HomeMy WebLinkAbout11-02-2021 Intervenor - Exceptions to WPC Proposed FOF, COL, DO l
y
MICHAEL J. MATSUKAWA, 1885
75-5751 Kuakini Highway, Room 201
Kailua-Kona, Hawaii 96740
Telephone (808) 329-1385
Attorney for Intervenor Jeffrey Gomes
BEFORE THE COUNTY OF HAWAI'I
WINDWARD PLANNING COMMISSION
In the Matter of ) SPP No. 12-00138
INTERVENOR JEFFREY
CONNECTIONS NEW CENTURY ) GOMES' EXCEPTIONS TO
CHARTER SCHOOL AND ) COUNTY OF HAWAI'I WIND-
COMMUNITY BASED EDUCA- ) WARD PLANNING COMMIS-
TION SUPPORT SERVICES ) SION'S PROPOSED FINDINGS
OF FACT, CONCLUSIONS OF
LAW, DECISION AND ORDER
ON REMAND; EXHIBITS "2"
Application for Special Permit ) AND "3;" CERTIFICATE OF
Application No. 12-000138 ) SERVICE
Argument and Decision
TMK (3) 2-5-006-141; Kaumana, ) Date: 5/1/14
South Hilo, Hawaii ) Place: Aupuni Center, Hilo, HI
On Remand:
Date: 10/7/21
Place: Remote Hearing
INTERVENOR JEFFREY GOMES' EXCEPTIONS TO
COUNTY OF HAWAI'I WINDWARD PLANNING COMMISSION'S
PROPOSED FINDINGS OF FACT CONCLUSIONS OF LAW
DECISION AND ORDER ON REMAND
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The Intervenor Jeffrey Gomes, by and through his attorney, submits
exceptions to the Windward Planning Commission's proposed (draft) findings,
conclusions, decision and order on remand. The Intervenor submits these excep-
tions pursuant to Section 91-11, Hawaii Revised Statutes.
Both Connections New Century Charter School and Community
Based Education Support Services are the named applicants in this proceeding and
are referred to collectively as "Connections." Both entities also joined in appeals
to the Third Circuit Court and then in the Intermediate Court of Appeals.
Preliminary Matter
On January 31, 2020, in CAAP-17-0000050, the Intermediate Court
of Appeals remanded this case to the Windward Planning Commission (the
"Planning Commission") for further proceedings. 1 Although the Intermediate
Court of Appeals reversed the Planning Commission's original May 12, 2014
decision, the Court vacated only some (not all) of the Planning Commission's
original findings and conclusions. The original findings and conclusions that were
not vacated by the Intermediate Court of Appeals remain valid, binding and in full
force and effect on remand.
1 The Intermediate Court of Appeals reversed"the Planning Commission's May 12, 2014
Decision and Order," but did not vacate all of the Planning Commission's underlying findings
and conclusions, and then remanded the case to the Planning Commission "for further
proceedings consistent with this Memorandum Opinion." (Memorandum Opinion, Pages 43 to
44).
2
However, the Planning Commission's proposed (draft) findings and
conclusions purport to eliminate, alter or change several of the Planning Commis-
sion's original (and critical) May 12, 2014 findings and conclusions that the
Intermediate Court of Appeals did NOT vacate and that continue to have full force
and effect. The Planning Commission was already informed by Connections that
the commission does not have the freedom to "redo" or "rewrite" its prior findings
and conclusions and on remand must act within the scope of the Intermediate Court
of Appeals' mandate. State v. Lincoln, 72 Haw. 480, 825 P.2d 64 (1992); In Re
Hawaii Electric Light Company, Inc., 149 Haw. 239, 487 P.3d 708 (202 1) (agency
may make new determinations only as directed by the appellate court).
A.
Findings and Conclusions Vacated and Not Vacated on Appeal
and Not Assigned as Error on Appeal
In its January 31, 2020 decision, the Intermediate Court of Appeals
vacated only some (not all) of the Planning Commission's original May 14, 2012
findings and conclusions. Further, Connections did not challenge some of the
original findings and conclusions or otherwise assign error to original Finding Nos.
22 (Connections' ability to provide sufficient water for the school) and 57 (change
to the character of the subject property). (See Exhibits "2" and "3," copies of
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Connections' opening briefs on appeal) z As a result, the unvacated and
unappealed findings remain in full force effect and are binding on remand.
The following outline sets forth the findings and conclusions that the
Intermediate Court of Appeals did vacate and those findings and conclusions that
the Court did NOT vacate on appeal and that Connections did not assign as error
on appeal.
ICA Decision Finding or Conclusion
Subiect Page No. Affected by ICA Decision
Affect on surrounding FF 17, 18, 46, 47 NOT
properties (traffic) 18 to 23 VACATED.
Source of 60 gpd data
("where that figure 25 to 27 FF 21, 48, 50, 51 vacated.
came from")
Applicants' ability to
develop a potable water 26 FF 49 NOT VACATED.
source
No evidence applicant
can provide sufficient --- FF 22 NOT VACATED.
water for the school NOT ASSIGNED AS ERROR
ON APPEAL.
Restrictive view of
guideline 6-3(b)(5)(D) Last sentence in FF 52
that school must 28 to 29 erroneous and therefore
"service the needs of vacated.
its immediate neighbors"
Suitability of land for
agricultural uses 29 to 32 FF 55 vacated.
? Rule 28(b)((4) of the Hawaii Rules of Appellate Procedure requires an appellant to assign
error to specific findings and conclusions for the purpose of appellate review. If an appellant
does not assign error to a specific finding or conclusion, the finding or conclusion stands.
