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HomeMy WebLinkAbout2026-06-19 Motion to Dismiss (PL-BOA-2026-000133 ROHR).pdfFrom: Lactaoen, Kawehilani S To: Plannino Board of Appeals Cc: bc0427(@amail.com; crohr4(cbamail. com; Camobell. Jean K; Darrow. Jeffrey W.; Ahn, Michelle; Lev. Rachelle; Wan, Sylvia A; Agustin, Noah; Morrison, Bethany J Subject: ROHR v. COH, et al., PL-BOA-2026-000133 COH Ong Dpt Motion to Dismiss Date: Friday, June 19, 2026 8:26:18 AM Attachments: COH Dir Plna Motion to Dismissxdf Aloha, Please find attached for further processing, Director of the Planning Department, County of Hawai' is Motion to Dismiss; Memorandum in Support of Motion; Certificate of Service. G. facta"n )ee"t Tecln"&U'u T to, 5iv cW GaiawIenT. gam, W p,44 CwWo'+.at+evi Cawwt Vevnetz, � Cy. favnetti,, Veput%C&Vow m CeunmI Jea u V_ CavnphelG, 04W49, CWWOW 041U Cer u Mt )laaM.akE. maee, aw ttj ct��Ce "Ad C"U74 4 E m"(i"T off we, 4 the C&4VW tieu, coanaa 101 Aupcni 5t., 5uite325 ffito, UawcU4 96720 Monk,. (808) 961-8251 law. (808) 961-8622 &nag. ILa���G►i liryr i �, . �a�t�x.v�v, nGta rAurii�ac� vi t�' Confidentiality Notice: This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and/or privileged information. Any review, use, disclosure, or distribution by unintended recipients is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. Thank you. RENEE N.C. SCHOEN 5936 Corporation Counsel JEAN K. CAMPBELL 7424 Deputy Corporation Counsel Office of the Corporation Counsel County of Hawaii 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-Mail: jeank.campbell(a�,hawaiicounty.gov Attorneys for Appellee JEFFREY W. DARROW, PLANNING DIRECTOR, COUNTY OF HAWAF I, BEFORE THE BOARD OF APPEALS CLAUDIA ROHR, Appellant, VS. PLANNING DEPARTMENT COUNTY OF HAWAI`I JEFFREY W. DARROW, PLANNING DIRECTOR, COUNTY OF HAWAI' I, Appellee, and BRIAN CLARK, TRUSTEE UNDER THAT CERTAIN BRIAN CLARK LIVING TRUST DATED JANUARY 2, 2003, Landowner. CASE NO. PL-BOA-2026-000133 DIRECTOR OF THE PLANNING DEPARTMENT, COUNTY OF HAWAI`I'S MOTION TO DISMISS; MEMORANDUM IN SUPPORT OF MOTION; CERTIFICATE OF SERVICE Hearing Date: September 11, 2026, 9:30 a.m. MOTION TO DISMISS Appellee JEFFREY W. DARROW, PLANNING DIRECTOR, COUNTY OF HAWAI`I ("Director"), by and through Deputy Corporation Counsel Jean K. Campbell, moves to dismiss this appeal pursuant to the Board ofAppeals Rules of Practice and Procedure ("BOA Rules") 3- 12(a) for lack of standing and mootness. A pre -hearing conference was scheduled for this matter on June 9, 2026, in anticipation of a July 10, 2026, scheduled hearing date. The pre -hearing conference and hearing date were continued by the Board Chair at the request of Appellant. BOA Rule 3-12 allows that motions may be made before, during or after a hearing, allowing for the filing of this Motion at this time. Lacking a published Scheduling Order, the Director defers to the Board regarding the date this Motion will be scheduled for hearing. This appeal should be dismissed due to Appellant's failure to meet the standing requirements set forth in BOA Rule 8-2 and due to mootness because no redressable controversy exists. Dated: Hilo, Hawaii, June 19, 2026. COUNTY OF HAWAI`I PLANNING DIRECTOR Appellee By: /s/ Jean K. Campbell JEAN K. CAMPBELL Deputy Corporation Counsel His Attorney 2 RENEE N.C. SCHOEN 5936 Corporation Counsel JEAN K. CAMPBELL 7424 Deputy Corporation Counsel Office of the Corporation Counsel County of Hawaii 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-Mail: jeank.campbell(a�hawaiicounty.gov Attorneys for Appellee JEFFREY W. DARROW, PLANNING DIRECTOR, COUNTY OF HAWAI' I BEFORE THE BOARD OF APPEALS CLAUDIA ROHR, Appellant, vs. PLANNING DEPARTMENT COUNTY OF HAWAI`I JEFFREY W. DARROW, PLANNING DIRECTOR, COUNTY OF HAWAI'I, Appellee, and BRIAN CLARK, TRUSTEE UNDER THAT CERTAIN BRIAN CLARK LIVING TRUST DATED JANUARY 2, 2003, Landowner. CASE NO. PL-BOA-2026-000133 MEMORANDUM IN SUPPORT OF MOTION Hearing Date: September 11, 2026, 9:30 a.m. MEMORANDUM IN SUPPORT OF MOTION I. INTRODUCTION Appellee JEFFREY W. DARROW, PLANNING DIRECTOR, COUNTY OF HAWAI`I ("Director") respectfully requests that the Board of Appeals ("Board") dismiss this appeal for lack of standing and mootness. II. FACTUAL BACKGROUND The Director received a Special Management Area (SMA) Use Permit Assessment Application (PL-SAA-2026-000330) ("Application") from Amira Soliman for Bumper Productions, LLC ("Filming Company") to allow for film production of limited scenes for a television series on private property located at Papa'ikou Camp and at the public Papa'ikou Beach. The private property is owned by the Brian Clark Living Trust ("Landowner"). Having carefully reviewed the Application, the Director issued SMA Minor Permit No. PL-SMM-2026- 000085 ("SMA Minor Permit") authorizing a limited, short-term video shoot consisting of a brief preparation period and one day of filming. Appellant Claudia Rohr ("Appellant") filed a Petition ("Petition") appealing the Director's issuance