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Home My WebLink AboutUS District Court Stipulation;OrderCase 1:20-cv-00297-JAO-KJM Document 24 Filed 09/08/20 Page 1 of 8 PagelD it: 99 CARLSMITH BALL LLP WILLIAM M. HARSTAD 8942 KATHERINE A. GARSON 5748 DEREK B. SIMON 10612 1001 Bishop Street, Suite 2100 Honolulu, HI 96813 Tel No. 808.523.2500 Fax No. 808.523.0842 wharstad@carlsmith.corn kgarson @a,carlsm ith.com dsimon@carlsmith.com AT&T SERVICES, INC. LEGAL DEPT. RAYMOND P. BOLANOS (Pro Hac Vice) 430 Bush Street, 6th Floor San Francisco, CA 94108 Tel No. 415.694.0640 Fax No. 415.543.0418 rb2659@att.com Attorneys for Plaintiff NEW CINGULAR WIRELESS PCS, LLC d/b/a AT&T MOBILITY, a Delaware Limited Liability Company IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII NEW CINGULAR WIRELESS PCS, CIVIL NO. 1:20-00297-JAO-KJM LLC d/b/a AT&T MOBILITY, a Delaware Limited Liability Company, STIPULATION STAYING Plaintiff,ACTION TO ALLOW FURTHER vs. CONSIDERATION BY THE WINDWARD PLANNING WINDWARD PLANNING COMMISSION, COUNTY OF COMMISSION, COUNTY OF HAWAII; COUNTY OF HAWAII; HAWAII; [PROPOSED] ORDER THOMAS RAFFIPIY, in his official capacity as Chairman of the caption continued] Windward Plannin: Commission; 4827-7775-1241.1.070702-00001 135758 Case 1:20-cv-00297-JAO-KJM Document 24 Filed 09/08/20 Page 2 of 8 PagelD #f: 100 COUNTY OF HAWAI`I PLANNING DEPARTMENT, Defendants. STIPULATION STAYING ACTION TO ALLOW FURTHER CONSIDERATION BY THE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII WHEREAS, Plaintiff New Cingular Wireless PCS, LLC, d/b/a AT&T Mobility, a Delaware limited liability company ("Plaintiff'), applied to Defendant Windward Planning Commission, County of Hawai`i (the "Commission") for a use permit for the construction and operation of a 105-foot tall cellular antenna and related equipment, to be located in Kea'au, Puna, Hawai`i (the "Application"); WHEREAS, after staff processing, receipt of a recommendation from the Defendant County of Hawai`i Planning Department, and the conduct of public hearings (the most recent being June 4, 2020), the Commission denied the Application; WHEREAS, Plaintiff thereafter filed the above-captioned action against the named Defendants for declaratory and injunctive relief based on, inter alia, alleged violations of state and federal law, including, inter alia, 47 U.S.C. §§ 253 and 332(c)(7)(B)(i)(II) (effective prohibition of telecommunications services) and 47 U.S.C. § 332(c)(7)(B)(iii) (absence of substantial evidence to support denial of wireless communications facility application); and WHEREAS, to further enable the Commission's consideration of the 4827-7775-1241.1.070702-00001 2 Case 1:20-cv-00297-JAO-KJM Document 24 Filed 09/08/20 Page 3 of 8 PagelD #: 101 Application without requiring a new application, the parties agree that an order tolling all applicable statutory deadlines, including, but not limited to, all applicable statutes of limitations, and allowing the Commission the opportunity for further consideration, evaluation, deliberation, and action on the Application is the most appropriate procedural course of action. NOW THEREFORE, Plaintiff and Defendants in this matter hereby stipulate, agree (without admitting liability or committing to a specific decision), and request that the Court ORDER as follows: 1. That the above-captioned action be stayed for further consideration, evaluation, deliberation and action by the Commission on the Application, pursuant to HRS § 91-14(e), which allows the Court to order that an applicant receive the opportunity for presentation of additional evidence before the Commission, upon such conditions as the Court deems proper; 2. That, pending the above-described process, all applicable statutory deadlines, including, but not limited to, all applicable statutes of limitations, shall be tolled from the date of the filing of this Stipulation and Order, until forty-five 45) days following action on the Application by the Commission, or the recommencement of this matter in this Court, whichever may occur first; 3. That the Commission shall conduct its further consideration, evaluation, deliberation and take action on the Application, within ninety (90) 4827-7775-1241.1.070702-00001 3 Case 1:20-cv-00297-JAO-KJM Document 24 Filed 09/08/20 Page 4 of 8 PagelD tt: 102 days following the date of the filing of this Stipulation and Order, unless otherwise agreed upon by the parties; 4. That if, following further consideration, evaluation and deliberation by the Commission, the Application is not approved or has not been acted upon by decision within ninety (90) days following the date of the filing of this Stipulation and Order, the stay would be lifted and the litigation in this matter shall resume. There shall be no other recourse or consequence against Defendants or the Commission other than litigation resuming. 