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HomeMy WebLinkAbout2021-06-16 Leeward Exh D (SMA 21-000078) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JUNE 16, 2021 A regularly advertised hearing on the application of JEKATERINA MYSIN (SMA 21-000078) was called to order at 1:00 p.m. via live stream online meeting, with Chairman Michael Vitousek presiding. COMMISSIONERS PRESENT: Michael Vitousek, Barbara DeFranco, Clement"CJ" Kanuha III, Mark Van Pernis, and Faith "Faye" Yates ALSO IN ATTENDANCE: Dalilah Schlueter, Esq. (Counsel for the Commission), Jean Campbell, Esq. (Counsel for the Planning Department), Jeffrey Darrow (Deputy Planning Director), Maija Jackson (Planning Program Manager), Alex Roy (Planner), and Noriko Sauer (Leeward Planning Commission Secretary) APPLICANT: JEKATERINA MYSIN (SMA 21-000078) Application for Special Management Area Use Permit to construct a six (6) unit, five (5) story condominium and related improvements on a 9,934 square foot lot situated within the Special Management Area. The subject property is located at 75-6150 Alii Drive, approximately 0.25 miles north of Royal Poinciana Drive, Puapua`a 2nd, North Kona, Hawaii, TMK: (3) 7-5-020:066. VITOUSEK: Item number 2, applicant is Jekaterina Mysin, SMA 21-000078, application for Special Management Area Use Permit to construct a six-unit, five-story condominium and related improvements on a 9,934-square foot lot situated within the Special Management Area. The subject property is located at 75-[6]150 Alii Drive, approximately 0.25 miles north of Royal Poinciana Drive, Puapua`a 2nd, North Kona Moku, Hawaii Island, TMK(3) 7-5 (indiscernible– feedback) Is there feedback somewhere? Okay—North Kona, Hawaii, TMK (3) 7-5-020:066. Director Kern is recusing himself from this agenda item due to a potential conflict. There are three petitions for standing in a contested case hearing that have been filed on this item: One by George Smith, one by Jeffrey William Silva, one by Nancye Capri. The first order of business regarding this agenda item is to determine whether to grant them standing. First, can we confirm with the Planning Department staff that the petitions were properly filed in accordance with the Planning Commission Rules. ROY: Chair, all petitions were properly filed with the Planning Department. VITOUSEK: Mahalo, Alex. Okay, so, let me just refer to our memo CAPRI: Just wondering if you can see me and hear me. 1 EXHIBIT D VITOUSEK: We can. Thank you. CAPRI: Okay, I can't see you. VITOUSEK: Oh, okay. Let's see, okay, so I guess we'll take them one by one, and we would like to bring up the folks who are requesting standing, and, I think, Mr. Smith, your application was received first. Could you please give us—well, actually, let me see, sorry, we haven't had one of these in a little while—we have to call the applicant, the planning director, or in this case the deputy planning director, as well as the petitioners forward. All, everybody will be joining us together, and then,petitioners, you can explain to us how your interest in this matter is different and distinguishable from that of the general public. We are in Zoom, so no one is coming forward obviously. Mr. Smith, could you please explain to us background of your petition and how your interests are clearly distinguishable? SMITH: We are the contiguous lot to the project. They—we have a common lot line with them they separate us from Alii Drive. We are directly on the shoreline access driveway, which is the driveway that serves our condominium. We will be physically, economically, and emotionally affected by this construction and the new building. There are even common VITOUSEK: I forgot to swear everybody in. Let me, let me back up. Would all of you please, please raise your right hand? Mr. Silva, Ms. Capri, Mr. Darrow, the applicants. Does everybody swear or affirm to tell the truth on the matter before the Planning Commission? CAPRI: Yes. PIPAN: Yes. OTHERS: (Nods in the affirmative) VITOUSEK: Okay, thank you. Again, going back to Mr. Smith, state your name and the area of residence and explain why you should be granted standing according to Rule 4-6(b). SMITH: Okay. I'm the president of the Ala Ka La association and also a homeowner resident within the Ala Ka La project. I'm speaking for everybody in the Ala Ka La association. We have a, we are the, common boundary line between the two properties, ours and the Mysin property, which separates us from Alii Drive. There are significant physical features that cross the boundary and appear on both sides of the property line that they are considering major construction alterations to. And we are also contiguously adjacent to the shoreline access, which serves as our driveway, and the impact of the construction of this building and then its ultimate existence and utilization will grossly impact this little Ala Ka La condo project. VITOUSEK: Okay. Does the applicant have any objections to the petition for standing? PIPAN: I think the main question here is whether or not these concerns should be bought up at this stage of permitting. The boundary in question is, has been agreed upon by both parties. 2 EXHIBIT D There are no proposed encroachments over the boundary. Any potential engineering considerations regarding site work would be covered at the appropriate permitting phase. VITOUSEK: Do you have any objections to the petition for standing in a contested case hearing? PIPAN: Negative. No. VITOUSEK: No, okay. Commissioners, are there any questions for the petitioner, the applicant, or the planning director [sic]? (No audible response) no? Okay. Can we entertain a motionor, I mean, my question, I guess before we get into that, my question to the petitioner. Are you—in your letter you identified one of the concerns being that this project has potential to curtail the beneficial use of the Special Management Area and ocean resources that are utilized by Ala Ka La Beach. Is that, is that through the limitation of parking that your concern is raised? SMITH: (Inaudible–microphone on mute) VITOUSEK: You are on mute. You are on mute, Mr. Smith. SMITH: Again? VITOUSEK: Go ahead, yep. Oh, you are on mute again. Now you are good. SMITH: Okay, we are, we have some concerns about the utilization and increased traffic and parking problems, and potential conflicts that that does create, which we've had in the past. We are more concerned with the physical aspect of such a huge structure literally 20 feet from our property line, which puts some 40 feet, a five-story building, 40 feet away from two of our units and blocks that's in the details of my testimony actually but, yes, we feel there is long-term consequences above and beyond the shoreline management act, I mean the shoreline access, and that does affect overall granting of the shoreline management act permit. VITOUSEK: Do you—okay, well, at this point we can entertain a motion from the commission whether to recognize Mr. Smith's standing to, in a contested case hearing. Commissioner Van Pernis. VAN PERNIS: (Inaudible–microphone on mute) VITOUSEK: It's on mute. You are good, yep, you got it. Now it's off again. Okay, yep, go ahead. VAN PERNIS: So moved. VITOUSEK: We need to move either to grant or deny the petition. VAN PERNIS: I move to agree with the petition and authorize it. 3 EXHIBIT D YATES: Second. VITOUSEK: You are moving that the petition be granted based on the record the petitioner has established. Is there a second? YATES: Second. VITOUSEK: Commissioner Yates. Is this a roll call vote oris this a show of hands? JACKSON: I think it should be a roll call vote. VITOUSEK: Okay, let's roll it. Any discussion, first, any discussion? (No audible response) okay, seeing none, let's move to vote. ROY: Okay, this is to approve