HomeMy WebLinkAbout2026-04-20 Corrected Prop Amd FOF-COL; Order on Remand - Redline Suggested Edits (PL-BOA-2024-000105) RENEE N. C. SCHOEN 5936
Corporation Counsel
SYLVIA A. WAN 9586
Deputy Corporation Counsel
Office of the Corporation Counsel
County of Hawaii
101 Aupum Street, Suite 325
Hilo, Hawaii 96720
Telephone: (808) 961-8251
Facsimile: (808) 961-8622
E-mail: sylviaa.wan(iihawaiicounty.gov
Attorneys for the
BOARD OF APPEALS
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAI`I
STATE OF HAWAII
CASE NO.: PL-BOA-2024-000105
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
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RENEE N. C. SCHOEN 5936
Corporation Counsel
SYLVIA A. WAN 9586
Deputy Corporation Counsel
Office of the Corporation Counsel
County of Hawaii
101 Aupum Street, Suite 325
Hilo, Hawaii 96720
Telephone: (808) 961-8251
Facsimile: (808) 961-8622
E-mail: sylviaa.wan(iihawaiicounty.gov
Attorneys for the
BOARD OF APPEALS
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAI`I
STATE OF HAWAI`I
CASE NO.: PL-BOA-2024-000105
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, 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
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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 and 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, makes the followingfgs of fact. To the extent
that these findings of fact contain conclusions of law, they shall be so considered.
FINDINGS OF FACT
1. On February 27, 2024, 1250 Oceanside, LLC ("Appellant," or"1250 Oceanside")
filed its Petition for Declaratory Ruling, ("Petition")requesting declaratory rulings from the
Director of the Planning Department of the County of Hawaii ("Planning Director"). BOA
Record on Appeal ("ROA") at 4-382.
2. On April 29, 2024, the Planning Director issued Zendo Kern, Planning Director,
County of Hawai'i's Declaratory Order Jn the Matter of 1250 Oceanside, LLC, Petitioner,
Docket No. 24-0002 ("Order") in response to the Petition. ROA at 383-96.
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. ROA at 464-1299.
1250 Oceanside argued the following points of error:
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a. Planning Director failed to address eight of Appellant's requests relating to
dedication requirements and construction standards in light of Ord. 96-7 and
Ord. 96-8, and variances under Hawaii County Code Chapter 23.
b. Planning Director erred by stating that he could not render declaratory rulings
on seven requests that would require the review or affirmation of a variance
granted by a prior Planning Director.
c. Planning Director failed to answer four questions relating to the review and
interpretation of a development agreement.
d. Planning Director erred by not interpreting Ord. 96-7, standing alone, because
no dedication requirement is contained within Ord. 96-7;
e. 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
f. 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
the Department of Public Works of the County of Hawaii ("DPW") and are
covered by the Variance, and(2) the Director lacks authority to rule upon the
sufficiency of the roadway for dedication.
g. Planning Director erred by issuing several declaratory rulings Appellant
claims are sua sponte rulings;
ROA at 477-91.
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4. Appellant's Appeal sought to modify the Order or have the Order remanded to the
Planning Director to correct alleged errors. ROA at 491.
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 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.
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. ch. 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., Deputyies Corporation Counsel, appeared
on behalf of the Planning Department. Chafles Coupe of C&j 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.
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10. Appellant's witness, Michael Kaleihoku Vitousek, testified that the 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 Hearin at�20.
11. Haw. Rev. Stat. § 91-8 states that an interested person ma petition an agency for
"a declaratory order as to the applicabili . 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." Under both Chapter 91 and
PRPP, the Planning Director's discretion to issue declaratory rulings is limited.
12. The declaratory ruling procedure is one "whereby an interested party could seek
agency advice as to how a statute, a._e�ncy rule, or order would apply to particular circumstances
not yet determined." Citizens Against Reckless Development v. Zoning Board ofAppeals of the
City and County ofHonolulu ("CARD"), 114 Hawaii 184, 197, 159 P.3d 143, 156 (2007).
"f The 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., 114
Hawaii at 196, 159 P.3d at 155.
44,13. Planning Director testified, and his testimony was consistent with the contents of
his Order. See Order (ROA at 383-96); Transcript of October 11, 2024 Hearing at 30-45.
Planning Director testified he exercised discretion in not answering some questions posed by the
petitions. See Transcript of October 11, 2024 Hearing at 37, 44.
4-2,14. Planning Director correctly identified questions that sought an interpretation of a
development agreement in his Order. See Order at 8-9 (ROA at 390-91). Planning Director's
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discussion of the development agreement in the Order was only background, and was labeled as
such. See Order at 8-9 (ROA at 393); Transcript of October 11, 2024 Hearing at 38-39.
