HomeMy WebLinkAboutKellberg_Objections to FOF.COL.Order 7-17-26Of Counsel:
DAMON KEY LEONG KUPCHAK HASTERT
Attorneys at Law
A Law Corporation
MARK M. MURAKAMI 7342-0
CLINT K. HAMADA 11484-0
1003 Bishop Street, Suite 1600
Honolulu, Hawaii 96813
www.hawaiilgMer.com
Telephone: (808) 531-8031
Facsimile: (808) 533-2242
Attorneys for Appellant
MARK KELLBERG
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAII
PLANNING DEPARTMENT
In the Matter of )
MARK KELLBERG, )
Appellant, )
vs. )
JEFFREY DARROW, PLANNING )
DIRECTOR, COUNTY OF HAWAII, )
Appellee, )
GLENN TAKEMOTO; ALLA PRUGLO; )
CHRISTIE GUASTELLA and JOHN )
PAYNE; FRANCES SANTA MARIA )
TRUST; MARY and DANIEL LOCK; )
MATTHEW JACKSON and DEBRA )
BRUNO; NIKOLY PRUGLO, )
Landowners. )
Case No.: PL-BOA-2025-000124
APPELLANT MARK KELLBERG'S
OBJECTIONS TO APPELLEE'S
PROPOSED FINDINGS OF FACT,
CONCLUSIONS OF LAW, DECISION
AND ORDER; CERTIFICATE OF
SERVICE
HEARING
Date: June 12, 2026
Location: West Hawaii Civic Center
APPELLANT MARK KELLBERG'S OBJECTIONS TO
APPELLEE'S PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW,
DECISION AND ORDER
Pursuant to the Hawaii County Board of Appeals' request, Appellant MARK KELLBERG
("Appellant") by and through his attorneys, Damon Key Leong Kupchak Haster, hereby submits
his Objections to Appellee's Proposed Findings of Fact, Conclusions of Law, Decision and Order
("Appellee's FOF/COL"). Appellee's FOF/COL was filed on June 23, 2026. Appellants'
objections and revisions are in red:
FINDINGS OF FACT
The Board makes the following Findings of Fact. To the extent that these findings of fact
contain conclusions of law, they shall be so considered.
1. Appellant Mark Kellberg ("Appellant") owns property adjacent to property which
Appellant acknowledges was approved for subdivision in 2005. All appeal periods for challenges
to the 2005 subdivision's approval have lapsed.
2. Appellant has been involved in 20 years of disputes concerning the 2005
subdivision approval, including multiple lawsuits which Appellant confirmed resulted in the
Hawaii Intermediate Court of Appeals and the Hawaii Supreme Court declining to deelaFe
revoke the 2005 subdivision's iiivalid approval.
3. Appellant filed a Petition for Declaratory Ruling requesting that the Planning
Director ("Director") issue a Declaratory Order addressing the application of various Hawaii
County Code subdivision and zoning provisions to the lots comprising the 2005 subdivision. The
Petition was received by the Director on May 28, 2025.
4. On July 18, 2025, the Director issued a denial of Appellant's Petition for
Declaratory Ruling within the 60-day time period and included three written reasons for denial:
a. The declaratory ruling process is not intended to provide a new opportunity to
appeal long -settled determinations.
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b. Appellant is precluded from bringing the same claims in the Petition for
Declaratory Ruling which were previously determined or dismissed by the
courts.
c. Appellant did not join the owners of the affected 2005 subdivision lots.
5. On August 14, 2025, Appellant timely filed a General Petition for Appeal of
Decisions by Planning Director or Public Works Director to the Board of Appeals, County of
Hawai'i appealing the Director's denial. Appellant argued in his General Petition that the Director
erred in denying Appellant's Petition for Declaratory Ruling for the following reasons:
a. The Petition is not precluded because it presents different legal questions.
b. The Petition complies with the purpose and requirements for declaratory
rulings.
c. Appellant is not required to join the subdivision lot owners and they were
notified of the Petition.
6. The Board joined the subdivision lot owners to the instant appeal, and the
subdivision lot owners received timely notice of Appellant's appeal.