standing for George Smith. Commissioner Van Pernis? VAN PERNIS: Aye. ROY: Commissioner Yates? VAN PERNIS: Aye. ROY: Commissioner DeFranco? DEFRANCO: Aye. ROY: Commissioner Kanuha? KANUHA: Aye. ROY: And Chair Vitousek? VITOUSEK: Aye. ROY: Standing is granted, five-zero. VITOUSEK: Thank you. We'll move onto the next petition that will be Mr. Silva. Mr. Silva, would you please state your name and area that you live. SILVA: Can you guys hear me okay? VITOUSEK: Yep. SILVA: Aloha kakou. Jeffrey William Silva, born and raised from the Big Island of Hawaii, grew up in Miloli`i, South Kona. Currently I reside in Kailua-Kona, Hawaii, on the Big Island. I'm new to thisI'm not going to call it an SMAI'm new to this ahupua`a, but I'm not new to 4 EXHIBIT D the Big Island of Hawaii. I lived in South Kona until I was 16 years old, until my father Larry Silva who was a county lifeguard at Kahalu`u Beach Park and White Sands Beach Park, relocated my family into Kailua-Kona where the first property that I lived, my 16 years growing up in South Kona, was Ala Ka La's, and they did not look anything like what it did now. The access was a lot more accessible, and in a short amount of time even for many may seem long, which is less than 20 years, it is very like less accessible. My standing in this hearing, I appreciate the land commission [sic] and I appreciate everybody that is doing this, but I wanted to come at this from an archaeological standpoint, not on the development necessarily itself, although I do not support the Ala Ka La five-story development; I'm coming at this because in December, 30'', 2020, my wife and myself purchased TMK(3) 7-5-020:068, which is less than 60 feet away from this proposed five-story development, on the mauka side. My concerns for this, we don't have enough time, but what I will say is the significance that I have on my land is one of the reasons why it was still available for someone like myself to buy it, because of the archaeological significance that's in this ahupua`a. And the short five months that I've owned this land, I have not graded access, I've had to do all of my hand-clearing by climbing over the wall that I'm able to remove, hike and hand-clear all of my sites, which I've donated over an acre, 0.25 acre of my zoned 5-Ag for preservation. I'm restoring the heiau-s, my burials, and a lot of other things that are on this land. One of my major concerns other than the parking issue is that I do not want to take that away from the public, as the Ala Ka La easement, which everybody has been testifying against, or, excuse me, testifying for, is the only access of, to, to Ala Ka La Beach Park. The families that reside and to go down there to swim, fish, surf, all park in front of my property itself, which is limited. I feel strongly at this time there is no facilities for the community at all. This particular piece of property, which I originally looked at and I walked, measures out to me to be about 7,500 square feet. I've looked at it again. It's up to 9,500; I don't know how you guys are scaling it. It is not level. The amount of pahoehoe in material that is going to be needed to be taken out of this is, is demoralizing. I have pahoehoe structures on my property that are, that are far more, larger than this, than this gentleman's piece of property. And my biggest concern moving forward is how this development is going to push the overflow into Alii Drive, into the surrounding neighbors, and that's only one of the issues. I would gladly open it up to the land commission not just for the significance that I have in my front. If you are to drive by my property right now, which is just mauka of Alii Drive, you would notice that there is a large clearing, which I have donated over 20,000 square feet of preservation, which would be an example for the people in the community driving by my land that this is a Hawaiian that'sI'm one of the very, very few people, largest, youngest landowner on Alii Drive at 38 years old. That to me is sad, very sad. And the land commission is the people that approve these developments, and all the testimonies for these people, the people that want to build here, it is not their problem that they want to build, they are going to do what they want to do; it's up to us to educate them, to show them that what we have here on Alii Drive is very limited. This particular gentleman's parcel is one of the last parcels on Alii Drive that is for sale, very similar to my land was. And it very easily could be induced into helping our community for facilities,parking for Ala Ka La's. There is no bathroom from Banyan's all the way over to Honl's for anybody on Alii Drive that's walking, cycling, or surfing, there is nowhere for them to rinse off, nowhere for them to use the bathroom, nowhere for them to park. So that pushes the overflow onto Alii Drive where they park in front of now other community households. I would never let my kids walk across Alii Drive street. 5 EXHIBIT D And lastly, I just want to thank the planning commission for your time. I really know that this is a, this is a very touchy subject for a lot of people. But if I can leave you with anything, it's that we are losing our access as a Hawaiian, as people that I've been born and raised here, we are losing our visit rights to the shoreline, and it's developments like this that are going to weed Hawaiians off the shore. Thank you. VITOUSEK: Thank you very much. Applicant, do you have any objections to the petition? PIPAN: I guess more of a question. I completely respect Mr. Silva's testimony and his right to petition to intervene. Just maybe some additional clarification as to how his standing is different than the general public; he notes that potential shoreline parking would be reduced and maybe more parking would be pushed to the front of his site? If that's what he (indiscernible— simultaneous speech) VITOUSEK: So according to Mr. Silva's testimony, his interest is different from that of the general public as a landowner within 50 feet of the proposed structure. PIPAN: Yeah, and in that regard, we have no objection. VITOUSEK: Yeah, okay. Commissioner Van Pernis, any questions? VAN PERNIS: Yes, I'd like to unmute to start with. VITOUSEK: You are, you are good to go, we can hear you. VAN PERNIS: Okay, can you hear me? VITOUSEK: Yes. VAN PERNIS: Mr. Silva, your property is within 50 or 60 feet of this property, the Mysin property? SILVA: Yes, sir. VAN PERNIS: And have you in the past and the present taken access down to the shoreline near or across the property? SILVA: Yes, I have, sir. VAN PERNIS: And your family joins you in that? SILVA: Yes, yes, yes, they do. We frequent the area. VAN PERNIS: And is the parking in that area of Alii Drive where your property is, also affected by the potential development of Mysin's property? 