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HomeMy WebLinkAbout2025-08-18 3CCV-25-0000028 Findings of Fact, Conclusions of Law, and Order Vacating and Remanding to BOA (PL-BOA-2024-000105) Electronically Filed THIRD CIRCUIT 3CCV-25-0000028 18-AUG-2025 09:57 AM Dkt. 166 FOF IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII 1250 OCEANSIDE, LLC, CIVIL NO. 3CCV-25-0000028 Appellant, AGENCY DOCKET NO. PL-BOA- 2024-000105 vs. FINDINGS OF FACT, BOARD OF APPEALS, COUNTY OF CONCLUSIONS OF LAW, AND HAWAII; ET AL., ORDER VACATING AND REMANDING THE BOARD OF Appellees, APPEALS FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Judge: Hon. Kauanoe A. D. Jackson Oral Argument Date: June 10, 2025 Oral Argument Time: 2:30 p.m. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER VACATING AND REMANDING THE BOARD OF APPEALS FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER This appeal is taken from the Findings of Fact, Conclusions of Law, and Decision and Order ("Decision and Order") that the Appellee County of Hawaii Board of Appeals (the "BOA") entered on December 16, 2024, pursuant to Section 91-14, Hawai'i Revised Statutes ("HRS"). This appeal came for oral argument on June 10, 2025, at 2:30 p.m. before the Honorable Kauanoe A. D. Jackson, Judge of the above-entitled Court. Michael Kaleihoku Vitousek, Manager of Land and Development of 1250 Oceanside LLC, Patrick K. Wong, Esq., and Derek B. Simon, Esq. (via Zoom) appeared for Appellant 1250 OCEANSIDE, LLC ("Oceanside"). Deputy Corporation Counsel Demetri G. Lametti appeared for Appellee BOARD OF APPEALS OF THE COUNTY OF HAWAI'l ("BOA") and Appellee-Appellee JEFFREY DARROW, PLANNING DIRECTOR, COUNTY OF HAWAI'I ("Director", and collectively with the Board "County Appellees"). Kenneth R. Kupchak Esq., Mark M. Murakami, Esq., and Katie T. Pham, Esq. (via Zoom) appeared for Appellee-Appellee C & J COUPE FAMILY LIMITED PARTNERSHIP ("Coupe"). This Court has reviewed and considered the parties' briefs and filings, the Record on Appeal ("ROA"), and the parties' oral arguments. Based on the foregoing, the Court hereby enters the following Findings of Fact and Conclusions of Law VACATING AND REMANDING the BOA's Decision and Order in PL-BOA-2024-000105 for noncompliance with HRS § 91-12. FINDINGS OF FACT The Court makes the following findings of fact. To the extent that these findings of fact contain conclusions of law, they shall be so considered. Factual Background 1. Hokuli'a is a master-planned community located in Kealakekua, Hawaii ("Project") originally developed by 1250 Oceanside Partners ("Original Developer"). See Dkt. 17, ROA at 0030. 2 2. The Original Developer obtained County of Hawaii Ordinance Nos. 96-7 and 96-8 (collectively, "Ordinances"), for the rezoning of 1550 acres to allow for the Project's development, among other approvals. Id.; Dkts. 18-19, ROA at 0051-110. 3. Following enactment of the Ordinances, the Original Developer entered into a Development Agreement with the County, dated April 20, 1998 . Dkt. 17, ROA at 0031. 4. The Development Agreement included requirements relating to the acquisition of land, the construction of a bypass road, the development of a shoreline park, and the donation of a permanent right of way to the park. The Development Agreement, set forth, inter alia, that in lieu of actual construction of infrastructure and roadway improvements, the Original Developer could make assurances under the Development Agreement such construction would occur and the Original Developer would post bonds in favor of the County ensuring such construction. Dkt. 17, ROA at 0031; Dkt. 22, ROA at 0206-0234. 5. In exchange, the Original Developer would receive final subdivision approval prior to actual construction of such improvements. Id. The Development Agreement has not expired as it has a term of thirty years from the date of the resolution enacting it by the Hawai'i County Council. See Dkt. 22, ROA at 214. 6. On April 29, 2010, the County sent notice to the Original Developer detailing the Original Developer's material breach of the Development Agreement and subdivision agreements due to its failure to timely construct the required improvements and the invalidity of the bonds it provided to the County. Dkt. 18, ROA at 0044-0050. 