2004-01-30 TDoutor Coffee - Laserfiche WebLink

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for reconsideration from a decision and order in what is a contested case under Hawaii ` Revised Statutes Chapter 91, and such a motion is timely filed, it is our express holding that for the purposes of an appeal under HRS Section 91-14(b), the denial of the petition or motion for reconsideration is the final decision and order of the agency. The service of a certified copy of the denial starts the 30-day appeal period running. It says any other holding would lead to administrative chaos since if an appeal had to be filed prior to the disposition of a timely motion for reconsideration, the Board would lose jurisdiction and could determine whether or not to grant the reconsideration only after an express remand from the appellate tribunal, whether it by the Circuit Court, as in this case, or the Supreme Court of Hawaii, as ` in certain other cases. The waste of time and effort by the parties, their counsel, the agency, and the judiciary in such a situation would simply be intolerable. In this case, you don't have a rule for the Hawaii County Planning Commission that allows an ` applicant to file a motion for reconsideration, so that would be different from the issue that was before the court in this case. But there has been no timely motion for reconsideration brought by any of the members of the Commission prior to the matter being appealed, so there's no motion for reconsideration or no motion to amend something previously approved that was filed or requested by a member of this Commission before this appeal was taken. And under the holding in this case, the Board would lose jurisdiction once that appeal was taken. And if the you read the statute, the only way I believe that the Board could regain jurisdiction to consider a motion to amend something previously approved would be first to go to the Circuit Court and obtain that permission. So first and foremost, that's the argument I would make today is that you simply don't have jurisdiction to consider what the Applicant is asking the Commission to do. Secondly, I understand Mr. Tsukazaki's position regarding, you know, discussion today of enforcement and violations, but you all have received, I believe, and if you haven't, I have a copy of it that I can provide to the Commissioners, a copy of a letter, a notice of violation that th was sent out by certified mail on December 18 to Mr. Wally Dahlen, the director of Doutor Mauka Meadows. And in that notice of violation, the enforcement officer for the County of Hawaii and Mr. Yuen, as the Planning Director, have noted that since this Planning ` Commission approved this special use permit, that the Applicant has complied with none of the conditions of approval that he was supposed to comply with prior to continuing with tour operations. And I suggest to you that for them to come forward today to this Commission and ask you to consider an amendment to one of those conditions is simply bad faith. They have not shown any good faith on their part in shutting down the tour operation and in complying with the conditions of approval that this Planning Commission imposed on them as a condition to receiving this permit. And I realize that those issues are subject to interpretation and to appeal, if necessary, if the Applicant feels so, but I think based upon the face of it, it's bad faith for the Applicant to be coming here today asking the Commission to do something when it hasn't complied with any of those conditions. That's all I have. FUJIKAWA:Thank you. Commissioners, any questions? Commissioner Kubota. 8