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HomeMy WebLinkAboutPL-BOA-2026-000134 COH Memorandum in Opposition to Appellant's MSJ and Cross-MSJRENEE N.C. SCHOEN 5936 Corporation Counsel JEAN K. CAMPBELL 7424 Deputy Corporation Counsel Office of the Corporation Counsel County of Hawaii 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-Mail: jeank.campbellghawaiicountygov Attorneys for COUNTY OF HAWAPI PLANNING DIRECTOR BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI`I O'OMA PLANTATION COMMUNITY ASSOCIATION, Appellant, ►GIs JEFFREY W. DARROW, PLANNING DIRECTOR, COUNTY OF HAWAI'I, Appellee, and FORTUNATO BOLO KAINOA PABRE, and KIMBERLY ALICIA PABRE, Landowners. CASE NO. PL-BOA-2026-000134 COUNTY OF HAWAI`I PLANNING DIRECTOR JEFFREY W. DARROW'S MEMORANDUM IN OPPOSITION TO APPELLANT O'OMA PLANTATION COMMUNITY ASSOCIATION'S MOTION FOR SUMMARY JUDGMENT AND CROSS -MOTION FOR SUMMARY JUDGMENT; CERTIFICATE OF SERVICE Hearing Date: August 14, 2026 COUNTY OF HAWAI`I PLANNING DIRECTOR JEFFREY W. DARROW'S MEMORANDUM IN OPPOSITION TO APPELLANT O'OMA PLANTATION COMMUNITY ASSOCIATION'S MOTION FOR SUMMARY JUDGMENT AND CROSS -MOTION FOR SUMMARY JUDGMENT COMES NOW, Appellee JEFFREY W. DARROW, PLANNING DIRECTOR, COUNTY OF HAWAI`I ("Director"), by and through his attorney, Jean K. Campbell, Deputy Corporation Counsel, hereby submits this Memorandum in Opposition to Appellant O'oma Plantation Community Association's Motion for Summary Judgment and Cross -Motion for Summary Judgment in the above -captioned matter. This pleading is submitted pursuant to Board of Appeals Rules of Practice and Procedure ("BOA Rule") 3-12 and Scheduling Order dated July 16, 2026. The Director agrees with Appellant O'oma Plantation Community Association ("Appellant") that no genuine issue as to any material fact remains to be determined with regard to this case, making the granting of summary judgment an appropriate relief that the Board of Appeals ("Board") may order. However, the Director respectfully requests that this Board DENY Appellant's Motion for Summary Judgment and instead GRANT summary judgment in favor of the Director. The Director moves that the Board order that: (1) Hawai'i County Charter ("Charter") § 6-7.2(b)(5) directs the Director to "administer the subdivision and zoning codes and regulations adopted thereunder" thereby establishing the Director as the County authority to interpret and enforce the zoning code. (2) In the event of a conflict in the zoning code, the Charter authorizes the Director to exercise his reasonable discretion to resolve the conflict and enforce the zoning code. (3) The Director reasonably exercised his discretion to apply Hawaii County Code ("HCU) § 25-5-66(b) imposing a 30-foot setback to livestock enclosures in the Family -agricultural ("FA") zoning district because its application is the most protective of the purposes of the State land use agricultural district to support W agricultural uses and the FA zoning of the property to provide for a blend of small- scale agricultural operations associated with residential activities. (4) Appellant has not proven that the Director's determination: (A) violates the law; or (B) is clearly erroneous; or (C) was arbitrary or capricious, or characterized by an abuse of discretion or clearly unwarranted exercise of discretion. I. Facts Landowners, Fortunato Bolo Kainoa Pabre and Kimberly Alicia Pabre, own and reside on property located at 73-1415 Kukuna Street, Kailua-Kona, Hawaii, also identified by Tax Map Key Parcel No. (3) 7-3-007-067 ("Property"). See Record on Appeal ("ROA") at Page 11. The Property is zoned Family Agricultural FA-2a, with a minimum lot size of 2 acres and, being slightly larger than two acres in size, complies with its zoning. See ROA at Page 11. The Property is situated in the State land use agricultural district. See ROA at Page 36. Following the receipt of complaints from neighbors regarding the keeping of roosters or chickens on the Property within 75 feet of the Property boundary, the Director sent a Courtesy Letter to Landowners on December 19, 2025, informing them of the allegations and requesting a response. See ROA at Pages 1-11. A Second Courtesy Letter was sent on January 14, 2026. See ROA at Page 17. The Landowners communicated with the Planning Department staff and provided photographic evidence of the location of the coops. See ROA at Page 31. On February 26, 2026, the Director issued a Closure Letter following the review of before and after photographs and having determined that the chicken coops had been located out of the required side yard setbacks. See ROA at Page 31. On April 1, 2026, the Director issued a Notice of Violation and Order ("NOVO") alleging that Hawaii County Code § 25-5-66 Minimum Yards (the 30-foot requirement) had been violated and requiring a site inspection. See ROA at Page 36-38. On May 11, 2026, Planning Department staff conducted a compliance inspection at the Property and verified that the cages had been relocated towards the center of the Property, approximately 52 feet from the Property boundary, exceeding the required 30-foot setback. See ROA at Pages 45-46. On May 13, 2026, the Director issued a Closure letter based on the inspection determining that the cages were located outside the applicable 30-foot setback, and therefore the violation had been corrected. See ROA at Pages 45-46. On June 3, 2026, H. Maxwell Kopper, Esq., and Sara M. Nakayama, Esq., on behalf of