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HomeMy WebLinkAbout2005-05-20 EXHIBIT C HUGGETT PC PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT MAY 20, 2005 A regularly advertised hearing on the application of WESLEY AND KELLEY HUGGETT was called to order at 11:38 a.m. in the King (Formerly ERIC SOTO - SMA 03-007) Kamehameha's Kona Beach Hotel, Islander Room, 75-5660 Palani Road, Kailua-Kona, Hawaii, with First Vice-Chairperson Hannah Springer presiding. PRESENT:Rodney H. WatanabeABSENT & EXCUSED: Fred Galdones Jeffrey McCallWilliam R. Graham Rene€ SiracusaAllen Salavea AndrewIwashita C. Kimo Alameda Hannah Springer Ivan Torigoe, Deputy Corporation Counsel Chris Yuen, Deputy Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Kiran Emler representing Department of Public Works And approximately 11 people from the public in attendance APPLICANT: WESLEY AND KELLEY HUGGETT (Formerly ERIC SOTO - SMA03- 007) Continued hearing on a Special Management Area Use Permit application to allow the construction of a three and one-half story, 45-foot high, 12-unit multi-family residential development and related improvements on approximately 15,203 square feet of land. The property is located on the west (makai) side of Alii Drive, adjacent to and north of the Sea Village Condominium complex, Kahului, North Kona, Hawaii, TMK: 7-5-19:30. SPRINGER:Commissioners, we are now on agenda item number 7. The applicants are Wesley and Kelley Huggett, formerly Eric Soto, SMA 03-007. This is a continued hearing on a Special Management Area Use Permit application to allow the construction of a three and one- half story, 45-foot high, 12-unit multi-family residential development and related improvements on approximately 15,203 square feet of land. The property is located on the west (makai) side of Alii Drive, adjacent to and north of the Sea Village Condominium complex, at Kahului, North Kona, Hawaii, TMK: 7-5-19:30. EXHIBIT C 1 HAYASHI:Thank you MadameChair, members of the Commission. As you recall at the last meeting in Kona this application was- this continued hearing was brought before you. This permit was originally submitted by Eric Soto for an SMA Use Permit. Mr. Soto had sold the property to Mr. Huggett. Mr. Huggett has informed us and the Commission that he intended to continue with the proposal that Mr. Soto had previously filed for. At the last Planning Commission hearing there was concerns relative to some of the petitions or request for contested case hearing that was filed by certain individuals. The Commission at that time continued the hearing in order to allow both legal counsel, the counsel for the petitioner as well as counsel for I believe Mr. Haney and Mr. Buscemi, adjoining property owners to address the issue regarding the- certain issues that Mr. Torigoe had requested of. Mr. Kim representing Mr. Haney and Buscemi did submit a letter to the Planning Commission which all of you have a file- was provided a copy of. Mr. Randy Vitousek on behalf of the Applicant Mr. Huggett did submit a th memorandum in support of the application. This was received in the office on May 17. I just wanted to point out to you that in this memorandum that was submitted by Mr. Vitousek€s office there are 2 exhibits, Exhibit C and F basically these are draft of thehearing transcript of the last meeting. The hearing transcript was not provided to the Planning Commission so I don€t know what the legal aspect of that is. The Commission hasn€t seen the draft nor has approved the hearing transcript. I just wanted to point that out for the record. th We also received a letter dated May 6 and the Planning Commission was also afforded a copy of that letter and that was submitted by Virginia Isbell as Vice Chair of the County Council. And basically indicating that they are working a new, revisions to the driveway ordinance and requested that the Commission continue this hearing until such time that ordinance has been adopted. th May 11 we also received a letter from Mr. Brian Haney requested that the Planning Commission continue the hearing as follow-up on Councilperson Virginia Isbell€s request. th We also have a letter dated May 4 by several individuals expressing their concerns regarding this particular project. I just wanted to point out what has been provided to the Planning Department and the Planning Commission relative to a request for a contested case hearing or letters. As previously indicated to you at the last meeting we did receive a letter from Mr. Brian Haney, Jack and Kelly Armstrong, Mark and Kim Spangler, Lowell Zimmerman and basically they had requested that the contested case hearing be held. They wanted to be a party to a contested case hearing. These were in letter form and not a formal petition. All of these individuals with the exception of Mr. Zimmerman did provide us with the $100 filing fee. We also received a note from Mr. Charles Buscemi along with a check, $100 filing fee, and I believe that his intent was to be a party also to nd the proceedings. Since that time, since the last meeting on April 22 we did receive from, a formalpetitionfromMr.CharlesBuscemiandthe$100filingfeetobeapartytothis proceeding. We also received the check from Mr. Brian Haney with no letter and no formal th petition.WealsoreceivedMay10aformalpetitionfromMarkandKimSpangleraswellas their $100 filing fee. So that€s basically where we are regarding the petitions or letters requestingforstandingtoacontestedcasehearing.AtthelastmeetingtheCommissiondecided EXHIBIT C 2 they would be the ones to act on these requests and also to determine whether these are properly filed applications. Thank you. SPRINGER:Thank you Mr. Hayashi. Are there any questions of Mr. Hayashi from the Planning Commission at this time? I have a number of questions that were- come to mind given Mr. Hayashi€s comments to us. First of all to Mr. Torigoe regarding the minutes which have been submitted to us as part of an exhibit but which we have not yet received as part of our work as Planning Commissioners. They came to us this morning I believe and how should we dispose of them? TORIGOE:Are these minutes, are they before you today? nd SPRINGER:We received the excerpt of the April 22 transcript this morning. TORIGOE:Right, and that€s the exhibits. But were- okay so were the minutes for that transcript or was that transcript ever brought before you or is it before you today for approval? SPRINGER:I have not received- none of us have received copies of those minutes. TORIGOE:All right. Well, I think maybe what we should do is, we will have to be discussing the acceptance of these submissions so maybe at that point we can get from the parties or the proposed parties and make a determination at that time. For instance is there can be some agreement that the Commission can consider these then that would be an easy disposition of them. If not we€ll have to consider what other routes might be taken. SPRINGER:Thank you and then with regard to the form of the requests for standing, Norman gave us quite a litany of descriptors some of which came in letter form, some were checks without written documentation or one was a check without written documentation. And they seem to come in unevenly. Can you give us any guidance on how we should treat those requests? TORIGOE:Well the Rule 4-7A says that people seeking to intervene as a party shall fileawrittenrequestandtheformisprovidedinappendixAandaccompaniedbyafilingfee. And again as we€ve noted no later than 7 calendar days prior to the Commission€s first meeting on the matter. And so I think what we need to do is- you know we€re going to have to discuss that whole issue of- as we discussed in the previous hearing the whole issue of whether we should consider this a new application and therefore whether these kinds of requests for intervention should be considered timely under this rule. So again that€s something we can address as we deal with the standing issues. SPRINGER:Thank you Mr. Torigoe. Then a question for Mr. Yuen with regard to the memo that we€ve received from Council Person Isbell and her concern with regard to County Code for driveways and that she€s in the process of upgrading that code. Do you have any comments