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HomeMy WebLinkAbout2006-12-06 tsunstone PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT December 6, 2006 SUNSTONE KONA LLC (SMA 05-005) A regularly advertised hearing on the application of was called to order at 2:21 p.m. at the Hapuna Beach Prince Hotel, Kamani Room, 62-100 Kaunaoa Drive, Kohala Coast, Hawai`i with Chairman C. Kimo Alameda presiding. PRESENT: C. Kimo Alameda ABSENT & EXCUSED: Fred Galdones Bill Graham Allen Salavea Andrew Iwashita Jeffrey McCall Alvin Rho Rene’ Siracusa Rodney Watanabe Ivan Torigoe, Deputy Corporation Counsel Christopher Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately 2 people from the public in attendance. APPLICANT: SUNSTONE KONA LLC (SMA 05-005) Discussion and action on the Hearings Officer’s report on Special Management Area (SMA) Use Permit to allow the development of 289 multiple-family residential units and related improvements, including associated commercial space. The property is bordered by Alii Drive and Kuakini Highway, approximately 1,040 feet south of the Lunapule Road-Alii Drive nd intersection, Kahului 2, North Kona, Hawaii, TMK: 7-5-19:1. ALAMEDA: All right. Moving along. Looking at agenda No. 5. Applicant SunStone Kona LLC. Staff? DARROW: Thank you, Mr. Chairman. If I could direct your attention to the location map to refresh the memories of the members of the Commission. This application is a continued hearing. Our first meeting was on May 26, 2006. The applicant, in this case SunStone Kona LLC, is requesting a Special Management Area Use permit to allow the development of 289 multiple-family residential units. For reference, looking at the location map, this white line moving in a north-south direction through the middle of the map is Queen Kaahumanu Highway. The, running perpendicular with Queen Kaahumanu Highway is Kuakini Highway. It also is identified with a red line. The red line illustrates the Special Management Area boundary makai of the highway. The area of the application is identified in two red dots.We have different color zonings for the property. The lighter brown represents Multiple-Family Residential 7,000 square feet. The darker brown represents Multiple-Family Residential 4,000 square feet. We also have EXHIBIT B 1 a portion of Commercial, Village Commercial, approximately 2 acres identified in a light pink color. The applicant is requesting a Special Management Area Use permit to allow the development of 289 multiple-family residential units. These are consisting of one three-plex, one four-plex, three six-plex and 33 eight–plex type structures.These are, a proposed layout is identified on the submitted site plan from the applicants. Looking at the site plan, we also see the proposed Alii Parkway running through the middle of the property. The applicants are also requesting to include recreational improvements including swimming pools, pedestrian parkways, outdoor barbecue facilities, as well as a commercial area. This is identified as Block C on the site development plan. This will consist of a two story approximately 45,000 square- foot commercial structure, each structure being approximately 22,000 square feet of commercial area. The property itself is affected by Change of Zone Ordinance 87-47, so those conditions relating to the Ordinance are still in effect, and do affect this particular project. The applicant proposes that this project will be done in six phases, approximately 48 months in length, and the cost is estimated at 70 million dollars. Just as a chronicle reference, the Planning Commission first heard this application on May 26, 2006. At that time the Commission voted to grant standing to several parties including Raymond Rusalavitch, Jill Fusari and Malcolm and Virginia Scott. Additionally, they granted standing to lot owners within a Hawaii Planing Mills Subdivision, that was submitted within a two-week period after the Commission date. And so those were submitted to the Planning Department, and they were consolidated as the consolidated property owners of the Hawaii Planing Mills Subdivision. The Planning Commission also voted to outsource the hearing to a hearings officer. Attorney Sandra Song was selected as the hearings officer for the contested case. The contested case stst hearing was conducted on August 31 and September 21, 2006, within Kona. Malcolm and Virginia Scott were stricken as parties to the proceedings due to their failure to appear. David Hardy-Sullivan represented the intervenors’ consolidated parties, property owners of Hawaii Planing Mills Subdivision, which also included Jill Fusari and Raymond Rusalavitch. Proposed Findings of Fact were submitted to the hearings officer by the applicant as well as the Planning Director. The hearings officer’s report with Findings of Fact and Conclusions of Law have been distributed to the Planning Commission. Additionally, Exceptions to the Hearings Officer’s Report have been submitted by the applicant as well as the Planning Director, and these also have been submitted to the Planning Commission. Are there any questions? Oh, one other item. We have received additional correspondence since the materials have been passed out to the Commission. These include a letter from the applicant clarifying the project area, and that should be within the Planning Commission’s packet. It identifies that the project area is 46.3 acres in size, and it breaks it down to let you know exactly which areas of the project site are part of this application. Additionally, we received a letter from Robert Ward that should be, have been distributed. And lastly, we have received two correspondence from the intervenors’ consolidated property owners of the Hawaii Planing Mills Subdivision. These include a Petition for Judicial Review and Order for Stay of Contested Case Administrative Decisions, as well as a Petitioner’s Demand for Jury Trial. Are there any questions? ALAMEDA: Ms. Siracusa? EXHIBIT B 2 SIRACUSA: Yes. I received the Findings of Fact and Conclusions of Law from the hearing officer and other parties. Well, as far as I could determine, I never received it from the intervenors. Did they actually file a Findings of Fact and Conclusions of Law? DARROW: No, they did not. SIRACUSA: So, that explains why I couldn’t find it. ALAMEDA: Okay. Any other questions? Commissioner Watanabe? WATANABE: I had spoken to Mr. Torigoe earlier about this with regard to the petitioner’s demand for jury trial, and I was wondering if he would clarify the process for us because it seems like, that might be, the petition for stay might be out of order. ALAMEDA: Sure, okay. Mr. Torigoe? TORIGOE: Thank you, Mr. Chair. I presume that you are referring to what is titled the Petition for Judicial Review and Order for Stay of Contested Case Administrative st Decisions that was apparently filed December 1, 2006, by the intervenor’s representative. WATANABE: That’s correct. TORIGOE: Okay. Yeah, I’ve taken a look at it. It is a rather unusual pleading. I’ve not seen one like this before. It appears to be attempting to ask the Circuit Court to step in at this point; and pursuant to HRS Chapter or Section 91-14, the intervenor seems to be asking the Circuit Court to basically stop the contested case proceedings that are underway, and to require appointment of another hearings officer and have another contested case hearing. Generally speaking, under 91-14 HRS, you need to finish the contested case hearing before you can take up an appeal or, yeah, an appeal to the Circuit Court for judiciary review. Ninety-one dash fourteenHRS, as far as I know, does not provide in itself for jury trial; it just recognizes that there may be other remedies out there besides an appeal to the Circuit Court under 91-14. So, essentially, in a normal course of things you would want to finish the contested case proceedings, and then take an appeal under 91-14 to the Circuit Court. That’s probably as much as I can just tell you generally.Maybe, we should hear from the parties also what their positions are at the proper time. And also, by the way, it does not appear here to be any order from the Circuit Court that would prevent your proceeding at this point. ALAMEDA: Okay. Ms. Siracusa? SIRACUSA: Yeah. This is a procedural question also. Those SunStone’s attorneys and Director Yuen have filed Exceptions to the Hearing Officer’s Report. Now one of the things I understand that we have to do today is decide whether or not we want to accept the hearing officer’s report. Do these exceptions that they have filed, how do these exceptions affect our decision as to whether or not to accept the hearings officer’s report? I mean can we say accept the report and decide that we want to, you know, make the corrections as stated in either one or both of those filed papers, or do we have to say we don’t accept the hearings officer’s report because they don’t reflect these Findings of Factor? I mean, what process do we go from here? EXHIBIT B 3 ALAMEDA: Mr. Torigoe? TORIGOE: Yes. Your Rule 4-33 says that upon the filing of exceptions among other things, the Commission may render its decision upon the record; or if oral argument has been allowed, after oral argument; or may reopen the docket and take further evidence or may make such other disposition of the case that is necessary under the circumstances. Basically meaning that you have a hearings officer’s proposed findings and conclusions, and you also have exceptions from Mr. Planning Director and from the applicant, and so you can basically modify the hearings officer’s report if you want to take into account some of the exceptions, if that is your decision. Or you can just adopt the hearings officer’s report, or you can make other modifications as you see fit. It’s kind of wide open at this point. ALAMEDA: Okay. TORIGOE: Your Rule 4-30 also states that any exceptions not specifically raised in writing by a party are waived. ALAMEDA: All right. SIRACUSA: And am I correct, also, in assuming that since I don’t see it in front of me, that the intervenors did not submit any exceptions even though they were clearly ruled against by the hearing officer? TORIGOE: That you have to check with staff on. ALAMEDA: Mr. Darrow? DARROW: We did not receive both the proposed Findings of Fact and Conclusions of Law or exceptions from the intervenors. SIRACUSA: Thank you. ALAMEDA: Thank you Ms. Siracusa for that. Anybody, follow up questions? Okay. Mr. Graham? GRAHAM: I just wanted to ask Mr. Darrow, a sort of a, to give us a little feel for the map there and substance. In the contested case hearing, there was lots of discussion about the floodways and all that, and we’ve got Waiaha No. 2 and the nomenclature, but the general understanding is floodwaters coming from mauka can enter the property, coming across Kuakini Highway, and then this