HomeMy WebLinkAbout2026-04-13 PL-BOA-2026-000132 Petition O►Mf7
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County of Hawaii
BOARD OF APPEALS
Aupuni Center • 101 Pauahi, Suite 3 • Hilo,Hawaii 96720
(808)961-8288 • Fax(808)961-8742
GENERAL PETITION FOR APPEAL OF
DECISIONS BY PLANNING DIRECTOR OR PUBLIC WORKS DIRECTOR
(Type or legibly print the requested information. See instructions attached.)
TYPE OF PETITION (check one):
❑ Appeal Decision of the Planning Director Q Appeal Decision of Director of Public Works
SUBJECT PROPERTY (land in question):
Tax Map Key(TMK): 7-5-019: 19&23 Area of Property: 18,060 sq ft
State Land Use
Designation: Urban County Zoning: Resort
Street Address: Alii Drive
APPELLANT INFORMATION:
Name(s): Kismet, LLC
Signature(s): (A Tt Q CJ le-4, Date: April 3, 2026
Mailing Address: 78-226 Kahaluu Road, Kailua-Kona, HI 96740
Telephone: c/o 808-329-1385 Email: c/o kapulu@msn.com
Interest in Subject Owner
Property:
LANDOWNER INFORMATION:
Name(s): Kismet, LLC
Signature(s)': Date: April 3,2026
Mailing Address: same as above
Telephone: same as above Email: same as above
APPELLANT REPRESENTATIVE INFORMATION (leave blank if not applicable):
Name(s)/Title(s): Michael J. Matsukawa,Attorney
Signature(s): Date: April 4,2026
Mailing Address: 75-5751 Kuakini Highway, Room 201, Kailua-Kona, HI 96740
Telephone: 808-329-1385 Email: kapulu@msn.com
Not required if the Landowner is not the Appellant.
\\COH01\planning\public\BOA\Forms and Labels\Application Forms\APPEAL 2021-07-PL or PW Dir.docx Revised April 2021
Statement of the nature of Appeal and the Relief Requested. Include Director's decision and decision
date:
Appellant is appealing from the Dep't of Public Works Director's decision dated Februay 26, 2026(copy of
letter is attached)and requests that the decision be set aside and voided.
A copy of the Appellant's authorized signature is attached to this Petition.
Statement of how the Director's decision violates the law;or is clearly erroneous; or is arbitrary or
capricious,or characterized by an abuse of discretion or clearly unwarranted exercise of discretion:
Appellant has attached a statement of the issues raised by the Director's decision and contends that the
Director's decision violates the law, is clearly erroneous and/or is arbitrary and characterized by an
abuse of discretion or clearly unwarranted exercise of discretion.
Appellant continues to research the pertinent facts and reserves the right to add such additional
grounds(facts and law)to support its Petition.
Statement of any other relevant facts:
If there is insufficient space on this form to provide the information, then please include supplemental documents.
\\COH01\planning\public\BOA\Forms and Labels\Application Forms\APPEAL 2021-07-PL or PW Dir.docx Revised April 2021
AUTHORIZATION AND CONSENT OF LANDOWNER
The undersigned has authorized and consented to
Its owner signing the foregoing form on behalf of
the owner.
Name: Printede Sc l�v�P� ���u rye✓� /� Q h y
Owner's Name: PrintediSm � ��
SUPPLEMENT TO PETITION OF KISMET, LLC
A. FACTUAL BACKGROUND
The focus of this case is a small hotel that was built pursuant to permits in
1956-1957. Some might describe the premises to be a "boutique hotel' that is
enhanced by its location along the shoreline that embraces the charm and attraction of
the "Kona way-of-life." In the late territorial period, after the landowner registered its
property with the Land Court under Application 1595 (Lots 4, 5 and 6), the landowner
was issued a permit to build the 10-room, three-story hotel and a "temporary office and
lounge" on the property. Over the ensuing years, the landowner was allowed to
renovate the building from time to time. The Field Book that territorial real property tax
officials maintained contains the following permit history for the property:
Permit Date Construction Allowed
18114 July 1956 Const. 10-room hotel building
18895 Mar. 1957 Const. Penthouse on existing Hotel Bldg.
19438 July 1957 Const. a temporary office & lounge (Bldg #2)
[located north of hotel building as a separate
structure]
25622 Feb. 1962 Enlarge Existing Storeroom
54950 Feb. 1973 Lanai Addition (nonconforming)
1317 May 1975 Alteration of existing rooms, new lanai 3rd floor
(nonconforming)
1356 July 1976 Repair (nonconforming)
493393 Dec. 1976 Addition (nonconforming)
1
Two of the main issues in this case concern the swimming pool that has
been on the premises for many years and the use of the "temporary office & lounge" as
permanent office and guest reception area. When the landowner submitted a Special
Management Area ("SMA") assessment to county officials in 2021 to make further
renovations to the hotel building, pool and deck area, and premises as a whole, county
officials made the following observations:
The hotel has been in place for seventy years;
(*) The shoreline has been "hardened" by pool construction;
(*) Repairs were proposed to the existing pool and deck.
