HomeMy WebLinkAbout2026 06 10_Appellant Ohana's Objections to Record, Rosehill Dec, and COS_v1.pdfNATIVE HAWAIIAN LEGAL CORPORATION
1164 Bishop Street, Suite 1205
Honolulu, Hawaii 96813
Telephone: (808) 521-2302
Fax: (808) 537-4268
TERINA K. FA`AGAU 11511
ASHLEY K. OBREY 9199
Attorneys for Appellant
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAI`I
STATE OF HAWAI`I
`OHANA O MOKUHULU, KAIMU
MAKENA, AND KALAPANA,
Appellant,
VS.
JEFFREY DARROW, PLANNING
DIRECTOR, COUNTY OF HAWAI`I,
Appellee,
and
KAIMU COVE, LLC.,
Landowner.
CASE NO.: PL-BOA-2026-000127
APPELLANT' S OBJECTIONS TO THE
RECORD ON APPEAL; DECLARATION OF
LESLIE ENRIQUEZ ROSEHILL;
CERTIFICATE OF SERVICE
Hearing:
Date: July 10, 2026
Time: 9:30 a.m. in Hilo
APPELLANT'S OBJECTIONS TO THE RECORD ON APPEAL
I. INTRODUCTION
Appellant `Ghana o Mokuhulu, Kaimu Makena, and Kalapana (the "`Ohana"), by and
through its attorneys Terina K. Fa`agau and Ashley K. Obrey of the Native Hawaiian Legal
Corporation, hereby objects to the Record on Appeal filed by Appellee Jeffrey Darrow, Director
of Planning, County of Hawaii (the "Director"), on January 27, 2026, on the ground that it is
materially incomplete. The `Ghana requests that the Board of Appeals (the "Board") order the
Director to supplement the Record with all records in the Director's file directly related to the
decision to approve the Applicant's SMA Minor Permit, including but not limited to the documents
identified below.
The Record on Appeal is "a compilation of public records from the department that are
directly related to the Director's decision for the appeal in question." County of Hawaii Board of
Appeals Rules of Practice and Procedures ("BOA Rules") § 1-3(21). "[T]he entire record or file
from the Director shall be submitted to the Board and other parties ..." BOA Rules § 3-13(h)
(emphasis added). Documents that were in the Planning Department's file and are directly related
to the Director's decision issued December 4, 2025 approving SMA Minor Permit PL-SMM-2025-
000079 (the "Decision") must be included.
II. MISSING OR INCOMPLETE DOCUMENTS
The `Ghana objects that the Record on Appeal is incomplete as to the full scope of the
Planning Department's files related to the subject property, TMK No. (3) 1-2-018:001, and to the
activities of Kaimu Cove, LLC (the "Applicant") thereon. As set forth above, BOA Rules §§ 1-
3(21) and 3-13(h) require the Director to submit the entire file directly related to the Decision.
The `Ghana has good reason to believe the Record as filed is incomplete. Following the
October 3, 2024 Windward Planning Commission (the "Commission") hearing, `Ghana member
Leslie Enriquez Rosehill requested from the Planning Department all plans, permits, and history
associated with the subject property. In response to that request, Ms. Rosehill was provided access
to the Planning Department's file and was able to review documents in it relating to the property
and the pending application(s). Her access was withdrawn on or around December 2025.
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Some of the documents Ms. Rosehill reviewed and/or documents of the same type and
subject matter are not among the twenty-one (21) documents in the Record on Appeal. Documents
reflecting the Planning Department's enforcement history, internal communications, negotiations
with the Applicant about the easement, and interactions with the `Ghana are absent. A record that
omits the Department's enforcement history, deliberations, and communications with both the
Applicant and the `Ghana does not provide the "entire record or file from the Director" required
under BOA Rules § 3-13(h). And the Board of Appeals cannot evaluate whether the Director erred
if it lacks access to the full Record on which the Director acted.
