HomeMy WebLinkAbout2023-02-10 I'o Processing Company - BOA General Petition for Appeal 4870-8058-9647 v.4 CARLSMITH BALL LLP
STEVEN S.C. LIM 92505
IAN R. WESLEY-SMITH 910626
121 Waianuenue Avenue
P.O. Box 686
Hilo, Hawaii 96721-0686
Tel.No. (808) 969-8416
Facsimile No. (808) 935-7975
slimgcarlsmith.com
iwesley-smithgcarlsmith.com
Attorneys for Appellant
I'O PROCESSING COMPANY INC.
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAII
In the Matter of Appeal;
Case No.
of
GENERAL PETITION FOR APPEAL OF
I'O PROCESSING COMPANY INC., dba I'O DECISION OF THE PUBLIC WORKS
PROCESSING COMPANY DIRECTOR; EXHIBITS 1 to 10;
TMK: (3) 7-3-2-015, Makaula, District of CERTIFICATE OF SERVICE
North Kona, Island and County of Hawaii,
State of Hawaii
From the decision of the Public Works
Director denying the approval of Declarations
of Compliance and requiring Building
Permit(s) for the agricultural buildings, dated
January 13, 2023
GENERAL PETITION FOR APPEAL
OF DECISION BY THE PUBLIC WORKS DIRECTOR
Pursuant to Rule 2-4 and Part 8 of the Rules of Practice and Procedure ("BOA Rules")
for the Hawaii County Board of Appeals ("BOA"), I`O PROCESSING INC., a Hawaii
corporation ("Appellant or I`o Processing"),by and through its counsel, Carlsmith Ball LLP,
hereby appeals the determinations made by the County of Hawaii ("County") Public Works
Director("Director")by and through Kelly Wilson, in his capacity as the Deputy Building Chief
4870-8058-9647.4.071717-00001
("Deputy Chief') for the County Department of Public Works ("DPW"), dated January 13,
2023, denying the approval of Declarations of Compliance for agricultural buildings pursuant to
HRS § 46-88, and requiring the processing of building permit(s)per Hawaii County Code
("HCC") Section 5-1-5 (the "Denial"). See Ex. 1.
I. INTRODUCTION.
The DPW's Denial erroneously denied six separate Declarations of Agricultural
Compliance (together, the"Declaration") and concluded that Appellant's agricultural structures
must be processed through the traditional building permit process in Hawaii County Code
Chapter 5 ("County Building Code"), instead of through the expedited approvals and
exemptions set forth in HRS § 46-88. See Ex. 2. In fact, Appellant's agricultural structures,
which are vital to the State of Hawai`i's and County's goals of sustainable agriculture and food
production, should have been considered and approved under HRS § 46-88. DPW's denial was
in violation of law,was clearly erroneous, and was an abuse of discretion.
II. PARTIES AND AFFECTED PROPERTY.
The real property in question is located in Makaula,North Kona on TMK:
(3) 7-3,002:015, a parcel of approximately 21.936 acres located within the SLU Agricultural
District and zoned Agricultural A-20a(the "Property"). The Property is owned by Nichole
Roselani Kiyoko Kanda and John Totah,who have consented to this appeal. Appellant is
licensee of an approximately 4.0-acre portion of the Property and owns and operates the
agricultural structures thereon.
III. BACKGROUND FACTS -APPELLANT IS SEEKING PERMITTING FOR AN
AGRICULTURAL UNIT TO MEET HAWAI'I'S NEEDS.
Appellant is a small, locally-owned meat processing company which was established in
an effort to support Hawaii's network of local farmers and ranchers in the meat industry and to
develop a better sustainable future in agriculture. At present,many local farmers and ranchers
are forced to ship their livestock to the mainland for processing -- even if the meat is intended for
local consumers. This is obviously expensive, inconvenient and environmentally wasteful. The
lack of local meat processing options in the State of Hawaii is a major impediment to
sustainable food production in Hawaii.