developer intends to channelize the floodwaters, and then perhaps as it gets near Alii Drive, kind of release it back to the flow as current. Can you just give us a little graphical sense of where all this occurs on the property? DARROW: Sure. Taking a look at the site plan that has been submitted by the developer, this is called the site development plan. This is Kuakini Highway running at the top of the map, and we have Alii Drive at the lower part of the map. This here is the Kona Sea Villas Condominium project that is constructed at this time. This is referred to as Block A within the application. We have in brown identified a proposed road that goes from Alii Drive to EXHIBIT B 4 Kuaniki Highway. The section between Kuakini Highway and the proposed Alii Parkway on the south side of the road is the proposed drainage channel that the applicants are proposing to construct. And again, as you were mentioning, it would come from Kuakini Highway, it would divert the water into the channel and then when it releases, it’s my understanding, it has to release it at the same force, I think that’s the correct word, or flow as it entered, so that it’s not increasing the flow coming out off of the drainage channel.Whatever means that the applicants have to do to construct to bring the flow pressure down when releasing, they’ll have to construct that. GRAHAM: The release is at the point where the proposed Alii Parkway is, and that’s sort of the end of the applicant’s property in so far as dealing with these flood issues. DARROW: Yeah, maybe the applicant can go in more detail. They have actually hired an engineer that will be working on this that testified at the hearing. But my understanding is that there would be a, I don’t know if this is a bridge but, there will be culverts coming underneath this roadway releasing the water, so they actually, it’s going to be released on the makai side of the roadway onto this area here, which is at this time two undeveloped lots. GRAHAM: Is that area that you are saying, the release, does that belong to this applicant? DARROW: No, it does not. GRAHAM: Thank you. DARROW: But it is still located within the flood zone. GRAHAM: Thank you. ALAMEDA: Any more questions for Mr. Darrow? Ms. Siracusa? SIRACUSA: Yeah, I just want to establish for sure that, of these 289 units, none of these are affordable. Is that correct? DARROW: It’s, I believe, I’m not sure. We’ll have to ask the applicant on that one. They may have to meet certain conditions regarding that, or they may not be. ALAMEDA: Okay. Any more questions for Mr. Darrow? Seeing none, what if, Mr. Torigoe, tell me if I’m correct on this one. I want to invite all the parties up, and we already have the hearing officer’s report so, but there is the exceptions. I’d like to see if they have any further comments with regard to the exceptions being made. TORIGOE: That would be appropriate. ALAMEDA: Okay. The parties, please come forward. You might need one more chair, maybe one by on the side of Mr. Mooers, sir. All righty. Let me swear in whoever didn’t get sworn in, that’s Mr. Lim, Mr. Mooers? Sir? Okay, raise your right hands. Do you swear or affirm to tell the truth now before the Hawai`i County Planning Commission? EXHIBIT B 5 PARTIES: We do. ALAMEDA: Thank you. And just, since I didn’t get your name and address for the record, could you start, sir? LIM: I’m Steven Lim, attorney for the applicant SunStone Kona LLC, P. O. Box 666, Hilo. With me on my left is Mr. Curtis DeWeese who is one of the principles of SunStone Kona LLC, to my right is Mr. Greg Mooers, our planning consultant for the Kona Sea Village project. ALAMEDA: All right, thank you. Sir, you want to state your name and address for the record? HARDY-SULLIVAN: Is it Mr. Yuen or myself? Intervenor and the petitioner, per se, David Hardy-Sullivan representing the consolidated property owners of the Hawaii Planing Mills Subdivision, 75-6052 D Alii Drive, Kailua-Kona, Hawaii. ALAMEDA: Thank you, thank you, sir. I think I want your address for the record, sir. Mr. DeWeese? Yeah, what’s your address? DEWEESE: One thousand one Bishop Street, 1240 Pauahi Tower, Honolulu. ALAMEDA: All right. Thank you, Mr. DeWeese. Okay. LIM: Excuse me, Mr. Chairman. ALAMEDA: Sure. LIM: We had an unusual circumstance in the conduct of the hearing at the contested case level, and that was related to Mr. Hardy-Sullivan’s claim for American’s Disability’s Act procedures, I guess. At the hearings officer level that the hearings officer provided that Mr. Hardy-Sullivan would be allowed to take breaks whenever he wants, and that if he wanted to gather his thoughts, we would agree to do so. We did that during the hearing, so I wanted to make sure that this particular proceeding that Mr. Hardy-Sullivan is stipulating that these accommodations, the reasonable accommodations, that are being provided by the Planning Commission today are satisfactory to him also. ALAMEDA: All right. Mr. Sullivan? HARDY-SULLIVAN: I discussed this with the Chairman, Mr. Alameda, and yes, I do have a disability. The initial request for accommodation on our second hearing date included both the opportunity please for short breaks. That was an extended hearing. That won’t be necessary today. But I did ask the hearings officer at that time that I have short-term memory loss, and that interruptions in the process of testimony, I certainly asked Mr. Lim to object anything I did incorrect and Ms. Self, but I also asked the hearings officer to either sustain or deny the objection; and that was part of the problem, is I became confused. So, I don’t think that should happen today in this type of procedure. Thank you. EXHIBIT B 6 ALAMEDA: Okay. Thank you, sir. I’ll be sensitive to that. All right. For the applicant, there are some exceptions filed and you have the documents from the county as well. Do you have any comment? LIM: That’s correct. There is so much paperwork flying around that, and we know what was happening at the hearing, so I can imagine what the Commission is feeling. But essentially I’ll try to characterize what happened in terms of the paperwork, is that, the hearings officer submitted the report, and we make the exceptions thereto; and so both the Planning Director and the applicant filed the exceptions. Ours primarily related to technical issues like acreages and certain of these other things that we can take into consideration. And the director, hopefully, he can paraphrase what he was doing, well, basically he was adding in the traffic related conditions that he had in his original revised recommendation that the Planning Commission has already seen. And so, I think what in terms of the long and the short of it is, you know, what conditions are you looking at. Our position would be that you should look at the conditions that were submitted by the Planning Director in his submittal to you in title Christopher J. Yuen, Planning Director County of Hawai`i’s proposed Findings of Fact and Conclusions of Law and Decision and Order. The condition No. 44 in that, this is the 33 conditions that you had already seen in the original go around under his revised recommendation. So, we have reviewed those and we are in agreement with those proposed 33 conditions. We noticed that there were some typographical errors that, if you decide to go with these 33 conditions, I can go through those with the Commission and the Planning Commission staff, but mostly, like I said, they are all typographical type of issues. I think for purposes of compliance with Chapter 91, since the proceedings on this contested case hearing were presented before the hearings officer, Ms. Song, pursuant to the Planning Commission’s Rules, the Planning Commission has to, Planning Commission members who vote on this have to listen to final argument and read our exceptions to the proposed findings, and that would then qualify you to vote on the matter. And so for purposes of that go around, what I would like to do may be is to have, we are going to try to have Mr. Mooers do a short presentation to orient you to the project, cause we haven’t really had the chance for the last six months to talk you about the project. So, I was thinking maybe it might help for a short 10 minutes presentation by Mr. Mooers just to tell you what the project is about, what the issues are, so we can orient you to the map, and then I’ll go into a very short final argument followed by the parties, and then you will be qualified, I think, at that point to vote on the matter. ALAMEDA: All right. Let me try with -. Mr. Torigoe, does that process sound accurate? Cause my understanding, we’ve got the hearings officer’s report, we see that we’ve got the exceptions before us, we know what the project is about. Do we have to go into the presentation and the whole rigmarole, kinda sorta? TORIGOE: Your Rules basically allow you to take final direct oral argument on your own motion. I think there is case law that indicates that you are to allow the parties to address final argument to proposed findings that will make sure that you are, as Mr. Lim was saying, you are fully briefed and qualified to make a decision. ALAMEDA: Okay. Ms. Siracusa, do you have a question? EXHIBIT B 7 SIRACUSA: Yes. Well, Mr. Lim already said that basically he accepts the exceptions that Mr. Yuen wrote to the hearing officer’s report. I was wondering at what point do we ask Mr. Yuen if he accepts Mr. Lim’s exceptions, and at what point do we ask Mr. Hardy- Sullivan about his take on both sets of exceptions. So, I’m looking for a level playing field and to get everybody’s take on this question before we proceed further. ALAMEDA: Mr. Torigoe? TORIGOE: There’s different ways you can do it. You can just ask each party for kind of overview what their position is on these things, and then allow them to go into more detailed final argument. SIRACUSA: Can I do that now then? ALAMEDA: Sure. So, Mr. Lim, can we move forward to the Director and see what he has to say about the exceptions, and then ask Mr. Hardy-Sullivan as well? Okay, so, Mr. Director? Oh, ma’am? SELF: For the record, Amy Self, Deputy Corporation Counsel representing the Planning Director on my left. I don’t think you’ve sworn in the Planning Director yet. Chris Yuen? ALAMEDA: In earlier meeting we swore him in, okay? SELF: Okay. We have no objections to the applicant’s exceptions to the hearings officer’s report. ALAMEDA: All right. SIRACUSA: Okay, thank you. Mr. Hardy-Sullivan, it’s your turn. HARDY-SULLIVAN: Our contest with the application is prior to the point of any final Findings of Fact or any exceptions, the hearing was not held, it was very irregular, the process was somewhat unethical and possibly illegal. So, when it was stated that by Corporation Counsel that this is not standard procedure, nor was our special hearing on any aspect, and we can attest