Accordingly, the `Ghana requests that the Board direct the Director to supplement the
Record with all Planning Department records and documentation pertaining to:
• TMK No. (3) 1-2-018:001, including all correspondence, memoranda, inspection reports,
photographs, notes, internal communications, and other documents in the Department's
file related to the property from 2022 through 2025;
• Kaimu Cove, LLC's presence and activities on the subject property, including all
documentation of the unauthorized grubbing, grading, clearing, construction, and ground -
disturbing activities since the Applicant acquired the property on May 28, 2022;
• All permit applications submitted in connection with the subject property, including but
not limited to PL-SAA-2022-000080, PL-SUB-2022-000094, PL-SAA-2022-000126,
PL-SMA-2024-000063, PL-SAA-2025-000312, and PL-SMM-2025-000079, and all
correspondence, internal communications, and agency reviews related to each;
• All enforcement actions taken by the Planning Department with respect to the subject
property and the Applicant since the Applicant acquired the property on May 28, 2022,
including all Notices of Violation and Orders, Stop Work Orders, corrective action
correspondence, fine assessments, deadline extensions, and compliance documentation;
• All communications between Planning Department staff and Kaimu Cove, LLC, its
managing members, its planning consultant, or any other representative of the Applicant,
since May 28, 2022; and
• All communications between Planning Department staff and the `Ghana, its members, or
its representatives, from 2022 through 2025, including all correspondence regarding the
Cultural Impact Assessment, the public shoreline access easement, and the `Ohana's
requests for enforcement action.
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Beyond the categories of records described above, the `Ghana has identified specific documents,
discussed below, that were in the Director's file and are directly related to the Decision yet absent
from the Record on Appeal.
The documents identified in this objection are those the `Ohana has been able to identify,
and they are illustrative but not exhaustive. Other records that were in the Department's file and
are directly related to the Decision, but that were omitted from the Record on Appeal, are likewise
part of the Record and should be included, whether or not the `Ohana has been able to identify
them.
A. The Notices of Violation and Orders (PL-PCV-2022-00015)
The Planning Department's Notices of Violation and Order issued to the Applicant for
unpermitted activity on the subject property were public records in the Director's file related to the
Decision and are a part of and should be included in the Record on Appeal. The Department issued
three such Notices concerning the subject property, TMK No. (3) 1-2-018:001: the October 10,
2022 Notice of Violation and Order ("lst NOV"), issued by then -Director Zendo Kern for
unauthorized grubbing and grading without an SMA permit; the October 29, 2025 Notice of
Violation and Order ("2nd NOV"), issued for the Applicant's unpermitted work and additional
ground disturbances on the subject property while the SMA Minor Permit application was pending;
and the January 28, 2026 Notice of Violation and Order ("3rd NOV") for the Applicant's additional
land clearing, grubbing, and/or construction work on the subject property without an approved
Archaeological Monitoring Plan in violation of Condition No. 9 of the SMA Minor Permit PL-
SMM-2025-000079.
The Record on Appeal includes Stop Work Orders that reference this enforcement activity
but omits the Notices of Violation and Order themselves and their associated compliance history.
C!
The 2nd NOV followed the October 14, 2025 Stop Work Order (included as Document 12), and
the 3rd NOV followed the January 14, 2026 Stop Work Order (included as Document 20). Because
the Record already contains these Stop Work Orders, it cannot be complete without the inclusion
of the corresponding Notices of Violation and Orders that document the same enforcement history.
The Decision includes findings on cumulative impact and significant adverse effect, to
which the Department's enforcement record for the subject property is directly relevant. The
enforcement record also bears on Condition No. 12 of the SMA Minor Permit, which states that
the Director "relied on the information and data that the applicant has provided[.]"