3 7. On January 31, 2011, the County's Planning Department issued Variance 10-027 at the Original Developer's request, providing, inter alga, variances from Chapter 23 of the Hawaii County Code ("HCC") related to the construction of the Mauka Haleki'i Extension, the Makai Haleki'i Extension, and the Connector Road (all defined below) ("Variance 10-027"). Dkt. 28, ROA at 0473-0480. Variance 10-027 has not been the subject of an appeal or other subsequent legal challenge (except to the extent it is at issue in the 2023 Lawsuit (defined below)). 8. In 2012, 1250 Oceanside, LLC ("Oceanside," or "Appellant") acquired the Original Developer's outstanding loans and took over the Project. Dkt. 17, ROA at 0031. Over the years, the Mamalahoa Bypass Road ("Bypass"), Haleki'i Street and portions of subdivision improvements were constructed. The property underlying the Bypass was conveyed to the County and the Hawaii County Council accepted the extension of Haleki'i Street to the mauka side of the Bypass ("Mauka Haleki'i Extension") through dedication pursuant to County Resolution No. 317-12, adopted November 9, 2012; Id. at 0032. 9. To date, the extension of Haleki'i Street through the Project ("Makai Haleki'i Extension") and the roadway stub-outs running north-south from the Makai Haleki'i Extension to the adjacent north and south properties ("Connector Road," and collectively with the Makai Haleki'i Extension, sometimes referred to herein as the "Roadways") have not been dedicated to the County. Dkt. 17, ROA at 0040; Dkt. 116, Appellant 1250 Oceanside, LLC's Opening Brief("OB"), at 8. Coupe's Original Lawsuit 4 10. On March 31, 2023, the Coupe Family filed a complaint in the Circuit Court of the Third Circuit, State of Hawaii, entitled C & J Coupe Family Limited Partnershiq v. County of Hawai'i, Civil No. 3CCV-23-0000123 ("2023 Lawsuit"), alleging Oceanside failed to comply with, and the County failed to enforce, the Ordinances, which require dedication of the Makai Haleki'i Extension and the Connector Road to the County. Dkts. 35-36, ROA at 0755-0799. 11. The Complaint seeks, inter alia, to compel Oceanside to fulfill its obligations under the Development Agreement and its incorporated Ordinances 96-7 and 96-8, Dkts. 22-24, ROA at 0204-0297, whereby Oceanside agreed to construct the Mauka Haleki'i, the Makai Haleki'i and the Connector Road, and dedicate them to the County before the issuance of Final Subdivision Approval for any portion of the Hokulia projects. Dkts. 35-36, ROA at 0755-0799. 12. On September 15, 2023, the Circuit Court stayed the 2023 Lawsuit, ordering Coupe to seek declaratory rulings from the County of Hawaii Planning Director regarding Oceanside's compliance with the Ordinances and the Development Agreement. Dkt. 37, ROA at 0812-0817 (Order Granting in Part County Defendants' Motion to Dismiss the Complaint for Declaratory and Injunctive Relief, filed March 31, 2023 [Dkt.l], Filed March 25, 2023 [Dkt. 21], and Staying Proceedings Pending Referral to County of Hawaii Planning Department, filed January 19, 2024). 13. On February 7, 2024, Coupe filed a petition for declaratory ruling with the Planning Department, which was supplemented on March 27, 2024. Dkt. 19, ROA at 0115; Dkt. 80, ROA at 2392. Oceanside's Petition for a Declaratory Ruling 5 14. Oceanside filed its own Petition for Declaratory Ruling on February 27, 2024, (the "Petition") which was docketed as Planning Director Docket No. 24-0002. Dkts. 19-29, ROA 0112-0485. It is Oceanside's Petition for Declaratory Ruling that is the subject of this appeal. 15. In the Petition, Oceanside sought declaratory rulings on twenty-four (24) requests ("Requests") of the Director. Dkt. 20, ROA at 0123-0126. The Requests span five general categories: (1) Dedication Requirements; (2) Construction Standards; (3) Variances Under Chapter 23 (Subdivision) of the Hawaii County Code; (4) Variance Applications; and (5) Dedication of Haleki'i Extension. Id. 16. The requests related to Dedication Requirements were: • 1) Whether the express terms of Ordinance No. 96-7 require the dedication of the Mauka Haleki'i Extension or Connector Road? • 2) Whether the express terms of Ordinance No. 96-7 require the dedication of the Mauka Haleki'i Extension, Makai Haleki'i Extension, or Connector Road by a date certain or any milestone in the development of Hokuli`a? • 3) Whether the express terms of the Development Agreement impose any dedication obligations for the Mauka Haleki'i Extension, Makai Haleki`i Extension, or Connector Road separate and apart from Ordinance No. 96- 8. Id. 17. The requests related to Construction Standards were: 6 • 1) Whether the express terms of the Ordinances set specific construction standards to which the Mauka Haleki'i Extension, Makai Haleki'i