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Home My WebLink About2024-11-13 Proposed Findings of Fact, Conclusions of Law, Decision and Order (PL-BOA-2024-000105) ELIZABETH A. STRANCE 4715 Corporation Counsel E. BRITT BAILEY 9814 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: ElizabethB.Bailey@hawaiicounty.gov Attorneys for COUNTY OF HAWAI`I PLANNING DIRECTOR BEFORE THE BOARD OF APPEALS COUNTY OF HAWAII STATE OF HAWAII PL-BOA-2024-000105 In the Matter of Appeal of PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW,DECISION AND 1250 OCEANSIDE, LLC ORDER; CERTIFICATE OF SERVICE From the Decisions of the Planning Director, dated April 29, 2024 (Docket No. 24-0002) PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW,DECISION AND ORDER ELIZABETH A. STRANCE 4715 Corporation Counsel E. BRITT BAILEY 9814 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: ElizabethB.Bailey@hawaiicounty.gov Attorneys for Appellee, COUNTY OF HAWAI`I PLANNING DIRECTOR BEFORE THE BOARD OF APPEALS COUNTY OF HAWAII STATE OF HAWAII PL-BOA-2024-000105 In the Matter of Appeal of FINDINGS OF FACT, CONCLUSIONS OF LAW,DECISION AND ORDER; 1250 OCEANSIDE, LLC CERTIFICATE OF SERVICE From the Decisions of the Planning Director, dated April 29, 2024 (Docket No. 24-0002) FINDINGS OF FACT, CONCLUSIONS OF LAW,DECISION AND ORDER Pursuant to the Hawai'i County Board of Appeals' request to submit proposed Findings of Fact, Conclusions of Law, Decision and Order Denying Appellant 1250 Oceanside, LLC's appeal of the Director of the Planning Department("Planning Director"), County of Hawai`i's ("County" or"Appellee")Declaratory Order In the Matter of 1250 Oceanside, LLC, Petitioner, Docket No. 24-0002, Appellee, by its attorneys, Elizabeth A. Strance, Corporation Counsel, and E. Britt Bailey, Deputy Corporation Counsel, hereby submits its Findings of Fact, Conclusions of Law, Decision and Order, filed on November 13, 2024, as follows: FINDINGS OF FACT 1. On February 27, 2024, 1250 Oceanside, LLC ("Appellant") filed its Petition for Declaratory Ruling, ("Petition")requesting Declaratory Rulings from the 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 C1250 Oceanside, LLC, Petitioner, Docket No. 24-0002 ("Order")in response to the Petition. 3. On May 28, 2024, Appellant filed its General Petition for Appeal of Decisions by Planning Director or Public Works Director("Appeal")with the Board of Appeals, County of Hawai'i ("Board") appealing the Planning Director's issuance of the Order. 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, C&J Coupe Family Limited Partnership ("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 ofNo 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. The Board approved the Petition to Intervene. 9. On October 11, 2024, the Board heard oral arguments and presentation of evidence and testimony on the Appeal at the West Hawaii Civic Center with all Board Member 2 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, 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. 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 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." 3. 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 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. 4. 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 3 (C)How the decision appealed from was arbitrary and capricious, or characterized by an abuse of discretion or clearly unwarranted exercise of discretion. 5. Having considered the testimony and evidence provided, the Board unanimously ruled the Planning Director in issuing the Order did not clearly err, was not arbitrary or capricious, nor did he abuse his discretion. The Board found that the Director(1) stayed within his jurisdiction in the issues he addressed in the Order, (2) correctly identified the issues outside his discretion, and (3)that questions regarding the Development Agreement fell outside his powers outlined by the Hawai`i County Charter and Planning Department Rule 3. Therefore, the Board denied the Appellant's appeal of Zendo Kern, Planning Director, County of Hawaii's Declaratory Order In the Matter of 1250 Oceanside, LLC, Petitioner, Docket No. 24-0002. 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: Appellant's appeal of the Planning Director's April 29, 2024, Zendo Kern, Planning Director, County of Hawaii's Declaratory Order In the Matter of 1250 Oceanside, LLC, Petitioner, Docket No. 24-0002 is DENIED. The above-captioned Board of Appeals case is dismissed with prejudice in its entirety. Dated: , Hawai`i, , 2024. By: Cathy Lewis, Chair Board of Appeals, County of Hawai`i State of Hawai'i 4 BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI'I In the Matter of Appeal PL-BOA-2024-000105 of CERTIFICATE OF SERVICE 1250 OCEANSIDE, LLC From the Decision of the Planning Director, dated April 29, 2024 (Docket No. 24-0002) 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 upon the following on November 13, 2024: Delivered via Electronic Mail (E-Mail and/or EPIC) DEREK B. SIMONS dsimon@carlsmith.com PATRICK K. WONG pwong@carlsmith.com IAN R. WESLEY-SMITH iwesley-smith@carlsmith.com Carlsmith Ball LLP 1001 Bishop Street, Suite 2100 Honolulu, HI 96813 Attorneys for 1250 Oceanside, LLC KENNETH R. KUPCHAK krk@hawaiilawyer.com MARK M. MURAKAMI mmm@,hawaiilawyer.com TOREN K. YAMAMOTO tky@hawaiilawyer.com Damon Key Leong Kupchak Hastert 1003 Bishop Street, Suite 1600 Honolulu, HI 96813 Attorneys for Interventors C & J Coupe Family Limited Partnership SYLVIA A. WAN Sylvia.Wan@hawaiicounty.gov Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, HI 96720 Attorney for the Board of Appeals ZENDO KERN, PLANNING DIRECTOR, COUNTY OF HAWAII, Appellee By: /s/E. Britt Bailey E. BRITT BAILEY Deputy Corporation Counsel Its Attorney 2