B. The October 3, 2024 Windward Planning Commission Hearing Minutes (PL-
SMA-2024-000063)
The minutes of the October 3, 2024 Windward Planning Commission hearing on SMA Use
Permit Application PL-SMA-2024-000063 are a part of and should be included in the Record on
Appeal as they were public records in the Planning Department's file directly related to the
Decision on the Applicant's SMA Minor Permit application. The Record includes the Planning
Department letter accepting the Applicant's withdrawal of its Use Permit application (Document
14), which mentions the Commission hearing, but does not include the minutes of the hearing that
directly preceded the withdrawal.
At the October 3, 2024 hearing, `Ghana members and other community members submitted
oral and written testimony about the historical and cultural significance of the subject property and
their traditional and customary practices. In response to that testimony, then -Director Zendo Kern
"mentioned that, for the first time, despite the existing recommendation [favoring approval], he is
inclined to change his stance[.]" Exh. 5 of Appellant the `Ohana's Petition for Appeal. The
Commission continued the hearing and requested that a Cultural Impact Assessment ("CIA")
and/or Archaeological Inventory Survey be completed before it would decide on the application.
5
On October 14, 2025, in addition to receiving a Stop Work Order for further unauthorized
construction, the Applicant withdrew its SMA Use Permit application PL-SMA-2024-000063.
About two weeks later, on October 27, the Applicant filed the SMA Minor Permit application, PL-
SMM-2025-000079, at issue in this appeal. The October 3, 2024 hearing minutes establish the
specific context in which that withdrawal occurred and are directly related to evaluating the
Decision.
C. The 2024 Planning Department Recommendation Report for PL-SMA-2024-
000063
The Planning Department's Recommendation Report recommending that the Windward
Planning Commission approve SMA Use Permit Application PL-SMA-2024-000063 was a public
record in the Planning Department's file related to the Decision, which is a part of and should be
included in the Record on Appeal. It is, however, absent from the Record as filed. This report was
issued by the Planning Department in September 2024 in advance of the October 3, 2024 hearing
and reflects the Department's analysis of the 5-lot subdivision application, including its
environmental, cultural, and SMA findings at the time it recommended approval.
The report is directly relevant because it reflects the Department's prior assessment of this
property and project. While the recommendation was ultimately reversed at the October 3, 2024
hearing, the Department's written analysis and findings for the larger project are part of the
evidentiary and analytical background against which the Decision to approve the SMA Minor
Permit must be evaluated.
D. The Director's October 29, 2025 Reply to Leslie Enriquez Rosehill
The Director's October 29, 2025 reply to Leslie Enriquez Rosehill was a record in the
Planning Department's file related to the Decision; it is a part of and should be included in the
Record on Appeal. Document 15 of the record is an email from Leslie Enriquez Rosehill to
R
Director Darrow and Planning Department staff dated October 28, 2025, in which Ms. Rosehill
reported continued unauthorized construction and requested enforcement action and restoration of
the traditional coastal access trail. The Director's reply, sent October 29, 2025, is not included.
In his reply, the Director acknowledged that Planning Department staff had conducted a
site visit and were drafting the 2nd NOV and addressed how the public shoreline access easement
would be established through the ongoing SMA permitting process. This communication is
directly related to the Decision and Condition No. 6 of the SMA Minor Permit, requiring the
Applicant to establish a pedestrian public shoreline access easement. The communication confirms
the Director was aware of the `Ohana's access concerns and the ongoing permitting process, and
it reflects his position on how those concerns would be addressed through the SMA permitting
process he was then conducting. It is part of the same email chain as Document 15 and is in the
Planning Department's file.
E. July through September 2025 Email Correspondence Between the `Ghana and
the Planning Department
Because email correspondence between `Ghana representatives and Planning Department
staff during the period of July through September 2025 was a record in the Planning Department's
file related to the Decision, it is a part of and should be included in the Record on Appeal. Yet it
is absent from the Record. This correspondence addresses the Department's approach to the CIA.
This correspondence concerns the Department's review of the `Ohana's CIA and of
cultural impacts in connection with the application. It also reflects the Department's
communications with the `Ghana during the period the application was under review. Because
these are Planning Department records in the Department's file, the Board should direct the
Director to supplement the Record with all email correspondence between Planning Department
staff and `Ghana representatives beginning on or around July 1, 2025 through to December 4,
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2025, including but not limited to correspondence regarding the review of the CIA and the scope
of the proposed public access easement.