to us? I think that the request is that all hearings on driveways or permits for driveways be postponed until we have this ordinance finished and reference is then made to that in correspondence from Brian Haney. EXHIBIT C 3 YUEN:You have a properly filed SMA Permit before you and the Planning Commission should continue to process and work towardadecision on that permit not put a hold on it based on some work that may be done on a driveway application or on a driveway decision. If and when the- if the County Council amends the driveway code, if and when the project is built and comes in for a permit for the driveway it will have to comply with that with any changes that are made to the code at that time. SPRINGER:Thank you Mr. Yuen. To the Applicants and their representative and other members of the public here. This body will lose its quorum at 1:30. Our intention is not to take a lunch break but rather work through until that time. I would like to call a 5 minute recess at this time and reconvene and take up all of the matters before us. Thank you. RECESSED:The Chair called for a recess at 11:50 a.m. RECONVENED:The meeting reconvened at 12:02 p.m. SPRINGER:I€d like to call this meeting of the Hawaii County Planning Commission back into order. We are discussing SMA 03-007, Wesley and Kelley Huggett, which is formerly Eric Soto. At this time I€d like to invite the Applicant or their representative to the table and also any of those who have requested standing as an Intervenor to come forward to the table. HAYASHI:Madame Chair while we€re waiting for them to come up. SPRINGER:Yes. HAYASHI:I just want to put on record that we didn€t provide you with a copy of amended Condition 3. And basically that new Condition 3 would state that a 20 foot wide easement shall be provided for vehicular access and utilities. Thank you. SPRINGER:Thank you Mr. Hayashi. There have been a number of requests for standing as Intervenors in this contested case. Mr. Mooers do you have any comments on those requestsatthistime?We€regoingtohaveageneraldiscussionatthistimeandthenitmaybe that we€ll take up each request on a case by case basis. MOOERS:With me today is Keoni Schultz who is our attorney and I€ll let him discussthestandingissue. SPRINGER:ThankyouMr.Mooersandpardonmybeingremiss.Anybodyeitherat the table or in the public who intends to testify on this matter I would like to swear you in at this time.Couldyouallwhoareinterestedintestifyingonthismatterraiseyourrighthandsplease? Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? TESTIFIERS:I do. EXHIBIT C 4 SPRINGER:Thank you. Mr. Mooers you have already given us your name and address if your representative, your legal representative could do the same. SCHULTZ:Aloha. My name is Keoni Schultz. My address is 1000 Bishop Street, Suite 1200, Honolulu, Hawaii 96813. SPRINGER:Thank you Mr. Schultz. Do you have any comments to share with us at this time? SCHULTZ:Yeah, for starters I would like to address the assertion that a change in the owner of the project means that a new SMA application needs to be filed. I€m going to sort of be re-highlighting the memo that my law firm submitted. There€s not a single Hawaii court case or agency rule that says that a new applicant that a new applicant means that a new application needs to made. The issue is that the Huggetts purchased the property in 2004 and promptly notifiedthePlanningDepartmentoftheirintenttocontinuethepermittingprocessinitiatedby Mr. Soto. If you look at Exhibit A to my firm€s submission, I think it was mislabeled as Exhibit th B. Anyway, by letter dated November 4 the Planning Department agreed that this was a continued SMAhearing. And it€s also on their law that land use permits run with the land. In fact if you look at Rule 911(a) of the Planning Commission Rules, there€s absolutely no requirement for any information about the identity of the Applicant and the reason for that is the Planning Commission is supposed to issue the permit based on the project. It€s not supposed to be about the Applicant, it€s supposed to be does the project meet the requirements of you know the SMA area? Furthermore I believe its the common practice of the Planning Department and this Commission to substitute applicants as properties change hands. And I believe that Commissioner Graham testified to that at the last hearing. Again, the change in the Applicant does not mean that a new application is needed as long as the project is the same. That is the casehere,thisisthesameprojectthatwasproposedbackin2003. IguessInowwouldliketoaddresstheassertionthatPlanningDirectorYuen€sletterofMarch 25, 2005 somehow created a new right to a contested case hearing. First off, Director Yuen has already stated that as described in the March 23, 2005 letter by the Planning Department that was an error. There was no contested case created by that letter. And one of the reasons for that is that it€s the Planning Commission that has control of the SMA area. Under HRS 205(a), 22 and 27, it is the Planning Commission that is the sole power to carry out the objectives, policies and procedures of Chapter 205(a). Basically it€s the Planning Commission that€s supposed to decide who has standing under contested cases. And so you have to look at the Planning Commission Rules. So if you look at the Planning Commission rules as to when standing is allowed, Rule 4- 7a, the Planning Commission rules requires any person who seeks to intervene in a proceeding file a written notice of intent to intervene no later than 7 calendar days prior to the Commission€s first meeting on the matter. Again in this matter, the Commission€s first meeting was on August 1, 2003. Accordingly, any request to intervene at this stage is untimely by nearly 2 years. Furthermore, Mr. Kim€s clients had ample opportunity to get notice about, to intervene. In fact if you look at his pleadings they made a strategic decision to allow their AOAO to engage in a contested case hearing. They themselves did not. So they had notice that they themselves could do this 2 years ago and they chose not to. As to the new owners of the Sea Village project, again no new rights emerge as a result of there being new owners there. Anyone who is contemplating EXHIBIT C 5 buying at the Sea Villages over the last 2years you know they had an opportunity to due diligence on the property and see that there was a pending SMA in the land right next door. You know these new owners made a decision to buy and at this point they don€t have a standing to request. And really you have to look at the slippery slope of this, every time somebody buys a property next to on standing application if the Commission were to now allow them to then say that they have a right a contested case hearing, it would just, you know you have to look at it administratively too. The rules need to be followed and they had a right to, you know they knew about this if they had done their due diligence. I guess lastly I€d like to wrap up some comments on the notice issue. The essential purpose of the notice requirements in this case has been satisfied many times over. As to the letters that may have been misaddressed prior to the April 22 hearing we did another notice. Everyone who wants to come and speak about this project is now on notice and they can do so. But we don€t believe that that creates a contested case hearing. The point of notice requirement is to protect therightsoftheindividualtocomeintotheCommissionandtotelltheCommissionwhatthey feel about the project. It€s not to allow you know perpetual delay or perpetual continuance of this action. That it€s purpose of notices is to put them on notice of the project and I think the record is clear that there€s been a lot of notice as to this project. This project should not be dragged indefinitely. The Planning Director and the Department have recommended approval on the project and we would like that their recommendations be taken up by this Committee. So in conclusion you know, a new applicant it€s simply irrelevant that there€s a new applicant here. The criteria is does the project meet HRS 205(a) and does it follow Rule 9 of the Planning Commission rules and this project meets those requirements. Accordingly