6 EXHIBIT D SILVA: There already is no parking. So for instance, now if someone wants to access Ala Ka La's, they have to park in front of my property. And I'm not going to kick people off of access to my property, but eventually, I will have access to my property. And the traffic that's parking over there alone just to gain access to it, this isn't even getting into the overflow of this proposed development; this is just the surfers, the people that are frequenting the beach, visitors, there is nowhere for them to park. Even if they go down to Ala Ka La's, the chances are that there's a homeowner down there already that has access, that has already taken the parking. So there is no parking, to answer your question, sir, down there. Even though there's proposed parking, there is no parking available for the public. VAN PERNIS: Let me state the question in a different way. Will your property be affected by the parking situation that the Mysin development involves? SILVA: Absolutely, yes. VAN PERNIS: Thank you VITOUSEK: Okay, Commissioners VAN PERNIS: nothing further. VITOUSEK: Okay, thank you, Commissioner Van Pernis. Any other questions, Commissioners? (No audible response) Mr. Silva, you know, it sounds like you have a pretty interesting project going with restoration of historic properties on your property there. Do you believe that the construction of the five-story building could have an adverse effect on the context of the sites that you are trying to preserve? SILVA: Absolutely, Mike. You know, from, to make that real quick, if you think that Hawaiians lived only on my property and they didn't live on his, I don't know to tell you Hawaiians were smart people, but my, my parcel is one of the last in the Kahakai Ahupua`a, and the amount of kupuna that I have residing on my, on my land, there is no way in any way, shape or form that they don't have them on theirs. And,yes, everything that's done on that property from, from anything, removing a tree that's not native, anything on that property—somebody earlier, real quick, Mike, brought up a very, very good point about removing the pahoehoe features on them. I have very, very large pahoehoe features on my property, I have five acres of them, and I'm not removing one, I'm preserving all of them. And to me, again, this is just about respecting what's there, and I understand development is something that we can't stop, but also knowing where you are able to develop, that to me has to be the future of this planning commission is knowing where it is meant for and where it's not, and I just don't see this happening there. VITOUSEK: Thank you. Commissioners, are there any other questions for Mr. Silva? (No audible response) okay, seeing none, I'd like to entertain a motion to grant or deny his standing in a contested case. Commissioner DeFranco. 7 EXHIBIT D DEFRANCO: I make a motion to grant standing. YATES: (Raises hand to second the motion) KANUHA: (Raises hand to second the motion) VITOUSEK: Thank you. Motion by Commissioner DeFranco, second by Commissioner Yates. We'll go with a roll call vote,pleaseactually, any discussion? (No audible response) okay, roll call vote, please. ROY: Commissioner DeFranco? DEFRANCO: Aye. ROY: Commissioner Yates? YATES: Aye. ROY: Commissioner Kanuha? KANUHA: Aye. ROY: Commissioner Van Pernis? VAN PERNIS: Aye. ROY: And Chair Vitousek? VITOUSEK: Aye. ROY: Motion to grand Jeffrey W. Silva standing in a contested case passes, five to zero. VITOUSEK: Thank you, Mr. Roy. The last one SILVA: Thank you for your time. VITOUSEK: is Ms. Capri, Nancye? CAPRI: Yes. VITOUSEK: Thank you. Will you please state your name and area of residence? CAPRI: Yes, Nancye Capri. I'm directly across the street at 75-6143 Alii Drive. I've been a 41-year resident of Hawaii Island, and our parcel is an actively farmed five-acre agricultural lot. We are adjacent to Jeff Silva. We as well have taken much care and sensitivity to the historical and archaeological features. We have preserved,we have kept things that didn't require 8 EXHIBIT D preserving because we understand the sensitivity to the area and the beauty of it all. We have planted matching trees and participated. Our safety and our welfare is at risk with this development, our quality of life is. And I'll tell you, I received a letter through an email, June 14'h letter sent from Mr. Pipan to you commissioners, where he minimalizes these safety factors. He gives you a statistical argument that this is a low-risk area for tsunami and a recommendation that evacuation is done by pedestrian mode. This is a total disregard of our safety. This is minimalizing it. These incidents are well documented in 2008 letter form the police chief, from a 2011 tsunami, and by the pure fact that every day traffic is backed up from Lunapule to Alii Point and again Royal Poinciana up to Kuakini Highway on Lako. Minimalizing it. The parking on Alii Drive—Are you kidding me?—it is a risk, it is a safety risk, there's pedestrians, bicycles, it's directly across the street. He has used a map, a Google map from 2001 to 2019, picking eight days out of those 18 years to show a half a car parked on Alii Drive in this area. That's so convenient. It's minimizing it. He has mentioned, well, there is parking to the north; well, meanwhile, we've got a 16-bedroom—not 14-bedroom, he's got a library the size of a bedroom with a bathroom and a walk-in closet, it's 16 bedrooms-17 onsite parking and five bike racks. He is going to push and take advantage of parking on Alii Drive at our risk, adding more confusion and chaos and safety issues for us accessing on and off Alii Drive. My family's safety is at risk by the fear fact that we are here. The next issue is that this is a monster building on a postage stamp. It towers above us, it blocks our airflow, it blocks our views. It's, he has re- he has resubmitted a new design, but it's still a monster building. He makes a statement this is the new design conforms to the feel of the surrounding properties. Really? Seriously? We are residential agricultural; we are not monster homes. He refers to other projects already built, such as Banyan's and Kona by the Sea; number one, poor choices do not justify continued poor choices. Other projects, as just a note, many of these projects had land large enough to push them away from Alii Drive, set down low with tons of large trees. My family will be forever adversely affected, if this building is built; we'll be deprived of airflow, views, and safety onto Alii Drive. Every day we'll look at the towering monster down on, looking on us. Now, he mentions that there is no impact and should not be any impact from wastewater runoff. He's got 16 bedrooms, 23 toilets, 41 sinks, a pool,jacuzzies, 80 percent is, looks to be paved over, taking away the natural percolation of water. Again, he is minimalizing the situation. Failure of our aging wastewater system, our sewer lines, directly affects us as a family on failure. The next thing that I want to address is the grubbing and grading. This is a major SMA situation; it's over the 500,000-mark. Somehow it seems that the engineer in his letter was to blame, but actually, it's an owner responsibility, a developer responsibility, to make sure he's got the proper permits before allowing work. It's just an excuse. It's irresponsible ownership. It's fronting of self-importance. So I just hope that no one goes to this carrot that he wrote in another letter that by his increasing our tax revenues and the money that comes in as a result of this we give the county money to do the infrastructure and reduce all these problems. We can't fall for that again. My kids, my grandkids, they were, they were born and raised here, they need to be able to have this. I'm like Jeff, this needs to continue, we are preserving it. There is no question to me that this does 9 EXHIBIT D adversely affect us as a family over the public. So I'm asking you to accept me as a petition holder, and I appreciate your time and consideration. Thank you. VITOUSEK: Thank you very much. To the applicant, do you have any objections to the petition? PIPAN: I'll, I'll refrain from refuting potential mischaracterizations of my letter unless you'd like clarification on specific points that I made there (indiscernible—simultaneous speech) VITOUSEK: At this point, the points are not the material that we are discussing PIPAN: Right, for standing VITOUSEK: applicant's standing PIPAN: I understand. It's merely academic note. No objections. VITOUSEK: Okay, thank you. Commissioners, are there any questions for the applicant for standing, petitioner, I'm sorry. Commissioner Van Pernis. VAN PERNIS: Yes. Ma'am, how many feet apart is your property from