In addition, county officials observed that:
(1) A rock wall on the north side exceeds six feet in height; ?
(2) The height of the existing rock wall on the makai side of Alii Drive
was increased from its then existing height of two feet. 3
' No one questioned the fact that a pool was built on the property many years ago.
For reasons unknown, building permits for the pool's construction and shoreline
hardening have not been found.
2 The neighboring landowner was allowed to improve this rock wall and apparently
increased the height of the existing stone wall beyond the six-foot height limitation.
3 The property is registered with the Land Court with Application 1595. The area
on which the then existing rock wall was and is located lies outside of the Land Court lot
boundaries and on what would have been "public land" that had been ceded to the
United States. Jurisdictional questions exist as to who owns the area in question —the
state or the county as a "road in limbo."
When the county constructed drainage improvements for Waiaha Stream,
located in the immediate vicinity of the hotel property (on the south side), the landowner
increased the height of the existing two-foot high stone wall to protect the landowner's
property, to continue to direct water to the county's new drainage facilities and to
"match" the appearance of the rock wall that was built on the mauka side of Alii Drive.
When county officials inspected the county's bridge repair work and drainage
improvements, they were aware of the landowner's concurrent work to increase the
height of the existing rock wall. (continued next page)
2
The landowner had discussions with county officials concerning Items (1)
(2) as part of its SMA assessment application. The planning director accepted the
landowner's SMA Assessment with the condition that the landowner remove the addition
made to the existing rock wall in the right-of-way for Alii Drive (Item 2) and to maintain
the height of the existing rock wall to two feet to comply with the provisions of Chapter
27 pertaining to flooding.
B. REGULATORY BACKGROUND
After the Legislature established the state building code council, counties
were required to conform their local codes to the International Building Code, as
adopted by the state council. One provision deals with the treatment of existing
buildings and their nonconforming status. The state council adopted the following
provision pertaining to an existing structure (which is defined as anything that is built)
and whether the structure can be "grandfathered" against changes in local codes:
[A] 102.6 Existing structures. The legal occupancy of any structure
existing on the date of adoption of this code shall be permitted to continue
without change, except as otherwise specifically provided in this code [or]
the State Existing Building Code. (underscoring added)
In response, the Hawaii County Council enacted the Existing Building
Code (Chapter 5C, Hawaii County Code) that contains a similar provision, but with
slightly different language:
Section 5C-1-5. Existing buildings.
(a) Permitted buildings in existence at the time of the adoption of
The existing rock wall, as heightened, do not present hazards to traffic or to
public safety as to flooding. Recent storm events show that water from Alii Drive is
managed properly, directed to the county's new drainage facilities and protects the
landowner's property at the same time.
3
this chapter may have their existing permitted use or occupancy continued
if such use or occupancy was legal at the time of the adoption of this chapter,
provided such continued use does not constitute a hazard to the genal safety
and welfare of the occupants and the public. (underscoring added)
1. Status of the Pool.
Under this provision, if the 10-room hotel was permitted in 1956-1957 and
if that permit for the hotel included the pool, then the pool would be a "use or
occupancy" of the pool that is "legal" and that use or occupancy can be continued
without further permits. a In this case, no one disputes that the hotel was permitted
back in 1956-1957. Whether the permit for the hotel building included the pool and
whether a separate permit was required for the pool is not clear.
What is clear is that the pool was located on and a part of the hotel
premises for many years, clearly visible from Alii Drive. Building plans are no longer
available. Known witnesses with knowledge and who can explain when the pool was
constructed and whether a separate permit was ever required or issued for the pool
have not yet been located. Nonetheless, one can infer that the pool was part of the
"building" and hence was included in and covered by the building permits for the hotel
building. This inference is supported by the known fact that county officials conducted
inspections of the premises between 1956 and 1976 (and the SMA law was enacted
during the 1970s). If the pool had to be permitted as structure separate from the hotel,
4 Although the county's zoning code is a different regulation from the county's
building codes, Section 46-4, HRS addresses "nonconforming" buildings that were
existing but that would not be in conformance with the forthcoming regulations. The
Intermediate Court of Appeals has held that this "nonconforming" clause for zoning
purposes does not implicate the building code. Waikiki Marketplace Investment
Company v. Zoning Board of Appeals, 86 Haw. 343, 949 P.2d 183 (Haw. App.,1997). To
some extent, however, the location and use of a structure presents a zoning question
while the integrity of the structure is building code question.