7. On June 10, 2026, the Board heard oral arguments and presentation of evidence
on the Appeal at the West Hawai'i Civic Center. Clint Hamada, Esq. appeared on behalf of
Appellant. Jean Campbell, Esq., Deputy Corporation Counsel, appeared on behalf of the Planning
Director. No witnesses were called to testify for either party.
8. During the contested hearing, Appellant's counsel acknowledged that a building
permit was issued by Department of Public Works allowing construction of a residence on one
of the lots within the 2005 subdivision. Appellant did not appeal the building permit issued by
the Department of Public Works
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9. Appellant's counsel acknowledged that the Director followed the process
required by Planning Department Rule 3-1 and clarified that Appellant takes issue with the
substantive written reasons €eF underlying the Director's denial of the Petition for Declaratory
Ruling.
CONCLUSIONS OF LAW
The Board makes the following Conclusions of Law. To the extent that these conclusions
of law shall be determined to be findings of fact, they shall be deemed as such.
1. Hawai'i Revised Statues Section 91-8 allows that:
Any interested person may petition an agency for a declaratory order as to
the applicability of any statutory provision or of any rule or order of the
agency. Each agency shall adopt rules prescribing the form of the petitions
and the procedure for their submission, consideration, and prompt
disposition. Orders disposing of petitions in such cases shall have the same
status as other agency orders.
2. Planning Department Rule 3-1(a) gives the Director the discretion to "issue a
declaratory order as to the applicability of any statutory provision, ordinance, or any rule or order
of the Director or the Department."
3. Planning Department Rule 3-1(c) requires that if the Director is going to deny a
petition for declaratory ruling, the Director shall respond within "sixty days after the submission
of a petition for declaratory ruling," and must "deny the petition in writing, stating the reasons for
such denial."
that:
4. Hawai`i County Code ("HCC") Section 25-2-23 [Standard of Review], provides
The board of appeals may affirm the decision of the director, or it may reverse or
modify the decision or remand the decision with appropriate instructions if based
upon the preponderance of evidence the board finds that:
a. The director erred in its decision; or
b. The decision violated this chapter or other applicable law; or
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C. The decision was arbitrary or capricious or characterized by an abuse of
discretion or clearly unwarranted exercise of discretion.
5. Board of Appeals Rules of Practice and Procedures, Rule 8-4(4) requires that a
general petition for an appeal must include:
A statement explaining
a. How the decision appealed from violates the law; or
b. How the decision appealed from is clearly erroneous; or
C. How the decision appealed from was arbitrary or capricious, or characterized
by an abuse of discretion or clearly unwarranted exercise of discretion.
6. The Director complied with Planning Department Rule 3-1(c) by providing a
written denial of Appellant's Petition for Declaratory Ruling with three stated reasons for
the denial within sixty days of the submission of the Petition.
7. The Board acknowledged that Appellants situation was "unusual" but nonetheless
found that the Director's stated reason for denial, the failure to join the owners of lots within the
2005 subdivision, was a valid reason to deny the Petition for Declaratory Ruling.
8. Joinder of parties holding property interests in the land at issue protects those
parties' interests and prevents duplicative inquiries and inconsistent responses. Kellberg v. Yuen,
135 Hawaii 236, 250, 349 P.3d 343, 357 (2015).
9. Appellant's Petition for Declaratory Ruling did not join the owners of lots within
the 2005 subdivision and Planning Department Rule 3-1 provides no method for participation in
the declaratory petition process by the lot owners.
10. Mandatory joinder in an appeal of the denial, pursuant to BOA Rule 1-3(15), is
insufficient to satisfy the need for joinder at the point of filing of the Petition for Declaratory
Ruling.
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11. The declaratory ruling procedure is one "whereby an interested party could seek
agency advice as to how a statute, agency rule, or order would apply to particular circumstances
not yet determined." Citizens Against Reckless Development v. Zoning Board of Appeals of the
City and County of Honolulu, 114 Hawaii 184, 197, 159 P.3d 143, 156 (2007) [emphasis added].
12. BOA Rule 8-3 provides Appellant the opportunity to appeal issued permits or
approvals for uses of the 2005 subdivision lots.
