2008-11-24 TKOHALA LLC - Laserfiche WebLink

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WATANABE: We should allow Mr. Yuen to comment on the more recent comments that Corporation Counsel provided with regard to the contested case hearing Rule 4 – what is that again – Rule 4-5 and whether the presiding officer actually has the ability to defer the matter. YUEN: We are here on the two motions to reconsider the previous actions that the Commission took, which were accompanied by proposed Findings of Fact, Conclusions of Law. Rule 9-11F says exactly what has to happen; and it says that if reconsideration is not granted, the application is denied. WATANABE: Okay, thank you. Mr. Woodward? WOODWARD: Well, there seems to be some legal disagreement here. But right now both the zoning and this Special Management Area Permit are in the same legal limbo. They still have the RS-15 zoning status, but they haven’t got the time extension, which means it’s essentially worthless – they’re nowhere. And then on the SMA it is exactly the same. So again, I don’t think it makes any sense to vote on this when the zoning is paramount on it obviously. So I would move, if it’s appropriate -. WATANABE: I believe it’s the Chair’s authority, or at least that’s -. WOODWARD: Okay, well, I might suggest then to the Chair that we consider a deferral until either a time extension is granted for the rezoning or the area is rezoned by the County Council and signed by the Mayor. WATANABE: Thank you. Any further comments from any of the other Commissioners? Okay. To summarize then, we certainly have our differences in the interpretation of the Rules, however, it’s been pointed out by and I guess agreed to by at least two of the attorneys in the room that the power to continue under Contested Case Hearing Rule 4-5(c), the Chair has the authority to defer. However, Corporation Counsel also did point out that there ought to be a good legal reason for deferring. So let me try and summarize in my layperson’s terms what I feel are legal reasons for continuing. No. 1, it’s been pointed out throughout the discussions that the SMA should agree at least in zoning or in concept with the zoning laws. We recognize that the zoning ordinance is in limbo because the Council wants RA-15 whereas the current zoning is RS-15 – I’m getting a little lost in my thoughts here – so I think until that zoning becomes law, which, as Mr. Woodward pointed out, the Council would have to vote on and approve and the Mayor would also have to approve, whatever we do with the SMA at present will be sort of moot. In addition, if we were to make a decision, as I pointed out earlier, on granting a time extension on the SMA, as Kohala LLC is requesting, it would allow for a maximum of 50 single- family residences, which I think the Planning Commission is in agreement is too high a density for the property; however, we have no way of predetermining what the courts may decide in the future with regard to the zoning case. So I think it behooves us to defer this matter on both Agenda Items 1 and 2 with regard to the revocation of the SMA and also the time extension of the SMA, so that the Planning Commission, when it does make its final decision on either, we’ll at least have the final decision on the zoning, and the SMA and the zoning will be compatible with one another. Hopefully, there are no objections to deferring. EXHIBIT A 14