Sprague v. California Pacific Brokers &Insurance, Ltd., 102 Haw. 189, 195-196, 74 P.3d 12,
18-19 (2003).
4
Change in essential FF 57 NOT VACATED.
character of the land --- NOT ASSIGNED AS ERROR
ON APPEAL.
General Plan FF 59 and 62 vacated.
consistency 39 to 42 COL 5 vacated.
Burden of proof FF 63 vacated.
for Special Permit 42 to 43 COL 4 vacated.
B.
The Remand Hearings
At its first meeting on remand, on August 5, 2021, the Planning
Commission ruled that it will not receive or consider new evidence and will
confine its action on remand to the record that was established for the post-May
2014 appeals. Nevertheless, at its subsequent October 7, 2021 hearing, the
Planning Commission allowed, over the Intervenor's objection, Connections to
offer new evidence regarding actual water usage of another school in Puna as well
as at its present school, demographics, USDA grants and community outreach,
matters that are not contained in the original record.
At its October 7, 2021 action meeting on remand, the Planning
Commission voted to approve Connections' request for a Special Permit based on
the former planning director's October 2012 revised recommendations. (See
proposed Finding No. 21, at Page 4; Transcript: Oct. 7, 2021, Page —) However,
in 2014, the Planning Commission had rejected the revised recommendations and
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the revised recommendations today are still not "consistent with" and still
contradict the Planning Commission's original findings that were NOT
VACATED or challenged on appeal and that continue to have full force and effect.
Specifically, the former planning director's statements in her revised
recommendations regarding (1) the affect on surrounding properties, including
traffic, (2) the sufficiency of potable water and (3) the change in the character of
the land are NOT supported by the Planning Commission's original findings that
were NOT VACATED or challenged on appeal.
In this respect, the former planning director's revised recommend-
dations cannot be "rehabilitated" simply by voting to adopt the same on remand.
At the very least, the Planning Commission must explain why those revised
recommendations remain valid today and how those recommendations are
supported by the record, including the findings that were NOT VACATED or
challenged on appeal.
C.
Deviation of Proposed Findings and Conclusions
from Intermediate Court of Appeals' Mandate
In its proposed (draft) findings and conclusions, the Planning
Commission changed the numbering of its original findings and conclusions, but
the text can be "tracked." The following proposed (draft) findings and
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conclusions deviate from the Intermediate Court of Appeals' decision and are not
"consistent with" the Court's mandate.
Proposed Finding Change to Original Findings
Subiect or Conclusion or Conclusions
Affect on surrounding 31 (removed last Eliminates original FF 17, 18, 46
properties (traffic) sentence of FF 31) and 47 that were not vacated on
[Pages 6 to 7] 32, 33, 34, 35, 36 on appeal and that remain in full
force and effect on remand.
Source of 60 gpd data 37, 38, 39, 40, Does not establish source
("where that figure 41 of 60 gpd data, as mandated.
came from") [Pages
7 to 8]
Ability to develop a Eliminates original FF 49 that
a potable water source was not vacated on appeal and
[Pages 7 to 8] that remains in full force and
effect on remand.
Ability to provide Eliminates original FF 22 that
sufficient water was not assigned as error on
for the school appeal and that remains in full
[Pages 7 to 8] force and effect on remand.
Adverse affect on Contradicts original FF 46, 47
surrounding proper- Part 65.13 that were not vacated on appeal
ties [Pages 14 Part 65.0 and that remain in full force
to 15] and effect on remand.
Change in essential Contradicts original FF 57
character of the land Part 65.F that was not assigned as error
[Page 16] on appeal and that remains in full
force and effect on remand.
The foregoing proposed (draft) findings listed above are clearly
erroneous. Nor are the former planning director's revised recommendations that
the Planning Commission relied on when it voted to approve Connections' Special
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Permit request on October 7, 2021 supported by the original findings that were
NOT VACATED or challenged on appeal.
D.
The Public Trust Doctrine
At Pages 17 to 18, proposed Finding No. 66, the Planning Commis-
sion makes a summary analysis of the public trust doctrine that does not satisfy the
strict proof requirements set forth in Kauai Springs, Inc. v. Planning Commission,
133 Haw. 141, 173-1755 324 P.3d 951, 983-985 (2014). The fact that the Depart-
ment of Land and Natural Resources should have addressed this constitutional
requirement at the start (before issuing the subject lease to Connections) in the first
instance does not mean that the Planning Commission, which is the "lead agency"
in this proceeding, can or should ask another state agency, the State Land Use
Commission, to deal with this matter.
The Planning Commission also fails to address Section 13-29 of the
County of Hawaii Charter that county voters adopted to establish a county-based
public natural resources trust.! As a county agency, the Planning Commission
must address Section 13-29, but did not do so.
3 "For the benefit of present and future generations, the county shall conserve and protect
Hawaii's natural beauty and all natural and cultural resources, including but not limited to land,
water, air, minerals, energy sources, wahi pana, surf spots, historic sites, and historic structures,
and shall promote the development and utilization of these resources in a manner consistent with
their conservation and in furtherance of the self-sufficiency of the county. All public natural and
cultural resources are held in trust by the county for the benefit of the people." (adopted 2010)
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E.
Sending the Case Up to the State Land Use Commission
Even if the Planning Commission feels it is best to send the case up to
the State Land Use Commission as soon as possible, the Planning Commission
must still first enter a lawful decision that is based on the record. Convenience is
not grounds for rendering a decision, especially if the purpose for doing so is to let
another "distant agency," the State Land Use Commission, decide a "hard case."
F.
