HomeMy WebLinkAboutIntervenor Michael Matsukawa Esq.MICHAEL J. MATSUKAWA, 1885
75-5751 Kuakini Highway, Room 201
Kailua-Kona, Hawaii 96740
Telephone (808) 329-1385
Email: kapulu@msn.com
Attorney for Intervenor
JEFFREY GOMES
BEFORE THE WINDWARD PLANNING COMMISSION
COUNTY OF HAWAII
STATE OF HAWAII
In Re: Application of Connections )
New Century Public Charter School )
for a Special Permit on land in the )
State Land Use Agriculture District )
Ponahawai, Kukuau 2d, South )
Hilo, County and State of Hawaii )
(TMK 2-5-006:141) )
SPP 12-000138
(on remand after appeal)
INTERVENOR'S BRIEF
ON SCOPE OF HEARING
ON REMAND; CERTIFICATE
OF SERVICE
INTERVENOR'S BRIEF
ON SCOPE OF FURTHER HEARING ON REMAND
The Windward Planning Commission (the "Commission") requested
the parties to respond to the following question:
• "Whether the Commission should make a [new or amended]
decision on the record as presented or open the record and
consider new evidence?"
As a preface, Intervenor directs the Commission to the Interme-
diate Court of Appeals' decision that was filed on January 31, 2020 as to points
that require more clarity on the part of the Commission's final decision and
order.
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A. POINTS FOR CONSIDERATION ON REMAND
First, the Court resolved "technical" arguments that had been
raised on appeal regarding (a) the decision criteria for a Special Permit,' (b) the
binding effect and interpretation of the County of Hawaii zoning ordinance as
to the kinds of activity that are permitted in the State Land Use Agriculture
District without a Special Permit 2 and (c) the implementation of the County of
Hawaii General Plan.3
Second, the Court then focused on the Commission's findings and
conclusions that were assigned as error on appeal and determined whether the
evidence in the record supports or does not support the Commission's decision
and order. These points are:
1. The school's adverse effect on surrounding properties (Point
1, Pages 18 to 23);
2. The burden placed on public agencies to support the school
and affected communities (Point 2, Pages 23 to 27);
3. The unusual conditions, trends and needs that have arisen
since the land was assigned to the State Land Use Agriculture District,
1 See Decision, Pages 13 to 18 regarding Section 205-6, HRS, the Land
Commission's rule 15-15-95(b) and the County of Hawaii's Rules of Practice
Rule 6-3(b)(5).
2 See Decision, Pages 13 to 14 regarding the standard to use in deter-
mining if a particular use is "permissible" in the State Land Use Agriculture
District.
3 See Decision, Pages 32 to 39 regarding the Commission's duty, authority
and power to implement the County of Hawaii General Plan.
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specifically the "restrictive" interpretation and application of this
provision (Point 3, Pages 27 to 29);
4. The "conundrum" regarding the suitability of the land for
agriculture use in context of the applicant's proposal to incorporate
agriculture activity in its proposed project (Point 4, Pages 29 to 32);
5. The uses contemplated by the General Plan that are allowed
in low density urban areas as "ancillary" activity (Point 5, Pages 32 to
42);
6. The need for more specificity in the Commission's findings
and conclusions (Page 43).
B. CASE POSTURE ON REMAND
The Commission may address the foregoing points, within the
limits established by the Court's ruling, and the Commission also has the
discretion to address points that the Court did not address, based on the
existing record and without having to reopen the evidentiary portion of the
hearing to receive additional evidence. See discussion in Part D, below.
The Commission's authority on remand is similar to that of a
circuit court after its decision is vacated on appeal and the case is sent back to
the circuit court on remand for further action. Hawaii precedent is that the
posture of the case on remand is restored to its original status as it was in
immediately before the decision -maker rendered its decision the first time. See
Wall v. Focke, 22 Haw. 2231, 223 (1914); Bailey Bakery, Ltd. v. Borthwick, 38
Haw. 83 (1948) (per curiam). In other words, the "clock is turned back" to the
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date when the Commission closed its hearing, considered arguments presented
and entered into executive session to begin its deliberations.
B. ADDITIONAL EVIDENCE REQUIRED, IF ANY
The Commission can amend its findings and conclusions
based on the existing record without opening its proceeding to take additional
evidence. If, for example, the Commission needs information that pertains to
Point 2 (the 60 gallons per day standard), the Commission can "comb" its
record, including the expert's report on water consumption, to identify the
source of that standard and/or can consider published agency materials that
pertain to Point 2.
Point 2: Page 25. Use of the 60 gallons per day standard, because
it is not clear "where that figure came from." However, the Court added
that the "Commission may nonetheless reconsider any weight it assigned
to" Finding No. 49.
2. The Commission has the discretion to amend its other
findings and/or conclusions based on the existing record as well and without
taking further evidence that pertain to:
Point 3: Pages 28 to 29. Support for a "restrictive" interpretation
of the change in "conditions, trends and/or needs" decision criterion;
Point 4: Pages 31 to 32. Assessment of the applicant's proposal
to employ agricultural activity on the land as part of the school's
operations and the effect on the "suitability" for agriculture use decision
criterion;
Point 5: Page 39. Explanation of why a school is not consistent
with activity on land in a low density urban area (as an "ancillary
community and public use" or "neighborhood ... commercial use") under
the General Plan decision criterion;
Point 6: Page 43. Refinement of the Commission's decision by
articulating the specific decision criterion relied upon (or multiple
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decision criteria relied upon) as opposed to reliance solely on the "totality
of the evidence."
