupe Family's Response to 1250 Oceanside's Objections - Proposed Amended FOF-COL Of Counsel: DAMON KEY LEONG KUPCHAK HASTERT Attorneys at Law A Law Corporation KENNETH R. KUPCHAK 1085-0 krk(a,hawaiilawyer.c om MARK M. MURAKAMT 7342-0 mmm(a ,ha waiilawyer.com KATIE T. PHAM 1 1529-0 ktc,,hawaiilawyer.com 1003 Bishop Street, Suite 1600 Honolulu, Hawaii 96813 www.hawaiilgwyer.com Telephone: (808) 531-8031 Attorneys for Intervenor C & J Coupe Family Limited Partnership BEFORE THE BOARD OF APPEALS COUNTY OF HAWAII STATE OF HAWAII In the Matter of Appeal ) CASE NO.: PL-BOA-2024-000104 of ) COUPE FAMILY'S RESPONSE TO 1250 OCEANSIDE, LLC'S OBJECTIONS TO 1250 OCEANSIDE, LLC ) COUNTY OF HAWAII BOARD OF From the Decisions of the Planning Director, ) APPEALS' PROPOSED AMENDED dated April 29, 2024 (Docket No. 24-0001) FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER, AND COUPE FAMILY'S PROPOSED SUPPLEMENTAL EDITS TO THE BOARD OF APPEALS; EXHIBIT "A" COUPE FAMILY'S RESPONSE TO 1250 OCEANSIDE, LLC'S OBJECTIONS TO COUNTY OF HAWAII BOARD OF APPEALS' PROPOSED AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW,DECISION AND ORDER, AND COUPE FAMILY'S PROPOSED SUPPLEMENTAL EDITS TO THE BOARD OF APPEALS Pursuant to Rules 3-20 and 8-14 of the County of Hawaii Board of Appeals ("Board" or "BOA") Rules of Practice and Procedures ("BOA Rules"), Intervenor C & J Coupe Family 956330 Limited Partnership("Coupe Family"),by and through its attorneys,Damon Key Leong Kupchak Hastert,respectfully submits its Response to 1250 Oceanside,LLC's ("Oceanside")Objections to the BOA'S Proposed Amended Findings of Fact, Conclusions of Law,Decision and Order, served January 23, 2026 ("Proposed Decision and Order"), and its Proposed Supplemental Edits to the Board for consideration to incorporate into the Board's Proposed Decision and Order. A copy of the Board's Proposed Decision and Order with Coupe Family's suggested edits is attached as Exhibit"A". I. RESPONSE TO OCEANSIDE A. Proposed Findings of Fact Proposed Finding of Fact Objections 3. On May 28, 2024, 1250 Oceanside, LLC Oceanside objects to Proposed FOF 3 on ("Appellant") filed its General Petition the grounds that it mischaracterizes and for Appeal of Decisions by Planning misstates the grounds for Oceanside's Director or Public Works Director appeal of the Declaratory Order. ("Appeal")with the Board of Appeals, As reflected in its General Petition for County of Hawaii ("Board") appealing Appeal of Decisions by Planning Director the Planning Director's issuance of the or Public Works Director filed on May Order. Appellant argued the following 28, 2024 ("Petition for Appeal"), points of error: Oceanside appealed the Declaratory a. Planning Director erred by not Order on the grounds that: interpreting Ord. 96-7, standing a. The Director erred by ruling that alone, because no dedication Ordinance No. 96-7 requires the requirement is contained within dedication of three roadways Ord. 96-7; because no such requirement is b. Planning Director erred by contained within Ordinance No. 96- seemingly qualifying the 2010 7' dedication of the Mauka Haleki`i b. The Director erred by seemingly Extension and corresponding qualifying the 2010 dedication of the satisfaction of the Ordinances' Mauka Haleki`i Extension and conditions related to the roadway; corresponding satisfaction of the and Ordinances' conditions related to the c. Planning Director erred by ruling roadway; and that the Makki Haleki`i Extension and Connector Road have not been 2 Proposed Finding of Fact Objections constructed as required under the Ordinances because (1)both c. The Director erred by ruling that the roadways were constructed pursuant Makai Haleki`i Extension and to plans approved by DPW and are Connector Road have not been covered by the Variance, and(2) the constructed as required under the Planning Director lacks authority to Ordinances because (1) both rule upon the sufficiency of the roadways were constructed pursuant roadway for dedication. to plans approved by DPW and are covered by the Variance, and(2) the Director lacks authority to rule upon the sufficiency of the roadways for dedication. The grounds for Oceanside's appeal of the Declaratory Order to the BOA are also set forth in the Circuit Court's Remand Order. See Exhibit A at 14,¶29. Coupe Family's Response: The only difference between the Board's proposed language and Oceanside's is found in subsection 3.a. Although the wording is different, both versions of the proposed language essentially state the same thing. The Board's version references Oceanside's arguments below whereas Oceanside's language merely recites the Circuit Court's Remand Order. The crux of Oceanside's point of error on appeal remains the same. This is a distinction without difference. It would be correct to use either of the proposed versions, and Coupe Family defers to the Board's sound discretion to determine which version to use in its Proposed Decision and Order. Using Oceanside's version would only result in consistency with the Circuit Court's Remand Order and nothing more. 9. On October 11, 2024, the Board heard oral Oceanside objects to Proposed FOF 9 on arguments and presentation of evidence, the grounds that it does not specify that including exhibits, and testimony on the the BOA's hearing on October 1 l, 2024, Appeal at the West Hawaii Civic Center was a contested case hearing pursuant to with all Board Members present in person. BOA Rule 8-1 1, Part 3 of the BOA Michael Kaleihoku Vitousek, Manager of Rules, and HRS ch. 91. This was Land and Development of 1250 Oceanside, confirmed by the Circuit Court in its LLC, Derek B. Simon, Esq., and Ian R. Remand Order, which rejected the Wesley-Smith, Esq. appeared on behalf of County's argument that Oceanside's Appellant. Zendo Kem, Hawaii County appeal to, and subsequent hearing Planning Director and E. Britt Bailey, before, the BOA was not a contested Deputy Corporation Counsel, appeared on case. See Exhibit A at 22-23,¶¶10-15. behalf of the Planning Department. Charles Coupe of C&J Coupe Family Limited Oceanside further objects to Proposed FOF Partnership, Kenneth R. Ku chak, Esq., 9 on the grounds that it fails to reflect that Proposed Finding of Fact Objections and Mark M. Murakami, Esq. appeared on Deputy Corporation Counsel Jean K. behalf of Tntervenor. Campbell, Esq. also appeared on behalf of the Planning Director. Among other things, Ms. Campbell sat at the counsel table with Ms. Bailey during the hearing. Oceanside also objects to Proposed FOF 9 on the grounds that Charles Coupe did not appear on behalf of Coupe, although he may have been in attendance in the audience. Coupe Family's Response: We concur with these proposed edits. The Board held a contested case hearing pursuant to its rules in Oceanside's appeal. 