Argument
The Planning Commission is aware of the Hawaii Electric Light
Company decision — that on remand, an agency cannot freely "redo" or "rewrite"
its reversed decision. The Planning Commission instead "must closely adhere to
the true intent and meaning of the appellate court's mandate" and must confine its
actions on remand to what the Intermediate Court of Appeals directed the Planning
Commission to do. Findings and conclusions that were NOT VACATED by the
appellate court remain in place and continue to be binding on the Planning
Commission and the parties on remand. Similarly, findings that Connections did
not assign as error on appeal remain in place and continue to be binding on
remand.
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1. THE PROPOSED (DRAFT) FINDINGS AND CONCLUSIONS DEVIATE
FROM THE INTERMEDIATE COURT OF APPEAL'S MANDATE AND
ATTEMPT TO ELIMINATE THE ORIGINAL FINDINGS AND CONCLU-
SIONS THAT THE COURT DID NOT VACATE AND THAT REMAIN IN
FULL FORCE AND EFFECT ON REMAND.
As stated in Parts A and C, above, the Planning Commission proposes
to eliminate and to "redo" or "rewrite" original Finding Nos. 17, 18, 46 and 47
(adverse affect on surrounding properties), Finding Nos. 22 and 49 (ability of
applicant to develop a potable water source or provide sufficient water for the
school) and Finding No. 57 (change in the essential character of the land), which
are findings that the Intermediate Court of Appeals did NOT VACATE or that
were not challenged on appeal. As stated earlier, the former planning director's
revised recommendations, which the Planning Commission relied upon when it
voted to approve Connections' Special Permit request, are not supported by the
unvacated findings and unappealed findings. In fact, some of the former planning
director's revised recommendations stand in direct contradiction to the unvacated
and unappealed findings as to at least three of the decision criteria.
2. THE PROPOSED (DRAFT) FINDINGS AND CONCLUSIONS FAIL TO
REVEAL THE SOURCE OF THE 60 GPD DATA THAT THE INTERME-
DIATE COURT OF APPEALS COULD NOT LOCATE IN THE RECORD
AND, FURTHER, DO NOT ANALYZE THAT DATA.
The Intermediate Court of Appeals for some reason did not read the
testimony of the Department of Water Supply witness (T. McCall, Page 84, Record
at 1630) who is the source of the 60 gpd data. (See Memorandum Opinion, at Page
10
25) Connections also referred to that source in its own environmental assessment
(Record on Appeal at 124). On remand, the Planning Commission ignores the
source of the 60 gpd standard and makes no finding thereon. Nor does the Plan-
ning Commission analyze that data in relation to Connections' proposed use and
unvacated and unappealed Finding Nos. 22 and 49 that Connections does not have
the ability to develop a potable water system or to provide sufficient water for the
school. a
3. AT LEAST THREE OF THE DECISION CRITERIA DEMONSTRATE THAT
THE SCHOOL IS NOT AN "UNUSUAL AND REASONABLE"USE OF THE
LAND IN QUESTION.
As stated, the original record shows that an adverse affect is presented
to surrounding properties (unvacated Finding Nos. 17, 18, 46 and 47). Further, the
original record also shows that there will be a change in the essential character of
the land (unvacated and unappealed Finding No. 57). Moreover, the record shows
that Connections cannot provide a sufficient water for the school (unappealed
° On this point, the Intermediate Court of Appeals stated that the Planning Commission
made no determination on the credibility of Connections' water expert (Memorandum Opinion,
at Pages 25-26),but did not address original Finding No. 22 ("Connections has not produced any
evidence to demonstrate that it has or can develop sufficient water for the Development")
because Connections did not assign this finding as error on appeal. Accordingly, the Inter-
mediate Court of Appeals let Finding No. 22 stand as written.
As to original Finding No. 49, the Intermediate Court of Appeals informed the Planning
Commission that it"may reconsider any weight to be assigned"to the facts covered by Finding
No. 49 ("There is no evidence that Connections has the ability to develop a potable water source
as a mitigating measure, previously proposed by the Director"). (Memorandum Opinion, Pages
26-27) However, since the Court left original Finding No. 22 in place -- that there is no evidence
to demonstrate that Connections "has or can develop sufficient water for the Development" -- the
Planning Commission must still give great weight to Finding No. 22.
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Finding No. 22, also unvacated Finding No. 49). In its proposed findings and
conclusions, the Planning Commission does not explain why Connections' request
for a Special Permit should be approved even though Connections' Special Permit
request is not consistent with these three important decision criteria. And as stated
earlier, the unvacated and unappealed findings do not support the former planning
director's revised recommendations on which the Planning Commission based its
vote to approve Connections' Special Permit request.
Moreover, the Planning Commission uses a "totality of the evidence"
analysis, purporting to "weigh" all seven decision criteria, but without discussion
or analysis, and arriving at an ultimate conclusion. On appeal, the Intermediate
Court of Appeals criticized the Planning Commission for using this "totality of the
evidence" approach (Memorandum Opinion, Page 43), so why use it again? s
4. THE PROPOSED (DRAFT) FINDINGS AND CONCLUSIONS DO NOT
ANALYZE THE PUBLIC NATURAL RESOURCES TRUST DOCTRINE.
On a subject of great state constitutional importance, the Planning
Commission confines its analysis of the public natural resources trust to a single
paragraph (Pages 17 to 18, proposed Finding No. 66). In the Kauai Springs case,
5 "[T]he Planning Commission did not base its decision on any single criterion; rather, it
was based on the totality of the evidence when applied to all seven criteria." The Intermediate
Court of Appeals then held that if any one of those seven criteria is not satisfied, then in the
absence of clear findings that explain how the Planning Commission weighed all of the evidence,
the Planning Commission's decision had to be reversed. (Memorandum Opinion, Page 43)
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the Hawaii Supreme Court demanded much more of an agency that acts as a public
trustee. The Court held that the agency has a duty to address several points with
express findings, 133 Haw. at 181, 324 P.3d at 991, such as:
* Whether the proposed use is consistent with a trust purpose.