that, and that’s why the petition has been filed. That’s why we did not file our Findings of Fact because by doing that, we would have affirmed the special hearing procedure. It was unfair, it was not impartial. We have testimony to that. My partner, Mr. Rusalavitch, is not here at this time; he has a family emergency in Chicago. But we would like to bring this up in court, and all we requested was the opportunity for a fair hearing. We haven’t even got to the point to where any conclusion of the Findings of Fact or exceptions or anything, as far as you yourselves are concerned. We have very relevant statements of issues that many not considered, and the procedures of Ms. Song were very, very inappropriate. And so, at this point the intervenor’s position would be to defer this until a hearing can be held as to for up or down, as to if the procedures were correct, and at that point if we have to deal with the findings and conclusions, we will at that time. But in the meantime that’s why I think every citizen ourselves EXHIBIT B 8 included, although we are per se and very unprofessional at this, should have the opportunity for a fair hearing, and that was not afforded. Thank you. ALAMEDA: All right. Ms. Siracuas, any follow-up to that? SIRACUSA: No, but, well someone else may, but I’m wondering if we, at what point, we go ahead and decide if we are going to accept the hearing officer’s report or not. ALAMEDA: Yeah. Mr. Torigoe, now that we’ve heard about potential for continuing in a different direction, what’s your thoughts on that? TORIGOE: Well, as I stated earlier, at this point there is no order from court or anything that would prevent you from going forward in considering the findings at this point. You have before you a copy, I guess, of the petition that was filed by the intervenor with the court. You can see what has been argued there, and you know, so it will be within your discretion to continue the matter until the court makes a decision. But, as I said, you know, at this point you are also free to go ahead, I think, there is no legal impediment to your going ahead and dealing with the Findings of Fact drafts that are before you. ALAMEDA: Okay. Ms. Siracusa, then Mr. Watanabe. SIRACUSA: I’m just wondering in terms of the order of things whether we do the decision on whether or not to accept the hearing officer’s report, or whether we should take final arguments first. If we take final arguments, does that mean that we don’t go on to deciding about the hearing officer’s report or, I mean, does that cancel that out or? ALAMEDA: Mr. Torigoe? TORIGOE: Well, I think your arguments are really for the purpose of informing you, so that you can deal with the hearing officer’s report, or the arguments can also include further elaboration by the intervenor as to why you should not go forward at this point and that you should wait for the court to make a decision. SIRACUSA: So, you are recommending then that we go on to final arguments at this point. TORIGOE: That would seem to be appropriate. ALAMEDA: Let me check with Commissioner Watanabe, then Commissioner Iwashita, if they have thoughts on this. Mr. Watanabe? WATANABE: That was exactly my suggestion that we move on to hearing the final arguments and, you know, move on to deciding. ALAMEDA: All right. Mr. Iwashita, anything else different? IWASHITA: Yes. Mr. Hardy-Sullivan just raised the point about Mr. Rusalavitch not being able to be present today for a family emergency, and I just clarify -. Mr. Rusalavitch is EXHIBIT B 9 one of the party’s granted the intervenor’s status. Is that right? And so, I think that Mr. Hardy- Sullivan basically ended his comment by a request for a continuance. Just to clarify, Mr. Hardy- Sullivan, are you saying that you want or Mr. Rusalavitch wants to be here and that’s the basis of the request, or is the basis of the request because of the alleged irregularities or -? HARDY-SULLIVAN: Both, sir. He is in Chicago at this time, left on Saturday on a family emergency. He called me this morning, he apologized and he wanted me to express those wishes. I would like to have him here because, I presented my affidavit, he had not completed his affidavit, but was going to give some testimony of very incorrect procedures between himself and Ms. Song that, I cannot, would be hearsay for me to say today. And also the fact that again all the intervenors, although were small, we had very valid concerns and both to the application but mostly right now to the process. We have constitutional right to a fair and just hearing, which was not afforded, and we can show proof for that. So, again we ask the Council, uh, Commission, please, to defer this until other decisions can be made so. And that would be in the best interest to the general public also, not just the intervenor’s, because due process should be allowed to everybody. There would be irreparable harm at this point, if a positive vote came from the Commission. We would fight that. There would be substantial, actual or threatened injury to the property owners directly across from the development both from flooding and from safety issues, and which would also, especially the safety issues, directly affect the general public. So, I think, in all fairness, that the, to all of that a correct and fair hearing should be done. That’s all we are asking. We are not disputinganything else, we’d just like our point of views to be taken and but -. ALAMEDA: Are you, Commissioner Iwashita, just checking if he answered. Did he answer your question? IWASHITA: Uh, yes. So, I guess I’d like some guidance on this request cause the parties, Mr. Rusalavitch is not here so. LIM: Mr. Chairman, excuse me. During the contested case hearing proceedings, the intervenors agreed that Mr. Hardy-Sullivan would be the one representing everybody, and that that has continued through today. We have been, I guess our position at least is the intervenors have been trying to drag it out as long as possible. You know, we came before you back in May. We had nearly, I would say, 14 to 15 hours of testimony over two days period. They had ample time to bring all their witnesses. We let them bring in witnesses that they hadn’t listed. I think we gave them as much of a chance to conduct a fair hearing as possible, and they’ve continually tried to delay the hearing dates that we had with the hearings officer. We finally got it finished, and now we are back with you today six months later. So, we would ask that the proceedings not be delayed any further. The intervenors have not, essentially, they decided after the hearing closed that they were not going to participate any more, and under your Rules they have waived any exceptions to the hearings officer’s report, and instead now they are trying to essentially leap frog out of the Planning Commission hearing into the Third Circuit Court. We think we are going to be able to defeat them at that because essentially they filed it too early. But I would urge the Commission not to continue to delay the matter, and we would like to see we can move forward on the matter. We had the full contested case hearing with the hearings officer, and I don’t know that next time we come that they won’t have another reason why we should continue it. EXHIBIT B 10 ALAMEDA: All right. Any feedback to that? Let me check with Commissioner Graham cause he is going to add some. Mr. Graham? GRAHAM: Yeah, I’d like to sort of bring forth a whole new area of inquiry in discussion here for a minute. Mr. Lim said a short while ago, as I wrote down, what we are here for today is discuss what conditions we are looking at. Well, I don’t think that’s the case. I think we are here discussing whether we are going to grant an SMA permit; and if we in fact choose to grant a permit under certain conditions, then we are looking at what those conditions are. And as that relates to the contested case hearing that was held, you know, I did read the transcript early with a lot of attention and I don’t believe our role is one of making a decision amongst the parties that took place in the contested case hearing as reflected by the Findings of Fact. I think our role is, you know, as representatives of the public, trying to make the proper decision about the SMA permit. And, in fact, the contested case hearing and the intervening parties had a very narrow set of issues in my mind, important issues but narrow issues. Their issues were mostly the flooding issue and the road location issue. And to me when I look at granting or not granting an SMA permit, again as we had in the past, the basic authority of 205A-26 says no development shall be approved unless the authority has first found development will not have substantial adverse environmental or ecological effects, except as such adverse effects are minimized to the extent practicable and also are clearly outweighed by public health, safety, or compelling public interests. And it indicates that adverse effects shall include potential cumulative impacts of individual developments not only this development. So, in my own take on this, a lot of issues that are right at the heart of the SMA issues, such as coastal water quality, such as preserving open space, also of course access along Alii highway, these issues were really, especially the first two, were really not even addressed from what I can see in the contested case hearing. And so rather than have us go through all this discussion about this or that finding, I feel like I want to be upfront with the applicant here that those issues are what are key to my findings in this regard, and not just the much more, what to me, are more narrow issues. So, you know, to me it’s beneficial that Mr. Mooers may be giving an overall presentation, that we all get ourselves warmed up to the full implications of the project, and not deal with the more narrow precise issues of the findings suggested by the different parties at this point. LIM: I agree, and that’s why we try to lead off with Mr. Mooers. ALAMEDA: Okay. Let’s see if the other Commissioners will agree with that. I agree with that, too. Mr. Iwashita, do you have any disagreement with the process that Mr. Graham has just mentioned? IWASHITA: No. But I have, my concern is the bigger picture, you know. Mr. Lim made the statement that he believes the filing by the intervenors or some of the intervenors is premature. Courts are going to have to decide that. But you know, in important fact we have had documents submitted to us, and whether or not they are called exceptions technically, you know -. Previously, we had basically the same similar types of objections presented in writing to the Department, raising these procedural concerns that the intervenors have raised, and you know, that is in advance of actually getting the decision from, you know, from the hearings officer basically