10. Appellant's witness, Michael Kaleihoku Oceanside objects to Proposed FOF 10 on Vitousek,testified that Planning Director's the grounds that it misstates and declaratory order did not provide enough or mischaracterizes Mr. Vitousek's specific information for Appellant to testimony and the basis for Oceanside's understand how to comply with its appeal of the Declaratory Order. compliance obligations under Ord. 96-7 and Ord. 96-8. As the Circuit Court found in its Remand Order, Oceanside's appeal to the BOA "did not only concern the Declaratory Order lacking `the level of clarity desired by' Oceanside." See Exhibit A at 25-26, ¶29. Coupe Family's Response: This FOF does not misstate or mischaracterize Mr. Vitousek's testimony. See Transcript of October 11, 2024 Hearing at 20. Further, this FOF does not attempt to frame Oceanside's appeal as centering entirely on the Declaratory Order's "lacking the level of clarity desired by Oceanside." Such a reading ignores the previous FOF no. 3 where the basis for Oceanside's appeal is clearly spelled out. This FOF merely notes another of Oceanside's grievances in its appeal. 11. Planning Director testified, and his Oceanside objects to Proposed FOF 11 to testimony was consistent with the contents the extent that it finds that"Planning of his Order. Planning Director testified he Director testified he exercised discretion in exercised discretion in not answering some not answering some questions posed by the questions posed by the petitions. Planning petition" as this proposed finding appears Director's order and testimony did not completely unrelated to this appeal. The "qualify"the dedication of the Mauka Planning Director's refusal to issue Haleki`i Extension in relation to the declaratory rulings on certain questions is satisfaction of the Ord. 96-7 and 96-8 at issue in the separate appeal under Case requirements as argued by Appellant. No. PL-BOA-2024000105, which 4 Proposed Finding of Fact Objections Planning Director acknowledged in his concerns Oceanside's Petition for Order that the Mauka Haleki`i Extension Declaratory Ruling and a different was accepted by County Council Declaratory Order. Resolution 317-12 after input from Department of Public Works. Planning Oceanside further objects to Proposed Director correctly identified that he had no FOF 11 on the grounds that it is contrary authority to interpret the acceptance of the to the substantial evidence in the record, dedication of the road by County Council which establishes that the Planning or Department of Public Works. Director improperly qualified the dedication of the Mauka Haleki`i Extension and Oceanside's corresponding satisfaction of the Ordinances through his use of the phrases "to the extent" and "effectively dedicated"in the Declaratory Order. This is not some fictional issue that Oceanside has appealed. In its briefing before the BOA, Coupe sought to exploit the language in the Planning Director's ruling, arguing that"[t]he Director wisely qualified his ruling regarding the Mauka Haleki`i Extension" because the "qualification is due to the fact that the Mauka Haleki`i Extension was not effectively dedicated." (Emphasis added). Oceanside further objects to Proposed FOF 14 on the grounds that it is vague and ambiguous as to what is meant by "correctly identified" and"authority to interpret the acceptance of the dedication . . Coupe Family's Response: Regarding the first objection that Planning Director's testimony that"he exercised discretion in not answering some questions posed by the petition" is "completely unrelated to this appeal"—Ocean side appears to be referencing specifically the portion of the Planning Director's testimony related to its Petition. To that end, the second sentence of this FOF can be deleted or revised as follows: "In response to Oceanside's questions pertaining to its Petition that is the subject of Oceanside's appeal in PL-BOA-2024-000105, Planning Director testified he exercised discretion in not answering some questions posed in that Petition." Regarding the objection that"Planning Director improperly qualified the dedication of the Mauka Haleki`i Extension", this objection is attempting to litigate issues that are not before 5 Proposed Finding of Fact Objections the Board on remand and is thus beyond the scope of this proceeding. The Circuit Court only asked the Board to provide more details regarding its decision-making. The Board's proposed language satisfies the Circuit Court's requirement. Likewise, Oceanside's objection that it is vague and ambiguous as to what is meant by "correctly identified" and "authority to interpret the acceptance of the dedication goes beyond the scope of this proceeding. The proposed language does exactly what the Circuit Court asks of the Board, which is to provide the Court with more detail regarding the Board's decision. This last point is also not vague or ambiguous because (1) declaratory rulings are forward-looking and by rule and law cannot be used to review past decisions examinations of the correctness of prior actions have specific appeal procedures which had expired—and (2) the Planning Director does not have authority to review a past decision by a different governmental entity such as the County Council or the Department of Public Works. Oceanside's confusion can be cleared up easily by a citation to Haw. Rev. Stat. § 91-8 and Planning Department Rule 3-1. Incorporating Coupe Family's suggested edits would remedy any perceived issues on this point. 12. Neither the testimony of Mr. Vitousek nor Oceanside objects to Proposed FOF 12 to the Planning Director needed the extent that it finds that"eliciting reconciliation with the content of the testimony showing Planning Director did not Order. The testimony was irrelevant to the answer specific questions or provided determination as to whether the Planning additional information that was not Director abused his authority and/or requested did not show the Planning discretion. Nothing in Planning Director abused his authority and/or Department's Rules of Practice and discretion," as these purported findings Procedure ("PRPP") Rule 3-1 or Chapter appears completely unrelated to this appeal. 