HomeMy WebLinkAbout2026-06-04 Proposed Findings of Facts and Conclusions of Law; Decision and Order (PL-BOA-2025-000119).pdfFrom: Lactaoen, Kawehilani S
To: Plannina Board of Appeals
Cc: crohr4(d)amail.com; Wan. Sylvia A; Campbell, Jean K; Agustin, Noah; Darrow, Jeffrey W.; Lev. Rachelle;
richard. stand keCcDamail. corn; Morrison, Bethany J; Ahn, Michelle
Subject: Proposed Findings of Fact and Conclusions of Law; Decision and Order
Date: Thursday, June 4, 2026 9:42:05 AM
Attachments: Rohr - Standke Proposed FOF-COL: Order.pdf
Aloha,
Please find attached, Proposed Findings of Fact and Conclusion of Law, Decision and Order,
being submitted for further processing, Appellee Jeff Darrow, Planning Director, County of
Hawai' i.
MU"C With, {IWLa,
`legal Tedmic&uv Z to,
5i ctava 5alaa-1"gaaoa, Vepc&j, Coww,ab am Cs�
VemetuCy. `eamelti,, Vepu4CoVon W"uCo-wwt
jean,V. CampbW, Vep-u4Cwcp"ahoaCoanad
Ilavwc h E. Md&e, Uep-u4 UV& at+. n C& wwt
Co-u t4 q FlMu (i4
ou the cw*"a atisa� co n"t
101 &qmni, 5t., 5ui&325
Hilo,, HawcU4 96720
Phone,. (808) 961-8251
1". (808) 961-8622
Email:
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
Corporation Counsel
JEAN K. CAMPBELL
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
5936
7424
Attorneys for Appellee
JEFFREY W. DARROW, PLANNING DIRECTOR,
COUNTY OF HAWAI' I,
BEFORE THE BOARD OF APPEALS
CLAUDIA ROHR,
Appellant,
VS.
COUNTY OF HAWAI`I
STATE OF HAWAI`I
JEFFREY W. DARROW, PLANNING
DIRECTOR, COUNTY OF HAWAI'I,
Appellee,
and
RICHARD and DEBORAH STANDKE,
Landowners.
CASE NO. PL-BOA-2025-000119
PROPOSED FINDINGS OF FACT,
CONCLUSIONS OF LAW, DECISION AND
ORDER; CERTIFICATE OF SERVICE
Hearing Date: May 15, 2026
PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER
Pursuant to the Hawai'i County Board of Appeals' request to submit proposed Findings
of Fact, Conclusions of Law, Decision and Order granting the Director of the Planning
Department ("Planning Director"), County of Hawai`i's Motion to Dismiss for Lack of Standing,
by its attorneys, Renee N.C. Schoen, Corporation Counsel, and Jean K. Campbell, Deputy
1
Corporation Counsel, hereby submits its Proposed Findings of Fact, Conclusions of Law,
Decision and Order, filed on June 4, 2026, as follows:
Dated: Hilo, Hawaii, June 4, 2026.
2
JEFFFREY W. DARROW, PLANNING
DIRECTOR, COUNTY OF HAWAI' I
Appellee,
/s/Jean K Canipbell
JEAN K. CAMPBELL
Deputy Corporation Counsel
Attorney for Appellee
RENEE N.C. SCHOEN
Corporation Counsel
JEAN K. CAMPBELL
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
5936
7424
Attorneys for Appellee
JEFFREY W. DARROW, PLANNING DIRECTOR,
COUNTY OF HAWAI' I,
BEFORE THE BOARD OF APPEALS
CLAUDIA ROHR,
Appellant,
VS.
COUNTY OF HAWAI`I
STATE OF HAWAI`I
JEFFREY W. DARROW, PLANNING
DIRECTOR, COUNTY OF HAWAI'I,
Appellee,
and
RICHARD and DEBORAH STANDKE,
Landowners.
CASE NO. PL-BOA-2025-000119
FINDINGS OF FACT, CONCLUSIONS OF
LAW, DECISION AND ORDER;
CERTIFICATE OF SERVICE
FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER
The Board of Appeals ("Board"), having held a hearing on the above -entitled matter on
May 15, 2026, finds, concludes and orders as follows:
1
FINDINGS OF FACT
A. Procedural History
On May 1, 2025, Appellant submitted a General Petition for Appeal of Decisions
by Planning Director or Public Works Director to the Board of Appeals, County of Hawai'i
("Board") appealing the Planning Director's Special Management Area exemption determination
and a related building permit issued by the Public Works Director. Appellant amended the
Petition to separate the Planning Director and Public Works Director appeals.
2. The Planning Director filed the Record on Appeal on June 16, 2025, to which
Appellant objected on June 24, 2025.
By Order Granting Continuance of Hearing dated July 21, 2025, the hearing date
was continued from September 12, 2025, to November 13, 2025, at the request of the Planning
Director.