making the same objections. So, my concern is that Mr. Lim has just talked about basically a perception of delay and then dragging this out.If in fact we end up with an appeal, a timely filed Third Circuit Court appeal, and a hearing by the Court on whether or not all of this procedure, if you look at it all together, whether this body properly considered the EXHIBIT B 11 objections raised by the intervenors, I don’t think we can, I’m not comfortable, you know, by just relying on the Rule that says, well, you didn’t file something called an exception so, you know, you can’t raise objections and we can ignore that. I, personally, I don’t think we should ignore it; I think we should make a full and complete record about, you know, these objections that have been previously raised. Now they have filed court papers on it, and I think we should make a proper record to satisfy ourselves that it has been addressed and the intervenors have been given a proper opportunity to raise them, and then we make a decision procedurally. Otherwise, you know, if you don’t do that, then that’s arguably a basis, you know, for the Court to come back and say, well, you didn’t do that right, you know, you’ve got to deal with it, send it back to us and make us do it right. So, that is the concern that I have just, you know -. ALAMEDA: Okay, I hear you. Mr. Torigoe, is it the Commission’s role to determine whether or not the hearing was fair and partial? IWASHITA: Mr. Chair, that’s not what I’m saying, I’m sorry. ALAMEDA: Oh, no, I understand what you were saying, but I’m curious. Go ahead. IWASHITA: Let me try to be clearer on what I’m saying. I’m saying that we should make a clear record that these concerns that have been raised before today by the intervenor and not just in court but, you know, there has been, I don’t know how long ago it was, but a similar document filed with the Department, that those concerns are addressed. And whether it’s, you know, we decide that, well, that’s not something, you know, we’ll take the record and we are going to make our own decision. So, you know, maybe there was an apparent impropriety, but it doesn’t really matter. We are not going to, that’s not going to sway us.We have a record. We are going to make a decision based on the record, right, separate and apart from what the hearings officer has decided. That’s fine. We can do that, right? But a clear record like that needs to be made, okay, I don’t think we should just sort of. On the record right now, it appears like we are, you know, it may be argued that the Commission is ignoring these objections raised by the intervenor, and I don’t think that we should ignore that. I think they should be expressly addressed. ALAMEDA: Right, right. Mr. Torigoe, what’s the proper way to, because, what if, I’m just playing devil’s advocate, what if every intervenor comes in and not happy with the decision and they say it’s unfair and bias, how do we respond to something like that? TORIGOE: Well, I think it’s if, well, you have the entire record before you and so you have the opportunity, if you so choose, to review it and, you know, for to make sure that it’s procedurally fair in your eyes, and so you have the discretion to go into that. There has not been a specific request directed to the Commission. I think the previous request was really directed to Ms. Song as the hearings officer basically to recuse herself, which she denied, and currently there is a request before the Third Circuit Court. So that question has not been placed squarely before you, but again, that doesn’t mean you don’t have, you know, the discretion to look at the record, knowing that those issues are raised. So, you know, that’s something that you can look at. It is obviously going to take some effort to do that, if you feel that is what you want to do at this point. EXHIBIT B 12 ALAMEDA: Commissioner Watanabe, what’s your take? WATANABE: I feel fairly confident that the remaining intervenor is going to basically continue the arguments about whether the contested case hearing was fair or not and I think, realistically, if we look at this, you know, you are looking at a 70 million dollar project and you are also looking at concerned private citizens. If we take the intervenors word at this, they are going to appeal. I can almost guarantee you that if we decide against it, the developer is going to appeal. This thing is going to be appealed no matter what we do. So, I would suggest we move ahead because I’m not convinced that the process was all that flawed. And I think that we should, you know, give the hearings officer some credit, give the process some credit, you know, and move on and decide. And, like I said, I fully believe that it’s one way or the other, no matter what we decide, it’s going to be appealed. ALAMEDA: Mr. Torigoe, your comments to that? TORIGOE: Well, one thing you can do, too, though, and I wouldn’t want to see, you know, you all basically punt the issue, if you feel it really should be taken up. One thing you could do today is in a course of arguments, allow the intervenor to make his argument regarding why you should not make a decision at this point because he feels there have been procedural irregularities. You could allow him to make his argument and try to point out to you the specifics, and you can look at the record and consider that. And at the end of the final arguments you can, then you’ll be better informed to make a decision as to whether you can go ahead and make, you know, the final decision on the merits today, or whether you feel like you need to take some time yourselves to look at the record and/or wait for the court to make some kind of decision. ALAMEDA: Other thoughts, Commissioners, other Commissioners? Mr. Graham? GRAHAM: Maybe procedurally given all the things we are looking at it’s appropriate to follow Mr. Torigoe’s lead right now, and listen to the intervenor and see if we want to choose to defer because of the intervenor’s concerns that are expressed in his action before the court and his actions with regard to the hearings officer. And then once we’ve made the decision, then we can go forward with the other issues, if in fact we keep going. ALAMEDA: Okay. Cause isn’t that hearings officer’s report simply, I mean it’s not simply, but it’s basically, we still have the final decision and that’s just added information, if you will, and we can disregard it if we don’t agree with it. So, it still comes back to us, as fellow Commissioners. Commissioner Siracusa first and then back to you. SIRACUSA: Yeah, it seems to me that we are getting bogged down in whether or not the hearings officer conducted a fair, impartial, even handed hearing. And I think that, well, we all have the record in front of us, and some of us may think that she did and some of us may think that she didn’t. But no matter what we think, we are still not judging the case on its specific merits. And so I think one of the ways we can get to move on at this point is to just move to disregard the hearing officer’s report, and that the Commission shall judge the matter on its own merits based on the record. EXHIBIT B 13 ALAMEDA: Uh, let’s see other thoughts. I don’t know about that. Commissioner McCall? MCCALL: I’ll kind of throw in the opposite side. I think that, from what I understand, though, the objections from Mr. Hardy-Sullivan are not directed to the Commission, you know. They are directed about potential misconduct, or whatever, but they are not, they are directed first to the hearings officer and now they are directed to the Court. So, I don’t feel it is our place to make judgment on that. I feel that our choices, as far as I see, is we at this point can accept the hearing officer’s report, I mean, accept that the hearing took place, take the information from the hearings officer’s report and digest it, accept it, whatever we want to do with that, if we make it clear that our decision is being made based on what came from the hearings officer. If the judicial system decides that was inappropriate, then of course our decision is negated because that’s what we are using as our basis. I don’t feel, the other option is that we start all over from square one. We cannot use this report from the hearings officer, if we disregard her as, you know, if we say that she had judicial misconduct, we’ve got to start back from square one with new evidence. So, I feel there are, to me, our best choice is to, you know, accept this information, make sure that it’s clear, you know. If another party decides that the hearings officer did things improperly, then you know, then at that point we can negate what we’ve done. ALAMEDA: Okay, Ms. Siracusa? SIRACUSA: Yeah, maybe Mr. Torigoe should let us know. If we accept the, what are the ramifications of accepting or not accepting the hearing officer’s report? If we accept the report, does that mean we accept everything in it, that we agree with her conclusions and recommendations as well? TORIGOE: Well, your, I’m not sure that our terms are, we are all working on the same terms at this point. SIRACUSA: Or, that we are just accepting the information that came out during the course of the hearing? TORIGOE: The hearings officer’s report is mostly composed of a Findings of Fact, Conclusions of Law, and so essentially what you have to do is to come up with a decision that includes a Findings of Fact, Conclusions of Law, and final, you know, decision up or down. So, the hearings officer’s report basically offers you some boilerplate or some proposed language that you can use for a Findings of Fact, Conclusions of Law and Decision and Order. So essentially that’s what you have to do, you know, you are not bound to accept any part of this hearings officer’s report, but you can use the proposed findings to make your own final Findings of Fact, Conclusions of Law and Decision and Order. ALAMEDA: Ms. Siracusa? SIRACUSA: Then we can pick and choose, we can cut and paste out of that anyway, whether or not we accept her report. Is that correct? EXHIBIT B 14 TORIGOE: Yeah, well, I guess it’s, we are, our terms maybe a little confused because what you will be doing really, at the end of the day, if you decide, basically, that you are in full agreement with everything that the hearings officer said in her report, then your decision would be as simple as saying, you know, I move to fully adopt the hearings officer’s Findings of Fact, Conclusions of Law, and that would basically be your decision. At the end of the day, if you feel like, you know, there are substantial changes that should be made to the hearings officer’s proposed findings but that it’s more or less usable, then you would make that kind of motion, you know, that you would adopt the Findings of Fact, Conclusions of Law presented by the hearings officer with the following changes, and spell