2005-05-06 Answering Brief Re Ainaola Development

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4. ADC's Request for Amendment of Conditions Cannot Revive Barred Claims ADC tries to avoid res judicata by claiming that their request for amendment of Condition No. 7 essentially reopens all issues on the imposition of the condition. ADC argues that the Planning Commission has jurisdiction to consider amendment of conditions, and that once ADC invoked that jurisdiction, the 12.5-year old Condition No. 7 became vulnerable to challenge,just as if it were newly created. ADC's argument goes too far for its own good. Certainly, the Planning Commission has inherent authority to amend conditions when justified, in its discretion. Morgan v. Planning Department, County ofKauai, 104 Hawaii 173, 86 P.3d 982 (2004). However, if it were true that ADC's invocation of the Planning Commission's amendment jurisdiction re-exposes imposition of permit conditions to new appeals, then there would never be repose for the Planning Commission's decisions. ADC would be able, at any time during the life of the permit, to simply ask for an amendment of a condition, and gain a new appeal period for the imposition of the condition. ADC would be able to do this at any time, any number of times. That would be violently contrary to the intent of HRS Section 91-14(b), which provides for a very short, thirty (30) day appeal period for contested case appeals. Plainly, the statute is designed to provide a small appeal window, to quickly establish repose for administrative decisions. If the Planning Commission had taken some adverse action, increasing ADC's costs or burdens by way of amendment, then such new action might be open to one timely appeal. For example, had the Planning Commission increased the burden of Condition No. 7 by requiring paving of more roadway, this increase, as a new burden, might be appealable. However, when the Planning Commission has not taken any new action on a Condition, there is nothing new to appeal. 13