2005-04-22 tHuggett (fka Soto SMA 03-007)2

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IWASHITA:How would you answer this? See, I guess based on the concernshe, Commissioner Graham expressed we can have a discussion about those concerns within the context of deciding you know, discussing the motion to go into Executive Session. GALDONES:That would be- IWASHITA:Yeah, I think we can just go forward- GALDONES:The Chair can entertain it- proceeding that way also. IWASHITA:Yeah we can discuss those things as part of the motion to go to Executive Session, is what Im suggesting. GALDONES:Okay. Mr. Kim? KIM:Yes, I just wanted to clarify my position Commissioner Graham. Yes, everythingyousaidaboutourpositioniscorrectbutIwantedtoclarifywithregardtoourlegal position, which we have a controversy with the Planning Director that in addition to the letter the fact is our position that the change of ownership does constitute a new application. And so having given all the prejudice it is our position in conformance with the March 23 letter that it is a new application and thats why we are legally entitled to it. I know how business has been conducted in previous administrations and in this body but the question legally is, is it a new application or isnt it and thats what were, were saying it is. GRAHAM:Without going into any kind of you know, citing legal cases but do you have any sort of supporting- do you have any supporting testimony as to why, that we can understand as to why this should be a new application even though we havent been treating such applications that way in the past? KIM:Ive researched it. Its a novel area of the law which has not been addressed by Hawai¡i Case Law. And you know, were a young state and so our position is- is that the Courts will determine whether or not it does, under the applicable laws and rules, constitute a new application or not. It is our position that it does. I can find no controlling authority as Vice President Gore once said to support the position but my legal education, in my mind, creates an argument that it is and it is supported by the Planning Directors letter. Cause otherwise when he read the letter or when Mr. Hayashi read the letter they would know that it was patently false. That this is purely not true. And I cant imagine that Government officials would sign such a letter and cavalierly just send it out and then tell the representative in a private meeting that its totally bogus. And so, from a, just a superficial level, we feel that it is a new application. GRAHAM:All right thank you for that. I just might add my own sense is that if Planning Director sent out a letter like that erroneously it wasnt in a cavalier attitude it was under a lot of pressure with a lot of other things hes dealing with. Thank you. HANEY:Mr. Chairman. Can I add 1 piece of history to the Contested Case issue? 18 EXHIBIT B