2008-05-08 TSULLIVAN - Laserfiche WebLink

Home

Nevertheless, in trying to work with the Planning Department prior to submitting their application in September in 2006, the applicant worked with the Planning Department staff to try to understand what, at least from the Department’s standpoint, it was felt to be necessary to submit as part of their application. Planning Department staff basically said, well, you need to do this high tide survey, it doesn’t have to be certified but you need to do a high tide survey. So in June of 2006 about three months before this application was submitted, they went out with Planning Department staff with their surveyor -- Mrs. Sullivan can tell you a little bit more, and I’m still trying to figure out whether it should be today or at the next meeting -- and essentially got the comfort level that this is fine, your property is not part of the shoreline, come in with the application. They do that in September. Month and a half passes, applicant asks Planning Department, “Where is this thing at? Basically we’ve got this 35-day period coming up, what’s going on?” Planning Department staff says, “Well, we want to take another look at it because we think that Waiopae Road gets some flooding from time to time. You can have a 20-foot setback on your property but if you don’t want to do that you better get an extension from us.” If you were in the applicant’s shoes, this is what you’d do. You’d be fearful of getting a denial so you’re going to give the Planning Department an extension which occurred. Thirty-five day period passes, nothing from the Planning Department. Then they do receive a letter, and at the same time they’re sending a letter to the Planning st Department that crosses this other one, they get a letter that’s mailed on November 21, th backdated to November 15, query whether that’s a proper thing for an agency to do. I’ll leave that to you to conclude. But in that letter there’s a statement that there’s now a shift in policy from DLNR saying that we will now certify shorelines. Of course this begs a question as to whether or not one was necessary since this property doesn’t abut the shoreline. But here we have now the so-called shift in policy. What we’ve provided to you, as part of our submittal, was Chapter 91, HRS, which all agencies including the Planning Department and the Planning Commission are required to follow when they adopt and implement policies that affect the private rights of property owners. And so if you look at Chapter 91, and that would be our Exhibit or Attachment K, Section 91-1 provides as a rule “…each agency statement of general or particular applicability and future,” and I emphasize the term future, “effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency. The term does not include regulations concerning only the internal management of an agency and not affecting private rights of or procedures available to the public….” So when we’re dealing with private rights issues or procedures available to the public, this whole SMAA application process requires clear definitive rules by which the public can expect to reply on from an agency. If you take a look at Section 91-2, subsection (b), which is the following page, “No agency rule, order, or opinion shall be valid or effective against any person or party, nor may it be invoked by the agency for any purpose, until it has been published or made available for public inspection as herein required….” And the procedures for adoption of a rule are laid out in the subsequent section. So, essentially our position is this – At the time that the applicants submitted their application the Planning Department didn’t say, hey, you need a certified shoreline survey, it’s incomplete now. After the deadline for the determination expires, this letter EXHIBIT A 7