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HomeMy WebLinkAbout2026-08-28 Motion to Dismiss Appeal from Danette Martin (FERREIRA PL-BOA-2026-000137)From: Danette Martin To: Plannina Board of Anneals Cc: oatandco.inc96Cabyahoo.com; Paul Alston; Darrow. Jeffrey W.; Barrett. Donna B; Grodzin. Noah Subject: PL-BOA-2026-000137 / Olson Trust / Verizon Wireless Date: Friday, August 28, 2026 4:19:24 PM Attachments: Paoaikou Motion to Dismiss Anneal 8.28.26 sianed.odf Aloha, Please find a Motion to Dismiss Appeal. I'm unable to upload this file in EPIC. Please let me know if you have any questions. Danette Martin Consultant to General Dynamics and Verizon Wireless 76-6357 Kololia Street Kailua-Kona, Hawaii 96740 Telephone: 808-895-3569 BEFORE THE BOARD OF APPEALS COUNTY OF HAWAII PATRICK FERREIRA, Appellant, vs. DIRECTOR OF THE PLANNING DEPARTMENT, COUNTY OF HAWAII, Appellee. Case No. MOTION TO DISMISS APPEAL FOR LACK OF JURISDICTION MEMORANDUM IN SUPPORT I. INTRODUCTION Verizon Wireless ("Movant" or "Applicant"), the holder of the planning permit and building permit for the wireless telecommunications facility located at TMK 2-7-033-019, 27- 256 Old Mamalahoa Hwy., Papaikou, HI 96781 ("Subject Property"), respectfully moves this Board to dismiss the appeal filed by Patrick Ferreira ("Appellant") on August 18, 2026, because the appeal is untimely and the Board lacks jurisdiction to hear it. First, the appeal is untimely and the Board lacks jurisdiction to hear it. The Director's planning permit decision was issued in 2018, more than 8 years before the Appellant's petition was filed. Rule 8-3 of the Board of Appeals Rules of Practice and Procedure ("Rules") requires that an appeal be filed within thirty (30) days of the Director's written decision. This time limit is jurisdictional and cannot be waived or suspended. Rule 2-1. Page 1 For these reasons, and for the additional procedural defects set forth below, this Board should dismiss the appeal with prejudice for lack of jurisdiction. II. STATEMENT OF FACTS The Subject Property is identified as TMK 2-7-033-019, located at 27-256 Old Mamalahoa Hwy., Papaikou, HI 96781, with a total area of 37,635.84 square feet. The property is zoned Commercial Village (CV) under the Hawaii County Code and carries a State Land Use designation of Hawaii (non -conservation). The landowner is Edmund C. Olson Trust No. 2. 2. In 2018, the Director of the Planning Department approved a planning permit PL-BOA- 2026-000137 for the construction of a wireless telecommunications facility on the Subject Property. 3. In June 2026, the County issued a building permit for the constriction of the approved facility. Construction thereafter commenced in reliance on both the valid planning permit and the building permit. 4. On August 18, 2026—more than 8 years after the Planning Director's written decision — Appellant Patrick Ferreira filed a General Petition for Appeal of the Planning Director's decision with this Board. 5. The Appellant is a neighboring resident. He is not the landowner and is not the applicant. He holds no property interest of record in the Subject Property. Page 2 6. The Appellant's stated interest in the Subject Property is: "In question, placement of cell tower that is less than 30 feet from residential properties. " 7. The Appellant admits in his petition that: "We do not have a copy of the Planning Director's decision letter as the homeowners were not notified that such a decision was being processed and made. " 8. Construction on the approved wireless facility has already commenced. The Applicant has expended substantial resources in reliance on the valid and final permits. III. ARGUMENT A. THE APPEAL IS UNTIMELY AND THE BOARD LACKS JURISDICTION 9. Rule 8-3 of the Rules of Practice and Procedure establishes mandatory time limits for filing an appeal from the Director's decision. An appeal must be filed within thirty (30) days of the Director's written decision. This requirement is jurisdictional. 10. Rule 8-3(a) provides: "When the Code, Board Rule, or Order requires no direct notification or service of the decision (i.e., certified or dated receipt), the appeal shall be filed within thirty (30) days of the date of the Director's written decision, unless otherwise stated in the applicable Code. " 11. Here, the Planning Department approved the planning permit in 2018. The Appellant's petition was not filed until August 18, 2026—more than 8 years after the Director's written decision. Page 3 12. Even assuming arguendo that the relevant decision is the June 2026 building permit rather than the 2018 planning permit, the appeal is still untimely. Thirty (30) days from any date in June 2026 would have expired no later than July 31, 2026. The August 18, 2026, petition was filed after that deadline had passed. 