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ICA Record on Appeal - Part 1 of 4
Electronically Filed Intermediate Court of Appeals CAAP-17-0000050 25-APR-2017 11:04 AM CAAP-17-0000050 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-223 SUPPORT SERVICES; ) CONNECTIONS NEW CENTURY ) APPEAL FROM: CHARTER SCHOOL, ) 1) DECISION AND ORDER AFFIRMING WINDWARD Applicants-Appellants, ) PLANNING COMMISSION, COUNTY OF HAWAITS FINDINGS vs. ) OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER WINDWARD PLANNING ) DENYING SPECIAL PERMIT COMMISSION, COUNTY OF ) APPLICATION NO. SPP 12-138, HAWAII; DEPARTMENT OF ) FILED ON JULY 14, 2015; PLANNING, COUNTY OF HAWAII, ) 2) SECOND AMENDED FINAL JUDGMENT FILED ON JANUARY Appellees-Appellees, ) 13, 2017 And ) SANDRA SONG, in her capacity as ) THIRD CIRCUIT COURT Hearing Officer; JEFFREY GOMES, ) Intervenor; SIDNEY FUKE, ) Intervenor's Representative; ) HONORABLE RONALD IBARRA TERENCE YOSHIOKA, Intervenor's ) HONORABLE MELVIN H. FUJINO Representative, ) Intervenors-Appellees. ) RECORD ON APPEAL (Part 1 of 5) TED HONG, ESQ. (3569) email: teda-tedhonglaw.com P.O. BOX 4217 Hilo, HI 96720 Phone: (808) 933-1919 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES GREGG M. USHIRODA, ESQ. (5868) email: Gregg.M.Ushirodaa-hawaii.gov HOLLY T. M. SHIKADA, ESQ. (4017) Holly.T.Shikadaa-hawaii.gov Deputy Attorneys General State of Hawaii 235 S. Beretania Street, Room. 304 Honolulu, HI 96813 Phone: (808) 586-1255 Attorneys for Applicant-Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL ANGELIC MALIA HO, ESQ. (10550) email: malia.hoa-hawaiicounty.gov Deputy Corporation Counsel 101 Au pu n i Street, Suite 325 Hilo, HI 96720 Phone: (808) 961-8251 Attorney for Appellees WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII; and Intervenor-Appellee SANDRA SONG, in her capacity as Hearing Officer ALAN M. OKAMOTO, ESQ. (1826) email: alana-noyhawaii.com Nakamoto, Okamoto & Yamamoto 187 Kapiolani Street Hilo, HI 96720 Phone: (808) 961-0641 Attorney for Intervenors-Appellees SIDNEY FUKE and TERENCE YOSHIOKA MICHAEL J. MATSUKAWA, ESQ. (1885) email: kapulua-msn.com 75-5751 Kuakini Highway, Suite 201 Kailua-Kona, HI 96740 Phone: (808) 329-1385 Attorney for Intervenor-Appellee JEFFREY K. GOMES INDEX (To Record on Appeal - COMMUNITY BASED EDUCATION SUPPORT SERVICES; CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL, Applicants-Appellants, vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, DEPARTMENT OF PLANNING, COUNTY COUNTY OF HAWAII, Appellees, And SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor, SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellee.) PART 1 OF 5 PAGES Flysheet to Record on Appeal 1 - 3 Index to Record on Appeal 4 - 5 Index of Imaged Documents 6 - 30 Imaged Documents 31 - 1739 Minutes 1740 - 1756 Certificate of Court Clerk 1757 - 1758 PART 2 OF 5 Flysheet to Record on Appeal 1 - 3 Index of Record on Appeal 4 - 5 Index of Imaged Documents 6 - 30 Index to Windward Planning Commission's Record on Appeal 31 - 54 (SP 12-000138) Windward Planning Commission's Record on Appeal 55 - 1335 (SP 12-000138), Part 1 Certificate of Court Clerk 1336 - 1337 PART 3OF5 Flysheet to Record on Appeal 1 - 3 Index to Record on Appeal 4 - 5 Index of Imaged Documents 6 - 30 Index to Windward Planning Commission's Record on Appeal 31 - 54 (SP 12-000138) Windward Planning Commission's Record on Appeal 55 - 1653 (SP 12-000138), Part 2 Certificate of Court Clerk 1654 - 1655 PART 4 OF 5 Flysheet to Record on Appeal 1 - 3 Index to Record on Appeal 4 - 5 Index of Imaged Documents 6 - 30 Index of Windward Planning Commission's Record on Appeal 31 - 54 (SP 12-000138) Windward Planning Commission's Record on Appeal 55 - 1520 (SP 12-000138) Part 2, continued Certificate of Court Clerk 1521 - 1522 PART 5OF5 Flysheet to Record on Appeal 1 - 3 Index of Record on Appeal 4 - 5 Index of Imaged Documents 6 - 30 Imaged Documents (SEALED) 31 - 41 Certificate of Court Clerk 42 - 43 RECORD ON APPEAL: The original imaged record in CIVIL NO. 14-1-223, Circuit Court of the Third Circuit, State of Hawai'i, Fourth Division, herein, contains all scanned images of the original documents (except were noted) entered of record in this matter. $#1 COMPUTERIZED INDEX 3CC14-1-000223 06-09-2014 CIVIL 02 COMMUNITY BASED EDUCATION SUPPHONG, TED H S A3569 AGENCY APPEAL 503 CONNECTIONS NEW CENTURY PUBLICSIU, CARTER K. K. S. A7313 WINDWARD PLANNING COMMISSION, PATEL, DANNY A9578 DEPARTMENT OF PLANNING, COUNTY SANDRA SONG, IN HER CAPACITY A JEFFREY DOMES, INTERVENOR MATSUKAWA, MICHAEL J A1885 SIDNEY FUKE, INTERVENOR' S REPROKAMOTO, ALAN M A1826 TERENCE YOSHIOKA, INTERVENOR'SOKAMOTO, ALAN M A1826 PAGE 2014 JUN 09 CIVIL INFORMATION SHEET O OOf 1 JUN 09 NOTICE OF APPEAL TO CIRCUIT COURT; STATEMENT 00017- 2 OF THE CASE; EXHIBITS "1" - "2" ; DESIGNATION OF CONTENTS OF RECORD ON APPEAL; ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL; CERTIFICATE OF SERVICE JUN 12 RETURN AND ACKNOWLEDGMENT OF SERVICE 0 003 3 (WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII SERVED ON 6/10/14 THROUGH DARYN ARAI, PLANNING PROGRAM MANAGER, WITH NOTICE OF APPEAL TO CIRCUIT COURT; STATMENT OF THE CASE; EXHIBITS rrl, rr-112 ; n DESIGNATION OF CONTENTS OF RECORD ON APPEAL; ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL; CERTIFICATE OF SERVICE) JUN 12 RETURN AND ACKNOWLEDGMENT OF SERVICE (DEPARTMENT 0004 4 OF PLANNING, COUNTY OF HAWAII SERVED ON 6/10/14 THROUGH DARYN ARAI, PLANNING PROGRAM MANAGER, WITH NOTICE OF APPEAL TO CIRCUIT COURT; STATMENT OF THE CASE; EXHIBITS "1, "-"2; " DESIGNATION OF CONTENTS RECORD ON APPEAL; ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL; CERTIFICATE OF SERVICE) JUN 12 RETURN AND ACKNOWLEDGMENT OF SERVICE (THE HON. 0005 5 SANDRA P. SONG (RET. ) SERVED ON 6/10/14 THROUGH STEPHANIE SALAZAR, LEGAL ASSISTANT, WITH NOTICE OF APPEAL TO CIRCUIT COURT; STATMENT OF THE CASE; EXHIBITS "l, "-112, 11 ; DESIGNATION OF CONTENTS OF RECORD ON APPEAL; ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL; CERTIFICATE OF SERVICE) # #2 COMPUTERIZED INDEX 3CC14-1-000223 06-09-2014 CIVIL 02 PAGE 2014 JUN 12 RETURN AND ACKNOWLEDGMENT OF SERVICE (THE HON. Cob(o 6 TERENCE YOSHIOKA (RET. ) SERVED ON 6/10/14 THROUGH TERENCE YOSHIOKA WITH NOTICE OF APPEAL TO CIRCUIT COURT; STATEMENT OF THE CASE; EXHIBITS "l, "-"2, " ; DESIGNATION OF CONTENTS OF RECORD ON APPEAL; ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL; CERTIFICATE OF SERVICE) JUN 12 RETURN AND ACKNOWLEDGMENT OF SERVICE (MR. SIDNEY 0007 7 FUKE SERVED ON 6/10/14 WITH NOTICE OF APPEAL TO CIRCUIT COURT; STATEMENT OF THE CASE; EXHIBITS "1, "-"2, " ; DESIGNATION OF CONTENTS OF RECORD ON APPEAL; ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL; CERTIFICATE OF SERVICE) JUN 12 RETURN AND ACKNOWLEDGMENT OF SERVICE (MR. JEFFREY OQO S 8 K. DOMES SERVED ON 6/12/14 WITH NOTICE OF APPEAL TO CIRCUIT COURT; STATEMENT OF THE CASE; EXHIBITS "1, "-"2 , " ; DESIGNATION OF CONTENTS OF RECORD ON APPEAL; ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL; CERTIFICATE OF SERVICE) JUN 19 APPLICANT-APPELLANT CONNECTIONS NEW CENTURY O OOq 9 PUBLIC CHARTER SCHOOL'S NOTICE OF APPEAL TO CIRCUIT COURT AND JOINDER TO APPLICANT-APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES ' NOTICE OF APPEAL TO CIRCUIT COURT, FILED JUNE 9, 2014; CERTIFICATE OF SERVICE (FILED EX OFFICIO) JUN 26 CERTIFICA'T'E OF DISQUALIFICATION DOI� 10 (JUDGE GREG K. NAKAMURA) JUN 27 APPELLEE DEPARTMENT OF PLANNING, COUNTY OF 11 HAWAI' I 'S MOTION TO DISMISS; MEMORANDUM IN SUPPORT OF MOTION; NOTICE OF HEARING; CERTIFICATE OF SERVICE JUN 30 CERTIFICATE OF DISQUALIFICATION 12 (JUDGE GLENN S . HARA) #3 COMPUTERIZED INDEX 3CC14-1-000223 06-09-2014 CIVIL 02 PAGE 2014 JUL 02 APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA' S 00/ 3 13 ANSWER TO NOTICE OF APPEAL TO CIRCUIT COURT; STATEMENT OF THE CASE BY COMMUNITY BASED EDUCATION SUPPORT SERVICES AND CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL; CERTIFICATE OF SERVICE (ALAN M. OKAMOTO, ESQ. ) JUL 07 APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF 0014 14 HAWAI' I ' S REQUEST FOR EXTENTIONS OF TIME TO FILE RECORD ON APPEAL; AFFIDAVIT OF SARAH Y. HATA-FINLEY; ORDER; CERTIFICATE OF SERVICE (EXTEND TO AND INCLUDING 7/31/14) JUL 07 APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF 001,15 15 HAWAI' I, AND INTERVENOR-APPELLEE SANDRA SONG' S MOTION TO DISMISS; MEMORANDUM IN SUPPORT OF MOTION; NOTICE OF HEARING; CERTIFICATE OF SERVICE (HRG: 8/22/14 AT 8:00 A.M. BEFORE JUDGE IBARRA) JUL 08 APPEARANCE OF COUNSEL FOR JEFFREY K. GOMES, OO/(v 16 INTERVONOR; CERTIFICATE OF SERVICE (MICHAEL J_ MATSUKAWA, ESQ. ) JUL 08 APPELLEE-INTERVENOR JEFFREY K. GOMES ' RESPONSE 00/7 17 TO STATEMENT OF THE CASE FILED JUNE 19, 2014 BY APPLICANT-APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL; CERTIFICATE OF SERVICE JUL 08 APPELLEE-INTERVENOR JEFFREY K. DOMES' RESPONSE 0611 18 TO STATEMENT OF THE CASE FILED JUNE 19, 2014 BY APPLICANT-APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES; CERTIFICATE OF SERVICE JUL 10 AMENDED NOTICE OF HEARING REGARDING APPELLEE 0016) 19 DEPARTMENT OF PLANNING, COUNTY OF HAWAI ' I 'S MOTION TO DISMISS FILED JUNE 27, 2014; CERTIFICATE OF SERVICE {OLID HRG: 7/30/14; NEW HRG: 8/22/14 AT 8 : 00 A.M. BEFORE JUDGE IBARRA( # 44 COMPUTERIZED INDEX 3CC14-1-000223 06-09-2014 CIVIL 02 PAGE 2014 JUL 11 APPELLEE WINDWARD PLANNING COMMISSION, COUNTY O Da D 20 (1) OF HAWAI ' I ' S MOTION TO QUASH OR CORRECT THE ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL AS TO TAPE RECORDINGS AND TRANSCRIPTS OF ALL EXECUTIVE SESSION HEARINGS AND MEETINGS DATED JUNE 9, 2014; MEMORANDUM IN SUPPORT OF MOTION; DECLARATION OF COUNSEL; NOTICE OF HEARING; CERTIFICATE OF SERVICE JUL 11 (HRG: 7/29/14 AT 8 : 00 A.M. BEFORE JUDGE IBARRA) 20 (2) JUL 14 SUPPLEMENTAL CERTIFICATE OF SERVICE (RE: APPELLEES ooar 21 SIDNEY FUKE AND TERENCE T. YOSHIOKA' S ANSWER TO NOTICE OF APPEAL TO CIRCUIT COURT; STATMENT OF THE CASE BY COMMUNITY BASED EDUCATION SUPPORT SERVICES AND CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL) JUL 22 APPELLEE-INTERVENOR JEFFREY K. GOMES' MEMORANDUM dG'aZ 22 IN SUPPORT OF APPELLEE WINDWARD PLANNING COMMISSION AND INTERVENOR SANDRA SONG'S MOTION TO DISMISS SANDRA SONG AS A PARTY TO THE AGENCY APPEAL FILED JUNE 9, 2014 BY APPLICANT-APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES; EXHIBIT "A" ; CERTIFICATE OF SERVICE R JUL 22 STIPULATIONIAND TORDER AMENDING THE JHEARING�A) 23 (1) REGARDING APPELLEE DEPARTMENT OF PLANNING, COUN'T'Y OF HAWAII 'S MOTION TO DISMISS FILED JUNE 27, 2014 AND APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, AND INTERVENOR-APPELLEE SANDRA SONG' S MOTION TO DISMISS FILED JULY 7, 2014, FROM AUGUST 22, 2014 TO AUGUST 19, 2014; CERTIFICATE OF SERVICE JUL 22 (OLD HRG: 8/22/14; NEW HRG: 8/19/14 AT 8 : 30 A.M. 23 (2) BEFORE JUDGE IBARRA) # #5 COMPUTERIZED INDEX 3CC14-1-000223 06-09-2014 CIVIL 02 PAGE 2014 JUL 22 STIPULATION AND ORDER AMENDING THE HEARING naafi- 24 (1) REGARDING APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII ' S MOTION TO QUASH OR CORRECT THE ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL AS TO TAPE RECORDINGS AND TRANSCRIPTS OF ALL EXECUTIVE SESSION HEARINGS AND MEETINGS DATED JUNE 9, 2014, FROM JULY 29, 2014 TO SEPTEMBER 26, 2014 JUL 22 (OLD HRG: 7/29/14; NEW HRG: 9/26/14 AT 8 : 00 A.M. 24 (2) BEFORE JUDGE IBARRA) JUL 22 STIPULATION AND ORDER TO CONTINUE THE DEADLINE FOR C'0'2s 25 CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL FROM JULY 31, 2014 TO NOVEMBER 1, 2014 JUL 23 APPELLEE-INTERVENOR JEFFREY K. DOMES' STATEMENT OF 00 & 26 (1) NON-OPPOSITION TO APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI ' I' S MOTION TO QUASH OR CORRECT THE ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL AS TO TAPE RECORDINGS AND TRANSCRIPTS OF ALL EXECUTIVE SESSION HEARING AND MEETINGS DATED JUNE 9, 2014, FILED JULY 11, 2014 ; CERTIFICATE OF JUL 23 SERVICE 26 (2) (HRG: 714 AT 8 : 00 A.M. BEFORE JUDGE JUL 28 APPELLEE/S29/ FUKE AND TERENCE T. YOSHIO A'S L����] 27 (1) MEMORANDUM IN SUPPORT OF APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI ' I' S MOTION TO QUASH OR CORRECT THE ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL AS TO TAPE RECORDINGS AND TRANSCRIPTS OF ALL EXECUTIVE SESSION HEARINGS AND MEETINGS DATED JUNE 9, 2014 AND STATEMENT OF NON-APPEARANCE; CERTIFICATE JUL 28 OF SERVICE 27 (2) (HRG: 9/26/14 AT 8 : 00 A.M. BEFORE JUDGE IBARRA) #6 COMPUTERIZED INDEX 3CC14-1-000223 06-09-2014 CIVIL 02 PAGE 2014 JUL 28 APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA' S nc.2'� 28 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; AFFIDAVIT OF SIDNEY FUKE; AFFIDAVIT OF TERENCE T. YOSHIOKA, EXHIBIT A; NOTICE OF HEARING; CERTIFICATE OF SERVICE (HRG: 8/19/A4 AT 8;30 A.M. BEFORE JUDGE IBARRA) JUL 28 APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA' S G c'Zq 29 MEMORANDUM IN SUPPORT OF APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, AND INTERVENOR-APPELLEE SANDRA SONG'S MOTION TO DISMISS FILED JULY 7, 2014 ; CERTIFICATE OF SERVICE (OLD HRG: AUGUST 22, 2014; NEW HRG: AUGUST 19, 2014 8 : 30 A.M. JUDGE IBARRA) AUG 06 INTERVENOR-APPELLEE JEFFREY K. DOMES ' MEMORANDUM C7C 30 IN SUPPORT OF APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT FILED JULY 28, 2014; CERTIFICATE OF SERVICE (HRG: AUGUST 19, 2014 8 :30 A.M. JUDGE IBARRA) AUG 06 SUPPLEMENTAL AFFIDAVIT OF TERENCE T. YOSHIOKA, 0� �� 31 EXHIBIT A (RE: APPELLEES SIDNEY FUKE AND TERENCE T YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT) (HRG: AUGUST 19, 2014 8 :30 A.M. JUDGE IBARRA) AUG 07 APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF 32 HAWAII AND INTERVENOR-APPELLEE SANDRA SONG, IN HER CAPACITY AS HEARING OFFICER'S STATEMENT OF NO POSITION AS TO APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI 'I 'S MOTION TO DISMISS FILED JUNE 27, 2014, CERTIFICATE OF SERVICE AUG 07 APPELLEE DEPARTMENT OF PLANNING, COUNTY OF J 33 HAWAI ' I' S STATEMENT OF NO POSITION AS TO APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, AND INTERVENOR-APPELLEE SANDRA SONG'S MOTION TO DISMISS FILED JULY 7, 2014; CERTIFICATE OF SERVICE #7 COMPUTERIZED INDEX 3CC14-1-040223 06-09-2414 CIVIL 02 PAGE 2014 AUG 07 APPELLEE DEPARTMENT OF PLANNING, COUNTY OF oo 34- 34 HAWAI ' I' S STATEMENT OF NO POSITION AS TO APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA' S MOTION FOR SUMMARY JUDGMENT FILED JULY 28, 2014; CERTIFICATE OF SERVICE AUG 11 APPELLANT COMMUNITY BASED EDUCATION SUPPORT ���'�� 35 SERVICES ' MEMORANDUM IN OPPOSITION TO APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAII, FILED ON JUNE 27, 2014; EXHIBITS "1, " -"2 ; " DECLARATION OF TED H.S. HONG; CERTIFICATE OF SERVICE AUG 11 APPAUGUST ELLANTNlOJUDGE COMMUITYBASEDEDUCATIONSUPPORA) T 36 SERVICES ' MEMORANDUM IN OPPOSITION TO APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, AND INTERVENOR-APPELLEE SANDRA SONG'S MOTION TO DISMISS FILED ON JULY 7, 2014 ; EXHIBITS "l, "-113 ; " DECLARATION OF TED H.S. HONG; CERTIFICATE OF SERVICE (HRG: 8/19/14 AT 8 :30 A.M. JUDGE IBARRA) ****FOR FURTHER ENTRIES, SEE FILE NO. 2**** #1 COMPUTERIZED INDEX VOL. 2 3CC14-1-000223 06-09-2014 CIVIL 02 COMMUNITY BASED EDUCATION SUPPHONG, TED H S A3569 AGENCY APPEAL 503 CONNECTIONS NEW CENTURY PUBLICSIU, CARTER K. K. S . A7313 WINDWARD PLANNING COMMISSION, PATEL, DANNY A9578 DEPARTMENT OF PLANNING, COUNTY SANDRA SONG, IN HER CAPACITY A JEFFREY GOMES, INTERVENOR MATSUKAWA, MICHAEL J A1885 SIDNEY FUKE, INTERVENOR' S REPROKAMOTO, ALAN M A1826 TERENCE YOSHIOKA, INTERVENOR'SOKAMOTO, ALAN M A1826 PAGE 2014 AUG 11 ****FOR PRIOR ENTRIES, SEE FILE NO. 1**** 1 APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES ' MEMORANDUM IN OPPOSITION TO APPELLEES SIDNEY FUKE AND TERRANCE T. YOSHIOKA AND JEFFREY DOMES' MOTION FOR SUMMARY JUDGMENT FILED ON JULY 28, 2014 ; EXHIBITS "l, "-"4 ; " DECLARATION OF TED H.S . HONG; CERTIFICATE OF SERVICE (HRG: AUGUST 19, 20148 : 30 A.M. JUDGE IBARRA) AUG 11 CERTIFICATE OF SERVICE (RE: SUPPLEMENTAL AFFIDAVIT C}� �J�1 2 OF TERENCE T. YOSHIOKA, EXHIBIT A) MAILED ON AUGUST 7, 2014 AUG 13 APPELLEE DEPARTMENT OF PLANNING, COUNTY OF 3 HAWAI' I 'S REPLY TO APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES ' MEMORANDUM IN OPPOSITION TO APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI'I 'S MOTION TO DISMISS FILED ON JUNE 27, 2014 , FILED AUGUST 11, 2014; CERTIFICATE OF SERVICE (HRG: AUGUST 19, 2014 8 :30 A.M. JUDGE IBARRA) AUG 14 APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF 0 0 4U 4 (1) HAWAII, AND INTERVENOR-APPELLEE SANDRA SONG, IN HER CAPACITY AS HEARING OFFICER' S REPLY TO APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' MEMORANDUM IN OPPOSITION TO APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, AND INTERVENOR-APPELLEE SANDRA SONG' S MOTION TO DISMISS FILED ON JULY 7, 2014, FILED AUGUST 11, AUG 14 2014; CERTIFICATE OF SERVICE 4 (2) (HRG: AUGUST -19, 20-14 8 :30 A.M. JUDGE IBARRA) #2 COMPUTERIZED INDEX VOL. 2 3CC14-1-000223 06-09-2014 CIVIL 02 PAGE 2014 AUG 14 APPELLEES TERENCE T. YOSHIOKA AND SIDNEY FUKE' S �C��' 5 MEMORANDUM IN RESPONSE TO APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' MEMORANDUM IN OPPOSITION TO APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, AND INTERVENOR-APPELLEE SANDRA SONG' S MOTION TO DISMISS FILED ON AUGUST 11, 2014; CERTIFICATE OF SERVICE (HRG: 8/19/14 8 :30 A.M. JUDGE IBARRA) AUG 14 APPELLEES TERENCE T. YOSHIOKA AND SIDNEY FUKE' S 6 MEMORANDUM IN RESPONSE TO APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' MEMORANDUM IN OPPOSITION TO APPELLEES SIDNEY FUKE AND TERRANCE T. YOSHIOKA AND JEFFREY GOMES' MOTION FOR SUMMARY JUDGMENT FILED ON AUGUST 11, 2014; CERTIFICATE OF SERVICE (HRG: AUGUST 19, 2014 8 :30 A.M. JUDGE IBARRA) AUG 14 APPELLEE DEPARTMENT OF PLANNING, COUNTY OF (�C3 7 (1) HAWAI ' I ' S STATEMENT OF NO POSITION AS TO APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI ' I ' S MOTION TO QUASH OR CORRECT THE ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL AS TO TAPE RECORDINGS AND TRANSCRIPTS OF ALL EXECUTIVE SESSION HEARINGS AND MEETINGS DATED JUNE 9, 2014, FILED JULY 11, 2014; CERTIFICATE OF AUG 14 SERVICE 7 (2) (HRG: SEPTEMBER 26, 2014 8 : 00 A.M_ JUDGE IBARRA) AUG 25 INDEX TO RECORD ON APPEAL; WINDWARD PLANNING �?