* If a presumption should be applied in favor of a public use. 6
* Whether the use is private or commercial in nature; and if so, will
it meet the test of a high level of scrutiny.
* Whether the use satisfies the "reasonable and beneficial" standard in
relation to other public and private uses of the resource (the land).
* Whether the applicant has demonstrated its actual needs and the
propriety of the use.
* Whether the applicant has demonstrated the absence of a practicable
alternative.
* If harm will be presented to the resource (the land), whether the
applicant has demonstrated that the use is still "reasonable and
beneficial" and that the applicant can implement reasonable mitigation
measures.
* Whether the applicant has met its burden of proof.
Proposed Finding No. 66 fails to address these subjects in the manner
required by the Kauai Springs case. Nor does it address the county's counterpart
set forth in the Hawaii County Charter, Section 13-29.
6 A charter school is deemed to be a"public"school in Hawaii.
An"alternative" may be a different place. It may also be a different procedure like a
boundary amendment and rezoning, which require appropriate services to be provided.
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Furthermore, the record shows that the State Department of Land and
Natural Resources, the fee owner of the publicy-owned land in question, does not
have a masterplan for the land and did not offer testimony to the Planning
Commission. Nor did the State Department of Agriculture provide testimony to
the Planning Commission. One state agency, the State Office of Planning, did
offer comments to the Planning Commission and suggested that a boundary
amendment might be a better and alternative procedure to employ in this case
(rather than a Special Permit request). The Planning Commission does not discuss
these undisputed points of fact in context of the public natural resource trust and
whether the participation of these state agencies is or is not relevant.
5. THE FOLLOWING PROPOSED FINDINGS AND CONCLUSIONS ARE
BASED ON UNLAWFUL PROCEDURE, ARE NOT SUPPORTED BY THE
SUBSTANTIAL EVIDENCE IN THE RECORD AND APPLICABLE LAW
AND ARE ARBITRARY.
Based on the foregoing discussion, several of the Planning Commis-
sion's proposed findings and conclusions are based on unlawful procedure, are not
supported by the substantial evidence in the record or applicable law and are
arbitrary.
Adverse Affect on Surrounding Properties
29, 30, 31, 32, 33, 34, 35 and 36; 65-B
Potable Water
39, 40 and 41; 65-C
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Unusual Conditions
65-D
Suitability for Agriculture
65-E
Change in Character of the Land
65-F
Public Natural Resources Trust
66
Conclusion of Law; Decision and Order
CONCLUSION
The primary flaw in the Planning Commission's proposed (draft)
findings and conclusions is its attempt to "redo" or "rewrite" its original findings
that the Intermediate Court of Appeals did NOT VACATE on appeal (see Parts A
and C, above) and that Connections did not assign as error on appeal (Finding No.
22). The Planning Commission on remand is bound by the original findings that
the Court did NOT VACATE and that were not challenged on appeal. Instead of
addressing the unvacated and unappealed findings and explaining why the
unvacated and unappealed findings have no evidentiary effect on Connections'
Special Permit request, the Planning Commission simply ignores the unvacated
and unappealed findings altogether.
Further, the Planning Commission's reliance on the former planning
director's revised recommendations is also misplaced because the :armer planning
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director's revised recommendations cannot be "rehabilitated." The former
planning director did not make a new appearance in this proceeding and even if she
could, she cannot offer new evidence to "fix" her revised recommendations to "fit"
the outcome that the Planning Commission now desires. In any event, the revised
recommendations are not supported by the original findings that were NOT
VACATED or challenged on appeal. As such, the former planning director's
revised recommendations stand in direct contradiction with the unvacated and
unappealed findings.
Finally, as noted in the record for the October 7, 2021 meeting, some
commissioners believed that the case should be sent up to the State Land Use
Commission for final action. However, that belief does not relieve the Planning
Commission from making a proper decision on remand, based on the record.
Request for Relief
The Planning Commission should instead adopt the Intervenor's
proposed amendments to the Planning Commission's original decision.
Dated at Kailua-Kona, Hawaii: November_,202 1.
JEFFREY GOMES, Intervenor
)t WLAW�
By
Mi ael J. Matsukawa
His Attorney
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EXHIBIT 112"
Electronically Filed
Intermediate Court of Appeals
CAAP-16-0000813
21-MAR-2017
03:31 PM
NO. CAAP-16-0000813
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII
STATE OF HAWAII
COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223
SUPPORT SERVICES, ) (Agency Appeal)
Applicant-Appellant, ) APPEAL FROM:
VS. ) (1) DECISION AND ORDER AFFIRMING
WINDWARD PLANNING COMMISSION,
WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII'S FINDINGS OF
COUNTY OF HAWAII; DEPARTMENT ) FACT, CONCLUSIONS OF LAW AND
OF PLANNING, COUNTY OF HAWAII, ) DECISION AND ORDER DENYING
SPECIAL PERMIT APPLICATION NO.
