Brescia v. North Shore Ohana (Concurring Opinion by J. Levinson, with whom C.J. Moon joins)

*** FOR PUBLICATION IN WEST'S HAWAI`I REPORTS AND PACIFIC REPORTER ***

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CONCURRING OPINION BY LEVINSON, J., WITH WHOM MOON, C.J., JOINS

I am not as comfortable as the majority with the Commission's conflation of the areas makai of the Developer's Setback with the so-called "Open zone[(d)] portion" or "strip." The majority considers "plain[ ]" and "evident" the correspondence between the oceanfront regions circumscribed on the Developer's maps and the "Open zoned portion" or "Open zone strip." Majority opinion at 27. To the contrary, sections 8-2.2 and .3(a) of Kauai County's Revised Code of Ordinances (1976 & Supp. 1978) unambiguously require that the boundaries of an "Open District" correspond to those on the formal "Zoning Map" and may be changed only "by ordinance." Nevertheless, I realize that a "zone" and a "district" are not necessarily synonymous and, with regard to this and the other ambiguities in the SMA (U)-84-2 order, I would defer to the technical expertise of the Commission, see, e.g., In re Water Use, Well Constr., & Pump Install'n Permit Apps., 103 Hawai`i 401, 421, 83 P.3d 664, 684 (2004), which decided that the Developer's Setback and the "open zone" boundary could be, and were, one and the same.

Inasmuch as I ultimately agree with the majority that the Commission did not clearly err by concluding (1) that the SMA (U)-84-2 order incorporated the Developer's Setback and (2) that Brescia was on notice thereof, I concur in the court's judgment.