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• <br /> • <br /> Mr. Raymond Suefuji -2- December 11, 1972 <br /> If a request for a use permit or variance is brought up <br /> before the Commission for a vote and it 'fails to gain the <br /> support of five members of the Commission, the request dies. <br /> If a request for a variance or use permit is denied, i.e. , <br /> it fails to receive five affirmative votes, no new application <br /> for the same relief covering all or any portion of the property <br /> involved in the original application will be received by the <br /> Planning Commission for a period of two (2) years from the <br /> effective date of the final denial of the original application. <br /> (See Subsection B, Section 35, Ordinance 63) <br /> This office is cognizant of the fact that only seven of <br /> the nine positions on the Planning Commission have been filled <br /> at this time. We have been informed that this has caused a <br /> • continuing difficulty in gaining a sufficient number of persons <br /> to conduct the business of the Commission. It should be noted . <br /> that the comments above were applied to a Commission consisting <br /> of nine members. The fact that the Charter requires the <br /> "affirmative vote of a majority of the entire membership" (emphasis <br /> added) creates the necessity of an opinion as to what "of the <br /> entire membership" means. We believe that an affirmative vote <br /> of the majority of the entire membership means an affirmative <br /> vote of a majority of the members actually appointed to the <br /> Commission. Thus, despite the fact that the law provides for <br /> a commission of nine persons, if the Planning Commission actually <br /> has only seven appointed members, the number of votes needed to <br /> act in a non-advisory capacity would be a majority of seven, or <br /> four members. To hold that "an affirmative vote of a majority <br /> of the entire membership" is five of nine regardless of the <br /> number of members actually appointed to the Commission may lead <br /> . to an absurdity. If, for instance, it was only possible to <br /> appoint four members to the Commission, the Planning Commission <br /> could never take any affirmative action on an application for <br /> a variance. Section 1-15, Hawaii Revised Statutes, provides <br /> that every construction which leads to an absurdity shall be <br /> rejected. We follow Section 1-15, HRS, in making our inter- <br /> pretation. <br /> Addressing our attention to the problem presented by <br /> Quality Sheet Metal Co. , Ltd. ' s variance request on December 22, <br /> 1971, we make the following comments: <br /> 745 ` <br />