91, Hawai`i Revised Statutes,requires The Planning Director's (a) failure and/or Planning Director to issue a declaratory refusal to issue declaratory rulings on certain ruling to the satisfaction of the petitioner questions and(b) his sua sponte issuance for said declaratory ruling. Planning and/or erroneous inclusion of declaratory Director was not required to inform rulings in a different Declaratory Order are Appellant of their [sic] legal obligations at issue in the separate appeal under Case with respect to the issues raised in the No. PL-BOA-2024000105,which concerns Petition for a Declaratory Ruling. Oceanside's Petition for Declaratory Ruling. Likewise, eliciting testimony showing Planning Director did not answer specific Oceanside further objects to Proposed FOF questions or provided additional 12 to the extent that it finds that the information that was not requested did not "Planning Director was not required to show the Planning Director-abused his inform Appellant of their [sic] legal authority and/or discretion. obligations with respect to the issues raised in the Petition for a Declaratory Ruling."It is unclear what exactly is meant by this proposed finding, but"Appellant" (i.e., Oceanside) was not the petitioner for the Declaratory Order at issue in this appeal — that was Coupe. 6 Proposed Finding of Fact Objections Oceanside also objects to Proposed FOF 12 to the extent it finds that"[n]othing 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." Although it is not clear what is meant by "to the satisfaction of the petitioner," Oceanside was not the "petitioner" for the Declaratory Order at issue in this appeal. In any event, the Declaratory Order is an appealable order subject to review by both the BOA and the courts pursuant to the BOA Rules and HRS § 91-14. Oceanside further objects to Proposed FOF 12 to the extent that it finds that"[n]either the testimony of Mr. Vitousek not-the Planning Director needed reconciliation with the content of the Order," as it is contrary to the Circuit Court's Remand Order, which recognized that the BOA was required to reconcile the evidence received at the contested case hearing. See Exhibit A at 26, ¶30 ("None of the FOFs provide the Court with the necessary insight into how the BOA reconciled the evidence received as part of the contested case hearing."). Coupe Family's Response: The last sentence of this FOF starting with "Likewise, eliciting testimony showing Planning Director did not answer specific questions . . ." can be deleted to the extent that it references the portion of the Planning Director's testimony where he was being questioned specifically about Oceanside's Petition that is the subject of Oceanside's appeal in PL-BOA-2024-000105. Coupe Family objects to Oceanside's characterization of the Planning Director's Declaratory Order on Oceanside's Petition as containing "sua sponte"rulings Planning Director did not issue sua sponte rulings. There is nothing objectionable in the following sentence: "Nothing in Planning Department's Rules of Practice and Procedure ("PRPP") Rule 3-1 or Chapter 91, Hawai`i Revised Statutes, requires Planning Director to issue a declaratory ruling to the satisfaction of the petitioner for said declaratory ruling." This sentence adds to the Board's rationale behind its decision, which is what was requested by the Circuit Court on remand. 7 Proposed Finding of Fact Objections The next sentence ("Planning Director was not required to inform Appellant of their [sic] legal obligations with respect to the issues raised in the Petition for a Declaratory Ruling") can be deleted to the extent it references Oceanside's appeal in PL-BOA-2024-000105. Oceanside's objection to the first two sentences of this FOF again misconstrues the purpose of this proceeding ("Neither the testimony of Mr. Vitousek not-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."). It bears repeating that the reason Oceanside and Coupe Family sought declaratory rulings was because the Circuit Court ordered Coupe Family to do so, citing primary jurisdiction. The purpose of the declaratory ruling process was to get the Planning Director's opinion, not the Board's or the Circuit Court's opinion. The Planning Director has rendered his opinion, which was then put before the Board for review in Oceanside's two appeals. As the Planning Director's Declaratory Orders turn on his interpretation of rules and laws, these are matters of law and thus the Board's examination of these Orders does not turn on the credibility of witnesses' testimonies. Rather, the question before the Board was whether the Planning Director interpreted the rules and laws correctly in applying them to a certain set of facts submitted by the petitioner. These two sentences simply clarify this point and provide the rationale that the Circuit Court requested on remand. 13. The exhibits did not show the Order was Oceanside objects to Proposed FOF 13 on issued in error or an abuse of discretion. the grounds that it is contrary to the substantial evidence in the record, including the exhibits, which demonstrates that the Planning Director committed numerous errors and abused his discretion. Because Proposed FOF 16 fails identify any specific exhibits or specify how the exhibits purportedly did not show that the Planning Director erred or abused his discretion, Oceanside incorporates by reference its Petition for Appeal, its Consolidated Hearing Brief filed October 4,2024 ("Hearing Brief"), the evidence in the record(including exhibits and testimony), and argument adduced at the contested case hearing. Coupe Family's Response: This objection again goes beyond the scope of this proceeding because Oceanside is attempting to reargue the decision below whereas the Circuit Court only remanded for more details on the Board's decision. Coupe Family submits that any purported insufficiency can be remedied by incorporating Coupe Famil 's proposed edits as set forth below and in Exhibit A. 8 Proposed Finding of Fact Objections 14. Planning Director did not err, and acted Oceanside objects to Proposed FOF 14 on the within his discretion in refusing to answer grounds that it appears completely unrelated to on the effect of Ord. 96-7 alone, as this appeal. The Planning Director's failure requested by Appellant,when Ord. 96-8 and/or refusal to answer Oceanside's request was also applicable to the Hokulea for him to determine whether Ordinance No. development and enacted at the same time. 96-7 requires the dedication of certain roadways is at issue in the separate appeal under Case No. PL-BOA-2024-000105, which concerns Oceanside's Petition for Declaratory Ruling. This appeal concerns the Planning Director's erroneous declaratory ruling that dedications are required under Ordinance No. 96-7. Coupe Family's Response: To the extent that this FOF references Oceanside's appeal in PL- BOA-2024-000105, a simple revision will remedy such issue. Coupe Family respectfully submits that its proposed edits to this FOF as set forth below and in Exhibit A will address Oceanside's objection. 