(�� 8 COMMISSION SECRETARY' S CERTIFICATE; CERTIFICATE OF SERVICE *****2 BOXES IN MPR ROOM***** AUG 28 NOTICE OF SUBMISSION OF ORDER GRANTING APPELLEE ��4 �� 9 WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI' Z AND INTERVENOR-APPELLEE SANDRA SONG' S MOTION TO DISMISS FILED ON JULY 7, 2014; EXHIBIT "A" ; CERTIFICATE OF SERVICE #3 COMPUTERIZED INDEX VOL. 2 3CC14-1-000223 06-09-2014 CIVIL 02 PAGE 2014 AUG 28 NOTICE OF SUBMISSION OF ORDER GRANTING APPELLEE D4[p 10 DEPARTMENT OF PLANNING, COUNTY OF HAWAI ' I ' S MOTION TO DISMISS FILED ON JUNE 27, 2014 ; EXHIBIT "A" ; CERTIFICATE OF SERVICE SEP 03 NOTICE OF SUBMISSION; EXHIBITS "A"-"B" ; 47-7 11 CERTIFICATE OF SERVICE (ORDER GRANTING APPELEES SIDNEY FUKE AND TERENCE T. YOSHIOKA`S MOTION FOR SUMMARY JUDGMENT; JUDGMENT PURSUANT TO ORDER GRANTING APPELEES SIDNEY FUKE AND TERENCE T. YOSHIOKA' S MOTION FOR SUMMARY JUDGMENT) /l SEP 15 APPELLANT COMMUNITY BASED EDUCATION SUPPORT ocA 12 (1) SERVICES ' MEMORANDUM IN OPPOSITION TO APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII ' S, MOTION TO QUASH OR CORRECT THE ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL AS TO TAPE RECORDINGS AND TRANSCRIPTS OF ALL EXECUTIVE SESSION HEARINGS AND MEETINGS DATED JULY 11, 2014, FILED ON AUGUST 14, 2014; EXHIBITS SEP 15 "1, "-"2 ; " DECLARATION OF TED H.S. HONG; 12 (2) CERTIFICATE OF SERVICE (HEARING: SEPTEMBER 26, 2014 AT 8 : 00 A.M. BEFORE JUDGE IBARRA) SEP 22 ORDER GRANTING APPELLEE WINDWARD PLANNING � 13 COMMISSION, COUNTY OF HAWAII AND INTERVENOR- APPELLEE SANDRA SONG' S MOTION TO DISMISS FILED ON JULY 7, 2014 SEP 22 ORDER GRANTING APPELLEE DEPARTMENT OF PLANNING C GT' U 14 COUNTY OF HAWAI' I 'S MOTION TO DISMISS FILED ON JUNE 27, 2014 SEP 22 ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE Fr 51 15 T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT SEP 22 JUDGMENT PURSUANT TO ORDER GRANTING APPELLEES ���5 16 SIDNEY FUKE AND TERENCE T. YOSHIOKA' S MO'T'ION FOR SUMMARY JUDGMENT #4 COMPUTERIZED INDEX VOL. 2 3CC14-1-000223 06-09-2014 CIVIL 02 PAGE 2014 SEP 23 APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF QQ�53 17 (1) HAWAI' I 'S REPLY TO APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES ' MEMORANDUM IN OPPOSITION TO APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI ' I'S MOTION TO QUASH OR CORRECT THE ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL AS TO TAPE RECORDINGS AND TRANSCRIPTS OF ALL EXECUTIVE SEP 23 SESSION HEARINGS AND MEETINGS DATED JUNE 9, 2014, 17 (2) FILED SEPTEMBER 15, 2014; CERTIFICATE OF SERVICE (HEARING: SEPTEMBER 26, 2014 AT 8 : 00 A.M. BEFORE II�� JUDGE IBARRA) Q�u�`t 18 SEP 24 CERTIFICATE OF SERVICE [RE: ORDER GRANTING APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI ' I' S MOTION TO DISMISS FILED ON JUNE 27, 2014, FILED SEPTEMBER 22, 20141 SEP 25 APPELLANT'S EX PARTE MOTION TO EXTEND TIME TO FILE 19 OPENING BRIEF; DECLARATION OF TED H.S. HONG; ORDER GRANTING APPELLANT'S EX PARTE MOTION TO EXTEND TIME TO FILE OPENING BRIEF; CERTIFICATE OF SERVICE SEP 25 CERTIFICATE OF SERVICE [RE: ORDER GRANTING 20 APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, AND INTERVENOR-APPELLEE SANDRA SONG' S MOTION TO DISMISS FILED ON JULY 7, 2014, FILED SEPTEMBER 22, 20141 -7 SEP 26 CERTIFICATE OF SERVICE (RE: ORDER GRANTING D 51 21 APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA' S MOTION FOR SUMMARY JUDGMENT AND JUDGMENT PURSUANT TO ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA' S MOTION FOR SUMMARY JUDGMENT) SEP 30 ORDER GRANTING IN PART APPELLEE WINDWARD PLANNING o � �$ 22 COMMISSION, COUNTY OF HAWAI ' I ' S MOTION TO QUASH OR CORRECT THE ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEALS AS TO TAPE RECORDINGS AND TRANSCRIPTS OF ALL EXECUTIVE SESSION HEARINGS AND MEETING DATED JUNE 9, 2014 45 COMPUTERIZED INDEX VOL. 2 3CC14-1-000223 06-09-2014 CIVIL 02 PAGE 2014 OCT 24 APPELLANT' S SECOND EX PARTE MOTION TO EXTEND TIME 23 TO FILE OPENING BRIEF; DECLARATION OF TED H.S. HONG; ORDER GRANTING APPELLANT'S SECOND EX PARTE MOTION TO ESTEND TIME TO FILE OPENING BRIEF; CERTIFICATE OF SERVICE (EXTENDED TO 11/24/14) OCT 30 INTERVENOR-APPELLEE DOMES ' OBJECTION TO APPELLANT Oc)&o 24 COMMUNITY BASED EDUCATION SERVICES EX PARTE MOTION FOR LEAVE TO FILE OPENING BRIEF IN EXCESS OF 35 PAGES; CERTIFICATE OF SERVICE OCT 31 APPELLANT COMMUNITY BASED EDUCATION SUPPORT �� � 25 SERVICES ' EX PARTE MOTION FOR LEAVE TO ALLOW APPELLANT TO FILE ITS OVER-LENGTH OPENING BRIEF; DECLARATION OF TED H.S. HONG; ORDER GRANTING APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVIES ' EX PARTE MOTION FOR LEAVE TO ALLOW APPELLANT TO FILE ITS OVERLENGTH OPENING BRIEF; CERTIFICATE OF SERVICE OCT 31 ORDER FOLLOWING IN CAMERA REVIEW OF DOCUMENTS V2_ 26 SUBMITTED NOV 21 APPELLANT' S THIRD EX PARTE MOTION TO EXTEND TIME d oc� 3 27 TO FILE OPENING BRIEF; DECLARATION OF TED H.S. HONG; ORDER GRANTING APPELLANT'S THIRD EX PARTE MOTION TO EXTEND TIME TO FILE OPENING BRIEF; CERTIFICATE OF SERVICE (EXTENDED FROM: NOVEMBER 24, 2014 TO: DECEMBER 24, 2014) *****FOR FURTHER ENTRIES SEE FILE NO. 3***** #1 COMPUTERIZED INDEX VOL. 3 3CC14-1-000223 06-09-2014 CIVIL 02 COMMUNITY BASED EDUCATION SUPPHONG, TED H S A3569 AGENCY APPEAL 503 CONNECTIONS NEW CENTURY PUBLICSIU, CARTER K. K. S. A7313 WINDWARD PLANNING COMMISSION, PATEL, DANNY A9578 DEPARTMENT OF PLANNING, COUNTY SANDRA SONG, IN HER CAPACITY A JEFFREY DOMES, INTERVENOR MATSUKAWA, MICHAEL, J A1885 SIDNEY FUKE, INTERVENOR'S REPROKAMOTO, ALAN M A1826 TERENCE YOSHIOKA, INTERVENOR'SOKAMOTO, ALAN M A1826 PAGE 2014 NOV 26 *****FOR PRIOR ENTRIES SEE FILE NO. 2***** 1 NOTICE OF DISASSOCIATION OF COUNSEL MARGARET K. 006 4- MASUNAGA; CERTIFICATE OF SERVICE DEC 01 ORDER ON EXECUTIVE SESSION MINUTES Do &5 2 DEC 02 INTERVENOR-APPELLEE JEFFREY K. DOMES' MOTION (1) 3 (l) TO STRIKE NOTICE OF APPEAL AND JOINDER FILED BY CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL (FILED JUNE 19, 2014) (2) TO DISMISS SAID NOTICE OF APPEAL AND (3) FOR SUMMARY JUDGMENT AGAINST CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL ON ITS NOTICE OF APPEAL (FILED JUNE 19, 2014) ; MEMORANDUM IN SUPPORT OF MOTION, CERTIFICATE OF DEC 02 SERVICE 3 (2) (HRG: JANUARY 6, 2015 10 : 00 A.M. JUDGE IBARRA) DEC 11 INTERVENOR-APPELLEE JEFFERY K. DOMES ' MOTION (1) O06P7 4 (l) TO DISMISS NOTICE OF APPEAL TAKEN BY APPLICANT- APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES (FILED JUNE 9, 2014) AND (2) FOR SUMMARY JUDGMENT ON SAID NOTICE OF APPEAL; MEMORANDUM IN SUPPORT OF MOTION; DECLARATION OF MICHAEL J. MATSUKAWA; APPENDICES "I" TO "5" ; NOTICE OF HEARING MOTION; CERTIFICATE OF SERVICE DEC 11 (HRG: FEBRUARY 10, 2015 8 : 00 A.M. JUDGE IBARRA) 4 (2) DEC 18 ORDER TO FILE EXECUTIVE SESSION MINUTES UNDER SEAL D oiQg 5 (OF JANUARY 10, 2013, MARCH 7, 2013, AND MAY 1, 2014 TO BE FILED UNDER SEAL) DEC 18 DOCUMENTS FILED UNDER SEAL ,,Soo / (EXECUTIVE SESSION MINUTES OF JANUARY 10, 2013; EXECUTIVE SESSION MINUTES OF MARCH 7, 2013 ; EXECUTIVE SESSION MINUTES OF MAY 1, 2014) ******PLACED IN LOCKED CABINET****** # #2 COMPUTERIZED INDEX VOL. 3 3CC14-1-000223 06-09-2014 CIVIL 02 PAGE 2014 DEC 22 APPLICANT-APPELLANT CONNECTIONS NEW CENTURY PUBLIC 00194 6 CHARTER SCHOOL'S EX PARTE MOTION TO EXTEND TIME FOR FILING OF OPENING BRIEF; DECLARATION OF CARTER K. SIU; ORDER GRANTING APPLICANT-APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL' S EX PARTE MOTION FOR FILING OF OPENING BRIEF; CERTIFICATE OF SERVICE DEC 23 APPELLANT COMMUNITY BASED EDUCATION SUPPORT 0070 7 (1) SERVICES' MEMORANDUM IN OPPOSITION TO INTERVENOR-APPELLEE JEFFREY K. GOMES ' MOTION (1) TO STRIKE NOTICE OF APPEAL AND JOINDER FILED BY CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL (FILED JUNE 19, 2014) (2) TO DISMISS SAID NOTICE OF APPEAL AND (3) FOR SUMMARY JUDGMENT AGAINST NEW CENTURY PUBLIC CHARTER SCHOOL ON ITS NOTICE OF DEC 23 APPEAL (FILED JUNE 19, 2014) FILED ON DECEMBER 2, 7 (2) 2014 ; DECLARATION OF TED H.S. HONG; EXHIBIT A; CERTIFICATE OF SERVICE (HEARING: JANUARY 02, 2015 AT 10 : 00 A.M. BEFORE JUDGE IBARRA) DEC 24 APPELLANT COMMUNITY BASED EDUCATION SUPPORT 007 1 8 SERVICES ' OPENING BRIEF; APPENDIX "1, "-"4; " CERTIFICATE OF SERVICE DEC 26 NOTICE OF APPEARANCE OF COUNSEL FOR APPELLEE 0072 9 WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; CERTIFICATE OF SERVICE (DANNY B. PATEL, ESQ. ) DEC 26 STATEMENT OF NO POSITION OF APPELLEE WINDWARD 007 3 10 (1) PLANNING COMMISSION, COUNTY OF HAWAII, AS TO INTERVENOR-APPELLEE JEFFREY DOMES ' MOTION (1) TO STRIKE NOTICE OF APPEAL AND JOINDER FILED BY CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL (FILED JUNE 19, 2014) , (2) TO DISMISS SAID NOTICE OF APPEAL AND (3) FOR SUMMARY JUDGMENT AGAINST CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 43 COMPUTERIZED INDEX VOL. 3 3CC14-1-000223 06-09-2014 CIVIL 02 PAGE 2014 DEC 26 ON ITS NOTICE OF APPEAL (FILED JUNE 19, 2014) , 10 (2) FILED DECEMBER 2, 2014; CERTIFICATE OF SERVICE (HEARING: JANUARY 06, 2015 AT 10 : 00 A.M. BEFORE NUDGE IBARRA) DEC 26 CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL' S D0�4 10A(1) MEMORANDUM IN OPPOSITION TO INTERVENOR--APPELLEE JEFFREY K. COMES ' MOTION (1) TO STRIKE NOTICE OF APPEAL AND JOINDER FILED BY CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL (FILED JUNE 19) , 2014) (2) TO DISMISS SAID NOTICE OF APPEAL AND (3) FOR SUMMARY JUDGMENT AGAINST CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL ON ITS NOTICE OF DEC 26 APPEAL (FILED JUNE 19, 2014) , FILED DECEMBER 1, 10A(2) 2014 ; CERTIFICATE OF SERVICE (HEARING DATE: 1/6/15 AT 10 :00 A.M. BEFORE JUDGE IBARRA) (FILED EX-OFFICIO) DEC 29 APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES ' (CBESS) FOURTH EX PARTE MOTION TO EXTEND TIME TO FILE OPENING BRIEF; DECLARATION OF TED H.S. HONG; ORDER GRANTING APPELLANT'S FOURTH EX PARTE MOTION TO EXTEND TIME TO FILE OPENING BRIEF; CERTIFICATE OF SERVICE (EXTENDED FROM 12/24/14 TO 2/24/14) DEC 31 INTERVENOR-APPELLEE JEFFREY COMES ' REPLY TO UD�I� 12 (1) OPPOSITION FILED BY APPLICANT-APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES AND BY CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL TO INTERVENOR-APPELLEE JEFFREY COMES ' MOTION TO STRIKE NOTICE OF APPEAL AND JOINDER FILED BY CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL, TO DISMISS SAID NOTICE OF APPEAL AND FOR SUMMARY # #4 COMPUTERIZED INDEX VOL. 3 3CC14-1-000223 06-09-2014 CIVIL 02 PAGE 2014 DEC 31 JUDGMENT AGAINST CONNECTIONS NEW CENTURY PUBLIC 12 (2) CHARTER SCHOOL; EXHIBIT "l; " CERTIFICATE OF SERVICE (HEARING DATE: 1/6/15 AT 10 :00 A-M. BEFORE JUDGE IBARRA) 2015 JAN 08 APPELLANT COMMUNITY BASED EDUCATION SUPPORT 13 SERVICES' EX PARTE MOTION FOR LEAVE TO ALLOW APPELLANT TO FILE ITS OVER-LENGTH REPLY BRIEF; DECLARATION OF TED H.S. HONG; ORDER GRANTING APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES ' EX PARTE MOTION FOR LEAVE TO ALLOW APPELLANT TO FILE ITS OVER-LENGTH REPLY BRIEF; CERTIFICATE OF SERVICE JAN 16 STATEMENT OF NO POSITION OF APPELLEE WINDWARD 14 (1) PLANNING COMMISSION, COUNTY OF HAWAII, AS TO INTERVENOR-APPELLEE JEFFREY K. COMES' MOTION (1) TO DISMISS NOTICE OF APPEAL TAKEN BY APPLICANT- APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES (FILED JUNE 9, 2014) AND (2) FOR SUMMARY JUDGMENT ON SAID NOTICE OF APPEAL FILED DECEMBER 11, 2014; CERTIFICATE OF SERVICE JAN 16 (HRG: FEBRUARY 10, 2015 8 : 00 A.M. JUDGE IBARRA) 14 (2) JAN 22 INTERVENOR-APPELLEE JEFFREY K. COMES ' EX PARTE DOI 15 MOTION TO EXTEND TIME TO FILE ANSWERING BRIEF; DECLARATION OF MICHAEL J. MATSUKAWA; CERTIFICATE OF SERVICE JAN 28 EX PARTE MOTION OF APPELLEE WINDWARD PLANNING oogb 16 (1) COMMISSION, COUNTY OF HAWAI ' T, TO EXTEND TIME FOR FILING OF ANSWERING BRIEF TO APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES ' OPENING BRIEF; DECLARATION OF COUNSEL; ORDER GRANTING EX PARTE MOTION OF APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI ' I, TO EXTEND TIME FOR FILING OF ANSWERING BRIEF TO APPELLANT COMMUNITY BASED #5 COMPUTERIZED INDEX VOL. 3 3CC14-1-000223 06-09-2014 CIVIL 02 PAGE 2015 JAN 28 EDUCATION SUPPORT SERVICES ' OPENING BRIEF; 16 (2) CERTIFICATE OF SERVICE JAN 28 ORDER GRANTING INTERVENOR-APPELLEE JEFFREY K. UAO 17 GOMES ' EX PARTE MOTION TO EXTEND TIME TO FILE ANSWERING BRIEF (EXTENDED UNTIL MARCH 3, 2015) JAN 30 APPELLANT COMMUNITY BASED EDUCATION SUPPORT 18 (1) SERVICES ' MEMORANDUM IN OPPOSITION TO INTERVENOR-APPELLEE JEFFREY K. DOMES ' MOTION (1) TO DISMISS NOTICE OF APPEAL TAKEN BY APPLICANT- APPELLANI' COMMUNITY BASED EDUCATION SUPPORT SERVICES (FILED JUNE 9, 2014) AND (2) FOR SUMMARY JUDGMENT ON SAID NOTICE OF APPEAL, FILED ON DECEMBER 11, 2014; DECLARATION OF TED S. HONG; JAN 30 DECLARATION OF CHRISTINE PERIATT; EXHIBITS A-B; 18 (2) CERTIFICATE OF SERVICE (HEARING: FEBRUARY 10, 2015 AT 8 : 00 A.M. BEFORE JUDGE IBARRA) FEB 05 ORDER DENYING INTERVENOR-APPELLEE JEFFREY K. 19 (1) DOMES ' MOTION (1) TO STRIKE NOTICE OF APPEAL AND JOINDER FILED BY CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL (FILED JUNE 19, 2014) (2) TO DISMISS SAID NOTICE OF APPEAL AND (3) FOR SUMMARY JUDGMENT AGAINST CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL ON ITS NOTICE OF APPEAL (FILED JUNE 19, 2014) , FILED DECEMBER 1, 2014 AND TO AMEND CAPTION FEB 05 (HEARING: JANUARY 06, 2015 AT 10 : 00 A.M. BEFORE 19 (2) JUDGE IBARRA) FEB 06 INTERVENOR-APPELLEE JEFFREY K. GOMES ' REPLY TO oo94 20 (1) APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' MEMORANDUM IN OPPOSITION TO INTERVENOR-APPELLEE JEFFREY K. DOMES ' MOTION (1) TO DISMISS NOTICE OF APPEAL TAKEN BY APPLICANT-APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES (FILED JUNE 9, 2014) AND (2) FOR SUMMARY JUDGMENT ON SAID NOTICE OF APPEAL, FILED ##6 COMPUTERIZED INDEX VOL. 3 3CC14-1-000223 06-09-2014 CIVIL 02 PAGE 2015 FEB 06 JANUARY 30, 2015; APPENDICES "6" TO 1-1011 ; 20 (2) CERTIFICATE OF SERVICE (HEARING: FEBRUARY 10, 2015 AT 8 : 00 A.M. BEFORE JUDGE IBARRA) FEB 17 CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S Dogs 21 OPENING BRIEF; CERTIFICATE OF SERVICE (FILED EX OFFICIO) ***FOR FURTHER ENTRIES SEE FILE NO. 4*** # #1 COMPUTERIZED INDEX VOL. 4 3CC14-1-000223 06-09-2014 CIVIL 02 COMMUNITY BASED EDUCATION SUPPHONG, TED H S A3569 AGENCY APPEAL 503 CONNECTIONS NEW CENTURY PUBLICSIU, CARTER K. K. S. A7313 WINDWARD PLANNING COMMISSION, PATEL, DANNY A9578 DEPARTMENT OF PLANNING, COUNTY SANDRA SONG, IN HER CAPACITY A JEFFREY DOMES, INTERVENOR MATSUKAWA, MICHAEL J A1885 SIDNEY FUKE, INTERVENOR'S REPROKAMOTO, ALAN M A1826 TERENCE YOSHIOKA, INTERVENOR'SOKAMOTO, ALAN M A1826 PAGE 2015 FEB 26 ***FOR PRIOR ENTRIES SEE FILE NO. 3*** OOH 1 INTERVENOR-APPELLEE JEFFREY K. DOMES ' ANSWERING BRIEF TO OPENING BRIEF OF APPLICANT-APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES FILED DECEMBER 24, 2014 ; APPENDICES "1" TO "6" ; CERTIFICATE OF SERVICE MAR 03 ORDER DENYING INTERVENOR-APPELLEE JEFFREY K. ���—1 2 DOMES' MOTION (1) TO DISMISS NOTICE OF APPEAL TAKEN BY APPLICANT-APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES (FILED JUNE 9, 2014) AND (2) FOR SUMMARY JUDGMENT ON SAID NOTICE OF APPEAL, FILED ON DECEMBER 11, 2014 MAR 05 INTERVENOR-APPELLEE JEFFREY K. DOMES' ANSWERING 3 BRIEF TO CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S OPENING BRIEF FILED FEBRUARY 17, 2015; APPENDICES "l, "2, " 114" AND "6" ; CERTIFICATE OF SERVICE MAR 10 APPELLANT COMMUNITY BASED EDUCATION SUPPORT © $ 4 SERVICES ' REPLY BRIEF; CERTIFICATE OF SERVICE MAR 13 ANSWERING BRIEF OF APPELLEE WINDWARD PLANNING Gf U 5 COMMISSION, COUNTY OF HAWAI' I; APPENDICES "A"-"F" ; CERTIFICATE OF SERVICE MAR 19 CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S (JC�)e7J 6 REPLY BRIEF; CERTIFICATE OF SERVICE (FILED EX OFFICIO) MAR 27 APPELLANT COMMUNITY BASED EDUCATION SUPPORT �� 7 SERVICES ' REPLY BRIEF TO APPELLEE WINDWARD PLANNING COMMISSION'S ANSWERING BRIEF FILED ON MARCH 13 , 2015; CERTIFICATE OF SERVICE MAR 27 WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI ' I'S q3 8 ANSWERING BRIEF TO CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S OPENING BRIEF FILED FEBRUARY 17, 2015; CERTIFICATE OF SERVICE #2 COMPUTERIZED INDEX VOL. 4 3CC14-1-000223 06-09-2014 CIVIL 02 PAGE 2015 APR 01 NOTICE OF STATUS CONFERENCE OcO4 9 (APRIL 22, 2015 AT 4 : 00 P.M. ) APR 09 CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S d 0 q (!