HomeMy WebLinkAbout2026 10 14 Appellant Ohana's Objections to Record, Rosehill Dec, and COS_v1.pdfNATIVE HAWAIIAN LEGAL CORPORATION
1164 Bishop Street, Suite 1205
Honolulu, Hawaii 96813
Telephone: (808) 521-2302
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TERINA K. FA`AGAU 11511
ASHLEY K. OBREY 9199
Attorneys for Appellant
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAI`I
STATE OF HAWAI`I
`OHANA O MOKUHULU, KAIMU
MAKENA, AND KALAPANA,
Appellant,
vs.
JEFFREY DARROW, PLANNING
DIRECTOR, COUNTY OF HAWAPI,
Appellee,
and
KAIMU COVE, LLC.,
Landowner.
CASE NO.: PL-BOA-2026-000127
APPELLANT' S OBJECTIONS TO THE
RECORD ON APPEAL; DECLARATION
OF LESLIE ENRIQUEZ ROSEHILL;
CERTIFICATE OF SERVICE
Hearin:
Date: November 13, 2026
Time: 9:30 a.m. in Hilo
APPELLANT'S OBJECTIONS TO THE RECORD ON APPEAL
I. INTRODUCTION
Appellant `Ghana o Mokuhulu, Kaimu Makena, and Kalapana (the "`Ohana"), by and
through its attorneys Terina K. Fa`agau and Ashley K. Obrey of the Native Hawaiian Legal
Corporation, hereby objects to the Record on Appeal filed by Appellee Jeffrey Darrow, Director
of Planning, County of Hawaii (the "Director"), on January 27, 2026, on the ground that it is
materially incomplete. The `Ghana requests that the Board of Appeals (the "Board") order the
Director to supplement the Record with all records in the Director's file directly related to the
decision to approve the SMA Minor Permit of Landowner Kaimu Cove, LLC (the "Applicant"),
including but not limited to the documents identified below.
Pursuant to Paragraph 2 of the Board's Scheduling Order dated July 8, 2026, which
requires that any objections to the Record on Appeal be served upon the opposing party and filed
with the Board no later than October 14, 2026, the `Ohana hereby resubmits the objections to the
Record on Appeal that it originally filed and served on June 10, 2026, together with one
additional objection concerning the Planning Department's 2024 Background Report for SMA
Use Permit Application PL-SMA-2024-000063 (Section II.C, below). The hearing in this matter,
previously set for July 10, 2026, has been continued to November 13, 2026. On June 12, 2026,
the Director filed the County of Hawai`i's Response to Objections to Record on Appeal (the
"Director's Response"), asserting that the Record on Appeal contains all records in the Planning
Department's files "responsive to" the Director's decision to grant SMA Minor Permit PL-
SMM-2025-000079 and stating that "[n]o additional records, documents, materials will be
produced by the Planning Director." Director's Response at 2. The Director has not
supplemented the Record on Appeal, and the objections set forth below remain unresolved. The
`Ghana addresses the Director's Response in Section II.
The Record on Appeal is "a compilation of public records from the department that are
directly related to the Director's decision for the appeal in question." County of Hawaii Board
of Appeals Rules of Practice and Procedures ("BOA Rules") § 1-3(21). "[T]he entire record or
file from the Director shall be submitted to the Board and other parties ..." BOA Rules § 3-
13(h) (emphasis added). Documents that were in the Planning Department's file and are directly
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related to the Director's decision issued December 4, 2025 approving SMA Minor Permit PL-
SMM-2025-000079 (the "Decision") must be included.
II. MISSING OR INCOMPLETE DOCUMENTS
The `Ghana objects that the Record on Appeal is incomplete as to the full scope of the
Planning Department's files related to the subject property, TMK No. (3) 1-2-018:001, and to the
activities of the Applicant thereon. As set forth above, BOA Rules §§ 1-3(21) and 3-13(h)
require the Director to submit the entire file directly related to the Decision.
In the Director's Response, the Director maintains that the Record contains all records
"responsive to" the Decision, and that other records in the Planning Department's files
concerning the subject property, including "applications and processing of permits other than the
SMA Minor Permit, and investigations and notice(s) of violation of matters other than the SMA
Minor Permit," are "not responsive to this appeal." Director's Response at 2. That position is a
narrower standard than the one set by the BOA Rules. The BOA Rules do not limit the Record to
documents the Director deems "responsive"; they require "the entire record or file from the
Director," consisting of public records "directly related to the Director's decision." BOA Rules
§§ 1-3(21), 3-13(h).