the subject Mysin property? CAPRI: I'm sorry I did not take a tape and measure it, but I'm directly across the street, so whatever that biking lane and the two lanes, I'm right there. VAN PERNIS: So CAPRI: Twenty-five feet maybe? VAN PERNIS: All right, thank you. I have a question for the Planning Department also. VITOUSEK: Go ahead. VAN PERNIS: May I proceed? VITOUSEK: Yes, please proceed. VAN PERNIS: Is payment of real property taxes a prerequisite to this form of application? One testifier said that taxes were not paid. Did the county Planning Department investigate payment of taxes and what was the result? VITOUSEK: Maija? JACKSON: Yeah, so this application was accepted, I believe, at the end of last year, and at that time we did verify that the real property tax payments were up to date. So I believe that the 10 EXHIBIT D applicant may not have paid the February real property tax payment, and so they may now be overdue for the payment of their taxes. VAN PERNIS: If the VITOUSEK: Hold on one second. I'd like to hear form our attorney, corp. counsel. SCHLUETER: I just want to make one note here. We are, what's going on right now is hearing on the petition for standing. The actual application and the facts, the details of the application are not on the floor for discussion at this time, or for questions, so we need to keep our discussion right now germane to the applic-the petition for standing. Once the actual application is on the floor, then you'll have an opportunity for these questions and further discussion. VIOTUSEK: Thank you very much. Any other questions as it relate to the application for standing? (No audible response) okay, seeing none, could, could one of the commissioners make a motion to grant or deny standing based on the record? Commissioner DeFranco. DEFRANCO: I make a motion for standing for Nancye Capri. YATES: Second. VITOUSEK: Moved by Commissioner DeFranco, second by Commission Yates. All those, oh, we'll do a roll call vote. ROY: Commissioner DeFranco? DEFRANCO: Aye. ROY: Commissioner Yates? YATES: Aye. ROY: Commissioner Kanuha? KANUHA: Aye. ROY: Commissioner Van Pernis? VAN PERNIS: Aye. ROY: And Chair Vitousek? VITOUSEK: Aye. CAPRI: Thank you. 11 EXHIBIT D ROY: Motion to grant standing to Nancye Capri passes, five to zero. VITOUSEK: Okay. So, now that standing has been granted in a contested case, to proceed with the contested case hearing, our rules give us the following options: number 1, the entire commission as a whole can hear the contested case; or number 2, the commission can designate one or more members to act as hearings officers; finally, number 3, the commission can hire a hearings office to conduct the hearing. I'd like to note that even if the hearing is conducted by a hearings officer, the decision on the application will be made by the commission as a whole based on the case record and the hearings officer's recommendation. Before we start discussing our preference, may I ask counsel and/or staff for any advice or information, such as hearings officers' availability, budget, and the current virtual environment? JACKSON: Chair Vitousek, I can respond to that. So we do have money budgeted for mediation and for a hearings officer, if the commission chooses to hire one. So the process will be just trying to select the hearings officer to see who is available, and we have a list of, I think, seven or eight people that we contact. As far as the virtual environment goes, we've never had a contested case hearing during this pandemic, so that will obviously be one of the questions that we would ask whoever is hired whether or not they have the ability to hold this hearing virtually. VITOUSEK: Okay. Do any of the commissioners well, I guess for back planning purposes, that if you have any questions of staff about what it entails. Commissioner Yates. YATES: I'm just wondering, I'm a little confused, so it wouldn't be us commissioners hearing it? Is someone else hearing it? VITOUSEK: So, procedurally, there is a, a contested case hearing is a step, another step in the process. And I haven't been involved in any during my time here, but my understanding is that you can hire a hearings officer, and the hearings officer will serve as mediator between the applicant for the project and the petitioners, the contested case petitioners, and then the hearings officer will collect facts and make a recommendation, but ultimately, decision will be with the Planning Commission. YATES: So, do we feel that we need that or are we not able to do that as a group? SHLUETER: Can I assist here? VITOUSEK: (Indiscernible—simultaneous speech)—what was that? SCHLUETER: I said can I assist in your answer, in her inquiry here? VITOUSEK: Yep. SCHLUETER: Your, the commission's options are, yes, you can hire a hearings officer, that's one; two, you can select a single commissioner from your commission to serve as the hearings 12 EXHIBIT D officer; or, three, the entire commission as a whole can be the hearings, can conduct the hearing as the collective hearing body. YATES: Okay. SCHLUETER: So you've got those options, and that's what you need to vote on at this time. So any other questions procedurally, or like Chair said, regarding, you know, steps that need to be taken to do that, happy to assist. VITOUSEK: Commissioner Van Pernis. VAN PERNIS: (Inaudible–microphone on mute) VITOUSEK: You are on mute. Still on mute. VAN PERNIS: Can you hear me now? VITOUSEK: Yes. VAN PERNIS: I would like to ask Chair, perhaps as a point of order, why you say a hearings officer would mediate. Mediate implies, or it doesn't imply, it means getting two people to agree, objective is a decision is made. What does the hearings officer do, if the parties don't agree? VITOUSEK: My understanding is that the hearings officer makes a recommendation on how to proceed, and that the Planning Commission would either accept or deny that recommendation when deciding whether or not to accept or deny the Special Management Area Use Permit. Is that correct, Counsel? SCHLUETER: Yes, althoughso,just to separate things, there is a provision in the Planning Commission Rules 4-6(i) that does require all parties to come to the table and do a mediation, and that would be within 30 days of, it's supposed to be within 30 days of today. So we can, so that's one piece. The hearings officer is going to conduct a hearing; they will, you know, they can discuss and assign different procedural, like in this instance, since there are multiple intervenors, the hearings officer can do things like assign duties, the hearings officer will also have generally a prehearing conference to go over any procedure that needs to be lined out. So then the hearings officer will then, there will be a set date and time for that hearing, they will take testimony, witnesses, there will be opportunity for cross-examination, etcetera. At the conclusion of that hearing, the hearings officer, if it's not the entire board, would be writing up a recommendation to the entire committee as a whole for the committee to review that, as well as generally a transcript or minutesI believe it's generally a transcript—from there so that the commission as a whole would have all of the information they would need to proceed. Now, if the commission as a whole hears the entire thing, at the end of the hearing, if the commission had all of the information they needed, they could so then move on that petition at that time, at the conclusion of the contested case hearing. 