15. The Planning Director correctly identified Oceanside objects to Proposed FOF 15 on the questions that sought a review of actions grounds that it appears completely unrelated of the Hawaii County Council, and to this appeal. The Planning Director's matters under the jurisdiction of a determinations that certain requested different department, Department of declaratory rulings "sought a review of Public Works. actions of the Hawaii County Council, and matters under the jurisdiction of a different department, Department of Public Works" are at issue in the separate appeal under Case No. PL-BOA-2024000105, which concerns Oceanside's Petition for Declaratory Ruling. The Planning Director's determination that he cannot answer certain requested declaratory rulings on the grounds set forth in Proposed FOF 15 is not at issue in this appeal. Coupe Family's Response: This objection misstates the contents of the Planning Director's Declaratory Order in response to Coupe Family's Petition, which does include determinations that certain requests were outside the Planning Director's authority because they seek review of a different governmental entity such as the Hawaii County Council and the Department of Public Works. 16. The Planning Director did not rule that any Oceanside objects to Proposed FOF 16 on the roadway is not constructed as required. grounds that it is contrary to the substantial The Planning Director ruled the roadways evidence. in the Declaratory Order, the in question must be constructed to a Planning Director ruled that"[i]n order-to 9 Proposed Finding of Fact Objections condition approved by DPW,which does comply with the Ordinances, Oceanside must not take a position on whether or not any construct the Makai Haleki`i Extension and roadway is or was currently approved by Connector Road to a condition approved by DPW, and instead leaves those DPW — ." (Emphasis added). The Planning determinations to DPW and the Hawai'i Director did so despite the fact that: (a) both County Council. roads were constructed as part of Phase I of Hokuli`a, which received final subdivision approval in 1999 based on construction plans reviewed and approved by DPW; (b)both roads are subject to the Variance, which was granted by the Planning Department; and(c) the Planning Director testified that both roads are already constructed and exist today. The Planning Director's ruling in the Declaratory Order that Oceanside "must construct"both roadways "to a condition approved by DPW" directly contradicts the purported finding in Proposed FOF 16 that the Planning Director did"not take a position on whether or not any roadway is or was currently approved by DPW." Coupe Family's Response: This objection again attempts to reargue the decision below, which goes beyond the scope of this proceeding. It also misconstrues this FOF which explains the Board's review of the Planning Director's Order and states the basis of the Planning Director's decision. Again, this FOF supplements the Board's Decision and Order with the detail that the Circuit Court requested on remand. 17. The Board finds that the Order addressed Oceanside objects to Proposed FOF 17 the questions raised by the Appellant in its on the grounds that it is vague and appeal, even if the Planning Director did ambiguous as to what is meant by "the not provide the level of clarity or specifics Order addressed the questions raised by desired by the Appellant. [Oceanside] in its appeal." Oceanside's appeal did not"raise" questions that were purportedly addressed by the Declaratory Order. The questions "addressed"in the Declaratory Order at issue in this appeal were raised in Coupe's Petitions for Declaratory Ruling. Oceanside appealed the Declaratory Order because the Planning Director made several errors in the Declaratory Order. 10 Proposed Finding of Fact Objections Oceanside further objects to Proposed FOF 17 on the grounds that it misstates and mischaracterizes the grounds for Oceanside's appeal, which did not simply concern a lack "clarity or specifics desired by the [Oceanside]." This was confirmed by the Circuit Court in its Remand Order. See Exhibit A at 25-26, 29. Coupe Family's Response: To the extent this FOF appears to reference Oceanside's appeal in PL-BOA-2024-000105, it may be deleted. B. Proposed Conclusions of Law Proposed Conclusions of Law Objections Oceanside objects to Proposed COL 4 on 4. PRPP Rule 3-1(a) gives the Planning the grounds that it mischaracterizes the Director the discretion to "issue a nature and extent of the Planning Director's declaratory order as to the applicability authority and discretion when responding to of any statutory provision, ordinance, or petitions for declaratory rulings pursuant to any rule or order of the Director or the Rule 3-1 of the Planning Department Rules Department." of Practice and Procedure ("PD Rules"). The Hawaii Supreme Court has explained that, "[b]y empowering agencies generally with the authority to adopt rules regarding the manner in which declaratory ruling petitions shall be considered and disposed of, the legislature has granted agencies discretion with regard to the consideration of declaratory rulings. The boundaries of that discretion, which normally are defined by the legislature, may in such cases be established with reference to the agency rules themselves, or by reading the statute and the agency rules in tandem." Citizens Against Reckless Dev. v. Zoning Bd. of Appeals of City & Cnty. of Honolulu, 114 Haw. 184, 194-95, 159 P.3d 143, 153-54 (2007). In other words, the Planning Director's discretion in considering and disposing of petitions for declaratory 11 Proposed Conclusions of Law Objections rulings is circumscribed