we respect the request that this Commission deny standing as Intervenors to the various parties now seeking to intervene. SPRINGER:Thank you Mr. Schultz. Commissioners any questions for Mr. Schultz? I have a question for the Planning Director. In past practices is it accurate to say that when properties change ownership the applications that are in process continue. YUEN:That€s a general. I can say that with confidence as being a rule of law. I can€t, I€m not certain as to there being changes in ownership while I€ve been, in projects that have been pending while I€ve been the Director. Mr. Hayashi has more lengthy experience in this than I do. HAYASHI:Off hand during Mr. Yuen€s tenure as the Planning Director I don€t know whether if we€ve done it but we€ve done it on many occasions in the past. SPRINGER:Are there any examples of change in ownership constituting a review, a reexamination of an active application? HAYASHI:I€m sorry I was playing with the cord there, I didn€t quite get the question. SPRINGER:Are there any examples of changes in ownership causing an application that was open and under review to be redressed as if starting over? EXHIBIT C 6 HAYASHI:No, not that I know of. SPRINGER:Thank you. Commissioner Iwashita? IWASHITA:Counsel do you have any cases that, let me preface my question. The rule of law that you cite inthe memo, or that your firm cites in the memo, talks about a permit that runs with the land. We don€t actually have a permit issued in this case. Do you know of any case, which addresses the issue of an application being transferable or that the application runs with the land. SCHULTZ:We were not able to find anyone specifically in Hawaii, I think the reason is is that, it probably wouldn€t go up onto appeal until you know the permit has been formally denied or approved. There is, there€s one case that was recently decided in January 2005 by the HawaiiSupremeCourtwhereIbelieveVoicestreamappliedforapermit.I€msorry,madea claim so that there was no permit needed this Commission said that there was that when on appeal. The Supreme Court in its caption makes a quick note that T-Mobile is now the persons who is seeking the, actually appealing the decision that a permit was needed and it does say without any. In other words, the Supreme Court doesn€t take up any issue with that. But that€s, that€s what I can say to you without doing more research on to this subject. IWASHITA:I€m not getting that what is the significance of the case you just cited? SCHULTZ:It basically, it€s just pure dicta. That the Supreme Court had no problem with the Applicant changing midstream. I guess once again, you have to look at the Planning Commission Rules 911(a) again, doesn€t ask about the Applicant. The Applicant really should not be important. You don€t want the Commission making decision on an Applicant on whose brother it is, you know it€s the project that this Planning Commission should look at. How does this project effect the Special Management Area. SPRINGER:Commissioner Iwashita follow up? IWASHITA:I€m new so you gotta pardon me. But I guess my concern is that, I think everyone agrees that a permit runs with the land, right? But we don€t have a permit issued in this case. What we€re talking about is whether or not the rule, under our rules whether we have a new application or not. And so, to me it€s not real helpful to say that a permit runs with the land cause it doesn€t address the direct issue. To me it€s not you know, it€s not real helpful. So I was just asking for any other authority but basically there is none. SCHULTZ:I have, I cannot cite you any right now. SPRINGER:Mr. Director you€ve heard Commissioner Iwashita€s concern that this is not a permit that has already been granted that we€re discussing but rather an application that is in process. Do you have any comments in addition to those made by Mr. Schultz? EXHIBIT C 7 YUEN:Well, the logic of itis certainly true that the application remains valid regardless of a change in ownership. We would only be concerned that the applicant is the owner because we would want to picture that the person making the application is the owner and wants to carry out the same project. But, you are always judging the project based upon what is presented as a project not on the merits of or the perceived personality or merits of the applicant itself. So, I know that we€ve made the point, we made this point in discussing applications many times that people will come in with character references for example. And talk about what a good person the applicant is or fortunately less frequently sometimes talk about what a bad person the applicant is and we€ve discussed the fact that we are looking at a project. If we have concerns about the project that everything should be covered by a condition. That you€re not relying upon the personality or the identity of the person who€s applying because that can change and that the permit can be actually carried out by somebody different than the person applying for it. So I€m absolutely confident as a proposition that the Applicant is irrelevant and the change in who is applying at least as far as the SMA permits and the rezoning ordinances does notconstituteanewapplication.Andthey€reconsistentinthiscaseandinothersimilarcases they can continue with the same application. SPRINGER:Thank you Mr. Director. Commissioner Iwashita any follow-up? IWASHITA:Not at this time. SPRINGER:Thank you. Thank your Mr. Schultz. Commissioners any further questions of Mr. Schultz? Mr. Mooers do you have any other comments at this time? MOOERS:Not at this time. SPRINGER:Okay. Mr. Kim, if you could state your name and address for the record and then enter into any discussion that you care to have with us this morning. KIM:Thank you. Robert Kim, 77-6400 Nalani Street, Suite A-1, Kailua-Kona, Hawaii, 96740, 329-6611. Thank you Madame Chairwoman and members of the Commission. First of all I would orally move to strike the memorandum of the Applicant. My motion is nd addressed on several grounds. Number 1, at the last meeting April 22 the parties had entered in to a stipulation in conjunction with the advice of Mr. Torigoe. At that meeting it had indicated that each party was to submit their position papers at a minimum 10 days prior to submission of th the next hearing. The hearing is May 20. Following the agreement of the parties made in open record I submitted as agreed my memorandum on May 10, 2005. I did not receive a memorandum in opposition or a position paper from the Applicant until yesterday and I have a stamp on my document showing when it came in. In fact the memorandum itself isn€t dated until th May 17. It€s untimely and therefore it should be stricken. That€s my first argument. Second, it containsexhibits,whichhavenotbeenauthenticated.Idon€tbelievethattheminutesorthe transcripts have been approved or reviewed by this body. Secondly, thirdly, Mr. Hayashi points outthatthedocumentsarenotincludedinyourpositionpapers.Theyhaven€tevenbeen furnished to you and therefore those memoranda are incomplete, untimely and include documentsthatshouldnotbeincluded.Soinfairness,becausehadIreceived,althoughIdon€t have a right to respond, it was only that we had to file these memorandum 10 days before. But EXHIBIT C 8 clearly the intent of the agreement, and it wasn€t an order. The Applicant and I both agreed that we would submit them 10 days before and the reason for that is that we could have done further research on each others positions so that we could answer Mr. Iwashita€s questions with regard to law and the like. When I receive something the day before the hearing I can prepare orally but I think its quite unfair, not only to myself and my parties but also to the Commission. So, I€ll just leave that for you to consider it is a motion and I would like a ruling on it. Having said that, I am willing to address the substance as best I can of what is being argued here today. What is being argued here today is whether or not my clients should get a contested case hearing. As the nd record reveals at the last hearing on April 22 a letter was sent by the Planning Director to my clients saying that a contested case hearing was required. Following that