A record need not have been generated in the SMA Minor Permit proceeding itself to be
directly related to the Decision. The Director concedes that the considerations for evaluating
SMA permits under Planning Commission Rule 9 "are broad[.]" Director's Response at 2. And
the Decision includes findings on cumulative impact and significant adverse effect that cannot be
evaluated without the Department's history with this property and this Applicant. Further, the
Record as filed contradicts the Director's limitation: it already includes the October 14, 2025
Stop Work Order (Document 12), issued before the SMA Minor Permit application was filed,
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and the Department's letter accepting the Applicant's withdrawal of SMA Use Permit
Application PL-SMA-2024-000063 (Document 14). There is no principled basis for including
those records while excluding the related Notices of Violation and Order, hearing minutes,
background and recommendation reports, and correspondence as "matters other than the SMA
Minor Permit." See Director's Response at 2.
The `Ghana also has independent reason to believe the Record as filed is incomplete.
Following the October 3, 2024 Windward Planning Commission (the "Commission") hearing,
`Ohana member Leslie Em7quez Rosehill requested from the Planning Department all plans,
permits, and history associated with the subject property. In response to that request, Ms.
Rosehill was provided access to the Planning Department's file and was able to review
documents in it relating to the property and the pending application(s). Her access was
withdrawn in or around December 2025.
Some of the documents Ms. Rosehill reviewed and/or documents of the same type and
subject matter are not among the twenty-one (21) documents in the Record on Appeal.
Documents reflecting the Planning Department's enforcement history, internal communications,
negotiations with the Applicant about the easement, and interactions with the `Ghana are absent.
A record that omits the Department's enforcement history, deliberations, and communications
with both the Applicant and the `Ghana does not provide the "entire record or file from the
Director" required under BOA Rules § 3-13(h). And the Board cannot evaluate whether the
Director erred if it lacks access to the full Record on which the Director acted.
Accordingly, the `Ohana requests that the Board direct the Director to supplement the
Record with all Planning Department records and documentation pertaining to:
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TMK No. (3) 1-2-018:001, including all correspondence, memoranda, inspection reports,
photographs, notes, internal communications, and other documents in the Department's
file related to the property from 2022 through 2025;
2. Kaimu Cove, LLC's presence and activities on the subject property, including all
documentation of the unauthorized grubbing, grading, clearing, construction, and ground -
disturbing activities since the Applicant acquired the property on May 28, 2022;
3. All permit applications submitted in connection with the subject property, including but
not limited to PL-SAA-2022-000080, PL-SUB-2022-000094, PL-SAA-2022-000126,
PL-SMA-2024-000063, PL-SAA-2025-000312, and PL-SMM-2025-000079, and all
correspondence, internal communications, and agency reviews related to each;
4. All enforcement actions taken by the Planning Department with respect to the subject
property and the Applicant since the Applicant acquired the property on May 28, 2022,
including all Notices of Violation and Orders, Stop Work Orders, corrective action
correspondence, fine assessments, deadline extensions, and compliance documentation;
5. All communications between Planning Department staff and Kaimu Cove, LLC, its
managing members, its planning consultant, or any other representative of the Applicant,
since May 28, 2022; and
6. All communications between Planning Department staff and the `Ghana, its members, or
its representatives, from 2022 through 2025, including all correspondence regarding the
Cultural Impact Assessment, the public shoreline access easement, and the `Ohana's
requests for enforcement action.
Beyond the categories of records described above, the `Ghana has identified specific documents,
discussed below, that were in the Director's file and are directly related to the Decision yet
absent from the Record on Appeal.
The documents identified in this objection are those the `Ghana has been able to identify,
and they are illustrative but not exhaustive. Other records that were in the Department's file and
are directly related to the Decision, but that were omitted from the Record on Appeal, are
likewise part of the Record and should be included, whether or not the `Ohana has been able to
identify them.
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A. The Notices of Violation and Orders (PL-PCV-2022-00015)
The Planning Department's Notices of Violation and Order issued to the Applicant for
unpennitted activity on the subject property were public records in the Director's file related to
the Decision and are a part of and should be included in the Record on Appeal. The Department
issued three such Notices concerning the subject property, TMK No. (3) 1-2-018:001: the
October 10, 2022 Notice of Violation and Order ("1st NOV"), issued by then -Director Zendo
Kern for unauthorized grubbing and grading without an SMA permit; the October 29, 2025
Notice of Violation and Order ("2nd NOV"), issued for the Applicant's unpennitted work and
additional ground disturbances on the subject property while the SMA Minor Permit application
was pending; and the January 28, 2026 Notice of Violation and Order ("3rd NOV"), issued for
the Applicant's additional land clearing, grubbing, and/or construction work on the subject
property without an approved Archaeological Monitoring Plan in violation of Condition No. 9 of
the SMA Minor Permit PL-SMM-2025-000079.