13 EXHIBIT D VITOUSEK: Commissioner Van Pernis. We can hear you. Yeah, we can hear you, go ahead. VAN PERNIS: I'd like to ask counsel. Is a mediation you refer to conducted by a mediator different from that hearings officer? SHLUETER: That's correct. It specifically cannot be the sa-the mediator cannot be the same parry that is the hearings officer. So it has to be a separate mediator to handle the mediation of the parties. VAN PERNIS: And who selects the mediator? VITOUSEK: Maija, go ahead. JACKSON: The mediator is selected by the parties. The parties need to reach an agreement on who to select as a mediator. So, generally, the process is that since you granted standing to three individuals, I will reach out to those three people after this meeting and try to set up a mediation within the next month. I will email everybody, all the parties, of the potential mediators, and then they will need to work together to come to agreement on a mediator. If the parties can't agree to a mediator, then that issue will come back to the Planning Commission, and the Planning Commission will decide on who the mediator is. And that all occurs prior to the contested case hearing. If an agreement is reached during mediation, then the parties can withdraw their petitions for standing, and the application can go forward to the hearing in front of the Leeward Planning Commission. If an agreement is not reached in mediation, then it will go to a contested case hearing. VITOUSEK: And can you give us an idea on the time commitment that is involved with the contested case hearing, if it were to be the whole court? JACKSON: Typically, if you have multiple parties, which you do in this case, it could take up to anywhere from three days to a week. VITOUSEK: Mr. Silva. SILVA: Real quick. I just want to bring up a topic that I thought was really important. You know, we are only speaking, the three of us, on the top, Nancye, myself, and George; there's a lot of people that don't have a voice in this situation. And, you know, Simmy McMichael brought up some very, very good points, along with Janice Palma, that I think need to be pointed to, that I think that was possibly overlooked in the beginning of this whole situation. So I just want to speak on behalf of people that weren't, that don't have a voice in this particular because they are not part of this SMA or part of this ahupua`a, whatever you want to put it. There is still a lot of people out there that have a lot of concerns that weren't notified simply between this meeting being tomorrow and this meeting being today. There is a lot of things that are overlooked setting this up. So I just want to make sure that you guys are on the same page with this moving forward so that, you know, it's not just the three of us, there is a whole 14 EXHIBIT D community out there that has concerns, too, that aren't being represented. So I just wanted to throw that out there for you guys. VITOUSEK: Yep, we hear you, and there is always going to be involvement of the public throughout the process. It's just a different set of rules that pertains to a contested case SILVA: I understand, I understand. VITOUSEK: (Indiscernible—simultaneous speech) okay, cool. Mr. Smith. SMITH: I'd like yes, pleaseI think we all came to this with the assumption that we are going to be able to express our concerns to a commission of our peers, not somebody who is hired that we have no knowledge of, we have no control of how they are participating or what they, what their true goals are. I think this is an issue between the citizenry and the people that are elected or appointed to manage our business. And I want, I personally want this to be resolved at the commission level and not go to all of this other stuff that has the potential for going off the rail, shall I say. VITOUSEK: Thank you, thank you for your concern, Mr. Smith. This is going to be a Planning Commission decision, and ultimately, it will, whether there is a hearings officer or not, as the, this will be a Planning Commission decision. The hearings office can make recommendations, but it will be a Planning Commission decision at the end of the day. It's just going to come down to availability and resources and whether or not the commission can serve as a body or as an individual or whether we hire somebody. Commissioner Van Pernis. VAN PERNIS: (Inaudible—microphone on mute) VITOUSEK: Still on mute. Here we go. VAN PERNIS: Thank you. I do like to point out that the act of mediation, which is the primary source of a resolution, primary matters that are highly involved; getting the position statements of the parties and the witness lists, and excluding irrelevant witnesses, only the people who have good standing, and the witnesses would be limited to those without duplication who support the applicants, or support the intervenors. I would be,being familiar with this process, I would be willing to volunteer as a hearings officer to take effect at the mediation. VITOUSEK: Okay, Commissioner Van Pernis wants to volunteer as a hearings officer VAN PERNIS: Yes. VITOUSEK: Thank you for volunteering. And then with the commissioners, I guess at this time, having all the information that we have, there is no further question, I'd like to entertain a motion whether to have Mr. Van Pernis be the hearings officer, whether to have the entire commission as the hearings officer, or whether to independently hire a hearings officer. Commissioner Yates. 15 EXHIBIT D YATES: I'm in favor of us commissioners doing this, rather thanI think we are quite capable, and I think we have enough information that we can do itrather than, you know, keep putting it off and putting it off. So that's my take on this. VITOUSEK: Would you beI guess, in favorI guess we need a motion before we can really have substantive discussion on it— YATES: tYATES: I'll make a motion VITOUSEK: options are all of us,just Mark or any other commissioner, if someone recommends, or hiring somebody. YATES: I would like to make a motion that we do it as a group, the Leeward commissioners. VITOUSEK: Okay. Is there a second? KANUHA: Second. VITOUSEK: Commissioner Kanuha second. Any discussion? Commissioner Van Pernis. VAN PERNIS: I'd like to make sure that everybody understands that it's just not listening to what they said today, but it's getting witnesses, identification, timing for that, timing for position statements and timing for further hearings. I think this has a potential of going on for several days. And I question whether the commission wants to sit and listen to these intervenors and witnesses for several days. The chairman would have to make some strong rulings about non-duplication of witnesses, etcetera. So I want everybody to understand that I don't object to the whole group hearing this but—it's more than just a few hours of listening; it's day after day after day, and we'll have to set some rules on when things are submitted also. VITOUSEK: Thank you, Commissioner Van Pernis. I agree. I have concerns about the timing of this. I feel like it's going to be a pretty big time daring on all of us. It could take weeks. This is more like a court case than it is a commission hearing. I would personally be in support of having Commissioner Van Pernis be a hearing officer. Commissioner DeFranco. DEFRANCO: Yeah, I agree, this could take a long time. But I, I think that I'm more in favor of having somebody independently that they all agree on to sit there and listen to it and then come back to us with it. VITOUSEK: So that would be the medication component that happens before the contested case hearing, which is a requirement. So no matter what, they have to agree on the mediator, and they have to get together, and they have to try to mediate and work out a solution. And, you know, all the parties who are here now, I hope you could all come to the table and really work together and find something that works for everybody. You know, I'm sure everybody is going to have to give up a little bit, as the case always is, but if everybody can change a