Mr. Mooers had a conversation with Mr. Hayashi and was informed that he didn€t have to do that. He didn€t have to follow the letter of the Planning Commission. That a contested, Planning Director, that a Commission, that a contested case hearing could be sought. So all the people who got that notice letter didn€t get notice that they had a right to a contested case hearing. Then, when we show up, where my clients had to hire counsel at the hearing we€re informed for the first time that Mr. Mooers was released of that obligation. Even though there was no letter saying my previous letter saying that there was a need for a contested case hearing is rescinded and in fact it wasn€t till after that this was even brought up. When I reviewed the Applicant€s memorandum they appear to say 2 things. Number 1, that when you have a permit that right runs with the land but as Mr. Iwashita pointed out and I was going to argue it, there€s no permit here, none. There€s no right here, all there is, is an application. And, I will tell you that when I got their memorandum I went on the internet, I used my Weslaw, I searched for cases to try to look at applications and I€d already done so previous. There are none. So this is an area where there is no controlling authority in the State of Hawaii. This is a gray area for this body. The bottom line is, it€s a policy decision that you have to make. I will comment although I cannot cite specific examples that during the administration in which Mr. Yuen has been Director there have been no substitutions allowing contested case hearings. But I am informed that they have done in previous administrations. Now, the argument that I have developed is based upon that previous situation. You have an application, the applicant and their representative go out to the community and say hey, ladies and gentlemen here we are, this is who we are, this is what we want to build. I want to talk to you, check out my financial background, check out my ability to keep my word if you want to oppose it let me talk to you, let me make agreements with you, let me tell you if there are disagreements what I€m going to do to try to solve this before we go to the Planning Commission. That was done in this case. And that was done by the Applicant, Mr. Eric Soto. The Applicant before you is not Mr. Soto. So whatever Mr. Soto said is with Mr. Soto. Now this application came before the Commission August 1, 2003. What happened between August 1, 2003 and May 20, 2005? What happened is that Mr. Soto abandoned his application. He abandoned his project. All of the representations he made are no longer valid because he is not the applicant. The new applicant can now come in and say, I didn€t say that, I never agreed to that. What I get is what I get, tough. What we are saying is as a matter of public policy is that when you have not a permit, I will concede, right now, I will concede that if he had a permit it runs with the land that€s the law we agree on that. But this is not a permit, this is an application. So let€s look at it from a policy standpoint. Is the Planning Commission going to encourage as a matter of public policy intra-transfer of ownership as if nothing happened? Cause that€s what you have here. Or, as I believe the Planning Director properly indicated whenever you have a change of the applicant, that is a substantial and material change of the application EXHIBIT C 9 that warrants people to be able to comment from a contested case hearing if they choose or they can basically go through and try to negotiate. We€re saying it is a substantial change and it is an amendment of such consequence. We€re not talking about moving a little tree here, we€re talking about the ownership of the project. It is such a change in the actual application that it allows for contested case hearings. And that€s what€s before you today. So, as an attorney if I might, you€re not prohibited by State law. You have the power to say, we€re not going to allow straw men to come in and put a face up for an application and then flip it internally so that a new person can come in without having the public input. In this case, yes, people are here to oppose the project but that doesn€t give them a right to affect the project. And so, we feel and again it€s your call, we feel that as a matter of public policy it would be prudent to allow the contested case hearing than to disallow the contested case hearing as a matter of public policy. If I may just address my notes one second. Lastly, with regard to Director Yuen€s position, I don€t think that we can sort of a quid pro quo with regard to saying to the applicant you have to wait until the County Council addresses the issue of the driveway. But the issue of the driveway is a severe safetyproblem,whichotherpeoplewilltalkaboutandwehavetalkedabout.Thosestatutes, those rules will be adopted and we would ask that if you don€t grant my motion to strike their memorandum but we be allowed a continuance to be able to respond and so. That€s the bulk of my address. Thank you. SPRINGER:Thank you Mr. Kim. Before we proceed with questions, who are your clients? KIM:My clients are Brian Haney and Charles Buscemi. And they are residents of the Sea Village Condominium or owners of the Sea Village Condominium. Sorry. SPRINGER:Thank you. Just a moment please. At this time I€d like to give the Applicant followed by the Commissioners and the Director the opportunity to respond to Mr. Kim€s testimony. Mr. Mooers? MOOERS:Thank you very much. I just have a couple of points I€d like to bring up. As far as the issue about the 10 days, I think in my recollection of the hearing and certainly a copy of the unofficial minutes indicate that Mr. Torigoe said perhaps 10 days. And I did say that I thought we could do that. Unfortunately Mr. Vitousek as you notice is not with us here today and this created a situation. He was unable to be here. He needed to find people within his firm that could be here. Secondly in order to prepare any sort of argument they needed to know what happened at the last hearing and we were talking about fairness here. Mr. Kim was present at the last hearing and had the luxury of understanding what the arguments were, what the discussions were. We did not have that situation so our attorneys asked to see the minutes of the meeting so that they could form their position paper and submit something to the Commission. It was not my understanding that we had a 10 day notice that this was going to create a problem and if it is I apologize. Regarding the- using the minutes as exhibits if the Commission would like to disregard them that is fine because they really aren€t intrical parts of any argument being placed here. So if you find that those minutes are unacceptable or shouldn€t be used then by all means please disregard them. Couple of points I would like to point out regarding the notice and whether or not contested case rights should have been granted and they should have been noticed. I think Mr. Yuen has been pretty clear in that regard and you recall at the last hearing I EXHIBIT C 10 specifically asked the Commission, I said okay we€ll do another mailing, we€ll do another notice should I indicate whether they are contested case hearing rights and I was instructed that no, I should not. The last thing I would point out as far as changing ownership, land is a commodity. Many of my clients are developers, they buy land, sell land as investments. And, I would say that a high percentage of them sell the properties sometimes before, sometimes during and sometimes after applications that are pending. Most recently a rezoning application by the Deutsch sisters was sold, it was pending before the County Council. I€ve never had any of these applications be required to re-hear them. One of the things I think you€ll find, you€ve probably seen enough of my applications by now, even some of the newer Commissioners. I never speak to who the Applicant is other than the Applicant is so and so, owner and fee of the property. You look at all of the applications we file with the County there€s no representation of gee, is he a good guy, does he have the financial ability to perform, does he have past