To address the pressing need of local farmers and ranchers, Appellant has established a
small, enclosed agricultural facility for the local processing of livestock on approximately 4-
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acres of agricultural land in North Kona(the "Project"). Appellant's Project will be able to
process local livestock for many ranchers in the State. The Project is an ideal size for a facility
that both seamlessly blends into the surrounding area while also providing meaningful
contributions to meeting Hawai`i's agricultural needs.
The Project is comprised of several agricultural structures, including: (1) an Agricultural
Office Building (Appellant's/USDA offices); (2) a Composting Structure; (3) an Agricultural
Shed; (4) a Covered Work Area; and (5) a meat processing agricultural building ("Processing
Facility"). The Agricultural Shed and Composting Structure have received full and final County
approval. See Exs. 3 & 4. A building permit has been issued for Agricultural Office Building,
but an agricultural exemption is also being sought. See Ex. 5. Accordingly, at issue in this
appeal are the structures that have been denied approval of the Declarations: The Processing
Facility, the Agricultural Office Building, and the Covered Work Area.
The Processing Facility is a single, one-story structure comprised of a, "purpose-
designed,transportable module"that is pre-designed and engineered by Friesla to be a"turnkey"
USDA-approved meat processing system. It is comprised of four attached prefabricated stainless
steel modules: (1) a Harvest module (50 feet x 10 feet, 500 square feet); (2) an Aging Cooler
module (50 feet x 12 feet, 600 square feet); (3) a Cut and Wrap module (50 feet x 12 feet, 600
square feet), and(4) Freezer module (30 feet x 12 feet, 360 square feet). See Ex. 6. All together,
the Agricultural Unit is 2,060 square feet. The Agricultural Unit is bolted onto a concrete
at-grade slab. See Ex. 7. It has a front setback of 30 feet and side setbacks of 20 feet, and a
structural span of less than 25 feet in all areas. The Agricultural Unit is used entirely for the
agricultural purposes of processing,packaging and sale of processed livestock from local
ranchers.
The Processing Facility has been installed, inspected and approved by the United States
Department of Agriculture ("USDA"),through a Certificate of Registration and Grant of
Inspection. See Ex. 8. USDA approval is the industry gold standard for food safety and facility
design. Accordingly,Appellant has federal government approval to process and label local meat,
in a manner that meets stringent federal standards.
The Agricultural Office Building,which is 852 square feet, is a non-residential building
used to manage, organize, and carry out the agricultural operations occurring on the Property.
The Covered Work Area, which is 900 square feet, is a space for storage and operations ancillary
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to the other agricultural structures and uses.
IV. PROCEDURAL HISTORY- THE DEPARTMENT OF PUBLIC WORKS HAS
ISSUED AN IMPROPER DENIAL.
Appellant has made every effort to work with the County to process all necessary permits
for the Processing Facility. Appellant's intent has always been to do everything properly with
the Processing Facility, in order to build a thriving, long-term business.
In February 2022, Appellant met with the County of Hawaii Planning Department
("Planning Department") and DPW, Building and Engineering Divisions. At that time,
Appellant provided DPW with the Processing Facility's construction plans. In response, DPW
Engineering Division confirmed that no building permits were required for the Processing
Facility and recommended that Appellant confirm with the Planning Department that the
structure met the requirements of the Zoning Code for the agricultural use.
The Planning Department confirmed that modular structures were a permitted use in the
Agricultural zoning and that no building permit was required for the Processing Facility. The
Planning Department recommended that Appellant check with DPW Building Division on the
filing of a Declaration of Agricultural Building Compliance for the Processing Facility,per HRS
§ 46-88.
DPW Building Division confirmed that the Processing Facility did not require building
permits and instructed Appellant to file the Declarations of Compliance.
On March 17, 2022, Appellant applied for an electrical permit for the Processing Facility,
in reliance on the requirement to do so per its conversations with DPW and the Planning
Department. In connection with the electrical permit,Appellant submitted construction plans
that clearly identified the Processing Facility. If DPW believed then that building permits were
required for the Processing Facility,then DPW should have at that time rejected the electrical
permit application and required the processing of building permits.