4
county officials would have informed the landowner at the time. There is a presumption
that "official duty has been regularly performed." See Rule 304(c)(2), Hawaii Rules of
Evidence (rules applied in courts). It is not clear whether the permit question for the
pool is based on the absence of a physical permit for the pool in the county's record
and/or the absence of the pool in the permit and building plans for the hotel.
2. Increasing Height of Rock Wallin Right-of-Way
As stated in footnotes 3 and 4, an existing rock wall was and is located on
public land that lies outside of the boundaries for Lots 4, 5 and 6, Land Court Application
1595. Jurisdiction over this strip of land has not yet been determined. The existing rock
wall was then about two-feet high. The landowner increased the height of the rock wall
to its present height, which hall (as heightened), poses no risk to public safety (to traffic
or to flooding).
When the county constructed drainage facilities for Waiaha Stream,
county officials installed a guard rail along the mauka side of the heightened rock wall.
Thus, risks from errant traffic is now minimized by the county's guard rail and the
heightened rock wall. The heightened rock wall also diverts water to the south to the
county drainage facilities in the same manner as the existing rock wall did, but with
greater efficiency. The heightened rock wall also prevents water runoff from Alii Drive
from entering into the landowner's property. Recent flooding events demonstrate that
the heightened rock wall operated to divert water to the county's drainage facilities on
the south and to prevent water from entering into the landowners' property.
C. POINTS RAISED
1. Northside Rock Wall Height
As stated in footnote 2, the neighboring landowner improved the
then existing rock wall on the north side and increased the height of the rock wall. The
landowner did not consent to such construction if the work exceeded the code height
limits.
2. Bathroom Renovations not Covered by Plumbing Permit
The landowner had discussions with county officials that the work in
question were covered by the existing plumbing permit.
3.a. Continued Use of the "Temporary"Office Building
While a seventy years might not be deemed to be "temporary," the
office building was permitted as a structure for use and occupancy as an office. The
permanent use of the structure presents a zoning question, not a building code question
(see footnote 6). The structure was permitted for human occupancy in 1957 and there
is no complaint that the structure presents a risk of harm to others.
3.b. Connection of Temporary Office Building Roof to Hotel Building
The connection in question is the extension of the office's roof to
the main hotel building. This is de minimis.
4. No Permit Found for the Swimming Pool
As stated above, one can infer that the landowner had included the
swimming pool in the permit for the hotel building.
6
5. Increasinq Height of Rock Wall in Right-of-Way
As stated above, the landowner increased the height of the existing
rock wall that is located makai of Alii Drive. When the county constructed drainage
improvements for Waiaha Stream (located to the south of the property)y, county officials
erected a guardrail along the rock wall. The then existing rock wall was about two feet
in height and functioned to prevent the entry of water from Alii Drive unto the property
and also directed water to the south to the county's then existing and recently improved
drainage facilities. The addition to the height of that existing rock wall does not interfere
with the volume or disposition of water flowing across Alii Drive to the south.
Expending money to retain an engineer to conduct a hydraulic
study and to compare the increase in volume, if any, created by the increase of the
height of the then existing two-foot-high rock wall is unwarranted. County officials can
make this determination themselves and that no "compliance" action is required on the
part of the Appellant Kismet, LLC, which does not own the land on which the wall is
located. According to the registered Land Court, that land is public land under the
jurisdiction of the state or the county and the wall was in apparent existence when the
Land Court approved Application 1595.
MAP OF PROPERTY
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DECISION LETTER
C. Kimo Alameda,Ph.D. Wesley R.Segawn,P.E.
Mayor J+t'4 0.N, Director
William V.Brilhante,Jr. •: :• Neil A.Azevedo
Managing Director Deputy Director
�>E oi<•M�.�
CountY of Hawaii
DEPARTMENT OF PUBLIC WORKS
Aupuni Center
101 Pauahi Street,Suite 7•Hilo,Hawaii 96720-4224
(808)961-8321 •Fax(808)961-8630
public works@liawa.iicounty.gov
NOTICE OF ORDER
February 26, 2026
Kismet, LLC
78-226 Kahaluu Road
Kailua-Kona, HI 96740-2454
CERTIFIED MAIL RESTRICTED DELIVERY
9589 0710 5270 3237 6439 00
On January 14, 2021,the Department of Public Works' Building Division inspected the
property located at 75-5968 Ah'i Drive and TMK(3)-7-5-019:019 & 023 and observed the
following violations.