the O' oma Plantation Community Association, timely filed a General Petition for Appeal of Decisions by Planning Director or Public Works Director, appealing the Director's issuance of the Closure Letter. See ROA at Pages 49-50. It Legal Argument A. The Director is the County Authority on the Zoning Code Section 6-7.2(b) of the Charter establishes the Director as the "chief planning officer of the [C]ounty" and the administrative head of the Planning Department. Charter § 6-7.2(b)(5) directs the Director to "administer the subdivision and zoning codes and regulations adopted thereunder" making the Director the County expert in interpretation and enforcement of the zoning code. In the event that situations arise requiring interpretation of the zoning code, including the evaluation of potential conflicts within the code and interpretations about the applicability of the code, the Charter establishes that the Director is the appropriate authority to make necessary interpretations of the zoning code. M B. Conflict Exists in the Hawaii Countv Code: HCC � 25-5-62 vs HCC � 25-5-66 In this instance, two conflicting provisions of the zoning code could be applied to the Property: HCC § 25-5-62(a)(15) allows as a permitted use in the Family Agricultural district "livestock, grazing; provided that any feed or water area, salt lick, corral, run, barn, shed, stable, house, hutch, or other enclosure for the keeping of any permitted animals shall be located at least seventy-five feet from any lot line." [Emphasis added] In contrast, HCC § 25-5-66(b) establishes as the minimum yard area "[i]n the FA district, accessory buildings and enclosures (other than fences under eight feet high) for the shelter and confinement of any livestock shall be at least thirty feet from the side and rear property lines." [Emphasis added] Both provisions expressly address the required setback distance for livestock enclosures, one requiring 75 feet and one requiring 30 feet, resulting in a conflict. Neither provision is more general or more specific than the other as each one directly regulates the required setback distance for livestock enclosures within the FA zoning district. Pursuant to the Charter, the Director has the discretion to evaluate, interpret and enforce the zoning code, including in instances of conflicting provisions such as this. C. Protection of Agriculture is Well Established State Policy The Hawaii Constitution, Article XI, § 3 provides that "[t]he State shall conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands." In furtherance of this mandate, the Hawaii State Legislature has declared "that the people of Hawaii have a substantial interest in the health and sustainability of agriculture as an industry in the State. There is a compelling state 5 interest in conserving the State's agricultural land resource base and assuring the long-term availability of agricultural lands for agricultural use to achieve the purposes of: (1) Conserving and protecting agricultural lands; (2) Promoting diversified agriculture; (3) Increasing agricultural self-sufficiency; and (4) Assuring the availability of agriculturally suitable lands, pursuant to article XI, section 3, of the Hawaii State Constitution." Hawaii Revised Statutes ("HRS") § 205-41. The Hawaii Supreme Court ("HISC") has similarly opined that "[t]he `overarching purpose' of HRS chapter 205 is to `protect and conserve natural resources and foster intelligent, effective, and orderly land allocation and development.' Relevant here, HRS chapter 205 is intended in part to protect agricultural land for agricultural use." Ho'omoana Foundation v. Land Use Commission, 152 Haw. 337, 345, 526 P.3d 314, 322 (2023) [internal citations omitted; emphasis added]. D. HCC � 25-5-66(b) is the More Protective Code Provision. thus is the "More Restrictive" Appellant's Motion for Summary Judgment mis-applies the HISC's ruling in Save Sunset Beach Coalition a City and County of Honolulu ("Save Sunset Beach") that only the more restrictive use is authorized. In Save Sunset Beach, the HISC considered overlapping state and county laws regulating uses in the State land use agricultural district and opined that "[b]ecause the uses allowed in country zoning are prohibited from conflicting with the uses allowed in a State agriculture district, only a more restricted use as between the two is authorized." Save Sunset Beach Coalition v. City and County of Honolulu, 102 Hawaii 465, 482, 78 P.3d 1, 18 (2003). In evaluating these overlapping laws, the HISC considered both the supremacy of State law and the "essential purpose of the agricultural district." Id. at 17-18, 481-482. In the instant case, the Planning Director was presented with two conflicting County ordinances. In evaluating this matter, the Director considered the purpose of the FA district, set forth in HCC § 25-5-60: The FA (family agricultural) district provides for a blend of small-scale agricultural operations associated with residential activities and which may be characterized by farm estates, small acreage farms, or subsistence lots. The FA district is intended to be in areas designated as being within the State land use agricultural district, where public services and infrastructure are appropriate to support the very low density residential needs of a rural community and where substantial number of parcels are less then five acres in size, and where a mix of uses will not conflict with or be detrimental to existing