�7 10 REPLY BRIEF TO WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI ' I 'S ANSWERING BRIEF; CERTIFICATE OF SERVICE (FILED EX OFFICIO) APR 24 ORDER SETTING ORAL ARGUMENT D Q to 11 (HRG: 5/29/15 AT 9: 00 A.M. PRESIDING JUDGE DIVISION 3) JUN 22 NOTICE OF SUBMISSION OF DECISION AND ORDER Gj� 12 AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF ` HAWAI ' I ' S FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO. 12-138 AND FINAL JUDGMENT; EXHIBIT "A" ; CERTIFICATE OF SERVICE JUN 24 FIRST AMENDED CERTIFICATE OF SERVICE DU�' $ 13 [RE NOTICE OF SUBMISSION OF DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI ' I ' S FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO. 12-138 AND FINAL JUDGMENT FILED JUNE 22, 2015] JUL 14 DECISION AND ORDER AFFIRMING WINDWARD PLANNING 00 G1 G( 14 COMMISSION, COUNTY OF HAWAI ' I ' S FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO. SPP 12-138 JUL 14 FINAL JUDGMENT p 1 CC.) 15 JUL 28 NOTICE OF ENTRY OF FINAL JUDGMENT 6) l 0 16 JUL 28 MAILED/DELIVERED COPIES OF THE NOTICE OF ENTRY OF JUDGMENT TO PARTIES THEREIN # 421 COMPUTERIZED INDEX VOL. 4 3CC14-1-000223 06-09-2014 CIVIL 02 2015 PAGE AUG 4 NOTICE OF APPEAL AND EXHBITS"A" - "B" ; CERTIFICATE OF CA 0'7- 17 SERVICE; PROOF OF SERVICE AUG 04 FIRST AMENDED NOTICE OF APPEAL AND EXHIBITS p /0 3 18 "A, "-"B; " CERTIFICATE OF SERVICE; PROOF OF SERVICE (EFILED IN GAAP-15-0000556, 8/4/15, 1 :30 P.M. ) SEP 02 CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL' S 01v q 19 EX PARTE MOTION TO EXTEND TIME IN WHICH TO FILE NOTICE OF APPEAL; DECLARATION OF CARTER K. SIU; EXHIBITS "A" - "B; " ORDER GRANTING CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S EX PARTE MOTION TO EXTEND TIME IN WHICH TO FILE NOTICE OF APPEAL; CERTIFICATE OF SERVICE (EXTENDED TO 9/11/15) SEP 14 ***RECEIVED FROM INTERMEDIATE COURT OF APPEALS*** pj Q,S7 20 NOTICE OF APPEAL; EXHBITS "A" -"B; " CERTIFICATE OF SERVICE (E-FILED IN GAAP-15-0000556) SEP 14 ***RECEIVED FROM INTERMEDIATE COURT OF APPEALS*** t910( 21 NOTICE OF APPEAL; EXHIBITS "A"-"B; " CERTIFICATE OF SERVICE (E-FILED IN CAAP-15-0000665) ll11 # #1 COMPUTERIZED INDEX VOL. 5 3CC14-1-000223 06-09-2014 CIVIL 02 COMMUNITY BASED EDUCATION SUPPHONG, TED H S A3569 AGENCY APPEAL 503 CONNECTIONS NEW CENTURY PUBLICSIU, CARTER K. K. S . A7313 WINDWARD PLANNING COMMISSION, SELF, AMY GAIL A7628 DEPARTMENT OF PLANNING, COUNTY SANDRA SONG, IN HER CAPACITY A JEFFREY GOMES, INTERVENOR MATSUKAWA, MICHAEL J A1885 SIDNEY FUKE, INTERVENOR' S REPROKAMOTO, ALAN M A1826 TERENCE YOSHIOKA, INTERVENOR' SOKAMOTO, ALAN M A1826 PAGE 2015 NOV 10 *****FOR PREVIOUS ENTRIES SEE FILE NO 4***** 0107 1 ORDER GRANTING IN PART THE OCTOBER 14 , 2015 MOTION (EFILED IN CAAP-15-0000556, Il/4/15 , 11 : 14 A.M. ) DEC 18 ORDER OF CORRECTION 0108 2 (EFILED IN CAAP-15-0000556, 12/16/15 , 9 : 10 A.M. ) DEC 18 ORDER GRANTING NOVEMBER 11, 2015 MOTION TO 0109 3 SUPPLEMENT THE RECORD ON APPEAL (EFILED IN CRAP-15-0000556, 12/15/15, 9 :25 A.M. ) DEC 18 ORDER GRANTING THE OCTOBER 6, 2015 MOTION FOR 0110 4 CONSOLIDATION OF CAAP-15-0000556 AND CAAP-15-0000665 UNDER CAAP-15-0000556 (EFILED IN CARP-15-0000665 , 12/15/15 , 1 : 08 P.M. ) DEC 18 ORDER GRANTING THE OCTOBER 6, 2015 MOTION FOR 0111 5 CONSOLIDATION OF CAAP-15-0000556 AND CAAP-15-0000665 UNDER CARP-15-0000556 (EFILED IN CAAP-15-0000556, 12/15/15 , 1 : 16 P.M. ) 2016 APR 22 ORDER DISMISSING APPEAL FOR LACK OF APPELLATE 0112 6 JURISDICTION (EFILED IN CAAP-15-0000556, 4/19/16 , 8 : 06 A.M. ) MAY 20 NOTICE OF SUBMISSION OF AMENDED FINAL JUDGMENT; 0113 7 EXHIBIT "A" ' CERTIFICATE OF SERVICE MAY 24 APPELLANCE COMMUNITY BASED EDUCATION SUPPORT 0114 8 SERVICES ' NOTICE OF SUBMISSION OF FIRST AMENDED FINAL JUDGMENT; EXHIBIT "l ; " CERTIFICATE OF SERVICE MAY 31 INTERVENOR-APPELLEE JEFFREY K. GOMES ' OBJECTIONS 0115 9 TO FORM OF JUDGMENT FILED BY APPLICANT-APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES (CBESS) ON MAY 24 , 2016; CERTIFICATE OF SERVICE #2 COMPUTERIZED INDEX VOL. 5 3CC14-1-000223 06-09-2014 CIVIL 02 PAGE 2016 AUG 01 ORDER DISMISSING APPEAL FOR LACK OF APPELLATE 0116 10 JURISDICTION (EFILED IN CAAP-15-0000665, 7/27/16, 2 : 49 P.M. ) SEP 12 APPELLANT COMMUNITY BASED EDUCATION SUPPORT 0117 11 SERVICES ' NOTICE OF SUBMISSION OF FIRST AMENDED FINAL JUDGMENT; EXHIBIT "l" ; CERTIFICATE OF SERVICE SEP 15 APPELLANT COMMUNITY BASED EDUCATION SUPPORT 0118 12 SERVICES ' NOTICE OF SUBMISSION OF SECOND AMENDED FINAL JUDGMENT; EXHIBIT "l" ; CERTIFICATE OF SERVICE SEP 26 APPELLEE WINDWARD PLANNING COMMISSION, COUNTY 0119 13 OF HAWAI ' I ' S WITHDRAWAL (DANNY B. PATEL, ESQ. ) AND SUBSTITUTION (ANGELIC M. HO, DEPUTY CORPORATION COUNSEL) OF COUNSEL; ORDER SEP 28 NOTICE OF SUBSTITUTION OF COUNSEL FOR APPLICANT- 0120 14 APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL; CERTIFICATE OF SERVICE (CARTER K. SIU, ESQ. , WITHDRAWS; GREGG M. USIRODA, DEPUTY ATTORNEY GENERAL APPEARS) SEP 29 CERTIFICATE OF SERVICE 0121 15 [RE : APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI' I'S WITHDRAWAL AND SUBSTITUTION OF COUNSEL; ORDER, FILED SEPTEMBER 26 , 20161 OCT 07 APPELLANT COMMUNITY BASED EDUCATION SUPPORT 0122 16 SERVICES ' THIRD NOTICE OF SUBMISSION OF FIRST AMENDED FINAL JUDGMENT; EXHIBIT "1; " CERTIFICATE OF SERVICE OCT 26 FIRST AMENDED FINAL JUDGMENT 0123 17 NOV 16 NOTICE OF ENTRY OF JUDGMENT 0124 18 NOV 16 MAILED/DELIVERED COPIES OF THE NOTICE OF ENTRY OF JUDGMENT TO PARTIES THEREIN 4 43 COMPUTERIZED INDEX VOL. 5 3CC14-1-000223 06-09-2014 CIVIL 02 PAGE 2016 NOV 16 NOTICE OF APPEAL; EXHIBITS "A" - "B" ; CERTIFICATE OF 0125 19 SERVICE (EFILED IN CARP-16-0000813 , 11/16/16 , 11 : 14 A.M. ) DEC 08 APPLICANT-APPELLANT CONNECTIONS NEW CENTURY PUBLIC 0126 19 (A) CHARTER SCHOOL'S MOTION TO EXTEND DEADLINE TO FILE NOTICE OF APPEAL; MEMORANDUM IN SUPPORT OF MOTION; DECLARATION OF GLADYS L. CROWDER; DECLARATION OF GREGG M. USHIRODA; EXHIBITS 1-3 ; NOTICE OF HEARING OF MOTION AND CERTIFICATE OF SERVICE (HRG: DECEMBER 22, 2016 8 : 30 A.M. JUDGE FUJINO) (FILED EX OFFICIO) DEC 09 INTERVENOR-APPELLEE JEFFREY COMES ' RESPONSE TO 0127 20 APPLICANT-APPELLANT NEW CENTURY PUBLIC CHARTER SCHOOL' S MOTION TO EXTEND DEADLINE TO FILE NOTICE OF APPEAL FILED DECEMBER 8 , 2016 ; EXHIBITS "A, " "B" AND "C; " CERTIFICATE OF SERVICE (HRG: DECEMBER 22, 2016 8 : 30 A.M. JUDGE FUJINO) DEC 13 APPLICANTS-APPELLANTS COMMUNITY BASED EDUCATION 0125 21 SUPPORT SERVICES ' STATEMENT OF NO POSITION AND NON-APPEARANCE TO APPLICANT-APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOLS ' MOTION TO EXTEND DEADLINE TO FILE NOTICE OF APPEAL FILED ON DECEMBER 8 , 2016 ; CERTIFICATE OF SERVICE (HRG: DECEMBER 22, 2016 8 : 30 A.M. JUDGE FUJINO) DEC 22 ORDER GRANTING APPLICANT-APPELLANT CONNECTIONS NEW 0129 22 CENTURY PUBLIC CHARTER SCHOOL' S MOTION TO EXTEND DEADLINE TO FILE NOTICE OF APPEAL FILED DECEMBER 8 , 2016 (HEARING DATE: 12/22/16 ® 8 : 30 AM JUDGE FUJINO) DEC 28 NOTICE OF APPEAL; EXHIBITS "A" - "C" ; CERTIFICATE OF 0130 23 SERVICE (EFILED IN CAAP--16-0000879, 12/23/16 , 1 : 33 P.M. ) 0 # 425 COMPUTERIZED INDEX VOL. 6 3CC14-1-000223 06-09-2014 CIVIL 02 COMMUNITY BASED EDUCATION SUPPHONG, TED H S A3569 AGENCY APPEAL 503 CONNECTIONS NEW CENTURY PUBLICSIU, CARTER K. K. S . A7313 WINDWARD PLANNING COMMISSION, SELF, AMY GAIL A7628 DEPARTMENT OF PLANNING, COUNTY SANDRA SONG, IN HER CAPACITY A JEFFREY COMES, INTERVENOR MATSUKAWA, MICHAEL J A1885 SIDNEY FUKE, INTERVENOR' S REPROKAMOTO, ALAN M A1826 TERENCE YOSHIOKA, INTERVENOR' SOKAMOTO, ALAN M A1826 PAGE 2017 JAN 13 ***FOR PRIOR ENTRIES, SEE FILE NO. 5*** 1 SECOND AMENDED FINAL JUDGMENT 0131 FEB 07 NOTICE OF APPEAL; EXHIBITS "A" - "B" ; CERTIFICATE 0132 2 OF SERVICE (E-FILED IN THE INTERMEDIATE COURT OF APPEALS UNDER CAAP-17-0000050 ON 01/31/17) tltl�� 1 H1H 0INAL CIVIL INFORMATION SHEET I. PLAINTIFF(S) I (a) PLAINTIFF ATTORNEY(NAME&NUMBER) COMMUNITY BASED EDUCATION Ted H. S. Hong#3569 SUPPORT SERVICES DEFENDANT ATTORNEY(IF KNOWN) Unknown II NATURE OF SUIT ❑ (101) Contract ❑ (201) Motor Vehicle Tort ❑ (301) Assault&Battery U (302) Construction Defects ❑ (303) Medical Malpractice U (304( Legal Malpractice ❑ (306) Product Liabifly ❑ (399) Other Non-Vehicle Tort ❑ (401) Condemnation DEFENDANT(S) ❑ (501) Foreclosure ❑ (511( Agreement of Sale Foreclosure WINDWARD PLANNING COMMISSION, COUNTY OF d (503) Agency Appeal HAWAII; DEPARTMENT OF PLANNING, COUNTY OF ❑ (504) Declaratory Judgment HAWAII, U (599) Other CIVJ Action and SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, $' Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Orr,". � SpA =nC ` 4r III.ORIGIN iA Original Proceeding ❑ B Transfer from District Court ❑ C Transfer from another Circuit IV DEMAND s Not Applicable V JURY DEMAND VI. CLASS ACTION VII REQUEST TO EXEMPT FROM ARBITRATION U YES Li YES U YES W NO NO NO VIII.RELATED CASE(S) JUDGE DOCKET RESERVED FOR COURT USE IX SIGNATU F ATTO�F ORD 24 - I - 0223 CIV NO 1C-P-167 dr FILED Clf£UI C¢caa.T OF �.AAj%1,0F H?#A T TED H. S. HONG 3569 Attorney at Law P. O. Box 4217 Hilo, HI 96720 Telephone No. 808.933.1919 s Facsimile No. 808938.8281 r". ted@tedhonglaw.com Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII 14 - 1 - 0225 COMMUNITY BASED EDUCATION ) CIVIL NO. SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) NOTICE OF APPEAL TO CIRCUIT COURT; STATEMENT OF THE CASE; vs. ) EXHIBITS "1," - "2;" DESIGNATION OF CONTENTS OF RECORD ON APPEAL; WINDWARD PLANNING COMMISSION,) ORDER FOR CERTIFICATION AND COUNTY OF HAWAII; DEPARTMENT ) TRANSMISSION OF RECORD ON OF PLANNING, COUNTY OF HAWAII, ) APPEAL; CERTIFICATE OF SERVICE Appellees, ) and ) SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY GOMES, ) Intervenor; SIDNEY FUKE, Intervenor's ) Representative; TERENCE YOSHIOKA, ) Intervenor's Representative, ) Intervenor-Appellees. ) ) NOTICE OF APPEAL TO CIRCUIT COURT COMES NOW Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES (hereinafter referred to as "CBESS"), by and through its undersigned counsel and � fP�ADi�N1a 4 .k I 6 1-4 zt�? j G I j 2A6" f pursuant to Rule 72 of the Hawaii Rules of Civil Procedure (hereinafter referred to as "HRCivP") and Section 91-14(g), Hawaii Revised Statutes (hereinafter referred to as "HRS"), and hereby notices its appeal from: (1) the Hearing Officer's Report dated April 7, 2014, attached hereto as Exhibit"I;"and, (2) County of Hawaii Windward Planning Commission's decision entered May 1, 2014 to uphold the Hearings Officer's report and recommendations to deny Special Permit Application(SPP 12-000138) to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5-006:141; and (3) the County of Hawai'i Windward Planning Commission's Findings of Fact, Conclusions of Law and Decision and Order, dated May 19, 2014, attached hereto as Exhibit"2." DATED: Hilo, Hawaii, .lune 6, 2014. Respectfully submitted, ED H. S. HO G Attorney at Law Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 1,4 - 1 - 0223 SUPPORT SERVICES ) (Agency Appeal) } Applicant-Appellant, ) STATEMENT OF THE CASE VS. ) WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING, COUNTY OF HAWAII, ) Appellees, ) and ) SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY K. GOMES, ) Intervenor; SIDNEY FUKE, Intervenor's ) Representative; and TERENCE ) YOSHIOKA, Intervenor's Representative, ) } Intervenor-Appellees. ) STATEMENT OF THE CASE Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES (hereinafter referred to as "CBESS"), by its undersigned counsel. pursuant to Rule 72(e), HRCivP, alleges for its Statement of the Case as follows: L JURISDICTION 1. This case is an appeal from: (a) Hearing Officer's Report dated April 7, 2014 (attached hereto as Exhibit"I"); (b) the County of Hawaii Windward Planning Commission's decision entered May 1, 2014 to uphold the Hearings Officer's report and recommendations to deny Special Permit Application (SPP 12-000138) to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5-006:141; and ( c) the County of Hawaii Windward Planning Commission's Findings of Fact, Conclusions of Law and Decision and Order, dated May 19, 2014, attached hereto as Exhibit "2," which is a final administrative agency decision, that denied CBESS' application for a Special Permit Application (SPP12-000138) to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5-006:141. 2. This Court has jurisdiction over this appeal pursuant to Section 91-14(g), HRS, and Rule 72, HRCivP. Pursuant to Hawaii Revised Statues, Section 91-14(a) which governs judicial review of contested case hearings: "Any person aggrieved by a final decision and order in a contested case. . . is entitled to judicial review." Hawaii Revised Statues, Section 91-14(b) states: proceedings for review shall be instituted in the circuit court within thirty days after the preliminary ruling or within thirty days after service of the certified copy of the final decision and order of the agency pursuant to the rule of the court[.] Appellant is aggrieved within the meaning of the statue for judicial review. Appellant was granted standing to participate in the Contested Case, actively participated in the Contested Case and received a ruling that is substantially to the detriment of the Appellant's respective cognizable legal interest in the outcome of the Contested Case. As the Hawaii Supreme Court held in Mahuiku v. Planning Commission, 65 Haw. 506 (1982): "One whose legitimate interest is in fact injured by illegal action of an administrative agency or officer should have standing to 2 appeal because justice requires that such party should have a chance to show that the action hurts his interest is illegal." 3. The present appeal is timely pursuant to Section 91-14, HRS. II. SUMMARY OF APPELLANT'S POSITION 4. The Appellant, Community Based Education Support Services ("CBESS") is a co- applicant in Special Permit Application No. 12-000138 to develop a K to 12 Charter School Campus with Dorm Facilities, Intergenerational Programs, a sustainable Agricultural Program and a Forestry/Conservation Program and related uses on approximately 70 acres of land situated in the State Land use Agricultural District located on both the southwest and northeast sides of Edita Street near its intersection with Kaumana Drive, South Hilo, Hawaii and further identified by Tax Map Key (3)2-5-006:141. 5. Appellee County of Hawaii Windward Planning Commission is the agency responsible for issuance of Special Permits pursuant to Chapter 205 of the Hawaii Revised Statues and Rule 6 of the County of Hawaii Planning Commission Rules of Practice and Procedure. 6. Intervenor-Appellee, Jeffrey K. Gomes resides at 281 Edita Street, Hilo, Hawaii. On March 7, 2013 the Windward Planning Commission voted to grant Appellee Gomes standing in a contested case as Intervenor. Appellee Gomes participated in the Contested Case hearing for Special Permit Application No. 12-000138. 7. Intervenor-Appellee Sidney Fuke resides at 1358 Mele Manu Street, Apt. C Hilo, Hawaii 96720. Appellee Fuke was identified as Appellee Gomes' agent/representative and participated and testified in the Contested Case hearing for Special Permit Application No. 12- 3 000138. 8. Appellee Terence Yoshioka resides at 1572 Mele Manu Street, Hilo, Hawaii 96720. Appellee Yoshioka submitted a petition to intervene in the proceedings. Appellee Yoshioka petition to intervene was denied. Appellee Yoshioka also identified himself as a representative of Appellee Gomes during the agency hearing and participated and testified in the Contested Case hearing for Special Permit Application No. 12-000138. 9. Appellee Sandra P. Song is the Hearing Officer for the Contested Case hearing for Special Permit Application No. 12-00138. Appellee Song presided over the Contested Case, developed and submitted a Hearing Officers Report (sem Exhibit "1," attached hereto) and her recommendations are reflected in the Findings of Fact, Conclusions of Law and Decision and Order adopted by the Windward Planning Commission on May 1, 2014 and May 19, 2014, respectively. See, Exhibit "2," attached hereto. 11I. HISTORY OF PROCEEDINGS 10. This case involves an application filed by CONNECTION NEW CENTURY PUBLIC CHARTER SCHOOL ("CONNECTIONS") and COMMUNITY BASED EDUCATION SUPPORT SERVICE ("CBESS") on July 25, 2012 with the County of Hawaii Planning Department, for a Special Permit, pursuant to Section 205-6, Hawaii Revised statutes ("HRS") and Rule 6 of the County of Hawaii Planning Commission Rules of Practice and Procedure (hereinafter "Commission Rules") to allow the development of a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres situated in the State Land Use Agricultural District, at Ponahawai, Kukuau 2", South Hilo, Hawaii, and further identified by Tax May Key ("TMK") (3)2-5-006:141, hereinafter "Property". 4 • e e t 11. The Property is owned by the State of Hawaii and is approximately 70 acres in size and is located in Kaumana, South Hilo, on the eastern side of the Island of Hawaii and is identified as Tax Map Key (3) 2-5-006:141. 12. The owner of the Property is the State of Hawaii, has entered into General Lease No. 5-6029 between the State of Hawaii and Connections New Century Public Charter School and it has consented to the request for the Special Permit to construct and operate a school. 13. On March 28, 2008 Connections received approval in principal from the State of Hawaii Board of Land and Natural Resources 14. In August of 2009 pursuant to Hawaii Revised Statutes (HRS), Chapter 343 (the EIS law) and associated Title 11, Chapter 200, Hawaii Administrative Rules (HAR), Department of Health (DOH), State of Hawaii a Draft Environmental Assessment (DEA) was prepared and distributed for agency and public comment. 15. Based on comments received on the DEA regarding potential impacts to Kaumana Cave the campus plan was reconfigured to avoid any potential conflicts with the surrounding community. 16. In August 2010 a Revised DEA was distributed for public and agency comment. 17. On October 22, 2010 the State of Hawaii Department of Land and Natural Resources determined that the project will not have significant environmental effects and issued a Finding of No Significant Impact (FONSI). 