HomeMy WebLinkAbout2024-09-25 Appellant's Request for Subpoena Duces Tecum, Exhibit 1-2 DeVera, Ashley
From: Ian R. Wesley-Smith <iwesley-smith@carlsmith.com>
Sent: Wednesday, September 25, 2024 11:41 AM
To: Planning Board of Appeals; Wan, Sylvia A; Agustin, Noah
Cc: Patrick K. Wong; Lactaoen, Kawehilani S; SalasFerguson, Sinclair; Mendonca, Ashlee;
Kekai, Malia
Subject: RE: lo Processing BOA Prehearing Conference
Attachments: Appellant 10 Processing Request for Document Subpoena.pdf
All,
Attached is a copy of Appellant to Processing's Request for Issuance of a Subpoena Duces Tecum.
I am again having trouble getting EPIC to accept the upload. I hate to ask, but is someone able to again upload to EPIC?
I am wondering if we might be able to have a quick call to discuss how I might be able to upload to EPIC going forward. I
tried naming without characters this time and it still is not working.
Thank you very much.
Best,
Ian
From: Ian R. Wesley-Smith
Sent: Friday, September 20, 2024 4:13 PM
To: 'Planning Board of Appeals'; Wan, Sylvia A; Agustin, Noah
Cc: Patrick K. Wong; Lactaoen, Kawehilani S; SalasFerguson, Sinclair
Subject: RE: Io Processing BOA Prehearing Conference
Aloha-
Thank you very much. Appreciate the advice I will try a different naming style next time.
Best,
Ian
From: Planning Board of Appeals [mailto:boardofappeals@hawaiicounty.gov]
Sent: Friday, September 20, 2024 4:12 PM
To: Ian R. Wesley-Smith; Wan, Sylvia A; Agustin, Noah
Cc: Patrick K. Wong; Lactaoen, Kawehilani S; SalasFerguson, Sinclair; Planning Board of Appeals
Subject: RE: Io Processing BOA Prehearing Conference
CAUTION:This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
Aloha Ian,
I will upload it to EPIC. Maybe it's the title because it does not accept certain characters.
InalnaLo,,
Board of Appeals Staff
1
Main Line: 808-961-8288
Email: boardofappeals@hawaiicounty.gov
From: Ian R. Wesley-Smith <iwesley-smith@carlsmith.com>
Sent: Friday, September 20, 2024 3:59 PM
To: Wan, Sylvia A<SylviaA.Wan@hawaiicounty.gov>;Agustin, Noah <Noah.Agustin@hawaiicounty.gov>
Cc: Patrick K. Wong<pwong@carlsmith.com>; Lactaoen, Kawehilani S<KawehilaniS.Lactaoen@hawaiicounty.gov>;
SalasFerguson, Sinclair<Sinclair.SalasFerguson@hawaiicounty.gov>; Planning Board of Appeals
<boardofappeals@ hawaiicounty.gov>
Subject: RE: to Processing BOA Prehearing Conference
All,
Attached is a copy of Appellant's objection to the record on appeal.
I have tried to file on EPIC multiple times over the last 20 minutes but the system does not seem to be accepting the
upload. Is someone able to upload to EPIC? Or, alternatively, can we arrange a time so we can troubleshoot how I can
upload?
Thank you very much and I hope that everyone has a good weekend.
Best,
Ian
From: Ian R. Wesley-Smith
Sent: Tuesday, September 17, 2024 5:38 PM
To: 'Wan, Sylvia A'; Agustin, Noah
Cc: Patrick K. Wong; Lactaoen, Kawehilani S; SalasFerguson, Sinclair; Planning Board of Appeals
Subject: RE: Io Processing BOA Prehearing Conference
Sylvia,
That approach is fair and makes sense to us. Thanks to both you and the Chair for the consideration and quick
response.
Best Regards,
Ian
From: Wan, Sylvia A [mailto:SylviaA.Wan@hawaiicounty.gov]
Sent: Tuesday, September 17, 2024 3:46 PM
To: Ian R. Wesley-Smith; Agustin, Noah
Cc: Patrick K. Wong; Lactaoen, Kawehilani S; SalasFerguson, Sinclair; Planning Board of Appeals
Subject: RE: Io Processing BOA Prehearing Conference
CAUTION:This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
Hello Ian,
I spoke with the Chair. Chair suggests that Io Processing go ahead and fill out the BOA Request for Subpoena
form with a requested return prior to 09/27. Attached for your convenience.
Please note the requirements of BOA Rule 3-9(b):
2
(b) Subpoena of Documents. Any request for the issuance of a subpoena for the
production of documents or records shall be in writing; shall specify the particular
document or record, or part thereof, desired to be produced; and shall state the
reasons why the production thereof is believed to be material and relevant to the
issues involved. The name and address of the person or agency with requested
documents shall be inserted in the subpoena, and it shall show at whose request the
subpoena is issued.
(emphasis added).
