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2007-05-24 TIBBETSON_2_
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2007-05-24 TIBBETSON_2_
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consequence; the judge seems to be saying that whatever happened before was of no legal <br />consequence. And the fact that certain pieces of information like about the fact that there were <br />burials there were not disclosed to the Building Department when Mr. Ibbetson went in for his <br />application, his permits, for the house and for the swimming pool were not disclosed. And yet, <br />we were told we should consider this now as though this is a residential property, even though <br />what we are looking at as part of the problem is the fact that it was misrepresented in the first <br />place, and that the original deed says use it as cemetery forever. So I don’t -. What happens if <br />we disagree with any part of the judge’s ruling? I mean, do we follow our own consciences, or <br />do we have to -, are we forced to abide by something that we disagree with? <br />GRAHAM: Mr. Torigoe, would you have a response to that? <br />TORIGOE: Well, at this point my best advice to you is to try the best you can <br />to heed, you know, what the judge has told us with respect to the -, being careful not to make this <br />a case in which you make your decision based on perceptions that a party may or may not have <br />misrepresented things. And again it’s a land use decision ultimately, and so I will urge you to <br />make a decision on that basis. <br />GRAHAM: Commissioner Watanabe? <br />WATANABE: If I may, I think, Rene’, what the judge is saying is that the fact <br />that the burials were not disclosed within the process of obtaining the permits is inconsequential, <br />because the Planning Department, etc. we have no rules that say you must disclose this or you <br />forfeit the permit. Therefore the permit was provided, and because the permit was provided, that <br />established the usage as residential. And so now we have to consider this a residential -, basic <br />use is residential – it was converted, yeah – and then determine whether we would grant a <br />Special Use for a bed and breakfast, which is consistent with what we typically would do. On <br />the other hand, I should also point out that the judge did not say or eliminate the possibility of <br />turning down the Special Use, if you can find some other way of denying this by using a land use <br />type of argument as opposed to the argument that we used. So the argument that we used was <br />found incorrect. Had the judge felt that it should automatically be granted, it was within her <br />jurisdiction to award the Special Permit to the applicant immediately, and not even have <br />remanded it back to us, and certainly not have required them to mediate. As I recall, she <br />required them to get into mediation, and from that standpoint, you know, I too really would <br />prefer that this be mediated to a settlement rather than us deciding. <br />GRAHAM: Okay, if you all don’t mind, Commissioners, I’d rather not discuss <br />this too much at this point, because to me this gets into more something we’re going to discuss <br />later when we take action. And I’d like to just go a little further with the procedures we’re going <br />to deal with at this point rather than any of those specific issues. And in that regard, <br />Mr. Torigoe, Commissioner Watanabe did bring up the mediation, and I don’t think you spoke to <br />the mediation in your original words about the Court’s remand back to us and all. Could you just <br />give us a little sense of where the mediation process came from and where it’s at now and all, so <br />we can use that procedurally to go forward? <br />TORIGOE: Yes, Mr. Chairman, thank you. I was not personally involved in <br />that, so I think we should ask the parties to explain the current status of that. My understanding <br />is that there was a separate declaratory judgment lawsuit that was filed by Mr. Kaiawe with <br />EXHIBIT A <br />4 <br /> <br />
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