2013-03-07 Windward Transcript Connections

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Now the Commission’s own rules make it clear that a petition for a special permit is different from a contested case. Therefore, the argument that the hearing on the special permit is the contested case absolutely fails. The definition itself of contested case is found in your Rule 1, which provides this, “’Contested case’ means a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing.” That is a description and definition of contested case in your own rule, Rule 1-3. So if the Commission is of the mind that the hearing on the special permit was the contested case proceeding itself, that is flawed by your own, your very own rules. As I go on, Rule 4 of the Commission’s rules speak specifically to contested case proceedings. Rule 6 of the Commission’s own rules speak to special permit applications. Those rules are completely different. They are not one and the same. I think what happened in the last hearing that the Commission had in January was that there was an attempt to collapse both the special permit hearing and the contested case procedures into one ball of wax. That is absolutely flawed reasoning. Again, clearly, the rules for contested case are different from the rules for a special permit. Different notice requirements apply, and the procedures are very different. Now the rules, you do have rules. The rules are silent, however. Your rules are silent, however, as to what someone has to do to request a contested case. In this regard I’d like to speak to the petition for standing that was recently submitted. The Connections and CBESS in an abundance of caution not knowing exactly where the Commission was going to go with the special permit, in an abundance of caution, a petition for standing was submitted. The record reflects that Connections financed the filing fee for that. I want to state for the record that that was done in an abundance of caution because the applicant didn’t know what procedures were going to be followed, notwithstanding that your own rules clearly identified the procedures relating to contested case and special permit applications. Based on the actions that were taken at the last Commission hearing, that is why that petition for standing was submitted - and I wanted to address that now - again, in the abundance of caution to preserve its due process rights. I’ve already made an oral request for a contested case on behalf of my client. I wanted to address several more issues just so that the Commission is properly briefed. Now, as I said earlier, your rules are silent as to what someone has to do to request a contested case. In this regard, case law has established precedence, clear, as precedents - if there is no rule, due process notions of fairness absolutely apply. Perry versus Planning Commission sets precedence on this. This is a Hawai‘i Supreme Court Case decided in 1980. The citation is 52 Hawai‘i, 666; and this is what the Hawai‘i Supreme Court ruled – even if there is not a property, a clear property right that is present, nevertheless an application for a special permit constitutes at least, at minimum, a privilege. Therefore, there are still due process rights that apply. These are the due process rights that apply. One, everyone has to understand what procedures will be followed. Secondly, the parties, and in particular the applicant in this case, needs the full opportunity and is entitled by law to a full opportunity to present its case. Thirdly, the notion of fairness of procedures. Those three anchors are what is at minimum required to be provided. Now the public, commission, the Planning Commission, not the applicant, carries the burden of notifying interested parties with respect to due process cases or contested cases. The authority for that can be found in Hawai‘i Revised Statutes Section 205-6 and Rule 4 of your own rules with respect to contested case procedures. I think I’ve addressed everything that I needed to. And so I thank you for your patience. Thank you. 5