Appellees, ) SPP 12-138; and
(2) FIRST AMENDED FINAL
and ) JUDGMENT FILED ON OCTOBER 26,
2016
JEFFREY GOMES, Intervenor, )
JUDGE: Hon. Melvin H. Fujin
Intervenor-Appellee. )
APPELLANT'S OPENING BRIEF
APPENDICES &'A:'-"D"
DECLARATION OF TED H. S. HONG
and
CERTIFICATE OF SERVICE
October 22, 2013 (RA: part Ill, 1653-1803); November 12, 2013 (RA: part III, 1804-1844);
January 8,2014(RA: part III, 1845-1987) and January 22, 2014 (RA: part III, 1988-1998). On
January 22, 2014, the Hearing Officer closed the contested case hearing. RA: part III, 1992.
On April 7, 2014, the Hearing Officer submitted her Report to the parties and Planning
Commission. RA:part III, 2528-2535; 2900-2915; See.Appendix "A,"attached hereto.
On or about April 21, 2014, CBESS and Appellant Connections submitted their Joint
Exceptions to Hearings Officers [sic] Report Finding of Fact, Conclusions of Law and
Recommendation Dated April 7, 2014. RA: part III, 2952-2972. Appellee Planning Director's
Exceptions to Hearing Officer's Report Dated April 7,2014. RA: part 3, 2974-2979.
On May 1, 2014,at the fifth further public hearing, the Appellee Commission voted to
uphold the Hearings Officer's report and recommendation and denied SPP No. 12-000138. RA:
part I11, 2891-2899; 3064-3095.
On May 12, 2014, Appellee Commission distributed its Findings of Fact and Conclusions
of Law to the parties. RA: part III, 3103-3118.
On or about June 9, 2014, CBESS filed its Notice of Appeal to the Third Circuit Court,
State of Hawaii. RA: part I, 31-87. See. Appendix "B,"attached hereto.
The Third Circuit Court issued its Decision and Order Affirming Windward Planning
Commission, County of Hawaii's Findings of Fact, Conclusions of Law and Decision and Order
Denying Special Permit Application No. SPP 12-138, filed on July 14, 2015 (RA: part 1, 1468-
1472).
The underlying administrative agency appeal was terminated by the entry of the First
Amended Final Judgment filed on October 26, 2016 (RA: Part I, 1619-1622) (Appendix "C.")
and Notice of Entry of Judgment, Filed on November 16, 2016(RA: Part I, 1623-1624).
The Appellant filed its Notice of Appeal on November 16, 2016 in CAAP-16-0000813.
RA: part I, 1625-1637.
III.
STATEMENT OF POINTS OF ERROR
A. Findings of Fact(clearly erroneous standard)
The Trial Court and Appellee Commission were clearly erroneous in view of the reliable,
5
probative, and substantial evidence in the whole record by adopting the following Findings of
Fact:
II. Proposed Development
A. General Description
9. The Connections application proposes the development of a K to 12
charter school campus with dorm facilities, and an intergenerational program that
would provide childcare and elder care at a single facility on the Development,
together with related use on the 70-acre parcel of land. As the site is bisected by
Edita Street, the lower portion of the Development would consist of the major
school or campus facilities, while the upper portion of the Development would be
use for outdoor type of educational programs, including a forestry preservation
program. (Emphasis added)
RA: part I, 67.
14. The Development does not propose to establish a charter on the
Property to serve the needs of the immediate vicinity in the Kaumana area of
Hilo, although some students from the area may attend this school.
(Emphasis added)
RA: part I, 68.
Appellant objected to these alleged errors in its April 21,2014,Joint Exceptions to
Hearings Officers [sic] Report Finding of Fact, Conclusions of Law and Recommendation Dated
April 7, 2014. RA: part III, 2957-2958.
B. Public Utilities and Services
Access/Traffic
18. Notwithstanding the findings of the TZAR and the
recommendations of the Police Department and Department of Public
Works,the area residents uniformly expressed concerns about the adverse
traffic impacts of the Development along Edita Street and Kaumana Drive.
Also residents objected that the TIAR was four years old and the traffic counts
contained in the TZAR were taken when certain schools were not in session.
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(Emphasis added)
RA: part I, 69.
Appellant objected to this alleged error in its April 21, 2014, Joint Exceptions to Hearings
Officers [sic] Report Finding of Fact, Conclusions of Law and Recommendation Dated April 7,
2014. RA: part III, 2958-2960.
Water
21. The available water from the County of Hawaii municipal water
system is insufficient to support the first phase of the Development.
(Emphasis added)
RA: part I, 69.
Appellant objected to this alleged error in its April 21, 2014, Joint Exceptions to Hearings
Officers [sic] Report Finding of Fact, Conclusions of Law and Recommendation Dated April 7,
2014. RA: part 1II, 2960-2963.
IV. STATE AND COUNTY PLANS
36. The County of Hawaii General Plan Land Use Pattern Allocation
Guide ("LUPAG") Map designates the Property for low density urban uses. The
LUPAG designation of Low Density urban use, allow for residential uses, with
ancillary community and public uses, and neighborhood and convenience-type
commercial uses. The Development is not proposed to be a community or
public use for the Kaumana area of Hilo. (Emphasis added)
RA: part I, 71.
Appellant objected to this alleged error in its April 21, 2014, Joint Exceptions to Hearings
Officers [sic] Report Finding of Fact, Conclusions of Law and Recommendation Dated April 7,
2014. RA: part III, 2963-2964; 2966.
VI. APELICATION QF SPECIAL PE IT CRITMA TO THE
DEVELOPMENT
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B. Affect on Surrounding Properties
46. Based upon the testimony from surrounding and neighboring
property owners, the Development will have an adverse effect on
surrounding properties by creating noise, traffic, and impacting the quality
of life of the adjoining residents.
47. Measures proposed by Connections, regarding the establishment
of building setbacks and roadway improvements to Edita Street do not
appear to be sufficient to mitigate the overwhelming concerns raised by
surrounding property owners.
