HomeMy WebLinkAbout2026-5-15 Appellant's draft Memorandum in Opposition to Motions to Dismiss_v1.pdfMEMORANDUM IN OPPOSITION TO PLANNING DIRECTOR'S
MOTION TO DISMISS
Case Nos. PL-BOA-2025-000119 and 121
This memorandum is based on Rule 3-2(d) of the Board of Appeals Rules of Practice
and Procedure, and the law on Standing in environmental law in Hawaii.
This case is an appeal of the Planning Director's decision to issue a SMA exemption
for a building project that proposes to impermissibly expand a nonconforming use —
a unhosted Short-term vacation Rental —in a low -density residential zoned
neighborhood in violation of the Zoning Code, Section 25-4-61 Continuance of
nonconforming uses of land and buildings and HRS section 205A-26(2)(C).
The CZMA, coded as Chapter 205A, Hawaii Revised Statutes, is an environmental
law. See, HRS §205A-21 Findings and purposes.
The Hawaii County Zoning Code, Chapter 25, is an environmental law. See, Section
25-1-2 Scope, purposes and applicability.
1. Injury -in -Fact Test (Individual Standing)
The Supreme Court of Hawai'i relies on a three-part test to determine injury -in -fact
standing, heavily informed by Sierra Club v. Department of Transportation, 167 P.3d
292, (2007). To establish individual standing, a plaintiff must demonstrate three
strict elements:
• Actual or Threatened Injury: The plaintiff must suffer a distinct,
palpable, and concrete injury. Abstract, hypothetical, or generalized
grievances do not qualify.
• Traceability: The injury must be fairly traceable to the defendant's
challenged actions or statutory non-compliance.
• Redressability: The injury must be likely to be remedied, cured, or
undone by the favorable court ruling requested.
In Sierra Club, the court integrated specific expansions for environmental and public -
interest litigation:
• Geographic Nexus: Plaintiffs establish a concrete injury if they
use and enjoy an area (e.g., a harbor or coastline) and show a
reasonable threat of environmental harm from the project.
• Procedural Injury: A plaintiff suffers an independent injury -in -
fact when an agency denies them a legally mandated procedural
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right, provided that the procedure protects their concrete
interests.
APPELLANTS STATEMENT OF PLEADED FACTS CREATING STANDING
Rohr's Second Amended Petition on Appeal at (2) pleads a concrete interest in this
appeal, (different from the general public), established by the geographical nexus of
her property: TMK (3)2-1-018-005 is 210-feet from the subject property at TMK (3)2-
1-018-014, and the fact that she uses Oeoe street to access her driveway at 369 Nene
St.. She describes in detail the injury -in -fact.
Rohr's Second Amended Petition on Appeal pleads at part (4) A statement explaining:
(A) How the decision appealed from violates the law, #3 pleads that her injury is fairly
traceable to the Landowners' and the Planning Directors statutory non-compliance.
The Planning Director impermissibly allowed the building project to proceed by
issuing an Exemption from SMA review, because expansion of a nonconforming (high
density STVR) use to cover more land violates the Zoning Code, Section 25-4-61(a),
and the Planning Director violated the SMA guideline requiring consistency with the
zoning, HRS § 205A- 26(2)(C).
Rohr injury is be likely to be remedied, cured, or undone if the Board of Appeals grants
the relief requested to Reverse the Planning Director's decision to exempt the project
and Remand PL-SAA 2025- 000280 with appropriate instructions. Second Amended
See, Petition on Appeal pleads at part (3) A plain statement of the nature of the
appeal and the relief requested.
THE MOTION TO DISNMISS WAS UNTIMELY AND MUST BE DENIED
FOR LACK OF PROCEDURAL DUE PROCESS
1. The Board's acknowledgment Letters in these two related cases set the date for
the first hearing for September 21, 2025.
2. On July 17, 2025, Sinclair Salas-Ferguson, Deputy Corp. Counsel, for Appellee
NEIL AZEVEDO, ACTING DIRECTOR, DEPARTMENT OF PUBLIC WORKS,
requested a continuance of the September 12, 2025, hearing and Jean Campbell,
Deputy Corp. Counsel for the Planning Director joined in based on her own
absence and that of the Planning Director.
3. By Order dated July 21, 2025, Cathy Lewis, Chair continued the hearing set for
September 21, 2025 to Friday, November 14, 2025, at the Hilo County Council
Chambers, and by same Order dated July 21, 2025, Cathy Lewis, Chair gave
notice that "A pre -hearing conference ha[d] been scheduled for September 30,
2025."
4. Chair Lewis issued an October 1, 2025 Scheduling Order that provided:
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The hearing in this matter will commence before the Board on Friday,
November 14, 2025, at 9: 30 a.m., at the Hilo County Council Chambers,
Suite 1401, 25 Aupuni Street, Hilo, Hawaii 96720.
Dispositive motions shall be served upon the opposing party and filed
with the Board no later than October 24, 2025, by 4:30 p.m. The form
and service of any dispositive motion shall be made in accordance with
Board Rule 3-1.
