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Home My WebLink About2026-06-23 Proposed Findings of Fact, Conclusions of Law; Decision and Order (PL-BOA-2025-000124) KELLBERGFrom: Lactaoen, Kawehilani S To: Plannina Board of Appeals Cc: Miller, Shantel; Wan, Sylvia A; ckh(ahawaiilawyer.com; mmrn(dhawaiilawyer.com; Ahn. Michelle; Darrow, Jeffrey W.; Lev, Rachelle; Campbell. Jean K; Agustin, Noah Subject: Kellberg v. COH Ping Dept., PL-BOA-2025-0000124 Date: Tuesday, June 23, 2026 11:33:27 AM Attachments: Pr000sed FOF-COL: Order.pdf Aloha, Please find attached for further processing, Director of the Planning Department, County of Hawai' is Proposed Findings of Fact, Conclusions of Law, Decision and Order, Certificate of Service. MU"C cue with, AWLa. 5. T"Ia"n `eegot Tedmic& vv z to, 5i ctava 5ata -1"gaaoa, W p-u4 Ceww,at m Csuaeet VemetUCy. `r?ametti,, Vep,itch,CoVon W"uCowwt gectn,V. CanWbW, Vqm4CwW"aUovtCounac Hamwh E. Md&e, Uep-u4 Con ponati m C&mwt Co- Ut4 q Flavua+4 mice, o¢ the Conponatioa� Co"n"t 101 &qmni, 5t., GW&325 d,o, Ha+,ucU4 96720 Phone,. (808) 961-8251 1". (808) 961-8622 Email: VawehdAW6.factaafvt&hativaiicsuv�tiu.ae 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. 7 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 MARK KELLBERG, Appellant, Vs. COUNTY OF HAWAI`I STATE OF HAWAI`I JEFFREY W. DARROW, PLANNING DIRECTOR, COUNTY OF HAWAI' I, Appellee, and GLENN TAKEMOTO; ALLA PRUGLO; CHRISTIE GUASTELLA and JOHN PAYNE; FRANCES SANTA MARIA TRUST; MARY and DANIEL LOCK; MATTHEW JACKSON and DEBRA BRUNO; NIKOLY PRUGLO, Landowners. CASE NO. PL-BOA-2025-000124 PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER; CERTIFICATE OF SERVICE Hearing Date: June 12, 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 affirming the Director of the Planning 1 Department ("Planning Director"), County of Hawai`i's denial of Appellant Mark Kellberg's Petition for Declaratory Ruling, by its attorneys, Renee N.C. Schoen, Corporation Counsel, and Jean K. Campbell, Deputy Corporation Counsel, hereby submits its Proposed Findings of Fact, Conclusions of Law, Decision and Order, filed on June 23, 2026, as follows: Dated: Hilo, Hawaii, June 23, 2026. 01 JEFFFREY W. DARROW, PLANNING DIRECTOR, COUNTY OF HAWAI' I Appellee, /s/Jean K. Campbell 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 MARK KELLBERG, Appellant, VS. COUNTY OF HAWAI`I STATE OF HAWAI`I JEFFREY W. DARROW, PLANNING DIRECTOR, COUNTY OF HAWAI' I, Appellee, and GLENN TAKEMOTO; ALLA PRUGLO; CHRISTIE GUASTELLA and JOHN PAYNE; FRANCES SANTA MARIA TRUST; MARY and DANIEL LOCK; MATTHEW JACKSON and DEBRA BRUNO; NIKOLY PRUGLO, Landowners. CASE NO. PL-BOA-2025-000124 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 June 12, 2026, finds, concludes, and orders as follows: 1 FINDINGS OF FACT The Board makes the following Findings of Fact. To the extent that these findings of fact contain conclusions of law, they shall be so considered. Appellant Mark Kellberg ("Appellant") owns property adjacent to property which Appellant acknowledges was approved for subdivision in 2005. All appeal periods for challenges to the 2005 subdivision have lapsed. 2. Appellant has been involved in 20 years of disputes concerning the 2005 subdivision approval, including multiple lawsuits which Appellant confirmed resulted in the Hawaii Intermediate Court of Appeals and the Hawai'i Supreme Court declining to declare the 2005 subdivision invalid. 3. Appellant filed a Petition for Declaratory Ruling requesting that the Planning Director ("Director") issue a Declaratory Order addressing the application of various Hawaii County Code subdivision and zoning provisions to the lots comprising the 2005 subdivision. The Petition was received by the Director on May 28, 2025. 