C. Burden on Public Agencies to Provide Services
48. There is insufficient water available from the county system to
service the Development. Therefore, to allow the Development would
unreasonably burden the Department of Water Supply to provide water for its
facilities.
49. There is no evidence that Connections has the ability to develop a
potable water source as a mitigating measure, previously proposed by the
Director.
50. A mitigating measure previously proposed by the Director of
limiting the number of students to the amount of potable water available to
the project is not reasonable because Connections is proposing to construct a
high school for 107 students it first phase, when the potable water available would
only allow for 70 students.
51. As such, the proposed use may unreasonably burden the County
Department of Water Supply to provide water to the Development
(Emphasis added)
RA: part I, 74-75.
Appellant objected to these alleged errors in its April 21, 2014, Joint Exceptions to
Hearings Officers [sic] Report Finding of Fact, Conclusions of Law and Recommendation Dated
April 7,2014. RA: part III, 292958-2959; 2958-2963.
D. Unusual Conditions, Trends and Needs
52. Unusual conditions and needs have arisen since the establishment of
this land use district in the 1970s, because the area in which the Property is
located has essentially become residential in character. Also the County General
Plan LUPAG map recognizes this trend by designating the area for low density
urban use. However, there was no evidence presented to demonstrate that
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location of a school that is not intended to specifically service the needs of the
immediate community is such an unusual condition, trend or need that
justifies location of the Development at this location.
E. Suitability of Land for Agricultural Uses
53. The Land Study Bureau soil classification rating for the Property
is "D" or"Poor," which suggests that the land may be unsuited for
agricultural uses.
54. Connections is proposing to maintain the upper portion or nearly one-
half of the Property for forestry use. In addition Connections is proposing to
construct greenhouses on the Property and conduct an agricultural program in
conjunction with its curriculum.
55. Based upon the representations of Connections, it cannot be
found that the Property is unsuited for agricultural uses. (Emphasis added)
RA: part I, 75.
Appellant objected to these alleged errors in its April 21, 2014, Joint Exceptions to
Hearings Officers [sic] Report Finding of Fact, Conclusions of Law and Recommendation Dated
April 7, 2014. RA: part III, 2963-2964; 2964-2965.
59. The Development, which proposes a charter school that is not
specifically intended to service the immediate community surrounding the school,
is not consistent with the uses permitted in the area of low density urban use.
RA: part I, 76.
Appellant objected to this alleged error in its April 21, 2014, Joint Exceptions to Hearings
Officers [sic] Report Finding of Fact, Conclusions of Law and Recommendation Dated April 7,
2014. RA: part III, 292963-2964; 2966. See.also. Sec. 91-14(g)(5), HRS. Hira v. Bd. of
Trustees of the Employees'Ret. Sys., State of Hati,aff, 112 Hawai'i 292, 298, 145 P.3d 835, 841
(Ct.App. 2006).
B. Conclusions of Law fright/wrong standard,
The Trial Court and Appellee were wrong as a matter of law in adopting the following
Conclusions of Law:
9
4. The Development does not adequately meet the requirements or
guidelines for a special permit as required by Section 205-6, HRS and Rule 6 of
the Commission Rules.
5. The Development is not consistent with the County General Plan,
particularly as to the impacts on the immediate community. (Emphasis
added)
RA: part I, 77.
Appellant objected to these alleged errors in its April 21, 2014, Joint Exceptions to
Hearings Officers [sic] Report Finding of Fact, Conclusions of Law and Recommendation Dated
April 7, 2014. RA: part II1,2965-2966; 2967. See also, Sec. 91-14(g)(1), (2), and (4), HRS;
Troyer v. Adams, 102 Hawai'i 399,409, 77 P.3d 83, 93 (2003).
C. Mixed Findines of Fact and Conclusions of Law(clearly erroneous standard)
The Trial Court and Appellee were clearly erroneous because the Trial Court's and
Appellee's conclusions are dependent upon the facts and circumstances of each individual case:
The following are Mixed Findings of Fact and Conclusions of Law:
VI. APPLICATION OF SPECIAL PERMIT CRITERIA TO THE
DEVELOPMENT
62. Although the County General Plan Public Facilities-Education course
of action for South Hilo encourages the establishment of additional schools as
the need arises, the property Development, at the subject location, is contrary
to the General Plan. (Emphasis added)
RA: part I, 76.
Appellant objected to this alleged error in its April 21, 2014, Joint Exceptions to Hearings
Officers [sic] Report Finding of Fact, Conclusions of Law and Recommendation Dated April 7,
2014. RA: part III, 2965-2967.
VII. UNUSUAL AND REASONABLE USE OF LAND
R 63. The construction of a school on the Property is an unusual use of the
land because a school is not a permitted use in the State Land Use Agricultural
District. However, the evidence presented does not demonstrate that the
Development is a reasonable use of the Property. Specifically, Connections
has not demonstrated how this school can be built without sufficient potable
10
water resources. Nor, has Connections demonstrated how the development of
a regional charter school on the Property that does not specifically service
the needs the immediate community and this is overwhelmingly objected to
by the immediate community is a reasonable site for this facility. In addition,
Connections has not demonstrated that the Development meets most of the
criteria to be considered by the Commission in the subject application.
(Emphasis added)
RA: part I, 76-77.