Any memorandum in opposition to any dispositive motion shall be
served upon the opposing party and filed with the Board no later than
October 31, 2025, by 4:30 p.m., and shall be made in accordance with
Board Rule 3- 12.
5. October 23, 2025, Appellant mailed her Notice of the November 14, 2025 Hearing
to the surrounding neighbors within 300 feet, complying with BOA Rule 5-11(d).
6. The County Appellees and the Landowner did not file any dispositive motions by
October 31, 2025.
7. November 12, 2025, by Notice of Chair Lewis, the public hearing scheduled by the
County of Hawai'i Board of Appeals for Friday, November 14, 2025, was canceled
"due to lack of quorum. The Board is tentatively scheduled to meet on Friday,
December 12, 2025."
S. Chair Lewis did not issue a new scheduling Order resetting the hearing date.
9. December 19, 2025, Board staff emailed Appellant the Agenda for the January 9,
2026 hearings, which was due to be served on the surrounding neighbors the next
day.
10. Appellant Rohr overlooked Board staffs December 19, 2025 email and went off
island for the Christmas holidays, and failed to mail notice to the surrounding
neighbors of the January 9, 2026 hearings.
11. January 2, 2026, Rohr timely filed a Second Amended Petition on Appeal
permitted under BOA Rul Rule 2-4(f).
12. January 5, 2026, Corp. Counsel Jean Campbell objected to the second amended
petition, claiming:
No additional filings are permitted by either the Scheduling Order or
the BOA Rules of Practice and Procedure. No procedural rule allows for
this filing nor does it recite any authority by which it may be filed, thus
i[t] must be rejected in its entirety and disregarded by the BOA.
13. January 5, 2026, Rohr emailed an Answer to the Planning Director's objection,
pointing out:
BOA Rules of Practice and Procedure, Rule 2-4 Formal Requirements
for Filing of Documents, provides:
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(f) Amended Document. An amendment to documents or pleadings shall
be submitted not less than seven (7) days prior to hearing, shall be
served on all parties, and filed with the Board. All parties shall have the
opportunity to answer and be heard on an amendment filed, and the
chairperson or presiding officer shall decide whether such amendment
will be allowed.
14. January 6, 2026, Chair Lewis entered Order for Continuance and Amended
Scheduling Order, providing:
1. The hearing in this matter will commence before the Board on March
13, 2026, at 9: 30 a.m., at the Hilo County Council Chambers, Suite
1401, 25 Aupuni Street, Hilo, Hawaii 96720.
2. The Second Amended Petition filed on January 2, 2026, is hereby
allowed. Any further amendment to the petition will not be
entertained.
3. If desired by any party, either party shall serve upon the opposing
party and file with the Board any legal memoranda or pre -hearing
brief based on the Second Amended Petition no later than March 2,
2026, by 4:30 p.m.
4. Appellant's request to switch agenda items for the January 9, 2026,
hearing date is now moot, and hereby denied.
Appellant is ordered to mail a notice of the new hearing date to all
persons required to be notified in accordance with Board of Appeals
Rule 8- 11( d). If the Board is unable to hold the contested hearing on
March 13, 2026, Appellant shall re -issue the required notice for any
subsequent date in accordance with Board of Appeals Rule 8-11(d).
15. February 19, 2026, Board staff emailed the March 13th Agenda to Rohr, and
February 20, 2026 Appellant Rohr mailed the required Notice to Neighbors for the
March 13, 2026 hearing and filed the proof of mailing the same day.
16. March 2, 2026, Appellant Rohr filed her Supplemental Prehearing Brief listing
the facts, the law, and the substantial supportive evidence in the record that must
be considered by the Board in deciding this case.
17. March 3, 2026 Rohr filed her Amended Petition and Replacement Amended
Petition in case No. BOA-2025-000121.
18. March 5, 2026, Chair Lewis issued her order denying the amendment.
19. March 6, 2026, in case No. BOA-2026-000121, Rohr filed APPELLANT'S
EMERGENCY MOTION FOR RECONSIDERATION; REQUEST FOR
WITHDRAWAL OF CHAIR'S ORDER; AND NOTICE OF APPEAL TO THE
FULL BOARD; and DECLARATION.
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20. March 10, 2026 Chair Lewis issued ORDER GRANTING RECONSIDERATION,
ALLOWING AMENDED PETITION, FOR CONTINUANCE AND AMENDED
SCHEDULING ORDER, resetting the hearing for May 15, 2026 to provide time
for supplemental briefing on the Amended Petition by May 4, 2026..
21. The Landowner, Mr. Standke and the County Appellees did not file a
Supplemental Prehearing Brief by May 4, 2026 in either case.
22. March 9, Appellant Rohr made a motion to Consolidate cases BOA-2025-000119
and 121 for hearing, which was denied by Order of Chair Lewis the same day.