Extension, and Connector Road must be built to? • 2) Whether the express terms of the Ordinances require compliance with Sections 23-86 and 23-95 of the HCC for the Mauka Haleki'i Extension, Makai Haleki'i Extension, and Connector Road? • 3) Whether the express terms of the Development Agreement set specific construction standards to which the Mauka Haleki'i Extension, Makai Haleki'i Extension, and Connector Road must be built to? • 4) Whether the express terms of the Development Agreement require compliance with Sections 23-86 and 23-95 of the HCC for the Mauka Haleki'i Extension, Makai Haleki'i Extension, and Connector Road? • 5) Whether the express terms of the Ordinances prohibit variances under Chapter 23 for the Mauka Haleki'i Extension, Makai Haleki'i Extension, and Connector Road? • 6) Whether the express terms of the Development Agreement prohibit variances under Chapter 23 for the Mauka Haleki'i Extension, Makai Haleki'i Extension, and Connector Road? Id. 18. The requests related to Variances Under Chapter 23 (Subdivision) of the HCC were: • 1) As of January 31, 2011, did Chapter 23 have provisions for granting variances? 7 • 2) As of January 31, 2011, did the provisions for granting variances under Chapter 23 allow for variances from Sections 23-86 and 23-95 of the HCC? • 3) Can a roadway subject to a properly granted variance from Sections 23-86 and 23-95 of the HCC be in full compliance with Chapter 23? • 4) If a roadway subject to a variance is otherwise in full compliance with Chapter 23, can the County accept dedication of the roadway under Section 23-10 of the HCC? • 5) Can a roadway subject to a variance from Sections 23-86 and 23-95 of the HCC be dedicated under Section 23-10 of the HCC? Id. 19. The requests related to Variance Applications were: • 1) As of January 31, 2011, did Section 23-17(a) of the HCC allow for notice of a variance application to be served by mail on owners of interests in properties within 300 feet of the perimeter boundary of the applicant's property? • 2) As of January 31, 2011, did Section 23-17(a) of the HCC allow for proof of an applicant's service or good faith efforts to serve notice of a variance application on neighboring property owners to be provided in the form of an affidavit? • 3) As of January 31, 2011, did Chapter 23 or any other statute, ordinance, rule, or order within the Planning Director's jurisdiction require notice of a 8 variance application to be served on neighboring property owners other than as provided in Section 23-17(a) of the HCC? • 4) As of January 31, 2011, did Chapter 23 allow for any person aggrieved by the decision of the Planning Director in the administration of Chapter 23 to file an appeal with the Hawai'i County Board of Appeals within thirty days of the Planning Director's written decision? • 5) As of January 31, 2011, did Chapter 23 or any other statute, ordinance, rule, or order within the Planning Director's jurisdiction authorize an appeal of the Planning Director's decision on a variance application other than by filing an appeal with the Board of Appeals within thirty days of the Planning Director's written decision on the variance application? • 6) Did the variance violate any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending County rezoning ordinances? • 7) Did the variance violate any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending development agreements? Id. 20. The requests related to the Dedication of the Haleki'i Extension were: • 1) As of November 9, 2012, did any statute, ordinance, rule, or order within the Planning Director's jurisdiction require notice of the Resolution to be served on neighboring property owners? 9 • 2) Did adoption of the Resolution violate any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending rezoning ordinances? • 3) Did adoption of the Resolution violate any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending development agreements? Id. 21. Rule 3-1(a) of the Planning Department's Rules of Practice and Procedure ("PRPP") provides: "[o]n the 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." 22. There was no request for a hearing on this Petition by Oceanside'. Dkts. 19-20, ROA at 0115-0139. The Director's Declaratory Order 23. Without holding a hearing, the Planning Director issued a Declaratory Order ("Declaratory Ruling") on both Coupe's Petition and Oceanside's Petition on April 29, 2024. Dkt. 80, ROA at 2374-2386 (Declaratory Ruling on Coupe's Petition) and Dkts. 80-81, ROA 2389-2401 (Declaratory Ruling on Oceanside's Petition). 