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to the applicant. And what we are considering on this motion is the extension of time that was
<br />provided in the original rezoning ordinance. And there is no dispute in the record that those time
<br />limits were not met. None. Absolutely none. There is no dispute in the record that I can see,
<br />you know. And so our role is to decide whether or not there are sufficient circumstances at this
<br />time in order to grant an extension of that time. And as part of that, we have the discretion to
<br />consider other matters. And the Director has made a clear record, as I see, that circumstances
<br />have changed since the original granting of that rezoning. And the rezoning ordinance is clear
<br />that if the applicant, the land owner, did not meet the time deadlines specified in there, that the
<br />consequence could be basically the loss of the zoning. It’s clear upfront. So you know, as a
<br />speculator -, and as far as I’m concerned, any development involves speculation as to what the
<br />economy is going to be like, what the community’s views are going to be like. You know, the
<br />General Plan is not a static document; it changes. The community’s involvement in all of that,
<br />which we are part of, that all changes. So the developer, in getting the original rezoning,
<br />basically had the right to go forward and complete the development within the time limits. And I
<br />really see no abuse of discretion by this body or the County Council ultimately who is going to
<br />decide on these matters. Not that, you know, the result of all of this over all of this time is a
<br />decision that we are not granting an extension; and that under the terms of the original rezoning
<br />it is specified, made very clear to the developer, that one of the risks of this potential
<br />development is that it’s not going to happen. So it really behooves me a lot to think that, you
<br />know, this argument is made that, sure, the developer is going to think it’s unfair; anybody that
<br />owns land in this situation is going to think it’s unfair. But the question is not whether or not
<br />ultimately it’s an unfair result to the applicant; the question is whether or not we have followed
<br />our rules, which are fair on its face – otherwise we couldn’t be here – and we’ve applied them.
<br />In the proper standard we have discretion. And the record -, there is a burden on the applicant to
<br />establish in the record good reasons for the extension; as far as I’m concerned, that has not been
<br />met, that the preponderance of the record shows that the denial of the extension is a proper
<br />decision in this case. And I for one don’t think that – and I hope – that the court would sustain
<br />our exercise of discretion in this matter. It is a discretionary matter. And as Mr. Yuen points out
<br />th
<br />in his March 8 (sic) letter, which was made part of the record, you know, the fact that this
<br />continues to be a discretionary matter, you know, really takes out all of this taking arguments in
<br />terms of how we are proceeding in this matter.
<br />And I find it very disturbing -, well, let’s, I’m taking a step back. If in fact the arguments made
<br />by the applicant are correct, then – and one of the arguments being that, well, we have this
<br />original rezoning, you really can’t take it away from us because it’s never been done before
<br />although the law and the rezoning ordinance itself clearly provides that we can do that, that it can
<br />be done, right – and if we buy into this argument that, well, we’ll be the first one, we’ll be the
<br />first one, so it’s unfair and you can’t do it, then we should be very, very careful in the future
<br />about granting anyone any rezoning; because in fact if we buy that argument, we can never take
<br />it away. And that is not what the law is. Sorry. And that’s not how we pass any rezoning.
<br />Every single rezoning we pass says this can be taken away. So I for one don’t see it as plausible
<br />frankly, you know, to say that, well, there can’t be a first time. Professor Callies’ letter basically
<br />is saying it’s never happened before; so it’s unfair? It just boggles my mind that the fact that the
<br />law provides it can be done, but the fact that it hasn’t been in the last 60 years or however long
<br />we’ve had the zoning laws, that that bars us from implementing the law? That cannot be. And if
<br />you take that argument to the Hawaii Supreme Court, I doubt that that can be a plausible
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