2022-01-07 EMC special meeting draft minutes

Home

Chair and Members of the Commission to say that we are here today to ask for your favorable consideration of Kai Ala Partners LLC's appeal from the decision and Director Ramzi Mansour’s letter dated June 10, 2021, denying our request that the billing for the property at 75-5944 Ali‘i Drive, Kailua-Kona, be changed from two service charges for sewer service to a single sewer service charge, and that the amount illegally overcharged by the sewers division since July of 1998 be refunded. In the course of our testimony further on today, we'llgo into the Section 21- 31 that explains the Code and the chargeability of the county's Wastewater Department and what can happen. Finally, the Environmental Management Department sewer division has for the past 23 years collected a double charge for seweruser fees from Kai Ala Partners and therefore has unjustly enriched itself. Supreme Court Justice Nakamura has described unjust enrichment as a claim for unjust enrichment requires only that the plaintiff prove that she or he conferred a benefit upon the opposing party and that the retention would be unjust. And that is Durette v. Aloha Plastic Recycling Inc. 105 Hawai‘i 490, 501 100 P. 3d 60, 71, 2004. Thank you for your favorable consideration of our evidence and of our petition request to change the seweruser fee to one charge, and that the amount of unjust enrichment of $7,888 be refunded to Kai Ala Partners. Thank you very much. ADAMS: Thank you. Appellee, do you have opening statements and who will be making those? KEKAI: Yes. Thank you. Malia Kekai for the Director. Good morning, commissioners. I kind of want to keep this real simple. This is not about unjust enrichment. This is about a decision was made by a Director back in 1998, and that decision was correct. And what's being appealed now today is the decision of this Director, not the director back in 1998. So what the Commission will be looking at is, did this Director violate the law, abuse his discretion, or was his decision clearly erroneous? And I think the answer to that, and I think the facts show it clearly is no, it wasn't. And so I don't think the Commission has the evidence to overturn his decision at this point. As I laid out on my brief, the Appellants had years and years of notice and knew that they were being billed for two units. Had they come for it earlier, back in 1990 or even in 2000, when the first change was made to their bill, then this would all have been avoided if the decision was incorrect, and that's what we're here – we're not here to decide whether the decision is correct or not. You're here to decide whether it was an abusive of discretion, clearly erroneous, or a violation of the law. So thank you very much. ADAMS: Thank you. Now it's time for the Appellant to put on its case. The Appellant has an opportunity to present its case on the appeal pursuant to HRS 91-10.5. Appellant has the burden of proof, including the burden of producing evidence as well as the burden of persuasion. The degree or quantum of proof shall be the preponderance of evidence. To prove something by the preponderance of the evidence means to prove that something is more likely so than not so. It means to prove by evidence which, in your opinion, convinces you that something is more probably true than not true. It does not mean that a greater number of witnesses or a greater number of exhibits must be produced. Appellant’s Exhibit 20 includes the written testimony of the managing partners and representatives of Appellant Kai Ala Partners, LLC. I will now swear in Ritchie Henderson. Do you, Ritchie Henderson, solemnly swear or affirm 5