2011-06-06 WINDWARD TRANSCRIPT ANDERSON

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KAAPU: Okay KERN: Will you please raise your right hand. Do you swear to tell the truth today before the Windward Planning Commission? FREDERICK: Yes. KERN: Very good. All right, you may begin. KAAPU: Good morning. The first issue that I wanted to raise is whether or not the declaratory ruling action is properly before this Commission. As Corporation Counsel mentioned, Rule 3 requires that a petition of an interested party, that on petition of an interested party this Commission may issue a declaratory order as to the applicability of statutory provision, ordinance, or any rule or order of the Commission. So it requires a petition. And under Rule 3 a petition is, has certain definitions. There are five definitions. The letter that was submitted to the Planning Commission as a petition does not contain one of the requirements, which is a memorandum of authorities containing a full discussion of reasons and legal authorities in support of such position or content. And the reason that that, and that is under 3-1(b)(5). The reason that is important for the Commission is that when an interested person brings a petition, they bring the basis for that petition, the legal basis for it. So that if anyone is challenging them, they can challenge it on a legal basis. What has been brought to you is just, you know, what does this mean? There has been no basis for you. And you are being asked to “clarify a situation.” But that is supposed be clarified by the interested person, not by you; and they are supposed to give you supporting reasons for doing that. That hasn't been done in this case. So the th March 11 letter with respect to defining the terms concert and activities related to tourism is deficient; and, as such, this matter is not properly before this Commission for public hearing. Second, assuming for the sake of argument that the petition had been properly filed, the petition would still be improper because, in effect, what it is trying to do is seek to amend the special permit, the conditions of the special permit. And what a declaratory ruling is supposed to do is to determine the applicability of a rule to a particular factual situation, as Ms. Mecklenburg had earlier stated. There is some assistance to the Planning Commission because there is a Hawai‘i Supreme Court case, the name is Card vs the Zoning Board of Honolulu, 114 Hawai‘i 184. It is a 2007 case, in which the Hawai‘i Supreme Court examined the standard of review for administrative agency’s decisions. And it says it has two parts. The first part is did the legislature empower the agency with discretion to make a particular determination; and then, two, if the agency's determination was within its realm of discretion, did the agency then abuse that discretion? So in this case this Commission can only consider the applicability of its prior order to a factual situation raised by Mr. Anderson. Under HRS 91-8, declaratory rulings are not intended to allow a review of a prior agency decision for which other th means of review are available. For example, the March 11 letter does not seek to determine the applicability of a rule to a factual situation raised by Mr. Anderson, but rather seeks to change the specific condition, which states, “No concerts or tourism related activities are permitted,” through what is termed a clarification. Under the Card case, this is not a permissible action. The Card case also stated that if there is other relief available then that should be sought by the petitioner. Mr. Anderson has the ability under HRS 91-6 to petition this same body to amend the special permit. And under HRS 91-7 he has the ability to seek a judicial declaration as to whether this agency’s prior ruling on the permit is valid. My client’s position is that she had withdrawn a contested case when this special permit was granted on the basis that they had reached an agreement on the conditions. One of those conditions, which is most important to her, was that no concerts would be permitted. The reason for no concerts being permitted had nothing to do with how much money was going to a 501(C)(3), how much money was being donated to a charity, or to a community cause. The reason for no concerts was because there is an agreement that the concerts had an impact on her property, and she's next door. From the 7 EXHIBIT A