The Chair will then review your request and decide whether or not to authorize the issuance of the subpoena. In
the meantime, please let the Board know if the Department responds to your UIPA request and thus renders the
issuance of a subpoena moot.
Please include the Planning Board of Appeals boardofappeals@hawaiicounty.gov email in the cc for your email
communications. Added presently.
Thank you,
Sylvia Wan
Deputy Corporation Counsel
Office of the Corporation Counsel
County of Hawai'i
101 Aupuni Street, Suite 325
Hilo,Hawaii 96720
Phone: (808)961-8251
Fax: (808)961-8622
Email: sylviaa.wan@hawaiicounty.gov
CONFIDENTIALITY: The information contained in this message is intended for the sole designated recipient(s) and may
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document. Please notify this office immediately if you have received this message in error and please delete this e-mail
and destroy any hard copy that may have been inadvertently printed. THANK YOU.
From: Ian R. Wesley-Smith <iwesley-smith@carlsmith.com>
Sent:Tuesday, September 17, 2024 2:44 PM
To:Agustin, Noah <Noah.Agustin@hawaiicounty.gov>;Wan, Sylvia A<SylviaA.Wan@hawaiicounty.gov>
Cc: Patrick K. Wong<pwong@carlsmith.com>;Tavares, Sherilyn K. <Sherilyn.Tavares@hawaiicounty.gov>; Lactaoen,
Kawehilani S<KawehilaniS.Lactaoen@hawaiicounty.gov>; SalasFerguson, Sinclair
<Sinclair.SalasFerguson@hawaiicounty.gov>
Subject: RE: lo Processing BOA Prehearing Conference
Hi Sylvia,
I hope that all is well. We would like to request a quick status conference in the above-captioned matter, if the Chair is
available either tomorrow 9/18 or Thursday 9/19. We are requesting a status conference to request assistance in
obtaining relevant evidence for the October 11 hearing.
3
As was discussed at the pre-hearing conference, DPW did not provide the Record on Appeal until September
13. Although DPW has now provided the Record, we believe that it is unfortunately incomplete. We will be filing
objections on the deadline this Friday.
In the meantime, we served a public record request(UIPA) on August 30, but DPW has not responded with a production
of records within 10 business days, as required under HRS Chapter 91 and the Office of Information Practice's
administrative rules. See https://oip.hawaii.gov/laws-rules-opinions/rules/quick-guide-to-oips-administrative-rules/.
In short: (1)the Record on Appeal does not contain all records lo Processing needs; and (2) the UIPA request seeking
additional records is pending/overdue and we have no idea if or when DPW may comply.
Given the upcoming exhibit and witness list deadlines (on 9/27), we would like to discuss these matters with the Chair,
including whether she or the Board would be amenable to issuing a document subpoena for evidence that to Processing
needs for the hearing. Our hope is that we can work with the BOA and DPW to get all relevant evidence and then
proceed with the October 11 hearing.
Thank you,
Ian
From: Agustin, Noah [mailto:Noah.Agustin@hawaiicounty.gov]
Sent: Monday, September 9, 2024 3:55 PM
To: Ian R. Wesley-Smith
Cc: Patrick K. Wong; Tavares, Sherilyn K.; Lactaoen, Kawehilani S; Wan, Sylvia A; SalasFerguson, Sinclair
Subject: RE: Io Processing BOA Prehearing Conference
CAUTION:This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
Good Afternoon, Ian,
Please find attached the Zoom link for tomorrow's pre-hearing conference. Let me know if you have any questions.
The Office of the Corporation Counsel is inviting you to a scheduled ZoomGov meeting.
Topic: SAW: Pre-Hearing Conference re: l'o Processing Company, BOA 23-065
Time: Sep 10, 2024 09:00 AM Hawaii
Join ZoomGov Meeting
https://www.zoomgov.com/j/1613581365?pwd=M nFnN FRpN U1 oZS9mM29veXhKTFJsUTO9
Meeting ID: 161 358 1365
Passcode: 691970
One tap mobile
+16692545252„1613581365# US(San Jose)
+16692161590„1613581365# US(San Jose)
4
Dial by your location
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Meeting ID: 161 358 1365
Find your local number: https://www.zoomgov.com/u/ab9Zncu4c0
Thank you,
Noah Agustin
Legal Clerk III to
Ryan K. Thomas, Deputy Corporation Counsel,
Suzanne Tiapula, Deputy Corporation Counsel, &
Sylvia A. Wan, Deputy Corporation Counsel
Office of the Corporation Counsel
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
(808) 961-8251
Email: Noah.Agustin@hawaiicounty.gov
From: Ian R. Wesley-Smith <iwesley-smith@carlsmith.com>
Sent: Monday, September 9, 2024 3:51 PM
To: SalasFerguson, Sinclair<Sinclair.SalasFerguson@hawaiicounty.gov>
Cc: Patrick K. Wong<pwong@carlsmith.com>;Tavares, Sherilyn K. <Sherilyn.Tavares@hawaiicounty.gov>;Agustin, Noah
<Noah.Agustin@hawaiicounty.gov>; Lactaoen, Kawehilani S<KawehilaniS.Lactaoen@hawaiicounty.gov>;Wan, Sylvia A
<SylviaA.Wan@hawaiicounty.gov>
Subject: to Processing BOA Prehearing Conference
Importance: High
Hi Sinclair and Everyone-
Has a zoom link been circulated for the prehearing conference tomorrow? I apologize if I missed it.
