HomeMy WebLinkAbout2026-04-20 Corrected Prop Amd FOF-COL; Order on Remand - Redline Suggested Edits (PL-BOA-2024-000104) RENEE N.C.SCHOEN 5936
Corporation Counsel
SYLVTA A.WAN 9586
Deputy Corporation Counsel
Office of the Corporation Counsel
County of Hawaii
101 Aupuni Street,Suite 325
Hilo,Hawaii 96720
Telephone:(808)961-8251
Facsimile: (808)961-8622
E-mail: sylviaa.wan(c�hawaiicounty.gov
Attorneys for the
BOARD OF APPEALS
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAPT
STATE OF HAWAI`I
CASE NO.:PL-BOA-2024-000104
In the Matter of Appeal
of REDLINE SUGGESTED EDITS TO
PROPOSED AMENDED FINDINGS OF
1250 OCEANSIDE,LLC FACT,CONCLUSIONS OF LAW,
DECISION AND ORDER;BOARD OF
From the Decisions of the Planning Director, APPEALS'CERTIFICATE OF SERVICE
dated April 29,2024(Docket No.24-0001)
REDLINE SUGGESTED EDITS TO 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 Hawaii
101 Aupuni Street,Suite 325
Hilo,Hawaii 96720
Telephone:(808)961-8251
Facsimile: (808)961-8622
E-mail: sylviaa.wan(c�hawaiicounty.gov
Attorneys for the
BOARD OF APPEALS
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAPT
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
Hawai'i 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,affd 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, 1250
1
OCEANSIDE,LLC'S OBJECTIONS TO PROPOSED AMENDED FINDINGS OF FACT,
CONCLUSIONS OF LAW,DECISION AND ORDER,filed by the Appellant on February 9,
2026,and Coupe Family's Response to 1250 OCEANSIDE,LLC'S OBJECTIONS TO
PROPOSED AMENDED FINDINGS OF FACT,CONCLUSIONS OF LAW,DECISION AND
ORDER,filed by the Intervenor on February 27,2026 and other submitted input from the
parties
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,fkid ,eeii.ludes-mi e,_aw._als re-1h) s makes the
followina findinas of fact.To the extent that these findinas of fact contain conclusions of law,
they shall be so considered.
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 CROA")at 1-890.
2. On April 29,2024,the Planning Director issued Zendo Kern,Planning Director,
County of Haivai'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
2
Board of Appeals,County ofHawai'i("Board")appealing the Planning Director's issuance of
the Order.ROA at 975-2259.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
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. Formatted:Font:Times New Roman
:
4. Appellant's Appeal sought to modify the Order or have the Order remanded to the Formatted:List Paragraph,Indent:Left OJS"
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 Directors
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 and issued the Order Granting Petition to Intervene.
3
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 8-1 I,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.,;Deputiesy 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.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 at 20.
11. Haw.Rev.Star. §91-8 states that an interested person may petition an agency for
"a declaratory order as to the applicabili , of any statutoijprovision 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."Under both Chapter 91 and
PRPP,the Planning Director's discretion to issue declaratory rulings is limited.
12. Planning Director testified,and his testimony was consistent with the contents of
his Order.See ROA at 894-906.Transcript of October 11,2024 Hearing at 30-45.In response to
Oceanside's questions pertaining to its Petition that is the suHect of Oceanside's appeal in PL-
4
BOA-2024-000105.Planning Director testified he exercised discretion in not answering some
questions posed in that Petition.See Transcript of October 11,2024 Hearing at 37,44.by Rhe
peti ie}rs.
13. The Planning Director refused to answer several questions based on cited caselaw
that"f Tlhe 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."Citizens
Against Reckless Development v Zoning Board ofAppeals of the City and County ofHonolulu
("CARD"), 114 Hawaii 184, 196, 159 P.3d 143, 155(2007).
44-14. Planning Director's order and testimony did not"qualify"the dedication of the
Mauka Haleki`i 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 Haleki'i 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.
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.Nothing in
"PRPP2�Rule 3-1 or Chapter 91,Hawaii Revised
Statutes,requires Planning Director to issue a declaratory ruling as the decision to issue a
declaratory ruling is discretionary.Likewise,there is no requirement that Planninz Director must
issue declaratory rulings to the satisfaction of the petitioner .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
5
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.
4-3-.16. The exhibits did not show the Order was issued in error or an abuse of discretion.
4-4.17. 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.Ordinances 96-7 and 96-8 established
the zoning for the Proiect's approximate 1,500-acre master planned community.The Ordinances
contain the conditions for the rezoning of the Project,and have been read together as applicable
to the entirety of the Project.
4-5-1 S. 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.
4-6-.19. 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 Hawaii County Council.
4-7-20. 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. 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
6
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:
(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. Hawai`i 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
7
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.
S. 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
(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 ppell ~''s r,...._,'questions posed to him. The
Planning Director was not required to respond to the questions in the form or format posed to
him
10. The Planning Director correctly identified issues and questions outside the
Planning Director's jurisdiction and discretion.
IL. The Planning Director's reliance on caselaw to justify not answering questions
outside of the planning director's jurisdiction and discretion was not erroneous or an abuse of
discretion- Formatted:Font:Times New Roman
44-.12. The Order sufficiently addressed the questions raised by the Appellant even
though the Order did not reflect the specifics desired by the Appellant.
44,13. 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
8
discretion. Therefore,the Board affirmed 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.
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
Hawai'i'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, 12026.
By:
Cathy Lewis,Chair
Board of Appeals,County of Hawai'i
State of Hawai'i
9
AMENDED FPiD ;GS OF cn rr,GONC71=14MONS OF LAW,DEG4SION AND ORDER
10
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAI`I
STATE OF HAWAPI
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 May 7, 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 fbr Interventors
Jean K. Campbell
Demetri G. Lametti
Deputies Corporation Counsel
Office of the Corporation Counsel
Attorney fbr Appellee
Dated: Hilo, Hawaii, May 7, 2026
BETHANY MORRISON
Staff to the Board of Appeals
1