4. Following a pre -hearing conference held on September 30, 2025, Appellant and
the Planning Director both prepared for the scheduled November hearing by filing their
respective Exhibit Lists, Witness Lists, Briefs and Legal Memorandums in accordance with the
BOA's Scheduling Order dated September 30, 2025.
5. The November 13, 2025, BOA hearing was cancelled due to lack of quorum and
the hearing was continued until January 9, 2026, by notice dated November 12, 2025.
6. On December 29, 2025, the BOA staff reminded the Appellant of the need to send
and file proof of the BOA Rule 8-11(d) required notice to surrounding property owners.
7. On January 2, 2026, Appellant filed a Second Amended Petition, to which the
Planning Director objected on January 5, 2026.
S. By Order for Continuance and Amended Scheduling Order dated January 6, 2026,
the Board Chairperson allowed the filing of the Second Amended Petition and continued the
2
hearing date until March 13, 2026, due to the Appellant's failure to send the BOA Rule 8-11(d)
notice to surrounding property owners and allowed the parties additional time to respond to the
Second Amended Petition.
9. On March 5, 2026, Appellant filed a Supplemental Pre -Hearing Brief. On March
9, 2026, Appellant made a motion to consolidate the hearings on the appeals from the Planning
Director's determination and the Public Works Director's decision, which the Board Chairperson
denied.
10. On March 10, 2026, Appellant requested a continuance of the scheduled March
13, 2026, hearing date, to which the Planning Director did not object. On March 12, 2026, the
Board Chairperson continued the hearing until May 15, 2026.
11. On March 16, 2026, Landowner objected to the continuance. On May 5, 2026,
Landowner filed a legal statement objecting to Appellant's lack of standing.
12. On May 8, 2026, the Planning Director filed a Motion to Dismiss for Lack of
Standing and an Amended Motion to Dismiss for Lack of Standing.
13. On May 12, 2026, Appellant filed a Memorandum in Opposition.
14. On May 15, 2026, the hearing began as scheduled at 9:30 a.m. At 10:03 a.m.,
Appellant filed a Draft Memorandum in Opposition to Motion to Dismiss. The Board paused the
hearing to read Appellant's Draft Memorandum in Opposition to Motion to Dismiss. The Board
heard oral arguments and presentation of evidence and testimony on the Motion to Dismiss at the
Hilo Council Chambers with a quorum of Board Members present. Ms. Claudia Rohr appeared
as the Appellant. Mr. Richard Standke appeared as the Landowner. Jean K. Campbell, Deputy
Corporation Counsel, appeared on behalf of the Planning Director.
B. Factual Findin
3
15. The property at issue is located at 14 Oe Oe Street, Keaukaha, South Hilo and is
identified by Tax Map Key Parcel No. (3) 2-1-018:013. The property is owned by Mr. Richard
and Ms. Deborah Standke (collectively, "Landowner")
16. On April 11, 2025, the Planning Director issued an exemption determination in
response to Special Management Area (SMA) Use Permit Assessment Application (PL-SAA-
2025-000280) finding that the home improvement construction project, composed primarily of
the construction of an internal staircase and the addition of an external lanai, proposed by
Landowner was exempt from SMA approval requirements.
17. Ms. Claudia Rohr ("Appellant") resides at 369 Nene Street on property identified
by Tax Map Key Parcel No. (3) 2-1-018-005, the eastern boundary of which is approximately
210 feet from the western boundary of the subject property. Appellant alleges that she relies on
Oe Oe Street to walk to nearby beach parks and to receive emergency services at her residence.
See Second Amended Petition. Appellant also alleges concern for the ability of the public to
evacuate from nearby beach parks in the event of a tsunami.
18. Oe Oe Street, and surrounding neighborhood streets, are used by the public for
overflow parking to access nearby beach parks.
19. The most direct route from Hilo, the origin of emergency services, to Appellant's
residence does not utilize Oe Oe Street. The emergency evacuation route from Appellant's
residence to safety does not utilize Oe Oe Street. Appellant may access nearby beach parks by
using Oe Oe Street, and other neighborhood streets.
CONCLUSIONS OF LAW
20. 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 v. Hawai `i
M
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).
21. Board of Appeals Rules of Practice and Procedures, Rule 8-2 requires that:
Any person aggrieved by a final decision of the Director regarding matters within
their jurisdiction, including the administration or application of the County Codes
under their authority may appeal the decision to the Board.
A person is aggrieved by a decision of the Director i£ (1) the person has an interest in
the subject matter of the decision and is so directly and immediately affected, that the
person's interest is clearly distinguishable from that of the general public; and (2) The
person is or will be adversely affected by the decision.
22. The Director's determination was made pursuant to the SMA criteria set forth in
Hawaii Revised Statutes Chapter 205A, which focuses on protecting shoreline environmental
resources and ensuring public access to the shoreline. See, e.g., Haw. Rev. Stat. § 205A-2.
23. An injury must be "actual or imminent, not conjectural or hypothetical." Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citation and internal punctuation omitted).