Thank you,
Ian
IAN R.WESLEY-SMITH
Partner I Carlsmith Ball LLP
Carlsmith Ball
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Hilo, HI 96720
Tel: 808.969.8416 Fax: 808.935.7975
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CARLSMITH BALL LLP
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IAN R. WESLEY-SMITH#10626
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Attorneys for Appellant
I`O PROCESSING COMPANY INC.
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAI`I
STATE OF HAWAI`I
I'O PROCESSING COMPANY INC., dba I'O PL-BOA-2023-000065
PROCESSING COMPANY,
APPELLANT I`O PROCESSING
Appellant, COMPANY INC.'S REQUEST FOR
SUBPOENA DUCES TECUM; EXHIBIT 1;
vs. EXHIBIT 2; CERTIFICATE OF SERVICE
STEPHEN M. PAUSE, DIRECTOR, (Custodian of Records of County of Hawai`i
DEPARTMENT OF PUBLIC WORKS Department of Public Works)
Appellee. Hearing:
Date: October 11, 2024
Time: 9:30 a.m.
Place: West Hawaii Civic Center, Council
Chambers, Building A at 74-5044 Ane
Keohokalole Highway, Kailua-Kona, Hawaii
APPELLANT I`O PROCESSING COMPANY INC.'S
REQUEST FOR SUBPOENA DUCES TECUM
I. INTRODUCTION.
Appellant I`o Processing Company, Inc. ("Po Processing")respectfully requests that the
Board issue a subpoena duces tecum to Appellee County of Hawaii Department of Public Works
("DPW') for the following four categories of documents/communications:
4871-5206-8494.1.071717-00001
• Copies of all documents, communications, and files relating or referring to I`o
Processing, I`o Processing's submissions to DPW in 2022, or DPW's denial of I`o
Processing's request for an agricultural exemption under HRS §46-88, including,
without limitation, emails (internal and external) authored by Kelly Wilson, Joel
Fitzgerald, Kehau Dumaguin, Pomai Pokipala, Julann Sonomura, and any other
DPW employee involved with the file.
• Copies of past and present policies,procedures, memorandums, guidelines,
criterion, or other materials used by DPW to assess and apply agricultural
exemptions under HRS §46-88, including drafts.
• Copies of all decisions on agricultural exemptions under HRS §46-88 issued by
DPW (both approvals and denials) from January 2022 through present.
• All emails relating or referring to Nichole Kanda, including any authored by
Kelly Wilson, Joel Fitzgerald, Kehau Dumaguin, Pomai Pokipala, Julann
Sonomura, and any other DPW employee involved with the file.
The Hawaii Supreme Court has made clear that the opportunity to subpoena documents is an
important part of an appellant's rights in a contested case hearing: "[A] contested case hearing
affords parties extensive procedural protections similar to those afforded parties in a civil bench
trial before a judge . . . [tJhese protections include the opportunity to issue subpoenas for
witnesses to testify under oath or produce documents[.]" Mauna Kea Anaina Hou v. Bd. of
Land& Nat. Res., 136 Haw. 376, 391, 363 P.3d 224, 239 (2015) (emphasis added). The
evidence identified by I`o Processing is narrowly tailored to allow it and the Board to assess
whether DPW's decision was "arbitrary and capricious," or alternatively, was reasonable and
based on objective standards applied equally to all applicants. DPW's complete file (including
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4871-5206-8494.1.071717-00001
internal emails), guidelines, and other decisions for similarly-situated applicants during the
relevant time period is necessary for I`o Processing to assess the legitimacy of DPW's position
(including for settlement purposes) and to have a fair shot of making its case to the Board.
II. FACTUAL BACKGROUND.
A. THE LEGISLATURE ENACTED HRS § 46-88 TO EXEMPT
AGRICULTURAL STRUCTURES FROM THE NORMAL BUILDING CODE
PROCESS.
This appeal has to do with DPW's processing of agricultural exemptions from the County
Building Code, under Haw. Rev. Stat. ("HRS") § 46-88. I`o Processing's request for an
agricultural exemption is directly related to a pressing problem in the State: At present, many
farmers and ranchers in Hawaii are unable to sell locally-grown beef to local consumers. Due to
a lack of meat processing facilities located in Hawaii, ranchers are forced to ship their livestock
to the mainland for processing. In turn, the vast majority of beef consumed in Hawaii is
imported from the mainland. This is a major impediment to sustainable beef production in
Hawaii.
