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Judge rules against county over Kona permit


Stephens Media

The county’s planning director and Board of Appeals acted in violation of the Kona Community Development Plan and failed to uphold the county’s duty to protect natural resources in awarding a planned unit development permit to a South Kona developer, a 3rd Circuit Court judge ruled last week.

Patricia and Richard Missler, who live in a neighborhood adjacent to the proposed Waikakuu Ranch project, brought the lawsuit against Bobby Jean Leithead Todd and the Board of Appeals last year after the board ruled the project was not subject to the Kona Community Development Plan.

Judge Ronald Ibarra, in the ruling he filed Thursday, outlined several ways in which the county failed to adhere to state and county laws and regulations in granting the PUD, which would have subdivided a 72-acre lot with zoning that allows 5-acre lots, into 13 two-acre lots and one large lot making up the balance of the property.

“The director may not defer decision-making action with regard to the public natural resources trust to another agency nor to a future date,” Ibarra ruled, referring to Leithead Todd’s arguments that the state Department of Land and Natural Resources, not the county’s Planning Department, should consider the project’s impacts to the watershed. “The director, as an officer of the county, has a constitutional duty to ‘conserve and protect Hawaii’s natural beauty and all natural resources, including … water’ in her official decision-making. In deferring this responsibility, the director’s decision violated constitutional provisions.”

Ibarra remanded the application to the county to act on his ruling.

The Misslers’ attorney, Michael Matsukawa, argued Leithead Todd was also ignoring an old-growth ohia forest on the property and the possible presence of the Hawaiian hawk and a rare palm tree. Planning officials admitted they never conducted a site visit, despite the Misslers and other neighbors requesting one.

The Board of Appeals argued the Kona Community Development Plan did not apply to planned unit developments, that the county ordinance adopting the KCDP did not give the plan the weight of law and that the project was “grandfathered” in to county ordinances that preceded the KCDP. Ibarra said all those arguments were erroneous.

“The court has previously ruled that the word ‘shall,’ as it appears in the County of Hawaii’s Subdivision Code, must be interpreted as being mandatory and binding,” Ibarra wrote.

The Board of Appeals argued that the word shall was “directory and not mandatory.” That was incorrect, Ibarra said.

“The (board) misses the mark in this blanket evaluation of the KCDP,” he added.

Patricia and Richard Missler were pleased with Ibarra’s ruling.

“People act as if there’s an unlimited number of trees,” Patricia Missler said. “There is not. This ruling was a blessing for the whole state of Hawaii. (Ibarra) is protecting our resources.”

The board and Leithead Todd showed a “total disregard for following the law,” she added. Their actions were unacceptable, she said.

“The judge’s ruling is appreciated, but my concern is why did a citizen have to go through all this to vindicate this violation of the public’s rights?” Matsukawa asked.

Deputy Corporation Counsel Amy Self said the county intends to appeal the ruling. She said she could not comment on the ruling.

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