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HENKEL: Just to clear up in my mind, the Director has recommended an unfavorable ruling. If
<br />we were to recommend a favorable ruling we would, it would be because we felt that it was
<br />justified by the testimony and written sheet here that the applicant has given us, right?
<br />
<br />KANUHA: You know, if this were in an area that wasn’t encumbered by another layer of
<br />planning -- in this case it’s the Puna CDP, which has been adopted, it’s an ordinance just like the
<br />General Plan is an ordinance -- if this area was in an area that was not being encumbered by
<br />something like that and everything being equal, we may not have a problem with the approval of
<br />the water business, the business side.
<br />
<br />The problem we have is that the Puna CDP, you know, seeks to consolidate those kinds of uses,
<br />you know, not having them spread out throughout areas like Paradise Park. And then indirectly
<br />we have been taking a position similar to that by restricting special permit favorable
<br />recommendations to certain areas within Paradise Park. There have been two applications
<br />recently, the Diamond special permit proposal, along with this. And for those two because of the
<br />Puna CDP stature and also compounded by a court ruling, the Missler decision over in Kona, we
<br />have to be especially careful to ensure that what we recommend is consistent with those, with the
<br />law, you know, in this case it’s planning law.
<br />
<br />If we were not to do that and there was opposition to this particular application, then our
<br />recommendation, perhaps your decision could easily be subject to appeal. And, you know, based
<br />on the case law that’s pending, we probably would be overturned. So that’s why we’ve taken the
<br />position on this, just the business part of it. You know, that’s, that’s the reason we did that,
<br />which is why my recommendation to the Commission. And I believe your counsel will support
<br />this, that if the Commission is inclined to grant this particular application the specific conditions
<br />are not really the issue. The real issue is to make sure that justifications for the approval, you
<br />know, can meet the test of, you know, being in compliance with the Puna CDP, particularly, and
<br />the General Plan. That’s the basic -. If you feel you can accomplish that, you know, then you can
<br />go ahead and make a decision. Otherwise, if you can’t, then it’s, you know, it’s going to be
<br />tough.
<br />
<br />Now there’s another reason for that, to make sure that is covered, your decision is covered. And
<br />that is because somewhere down the line there will be another application similar to this that’s
<br />going to have opposition. Okay? And if that opposition is strong enough that it goes to the level
<br />of someone filing an appeal, they’re going to look back at decisions that the Commission had
<br />rendered prior to that. And if those decisions are not protected enough, you know, then the
<br />Commission is going to be in kind of a tough situation over that decision. That’s kind of my two
<br />cents of it.
<br />
<br />ISHIBASHI: Commissioner Henkel.
<br />
<br />HENKEL: You know, in response, none of the substandard subdivisions in Puna that were made
<br />40 years ago, they wouldn’t be legal today under the Community Development Plan, or the State
<br />or County laws. Does that mean they cease to exist or nobody can live there? You know, if, I
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