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HomeMy WebLinkAboutCounty of Hawai`i Planning Director Jeffrey Darrow's Legal Memorandum; Certificate of Service.pdfRENEE 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.campbellkhawaiicountygov Attorneys for COUNTY OF HAWAPI PLANNING DIRECTOR BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI`I O' OMA PLANTATION COMMUNITY I CASE NO. PL-BOA-2026-000134 ASSOCIATION, vs. COUNTY OF HAWAI`I PLANNING DIRECTOR JEFFREY W. DARROW'S Appellant, LEGAL MEMORANDUM; CERTIFICATE OF SERVICE JEFFREY W. DARROW, PLANNING DIRECTOR, COUNTY OF HAWAI'I, Appellee, and FORTUNATO BOLO KAINOA PABRE, and KIMBERLY ALICIA PABRE, Landowners. Hearing Date: August 14, 2026 COUNTY OF HAWAI`I PLANNING DIRECTOR JEFFREY W. DARROW'S LEGAL MEMORANDUM COMES NOW, Appellee JEFFREY W. DARROW, PLANNING DIRECTOR, COUNTY OF HAWAPI ("Director"), by and through his attorney, Jean K. Campbell, Deputy Corporation Counsel, hereby submits this Legal Memorandum in the above -captioned matter. This pleading is submitted pursuant to the Scheduling Order dated July 16, 2026. The Director respectfully requests that this Board of Appeals ("Board") affirm as correct the Director's closure letter dated May 13, 2026, applying the correct 30-foot side yard setback for chicken cages in the Family Agricultural FA-2a zoning district. Backaound . Landowners, Fortunato Bolo Kainoa Pabre and Kimberly Alicia Pabre, own and reside on property located at 73-1415 Kukuna Street, Kailua-Kona, Hawaii, also identified by Tax Map Key Parcel No. (3) 7-3-007-067 ("Property"). See Record on Appeal ("ROA") at Page 11. The Property is zoned Family Agricultural FA-2a, with a minimum lot size of 2 acres and, being slightly larger than two acres in size, complies with its zoning. See ROA at Page 11. The Property is situated in the State land use agricultural district. See ROA at Page 36. Following the receipt of complaints from neighbors regarding the keeping of roosters or chickens on the Property within 75 feet of the Property boundary, the Director sent a Courtesy Letter to Landowners on December 19, 2025, informing them of the allegations and requesting a response. See ROA at Pages 1-11. A Second Courtesy Letter was sent on January 14, 2026. See ROA at Page 17. The Landowners communicated with the Planning Department staff and provided photographic evidence of the location of the coops. See ROA at Page 31. On February 26, 2026, the Director issued a Closure Letter following the review of before and after photographs and having determined that the chicken coops had been located out of the required 30-foot side yard setbacks. See ROA at Page 31. 2 On April 1, 2026, the Director issued a Notice of Violation and Order ("NOVO") alleging that Hawai'i County Code § 25-5-66 Minimum Yards (the 30-foot requirement) had been violated and requiring a site inspection. See ROA at Page 36-38. On May 11, 2026, Planning Department staff conducted a compliance inspection at the Property and verified that the cages had been relocated towards the center of the Property, approximately 52 feet from the Property boundary, exceeding the required 30-foot setback. See ROA at Pages 45-46. On May 13, 2026, the Director issued a Closure letter based on the inspection determining that the cages were located outside the applicable 30-foot setback, and therefore the violation had been corrected. See ROA at Pages 45-46. On June 3, 2026, H. Maxwell Kopper, Esq., and Sara M. Nakayama, Esq., on behalf of the O'oma Plantation Community Association, timely filed a General Petition for Appeal of Decisions by Planning Director or Public Works Director, appealing the Director's issuance of the Closure Letter. See ROA at Pages 49-50. IL Statement of Position Rule 8-4 of the Board of Appeals' Rules of Practice and Procedure ("Rules") requires that a petition for appeal 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. This Appeal alleges that the Director's determination of the applicable section of the Hawaii County Code is erroneous because it applies the incorrect provision of the zoning code and requests that the Director instead defer to a determination made by a Planning Department staff member. The party challenging the Director's action bears the burden of proof, including 3 the burden of producing evidence and burden of persuasion. See Hawaii Revised Statutes § 91- 10(5); BOA Rules § 8-11(g). In this instance, the Director reasonably exercised the authority given him by the Hawai'i County Charter to enforce the zoning code in a manner consistent with the Hawai'i State Constitution, State Land Use Law and the facts of the case. The Director's issuance of the Closure Letter