Appellant objected to this alleged error in its April 21, 2014,Joint Exceptions to Hearings
Officers [sic] Report Finding of Fact, Conclusions of Law and Recommendation Dated April 7,
2014. RA: part III, 2966-2967. See also. Sec. 91-14(8)(5), HRS;Aluminum Shake Roofing, Inc.
v. Hirayascr, 110 Hawai'i 248, 252, 131 P.3d 1230, 1234 (2006); Del Monte Fresh Produce
(Hawaii), Inc. v. Intl Longshore & Warehouse Union, Local 142, AFL-CID, 112 Hawaii 489,
499, 146 P.3d 1066, 1076 (2006)
IV.
STANDARD OF REVIEW
Generally, appeals of an administrative agency decision is secondary appeal and the court
applies the standards of Sec. 91-14(g), HRS, to determine if the trial court's decision was right or
wrong:
§91-14 Judicial review of contested cases.
(g) Upon review of the record the court may affirm the decision of the agency or
remand the case with instructions for further proceedings; or it may reverse or
modify the decision and order if the substantial rights of the petitioners may have
been prejudiced because the administrative findings,conclusions, decisions, or
orders are:
(1) In violation of constitutional or statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable, probative, and substantial
evidence on the whole record; or
(6) Arbitrary, or capricious, or characterized by abuse of discretion or
clearly unwarranted exercise of discretion. (Emphasis added)
11
EXHIBIT 113"
CAAP-17-0000050
(consolidated cases CAAP-16-0000813, CAAP-16-0000879 and CAAP-17-0000050)
Electronically Filed
IN THE INTERMEDIATE COURT OArAOFMAUfte Court of Appeals
CAAP-17-0000050
STATE OF HAWAII 05-JUL-2017
02:21 PM
COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223
SUPPORT SERVICES; CONNECTIONS (AGENCY APPEAL)
NEW CENTURY PUBLIC CHARTER
SCHOOL; APPEAL FROM THE
Applicants-Appellants 1) DECISION AND ORDER AFFIRMING
WINDWARD PLANNING COMMISSION,
vs. COUNTY OF HAWAI`I'S FINDINGS OF
FACT, CONCLUSIONS OF LAW AND
WINDWARD PLANNING DECISION AND ORDER DENYING
COMMISSION, COUNTY OF HAWAII; SPECIAL PERMIT APPLICATION NO.
SPP12-138
Appellee,
2) SECOND AMENDED FINAL
And JUDGMENT ENTERED ON JANUARY
13, 2017
JEFFREY GOMES, Intervenor,
THIRD CIRCUIT COURT
Intervenor-Appellee THE HON. MELVIN H. FUJINO
Judge
APPLICANT-APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER
SCHOOL'S OPENING BRIEF
APPENDICES "A"—"B"
CERTIFICATE OF SERVICE
DOUGLAS S. CHIN 6465
Attorney General of Hawaii
HOLLY T. SHIKADA 4017
GREGG M. USHIRODA 5868
Deputy Attorneys General
Department of the Attorney General
235 South Beretania Street, Room 304
Honolulu, Hawai'i 96813
Tel. (808) 586-1255/Fax (808) 586-1488
Attorneys for Applicant-Appellant
Circuit Court's entry of the Second Amended Final Judgment. ICA 25 at PDF 1721-1725. On
January 23, 2017, Connections timely filed its Notice of Appeal as to the Second Amended Final
Judgment, which was designated as CAAP-17-0000050. Id. at PDF 1726-1739.
On April 21, 2017, the Court of Appeals entered its Order Granting February 21, 2017
Motion To Consolidate Appellate Court Case Number CAAP-16-0000813, CAAP-16-0000879
And CAAP-17-0000050 Under Appellate Court Case Number CAAP-17-0000050 And
Dismissing As Moot All Other Pending Motions In Appellate Court Cases Number CAAP-16-
0000813.
III. CONCISE STATEMENT OF POINTS OF ERROR
The Circuit Court committed the following error(s) in reviewing the Commissions'
Decision and Order Affirming Windward Planning Commission, County of Hawai`i's Findings
of Fact, Conclusions of Law and Decision and Order Denying Special Permit Application No.
SPP 12-138:
1. The Circuit Court erred when it reviewed and decided the agency appeal based on
the "principle that an agency's decision carries dpresumption of validity,and appellants have the
heavy burden of making a convincing showing that the decision is invalid because it is unjust
and unreasonable in its consequences."ICA 25 at PDF 1470. This error occurred in the Circuit
Court's Decision and Order. Id. The first time that this error appeared in the record was in the
Circuit Court's Decision and Order. Id. The Circuit Court's Decision and Order is attached as
App. B.
2. The Commission erroneously applied the facts to the criteria under Planning
Commission Rule 6-3(b)(5)(A)-(G) to deny Connections' special permit application. ICA 25 at
PDF 74-78. Therefore, the Circuit Court erred when it affirmed the Commission's determination
F
that"Connections has not demonstrated that the Development meets most of the criteria to be
considered by the Commission in the subject application." ICA 25 at PDF 77-78, 1470-1471.
This error occurred in the Commission Decision and the Circuit Court's Decision and Order. Id.
Connections objected to this error in Applicants Connections New Century Public Charter
School and Community Based Education Support Services (CBESS) Joint Exceptions of
Hearings Officer's Report, Findings of Fact, Conclusions of Law, and Recommendation Dated
April 7, 2014 (Joint Exceptions). ICA 31 at PDF at 1369 and 1359-1368. The Commission
Decision is attached as App. A. The Circuit Court's Decision and Order is attached as App. B.
3. The Circuit Court erred when it affirmed the Commission's determination that
"[m]easures proposed by Connections, regarding the establishment of building setbacks and
roadway improvements to Edita Street do not appear to be sufficient to mitigate the
overwhelming concerns raised by surrounding property owners." ICA 25 at PDF 75, 1470-1471.