The Hawaii County Code Sections that were violated and the nature of the violations are:
1. HCC Section 5-3-1. Permit required; generally.
Construction and/or alterations were done without the required permits.
2. HCC section 5-10-1. Violations.
Erect, construct, enlarge, alter, repair, relocate, improve, remove, convert or demolish,equip, use,
occupy, or maintain any building or structure, or cause or authorize the same to be done in violation
of the construction code, including but not limited to chapter 5A; the building code, 5D: the electrical
code and/or 5F: the plumbing code.
On January 14,2026,the Department of Public Works' Building Division inspected the property
located at 75-5968 Ali`i Drive and TMK(3)-7-5-019:019 & 023 under building permit PW.B2023-
004522 and observed the following was missing from the description of work on the permit:
1. Unpermitted-c.Qnstruction of rock walls on pages 6 & 7 of the NOV dated March 3, 2021.
2. All bathrooms received a total renovation upon inspection on January 14, 2026, which are not on
the description�of worl�on PW.B2023-004522.
3. The temporary office)now used as a reception area that is now connected to the hotel at the
roofline still hasn't gotten a permit as noted on pages 15 and 16 of the NOV dated March 3, 2021 .
Page I of 3
County of Hawaii is an Equal Opportunity Provider and Employer
Kismet, LLC.
CE2020-0127K
(3) 7-5-019:019 & 023
February 26, 2026
4. No permit number(s) has been submitted yet for the unpermitted swimming pool that also has no
secured barrier in the NOV dated March 3, 2021.
ORDER
You failed to comply with the Notice of Violation, Dated March 3, 2021; therefore, you are
hereby ordered to do the following, within 30 days of the date of this Order:
SELECT ANY OR ALL OF THE FOLLOWING:
(1) Cease and desist from the violation, including but not limited to, immediately stopping all
work whether for failure to obtain a required permit or for violation of the requirements of any
permit or variance issued pursuant to the construction code;
(2) Correct the violation, at the party's own expense, before a date specified in the order;
(3) Provide the authority having jurisdiction with periodic progress reports detailing corrective
measures taken to correct the violation by specified deadlines;
(4) Pay a civil fine of$1, 000.00 by check made payable to the County Director of Finance and
mailed to the Department of Public Works, Building Division at 74-5044 Ane Keohokalole Hwy,
Kailua-Kona, Hawaii 96740.
If you fail to comply with the order above,you will be assessed a civil fine of$1,000.00 per day
for each day in which the violation persists, beginning 30 days after the date of this Order. The
daily fines are due at the end of each month and shall be made by check, payable to the County
Director of Finance and mailed to the Department of Public Works, Building Division at 74-
5044 Ane Keohokalole Hwy, Kailua-Kona, Hawaii 96740.
If you fail to comply with this Order, the Department of Public Works will seek judicial
enforcement pursuant to Hawaii County Code, Section 5-10-2(g).
Pursuant to Hawaii County Code 5-10-2, you are advised that:
1. This Order shall become final thirty days after the date of delivery; and
2. This Order may be appealed to the board of appeals, which must receive the appeal in
writing on or before the date the order becomes final.
3. An appeal to the board of appeals shall not stay any provision of this Order.
4. This Order is effective upon delivery and the party responsible for the violation is
required to comply with the order from the date that they receive the order.
Page 2 of 3
County of Flawail is an Equal Opportunity Provider and Employer
Kismet, LLC.
CE2020-0127K
(3) 7-5-019:019 & 023
February 26, 2026
If you have any questions, please contact any of the following Supervising Inspectors:
- Eddie Chang, Acting Supervising Plumbing Inspector at(808) 323-4749
- Wayne Saiki, Supervising Electrical Inspector at (808) 323-4729
- Dwayne Inouye, Supervising Building Inspector at(808) 323-4728
Respectfully,
Aaron J. pielman, AIA,NCARB,NFPA—Acting Building Chief
cc: Sinclair Salas-Ferguson—Deputy Corporation Counsel
Eddie Chang—Acting Supervising Plumbing Inspector
Wayne Saiki—Supervising Electrical Inspector
Dwayne Inouye—Supervising Building Inspector
Attached: NOV
Board of Appeals application
Page 3 of 3
County of I lawaVi is an Equal Opportunity Provider and Employer