of the SMA Minor Permit. III. STANDING A. Legal Standard Standing is a procedural threshold that must be satisfied before the Board may consider the merits of any case. See Public Access Shoreline Hawaii by Rothstein a Hawai `i Cnty. Planning Comm'n by Fujimoto, 79 Hawai`i 425, 431, 903 P.2d 1246, 1252 (1995) (noting "claimant had to have standing to appeal" in order for court to have jurisdiction to decide issues presented). To establish standing under BOA Rule 8-2, an appellant must show: An interest in the subject matter that is directly and immediately affected; 2. An interest that is clearly distinguishable from that of the general public; and 2 3. That they are or will be adversely affected by the decision. This rule is consistent with the policies underlying standing requirements including: to ensure that the body does not exceed its authority; to prevent the body from being flooded with cases based on generalized grievances; to ensure efficiency and prevent the waste of governmental resources; and to limit legal disputes to those based in real -world facts involving a direct injury caused by the defendant or appellee which can be redressed by the body to which the dispute is presented. The Hawai'i Supreme Court has established a three-part standing test, which echoes BOA Rule 8-2: 1. Has the plaintiff suffered an actual or threatened injury; 2. Is the injury traceable to the defendant's actions; and 3. Would a favorable decision likely provide relief for plaintiff's injury. See Sierra Club a Dept of Transportation, 115 Haw. 299, 319, 167 P.3d 292, 312 (2007). Where, as here, a party challenges the government's regulation of a third party (the Landowner and the Filming Company), the burden to establish standing is "substantially more difficult" to meet. Lujan a Defenders of Wildlife, 504 U.S. 555, 562 (1992). Under Lujan, an injury must be "actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560 (citation and internal punctuation omitted). The Appellant must allege concrete evidence that this Board has the authority to redress. While an adjudicative body must take all the factual allegations in the pleadings as true, it is not bound to accept as true a legal conclusion couched as a factual allegation. Ashcroft a Igbal, 556 U.S. 662, 678-79, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009). 3 B. Appellant Has Alleged No Actual Injury While participating in this appeal pro se, Appellant is an experienced appellant at the Board of Appeals having filed nine appeals over the last eight years'. Appellant is well aware of the BOA Rules and their requirements. Appellant has failed to meet the burden imposed by BOA Rule 8-2. The Petition contains no factual allegations of injury to Appellant, the general public, or the environment. Appellant provides nothing more than a simple statement that her "interests have been injured" without articulating any factual evidence of injury or any connection to the issuance of the SMA Minor Permit. See Petition at Page 2. The filming activity authorized by this SMA Minor Permit was "conducting a one -day video shoot featuring two cast members speaking on the beach and brief filmed interactions at the top of the Papa ikou Camp property. No structures will be built and no permanent lighting or installations will be used." Special Management Area Minor Permit No. PL-SMM-2026-000085. Not only has Appellant failed to describe a specific injury to herself that is clearly distinguishable from that of the general public, she has failed to articulate any actual or imminent injury at all. Appellant resides nearly 10 miles from the filming location, alleges no facts supporting any unique use of the location that she might make and does not even allege that her potential use of the location would be affected in any way by the SMA Minor Permit, which required that the beach area remain open to the public throughout the duration of the filming. In fact, neither Appellant or any other member of the public was denied access to the public beach during the set up or the filming activities. Even if the Board were to accept that injury might occur, Appellant's injury would not be distinguishable from that of the general public. ' Appellant is the initiator of BOA 18-000190, BOA 18-000200, BOA 19-000210, PL-BOA-2022-000025, PL- BOA-2022-000057, PL-BOA-2023-000075, PL-BOA-0205-000119, PL-BOA-2025-000121, and PL-BOA-2026- 000133. M Missing any factual allegation of injury or adverse effects to herself, the general public or the environment, Appellant's leaps to legal conclusions about alleged error and the Director's abuse of discretion fail. Appellant's statement that laws were violated by the Director is no more than a list of laws without explanation or legal argument to support the claim of injury. See Petition at Pages 3-4. Appellant has utterly failed to meet even the one prong of the standing tests. She is unaffected by the issuance of the SMA Minor Permit, either individually or as a member