was entirely legal, reasonable, and well within his discretion and Appellant has produced no evidence otherwise. A. The Director is the County Authority on the Zoning Code Section 6-7.2(b) of the Charter establishes the Director as the "chief planning officer of the [C]ounty" and the administrative head of the Planning Department. Charter § 6-7.2(b)(5) directs the Director to "administer the subdivision and zoning codes and regulations adopted thereunder" making the Director the County expert in interpretation and enforcement of the zoning code. In the event that situations arise requiring interpretation of the zoning code, including the evaluation of potential conflicts within the code and interpretations about the applicability of the code to specific facts presented, the Charter establishes that the Director is the appropriate authority to make necessary interpretations of the zoning code. In this instance, two potentially conflicting provisions of the zoning code could be applied to the Property: Hawai'i County Code ("HCC") § 25-5-62(a)(15) allows as a permitted use in the Family Agricultural district "livestock, grazing; provided that any feed or water area, salt lick, corral, run, barn, shed, stable, house, hutch, or other enclosure for the keeping of any permitted animals shall be located at least seventy-five feet from any lot line." [Emphasis added] M In contrast, HCC § 25-5-66(b) establishes as the minimum yard area "[i]n the FA district, accessory buildings and enclosures (other than fences under eight feet high) for the shelter and confinement of any livestock shall be at least thirty feet from the side and rear property lines." [Emphasis added] Both provisions expressly address the required setback for livestock enclosures, one requiring 75 feet and one requiring 30 feet, resulting in a conflict. Pursuant to the Hawaii County Charter, the Director is the appropriate authority to evaluate, interpret and enforce the zoning code, including in instances of conflicting provisions such as this. B. The Director's Evaluations in Enforcement of the Zoning Code 1. Protection of Agriculture is Well Established State Policy The Hawaii Constitution, Article XI, § 3 provides that "[t]he State shall conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands." In furtherance of this mandate, the Hawaii State Legislature has declared "that the people of Hawaii have a substantial interest in the health and sustainability of agriculture as an industry in the State. There is a compelling state interest in conserving the State's agricultural land resource base and assuring the long-term availability of agricultural lands for agricultural use to achieve the purposes o£ (1) Conserving and protecting agricultural lands; (2) Promoting diversified agriculture; (3) Increasing agricultural self-sufficiency; and (4) Assuring the availability of agriculturally suitable lands, pursuant to article XI, section 3, of the Hawaii State Constitution." Hawaii Revised Statutes ("HRS") § 205-41. 5 The Hawaii Supreme Court ("HISC") has similarly opined that "[t]he `overarching purpose' of HRS chapter 205 is to `protect and conserve natural resources and foster intelligent, effective, and orderly land allocation and development.' Relevant here, HRS chapter 205 is intended in part to protect agricultural land for agricultural use." Ho'omoana Foundation v. Land Use Commission, 152 Haw. 337, 345, 526 P.3d 314, 322 (2023) [internal citations omitted; emphasis added]. 2. The Purpose of the County's Family -Agricultural Zoning District is Agriculture In evaluating this matter, the Director also considered the purpose of the FA district, set forth in HCC § 25-5-60: The FA (family agricultural) district provides for a blend of small-scale agricultural operations associated with residential activities and which may be characterized by farm estates, small acreage farms, or subsistence lots. The FA district is intended to be in areas designated as being within the State land use agricultural district, where public services and infrastructure are appropriate to support the very low density residential needs of a rural community and where substantial number of parcels are less then five acres in size, and where a mix of uses will not conflict with or be detrimental to existing agricultural uses in the surrounding area. [Emphasis added] Consistent with HCC § 25-5-60, the Property is located in the State land use agricultural district which expressly allows for farming activities and uses related to animal husbandry and game propagation and the construction and use of farm dwellings, which are single-family dwellings supporting agricultural activity. See HRS § 205-2 & § 205-4.5. 