This error occurred in the Commission Decision and the Circuit Court's Decision and Order. Id.
Connections objected to this error in its Joint Exceptions. ICA 31 at PDF 1360-1362. The
Commission Decision is attached as App. A. The Circuit Court's Decision and Order is attached
as App. B.
4. The Circuit Court erred when it affirmed the Commission's determination that
r
"the proposed use may unreasonably burden the County Department of Water Supply to provir
water to the Development"and that "Connections has not demonstrated how this school can be .A'
built without sufficient potable water resources." ICA 25 at PDF 7.6-78, 1470-1471. This error r
occurred in the Commission Decision and the Circuit Court's Decision and Order. Id.
Connections objected to this error in its Joint Exceptions. 31 ICA at PDF 1365, 1369, and 1362-
1364. The Commission Decision is attached as App. A. The Circuit Court's Decision and Order
7
is attached as App. B.
5. The Circuit Court erred when it affirmed the Commission's determination that
fF'ii
"there was no evidence presented to demonstrate that location of a school that is not intended to
specifically service the needs of the immediate community is such an unusual condition, trend or
need that justifies location of the Development at this location." ICA 25 at PDF 76, 1470-1471.
This error occurred in the Commission Decision and the Circuit Court's Decision and Order. Id.
Connections objected this alleged error in its Joint Exceptions. ICA 31 at PDF 1368-1369. The
Commission Decision is attached as App. A. The Circuit Court's Decision and Order is attached
as App. B.
6. The Circuit Court erred when it affirmed the Commission's determination that "it
cannot be found that the Property is unsui[ed for agricultural uses" and that the "evidence
presented does not demonstrate that the Development is a reasonable use of the Property." ICA
25 at PDF 76-77, 1470-1471. This error occurred in the Commission Decision and the Circuit
Court's Decision and Order. Id. Connections objected to this error in its Joint Exceptions, ICA
31 at PDF 1366 and 1369. The Commission Decision is attached as App. A. The Circuit
Court's Decision and Order is attached as App. B.
7. The Circuit Court erred when it affirmed the Commission's determination that the
`Y W4
"Development, which proposes a charter school that is not specifically intended to service the V l
immediate community surrounding the school, is not consistent with the uses permitted in areas
of low density urban use" and that "[a]lthough the County General Plan Public Facilities-
Education course of action for South Hilo encourages the establishment of schools as the need
arises, the proposed Development, at the subject location, is contrary to the General Plan". ICA
25 at PDF 77, 1470-1471. This error occurred in the Commission Decision and the Circuit
8
Court's Decision and Order. Id. Connections objected to this error in its Joint Exceptions. ICA
31 at PDF 1367-1369. The Commission Decision is attached as App. A. The Circuit Court's
Decision and Order is attached as App. B.
8. The Circuit Court erred when it affirmed the Commission's determination that
"Connections [has not] demonstrated how the development of a regional charter school on the
Property that does not specifically service the needs of the immediate community and that is r�
overwhelming objected to by the immediate community is a reasonable site for this facility" and
that the "Development is not consistent with the County General Plan, particularly as to the a6
impacts on the immediate community" ICA 25 at PDF 77-78, 1470-1471. This error occurred in
the Commission Decision and the Circuit Court's Decision and Order. Id. Connections objected
to these alleged errors in its Joint Exceptions. ICA 31 at PDF 1368-1369. The Commission
Decision is attached as App. A. The Circuit Court's Decision and Order is attached as App. B.
IV. STANDARD OF REVIEW
The appeal of the Circuit Court's Decision and Order is a secondary appeal, which means
that this Court must determine whether the Decision and Order was either right or wrong. Kolio
v. Hawaii Pub. Hous. Auth., 135 Haw. 267, 270-71, 349 P.3d 374, 377-78 (2015). In deciding
the merits of this secondary appeal, the Court applies the standards set forth in HRS § 91-14(g)
to the Commission's decision, which states in pertinent part:
(g) Upon review of the record the court may affirm the decision of
the agency or remand the case with instructions for further
proceedings; or it may reverse or modify the decision and order if
the substantial rights of the petitioners may have been prejudiced
because the administrative findings, conclusions, decisions, or
orders are:
(1) In violation of constitutional or statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of the
agency; or
(3) Made upon unlawful procedure; or
9
BEFORE THE WINDWARD PLANNING COMMISSION
COUNTY OF HAWAI'I
In the Matter of ) SPP No. 12-00138
CONNECTIONS NEW CENTURY )
PUBLIC CHARTER SCHOOL AND )
COMMUNITY BASED EDUCATION )
SUPPORT SERVICES )
CERTIFICATE OF SERVICE
Application for Special Permit )
Application No. 12-000138 )
TMK (3) 2-5-006-141, Kaumana )
South Hilo, Hawaii )
CERTIFICATE OF SERVICE
Pursuant to Rule 4-3 of the Planning Commissions Rules of Practice and
Procedure, I mailed a copy of the foregoing document to the following persons, addressed as
follows and postage prepaid:
TED H. S. HONG CARTER K. SIU
P.O. Box 4217 235 S. Beretania St., Room 304
Hilo, Hawaii 96720 Honolulu, Hawaii 91813
JEAN K. CAMPBELL MELISSA DACAYANAN
Office of Corp. Counsel Planning Department
101 Aupuni St., Suite 325 101 Pauahi Street
Hilo, Hawaii 96720 Hilo, Hawaii 96720
[and by email to Melissa.
dacayanan@hawaiicounty.gov]
Dated at Kailua-Kona, Hawaii: November 2021.
Michael J. Matsukawa
Attorney for Intervenor