F. July 2024 Email Correspondence Between Planner Alex Roy and Daryn Arai
Regarding the Public Shoreline Access Easement (PL-SMA-2024-000063)
The emails between Planning Department Planner Alex Roy and Daryn Arai, planning
consultant for the Applicant, dated July 11-24, 2024, concerning the scope and configuration of
the public shoreline access easement for SMA Use Permit Application PL-SMA-2024-000063 are
records in the Planning Department's file directly related to the Decision and are a part of and
should be included in the Record on Appeal. The emails are absent from the Record as filed though.
In this correspondence, Planning Department staff and the Applicant's consultant Daryn
Arai discussed the location and configuration of the proposed public access easement. The
correspondence reflects a prior understanding regarding the location and width of the pedestrian
access easement. Department staff further indicated that the Director was aware of and in
agreement with the proposed easement configuration.
These emails are the Planning Department's records of the communications that informed
the easement condition ultimately imposed in the SMA Minor Permit and are necessary to provide
a complete record of the Director's decision -making on that condition. First, Condition No. 6 of
the SMA Minor Permit requires a 10-foot-wide public pedestrian shoreline access easement. The
email chain establishes the prior negotiating history and the Director's stated position on the
easement and bears directly on the easement requirement imposed as Condition No. 6. Second, the
correspondence reveals that the access easement was negotiated between the Planning Department
and the Applicant's consultant, without involvement of or notice to the `Ohana or other community
members with traditional and customary access rights in the area. The emails bear on the extent to
which the `Ohana and other community members participated in the easement negotiation.
Therefore, the Board should direct the Director to supplement the Record with all email
correspondence between Planning Department staff and Daryn Arai, the Applicant, and/or its
representatives from July 1, 2024 through December 4, 2025, concerning the scope, configuration,
or location of the public shoreline access easement for any permit application related to TMK No.
(3) 1-2-018:001.
III. CONCLUSION
For the foregoing reasons, the Board should direct the Director to supplement the Record
on Appeal with the following documents:
1. The October 10, 2022, October 29, 2025, and January 28, 2026 Notices of Violation and
Order, the Planning Department's site inspection reports and photographs, and all related
compliance correspondence;
2. The October 3, 2024 Windward Planning Commission hearing minutes for PL-SMA-
2024-000063, including all written testimony;
3. The 2024 Planning Department Recommendation Report for SMA Use Permit
Application PL-SMA-2024-000063;
4. The Director's October 29, 2025 reply to Leslie Enriquez Rosehill;
5. All email correspondence between Planning Department staff and `Ohana representatives
from July 1, 2025 through December 4, 2025;
6. All email correspondence between Planning Department staff and Kaimu Cove, LLC or
its representatives including Daryn Arai regarding the subject property and any permit
applications submitted by the Applicant through December 4, 2025; and
7. All other Planning Department records in the Director's file that are directly related to the
Decision but were omitted from the Record on Appeal, including records not specifically
identified above.
The Board should further order that the supplemented Record be served on all parties
within a reasonable time prior to the July 10, 2026 hearing — i.e., no later than June 18, 2026 — to
allow adequate preparation. Should supplementing the Record require additional time, the `Ohana
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does not oppose a brief continuance of the contested case hearing so that the parties and the Board
may proceed upon a complete Record.
DATED: Honolulu, Hawaii, June 10, 2026.