On March 24, 2022, the electrical permit was issued (PW.B2022-001249). See Ex. 9.
On July 27, 2022,the electrical rough-in work passed inspection, and was completed. On
August 8, 2022,the electrical underground work passed inspection, and was installed.
On October 28, 2022, Appellant was issued Building Permit No. PW-B2022-003346 for
the Agricultural Office Building. Ex. 5.
On December 29, 2022, the final and third inspection of the electrical permit was rejected
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by DPW, through Kelly Wilson. Kelly Wilson justified the inspection denial by stating that
Appellant needed to obtain building permits for the Processing Facility. The timing of that
denial was strange, given that no DPW inspector actually came on-site on or about December 29,
2022 for an electrical inspection.
On December 30, 2022,Appellant submitted the Declaration, on forms approved by the
DPW Engineering Division. The DPW Engineering Division signed off on the Declaration the
same day. Ex. 2.
On January 9, 2022, DPW Building Division informed Appellant that it would need 1 to
2 months to prepare a response because it"was currently revising policies and procedures
regarding the declarations" and the inspector had"a few issues [he] require [sic] department
acknowledgement/clarification." Ex. 1.
On January 13, 2022, DPW Building Division issued the Denial, in a series of emails:
Aloha Ms. Kanda &Ms. Luga:
was able to have a discussion with my supervisors and unfortunately
these structures do not qualify to utilize the HRS 45-88 exemption. You
will need to pursue traditional permitting(Building/Electrical/Plumbing)
for these Non-Residential structures), all structures identified. At this
time I would also like to inform you that we do not currently permit
mobile structures, I was unable to determine from the provided
Declaration applications if these modules in fact do have permanent/fixed
foundations as would be required for permitting.
Due to the nature of the work,there are a number of County and State
departments, such as Planning,Wastewater and Sanitation/Food Safety
among others,that are only available to us for review purposes through
the traditional permitting path.
For those structures with permanent/fNed foundations,the permit.-.at
you will need through our EPIC application system:
In response, Appellant asked for a formal denial letter, including an explanation of the
DPW's rationale for the Denial. The DPW explained that it was denying an exemption under
HRS § 46-88 because the structures "m[et] the definition of a Building"under the Hawaii
County Code:
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"Building" means any structure used or intended for supporting or
sheltering any use or occupancy.The term shall include but not be limited
to, any structure mounted on wheels such as a trailer,wagon, or vehicle
which is parked and stationaryfor any 24- hour period, and is used for
business or living purposes, provided, however,thatthe term shall not
Include a push cart or push wagon which is readily movable and which
does not exceed 25 square feet in area, nor shall the term include a trailer
or vehicle, used exclusively forthe purpose of selling any commercial
product therefrom, which hold a vehicle license and actually travels on
public or private streets.
They meetthe definition of a Building.
ALOHA.
KELLY WILSON - DEPUTY BUILDING CHIEF
COUNTY OF DEPARTMENT OF PUBLIC WORKS
HAWAII BUILDING, DIVISION
Appellant asked whether the email constituted the"final decision and order" of DPW for
purposes of an appeal. In response, the DPW confirmed its decision and provided additional
clarification on the Denial:
Yes,the definition is per HCC section 5-1-5.
Application for building Permit is required.
ALOHA.
KELLY WILSON - DEPUTY BUILDING CHIEF
COUNTY OF DEPARTMENT OF PUBLIC WORKS
HAWAII BUILDING DIVISION
V. LEGAL STANDARD
The BOA has the power to reverse a decision by the Director if the BOA finds that the
decision is:
(1) In violation of the Code or other applicable law; or
(2) Clearly erroneous in view of the reliable,probative, and substantial evidence on the
whole record; or
(3)Arbitrary, or capricious, or characterized by an abuse of discretion or clearly
unwarranted exercise of discretion. See Hawaii County Board of Appeals Rule of
Practice and Procedure § 8-15.