There are many reasons why Hawaii does not have more meat processing facilities. One
reason is the financial and logistical difficulty of building under Hawaii's onerous building
permit requirements. In recent years, the Hawaii Legislature stepped in to ease that burden, by
enacting HRS § 46-88. The Legislature passed HRS § 46-88 for the express purpose of
exempting "Agricultural Buildings" from the traditional county-level building permit process.
The Legislature explained its intent:
"Your Committee on Conference finds that nonresidential building code
requirements are financially and logistically burdensome to farming and
ranching operations despite the minimal risk that these structures pose to
public safety. Although Act 114, Session Laws of Hawaii 2012, exempts
nonresidential agricultural and aquaculture buildings and structures from the
building permit requirements, farmers and ranchers are still discouraged from
expanding their farming operations due to the onerous building code
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4871-5206-8494.1.071717-00001
requirements. The agricultural exemptions provided by this measure will ease
the financial and administrative burden on farmers and ranchers and
encourage agricultural diversification and self-sufficiency."
The agricultural exemptions in HRS § 46-88 exist to encourage sustainable, local farming and
ranching by easing the burden of complying with local building permit requirements.
B. I`O PROCESSING IS A LOCAL MEAT PROCESSING COMPANY
SUPPORTING LOCAL RANCHERS AND CONSUMERS.
I'o Processing is a locally-owned meat processing company, which was founded with the
goal of supporting Hawaii's network of local farmers and ranchers. Unlike the large-scale
slaughterhouses that currently dominate the industry, I'o Processing created a boutique, high-end
facility, which measures approximately 2,000 square foot, on approximately 4-acres of
agricultural land in North Kona(the "Facility"). I'o Processing designed the Facility with the
assistance of Friesla, a Washington company that specializes in producing processing facilities
for independent ranching operations and small communities.' Friesla designed the Facility as a
stainless-steel single-story structure, which combines state-of-the art production capabilities with
a small and fully-enclosed footprint. The Facility is professionally constructed to meet stringent
safety standards, and has been certified by a Hawaii-licensed mechanical engineer to be able to
withstand hurricane-force winds and massive earthquakes.
C. I`O PROCESSING MADE EVERY EFFORT TO SECURE DPW APPROVAL,
BUT DPW HAS REFUSED TO GRANT AN AGRICULTURAL EXEMPTION
UNDER HRS § 46-88.
I`o Processing's goal is to build a legal, thriving, long-term local business. Accordingly,
I`o Processing has made every effort to work with DPW to process all necessary approvals for its
operations. Specifically, I`o Processing has spent the last two years trying to obtain an
agricultural exemption for the Facility.
1 See https://friesla.com/equipment/meat-processing-systems/.
4
4871-5206-8494.1.071717-00001
In February 2022, before I`o Processing purchased the Facility, Ms. Nichole Kanda2 met
with staff of DPW, Building and Engineering Divisions. At that time, Ms. Kanda provided DPW
with the Processing Facility's construction plans. DPW Building Division verbally confirmed
that the Processing Facility did not require building permits and would be entitled to an
agricultural exemption under HRS § 46-88, but would need an electrical permit to connect to
County power lines.
Based on DPW's pre-approval, I`o Processing proceeded with getting final approvals for
various aspects of the project over the next ten months without issue:
• On March 17, 2022, I`o Processing applied for an electrical permit for the Facility,
per DPW's recommendation. In connection with the electrical permit, I`o Processing
submitted design plans that clearly identified the Facility.
• On July 27, 2022, the electrical rough-in work passed inspection, including a site visit
to the Facility.
• On August 8, 2022, the electrical underground work passed another inspection, with
another site visit, and was installed.
• On August 24, 2022, DPW accepted declarations of compliance for related compost
structures.
• On October 28, 2022, I`o Processing was issued Building Permit No. PW-B2022-
003346 for a related Agricultural Office Building.
• On September 21, 2022, I`o Processing filed, and DPW accepted, a declaration of
compliance for a related Agricultural Shed.
Through all these repeat interactions, involving review of plans, site visits, and multiple
conversations, DPW never raised any issue with the Facility. Accordingly, at every step I`o
Processing continued to proceed based on the assurances previously provided by DPW in
February 2022.
I`o Processing's problems with DPW began abruptly on December 29, 2022, when Mr.
2 Ms. Kanda is I`o Processing's principal.
5
4871-5206-8494.1.071717-00001
Kelly Wilson rejected the third and final inspection of the electrical permit. Although no DPW
inspector actually visited the site that day for a final inspection, Mr. Wilson rejected the
previously-issued electrical permit on the grounds that I`o Processing needed to first obtain
building permits for the Facility. Alarmed by DPW's reversal of its previous approval, I`o
Processing immediately submitted the Declarations, seeking DPW's official recognition that the
Facility qualified for an agricultural exemption under HRS § 46-88 (as DPW had previously
advised). What followed was 18 months of shifting positions and ever-involving criterion and
requests by DPW:
• January 9, 2023: DPW informed I`o Processing that it would need 1 to 2 months to
prepare a response to the exemption request because it"was currently revising
policies and procedures regarding the declarations" and the inspector had"a few
issues [he] require [sic] department acknowledgement/clarification." This despite the
fact that HRS § 46-88 requires that the "appropriate county agency shall certify the
building, structure, related appurtenances, or development within thirty calendar days
upon the receipt of the written notice from the owner or occupier."