by PD Rule 3, and when the Planning Director acts outside of the boundaries of PD Rule 3, he commits clear error and acts without discretion, arbitrarily and capriciously, and in violation of the law. Coupe Family's Response: This COL is quoting PRPP Rule 3-1(a) directly. There is nothing in this COL that is mi scharacteri zing the nature and extent of the Planning Director's authority. It is unobjectionable. Oceanside objects to Proposed COL 5 on the 5. PRPP Rule 3-1(a) does not require the grounds that it appears completely unrelated Planning Director to answer all to this appeal. The Planning Director's questions posed in a petition once the failure and/or refusal to issue declaratory Planning Director decides to issue a rulings on certain questions is at issue in the declaratory ruling on a petition. The separate appeal under Case No. PL-BOA- Planning Director has discretion in the 2024-000105, which concerns Oceanside's manner and method in addressing Petition for Declaratory Ruling. It is questions posed for a declaratory ruling. therefore unclear what relevance, if any, the proposed finding that"PRPP Rule 3-1(a) does not require the Planning Director to answer all questions posed in a petition" has in this appeal. This appeal likewise does not concern"the manner and method"in which the Planning Director answered the questions posed in Coupe's Petitions for Declaratory Ruling; this appeal concerns numerous errors the Planning Director made in the Declaratory Order. Coupe Family's Response: This COL is relevant to this appeal to the extent that the Planning Director did determine that certain requests Coupe Family made were outside his authority and declined to exercise discretion to issue rulings on them. Further, this COL supplies the Board's interpretation of the rules in its examination of the Planning Director's Declaratory Order and is thus relevant. Like other Proposed FOFs and COLS 6. PRPP Rule 3-1(c)provides when the discussed supra, Proposed COL 6 appears Planning Director-shall respond to the completely unrelated to this appeal, and is request for a declaratory order. instead related to the issues raised by Oceanside in its separate appeal under Case No. PL-BOA-2024-000105, which concerns Oceanside's Petition for Declaratory Ruling. 12 Proposed Conclusions of Law Objections That said, Oceanside objects to Proposed COL 6 on the grounds that PD Rule 3-1(c) is not simply a"timing"rule. Although PD Rule 31(c) does set a deadline for the Planning Director to respond to petitions for declaratory ruling, it also constrains the Planning Director's discretion by limiting the ways in which the Planning Director can respond. By its plain terms, PD Rule 3- 1(c)mandates that the Planning Director respond in one of three ways: (a) "deny the petition in writing, stating the reasons for such denial;" (b)"issue a declaratory order- on the matters contained in the petitions;" or(c) "set the matter-for a public hearing, as provided in Sections 3-2, 3-3 and 3-4 of the PD Rules. Presumably, the Planning Director can also respond through some combination of the three. Coupe Family's Response: This COL is relevant to this appeal because it supplies the Board's interpretation of the rules in its examination of the Planning Director's Declaratory Order. There is also nothing in this COL that misstates the referenced rule. It is unobjectionable. Like other Proposed FOFs and COLs 9. The Planning Director acted within his discussed supra, Proposed COL 9 appears jurisdiction and discretion in the manner completely unrelated to this appeal, and in which the Planning Director instead is related to issues raised by addressed the Appellant's posed Oceanside in its separate appeal under-Case questions. The Planning Director was No. PL-BOA-2024-000105,which concerns not required to respond to the questions Oceanside's Petition for Declaratory Ruling. in the form or format posed by the Appellant. Specifically, the Planning Director did not address "Appellant's" (or Oceanside's) "posed questions" in the Declaratory Order at issue in this appeal— those questions were posed by Coupe in its Petitions for Declaratory Ruling. The issue of whether the Planning Director was "required to respond to the questions in the form or format posed by the Appellant" is likewise not at issue in this appeal because the questions addressed in the Declaratory Order at issue in this appeal were posed by Coupe, not Oceanside. 13 Proposed Conclusions of Law Objections Coupe Family's Response: This COL may be revised for clarity in the manner proposed by Coupe Family below and as shown in Exhibit A. Oceanside objects to Proposed COL 10 on 10.The Planning Director correctly the grounds that it is contrary to the identified issues and questions outside substantial evidence in the record and the the Planning Director's jurisdiction and law. in the Declaratory Order, the Planning discretion. Director exceeded his authority and jurisdiction by, inter alia,ruling that the Makai Haleki`i Extension and Connector Road have not been constructed as required under Ordinance No. 96-7 and Ordinance No. 96-8. Coupe Family's Response: This objection again attempts to reargue the matters before the Planning Director and is thus beyond the scope of this proceeding. This COL contains the Board's reasoning for its decision. To that end, it is both relevant and unobjectionable. Like other Proposed FOFs and COLS 11.The Order sufficiently addressed the discussed supra, Proposed COL 11 appears questions raised by the Appellant even completely unrelated to this appeal, and though the Order did not reflect the instead is related to issues raised by specifics desired by the Appellant. Oceanside in its separate appeal under Case No. PL-BOA-2024-000105, which concerns Oceanside's Petition for Declaratory Ruling. Specifically, the Declaratory Order at issue in this appeal did not address "the questions raised by the Appellant" (i.e., Oceanside). Those "questions"were raised by Coupe, not Oceanside. Oceanside further objects to Proposed COL 11 on the grounds that it misstates the grounds for Oceanside's appeal of the Declaratory Order. As the Circuit Court found in its Remand Order, Oceanside's appeal to the BOA "did not only concern the Declaratory Order lacking `the level of clarity desired by' Oceanside." See Exhibit A at 25-26, ¶29. 