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What happened here is that the Department made an accommodation so that individual lot
<br />owners would not be caught in a situation where they could not build because they couldn’t get a
<br />certified shoreline because the State wasn’t doing it. What Mr. Yeh is arguing is that we should
<br />have kept making that accommodation after the State would do a certified shoreline. And you
<br />know we, we made this accommodation because they weren’t doing the certifications. And once
<br />they found out, we say do a certification. And that’s still our response to this applicant. They
<br />started to do a certification on November, 2007. This question of this County says 2.8, or the
<br />State says 3.2, at this point, our opinion has nothing to do with it. The State controls the
<br />certification. If they want the certification in Kapoho Vacationland done at a 3.2 high tide, that’s
<br />up to them. And they can have it, they can have it done. There are dates when they could have
<br />had it done. And that’s what they need to do.
<br />I would caution you about something, and that is that we’ve talked a lot about marks on the side
<br />of the road that are painted on there that have been done, apparently, in the last day or so. Do we
<br />know what the person who did those marks intended them to mean? And I would be very, I
<br />would be very careful about that.
<br />And the final thing I’d like to say is that Mr. Yeh started by listing a number of actions that the
<br />Planning Department has taken in Kapoho involving other properties, with the intent of making
<br />you think that we act arbitrarily, capriciously, unreasonably, that we do one thing in one situation
<br />and another in another situation.
<br />This is, it’s a difficult area to determine the shoreline. There are issues with structures that have
<br />been built at different times when the rules were different. And so we could, we could spend a
<br />half an hour talking. Each of these was, each of these incidents, the three incidents we’ve talked
<br />about, is, well, with the exception of the parking lot, the other two are at least as complicated as
<br />what we’re dealing with today. We could go through these incidents and discuss in detail why
<br />we did what we did. In Barsell’s case, let me briefly say that if you read that a little bit further,
<br />first, this is in an area that is generally a higher area, and that we required the home to be built 45
<br />feet from a four-foot elevation. This is, again, 2005. We did not require a certified shoreline.
<br />We did a high tide, they did a survey which showed the tide elevations. We took, as a
<br />conservative measure, and this is also a situation where generally the wash of the waves is not a
<br />big factor. It’s mostly a question of the elevation, and we said 45 feet from a four-foot elevation.
<br />So we can -. And maybe Tom can say something that, well, but look at this, and then I could say
<br />something like, well, look at that. But it’s a different situation.
<br />Had they come in, you know, as far as requiring a certified shoreline, had they, had we gotten –.
<br />And as you see from the emails that he submitted that we gave to Mr. Yeh, I had inquired with
<br />DLNR a couple of weeks earlier whether they would do a certified shoreline in the area, they
<br />didn’t get back. I emailed, emailed back and said, we’ll do it. If he had emailed back and said
<br />we wouldn’t do it, we would work with their, we would have continued this policy of working
<br />with their topographic survey.
<br />And then the other one just, the other situation that he brought up, we agreed to treat what we
<br />had, the evidence of an existing legal sea wall as the shoreline. The rules say that if you have an
<br />existing legal sea wall, you can consider that the shoreline. So, we did. We did not require a
<br />shoreline certification in that situation.
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