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Home My WebLink About2026-09-24 Pacific Resource Partnership Petition for Standing in a CCH (PL-SMA-2026-000097)NAME: PETITION FOR STANDING IN A CONTESTED CASE HEARING (Page 1 of 2) Pacific Resource Partnership c/o Abigail M. Holden, Esq., Andrew K. Recktenwald and Christine A. Terada, Esq. ADDRESS: cox Fricke LLP, soo Bethel Street, Suite 600, Honolulu, HI 96813 PHONE NO.: Tel: (808) 585-9440 / Facsimile fSOS) 275-3276 APPLICANT/ DOCICET NO.: PL-SMA-2026-000097 A. Is your interest in this matter clearly distinguishable from tliat of the general public? Yes x No If the answer is "yes", please explain: Please see discussion in attached Petition to Intervene. If the answer is "no", please explain how the proposed action will nevertheless cause you achial or threatened injury: Please see discussion in attached Petition to Intervene. B. c. Are you a government agency whose jurisdiction includes the land involved in the subject request? Yes No x If the answer is "yes", please explain the naft.ire of the agency's jurisdiction: Do you lawfully reside on or have some property interest in the land involved in the subject request? Yes No x If the answer is "yes", please explain: Appendix A D. PETITION FOR STANDING IN A CONTESTED CASE HEARING (Page 2 of 2) Are you a person or persons descended from native Hawaiians who inhabited the Hawaiian Islands prior to 1778, who practiced those rights which were customarily and traditionally exercised for subsistence, cultiiral, or religious purposes? Yes No x If the answer is "yes", please submit any genealogical evidence and historical evidence showing the exercise of those rights to support your statement: ^^^/^- Petrtl^ner's SignatLire STATE OF HAWAH COUNTY OF HAWAII ) SS.) On this -^ ^ day of •J-&/:?-^^~>^i-c/^ 20_5^, before me personally appeared l^fCC^/~l<S-^> / <- / /^// ^ ^?^ y to me known to be the person described in and who executed .;!i;U;the fQregoing ,^nstniment, and ackiiovvl edged that he executed the same as his free act and deed.Ag-^^e"./v^y°^"^"::f-9'.,\^il? '///i'i!m'.^ if ^^^^ y. (y>7^s^>^^ Notary Public, State of Hawaii My commission expires: M&r-^/^ '"7. 2 Doc. Date: ^/?^^?^-^_ #Pages:_l. Notary Name: Patricia K. Mukai First Circuit Doc. Description:^.l7li^ri_^r^^Z^^ //3 0 ^r77^r/^<^ ^<?^^ /T^£/-//? f <?//?<//6c7-2^ ^\\ww1"/^^€S^K:.4&^••••—•••'.^'^ NOTARY CERTIFICATION Date lf%t^i ^^•^y '%W- ,|!11'*"^^v COX FRICKE LLP A LIMITED LIABILITY LAW PARTNERSHIP LLP ABIGAIL M. HOLDEN 8793-0 aholden@cfhawaii.com ANDREW K. RECKTENWALD 10223-0 arecktenwald@cfhawaii.com CHRISTINE A. TERADA 10004-0 cterada@cfhawaii.com 800 Bethel Street, Suite 600 Honolulu, Hawai‘i 96813 Telephone: (808) 585-9440 Facsimile: (808) 275-3276 Attorneys for PACIFIC RESOURCE PARTNERSHIP BEFORE THE WINDWARD PLANNING COMMISSION COUNTY OF HAWAIʻI STATE OF HAWAIʻI In the Matter of the Application of BHG ALOHA LLC DBA WILD GINGER HOTEL (PL-SMA-2026-000097) Application for a Special Management Area Use Permit to construct and operate a new two- story, thirty-room hotel complex that includes a pool, cafe, lounge area and related improvements on 69,485 square-foot parcel within the Special Management Area. The subject parcels are located along the makai side of Puueo Street, approximately 370 feet north of its intersection with Ohai Street and Kou Lane, and immediately south of Hilo Val Hala Apartment complex, Puueo, South Hilo, Hawaii, TMK: (3) 2-6-002:008 and 012. SPECIAL MANAGEMENT AREA USE PERMIT: PL-SMA-2026-000097 TMK: (3) 2-6-002:008 and 012 PACIFIC RESOURCE PARTNERSHIP’S PETITION TO INTERVENE; DECLARATION OF ABIGAIL M. HOLDEN; EXHIBITS 1 - 3; DECLARATION OF NATHANIEL KINNEY; CERTIFICATE OF SERVICE PUBLIC HEARING DATE: DATE: October 1, 2026 TIME: 9:00 a.m. LOCATION: Hawaii County Council Chambers in Hilo 25 Aupuni Street Hilo, Hawaiʻi 96720 PACIFIC RESOURCE PARTNERSHIP’S PETITION TO INTERVENE Pacific Resource Partnership (“PRP”), a market recovery trust fund doing business in Hawai‘i whose stated mission is to, among other things, guide the community toward a stronger, more sustainable Hawai‘i in a way that promotes a vibrant economy, preserves Hawaii’s environment, creates jobs and enhances the quality of life for all residents of Hawai‘i, hereby seeks to intervene in the above-captioned proceeding pursuant to Rule 4-6 of the County of Hawaiʻi Planning Commission’s (“Commission”) Rules of Practice and Procedure (“Commission Rules”) and, accordingly, obtain status as a party in a Contested Case proceeding. As set forth below, PRP is entitled to intervene as of right under Commission Rule 4-6(a) and, therefore, should be permitted to intervene in the above-captioned proceeding. I. INTRODUCTION PRP submits this Petition to Intervene (“Petition”) in response to BHG Aloha LLC dba Wild Ginger Hotel’s (“Applicant”) July 28, 2026 Special Management Area Use Permit Application: PL-SMA-2026-000097 (“Application”), which is scheduled for hearing before the Commission on October 1, 2026, at 9:00 a.m. (Exhibit 1 to September 24, 2026 Declaration of Abigail M. Holden (“Holden Decl.”), Notice of Public Hearing.) The Application requests to construct a two story, 30-room hotel consisting of five separate building components on the site of the former Wild Ginger Hotel, which was destroyed by fire in October 2025 (the “Project”). (Application at 1.) The subject property consists of two parcels identified as TMKs 2-6-002:008 and 012 (collectively, the “Subject Parcels”). According to the Application, the Subject Parcels were “developed as plantation housing for sugar workers between 1909 and 1911, and later converted into a hotel in the late 1930s[.]” (Id. at 6.) 2 Applicant acknowledges that the Subject Parcels are situated within the Special Management Area (“SMA”) “due to its proximity to the coastal area of Hilo” such that “[a]n SMA Use Permit is required from the Windward Planning Commission in order to support the proposed development of the new Wild Ginger Hotel complex.” (Id. at 12.) Applicant further acknowledges that the Project is inconsistent with the Hawaii County General Plan 2045, adopted in June 2026 (the “General Plan”).1 Specifically, the Application states that “[t]he General Plan Land Use Pattern Allocation Guide (LUPAG) map suggests this area of Puʻueo for Medium Density Urban uses that could support village and neighborhood commercial, light service industrial, and single-family and multiple-family residential uses and related functions including TODs or Traditional Neighborhood Development (TND).” (Id. at 9-10.) As such, the Application concedes that the “Project Site’s current Resort-Hotel (V-.75) zoning is not deemed compatible with the current GPLU Map designation for Medium Density Urban use[.]” (Id. at 10 (emphasis added).) Additionally, per the Application, the Subject Parcels are located within a designated historic district. Specifically, the Application states that the Subject Parcels are “located within the boundaries of the historic Puʻueo District (State Inventory of Historic Places [SIHP] #50-10-35-07442 [)], where historical records indicate that the Puʻueo area functioned as a residential community dating back to the late 18th century, with multiple residences and associated uses present in the early 1900s.” (Id. at 6.) In light of these issues, the Application triggers not one but multiple independent categories of action enumerated in Hawaiʻi Revised Statutes (“HRS”) § 343-5(a) for which an environmental assessment (“EA”) is required. That statute specifies that “[e]xcept as otherwise 1 Available at https://www.planning.hawaiicounty.gov/general-plan/general-plan/general-plan- 2045#docaccess-80b20aa8b42f43357367faa4824d274e (last accessed September 22, 2026). 3 provided, an environmental assessment shall be required for actions that[,]” inter alia, “[p]ropose any use within any historic site as designated in the National Register or Hawaii Register as provided for in the Historic Preservation Act of 1966, Public Law 89-665, or chapter 6E[,]” or which “[p]ropose any amendments to existing county general plans where the amendment would result in designations other than agriculture, conservation, or preservation, except actions proposing any new county general plan or amendments to any existing county general plan initiated by a county[.]” (HRS § 343-5(a)(4) and (6).) Both of these apply here given Applicant’s admission that the Subject Parcels are located in a historic district, and that the proposed Project is incompatible with, and therefore requires a deviation from, the General Plan. The statute further provides that “[w]henever an applicant proposes an action specified by subsection (a) that requires approval of an agency . . . the agency initially receiving and agreeing to process the request for approval shall require the applicant to prepare an environmental assessment of the proposed action at the earliest practicable time to determine whether an environmental impact statement shall be required[.]” (HRS § 343-5(e) (emphasis added).) Based on PRP’s review of the publicly available documents relating to the Application, it does not appear that Applicant has submitted an EA (either in draft or final form) in connection with its proposed Project, as required by HRS § 343-5. The Application attaches a June 2026 “Biological Reconnaissance Survey” (“BRS”) prepared by Geometrician Associates LLC, which was apparently commissioned by Applicant. (BRS, Exhibit B to Application at 1 (stating that the report was “requested” by the Managing Member of the Wild Ginger Hotel).) Applicant does not appear to claim that the BRS satisfies the requirement that the approving agency “shall require the applicant to prepare” an EA, and indeed the BRS omits much of the information required of a draft EA under Hawaiʻi Administrative Rules (“HAR”) § 11-200.1-18, including, 4 but not limited to, “[i]dentification of agencies, citizen groups, and individuals consulted in preparing the draft EA[,]” and “[w]ritten comments, if any, and responses to the comments received, if any[.]” HAR § 11-200.1-18(4), (10); see also BRS, Exhibit B to Application, passim. The Application therefore effectively puts the cart before the horse, seeking approval for a major construction Project that conflicts with the General Plan, within the historic district, without undergoing the environmental scrutiny the Legislature prescribed for such matters. These issues are crucial given the manifold environmental concerns raised by the Application. As discussed in detail infra, these concerns include: (1) The Application and its exhibits concede that the endangered Hawaiian hoary bat (Laiurus ninereus semotus) is “presumed” to be in the area, and that the Subject Parcels may also be used by the Hawaiian goose or nēnē (Branta sandvicensis) and the endemic Hawaiian hawk (Buteo solitarius). The potential for the Project to disturb or harm Hawaii’s treasured protected birds and mammals requires that the Project be closely scrutinized and, indeed, raises the possibility that Applicant may require an Incidental Take Permit (“ITP”) pursuant to the Endangered Species Act (16 U.S.C. § 1539(a)(1)(B)) (“ESA”). (2) Similarly, the Application and its exhibits concede that the Project will involve the destruction of native plants, and notes that a live specimen of ʻōhiʻa (Metrosideros polymorpha), Hawaii’s iconic endemic forest tree, is present on the Subject Parcels. Although the Application posits that this would not affect the general status of Hawaii’s native plant species or alter the overall ecosystem, the Commission should not take Applicant’s word for this but, rather, should allow for a robust evaluation of the impact of the Project on Hawaii’s native flora. 5 (3) The potential for storm water runoff associated with Applicant’s Project raises environmental concerns, including the possible requirement for Applicant to obtain a National Pollutant Discharge Elimination System (“NPDES”) General Permit authorizing discharges of storm water associated with its planned construction activities. The Application merely provides vague assurances that it will implement storm water runoff controls. Given that the Subject Parcels are situated within the SMA, it is vital that Applicant rigorously comply with all requirements relating to the storm water runoff, and appropriate due diligence must be undertaken to ensure that it does so. For these reasons, as discussed more fully below, if allowed to proceed, this Project will directly and negatively impact the interests of PRP and its members, and of the broader community of Hawai‘i Island, in environmentally sound and responsible development. As such, PRP is entitled to intervene in this Contested Case.2 II. PRP IS ENTITLED TO INTERVENE Rule 4-6 of the Commission Rules provides that any person seeking to intervene as a party “shall file a written request on a form approved by the Planning Director”3 and further provides that, “[u]pon receipt of a written request to intervene, the Commission, at the first meeting on the matter, shall hold a hearing on the written request” and that “[t]he petitioner shall 2 On September 24, 2026, the date of the filing of this Petition, the County of Hawai‘i Planning Department (“Planning Department”) posted its Background Report and Recommendation to the County of Hawai‘i Electronic Processing and Information Center (“EPIC”) website, wherein the Planning Department recommended that the Application be granted. Given that the Background Report and Recommendation were posted to EPIC on the date this Petition is due, PRP is unable to respond to the Background Report and Recommendation on a point-by-point basis herein. However, the Background Report and Recommendation largely accept the arguments set forth in the Application and, accordingly, PRP respectfully disagrees with the Planning Department’s recommendation to grant the Application for the same reasons PRP seeks to intervene as discussed herein. 3 A Petition for Standing in a Contested Case Hearing form, with a notarized signature by PRP, is attached hereto as Exhibit 2. 