24. In response to Oceanside's Petition, the Director declined to respond to the following sixteen requests in Oceanside's petition: • Dedication Requirements, request 3 does not does not designate any specific provision, rule, or order of the Director or Department and failed to 1 Coupe's requests for a hearing on their Petition was denied. Dkt. 80, ROA at 2385-2386 10 comply with PRPP Rule 3-1(b)(3). It also improperly seeks an interpretation of the Development Agreement, which is not a Department Order. Dkt. 17, ROA at 0037. • Construction Standards, requests 3, 4, and 6 improperly seek an interpretation of the Development Agreement, which is not a Department Order. Id. • Variances Under Chapter 23, requests 1 and 2 and Variance Applications, requests 1, 2, 3, 4, and 5 seek improper review or affirmance of a past department action, which is no longer appealable. Id. • Variance Applications, requests 6 and 7 seek improper review or affirmance of a past department action, which is no longer appealable. Id. at 0038. • Dedication of the Haleki'i Extension, requests 1, 2, and 3 improperly seek review or affirmance of a County Council action over which the Director has no authority. Id. 25. The Director agreed to respond to the following eight (8) requests made in Oceanside's petition: • Dedication Requirements, requests 1 and 2. Id. • Construction Standards, requests 1, 2, and 5. Id. • Variances Under Chapter 23, requests 3, 4, and 5. Id. at 0039. 26. Overall, the Director ruled that he could issue declaratory rulings on eight of Oceanside's twenty-four requested declaratory rulings. Dkts. 17-18, ROA at 0030- 0043. 11 Oceanside's Appeal to the BOA 27. On May 28, 2024, Oceanside filed its General Petition for Appeal of Decisions by Planning Director or Public Works Director ("Board Appeal") with the BOA appealing the Director's Declaratory Ruling. Dkts. 17-37, ROA at 0001-0836. 28. In its appeal, Oceanside argued that the Declaratory Order should be either modified by the BOA or reversed and remanded because: a. The Director erred by failing to issue declaratory rulings on eight of Oceanside's Requests despite determining they were within his authority and jurisdiction and would be answered in the Declaratory Order; b. The Director erred by refusing to issue declaratory rulings on the four Requests concerning the Development Agreement because the Planning Department has been delegated the responsibility to administer development agreements for the County, which provides the Director with authority and jurisdiction to answer the Requests; c. The Director erred by refusing to issue declaratory rulings on the seven Requests because he incorrectly determined that they sought to review or affirm the validity of the Variance; d. The Director erred by issuing several declaratory rulings sua sponte and not in response to any of the Requests submitted by Oceanside, which he lacks authority to do; 12 e. 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; f. The 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 g. The 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 Director lacks authority to rule upon the sufficiency of the roadways for dedication. Dkt. 17, ROA at 0012-0026. 29. On July 3, 2024, Coupe filed a Petition to Intervene in Oceanside's appeal, which the BOA granted after holding a hearing on August 9, 2024. Dkt. 73, ROA at 2163-2165. 30. The BOA held a hearing on Oceanside's appeal on October 11, 2024. Dkt. 105, ROA at 3317-3322 (minutes); Dkts. 105-107, ROA at 3326-3376 (transcript). 31. At the hearing, the BOA heard oral arguments by counsel, received exhibits and heard testimony from witnesses. Dkt. 105, ROA at 3319-3321. 32. At the conclusion of the hearing, the BOA voted to affirm the Declaratory Order and instructed the Director to prepare a proposed "order," which would be 13 considered for adoption at the BOA's meeting scheduled for December 13, 2024. Dkt. 107, ROA at 3373-3376 (transcript); Dkt. 109, ROA at 3480-3483 (meeting minutes). 33. On November 13, 2024, the Director filed their Proposed Findings of Fact, Conclusions of Law, Decision and Order ("Director's Proposed Decision and Order"). Dkt. 107, ROA at 3377-3383. 34. On November 22, 2024, Oceanside informed the BOA of its belief that the Director's Proposed Decision and Order did not comply with HRS § 91-12, and requested a continuance to the BOA's next scheduled meeting so the parties could have additional time to review the record and submit their own proposed decisions and orders, supplemental findings of fact and conclusions of law, and objections. Dkt. 108, ROA at 3416. 