them out, that’s it. I want to say one thing further, in this discussion about the alleged improprieties I think, as I said before, the arguments are not directed directly at the Commissioners, but today they sort of have been brought up because we heard the intervenor actually ask that you not go ahead with this on the merits because of the alleged improprieties. So, at that level I suppose it is now before you, you know, that you’ve got to ask yourself, does the record seem to indicate that there was impropriety such that we should put this off until some other decision maker does something about it or do we feel like we can just go forward with this. ALAMEDA: Ms. Siracusa? SIRACUSA: Thank you. It was my feeling in reading the record that they were, I mean, here you have all these high powered attorneys against somebody representing his community, pro se, and so right away he was at disadvantage. I’m referring to Mr. Hardy- Sullivan. I felt that it was the hearing officer’s responsibility to maintain a level playing field, and I also felt that she did not. Now, Mr. Lim is a really high powered attorney, and he is damned good at what he does, and I certainly would want him representing me on any case because he works real hard for his client. But he kept the intervenors off balance constantly by throwing out these new papers to, you know, not accept this or just throw something else out. And I felt that the hearing officer should have cut the intervenors some slack, like when they asked for a subpoena for Curtis Tyler who was one of the people who had written a part of the proposal for the developer, for the applicant, and yet she discarded it out of hand without giving any reasons. She did that with several of the other subpoenas; she denied them but did not state why. So, it looked to me like it was being frivolous or certainly not fair handed, and all of those things started adding up. As I went through the pages and pages and pages of this and I started to see a pattern, and therefore, I feel that the intervenors all in all were not given the level playing field that they should have been given. And I would not feel comfortable with accepting the hearing officer’s report, I would just assume, you know, I’m not saying that we should have a whole new hearing. But certainly I think we should allow time what Mr. Torigoe has suggested that we call for it, we table this and let it go through some of the other processes, and see what comes back. ALAMEDA: Mr. Watanabe? WATANABE: I don’t have any objections to hearing the intervenor’s arguments as long as we are not reopening the hearing. I mean, you know, whatever discussion should be, in my mind, limited to what’s already been introduced, and it’s my understanding once you close the hearing, unless you reopen it, you are not going to introduce all, you know, new Findings of Fact and etc. And you know what, I guess my point here is, if we are not going to accept who EXHIBIT B 15 we delegated the report of who we delegated all this to, then why are we even, you know, going through the process? It doesn’t make sense. We paid the hearings officer, we selected her, we said we don’t want to hear this, you know, because it’s going to take 4 or 5 days or whatever it is, and then you get the report and you say, well, I don’t like the answer so, you know, let’s disqualify this and start all over again. I think we are going backwards. ALAMEDA: Well, let me just say I don’t think that’s what he’s saying. I think he meant to say he didn’t like the process, not the answer. Commissioner Graham? GRAHAM: Thank you. I‘d like to maybe respond to Ms. Siracusa a little bit by what I saw from reading the transcript and what I see from the hearing officer’s report and all. In my mind I separate the two a lot. I agree that, I don’t think the hearings officer’s report contains all what I think is represented and what went on, like when she spoke of Mr. Tyler’s considerations and others. However, as Mr. Torigoe said, it’s up to us to decide what to do with the hearing officer’s report. We can go wherever we want with it and I certainly plan to go somewhat differently than where it heads. However, the actual contested case hearing that was held is different than the report that came at the end; and when I read the transcript of those two long days of testimony on, again, what I would say is, you know, relatively well defined issues, the location of the road and the flood issues and all, that’s a lot of time spent on just a couple of issues. And you know, I think that the intervenor, as well as the applicant, had plenty of time and plenty of ability to put forth what their concerns were, and I think, when I read the transcript, I get a very good sense of that. So, to me, you know, I can nitpick how the hearing officer conducted the hearing here and there, but basically I don’t think anybody was deprived of a full and adequate opportunity to state their issues, state their case and all.So, I certainly feel okay with the substance of the contested case hearing that went on with the exhibits and with the transcript we have. So, you know, I’m fully willing to move forward from there and deal with the case as we should as a representative of the public. ALAMEDA: I agree. Mr. Iwashita? I think we have agreement except Commissioner, probably, Iwashita probably disagree on that on moving forward or -? IWASHITA: No, no. I, well, let me say this. I tried to be clear earlier, right, that the Commission really should address the concerns raised by the intervenors. We can’t, we shouldn’t ignore them, and I think what Mr. Torigoe said earlier, I think, sounded like concurrence that since it’s been raised, right, today, it should be addressed one way or another. Looking at the Rule in terms of where you proceed, Rule 4-33 Part (b) references oral argument, which is, you know, what we discussed as going forward. It also, after oral argument, states the Commission may reopen the docket and take further evidence or may make such other disposition of the case that is necessary under the circumstances. So, we have the authority and discretion to do more than just review this record and make a decision. And I think in all fairness, to the applicant actually, given the concerns raised by Commissioner Graham earlier, perhaps some consideration should be given to for the applicant to decide or consider and decide whether it wants to submit more evidence beyond what the limited issues that the Commissioner Graham perceive or addressed by the hearings officer. LIM: Right. You know as we are listening to the discussion, we do have the information, it’s in the application. That’s what Mr. Mooers is going to testify about as to the overall SMA criteria and how they satisfy that with the project. But you know, in light of what’s EXHIBIT B 16 happening now I don’t think the Commission is anywhere near to even, you know, knowing which door to go through to take an action on this proceeding. One thing I’m concerned about is the feeling that, at least from our side, that because of the way that the, and I think that the hearings officer did a fair job, you know, we can make that argument later on, but what I want the Commission to have a feeling of is that you’ve got the evidence yourself. And because a couple of members of the Commission are looking like they are going to discount what happened at the hearings officer’s level for whatever reason, then we want the chance to present the whole shooting match to you folks personally. So, maybe at this point in time I think our concern is that we don’t want to get the court action that he has filed mixed up with what the Commission is doing. We would like to proceed on our own track with the SMA proceedings with the Planning Commission. We want to get a, if we could, a date certain to come back, and essentially present our case. We’ll put on witnesses and those type of things directly to you on those issues because I think at this point in time having the question with the hearings officer’s hearing and what happened with the proceeding is not good for the applicant. We want to be able to make a measured and complete presentation to you, so you’ll feel like you’ve got all the facts. ALAMEDA: That sounds good to me. Fellow Commissioners? I’d also allow the intervenor as well sometime to address your concerns as well so. Mr. Hardy-Sullivan, do you agree with that, kind of pushing this back? HARDY-SULLIVAN: No, in that, meaning that witnesses will be brought before the Commission itself, and I thought the reason for special hearing is you have many things on your agenda, and we are just asking not to come up and have a 3 or 4 day hearing or whatever it would be or with the testimony of witnesses. A lot of that has been done. There are some other new things that have occurred. Again, we feel that it should be deferred until the civil case will be heard. Mr. Lim of course, as I agree, is an excellent attorney; but the claims that we are using it as for delay, we’ve never done that. In our first filing of our statement of issues, we included that the statement of issues and request for reconsideration review by the Commission were not for any purpose of delay other than for the issues stated, and we’ve continued with that. He states, well, the applicant through his attorney has tried to dismiss our claims three times right from the very, I think it was a July Planning hearing, asked for dismissal; at that time Mr. Yuen allowed it to proceed. At our first hearing date asked for dismissal and we got beyond that, and same at the September hearing. So, we’ve been fighting that all the way. The only time we asked for continuation that actually occurred was because of a custody issue of myself with my son, which I only have every two weeks on a Friday instead of a Thursday, we just asked if it could be the next day. Not until, we did not get any response to our request for clarification, and we sent a second request and asked for an extra week to file our Findings of Fact, that we ever asked for an extension. And then, we didn’t even ask when it was, we said we didn’t even need it after we heard what her reaction was. The only continuance we’ve asked was with our motion for continuance rehearing of the contested case and recusal of the special hearing officer and at th that point we did motion and that was October 10 and that’s still standing. ALAMEDA: All right. I hear you, Mr. Hardy-Sullivan. Our procedure does allow us to reopen and take further evidence, so, and witnesses for the matter so, and believe me it won’t be four days because we wouldn’t tolerate four days. But certainly we would be open to further data for the evidence. So, I feel more kind of inclined to and I don’t know what my fellow Commissioners think, but I feel inclined to follow the process, and move