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<br /> <br /> <br /> <br /> <br /> <br /> CARLSMITH BALL LLP <br /> A Lmrrm LAER.[IY LAw PArmusHw <br /> 121 WALANuEmE AvENuE <br /> P.O. Box 686 <br /> HR.O, HAWAII 96721-0686 <br /> TELEPH"808.935.6644 FAx808.935.7978 <br /> W W W.CARLSMT174 COM <br /> <br /> SUMSCARESMUH.COM OUR REFERENCE NO.: <br /> OSM25.1 <br /> December 7, 2007 <br /> <br /> <br /> William Graham <br /> Chairman, Hawaii County Planning Commission <br /> Aupuni Center <br /> 101 Pauahi Street <br /> Suite 3 <br /> Hilo, Hawaii 96720 <br /> Re: Scheduled December 12, 2007 Planning Commission Continued Hearing on: <br /> (1) Planning Director Initiated Change of Zone (REZ 07-000067), Repeal of Ord. <br /> No. 97-102 and Revocation of SMA Use Permit No. 379; and <br /> (2) Kobala LLC Initiated Amendment to Condition C of Ord No. 97-102 and <br /> Amendment to Condition 4 of SMA Use Permit No. 379 <br /> <br /> Dear Mr. Graham: <br /> I am writing to inform you of an error in the noticing and scheduling of the Planning <br /> Commission's (the "Commission") hearing on the above referenced matters to December 12, <br /> 2007. Kohala LLC ("Kohals") never agreed to the December 12, 2007 hearing date as required <br /> under the Stipulation to Continue August 31, 2007 Hearing ("Stipulation"), a copy of which is <br /> enclosed herein as Exhibit A• filed by Kohala and the Planning Department (the "PD") August <br /> 30, 2007. In addition, we are not aware of the Commission's approval of the December 12, 2007 <br /> hearing date, also required under the Stipulation. In short, the PD's unilateral announcement that <br /> the next hearing will be held on December 12, 2007 came as a complete surprise to Kohala, <br /> although, in light of the PD's arbitrary and aggressive actions in this matter perhaps nothing <br /> should come as a surprise at this point. In light of the procedural defects related to the failure to <br /> comply with the Stipulation, and other concerns detailed herein, Kohala believes the <br /> Commission cannot hear the above referenced matters on December 12, 2007, and that the <br /> proposed hearing must be continued. <br /> <br /> Under the Stipulation, Kohala and the PD agreed to continue the Commission hearing <br /> "from August 31, 2007 to the Planning Commission hearing tentatively scheduled to be held in <br /> West Hawaii on October 19, 2007, subject to continuance to a later date in West Hawaii by <br /> agreement of the parties and approval by the Planning Commission." (emphasis added.) This <br /> continuance was approved by a 6/0 vote of the Commission on August 31, 2007. See Hearing <br /> <br /> <br /> <br /> EXHIBIT D <br />