6 be admitted as a party if it can demonstrate that[,]” inter alia, “[h]is or her interest is clearly distinguishable from that of the general public” or, alternatively, that “even though they do not have an interest different than the public generally, that the proposed action will cause them actual or threatened injury in fact.” As discussed infra, PRP has a right to intervene under each of these provisions. A. PRP Has a Right to Intervene Because PRP Has an Interest in this Matter That Is Clearly Distinguishable from That of the General Public PRP has organizational and associational standing to intervene in this matter in that its interests, as well as the interests of its members, will be directly and immediately impacted by the Application, which proposes to undertake a major hotel construction Project in the SMA that the Applicant concedes is incompatible with the General Plan, without completing an EA. In this regard, the interests of PRP and its members are distinguishable from the interests of the general public. PRP is a market recovery trust fund which represents approximately 6,000 men and women union carpenters and 250 large and small contractors throughout the State of Hawai‘i, including approximately 600 union members on Hawai‘i Island. (Declaration of Nathaniel Kinney (“Kinney Decl.”) at ¶ 2.) PRP has expertise in, and is committed to, guiding the community toward a stronger, more sustainable Hawai‘i in a way that promotes a vibrant economy, preserves a healthy environment, creates jobs and enhances the quality of life for all residents of Hawai‘i. (Kinney Decl. at ¶ 3.) PRP believes that creating a stronger, more sustainable Hawai‘i requires a broad commitment from all – government officials, businesspeople, educators, environmentalists, parents and concerned citizens from all islands and all walks of life – to work together toward this common goal and make a difference for generations to come. (Id.) This involves, among other things, ensuring that development 7 projects reflect responsible, and environmentally sound, planning and execution. (Id.) Indeed, by building responsibly, PRP seeks to preserve the island lifestyle we all treasure. (Id.) The right to a clean and healthful environment, which PRP seeks to enforce by intervening in this matter, is a constitutional principle in Hawai‘i. Article XI, Section 9 of the Hawai‘i State Constitution provides: Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law. The Hawai‘i Supreme Court has held that HRS Chapter 205A, which governs the special management areas, “is a law relating to the conservation, protection and enhancement of natural resources, and thus falls within the scope [of] the enforcement right established by article XI, section 9.” Cnty. of Hawaii v. Ala Loop Homeowners, 123 Hawai‘i 391, 409, 235 P.3d 1103, 1121 (2010), abrogated on other grounds by Tax Found. of Hawai‘i v. State, 144 Hawai‘i 175, 439 P.3d 127 (2019); see also In re Application of Maui Elec. Co., Ltd., 141 Hawai‘i 249, 269, 408 P.3d 1, 21 (2017) (holding that petitioners have a right to intervene where they have established a “protected property interest in a clean and healthful environment”); Protect & Pres. Kahoma Ahupua‘a Ass’n v. Maui Plan. Comm’n, 149 Hawai‘i 304, 311, 489 P.3d 408, 415 (2021), as amended (June 17, 2021), reconsideration denied, No. SCWC-15-0000478, 2021 WL 2828030 (Haw. July 7, 2021) (same). “[W]here a source of state law—such as article XI, section 9—grants any party a substantive right to a benefit—such as a clean and healthful environment—that party gains a legitimate entitlement to that benefit as defined by state law, and a property interest protected by due process is created.” In re Application of Maui Elec. Co., Ltd., 141 Hawai‘i at 264, 408 P.3d 8 at 16. Thus, PRP’s right to a clean and healthful environment, which it is asserting here on behalf of its members, is a substantive right guaranteed by the Hawai‘i Constitution. PRP has organizational standing to intervene because organizations, like individuals, have standing where they satisfy the following questions in the affirmative: “(1) has the plaintiff suffered an actual or threatened injury . . . (2) is the injury fairly traceable to the defendant’s actions; and (3) would a favorable decision likely provide relief for plaintiff’s injury.” Sierra Club v. Dep’t of Transp., 115 Hawai‘i 299, 319, 167 P.3d 292, 312 (2007), as corrected (Oct. 10, 2007) (brackets omitted). Additionally, as noted above, Commission Rule 4- 6 confers standing where, inter alia, the proposed intervenor’s interest is “clearly distinguishable from that of the general public.” PRP satisfies all three prongs of the Sierra Club test. The interests of PRP and its members in a clean and healthful environment are affected by the Application inasmuch as it would allow Applicant to proceed with the Project while avoiding the environmental scrutiny that would come with preparing an EA, and despite significant environmental concerns, thereby directly undercutting PRP’s efforts to advocate for a stronger, more sustainable Hawai‘i through responsible and environmentally sound development. On the other hand, requiring a deeper look at Applicant’s proposed Project would be appropriate to the seriousness and diligence required by the Legislature with regard to the SMA. Indeed, PRP asserts that allowing the Applicant to proceed with its Project without requiring an EA directly undercuts PRP’s interests as stated above and incentivizes irresponsible and environmentally unsound development – harm that is directly traceable to Applicant’s actions. Further, a decision by the Commission to deny the Application would vindicate PRP and its members’ interests in this regard. By contrast, if 9 granted, this Project will directly and significantly undermine PRP’s efforts to advocate for responsible and environmentally sound development. Additionally, organizations such as PRP have associational standing to sue on behalf of their members, even though they have not themselves been injured, when: “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Sierra Club, 115 Hawai‘i at 334, 167 P.3d at 327. PRP easily satisfies the requirements to sue on behalf of its members because (1) its members would have standing on their own regarding such issues as responsible development and environmental concerns, (2) PRP seeks to advocate for responsible development as part of its mission, and (3) the participation of individual members is not necessary. Accordingly, PRP has standing to intervene in this Contested Case proceeding. Pub. Access Shoreline Hawai‘i by Rothstein v. Hawai‘i Cnty. Plan. Comm’n by Fujimoto, 79 Hawai‘i 425, 434, 903 P.2d 1246, 1255 (1995) (explaining that the “restrictive interpretation of standing requirements is not entitled to deference”) (quotation marks and citations omitted). 4 PRP and its members – as critical members of the local development sector – have an interest in development and land use that comprehensively accounts for the local economy and environment by including community members in the administrative process. 4 PRP notes in this regard that, in a recent decision in another contested case, the Circuit Court of the Fifth Circuit concluded, in Findings of Fact and Conclusions of Law issued on August 4, 2025, that PRP had standing to pursue an appeal arising from the use of land within the special management area for a wooden truss manufacturing facility, finding, inter alia, that “PRP and its members also have an interest in development and land use projects that comprehensively account for the local economy and environment by including community members in the permitting process.” (Exhibit 3 to Holden Decl., Findings of Fact, Conclusions of Law and Order in Case No. 5CCV-24-0000068, Circuit Court of the Fifth Circuit, State of Hawai‘i, at ¶¶ 37-52.) 10 The General Plan emphasizes the importance of these principles, stating that “[t]he well-being of our island’s residents relies on the availability of meaningful and well-paying jobs . . . and a healthy environment for generations to come.” (General Plan at 192.) PRP seeks intervention to vindicate these specific policy concerns, which are at the core of its mission, and which distinguish the interests of PRP and its members from those of the general public with respect to this matter. Because PRP meets the requirements for intervention under the Commission Rules, inasmuch as PRP’s interests (and those of its members) will be directly and immediately impacted by the approval of the Application in a manner that is distinguishable from the general public, the Commission should grant PRP’s Petition and admit PRP as a Party-Intervenor in a Contested Case in opposition to the Application. B. Alternatively, PRP Has Associational Standing to Intervene on Behalf of Its Members, Who Stand to Suffer an Actual Injury If the Application is Granted As noted above, a party also has standing to intervene under Commission Rule 4-6 even though they do not have an interest different than the public generally, if the proposed action will cause them actual or threatened injury in fact. Importantly in this regard, organizations such as PRP have associational standing to sue on behalf of their members, even though they have not themselves been injured, when: “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Sierra Club, 115 Hawai‘i at 334, 167 P.3d at 327. 11 PRP satisfies the requirements to sue on behalf of its members because (1) its members, as citizens of the broader Hawai‘i Island community, would have standing on their own to raise issues relating to environmental issues and responsible development concerns, (2) PRP seeks to advocate for environmentally sound and responsible development as part of its mission, and (3) the participation of individual members is not necessary. Accordingly, even if the Commission does not find that PRP has an interest that is distinguishable from that of the general public, PRP nevertheless has standing to intervene in this Contested Case proceeding to vindicate the interests of its members. Pub. Access Shoreline Hawai‘i by Rothstein v. Hawai‘i Cnty. Plan. Comm’n by Fujimoto, 79 Hawai‘i 425, 434, 903 P.2d 1246, 1255 (1995) (explaining that the “restrictive interpretation of standing requirements is not entitled to deference”) (quotation marks and citations omitted). The Application on its face raises significant questions that warrant additional scrutiny as to whether the Project aligns with the needs of the community. These include, without limitation: 1) As stated above, the Application admits that its proposed use of the Subject Parcels for a hotel development is “not deemed compatible with the current GPLU Map designation for Medium Density Urban use.” (Application at 10.) The Applicant’s response to the direct conflict between the Project and the General Plan is to rely on a statement in the 1975 Hilo Community Development Plan (“HCDP”) that “future hotel development should take place in the Waiakea Peninsula, Waiakea Pond, Downtown and Puueo areas[,]” which Applicant frames as a “recommend[ation] that the Project Site retain its existing Resort-Hotel zoning designation[.]” (Application at 15.) Setting aside Applicant’s argumentative characterization of the HCDP, Applicant’s reliance on the HCDP, which predates the current General Plan by over 12 50 years, to advocate for the approval of a Project that directly contravenes the General Plan, merits further scrutiny. 2) Applicant’s own BRS raises environmental concerns that must be fully assessed and addressed before the Project can be allowed to proceed. For example, the survey acknowledges that the Subject Parcels “may also be utilized by the endemic Hawaiian hawk (Buteo solitarius), listed by the State as endangered[,]” and that the Subject Parcels fall within the hawk’s known elevational and habitat range on Hawai‘i Island. (BRS, Exhibit B to Application, at 3.) Although the BRS speculates that the Subject Parcels are “likely far too urban to have hawk nests[,]” it stops well short of ruling out the presence of endangered Hawaiian hawks on the Subject Parcels, and concedes that “[h]awks are vulnerable to disturbance during the nesting season from March 1 to September 30 of each year.” (Id.) The BRS further states that “[t]here is also a very low potential for the Hawaiian goose or nēnē (Branta sandvicensis) to land and especially nest on the property.” (Id.) Additionally, the BRS acknowledges that “the endangered Hawaiian hoary bat (Laiurus ninereus semotus) . . . is presumed to be present in the area[.]” (Id. at 4.) Indeed, the potential for the Project to disturb, harass or even harm endangered species raises the possibility that Applicant may require an ITP pursuant to section 10(a)(1)(B) of the ESA. In light of these critical issues, it is imperative that the Application be closely scrutinized to fully assess the potential impact of the proposed Project on Hawaii’s treasured endangered native birds and mammals. 3) Similarly, the BRS admits that the Project will involve the destruction of certain native plants. Specifically, the BRS confirms that a live, healthy specimen of ʻōhiʻa (Metrosideros polymorpha), Hawaiʻi’s iconic endemic forest tree, is present on the Subject Parcels. (BRS, Exhibit B to Application, at 2.) The BRS acknowledges therefore that 13 “[c]learing of the property would destroy a few individuals of native plants[,]” but states, dismissively, that this would “have no effect on their general status nor alter a sensitive native ecosystem.” (Id. at 5.) Applicant’s conclusory dismissal in this regard merely seeks to substitute the Applicant’s own risk tolerance for the analysis of alternatives, avoidance, and mitigation that the EA/EIS process is designed to require. The Commission should not accept Applicant’s self- serving assurances in this regard, and should admit PRP as an intervenor so that this issue may be fully explored. 4) As noted above, the Application states that “[t]he project area is also located within the boundaries of the historic Puʻueo District (State Inventory of Historic Places [SIHP] #50-10-35-07442 [).]” (Application at 6.) Despite this, the Application admits that “[n]o archaeological surveys were conducted on the subject properties[.]” (Application at 8.) In an effort to excuse this glaring omission, Applicant argues that “due to [the Subject Parcels’] development as plantation housing for sugar workers between 1909 and 1911, and later converted into a hotel in the late 1930s that continued until its destruction by fire in October 2025[,]” it is “highly unlikely that any archaeological or cultural artifacts exist.” (Id.) Applicant’s circular reasoning should be rejected outright. An applicant cannot satisfy a statutory environmental review obligation by simply positing without proof that such review would not uncover the evidence that it is intended to uncover. 5) The Application does not state whether Applicant has applied for or obtained a NPDES General Permit authorizing discharges of storm water associated with its planned construction activities. Pursuant to HAR § 11-55 Appendix C, an NPDES permit is required to cover “storm water discharges, including storm water runoff, snowmelt runoff, and surface runoff and drainage, associated with construction activities, including, but not limited to, 14 clearing, grading, excavation, and construction support activities that result in the disturbance of one acre or more of total land area.” Although the Application acknowledges that the Subject Parcels consist of “approximately 69,485 square feet (1.60 acres) of combined land area[,]” (Application at 1), it is unclear whether the Project will disturb one acre or more of land area. To the extent an NPDES permit is required, Applicant’s vague assurances that “[d]uring construction, the Applicant will deploy best management practices to ensure that dust, runoff and sedimentation caused by redevelopment of the properties are contained to avoid impacting neighboring properties, the adjoining Waipilopilo Stream and the distant shoreline areas[,]” and that Applicant will “implement necessary stormwater controls[,]” (Application at 18), are wholly insufficient. This issue warrants further inquiry and scrutiny to determine whether Applicant is complying with any permitting requirements relating to storm water discharges associated with the construction of its Project. The impact of these issues on the Project merits further scrutiny such that intervention by PRP in a Contested Case proceeding is appropriate inasmuch as Applicant’s failure to account for issues in a holistic manner reflects a spirit of environmentally unsound and irresponsible development that directly undercuts PRP’s core mission, and the interests of its members as citizens of the broader Hawaiʻi Island community. Further, Applicant’s reliance on legacy hotel zoning that predates the General Plan by more than 50 years must be viewed skeptically. Unite Here! Local 5 v. City & Cnty. of Honolulu, 123 Hawaiʻi 150, 231 P.3d 423 (2010), is instructive in this regard. That case arose from a proposed expansion of the Turtle Bay Resort. The applicant submitted an EIS in 1985, which identified various adverse impacts of the development including “drainage, traffic, dust generation, water consumption, marsh drainage input, loss of agricultural uses, construction 15 noise, air quality, and solid waste disposal.” Over the course of the next twenty years, the project encountered several delays and then, in 2005 – twenty years after the permit was granted – the applicant submitted a Site Development Division Master Application Form and contended there was no basis for requiring a supplemental EIS to assess changes to the surrounding area. The Honolulu Department of Planning and Permitting agreed, ruling that no supplemental EIS was required, reasoning that no time frame for development was either implied or imposed in connection with the original approval, and this finding was upheld by the lower courts. The Hawaiʻi Supreme Court reversed, noting that “the evidence in the record indicates that: (1) traffic studies analyzed traffic impact projections through 2000; (2) visitor units, hotel demand, and population growth were also projected and analyzed only through 2000; and (3) monk seal populations were nearly non-existent in the project area at the time and, thus, were not even considered in the 1985 EIS.” Id. at 178, 231 P.3d at 451. As such, the passage of twenty years created “an ‘essentially different action’” than the one proposed, necessitating a supplemental EIS. Id. at 178, 231 P.3d at 451. Similarly, PRP seeks intervention here to, among other things, assess whether the proposed Project is aligned with the current needs of the surrounding community, irrespective of the historical use of the Subject Parcels, such that further scrutiny of the Application is warranted. III. CONCLUSION Based on the foregoing, PRP respectfully requests that the Commission grant its Petition and permit PRP to intervene in the Contested Case in order to oppose the Application. 