HomeMy WebLinkAboutApplicant Ted Hong Esq. CBESS & ConnectionsJuly 28,2021Kp
DEP? w
Hon. John R. Replogle
Chair ED
Windward Planning Commission
REC'D HAND DELI :E
Aupuni Center
101 Pauahi Street, Suite 3
TED H.S.HONG Hilo,Hawaii 96720
ATTORNEY AT LAW,ULC
RE: Remand of SPP 12-000138 to the Windward Planning
EMPLOYMENT, Commission
WORKPLACE LAW&LITIGATION Applicant: Connections New Century Public Charter
School/Community Based Education Support
P.O.Box 4217,Hno,HI 96720 Services(CBESS)
TELEPHoNE: (808)933-1919 Tax Map Key: 2-5-006:141
FAX:(808)935-8281
Dear Chairperson Replogle and Windward Planning Commission
Members:
The purpose of this letter is to respond to Mr. Replogle's email letter dated
July 6,2021. I am submitting this letter-brief response on behalf of
CBESS. My understanding is that legal counsel for Connections New
Century Public Charter School,will join in my response.
I. OBJECTION
My client and I appreciate the opportunity of addressing this issue,
however, and with all due respect, the Commission and the Planning
Department have their own, separate, legal counsel from the Office of the
Corporation Counsel. I am sure that in the Executive Session held a few
weeks ago addressed the issue of how the Commission should proceed.
My objection is giving legal advice to the Commission. I am having to
invoice my client for the time it takes to submit this letter-brief on an issue
that the Commission thoroughly discussed and decided with its legal
counsel.
From my perspective, it appears that the Commission is asking CBESS
what it should do to foreclose CBESS from raising other grounds for
appeal from what could be the next denial of my client's permit
application.
I object to this process and certainly do not feel I should be placed in the
position of contradicting my colleagues at the Corporation Counsel,or
prejudicing my client's appeal.
P.O.Box 4217,Hao,HI 96720
TELEPHONE: (808)933-1919
FAx: (808)935-8281
WEB:TEDHONGLAW.COM
II. EXECUTIVE SUMMARY
The Windward Planning Commission is NOT required to hold an
evidentiary hearing on remand. There are three(3) factors identified by
the Intermediate Court of Appeals which were vacated. From the
perspective of CBESS,those three(3)issues should be considered as
favorable to the applicant,Connections/CBESS. The Commission should
NOT conduct an evidentiary hearing, including taking new and additional
testimony and documents concerning the three(3) factors the Intermediate
Court of Appeals ruled in my Client's favor.
III. LAW and ANALYSIS
A. What are the requirements of a judicial"Remand."
In May of 2021,the Hawaii State Supreme Court issued a decision
concerning the scope of remanding proceedings to an administrative
agency. In re Mater of Hawai'i Electric Light Company, Inc., 149
Hawai'i 239,487 P.3d 708(2021). Originally, the administrative
agency's, Public Utilities Commission("PUC"),decision was vacated and
remanded back to the PUC. Id., 149 Hawai'i at 240,487 P.3d at 709.
The PUC read the Court'9original decision to mean that the proceedings
on remand would be a complete"do over." Id. 149 Hawai'i at 240-241,
487 P.3d at 709-710.
The Hawaii State Supreme Court vacated and reversed the"do over." Id•,
149 Hawai'i at 242,487 P.3d at 711. The decision is particularly
noteworthy for its unusually direct and blunt language. It began by citing
the general rule concerning"remanded"proceedings:
On remand, a trial court must closely adhere to the true
intent and meaning of the appellate court's mandate. See
State v. Lincoln, 72 Haw. 480,485, 825 P.2d 64,68 (1992)
quoting 5 Am.Jur.2d Appeal and Error§ 991 (1962 &
Supp.1991)(footnote omitted)). Likewise,administrative
agencies are bound by reviewing courts' remand orders.
