HomeMy WebLinkAbout2026-10-16 PL-BOA-2026-000137 MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS_signedMEMORANDUM HAND DELIVER171-1
IN OPPOSIITION TO MOTION TO DISMISS APPEAL
MOTION WAS DATED AUGUST 28, 2026 AND SENT FROM DONNA BERRETT TO THE BOARD OF APPEALS
RE. PL-PA-2024-000347 TMK (3) 2-7-033:019
The motion claims that (1) the appeal is untimely and (2) the Board lacks jurisdiction to hear it, and lists
supposed procedural defects.
The claims are unfounded, as explained below, and the Board should hold a hearing on the substance of
the appeal.
(I regret that this memorandum is not timely. It's delayed because I cannot find an attorney to assist me.)
RESPONSE TO 1. INTRODUCTION "THE APPEAL IS UNTIMELY"
II. STATEMENT OF FACTS 3. "VALID PLANNING PERMIT"
4. "MORE THAN 8 YEARS AFTER PLANNING DIRECTOR'S WRITTEN
DECISION"
III. ARGUMENT 11. "MORE THAN 8 YEARS AFTER PLANNING DIRECTOR'S WRITTEN
DECISION"
IV. CONCLUSION AND PRAYER FOR RELIEF 23. (A) [capitals added]
The Memorandum Introduction says "The Director's planning permit decision was issued in 2018..."
However, that decision is no longer valid. Planning Director Jeff Darrow, speaking to Cory Harden at the
Planning Department on September 9, 2026, said this decision was only valid for two years.
However, there was also a Final Plan Approval, PL-PLA-2024-000347, issued December 16, 2024. 1 did not
appeal that within 30 days, but here are the reasons for the delay, copied from my September 22, 2026
letter to Bethany Morrison. (italics added)
(A revised version of the Approval was issued October 7, 2026 and I expect to appeal that Approval.)
ITEM 1
'An appeal filed within the time limits prescribed by statute, ordinance, rule, or by order of the Board."
The Board of Appeals Rules of Practice and Procedures say:
2-1 Waiver or Suspension of Rules.
For good cause shown, the Board may, by majority vote, waive or suspend any rule or rules
of practice and procedure; provided that rules relating to jurisdictional matters shall not be
waived or suspended by the Board. [underlines added]
There are good causes
rollSP 1
it appears Verizon, Olson Trust, and Planning are not being required to follow the letter of the law
The letter of the law is the Final Plan Approval. But that document cites an incorrect Use Permit. (see my
response re. ITEM 2 B). If there was any attention paid to this, or any effort to correct it, there is no
documentation in the limited number of records Planning has provided to me. (see my response re.
Cause 2).
[The Approval was revised on October 7, 2026 to correct the error, but the construction work cited below
was done before October 7.]
Despite the flawed Use Permit, earth -moving equipment has worked on the site (shaking my house to the
point where I asked the Building Department for a stop work order) and a layer of gravel about 20 feet
square has been put down.
Since Verizon, Olson Trust, and Planning are not being required to follow the letter of the law, it is unfair to
require me to follow it.
Cause 2
1 am hampered from writing an effective appeal because the Planning Department has not provided
documents used as the basis for the Planning Director's decision, such as:
any communication between the applicant and Planning re. the incorrect Use Permit
correspondence re. the application, to and from the applicant and Planning Department, with
reviewing agencies such as Water Department, Public Works, Fire Department, Planning
Department, and State Historic Preservation Division
items cited, but not included, in the Final Plan Approval
o Sheet L1.0 and condition 1 re. landscaping
o Detailed background for Structural engineer report and Structural Certification Plan
o Copy of Hawaii County Code 25-4-12 as it existed on the date of application
o Air Space Report dated 1112122
o Development plan
Cory Harden requested the documents on my behalf by e-mailing Planning Department on August 10,
2026, and going to Planning in person on August 31 and September 9 and 11, 2026. Some documents
have been provided, but not all.
On September 14, 2026, Cory also asked County Council staff for a copy of the County Code as it existed on
the date of Verizon's application., but there is no response yet.
[On October 14 2026, Cory received a reply re. the County Code. ]
[On October 15 2026, Cory received an opinion from the Office of Information Practices that her formal
REQUEST TO ACCESS A GOVERNMENT RECORD should have received a reply from Planning by August 10,
2026.]
Cause 3
t was impossible for me to comply with the appeal deadline, because neighbors were not notified that a
decision was being considered, nor when it was finalized.