16 DATED: Honolulu, Hawai‘i, September 24, 2026. /s/ Abigail M. Holden ABIGAIL M. HOLDEN ANDREW K. RECKTENWALD CHRISTINE A. TERADA Attorneys for PACIFIC RESOURCE PARTNERSHIP BEFORE THE WINDWARD PLANNING COMMISSION COUNTY OF HAWAIʻI STATE OF HAWAIʻI In the Matter of the Application of BHG ALOHA LLC DBA WILD GINGER HOTEL (PL-SMA-2026-000097) Application for a Special Management Area Use Permit to construct and operate a new two- story, thirty-room hotel complex that includes a pool, cafe, lounge area and related improvements on 69,485 square-foot parcel within the Special Management Area. The subject parcels are located along the makai side of Puueo Street, approximately 370 feet north of its intersection with Ohai Street and Kou Lane, and immediately south of Hilo Val Hala Apartment complex, Puueo, South Hilo, Hawaii, TMK: (3) 2-6-002:008 and 012. SPECIAL MANAGEMENT AREA USE PERMIT: PL-SMA-2026-000097 TMK: (3) 2-6-002:008 and 012 DECLARATION OF ABIGAIL M. HOLDEN DECLARATION OF ABIGAIL M. HOLDEN I, ABIGAIL M. HOLDEN, declare as follows: 1. I am an attorney duly licensed to practice law in the State of Hawaiʻi, a member of the law firm of Cox Fricke LLP, and counsel of record for Pacific Resource Partnership (“PRP”). I make this Declaration based on personal knowledge unless stated otherwise, and I am competent to testify with respect to the matters set forth herein. 2. Attached hereto as Exhibit 1 is a true and correct copy of a Notice of Public Hearing published in the Honolulu Star-Advertiser, which my office obtained at the following URL: https://statelegals.staradvertiser.com/2026/09/04/0001537385-01/ (last accessed September 24, 2026). 2 3. Attached hereto as Exhibit 2 is a true and correct copy of a Petition for Standing in a Contested Case Hearing form, with a notarized signature by PRP. 4. Attached hereto as Exhibit 3 is a true and correct copy of Findings of Fact, Conclusions of Law, and Order issued by the Court in the PRP Kauaʻi Case on or about August 4, 2025. I, ABIGAIL M. HOLDEN, do declare under penalty of law that the foregoing is true and correct. DATED: Honolulu, Hawaiʻi, September 24, 2026. /s/ Abigail M. Holden ABIGAIL M. HOLDEN EXHIBIT 1 More government information at Hawaii.govWhat are you looking for? Search Place My Ad Court Notices (1)•Legal Notices (1)•Meetings (2)•Public Hearings (11)•Public Notices (3)•State/City & County Jobs (1) Notice #: 0001537385-01 Public Notices AGENDA WINDWARD PLANNING COMMISSION COUNTY OF HAWAII NOTICE IS HEREBY GIVEN of the following matters to be considered by the Windward Planning Commission of the County of Hawaii at a regular meeting in accordance with the provisions of Chapters 91 and 92, Hawaii Revised Statutes, Section 6-7.5(a) of the Charter of the County of Hawaii and Planning Commission Rules of Practice and Procedure. DATE: Thursday, October 1, 2026 TIME: 9:00 a.m. LOCATION: Hawaii County Council Chambers in Hilo 25 Aupuni Street, Hilo, Hawaii 96720 Public Participation:This is an in-person meeting, and the Windward Planning Commissioners will participate in person. The primary way for the public to view or testify at this meeting is in-person; however, as a courtesy to the public, the Commission provides the following additional ways to view or testify remotely at this meeting. Optional Alternative to Provide Remote Oral Testimony:The public has the option to provide verbal testimony at the meeting by joining Zoom. To provide verbal testimony via Zoom, please use the link below to register prior to the meeting: https://www.zoomgov.com/meeting/register/hO5GaZO5Rv296oqWA6trhA Optional Alternative to View Meeting: https://www.youtube.com/channel/UCAFoRMb3rfWLQMPd6TAkEGA?view_as=subscriber Please note, as this is an in-person meeting, the hearing may proceed if the Zoom and/or YouTube connections fail. Submitting Written Testimony:To ensure timely delivery to Commissioners prior to the meeting, written testimony must be submitted no later than 4:30 p.m. on Monday, September 28, 2026, by: (1) email to WPCtestimony@hawaiicounty.gov, (2) mail to the Windward Planning Commission at 101 Pauahi Street, Suite 3, Hilo, Hawaii or (3) drop-off at the Planning Department offices in Hilo at the address above or Kona at 74-5044 Ane Keohokalole Highway, Building E, 2nd Floor, Kailua-Kona, Hawaii. If you are submitting written testimony at the meeting, provide twelve (12) copies. All written testimony, regardless of time of receipt, will be made part of the permanent record. Please submit separate testimony for each item. Meeting Materials/Board Packet:Pursuant to Hawaii Revised Statutes Section 92-7.5, the meeting materials provided to the commission are available for public inspection three business days before the meeting date during regular business hours at the Planning Department offices in Hilo and Kona and by clicking ‘Board Packets’ at the following Planning Department website link: www.planning.hawaiicounty.gov/about-us/boards- committees/planning-commission-applications. This information can also be requested by sending an email to WPCtestimony@hawaiicounty.gov or by calling (808) 961-8288. CALL TO ORDER APPROVAL OF MINUTES Review and approval of the minutes of September 3, 2026 regular meeting. Hawaii's State Legals & Public Notices | 0001537385-01 - Hawaii's S...https://statelegals.staradvertiser.com/2026/09/04/0001537385-01/ 1 of 3 9/24/26, 3:23 PMEXHIBIT 1 STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS Members of the public may provide public testimony regarding any agenda item now or at the time the agenda item is called to order. NEW BUSINESS 1. APPLICANTS: NANI AND JOSEPH EARLY (PL-SPP-2026-000135) Application for a Special Permit to establish a three-bedroom bed and breakfast operation within an existing single-family dwelling on a 1.00-acre parcel within the State Land Use Agricultural District. The subject parcel is located at 17-4817 Huina Road, approximately 1/2 mile from North Kulani Road, Maunalani Lots, Puna, Hawaii, TMK: (3) 1-7-025:019. 2. APPLICANT: SANDRA WAHLEN (PL-SPP-2026-000139) Application for a Special Permit to establish a two-bedroom bed & breakfast operation within a proposed three-bedroom dwelling, including a detached bedroom, on a 19,187- square foot parcel within the State Land Use Agricultural District. The subject property is located on the south side of Oliana Drive, approximately 0.20 miles from its intersection with Kalapana- Kapoho Beach Road, Pahoa, Puna, Hawaii, TMK: (3) 1-2-033:029. 3. APPLICANT: MADELINE MILILANI OLDS (PL-SPP-2026-000146) Application for a Special Permit to establish a one-bedroom bed and breakfast operation within an existing three-bedroom dwelling, including a detached bedroom on a 1.44-acre parcel within the State Land Use Agricultural District. The subject parcel is located at 15-1480 Beach Road, approximately 4.2 miles from the Keaau-Pahoa Road, Hawaiian Paradise Park, Puna, Hawaii, TMK: (3) 1-5-053:004. 4. APPLICANT: KBXTREME HILO, LLC (formerly GILLIE AND JANE SILVA) (PL-REZ-2024-000074/AMEND REZ-09-000113) Application to amend Change of Zone Ordinance No. 10-45 to delete the 180-day timeframe for Condition B (water commitment), allow a 10-year time extension to Condition E (complete construction), delete Condition G (access easement), delete Condition H (limitations to Komohana Street access), delete Condition J (full improvements to Komohana Street), delete Condition K (streetlights & traffic control devices), and to add two new conditions. Ordinance No. 10-45 changed the zoning district from Agricultural-1 Acre (A-1a) to Neighborhood Commercial-20,000 square feet (CN-20) for a 5.075- acre parcel. The subject property is located at 279 Komohana Street, approximately 150 feet from its intersection with Ponahawai Street, Hilo, South Hilo, Hawaii, TMK: (3) 2-3-037:006. 5. APPLICANT: BHG ALOHA LLC DBA WILD GINGER HOTEL (PL-SMA-2026-000097) Application for a Special Management Area Use Permit to construct and operate a new two-story, thirty-room hotel complex that includes a pool, cafe, lounge area and related improvements on 69,485 square-foot parcel within the Special Management Area. The subject parcels are located along the makai side of Puueo Street, approximately 370 feet north of its intersection with Ohai Street and Kou Lane, and immediately south of Hilo Val Hala Apartment complex, Puueo, South Hilo, Hawaii, TMK: (3) 2-6-002:008 and 012. 6. APPLICANT: NIEL JAYASINGHE (PL-SMA-2024-000060) Review of Circuit Court decision Civil No. 3CCV-25-0000021 (Agency Appeal) regarding the application for a Special Management Area Use Permit to construct a four- story, 41,600 square-foot apartment building containing seventeen rental units and related improvements on a 0.445-acre parcel within the special Management Area, The subject property is located on the north side of Kalanianaole Street, approximately 350 feet southwest from its intersection with Onekahakaha Road, Keaukaha, South Hilo, Hawaii, TMK: (3) 2-1-014:002. PLANNING DIRECTOR’S REPORT Report on Special Management Area (SMA) determinations and minor permits issued by the Planning Director for September 2026. AGENDA ITEMS FOR NEXT MEETING The Commissioners will comment on matters not on the current agenda, for consideration at the Commission’s next meeting. ANNOUNCEMENTS The Windward Planning Commission’s next regular meeting is scheduled for Thursday, November 5, 2026, at the County Council Chambers in Hilo and the public can also testify via Zoom. The date and venue of the meeting are subject to change. ADJOURNMENT Anyone who requires an auxiliary aid or service, or other accommodation due to a disability, please contact the Planning Department at (808) 961-8288 or WPCtestimony@hawaiicounty.gov as soon as possible. If a request is received later than five working days prior to the meeting date, we will try to obtain the auxiliary aid/service or other accommodation, but we cannot guarantee that the request will be fulfilled. Hawaii's State Legals & Public Notices | 0001537385-01 - Hawaii's S...https://statelegals.staradvertiser.com/2026/09/04/0001537385-01/ 2 of 3 9/24/26, 3:23 PMEXHIBIT 1 Upon request, this notice is available in alternate formats such as large print, Braille, or electronic copy. Hawaii County is an Equal Opportunity Provider and Employer WINDWARD PLANNING COMMISSION LOUIS DANIELE III, Chair (HTH/WHT1537385 9/04/26) Copyright ©2026 staradvertiser.com. All rights reserved. 500 Ala Moana Blvd. #2-200, Honolulu, HI 96813 Telephone: (808) 529-4747 Hawaii's State Legals & Public Notices | 0001537385-01 - Hawaii's S...https://statelegals.staradvertiser.com/2026/09/04/0001537385-01/ 3 of 3 9/24/26, 3:23 PMEXHIBIT 1 EXHIBIT 2 PETITION FOR STANDING IN A CONTESTED CASE HEARING (Page I of 2) NAME: Pacific Resource Partnership c/o Abigail M. Holden, Esq., Andrew K. Recktenwald and Christine A. Terada, Esq. ADDRESS: Cox Fricke LLP, 800 Bethel Street, Suite 600, Honolulu, HI 96813 PHONE NO.: Tel: (808) 585-9440 / Facsimile (808) 275-3276APPLICANT/ DOCKET NO.: PL-SMA-2026-000097 A.Is your interest in this matter clearly distinguishable from that of the general public? Yes x No ---- If the answer is "yes", please explain: Please see discussion in attached Petition to Intervene. If the answer is "no", please explain how the proposed action will nevertheless cause you actual or threatened injury: Please see discussion in attached Petition to Intervene. B.Are you a government agency whose jurisdiction includes the land involved in thesubject request? Yes No X---- If the answer is "yes", please explain the nature of the agency's jurisdiction: C.Do you lawfully reside on or have some property interest in the land involved in thesubject request? Yes No X ---- If the answer is "yes", please explain: Appendix A EXHIBIT 2 PETITION FOR STANDING IN A CONTESTED CASE HEARING (Page 2 of2) D. Are you a person or persons descended from native Hawaiians who inhabited the Hawaiian Islands prior to 1778, who practiced those rights which were customarily and traditionally exercised for subsistence, cultural, or religious purposes? Yes No X ---- If the answer is "yes", please submit any genealogical evidence and historical evidence showing the exercise of those rights to support your statement: STATE OF HAWAII COUNTY OF HAW All ) ) ss ) On this ) l/ day of fxpkrn.b-cr ner's Signature , 20 26, before me personally appeared __ 1<_1_1_,_n_c.R~y __ , to me known to be the person described in and who executed q /.;;(/ /.2 C) < {: Doc. Date: _______ _ Notary Name: Patricia K. Mukai Doc. Description: p-ef-i rio-n 111 o Ccrn-1-t-Jkcr {.'o, .2 2 #Pages: __ _ Notary Public, State of Hawaii My commission expires: Ma.rch 17, First Circuit A,, r· r]'/a.ndu j fk:'tz.r101 0 Date Notary Signature NOTARY CERTIFICATION EXHIBIT 2 EXHIBIT COX FRICKE LLP A LIMITED LIABILITY LAW PARTNERSHIP LLP ABIGAIL M. HOLDEN 8793-0 aholden@cfhawaii.com ANDREW K. RECKTENWALD 10223-0 arecktenwald@cfhawaii.com 800 Bethel Street, Suite 600 Honolulu, Hawai‘i 96813 Telephone: (808) 585-9440 Facsimile: (808) 275-3276 Attorneys for Appellant PACIFIC RESOURCE PARTNERSHIP IN THE CIRCUIT COURT OF THE FIFTH CIRCUIT STATE OF HAWAI‘I PACIFIC RESOURCE PARTNERSHIP, Appellant, vs. COUNTY OF KAUA‘I PLANNING DEPARTMENT; JOHN DOES 1–10; JANE DOES 1–10; DOE CORPORATIONS 1–10; DOE LIMITED LIABILITY COMPANIES 1–10; DOE PARTNERSHIPS 1–10; DOE GOVERNMENTAL ENTITIES 1-10; and DOE ENTITIES 1-10, Appellees. CASE NO. 5CCV-24-0000068 (Agency Appeal) FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER ORAL ARGUMENT Date: July 23, 2025 Time: 1:00 p.m. Judge: Hon. Kathleen N.A. Watanabe Judge: Hon. Kathleen N.A. Watanabe FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Appellant Pacific Resource Partnership’s (“PRP”) Notice of Appeal to the Circuit Court and Statement of the Case filed on August 4, 2024 [Dkt. No. 1], PRP’s Opening Brief filed on April 