little bit, then it will be a much better project. That's a different, different procedure, you know, the mediation is different than the contested case. The contested case will follow the mediation, if necessary. And again, 16 EXHIBIT D our only options are whether we all do it and all take on that time commitment necessary to hear out the contested case, whether one of the commissioners does it, or whether DEFRANCO: Right, so that's my question is,just like what Commissioner Van Pernis is saying, this could take days, right, of sitting here, and it doesn't make sense for really all of us to do that; it makes sense to have somebody do that and then get back to us with a recommendation. That's the question, right? Whether we appoint someone VITOUSEK: (Indiscernible–simultaneous speech) DEFRANCO: —from the Planning Commission, or whether we hire somebody, or whether we go as a group. VITOUSEK: Yeah, and at the end of the day, no matter what happens, it all comes back to us. DEFRANCO: Right. VITOUSEK: The contested case hearing is—and our corp. counsel can correct me, if I'm wrong but the contested case hearing is more of an evidentiary process where they have the ability to bring (indiscernible–noise) swear people in, collect information,present information in a court-like proceedings to create a record that's going to be considered the overall merits of the project in determining whether or not grant or deny the SMA permit, and then we take that recommendation based on the evidentiary record established in the contested case hearing, and then we vote on whether to issue the permit or not. Is that correct? DEFRANCO: Well, I'm not comfortable with Commissioner Van Pernis doing that. I have sat on this commission for a while, and he can become very adversarial to people, and I think that if we are going to appoint someoneI appreciate him volunteering to do it, I know that's a huge time commitment, and I know he understands the process, but I'm not sure that I feel comfortable with that choice. SCHLUETER: Not to interrupt, I just would like to remind that we are still in fact finding, there is no motion on the floor, so the advocation VITOUSEK: there is. SCHLUETER: Oh, I'm VITOUSEK: Yep. ROY: There is a motion that's been seconded SCHLUETER: I apologize ROY: —for the entire LPC to be the hearings officer. 17 EXHIBIT D VITOUSEK: Okay. Commissioner Yates, yes. YATES: Would it be easier if I just withdrew the motion, and then we can start new? VITOUSEK: That, you know, that's totally up to you. I don't— YATES: on'tYATES: Well, I mean, because, you know, all of these suggestions kind of make sense, and I'm, you know, not thinking about, well, initially not thinking about the time involved in it and VITOUSEK: Okay. YATES: because I didn't think that it was going to get to all of that; I thought it would just be based on the information we have, whether we are going to approve this or not approve this. I didn't know that we were going to get into this whole discussion of having somebody come in and talk about this and somebody come in and talk about that. So I'm a little bit confused myself now. VITOUSEK: Yeah, yeah, absolutely, I understand. And ultimately, at the end of the day, it will come down to what you said, it will come down to this commission making a decision YATES: Okay. VITOUSEK: yes or no, whether to issue this SMA permit or not. The SILVA: Mike, I have a, I have a quick question, Mike, I'm just asking VITOUSEK: Go ahead. SILVA: Is this mediation about myself, Nancye, and George, and about being in the SMA? Is that what this mediation is about from the developer? VITOUSEK: The mediation is the three intervenors, you, Nancye, and George SILVA: Okay. VITOUSEK: —meet with the applicant and with the county SILVA: Okay. VITOUSEK: so that you guys can get together and figure out, is there a way that we can design this project that works for you, that works for them, is there something that we can change and we can alter to make it so it's reasonable SILVA: I, yeah, okay, I understand, I don't want to take up any more of everybody's time, I know everybody wants to get out here. But I mean, honestly, I don't see the mediation having to happen. This is just me speaking on my behalf. I don't see why there has to be a mediation 18 EXHIBIT D between ourselves and the applicant. I feel that we've given enough testimony on behalf of myself, Nancye Capri, and George, and the community to where the land commission should be able to make a decision on this. This is why we have these meetings. We've been sitting here all day. I understand that everybody wants to have their own say, but I don't understandI personally don't have the time, everybody doesn't have the time to sit on these meetings every day to see how we are going to work this out. And again, the problem isn't personally myself with the applicant; this is a community, this is a community decision, that I just don't understand why, why this has to be dragged on in that manner. VITOUSEK: So the reason why it's proceeding this way is because of the applications for a contested case. If there were no applications for a contested case, we would be making a decision on this today. But the fact that there are three applications for a contested case means we have to follow the regulatory procedures that dictate how a contested case is given, and that includes the mediation process, that includes the hearings officer, that includes the follow-up meeting. So because of the fact that we have applications for a contested case, that's why it becomes a longer, more drawn-out process. SMITH: I have to make a comment here. VITOUSEK: Yes. SMITH: We from the outside view you as our jury, as a neutral parry watching out for the interest of both the applicant and the citizenry, and then take that and put all of our inputs into the hands of the single individual in which case the commission gets only one considered opinion, not the opinion of all of us, not the direct input, you miss the emotionality of it, you miss the context between us, you just get a yay-or-nay kind of thing from somebody that we don't even know, and we've been here long enough now that we kind of know each other a little bit. And when it comes to the amount of time, we've spent days and days researching this and looking into it and finding out what the effects of ours, of this project will be on our lives. Thank you. VITOUSEK: I appreciate it, thank you, yes, we recognize that, but we do have got to maintain the rules, the contested case haring rules that SILVA: Mike, I'm sorry, I don't want to, I don't want to interrupt you. One last time. So if I withdrew my contested case—I've already stated my testimony, I've already stated my petition—if I withdrew my contested case, would you guys be able to make a decision with the counsel? VIOTUSEK: If all three parties withdraw a contested, withdraw their contested case haring at this point, and I think that we will have to move forward with the hearing on this agenda. SMITH: I haven't even spoken yet. VITOUSEK: Excuse me? So again, here we are with approved standings for a contested case, we have approved standings for a contested case because contested case applications were filed 19 EXHIBIT D with our office. Because those applications were filed, we now have to go down that route. This is the decisions that were made by the intervenors in the contested case. We approved standing in a contested case hearing. All we need to do now is figure out who is going to do the contested case haring, and we have a motion on the floor to have the entire commission do it unless that motion is withdrawn. Commissioner Yates, do you want, do you still wish to withdraw that motion? YATES: I was like Mr. Silva if that's going to make