• August 4, November 1, December 4 and 19, 2024; and February 4, 2025
Bill 194 considered by County Council and Windward and Leeward Planning Commissions; contained
standards for telecommunications towers
0 June 4, 13, 18, 30 and July 7, 2025
Bill 24 considered and passed by Council Council; set standards for telecommunications facilities, such as:
Survivability of everything on towers with 100 mph winds
Efforts to seek alternate locations
Co -location for other providers on one tower
Information to neighbors
Fire protection measures
Maintenance plan
Visual impact analysis
Greater setbacks
6 foot fence and anti -climbing device
Light shielding
120 day deadline to remove tower after abandonment
Protections for natural beauty
The only public notice for the current project appears to have been this brief mention in the November 13,
2024 Hawaii Tribune -Herald.
PLAN APPROVAL...4. *Verizon Wireless/Edmond Olson Tr. (PL-PLA-2024-347) New 66'
Monopalm/Telecomm Facility on 0.8640 acs., (por.), S. Hilo, TMK: 2-7-033:019.
To see notices like this one, I would need to carefully read the Tribune -Herald every single day, which is
unreasonably burdensome.
The only reason I knew the tower was being built is that I noticed workers at the site and asked them what
they were building.
I also did not know that appeal was an option until about August 15, 2026.
RESPONSE TO I. INTRODUCTION 'THE BOARD LACKS JURISDICTION ... TIME LIMIT IS JURISDICTIONAL"
III. ARGUMENT 13. [capitals added]
The Black's law dictionary definition of "jurisdiction" says nothing about time limits.
Below is text copied from my September 22, 2026 letter to Bethany Morrison. (italics added)
This is not a "jurisdictional matter'.
According to a September 18, 2026 e-mail from Bethany Morrison to Cory Harden, the Deputy Corporation
Counsel, Sylvia Wan, "confirmed that there is no definition for jurisdictional matters' in the BOA rules or
elsewhere used for BOA.' "
However, Black's Law Dictionary, eleventh edition, defines 'jurisdiction "as
"1. A government's general power to exercise authority over all persons and things within its territory;
esp., a state's power to create interests that will be recognized under common-law principles as valid in
other states. <NewJersey's jurisdiction>. 2. A court's power to decide a case or issue a decree <the
constitutional grant of federal -question jurisdiction>. —Also termed (in sense 2) competent jurisdiction; (in
both senses) coram judice; adjudicatory jurisdiction.
"Rules of jurisdiction in a sense speak from a position outside the court system and prescribe the authority
of the courts within the system. They are to a large extent constitutional rules. The provisions of the U.S.
Constitution specify the outer limits of subject -matter jurisdiction of the federal courts and authorize
Congress, within these limits, to establish by statute the organization and jurisdiction of the federal courts.
Thus, Article ili of the Constitution defines the judicial power of the United States to include cases arising
under federal law and cases between parties of diverse state citizenship as well as other categories. The
U.S. Constitution, particularly the Due Process clause, also establishes limits on the jurisdiction of state
courts. These due process limitations traditionally operate in two areas: jurisdiction of the subject matter
and jurisdiction over persons. Within each state, the court system is established by state constitutional
provisions or by a combination of such provisions and implementing legislation, which together define the
authority of the various courts within the system." Fleming James Jr., Geoffrey C. Hazard Jr.+ John
Leubsdorf, Civil Procedure,S. 2.11, at 55 (5"h ed. 2001)
3. A geographic area within which political or judicial authority may be exercised. <the accused fled to
another jurisdiction>. 4. A political or judicial subdivision within such an area <other jurisdictions have
decided the issue differently>.
So the 30-day rule does not appear to be a jurisdictional matter..
RESPONSE TO II. STATEMENT OF FACTS 6. "PLACEMENT OF CELL TOWER THAT IS LESS THAN 30 FEET
FROM RESIDENTIAL PROPERTIES"
My interest is that the tower site is only about 35 feet from my home. A surveyor who came to the Olson
lot around September 2025 told me a cell tower should not be so close to homes.
RESPONSE TO 11. STATEMENT OF FACTS 8. "'APPLICANT HAS EXPENDED SUBSTANTIAL RESOURCES"
It is unfortunate that the applicant relied on an erroneous plan approval, and surprising that the error
went uncorrected for almost two years.
Below is text copied from my September 22, 2026 letter to Bethany Morrison. (italics added)
(B ) Erroneous decision
The decision is clearly erroneous, because the Final Plan Approval, Condition #4, says 'Applicant to comply
with all conditions stated in Use Permit 2022-000004 (PL-USE-2022-000004).