13. The time limit for filing an appeal is jurisdictional. Rule 2-1 provides that the Board may waive or suspend rules of practice and procedure for good cause, 'provided that rules relating to jurisdictional matters shall not be waived or suspended by the Board. " The thirty -day appeal deadline is a jurisdictional prerequisite to the Board's authority to hear the matter. Because the appeal was not filed within thirty (30) days of the Director's written decision, this Board lacks jurisdiction to entertain it. 14. The Appellant's claimed lack of notice does not toll the deadline. Rule 8-3(a) ties the deadline to the "date of the Director's written decision," not to the date of receipt by a third party. The running of time begins on the date following the act, event, or default. Rule 1-8. 15. Rule 8-3(b) provides an alternative thirty -day period running from "receipt of that decision or notice, "but that provision applies only "[w]hen the Code, Board Rule, or Order requires that a written decision be provided directly to an applicant (i.e., certified or dated receipt), or that an applicant must serve notice to affected parties. " This provision protects the applicant —the person to whom the decision is directed —not a third -party neighboring resident. The Appellant cannot invoke Rule 8-3(b) because no provision of the Code required direct notification to him. Page 4 16. Rule 8-3(c) recognizes the jurisdictional nature of the time limit by providing that "[a]ny petition filed after the thirty (30) day filing requirement, the Director may file an appropriate motion with the board within ten (10) days from the date of the petition filing. All filing deadlines shall thereafter be suspended until the motion is heard and decided upon by the board. " This motion is timely filed within that ten-day window. 17. For these reasons, the appeal is untimely, the Board lacks jurisdiction, and the appeal must be dismissed with prejudice. B. THE APPEAL PETITION IS PROCEDURALLY DEFECTIVE 18. In addition to the jurisdictional defect, the appeal petition fails to comply with the formal requirements of Rule 8-4 19. Rule 8-4(6) requires that the petition include "[a] copy of the Director's decision being appealed. " The Appellant admits he does not have this document. The petition is therefore facially incomplete. 20. The petition fails to identify which specific Director's decision is being appealed. The Appellant references both the 2018 planning permit and the June 2026 building permit but does not specify which decision he seeks to challenge, the date of the decision, or the Director who issued it. 21. The petition does not cite any specific provision of the Hawaii County Code that was allegedly violated. Rule 8-4(4) requires "[a statement explaining" how the decision violates the law, is clearly erroneous, or is arbitrary and capricious. The Appellant offers only generalized policy objections without reference to any applicable legal standard. Page 5 22. While Rule 24(e) allows thirty (30) days to cure a defective filing, a jurisdictional defect —untimeliness —cannot be cured by amendment. No amount of additional time will bring the petition within the thirty -day jurisdictional window that expired over two years ago. IV. CONCLUSION AND PRAYER FOR RELIEF 23. For the reasons set forth above, the appeal filed by Patrick Ferreira on August 18, 2026, should be dismissed with prejudice because: (a) The appeal is untimely, having been filed more than 8 years after the Director's written decision, in violation of the mandatory thirty -day jurisdictional deadline of Rule 8-3, and the Board therefore lacks jurisdiction; and (b) The appeal petition is procedurally defective, failing to include a copy of the Director's decision or to identify with specificity the decision being challenged or the legal standards allegedly violated. 24. WHEREFORE, Movant respectfully requests that this Board enter an Order: (a) Dismissing the appeal with prejudice for lack of jurisdiction; (b) In the alternative, if the Board does not dismiss the appeal at this time, denying any request for a stay, stop -work order, or suspension of the permits, as the Appellant cannot demonstrate the likelihood of success on the merits, irreparable harm, or any of the other factors required for such extraordinary relief under HRS § 91-14(c); and Page 6 (c) Granting such other and further relief as this Board deems just and proper. DATED: 08/28/26 Respectfully submitted, Verizon Wireless By: Donna B. Barrett Donna B. Barrett, Counsel Attorney for Verizon Wireless Donna.Barrett@verizonwireless.com Page 7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 28th day of August , 2026, a true and correct copy of the foregoing MOTION TO DISMISS APPEAL FOR LACK OF JURISDICTION; MEMORANDUM IN SUPPORT was served by first-class mail, postage prepaid, and/or electronic service upon the following: Patrick Ferreira (Appellant) PO Box 155 Papaikou, HI 96781 Email: patandco.inc96@yahoo.com Edmund C. Olson Trust No. 2 (Landowner) Paul Alston, Trustee PO Box 446 Papaikou, HI 96781 Email: paul@olsontrust.com Director of the Planning Department (Appellee) County of Hawaii Aupuni Center, 101 Pauahi Street, Suite 3, Hilo, HI 96720 Email: boardofappeals@hawaiicounty.gov Donna B Barrett Donna B. Barrett Page 8