2024-06-01 Letter from Michael Matsukawa, Attorney

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Windward Planning Comm'n Page Two June 1, 2024 There being only five members of the Commission present, by State statute 1 and County Charter provision, 2 the vote of four Commission members is required to validate any action. 3 On motion to approve the Association's Petition, the vote was three-two (3 to 2) to approve the Petition. There being less than four votes, no action occurred to grant the Association's Petition. No one can conclude that the Commission had denied the Association's Petition. In fact, the Commission did not entertain a follow-up motion to deny the Association's Petition, which would have expressed official action on the part of the Commission to deny the Association's Petition. Nevertheless, the ruling of the Commission's chairperson was that the Commission had denied the Association's Petition. 4 That fact is published on the Planning Department's website. However, the status of the Association's Petition is that it is still pending action before the Commission. The Commission's Rule 4-6(b) requires the Commission to "grant or deny" the Association's Petition at its first meeting and prior to any action on the landowner's application. The same rule prevents the 1 Section 92-15, HRS. 2 Section 13-4(i), Hawaii County Charter. 3 "The affirmative vote of a majority of the entire membership to which a board or commission is entitled shall be necessary to make any action valid; " (Section 13-4(i), Hawaii County Charter) "Mhe concurrence of a majority of all the members to which the board or commission is entitled shall be necessary to make any action of the bord or commission valid ...." (Section 92- 15, HRS) See also Hawaii Electric Light Company v. DLNR, 102 Haw. 257, 267- 268 (2003); Cariaga v. Del Monte Corp., 65 Haw. 404, 409 (1982). 4 The assumption is that since there was an insufficient number of votes to grant the Association's Petition, the Association's Petition must be deemed to have been denied. However, such a conclusion is contrary to the state statute and charter provision quoted above. Compare with Hawaii Electric Light Company, Inc. v. DLNR, supra, 102 Haw. at 264 (voting on an application several times without a four-vote majority either to grant or to deny an application resulted in no action being taken).