2008-06-05 TSULLIVAN - Laserfiche WebLink

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shoreline wall of the pond, parallel with the southwest facing wall of the existing dwelling”, again, in lieu of a shoreline certification. Now let’s go to Wai Opae Road which you walked on today. April of 2006 there wasn’t even a high tide survey that was done. Planning Department allows addition of a 6-inch addition to the existing grade of the road, speed bump additions, taking out of lava projections from the road to make it more level. The Sullivans on the other hand not proposing to change the grade of their lot which is mauka of Wai Opae Road meet with the Planning Department in June of ’06 and were informed by them that we will accept a high tide survey with a 2.8 tide. So in reliance on this representation the Sullivans go in they don’t get a shoreline survey because they can’t do it; and number 2, Planning Department says it’s okay. So consistent with these policies that were applied prior to November of ’06, they did what they were supposed to do. So now let’s move on because Mr. Yuen indicated that well, there was this 35-day period application period within which we could reject an application because it was incomplete. Well, we know that in September of 2006 when the application is submitted it is complete. That is the policy of the Planning Department. There is nothing during that time that says it was incomplete. The Sullivans were then asked, oh, gee, would you extend this deadline because we’re a little bit concerned about where the shoreline is? Now as of that time in October ’06 nothing had changed. We also know that in fact the rejection of the application did not occur on November 15, 2006 when they had extended their deadline to, but it was actually on November 21, 2006. So what are we talking about in terms of rejecting the application as being incomplete during the period for acceptance? This is the problem that we have here, is we had from the perspective of the Sullivans side an evolving changing application of policies that were not rules. We had a backdating of a letter to justify a rejection of an application that was in fact deemed complete when it was submitted for at least, what is it, 60 days, not 35 days but 60 days; and they couldn’t even do that. And then when you look at what did the Planning Department rely on in saying that this application was incomplete, they’re saying, well, we got word through email from the Department of Land and Natural Resources that they were going to start beginning to certify. Is that a rule or is it ad-hoc change in policy? And so our point is that you can’t rely on an email. If we look at the actual internal emails that we submitted, the problem is there too because Esther Imamura who actually drafted this letter didn’t really draft it until th November 17 after hearing from Larry Brown, not from DLNR but from Larry Brown through this heresy statement, that DLNR was going to start now certifying. The problem the Sullivans were then faced with in this situation is that, and I’ll show you this problem because even as of November of 2006 when they had done this 2.8 foot survey, well, now they’re being asked to go in to DLNR and get a certification for 3.2, our Exhibit J to our May submittal. Not until October 4, 2007 does DLNR say we’re now switching from a 2.8 to a 3.2. And so, again, even this begs a question as to whether or not DLNR’s changes in positions are valid rules by which a shoreline survey must be certified and what the surveyor, for that matter, needs to follow. So essentially the Sullivans have been caught in this regulatory trap. They just want to build a house. There are houses that are mauka and makai of the shoreline there. I agree these photos that were submitted to you of the December 2007 flooding, they were done for the purpose of being sensational. But if you look at what you saw today, the distance from that shoreline that these marks bore, from the property line that is, you take a look at the site itself, they are in fact left with less than 50 percent building area. So it’s not a 40-foot shoreline setback but it’s a 20- 12