7, 2025 [Dkt. No. 30], Appellee County of Kaua‘i Planning Department (“Planning Department”) Answering Brief filed on May 16, 2025 [Dkt. No. 47], and PRP’s Reply Brief to Electronically Filed FIFTH CIRCUIT 5CCV-24-0000068 04-AUG-2025 09:22 AM Dkt. 71 FOF EXHIBIT 3 2 the Planning Department’s Answering Brief filed on May 30, 2025 [Dkt. No. 59], came for hearing before the Honorable Kathleen N.A. Watanabe on July 23, 2025, at 1:00 p.m., with Abigail M. Holden, Esq. appearing on behalf of PRP and Chris Donahoe, Esq. appearing on behalf of the Planning Department. Mauna Kea Trask, Esq. appeared for non-party HPM Building Supply (“HPM”) but did not submit argument. Having considered the memoranda of law submitted, the arguments of the parties, and the record and files of these proceedings, the Court hereby makes the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. To the extent that any of the following Findings of Fact shall be determined to be Conclusions of Law, they shall be construed as such for the purpose herein. HPM’s Initial Permits for a Neighboring Location Were Vacated 2. In or about 2022, HPM submitted an Application for a Class IV Zoning Permit (Z-IV-2022-08), Use Permit (U-2022-8), and Special Permit (SP-2022-1) (“Application”) to build an industrial manufacturing facility (the “Factory”) that would manufacture wooden trusses and prefabricated wall panels on a three-acre portion of that certain parcel of real property, situated at Pa‘a, District of Koloa, Island and County of Kaua‘i, State of Hawai‘i bearing TMK No. (4) 2-9-001-001 (the “Property”) which was zoned for agricultural use. [Dkt. No. 31, Findings of Fact (“FOF”) ¶¶ 2, 6, 13.1] 3. On May 6, 2022, PRP filed a Petition to Intervene to the County of Kaua‘i Planning Commission (“Commission”) with respect to HPM’s Application. [Dkt. No. 32 at 1 The Court takes judicial notice of the records and files of the related action in the Circuit Court of the Fifth Circuit, State of Hawai‘i in Case No. 5CCV-22-0000049 and Case No. 5CCV-22- 0000060. Peters v. Aipa, 118 Hawai‘i 308, 312 n.3, 188 P.3d 822, 826 n.3 (App. 2008), as amended (July 25, 2008)). EXHIBIT 3 3 COK000364-86.2] 4. The Commission denied PRP’s Petition to Intervene and subsequently granted HPM’s Application during a June 14, 2022 Meeting, thereby approving HPM’s Special Permit, Use Permit, and Class IV Zoning Permit. [Dkt. No. 32 at COK001040-1043.] 5. PRP filed a Notice of Appeal on June 9, 2022 based on the Commission’s denial of PRP’s Petition to Intervene and, after briefing and argument, this Court vacated HPM’s permits, holding that the Commission had erred in denying PRP’s Petition to Intervene. [Dkt. No. 31, passim.] 6. In so holding, the Court also determined that PRP had standing to intervene in the proceeding, explaining as follows: 75. At the outset, PRP has established that it has both organizational and associated standing to intervene inasmuch as its interests, as well as the interests of its members, would be directly and immediately impacted by HPM’s Application and requested Permits. . . . 78. Specifically, with regard to PRP’s constitutional rights, the Hawai‘i Supreme Court has stated that “[c]onstitutional due process protections mandate a hearing whenever the claimant seeks to protect a ‘property interest,’ in other words, a benefit to which the claimant is legitimately entitled.” Pele Defense Fund v. Puna Geothermal Venture, 77Hawai‘i 64, 68, 881 P.2d 1210, 1214 (1994). 79. Article XI, Section 9 of the Hawai‘i State Constitution provides: Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law. 2 The Court takes judicial notice of these records and files from the related action in the Circuit Court of the Fifth Circuit, State of Hawai‘i in Case No. 5CCV-22-0000049 and Case No. 5CCV- 22-0000060. See fn.1 supra. EXHIBIT 3 4 80. The Hawai‘i Supreme Court has held that “HRS chapter 205 is a law relating to the conservation, protection and enhancement of natural resources, and thus falls within the scope the enforcement right established by article XI, section 9.” Cnty. of Hawaii v. Ala Loop Homeowners, 123 Hawai‘i 391, 409, 235 P.3d 1103, 1121 (2010), abrogated on other grounds by Tax Found. of Hawai‘i v. State, 144 Hawai‘i 175, 439 P.3d 127 (2019); see also In re Application of Maui Elec. Co., Ltd., 141 Hawai‘i at 269, 408 P.3d at 21 (holding that petitioners have a right to intervene where they have established a “protected property interest in a clean and healthful environment”); Protect & Pres. Kahoma Ahupua‘a Ass’n v. Maui Plan. Comm’n, 149 Hawai‘i 304, 311, 489 P.3d 408, 415 (2021) (“Protect & Pres. Kahoma Ahupua‘a Ass’n II”), as amended (June 17, 2021), reconsideration denied, No. SCWC-15-0000478, 2021 WL 2828030 (Haw. July 7, 2021) (same). 81. Courts use a two-step analysis to determine whether there was a due process right to a contested case hearing: “(1) [whether] the particular interest which [the]claimant seeks to protect by a hearing [is] ‘property’ within the meaning of the due process clauses of the federal and state constitutions, and (2) if the interest is ‘property,’ what specific procedures are required to protect it.” Protect & Pres. Kahoma Ahupua‘a Ass’n II, 149 Hawai‘i at 312, 489 P.3d at 416. 82. “[W]here a source of state law—such as article XI, section 9—grants any party a substantive right to a benefit—such as a clean and healthful environment—that party gains a legitimate entitlement to that benefit as defined by state law, and a property interest protected by due process is created.” In re Application of Maui Elec. Co., Ltd., 141 Hawai‘i at 264, 408 P.3d at 16. 83. Thus, PRP’s right to a clean and healthful environment, as defined by laws relating to environmental quality such as HRS Chapterrs [sic] 205 and 205A, is a property interest protected by due process, as it is a substantive right guaranteed by the Hawai‘i Constitution. [See also Dkt No. 90, COL ¶ 31.] . . . . 88. Similarly, here, PRP asserted its members’ constitutional right to a clean and healthful environment under article XI, section 9 of the Hawai‘i Constitution, as described above. 89. PRP’s members have an interest in development and land use projects that support local jobs and provide living wages, and also meet the statutory environmental, economic, and cultural requirements; PRP has an interest in development and land use projects that EXHIBIT 3 5 comprehensively account for the local economy and environment by including community members in the application process; PRP is concerned that HPM’s requested industrial manufacturing plant to produce prefabricated materials for housing “packages” would not actually support the purpose of HRS Chapter 205 and 205A or the Kaua‘i General Plan; and PRP is concerned that, contrary to HPM’s assertions in its Application, granting permits for HPM’s requested industrial manufacturing plant would lead to a significant reduction in local jobs, as well as a potential reduction in payment of a living wage on Kaua‘i, present a use of the land that is entirely out of character for the area (which the General Plan deems as having an “historic ‘old town’ charm” with “vast cultural treasures”) and be an inappropriate use of lands zoned for agriculture. . . . . 91. Thus, PRP asserted its and its members’ constitutional right to a clean and healthful environment under article XI, section 9 of the Hawai‘i Constitution and was therefore denied due process when it was denied the opportunity to intervene. [Dkt. No. 31 at COL, ¶¶ 75, 78-83, 88-89, 91 (internal citations to record omitted).] PRP Submitted a Petition for Declaratory Order to the Commission in 2023 Regarding Further Violations by HPM, Which Was Denied 7. HPM did not resubmit its Application or appeal this Court’s ruling vacating its permits but, instead, began operating its Factory without permits at the Old Koloa Sugar Mill, located on agricultural land. [Dkt. No. 1, ¶ 1.] 8. Accordingly, on August 16, 2023, PRP submitted a Petition for Declaratory Order (“Declaratory Petition”) to the Commission regarding the legality of HPM’s unpermitted use of the Old Koloa Sugar Mill, located on agricultural land, for its factory. [Dkt. No. 1 at ¶¶ 1-2; Dkt. No. 127 in Case No. 5CCV-23-0000148 at Exhibit 4, passim.3] 9. PRP’s Declaratory Petition sought a determination that HPM was in violation of Hawai‘i Revised Statutes (“HRS”) § 205-4.5, Rules of Practice and Procedure of the 3 The Court takes judicial notice of these records and files from the related action in the Circuit Court of the Fifth Circuit, State of Hawai‘i in Case No. Case No. 5CCV-23-0000148. See fn.1 supra. EXHIBIT 3 6 Kaua‘i County Planning Commission (“RPPPC”) Rule 1-13-6, and Kaua‘i County Code (“KCC”) Comprehensive Zoning Ordinance (“CZO”) § 8-3.2 because it failed to obtain the permits required for its industrial operations on land zoned Agricultural at the Old Koloa Sugar Mill. [Dkt. No. 127 in Case No. 5CCV-23-0000148 at Exhibit 4, 1-2.] 10. The Commission held a hearing on PRP’s Declaratory Petition on September 12, 2023, during which Commissioner Jerry Ornellas informed the parties as follows: I don’t have a question, but I would like to say something. And that is that I’m supporting HPM’s use of the property for several reasons. . . . . I am very familiar with the property being an agricultural equipment storage up until three weeks ago in the very building that its built…. One of the buildings…. You are correct, the buildings are newer. They are not part of the mill itself. That is not agricultural. That’s a construction contractor on the opposite side of the room. So, let’s be fair. . . . . This is a valuable asset to our community. So regardless of what the board feels, I’m going to support HPM[.] [Planning Commission Meeting Streaming Video at 4:48:08 – 50:13 (emphases added).]4 11. During the hearing, the Planning Director confirmed the Planning Department had heard “rumblings” of HPM’s unlawful operations at the Old Koloa Sugar Mill but had not previously investigated HPM’s use. [Planning Commission Meeting Streaming Video at 4:53:36 – 53:50.] 12. The Planning Director indicated during the hearing that the Planning Department would consider PRP’s Declaratory Petition a “complaint” and would “spin up” an investigation. [Planning Commission Meeting Streaming Video at 4:54:24 – 54:46.] 13. The Commission denied PRP’s Declaratory Petition and issued a Decision and Order holding that it lacked authority under its rules to rule on the Declaratory Petition 4 Streaming Video, Planning Commission Hearing (Sept. 6, 2023), https://kauai.granicus.com/player/clip/2604?view_id=2&redirect=true&h=349a2c4d01fda29058 0726ffe8b4fae5. EXHIBIT 3 7 inasmuch as the Declaratory Petition “seeks the Commission’s substantive adjudication on the merits of an enforcement issue” and, instead, stated that an “enforcement investigation shall commence under the Comprehensive Zoning Ordinance § 8-305, which is the proper course of action pursuant to a public complaint.” [Dkt. No. 127 in Case No. 5CCV-23-0000148 at Exhibit 5, passim.] The Planning Department Investigated HPM’s Use of the Property for Its Factory and Issued a Notice of Violation 14. On October 18, 2023, an inspector from the Planning Department went to observe HPM’s operations at the Old Koloa Sugar Mill, and, on October 20, 2023, the Planning Department issued a First Notice of Violation (“NOV”) to the owner of the Property, Mahaulepu Farm LLC (“Mahaulepu Farm”), stating that it conducted an investigation of the property and verified violations of Sections 8-2.4 (“Uses in Districts”) and 8-3.5 (“Enforcement, Legal Procedures and Penalties”) of the KCC. [Dkt. No. 12 at COK000018-19.] 15. The NOV stated, in relevant part: On October 18, 2023, Planning Inspector Joan Ludington, through her investigation, verified that a building truss manufacturing facility (HPM Building Supply) was operating within the Agriculture Zoning District at the subject property. Pursuant to Section 8-2.4 of the Kauai County Code, a truss manufacturing facility is not a generally permitted use within the Agriculture Zoning District. Operation of a truss manufacturing facility within the Agriculture Zoning District without the proper zoning permit(s) constitutes a violation. [Dkt. No. 12 at COK000019.] 16. The NOV required that, pursuant to KCC § 8-3.5, “you must correct the violation, remove the construction or development, or obtain the proper zoning permits for the referenced alteration, and cease and desist the unpermitted activity and use immediately.” [Dkt. No. 12 at COK000019.] (Emphasis in original.) EXHIBIT 3 8 17. The NOV further provided that failure to rectify the violation could result in fines and criminal prosecution. [Dkt. No. 12 at COK000019.] 18. The NOV indicated that the Planning Department must receive a remedial action plan within fifteen (15) calendar days of receipt of the letter or it would pursue enforcement action. [Dkt. No. 12 at COK000019.] 19. On December 29, 2023, PRP filed a Complaint in 5CCV-23-0000148 seeking information and documents from the Planning Department under the Uniform Information Practices Act related to the NOV and seeking to enforce the NOV as to HPM and Mahaulepu Farm (the “Declaratory Action”). [Dkt No. 1 in 5CCV-23-0000148.5] The Planning Department Thereafter Erroneously Rescinded the NOV By Determining that HPM’s Two-Year Use of the Old Sugar Mill was Somehow a Non-Conforming Use Existing Prior to 1972 20. On November 9, 2023, HPM, through counsel, provided a written response to the Planning Department’s NOV. [Dkt. No. 12 at COK000024-27.] 21. In its response, HPM acknowledged that the Old Koloa Sugar Mill is “within the State Land Use Agricultural District and the County Agricultural Zoning District.” [Dkt. No. 12 at COK000024.] 22. HPM also admitted that, despite the fact that the Old Koloa Sugar Mill is zoned for agricultural use, “HPM is currently using the office, warehouse, and electrical shop buildings . . . at the Koloa Sugar Mill . . . for wooden truss and wall panel assembly operations[.]” [Dkt. No. 12 at COK000024.] 23. HPM asserted, however, that HPM’s operation of its factory was “legal and outright permitted under the CZO as a continuous use of ‘accessory structures and uses’ 5 The Court takes judicial notice of this record from the related action in the Circuit Court of the Fifth Circuit, State of Hawai‘i in Case No. 5CCV-23-0000148. See fn.1 supra. EXHIBIT 3 9 pursuant to CZO § 8-2.4(g)(1), and ‘any other use or structure which the Planning Director finds to be similar in nature to those listed in [the CZO] and appropriate to the district’ pursuant to CZO § 8-2.4(r)(20).” [Dkt. No. 12 at COK000026.] 24. In support of its “non-conforming use” argument, HPM submitted the declarations of two individuals: Adam Killermann and Casey Watabu. [Dkt. No. 12 at COK000029-38.] 25. According to Mr. Killermann’s Declaration, Mr. Killermann began working for McBryde Sugar Plantation (“McBryde”) in 1978, and worked for McBryde until 1996 “when McBryde closed its sugar operations.” [Dkt. No. 12 at COK000029, ¶¶ 2-5.] 26. Per Mr. Killermann, McBryde used the Old Koloa Sugar Mill in support of its agricultural operations (i.e., its sugar mill operations) at the Old Koloa Sugar Mill until 1996. [Dkt. No. 12 at COK000030, ¶ 15 (stating that the electric shop and warehouse were used for purposes “in support of the plantation’s operations”).] 27. Per Mr. Killermann and Mr. Watabu, after McBryde ended its sugar mill operations in 1996, Pioneer HI-Bred Seed (“Pioneer”) occupied the Old Koloa Sugar Mill, again, used “in support of their agricultural operations[.]” [Dkt. No. 12 at COK000031, ¶ 18; id. at COK000037, ¶ 9.] 