5. That if, following further consideration, evaluation and deliberation by the Commission, the Application is approved and the subject use permit is issued with conditions acceptable to Plaintiff, then this action shall be dismissed with prejudice within forty-five (45) days after issuance of any Amended Findings of Fact, Conclusions of Law, Decision and Order by the Commission, with each side to bear their own costs and attorney's fees arising from all proceedings related hereto; and 6. That if, following further consideration, evaluation and deliberation by the Commission, the Application remains denied, or the Application is approved and the subject use permit is issued with conditions that are unacceptable to Plaintiff, then this matter shall return to the above-captioned Court for further proceedings. 4827-7775-1241.1_070702-00001 4 Case 1:20-cv-00297-JAO-KJM Document 24 Filed 09/08/20 Page 5 of 8 PagelD #: 103 IT IS SO STIPULATED: DATED: Honolulu, Hawai`i, September 1, 2020. s/ William M Harstad WILLIAM M. HARSTAD KATHERINE A. GARSON DEREK B. SIMON RAYMOND P. BOLA&OS (Pro Hac Vice) Attorneys for Plaintiff NEW CINGULAR WIRELESS PCS, LLC, d/b/a AT&T MOBILITY, a Delaware Limited Liability Company ls/ Dakota K. Frenz JOSEPH K. KAMELAMELA LAUREEN MARTIN DAKOTA K. FRENZ Attorneys for Defendants WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`I, COUNTY OF HAWAI`I, THOMAS RAFFIPIY, in his official capacity as Chairman of the Windward Planning Commission, and COUNTY OF HAWAII PLANNING DEPARTMENT 4827-7775-1241.1.070702-00001 5 Case 1:20-cv-00297-JAO-KJM Document 24 Filed 09/08/20 Page 6 of 8 PagelD #: 104 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII NEW CINGULAR WIRELESS PCS, CIVIL NO. 1:20-00297-JAO-KJM LLC d/b/a AT&T MOBILITY, a ORDER GRANTING PARTIES' Delaware Limited Liability Company, REQUEST PURSUANT TO STIPULATION TO STAY Plaintiff,ACTION TO ALLOW FURTHER VS. CONSIDERATION BY THE WINDWARD PLANNING WINDWARD PLANNING COMMISSION, COUNTY OF COMMISSION, COUNTY OF HAWAI`I; COUNTY OF HAWAI`I; HAWAI`I THOMAS RAFFIPIY, in his official capacity as Chairman of the Windward Planning Commission; COUNTY OF HAWAI`I PLANNING DEPARTMENT, Defendants. ORDER GRANTING PARTIES' REQUEST PURSUANT TO STIPULATION TO STAY ACTION TO ALLOW FURTHER CONSIDERATION BY THE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII Pursuant to the Stipulation by and between Plaintiff New Cingular Wireless PCS, LLC, dba AT&T Mobility, a Delaware limited liability company, and Defendants Windward Planning Commission, County of Hawai`i (the Commission"), County of Hawaii, Thomas Raffipiy, in his official capacity as Chairman of the Commission, and County of Hawaii Planning Department (the Planning Department"), by and through their respective counsel of record, and good cause appearing therefore, 4827-7775-1241.1.070702-00001 Case 1:20-cv-00297-JAO-KJM Document 24 Fileci 09/08/20 Page 7 of 8 PagelD tt: 105 IT IS HEREBY ORDERED that: 1. That the above-captioned action be stayed for further consideration, evaluation, deliberation and action by the Commission on the Application, pursuant to HRS § 91-14(e), which allows the Court to order that an applicant receive the opportunity for presentation of additional evidence before the Commission, upon such conditions as the Court deems proper; 2. That, pending the above-described process, all applicable statutory deadlines, including, but not limited to, all applicable statutes of limitations, shall be tolled from the date of the filing of this Stipulation and Order, until forty-five 45) days following action on the Application by the Commission, or the recommencement of this matter in this Court, whichever may occur first; 3. That the Commission shall conduct its further consideration, evaluation, deliberation and take action on the Application, within ninety (90) days following the date of the filing of this Stipulation and Order, unless otherwise agreed upon by the parties; 4. That if, following further consideration, evaluation and deliberation by the Commission, the Application is not approved or has not been acted upon by decision within ninety (90) days following the date of the filing of this Stipulation and Order, the stay would be lifted and the litigation in this matter shall resume. There shall be no other recourse or consequence against Defendants or the 4827-7775-1241.1070702-00001 2 Case 1:20-cv-00297-JAO-KJM Document 24 Filed 09/08/20 Page 8 of 8 PagelD #: 106 Commission other than litigation resuming. 5. That if, following further consideration, evaluation and deliberation by the Commission, the Application is approved and the subject use permit is issued with conditions acceptable to Plaintiff, then this action shall be dismissed with prejudice within forty-five (45) days after issuance of any Amended Findings of Fact, Conclusions of Law, Decision and Order by the Commission, with each side to bear their own costs and attorney's fees arising from all proceedings related hereto; and 6. That if, following further consideration, evaluation and deliberation by the Commission, the Application remains denied, or the Application is approved and the subject use permit is issued with conditions that are unacceptable to Plaintiff, then this matter shall return to the above-captioned Court for further proceedings. DATED: Honolulu, Hawaii, September 8, 2020. A{C^.U ff ry. r,C4i3 Kenneth J. Manslicld tJlntcd States \•lag3stratr JudgeVP. i O'a 'C,Or N'M9. 4827-7775-1241.1.070702-00001 3