• January 13, 2023: DPW informed I`o Processing that the "structures do not qualify
to utilize the HRS § 46-88 exemption" and told I`o Processing that"you will need to
pursue traditional permitting (Building/Electrical/Plumbing)." (emphasis added).
DPW explained that an exemption was not available because the Facility met"the
definition of a Building," and therefore an"[a]pplication for building Permit is
required." DPW expressly confirmed that this rejection was its "final decision"for
purposes of I`o Processing's 30-day window to appeal to the Board.
• February 10, 2023: After I`o Processing informed DPW that it was appealing, DPW
reversed its January 13 final decision, stating that"[w]e are in discussion and have
not made a final decision." (emphasis added). DPW offered a new, contradictory
position: Whereas on January 13 DPW held that the Facility did not qualify for an
exemption, DPW now stated that the exemption of HRS § 46-88 could apply, but
6
4871-5206-8494.1.071717-00001
only if there was "compliance with relevant building codes" and if the Facility was a
"County pre-approved structure."
• March 1, 2023: DPW, through counsel, offered a"path forward"to satisfy the pre-
approval and exemption requirements it identified on February 10, including the
following:
o "Submit the building plans for the 4 pre-fabricated modules."
o "The design professional would also need to provide the plans for the
foundation and calculations for wind and seismic loads."
o "The applicable code provision is: 2018 IBC, Section 3113 Relocatable
Buildings."
o "Arrange for the inspection of the foundation and the attachment of the
modules to the foundation, and certification that the modules are the modules
identified in the plans."
• November 14, 2023: After I`o Processing worked for months in good faith to meet
the March 1 criteria(which were focused on structural plans), DPW abruptly added
new, additional criteria for pre-approval, including that I`o Processing would need
"electrical and plumbing permits" in order to receive County preapproval.
• November 27, 2023: DPW induced I`o Processing to stay its appeal to the Board
(which at the time was scheduled for hearing on December 2023), by offering yet
another set of criterion for pre-approval. This time, DPW instructed I`o Processing to
"submit plans stamped by an architect and by a structural engineer, as appropriate, for
review by the Building Division," while informing I`o Processing that DPW will
"honor"the currently issued electrical permit but"may"require a plumbing permit.
Notably, this criteria recognized that no new electrical permit was required. In verbal
conversations, Mr. Steve Pause, on behalf of DPW, assured I`o Processing that he did
not believe a plumbing permit was required because there was no underground piping
and the property utilized an existing, fully-permitted connection to County water.
• June 10, 2024: In reliance on DPW's latest instructions, I`o Processing submitted
"plans stamped by an architect and by a structural engineer" as well as detailed wind
and seismic calculations, exactly as DPW had instructed. In response, DPW made
new demands, which were not in the terms of the November 27 offer, including a
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4871-5206-8494.1.071717-00001
request for"certification of units to IBC 3113" and a"letter from the manufacturer
that the design meets the 2018 IBC."
• July 22, 2024: After further discussions, DPW again changed their position with new
requirements, some of which were brand new. DPW now requested "verification
that the electrical systems" and plumbing systems "comply with applicable Codes."
For the first time, DPW also required verification that"ventilation" systems complied
with"applicable codes." DPW also again required I`o Processing"to obtain
electrical and plumbing permits . . . to connect the buildings to the respective
systems." Finally, DPW stated that the Facility"will need to have final inspections
for the connections to electrical, water, and wastewater per the issued permits." This
was obviously very different than the November 27, 2023 criteria offered by DPW for
preapproval, which focused on structural plans and seismic/wind calculations,
promised to"honor"the existing electrical permit, and did not mention ventilation or
additional inspections.
In short, DPW constantly moved the goalpost on I`o Processing. Notably, DPW's criterion for
an "agricultural exemption" slowly evolved to look almost exactly like the traditional building
permit process. DPW initially denied an agricultural exemption outright in January 2023,
stating that I`o Processing would "need to pursue traditional permitting
(Building/Electrical/Plumbing)." 18 months later, DPW ended up conditioning its agricultural
exemption on basically the same submissions that would be required for"traditional permitting"
(including ventilation, wastewater, etc.), electrical permits, and plumbing permits. At this point,
it is unclear how DPW's interpretation of an "agricultural exemption" at all "eases the financial
and administrative burden" of permitting the Facility (as the Legislature intended by enacting
HRS § 46-88).
D. I`O PROCESSING FILED THIS APPEAL.
I`o Processing had no choice but to file this appeal concerning DPW's refusal to issue an
agricultural exemption under HRS § 46-88. I`o Processing is requesting that the Board reverse
8
4871-5206-8494.1.071717-00001
and modify DPW's decision, on the following grounds: (1) DPW acted arbitrarily and
capriciously; (2) DPW violated the letter and intent of HRS § 46-88; and (3) DPW's decision
was clearly erroneous in light of the evidence.