28. Mr. Killermann further attested that, after Pioneer ceased its operations (Mr. Killermann does not specify when this occurred), Hawaii Dairy Farms subsequently used the buildings “in support of their agricultural activities” and, after Hawaii Dairy Farms ceased its operations (again this date is not specified), the “site was used by various movie crews and as a local venue by Fred Atkins.” [Dkt. No. 12 at COK000031, ¶ 23-24.] 29. Similarly, Mr. Watabu averred that, after Pioneer ceased operations, the building in question “were used by various movie crews, a farmer for equipment storage, a tour EXHIBIT 3 10 operator to store equipment, and as a local venue by Fred Atkins.” [Dkt. No. 12 at COK000038, ¶ 9.] 30. Additionally, according to Mr. Killermann, AJAR Incorporated (“AJAR”) has used the buildings at the Old Koloa Sugar Mill since 1996 for its agricultural irrigation operations. [Dkt. No. 12 at COK000031, ¶ 20-21.] 31. AJAR “construct[s], operate[s], and maintain[s] canals, ditches and irrigation systems,” and “repairs water infrastructure such as irrigation lines, flumes, and ditches,” and has used the buildings at the Old Koloa Sugar Mill “for fabrication work, repair work and storage of machinery, along with various other large and small companies.” [Dkt. No. 12 at COK000031, ¶ 20-21.] 32. Both Declarations submitted by HPM acknowledged that HPM “started storing their materials in the Building on or about 2022” and that, “[o]n or about early 2023, HPM began manufacturing and fabricating wooden trusses and wall panels at the buildings.” [Dkt. No. 12 at COK000031, ¶¶ 25-26; Dkt. No. 12 at COK000038, ¶¶ 10-11.] 33. Neither Mr. Killermann nor Mr. Watabu purported to attest in their Declarations to the use of the Old Koloa Sugar Mill as of September 1, 1972, or at any time prior to 1978. [Dkt. No. 12 at COK000037, ¶ 3 (Mr. Watabu states that he is “familiar with the records and files of Grove Farm concerning the uses and operations at the Koloa Mill . . . from when McBryde . . . ceased operations at the Mill to the present”); Dkt. No. 12 at COK000029, ¶ 2-3, 8 (Mr. Killermann states that he began working for McBryde after graduating from college in 1978, and that he is “intimately familiar with McBryde’s operations at the Mill and the various operations at the Mill since McBryde shut down in 1996”).] 34. On January 25, 2024, the Planning Department conducted a follow-up investigation “to verify remedial action and claims” regarding the NOV and provided an EXHIBIT 3 11 Investigation Report dated February 1, 2024 (the “Investigation Report”). [Dkt. No. 12 at COK000005.] 35. In connection with the Investigation Report, the Planning Department compiled a chronological order of events related to the Old Koloa Sugar Mill which established that the buildings being used by HPM at the Old Koloa Sugar Mill had been used for agricultural purposes (or purposes connected to agriculture), namely sugar mill operations, from 1913 to approximately 2022. [Dkt. No. 12 at COK000006-08.] 36. The chronology does not state that the Old Koloa Sugar Mill was used as a truss and wall panel manufacturing facility before HPM began using it for this purpose in or about 2023. [Dkt. No. 12 at COK000006-08.] 37. The Planning Department also compiled two zoning permit applications by McBryde, one dated October 24, 1974 to construct a “new electrical shop, machine shop and warehouse facilities to replace existing facilities” [Dkt. No. 12 at COK000072] and another dated May 12, 1975 for “Alteration – Office Wood Structure, 3rd Floor – Above Chemical & Plant Office[,]” which notes an existing use of the property as a “Mill[,]” [Dkt. No. 12 at COK000076], however these documents, which are both dated after September 1, 1972, do not state that the Old Koloa Sugar Mill was used to manufacture housing materials before HPM began to use them for this purpose in or about 2023. 38. However, the Planning Department concluded that, “[b]ased on the above information evidenced in the Chronological Order of Events related to the subject property, (Koloa Mill area), the Planning Department finds the subject area with ongoing industrial use, (from 1913 to the present), within the Agricultural district is not a violation.” [Dkt. No. 12 at COK000009.] 39. On May 8, 2024, the Director rescinded the NOV, stating: “Upon further EXHIBIT 3 12 review based on the Investigation Report (dated April 25, 2024), the Planning Department conducted a follow-up investigation of the subject property and found the truss manufacturing facility within the Agriculture Zoning District is a continued and ongoing (“Nonconforming use”) use and not a violation of the KCC chapter 8.” [Dkt. No. 12 at COK000108.] PRP Appealed the Rescission of the NOV to the Zoning Board of Appeals, Which Was Denied, Then PRP Initiated this Administrative Appeal 40. PRP sought to determine what, if any, action was required on its part to exhaust any administrative remedies with regard to the Planning Department’s rescission of the NOV. 41. Pursuant to the RPPPC, intervention in appeals of actions from the Director pursuant to Chapter 9 of the Rules (such as the one at issue here in the recission of the NOV) are explicitly excluded. RPPPC Rule 1-4-1. 42. Moreover, only an “applicant” may appeal an action of the Director such as the one at issue here. RPPPC Rule 1-9-1. 43. PRP had already sought to bring an action for declaratory relief with the Commission for HPM’s operations at the Old Koloa Sugar Mill and been told that the Commission did not have authority to act on such request. [Dkt. No. 127 in Case No. 5CCV-23- 0000148 at Exhibit 5, passim.] 44. Thus, there was no remedy for PRP to exhaust under the RPPPC. 45. However, Article XIV, Section 14.13.B of the Charter of the County of Kaua‘i (the “Charter”) requires that the “Zoning Board of Appeals” (“ZBA”) shall “[h]ear and determine appeals alleging error from any person aggrieved by a decision or order of the director regarding the application, interpretation, or enforcement of zoning and subdivision ordinances as prescribed by ordinance.” EXHIBIT 3 13 46. PRP sought to appeal the rescission of the NOV and, accordingly, PRP, through its counsel, submitted an Appeal (“PRP’s ZBA Appeal”) to the ZBA on June 28, 2024. [Dkt. No. 33, passim.] 47. PRP’s ZBA Appeal requested that the ZBA “order that the Planning Director erred in determining that HPM’s wooden truss manufacturing operations constitute a valid nonconforming use.” [Dkt. No. 33 at 11.] 48. PRP’s ZBA Appeal specifically explained as follows: PRP prepared its appeal, as shown in Exhibit 1, but was unable to locate information regarding a ZBA. Accordingly, on May 28, 2024, my office left a voicemail for the Planning Department inquiring where to submit filings for review by the ZBA. On May 29,2024, Laura K. Barzilai, Deputy County Attorney, responded via e-mail to my office “regarding practice before the Zoning Board of Appeals[.]” In that e-mail, Ms. Barzilai indicated that “[t]he Zoning Board of Appeals is not assembled.” On June 3, 2024, my office asked that Ms. Barzilai confirm “that there is no administrative remedy for a decision by the Planning Department under Kauai County Charter 14.13(B)[.]” Ms. Barzilai did not respond. On June 12, 2024, I spoke with Ms. Barzilai on the phone, confirming that there is no administrative remedy to appeal a decision by the Planning Department under Kauai County Charter 14.13(B). I subsequently sent an e-mail that same day confirming our discussion. On June 17, 2024, I e-mailed Ms. Barzilai again requesting a response to my earlier e-mail, but I did not receive a response. Pursuant to our communications with Ms. Barzilai, it is our understanding that the pertinent ZBA does not exist and, moreover, that PRP is without any administrative remedies to exhaust. If there is some administrative remedy to exhaust, please have the ZBA issue a decision on Exhibit 1 by Friday, July 5, 2024. If we do not receive a response by that date, we will proceed with the understanding that PRP has exhausted any and all available administrative remedies. [Dkt. No. 33 at 1-2.] 49. On July 5, 2024, a Deputy Kaua‘i County Attorney wrote a response letter denying PRP’s ZBA Appeal (the “Denial”), stating that the Planning Department “reviewed” PRP’s Appeal “with the Planning Department,” and concluding that “the Planning Director does EXHIBIT 3 14 not possess the authority to determine whether all administrative remedies have been exhausted.” [Dkt. No. 34.6] 50. No further action was taken by the County on PRP’s ZBA Appeal and, thus, PRP initiated the instant administrative appeal by timely filing a Notice of Appeal on or about August 2, 2024. [Dkt. No. 1, passim.] 51. Further, PRP, on May 1, 2025, filed a Third Amended Complaint in the Declaratory Action, asserting the following causes of action: (1) Count I, seeking a declaratory ruling that HPM and Mahaulepu Farm’s use of the Old Koloa Sugar Mill for HPM’s Factory requires permits; (2) Count II, seeking a declaratory ruling that the Planning Department erroneously determined that HPM’s operations are a nonconforming use; and (3) Count III, an injunctive relief claim seeking an order enjoining HPM and Mahaulepu Farm from operating the Factory without the proper zoning permits. [See Dkt. No. 83 in Case No. 5CCV-23-0000148, ¶¶ 53-96.7] The Briefing 52. PRP filed its Opening Brief (“Opening Brief”) on April 7, 2025 [Dkt. Nos. 30-35.] 53. PRP’s Opening Brief presented the question on appeal as “[w]hether the Director of the County of Kaua‘i Planning Department’s rescission of the NOV, and the County’s subsequent denial of PRP’s appeal regarding said rescission, were made upon unlawful 6 The parties stipulated to supplement the record on appeal to include PRP’s ZBA Appeal and the Planning Department’s Denial. [Dkt. No. 41.] 7 The Court takes judicial notice of these records and files from the related action in the Circuit Court of the Fifth Circuit, State of Hawai‘i in Case No. Case No. 5CCV-23-0000148. See fn.1 supra. EXHIBIT 3 15 procedure, was affected by other error of law, or was in violation of statutory provisions.” [Dkt. No. 30 at 13-14.] 54. HPM filed a non-hearing Motion to Intervene (“Motion to Intervene”) on May 12, 2025. [Dkt. No. 43.] 55. The Planning Department filed its Answering Brief (“Answering Brief”) on May 16, 2025. [Dkt. No. 47.] 56. The Planning Department’s Answering Brief raised two arguments in response to PRP’s Appeal: (1) that PRP failed to exhaust its administrative remedies before the Commission; and (2) that the Planning Department’s Rescission of the NOV was not clearly erroneous. [Dkt. No. 47 at 8-27.] 57. PRP filed a Memorandum in Opposition to HPM’s Motion to Intervene on May 22, 2025. [Dkt. Nos. 49-55.] 58. HPM filed a Reply Memorandum in support of its Motion to Intervene on May 28, 2025. [Dkt. No. 57.] 59. PRP filed its Reply Brief on May 30, 2025 [Dkt. No. 59.] 60. PRP’s Reply Brief asserted that PRP had exhausted any existing administrative remedies, and that the Planning Department erred in rescinding the NOV because the rescission was based on the Planning Department’s determination that HPM’s use of the Buildings to manufacture wooden trusses and wall panels for residential housing construction materials was a valid nonconforming use, and because that determination was not supported by substantial evidence in the record that HPM’s nonconforming use existed as of September 1, 1972 and remained continuous to the present. [Dkt. No. 59 at 2-10.] 61. The Court denied HPM’s Motion to Intervene by Order entered June 16, 2025, denying the Motion to Intervene “on the basis that it is untimely.” [Dkt. No. 63.] EXHIBIT 3 16 62. Oral argument on PRP’s appeal was heard before the Honorable Kathleen N.A. Watanabe on July 23, 2025. 63. During the hearing, the Planning Department’s counsel raised, for the first time, (1) an oral request to consolidate this matter with the Declaratory Action and (2) the argument that the Planning Department’s Denial of PRP’s ZBA Appeal was not an appealable final order such that the Court does not have subject matter jurisdiction. CONCLUSIONS OF LAW Based upon the preceding Findings of Fact, the Court concludes as follows: 1. To the extent that any of the following Conclusions of Law shall be determined to be Findings of Fact, they shall be construed as such for the purpose herein. Public Policy Favors Openness of, and Public Participation in, Governmental Processes 2. In evaluating this matter, the Court recognizes and is guided by the legislative intent set forth in HRS § 92-1: In a democracy, the people are vested with the ultimate decision-making power. Governmental agencies exist to aid the people in the formation and conduct of public policy. Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public’s interest. Therefore, the legislature declares that it is the policy of this State that the formation and conduct of public policy––the discussions, deliberations, decisions, and action of governmental agencies––shall be conducted as openly as possible. To implement this policy the legislature declares that: (1) It is the intent of this part to protect the people’s right to know; (2) The provisions requiring open meetings shall be liberally construed; and (3) The provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings. EXHIBIT 3 17 The Court Has Jurisdiction Over This Appeal Pursuant to HRS § 91-14 Jurisdictional Framework Under HRS § 91-14 3. “[E]very court must ... determine as a threshold matter whether it has jurisdiction to decide the issue[s] presented.” Pub. Access Shoreline Hawaii by Rothstein v. Hawai‘i Cnty. Planning Comm’n by Fujimoto, 79 Hawai‘i 425, 431, 903 P.2d 1246, 1252 (1995) (citation omitted). 4. The Hawai‘i Supreme Court has formulated the following “necessary inquiry” to determine whether a court may review an agency appeal under HRS § 91-14(a): (1) there must have been a contested case hearing; (2) the agency’s action must represent a final decision and order, or a preliminary ruling such that deferral of review would deprive the claimant of adequate relief; (3) the claimant must have followed the applicable agency rules and, therefore, have been involved in the contested case; and (4) the claimant’s legal interests must have been injured such that the claimant has standing to appeal.” Cmty. Associations of Hualalai, Inc. v. Leeward Planning Comm’n, 150 Hawai‘i 241, 255, 500 P.3d 426, 440 (2021) (quotation marks and citation omitted). 5. “In other words, there are four requirements for judicial review over an agency appeal: a contested case hearing, finality, compliance with agency rule, and standing.” Leeward Planning Comm’n, 150 Hawai‘i at 255, 500 P.3d at 440. 6. For the reasons discussed below, the Court concludes that all of the requirements for jurisdiction under HRS § 91-14 are satisfied here. The Proceedings Before the Planning Department and ZBA Were a Contested Case 7. “A ‘contested case’ is ‘a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing.’” Leeward Planning Comm’n, 150 Hawai‘i at 255, 500 P.3d at 440 (citing HRS § 91- EXHIBIT 3 18 1). 8. “For an agency hearing to be ‘required by law’ it must be required by agency rule, statute, or constitutional due process.” Leeward Planning Comm’n, 150 Hawai‘i at 255, 500 P.3d at 440. 9. Critically, “[a] case in which no formal contested case hearing is held can be considered a ‘contested case’ within the meaning of chapter 91.” Leeward Planning Comm’n, 150 Hawai‘i at 255, 500 P.3d at 440. 