The 2022 Permit
• is for Renegade Towers, not the Uerizon tower
• is for 3331 Kaumana Drive, not the 27-256 Old Mamalahoa Highway cited in the Final Plan
Approval.
• requires a 180 foot tower. The Final Plan Approval requires 60 feet
• requires a pine tree design. The drawings submitted for PL-PLA-2024-000347 show a palm tree
And Final Plan Condition #5 appears to require access to Kaumana Drive, several miles from Papa'ikou.
Staff person Norren Kato told Cory Harden that actually no permit was required for the Papa'ikou tower,
when Cory visited Planning on September 11, 2026. It is unclear whether, or how, this was communicated
to Verizon, what law or regulation was being followed, and what relevant records exist.
RESPONSE TO III. ARGUMENT 14. "LACK OF NOTICE DOES NOT TOLL THE DEADLINE"
Deadlines can be legally be extended for several reasons, under provisions for equitable tolling, discovery
rule tolling, or tolling due to concealment.
Reasons can include:
Strict enforcement being basically unfair.
The 30-day deadline, coupled with no public notice beyond a few lines appearing one day in the back of
the newspaper, usually means no way to appeal a Planning Director decision, no matter how severe the
impacts are.
Meanwhile, Verizon is allowed to build despite the major Use Permit error.
Someone being unaware of their legal rights
I did not know that appeal was an option until early August, 2026. 1 then filed my initial appeal, on August
18, 2026.
Someone pursuing their rights diligently
Parties working on a possible agreement
I took part in community efforts to have the tower moved elsewhere. The efforts inckuded researching
and suggesting alternate locations, communicating with Olson Trust and Verizon, and circulating a
petition.
Concealment
Ed Olson told me he was planning a cell tower on September 11, 2018, when having his car worked on at
my shop. Mr. Olson said it would be close to the Olson building, not closer to my home as now planned. I
told Mr. Olson it would not be a good idea.
No one told me anything for the next 8 years.
Then I saw surveyors, on or about September 2, 2025, on the Olson lot. I approached and asked what they
were doing. To my surprise, they told me a cell tower was coming.
The County recognized the importance of notifying neighbors in a law that the County began considering
in August 2024. In July 2025—unfortunately, after the Olson tower was approved --the County finally
passed the new law. It includes a requirement that neighbors be notified when a cell tower is planned.
Below is text copied from my September 22, 2026 letter to Bethany Morrison. (italics added)
ITEM 1 Cause 3 (should be_"
A tower was also proposed for the site several years ago but never built (PLA-17-001481). Verizon's historic
consultant for that proposal, Nicole Okina of Bureau Veritas, interveiwed me, probably around November
2015, based on records for that approval. But 1 do not recall Ms. Okina mentioning the planned tower.
So Verizon took advantage of my freely sharing my knowledge to futher their own interests and inflict
impacts
RESPONSE TO III ARGUMENT A 16 saying the provision for a Director motion to suspend deadlines means
time limits are jurisdictional
There is no explanation of why this provision might mean time limits are jurisdictional.
RESPONSE TO III ARGUMENT B 19 no copy of Director's decision
I sent a copy of the Final Plan Approval, PL-PLA-2024-000347, issued December 16, 2024, with my
September 22, 2026 letter to Bethany Morrison.
RESPONSE TO III ARGUMENT B 20 decision not identified
This is corrected in my September 22, 2026 letter to Bethany Morrison.
RESPONSE TO III ARGUMENT B 21 no legal provisions cited
My September 22, 2026 letter to Bethany Morrison. cited two plans. Both were adopted as ordinances
and therefore have the force of law.
"The current Hawai'i County General Plan was adopted by ordinance [05-025] in February 2005." 05-025
https://www. planning. hawaiicounty. gov/general-plan-community-planning/gp/plan
Hamakua CDP (Adopted as County Ordinance 2018-78 on August [no date in original], 2018)
https://records. hawaiicounty. gov/Weblinkllledocll2158OlHomakua%2OCDP. pdf
IV. CONCLUSION
I have refuted reasons offered for dismissal and respectfully request that the Board hold a hearing on the
substance of the appeal.
DATED:OG7—�Z,3 6Z(Z
sp Wrerreira
' edPatrick , appellant
cc. Jeff Darrow, Planning Director, planning@hawaiicounty.gov
Donna Barrett, Verizon, Donna.Barrett@verizonwireless.com
Paul Alston, Olson Trust, paul@olsontrust.com