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

Home

CLARKSON: If a commissioner has a problem with a particular finding, do we pick that up as part of the discussion after a motion or do we discuss it now? KEKAL We should have a motion first before discussion. REPLOGLE: Okay. So. GALIMBA: Can I make a motion.? REPLOGLE: Yes. GALIMBA: I move that the Proposed Findings of Fact, Conclusions of Law, Decision and Order to be approved and adopted. LIN: I second. REPLOGLE: It's been moved by Ms. Galimba and seconded by Dennis Lin that we accept the proposed Findings of Fact, Conclusions of Law, and Decision and Order to be approved as adopted. Any discussion? Mr. Clarkson? CLARKSON: Yes, the main finding I don't have the number in front of me relates to the issue of public trust. Wherein the findings states that the Commission considered public trust and based on the use of the property felt that the public trust interest was protected. Whereas in fact the Commission did not consider the public trust. I want there to be a finding about public trust in the findings, but I feel that it must be either that the Commission did not consider public trust because, as Mr. Hong states it's not relevant to this issue. Or that the Commission did not discuss public trust because it's relying on the Land Use Commission to do so, but not that we actually did consider it and found that it was protected. So, I strongly object, I made a motion at our last meeting to actively consider the public trust and that motion was defeated I think three to two. And so, to say now that the Commission found that the public trust was protected is completely inaccurate. It's either relevant and we didn't consider it or it's completely irrelevant and we should just so say in our findings. REPLOGLE: So, is that something you would have wanted to put as an amendment to the Findings of Fact and Decision or, what are you saying? CLARKSON: Well, I'll ask our Counsel. Applicant's Counsel has claimed that public trust does not apply in this situation. I find that implausible but if the rest of the Commission agrees, then we should adopt the applicant's language for that finding rather than have a finding that in fact the Commission did not even discuss. So, that would be my suggestion, if I need to make a motion for an amendment, I would do that. I would say that we should adopt the applicant's proposed language that public trust is not relevant to this case because this is not prime agricultural land. And we'll let this be decided by another other court on appeal. 7 EXHIBIT E