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VI. ANALYSIS
A. DPW's Decision that HRS 4 46-88 Does Not Exempt the I'o Processing
Agricultural Buildings From the Building Code is In Violation of State Law.
DPW's stated justification for the Denial is that the Processing Facility, Agricultural
Office, and Covered Work Area meet the definition of a"Building"in Section 5-1-5 of the
County Building Code, which therefore means that Appellant must go through the traditional
building permit process for those structures. In other words, DPW appears to have concluded
that the exemptions and expedited approval provisions provided for in HRS § 48-88 do not apply
if a structure meets the definition of a"Building"under the County Building Code. DPW's
decision is incorrect and"[i]n violation of. . . other applicable law."
As a matter of law, DPW's Denial holding that Appellant's structures need to be
processed through the traditional building permit process of the County Building Code is clearly
erroneous. DPW ignores HRS § 46-88, in which the State of Hawaii legislature expressly
exempted "Agricultural Buildings" from the traditional county-level building permit
process.' HRS § 46-88 provides, in relevant part:
[T]he following buildings, structures, and appurtenances thereto shall be
exempt from building permit requirements when compliant with relevant
building codes or county, national, or international prescriptive construction
standards:
Haw. Rev. Stat. § 46-88(b) (emphasis added). "The owner or occupier that intends to utilize the
exemptions under this section shall provide written notice to the appropriate county agency of
the size, type, and location of the proposed building, structure, related appurtenances, or
development."Id. at(c)(5). In response, "[t]he appropriate county agency shall certify the
building, structure, related appurtenances, or development within thirty calendar days upon the
receipt of the written notice from the owner or occupier, pursuant to paragraph (5)." Id.
(emphasis added).
' State law is supreme over the County Building Code. HRS § 107-28 provides: "(a)The governing body of each
county shall amend,adopt,and update the Hawaii state building codes as they apply within their respective
jurisdiction,in accordance with section 46-1.5(13),without approval of the council.Each county shall amend and
adopt the Hawaii state building codes and standards listed in section 107-25,as the referenced Hawaii state building
codes and standards for its respective county building code ordinance,no later than two years after the adoption of
the Hawaii state building codes." To comply with HRS § 107-28,the County adopted its current building code at
Chapter 5A,pursuant to ordinance 20-61. See HCC Chapter 5A,Editor's Notes.
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The Hawaii legislature clearly intends for HRS § 46-88 to exempt agricultural buildings
from the County Building Code. Indeed,the express purpose of the statute is to encourage
sustainable, local farming and ranching by easing the administrative burdens and barriers facing
them,including the building code. In 2013, the legislature amended HRS § 46-88 to make it
substantially broader. The legislature explained its intent:
"Your Committee on Conference finds that nonresidential building code
requirements are financially and logistically burdensome to farming and ranching
operations despite the minimal risk that these structures pose to public safety.
Although Act 114, Session Laws of Hawaii 2012, exempts nonresidential
agricultural and aquaculture buildings and structures from the building permit
requirements, farmers and ranchers are still discouraged from expanding
their farming operations due to the onerous building code requirements. The
agricultural exemptions provided by this measure will ease the financial and
administrative burden on farmers and ranchers and encourage agricultural
diversification and self-sufficiency."
See Ex. 10 (emphasis added). That intent is also shown by the specific amendments
approved by the legislature, which include, among others:
o "Removing the requirement that each county establish a list of agricultural buildings
and structures that are exempt from existing building permit and code requirements;"
o "Removing the county's discretion to determine which buildings and structures are
exempt from building permit and building code requirements by requiring that all
buildings and structures specified be exempt from building permits and, in certain
cases, building code requirements;"
Id. Clearly, the legislature intended that"agricultural buildings"be exempt from the
burdensome and expensive requirements of the standard county building code permitting
process, to encourage the development of sustainable farming and ranching in Hawaii.