14 Proposed Conclusions of Law Objections Coupe Family's Response: To the extent that this COL may reference the appeal in PL- BOA-2024-000105, the Board may consider removing it for clarity. Coupe Family submits that any confusion or alleged issues presented by the Proposed Decision and Order will be resolved by incorporating Coupe Family's suggested edits. For the reasons set forth in Oceanside's 12.Having considered the testimony and Petition for Appeal and its Hearing Brief, evidence provided, including the as well as the evidence, testimony, and submitted exhibits, the Board argument adduced at the hearing, all of unanimously concluded that in issuing which is hereby incorporated by reference, his Order, the Planning Director in Oceanside objects to Proposed COL 12 on issuing the order did not clearly err, was the grounds that the BOA's decision to not arbitrary or capricious, nor did he affirm the Declaratory Order goes against abuse his discretion. Therefore, the the weight of the evidence and applicable Board affirmed Zen do Kem, Planning law, and constitutes reversible error. Director, County of Hawai`i's Declaratory Order in the Matter of C & J Coupe Family Limited Partnership, Petitioner, Docket No. 24-0001. Coupe Family's Response: This objection again attempts to reargue the matters before the Planning Director and is thus beyond the scope of this proceeding. This COL contains the Board's reasoning for its decision. To that end, it is both relevant and unobjectionable. iI. PROPOSED SUPPLEMENTAL EDITS A. Findings of Fact l. At the end of Paragraph 1: Add "BOA Record on Appeal ("ROA") at 1- 890." 2. At the end of Paragraph 2: Add"ROA at 894906." 3. in Paragraph 3, replace subsection "a" with the language used in the Remand Order so that it reads, "The Director erred by ruling that Ordinance No. 96-7 requires the dedication of three roadways because no such requirement is contained within Ordinance No. 96- 7." Add"ROA at 9752259" at the end of the first sentence. Add "ROA at 988-92" to the end of the paragraph. 15 4. At the end of Paragraph 4: Add"ROA at 992." 5. Paragraph 8:Add to the end of the paragraph"and issued the Order Granting Petition to Intervene." 6. Paragraph 9 is revised to read as follows: 9. On October 11, 2024, the Board heard oral arguments and presentation of evidence, including exhibits, and testimony on the Appeal in a contested case hearing pursuant to BOA Rule 8-11, Part 3 of the BOA Rules, and Haw. Rev. Stat. Chapter 91, 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, Hawai'i County Planning Director and E. Britt Bailey, Esq. and Jean K. Campbell, Esq., Deputy Corporation Counsel, appeared on behalf of the Planning Department. Kenneth R. Kupchak, Esq., and Mark M. Murakami, Esq. appeared on behalf of Intervenor. Charles Coupe of C&J Coupe Family Limited Partnership was also present. Add to the end of the paragraph "See Board of Appeals Meeting Minutes of October 11, 2024." 7. Paragraph 10: Add to the end of the paragraph "See Transcript of October 11, 2024 Hearing at 20." 8. Paragraph 11: Add "See ROA at 894-906; Transcript of October 1 1, 2024 Hearing at 30 45" to the end of the first sentence. The second sentence is revised to read, "In response to Oceanside's questions pertaining to its Petition that is the subject of Oceanside's appeal in PL-BOA-2024-000105, Planning Director testified he exercised discretion in not answering some questions posed in that Petition." Add "See Transcript of October 11, 2024 Hearing at 37, 44" at the end of the paragraph. 9. After these two sentences in paragraph 11, add new paragraph that reads as follows: 16 12. Haw. Rev. Stat. § 91-8 states that an 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."Pursuant to Planning Department's Rules of Practice and Procedure ("PRPP") Rule 3-1(a), declaratory orders can be issued as to "the applicability of any statutory provision, ordinance, or any rule or order of the Director or the Department."It is established that under both Chapter 91 and PRPP,the Planning Director's discretion to issue declaratory rulings is limited. 10. Add a new paragraph after that, as follows: 13. The declaratory ruling procedure is one"whereby an interested party could seek agency advice as to how a statute, agency rule, or order would apply to particular circumstances not yet determined." Citizens Against Reckless Development v. Zoning Board of Appeals of*the City and County of Honolulu ("CARD"), 114 Hawaii 184, 197, 159 P.3d 143, 156 (2007). "[T]he declaratory ruling procedure was not intended to be utilized to seek review of agency determinations that have already been made and which have not been timely appealed." Id. at 196, 159 P.3d at 155. Put another way, declaratory rulings are forward-looking whereas appeals of an agency's order or action looks at the past. Id. at 19495, 159 P.3d at 15354 ("where the applicability of relevant law is unknown, either because the agency has not yet acted upon particular factual circumstances, or for some other reason the applicability of some provisions of law have not been brought into consideration."). Further, examinations of the correctness of prior actions have specific appeal procedures which had expired just as the declaring of defaults under the Development Agreement is beyond the scope of the of the Planning Director's authority pursuant to Hawaii County Code § 30-6(a) and because it is not an action of Director, but rather a contract signed by the Mayor. HCC § 30-6(a) ("If, at any time, the office of the mayor finds and determines that the principal has committed a material breach of the terms or conditions of the agreement, the office of the mayor shall serve notice in writing, within thirty days after the finding of a material breach . . ."). Thus, the Planning Director's authority to issue declaratory rulings under Chapter 91 and PRPP does not include the authority to review the actions or orders of another department or government agency, or things that are not a Planning Department order. 