E. DPW HAS NOT PRODUCED ALL FILES RELEVANT FOR THE APPEAL.
I`o Processing first requested the record on appeal in July 2024, when it became apparent
that DPW was changing its criterion for approval. DPW eventually produced a record on appeal
on September 13, 2024. I`o Processing has objected to the record as incomplete and not
consisting of DPW's "entire file." The "file"produced by DPW consists of only two email
chains, which is not sufficient for a case that has a complex history spanning multiple years.
In addition, on August 30, 2024, I`o Processing served a public record request under
Hawaii's Uniform Information Practices Act(the "Sunshine Law") seeking DPW's complete file
and emails relating to the denial. DPW has not responded with a production of records within 10
business days, as required under HRS Chapter 91 and the Office of Information Practice's
administrative rules.3 On September 18, 2024, DPW promised to provide an update, but did not
follow through. On September 24, 2024, DPW promised to provide an update by the"end of the
week." To date, the UIPA request seeking additional records is pending/overdue and I`o
Processing has no idea if or when DPW may comply.
III. LEGAL STANDARD.
The Hawaii Supreme Court has made clear that"a contested case hearing affords parties
extensive procedural protections similar to those afforded parties in a civil bench trial before a
judge . . . [tJhese protections include the opportunity to issue subpoenas for witnesses to testify
under oath or produce documents[.]" Mauna Kea Anaina Hou v. Bd. of Land& Nat. Res., 136
Haw. 376, 391, 363 P.3d 224, 239 (2015) (emphasis added). At the same time, Hawaii Revised
3 See https://oip.hawaii.gov/laws-rules-opinions/rules/quick-guide-to-oips-administrative-rules/.
9
4871-5206-8494.1.071717-00001
Statutes § 91-11 provides that a board"shall personally consider the whole record or such
portions thereof as may be cited by the parties," and must"hear and examine all of the
evidence." The power to issue subpoenas for the production of documents is important both to
afford parties the rights recognized in Mauna Kea and to ensure that the Board considers all
evidence.
Board of Appeals Rules of Practice and Procedures Rule 3-9(b)provides: "Any request
for the issuance of a subpoena for the production of documents or records shall be in writing;
shall specify the particular document or record, or part thereof, desired to be produced; and shall
state why the production thereof is believed to be material and relevant to the issues involved."
IV. ANALYSIS.
I`o Processing respectfully requests that the Board issue a subpoena ordering DPW to
produce the following documents:
• Copies of all documents, communications, and files relating or referring to I`o
Processing, I`o Processing's submissions to DPW in 2022, or DPW's denial of I`o
Processing's request for an agricultural exemption under HRS §46-88, including,
without limitation, emails (internal and external) authored by Kelly Wilson, Joel
Fitzgerald, Kehau Dumaguin, Pomai Pokipala, Julann Sonomura, and any other
DPW employee involved with the file.
• Copies of past and present policies,procedures, memorandums, guidelines,
criterion, or other materials used by DPW to assess and apply agricultural
exemptions under HRS §46-88, including drafts.
• Copies of all decisions on agricultural exemptions under HRS §46-88 issued by
DPW (both approvals and denials) from January 2022 through present.
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4871-5206-8494.1.071717-00001
• All emails relating or referring to Nichole Kanda, including any authored by
Kelly Wilson, Joel Fitzgerald, Kehau Dumaguin, Pomai Pokipala, Julann
Sonomura, and any other DPW employee involved with the file.
The first request seeks DPW's complete file relating to the handling of I`o Processing's
agricultural exemption application and denial of the same. Board of Appeals Rules of Practice
and Procedures Rule 3-13(h), titled Record on Appeal,provides: "In all appeals of Director
decisions before the Board, the entire record or file from the Director shall be submitted to the
Board and other parties." By its plain language, Rule 3-13 requires DPW to submit its "entire
record or file" as the record on appeal. DPW indisputably has not submitted its "entire record or
file" on I`o Processing's application for an agricultural exemption. DPW has submitted only
three documents: (1) I`o Processing's Declarations of Compliance for an agricultural exemption
under HRS § 46-88; (2) an email chain where the latest email is dated January 13, 2023; and (3)
an email chain where the latest email is dated February 10, 2023. Therefore, I`o Processing
requests issuance of a subpoena for the remainder of DPW's file, including"documents,
communications, or files" generated by DPW in connection with their handling of I`o
Processing's application for an agricultural exemption
The second, third, and fourth requests seek evidence that I`o Processing needs to prove
that DPW's denial was "arbitrary and capricious." "Arbitrary" is defined as "depending on
individual discretion; of, relating to, or involving a determination made without consideration of
or regard for facts, circumstances, fixed rules, or procedures." See Black's Law Dictionary (12th
ed. 2024). "Capricious" is defined as "characterized by or guided by unpredictable or impulsive
behavior" and"contrary to the evidence or established rules of law." Id. Relevant here, an
administrative agency's decision is arbitrary or capricious where the standard applied by the
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agency is undefined and"unclear," and depends on incalculable subjective determinations. See
Connections New Century Pub. Charter Sch. v. Windward Plan. Comm'n, 146 Haw. 155, 156,
456 P.3d 1002, 1003 (Ct. App. 2020) ("How much `community concern,' however calculated, is
required before a special permit is found to be contrary to the general plan is unclear and is ripe
for arbitrary and capricious abuse.") (emphasis added). DPW's complete file will help I`o
Processing and the Board determine whether DPW acted arbitrarily and capriciously.
