2013-02-07 Windward Transcript Glover

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AU: So in the past applications, Yamada and Glover, you know, if I give reference number to all the different special permits, not once has the landowner, Kamehameha Schools, ever come up in front of us? It was always the lessee? LEITHEAD TODD: Yes. And the concern is that this is a single property owner and it’s part of a 140-acre parcel, and that what you have is a pattern over a period of years of successive permits. And I have a lot of compassion for the applicant because they’re not necessarily in control over what happens, they just get a lease for a particular parcel. But what you have is an on-going pattern that in this larger parcel Kamehameha Schools has said, hey, we’re going to do quarrying, but they’re never coming in and planning the whole thing out. And what’s the impact to the, you know, other properties? So that’s part of the concern. If these were separate parcels and separate owners, I think there would still be some concern about master planning. But they would be separate parcels and separate owners. I know in the applicant’s eyes they view this as being separate because they have a separate license. But my understanding is at this point they have the whole 49 and that they may, in fact, have a potential for getting the 140. So, you know, we are basically implementing in our recommendation the concerns that have been raised by the Land Use Commission of trying to circumvent the intent of the State law which is that activities that require a special use permit if it’s going to encompass more than 15 acres should go to the Land Use Commission. I think we looked at, you know, what if we did something like recommend approval of the 10 acres to the Land Use Commission, treat it as if it’s an application. And technically that wouldn’t work because you wouldn’t have information going to the Land Use Commission about the larger parcel, so they wouldn’t have the information they needed. So basically when we looked at this in order to accomplish the goal of addressing the concerns that we felt the denial was the appropriate recommendation. And I do have a question, I guess, cause I’m -. Contested cases are typically asked for like intervenors, and not by an applicant. It’s a contested case when someone is contesting the application. It’s kind of unusual, I guess, and I think Corporation Counsel perhaps, and perhaps Mr. Torigoe, may have to take a look at the issue of whether an applicant has a right to have a contested case or whether if they feel they need more time to prepare, that they instead just need a continuance in order to put witnesses and exhibits together. AU: Yes, Fellow Commissioners, you know, usually on a contested case we have somebody else contesting the application, not the applicant. In this case, just to reiterate what our Director is saying is that we have the applicant requesting a contested case on their own application. So, yeah, it is unusual. And, you know, Corporation Counsel Ivan, if you want to comment on that before I move forward? TORIGOE: Thank you, Mr. Chair. Real generally, you know, Contested Case Rule 4 says that the rule “is to be followed” in all cases, this is Rule 4-1, “in all cases where State statutes provide for direct appeal from the Commission to Circuit Court.” And that is the case in this kind of an application where if there’s a denial then that can appealed directly to the Circuit Court under HRS 205-6. So, you know, technically Rule 4 ought to apply to the extent that the parties want it to be. And Contested Case Procedures can be modified by agreement of the parties and by stipulation, and whereby waiver. And then also under your Rule 4-6, “In all proceedings where the Commission's action is directly appealable to Circuit Court,” like now, “the applicant and the Planning Director will be designated parties to the action.” So I think when you look at the definition of what a contested case is under the State Law, basically it is that agency hearing is required by law when somebody’s rights are being 7 EXHIBIT A