forward that way. Commissioner Graham? EXHIBIT B 17 GRAHAM: I think I’m a little bit different, but, you know, generally in the same idea, and maybe Mr. Torigoe can, you know, listen carefully what I’m thinking here and tell me if I’m a little bit off track. But it feels to me like, at the beginning, we had a full record brought in by the applicant with the application and all the other materials, and then we had one party and turned out numerous parties, who chose to contest the case, and they went and, you know, made their case, brought their witnesses, questioned all before the hearings officer, and now that part is finished. So, it’s like one part of what’s before us has been very thoroughly vetted and argued and all that, regarding the issues that were of concerns to them. So, I feel like we’ve kind of closed the loop. And now we are back a little bit more like where we started where we have other issues and the application that was before us right at the beginning. So, I feel like we could continue without any contested case hearing, but just continue right ahead with what we’ve got. And if, in the course of hearing Mr. Mooers’ presentation and the course of the discussion amongst the Commissioners today and all, we feel like we want to get more information about something rather, or we feel like, you know, we are not ready to make a decision, we do a split vote or however we want to do it, we go forward. But if we feel like what was originally given to us as supplemented by the contested case hearing is enough for us to make a decision today, we go right ahead and do that. That’s sort of my preferred way. ALAMEDA: Okay. Mr. Torigoe, what do you think? TORIGOE: Well, that’s kind of what I was suggesting about 20 minutes ago is that you have final argument, allow everybody, you know, basically to put their case out on table for you, and you decided whether you want to make a decision or call for, you know, further evidence or whatever. LIM: I guess, maybe, we will make it easier cause because of the way that things are turning out today, I feel very uncomfortable about the procedures and how clear it’s going to be to a reviewing court as to what really happened and what the Commission thought. So, we’d like to request a continuance of the hearing. I like the suggestion that we retain and bring into the record things that happened at the hearings officer’s level because that was, you know, a long and arduous presentation of evidence. We keep that as part of the evidence, and we would come in, we are anticipating coming in maybe with an about half a day presentation. I’ll have Mr. Mooers give the planning overview of the SMA criteria. We’ll probably have available, even if they don’t testify, we’ll have them available for questions by the Commission, David Bills who is our project engineer, for some of the drainage issues if you wish to ask him about that, then Dr. Ron Terry who did a lot of the visual studies and the SMA criteria issues. So, you know, we’d of course not want to continue it for too long, but we’d like to ask for the Commission’s next meeting in Kona in late January or February. ALAMEDA: Commissioners, the applicant has asked for a continuance. I don’t know what’s your thoughts on that. Commissioner Siracusa? SIRACUSA: This is relative to the applicant’s request. You know, we got this st whole pile on the afternoon of December 1 at the end of the Hilo meeting. That’s an awful lot of material to go through in detail and digest, as though none of us have lives or jobs or anything else to do with our time. I know I was not able to totally finish everything, and I’m wondering how prepared the rest of the Commissioners actually are. Who of you guys read everything? EXHIBIT B 18 And if not, then I think it’s only fair to everybody involved that we do have a continuance, so that we’d have the opportunity to all start on the same level, having read everything, and start from there before we, you know, take it up to next step that Mr. Lim was suggesting. Can I see who read everything, I mean, everything? Everything? ALAMEDA: Mr. McCall? And then Commissioner Iwashita. MCCALL: Just, I mean, I don’t think it’s appropriate to ask us that, to tell you the truth, but I made good stab at trying to go through everything. But anyway, I think that what we have in front of us is a request from the applicant for continuance. I think we should debate the merits of going on continuance and on its merits. I’m in favor of continuance if that’s what the applicant wants. ALAMEDA: All right. Mr. Iwashita? IWASHITA: I guess, when the Chair is ready, I would move to continue this matter based on the applicant’s request and with the expressed understanding that the Commission retains its powers, authority and discretion under 4-33 in terms of the extent of how the remainder of the matter is going to be considered. ALAMEDA: I like that. I’d like to entertain that motion, if there is no objection to that. SIRACUSA: I’ll second it. ALAMEDA: Commissioner Iwashita, could you formalize the motion? IWASHITA: I just did. ALAMEDA: You just did, okay. Motion made by Commissioner Iwashita to continue the hearing as requested by the applicant, seconded by Commissioner Siracusa. Discussion? We got a date on that or, staff, what will be a potential date to continue this? HAYASHI: I think perhaps it’ll be more appropriate to ask the applicant, since the applicant is asking for the continuance, as to when they would like to be back on the agenda. ALAMEDA: Thank you, thank you, Mr. Hayashi. LIM: We could do that in January or early February. ALAMEDA: Okay. So, January or early February. Do we need a specific date for the record? Mr. Hardy-Sullivan? HARDY-SULLIVAN: May we request it will be no earlier than a February date because the th hearing with the civil court is on January 25, 2007? I think Mr. Hayashi said that the January th meeting is January 19. HAYASHI: That’s correct. EXHIBIT B 19 HARDY-SULLIVAN: So, could it be a February meeting, please? So we have some determination to go by. ALAMEDA: Sure. Mr. Iwashita, make that a motion? IWASHITA: That’s fine. ALAMEDA: That’s good. Okay, early February, the February meeting? HAYASHI: The February meeting would, that’ll be February 15, that’ll be for the West Hawaii meeting. ALAMEDA: All right. Sounds good. Any further comments on those or discussion on the motion made by Commissioner Iwashita seconded by Commissioner Siracusa? Good. No, seeing no discussion. Staff? DARROW: Thank you, Mr. Chairman. Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Graham? GRAHAM: Aye. DARROW: Commissioner McCall? MCCALL: Aye. DARROW: Commissioner Rho? RHO: Aye. DARROW: Commissioner Watanabe? WATANABE: Aye. DARROW: And Mr. Chairman? ALAMEDA: Aye. DARROW: The motion passes to continue the hearing until February 15th, 2007. ALAMEDA: Thank you. Mr. Torigoe? EXHIBIT B 20 TORIGOE: Thanks, Mr. Chair. Maybe, if we can have a brief discussion on the record with the parties just to make sure everybody is on the same page as to what’s going to happen at the meeting. ALAMEDA: Okay. TORIGOE: It sounds like the applicants are wanting to basically present a condensed case, and maybe Mr. Lim can give us an idea what that will entail. LIM: What we are trying to do is to keep it as short as possible. We do want to do a project overview to reorient you with some of the, some better exhibits, and that will probably, that will be done through Mr. Greg Mooers who is our planning consultant. He will cover the project details, phasing, things like SMA criteria, those types of things. Well, we’ll have probably available for questions David Bills, if he is available, our project engineer, and Dr. Ron Terry who is our environmental consultant. And, but we plan to use Mr. Mooers primarily for testimony, so I may be able to just do it all with him, and just have the other witnesses for questions of the Commission, if necessary. At that point we’ll be ready to, we are assuming that we are going to be incorporating the record from all that has happened before and all the evidence, and at that point in time we will be ready to argue our final argument. ALAMEDA: Okay. Mr. Hardy-Sullivan, your thoughts on that as well? HARDY-SULLIVAN: We would like to have the opportunity to subpoena, and I don’t know if I come to the Commission itself for that. Because it wouldn’t be civil at that point for some of our witnesses that Ms. Siracusa pointed out were disallowed by the special hearings officer, that would have a very relative testimony to this, especially Mr. Phil Tinguely. And so we request that. And just for information, if you allow to do that, of if who, or Corporation Counsels as far as authorizing any subpoena. We’d like to chance to cross-examine them a little bit, and it th should not to take too long. There is new information that has occurred since the October 10 filing of the motion, and I’d like to have some testimony on that, which is very, very relevant on the flooding issue of this property. ALAMEDA: Mr. Torigoe, is their request appropriate? TORIGOE: Well, your contested case proceedings Rule 4-14 allows for subpoena of witnesses and documents, and the appropriate written request should be made stating the reasons why the testimony is believed to be material and relevant. And so I believe the Planning Department has forms for that sort of thing? LIM: Could we have an opportunity to object, if need be? Some of, and you know it’s not just to be the lawyer, it’s some of the witnesses, and I don’t blame Mr. Hardy- Sullivan; he is not an attorney. But what the problem was during the hearing he would be having a geologist giving traffic opinions and those types of things, and people who are not qualified to give professional opinions; and so that’s why we are objecting. If they want to just testify as public witnesses, that’s okay. ALAMEDA: Mr. Hardy-Sullivan? EXHIBIT B 21 HARDY-SULLIVAN: In the contested case we never had any expert witnesses. The geologist happens to be a neighbor of ours, who lives in Alli Lani Condominium, who has some geology knowledge but also knew explicitly the situation of safety and everything. So, I think that’s incorrect for Mr. Lim to point that out. We did not submit any expert testimony; they were all citizens, concerned citizens living in the area. ALAMEDA: Okay, we receive them as citizens in that regard. HARDY-SULLIVAN: Their testimony, sir, one was out of town at that time and I’d like to be able to get to do telephone testimony, which is kind of difficult to do. At that time I had to leave the hearing. But we just have a couple of new witnesses, and my only question is where the subpoena for the Corporation Counsel, do I file it at that office or? We have the forms. ALAMEDA: Okay. Mr. Lim? LIM: So long as he is going to stipulate that these witnesses are lay witnesses and not expert