35. The BOA denied Oceanside's request, but provided additional time to submit objections to the Director's Proposed Decision and Order. Id., ROA at 3412- 3413. 36. On December 3, 2024, Oceanside filed its Objections to the Director's Proposed Findings of Fact, Conclusions of Law, Decision and Order ("Objections to Proposed Decision and Order"), which included 52 proposed findings of fact and 40 proposed conclusions of law. Dkts. 108-109, ROA at 3428-3459. The BOAs' Decision and Order 37. On December 13, 2024, the BOA held a public meeting at which it voted to adopt the Director's Proposed Decision and Order as its final decision, subject to certain amendments made at the meeting. Dkt. 109, ROA at 3480-3483 (minutes); Dkts. 109-110, ROA at 3488-3496 (transcript). 14 38. The BOA did not include or rule on any of the proposed findings of fact and conclusions of law submitted in Oceanside's Objections to Proposed Decision and Order. Id. 39. The BOA served Oceanside with the Decision and Order on December 18, 2024. Dkt. 110, ROA at 3497-3502. 40. In the Decision and Order, the BOA made the following ten findings of fact ("FOF"): • 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 of Hawai'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 Hawaii ("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"). 15 • 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 Hawaii 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, 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. • 10) The Board found that the Order addressed the questions raised by the Appellant in its appeal, even if the Director did not provide the level of clarity or specifics desired by the Appellant. Id., ROA at 3497-3499. 41. The BOA made the following nine conclusions of law ("COL"): 16 • 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) 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. • 4) Board of Appeals Rules of Practice and Procedures, Rule 8- 4(4) requires that a general petition for an appeal must include: 17 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. • 5) The Director acted within his jurisdiction when the Director addressed the posed questions in the Order. • 6) The Order correctly identified issues outside the Director's jurisdiction and discretion. • 7) The Order sufficiently addressed the questions raised by the Appellant even though the Order did not reflect the specifics desired by the Appellant. • 8) Appellant's [sic] argued lack of clarity and/or specifics in the Director's responses, but that did not meet the burden required for modifying or remanding the Planning Director's decisions. • 9) Having considered the testimony and evidence provided, the Board unanimously concluded 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 18 and Planning Department Rule 3. Therefore, the Board affirmed the Appellant's appeal of Zendo Kern, Planning Director, County of Hawai'i's Declaratory Order In the Matter of 1250 Oceanside, LLC, Petitioner, Docket No. 24-0002. Id., ROA at 3499-3500. 42. On January 17, 2025, Oceanside timely appealed the Decision and Order to this Court pursuant to HRS § 91-14. Dkt. 1. 43. Oceanside's appeal contains two main arguments: 1) the Decision and Order of the BOA did not comply with HRS § 91-12; and 2) the BOA erred when it affirmed certain rulings of the Director. Id. CONCLUSIONS OF LAW This Court makes the following Conclusions of Law, and to the extent that any of the following shall be determined to be Findings of Fact, they shall be deemed as such. Jurisdiction 1. The Court has personal jurisdiction over the parties. 2. Appellant is an interested person pursuant to HRS § 91-8 and therefore had standing to bring their Petitions before the Director and to bring this appeal. 3. This Court has subject matter jurisdiction over this appeal and the appeal is properly before the Court pursuant to HRS § 91-14. 4. Appellant's appeal is timely. HRS § 91-14(b). Dkt. 1. 5. Venue is proper in this Court. Standard of Review 19 6. The Court's review of the Decision and Order is governed by HRS § 91- 14(g), which provides that: Upon review of the record, the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority or jurisdiction of the agency; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. HRS § 91-14(g). 