18. On May 1, 2012, pursuant to Section 171-16( c), Hawaii Revised Statues, the Board of Land and Natural Resources provided notice of its intent to lease the Property for a school. 19. On July25, 2012, Appellant transmitted the Special Permit Application to the County 5 of Hawaii Planning Department, hereinafter ("Planning Department"). 20. On July 31, 2012 the Planning Department acknowledged receipt of the Special Permit Application and distributed it for agency review and comment. 21. On August 6, 2012, in accordance with Planning Commission's Rule 4, the Appellant provided notice of the Special Permit Application on surrounding property owners and lessees of record within 500-feet of the perimeter boundary of the Property. 22. On August 10, 2012, in accordance with Chapter 25 (Zoning Code), Article 2, Division 1, Section 25-2-12, Hawaii County Code 1983 (2005 Edition) and Planning Commission Rules of Practice and Procedure, the Appellant posted a sign on the Property notifying the public of the application. 23. On October 19, 2012, in accordance with Planning Commission's Rule 4, the Appellant provided notice of the Special Permit Application to surrounding property owners and lessees of record within 500-feet of the perimeter boundary of the Property of a public hearing by the Windward Planning Commission. 24. On October 19, 2012 the Appellant also provided information to property owners and lessees of record within 500-feet of the perimeter boundary of the Property of a Petition of Standing in a Contested Case Hearing. 25. On October 29, 2012, based on new instructions from the Planning Department, the Appellant provided an Amended and Revised Notice to property owners and lessees of record with 500-feet of the perimeter boundary of the Property. 26. The Windward Planning Commission held public hearings on the Special Permit Application on November 9, 2012, December 6, 2012, January 10, 2013 and March 17, 2013. 6 27. At the public hearing held on January 10, 2013, the Windward Planning Commission moved to deny the Special Permit Application and instructed the Commission staff to prepare proposed findings of fact, conclusion of law and order, which would be considered for adoption by the Commission at its meeting of March 7, 2013. 28. On March 7, 2013, the Windward Planning Commission suspended the preparation of the findings of fact, conclusions of lave and order, and granted a request by the Appellant for a Contested Case on the application. 29. The Planning Department received a Petition for Standing in Contested Case Hearing from Jeffrey Gomes on March 7, 2013. Mr. Gomes is an adjacent property owner. Mr. Gomes was granted standing at the Windward Planning Commission's March 7, 2013 meeting. 30. On March 7, 2013 the Windward Planning Commission also confirmed the Appellant was a Party in the Contested Cased Hearing. 31. On July 12, 2013 the Planning Department provided notice that Appellee Sandra P. Song, Esq. would serve as Hearing Officer in the Contested Case. 32. On September 4, 2013 Appellant submitted a notice of No Objections to the Planning Commission Record. 33. On September 5, 2013, County of Hawaii Planning Director Duane Kanuha submitted a notice of No Objection to the Planning Commission Record. 34. On October 17, 2013 Appellant CBESS submitted a Joint Pre-Hearing Brief. 35. On October 21 and 22, 2013, November 12, 2013, January 8 and 22, 2014, Hearings Officer Sandra P. Song, Esq. presided over the Contested Case Hearing on the matter now under appeal. 7 36. On November 4, 2013, after the contested case hearing had commenced, a petition to intervene in the proceedings was filed by Appellee YOSHIOKA. 37. On November 5, 2013, Appellant CBESS submitted an Errata to the Joint Pre- Hearing Brief. 38. On November 8, 2013 Hearing Officer SONG denied Appellee YOSHIOKA's petition to intervene pursuant to Rule 4-7(a) of the Planning Commission Rules. 39. The Contested Case was closed on January 22, 2014. 40. On February 12, 2014, pursuant to the deadlines set on the matter Appellant CBESS submitted its Joint Proposed Findings of Fact, Conclusions of Law and Decision and Recommendation. 41. On February 12, 2014, pursuant to the deadlines set on the matter, Appellee GOMES submitted its Proposed Findings of Fact, Conclusions of Law and Decision and Order. 42. On February 12, 2014, pursuant to the deadlines set on the matter the County of Hawaii Planning Director provided notice on Taking No Position as to the Findings of Fact, Conclusions of Law and Decision and Order. 43. On April 7, 2014, Hearings Office SONG transmitted the Hearing Officer's Report. 44. On April 21, 2014, Appellant CBESS transmitted Exceptions to Hearing Officer SONG's Report. 45, On April 21, 2014, Appellant CBESS transmitted a Request for Oral Argument before the Windward Planning Commission. 46. On April 21, 2014, County of Hawaii Planning Director Duane Kanuha transmitted Exceptions to Hearing Officer SONG's Report. 8 47. On April 28, 2014 Appellee GOMES transmitted Support to Hearing Officer SONG'S Report. 48. On April 28, 2014 Appellee GOMES transmitted a Request for Oral Argument before the Windward Planning Commission. 49. The County of Hawaii Windward Planning Commission considered Appellant CBESS application and Hearing Officer SONGS's recommendation and heard public testimony at its public hearing on the matter on May 1, 2014. The County of Hawaii Windward Planning Commission allowed Appellant CBESS and Appellees FUKE, as representative agent for Appellee GOMES to present oral argument. 50. On May 1, 2014, Appellee County of Hawaii, Windward Planning Commission members, GONZALES, ISHIBASHI, MOSES and ONO voted to uphold Hearing Officer SONG'S Report and Recommendations to deny Special Permit No. 12-000138. 51. The County of Hawaii Windward Planning Commission issued its Findings of Fact, Conclusions of Law, and Decision and Order on May 19, 2014. 52. Pursuant to Section 91-14, HRS and Rule 72(b), Hawaii Rules of Civil Procedure, this appeal timely follows. IV. STATEMENT OF POINTS OF ERROR 53. The Appellees' decisions including the: (a) Hearing Officer's Report dated April 7, 2014 (attached hereto as Exhibit "1"); (b) the County of Hawaii Windward Planning Commission's decision entered May 1, 2014 to uphold the Hearings Officer's report and recommendations to deny Special Permit Application(SPP12-000138) to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land 9 situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5-006:141; and ( c) the County of Hawai'i Windward Planning Commission's Findings of Fact, Conclusions of Law and Decision and Order, dated May 19, 2014, attached hereto as Exhibit "2," which is a final administrative agency decision, that denied CBESS' application for a Special Permit Application (SPP12-000138) to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5-006:141, were was erroneous for some or all of the following reasons: (1) It was in violation of statutory provisions; (2) it was in excess of the statutory authority or jurisdiction of the agency; (3) it was made upon unlawful procedure; (4) it was affected by other error of law; (5) it was clearly erroneous in light of the reliable, probative, and substantial evidence of the whole record; and (6) it was arbitrary, capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. See, Sec. 91-14(g), Hawaii Revised Statutes (hereinafter referred to as "HRS"). The following points and errors, include but are not limited to: A. (1) Hearing Officer's Report dated April 7, 2014 (attached hereto as Exhibit "1"); (2) the County of Hawaii Windward Planning Commission's decision entered May 1, 2014 to uphold the Hearings Officer's report and recommendations to deny Special Permit Application (SPP12-000138) to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District identified by Tax Map Key(3)2-5-006:141; and (3) the County of Hawai'i Windward Planning Commission's Findings of Fact, Conclusions of Law and 10 Decision and Order, dated May 19, 2014, attached hereto as Exhibit "2," which is a final administrative agency decision, that denied CBESS' application for a Special Permit Application (SPP12-00013$) to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5-006:141.; B. The Appellee-Commission erred in upholding a Hearing's Officer Report, and Recommendations, Findings of Fact, Conclusions of Law and Decision and Order ("FOF/COL/DO" dated April 7, 2014 ) which omitted substantial and material evidence; C. Appellee-Song and Appellee-Commission failed to acknowledge and deliberately ignored overwhelming expert/technical witness, evidence, information and testimony within the Record and/or presented during the Contested Case proceedings; D. Appellee-Song and Appellee-Commission's decisions of April 7, 2014, May 1, 2014 and May 19, 2014, were made in violation of existing land use law or case law; E. Appellee-Song and Appellee-Commission failed to cite to any expert/technical/legal evidence within the Record and/or presented during the Contested Case proceedings that: (1) supported the Hearing Officer's Report dated April 7, 2014 (attached hereto as Exhibit "1"); (2) the County of Hawaii Windward Planning Commission's decision entered May 1, 2014 to uphold the 11 Hearings Officer's report and recommendations to deny Special Permit Application (SPP12-000138) to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5-006:141; and (3) the County of Hawai'i Windward Planning Commission's Findings of Fact, Conclusions of Law and Decision and Order, dated May 19, 2014, attached hereto as Exhibit "2," which is a final administrative agency decision, that denied CRESS' application for a Special Permit Application(SPP 12-000138) to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5-006:141, F. Appellee-Song and Appellee-Commission failed to cite any expert/technical/legal evidence within the Record and/or presented during the Contested Case proceedings that mitigative measures or the conditions of approval proposed would not adequately address any impact or effect on public agencies; G. Appellee-Commission committed substantial error by failing to consider Exceptions by the Appellant CBESS which cited expert/technical/legal evidence supported by the Record which noticeably contradicts their respective FOF/COL/DO; H. Appellee-Commission committed substantial error by failing to consider Exceptions by the Planning Director which cited expert/technical/legal 12 evidence supported by the Record that patently contradicts the FOF/COL/DO; I. Appellee Song and Appellee-Commission committed substantial error by unlawfully overreaching its respective authority in finding that mitigative measures would not be sufficient to grant the Appellant's application; J. Appellee-Song and Appellee-Commission committed substantial error by unlawfully overreaching their respective authority by circumventing the authority of the Planning Director to interpret the County General Plan; K. Appellee-Song and Appellee-Commission committed substantial error by overreaching their respective authority by circumventing the authority of the State Office of Planning to interpret Hawaii Administrative Rules (HAR) §§15- 15-95 and 96 and Hawaii Revised Statues (HRS) §205-6. L. Appellee-Song and Appellee-Commission committed substantial error by violating the law, factual record and procedural rules at the contested case hearing and the May 1, 2014 Windward Planning Commission meeting. V. PRAYER FOR RELIEF The Appellant respectfully requests that this Honorable Court reverse,remand and modify the Decision and Order and grant relief to Appellant CBESS, including but not limited to the following: A. Reverse Appellee-Song's Hearing Officer's Report dated April 7, 2014 (attached hereto as Exhibit "I"), as violating the law and committing substantial error; B. Reverse, remand and modify the Findings of Fact, Conclusions of Law 13 and Decision and Order adopted by the Windward Planning Commission on May 1, 2014 and May 19, 2014, respectively (attached hereto as Exhibit "2") and either: (1) grant in whole, CBES S' application of July 25, 2012, filed with the County of Hawaii Planning Department, for a Special Permit, pursuant to Section 205-6, Hawaii Revised Statutes ("HRS") and Rule 6 of the County of Hawaii Planning Commission Rules of Practice and Procedure (hereinafter "Commission Rules") to allow the development of a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres situated in the State Land Use Agricultural District, at Ponahawai, Kukuau 2"d, South Hilo, Hawaii, and further identified by Tax May Key ("TMK") (3)2-5-006:141, or (2) remand the matter to the Appellee Windward Planning Commission with the specific instruction to grant in whole, CBESS' application of July 25, 2012, filed with the County of Hawaii Planning Department, for a Special Permit, pursuant to Section 205-6, Hawaii Revised Statutes ("HRS") and Rule 6 of the County of Hawaii Planning Commission Rules of Practice and Procedure (hereinafter "Commission Rules") to allow the development of a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres situated in the State Land Use Agricultural District, at Ponahawai, Kukuau 2°d South Hilo, Hawaii, and further identified by Tax May Key ("TMK") (3)2-5- 006:141; C. The Court order the Appellees to pay the Appellant's attorney's fees 14 and costs in the present case. DATED: Hilo, Hawaii, June 6, 2014. Respectfully submitted, ED IF S. HO G Attorney at Law Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 15 SANDRA PECHTER SONG 1552 10 Kamehameha Avenue Hilo,Hawaii 96720 Tel. No. (808) 933-9212 Fax No. (808)935-3945 Hearing Officer BEFORE THE PLANNING COMMISSION COUNTY OF HAWAII In the Matter of ) SPP No. 12-000138 } CONNECTIONS NEW CENTURY PUBLIC ) HEARING OFFICER'S REPORT; CHARTER SCHOOL and COMMUNITY ) CERTIFICATE OF SERVICE BASED EDUCATION SUPPORT ) SERVICES ) Hearing Dates: October 21, 2013, October 22, 2013,November 12, 2013, January 8, 2014 Application for Special Permit Application } and January 21, 2014 No. 12-000138 } TMK: (3) 2-5-006-141; Kaumana, South ) Hilo, Hawaii ) HEARING OFFICER'S REPORT This matter came on for contested case hearing before your Hearing Officer on October 21,and 22, 2013, November 12, 2013,January 8 and 21, 2014. At the hearing, Applicant, Connections New Century Public Charter School was represented by its counsel, Carter K. Siu, and Applicant Community Based Education Support Services was represented by its counsel Ted H.S. Hong. Applicants Connections New Century Public Charter School and Community Based Education Support Services will hereinafter be collectively referred to herein as "Connections". AIso at the hearing,the County of Hawaii Planning Director(hereinafter"Director") was represented by his counsel, Amy G. Self; and Intervenor Jeffrey K. Gomes (hereinafter "Gomes"), represented himself pro se. At the close of the hearing, the parties were provided with an opportunity to submit proposed findings of fact in this case. Connections and Gomes submitted proposed findings on February 12, 20I4. The Director submitted a statement on February 12, 2014 indicating that he was not taking any position in this matter and would not be filing proposed findings of fact. The EXHIBIT "1." Director did,however,reserve the right to submit exceptions to findings submitted by other parties in this matter. After considering all of the evidence presented at the hearing,the entire record in this proceeding, and the proposed findings of fact submitted by Connections and Gomes,your Hearing Officer makes the following findings of fact, conclusions of law, and recommended order in this case: FINDINGS OF FACT 1, Procedural Back re ound 1. This matter involves an application filed by Connections on July 25, 2012, for a special permit,pursuant to Section 205-6, Hawaii Revised Statutes ("HRS") and Rule 6 of the County of Hawaii Planning Commission Rules of Practice and Procedure (hereinafter "Commission Rules")to allow the development of a charter school campus with dorm facilities and related improvements for students in kindergarten through twelfth grade (hereinafter,the "Development"), on 70.15 acres of land situated within the State Land Use Agricultural District, at Ponahawai, Kukuau 2nd, South Hilo, Hawaii, commonly referred to as the Kaumana area of Hilo, designated by State of Hawaii Tax Map Key("TMK") (3) 2-5-006-141 (hereinafter,the "Property"). 2. Connections has ]eased the Property on which the Development is proposed from the State of Hawaii under General Lease No. S-6029. 3. Notices of the Windward Planning Commission of the County of Hawaii (hereinafter "Commission") hearings on the proposed Development were provided to property owners surrounding the proposed Development. 4. The Commission held public hearings on the Connections application on November 12, 2012, December 6, 2012 and January 10, 2103. At the hearing held on January 10, 2013,the Commission voted to deny the Connections application and instructed the Commission staff to prepare proposed findings of fact, conclusions of law and order, which would be considered for adoption by the Commission at its meeting of March 7, 2013. 5. At the Commission meeting of March 7, 2013,the Commission suspended the preparation of the findings of fact, conclusions of law and order, and granted a request by 2 Connections for a contested case on the subject application. Gomes also submitted a petition to intervene in this matter on March 7, 2013, and the Commission admitted him as a party to the proceeding. 