things easier and quicker, because I know that we do not want to be dragging this out. And I have to agree with Mr. Smith that we are going to have somebody else listen to it, we don't know who. And, you know, I'm just a little bit confused because I'm thinking that we will be the best people because we have all the information. You know, soI don't know. VITOUSEK: Again, we, we will get all of the information that comes out of the contested case. It's an opportunity for them to call witnesses to build a case about why this development shouldn't go forward. It's their opportunity to show, here, I have this site, this is evidence that this site will be impacted by this building. It's their opportunity to say, here, this many parking stalls, this many parking stalls will be taken away, this many stalls will be remained. It creates an evidentiary record; it's not just three minutes of public testimony saying I don't like this project because it's big. YATES: Right. VITOUSEK: It creates a record that we would consider when deciding whether or not to issue this permit. It's a level up from just your standard hearing practice where we are taking three minutes of public testimony and that's it. It's given them special standing to create this evidentiary record on why this project should not be there. YATES: Okay, so, you know, they've, they've all stated their case as to why, and they are not the first because we've listened to several other people on, you know, the whole idea of Alii Drive and, you knowI know this is a different project and, you know, a different property but, you know, we've all heard, we've all heard everything on many occasions, so I'm just not understanding why we need to go hire somebody else, get somebody else to do what we, you know, what we've done and heard previously. So that's why I'm thinking that it should just be something that we can handle without two, three, four, five days of testimony. I'm confused. VITOUSEK: Commissioner Van Pernis SMITH: I have not testified yet. I have a lot of information that nobody has heard at all VITOUSEK: That's, hold on, Mr. Smith,please don't interrupt, okay? We are trying to get through here. We are doing this because of your contested case hearing. That's where we are in the process. You requested standing so that we can give you the opportunity to have a contested case. We are just trying to schedule that. Commissioner Van Pernis 20 EXHIBIT D YATES: Okay, so, so the only way that they can present their contest- or this, you know, standing, or what we, contested case or standing, etcetera, is by having someone do the hearing? Is that what I'm understanding? VITOUSEK: So there has to be a contested case—well, no, so from here they go into mediation, the parties have to have a separate mediation. After the mediation is complete, if they still don't agree, then they go into a contested case haring, which is designed to collect information to give the commission to the opportunity to have all the resources, all the information that we need in order to make the right decision YATES: Okay, so VITOUSEK: the collection of the information will be overseen by a hearings officer, someone who can preside over the semi judicial proceedings and allow certain evidence to be collected, certain evidence perhaps not, it's up to the hearings officer to do there, you know. We can all serve as that, as your motion suggested, or one of us, or we can hire somebody. At the end of the day it's about collecting facts from the petitioners that will affect the outcome of the application. Once we have all those facts, it's the commission's decision to approve the permit or not. Maij a. JACKSON: Thank you, Chair. So I just want to describe a little bit about what happens after the hearings officer's process. The outcome after the contested case hearing is that the commission will get the hearings officer's report, so you will be able to read and see all the evidence that was provided at the contested case hearing, and then we schedule the application in front of the Leeward Planning Commission again after you've read the hearings officer's report, and then the public again has a chance to come and testify, and then you will make your decision based on the hearings officer's report, all of that evidence, and testimony from the public. VITOUSEK: Mr. Darrow. DARROW: Thank you, Mr. Chairman. One of the key facts about a contested case is that you have been granted standing because your interests are different than those of the general public. Not anybody can request to be an intervenor in a contested case. If you don't take that opportunity and this application down the line gets approved and you want to appeal that approval, but you did not stick with the contested case, you have forfeited your right to be able to take that to court. This is, this is the first process that you go through in this quasi-judicial process. So this is, it's different than just anybody showing up. Everybody does have a say as far as the general public, but there is a certain group of people that their interests are different or they are affected more than the general public. So it is important that you consider this. Now, mediation is an important factor. Before that wasn't put in the rules. The reason why it has been put in is because if the parties can come to some sort of agreement before it goes through this contested case, then everyone wins. You have an opportunity to work with people. I mean we've seen cases where the applicants have chosen to consider their property to go before the Public Access, Open Space, and Natural Resources Preservation Commission to be able to be preserved for the community. And that was, it was a result of a mediation that came up. And so 21 EXHIBIT D there are, even with these circumstances facing you now, there are possibilities that that might work for everybody. So if you can keep these in mind going forward. I personally, I've been a part of a number of contested cases. This one appears to be quite complex, so I would suggest that the commission consider a hearings officer so that—because it will take several days to go through this process. It's a lot of work, there is, there is a lot involved, and I'm not saying you folks can't do it; I'm just saying it's a lot of work. We at the Planning Department have a professional service list, that we have a number of hearings officers that we can choose from, and we would, if that is granted by the Planning Commission, we can look at hiring a hearings officer. But first thing's first is hopefully there can be some sort of resolution through the mediation. Anyway, thank you. SILVA: Thank you, Mr. Darrow, I appreciate that. Again, with the motion, real quick, that I was making, like what George said and even Ms. Yates, I was just stating after everything that we disclosed today, I was hoping that the Planning Commission after hearing the testimonies and the petitions and just some of the voices we've heard, I was hoping you guys may be able to make a decision, but you guys know what's best, and you guys DARROW: Unfortunately, yeah, by law the commission is held to this process SILVA: I understand that. DARROW: they cannot make a decision, yeah SILVA: I understand. DARROW: but ultimately, they are the ones that will make the final decision. SILVA: I understand. DARROW: Everything comes down to the Planning Commission. SILVA: Okay, thank you. I appreciate that. DARROW: Thank you. SMITH: Let me ask a question, if I may (indiscernible—simultaneous speech) VITOUSEK: Hold on. Mr. Van PernisMr. Smith, stop—Commissioner Van Pernis. VAN PERNIS: (Inaudible—microphone on mute) YATES: Unmute. VAN PERNIS: All right, first of all I have a question to Ms. Jackson. You refer to all the evidence