witnesses who can give opinions, then we have no problem with any of his witnesses. Is that, are you stipulating to that? HARDY-SULLIVAN: Yes, we will not have any expert witnesses. To be called, just ones that we previously requested that were denied ALAMEDA: All right. Thank you. Corp Counsel. SELF: Yes. We would like to know if it’s possible to get a list of the names of the people he plans to subpoena and what the relevancy is. ALAMEDA: Okay. Mr. Hardy-Sullivan, is it okay to ask for you to put a list together for the Corp. Counsel? HARDY-SULLIVAN: Yeah, I can do that -. ALAMEDA: In the microphone. SELF: Could you state it on the record right now? I mean, could we do it now on the record? ALAMEDA: If you can. If you can do it now, if not, if you could give us a date, a reasonable date. HARDY-SULLIVAN: May I have one minute to search this document, please? ALAMEDA: Sure. How about, better than that, I want to request a five-minute recess. No objections? Good. Let’s take a five-minute recess. RECESSED The Chair called a short recess at 3:45 p.m. EXHIBIT B 22 RECONVENED The meeting reconvened at 3:50 p.m. ALAMEDA: The Hawaii County Planning Commission now returning to order. All righty. All right, we gave some time for Mr. Hardy-Sullivan to state his witnesses on the record. Did the Corp. Counsel get a chance to get that? SELF: No, not yet. We’ve got two, but I don’t know if those are the only two he wants. Could I also suggest that we, instead of wasting time at the next hearing, that we determine the relevancy of the witnesses he is requesting today, so we can hash it out now and not have to deal with it at the hearing? ALAMEDA: Mr. Torigoe? TORIGOE: If the parties are willing to try and do that, you can do that, or you can just direct that at this point. ALAMEDA: Let me, I can try to facilitate that. Okay? SELF: Thank you. ALAMEDA: You are welcome. LIM: One addition for the intervenor was, I forgot to mention, Mr. Curtis DeWeese would also be testifying. He’s been qualified as an expert during the hearings, so I would also have him. ALAMEDA: Okay. Mr. Hardy-Sullivan? HARDY-SULLIVAN: We feel like we are kind of being railroaded here. Especially when I was just trying to give, as soon as the break came along, before I was able even to research names here, Ms. Self came over who, who, who, and I was fairly giving and I thought, well, is that, okay, it’s not a problem, if I give that information, and Mr. Yuen in a way like forcing information which I wanted to present before the Counsel. I like to have Mr. Philip Tinguely as a witness who we previously subpoenaed for intent of his letter which was in the PD exhibits. He was not allowed, and we have, nobody’s been able to testify to the intent of his letter. Mr. Galen Kuba who previously testified, was very evasive of any questions, disallowed that he did not even know Phil until we kind of reminded him a little bit, then he finally agreed, but also afterwards said that he does not impart information freely, and I think a county representative in any hearing should. I don’t know he wouldn’t. Miss Lillian Fox who has told me, I’ve been away, I was in China for a couple of weeks, there is grading of a new property that’s going to be approved because they are grading. I believe it’s called Kona Palms on the south side of the Alii Lani Condominium, which has been flooding even though they are on the south side of the XE flood zone. And a part of a cause was that that is down hill down stream from the previous development, Kuakini Hights or something I think, which I’m sure was to adhere to all restrictions and things that the Commission had about down stream flooding. But as soon as the property was graded, it flooded. The same is going to happen with the property directly below the Sunstone development, which leads to our property where there has been previous flooding, which leads to the ocean, which has Class AA waters and could possibly be affected. EXHIBIT B 23 ALAMEDA: So you’ve got three so far. Any more? HARDY-SULLIVAN: Right off top of my head, I didn’t know I had to give this information, there maybe one more if I would. I could call to anybody just to, it’s hard to put all that together just in five minutes. I didn’t know it was going to be occurring today like that. ALAMEDA: All right. I would like to make sure that I -. HARDY-SULLIVAN: Mr. Tyler. ALAMEDA: Mr. Tyler? HARDY-SULLIVAN: Yes ALAMEDA: Okay. HARDY-SULLIVAN: Who else do we have here. Mr. Reimer who was, I mentioned he’s the one that was on the mainland. He is our neighbor and he would have actually additional -. ALAMEDA: What’s his first name? HARDY-SULLIVAN: Michael. ALAMEDA: Michael Reimer. All right. HARDY-SULLIVAN: All this would probably be pretty quick information. I’ll try to expedite as much cause I know your time is so valuable. ALAMEDA: Is that the extent of your witness list? HARDY-SULLIVAN: Perhaps, Mr. Robert Ward who filed an updated letter with the Counsel, which I didn’t have a receipt of yet. I saw him at the library yesterday. ALAMEDA: Okay. Robert Ward. All right, that’s six. HARDY-SULLIVAN: I think that will be sufficient, sir. Thank you. ALAMEDA: You’re welcome. Just for, to answer the Corp. Counsel’s request, could you, if you don’t mind or -. I think now we are looking at the relevancy. Did you feel that every one of these testifiers have relevancy in a, as part of being your witness? HARDY-SULLIVAN: Yes, I very much do. Mr. Tinguely, we always all along had questions that we’d like to ask of him, sir. Mr. Kuba, again, we were not able to get answers to some very important flood related things, as he is the county flood administrator. Ms. Fox is a neighbor of, and the director of evacuation for the Alii Lani Condominium, who is witness to this other flooding. Mr. Tyler, with the information regarding, he has not been able to testify to the Puapuaa acquisition on the 2% fund, which is adjacent to these properties. Mr. Reimer who was EXHIBIT B 24 out of town and I was not able to personally question on that day. And Mr. Ward has some new information, I believe, that I have not seen myself. ALAMEDA: All right. How about Mr. River, Michael River, or Reimer? HARDY-SULLIVAN: Reimer. He is a resident of the Alii Lani Condominium, he is a geologist and teaches geology at the University of Colorado, though we did not call him as an expert witness. Actually, he was an apprehensive witness. ALAMEDA: So he will be a lay witness in this regard? HARDY-SULLIVAN: All are lay witnesses, sir. ALAMEDA: They are all lay witnesses. Okay. And what about your Robert Ward? What is his relevancy? Is he a lay witness? HARDY-SULLIVAN: He is a concerned citizen, which corresponded with the Counsel prior to the consolidated property owners having any information about this application. He is a transportation specialist, but does not testify as a lay witness. He is an Alii Drive resident with his concern as far as access for public and everything. And as he does have some new information, which I have not seen, he briefly explained it to me yesterday, I think he should be brought forward and, you know, explain personally on how he feels. ALAMEDA: Okay. Sir? Mr. Lim? LIM: Mr. Chairman, he has named six witnesses so far, and four of the six testified during the contested case hearing. So, you know, it’s up to the Commission, but essentially what he is going to do is he is going to put on this case all over again. ALAMEDA: Corp. Counsel? SELF: I’d like to add that Galen Kuba, who he is also calling again, we have 35 pages of testimony from Galen Kuba during the hearing. And then I want to also make a correction that, cause it sounded like when the Commission was discussing this it sounded as though someone thought that Curtis Tyler had not been allowed to testify, Curtis Tyler did testify at length. So, he also has, you can look at the transcript. ALAMEDA: Yeah, we could ask them not to repeat what’s been already, you know, documented, and give them time limits. SELF: Well, that’s what the hearings officer tried to do during the two days of hearings, and she was somewhat successful but not really. So sometimes they testified about things over and over and over. ALAMEDA: Yeah. Commissioner Graham? Any thoughts on this? GRAHAM: I’m just wondering on procedure to ask Mr. Torigoe. Yeah, I am also concerned that we are just repeating a lot of what went on at the contested case hearing. In the EXHIBIT B 25 contested case hearing, some witness comes up, and then you ask a question, and then there is maybe cross-examination and all. Is it possible that, rather than treating our next installment here as further contested case hearing, we just have these folks come up and speak for a short length of time, and they are not questioned and all like that, and then when the Chairman feels that they’ve exhausted their time and whatever, we can move forward, or is that really inappropriate at this stage where we are? ALAMEDA: Mr. Torigoe? TORIGOE: That kind of modification would have to be by agreement of the parties, I believe. Because you know you’ve generally got a right to present witnesses and cross- exam them in a contested case. ALAMEDA: Mr. Graham. GRAHAM: But if we were to close the contested case and then just take additional testimony of that nature, that would be alternative, no? TORIGOE: No, I think that would be basically circumventing the contested case procedure. It’s intended to allow the parties, you know, to participate. ALAMEDA: I see where you are going with that, though, Mr. Graham. I appreciate it. You know, I’m okay with putting limitations on these witnesses and being straight up with them when they testify. I think I can do it, if I’m the Chair that day. Mr. Hardy-Sullivan? HARDY-SULLIVAN: There is, that would be great. They can just come up, I don’t need to ask questions, in fact, I prefer not to, except for hostile witness Mr. Tinguely and perhaps a little bit with Mr. Kuba, unless Mr. Kuba would, you know, kind of be a little more straight forward with some of our questions. I’ll review the record, and I’ll see where questions were, you know, kind of circumvented, and you know, there might be those questions that I’d like to ask. ALAMEDA: Okay, Mr. Torigoe? TORIGOE: Well, you know, to the extent again that the parties can agree that certain witnesses would just come up and be allowed to give their own extemporaneous testimony and then if there is cross-examination, if you want to agree to that, the parties can agree to that for certain witnesses but -. ALAMEDA: Mr. Hardy-Sullivan, can you agree, which witnesses do you feel it’s okay for them just to give us testimony? HARDY-SULLIVAN: Just to give testimony would be Ms. Fox, Mr. Tyler, Mr. Reimer, Mr. Ward. ALAMEDA: Okay. Mr. Lim, Corp. Counsel, you guys agree to that? LIM: It’s difficult to waive your right to cross-exam when we don’t