agricultural uses in the surrounding area. [Emphasis added] Consistent with HCC § 25-5-60, the Property is located in the State land use agricultural district which expressly allows for farming activities and uses related to animal husbandry and game propagation and the construction and use of farm dwellings, which are single-family dwellings supporting agricultural activity. See HRS § 205-2 & § 205-4.5. The Director exercised his reasonable discretion to determine that the application of HCC § 25-5-66(b) (the 30-foot setback) is more consistent with the constitutional mandate to conserve and protect agricultural uses in the State land use agricultural district and the County FA zoning district because enforcement of the smaller setback is more protective of the agricultural uses of FA district properties. Application of the 75-foot setback found in HCC § 25-5-62(a)(15) would reduce the potential land area available to agricultural uses and therefore is less protective of the agricultural use of this agriculturally zoned property. The Director intends to propose to the County Council that the zoning code be amended to eliminate this conflict. Until the County Council changes the zoning code to eliminate the conflict regarding the appropriate setback for livestock enclosures, the Director remains the appropriate authority to determine the applicability of and to enforce the zoning code. 7 E. The Director's Decision is Lawful. Correct. and a Reasonable Exercise of Discretion BOA Rule 8-15 allows that this Board may reverse, modify or remand a decision of the Director only upon a finding that the Director erred in his decision, the decision violated the law, or the decision was arbitrary and capricious or characterized by an abuse of discretion or clearly unwarranted abuse of discretion. The party challenging the Director's action bears the burden of proof, including the burden of producing evidence and burden of persuasion. See HRS § 91- 10(5); BOA Rule 8-11(g). In this case, the Director carefully exercised the discretion afforded to him by the Charter to determine which of two conflicting provisions of the zoning code should be applied to promote the purpose of the FA zoning district which allows for residential uses which do not conflict with the agricultural nature of the area. His determination is consistent with the mandate found in the Hawaii State Constitution to conserve and protect agricultural land uses and conforms to the ruling of the HISC that evaluation of such conflicts should consider the essential purpose of the agricultural district and choose the more restrictive option. See Hawaii Constitution, Article XI, § 3; Save Sunset Beach Coalition v. City and County of Honolulu. The Director's determination that HCC § 25-5-66(b) (the 30-foot setback) is the applicable provision for this case was legal, correct and a reasonable exercise of the discretion afforded to him by the Charter. III. Conclusion The Director respectfully requests that this Board DENY Appellant's Motion for Summary Judgment and instead GRANT summary judgment in favor of the Director ordering that as matter of law: (1) Charter § 6-7.2(b)(5) directs the Director to "administer the subdivision and zoning codes and regulations adopted thereunder" thereby establishing the Director as the County authority to interpret and enforce the zoning code. (2) In the event of a conflict in the zoning code, the Charter authorizes the Director to exercise his reasonable discretion to resolve the conflict and enforce the zoning code. (3) The Director reasonably exercised his discretion to apply HCC § 25-5-66(b) imposing a 30-foot setback for livestock enclosures in the FA zoning district because its application is the most protective of the State land use agricultural district purpose to support agricultural land uses and the FA zoning district purpose to provide for a blend of small-scale agricultural operations associated with residential activities. (4) Appellant has not proven that the Director's determination: (D) violates the law; or (E) is clearly erroneous; or (F) was arbitrary or capricious, or characterized by an abuse of discretion or clearly unwarranted exercise of discretion. Dated: Hilo, Hawaii, July 30, 2026. N COUNTY OF HAWAPI PLANNING DIRECTOR By: ls/ Jean K. Campbell JEAN K. CAMPBELL Deputy Corporation Counsel Its Attorney BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI`I O'OMA PLANTATION COMMUNITY ASSOCIATION, Appellant, vs. JEFFREY W. DARROW, PLANNING DIRECTOR, COUNTY OF HAWAI'I, Appellee, and FORTUNATO BOLO KAINOA PABRE, and KIMBERLY ALICIA PABRE, Landowners. CASE NO. PL-BOA-2026-000134 CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document was served upon the parties identified below by electronic mail service upon the following on July 30, 2026: Delivered via Electronic Mail (E-Mail and/or EPIC) H. MAXWELL KOPPER SARA M. NAKAYAMA Attorneys for Appellant FORTUNATO BOLO KAINOA PABRE, and KIMBERLY ALICIA PABRE Landowners SYLVIA WAN, ESQ. Deputy Corporation Counsel County of Hawaii 101 Aupuni Street, Suite 325 Hilo, HI 96720 Attorney for Board of Appeals BOARD OF APPEALS 101 Pauahi Street, Suite 3 Hilo, HI 96720 Board ofAppeals Dated: Hilo, Hawaii, July 30, 2026. ls/ Jean K. Campbell JEAN K. CAMPBELL Deputy Corporation Counsel O 'oma Plantation Community Association v. Jeffrey W. Darrow, Planning Director; County ofHawai'i and Fortunato Bolo Kainoa Pabre and Kimberly Alicia Pabre; PL- BOA-2026-000134 2