See Fed. Power Comm'n v. Pac. Power&Light Co., 307
U.S. 156, 160, 59 S.Ct. 766, 83 L.Ed. 1180(1939).
Emphasis added)
Matter of Hawai7 Elec. Light Co., Inc., 149 Hawai'i 239,
241,487 P.3d 708, 710, 2021 WL 2071970(2021).
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The State Supreme Court then identified what an agency must consider
when a case or decision is remanded back:
The"true intent and meaning"of a reviewing court's
mandate is not to be found in a solitary word or
decontextualized phrase,but rather in the opinion,as a
whole, read in conjunction with the judgment and
interpreted in light of the case's procedural history and
context. See Frost v. Liberty Mut. Ins. Co., 813 S.W.2d
302, 305 (Mo. 1991)("It is well settled that the mandate is
not to be read and applied in a vacuum. The opinion is part
of the mandate and must be used to interpret the mandate
cleaned up). (Emphasis added)
Matter of Hawaiii Elec. Light Co., Inc., 149 Hawai'i 239,
241,487 P.3d 708, 710, 2021 WL 2071970(2021).
The factors/issues the Intermediate Court of Appeals reversed and
remanded in its decision, Connections, et al., v. Windward Planning
Commission, et al., 146 Hawai'i 155,456 P.3d 1002,2020 WL 508136
2020),does not require the Windward Planning Commission to conduct
an evidentiary hearing and allow the introduce additional testimony and
documents.
B. What issues did the ICA rule in favor of the Applicant?
In Connections New Century Pub. Charter Sch. v. Windward Planning
Comm'n, 146 Hawai'i 155, 156,456 P.3d 1002, 1003,2020 WL 508136
Ct. App. 2020),the Intermediate Court of Appeals concluded:
For the foregoing reasons,the Circuit Court's July 14,
2015 Order Affirming and January 13,2017 Final
Judgment and the Planning Commission's May 12,2014
Decision and Order are vacated,and this case is
remanded to the Planning Commission for further
proceedings consistent with this Memorandum Opinion.
Emphasis added)
Connections New Century Pub. Charter Sch. v. Windward
Planning Comm'n, 146 Hawai'i 155, 156,456 P.3d 1002,
1003, 2020 WL 508136,at*19(Ct. App. 2020).
The appeals court vacated the Third Circuit Court's decision. "Redo-ing'
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or conducting an evidentiary hearing would be the same mistake the PUC
committed in Matter of Hawaii Elec. Light Co., Inc., 149 Hawai'i 239,
487 P.3d 708, 2021 WL 2071970(2021). The Intermediate Court of
Appeals identified the three issues that the Applicant successfully
appealed:
1)CONNECTIONS/CBESS can meet the water
commitments(Findings of Fact#21,48 and 50).
The Intermediate Court of Appeals held:
There is nothing in the record to suggest that
Connections would not or could not be held to its
commitments.FOFs 21,48,and 50 are clearly erroneous
and not supported by the evidence. FOF 49 is not clearly
erroneous, as there was no definitive evidence in the record
that Connections would be able to develop potable water
sources. However, the Planning Commission may
reconsider any weight it assigned to this finding in light of
the Planning Director's testimony regarding the burden
placed on applicants for special permits at this stage and
Connection's agreement to limit the number of persons on
the campus to the amount of water it can obtain. COL 51
is also vacated in light of the above. (Footnote omitted)
Emphases added)
Connections New Century Pub. Charter Sch. v. Windward
Planning Comm'n, 146 Hawai'i 155, 156,456 P.3d 1002,
1003,2020 WL 508136,at*12 (Ct. App. 2020).
On remand,the Commission is required to find in the Applicant's favor
including: (a)The available County water supply is sufficient to support
the first phase of the proposed development(FOF#21; Connections,
supra,at *11);(b) the available water, based on the estimates provided by
Connections/CBESS would NOT unreasonably burden the Department of
Water Supply(FOF#48; Connections, supra,at *11);and(c)the potable
water limitations and mitigation proposals are sufficient(FOF#50;
Connections, supra,at *11).