know what they are going to say. But I guess, you know, we are tying to speed things along, I mean, if EXHIBIT B 26 he is going to treat them as public witnesses where they come up and they can talk for three minutes, that’s something that we would like to, we’d consider. I can’t say right now whether we can waive because they may bring up something that I have to pursue with them, but for the purposes of today, I think that’s something we can consider. ALAMEDA: And I think it’s good to preserve the right to cross-examine, I mean, if something comes up that you just -. LIM: I’m pretty sure we’ve heard most of what they are going to say, and so I’m just going to, you know, probably let them testify as public witnesses for three minutes, and we most likely won’t have any questions. ALAMEDA: Okay. Mr. Hardy-Sullivan, is three minutes appropriate? HARDY-SULLIVAN: I don’t know, in any Commission hearings, is three minutes standard for public testimony? ALAMEDA: Yes, it is. We try to keep it to that. HARDY-SULLIVAN: Okay, if that’s standard. With a little leeway in case if something important is there or is it -? ALAMEDA: Okay. Three minutes is usually our standard, but you know, once four minutes, max five, kind of like that. HARDY-SULLIVAN: Yeah, I understand, sir. I don’t want to change the procedure; we want to do it as is, yes, sir. ALAMEDA: Okay. Corp. Counsel? SELF: We will not waive our right to cross-exam the witnesses he has, but we have no objection to letting them just talk; and then we’d like to ask questions, if we have questions we’d like -. ALAMEDA: If you have questions. Okay. We’re getting closer? Mr. Torigoe? TORIGOE: Just for the record, we don’t have a general three or five-minute limit on public testimony, but when we are in a situation when you have a lot of testimony, that’s when we apply that, just to make the record clear. ALAMEDA: Right, right. Because we do reserve the right to limit redundant, you know, testimony; and if that’s something we heard already, then the Chair reserves the right to cut it off. All right, we are getting closer. Anything else? Are we missing anything else for this continuance? Oh, applicant’s witnesses. do you want to state for the record? LIM: Yes, we already stated that we would have Greg Mooers, and possibly stand-by witnesses of David Bills and Ron Terry. David Bills is an engineer, Ron Terry is an environmental consultant. EXHIBIT B 27 ALAMEDA: David Bills. How do you spell Bills, B-I-L-L-S? LIM: Bills, yes. ALAMEDA: Bills, okay. LIM: And Curtis DeWeese. Curt DeWeese is sitting next to me, who is the project manager and owner’s representative. And I think at that point that will be all that we would be calling; and like I said I will try to do everything through Mr. Mooers, if possible, in a coordinated the presentation. Should we expect to, assuming that we finish the evidentiary portion of the hearing, should we be prepared to do oral argument at that point in time? ALAMEDA: Yeah, I would think so. That’s the protocol. Corp. Counsel? Your witnesses, if any? SELF: Just one, just the Planning Director, if need be. ALAMEDA: Okay. You know, we did offer a time limit for our intervenors. Mr. Torigoe, is it appropriate to share the same time limit for the applicant? TORIGOE: Again, this should be something that the parties would have to, well, I tried to get agreement on from the parties regarding this. ALAMEDA: What’s the time frame for you, Mr. Lim, for your witnesses, you think? LIM: I would say, like I said I’m trying to have Mr. Mooers cause he’s very good at it. I’ll try to have him do that all within 45 minutes. ALAMEDA: Okay. LIM: Probably less. It’ll probably take cross-examination and everything probably in 45 minutes to an hour for him. ALAMEDA: And all those witnesses included in that time? LIM: That’s correct, and I’ll have Mr. Mooers probably testify to everything. If you need specific answers from the engineers, then I’ll call them up. ALAMEDA: Is that okay with you, Mr. Hardy-Sullivan? HARDY-SULLIVAN: Yes. With cross-examination and with new witnesses, probably about the same amount of time, I believe, 45 minutes. ALAMEDA: Okay. How about Corp. Counsel? EXHIBIT B 28 SELF: I only have Chris Yuen as a witness, if necessary, so, I mean, 10 minutes, I mean, it depends, they may have questions for him. ALAMEDA: Do you agree with the time limit on the 45 minutes, Mr. Mooers and -? SELF: Oh yeah. I thought you asked me for our time. No, I have no objection to their time. ALAMEDA: Okay. Mr. Hardy-Sullivan? HARDY-SULLIVAN: I didn’t list Mr. Yuen because Ms. Self said that he will be here and I wouldn’t have to. I might have some questions for Mr. Yuen at that time. ALAMEDA: Mr. Torigoe, Mr. Yuen, is it going to be okay for the intervenor to ask him questions? TORIGOE: Sure. ALAMEDA: Okay. All right. Is there anything else that we are missing? Mr. Hayashi, are we okay? HAYASHI: Yes, Mr. Chair. Just for the record, I wanted to put it on the record that the hearings officer did contact me and asked that whether she should be at the meeting today, and I indicated to her that that’s not a normal practice of the Planning Commission. So I told her that it was not necessary for her to be here today. So, unless the Commission’s so called unwritten policy has change, I’ll again inform Ms. Song, if she does contact me, that her presence is not necessary at the February meeting. ALAMEDA: That’s okay with me. Is that okay with the Commissioners? Okay. HAYASHI: Thank you. ALAMEDA: Thank you, Mr. Hayashi. Mr. Lim? LIM: The applicant would like to reserve the right to call the hearings officer. ALAMEDA: Okay. So would that be your another witness? LIM: Yes. We are still thinking about it. I just want to reserve the right. ALAMEDA: Reserve the right. Is that okay with Mr. Hardy-Sullivan? HARDY-SULLIVAN: Yes. I’ll very much appreciate the chance to question her on the procedures. ALAMEDA: Is that okay with Corp. Counsel? EXHIBIT B 29 SELF: No objections. If need be. HARDY-SULLIVAN: Commissioners. If Mr. Lim does not call her, would the intervenors have the right to call Ms. Song as a witness? ALAMEDA: It will be extremely limited, I mean, just to the three to four minutes or was that four or five minutes, if you will. I mean, we’re still looking at the relevance issue. HARDY-SULLIVAN: Okay. Can we reserve that right in case we need it or? ALAMEDA: Mr. Torigoe? TORIGOE: Well, you know, we kind of try to strike the balance here because we want to allow people to call relevant witnesses, but at the same time the Chairperson has to reserve the right to limit the testimony to that which is truly relevant to the proceeding. So, you know, bear that in mind, I think that the Chairperson is probably going to be pretty strict about -. Obviously, you don’t want her injecting, whatever, her own opinions or such things or testifying as to the merits at this point. It sounds like you may want to ask questions about the alleged improprieties or irregularities, and that I’ll leave to the discretion of the Chairperson. ALAMEDA: Also, Mr. Torigoe, could you also leave to the discretion, you know, I know we are deciding upon the witnesses and relevancy. Is it appropriate to have it documented and then kind of like review it in a time or no? That’ll be too much? TORIGOE: What do you mean by documented? Do you mean like to have a confirming letter as to these are the witnesses and these are the time limits and that sort of things? ALAMEDA: Just, it’s already for the record. No? Never mind, the train of thought. Mr. Hardy-Sullivan. HARDY-SULLIVAN: This will be documented with a cover letter for and all would be on subpoena so, so all six. Some might not be necessary, but I still want to make sure that they would be here so -. I still don’t know where the subpoenas go. ALAMEDA: Mr. Torigoe, where are we at? TORIGOE: Well, it sounds like you more or less sketched out probably about as much details as you can at this point about the next hearing. Probably, you want to also urge the parties if they want to ask for subpoenas to do so right away. We don’t want, you know, people being subpoenaed a few days before the hearings, so that there is question about whether they can be forced to come, that sort of thing. LIM: Can we have a deadline for that, please? ALAMEDA: Mr. Hayashi, what’s the deadline, time limit for a subpoena? EXHIBIT B 30 HAYASHI: I don’t think there is anything in your Rules that states when they submit, a subpoena should be issued. But I think for everyone’s sake and all parties’ sake that, and the Commission’s sake, that it should be done as soon as possible. ALAMEDA: Mr. Torigoe? TORIGOE: If everybody knows who they are going to call, then what’s the reasonable time, maybe within a week from now? ALAMEDA: Within a week? Five days? Mr. Hardy-Sullivan? HARDY-SULLIVAN: I know the procedure on the last one was it has to be done five days before the hearing but -. We couldn’t really do it like within five days, but the hearing is not for two months. th LIM: Can I suggest December 20, which will be in two weeks? th ALAMEDA: December 20? Is that okay? Mr. Hardy-Sullivan? HARDY-SULLIVAN: Okay, but still again I don’t, do I file it to Corporation Counsel for subpoena? ALAMEDA: Mr. Hayashi, I’m not sure about the protocol on that, where do the subpoenas go to. You might have to come to the office for my signature, I think, that’s why, so -. TORIGOE: So the requests are sent it to the Planning Department, correct? HAYASHI: That’s correct. thth ALAMEDA: So, is February 20, what is the, oh, December 20, okay? HARDY-SULLIVAN: Yes, sir. LIM: Right. th ALAMEDA: So, December 20, that’s the deadline to submit it to the Department. Mr. Hayashi, is that okay? HAYASHI: Yes. ALAMEDA: Okay. Mr. Lim, is that what you meant? That’s the intention of the date? LIM: That’s correct. That way we’ll all know who’s coming. ALAMEDA: Okay. Corp. Counsel? EXHIBIT B 31 SELF: I think I missed it, but was there a decision on calling the hearings officer as a witness? LIM: We’d waive that request. SELF: Okay. Thank you. ALAMEDA: Okay. Mr. Hardy-Sullivan, can you also waive the request as well or -? HARDY-SULLIVAN: Yes, I’ll waive the request. ALAMEDA: Okay. All right. Any other tidbits? Mr. Hardy-Sullivan? HARDY-SULLIVAN: I do waive the request within the contested case special hearing, but not, she will be a witness of the, on a civil hearing. ALAMEDA: In the court side, yeah, that’s outside of our jurisdiction so -. All right. Seeing no further, we’ve got motion made by Commissioner Iwashita to continue, seconded by Commissioner Siracusa. Have we already voted? Oh, this is continuing. Okay. So, what’s the parting ritual? Aloha. See you in February. Thank you. Thank you for your patience. All right. The discussion ended at 4:15 p.m. Respectfully submitted, Noriko Sauer, West Hawai`i Secretary EXHIBIT B 32