2008-05-08 TSULLIVAN - Laserfiche WebLink

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gets backdated saying you’re now required to do something in the way of a certified shoreline survey. Is this a retroactive application of a rule that’s in violation of Chapter 91? Yes. Is there an improper interpretation of what the term “abutting the shoreline” means? Yes. And then now we add to this mix the fact that okay, Planning Department you missed the 35-day decision requirement, now you shall forward that application to this Commission to consider. This Commission basically a year and a half ago should have considered this particular issue, not May of 2008 but back when the standard that was then being applied by the Commission said we use a 2.8 tide survey. Now what happens? Late 2007 DLNR says, well, it used to be 2.8, now it’s 3.2, without also adopting rules in terms of shoreline certifications. DLNR certification rules don’t have any rules of so-called particular applicability to the Kapoho Vacationland area. So we not only have this Planning Department but also the DLNR doing similar things. And here we are now in May of 2008, conditions have changed. You’ll see that during the next hearing, Waiopae Road has changed, everything has changed. And now the applicants are being expected to comply with a standard today that wasn’t applicable then. That’s the basic fairness or unfairness of this, and it implicates these due process issues that we have raised. What I did want to do though is, yesterday was actually a 2.94 tide. I submitted photos based on a 2.6 tide that was done on Saturday. Again, it doesn’t show any water going into the applicants’ property. There is some that comes to the edge of Waiopae Road, but that’s all. I think for purposes of today, I think for purposes of the record, it may shorten some time next time. I realize the risk that you talked about but I suspect that since the Commission is going to be continuing the hearing anyway the public, to the extent that they want to, will have the opportunity to make their presentation, too. But this is all I wanted to do today in light of the circumstances. But if you have any questions, I’m willing to answer them. Thank you. WATANABE: Okay, I see, Ms. Siracusa. SIRACUSA: Yes. I am extremely familiar with this area cause I’m from Puna and I’ve spent a lot of time down there. So I have a distinct advantage over the other Commissioners. And since a lot of this has to do with the topography, I think it would create a more level playing field if we scheduled a site visit; and I’m wondering if you would object to that. YEH: I need to talk it over with the client, but it may be the appropriate thing to do. SIRACUSA: Would the Director care to comment on that suggestion? YUEN: It’s fine with the Department. It is a very interesting area that although it hasn’t been much to the Commission it has been a great deal of, there has been a great deal of action on it administratively. We do have to make note that you will be limited as to when you can go, and it’s unlikely that you’ll be able to coincide your visit with an extreme high tide event, or even a monthly high tide maximum which they EXHIBIT A 8