4. On July 18, 2025, the Director issued a denial of Appellant's Petition for Declaratory Ruling within the 60-day time period and included three written reasons for denial: a. The declaratory ruling process is not intended to provide a new opportunity to appeal long -settled determinations. b. Appellant is precluded from bringing the same claims in the Petition for Declaratory Ruling which were previously determined or dismissed by the courts. c. Appellant did not join the owners of the affected 2005 subdivision lots. 5. On August 14, 2025, Appellant timely filed a General Petition for Appeal of Decisions by Planning Director or Public Works Director to the Board of Appeals, County of N Hawai'i appealing the Director's denial. Appellant argued in his General Petition that the Director erred in denying Appellant's Petition for Declaratory Ruling for the following reasons: a. The Petition is not precluded because it presents different legal questions. b. The Petition complies with the purpose and requirements for declaratory rulings. c. Appellant is not required to join the subdivision lot owners and they were notified of the Petition. 6. On June 10, 2026, the Board heard oral arguments and presentation of evidence on the Appeal at the West Hawaii Civic Center. Clint Hamada, Esq. appeared on behalf of Appellant. Jean Campbell, Esq., Deputy Corporation Counsel, appeared on behalf of the Planning Director. No witnesses were called to testify for either party. 7. During the contested hearing, Appellant's counsel acknowledged that a building permit was issued by Department of Public Works allowing construction of a residence on one of the lots within the 2005 subdivision. Appellant did not appeal the building permit issued by the Department of Public Works 8. Appellant's counsel acknowledged that the Director followed the process required by Planning Department Rule 3-1 and clarified that Appellant takes issue with the written reasons for the Director's denial of the Petition for Declaratory Ruling. CONCLUSIONS OF LAW The Board makes the following Conclusions of Law. To the extent that these conclusions of law shall be determined to be findings of fact, they shall be deemed as such. Hawaii Revised Statues Section 91-8 allows that: Any interested person may petition an agency for a declaratory order as to the applicability of any statutory provision or of any rule or order of the agency. Each agency shall adopt rules prescribing the form of the petitions and the 3 procedure for their submission, consideration, and prompt disposition. Orders disposing of petitions in such cases shall have the same status as other agency orders. 2. Planning Department Rule 3-1(a) gives the Director the discretion to "issue a declaratory order as to the applicability of any statutory provision, ordinance, or any rule or order of the Director or the Department." Planning Department Rule 3-1(c) requires that if the Director is going to deny a petition for declaratory ruling, the Director shall respond within "sixty days after the submission of a petition for declaratory ruling," and must "deny the petition in writing, stating the reasons for such denial." that: 4. Hawai`i County Code ("HCC") Section 25-2-23 [Standard of Review], provides The board of appeals may affirm the decision of the director, or it may reverse or modify the decision or remand the decision with appropriate instructions if based upon the preponderance of evidence the board finds that: a. The director erred in its decision; or b. The decision violated this chapter or other applicable law; or c. The decision was arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion. 5. Board of Appeals Rules of Practice and Procedures, Rule 8-4(4) requires that a general petition for an appeal must include: A statement explaining: a. How the decision appealed from violates the law; or b. How the decision appealed from is clearly erroneous; or c. How the decision appealed from was arbitrary or capricious, or characterized by an abuse of discretion or clearly unwarranted exercise of discretion. 