6. A petition to intervene in this proceeding was filed by Terrence Yoshioka on November 4, 2013, after the contested case hearing in this proceeding had already commenced. On November 8, 2013, your Hearing Officer denied this petition in accordance with Rule 4-6 of the Commission Rules, on the ground that the subject petition was untimely filed. 7. The Director is a party to this proceeding pursuant to Rule 4-7(a) of the Commission Rules. The Director initially recommended approval of the Connections application, subject specific conditions, but took no position on the application at the contested case hearing. 8. The subject application involves a parcel of land greater than fifteen acres in area. Therefore, any permit approved by the Commission is subject to final approval by the State Land Use Commission II. Proposed Development A. General Description 9. The Connections application proposes the development of a K to 12 charter school campus with dorm facilities, and an intergenerational program that would provide childcare and elder care at a single facility on the Development, together with related uses on the 70-acre parcel of land. As the site is bisected by Edita Street,the lower portion of the Development would consist of the major school or campus facilities, while the upper portion would be used for outdoor type of educational programs, including a forestry preservation program. 10. The lower campus would support a projected 167 elementary students, 107 intermediate students, 107 high school students(381 K through 12 students) and 25 intergenerational clients. Also included would be a dormitory capable of supporting 30 students, a gymnasium, kitchen/dining facility, library/resource center,caretaker's residence and other related facilities. Two parking lots capable of supporting 140 parking stalls would be provided. 11. The Development would relocate and expand the existing charter school which is presently operating from two separate campuses. The elementary and middle schools are located in the Kress Building on Kamehameha Avenue, in downtown Hilo, and the high school is located 3 in leased facilities at the Nani Mau Gardens,just outside of Hilo town. 12. Connections proposes having 50 full-time and 17 part-time employees at full build- out of the Development, which is the same number presently employed for this charter school. 13. Connections anticipates that 50% of the student population will come from the Hilo area and 50%from the Puna area miles away from the Development. The present student population for this charter school is composed primarily of students from these two geographic areas. 14. The Development does not propose to establish a charter school on the Property to serve the needs of immediate vicinity in the Kaumana area of Hilo, although some students from the area may attend this school. 15. The Development is intended to be constructed in 9 phases and completed within lb to 25 years. The first phase would include the caretaker's residence, high school and administration building, with the projected opening to be within 2.5 to 3.5 years. B. Public Utilities and Services Access/Traffic 16. Access to the Development is proposed from Edita Street which connects with Kaumana Drive, a major Hilo artery. Both roads are owned and maintained by the County of Hawaii. Edita Street has a 60-foot right-of-way width, with a 48-foot wide pavement width fronting the Development. The paved area accommodates two 20-foot wide travel lanes, a 20- foot wide shoulder on the northeast side of the road, and an 8-foot wide shoulder on the southwest side. Edita Street is in good condition; however, the Hawaii County Police Department recommended that the unpaved shoulder along Edita Street extending from Kaumana Drive to the Development should be paved so that pedestrians could safely walk along the shoulder. 17. A Traffic Impact Analysis Report ("TIAR") dated June 28, 2010, was prepared in conjunction with the Connections application for the purpose of evaluating the Development's impact at the Development's entrance at Edita Street and at the Edita and Kaumana drive intersection. Based upon traffic counts taken on May 28,2009,the TIAR found that the current level of service or LOS operates as LOS "A"or`B",meaning that the traffic service is 4 uncongested. The TIAR also concluded that upon full build-out of the Development, the LOS will continue to operate at levels "A"or"B". Although the TIAR concludes that traffic will not be adversely affected by reason of the Development,the County Department of Public Works recommended that a separate left turn lane onto the Development from Edita Street should be constructed to alleviate congestion, and that Connections should prepare a comprehensive traffic management plan for the Development. 18. Notwithstanding the findings of the TIAR and the recommendations of the Police Department and Department of Public Works, the area residents uniformly expressed concerns about the adverse traffic impact of the Development along Edita Street and Kaumana Drive. Also,residents objected that the TIAR was four years old and the traffic counts contained in the TIAR were taken when certain schools were not in session. Water 19. A maximum of 4,200 gallons per day(hereinafter"gpd") of water or seven(7)water units from an existing 8-inch waterline on Kaumana Drive for the upper campus and from an existing 8-inch waterline on Edita Street for the lower campus, is available from the County of Hawaii municipal water system to service the entire Development. Based on a 60 gpd per student standard, 4,200 gallons of County water could only support 70 students. At full build-out the entire Development would require 26,100 gpd. 20. Notwithstanding the unavailability of potable water from the County system for the Development,the existing 8-inch waterline within Edita street is adequate to provide the required 2,000 gallons of water per minute for fire protection of the proposed Development. 21. The available water from the County of Hawaii municipal water system is insufficient to support the first phase of the Development. 22. Connections has proposed using water efficient fixtures and supplementing the available County water with either a catchment system for non-potable water or developing an additional water source. However, Connections has not produced any evidence to demonstrate that it has or can develop sufficient water for the Development. Wastewater 23. Connections is proposing to provide its own wastewater system meeting the 5 requirements of the State of Hawaii Department of Health(hereinafter"DOH"). Connections prefers installing an ecological/biological wastewater system called the "Living Machine". However, should such a system prove to be unfeasible, Connections would install a traditional septic system with leach fields or any other system required by DOH. Drainaye 24. The Property is located within Zone"X" on the U.S. Department of Army Corps of Engineers Flood Insurance Rate Map, which means that the Property is outside the 500-year flood plain. Notwithstanding this flood designation, during severe storms water has been known to overtop the concrete channel and flow across Edita Street,resulting in flooding of adjacent properties. Connections proposes to prepare detailed engineering studies for the purpose of developing appropriate drainage plans to address the potential flood hazard posed by the present condition of Edita Street. Utilities 25. Electrical and telephone services are available to the Property through overhead lines along Edita Street and Kaumana Drive. Public Safety 26. The Hawaii County Police Department expressed concern that the Development would increase noise, crime and traffic. However,there was no evidence that the Police Department lacks the ability to provide police protection for the Development. III. PHYSICAL CHARACTERISTICS OF THE PROPERTY AND SURROUNDING AREAS 27. The Property is presently vacant and undeveloped. 28. Surrounding lands to the south and west of the Property are zoned A-1 a, with properties further south being zoned A-20a and-10A. Lands to the north of the Property are zoned RS-10 and RS-I5, with some lands zoned A-3a further north across Kaumana Drive. One parcel is also zoned Open adjoining the northeast comer of the lower portion of the Property. Surrounding uses consist mainly of single-family residences with some vacant lands, and a small percentage of agricultural activity. 29. The soils on the Property are primarily composed of pahoehoe Iava flow. The State 6 Department of Agriculture's map showing agricultural lands of importance to the Stake of Hawaii shows the Property as being unclassified. Also,the Land Study Bureau classifies the soil on the Property under its detailed land classification system, as "D"or"Poor" for agricultural activity. 30. No archaeological sites have been found on the Property, and its is surmised that any pre-existing sites would have been destroyed by the lava flow of 1880-1881. Although Connections submitted a request to the State Historic Preservation Division("SHPD"), by letter dated August 17, 2010, requesting a"no-effect"determination from that agency, SHPD has not responded to the request. 31. A portion of the Kaumana Cave is accessible from the upper portion of the Property. Connections is proposing to refrain from constructing any major school facilities on the upper portion of the Property and to maintain a minimum 100-foot buffer on either side of the cave alignment to alleviate concerns about impact from the Development on the cave ecosystem. 32. A botanical survey of the Property identified 11 native plant species, but none of those species are considered protected species. 33. Invertebrate, mammalian and field surveys were conducted on the Property. No protected species were documented to be present on the Property. 34. No traditional or customary native Hawaiian rights have been identified as being exercised on the Property. Likewise,there is no known public access to the mountains or the shoreline that runs through the Property. 1V. STATE AND COUNTY PLANS 35. The Property is within the State Land Use Agricultural District. A school is not a permitted use within the Agricultural district; however, a school may be permitted in this district if a special permit is obtained for such use pursuant to Section 205-5, HRS and Rule b of the Commission Rules. 35. The County of Hawaii General Plan Land Use Pattern Allocation Guide ("LUPAG") Map designates the Property for low density urban uses. The LUPAG designation of Low Density urban use, allows for residential uses, with ancillary community and public uses, and neighborhood and convenience-type commercial uses. The Development is not proposed to be a community or public use for the Kaumana area of Hilo. 7 37. The County of Hawaii zoning for the Property is Agricultural with a minium lot size of one-acres(A-1 a). Under Section 25-5-72(d) of the Hawaii County Code, a school is permitted in an Agricultural zoned district provided that a special permit is issued for the use if the land is within the State Land Use Agricultural District. 38. The Development, which is proposed to be located on State land, is subject to the Hawaii State Environmental Impact Statement law, Chapter 343, HRS. Connections prepared an environment assessment in accordance with Chapter 343, and declaration with a finding of no significant impact was issued for the Development by the State of Hawaii Department of Land and Natural Resources. 39. The Property is not situated within the Special Management Area("SMA"), since it is located over three miles from the nearest shoreline. Thus,the coastal environmental considerations relating to the SMA are not applicable to the subject Property. V. SPECIAL PERMIT REQUIREMENTS 40. HRS Section 205-6, which governs special permits, provides in pertinent as follows: "(a) The county planning commission may permit certain unusual and reasonable uses within agricultural . . . districts other than those for which the district is classified. Any person who desires to use the person's land within an agricultural . . .district other than for an agricultural . . .use. . .may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired. . "(c)The county planning commission may, under such protective restrictions as may be necessary, permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter... "(d) Special permits for land the area of which is greater than fifteen acres. . . shall be subject to approval by the land use commission. The land use commission may impose additional restrictions as may be necessary or appropriate in granting the approval including the adherence to representations made by the applicant." 41. Planning Commission Rule 6-7,provides, in pertinent part, that "[t]he Commission shall not approve a Special Permit unless it is 8 found that the proposed use "(a) Is an unusual and reasonable use of land situated within the Agricultural. . .District. . .; and "(b) Would promote the effectiveness and objectives of Chapter 205, Hawaii Revised Statutes, as amended. "The Commission shall also consider the criteria listed under Section 6.3(b)(5)(A) through(G).- 42. The seven criteria under Planning Commission Rule 6.3(b)(5)(A)through(G) are: "(A) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations; "(B) The desired use shall not adversely affect surrounding properties; "(C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers, water,drainage, school improvements, and police and fire protection; "(D) Unusual conditions, trends and needs have arisen since the district boundaries and regulations were established; "(E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district; "(F) The proposed use will not substantially alter or change the essential character of the land and the present use; and "(G) The request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design plans." 43. Although Gomes asserts that the criteria for a use permit should be considered in the subject application, that criteria is not relevant to a special permit determination. VI. APPLICATION OF SPECIAL PERMIT CRITERIA TO THE DEVELOPMENT A. Land Use Law Obiectives 44. The purpose of the State Land Use Law is to preserve the lands of high agricultural 9 potential for agricultural use. The Property consists of land that is not considered highly valuable for agricultural uses. Thus, the use of the Property for a school is not contrary to the objectives sought to be accomplished by the State Land Use Law. 45. Likewise, the Development,which proposes the construction of a school for 381 students and related facilities is not akin to a major recreational theme park attracting 1.5 million people each year to the area. Therefore, such a development would not frustrate the objectives and effectiveness of the Hawaii's land use scheme and would not require a State land use boundary amendment in lieu of a special permit. Neighborhood Board No. 24 vs. State Land Use Commission, 64 Haw. 265, 272, 639, P.2d 1097, 1103 (1982). B. Affect on Surrounding Properties 46. Based upon the testimony from surrounding and neighboring property owners,the Development will have an adverse effect on surrounding properties by creating noise, traffic, and impacting the quality of life of the adjoining residents. 47. Measures proposed by Connections, regarding the establishment of building setbacks and roadway improvements to Edita Street do not appear to be sufficient to mitigate the overwhelming concerns raised by surrounding property owners. C. Burden on Public Agencies to Provide Services 48. There is insufficient water available from the County system to service the Development. Therefore, to allow the Development would unreasonably burden the Department of Water Supply to provide water for its facilities. 49. There is no evidence that Connections has the ability to develop a potable water source as a mitigating measure, previously proposed by the Director. 50. A mitigating measure previously proposed by the Director of limiting the number of students to the amount of potable water available to the project is not reasonable because Connections is proposing to construct a highschool for 107 students its first phase,when the potable water available would only allow for 70 students. 51. As such, the proposed use may unreasonably burden the County Department of Water Supply to provide water to the Development. 10 D. Unusual Conditions, Trends and Needs 52. Unusual conditions and needs have arisen since the establishment of this land use district in the 1970s, because the area in which the Property is located has essentially become residential in character. Also, the County General Plan LUPAG map recognizes this trend by designating the area for low density urban use. However, there was no evidence presented to demonstrate that location of a school that is not intended to specifically service the needs of the immediate community is such an unusual condition,trend or need that justifies location of the Development at this location. E. Suitability of Land for Agricultural Uses 53. The Land Study Bureau soil classification rating for the Property is "D" or"Poor", which suggests that the land may be unsuited for agricultural uses. 54. Connections is proposing to maintain the upper portion or nearly one-half of the Property for forestry use. In addition, Connections is proposing to construct greenhouses on the Property and conduct an agricultural program in conjunction with its curriculum. 