23. March 12, 2026 Chair Lewis issued a continuance of the March 13, 2026 Hearing
to May 15, 2026 so both cases BOA-2025-000119 and 121 could be heard by the
Board on the same day
24. April 22, 2026, Board staff emailed the May 15, 2026 Agenda to Rohr, and on April
23, 2026, Appellant Rohr timely mailed her Notice to Surrounding neighbors; and
on April 24 Rohr submitted proof of mailing by email to the Board and all parties.
25. The Landowner, Mr. Standke sent an April 28, 2026 email to the Board
summarizing his Standing argument, but did not serve it on the other parties.
26. May 5, 2026, Board Staff forwarded Mr. Standke's informal email Standing
argument and filed it in the Board packet as "2026-4-28 Legal Brief from
Landowner Richard R. Standke."
27. May 8, 2026, Appellee Planning Director's counsel emailed her Motion to Dismiss
and Amended Motion to Dismiss for lack of standing, based on BOA Rules 3-12(a)
and 8-2 to the Board and other parties.
28. The Chair was silent.
29. May 11, 2026, Appellee Director of Public Works emailed a [Memorandum in
Support ofJ Motion to Dismiss for lack of standing, minus thr BOA Rule it is based
on.
30. May 11, 2026 Appellant Rohr emailed Chair a letter and Amended Letter, which
read:
For some reason the Appellees or their counsels in case Nos. PL-BOA-
2025 000191 and 121 want you to continue the hearings scheduled for
Friday by their actions.
Since I prefer communication in writing, because of my hearing
disability, I do not object to you continuing the hearings in Cases Nos.
PL-BOA-2025-000191 and 121 to the July meeting in Hilo so I have a
meaningful opportunity to respond to the Appellees' motion papers.
31. May 12, 2026, Corp. Counsel Jean Campbell and Corp. Counsel Sinclair
SalasFurguson, counsels for County Appellees in case Nos. PL-BOA-2025 000191
and 121, responded to Rohr's May 11, 2026 Letter and vigorously objected to a
continuance; and Chair Lewis responded by email through Sylvia Wan, which
read:
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To the extent that a request for continuance was made, Chair Lewis is
denying a continuance of the PL-BOA 2025-000119 and PL-BOA-2025-
000121. The contested hearing date shall remain scheduled for this
Friday, May 15, 2026.
32. BOA Rule 3-12, in relevant part, provides:
3-12 Motions.
(a) Timing. Motions may be made before, during, or after a hearing.
(b) Form and Contents. Any motion, other than one made during a
hearing, shall be made in writing to the Board and shall state the relief
sought and shall be accompanied by an affidavit or legal memorandum
setting forth the grounds upon which the motion is based.
(c) Service of Motions. The moving party shall serve a copy of all motion
documents on all other parties and shall file them with the Board with
proof of service.
(d) Memorandum in Opposition. A memorandum in opposition or
counter affidavit shall be served on all parties and the memorandum
and proof of service shall be filed with the Board as required by the
Scheduling Order or for matters with no Scheduling Order, within ten
(10) days after being served with the motion. The presiding officer may
order the memorandum in opposition to be filed at a time other than the
ten (10) day period.
(f) Ruling. All motions that involve a final determination of the
proceeding shall be voted and ruled on by the Board. The presiding
officer may rule on non-dispositive motions in accordance with Section
3-1(b) of these Rules.
33. The Chair has not made an Order reducing the time for Rohr to file her
Memorandum in Opposition.
34. The Board of Appeals staff have not issued a reasonable Notice under HRS section
91-9(a) and (b)
§91-9 Contested cases; notice; hearing; interactive conference
technology; records. (a) Subject to section 91-8.5, in any contested
case, all parties shall be afforded an opportunity for hearing after
reasonable notice.
(b) The notice shall include a statement of:
(1) The date, time, place, and nature of hearing;
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(2) The legal authority under which the hearing is to be held;
(3) The particular sections of the statutes and rules involved;
(4) An explicit statement in plain language of the issues involved
and the facts alleged by the agency in support thereof;
provided that if the agency is unable to state the issues and
facts in detail at the time the notice is served, the initial notice
may be limited to a statement of the issues involved, and
thereafter upon application a bill of particulars shall be
furnished;
35. According to BOA Rule 3-12, Rohr has until May 17, 2026 to file a Memorandum
in Opposition in response to Appellee Planning Director's Motion to Dismiss dated
May 8, 2026. The Planning Director's Motion to Dismiss is untimely and must be
denied for lack of procedural due process.
36. According to BOA Rule 3-12, Rohr has until May 21, 2026 to file a Memorandum
in Opposition in response to Appellee Director's of Public Works' Motion to
Dismiss dated May 11, 2026. The Director of Public Work's Motion to Dismiss is
untimely and must be denied for lack of procedural due process.
37. Appellant did not agree to waive any of the Board's rules.
CONCLUSION:
As a matter of law and due process, Appellant requests that the Board members deny
the two Motions to Dismiss for untimeliness and failure to follow the Boards Rules.
DATED: Hilo, Hawaii, May 15, 2026
Respectfully Submitted,
/sl Claudia Rohr
CLAUDIA ROHR, Appellant
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