11. The third sentence of the old paragraph 11 becomes new paragraph 14: It starts with "Planning Director's order and testimony did not `qualify"'... At the end of that 17 sentence, add "ROA at 905; Transcript of October 11, 2024 Hearing at 41." At the end of the second sentence, add "Id." 12. In the new Paragraph 15:In the second sentence after the word"discretion", add "because the Planning Director's declaratory rulings are matters of law." The third sentence is revised by deleting "Planning Department's Rules of Practice and Procedure" and adding after the word "or" "Hawaii Revised Statutes". The comma and the words "Hawaii Revised Statutes" that follow the words "Chapter 91"in the third sentence are deleted. Also in the third sentence after the words "requires Planning Director to issue a declaratory ruling", add"as the decision to issue a declaratory ruling is discretionary."New sentence after that will read "Likewise, there is no requirement that Planning Director must issue declaratory rulings to the satisfaction of the petitioner." The last two sentences are deleted. 13. In the new Paragraph 16: At the beginning, replace the words "The exhibits did not show"with"Nothing in the record shows that". 14. Part of the old Paragraph 14 becomes the new Paragraph 17. Add to the beginning of the new Paragraph 17 the following: 17. "Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other." Waikiki Marketplace Inv. Co. v. Chair of Zoning Bd. of Appeals, 86 Hawai`i 343, 949 P.2d 183, 194 (App. 1997). The same applies to the interpretation of municipal ordinances. Id. ("The construction of municipal ordinances is governed by the same rules of statutory construction."). The record clearly shows that Ord. 96-7 and Ord. 96-8 were enacted at the same time, containing the same maps, and both applied to the development of Hokulia. ROA at 404-29; 430- 63. Thus, Ord. 96-7 and Ord. 96-8 are "laws in pari inateria" and must be construed with reference to each other. Further, the interpretation of Ord. 96-7 and Ord 96-8 is a matter of law. 18 Revise the sentence starting with"Planning Director did not err", to read: "Planning Director did not err, and acted within his discretion in not answering on the effect of Ord. 96-7 alone and rather construed the effect of Ord. 96-7 and Ord. 96-8 together." 15. The new Paragraph 18 reads as follows: "The Planning Director correctly identified questions that sought a review of actions of the Hawaii County Council, and matters under the jurisdiction of a different department, Department of Public Works." 16. The new Paragraph 19 reads as follows: 19. Where the Director has discretion to issue declaratory rulings under the PRPP, his decision not to issue declaratory rulings on certain questions put to him because they are outside of the bounds of his authority is a valid and proper exercise of said discretion. Planning Director was correct in his determination that these questions were outside of the scope of his discretion as a matter of law and acted properly in declining to issue declaratory rulings on them. 17. Paragraph 16 becomes the new Paragraph 20: After the first sentence, add "ROA at 903-05." Add "Id." at the end of the paragraph. Tt will read as follows: 20. The Planning Director did not rule that any roadway is not constructed as required. ROA at 903-05. 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 Hawai'i County Council. Id. 18. Paragraph 17 becomes the new Paragraph 21 and reads as follows: "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." 19 B. Conclusions of Law 19. Paragraph 9 is revised to read: 9. The Planning Director acted within his jurisdiction and discretion in the manner in which the Planning Director addressed the questions posed to him. The Planning Director is not required to respond to the questions in the form or format posed to him. 20. Paragraph 11 is deleted. DATED: Honolulu, Hawaii, February 27, 2026. DAMON KEY LEONG KUPCHAK HASTERT Is/Katie T. Pham KENNETH R. KUPCHAK MARK M. MURAKAMI KATIE T. PHAM 20 EXHIBIT "A" RENEE N. C. SCHOEN 5936 Corporation Counsel SYLVTA 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(aThawaiicounty.gov Attorneys for the BOARD OF APPEALS BEFORE THE BOARD OF APPEALS COUNTY OF HAWATI STATE OF HAWAII In the Matter of Appeal CASE NO.: PL-BOA-2024-000104 of PROPOSED AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW, 1250 OCEANSIDE, LLC DECISION AND ORDER; BOARD OF APPEALS' CERTIFTCATE 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 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: sylvi aa.wan khawai i county.gov Attorneys for the BOARD OF APPEALS BEFORE THE BOARD OF APPEALS COUNTY OF HAWAII STATE OF HAWAII In the Matter of Appeal CASE NO.: PL-BOA-2024-000104 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. 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"). BOA Record on Appeal ("ROA") at l-890. 2. On April 29, 2024, the Planning Director issued Zendo Kern, Planning Director, County of Hawai'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. ROA at 894-906. 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. ROA at 975-2259. Appellant argued the following points of error: a. The Director erred by ruling that Ordinance No. 96-7 requires the dedication of three roadways because no such requirement is contained within Ordinance No. 96-7 , 2 b. Planning Director erred by seemingly qualifying the 2010 dedication of the Mauka Halekii Extension and corresponding satisfaction of the Ordinances' conditions related to the roadway; and cPlanning Director erred by ruling that the Makai Halekii Extension and Connector Road have not been constructed as required under the Ordinances because (1) both roadways were constructed pursuant to plans approved by DPW and are covered by the Variance, and (2) the Planning Director lacks authority to rule upon the sufficiency of the roadway for dedication. ROA at 988-92. 4. Appellant's Appeal sought to modify the Order or have the Order remanded to the Planning Director to correct alleged errors. ROA at 992. 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 of Hawai'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. S. A hearing on the Petition to Intervene was held on August 9, 2024, at which the Board approved the Petition to Intervene and issued the Order Granting Petition to Intervene. 9. On October 11, 2024, the Board heard oral arguments and presentation of evidence, including exhibits, and testimony on the Appeal in a contested case hearing pursuant to BOA Rule 8-11, Part 3 of the BOA Rules, and Haw. Rev. Stat. Chapter 91, 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, Esq. and Jean K. Campbell, Esq_, Deputy Corporation Counsel, appeared on behalf of the Planning Department. ri.af es Coupe of C Q.T Coupe Family Limited , Kenneth R. Kupchak, Esq., and Mark M. Murakami, Esq. appeared on behalf of intervenor. Charles Coupe of C&J Coupe Family Limited Partnership was also present. See Board of Appeals Meeting Minutes of October 11, 2024. 