7. "Under HRS § 91-14(g), conclusions of law are reviewable under subsections (1), (2), and (4); questions regarding procedural defects are reviewable under subsection (3); findings of fact are reviewable under subsection (5); and an agency's exercise of discretion is reviewable under subsection (6)." Matter of Conservation Dist. Use Application HA-3568, 143 Haw. 379, 389, 431 P.3d 752, 762 (2018) (citation omitted). 20 8. A court's review of a final agency decision and order for compliance with HRS § 91-12 is de novo. See Rife v. Akiba, 81 Haw. 84, 86, 912 P.2d 581, 583 (Ct. App. 1996) ("We do not reach the HRS § 91-14(g)(5) issue. We vacate and remand pursuant to HRS § 91-14(g)(1) because the BOA failed to satisfy HRS § 91-12 (1993).") in their Decision and Order. 9. Failure to comply with HRS § 91-12 results in the application of HRS § 91-14(g)(1). Id., 81 Haw. at 91, 912 P.2d at 588. Oceanside's Appeal is a Contested Case 10. "A contested case hearing is one that is (1) required by law and (2) determines the rights, duties, and privileges of specific parties." Matter of Hawai'i Elec. Light Co., Inc., 145 Haw. 1, 13, 445 P.3d 673, 685 (2019) ("HELCO"). 11. "In order for an administrative agency hearing to be required by law, it may be required by (1) agency rule, (2) statute, or (3) constitutional due process." Id. 12. Although the Director has discretion as to whether or not to respond to requests for declaratory rulings under PRPP Rule 3-1, and a hearing was not required at the declaratory ruling stage, one was required at the BOA pursuant to agency rule and constitutional due process. BOA Rule 8-11(b) ("The Board shall hold a full hearing on the appeal in accordance with Chapter 91, Hawaii Revised Statutes[.]"); See Id. 13. The hearing before the BOA concerned Oceanside's "rights, duties, and privileges" under the Ordinances in connection with the roadways at issue. HRS § 91-1. 14. BOA Rules provide that its hearings are conducted as contested cases. See BOA Rules, Part 3 (entitled "Contested Case Procedure"). They authorize appeals of all BOA "appeal proceeding[sj" and "final decision[s]" pursuant to HRS § 91-14, which 21 applies to appeals from contested case hearings. BOA Rule 3-22 ("Any party may obtain judicial review of the Board's final decision with the Circuit Court pursuant to Section 91-14 of the Hawaii Revised Statutes[.]"); BOA Rule 8-17 ("Any party to an appeal proceeding may obtain judicial review by the Circuit Court of the proceeding pursuant to Section 91- 14, Hawaii Revised Statutes, as amended."). 15. The proceeding before the BOA was a contested case and any decision and order disposing of the matter was required to comply with HRS § 91-12. Requirements of HRS § 91-12 16. HRS § 91-12 mandates that: Every decision and order adverse to a party to the proceeding, rendered by an agency in a contested case, shall be in writing or stated in the record and shall be accompanied by separate findings of fact and conclusions of law. If any party to the proceeding has filed proposed findings of fact, the agency shall incorporate in its decision a ruling upon each proposed finding so presented. 17. HRS § 91-12 requires that the Board's findings be reasonably clear. In re Terminal Transp., Inc., 54 Haw. 134, 139, 504 P.2d 1214, 1217 (1972). 18. A separate ruling on each proposed finding of fact is not indispensable. Mitchell v. BWK Joint Venture, 57 Haw. 535, 560 P.2d 1292 (1977); In re Terminal Transportation, Inc., 54 Haw. 134, 504 P.2d 1214 (1972); Freitas v. Pacific Contractors Co., 1 Haw.App. 77, 613 P.2d 927 (1980). 19. However, "[t]he requirement of findings is far from a technicality and is a matter of substance. It has been said that it is a fundamental of fair play that an administrative judgment express a reasoned conclusion. A conclusion requires evidence to support it and findings of appropriate definiteness to express it. . .." 22 Application of Kauai Elec. Div. of Citizens Utilities Co., 60 Haw. 166, 183-84, 590 P.2d 524, 537 (1978) (citation omitted) ("Kauai Elec."). 20. The parties should not be left to guess, with respect to any material question of fact, or to any group of minor matters that have a cumulative significance, the precise finding of the agency. Timothy Freitas v. Pacific Contractors, 1 Haw. App. 77, 84-85, 613 P.2d 927, 932 (1980). 21. "The purpose of the statutory requirement that the agency set forth separately its findings of fact and conclusions of law is to assure reasoned decision making by the agency and enable judicial review of agency decisions." HELCO, 60 Haw. at 641, 594 P.2d at 623. 