2007-09-21 TD-BAR - Laserfiche WebLink

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VITOUSEK: No. GRAHAM: Okay, thank you. So go ahead with your presentation and submittal of evidence, or however you’ve deemed appropriate at this time, and begin with your speaking with your name and address, please. VITOUSEK: Sure. Chairman Graham and Members of the Commission, I’m Randy Vitousek and my address is 75-170 Hualalai Road, Kailua-Kona. I handled the appeal on behalf of D-Bar. I’m not here to represent the applicant with respect to this SMA application or with respect to the merits of it, but to address any procedural issues that came out of the appeal and going forward. And so in that light I would like to, just to supplement what Mr. Torigoe said and point out that what Chapter 91-11 and your Rule 4-23 say is that if all of the members of the Commission who are voting had not considered all the record and if the decision is adverse to a party, then you have to follow the procedure where there’s a proposed decision. And what happened before was although we were not following formal contested case hearing procedures the Planning Director had recommended approval of the application and, of course, the applicant was asking for approval but the Commission’s decision was to deny, and it was therefore adverse to a party. And so because it was adverse and because there’s a party who would have a right under your rules to get judicial review, that’s why you have to go through the procedure of having a proposed decision. And so what could happen today presumably is if the Commission votes to approve the application then it could treat the Director’s recommendation as a proposed decision and just issue a decision, because the decision is not adverse to any party. In other words, there’s no party that would appeal that decision cause the Director’s recommendation was favorable and the applicant, ruling granting the application is not adverse to the applicant. If the Commission decides to deny the application then it would have to follow a procedure of issuing a proposed decision that would have to be served on the parties; and the parties would have an opportunity to argue that decision to the Commission. So I just want it to be clear that, you know, my role has been on the appeal. My role is concluded for the purposes of this proceeding by explaining what my understanding of the Court’s ruling is and my understanding of what the options facing the Commissioners and the applicant are today. Thank you. GRAHAM: Thank you, Mr. Vitousek. Let me kind of sum what I think, is that last time we voted to deny but we did not have specifically before us findings of fact and whatever in support of that denial. We did have the Planning Director’s recommendation for approval at the time. After we voted to deny, Mr. Torigoe prepared based on the record and what he heard in the hearing a proposed findings of fact, decision and order and such. And so we do have that already.Since that time because a lot of the testimony received and some of the Commissioners, I know Commissioner Iwashita and myself at least, spoke to the access to the beach park issue a lot - and Mr. Torigoe did not have that in his proposed findings and all - I did submit as Planning Commission Chairman some comments to Mr. Torigoe that I thought should have been included. And so he has prepared sort of a new set of findings of fact kind of in line with the Planning EXHIBIT B 8