The Record on Appeal includes Stop Work Orders that reference this enforcement
activity but omits the Notices of Violation and Order themselves and their associated compliance
history. The 2nd NOV followed the October 14, 2025 Stop Work Order (included as Document
12), and the 3rd NOV followed the January 14, 2026 Stop Work Order (included as Document
20). Because the Record already contains these Stop Work Orders, it cannot be complete without
the inclusion of the corresponding Notices of Violation and Orders that document the same
enforcement history.
The Decision includes findings on cumulative impact and significant adverse effect, to
which the Department's enforcement record for the subject property is directly relevant. The
enforcement record also bears on Condition No. 12 of the SMA Minor Permit, which states that
the Director "relied on the information and data that the applicant has provided[.]" Moreover, the
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Notices of Violation and Order are not "matters other than the SMA Minor Permit." See
Director's Response at 2. The 2nd NOV addressed the Applicant's unpeimitted work and ground
disturbance on the subject property while the SMA Minor Permit application was pending, and
the 3rd NOV was issued for violation of Condition No. 9 of the SMA Minor Permit itself.
B. The October 3, 2024 Windward Planning Commission Hearing Minutes (PL-
SMA-2024-000063)
The minutes of the October 3, 2024 Windward Planning Commission hearing on SMA
Use Permit Application PL-SMA-2024-000063 are a part of and should be included in the
Record on Appeal as they were public records in the Planning Department's file directly related
to the Decision on the Applicant's SMA Minor Permit application. The Record includes the
Planning Department letter accepting the Applicant's withdrawal of its Use Permit application
(Document 14), which mentions the Commission hearing, but does not include the minutes of the
hearing that directly preceded the withdrawal.
At the October 3, 2024 hearing, `Ghana members and other community members
submitted oral and written testimony about the historical and cultural significance of the subject
property and their traditional and customary practices. In response to that testimony, then -
Director Zendo Kern "mentioned that, for the first time, despite the existing recommendation
[favoring approval], he is inclined to change his stance[.]" Appellant's Petition for Appeal, Exh.
5. The Commission continued the hearing and requested that a Cultural Impact Assessment
("CIA") and/or Archaeological Inventory Survey be completed before it would decide on the
application.
On October 14, 2025, in addition to receiving a Stop Work Order for further unauthorized
construction, the Applicant withdrew its SMA Use Permit application PL-SMA-2024-000063.
About two weeks later, on October 27, the Applicant filed the SMA Minor Permit application,
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PL-SMM-2025-000079, at issue in this appeal. The October 3, 2024 hearing minutes establish
the specific context in which that withdrawal occurred and are directly related to evaluating the
Decision.
C. The 2024 Planning Department Background and Recommendation Reports
for PL-SMA-2024-000063
The Planning Department's Background Report on SMA Use Permit Application PL-
SMA-2024-000063 and its Recommendation Report recommending that the Windward Planning
Commission approve that application were public records in the Planning Department's file
related to the Decision and are a part of and should be included in the Record on Appeal. Both,
however, are absent from the Record as filed. The reports were issued by the Planning
Department in advance of the October 3, 2024 hearing and reflect the Department's analysis of
the 5-lot subdivision application, including its environmental, cultural, and SMA findings at the
time the Department recommended approval.
The reports are directly relevant because they reflect the Department's prior assessment
of this property and project. Although then -Director Kern indicated at the October 3, 2024
hearing that he was inclined to change the Department's position, the Department's written
analysis and findings for the larger project are part of the evidentiary and analytical background
against which the Decision to approve the SMA Minor Permit must be evaluated.
D. The Director's October 29, 2025 Reply to Leslie Enriquez Rosehill
The Director's October 29, 2025 reply to Leslie Enriquez Rosehill was a record in the
Planning Department's file related to the Decision; it is a part of and should be included in the
Record on Appeal. Document 15 of the record is an email from Leslie Enriquez Rosehill to
Director Darrow and Planning Department staff dated October 28, 2025, in which Ms. Rosehill
reported continued unauthorized construction and requested enforcement action and restoration
of the traditional coastal access trail. The Director's reply, sent October 29, 2025, is not included.