55. Based upon the representations of Connections, it cannot be found that the Property is unsuited for agricultural uses. F. Alteration or Chante of the Essential Character of the Land and Present Use 56. The Property is presently a forest and is vacant of any structures. The lower half of the Property will be converted into a school with classrooms, dormitories, a gymnasium cafeteria and parking lots. 57. The Development of a school will change the essential character of the forested land and its undeveloped use. G. Consistency with the General Plan 5$, The County General Plan LUPAG map designates the Property for low density urban use. "Low density uses" under the General Plan include residential, with ancillary community and public uses, and neighborhood and convenience-type commercial uses. 59. The Development, which proposes a charter school that is not specifically intended to service the immediate community surrounding the school, is not consistent with the uses permitted in areas of low density urban use. 11 60. The Economic, Public Facilities and Land Use elements of the County General Plan all require consideration of social and community concerns as follows: Economic Element - Goal "Provide an economic environment that allows new, expanded, or improved economic opportunities that are compatible with the County's cultural, natural and social environment." Public Facilities Element- Goal "Encourage the Provision of public facilities that effectively service the community and visitor needs and seek ways of improving public service through better and more functional facilities in keeping with the environmental and aesthetic concerns of the community." Land Use Element- Policy "Encourage the development and maintenance of communities meeting the needs of its residents in balance with the physical and social environments." 61. The evidence has established significant concerns from the community regarding the compatibility of the Development with the surrounding community. 62. Although the County General Plan Public Facilities-Education course of action for South Hilo encourages the establishment of additional schools as the need arises, the proposed Development, at the subject location, is contrary to the General Plan. VII. UNUSUAL AND REASONABLE USE OF LAND 63. The construction of a school on the Property is an unusual use of the land because a school is not a permitted use in the State Land Use Agricultural District. However, the evidence presented does not demonstrate that the Development is a reasonable use of the Property. Specifically, Connections has not demonstrated how this school can be built without sufficient potable water resources. Nor, has Connections demonstrated how the development of a regional charter school on the Property that does not specifically service the needs of the immediate community and that is overwhelmingly objected to by the immediate community is a reasonable site for this facility. In addition, Connections has not demonstrated that the Development meets 12 most of the criteria to be considered by the Commission in the subject application. CONCLUSIONS OF LAW Based upon the foregoing Findings of Fact, the your Hearing Officer makes the following Conclusions of Law: 1. To the extent that any of the Findings of Fact constitute Conclusions of Law, or Conclusions of Law constitute Findings of Fact, they shall be considered and construed as such. 2. The Commission has jurisdiction over the subject special permit application, including the ability to deny or recommend its approval to the State Land Use Commission, pursuant to Section 205-6, HRS and Rule 6 of the Commission Rules, 3. Connections had the burden of proof on this matter before the Commission, including the burden of producing evidence as well as the burden of persuasion, by a preponderance of evidence,to demonstrate how its request is consistent with the guidelines for a special permit as outlined by Section 205-6, HRS and Rule 6 of the Commission Rules. Connections has failed to meet this burden. 4. The Development does not adequately meet the requirements or guidelines for a special permit as required by Section 205-6, HRS and Rule 6 of the Commission Rules, 5. The Development is not consistent with the County General Plan,particularly as to the impacts on the immediate community. HEARING OFFICER'S RECOMMENDATION Based upon the preceding Findings of Fact and Conclusions of Law, your Hearing Officer recommends to the Windward Planning Commission of the County of Hawaii that Special Permit Application SPP No. 12-000138 of Connections New Century Public Charter School and Community Based Education Support Servi es be denied. DATED: Hilo, Hawaii, 7 94 rq SANDRAAC ER ONG Hearing Officer 13 BEFORE THE PLANNING COMMISSION COUNTY OF HAWAII In the Matter of ) SPP No. 12-000138 CONNECTIONS NEW CENTURY PUBLIC ) CERTIFICATE OF SERVICE CHARTER SCHOOL and COMMUNITY ) BASED EDUCATION SUPPORT ) SERVICES ) Application for Special Permit Application ) No. 12-000138 ) TMK: (30 2-5-006-141; Kaumana, South ) Hilo, Hawaii ) CERTIFICATE OF SERVICE I hereby certify that on this date, a copy of the foregoing was duly served upon the following parties by depositing the same in the U. S, mail, postage prepaid, and by e-mailing a copy, addressed to: Ted H.,S. Hong, Esq. (ted tedhon law.com) P. O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant Community Based Education Support Services Carter K. Siu, Esq. ( arter.K.Siu hawaii. ov) Deputy Attorney General State of Hawaii 235 South Beretania Street,Room 304 Attorney for Applicant Connections New Century Charter School Amy G. Self, Esq. (aself c@co.hawaii.hi.us) Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for County of Hawaii Planning Director Jeffrey K. Gomes(kalani o� mesghawaiiantel.net) 281 Edita Street Hilo, Hawaii 96720 Intervenor pro se Daryn Arai (darai agco.hawaii.hi.us) Jeffrey Darrow (jdarrow&co.hawaii.hi.us) County of Hawaii Planning Department 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720 Windward Plannin Commission Staff DATED. Hilo, Hawaii, SANDRA PECHTER SONG Hearing Officer 2 County of Hawaii Planning Commission 101 Pauahi Street, Suite 3 Hilo, Hawai'i 96720-4224 Telephone: (808)961-8288 Facsimile: (808) 961-8742 BEFORE THE COUNTY OF HAWAII PLANNING COMMISSION In the Matter of SPP No. 12-000138 CONNECTIONS NEW CENTURY PUBLIC COUNTY OF HAWAII WINDWARD CHARTER SCHOOL AND COMMUNITY PLANNING COMMISSION'S BASED EDUCATION SUPPORT FINDINGS OF FACT,CONCLUSIONS OF SERVICES LAW AND DECISION AND ORDER; CERTIFICATE OF SERVICE Application for Special Permit Application No. 12-000138 Ar meat and Decision: Date: 5/1/14 TMK: (3)2-5-006-141; Kaamana, South Location: Aupuni Center, Hilo, Hawai'i Hilo, Hawaii COUNTY OF HAWAII WINDWARD PLANNING COMMISSION'S FINDINGS OF FACT CONCLUSIONS OF LAW AND DECISION AND ORDER The County of Hawai'i, Planning Commission submits its Findings of Fact, Conclusions of Law and Decision and Order pursuant to the request of the Windward Planning Commission of the County of Hawai'i at its May 1,2014, meeting in Hilo,Hawai'i. Present before the Commission were Ted H. S. Hong, counsel for Applicant Community Based Education Support Services; Carter K. Siu, Deputy Attorney General, for Applicant Connections New Century Public Charter School (hereinafter collectively referred to herein as "Connections"); Amy G. Self, Deputy Corporation Counsel, for County of Hawai'i Planning Director(herein as "Director"); Jeffery K. Gomes (herein as"Gomes"), Intervenor, Pro Se; and Sandra Pechter Song, the Hearing Officer(herein as "Hearing Officer"). The contested case hearings by the 1 EXHIBIT "I" Hearing Officer were held on October 21, and 22, 2013,November 12, 2013, January S and 22, 2014. FINDINGS OF FACT I. Procedural Background 1. This matter involves an application filed by Connections on July 25, 2012, for a special permit,pursuant to Section 205-6, Hawaii Revised Statutes ("HRS") and Rule 6 of the County of Hawaii Planning Commission Rules of Practice and Procedure(hereinafter "Commission Rules") to allow the development of a charter school campus with dorm facilities and related improvements for students in kindergarten through twelfth grade (hereinafter, the "Development"), on 70.15 acres of land situated within the State Land Use Agricultural District, at Ponahawai, Kukuau 2nd, South Hilo, Hawaii, commonly referred to as the Kaumana area of Hilo, designated by State of Hawaii Tax Map Key("TMK") (3)2-5-006:141 (hereinafter, the "Property"). 2. Connections has leased the Property on which the Development is proposed from the State of Hawai`i under General Lease No. 5-6029. 3. Notices of the Windward Planning Commission of the County of Hawaii (hereinafter "Commission")hearings on the proposed Development were provided to property owners surrounding the proposed Development. 4. The Commission held public hearings on the Connections application on November 9, 2012 [sic],December 6,2012 and January 10,2013. At the hearing held on January 10, 2013, the Commission moved [sic] to deny the Connections application and instructed the Commission staff to prepare proposed findings of fact, conclusions of law and order, which would be considered for adoption by the Commission at its meeting of March 7, 2013. 5. At the Commission meeting of March 7, 2013, the Commission suspended the preparation of the findings of fact, conclusions of law and order, and granted a request by Connections for a contested case on the subject application. Gomes submitted a petition to intervene in this matter on March 7, 2013, and the Commission admitted him as a party to the proceeding. 2 6. A petition to intervene in this proceeding was filed by Terrence Yoshioka on November 4, 2013, after the contested case hearing in this proceeding had already commenced. On November 8, 2013,the Hearing Officer denied this petition in accordance with Rule 4-6 of the Commission Rules, on the ground that the subject petition was untimely filed. 7. The Director is a party to this proceeding pursuant to Rule 4-7(a) of the Commission Rules. The Director initially recommended approval of the Connections application, subject to specific conditions,but took no position on the application at the contested case hearing. 8. The subject application involves a parcel of land greater than fifteen acres in area. Therefore, any permit approved by the Commission is subject to final approval by the State Land Use Commission. 11. Proposed Development A. General Descril2tion 9. The Connections application proposes the development of a K to 12 charter school campus with dorm facilities, and an intergenerational program that would provide childcare and elder care at a single facility on the Development, together with related uses on the 70-acre parcel of land. As the site is bisected by Edita Street, the lower portion of the Development would consist of the major school or campus facilities, while the upper portion would be used for outdoor type of educational programs, including a forestry preservation program. ` 10. The lower campus would support a projected 167 elementary students, 107 intermediate students, 107 high school students (381 K through 12 students) and 25 intergenerational clients. Also included would be a dormitory capable of supporting 30 students, a gymnasium, kitchen/dining facility, library/resource center, caretaker's residence and other related facilities. Two parking lots capable of supporting 140 parking stalls would be provided. 11. The Development would relocate and expand the existing charter school which is presently operating from two separate campuses. The elementary and middle schools are located in the Kress Building on Kamehameha Avenue, in downtown Hilo, and the high school is located in leased facilities at the Nani Mau Gardens,just outside of Hilo town. 12. Connections proposes having 50 full-time and 17 part-time employees at full build- out of the Development, which is the same number presently employed for this charter school. 3 13. Connections anticipates that 50%of the student population will come from the Hilo area and 50% from the Puna area miles away from the Development. The present student population for this charter school is composed primarily of students from these two geographic areas. 14. The Development does not propose to establish a charter school on the Property to serve the needs of the immediate vicinity in the Kaumana area of Hilo, although some students from the area may attend this school. 15. The Development is intended to be constructed in 9 phases and completed within 16 to 25 years. The first phase would include the caretaker's residence, high school and administration building, with the projected opening to be within 2.5 to 3.5 years. B. Public Utilities and Services Access/Traffic 16. Access to the Development is proposed from Edita Street which connects with Kaumana Drive, a major Hilo artery. Both roads are owned and maintained by the County of Hawaii. Edita Street has a 60-foot right-of-way width,with a 48-foot wide pavement width fronting the Development. The paved area accommodates two 20-foot wide travel lanes, a 20-foot wide shoulder on the northeast side of the road, and an 8-foot wide shoulder on the southwest side. Edita Street is in good condition; however, the Hawaii County Police Department recommended that the unpaved shoulder along Edita Street extending from Kaumana Drive to the Development should be paved so that pedestrians could safely walk along the shoulder. 17. A Traffic Impact Analysis Report ("T1AR")dated June 28, 2010,was prepared in conjunction with the Connections application for the purpose of evaluating the Development's impact at the Development's entrance at Edita Street and at the Edita and Kaumana Drive intersection. Based upon traffic counts taken on May 28, 2009, the TZAR found that the current level of service or LOS operates as LOS "A" or"B", meaning that the traffic service is uncongested. The TIAR also concluded that upon full build-out of the Development, the LOS will continue to operate at levels "A"or"B". Although the TZAR concludes that traffic will not be adversely affected by reason of the Development, the County Department of Public Works 4 recommended that a separate left turn lane onto the Development from Edita Street should be constructed to alleviate congestion, and that Connections should prepare a comprehensive traffic management plan for the Development. 18. Notwithstanding the findings of the TZAR and the recommendations of the Police Department and Department of Public Works, the area residents uniformly expressed concerns about the adverse traffic impact of the Development along Edita Street and Kaumana Drive. Also, residents objected that the TIAR was four years old and the traffic counts contained in the TIAR were taken when certain schools were not in session. Water 19. A maximum of 4,200 gallons per day(hereinafter"gpd") of water or seven (7)water units from an existing 8-inch waterline on Kaumana Drive for the upper campus and from an existing 8-inch waterline on Edita Street for the lower campus, is available from the County of Hawaii municipal water system to service the entire Development. Based on a 60 gpd per student standard, 4,200 gallons of County water could only support 70 students. At full build-out the entire Development would require 26,100 gpd. 20. Notwithstanding the unavailability of potable water from the County system for the Development, the existing 8-inch waterline within Edita Street is adequate to provide the required 2,000 gallons of water per minute for fire protection of the proposed Development. 21. The available water from the County of Hawaii municipal water system is insufficient to support the first phase of the Development. 22. Connections has proposed using water efficient fixtures and supplementing the available County water with either a catchment system for non-potable water or developing an additional water source. However, Connections has not produced any evidence to demonstrate that it has or can develop sufficient water for the Development. Wastewater 23. Connections is proposing to provide its own wastewater system meeting the requirements of the State of Hawaii Department of Health(hereinafter"DOH"). Connections prefers installing an ecological/biological wastewater system called the"Living Machine." 5 However, should such a system prove to be unfeasible, Connections would install a traditional septic system with leach fields or any other system required by DOH. Drainae 24. The Property is located within Zone"X"on the U.S. Department of Army Corps of Engineers Flood Insurance Rate Map, which means that the Property is outside the 500-year flood plain. Notwithstanding this flood designation, during severe storms water has been known to overtop the concrete channel and flow across Edita Street,resulting in flooding of adjacent properties. Connections proposes to prepare detailed engineering studies for the purpose of developing appropriate drainage plans to address the potential flood hazard posed by the present condition of Edita Street. Utilities 25. Electrical and telephone services are available to the Property through overhead lines along Edita Street and Kaumana Drive. Public Safety 26. The Hawaii County Police Department expressed concern that the Development would increase noise, crime and traffic. However, there was no evidence that the Police Department lacks the ability to provide police protection for the Development. III. PHYSICAL CHARACTERISTICS OF THE PROPERTY AND SURROUNDING AREAS 27. The Property is presently vacant and undeveloped. 