2011-06-06 WINDWARD TRANSCRIPT ANDERSON

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WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT JUNE 2, 2011 BRIAN ANDERSON’S REQUEST FOR DECLARATORY A regularly advertised hearing on RULING REGARDING SPECIAL PERMIT NO. 09-095 was called to order at 9:17 a.m. in the County of Hawai‘i, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i, with Chairman Zendo Kern presiding. COMMISSIONERS PRESENT: Zendo Kern, Dean Au, Takashi Domingo, Wallace Ishibashi, and Stephen Ono STAFF PRESENT: Julie Mecklenburg (Deputy Corporation Counsel), Phyllis Fujimoto (Staff Planner), and Jeff Darrow (Staff Planner). And eight people from the public in attendance APPLICANT: BRIAN ANDERSON REQUEST FOR DECLARATORY RULING REGARDING SPECIAL PERMIT NO. 09-095 Request for a Declaratory Ruling seeking clarification regarding Condition No. 6 (special events) of Special Permit No. 09-095, which allowed the establishment of a country market and occasional special events for non-profit agencies within an existing covered equestrian arena on approximately 2.3 acres of land situated within the State Land Use Agricultural District. The property is located along the north (makai) side of Highway 19 and east of the Waimea Country Club golf course near the 51- mile marker, Waikoekoe, Hamakua, Hawai'i, TMK: 4-7-007: 040. KERN: The first application is Brian Anderson’s request for a declaratory ruling regarding Special Permit No. 09-095. Before we do our staff presentation, I’m going to have our Corporation Counsel give a brief description of what that is exactly for us as Commissioners as a declaratory ruling; and then we’ll move on to the staff presentation by Jeff. So without further adieu, Julie? Thank you. MECKLENBURG: Thank you. Commissioners, and for the benefit of the public, I know this is kind of unusual territory for us to be in. We don’t often do declaratory rulings. So I just wanted to give you kind of the basics. Rule 3.1 of the Planning Commission’s Rules of Practice and Procedure states that the Commission can issue a declaratory order as to the applicability of any order of the Commission. The Rules require the petitioner to make a statement regarding the uncertainty involved, as well as a statement of his position or contention. The Commission then must either deny the petition or issue a declaratory order on the matters raised by the petitioner. Declaratory rulings are also covered by Section 91-8 of the Hawai‘i Revised Statutes. The law is clear that the declaratory ruling procedure is meant as a way to determine if an agency’s or a commission’s order applies to a factual situation raised by the petitioner. Okay, so it is not a means to review or reconsider a decision or an order made by the Commission in the past. A declaratory order cannot amend, supplement, expand on or narrow, or otherwise modify in any way an order made in the past. The petitioner would need to make an amendment request to attempt to effectuate any change like that. This is merely an interpretation of the order that was made in the past, in this case Special Permit No. 09-95, and the conditions imposed 1 EXHIBIT A