The Intermediate Court of Appeals decision specifically vacated and
reversed FOF 63,which was the Commission's unlawful finding that the
School could not adhere to the County imposed water limitations. The
Commission is NOT required to take new evidence on this issue.
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2. CONNECTIONS/CBESS' proposed use is suited for
agricultural purposes(FOF 55).
The Intermediate Court of Appeal also held:
We conclude that it would be an absurd result to read
the"unsuited for agricultural use" consideration so
strictly and narrowly,particularly under circumstances
such as those presented here, to deny a special permit
due to an applicant's attempt to incorporate an
agricultural component into its proposed use. See,e.g.,
Morgan v. Planning Dep't, Cty. of Kaua'I, 104 Hawaii
173, 181, 86 P.3d 982, 990(2004) (planning commission is
required to give effect to the policies and objectives of land
use statutes and not to interpret them in a manner that
would lead to an absurd result).
Accordingly, in view of the reliable,probative,and
substantial evidence on the whole record,and in light of the
aforementioned considerations,we conclude that FOF 55
must be vacated in order for the Planning Commission
to assess the evidence in this light. (Emphases added)
Connections New Century Pub. Charter Sch. v. Windward Planning
Comm'n, 146 Hawai'i 155, 156,456 P.3d 1002, 1003,2020 WL 508136,
at *14-15 (Ct. App. 2020).
The plain and unambiguous language of the ICA's decision requires the
Commission to find that Connections/CBESS' proposal to include an
agricultural component and conservation practices as part of its curriculum
would be well"suited for agricultural use."
The Intermediate Court of Appeals decision specifically rejected the
Commission's FOF 55,which was the Commission's unlawful finding
that the School's agriculture focus made it"unsuitable for agricultural
use." The Commission is NOT required to take new evidence on this
issue.
3. CONNECTIONS/CBESS' school is a permissible use in
a low density urban area,consistent with the County's
General Plan. (FOF#59 and 62; COL#5)
The Intermediate Court of Appeals clearly rebuked the Commission's
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original decision:
However, a plain reading of the General Plan does not
forbid or even discourage the building of school
facilities in low density urban areas. There is no
satisfactory explanation provided as to why building a
school in a low density urban area is contrary to the
General Plan. The general goals of the General Plan
stated above do not support the proposition that
community concern generally can serve as a veto over a
special use permit. How much "community concern,"
however calculated, is required before a special permit
is found to be contrary to the general plan is unclear
and is ripe for arbitrary and capricious abuse. Given the
sparsity of factual findings or explanation in the Planning
Commission's decision, this Court has no way to
meaningfully evaluate the Planning Commission's
conclusion regarding the permit being contrary to the
general plan. See Kauai Springs II, 133 Hawai`i at 164, 324
P.3d at 974 (an agency's findings should allow the
reviewing court to track the steps by which the agency
reached its decision). Without additional findings by the
Planning Commission,the Planning Commission's
FOFs 59 and 62, finding that the Development would be
contrary to the General Plan,are arbitrary and
capricious. COL 5, stating that the Development is not
consistent with the County General Plan, must also be
vacated. (Emphases added)
Connections New Century Pub. Charter Sch. v. Windward Planning
Comm'n, 146 Hawaii 155, 156,456 P.3d 1002, 1003, 2020 WL 508136,
at *18 (Ct. App. 2020).
Connections/CBESS plans can be built in a low density urban area, under
the County's General Plan. The Court clearly rejected NIMBY type of
objections or testimony and ruled it was impermissible. Clearly, the
skewing or slanting of factors in favor of a few influential friends and
neighbors, was unequivocally rejected on appeal. No further fact finding is
needed, as a matter of law.