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. See Transcript of October 11, 2024 Hearing a 11. Planning Director testified, and his testimony was consistent with the contents of his Order. See ROA at 894-906. Transcript of October 1 1, 2024 Hearing at 30 45. in response to Oceanside's questions pertaining to its Petition that is the subject of Oceanside's appeal in PL-BOA-2024-000105, Planning Director testified he exercised discretion in not answering some questions posed in that Petition . See Transcript of October 1 1, 2024 Hearing at 37, 44. 12. Haw. Rev. Stat. § 91-8 states that an interested person may petition an agency for "a declaratory order as to the applicability statutoa provision or of any rule or order of 4 the agency." Pursuant to Planning Department's Rules of Practice and Procedure ("PRPP") Rule 3-1(a), declaratory orders can be issued as to "the applicability of any statutoryprovision, ordinance, or any rule or order of the Director or the Department." Tt is established that under both Chapter 91 and PRPP, the Planning Director's discretion to issue declaratory rulings is limited. 13. The declaratoa ruling procedure is one "whereby an interested party could seek agency advice as to how a statute, agency rule, or order would apply to particular circumstances not _yet determined." Citizens Against Reckless Development v. Zoning Board of Appeals of the City and County of Honolulu ("CARD"), 114 Hawai`i 184, 197, 159 P.3d 143, 156 (2007). "[The declaratot- ruling procedure was not intended to be utilized to seek review of agency determinations that have already been made and which have not been timely appealed." Id. at 196, 159 P.3d at 155. Put another way, declaratory rulings are forward-looking whereas appeals of an agency's order or action looks at the past. Id. at 19495, 159 P.3d at 15354 ("where the applicability of relevant law is unknown, either because the agency has not yet acted upon particular factual circumstances, or for some other reason the applicability of some provisions of law have not been brought into consideration."). Further, examinations of the correctness of prior actions have specific appeal procedures which had expired just as the declaring of defaults under the Development Agreement is beyond the scope of the of the Planning Director's authority pursuant to Hawaii County Code § 30-6(a) and because it is not an action of Director, but rather a contract signed by the Mayor. HCC § 30-6(a) ("If, at any time, the office of the mayor finds and determines that the principal has committed a material breach of the terms or conditions of the agreement, the office of the mayor shall serve notice in writing, within thirty days after the finding of a material breach . . ."). Thus, the Planning Director's authority to issue 5 declaratory rulings under Chapter 91 and PRPP does not include the authority to review the actions or orders of another department or government agency, or things that are not a Planning Department order. 44,14. 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. ROA at 905; Transcript of October 11, 2024 Hearing at 41. 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. Id. 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. 4-2,15. 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 because the Planning Director's declaratory rulings are matters of law. Nothing in Planning " PRPP Rule 3-1 or Hawaii Revised Statutes Chapter 91, Hawaii R&yi,oa Statt*e-s requires Planning Director to issue a declaratory ruling as the decision to issue a declaratory_ rig is discretionary. Likewise, there is no requirement that Planning Director must issue declaratory rulings to the satisfaction of the petitioner to inmPqf+n Appellant of theif legal obligations with i:espeet te the issues faised iii the Petition 4-3-.16. Nothing in the record shows that The exhibits did not show-the Order was issued in error or an abuse of discretion. 14 "Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other." Waikiki Marketplace Inv. Co. v. Chair of Zoning Bd. ofAppeals, 86 Hawaii 343, 949 P.2d 183, 194 (App. 1997). The same applies to the interpretation of municipal ordinances. Id. ("The construction of municipal ordinances is governed by the same rules of statutory construction."). The record clearly shows that Ord. 96-7 and Ord. 96-8 were enacted at the same time, containing the same maps, and both applied to the development of Hokulia. ROA at 915-40, 941-74. Thus, Ord. 96-7 and Ord. 96-8 are "laws in pari materia" and must be construed with reference to each other. Further, the interpretation of Ord. 96-7 and Ord 96-8 is a matter of law. Planning Director did not err, and acted within his discretion in knot answerM on the effect of Ord. 96-7 alone, as f equested bAppel! N�, and rather construed the effect of Ord. 96-7 and when Ord. 96-8 was also plie ble to the Hokin, development � a enacted t the same timetoether. 17. 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. 15. Where the Director has discretion to issue declaratory rulings under the PRPP, his decision not to issue declaratory rulings on certain questions put to him because they are outside of the bounds of his authority is a valid and proper exercise of said discretion. Planning Director 7 was correct in his determination that these questions were outside of the scope of his discretion as a matter of law and acted properly in declining to issue declaratoa rulings on them. 16.-The Planning Director did not rule that any roadway is not constructed as required. ROA at 903-05. 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 Hawai'i County Council. Id. 4�7-.18. by the Appellant. CONCLUSIONS OF LAW 1. Hawaii 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. 8 (emphasis added). 3. PRPP Rule 3-1(c) states: (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 9 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 (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 ^ppellant's posed questions posed to him. The Planning Director was not required to respond to the questions in the form or format posed by the Appel! to him. 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, not- 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. 10 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. Dated: , Hawai`i, , 2026. By: Cathy Lewis, Chair Board of Appeals, County of Hawaii State of Hawaii 11