First, DPW's policies/procedures, or lack thereof, is relevant to whether DPW made a
"determination . . . without consideration of. . . fixed rules, or procedures." See Black's Law
Dictionary (12th ed. 2024). In January 2023, DPW admitted that it"was currently revising
policies and procedures regarding the declarations" and the inspector had"a few issues [he]
require [sic] department acknowledgement/clarification." This either means that DPW did not
have a policy or procedure applicable to agricultural exemptions, or that DPW was changing an
existing policy/procedure specifically in response to I`o Processing's request for an exemption.
The details on the policies/procedures, and any amendments to the same, will reveal whether
DPW applied HRS § 46-88 using fixed, objective standards, or using never-before-applied,
subjective standards developed specially for I`o Processing -- of the type that Hawai`i courts
have recognized are "ripe for arbitrary and capricious abuse." See Connections New Century
Pub. Charter Sch., 146 Haw. at 156, 456 P.3d at 1003.
Second, DPW's decisions on other agricultural exemptions within a 2 year period(the 2-
year period during which they were considering I`o Processing's request)will allow I`o
Processing to assess whether DPW actually applied consistent standards to I`o Processing's
request for an agricultural exemption. If DPW granted agricultural exemptions to other
applicants that were similarly situated to I`o Processing, while denying an exemption to I`o
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Processing, then that would be relevant to showing that DPW's treatment of I`o Processing was
arbitrary. On the other hand, if DPW treated all applicants consistently and according to uniform
standards, then that would tend to show that their denial of I`o Processing's exemption request
was reasonable and objective. DPW's decision on contemporaneous exemptions will provide the
context that I`o Processing and the Board need to understand the legitimacy of DPW's decision.
Third, DPW's internal (non-privileged) emails are relevant to whether its approval
process was "characterized by or guided by unpredictable or impulsive" standards of review.
See Black's Law Dictionary (12th ed. 2024). I`o Processing believes that DPW made shifting,
inconsistent decisions -- from verbal assurances that an exemption would apply in February
2022, to an outright denial in January 2023, to at least six different sets of criterion for an
agricultural exemption between February 2023 and July 2024. Put simply, DPW created a
moving target that no applicant for an agricultural exemption, including I`o Processing, could
realistically plan for or meet. If that allegation is borne out by evidence, then the Board would
be empowered to conclude that DPW's pre-approval process relied on"unclear" and incalculable
standards and was therefore arbitrary and capricious. See Connections New Century Pub.
Charter Sch., 146 Haw. at 156, 456 P.3d at 1003. DPW's internal (non-privileged) emails will
provide valuable information on its decision-making process, which will show whether it had a
rational basis for its decisions.
To have a fair opportunity to challenge DPW's denial in the hearing before the Board, I`o
Processing needs access to basic documents and communications in DPW's possession
concerning the denial. The information sought is narrowly-tailored and reasonable, as DPW's
counsel recognized during the pre-hearing conference. It is much narrower than information that
would typically be requested and exchanged by parties in discovery in a civil action in court.
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Unless a subpoena for records is granted, I`o Processing simply will not have "procedural
protections similar to those afforded parties in a civil bench trial before a judge." Mauna Kea
Anaina Hou v. Bd. of Land& Nat. Res., 136 Haw. 376, 391, 363 P.3d 224, 239 (2015).
The form of the requested subpoena duces tecum is attached hereto. This request is based
on Board of Appeals Rule 3-9(b) and on the records and files in this appeal. If the Chair has any
questions, we request the opportunity to appear for a remote hearing. We sincerely appreciate
your review and assistance in this matter.
DATED: Hilo, Hawai`i, September 25, 2024.
/s/Ian R. Wesley-Smith
PATRICK K. WONG
IAN R. WESLEY-SMITH
Attorneys for Appellant
I'O PROCESSING COMPANY INC.
14
4871-5206-8494.1.071717-00001
CARLSMITH BALL LLP
PATRICK K. WONG #5878
IAN R. WESLEY-SMITH#10626
121 Waianuenue Avenue
Hilo, Hawai`i 96720
Tel No. 808.935.6644
Fax No. 808.935.7975
pwong@carlsmith.com
iwesley-smith@carlsmith.com
Attorneys for Appellant
I'O PROCESSING COMPANY INC.