The DPW's Denial clearly violates the letter and intent of HRS § 46-88. The DPW is
correct that the Processing Facility, Agricultural Office, and Covered Work Area might meet the
definition of a"Building"under the Hawaii County Building Code,which is broadly defined as
"any structure used or intended for supporting any use or occupancy." The DPW is also correct
that the County Building Code purports to require the traditional building permit process for
structures that meet the definition of a"Building." However, DPW's Denial is nevertheless
incorrect: DPW failed to recognize that HRS § 46-88 expressly exempts a structure that meets
the definition of an "Agricultural Building"from the County Building Code permitting process.
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Put simply, a structure that meets the definition of an "Agricultural Building"is exempt
from the Hawaii County Building Code permitting process, even if the structure also meets
the definition of a "Building" under the County Building Code. Instead,Appellant's
structures must be processed under the exemptions and expedited approvals of HRS § 46-88.
The DPW Director's determination that HRS § 46-88 does not provide an exemption from the
County Building Code violates law, and must be reversed.
B. To the Extent that DPW Made a Factual Determination that Appellant's
Structures Do Not Meet the Definition of an "Agricultural Building,"that
Finding is Clearly Erroneous and Arbitrary.
It is possible that DPW's Denial is based implicitly on the factual determination that
Appellant's structures do not meet the statutory definition of an"agricultural building"for
purposes of HRS § 46-88. If such a factual determination was made, then it is clearly erroneous
in light of the evidence in the record, and is also an unwarranted abuse of discretion.
"Agricultural Building"is defined as "a development, including a nonresidential building or
structure:
1. built for agricultural or aquacultural purposes,
2. located on a commercial farm or ranch constructed or installed to house farm or ranch
implements, agricultural or aquacultural feeds or supplies, livestock, poultry, or other
agricultural or aquacultural products,
3. used in or necessary for the operation of the farm or ranch, or for the processing and
selling of farm or ranch products.
See Haw. Rev. Stat. § 46-88(d). The evidence shows that Appellant's Processing Facility,
Agricultural Office, and Covered Work Area squarely meet every element of that definition.
First, each of those structures is a non-residential structure, built solely for agricultural purposes
(processing livestock for local ranchers, storage of feed and seeds, and ancillary uses). Second,
the structures are located on a commercial farm/ranch on agricultural land, for the purpose of
processing livestock(i.e. a ranch/agriculture product), and for purposes incidental to such uses.
Third, the structures are used for the processing and selling of farm and ranch products (livestock
for local ranchers).
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In addition, the Agricultural Unit Meets the other statutory criteria in HRS § 46-88(c), as
follows:
HRS §46-88(c) Criterion Po Processing Structures
Less than 8,000 square feet plus two per The Processing Facility is 2,060 square feet,the
cent of the acreage per zoning for lots Agricultural Office is 852 square feet,and the Covered
greater than five acres.Id. at(c)(1). Work Area is 900 square feet,for total square footage
of 3,512 under roof currently subject of this appeal.
Pursuant to HRS Section 46-88(c)(1)(C),the aggregate
floor area of the exempted agricultural buildings for this
Project on the 21.936 acres Property does not exceed
the maximum allowable square footage of 27,110.64
sq.ft. (21.936 acres x 43,560 sq.ft. =955,532.16 sq.ft.x
2%= 19,110.64 sq.ft. +8,000 sq.ft. =27,110.64 sq.ft.
maximum).
Thus,both individually and in the aggregate,the
agricultural buildings do not exceed the maximum
square footage of 27,110.64 sq.ft.
Fifteen foot"minimum horizontal The Processing Facility is a single structure with
separation between each agricultural adequate setbacks.
building, structure, or appurtenance."
Id. at(c)(2).
"Located on a commercial farm or ranch The Project is located on a commercial farm/ranch
and . . . used for general agricultural or and used for agricultural operations and incidental
aquacultural operations, or purposes operations.
incidental to such operations." Id. at
(c)(3).
"The agricultural buildings, structures, or The Project is located on approximately 22 acres of
appurtenances thereto are constructed or agricultural land.
installed on property that is used
primarily for agricultural or aquacultural
operations, and is two or more
contiguous acres in area or one or more
contiguous acres in area if located in a
nonresidential agricultural or
aquacultural park." Id. at(c)(4).
