2013-03-07 Windward Transcript Connections

Home

hearing has to be identified. Obviously, as pointed out earlier, the applicant and the Planning Department are automatic parties. Then others would be subject to the Commission’s approval. And the second phase, of course, is the evidentiary portion. Then the burden of proof, as you know, like whether you’re going through a contested case or even like a noncontested case situation, or rezoning application where it’s a noncontested case situation, the burden of proof always rests with the applicant to make its case. Because it’s the applicant who’s requesting the special use, not the community. It’s the applicant’s burden. And the evidentiary portion is that the applicant makes his case, all other parties got to make their case too, the community in this case here. And there’s an opportunity to provide written or oral testimonies to justify one’s positions, including rebuttal information. There’s an opportunity to cross-examine witness. The third phase is decision-making. Then if you do a contested case hearing, you need to have a Findings of Fact and Conclusions of Law based on the record and then, of course, the abilities of the parties to comment on the Findings of Fact and Conclusions of Law. And then, obviously then the Commission makes a final decision. Now the question is like why is the community saying it’s enough already? You know, it feels like the spirit of the contested case hearing has been met. There was ample opportunity given by, you know, by the Commission, there was ample opportunity by the Applicant and the Community to present its case. There was sufficient information on the record to fulfill the spirit of the contested case hearing. The possible worst case scenario of a judicial appeal is probably, as was indicated earlier, a remand with instructions for a contested case hearing. And the third reason why the community is saying is enough is that, you know, we don’t want, there’s a festering sore, and we don’t want to prolong it any more. And it provides, a decision provides an opportunity for the healing process to begin. So why enough again? You know, as I mentioned earlier, the burden to demonstrate how its application meets the test for a special permit rests with the applicant. So the question is - was the applicant given sufficient opportunity to present its case? And the community obviously says yes. Now during this hearing, and why we say yes is because during these hearings the applicant was given the ample opportunity; and I think the operative term here is opportunity, opportunity to provide opening and closing arguments. They were given ample opportunity to provide written and oral testimony to support its case. Sure, they weren’t able to cross-examine any of the public witnesses. But, nevertheless, to supplement its case to build a record, they had the opportunity to provide written and oral testimony, and also opportunity to provide rebuttal witnesses or testimony. Okay? The other thing is like the applicant had been represented by two attorneys, including one from the State, who are or should be well aware of the process and the need to build a strong evidentiary record for their client’s application, regardless of whether a formal contested case hearing is held or not. So if the applicant’s witnesses were unable to fully testify because of their plane schedules or other schedules, it’s still the applicant’s responsibility to ask for a continuance and/or provide written testimonies to support its case or rebut any testimony. 11