performance, that has never been an issue. The issue was always, is this the appropriate use of the property. Irregardless of who the applicant is. If the Commission or the Council wanted that information it wouldbeanintrigalpartoftheapplication.Itsimplyisnot.Sotocallthatasubstantialchange in an application is simply not true. Regarding Ms. Isbell€s request about driveway rules, it may or may not be changed. I think the Commission has before recommended conditions by the Director and in there we are required to apply or comply with all regulatory requirements. I think it€s Condition 11. So if a rule is changed it would be addressed at the time of plan approval and the driveway would have to meet any rules or recommendations made by the Council that become law. But to withhold that application pending something that may or may not happen I mean, it simply couldn€t move forward. I would just say one last thing about the change of ownership. I mean to say that every time there€s new owners they should be re-noticed and they have an opportunity to apply for contested case, quite simply Madame Chairman if you and I owned a unit at the condominium and we didn€t want a project to happen we could simply change ownership every 60 days for $25, transfer of ownership and then ask for a new hearing. It€s just absolutely unworkable so, those are all my comments at this time. SPRINGER:Thank you Mr. Mooers. Commissioners, any questions for Mr. Mooers? Commissioner Watanabe? WATANABE:Mr. Mooer did you also represent Mr. Soto in the original application? MOOERS:Yes I did. I prepared the application, the architect on the project, Mr. Corey Foulk was also the- developed the plan is also retained. So the project team remains the same. WATANABE: So, in regard to this straw man theory did he have any particular advantage in getting that? MOOERS:No. I mean the awards, there€s no questions about who is Mr. Soto. I mean the idea that the straw man is a little bit ridiculous because if that was a strategy, if that was important then you€d simply carry it through until you got the permit and then transfer the ownership at the end of that. But Mr. Soto had no advantage here. And as far as representations made by Mr. Soto, every representation that€s made, any agreement that€s made is in writing. You know it appears as a condition in the SMA. So for somebody to say okay well, we like the EXHIBIT C 11 project because you told us something, every negotiation I€ve ever been involved in whether it be a contested case or with the concerned neighbors we write it down it goes in as a condition of approval. The fact is, is that the AOAO that dropped the contested case and you€ll notice there is a letter in there from Mr. Kim indicating that they dropped the contested case, they had a board meeting the same day as our last Commission meeting. This issue of our project was not even raised at that meeting. The agreement is with, for the easement, is with Vacations Internationale. They€re the landowners that own it. So anything that we agreed to them has to be in writing, all right. And if we cannot reach an agreement with them this permits not valid because it says very clearly in here that we have to have a 20 foot roadway so you know those agreements all have to be in writing. So the fact that Mr. Soto is no longer the applicant it didn€t grant any advantage to Mr. Huggett. WATANABE:Thank you. SPRINGER:CommissionerIwashita? IWASHITA:ThankyouMadameChair.Iwanttomakesurewefollowtherules,I€d like, maybe address this to Counsel. Rule 4-6c is the rule requiring the Applicant to serve notice okay. And Rule 4-2 defines under subsection 2 applicant as a person whose seeking the approval of the Commission. In this case for an SMA Permit. And 7 defines a person as an individual all right? As I interpret this, those rules as it applies to the Applicant before us now, the Huggetts; that seems to me to require the Huggetts as the Applicant to serve notice. Any comments? SPRINGER:Mr. Torigoe? IWASHITA:I€m address- I€m sorry, I€m addressing it to Applicant€s counsel. SPRINGER:Mr. Schultz? SCHULTZ:I think it€s my understanding that the contested case was actually withdrawn back in December 2003, 4, 3, December 2003. So there really wasn€t a contested case going on at that point after the AOAO pulled out. In either case, we did, it€s my understanding that we did do a notice as if there was still a contested going on we just didn€t say that there was one. Cause it was our understanding given to us by the Planning Department that this was merely a resumption of the application for SMA 03-007. IWASHITA:Yeah I understand that. But I€m just asking you to address what the rule says and actually the way I read it going backwards since the Applicant is provided notice right. I know the former applicant provided notice. SCHULTZ:Right. IWASHITA:But the Applicants now are the Huggetts. SCHULTZ:Uh, huh. EXHIBIT C 12 IWASHITA:Right. And the Huggetts are persons and as defined under the rule or are individuals or persons and I€d like your interpretation on how. As far as I€m concerned those words basically say the Huggetts are required to provide notice of a contested case hearing under Rule 4-6 because 4-6c is the rule that requires notice by an applicant not original applicant, not, you know it€s not defined it just says applicant right. SCHULTZ:Right. IWASHITA:Can you address how the rules define. You know I€m just asking you. SCHULTZ:I guess we interpret it as the applicant at the time that the hearing is, the matter has first begun needs to give the notice. IWASHITA:Can you cite me something in the rule that says that? SCHULTZ:No. IWASHITA:Thank you. SPRINGER:Mr. Torigoe. Would you care to make comment on Commissioner Iwashita€squestion? TORIGOE:Not really because you know these are the kinds of questions that will probably end up being litigated and so if the Commission has questions on interpretations that may be litigated it€s probably better to do that in Executive Session. SPRINGER:Commissioners given the tone of the discussion and the issues before us I would just instruct all the Commissioners if at anytime you feel the need for an Executive Session to please indicate so and I€d be glad to hear you. IWASHITA:I have a procedural concern. SPRINGER:Commissioner Iwashita? IWASHITA:Based on Mr. Kim€s request regarding the, what he claims a late filing of the memo and how the Commission should proceed on that. SPRINGER:I think that both the comments here today and my recollection of what we heard previously was that the 10 day request was that, it was a request and it was truly for the convenience of the Commission as has been noted in testimony. There was not a formal order made. TORIGOE:It sounds like Commissioner Iwashita€s question was basically asking what the procedure would be for dealing with Mr. Kim€s motion. Is that what you€re asking? EXHIBIT C 13 IWASHITA:Yes, yes. How do we, do we address it, do we grant it or do we you know? His request is that ultimately for more time. TORIGOE:Yeah. I think at this point the Chairperson is the presiding officer and although this is not yet in a formal contested case procedure the SMA permit in general is still covered by the contested case rules. And under the Contested Case Rules 4-5b, the presiding officer rules upon all objections or motions which do not involve the final determination of the proceeding so, I think basically it would be for the Chairperson to make a decision. And so at this point Mr. Kim has made a motion to strike the memorandum that was presented by the th Applicants on May 17 and so the decision would be to grant the motion and strike from the record or to deny the motion and allow the memorandum to become part of the record for your consideration and decision making. Or as has been noted, you may grant the motion in part. For instance if you feel that there are portions such as the draft transcripts which should be stricken then you know those could be stricken and other parts which you feel should be allowed can be allowed. SPRINGER:In that case, given the, if I may pick up the discussion where I left off, I believe that the request was made for the convenience of the Planning Commission and I