10. As such, in Leeward Planning Comm’n, the Hawai‘i Supreme Court held that the requirement of a contested case was satisfied by the appellant’s submission of a Petition to Intervene in a special permit application proceeding before the appellee planning commission, even though no hearing was actually held, because “an agency hearing was required by the [planning commission’s] rules and statutes relevant to the issuance of special permits.” Leeward Planning Comm’n, 150 Hawai‘i at 255-56, 500 P.3d at 440-41. 11. Section 14.13 of the Charter, which sets forth the duties and functions of the ZBA, provides, in pertinent part: Section 14.13. Duties and Functions of the Zoning Board of Appeals. In accordance with such principles, conditions, and procedures prescribed by ordinance or administrative rule, the zoning board of appeals shall . . . A. Conduct hearings in accordance with chapter 91, Hawai‘i Revised Statutes regarding the violation of the zoning and subdivision ordinance and the regulations adopted thereunder; B. Hear and determine appeals alleging error from any person aggrieved by a decision or order of the director regarding the application, interpretation, or enforcement of zoning and subdivision ordinances as prescribed by ordinance[.] . . . (Emphases added). 12. As the Planning Department acknowledges in its Answering Brief, EXHIBIT 3 19 “‘[s]hall’ means mandatory.” (Answering Brief at 10 (citing Malahoff v. Saito, 111 Hawai‘i 168, 140 P.3d 401 (2006)).) 13. In other words, it is a mandatory function of the ZBA to conduct hearings regarding violations of the zoning ordinance and regulations, such as those alleged in PRP’s ZBA Appeal. 14. As such, the “required by law” prong of the contested case requirement is satisfied here because a hearing was required by the Charter. 15. Moreover, a hearing on PRP’s ZBA Appeal, if held, would have determined the “legal rights, duties, or privileges of specific parties” inasmuch as PRP’s ZBA Appeal requested that the ZBA “order that the Planning Director erred in determining that HPM’s wooden truss manufacturing operations constitute a valid nonconforming use.” 16. Indeed, the ZBA’s inaction on PRP’s ZBA Appeal had the effect of determining the legal rights, duties, and privileges of HPM because, by failing to act, the ZBA effectively left the rescission of the NOV in place and, as such, the “rights, duties, or privileges” prong of the contested case analysis is satisfied here. Kilakila ‘O Haleakala v. Bd. of Land & Nat. Res., 131 Hawai‘i 193, 202, 317 P.3d 27, 36 (2013) (“Even in the absence of a formal contested case hearing, we point out that the proceedings that otherwise took place, including the vote to grant the permit [without a hearing], in fact did determine UH’s rights, duties, and privileges.”). 17. Accordingly, the Court concludes that the proceedings before the ZBA constituted a “contested case” inasmuch as these were “a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing” and, as such, the first requirement for jurisdiction under HRS § 91-14 is satisfied here. Leeward Planning Comm’n, 150 Hawai‘i at 255, 500 P.3d at 440. EXHIBIT 3 20 The Denial of (or Inaction on) PRP’s ZBA Appeal Was an Appealable Final Decision 18. As stated above, the Court has jurisdiction under HRS § 91-14 “that the appeal is from a final decision made by the agency.” Leeward Planning Comm’n, 150 Hawai‘i at 256, 500 P.3d at 441 (citation omitted). 19. “A final decision or order is one that ends the proceedings, leaving nothing further to be accomplished.” Leeward Planning Comm’n, 150 Hawai‘i at 256, 500 P.3d 426, 441 (quotation marks and citation omitted). 20. In this regard, the Hawai‘i Supreme Court has held that “the denial of a request for a contested case hearing (or to participate in one) is a sufficiently final decision for judicial review.” Kaleikini v. Thielen, 124 Hawai‘i 1, 26, 237 P.3d 1067, 1092 (2010); see also Leeward Plan. Comm’n, 150 Hawai‘i at 256, 500 P.3d at 441 (noting that a final decision “can take the form of an agency’s formal denial of a party’s request for a contested case hearing” or “an agency’s denial of a party’s request to intervene in a contested case[.]”). 21. Indeed, even an agency’s “non-action” in the form of “[e]lecting to let a proceeding ‘lie as a closed matter’ is reviewable agency action given that it ha[s] the consequence of effectively ending the proceeding[.]” Leeward Planning Comm’n, 150 Hawai‘i at 257, 500 P.3d at 442 (quotation marks omitted). 22. PRP submitted its ZBA Appeal to the Planning Director on June 28, 2024, noting that “it is our understanding that the pertinent ZBA does not exist and, moreover, that PRP is without any administrative remedies to exhaust[,]” and requesting that “[i]f there is some administrative remedy to exhaust, please have the ZBA issue a decision . . . by Friday July 5, 2024[,]” and stating that, if no response was received by that date, PRP would “proceed with the understanding that PRP has exhausted any and all available administrative remedies.” 23. The Denial of PRP’s ZBA Appeal was issued on July 5, 2024, stating that EXHIBIT 3 21 the Planning Director “does not possess the authority to determine whether all administrative remedies have been exhausted.” 24. There was no indication in the Denial that PRP’s ZBA Appeal would be considered at a later date or that any further administrative remedies were available to PRP relating to the rescission of the NOV and the denial of PRP’s ZBA Appeal. 25. Rather, the denial of PRP’s ZBA Appeal ended any administrative proceedings with respect to the rescission of the NOV. 26. As such, the Court concludes that the Denial of PRP’s ZBA Appeal constituted an appealable final decision as required for judicial review under HRS § 91-14. PRP Followed the Applicable Agency Rules in Appealing the Rescission of the NOV 27. As set forth above, “[t]he third requirement for judicial review under HRS § 91-14 is that the claimant follow agency rules and be involved in the contested case.” Leeward Planning Comm’n, 150 Hawai‘i at 257, 500 P.3d at 442. 28. Satisfaction of this requirement “is not conditioned upon formal intervention in the agency proceeding[,]” and “adversary participation need not be confined to formal proceedings before the agency.” Leeward Planning Comm’n, 150 Hawai‘i at 257-58, 500 P.3d at 442-43 (quotation marks, ellipsis, and citations omitted). 29. As such, in Leeward Planning Comm’n, the Hawai‘i Supreme Court concluded that the appellant satisfied this requirement by following the planning commission’s rules by submitting a petition to intervene. Leeward Planning Comm’n, 150 Hawai‘i at 258, 500 P.3d at 443. 30. Similarly, in this case, PRP followed the applicable rules, as established by the Charter, in appealing the decision of the Planning Department to rescind the NOV. 31. Section 14.13 of the Charter provides, in pertinent part: EXHIBIT 3 22 Section 14.13. Duties and Functions of the Zoning Board of Appeals. In accordance with such principles, conditions, and procedures prescribed by ordinance or administrative rule, the zoning board of appeals shall . . . B. Hear and determine appeals alleging error from any person aggrieved by a decision or order of the director regarding the application, interpretation, or enforcement of zoning and subdivision ordinances as prescribed by ordinance[.] (Emphases added). 32. The language of the Charter unambiguously vests the ZBA with sole jurisdiction to hear appeals from persons aggrieved by a decision or order of the Director as to the enforcement of zoning ordinances. 33. Accordingly, PRP, as a party aggrieved by an action of the Planning Department and Planning Director with respect to the rescission of the NOV, was required to submit an appeal directly to the ZBA. 34. PRP timely submitted its appeal directly to the ZBA -- the only body with jurisdiction to hear it. 35. The Planning Department does not point to, and the Court has not found, any rule setting forth a procedure to appeal a decision of the Director where the ZBA is not assembled. 36. In light of the foregoing, the Court concludes that PRP followed the applicable agency rules and regulations in appealing the May 8, 2024 rescission of the NOV, such that the third requirement for jurisdiction under HRS § 91-14 is satisfied here. PRP Has Standing to Appeal 37. As set forth above, the fourth requirement for judicial review under HRS § 91-14 “is that the claimant show its legal interests were injured such that it has standing to appeal.” Leeward Planning Comm’n, 150 Hawai‘i at 258, 500 P.3d at 443. EXHIBIT 3 23 38. Hawai‘i courts “evaluate[] standing using the ‘injury in fact’ test requiring: (1) an actual or threatened injury, which, (2) is traceable to the challenged action, and (3) is likely to be remedied by favorable judicial action.” Leeward Planning Comm’n, 150 Hawai‘i at 258, 500 P.3d at 443 (citation omitted). 39. The Hawai‘i Supreme Court has explained that “where the interests at stake are in the realm of environmental concerns, we have not been inclined to foreclose challenges to administrative determinations through restrictive applications of standing requirements.” Leeward Planning Comm’n, 150 Hawai‘i at 258, 500 P.3d at 443 (brackets and citation omitted). 40. As stated above, and as the Court has previously found, the interests of PRP, and of its members, would be directly impacted by HPM’s continued use of the Old Koloa Sugar Mill as a wooden truss and wall panel manufacturing facility without the proper permits. 41. Article XI, Section 9 of the Hawai‘i State Constitution provides: Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law. 42. The Hawai‘i Supreme Court has held that “HRS chapter 205 is a law relating to the conservation, protection and enhancement of natural resources, and thus falls within the scope the enforcement right established by article XI, section 9.” Cnty. of Hawaii v. Ala Loop Homeowners, 123 Hawai‘i 391, 409, 235 P.3d 1103, 1121 (2010), abrogated on other grounds by Tax Found. of Hawai‘i v. State, 144 Hawai‘i 175, 439 P.3d 127 (2019); see also In re Application of Maui Elec. Co., Ltd., 141 Hawai‘i at 269, 408 P.3d at 21 (holding that petitioners have a right to intervene where they have established a “protected property interest in a clean and EXHIBIT 3 24 healthful environment”); Protect & Pres. Kahoma Ahupua‘a Ass’n v. Maui Plan. Comm’n, 149 Hawai‘i 304, 311, 489 P.3d 408, 415 (2021), as amended (June 17, 2021), reconsideration denied, No. SCWC-15-0000478, 2021 WL 2828030 (Haw. July 7, 2021) (same). 43. “[W]here a source of state law—such as article XI, section 9—grants any party a substantive right to a benefit—such as a clean and healthful environment—that party gains a legitimate entitlement to that benefit as defined by state law, and a property interest protected by due process is created.” In re Application of Maui Elec. Co., Ltd., 141 Hawai‘i at 264, 408 P.3d at 16. 44. Thus, PRP’s right to a clean and healthful environment, as defined by laws relating to environmental quality such as HRS Chapter 205, is a substantive right guaranteed by the Hawai‘i Constitution. [Dkt. No. 31 at COL, ¶ 83.] 45. PRP is asserting its members’ constitutional right to a clean and healthful environment under article XI, section 9 of the Hawai‘i State Constitution, as described above. 46. Further, the interests of PRP and its members that are affected by the challenged action include the interest in development and land use projects that support local jobs and provide living wages, and also meet the statutory environmental requirements. 47. PRP and its members also have an interest in development and land use projects that comprehensively account for the local economy and environment by including community members in the permitting process. 48. PRP is concerned that HPM’s Old Koloa Sugar Mill to produce prefabricated materials for housing “packages” would not actually support the purpose of HRS Chapter 205 and 205A or the Kaua‘i General Plan but, rather, would lead to a significant reduction in local jobs, as well as a potential reduction in payment of a living wage on Kaua‘i, present a use of the land that is entirely out of character for the area and be an inappropriate use EXHIBIT 3 25 of lands zoned for agriculture. 49. The Court concludes that, in light of the foregoing interests, PRP has suffered an actual and/or threatened injury that is traceable to the challenged action (namely, the rescission of the NOV in violation of HRS Chapter 205). Leeward Planning Comm’n, 150 Hawai‘i at 258, 500 P.3d at 443 (finding that the appellant’s alleged injury “to the property and environmental and aesthetic interests of area property owners” constituted an injury-in-fact sufficient to confer standing). 50. The Court further concludes that the actual and/or threatened injury to PRP and its members would be remedied by favorable judicial action (namely a finding that the Planning Department erred in rescinding the NOV). 51. Accordingly, the Court concludes that PRP has satisfied the standing requirement of HRS § 91-14. 52. As such, PRP has satisfied each of the four requirements for the Court to exercise jurisdiction over this administrative appeal under HRS § 91-14. PRP Exhausted Its Administrative Remedies 53. The Planning Department argues in its Answering Brief that PRP failed to exhaust its administrative remedies such that the Court has been “divest[ed]” of jurisdiction. [Dkt. No. 47 at 8-13.] 54. The doctrine of exhaustion of administrative remedies is a doctrine of “comity designed to outline the relationship between courts and administrative agencies and secure their proper spheres of authority.” Kellberg v. Yuen, 131 Hawai‘i 513, 527, 319 P.3d 432, 446 (2014) (citation omitted). 55. “The doctrine of exhaustion of administrative remedies provides that where a claim is cognizable in the first instance by an administrative agency alone, judicial EXHIBIT 3 26 review of agency action will not be available unless the party affected has taken advantage of all the corrective procedures provided for in the administrative process.” Kellberg, 131 Hawai‘i at 527, 319 P.3d at 446 (quotation marks, brackets, and citation omitted). 56. As such, where it applies, “the doctrine of exhaustion of remedies temporarily divests a court of jurisdiction.” Kellberg, 131 Hawai‘i at 527, 319 P.3d at 446 (citation omitted, emphasis in original). 57. “[T]he doctrine of exhaustion is not absolute[,]” and “[a]n aggrieved party need not exhaust administrative remedies where no effective remedies exist” or where “exhaustion of administrative remedies will be futile.” Kellberg, 131 Hawai‘i at 531, 319 P.3d at 450 (citations and quotation marks omitted). 58. As such, for administrative exhaustion to apply, “[t]he statute, ordinance or regulation under which the agency exercises its power must establish clearly defined machinery for the submission, evaluation and resolution of complaints by aggrieved parties.” Kellberg, 131 Hawai‘i at 536, 319 P.3d at 455 (quotation marks omitted, emphasis in original). 59. Article XIV of the Charter sets forth the rules applicable to the Planning Department. 60. Section 14.01 of the Charter provides that there “shall be a planning department consisting of a planning commission, a zoning board of appeals, a planning director, and the necessary staff.” 61. Section 14.03.G provides the Commission shall “[h]ave the discretion to refer hearings to the zoning board of appeals.” 62. Section 14.05 of the Charter provides that the Director “shall[,]” inter alia, “[b]e charged with the administration of the zoning and subdivision ordinance and the regulations adopted thereunder.” EXHIBIT 3 27 63. Section 14.13 of the Charter provides, in pertinent part: Section 14.13. Duties and Functions of the Zoning Board of Appeals. In accordance with such principles, conditions, and procedures prescribed by ordinance or administrative rule, the zoning board of appeals shall . . . B. Hear and determine appeals alleging error from any person aggrieved by a decision or order of the director regarding the application, interpretation, or enforcement of zoning and subdivision ordinances as prescribed by ordinance[.] (Emphases added). 