4-3,15. Planning Director's discussion as to the effect of a variance on existing law and
authority of other county entities in his Order was not a sua sponte ruling. See Order at 10, 12
(ROA at 392, 394). Planning Director's discussion pertained to the applicability of Chapter 23
within the larger context provided by Appellant.Id. Planning Director did not petition for his
own declaratory ruling.
4416. 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. See Order at 11 (ROA at 393); 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.
See Order at 9, 11 (ROA at 391, 393).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.Id.
4-5,17. 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
Dep fftffie t'S R„RleS Of Pfaetiee ra Pff)eo"fe ("PRPP)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 Planning Director must
issue declaratory rulings to the satisfaction of the petitioner f6f said deelafatefy fuli . Planning
Director was not required to inform Appellant of their legal obligations with respect to the issues
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raised in the Petition for a Declaratory Ruling. Likewise, eliciting testimony showing Planning
Director did not answer specific questions or provided additional information that was not
requested did not show the Planning Director abused his authority and/or discretion.
4-6-.18. The exhibits did not show the Order was issued in error or an abuse of discretion.
4-719. 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 Project's approximate 1500-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.
4-8-.20. Planning Director correctly identified questions that sought a review of actions of
the Hawaii County Council, a prior Planning Director's issuance of a variance, and matters under
the jurisdiction of a different department, the Department of Public Works. Order at 5-9 (ROA
at 387-91).
4-9-.21. The Planning Director did not rule that any roadway is not constructed as
required. Order at 10-11 (ROA at 392-93). 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. Id.
22. The Board finds that the Order addressed the questions appropriately raised by the
Appellant in its General Petition, even if Planning Director did not provide the level of clarity or
specifics desired by the Appellant.
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CONCLUSIONS OF LAW
1. Hawai`i Revised Statues Section 91-8 allows that:
Any interested person may petition an agency for a declaratory order
as to the applicability of any statutory provision or of any rule or
order of the agency. Each agency shall adopt rules prescribing the
form of the petitions and the procedure for their submission,
consideration, and prompt disposition. Orders disposing of petitions
in such cases shall have the same status as other agency orders.
2. Planning Department's Rules of Practice and Procedure ("PRPP") Rule 3-1(a)
states:
(a) On petition of an interested person, the Director ma__ i� 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.
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7. A development agreement and a county council resolution arei-S not a"statutory
provision, ordinance, or any rule or order of the Director or the Department." Therefore,
Planning Director does not have the discretion to issue a declaratory order regarding a
development agreement or a county council resolution.
8. Planning Director correctly identified the requests seeking a declaratory ruling
pertaining to the Development Agreement and Resolution 317-12 were outside of his authority.
8-.9. 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.
9:10. 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.
4-011. The Planning Director acted within his jurisdiction and discretion in the manner in
which the Planning Director addressed the Appellant's posed questions. The Planning Director
was not required to respond to the questions in the form or format posed by the Appellant.
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44-.12. Planning Director did not abuse his discretion when he relied on caselaw as the
basis for declining to review or affirm past actions or decisions of agencies of the County and the
Hawaii County Council.
4-2--.13. The Planning Director correctly identified issues and questions outside the
Planning Director's jurisdiction and discretion.
4-3-.14. Planning Director was not required to inform the Appellant of their compliance
obligations under Ord. 96-7 and Ord. 96-8, or provide the specific information sought by
Appellant.
4415. The Order sufficiently addressed the questions raised by the Appellant even
though the Order did not reflect the level of clarity or specifics desired by the Appellant.
4-516. Having considered the testimony and evidence provided, including the submitted
exhibits, 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. Therefore, the Board
affirmed Zendo Kern, Planning Director, County of Hawai'is 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:
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The Planning Director's April 29, 2024, Zendo Kern, Planning Director, County of
Hawai'i's Declaratory Order In the Matter of 1250 Oceanside, LLC, Petitioner, Docket No. 24-
0002 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 Hawai'i
Tr tLp, n4 #PF Of Appeal i of 1250 OCE n T.rcT1,�
LT C- F,-E) the Deeis;ons of the Difeetef, datcc�iprn�r
e
n A IT7ATDED FINDINGS OF FACT,! I CONCLUSIONS OF
LAW, DECISION AND ORDE
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BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAT`I
STATE OF HAWAPT
In the Matter of Appeal CASE NO.: PL-BOA-2024-000105
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.
Tan R. Wesley-Smith, Esq.
Attorneys for Appellant
Kenneth R. Kupchak, Esq.
Mark M. Murakami, Esq.
Toren K. Yamamoto, Esq.
Attorneys for Interventors
Jean K. Campbell
Demetri G. Lametti
Deputies Corporation Counsel
Office of the Corporation Counsel
Attorney for Appellee
Dated: Hilo, Hawaii, May 7, 2026
BETHANY MORRISON
Staff to the Board of Appeals
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