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Charter, and this memo to clarify all that in this particular Appendix, which then was reflected in
<br />Section 2 of what is now the CDP, which is the authority section of the CDP.
<br />And, so, that's what we're working from, and part of what's important here is that the Director at
<br />that time clarified those different types of strategies that you can include in a CDP. The most
<br />important distinction being the one that I noted earlier—the distinction between those policies
<br />that are in effect controlling and those that are actions that require follow up. Action on the
<br />Council's and/or the Administration's part that are not mandated, right? And, so, it was that, that
<br />we were building on as our starting and working assumption for what a CDP can and cannot do.
<br />Now, as is the case with all land use applications decisions, there are all made on an application
<br />specific basis, right? And, so, how all of this is interpreted by the Director or the Planning
<br />Commission or Council, depending on the type of permit, we really can't speak to at this point.
<br />The Steering Committee and the community worked to be clear in the CDP to make it clear to
<br />those decision makers what (a) the goal was, what the intent was; and (b) how it thought tools in
<br />the planners' toolbox should be used in different circumstances, but was very careful at all times
<br />to never cross the line of basically assuming more authority than the CDP had. It was very, it's
<br />very differential to where authority lies in the regulatory framework, the Charter, General Plan,
<br />Code. But—but in some cases, knowing the nature of likely future development in Ka`u, try to
<br />be specific as possible so that those who are making a decision had no doubts in their mind what
<br />the intent and preference of the community is, right? But, at the end of the day, the decision
<br />makers are the decision makers, and they will ultimately make the call, and as you know, it's on
<br />a case-by-case, application -by -application basis, right?
<br />Is that fair?
<br />SELF: Deputy Corporation Counsel, Amy Self. I represent the Planning Department. So, I
<br />think in answer to your question, there is no way that you can develop any CDP or even amend
<br />the General Plan to prevent lawsuits from being filed. We still have a case in, at the Intermediate
<br />Court of Appeals concerning the Kona CDP. So, people will interpret it in different situations
<br />depending on what they want to gain for their client for permits, but the important thing to keep
<br />in mind is that the CDP is guidance for how they want future growth to occur in a particular
<br />district; whereas, the General Plan covers the entire Island.
<br />So, you know, we can't sit here and say—`cause like Ron said, it's on a case-by-case basis. It
<br />depends on the particular landowner that comes in for whatever permit they're applying for, and
<br />it depends on at that time, how the language is interpreted. And, if we get a lawsuit, our office
<br />will defend the Planning Department's decision. But, they did, you know, the thing that I looked
<br />at when I was reviewing the policy on the shoreline setback is that at least it's not a mandate.
<br />It's not mandatory language if you look at it. It's a—it's a guidance. So, that in and of itself to
<br />me would be defensible.
<br />So, I hope that helps.
<br />CLARKSON: Well, let me, let me just ask this then as a follow-up. Since the ultimate decision
<br />makers are judges, have any of them ever decided a case in favor, well, on the basis of the
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