28. Surrounding lands to the south and west of the Property are zoned A-1 a,with properties further south being zoned A-20a and A-I Oa [sie]. Lands to the north of the Property are zoned RS-l 0 and RS-15,with some lands zoned A-3a further north across Kaumana Drive. One parcel is also zoned Open adjoining the northeast comer of the lower portion of the Property. Surrounding uses consist mainly of single-family residences with some vacant lands, and a small percentage of agricultural activity. 29. The soils on the Property are primarily composed of pahoehoe lava flow. The State Department of Agriculture's map showing agricultural lands of importance to the State of Hawaii shows the Property as being unclassified. Also, the Land Study Bureau classifies the 6 soil on the Property under its detailed land classification system, as "D"or"Poor" for agricultural activity. 30. No archaeological sites have been found on the Property, and it is surmised that any pre-existing sites would have been destroyed by the lava flow of 1880-1881. Although Connections submitted a request to the State Historic Preservation Division ("SHPD"),by letter dated August 17, 2010,requesting a"no-effect'determination from that agency, SHPD has not responded to the request. 31. A portion of the Kaumana Cave is accessible from the upper portion of the Property. Connections is proposing to refrain from constructing any major school facilities on the upper portion of the Property and to maintain a minimum 100-foot buffer on either side of the cave alignment to alleviate concerns about impact from the Development on the cave ecosystem. 32. A botanical survey of the Property identified 11 native plant species, but none of those species are considered protected species. 33. Invertebrate, mammalian and field surveys were conducted on the Property. No protected species were documented to be present on the Property. 34. No traditional or customary native Hawaiian rights have been identified as being exercised on the Property. Likewise, there is no known public access to the mountains or the shoreline that runs through the Property. 1V. STATE AND COUNTY PLANS 35. The Property is within the State Land Use Agricultural District. A school is not a permitted use within the Agricultural district; however, a school may be permitted in this district if a special permit is obtained for such use pursuant to Section 205-6, HRS and Rule 6 of the Commission Rules. 36. The County of Hawai`i General Plan Land Use Pattem Allocation Guide("LUPAG") Map designates the Property for low density urban uses. The LUPAG designation of Low Density urban use, allows for residential uses, with ancillary community and public uses, and neighborhood and convenience-type commercial uses. The Development is not proposed to be a community or public use for the Kaumana area of Hilo. 7 37, The County of Hawaii zoning for the Property is Agricultural with a minimum lot size of one acre (A-1 a). Under Section 25-5-72(d)of the Hawaii County Code, a school is permitted in an Agricultural zoned district provided that a special permit is issued for the use if the land is within the State Land Use Agricultural District. 38. The Development, which is proposed to be located on State land, is subject to the Hawaii State Environmental Impact Statement law, Chapter 343, HRS. Connections prepared an environment assessment in accordance with Chapter 343, and declaration with a finding of no significant impact was issued for the Development by the State of Hawaii Department of Land and Natural Resources. 39. The Property is not situated within the Special Management Area("SMA"), since it is located over three miles from the nearest shoreline. Thus, the coastal environmental considerations relating to the SMA are not applicable to the subject Property. V. SPECIAL PERMIT REQUIREMENTS 40. HRS Section 205-6, which governs special permits, provides in pertinent as follows: "(a) The county planning commission may permit certain unusual and reasonable uses within agricultural . . . districts other than those for which the district is classified. Any person who desires to use the person's land within an agricultural . . .district other than for an agricultural . . .use. . .may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired. "(c)The county planning commission may, under such protective restrictions as may be necessary,permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter... "(d) Special permits for land the area of which is greater than fifteen acres. . . shall be subject to approval by the land use commission. The land use commission may impose additional restrictions as may be necessary or appropriate in granting the approval including the adherence to representations made by the applicant." 8 41. Planning Commission Rule 6-7, provides, in pertinent part,that: "I't]he Commission shall not approve a Special Permit unless it is found that the proposed use "(a) Is an unusual and reasonable use of land situated within the Agricultural. . .District. . .; and "(b) Would promote the effectiveness and objectives of Chapter 205, Hawaii Revised Statutes, as amended. "The Commission shall also consider the criteria listed under Section 6.3(b)(5)(A) through(G)." 42. The seven criteria under Planning Commission Rule 6.3(b)(5)(A)through(G) are: "(A) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations; "(B) The desired use shall not adversely affect surrounding properties; "(C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers,water,drainage, school improvements, and police and fire protection; "(D) Unusual conditions, trends and needs have arisen since the district boundaries and regulations were established; "(E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district; "(F) The proposed use will not substantially alter or change the essential character of the land and the present use; and "(G) The request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design plans." 43. Although Gomes asserts that the criteria for a use permit should be considered in the subject application, that criteria is not relevant to a special permit determination. 9 VI. APPLICATION OF SPECIAL PERMIT CRITERIA TO THE DEVELOPMENT A. Land Use Law Objectives 44. The purpose of the State Land Use Law is to preserve the lands of high agricultural potential for agricultural use. The Property consists of land that is not considered highly valuable for agricultural uses. Thus, the use of the Property for a school is not contrary to the objectives sought to be accomplished by the State Land Use Law. 45. Likewise, the Development, which proposes the construction of a school for 381 students and related facilities is not akin to a major recreational theme park attracting 1.5 million people each year to the area. Therefore, such a development would not frustrate the objectives and effectiveness of the Hawai`i's land use scheme and would not require a State land use boundary amendment in lieu of a special permit. Neighborhood Board No. 24 vs. State Land Use Commission, 64 Haw. 265, 272, 639, P.2d 1097, 1103 (1982). B. Affect on Surrounding Properties 46. Based upon the testimony from surrounding and neighboring property owners, the Development will have an adverse effect on surrounding properties by creating noise, traffic, and impacting the quality of life of the adjoining residents. 47. Measures proposed by Connections, regarding the establishment of building setbacks and roadway improvements to Edita Street do not appear to be sufficient to mitigate the overwhelming concerns raised by surrounding property owners. C. Burden on Public Agencies to Provide Services 48. There is insufficient water available from the County system to service the Development. Therefore, to allow the Development would unreasonably burden the Department of Water Supply to provide water for its facilities. 49. There is no evidence that Connections has the ability to develop a potable water source as a mitigating measure,previously proposed by the Director. 50. A mitigating measure previously proposed by the Director of limiting the number of students to the amount of potable water available to the project is not reasonable because Connections is proposing to construct a high school for 107 students its first phase, when the potable water available would only allow for 70 students. 10 51- As such, the proposed use may unreasonably burden the County Department of Water Supply to provide water to the Development. D. Unusual Conditions,Trends and Needs 52. Unusual conditions and needs have arisen since the establishment of this land use district in the 1970s,because the area in which the Property is located has essentially become residential in character. Also, the County General Plan LUPAG map recognizes this trend by designating the area for low density urban use. However, there was no evidence presented to demonstrate that location of a school that is not intended to specifically service the needs of the immediate community is such an unusual condition, trend or need that justifies location of the Development at this location. E. Suitability of Land for Agricultural Uses 53. The Land Study Bureau soil classification rating for the Property is"D" or"Poor," which suggests that the land may be unsuited for agricultural uses. 54. Connections is proposing to maintain the upper portion or nearly one-half of the Property for forestry use. In addition, Connections is proposing to construct greenhouses on the Property and conduct an agricultural program in conjunction with its curriculum. 55. Based upon the representations of Connections, it cannot be found that the Property is unsuited for agricultural uses. F. Alteration or Change of the Essential Character of the Land and Present Use 56. The Property is presently a forest and is vacant of any structures. The lower half of the Property will be converted into a school with classrooms,dormitories, a gymnasiwn cafeteria and parking lots. 57. The Development of a school will change the essential character of the forested land and its undeveloped use. G. Consistency with the General Plan 58. The County General Plan LUPAG map designates the Property for low density urban use. "Low density uses"under the General Plan include residential, with ancillary community and public uses, and neighborhood and convenience-type commercial uses. 11 59. The Development, which proposes a charter school that is not specifically intended to service the immediate community surrounding the school, is not consistent with the uses permitted in areas of low density urban use. 60. The Economic, Public Facilities and Land Use elements of the County General Plan all require consideration of social and community concerns as follows: Economic Element-Goal "Provide an economic environment that allows new, expanded, or improved economic opportunities that are compatible with the County's cultural, natural and social environment." Public Facilities Element- Goal "Encourage the Provision of public facilities that effectively service the community and visitor needs and seek ways of improving public service through better and more functional facilities in keeping with the environmental and aesthetic concerns of the community." Land Use Element - Policy "Encourage the development and maintenance of communities meeting the needs of its residents in balance with the physical and social environments." 61. The evidence has established significant concerns from the community regarding the compatibility of the Development with the surrounding community. 62. Although the County General Plan Public Facilities-Education course of action for South Hilo encourages the establishment of additional schools as the need arises, the proposed Development, at the subject location, is contrary to the General Plan. VII. UNUSUAL AND REASONABLE USE OF LAND 63. The construction of a school on the Property is an unusual use of the land because a school is not a permitted use in the State Land Use Agricultural District. However, the evidence presented does not demonstrate that the Development is a reasonable use of the Property. Specifically, Connections has not demonstrated how this school can be built without sufficient potable water resources. Nor, has Connections demonstrated how the development of a regional 12 charter school on the Property that does not specifically service the needs of the immediate community and that is overwhelmingly objected to by the immediate community is a reasonable site for this facility. In addition, Connections has not demonstrated that the Development meets most of the criteria to be considered by the Commission in the subject application. CONCLUSIONS OF LAW Based upon the foregoing Findings of Fact,the Commission makes the following Conclusions of Law: 1. To the extent that any of the Findings of Fact constitute Conclusions of Law, or Conclusions of Law constitute Findings of Fact,they shall be considered and construed as such. 2. The Commission has jurisdiction over the subject special permit application, including the ability to deny or recommend its approval to the State Land Use Commission, pursuant to Section 205-6, HRS and Rule 6 of the Commission Rules. 3. Connections had the burden of proof on this matter before the Commission, including the burden of producing evidence as well as the burden of persuasion, by a preponderance of evidence, to demonstrate how its request is consistent with the guidelines for a special permit as outlined by Section 205-6, HRS and Rule 6 of the Commission Rules. Connections has failed to meet this burden. 4. The Development does not adequately meet the requirements or guidelines for a special permit as required by Section 205-6, HRS and Rule 6 of the Commission Rules. 5. The Development is not consistent with the County General Plan,particularly as to the impacts on the immediate community. ORDER Based upon the preceding Findings of Fact and Conclusions of Law, Special Permit Application SPP No. 12-000138 of Connections New Century Public Charter School and Community Based Education Support Services to develop a K to 12 charter school campus with 13 dorm facilities and related uses on 70.15 acres situated within the State Land Use Agricultural District is hereby denied. Dated: Hilo, Hawaii, }SAY i ` 2014 S Y iNAEL—D—GONZALES,Chairman Windward Planning Commission 14 BEFORE THE COUNTY OF HAWAII PLANNING COMMISSION In the Matter of SPP No. 12-000138 CONNECTIONS NEW CENTURY PUBLIC CERTIFICATE OF SERVICE CHARTER SCHOOL AND COMMUNITY BASED EDUCATION SUPPORT SERVICES Application for Special Permit Application No. 12-000138 TMK: (3) 2-5-006-141; Kaumana, South Hilo, Hawai'i CERTIFICATE OF SERVICE I hereby certify that on this date, a copy of the foregoing was duly served upon the following parties by depositing the same in the U. S,mail,postage prepaid, and by c-mailing a copy, addressed to. Ted H. S. Hong, Esq. (ted(i7tedhonglaw.com) P. O. Box 4217 Hilo, Hawai'i 96720 Attorney for Applicant Community Based Education Support Services Carter K. Siu, Esq. (Carter.K.Siu(&,hawaii.gov) Deputy Attorney General State of Hawai'i 235 South Beretania Street, Room 304 Honolulu,Hawaii 96813 Attorney for Applicant Connections New Century Charter School Amy G. Self, Esq. (aself(&co.hawaii.hi.us) Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for County of Hawaii Planning Director Mr. Jeffrey K. Gomes (kalanigome5(&hawaiiantel.net) 281 Edita Street Hilo, Hawai'i 96720 Intervenor pro se Mr. Duane Kanuha, Planning Director(planning,Qa,co.hawaii.hi.us) County of Hawai'i Planning Department 101 Pauahi Street, Suite 3 Hilo, Hawai'i 96720 Margaret Masunaga, Esq. (mkmasunaRa(c-)co.hawaii.hi.us) Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway Kailua-Kona,HI 96740 Attorney for County of Hawai'i PIanning Commission Dated: Hilo,Hawaii, MAY l R NALD GO ZALE , Chairman Windward Planning Commission 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. — U 2 3 SUPPORT SERVICES ) (Agency Appea Applicant-Appellant, ) DESIGNATION OF CONTENTS OF RECORD ON APPEAL VS. } } WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT } OF PLANNING, COUNTY OF HAWAII, ) Appellees, } and ) } SANDRA SONG, in her capacity as } Hearing Officer; JEFFREY K. GOMES, } Intervenor; SIDNEY FUKE, Intervenor's } Representative; and TERENCE } YOSHIOKA, Intervenor's Representative, ) Intervenor-Appellees. ) DESIGNATION OF CONTENTS OF RECORD ON APPEAL Pursuant to Rule 72(d)(1), HRCivP, Appellant designates as the Record on Appeal the entire record, any and all documents, papers, reports, transcripts, exhibits, affidavits, depositions, transcripts of proceedings, statements, letters, correspondence, subpoenas, notices, notes, memoranda of counsel, decisions, awards, requests for reconsideration or reopening, as well as the tape recordings and transcripts of all hearings and meetings (public and executive session) in which the Appellant's application was discussed including but not limited to: A. Hearing Officer's Report dated April 7, 2014 (attached hereto as