coming in before the planning, before the commission officer, or the hearings officer 22 EXHIBIT D ends up in front of the council. Is that correct? And if so, who pays for all the transcripts and all of that sort of business? Or is it just a report of the hearings officer that's considered and his summary of the evidence? Because if there is three or four days of transcripts involved, you will get a huge expense. And I think Ms. Yates misunderstands that—because there is a contested case proceeding the rules require a contested case proceeding; it can't be waived and go straight to the commission. Thank you. VITOUSEK: Maija? JACKSON: Jeff, you can correct me, if I'm wrong on this, but I believe that the hearings officer's report is provided to the commission, and I thought that the report include the entire record of evidence, all exhibits and witness lists DARROW: Yeah, it's available but it can be voluminous. Normally, if the commissionI mean it is available, we can send it probably digitally. We had some extreme cases where literally it was four or five boxes full of information that was gathered through the contested case. Obviously, we can't just pass that around, but we were able to digitize it and make it available to the commission. But ultimately, the hearings officer comes out with a recommendation after reviewing the entire record and presents it to the commission. So there will be the department's recommendation, the hearings officer's recommendation, and ultimately the final decision by the Planning Commission. VITOUSEK: Commissioner Van Pernis. VAN PERNIS: (Inaudible—microphone on mute) VITOUSEK: It's on mute still. VAN PERNIS: All right, two things. First, who pays for the transcript, if we are going to get the complete record like Mr. Darrow refers to? We pay out thousands of dollars for a court reporter. And secondly, if this commission decides to hire an outside hearings officer, the Planning Department should not be in charge of that; they are a party. The selection of somebody that the commission feels is neutral or whatever, should be up to the commission and not the Planning Department. VITOUSEK: Is there a protocol for who the commission can select as hearings officer? DARROW: In the past, normally it has been the Planning Department that looks at the professional services list and sends out the request for availability of hearings officers, and then one is chosen out of the list. VITOUSEK: So, again, we've got the motion on the floor that the entire commission serve as the hearings officer for the contested case hearing. Is that motion still down, Commissioner Yates? DEFRANCO: Can we amend the motion? 23 EXHIBIT D VITOUSEK: Of course, yeah. DEFRANCO: I'd like to amend the motion to appoint a commission, a hearing commissioner for this, not, not have the whole commission listen to it. YATES: Okay, I'll go with that. I'll second that. VITOUSEK: Okay, motion by Commissioner DeFranco, second by Commissioner Yates, to amend the motion to hire a hearings officer for the proceedings. Discussion? YATES: Yeah, with that being said, I'm just a little confused because I know this is not I mean, you know, we've, you know, had hearings on different projects along Alii Drive, so I'm just kind of a little, I'm kind of a little concerned that, you know, we are spending so much time on this one when we've—I don't know, I don't know if it's proper to say or not, but—when we've done others, and yet, we are like back at square one of where, of others that we have DEFRANCO: Faye, the problem is is that they have filed and been granted standing, so it's a process that has to go through now. We have to respond YATES: Okay. DEFRANCO: with that process. And in the end, it all comes back to us, it goes before us again. But that's the reason that this is happening. YATES: Okay. VITOUSEK: And then again, it may not come back to us, you know, they may change the project based on the mediation, they may work something out, they may find mutually agreeable solution, you know, fingers crossed, and we may not see this project. We may see a different project that everybody in the community and the applicant agree on. Sothis is just getting that ball rolling towards that. There are a motion and a second—Commissioner Van Pernis, discussion? VAN PERNIS: Can you hear me? VITOUSEK: Yes. VAN PERNIS: First of all, I think that this is a rare enough event, contested case hearing, where the Planning Department should not be involved in—since they've made a recommendation involved in appointing a hearings officer, and I don't think it should be limited to a list of unknown people that they maintain. I think the motion might be modified to require somebody from Kona to be the hearings officer, and also that the cost of preparing the transcript and records be addressed. Thank you. 24 EXHIBIT D VITOUSEK: Thank you. It seems like we have the, budgeted, for that expense. There's been no contested case hearings in the last three years or so that I've been a part of it, so I imagine there is budget. Mr. Darrow. DARROW: So the Planning Department does allot money for the hearings officer. They do not pay for the transcripts for the parties. They pay for the transcripts for the department, but the parties are, need to pay for their own transcripts, and transcripts can be very costly. So they need to keep that in mind. VITOUSEK: Nancye, is there another question? You've got to unmute. CAPRI: (Inaudible—microphone on mute) VITOUSEK: You are on mute, Nancye. CAPRI: Can you hear me? VITOUSEK: Yes. CAPRI: Do we get to have any input or, on this as the petitioners? Because my thing is, so I don't understand, you have somebody that's volunteering, the commission as a whole doesn't want to take the time, and so, do we get any say on who hears? VITOUSEK: No, no, not this part of this decision; this is going to be up to the Planning Commission and CAPRI: Okay. VITOUSEK: —and, yeah. CAPRI: Thank you. SCHLUETER: Parties will have a say in agreeing upon the mediator for the prehearing mediation. CAPRI: Okay, thank you. VITOUSEK: Yeah, different procedures. Right now, this is the commission, commission business. CAPRI: Thank you. VITOUSEK: So we've got a motion to amend. I'd like to take a roll call vote on that motion. Motion to amend to hire a hearings officer. ROY: Commissioner DeFranco? 25 EXHIBIT D DEFRANCO: Aye. ROY: Commissioner Yates? YATES: Aye. ROY: Commissioner Kanuha? KANUHA: Aye. ROY: Commissioner Van Pernis? VAN PERNIS: Abstain. ROY: And Chair Vitousek? VITOUSEK: Aye. ROY: Okay, amended motion passes, four to one. VITOUSEK: Let's take a, let's take a vote on the motion because that motion amended the motion on the floor, and now let's take a vote on the main motion. ROY: All right, one second. Commissioner Yates? YATES: Aye. ROY: Commissioner Kanuha? KANUHA: (Inaudible "aye"—microphone on mute) VITOUSEK: That was, that was an aye vote. KANUHA: (Raises hand in the affirmative) ROY: Commissioner DeFranco? DEFRANCO: Aye. ROY: Commissioner Van Pernis? VAN PERNIS: (Inaudible "abstain"—microphone on mute) VITOUSEK: That was an abstain vote. 26 EXHIBIT D ROY: And Chair Vitousek? VITOUSEK: Aye. ROY: So the motion to appoint a hearings officer pass, four to one. VITOUSEK: Okay. So, Rule 4-6 requires all parties to a contested case hearing to participate, in good faith, in mediation. Staff of the Planning Department will follow up with the parties to schedule a date. And you guys can handle that off-line. That concludes item 2. Thank you everybody for your time. Best of luck with mediation, and I hope you can all work it out and come back with a great project that everybody is behind. Mahalo. This item was adjourned at 2:23 p.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 27 EXHIBIT D