64. As the Planning Department acknowledges in its Answering Brief, “‘[s]hall’ means mandatory.” (Answering Brief at 10 (citing Malahoff v. Saito, 111 Hawai‘i 168, 140 P.3d 401 (2006)).) 65. As such, the language of the Charter unambiguously vests the ZBA with sole jurisdiction to hear appeals from persons aggrieved by a decision or order of the Director as to the enforcement of zoning ordinances. 66. Accordingly, PRP, as a party aggrieved by an action of the Planning Department and Planning Director with respect to the rescission of the NOV, was required to submit an appeal directly to the ZBA. 67. PRP timely submitted its appeal to the ZBA -- the only body with jurisdiction to hear it. 68. The Planning Department does not point to, and the Court has not found, any rule setting forth a procedure to appeal a decision of the Director where the ZBA is not assembled. 69. Indeed, there does not appear to be an established process or procedure for the Planning Department and/or the Commission to inform the public when the ZBA is not assembled. EXHIBIT 3 28 70. Under the Charter, the ZBA’s existence is mandatory, as Section 14.01 the Charter provides there “shall be a planning department consisting of a planning commission, a zoning board of appeals, a planning director, and the necessary staff.” (Emphases added.) 71. The Planning Department argued in its Answering Brief that, rather than appealing directly to the ZBA, PRP was required to place this matter on the agenda before the Commission and request that the Commission refer the matter to the ZBA. [Dkt. No. 47 at 10.] 72. The Planning Department’s argument that PRP was required to first lodge its appeal with the Commission, with a request that the Commission refer the matter to the ZBA, conflicts with the plain language of the Charter, which charges the Planning Department (through its Director) with administering the zoning ordinances, and vests the ZBA with exclusive jurisdiction to hear appeals from the Director’s decisions and orders in this regard. 73. Indeed, the Planning Department’s position that the ZBA cannot hear appeals submitted to the ZBA in the first instance, and that the ZBA’s authority is limited to matters referred to it by the Commission, would improperly render Section 14.13.B of the Charter superfluous. Keliipuleole v. Wilson, 85 Hawai‘i 217, 221, 941 P.2d 300, 304 (1997) (“[C]ourts are bound to give effect to all parts of a statute, and that no clause, sentence, or word shall be construed as superfluous, void, or insignificant[.]”). 74. The Court therefore concludes that PRP did not fail to exhaust its administrative remedies by failing to place this matter on the Commission’s agenda with a request that the matter be referred to the ZBA. 75. The Planning Department also argues in its Answering Brief that PRP failed to exhaust its administrative remedies because it did not petition the Commission to issue a declaratory order pursuant to RPPPC Rule 1-10-1(a), which provides that “[o]n petition of an interested person, the Commission may issue a declaratory order as to the applicability of any EXHIBIT 3 29 statutory provision or of any rule or regulation or order of the Commission.” [Dkt. No. 47 at 11.] 76. The Planning Department’s argument that PRP was required to petition the Commission to issue a declaratory order is unpersuasive inasmuch as the Commission previously denied PRP’s Declaratory Petition relating to HPM’s Factory specifically on the grounds that such a Declaratory Petition is not the proper mechanism to seek a “substantive adjudication on the merits” of an enforcement action by the Director. 77. Given the Commission’s denial of PRP’s previous Declaratory Petition on the grounds that such a Declaratory Petition was an improper mechanism to seek a substantive adjudication as to an enforcement decision of the Planning Department and Director, it would have been futile for PRP to petition the Commission for a declaratory order as to the rescission of the NOV, which also would have required a substantive adjudication on the merits of an enforcement decision by the Planning Department and the Director. Kanahele v. State, 154 Hawai‘i 190, 204, 549 P.3d 275, 289 (2024) (reasoning that “requesting a contested case hearing would have been futile” and “Plaintiffs lacked an effective administrative remedy” because “DHHL had already issued a public statement asserting the DOT now had jurisdiction over the MKAR”); Kellberg, 131 Hawai‘i at 531, 319 P.3d at 450 (explaining that administrative exhaustion does not require the pursuit of “futile” remedies). 78. Additionally, any direct appeal to the Commission would have been futile pursuant to RPPPC Rule 1-9-1, which provides: An applicant may petition to appeal an action of the Director in the administration of the Comprehensive Zoning and Subdivision ordinances . . . . Intervention, pursuant to Chapter 4 of these Rules, shall not be allowed in appeals from actions of the Director. (Emphases added.) 79. As such, any appeal to the Commission would have been denied because EXHIBIT 3 30 the RPPPC specifically prohibits any party other than an applicant (which PRP is not) from intervening in a case to appeal a decision of the Director. 80. Further, even assuming arguendo that a declaratory petition to the Commission was not futile, PRP still did not fail to exhaust its remedies because the language of RPPPC Rule 1-10-1(a) is permissive, stating that “[o]n petition of an interested person, the Commission may issue a declaratory order[.]” (Emphases added.) 81. The doctrine of administrative exhaustion does not apply to remedies that are merely permissive—like a declaratory petition in this instance. Coconino Cnty. v. Antco, Inc., 148 P.3d 1155, 1159 (Ariz. Ct. App. 2006) (stating administrative exhaustion does not apply “when the administrative remedy prescribed by statute is merely permissive”); Nat’l Coll. Of Bus. & Tech. v. Tennessee Higher Educ. Comm’n, No. M200900137COAR3CV, 2010 WL 987161, at *5 (Tenn. Ct. App. Mar. 18, 2010) (same) (citation omitted); cf. Kanahele, 154 Hawai‘i at 203–04, 549 P.3d at 288–89 (recognizing in dicta that the operative rule stated a person “may” request a contested case hearing, and that “‘may’ is defined as “[t]o be permitted to ... [t]o be a possibility.”). 82. The Court therefore concludes that PRP did not fail to exhaust its administrative remedies because it did not petition the Commission for a declaratory order because such a petition would have been futile, and because such a petition was, if anything, permissive. 83. In light of the foregoing, the Court concludes that the submission by PRP of PRP’s ZBA Appeal to the ZBA -- the only administrative remedy available to PRP -- satisfied the doctrine of exhaustion of administrative remedies. 84. The Court further concludes that, to the extent any administrative remedies were available to PRP, but that PRP did not pursue prior to initiating this administrative EXHIBIT 3 31 appeal, the doctrine of administrative exhaustion does not apply because: (1) the County of Kaua‘i, the Planning Department, and/or the Commission have failed to establish a “clearly defined machinery for the submission, evaluation and resolution of complaints by aggrieved parties” under the circumstances present here, such that the doctrine of administrative exhaustion does not apply; and (2) the pursuit of such remedies was futile and/or permissive. 85. Having concluded that the Court has jurisdiction over this administrative appeal, the Court proceeds to address the merits of this matter below. Applicable Standards of Review 86. This Court reviews an agency decision under the standards of review set forth in HRS § 91–14, which provides: Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are: (1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedure; or (4) Affected by other error of law; or (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary, capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. HRS § 91–14(g); see also Save Diamond Head Waters LLC. v. Hans Hedemann Surf, Inc., 121 Hawai‘i 16, 24, 211 P.3d 74, 82 (2009) (same). 87. Under HRS § 91-14(g), conclusions of law are reviewed de novo, pursuant to subsections (1), (2) and (4); questions regarding procedural defects are reviewable under EXHIBIT 3 32 subsection (3); findings of fact are reviewable under the clearly erroneous standard, pursuant to subsection (5); and an agency’s exercise of discretion is reviewed under the arbitrary and capricious standard, pursuant to subsection (6). Save Diamond Head Waters, 121 Hawai‘i at 24, 211 P.3d at 82. 88. Mixed questions of law and fact are “‘reviewed under the clearly erroneous standard because the conclusion is dependent upon the facts and circumstances of the particular case.’” Save Diamond Head Waters, 121 Hawai‘i at 25, 211 P.3d at 83 (quoting Del Monte Fresh Produce (Hawaii), Inc. v. Int’l Longshore & Warehouse Union, 112 Hawai‘i 489, 499, 146 P.3d 1066, 1076 (2006)). 89. “To be granted deference, however, the agency’s decision must be consistent with the legislative purpose.” Camara v. Agsalud, 67 Haw. 212, 216, 685 P.2d 794, 797 (1984). 90. The Court’s construction of statutes is guided by established rules: When construing a statute, [the court’s] foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And [the court] must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose. State v. Pacheco, 96 Hawai‘i 83, 94, 26 P.3d 572, 583 (2001) (citations omitted). 91. In interpreting administrative rules, [t]he general principles of construction which apply to statutes also apply to administrative rules. As in statutory construction, courts look first at an administrative rule’s language. If an administrative rule’s language is unambiguous, and its literal application is neither inconsistent with the policies of the statute the rule implements nor produces an absurd or unjust result, courts enforce the rule’s plain meaning. Kaleikini v. Yoshioka, 128 Hawai‘i 53, 67, 283 P.3d 60, 74 (2012) (citations omitted). EXHIBIT 3 33 The Planning Department’s Rescission of the NOV Was Clearly Erroneous 92. PRP requests the Court hold that the Planning Department erred when it found that HPM’s manufacturing operations at the Factory constitute a “nonconforming use” and rescinded the NOV. [Dkt. No. 59, Reply Brief, at 10.] 93. Hawai‘i courts have explained that “[a]ny use not expressly allowed in subsection (a) is prohibited, unless an HRS § 205-6 . . . special permit or an HRS § 205-8 (2001) nonconforming use certificate is obtained” and, therefore “any use permitted by a county not expressly allowed in HRS § 205–4.5(a), or by virtue of HRS §§ 205–6 or 205–8, conflicts with the statutory regime.” Campos v. Plan. Comm’n, 153 Hawai‘i 386, 393–94, 539 P.3d 170, 177– 78 (App. 2023). 94. HRS § 205–4.5(a) enumerates the permissible uses within the agricultural zone, none of which include the manufacturing of residential housing materials. HRS § 205– 4.5(a)(1) – (24). 95. Further, as noted above, HPM did not apply for a special permit pursuant to HRS § 205-6 for its Factory after the Court vacated its earlier permits for a neighboring location in Case No. 5CCV-22-0000049 and Case No. 5CCV-22-0000060. 96. Accordingly, HPM’s use of the Old Koloa Sugar Mill for its Factory conflicts with the statutory regime, and is therefore prohibited, unless it constitutes a valid nonconforming use. Campos, 153 Hawai‘i at 393–94, 539 P.3d at 177–78. 97. HRS § 205-8, governing nonconforming uses, provides as follows: The lawful use of land or buildings existing on the date of establishment of any interim agricultural district and rural district in final form may be continued although the use, including lot size, does not conform to this chapter; provided that no nonconforming building shall be replaced, reconstructed, or enlarged or changed to another nonconforming use and no nonconforming use of land shall be expanded or changed to another nonconforming use. In addition, if any nonconforming use of land or EXHIBIT 3 34 building is discontinued or held in abeyance for a period of one year, the further continuation of such use shall be prohibited. 98. KCC § 8-13.2 provides: (a) A nonconforming use of land, buildings, or other structures may continue to the extent that the use existed on September 1, 1972 or any amendment hereto, as provided in this Section, provided that the Planning Commission may, after hearing, order the termination of a nonconforming use that creates substantial danger to public health or safety. (b) If any nonconforming use ceases for any reason for a continuous period of 12 calendar months or for one season if the use be seasonal, then the use shall not be resumed and any use of the land or building thereafter shall be in full conformity with the provisions of this Chapter. (c) If the nonconforming use is carried on in a nonconforming building or structure and the portion of the building or structure within which nonconforming use is conducted is destroyed or damaged, the use may be resumed if restoration or reconstruction, as permitted by this Article, is completed within one year from the date of the damage or destruction. If the building or structure may not be restored or reconstructed under the provisions of this Chapter, or if the building or structure was conforming, the nonconforming use may not be resumed and any use of the land or building thereafter shall be in full conformity with the provisions of this Chapter. (d) Any building lawfully in existence and vacant prior to or on September 1, 1972 may within six months thereafter, be occupied by the use for which it was manifestly designed or arranged. (KCC § 8-13.2 (emphases added).) 99. The Hawai‘i Supreme Court has explained that “[t]he zoning law concept of ‘non-conforming use’ protects landowners who have vested rights to use their land in a fashion later prohibited by restrictive zoning regulations” and, as such, a nonconforming use is one “which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance, although it does not comply with the zoning EXHIBIT 3 35 restrictions applicable to the district in which it is situated.” Young v. Planning Comm’n of Cnty. of Kauai, 89 Hawai‘i 400, 410, 974 P.2d 40, 50 (1999) (emphases and brackets omitted). 100. Therefore, the “burden to prove that a nonconforming use is valid is on the owner, occupant or user, who must prove that a lot, a structure, a use, a dwelling unit, or parking or loading was legally established as it now exists.” Campos, 153 Hawai‘i at 394, 539 P.3d at 178. 101. In other words, HPM bore the burden, in the proceedings before the Planning Department, to prove that its use of the Old Koloa Sugar Mill to operate a truss manufacturing Factory was established as of September 1, 1972, and has continued since then. 102. In turn, on review, the core issue for the Court is whether the Planning Department erred in determining that HPM carried its burden to prove its use of the Old Koloa Sugar Mill to operate a truss manufacturing Factory was a valid nonconforming use -- i.e., that the Old Koloa Sugar Mill was in use as a truss manufacturing facility as of September 1, 1972 and that this use has continued since then -- a mixed question of law and fact subject to a “clearly erroneous” standard of review. Save Diamond Head Waters, 121 Hawai‘i at 25, 211 P.3d at 83 (citation omitted). 