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<br />here, or if it’s approved here it goes up to the LUC. There was an assumption that at the LUC <br />contested case procedures would be available. <br /> <br />So I reviewed that practiced and looked at the LUC rules and talked to the LUC staff. And <br />basically what I found were two things: <br /> <br />One is that, you have to keep in mind that at any time there is an application like a special permit <br />where the Planning Commission’s decision is the final one before somebody can take an appeal, <br />that is considered a contested case for legal purposes. And that means that even if there isn’t any <br />opposition, even if there isn’t an intervenor, the applicant himself is a party to a contested case; <br />and that’s automatic in your rules as well. Okay. And that means that an applicant can avail <br />him/herself of contested case procedures that are spelled out in the rules, such as calling <br />witnesses, subpoenaeing evidence, and things like that. When I looked at the procedure that the <br />Planning Commission had been following basically telling the public and the applicant that there <br />will be no contested case procedure here, then that’s problematic. Because if an applicant for a <br />special permit is voted down here, then their next step is to appeal to Circuit Court. But in order <br />to do that, they should have been given the opportunity to use contested case procedures to make <br />a record so that they could, you know, file an appeal with a good record. Okay? So in this case, <br />that’s something to keep in mind. <br /> <br />The other thing I found is that when I looked at the LUC rules, they did not make provision for <br />intervention and for contested cases at the LUC level, although they do specifically make <br />provision for intervention and contested case for things like State Land Use Boundary <br />Amendments and anything else other than special permits. And when I talked to the staff there, <br />they basically said that it is not their normal procedure to conduct contested case hearings and <br />have intervention at the LUC level. So basically we cannot rely on the LUC to take care of the <br />intervention and contested case procedures. In fact, they also have the power to remand the case <br />back down to the Planning Commission if they feel that the record is not complete. <br /> <br />So with all that in mind, then the, I spoke with the parties’s attorneys and with the Chairperson, <br />and the parties had agreed that the Findings of Fact and Conclusions of Law should be put on <br />hold pending further discussion regarding what the next step should be, you know, in view of the <br />fact that an applicant ought to have some contested case procedure rights, and that the LUC <br />cannot be relied on to do that. So that’s basically where we are today. And you also have, as <br />was mentioned, a motion to deny on the floor. So that also needs to be dealt with. Okay, so <br />that’s where we are right now. <br /> <br />AU: Okay, thank you, Mr. Torigoe. Can I have the applicant and their representatives please <br />come forward. Can we pull up another chair. Okay, I have a question before we get started, but <br />I’m going to swear everybody in. So please raise your right hand. Do you affirm and swear to <br />tell the truth on this matter now before the Hawai‘i County Planning Commission? <br /> <br />REPRESENTATIVES: Yes. <br /> <br />AU: Okay. When it is your turn to speak, please state your name clearly and where you reside. <br />Before we get started, question though, who represents who? And maybe if we can just, if <br />3 <br /> <br /> <br />