of the general public and therefor lacks standing to challenge its issuance. Given Appellant's extensive experience before this Board, she was aware of the requirements in drafting the Petition and simply failed to meet them on her own initiative and should not be given leave to amend or supplement her original Petition after the initial 30-day filing period has lapsed. Allowing for repeated, untimely amendments and supplements to improperly filed appeals undermines this Board's efficient and fair adjudication of properly filed claims and should not be allowed. IIL MOOTNESS A. Legal Standard "A case is moot if it has `lost its character as a present, live controversy of the kind that must exist if [courts] are to avoid advisory opinions on abstract propositions of law." Kona Old Trails a Lyman, 69 Haw. 81, 87 (1987) (quoting Hall v. Beals, 396 U.S. 45, 48 (1969) (citations omitted)). "Under the mootness doctrine, this court will generally refrain from deciding a case that has lost its character as a present, live controversy, and in which the reviewing court can no longer grant effective relief." Kia'i Wai O Wai'ale'ale a Bd. of Land & Nat. Res., 157 Hawaii 303, 315, 576 P.3d 816, 828 (2025) (quoting Carmichael v. Bd. of Land & Nat. Res., 150 Hawaii 547, 560, 506 P.3d 211, 224 (2022) (internal quotation marks omitted)). 5 B. All Activity Authorized by the SMA Minor Permit Has Concluded Leaving No Redressable Live Controversy The SMA Minor Permit authorized a limited, short-term video shoot consisting of a brief preparation period and one day of filming to take place primarily on private property with limited activity on a public beach which remained accessible to the public at all times. Filming occurred on May 22" d and has been completed with no lingering effects. Neither Appellant nor any other member of the public was denied access to any area, publicly accessible or otherwise, as a result of the issuance of the SMA Minor Permit. No structures were built and no permanent lighting or installations were used. The area was returned to its original condition upon completion of the activity. The Planning Department has received no complaints about the condition of the private property or the public beach following the filming activity. The Landowner and the Filming Company have no current plans to return to conduct additional filming activities or to apply for additional SMA approvals. Should either party ever decide to conduct additional filming on the property or elsewhere on the island, all appropriate permits and approvals would be applied for at that time. Any future permits are beyond the scope of this appeal. Revocation of the SMA Minor Permit would not only be baseless but would have no effect because no ongoing activity or injury exists to be prevented or remedied. Appellant has alleged no facts indicating any injury that is redressable by this Board. IV. CONCLUSION Appellant has failed to allege any facts, specific or otherwise, to support her statement that "her interests have been injured" by the Director's issuance of the SMA Minor Permit. Having failed to establish an injury to an interest that is directly and immediately affected and n clearly distinguishable from that of the general public, Appellant has not met the standing requirements of BOA Rule 8-2. Without standing, this Board lacks the jurisdiction to hear the appeal. No current redressable controversy remains for this Board to rule on because all activity authorized under the SMA Minor Permit has been completed and will not repeat. Revocation of a properly issued permit for an activity that concluded leaving no impact will have no meaningful effect and is therefore moot. The Petition does not sufficiently allege facts supporting the claim of injury or explain sufficient legal arguments about the alleged basis of the appeal. For these reasons, the Director respectfully requests the Board dismiss the appeal in its entirety. Dated: Hilo, Hawaii, June 19, 2026. COUNTY OF HAWAI`I PLANNING DIRECTOR By: ls/ Jean K Campbell JEAN K. CAMPBELL Deputy Corporation Counsel His Attorney 7 BEFORE THE BOARD OF APPEALS COUNTY OF HAWAP I STATE OF HAWAI`I CLAUDIA ROHR, Appellant, vs. JEFFREY W. DARROW, PLANNING DIRECTOR, COUNTY OF HAWAFI, Appellee, and BRIAN CLARK, TRUSTEE UNDER THAT CERTAIN BRIAN CLARK LIVING TRUST DATED JANUARY 2, 2003, Landowner. CASE NOS. PL-BOA-2026-000133 CERTIFICATE OF SERVICE 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 upon the following on June 19, 2026: Delivered via Electronic Mail (E-Mail and/or EPIC) CLAUDIA ROHR Appellant pro se BRIAN CLARK, TRUSTEE UNDER THAT CERTAIN BRIAN CLARK LIVING TRUST DATED JANUARY 2, 2003 Landowner SYLVIA WAN, ESQ. Deputy Corporation Counsel County of Hawaii 101 Aupuni Street, Suite 325 Hilo, HI 96720 Attorney.for Board of Appeals BOARD OF APPEALS 101 Pauahi Street, Suite 3 Hilo, HI 96720 Board of Appeals Dated: Hilo, Hawaii, June 19, 2026. 9 ls/ Jean K. Campbell JEAN K. CAMPBELL Deputy Corporation Counsel