2021-11-04 Windward Exh E ConnectionsCBESS SPP12-138

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REPLOGLE: I believe you may. HONG: Thank you. In terms of what Mr. Matsukawa was saying, this is not a second bite of the apple, this is actually their fourth bite of the apple. This is a reconsideration motion or an attempt to do an end around reconsideration motion which is not permissible under the Commission rules. I would point out we had a hearing; you had asked both parties to submit their positions regarding what the scope of the remand instructions were by the Intermediate Court of Appeals. We had a hearing on that in August, and then we had the hearing on the substance merits later on in October. So, my concern is, this is not just going back one step, Mr. Matsukawa wants to take these proceedings back two steps, there was nothing to prevent him from raising this back in August. There was nothing to prevent them from raising this in October and yet after the fact, he now tries to get his fourth bite of apple. It is impermissible, the Commission should ignore it just on the procedural issues or grounds and then adopt its proposed findings. Thank you. REPLOGLE: Mr. Matsukawa, please. MATSUKAWA: I object to what Mr. Hong said. I'm looking at your question that was presented to the parties about the scope of the hearing that we briefed. The question presented was whether the Commission should make a new, excuse me whether the Commission should make a decision on the record as presented or open the record and consider new evidence. That was the only question that was there. Some said, open up the hearing take new evidence. Some said no,just leave the record as it is. So, I think Mr. Hong is mischaracterizing what the Commission was asked to do. This is not a second or third bite. Section 91-11 of State law says when none of the Commission members heard the original evidence but intend to make a decision it must make a proposed decision to which we by statute, State law have a right to file exceptions, thank you. REPLOGLE: Thank you, Mr. Matsukawa. Commissioners, do you have any questions or— LIN: Yes, I do Chair Replogle. REPLOGLE: Yes, Mr. Lin? LIN: I'd like to ask our Planning Commission attorney, Ms. Kekai to address Mr. Matsukawa's comment that we as Commissioners need to make exceptions based off of that section of code or law. Is that correct or incorrect? KEKAL I will say this. On his statement about the Findings of Fact in the memorandum from the Court they basically said, even though they didn't vacate all the findings that the Planning Commission make reconsider any weight it is assigned to this finding and these findings. So, I would disagree that I think that you are locked into these findings, if you guys want to add them back in, we can do that. But at that same token, I will say that the Court gave clear instruction that you guys can weight them how you want to. So, for instance, this one basically refers to Finding of Fact 49 which was, that there was no evidence that Connections had the ability to develop a portable water source. You could put that back in if you so choose, I don't think that 5 EXHIBIT E