"An owner or occupier that intends to Appellant provided DPW and the Planning
utilize the exemptions under this section Department with construction plans for the Processing
shall provide written notice to the Facility in February 2022, and in connection with the
appropriate county agency of the size, electrical permit applied for on March 17, 2022.
pe, and location of the proposed Drawings for all structures were also provided with
building, structure, related the Declaration in December 2022.
appurtenances, or development."
Id. at(c)(5).
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HRS §46-88(c) Criterion I'o Processing Structures
"No electrical power and no plumbing Appellant applied for and was issued an electrical permit
systems shall be connected to the for the Processing Facility. No plumbing permit is
building or the structure without first required for the Processing Facility,as it is above ground
obtaining the appropriate county and prefabricated into the structure. No electrical or
electrical or plumbing permit." Id.at plumbing is required for the Agricultural Office and
(c)(8) Covered Work Area.
In summary,the structures at issue squarely meet both: (1)the definition of an
"agricultural building" in HRS § 46-88(d); and(2)the relevant criteria for an "agricultural
building" in HRS § 46-88(c). Therefore, they are "agricultural buildings"within the meaning of
HRS § 46-88 and Appellant has the right to the exemptions therein. To the extent that the DPW
made any contrary factual determination, that determination is clearly erroneous and an abuse of
discretion.
C. DPW's Refusal to Consider the Exemptions and Approvals Set Forth in HRS
§ 46-88(a) and/or (b) is Violation of Law, Clear Error, and an Abuse of
Discretion.
As set forth above in Sections VI(a) and (b), DPW's Denial was improper because DPW
failed to consider the exemptions from the building code process for"agricultural buildings," as
is statutorily required by HRS § 46-88. Specifically,with respect to each of the Processing
Facility, the Agricultural Office, and the Covered Work Area, DPW erred in failing to consider
the applicability of the exemptions and special approvals set forth in HRS § 46-88(a) and(b),
and in failing to determine that the Processing Facility met the criteria for either or both.
DPW's failure to do so constitutes clear error an abuse of discretion, and a violation of law.
VII. CONCLUSION AND REQUEST FOR REVERSAL.
Based on the foregoing, as well as the arguments and evidence to be presented at a
hearing on this appeal, the Board should reverse the Director's Determination and approve the
Declarations.
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Appellant hereby reserves the right to submit further evidence,witnesses, and argument
to the BOA at the hearing in this matter.
DATED: Hilo, Hawaii, February 10, 2023.
/s/Ian R. Wesley-Smith
STEVEN S.C. LIM
IAN R. WESLEY-SMITH
Attorneys for
I'O PROCESSING COMPANY INC.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was duly served upon
the following parties by electronic mail (E-Mail) on February 10, 2023:
STEPHEN PAUSE
Director of Public Works
County of Hawai`i
101 Pauahi Street, Suite#
Hilo, Hawaii 96720 E-Mail (Steve.Pause ckhawaiicounty.gov)
SINCLAIR SALAS FERGUSON
Deputy Corporation Counsel for Department of Public Works
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720 E-Mail (Sinclair.SalasFerug son(cr�,hawaiicoun ov)
SHERILYN TAVARES
Deputy Corporation Counsel for Board of Appeals
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720 E-Mail (Sherilyn.Tavares(2hawaiicountygov)
NICHOLE ROSELANI KIYOKO KANDA
73-4103 Hawaii Belt Road
Kailua-Kona, Hawaii 96740 E-Mail (ioprocessin ig nc(2gmail_com)
JOHN TOTAH
73-4103 Hawaii Belt Road
Kailua-Kona, Hawaii 96740 E-Mail (maxmax(c�r�,hawaii.rr.com)
DATED: Hilo, Hawaii, February 10, 2023.
/s/Ian R. Wesley-Smith
STEVEN S.C. LIM
IAN R. WESLEY-SMITH
Attorneys for
I'O PROCESSING COMPANY INC.
4870-8058-9647.4.071717-00001