will deny the motion to strike the applicant€s exhibit. Mr. Kim do you have any comments, any testimony to make for us on the intervention in general. And we understand that you€re representing 2 individuals. KIM:Yes, and so I would be asking that intervention be allowed for the reasons, the Commission is well aware of your own rules as well as what you want to set as public policy in this area. In response to the communications that were discussed, clearly an application is not avestedright.TheApplicantcan€tsayyoumustnotallowcontestedcasehearing;there€sno authority for that. It€s a discretionary act on part of the Planning Commission. It goes by a case by case basis. And I understand that the Commission needs to be worried about how you€re going to set the tone, not only in this case but in all cases. And what we are arguing by way of public policy is that when you€re faced with a situation like this, shut out the public or not that you have the power and the discretion to make this decision. You don€t, you€re not prevented from doing it. You have to determine, as a Commission how you€re going to conduct business henceforth and it€s not a matter or law, it€s not a matter of rule, it€s a matter of practice and this is the gray area that you€re in. We argue for openness, we€re arguing to allow contested case hearing for my 2 clients that€s the up and down vote, allow or don€t allow it and then we€ll take it from there. Thank you very much for this opportunity. SPRINGER:You€re welcome, thank you Mr. Kim. Commissioners do you have any questions for Mr. Kim? Commissioner Watanabe? WATANABE:Mr. Kim you know it€s my understanding that even if we did not grant the contested, I mean standing yeah, that your clients and anyone else from the public would still be able to comment. Am I not right on that? KIM:That is correct. EXHIBIT C 14 WATANABE:So in that light is that not openness to the public? KIM:Yes and no. I mean I would concede that€s openness to the, we can comment directly to you. However, all communication between the applicant and my clients have ceased. The last hearing they had indicated that we wanted them to talk and now we€ve been advised that no discussions will take place except through legal counsel. So, it€s not going to, if you think that that€s going to end it it€s not. What€s going to happen is just going to be litigation and let the attorneys go and do their thing. Because if you€re an applicant and there€s no issue as far as making concessions or not making concessions then basically we have to fall to the Commission. WATANABE:Can I follow up? SPRINGER:Mr.Watanabe. WATANABE:Isn€titcustomaryonceattorneysgetinvolvedthatallcommunications then go through counsel whether, I mean, isn€t that standard? KIM:That€s true. But, we had agreed, I had an agreement with Mr. Mooers. He didn€t have legal counsel at that point that Mr. Huggett and Mr. Haney should talk among themselves so that they could see if something could come up that discussion where I wasn€t involved. And attorneys can do that. We can allow clients to talk as long as there€s not attorneys involved. Because when we get involved then it becomes technical and you know other so. I€m just telling you, as a practical matter, there€s no, not going to be any discussions and so. HUGGETT:Let me comment on that. SPRINGER:Sir, if we could have your name and address for the record please. HUGGETT:Sorry. Wes Huggett, 3841 North Hoyne Avenue, Chicago, Illinois 60618. And I did meet with Brian Haney after our discussion. We had a nice discussion. He raised all his concerns, which he has raised in front of this Commission, him and Brian or him and Charlie, 4 times over the past 6 hearings. I heard them all, Corey€s heard them about-, during 6 meetings, who€s my architect still. And, after that discussion I got a voicemail, I€d say about 2 weeks after that and let me see, let me quote it here. Saying very polite, he€s a polite guy. We have a long process ahead of us if we can€t get some negotiation done. And my wife and I took that as a threat and I refuse to be extorted. Not to mention, and I don€t, and I don€t want to disrespect anybody here, but I don€t think Mr. Kim€s clients are unassuming public citizens that are not being heard and been given due process. I mean as I mentioned before, these guys have testified 4 times separate, very lengthy over 6 meetings. I went through the background report and I notice that they submitted 15 pieces of written correspondence including one 56-page report, one 14-page report. Over the course of this correspondence they€ve represented Sea Village owners, concerned neighbors on Alii Drive, concerned citizens of Kona and anonymous home and condominium owners. And some of all this communication has been sent to roughly 3 dozen EXHIBIT C 15 officials including of course Planning Department, Planning Commission, individual Commissioners, City Council members, Corporate Counsel, Engineers, Fire Chiefs, County Clerk, Deputy Clerk and the list goes on and on. And, my point here is that we€ve heard their concerns. My entire team has heard their concerns. We understand their concerns. I think there€s other people that have heard this concerns and understand their concerns. And, we believe that they have all been adequately addressed and part of it is because of this 2 year long th process we€re in our 7 hearing. So, I€m all about trying to gather consensus and work together with people but when do we get to the point where we say enough is enough. And I have been, my wife and I have been the property owners for the last year and I€m starting to think that you know jeez I can have property rights too especially when a few of these units are going to be used for my family€s vacation home. So, I feel like I understand what they€re looking for, I clearly understand. I went through all the hearing notes. I went through all the correspondence and I understand what they€re looking for. And lastly I€d just like to point out that the neighbors to the immediate south, which is Sea Village withdrew their contested case okay. And it was my understanding that at that meeting which they have every year for the 130 condo owners that there was no concern expressed over our project. And they were clearly aware that we had the contested case hearing. Secondly the neighbor to the immediate east, Vacation Internationale, they€re clearly supportive of the project because they€re giving us easement for vehicular access aswellasutilities,whichincludesewers.Sothere€snotgoingtobeawastewatertreatment plant, which I saw on, I don€t know, probably 20 letters. So to hold this process for continued negotiations with Mr. Haney and Mr. Buscemi I think is fruitless. I think it panders to their stalling techniques and continues this nonsense. So, in that regard and I€m, you know, I€m willing to talk to them but I€m just not-. I don€t think it€s fair to continue to stall this process and if these guys want to take it to the U.S. Supreme Court my wife and I are ready for the ride. So, I apologize for being a little bit excited here and fired up but I do respect the Commission and especially your thoughts and opinions. And you know my wife and I are just, you know we€re requesting that we get a favorable recommendation on behalf of the Planning Department€s recommendation. Thanks. SPRINGER:Thank you Mr. Huggett. Are there any questions of the testifier from the Planning Commission? The question before us then is whether or not to- Commissioner Iwashita? IWASHITA:Mr. Huggett was any representation made to you at the time you purchased the property to whether or not you had a right to this application process. HUGGETT:Yes, it was my understanding through the due diligence that I had done that we did have a right to pick up this application. IWASHITA:Who told you that? HUGGETT:Well, I€ve heard it from various people. I talked to Greg Mooers. IWASHITA:Anyone else? EXHIBIT C 16 HUGGETT:Well through the course of due diligence I talked to everybody. I mean talked to everybody on the project team. I talked to Greg Mooers. I talked to the architect Corey Foulk. Through my real estate Clark Realty, we talked to various people on the Commission. IWASHITA:Did you