3. A Smaller Setback Area Is More Protective of Agricultural Uses Applying a smaller 30-foot setback area is more protective of agricultural uses because it allows more physical area to conduct agriculture within the small lots anticipated to exist within FA zoning areas. Allowing more physical area to conduct agricultural activities is more n protective of the agricultural purposes of the zoning district. Application of the 75-foot setback found in HCC § 25-5-62(a)(15) would reduce the potential land area available to agricultural uses and therefore is less protective of the agricultural use of this agriculturally zoned property. Consistent with the constitutional mandate promoting agriculture in the State land use agricultural district and the intent to support and protect agricultural uses in the County FA district, it is within the Director's authority and reasonable discretion to enforce the smaller 30- foot setback to allow for a larger physical space for agricultural uses of FA district properties. 4. The Facts Allow the Director to Determine that Only HCC § 25-5-66(b) (the 30-foot setback) Applies to this Situation This case involves the raising of poultry in enclosed coops. See ROA at Page 31. HCC § 25-5-62(a)(15) expressly allows "livestock, grazing" as a permitted use in the FA district, subject to a 75-foot setback for various constructed improvements. The Merriam -Webster Dictionary defines grazing as: to feed on growing herbage, attached algae, or phytoplankton or to crop and eat in a field. In the instant case, the poultry are not grazing but are rather maintained and fed in enclosed coops. Because no grazing is taking place on this property, it is reasonable for the Director to determine that HCC § 25-5-62(a)(15), which governs livestock grazing, is inapplicable to the current case. In light of the potential for conflict and confusion, the Director intends to propose to the County Council that the zoning code be amended to eliminate the conflict. Until the County Council changes the zoning code to regarding the appropriate setback for livestock enclosures, the Director remains the appropriate authority to determine the applicability of and to enforce the zoning code. 7 C. This Board's Authority and Required Findings Rule 8-15 allows that this Board may reverse, modify or remand a decision of the Director only upon a finding that the Director erred in his decision, the decision violated the law, or the decision was arbitrary and capricious or characterized by an abuse of discretion or clearly unwarranted abuse of discretion. In this case, the Director carefully exercised the discretion afforded to him by the Hawaii County Charter. The Director has two reasonable bases to determine which of two conflicting provisions of the zoning code should be applied: (1) the 30- foot setback is consistent with the constitutional mandate to protect agricultural uses and promotes the agricultural purpose of the FA zoning district and (2) because no livestock grazing is taking place on the subject property, HCC § 25-5-62(a)(15), which governs livestock grazing, is inapplicable. The Director's decision should be affirmed. III. Conclusion The Director respectfully requests that this Board affirm the Director's issuance of the Closure Letter. The Director's issuance of the Closure Letter did not violate the law, was not clearly erroneous, and was not arbitrary or capricious, characterized by an abuse of discretion or a clearly warranted exercise of discretion and must be upheld. Dated: Hilo, Hawaii, August 7, 2026. COUNTY OF HAWAI`I PLANNING DIRECTOR By: ls/ Jean K. Campbell JEAN K. CAMPBELL Deputy Corporation Counsel Its Attorney BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI`I O'OMA PLANTATION COMMUNITY ASSOCIATION, Appellant, VS. JEFFREY W. DARROW, PLANNING DIRECTOR, COUNTY OF HAWAI'I, Appellee, and FORTUNATO BOLO KAINOA PABRE, and KIMBERLY ALICIA PABRE, Landowners. CASE NO. PL-BOA-2026-000134 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 August 7, 2026: Delivered via Electronic Mail (E-Mail and/or EPIC) H. MAXWELL KOPPER SARA M. NAKAYAMA Attorneys for Appellant FORTUNATO BOLO KAINOA PABRE, and KIMBERLY ALICIA PABRE Landowners SYLVIA WAN, ESQ. Deputy Corporation Counsel County of Hawaii 101 Aupuni Street, Suite 325 Hilo, HI 96720 Attorney for Board ofAppeals BOARD OF APPEALS 101 Pauahi Street, Suite 3 Hilo, HI 96720 Board of Appeals Dated: Hilo, Hawaii, August 7, 2026. ls/ Jean K. Campbell JEAN K. CAMPBELL Deputy Corporation Counsel Woma Plantation Community Association a Jeffrey W Darrow, Planning Director; County of Hawai 'i and Fortunato Bolo Kainoa Pabre and Kimberly Alicia Pabre; PL- BOA-2026-000134 N