22. In order for courts to "be informed of the factual basis upon which the [agency] relies, the [agency]'s findings of Ultimate facts must be supported by findings of Basic facts which in turn are required to be supported by the evidence in the record." Id., 60 Haw. at 642, 594 P.2d at 623 (citation omitted). 23. "[T]he agency must make its findings reasonably clear. The parties and the court should not be left to guess, with respect to any material question of fact, or to any group of minor matters that may have cumulative significance, the precise finding of the agency." Kauai Elec., 60 Haw. at 183, 590 P.2d at 537 (citation omitted). 24. This Court must know what a decision means before the duty becomes this Court's to say whether it was right or wrong. Rife, 81 Haw. at87, 912 P.2d at 584. The Decision and Order of the BOA does not Comply with HRS § 91-12 25. The Decision and Order of the BOA does not comply with HRS § 91-12 because the BOA did not make reasonably clear findings of fact sufficient to support its 23 decision to affirm the Declaratory Order. See Kauai Elec., 60 Haw. at 183, 590 P.2d at 537. 26. FOFs 1-9 summarize the procedural history before the Director and BOA. While these findings of fact are an important part of a decision and order, they do not allow the Court to "track the steps by which the [BOA] reached its decision" to affirm the Declaratory Order. Los Banos v. Hawai'i Lab. Rels. Bd., 145 Haw. 297, 452 P.3d 765 (Ct. App. 2019) ("[A] reviewing court should ensure that the agency's findings and conclusions are sufficiently clear to allow the reviewing court to track the steps by which the agency reached its decision."). 27. FOF 10, which is the only other finding of fact in the Decision and Order, is a finding of"ultimate fact," but it is not supported by any "basic facts" or references to evidence in the record. HELCO, 60 Haw. at 642, 594 P.2d at 623 ("[i]n order that [courts] be informed of the factual basis upon which the [agency] relies, the [agency]'s findings of Ultimate facts must be supported by findings of Basic facts which in turn are required to be supported by the evidence in the record."). 28. FOF 10 is also vague, ambiguous, and not "reasonably clear" as to what the BOA is actually finding in light of the specific issues Oceanside raised in its appeal to the BOA, which did not only concern the Declaratory Order lacking "the level of clarity desired by" Oceanside. Kauai Elec., 60 Haw. at 183, 590 P.2d at 537 ("[T]he agency must make its findings reasonably clear."). 29. 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. 24 30. The Court "cannot fill the voids" in the Decision and Order because the Court is "not the fact-finding body." HELCO at 643, 594 P.2d at 624. 31. The Decision and Order also does not comply with HRS § 91-12 because the BOA did not make sufficient conclusions of law to support its decision to affirm the Declaratory Order, including in that it does not set forth the authorities relied upon to affirm the Declaratory Order other than simply quoting HRS § 91-8, PD Rule 3, and the BOA's standard of review. 32. The Decision and Order also fails to comply with the requirement under HRS § 91-12 that "[i]f any party to the proceeding has filed proposed findings of fact, the agency shall incorporate in its decision a ruling upon each proposed finding so presented." HRS § 91-12. 33. Because the Decision and Order violates HRS § 91-12, it is in violation of a statutory provision. HRS § 91-14(g)(1). Remand is Appropriate 34. "[R]emand is proper where an agency has made invalid, inadequate or incomplete findings," Kauai Elec., 60 Haw. at 185, 590 P.2d at 538. 35. Because the Decision and Order did not comply with FIRS § 91-12, the Court is unable to determine whether Oceanside's arguments regarding whether the BOA erred in affirming the Director's rulings have merit. Remand is proper in this instance. Id. ORDER Based on the foregoing Findings of fact and Conclusions of Law: 25 IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Appellant 1250 Oceanside LLC's appeal from the Findings of Fact, Conclusions of Law, and Decision and Order; Certificate of Service, dated December 18, 2024, is VACATED AND REMANDED. This case shall be REMANDED to the Board of Appeals to adopt a Decision and Order that complies with Section 91-12, HRS. Pursuant to Rule 58 Hawai'i Rules of Civil Procedure, a final judgment shall enter consistent with this Order. DATED: Kailua-Kona, Hawai'i, Aug rv,-/-- I poi Z02 410111111166- IP,e.E OFT E ABOVE-ENTITLED COURT 26