2023-04-20 Leeward Exh A (Items 1 D&L Fujimoto PL-SMA-2023-000027)

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KERN: That's a question. Yeah, when this condition was put into the SMA at this time, was it agreed to or was it imposed? FUKE: That was imposed. KERN: And so, then I wonder—and again, this is a greater conversation since we are going to get into it—if there was a condition that was imposed that later case law said would not be rational nexus for that, does that nullify that imposition of that condition? Or does that maintain it even though it was not necessarily imposed appropriately? CAMPBELL: You know, I don't know. And I'm not sure I entirely understand the question. Is the question KERN: So, if we were, if this were to come in today, the question is if this were to come in today in this place, and Holiday Inn is the best example of that because it's right there, imposing a condition like this, I don't believe, would CAMPBELL: Would pass the test— KERN: would pass the test based on case law. CAMPBELL: You know, I don't, I don't know entirely whether it would be evaluated under today's standards or whether it would be evaluated under the standards at the time. I will offer that some courts have recognized that a takings claim can pass from a previous owner to a subsequent owner and still be valid. So, had it been a taking at the outset, the fact that the current owner bought it with that in place does not absolutely nullify the problem. It is something that some courts have recognized as something that passes from one owner to another. But that is in no way offering an opinion as to whether we have a takings today or not. KNOWLES: But also, that doesn'toh, go ahead. KERN: I'm just, I'm trying to figure out where, what framework we are working in here and where do we go with this framework, right? Based on it having been approved, I think the conversation is different. If we are going to open it up to a greater conversation around this based on the interpretation of that SMA rule, we start going all over requiring public access for parking that's not based on the shoreline. KNOWLES: But this doesn't necessarily set a precedent like that, I don't think, I mean, I'm not, I don't know, I defer to corporate counsel for those things, but I think that if we are really getting back to what our role is as Commissioners, it's really to think about, you know, do we strike the condition or not strike the condition, do we maintain the condition with in an amended form. I think one of the problems here is that the County hasn't taken, doesn't seem like the County has taken any responsibility for the parking when there is a problem but is continuing to require the parking anyway. So, we are putting the owner, solely on the private property owner to provide the public parking without support from the County to help manage and control it. I, that's where my 23 EXHIBIT A