/s/ Terina K. Fa `ate
TERINA K. FA`AGAU
ASHLEY K. OBREY
Attorneys for Appellant
`OHANA O MOKUHULU, KAIMU MAKENA,
AND KALAPANA
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BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAI`I
STATE OF HAWAI`I
`OHANA O MOKUHULU, KAIMU CASE NO.: PL-BOA-2026-000127
MAKENA, AND KALAPANA,
DECLARATION OF LESLIE ENRIQUEZ
Appellant, ROSEHILL IN SUPPORT OF
APPELLANT' S OBJECTIONS TO THE
VS. RECORD ON APPEAL
JEFFREY DARROW, PLANNING
DIRECTOR, COUNTY OF HAWAI`I,
Appellee,
and
KAIMU COVE, LLC.,
Landowner.
DECLARATION OF LESLIE ENRIQUEZ ROSEHILL
I, Leslie Enriquez Rosehill, declare as follows:
1. I am a member of `Ohana o Mokuhulu, Kaimu Makena, and Kalapana (the
"`Ohana"), Appellant in the above -captioned matter.
2. I make this declaration based on my personal knowledge, and I am competent to
testify to the matters stated herein.
3. I am a lineal descendant of Native Hawaiian families with ancestral ties to Kaimu
ahupua`a in the Puna District, Hawaii Island.
4. I attended and submitted testimony to the October 3, 2024 Windward Planning
Commission hearing on SMA Use Permit Application PL-SMA-2024-000063.
5. Following that hearing, on October 9, 2024, I submitted a request via email to the
County of Hawaii Planning Department for all plans, permits, and history associated with the
subject parcel, TMK No. (3) 1-2-018:001, at 12-7789 Kalapana-Kapoho Beach Road.
6. In response to my request, I was granted access to the Planning Department's file
related to the subject property and the pending permit applications.
7. On October 18, 2024, Planning Department staff provided me with a OneDrive link
to a shared folder titled "TMK (3) 1-2-018-001."
8. Through that access, I was able to review documents in the Planning Department's
file. These included correspondence between Planning Department staff and Kaimu Cove, LLC
(the "Applicant") or its representatives, internal communications, enforcement -related records,
and other documents relating to the Applicant's activities on the subject property and the history
of its permit applications.
9. On or around December 2025, when I attempted to access the Planning
Department's records, I found that the shared folder was no longer accessible to me.
10. Several documents that I reviewed during the period of my access, or documents of
the same type and subject matter, are not among the twenty-one (21) documents included in the
Record on Appeal filed by the Director on January 27, 2026.
I declare under penalty of law that the foregoing is true and correct to the best of my
knowledge and belief.
DATED: Hilo, Hawaii, June 10, 2026.
LESLIE ENRIQUEZ ROSEHILL
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BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAI`I
STATE OF HAWAI`I
`OHANA O MOKUHULU, KAIMU CASE NO.: PL-BOA-2026-000127
MAKENA, AND KALAPANA,
Appellant, CERTIFICATE OF SERVICE
VS.
JEFFREY DARROW, PLANNING
DIRECTOR, COUNTY OF HAWAI`I,
Appellee,
and
KAIMU COVE, LLC.,
Landowner.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing document was served on
the following parties identified below by electronic mail service pursuant to Board of Appeals
Rule 2-6 on June 10, 2026:
JEAN K. CAMPBELL
Deputy Corporation Counsel
Office of the Corporation Counsel
Jeank.camnbellnhawaiicounty. eov
Attorney for Appellee
PATRICK K. WONG
Carlsmith Ball LLP
75-5722 Kuakini Highway, Suite 208
Kailua-Kona, HI 96740
Pwong(a,carlsmith. c om
Attorney for Landowner Kaimu Cove, LLC
RENEE N. C. SCHOEN
Corporation Counsel
SYLVIA A. WAN
Deputy Corporation Counsel
Office of the Corporation Counsel
County of Hawaii
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
Sylviaa.wankhawaiicounty.oo
Attorney for the Board of Appeals
DATED: Honolulu, Hawaii, June 10, 2026.
/s/ Terina K. Fa `a�au
TERINA K. FA`AGAU
ASHLEY K. OBREY
Attorneys for Appellant
`OHANA O MOKUHULU,
KAIMC MAKENA, AND KALAPANA
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