103. “An FOF or a mixed determination of law and fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding or determination, or (2) despite substantial evidence to support the finding or determination, the appellate court is left with the definite and firm conviction that a mistake has been made.” Dao v. Zoning Bd. of Appeals of Honolulu, 144 Hawai‘i 28, 39, 434 P.3d 1223, 1234 (App. 2019). 104. In this context, “substantial evidence” is defined as “credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.” Dao, 144 Hawai‘i at 39, 434 P.3d at 1234. EXHIBIT 3 36 105. The record in this case lacks substantial evidence to support the Planning Department’s determination that HPM carried its burden of proving its use of the Property for its truss and wall panel manufacturing Factory was a valid non-conforming use. 106. Specifically, the record is devoid of any substantial evidence to establish the use of the Old Koloa Sugar Mill as a truss and wall panel manufacturing facility as of September 1, 1972, or at any time prior to 2023, when HPM began using it for this purpose. 107. In connection with the proceedings before the Planning Department, HPM submitted Declarations by Mr. Killermann and Mr. Watabu, neither of which even purports to establish the use of the Old Koloa Sugar Mill as of September 1, 1972, given that both of these individuals appear to have become involved with the operations at the Old Koloa Sugar Mill in 1978 at the earliest. 108. Further, these Declarations do not establish a continuing use of the Old Koloa Sugar Mill as a truss and wall panel manufacturing facility. 109. Indeed, to the contrary, Mr. Killermann’s Declaration establishes that McBryde used the Property for “sugar operations[,]” and that, once the sugar mill operations ended in 1996, the buildings at the Old Koloa Sugar Mill continued to be used for agricultural operations by Pioneer, Hawaii Dairy Farms, and AJAR. 110. These agricultural uses were not nonconforming uses, but rather were specifically permitted pursuant to HRS § 205-4.5 (allowing as permissible uses with the agricultural districts “[b]uildings and uses, including mills, storage, and processing facilities, maintenance facilities . . . and vehicle and equipment storage areas that are normally considered directly accessory to the above-mentioned uses”). 111. The undisputed facts further establish that the Old Koloa Sugar Mill was not used to manufacture wooden trusses and wall panels for residential housing construction EXHIBIT 3 37 materials until HPM commenced its operations in 2023, as both Declarations submitted by HPM acknowledged that HPM “started storing their materials in the Building on or about 2022” and that “[o]n or about early 2023, HPM began manufacturing and fabricating wooden trusses and wall panels at the buildings.” 112. The Planning Department also proffers a chronology purporting to show the history of the Old Koloa Sugar Mill, however, at no point does the chronology state the Old Koloa Sugar Mill was used to manufacture wooden trusses and wall panels prior to HPM’s beginning to use it for that purpose. 113. Similarly, the chronology does not show that there was any nonconforming use prior to 1972. 114. Indeed, the opposite appears to be true. The use of the Old Koloa Sugar Mill was actually conforming with HRS Chapter 205 at least until 1996. 115. The Planning Department also points to two zoning permit applications by McBryde, one dated October 24, 1974 to construct a “new electrical shop, machine shop and warehouse facilities to replace existing facilities” [Dkt. No. 12 at COK000072] and another dated May 12, 1975 for “Alteration – Office Wood Structure, 3rd Floor – Above Chemical & Plant Office[,]” which notes an existing use of the property as a “Mill[,]” however these documents are both dated after the critical date of September 1, 1972, and do not state that the Old Koloa Sugar Mill was used as a truss and wall panel manufacturing facility prior to HPM’s use of it for this purpose beginning in or about 2023. 116. The Planning Department’s own Investigation Report, as well as HPM’s own evidence, therefore establish an ongoing, conforming agricultural use of the Old Koloa Sugar Mill as of September 1, 1972, and continuing well past that date. EXHIBIT 3 38 117. Accordingly, HPM’s use of the Old Koloa Sugar Mill was not a valid nonconforming use because the use that existed on September 1, 1972, was “in support of the plantation’s operations” – not to build prefabricated housing materials. See Save Diamond Head Waters, 121 Hawaiʻi at 27, 211 P.3d at 85 (recognizing that, to establish a “nonconforming use” a party must prove a legally established prior nonconforming use of the property prior to the zoning change, and finding that a surf school situated in the ground floor of a hotel did not constitute a valid nonconforming use because, although the premises at issue had previously been used for beach equipment rental, “the record does not support a finding that the beach equipment rental use was an accessory use of the Hotel[,]” as was required to determine whether the beach equipment rental use was permissible or nonconforming under the applicable ordinance, and therefore “it cannot be considered a valid prior nonconforming accessory use” of the premises at issue); Windward Marine Resort, Inc. v. Sullivan, 86 Hawaiʻi 171, 178-82, 948 P.2d 592, 599-603 (App. 1997) (finding that an “expansion and intensification” of hotel’s nonconforming use relating to commercial marine activities, which occurred after enactment of land use ordnance in 1986, could support agency’s determination that “the marine activities for customers other than bona fide guests had resulted in a change in the nature and general impact of Windward’s nonconforming hotel use from that which existed prior to the adoption of the LUO in 1986 and as a result, Windward had violated” the LUO). 118. The Court is not persuaded by the Planning Department’s attempts to categorize both HPM’s use and the prior agricultural uses under the catch-all term “industrial use[.]” 119. The requirement that a nonconforming use remain the same is applied rigidly. Wechter v. Bd. of Appeals, 119 N.E.2d 747, 748 (Ill. 1954) (finding that the prior use of a building for a tinsmith and wood working shop was not the same as the present use—the EXHIBIT 3 39 spraying of paint and protective coating on metal parts or fabrications—and reasoning that although both uses could be “generically described as ‘manufacturing” this did “not make them identical” because “[i]t is the particular use, and not its general classification, that is contemplated by the ordinance”) (emphasis added); Rosenthal v. City of Dallas, 211 S.W.2d 279, 285 (Tex. Civ. App. 1948) (stating that a nonconforming use means “substantially the same use which existed at the time of the adoption of the ordinance, and not some other and different kind of nonconforming use which the owner of the land might subsequently find to be profitable or advantageous[,]” and rejecting factory operator’s contention that change in use from an ice factory to a meat processing and curing operation was the same use). 120. Further, even in reference to the categories of uses identified in KCC § 8- 1.5, the Planning Department’s attempt to classify HPM’s use as “industrial” is unpersuasive given that one of the enumerated uses is “[m]anufacturing, construction material[,]” which is defined to include, inter alia, “wood millwork and the production of prefabricated structural wood products” -- a more accurate description of HPM’s use of the Old Koloa Sugar Mill, and a significantly different use from that of HPM’s predecessors. 121. The Court is also unpersuaded by the Planning Department’s alternative argument that HPM’s use of the Old Koloa Sugar Mill was in fact a permitted use, namely, as an “industrial mill.” 122. HRS § 205-2(d), cited by the Planning Department, states that permitted uses in agricultural district include, inter alia, “[b]ona fide agricultural services and uses that support the agricultural activities of the fee or leasehold owner of the property and accessory to any of the above activities . . . including . . . mills[.]” (Emphases added.) 123. HRS § 205-4.5, also cited by the Planning Department, allows as permissible uses within the agricultural district, inter alia, “[b]uildings and uses, including mills, EXHIBIT 3 40 storage, and processing facilities, maintenance facilities . . . and vehicle and equipment storage areas that are normally considered directly accessory to” permissible agricultural uses. (Emphases added.) 124. These statutes provide that a mill is a permissible use within the agricultural district only where the mill supports bona fide agricultural activities on the premises, yet there is no evidence in the record to establish that HPM’s use of the Old Koloa Sugar Mill as a truss manufacturing facility is somehow accessory to an agricultural use. 125. As such, the Court rejects the Planning Department’s assertion that HPM’s use is permitted within the agricultural district pursuant to HRS Chapter 205. 126. In light of the foregoing, the Court concludes that, because the Planning Department’s rescission of the NOV was based on its determination that HPM’s use of the Old Koloa Sugar Mill to manufacture wooden trusses and wall panels for residential housing construction materials was a valid nonconforming use, and because that determination was not supported by substantial evidence in the record that HPM’s nonconforming use existed as of September 1, 1972 and remained continuous to the present, that determination was clearly erroneous and, by extension, the Planning Department’s rescission of the NOV was also clearly erroneous. 127. Under HRS § 91-14(g)(5), a court may reverse or modify an agency decision if it is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record, and if the substantial rights of the petitioners may have been prejudiced because of the agency’s decision. McGlone v. Inaba, 64 Haw. 27, 34, 636 P.2d 158, 163 (1981) (quotation marks omitted) (abrogated in part on other grounds by Camara v. Agsalud, 67 Haw. 212, 685 P.2d 794 (1984)); AOAO Queen Emma Gardens v. Ma, 153 Hawai‘i 430, 431, 540 P.3d 971, 972, 2023 WL 8789100, *1 (App. 2023) (Table), cert. denied sub EXHIBIT 3 41 nom. AOAO Queen Emma Gardens & Touchstone Properties, Ltd. v. Hung Ma, No. SCWC-18- 0000717, 2024 WL 1050869 (Haw. Mar. 11, 2024) (emphases in original). 128. The Court finds that the Planning Department’s erroneous rescission of the NOV paved the way for HPM to continue operating its truss manufacturing facility without the proper permits, and accordingly substantially prejudiced PRP and its members’ interests and, as such, the Court can, and should, reverse the rescission of the NOV. 129. Accordingly, the Court reverses the Planning Department’s rescission of the NOV. 130. The Court does not rule herein on the Planning Department’s oral request, made for the first time at the hearing, to consolidate this appeal with the Declaratory Action. DECISION AND ORDER In accordance with the foregoing Findings of Fact and Conclusions of Law, and for good cause appearing, IT IS HEREBY ORDERED, ADJUDGED AND DECREED: For the reasons discussed above, the Planning Department clearly erred when it found that HPM’s manufacturing operations constitute a valid nonconforming use. Therefore, the Planning Department’s May 8, 2024 rescission of the First Notice of Violation issued October 20, 2023 is hereby reversed and vacated. DATED: Honolulu, Hawai‘i, . JUDGE OF THE ABOVE-ENTITLED COURT Findings of Fact, Conclusions of Law and Order; Pacific Resource Partnership vs. County of Kauaʻi Planning Department; Case No. 5CCV-24-0000068 August 4, 2025 EXHIBIT 3 BEFORE THE WINDWARD PLANNING COMMISSION COUNTY OF HAWAI'I STATE OF HAWAI'I In the Matter of the Application of BHG ALOHA LLC DBA WILD GINGER HOTEL (PL-SMA-2026-000097) Application for a Special Management Area Use Permit to construct and operate a new two- story, thirty-room hotel complex that includes a pool, cafe, lounge area and related improvements on 69,485 square-foot parcel within the Special Management Area. The subject parcels are located along the makai side ofPuueo Street, approximately 370 feet north of its intersection with Ohai Street and Kou Lane, and immediately south ofHilo Val Hala Apartment complex, Puueo, South Hilo, Hawaii, TMK: (3) 2-6-002:008 and 012. SPECIAL MANAGEMENT AREA USE PERMIT: PL-SMA-2026-000097 TMK: (3) 2-6-002:008 and 012 DECLARATION OF NATHANIEL KINNEY DECLARATION OF NATHANIEL KINNEY I, NATHANIEL KINNEY, declare as follows: 1. I am the Executive Director for Pacific Resource Partnership ("PRP"). I make this Declaration as part of my duties and based on personal knowledge unless stated otherwise, and I am competent to testify with respect to the matters set forth herein. 2. PRP is a market recovery tmst fund which represents approximately 6,000 men and women union carpenters and 250 large and small contractors throughout the State of Hawai'i, including approximately 600 union members on Hawai'i Island. 3. PRP has expertise in, and is committed to, guiding the community toward a stronger, more sustainable Hawai'i in a way that promotes a vibrant economy, preserves a healthy environment, creates jobs and enhances the quality of life for all residents ofHawai'i. PRP believes that creating a stronger, more sustainable Hawai'i requires a broad commitment from all - government officials, businesspeople, educators, environmentalists, parents and concerned citizens from all islands and all walks of life - to work together toward this common goal and make a difference for generations to come. This involves, among other things, ensuring that development projects reflect responsible, and environmentally sound, planning and execution. Indeed, by building responsibly,-PRP seeks to preserve the island lifestyle we all treasure. I, NATHANIEL KDSTNEY, do declare under penalty of law that the foregoing is true and correct. DATED: Honolulu, Hawai'i, <?/<V/4^ ^.ff' /^ NATHANIEL KINNEY 2 BEFORE THE WINDWARD PLANNING COMMISSION COUNTY OF HAWAIʻI STATE OF HAWAIʻI In the Matter of the Application of BHG ALOHA LLC DBA WILD GINGER HOTEL (PL-SMA-2026-000097) Application for a Special Management Area Use Permit to construct and operate a new two- story, thirty-room hotel complex that includes a pool, cafe, lounge area and related improvements on 69,485 square-foot parcel within the Special Management Area. The subject parcels are located along the makai side of Puueo Street, approximately 370 feet north of its intersection with Ohai Street and Kou Lane, and immediately south of Hilo Val Hala Apartment complex, Puueo, South Hilo, Hawaii, TMK: (3) 2-6-002:008 and 012. SPECIAL PERMIT: PL-SMA-2026-000097 TMK: (3) 2-6-002:008 and 012 CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this date, a true and correct copy of the foregoing document was duly served upon the following parties via the means and on the date indicated below: NAME(S) U.S. MAIL POSTAGE PREPAID HAND DELIVERY EMAIL EPIC Windward Planning Commission County of Hawaiʻi Aupuni Center 101 Pauahi Street, Suite 3 Hilo, Hawai‘i 96720 planning@hawaiicounty.gov ý ý 2 NAME(S) U.S. MAIL POSTAGE PREPAID HAND DELIVERY EMAIL EPIC BHG Aloha LLC dba Wild Ginger Hotel c/o Amarpreet Khalsa 540 Monroe Ave NE Renton, Washington 98056 and 100 Puueo St Hilo, Hawaii 96720 ý Bhangu Hospitality LLC c/o Amarpreet Khalsa 540 Monroe Ave NE Renton, Washington 98056 ý DATED: Honolulu, Hawai‘i, September 24, 2026. /s/ Abigail M. Holden ABIGAIL M. HOLDEN ANDREW K. RECKTENWALD CHRISTINE A. TERADA Attorneys for PACIFIC RESOURCE PARTNERSHIP