07-08-2022 Letter from Petitioner's Attorney

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MICHAEL J. MATSUKAWA ATTORNEY-AT LAW • Should the commission grant the Petitioner's request for standing? Yes. The Hawaii Supreme Court ruled that the Petitioner meets all of the requirements to be granted standing as a party in this proceeding. • What is the work for which the landowner requested a Special Permit in SPP 16-000188? Activities to be conducted at the project site concurrently with and as an augmentation to the flood control project. The Petitioner contends that all of the activities, as well as the flood control project, require a Special Permit. • What is the effect of the Planning Director's letter of September 21 2016? The Planning Director's letter is an advisory opinion that has no legal force or effect. The Leeward Planning Commission, which is the final decision maker in SPP 16-000188, took no action on the Planning Director's letter or on the landowner's request to withdraw its application, which request is based on the Planning Director's letter. The commission should note that the Hawaii Supreme Court rejected the Planning Director's argument that the issue is "moot" and that the Planning Director's letter is a "final decision" that the Petitioner (a non-party) and others should have been appealed to the county board of appeals as "aggrieved persons" if they did not agree with the Planning Director's statements in his letter. 4 • Should the Leeward Planning Commission approve the PlanninIz Director's conclusions in his letter of September 21 2016 that the flood control project and the augmented activities are permitted uses in the Agriculture District and do not require a Special Permit? 4 In the appeal to the Hawaii Supreme Court, the Planning Director argued that his letter constitutes 'official action," a final decision that the Petitioner(a non-party then) and others should have appealed to the county board of appeals. The state supreme court resected that argument. See also Kellberg v. Yuen, 131 Haw. 513, 528 (2014) (only "final decisions of the planning director ... regarding matters within [his] ... jurisdiction" can be appealed to the board of appeals). 7 ;+, •,