get a legal opinion from a land use lawyer? HUGGETT:I got a letter here from the Planning Commission as well, it was dated November 4. MOOERS:It was the Planning Director. HUGGETT:Oh, the Planning Director, Chris Yuen. th IWASHITA:November 4 of what year? HUGGETT:2004. IWASHITA:When did you acquire the property? HUGGETT:We acquired the property in July of 2004. IWASHITA:So you didn€t rely on that letter when you bought the property? MOOERS:(inaudible). IWASHITA:I€m asking him the question. MOOERS:(inaudible). IWASHITA:I€m asking him the question. MOOERS:Okay, he cited me. IWASHITA:I€m asking him the question. Is that right? HUGGETT:Pardon me, could you repeat the question please? IWASHITA:I€m asking you what you relied on in buying the property. You just cited me a November 2004 letter. HUGGETT:I relied on the advice from Greg Mooers. IWASHITA:Thank you. SPRINGER:Mr. Mooers? EXHIBIT C 17 MOOERS:Yes, when Mr. Huggett approached me I called Mr. Hayashi and asked him if substituting the owner if that required a new application and he advised me that it did not provided the same application was used, the same project was to be built. So I made that request of the Planning Director, excuse me of the Planning Department and Mr. Hayashi informed me that a new application would not be required. So I passed that along to Mr. Huggett. IWASHITA:When did that conversation take place? MOOERS:That conversation took place when Mr. Huggett was in his due diligence back in the Fall of €04 sometime. HUGGETT:That would be around May, we closed in July so, couple of months before we closed. MOOERS:Butwhenheaskedme,yeah,I€vesubstitutedapplicantsonother occasions but I specifically asked in this case because Mr. Huggett was making that representation that he wanted to know if he could be substituted as the applicant and so I made that request to the Planning Department. IWASHITA:Mr. Mooer did you base any of that based on Rule 4-6c, 4-2-2 and 7? MOOERS:No I did not I based it off my conversation. IWASHITA:So, you didn€t do any due diligence in reviewing the rules before you gave your opinion. MOOERS:Well, I read the rules but my experience is not to interpret the rules but rather to ask the people who review the rules and have to make decisions based on that as to how they interpret the rules. Because ultimately it doesn€t matter what my representation is, if the Planning Director or the Planning Department says I have to file a new application, I€m going to file a new application. So, I do not review the rules and say that€s my professional opinion, I€m not an attorney. My question was asking the Department, how are you interpreting the rules, will you require my client to file a new application? They said no they would not. IWASHITA:You understand that this Commission has the final authority on that point? MOOERS:I absolutely do. I rely on the Department for advice. SPRINGER:Thank you Commissioner Iwashita. IWASHITA:Follow up. Did you inform Mr. Huggett that the Commission has the final authority on interpreting the rules? MOOERS:I just informed Mr. Huggett what the Planning Director, excuse me, the Planning Department had told me. I did not interpret the rules for him. I was not responsible for EXHIBIT C 18 his due diligence. I don€t get into a situation to represent people when they buy and sell property. IWASHITA:Thank you. SPRINGER:Other Commissioners any questions of Mr. Mooers? At this time I€d like to invite any members of the public who would like to make testimony specifically on the question before us, which is whether or not to grant a contested, intervention to this contested case. Is there anyone in the public who wishes to testify? Ma€am? Is there anyone else who wishes to testify? Okay there€s one seat vacant, if you could come forward please and have you been sworn in yet? TESTIFIER:I raised my hand when you asked people before. SPRINGER:Thankyouma€amifyoucouldpleasegiveusyournameandyouraddress and then proceed with your testimony. DENNIS:Yes, my name is Julie Dennis and I€m also speaking for my mother Adelaide Davis we€re co-owners at Sea Village at 75-, wait I was so nervous I can€t remember my number. I can write it, 75-6002 Alii Drive #3112 at Sea Village. And mama€s had her place for 25 years there. And I wish that you all could- SPRINGER:If you€d like to be seated ma€am you€re-, please take a seat. DENNIS:I wish that you all could see the area that we€re talking about if you have not made a personal trip over there to see this congested area where the driveway is. And, I€m sorry that none of the people that are applying for the contested position were able to be here. I myself had requested to have my name listed on the letter but it wasn€t and I never got any notice from Mr. Mooers and Mr. Schultz about anything but the owners have been communicating among ourselves ad hoc. The last annual meeting for the owners was totally focused on a change of property manager, which was a huge big issue. We€ve had the same property manager for a long time and required a huge upheaval to make the change and so because the individuals were taking on this responsibility to tackle this situation that is why the board let it pass by in terms of the agenda at the annual meeting. So, you know there are many layers to all of these representations and you have to hear from everyone to get the full picture. And I myself would like to know from Mr. Huggett why Mr. Soto abandoned the original property proposal and I wonder if he could give me that answer. SPRINGER:Could someone from the Applicant€s team respond? MOOERS:I can respond but it€s hearsay. Mr. Soto informed me that the reason he was dropping it-, Mr. Soto is a contractor from Honolulu. He informed me that his insurance company advised him not to build the project because of the amount of litigation on multi-family dwellings as far as faulty construction whatever and the insurance rates are very, very high now on contractors and that€s what he alleged to me but I have no way of knowing other than that. And, like I said that€s just hearsay. EXHIBIT C 19 SPRINGER:Thank you for that courtesy Mr. Mooers. Ma€am if you could address your concerns to the-, this matter before us which is the standing in the contested case. DENNIS:An earlier question was stated that the job of the Planning Commission is to see if this is a good use of the property. And, if you look at the area, it€s a tiny land lot piece that is going to access onto an already congested driveway where there was a really serious accident that hurt a little girl I think year before last. And, the person that witnessed that was very traumatized but he€s not here to speak today. But, if you could see the situation it would be an ideal place for a single-family development on a large process with maybe multi apartments for your visitors. But to have a 12 unit condominium go in there is, I can€t see how it could be considered a good use of the property except monetarily because it impinges on the neighboring properties in such a way. And, I haven€t heard what the easement-, how the easement is going to work that you say is being negotiated about how you€ll solve the driveway problem and the water,sewagetreatmenteasementthatV.I.isapparentlydiscussingwithyou.And,fromearlier discussions I was feeling very optimistic that the Huggetts would be wonderful neighbors to have because they were oriented more toward mediation negotiation and then I-, the interpretation of the voicemail from Mr. Buscemi or Mr. Haney is-, I€m surprised you didn€t do a reality check to see if that was a threat because I€m very surprised that-, from my, I€m not a close friend of either Mr. Buscemi or Mr. Haney but in these dealings of trying to get information and know what€s going on he seemed a reasonable person. And I would be absolutely shocked that, that was intended as any kind of threat to you. And I€m just surprised you didn€t do a reality check to ask him what he actually meant by that statement that you wrote down that was so shocking. SPRINGER:Ma€am if you could please make testimony to the Planning Commission. DENNIS:Yes, I€m very concerned that this project might go in there and I would like the Planning Commission to go and look