In his reply, the Director acknowledged that Planning Department staff had conducted a
site visit and were drafting the 2nd NOV and addressed how the public shoreline access
easement would be established through the ongoing SMA permitting process. This
communication is directly related to the Decision and Condition No. 6 of the SMA Minor
Permit, requiring the Applicant to establish a pedestrian public shoreline access easement. The
communication confirms the Director was aware of the `Ohana's access concerns and the
ongoing permitting process, and it reflects his position on how those concerns would be
addressed through the SMA permitting process he was then conducting. It is part of the same
email chain as Document 15 and is in the Planning Department's file.
E. July through December 2025 Email Correspondence Between the `Ghana
and the Planning Department
Because email correspondence between `Ghana representatives and Planning Department
staff from July through September 2025 was a record in the Planning Department's file related to
the Decision, it is a part of and should be included in the Record on Appeal. Yet it is absent from
the Record.
This correspondence concerns the Department's review of the `Ohana's CIA and of
cultural impacts in connection with the application. It also reflects the Department's
communications with the `Ghana during the period the application was under review. Because
these are Planning Department records in the Department's file, the Board should direct the
Director to supplement the Record with all email correspondence between Planning Department
staff and `Ghana representatives beginning on or around July 1, 2025 through December 4, 2025,
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including but not limited to correspondence regarding the review of the CIA and the scope of the
proposed public access easement.
F. July 2024 Email Correspondence Between Planner Alex Roy and Daryn Arai
Regarding the Public Shoreline Access Easement (PL-SMA-2024-000063)
The emails between Planning Department Planner Alex Roy and Daryn Arai, planning
consultant for the Applicant, dated July 11-24, 2024, concerning the scope and configuration of
the public shoreline access easement for SMA Use Permit Application PL-SMA-2024-000063
are records in the Planning Department's file directly related to the Decision and are a part of
and should be included in the Record on Appeal. The emails, however, are absent from the
Record as filed.
In this correspondence, Planning Department staff and the Applicant's consultant Daryn
Arai discussed the location and configuration of the proposed public access easement. The
correspondence reflects a prior understanding regarding the location and width of the pedestrian
access easement. Department staff further indicated that the Director was aware of and in
agreement with the proposed easement configuration.
These emails are the Planning Department's records of the communications that informed
the easement condition ultimately imposed in the SMA Minor Permit and are necessary to
provide a complete record of the Director's decision -making on that condition. First, Condition
No. 6 of the SMA Minor Permit requires a 10-foot-wide public pedestrian shoreline access
easement. The email chain establishes the prior negotiating history and the Director's stated
position on the easement and bears directly on the easement requirement imposed as Condition
No. 6. Second, the correspondence reveals that the access easement was negotiated between the
Planning Department and the Applicant's consultant, without involvement of or notice to the
`Ohana or other community members with traditional and customary access rights in the area.
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The emails bear on the extent to which the `Ghana and other community members participated in
the easement negotiation.
Therefore, the Board should direct the Director to supplement the Record with all email
correspondence between Planning Department staff and Daryn Arai, the Applicant, and/or its
representatives from July 1, 2024 through December 4, 2025, concerning the scope,
configuration, or location of the public shoreline access easement for any permit application
related to TMK No. (3) 1-2-018:001.
III. CONCLUSION
For the foregoing reasons, the Board should direct the Director to supplement the Record
on Appeal with the following documents:
The October 10, 2022, October 29, 2025, and January 28, 2026 Notices of Violation
and Order, the Planning Department's site inspection reports and photographs, and all
related compliance correspondence;
2. The October 3, 2024 Windward Planning Commission hearing minutes for PL-SMA-
2024-000063, including all written testimony;
3. The 2024 Planning Department Background Report and Recommendation Report for
SMA Use Permit Application PL-SMA-2024-000063;
4. The Director's October 29, 2025 reply to Leslie Enriquez Rosehill;
5. All email correspondence between Planning Department staff and `Ohana
representatives from July 1, 2025 through December 4, 2025;
6. All email correspondence between Planning Department staff and Kaimu Cove, LLC
or its representatives, including Daryn Arai, regarding the subject property and any
permit applications submitted by the Applicant through December 4, 2025; and
7. All other Planning Department records in the Director's file that are directly related to
the Decision but were omitted from the Record on Appeal, including records not
specifically identified above.
The Board should further order that the supplemented Record be served on all parties
within a reasonable time prior to the November 13, 2026 hearing — i.e., no later than October 28,
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2026, the date by which responsive exhibits are due — to allow adequate preparation. Should
supplementing the Record require additional time, the `Ohana does not oppose a brief
continuance of the contested case hearing so that the parties and the Board may proceed upon a
complete Record.
