06-14-2022 Applicant Statement of Non-Appearance at June 16, 2022 LPC Hearing

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Mr. Michael Vitousek June 14, 2022 Page 2 On or about March 1, 2016, Bolton filed an application seeking a Special Permit from the Leeward Planning Commission to operate a baseyard and staging area for equipment, store materials, stockpile and crush natural materials for commercial use, and construct a security dwelling on TMK No. (3) 7-5-017:044 ("Property"). Members of the public opposed the application for Special Permit and Petitioner filed a petition to intervene. A public hearing for the application was continued on May 19, 2016, and the Leeward Planning Commission did not rule on the petition to intervene at that time. In a letter dated September 21, 2016, the Director of the Planning Department, who is not a decision-maker on the Leeward Planning Commission, determined that Bolton's existing activities of excavating and removing natural materials and keeping equipment onsite did not require a Special Permit because those activities were part of Bolton's required and duly permitted drainageway improvement project. At that time, the Director informed Bolton that its Special Permit application would be withdrawn from further processing. In a letter dated September 28, 2016, Bolton formally requested the withdrawal of its Special Permit application. In a separate letter dated September 28, 2016, Petitioner stated objections to the Leeward Planning Commission's disposition of the Special Permit application and noted that the petition for intervention had been pending before the Leeward Planning Commission. Petitioner did not file a notice of appeal with the Hawaii County Board of Appeals. In a letter dated October 4, 2016, the Planning Department acknowledged Bolton's request and confirmed the withdrawal of Bolton's application for the Special Permit. On October 13, 2016, Petitioner filed a petition with the Leeward Planning Commission objecting to the Planning Director's acceptance of the withdrawal of the Special Permit application, arguing that only the Leeward Planning Commission could dispose of the application after a public hearing, and requesting that the Commission place the matter on its agenda for a public hearing. The Commission did not take those requested actions and Petitioner directly appealed to the Hawaii Supreme Court. In Community Associations ofHualalai, the Court remanded the matter to the Leeward Planning Commission due to a violation of Planning Commission Rule 4-6, which required the Leeward Planning Commission to decide upon the petition to intervene at the first meeting after the filing of the petition, on May 19, 2016. At that hearing on May 19, 2016, the Leeward Planning Commission received oral testimony and continued the hearing at Bolton's request but did not decide upon the petition to intervene. The Court held that Petitioner was entitled to a decision on its petition before the Leeward Planning Commission or Planning Director took any further action such as withdrawing the application in the Planning Commission proceeding. The Court also found that the Planning Director's decision to withdraw from further processing of the Special Permit application before the Planning Commission decided on Petitioner's petition to intervene was an abuse of discretion'; however, it should be noted that the 'In dicta,the Court also found that the Planning Director"abused his discretion when he withdrew Bolton's Special Permit Application ... after extensive nonpublic communication and fact-finding with only one party,Bolton,in the contested case",mischaracterizing those communications as ex parte contacts. Contrary to any superfluous findings of improper ex parte contacts,the Planning Director is not a decision-maker or member of the Leeward Planning 2