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HomeMy WebLinkAboutCOM 0348.014 2002-2004 ~ ~ ~ ~ - f R. BEN TSUKAZAKI Tsukazaki Yeh & Moore i-~:~ , I ATTORNEYS AT LAW rbt @lava.rv A Limited Liability Law Company THOMAS L.H. YEH 2003 UEC 1 A~ g W~ tly@lavam 85 W. LanikaWa Street Hilo, Hawaii 96720-4199 HAEL W MOORS Telephone: (808) 961-0055 PAX (808) 969-153L mmoore@Iave.ni CO'r r ~ _ . _ i. Ct?~Ji.i. i 6"~.'v~Jl December 1, 2003 Lincoln S. T. Ashida Corporation Counsel County of Hawaii 101 Aupuni Street, Suite 325 Hilo, Hawaii SS?20 Re: Operation of Waters of Life Charter School Ala Loop Community Association Dear Mr. Ashida: Receipt of your letters dated November 17 and 25, 2003 concerning the above are acknowledged. This is our response. While you continue to insist that we are in agreement about the laws specifically pertaining to health and safety, such as fire rules and sanitation, your letters omit the fact that there are both on site and off site issues directly pertaining to health and safety that a building or occupancy permit does not address and which must be assessed in a proper special permit proceeding before any operations are allowed to occur. They include but are not limited to traffic safety and liability, water, drainage, parking, security, noise, hours of operation, eic. The use of the properly to conduct cias'ses will result in a daiiy increase of the use of the road and public and health facilities by some 400%. Moreover, as you know, the Fire Department has some authority to issue variances from provisions of the Fire Code, and the Department of Health has not clearly specified the type of safe sanitation system that would be required with a "temporary" structure. How all of these health and safety issues will be addressed would be reviewed in advance were the necessary special permit process to be used as the Attorney General has determined. As to due process, your letter of November 17, 2003 fails to address the fact that if any form of approval or temporary permit is issued that allows a school operation to Comm. No. Ref. To: Prwtl'0 Ref. Dafe ~1`~- ©3~-<f~l~ occur before it can be addressed by the required permit process, this constitutes an immediate due process violation, as it subjects the residents of the community to current uses that would otherwise be required to be approved in advance by the Planning Commission and the Land Use Commission. As to the issue of Waters of Life School acting at its own peril, it is one thing for it to do so in the face of requests from the County to cease and desist from further school related operations when there are now determinations from the Attorney General and the Corporation Counsel as to the need for a land use permit for the operation. However, if the County provides an affirmative approval for it to conduct classes of any kind at this juncture, it will artificially create a situation that the school will undoubtedly argue will be harmful to terminate at a later date. Right now, the school has insisted that it does not hold classes of any kind cn the premises. That is the status quo that must be maintained pending the Court's determination of the issues. While you mention that in the past, the County has allowed temporary uses while a permit is being sought, this has involved situations involving the continuation of a previous use of a site that involves a complaint, and enforcement action that requires a permit to be applied for and obtained within a certain period of time. At no time in the past has the County allowed the user to increase activities pending permit approval, and in this case, the issue is the necessity of obtaining a permit before operations may even commence. Unlike the example you gave, the County should also be requiring the school to seek a permit. Finally, while you claim the Waters of Life School may have been erroneous in their belief that a land use permit of some kind was not required, pointing to the prior May 14, 2001 letter from Christopher Yuen to the Kanu O Ka Aina New Century PSC, that letter put the school directly on notice that Mr. Yuen's interpretation was subject to interpretation and court challenge. The fact also remains that the school used public funds for the acquisition of the property and has an obligation to use such funds responsibly and in stric± compliance with the law. To this date, I have received absolutely no cooperation from your office or that of Mr. Yuen in providing me with information as to the correspondence that has occurred directly between the County and the Waters of Life school, despite written and verbal requests for same. That such correspondence exists was made clear during the last Council meeting of October 22, 2003, and it has now been over a month since I sent Mr. Yuen an October 23, 2003 letter requesting the correspondence, at your suggestion. Interestingly, your last letter to me indicated that you were still asking for this information yourself. We do not believe that you should predicate your current position 2 on what the school may argue in the absence of specific information on the issue. I will repeat my previous requests to you that in light of the legal analysis provided by both the Attorney General and your office, that the correct way of dealing with the school is for the County to inform it that it must desist from further school related and non-permitted uses on site, rather than continue to encourage an increased level of operations that may be of more harm to the school, the students, the residents and the public, in the long run. At this juncture, given your request that we contact you directly as this matter is in litigation, I will respect that request, but ask that you disseminate this letter to your clients prior to the next Council Planning Committee meeting set for December 2, 2003, in order that they have a complete view of the issues on file. May I remind you that we do have a right to present our views on your position in public testimony at that meeting. Please let me know if you have any questions concerning the above. Very truly yours, TSUKAZA~K/I~-Y'EH~ & MOORS By THOMAS L.H. YEH TLY:nI fc: Ala Loop Community Association 3