"The plaintiff must show a distinct and palpable injury to himself or herself as opposed to an
alleged injury that is abstract, conjectural or merely hypothetical." See John M. Corboy and
Stephen Gara Aghjayan v. David M. Louie, Acting Attorney General, et. al., 128 Haw. 89, 105
(citations and internal punctuation omitted).
24. Standing exists to protect specific personal stakes, not to provide a forum for
neighborhood -wide grievances. See Life of the Land v. Land Use Comm'n of State of Hawai `i,
63 Haw. 166, 172, 623 P.2d 431, 438 (1981) ("[T]he crucial inquiry in [determining standing] is
whether the plaintiff has alleged such a personal stake in the outcome of the controversy' as to
warrant his invocation of ... (the court's) jurisdiction and to justify exercise of the court's
remedial powers on his behalf.") (citation and internal punctuation omitted).
5
25. When there are well -pleaded factual allegations, the adjudicative body should
assume their veracity and then determine whether they plausibly give rise to an entitlement to
relief. Moss v. U.S. Secret Serv., 572 F.3d 962, 970 (9th Cir. 2009) citing to Ashcroft v. Igbal,
556 U.S. 662, 678-79, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009).
26. 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 v. Igbal, 556 U.S. 662, 678-79, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009).
27. Standing also requires that the injury be within the "zone of interests" protected or
regulated by the relevant statute. Life of the Land, 63 Haw. at 173, 623 P.2d at 439.
28. An injury that cannot be redressed by a favorable decision is fatal to standing.
See Kia'i Wai O Wai'ale'ale v. Bd. Of Land and Nat. Res., 157 Hawaii 303, 317, 576 P.3d 816,
831 (2025).
29. Appellant has not alleged facts sufficient to support a claim of an injury which so
directly and immediately adversely affects herself that her interest is distinguishable from that of
the general public as required by BOA Rule 8-2. Appellant's alleged injuries relating to
neighborhood traffic congestion, short-term vacation rental use, and beach parking and
evacuation are matters of general concern.
30. The Board need not accept Appellant's conclusionary statements that such
construction would lead to increased use of the property or create neighborhood traffic
congestion.
31. Because Appellant's allegations of injury based on neighborhood traffic, short-
term vacation rental usage of the subject property, and access to and from her residence are not
pertinent to evaluation of an SMA determination, the Board cannot grant the relief Appellant
seeks.
M
32. Having considered the testimony, facts, evidence, and arguments provided, the
Board unanimously ruled that Appellant failed to plead sufficient, non -speculative facts to
establish that she is an aggrieved person pursuant to BOA Rule 8-2 which requires: (1) the
person has an interest in the subject matter of the decision and is so directly and immediately
affected, that the person's interest is clearly distinguishable from that of the general public; and
(2) The person is or will be adversely affected by the decision. Therefore, the Board granted the
Planning Director's Motion to Dismiss.
DECISION AND ORDER
Based on its consideration of the testimony, facts, evidence and arguments provided at
hearing, including the Record on Appeal, the documents on file herein, and applying the reliable
probative evidence and law, the Board hereby Decides and Orders as follows:
Appellant failed to plead sufficient, non -speculative facts to establish standing as required
by BOA Rule 8-2. Specifically, Appellant provided no evidence that the construction project
proposed at the subject property will cause her an injury "clearly distinguishable from that of the
general public" and has provided only unsupported conclusionary legal arguments. Because
Appellant's claims are speculative and consist only of generalized grievances unrelated to the
Special Management Area criteria underlying the Director's exemption determination, the
Appellant lacks standing and the Board lacks the authority to overturn the Planning Director's
determination.
The Planning Director's Motion to Dismiss case Claudia Rohr v. Jeffrey W. Darrow,
Planning Director and Richard and Deborah Standke (PL-BOA-2025-000119) is GRANTED.
The above -captioned Board of Appeals case is dismissed with prejudice in its entirety.
7
Dated: , Hawai`i, , 2026.
By:
Cathy Lewis, Chair
Board of Appeals, County of Hawaii
State of Hawai'i
Claudia Rohr v. Planning Director; CASE NO. PL-BOA-2025-000119;
Findings of Fact, Conclusions of Law, Decision and Order
CLAUDIA ROHR,
VS.
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAI`I
STATE OF HAWAI'I
CASE NO. PL-BOA-2025-000119
Appellant, CERTIFICATE OF SERVICE
JEFFREY W. DARROW, PLANNING
DIRECTOR, COUNTY OF HAWAI`I,
Appellee,
and
RICHARD and DEBORAH STANDKE,
Landowners.
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 4, 2026:
Delivered via Electronic Mail (E-Mail and/or EPIC)
CLAUDIA ROHR
Appellant pro se
RICHARD STANDKE
DEBORAH STANDKE
Landowners
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 4, 2026.
ls/ Jean K. Campbell
JEAN K. CAMPBELL
Deputy Corporation Counsel
Claudia Rohr v. Planning Director; CASE NO. PL-BOA-2025-000119;
Certificate of Service