6. The Director complied with Planning Department Rule 3-1(c) by providing a written denial of Appellant's Petition for Declaratory Ruling with three stated reasons for the denial within sixty days of the submission of the Petition. M 7. The Board found that the Director's stated reason for denial, the failure to join the owners of lots within the 2005 subdivision, was a valid reason to deny the Petition for Declaratory Ruling. 8. Joinder of parties holding property interests in the land at issue protects those parties' interests and prevents duplicative inquiries and inconsistent responses. Kellberg v. Yuen, 135 Hawai 'i 236, 250, 349 P.3d 343, 357 (2015). 9. Appellant's Petition for Declaratory Ruling did not join the owners of lots within the 2005 subdivision and Planning Department Rule 3-1 provides no method for participation in the declaratory petition process by the lot owners. 10. Mandatory joinder in an appeal of the denial, pursuant to BOA Rule 1-3(15), is insufficient to satisfy the need for joinder at the point of filing of the Petition for Declaratory Ruling. 11. The Board found that the questions presented by the Appellant's Petition for Declaratory Ruling were too vague and unripe for determination by the Director. Appellant's Petition presented no specific factual circumstances and offered only broad hypothetical situations to which to apply the cited County Code provisions. 12. The declaratory ruling procedure is one "whereby an interested party could seek agency advice as to how a statute, agency rule, or order would apply to particular circumstances not yet determined." Citizens Against Reckless Development v. Zoning Board of Appeals of the City and County of Honolulu, 114 Hawaii 184, 197, 159 P.3d 143, 156 (2007) [emphasis added]. 13. BOA Rule 8-3 provides Appellant the opportunity to appeal issued permits or approvals for uses of the 2005 subdivision lots. 5 14. Appellant chose not to appeal a building permit issued by the Department of Public Works to the owner of one of the 2005 subdivision lots. 15. Appellant is not foreclosed from appealing future issued permits or approvals for uses of the 2005 subdivision lots. 16. Having considered the testimony, facts, evidence, and arguments provided, the Board unanimously ruled to affirm the Director's denial of Appellant's Petition for Declaratory Ruling, finding that in issuing the denial the Director did not violate the law, clearly err, was not arbitrary or capricious, nor did he abuse his discretion. 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: The Director's denial of Appellant's Petition for a Declaratory Ruling, appealed in case Mark Kellberg v. Jeffrey W. Darrow, Planning Director and Glenn Takemoto, Alla Pruglo, Christine Guastella and John Payne, Frances Santa Maria Trust, Mary and Daniel Lock, Matthew Jackson and Debra Bruno, and Nikoly Pruglo (PL-BOA-2025-000124), is AFFIRMED. Dated: , Hawai`i, , 2026. By: Cathy Lewis, Chair Board of Appeals, County of Hawaii State of Hawai'i Mark Kellberg v. Planning Director; CASE NO. PL-BOA-2025-000124; Findings of Fact, Conclusions of Law, Decision and Order 6 BEFORE THE BOARD OF APPEALS MARK KELLBERG, Appellant, Vs. COUNTY OF HAWAI`I STATE OF HAWAI'I JEFFREY W. DARROW, PLANNING DIRECTOR, COUNTY OF HAWAI`I, Appellee, and GLENN TAKEMOTO; ALLA PRUGLO; CHRISTIE GUASTELLA and JOHN PAYNE; FRANCES SANTA MARIA TRUST; MARY and DANIEL LOCK; MATTHEW JACKSON and DEBRA BRUNO; NIKOLY PRUGLO, Landowners. CASE NO. PL-BOA-2025-000124 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 23, 2026: Delivered via Electronic Mail (E-Mail and/or EPIC) MARK M. MURAKAMI CLINT K. HAMADA Attorney for Appellant GLENN TAKEMOTO ALLA PRUGLO CHRISTIE GUASTELLA and JOHN PAYNE FRANCES SANTA MARIA TRUST MARY and DANIEL LOCK MATTHEW JACKSON and DEBRA BRUNO NIKOLY PRUGLO 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 23, 2026. /s/ Jean K. Campbell JEAN K. CAMPBELL Deputy Corporation Counsel Mark Kellberg v. Planning Director; CASE NO. PL-BOA-2025-000124; Certificate of Service 01