2007-09-21 TD-BAR - Laserfiche WebLink

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you know, where we are is that the hearing is reopened, no decision has been made, and, you know, you go forward to allow or not allow whatever additional evidence Mr. Fuke wants to present on behalf of the applicant; and then the Commission makes a determination of what direction it wants to go with the application. And if it is adverse to the applicant or to a party to the proceeding, then you have to go through the proposed decision, the format as set out by your rules. That’s, I think that’s where we are. GRAHAM: Thank you, Mr. Vitousek. Commissioner Iwashita, did you have any -? Commissioner Woodward, let me start with you. WOODWARD: Well, I would agree with one point you made. We did reopen the hearing and we have taken public testimony which is adverse to their position. So it would seem to me that out of fairness, if nothing else, we should hear the other side of the story. GRAHAM: Commissioner Woodward, I understand that. We take public testimony on every agenda item, so that’s kind of why I did that at the time also. Mr. Yuen, do you have something to offer? YUEN: Yeah. I don’t want to tie the Commission up, meeting further on procedural things. But this is an interesting question because it is something that will come up when the Commission decides, when the Commission wants to deny an application when there is no intervenor opposed to it, the Department is favorable, and of course the applicant is favorable. And the Commission has every right to do that. That’s what you’re here for. You get to vote, you get to make the final vote. The question is really what is the correct way to do that in a situation where all the Commissioners, where it has been continued for meeting to meeting and all the Commissioners were not here to hear the evidence. And then in that case you have to make the final decision, you have to prepare, there has to be these formal findings prepared. And typically that won’t be here because the Commissioners, because there has been no party to prepare them, to bring them to the Commission. So the only practical way to do it is for the Commission to take what is in effect a preliminary decision to deny the application, stating its reasons on the record, and directing the Department to work with the Commission’s attorney to prepare formal findings of fact, conclusions of law, and a decision and order adverse to the application along with the reasons given, and on the basis given by the Commission in its discussion. Then we will do that probably with the Commission’s attorney taking the lead, submit that to the party, the applicant, and then the Commission then does have to take a vote on that formal document for it to be a final decision. So in this case there has been a vote and, but there has been no final decision. And we’re going to have to make that two-step. The options for the Commission today are essentially as Mr. Vitousek says, the Commission can vote to change its mind and vote to approve. In the case of an approval, the approval could follow the lines of the Planning Department’s revised recommendation with possibly additional conditions as desired by the Commission. In the case of a denial, essentially the Commission would be reaffirming its preliminary denial that was issued before and then it should simply direct EXHIBIT B 12