3. To the extent that the Commission might need additional
information on legislative history or agency practice (a) as to Point 3 to support
its interpretation of the change in "conditions, trends and/or needs" decision
criterion or (b) as to Point 5 to support its interpretation of the General Plan
decision criterion (allowable "ancillary" activity in low density urban areas), the
Commission can obtain that information from public sources (if not already in
the existing record) without taking further evidence, unless such information
can be obtained only by soliciting testimony from appropriate agency officials.
D. UNADDRESSED SUBJECTS
As is stated above, the Court limited its ruling to the issues set
forth in its opinion. As such, on remand and pursuant to Wall v. Focke, supra,
and Bailey Bakery, Ltd. v. Borthwick, supra, the Commission may address
points that the Court did not address without having to reopen the evidentiary
portion of the hearing to receive additional evidence.4 For example, in his
Answering Brief, Intervenor directed the Court to the Public Natural Resource
Trust, which is based on the State Constitution, Article XI, Section 1, but the
Court did not address this argument. Arguably, the Court assumed that the
4 No doubt, some might argue that the Commission should exercise
caution if the Commission were to entertain changing a finding or conclusion
that the Court did not address on appeal. One might argue that it might be
error to altogether change a prior finding or conclusion that had been made by
earlier commissioners without good cause. Of course, the Commission should
not be deterred from making new and additional findings or conclusions if it
can set forth justifiable reasons for the same.
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Commission would, on remand, address this argument and supplement its
findings and conclusions accordingly, without taking further evidence thereon.
Also, in the original hearing, Intervenor had asked the Commission
to consider the impacts that the applicant's project would have on Kaumana
Cave and the protective measures that must be employed to ensure that
Kaumana Cave, which is a "surrounding property," is not adversely affected by
the applicant's project (which is designed to take place in stages over a period
of years). Pursuant to this request, the Commission had to determine whether
mitigation measures do in fact exist and if so, can and will provide the requisite
degree of protection (if at all) for Kaumana Cave over the entire life of the
applicant's project. The Commission's Finding No. 31 (Page 7) and Finding
Nos. 46 and 47 (Page 10) do not specifically address these impacts except to
say that if proper mitigation measures are employed, those impacts will
probably be minimized (but without more explanation).5
CONCLUSION
The only evidentiary matter that the Commission might want to
address is the 60 gallons per day standard (Point 2). However, that standard
may already be imbedded in expert's report on water consumption and/or in
5 Intervenor did not file a cross-appeal before the circuit court or the Inter-
mediate Court of Appeals on this point in light of the Commission's original
decision to deny the applicant's request for a Special Permit. On remand, this
issue remains open for discussion since the record contains evidence on this
point. Nothing precludes Intervenor from seeking relief on this point on
remand.
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the Department of Water Supply's published standards and if so, there would
be no need to take evidence on the same by testimony.6
The Commission can address the other points without taking
additional evidence. And, of course, the Commission has the discretion to
address issues that the Court did not address if the Commission believes that
is necessary. Wall v. Focke, supra, and Bailey Bakery, Ltd. v. Borthwick, supra.
Dated at Kailua-Kona, Hawaii: July 22, 2021.
JEFFREY GOMES, Intervenor
By
Mich a J. Matsukawa
His Attorney
6 The Intermediate Court of Appeals stated that it could not find that
standard in the record. However, the Court, prior to entering its decision on
appeal, did not ask the parties for supplemental briefing on this subject.
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BEFORE THE WINDWARD PLANNING COMMISSION
COUNTY OF HAWAII
STATE OF HAWAII
In Re: Application of Connections )
New Century Public Charter School )
for a Special Permit on land in the )
State Land Use Agriculture District )
Ponahawai, Kukuau 2d, South )
Hilo, County and State of Hawaii )
(TMK 2-5-006:141) )
SPP 12-000138
(on remand after appeal)
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
I certify that I served a copy of the attached document on the
following individuals by mailing said copy to them at their addresses noted
below, postage prepaid, at the U.S. Post Office at Kailua-Kona, Hawaii on July
- 2021 and, further, emailed said copy to their respective email addresses
noted:
TED H.S. HONG
P.O. Box 4217
Hilo, HI 96720
ted@tedhonglaw.com
JEAN K. CAMPBELL
101 Aupuni St., #325
Hilo, HI 96720
Jean.Campbell
@hawaiicounty.gov
CARTER K. SIU
235 S. Beretania St., Room 304
Honolulu, HI 96813
carter.k.siu@hawaii.gov
MELISSA DACAYANAN
Planning Dept, County of Hawaii
101 Pauahi Street
Hilo, HI 96720
Melissa. Dacayanan
@hawaiicounty.gov
Dated at Kailua-Kona, HI: July ?W
,2021.
A)A t-- 4�
Michael JjMatsukawa
Attorney for Intervenor
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