at this property so you can see exactly what the problems are that we€re talking about. And, if you would do that I think the whole problem would be resolved. SPRINGER:Thank you ma€am. Are there any questions for the testifier? Thank you for making testimony to us ma€am. Sir? TESTIFIER:May I just (inaudible) I€ve been sworn in earlier? SPRINGER:You may, and if you could please begin with your name and your address. GALLANT:My name is A. John Gallant. Address 75-6002 Alii Drive, Unit 4213, Kailua-Kona, Hawaii 96740. SPRINGER:Thank you. GALLANT:You€re welcome. Basically, well, I€ll preface it-, I am the only full-time resident of Sea Village. I live there year round so it€s my home, it€s important to me, it€s my neighborhood. Regarding the contested case I guess the only thing that I would throw out is if EXHIBIT C 20 the Huggetts can inherit the Soto application and I have no problem with that personally is there a way that Mr. Kim€s clients can sort of inherit the contested case before? And I, you know I don€t know if there€s a way to do that but it just doesn€t seem fair-. It seems like it would be more fair if was balanced where everything could be brought up. That€s all I have to say. SPRINGER:Thank you Mr. Gallant. Mr. Director, would you care to give an answer to the member of the public on that? YUEN:The one party that requested a contested intervention in a contested case hearing when the time came to do that has formally withdrawn their request for the contested case hearing. Hence, there€s nothing to inherit or to pass on. GALLANT:Okay, thank you for that clarification. SPRINGER:Thankyousir.Anyquestionsforthetestifier.Seeingnone,members we€re at 1:00, as we know we€ll be losing quorum at 1:30. There is a question that we can answer today and that€s the matter ofthe contested case and granting intervention according to the requests that we€ve received. I welcome any discussion on that matter now. IWASHITA:Madame Chair? SPRINGER:Commissioner Iwashita. IWASHITA:Thank you. I would ask that we have executive session with our counsel to address some residual issues that that I would like counsel to provide us answers on. SPRINGER:Thank you is there a second for that motion? MCCALL:I second. SPRINGER:It€s been moved by Commissioner Iwashita and seconded by Commissioner McCall that we move into Executive Session for the purposes of conferring with our attorney on the SMA permit issues before us. All those in favor indicate so by saying aye. COMMISSIONERS:Aye. SPRINGER:Any opposed? ALAMEDA:Nay. SPRINGER:There€s one opposition. COMMAND:Bobby Command, West Hawai€i today. I just want formal-, the formal citation of the Executive Session from I guess-, whoever, Corporation Counsel. TORIGOE:Can I get that to you like a few minutes or-. EXHIBIT C 21 COMMAND:On the record. TORIGOE:When you say formal citation you mean what? COMMAND:Why you€re going into Executive Session. TORIGOE:Okay, yeah that€s a good thing to clarify. And this is again to consult with Counsel for purposes of discussing some of your legal options and some of the potential liabilities or I guess defensibility of positions that you may take. SPRINGER:Did you get that Mr. Command? Okay, thank you. And, the record will note that there was one opposition to going into Executive Session and that was Commissioner Alameda. If we could have the room vacated please? EXECUTIVEThe Chair called an Executive Session at 1:05 p.m. SESSIONThe Commission came out of executive session at 1:35 p.m. by a motion made by Commissioner McCall, seconded by Commissioner Smith, and unanimously carried by a voice vote of all Commissioners in attendance. SPRINGER:As stated previously at 1:30 we lose quorum of this body. We€re at 1:30 now. I see one Commissioner preparing his things to leave. Is there any further discussion we want to have today or may we have a motion to continue this matter. IWASHITA:I think at the suggestion of Counsel we€ll put on the record a motion to close Executive Session. SPRINGER:Okay. IWASHITA:I so move. SPRINGER:Thank you. Is there a second? ALAMEDA:Second. SPRINGER:All those in favor indicate so by saying aye. COMMISSIONERS:Aye. SPRINGER:Any opposed? COMMISSIONERS:(silence) SPRINGER:Thank you. This meeting with the Hawaii County Planning Commission isbackinregularsessionandweareabouttolosequorum.Beforewelosequorumisthereany EXHIBIT C 22 brief discussion on this matter or are we prepared to move to continue the matter. Commissioner Iwashita? IWASHITA:Continue further proceedings on-. I move to continue further proceedings on applicant Wesley and Kelley Huggett, formerly Eric Soto, SMA 03-007, to be scheduled at the next Kona meeting of this body. Is that appropriate? SPRINGER:Is there a second? And then we can get that in discussion. Is there a second? MCCALL:Could the motion be repeated? SIRACUSA:Louder. IWASHITA:Idon€tknowifyouwanttoaskforthat.Imovethatwecontinuefurther proceedings on applicant Wesley and Kelley Huggett, formerly Eric Soto, SMA 03-007 until the next Kona meeting of this body. SPRINGER:Is there a second? If there is no second the motion dies. IWASHITA:Madame Chair? SPRINGER:Sir? IWASHITA:As indicated previously, may I be excused? SPRINGER:You may. IWASHITA:Thank you. SPRINGER:Commissioners we are about to lose quorum. If we do not make a motion to continue this Mr. Torigoe what do we do? Commissioner Watanabe? WATANABE:May I make a motion then? SPRINGER:You may. WATANABE:Okay. I€m not sure if I€m wording this right but I€ll make a motion to deny the request for standing as intervenors in the matter of Special Management Area Use Permit, SMA 03-007 and off the top of my head I do not recall all of the requested intervenors so if you could help me out Mr. Hayashi by stating for the record who all the intervenors were? HAYASHI:Would you like to have that in the record? SPRINGER:I would like to ask Mr. Torigoe if he could give us some better -, some more clear-. EXHIBIT C 23 TORIGOE:Well let€s clarify the motion. Is the intent of the motion to deny standing to all of the intervenors that have requested intervention at this point-, people who have requested intervention at this point? WATANABE:That is correct. TORIGOE:Mr. Hayashi can we have a list of that -, those to make sure that is the proper understanding? HAYASHI:Okay. There were -, the reason why we€re hesitating is because there were 2 people with a formal petition. The rest didn€t file any kind of formal petition but by letter form. So does the motion include all those. WATANABE:FortherecordIwouldsuggestthatweincludealleventhoughIrealize they did not, you know file the correct form and that would give them their response. HAYASHI:Okay. Thank you. That would be Brian Haney, Jack and Kelley Armstrong, Mark and Kim Spangler, Lowell Zimmerman and Charles Buscemi. WATANABE:To elaborate my reason for deniable would be untimely filing. MCCALL:I€ll second the motion. SPRINGER:Is there a second? MCCALL:Second. SPRINGER:Is there any discussion on this motion before the Hawaii County Planning Commission? It was moved by Commissioner Watanabe and seconded by Commissioner McCall to deny all the requests for standing in this contested case. Commissioner McCall. MCCALL:I feel, I think we perhaps need to put some things on the record. That I think that -, I feel that the -, there has been a substitution of the Applicant. Huggett has been substituted for Eric Soto but I feel that the application remains and as such these new requests for intervention are untimely because of that. That these parties had their opportunity to request intervention when Mr. Soto first put in the application. SPRINGER:Thank you Mr. McCall is there any other discussion on the matter? Mr. Hayashi. HAYASHI:Thank you Madame Chair. Commissioner Watanabe? WATANABE:Aye. HAYASHI:Commissioner McCall? EXHIBIT C 24 MCCALL:Aye. HAYASHI:Commissioner Siracusa? SIRACUSA:Aye. HAYASHI:Commissioner Alameda? ALAMEDA:Aye. HAYASHI:Chair Springer? SPRINGER:Yes. HAYASHI:Madame Chair, 5 aye votes motion carries. SPRINGER:Thank you Commissioners I already have stayed beyond the time I committedtodoso,sowelosequorumatthispoint. Thediscussionendedat1:45p.m. Respectfully submitted, Lynette Sanemitsu, West Hawaii Secretary EXHIBIT C 25