C. "Vacate"means a reversal.
The Intermediate Court of Appeals opinion, which"vacated" the Planning
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Commission's unlawful finding, is not only a rejection of the Planning
Commission's Findings of Fact and Conclusions of Law,but the effect is
that the Planning Commission is directed to rule in the favor of the
Applicant. Recently, in Local 402, Am. Pharamond Conille v. Council 93,
Am. Fed'n of State, County, &Mun. Employees,No. 17-CV-11495,2021
WL 2383021 (D. Mass. June 10,2021),the court noted:
Turning to Plaintiffs'argument with respect to the First
Circuit's order to"vacate" rather than"reverse"Count
III,such contention does not warrant a different
outcome. The First Circuit vacated the district court's
dismissal of Count III because the internal union appeal had
not yet concluded. Conille,935 F.3d at 9. "Although the
word reverse shares vacate's meanings of to annul and
to set aside,it has an additional, more extensive
definition: 'No reverse a judgment means to overthrow
it by contrary decision, make it void,undo or annul it
for error.' "Kelso v. U.S Dep't of State, 13 F. Supp. 2d
12, 18 (D.D.C. 1998)(internal quotation marks and
citations omitted)(emphasis removed). The Court does not
consider the Circuit's decision to reverse and remand Count
II and,by contrast, its decision to vacate and order
dismissal without prejudice Count III to be an unintentional
differentiation. (Emphases added)
Local 402,Am. Pharamond Conille v. Council 93,Am.
Fed'n of State, County, &Mun. Employees,No.
17-CV-11495,2021 WL 2383021,at *4(D. Mass.June 10,
2021).
Similarly, in In re IBM Credit Corp.,222 N.C.App.418, 731 S.E.2d 444
2012),the appeals court also addressed what"vacate"and"reverse"in
appeal means:
In IBM II,as discussed above,we again remanded the case
to the Tax Commission for reconsideration. The final
mandate is stated simply as"Reversed and remanded."See
IBM II,201 N.C.App. at 354, 689 S.E.2d at 494. The Tax
Commission may have construed the fact that IBMI
used the term"vacate"and that IBM II used the word
reverse" as creating some sort of meaningful difference
in the portions of its final decision approved or
disapproved by this Court.But a full reading of IBM II
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reveals that the entire second final decision by the Tax
Commission was reversed.IBM II did not approve some
portions of the second final decision and disapprove
other portions. As a practical matter,the terms"vacate
and"reverse"are synonymous as used in most cases.
The term"reverse"is defined as"[t]o overthrow,
vacate,set aside, make void,annul,repeal,or revoke;
as,to reverse a judgment,sentence,or decree,of a lower
court by an appellate court,or to change to the contrary
or to a former condition."Black's Law Dictionary 1319
6th ed.1990) (emphasis added); See D&W,Inc. v. *427
City of Charlotte,268 N.C. 720, 722, 152 S.E.2d 199, 202
1966)("To reverse an injunction is to vacate it.")
In re IBM Credit Corp.,222 N.C.App.418,426-27, 731
S.E.2d 444,448-49(2012).
In the present case,as it relates to the three(3)issues that the Intermediate
Court of Appeals"vacated"given the plain language of the appeals court's
decision, there can be no doubt that the Commission erred and should have
ruled in favor of the Applicant, CONNECTIONS/CBESS.
IV. CONCLUSION
The instructions of the Intermediate Court of Appeal, in Connections New
Century Pub. Charter Sch. v. Windward Planning Comm'n, 146 Hawai'i
155,456 P.3d 1002,2020 WL 508136 (Ct. App. 2020),were clear. The
Commission should NOT hold an evidentiary hearing to accept additional
testimony and documents. The Commission is required to make a factual
and legal determination that the proposal brought by Connections/CBESS
fulfills the requirements set out in Sec. 205-6,Hawaii Revised Statutes and
Rule 6 of the Windward Planning Commission.
Thank you for your kind attention to this matter.
2.tfideily Al
Hong
cc: CBESS
Carter Siu, Esq.
Michael Matsukawa,Esq.
Jean K. Campell,Esq.
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