DATED: Honolulu, Hawaii, October 14, 2026.
/s/ Terina K. Fa `agau
TERINA K. FA`AGAU
ASHLEY K. OBREY
Attorneys for Appellant
`OHANA O MOKUHULU,
KAIMU MAKENA,
AND KALAPANA
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BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAI`I
STATE OF HAWAI`I
`OHANA O MOKUHULU, KAIMU CASE NO.: PL-BOA-2026-000127
MAKENA, AND KALAPANA,
DECLARATION OF LESLIE ENRIQUEZ
Appellant, ROSEHILL IN SUPPORT OF
APPELLANT' S OBJECTIONS TO THE
VS. RECORD ON APPEAL
JEFFREY DARROW, PLANNING
DIRECTOR, COUNTY OF HAWAI`I,
Appellee,
and
KAIMU COVE, LLC.,
Landowner.
DECLARATION OF LESLIE ENRIQUEZ ROSEHILL
I, Leslie Enriquez Rosehill, declare as follows:
1. I am a member of `Ohana o Mokuhulu, Kaimu Makena, and Kalapana (the
"`Ohana"), Appellant in the above -captioned matter.
2. I make this declaration based on my personal knowledge, and I am competent to
testify to the matters stated herein.
3. I am a lineal descendant of Native Hawaiian families with ancestral ties to Kaimu
ahupua`a in the Puna District, Hawaii Island.
4. I attended and submitted testimony to the October 3, 2024 Windward Planning
Commission hearing on SMA Use Permit Application PL-SMA-2024-000063.
5. Following that hearing, on October 9, 2024, I submitted a request via email to the
County of Hawaii Planning Department for all plans, permits, and history associated with the
subject parcel, TMK No. (3) 1-2-018:001, at 12-7789 Kalapana-Kapoho Beach Road.
6. In response to my request, I was granted access to the Planning Department's file
related to the subject property and the pending permit applications.
7. On October 18, 2024, Planning Department staff provided me with a OneDrive link
to a shared folder titled "TMK (3) 1-2-018-001."
8. Through that access, I was able to review documents in the Planning Department's
file. These included correspondence between Planning Department staff and Kaimu Cove, LLC
(the "Applicant") or its representatives, internal communications, enforcement -related records,
and other documents relating to the Applicant's activities on the subject property and the history
of its permit applications.
9. On or around December 2025, when I attempted to access the Planning
Department's records, I found that the shared folder was no longer accessible to me.
10. Several documents that I reviewed during the period of my access, or documents of
the same type and subject matter, are not among the twenty-one (21) documents included in the
Record on Appeal filed by the Director on January 27, 2026.
I declare under penalty of law that the foregoing is true and correct to the best of my
knowledge and belief.
DATED: Hilo, Hawaii, June 10, 2026.
LESLIE ENRIQUEZ ROSEHILL
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BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAI`I
STATE OF HAWAPI
`OHANA O MOKUHULU, KAIMU
MAKENA, AND KALAPANA,
Appellant,
vs.
JEFFREY DARROW, PLANNING
DIRECTOR, COUNTY OF HAWAI`I,
Appellee,
and
KAIMU COVE, LLC.,
Landowner.
CASE NO.: PL-BOA-2026-000127
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing document was served on the
following parties identified below by electronic mail service pursuant to Board of Appeals Rule 2-
6 on October 14, 2026:
JEAN K. CAMPBELL
Deputy Corporation Counsel
Office of the Corporation Counsel
Jeank.cambbell(a hawaiicountv.aov
Attorney for Appellee
PATRICK K. WONG
Carlsmith Ball LLP
75-5722 Kuakini Highway, Suite 208
Kailua-Kona, HI 96740
Pwong(a carlsmith.com
Attorney for Landowner Kaimu Cove, LLC
RENEE N. C. SCHOEN
Corporation Counsel
SYLVIA A. WAN
Deputy Corporation Counsel
Office of the Corporation Counsel
County of Hawaii
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
Sylviaa.wang
,,hawaiicoun1y.gov
Attorney for the Board of Appeals
LISA ANN BENHAM
lbsbinckgmail.com
Landowner
DATED: Honolulu, Hawaii, October 14, 2026.
/s/ Terina K. Fa `agau
TERINA K. FA`AGAU
ASHLEY K. OBREY
Attorneys for Appellant
`OHANA O MOKUHULU,
KAIMO MAKENA, AND KALAPANA
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