13. Appellants did not appeal a building permit issued by the Department
of Public Works to the owner of one of the 2005 subdivision lots.
14. Appellant is not foreclosed from appealing future issued permits or approvals for
uses of the 2005 subdivision lots.
15. Having considered the testimony, facts, evidence, and arguments provided, the
Board unanimously ruled to affirm the Director's denial of Appellant's Petition for Declaratory
Ruling, finding that in issuing the denial the Director did not violate the law, clearly err, was not
arbitrary or capricious, nor did he abuse his discretion.
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DECISION AND ORDER
Based on its consideration of the testimony, facts, evidence and arguments provided at
hearing, including the Record on Appeal, the documents on file herein, and applying the reliable
probative evidence and law, the Board hereby Decides and Orders as follows:
The Director's denial of Appellant's Petition for a Declaratory Ruling, appealed in case
Mark Kellberg v. Jeffrey W. Darrow, Planning Director and Glenn Takemoto, Alla Pruglo,
Christine Guastella and John Payne, Frances Santa Maria Trust, Mary and Daniel Lock, Matthew
Jackson and Debra Bruno, and Nikoly Pruglo (PL-BOA-2025-000124), is AFFIRMED.
Dated: , Hawai`i,
an
, 2026.
Cathy Lewis, Chair
Board of Appeals, County of Hawaii
State of Hawai'i
Mark Kellberg v. Planning Director; CASE NO. PL-BOA-2025-000124;
Findings of Fact, Conclusions of Law, Decision and Order
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DATED: Honolulu, Hawaii, July 17, 2026.
DAMON KEY LEONG KUPCHAK HASTERT
/s/ Mark M. Murakami
MARK M. MURAKAMI
CLINT K. HAMADA
Attorneys for Appellant
MARK KELLBERG
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAII
PLANNING DEPARTMENT
In the Matter of )
MARK KELLBERG, )
Appellant, )
vs. )
JEFFREY DARROW, PLANNING )
DIRECTOR, COUNTY OF HAWAII, )
Appellee, )
GLENN TAKEMOTO; ALLA PRUGLO; )
CHRISTIE GUASTELLA and JOHN )
PAYNE; FRANCES SANTA MARIA )
TRUST; MARY and DANIEL LOCK; )
MATTHEW JACKSON and DEBRA )
BRUNO; NIKOLY PRUGLO, )
Landowners. )
Case No.: PL-BOA-2025-000124
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 by electronic mail service on July 17, 2026.
Via Electronic Mail and/or EPIC
JEAN K. CAMPBELL, Esq.
Deputy Corporation Counsel
Attorney for Appellee
SYLVIA WAN, Esq.
Deputy Corporation Counsel
Attorney for the Board of Appeals
BOARD OF APPEALS
101 Pauahi Street, Suite 3
Hilo, Hawaii 96720
FRANCIS L. JUNG, Esq.
CAROL MONAHAN JUNG, Esq.
Jung & Vassar, P.C.
75-5722 Kuakini Highway, Suite 100
Kailua-Kona, Hawaii 96740
Email: frank(akjungvassar.com
carol kjungvassar.com
Attorneys for Lot Owners
MICHAEL PRUGLO aka MIKHAIL PRUGLO, individually and dba HOME TECH
CONSTRUCTION; NIKOLAY PRUGLO aka NIKOLY PRUGLO; and FRANCES
SANTA MARIA TRUST
CHARLES A. PRICE
Koshiba Price Grueber & Mau
707 Richards Street, Suite 601
Honolulu, Hawaii 96813
Email cprice e,koshibalaw.com
Attorney for Lot Owners
MICHAEL DANIEL LOCK and MARY ANN LOCK
JOHN G. HORAK
Horak, LLLC
P.O. Box 10374
Honolulu, Hawaii 96816
Email: JghgH3LC.com
Attorney for Lot Owners
CHRISTIE D. GUASTELLA and JOHN H. PAYNE, II
DATED: Honolulu, Hawaii, July 17, 2026.
DAMON KEY LEONG KUPCHAK HASTERT
/s/ Mark M. Murakami
MARK M. MURAKAMI
CLINT K. HAMADA
Attorneys for Appellant
MARK KELLBERG
W