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAI`I
STATE OF HAWAI`I
I'O PROCESSING COMPANY INC., dba I'O PL-BOA-2023-000065
PROCESSING COMPANY,
SUBPOENA DUCES TECUM;
Appellant, EXHIBIT"A"
vs. (Custodian of Records of County of Hawai`i
Department of Public Works)
STEPHEN M. PAUSE, DIRECTOR,
DEPARTMENT OF PUBLIC WORKS Hearing:
Date: October 11, 2024
Appellee. Time: 9:30 a.m.
Place: West Hawaii Civic Center, Council
Chambers, Building A at 74-5044 Ane
Keohokalole Highway, Kailua-Kona, Hawaii
SUBPOENA DUCES TECUM
TO: CUSTODIAN OF RECORDS OF THE COUNTY OF HAWAII, DEPARTMENT
OF PUBLIC WORKS
ATTN:
SINCLAIR SALAS FERGUSON, ESQ.
Deputy Corporation Counsel for Department of Public Works
101 Aupuni Street, Suite 325
Hilo, Hawai`i 96720
E-Mail: Sinclair.SalasFerguson@hawaiicounty.gov
Attorney for Appellee
4871-5206-8494.1.071717-00001
YOU ARE COMMANDED to appear at the offices of Carlsmith Ball LLP, 121
Waianuenue Avenue, Hilo, Hawai`i 96720 (telephone number: (808) 935-6644), on October
1, 2024, at 10 a.m., to produce the documents listed on the attached Exhibit"A" and to testify
as to the contents of said documents.
DATED: , Hawaii, September , 2024.
Chairperson, Board of Appeals
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EXHIBIT "A"
DOCUMENTS TO BE PRODUCED
1. Copies of all documents, communications, and files relating or referring to I`o
Processing, I`o Processing's submissions to DPW in 2022, or DPW's denial of I`o
Processing's request for an agricultural exemption under HRS §46-88, including,
without limitation, emails (internal and external) authored by Kelly Wilson, Joel
Fitzgerald, Kehau Dumaguin, Pomai Pokipala, Julann Sonomura, and any other DPW
employee involved with the file.
2. Copies of past and present policies,procedures, memorandums, guidelines, criterion,
or other materials used by DPW to assess and apply agricultural exemptions under
HRS §46-88, including drafts.
3. Copies of all decisions on agricultural exemptions under HRS §46-88 issued by DPW
(both approvals and denials) from January 2022 through present.
4. All emails relating or referring to Nichole Kanda, including any authored by Kelly
Wilson, Joel Fitzgerald, Kehau Dumaguin, Pomai Pokipala, Julann Sonomura, and
any other DPW employee involved with the file.
4871-5206-8494.1.071717-00001
RETURN OF SERVICE
Received this Subpoena Duces Tecum at , Hawaii, on
2024, at a.m./p.m. I served it on
by delivering a copy to him/her and tendering to
him/her the fee for one day attendance and the mileage allowed by law.
Date: Server:
ACKNOWLEDGED:
Signature
Printed Name
Date and Time
4871-5206-8494.1.071717-00001
CARLSMITH BALL LLP
STEVEN S.C. LIM #2505
IAN R. WESLEY-SMITH#10626
121 Waianuenue Avenue
Hilo, Hawai`i 96720
Tel No. 808.935.6644
Fax No. 808.935.7975
slim@carlsmith.com
iwesley-smith@carlsmith.com
Attorneys for Appellant
I'O PROCESSING COMPANY INC.
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAI`I
I'O PROCESSING COMPANY INC., dba I'O PL-BOA-2023-000065
PROCESSING COMPANY,
Appellant, APPELLANT'S CERTIFICATE OF
SERVICE
vs.
STEPHEN M. PAUSE, DIRECTOR,
DEPARTMENT OF PUBLIC WORKS
Appellee.
APPELLANT'S CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the date indicated below, a true and correct copy
of the foregoing document was duly served upon the following parties via electronic mail (e-mail
and EPIC) on September 25, 2024:
SINCLAIR SALAS-FERGUSON, ESQ.
KAWEHILANI S. LACTAOEN, ESQ.
Deputy Corporation Counsel
101 Aupuni Street, Suite 325
Hilo, Hawai`i 96720
E-Mail: Sinclair.SalasFerguson@hawaiicounty.gov
Attorney for Appellee
4871-5206-8494.1.071717-00001
SYLVIA A. WAN, ESQ.
Corporation Counsel
SHERILYN K. TAVARES, ESQ.
Deputy Corporation Counsel
Office of the Corporation Counsel
County of Hawai`i
101 Aupuni Street, Suite 325
Hilo, Hawai`i 96720
E-Mail: Sherilyn.Tavares@a,hawaiicounty.gov
Attorney for the Board of Appeals
DATED: Hilo, Hawai`i, September 25, 2024.
/s/Ian R. Wesley-Smith
PATRICK K. WONG
IAN R. WESLEY-SMITH
Attorneys for Appellant
I'O PROCESSING COMPANY INC.
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4871-5206-8494.1.071717-00001