Exhibit "I"), including the Contested Case proceedings before her; B. The County of Hawaii Windward Planning Commission's meeting and decision entered May 1, 2014 to uphold the Hearings Officer's report and recommendations to deny Special Permit Application (SPP12-000138) to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5-006:141; C. The County of Hawai'i Windward Planning Commission's Findings of Fact, Conclusions of Law and Decision and Order, dated May 19, 2014, attached hereto as Exhibit "2," which is a final administrative agency decision, that denied CBESS' application for a Special Permit Application (SPP 12-000138) to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5-006:141. DATED: Hilo, Hawaii, June 6, 2014 Respectfully submitted, D H. S. HO G Attorney at Law Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 1 4 — 1 — 9 2 SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON VS. ) APPEAL WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING, COUNTY OF HAWAII, ) Appellees, ) and } } SANDRA SONG, in her capacity as } Hearing Officer; JEFFREY K. GOMES, } Intervenor; SIDNEY FUKE, Intervenor's } Representative; and TERENCE } YOSHIOKA, Intervenor's Representative, ) Intervenor-Appellees. ) ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL TO: RONALD GONZALES Chairperson Windward Planning Commission, County of Hawaii and/or Custodian of Records 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720 Pursuant to Section 91-14(d), Hawaii Revised Statutes, you are hereby ordered to certify and transmit to this Court,within twenty (20) days of the date of this order, or within such further time as may be allowed by the Court, the entire file relating to the entire record, any and all documents, papers, reports, transcripts, exhibits, affidavits, depositions, transcripts of proceedings, statements, letters, correspondence, subpoenas, notices, notes, memoranda of counsel, decisions, awards, requests for reconsideration or reopening, as well as the tape recordings and transcripts of all hearings and meetings (public and executive session) in which the Appellant's application was discussed including but not limited to: A. Hearing Officer's Report dated April 7, 2014 (attached hereto as Exhibit "1"), including the Contested Case proceedings before her; B. The County of Hawaii Windward Planning Commission's meeting and decision entered May 1, 2014 to uphold the Hearings Officer's report and recommendations to deny Special Permit Application (SPP12-000138) to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5-006:141; C. The County of Hawai'i Windward Planning Commission's Findings of Fact, Conclusions of Law and Decision and Order, dated May 19, 2014, attached hereto as Exhibit "2," which is a final administrative agency decision, that denied CBESS' application for a Special Permit Application (SPP12-000138) to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5-006:141. DATED: Hilo, Hawaii, JUN - 9 2014 CLERK OF THE AB �-ETITLED COURT 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 1 4 — — 0 2 2 SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) CERTIFICATE OF SERVICE vs. ) WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING, COUNTY OF HAWAII, ) } Appellees, ) } and } } SANDRA SONG, in her capacity as } Hearing Officer; JEFFREY K. GOMES, ) Intervenor; SIDNEY FUKE, Intervenor's ) Representative; and TERENCE ) YOSHIOKA, Intervenor's Representative, } } Intervenor-Appellees. ) CERTIFICATE OF SERVICE I hereby certify that the foregoing document was duly served via U.S. Mail, postage prepaid, on the date indicated below, to the following: CARTER K. SIU, ESQ. Deputy Attorney General State of Hawaii 235 S. Seretania Street, Rm. 304 Honolulu, Hawaii 96813 Attorney for Applicant CONNECTIONS NEW CENTURY CHARTER SCHOOL AMY G. SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAI'I PLANNING DIRECTOR MARGARET MASUNAGA, ESQ. Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway Kailua-Kona, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I The Hon. SANDRA P. SONG {ret.} 10 Kamehameha Avenue Hilo, Hawaii 96720 Hearing Officer - Appellee MR. SIDNEY FUKE 1358 Mele Manu Street, Apt. C Hilo, Hawaii 96720 Representative for Intervenor-Appellee, Appellee MR. JEFFREY K. GOMES 281 Edita Street Hilo, Hawaii 96720 Intervenor Pro Se-Appellee The Hon. TERENCE YOSHIOKA {ret.} 1572 Mele Manu Street Hilo, Hawaii 96720 Representative for Intervenor-Appellee, Appellee 2 DATED: Hilo, Hawaii, June 9, 2014. D H. S. HON Attorney at Law Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 3 MAJINAL STATE OF HAWAII CASE NUMBER CIRCUIT COURT OF THE RETURN AND ACKNOWLEDGMENT 1 4 — 1 - p 2 2 3 THIRD CIRCUIT OF SERVICE Ctiyi} ala, - L:==— BASED EDUCATION WINDWARD PLANNING COMMISSION, COUNTY OF SUPPORT SERVICES HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, and SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, kn4onio nnr'c C7anracan4a4ivo• T1=PPK1r P VllQW1rWA DOCUMENTS SERVED: NOTICE OF APPEAL TO CIRCUIT COURT; STATEMENT OF THE CASE; -EXHIBITS "I"'-"9,-"DESIGNATION OF: CONTENTS OF RECORD ON ARREA1 - ORDER.FOR CERTIFICATION �4AID�RANSMISSION OF REWORD ON APPEAi -, C ERTIFICATE-OF SERVICE I. Sheriff/Police Officer of the State of Hawaii do hereby certify that I received a certified copy of the documents listed above and that I served the same on WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII (name of party) on JIJ 7�t71`� at OOPAA at (date) I (time) 101 Pauahi Street, Suite 3, Hilo, Hawaii 96720 within the State of Hawaii as follows: (address) ❑ PERSONAL: By delivering to and leaving with personally. ❑ SUBSTITUTE: [HRCP 4(d) (1) (A)] After due and diligent search and inquiry, I served above-named defendant through , a person of suitable age and discretion then residing at said party's usual place of abode, since the defendant could not be found. ❑ SUBSTITUTE: [HRCP 4(d) (1) (B)] I served above-named defendant through authorized agent to receive service of process for said defendant. BUSINESS/CORPORATION/GOVERNMENTAL ENTITY: On Windward Planning Commission, jname of business/corplentily) N f/1T County of Hawaii by serving through AJ ,/J",/�� 1 /� (name of person rved) D who is the r {�41 I 1(,V /t 1AWrized agent (postitio tle) of said Business/Corporation/Governinental Entity. ❑ GARNISHMENT: I served through (name of garnishee) who is authorized to accept service for the ave-named s rushee. (name of person served) r NOT FOUND: After due and diligent search and inquiry, I am unable to find ar'!��°-, (P of party) Attorney(Name,I D.No.,Address,Phone) Ted H.S. Hong#3569 = >Z% P.O. Box 4217 _cam Hilo, HI 96720 808-960-3156 ted@tedhonglaw.com a% Date: Sheriff/Police Officer(type or print) Sig re FORM NO 001103(7/91) R URN A ACKNOINLEOGMENTOF SERVICE 1C-P-022 SUBSCRIBED AND SWORN NOTARY PUBLIC'S SIGNATURE: MY COMMISSION EXPIRES: TO BEFORE ME THIS DATE: IN HAWAPI STATE OF HAWAI`1 ACKNOWLEDGMENT OF SERVICE t0-4 (signature of person served) (date) (time STATE OF HAWAII CAS NU BER CIRCUIT COURT OF THE RETURN AND ACKNOWLEDGMENT - Y - a 2 2--1 THIRD CIRCUIT OF SERVICE ON11 NO, COMMUNITY BASED EDUCATION WINDWARD PLANNING COMMISSION, COUNTY OF SUPPORT SERVICES HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, and SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, In4onronnr'c Annreeen4nlin•TGr7Cnlf�VflCl-IIflLC4 DOCUMENTS SERVED: NOTICE OF APPEAL TO CIRCUIT COURT; STATEMENT OF THE CASE; -EXHIBITS"I."-"2;"DESIGNATION DF CnNITFNT-q OF RP:CQRn ON APPEAL; ORDFR F=r)R rPRTIFICATIOu- ANI1 TRAIU-IMISSION OF RECORD ON APPEAL • CERTIFICATE -SERVICE I, Sheriff/Police Officer of the State of Hawaii do hereby certify that i received a certified copy of the documents listed above and that I served the same on DEPARTMENT OF PLANNING, COUNTY OF HAWAII 1 (name of party) on L7+ie– l�I rVI`� at �";poPAA at (date) (time) 101 Pauahi Street, Suite 3, Hilo, Hawaii 96720 within the State of Hawaii as follows: (address) ❑ PERSONAL: By delivering to and leaving with personally. ❑ SUBSTITUTE: [HRCP 4(d) (1) (A)] After due and diligent search and inquiry, I served above-named defendant through , a person of suitable age and discretion then residing at said party's usual place of abode, since the defendant could not be found. ❑ SUBSTITUTE: [HRCP 4(d) (1) (B)] I served above-named defendant through authorized agent to receive service of process for said defendant. BUSINESS/CORPORATION/GOVERNMENTAL ENTITY: On Department of Planning, County of Hawaii (name of businesslcorplentity) by serving through l IJ �/}l (name f f person served) who is the I and authorized agent ( titionititle} of said Business/Corporation/Governmental Entity. � ❑ GARNISHMENT: I served through (name of garnishee) who is authorized to accept service for the above-named garnishee. (name of person served) ❑ NOT FOUND: After due and diligent search and inquiry, I am unable to find ame of party Attorney(Name,I.D.No.,Address,Phone) ` y:VC-; rn �' " Ted H.S. Hong#3569 �� RRC)E P.O. Box 4217 — Hilo, HI 96720o CA 808-960-3156 ted@tedhonglaw.com W 3WXn = n Date: Sheriff/Police Officer(type or print) Sig ""► a FORM NO 001103(7/91) R L1RN AN ACKNOWLEDGMENT OF SERVICE 1P-022 t w S' ha,C, SUBSCRIBED AND SWORN NOTARY PUBLIC'S SIGNATURE: MY COMMISSION EXPIRES: TO BEFORE ME THIS DATE: IN , HAWAVI STATE OF HAWAII ACKNOWLEDGMENT OF SERVICE (signature of person served) (date) (time) NI i S a INA L STATE OF HAWAI'I CASE NUMBER RETURN AND ACKNOWLEDGMENT CIRCUIT COURT OF THE - 1 --" 2 3 THIRD CIRCUIT OF SERVICE COMMUNITY BASED EDUCATION WINDWARD PLANNING COMMISSION, COUNTY OF SUPPORT SERVICES HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, and SANDRA SONG, in her capacity as Hearing Officer; JEFFREY COMES, Intervenor; SIDNEY FUKE, InFar..nnnr'e Rnnrnennfathin• T1ZPC:K1rP Vn(ZWlr%VA DOCUMENTS SERVED: NOTICE OF APPEAL TO CIRCUIT COURT; STATEMENT OF THE CASE; EXHIBITS"1 "-29;"DESIGNATION OF C olsITFNITC OF RECORD ON APPEAL • ORDER FOR C ERTIRCATION AIVD IRAN" MI$$ION OF RECORD ON APPEAL • CERTIFIC CTE OF SERI/10E I, Sheriff/Police Officer of the State of Hawaii do hereby certify that I receivet a certified copy of the documen s listedbove and that I serve the same on The Hon. SANDRA P. SONG ( ')0 vLC— 10 1 'YO 1`t (narn't of pa y) on 10-4 at 10 PAA- at (date) (lime) 10 Kamehameha Avenue , Hilo, Hawaii 96720 within the State of Hawaii as follows: (address) ..,_ ERSONAL: By delivering to and leaving with personally. ❑ SUBSTITUTE: [HRCP 4(d) (1) (A)] After due and diligent search and inquiry, I served above-named defendant through , a person of suitable age and discretion then residing at said party's usual place of abode, since the defendant could not be found. XSUBSTITUTE: [HRCP 4(d) (I) (B)] I served above-named defendant throut authorized agent to receive service of process for said defendant. r❑ BUSINESS/CORPORATION/GOVERNiMENTAL ENTITY: On (name of businesslcorp/entity) by serving through (name of person served) who is the and authorized agent (postilion/title) of said Business/Corporation/Goveminental Entity. ❑ GARNISHMENT: I served through (name of garnishee) P who is authorized to accept service for the able-named ishee. (name of person served) 'r ...� ❑ NUT FOUND: After due and diligent search and inquiry,I am unable to find _ ' "dam (n rro of party) N 0 r-- I ,[7 Qy I Attorney(Name, I.D.No.,Address,Phone) ma 7ir-' Ted H.S. Hong#3569 P.O. Box 4217 »' _Scb Hilo, HI 96720 Oti 808-960-3156 ted@tedhonglaw.com Date: Sheriff/Police Officer(type or print) Sig re o FORM NO 001103(7191) ETURN D ACKNOWLEDGMENT OF SERVICE 1C-P-022 SUBSCRIBED AND SWORN NOTARY PUBLIC'S SIGNATURE: MY COMMISSION EXPIRES: TO BEFORE ME THIS DATE: IN HAWAI`I STATE OF HAWAII ACKNOWLEDGMENT OF SERVICE I L��14 Zwe:Z�AZ12, � (signa re of person served) (date) r (time) L -s'Src s'i'c- & c- y 0 14 L STATE OF HAWAII CASE NUMBER CIRCUIT COURT OF THE RETURN AND ACKNOWLEDGMENT THIRD CIRCUIT OF SERVICE ' 2 2 3 COMMUNITY BASED EDUCATION WINDWARD PLANNING COMMISSION, COUNTY OF SUPPORT SERVICES HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, and SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, ln4c r'c Tr-:PPKIP" Vr)(Z IIr-%WA DOCUMENTS SERVED: NOTICE OF APPEAL TO CIRCUIT COURT- STATEMENT OF THE CASE EXHIBITS 1-2*" DE IMIA.T1061 QV CONTENTS OF RECORD ON APPL.A.1-- ORDER.-FOR.CERZ�FICATIOU_ AND-TRANS E{''_ORD ON APPFAI CERTIFICATE OF SERVICE I, Sheriff/Police Officer of the State of Hawaii do hereby certify that I received a certified copy of the documents listed above and that I served the same on The Hon. TERENCE YOSHIOKA(ret.) I (name of party) on [9 d� t�� r` at t So eA,— at (date) ( me) 1572 Mele Manu Street, Hilo, Hawaii 96720 within the State of Hawaii as follows: (address) PERSONAL: By delivering to and leaving with � cc_YO �'�d �*� ,personally. ❑ SUBSTITUTE: [HRCP 4(d) (1) (A)] After due and diligent seard and inquiry, I served above-named defendant through , a person of suitable age and discretion then residing at said party's usual place of abode, since the defendant could not be found. ❑ SUBSTITUTE: [HRCP 4(d) (1) (B)] I served above-named defendant through authorized agent to receive service of process for said defendant. ❑ BUSINESS/CORPORATION/GOVERNMENTAL ENTITY: On (name of business/corp/entity) by serving through (name of person served) who is the and authorized agent (postitionititle) of said Business/Corporation/Govemmental Entity. ❑ GARNISHMENT: I served through (name of garnishee) who is authorized to accept service for the above-named garnishee. (name of person served) ❑ NOT FOUND: After due and diligent search and inquiry,I am unable to find ( e of party) !� Attorney(Name,I.D.No.,Address,Phone) -.4n Ted Ted H.S. Hong#3569 z 21.4 G P.O. Box 4217 r-- rns� Hilo, HI 96720 Cb nvn 808-960-3156 ted@tedhonglaw.com y zr,P I X_ a�o% Date: Sheriff/Police Officer(type or print) i n i a_� X10 � {Jri SE. FORM NO 001103(71911 RETURN Np ACKNjWLF0GMENT OF STRVICE 14:;,P4322 y . ►ur_ SUBSCRIBED AND SWORN NOTARY PUBLIC'S SIGNATURE: MY COMMISSION EXPIRES: TO BEFORE ME THIS DATE: IN HAWAII STATE OF HAWAII ACKNOWLEDGMENT OF SERVICE 1 (signature of perso rued) (date) (time) . 'Z STATE OF HAWAII CASE NUMBER CIRCUIT COURT OF THE RETURN AND ACKNOWLEDGMENT 4 0 2 3 THIRD CIRCUIT OF SERVICE Civi� � COMMUNITY BASED EDUCATION WINDWARD PLANNING COMMISSION, COUNTY OF SUPPORT SERVICES HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, and SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, In+aniannr'e Panracan+.fk • TI`DPKI(P VnQW1nVA DOCUMENTS SERVED: NOTICE OF APPEAL TO CIRCUIT COURT; STATEMENT OF THE CASE; EXHIBITS "I "-'90" nE-,IGrsIA_TIQhI OF CONITENITS OF RECORD ON ARREAI ; ORDER FOR CERTIFICATION AND TRANSI MISSION OF RECORD ON APPFAI • CERTIFICATE OF SFRVIrF 1, Sheriff/Police Officer of the State of Hawaii do hereby certify that I received a certified copy of the documents listed ab ve and that I served the same on MR. SIDNEY FUKE S N� (name of party) on I at , 'T � at (date) ime) 1358 Mole Manu Street,Apt. C, Hilo, Hawaii 96720 within the State of Hawaii as follows: (address) CCJ _ PERSONAL: By delivering to and leaving with J t personally. ❑ SUBSTITUTE: [HRCP 4(d) (1) (A)] After due and diligent search and inquiry, I served above-named defendant through , a person of suitable age and discretion then residing at said party's usual place of abode, since the defendant could not be found. ❑ SUBSTITUTE: [HRCP 4(d) (1) (B)] I served above-named defendant through authorized agent to receive service of process for said defendant. ❑ BUSINESS/CORPORATION/GOVERNMENTAL ENTITY: On (name of businesslcorplentity) by serving through (name of person served) who is the and authorized agent (postitionitiile) of said Business/Corporation/Governmental Entity, ❑ GARNISHMENT: I served throug (name of garnishee) who is authorized to accept service for the ab e-named gvishee, (name of person served) W-4 -.. ❑ NOT FOUND: After due and diligent search and inquiry,I am unable to find 1' W� (n of arty ��'�n Attorney(Name, I.D.No.,Address,Phone) �Tii y, Ted H.S. Hong#3569 P.O. Box 4217 Hilo, HI 96720 808-960-3156 ted@tedhonglaw.com Hate: Sheriff/Poke Officer(type or print) S re FORM NO 00 1103(7191) RETU AND ACKNOWLEDGMENT OF SERVICE IG-P-1122 tl.t t'11 SUBSCRIBED AND SWORN NOTARY PUBLIC'S SIGNATURE: MY COMMISSION EXPIRES: TO BEFORE ME THIS DATE: IN HAWAII STATE OF HAWAII ACKNOWLEDGMENT OF SERVICE Vle - I V -/ 6 ; 5�- (signature of person served) (date) (time f ORIGINAL STATE OF HAWAII CASE NUMBER CIRCUIT COURT OF THE RETURN AND ACKNOWLEDGMENT 14 — 1 2 2 THIRDCIRCUIT OF SERVICE COMMUNITY BASED EDUCATION WINDWARD PLANNING COMMISSION, COUNTY OF SUPPORT SERVICES HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, and SANDRA SONG, in her capacity as Hearing Officer;JEFFREY COMES, Intervenor; SIDNEY FUKE, Infnn,nnnr'c Pnnrnonnfofk,n- TGDGAIP r-Vn(,Plr)VA DOCUMENTS SERVED: NOTICE OF APPEAL TO CIRCUIT COURT; STATEMENT OF THE CASE; EXHIBITS"I "-"9-"DESIGNATION OF CONTENTS OF RECORD 0N.APPEAL, ORDER FOR-CERTIFICATION AND TRANSMISSION OF RECORD ON APPFAI • CERTIFICATE OF SERVICE 1, Sheriff/Police Officer of the State of Hawaii do hereby certify that I received a certified copy of the documents listed above and that I served the same on MR. JEFFREY K. COMES (name of party) on 11VM_ IZ A �^o\� at ��, 2� , � atM41- (dale) (time) � within the State of Hawaias oo li lf ow"s:"�'� (addre s) �f' PERSONAL: By delivering to and leaving with personally. ❑ SUBSTITUTE: IHRCP 4(d) (1) (A)] After due and diligent search and inquiry, I served above-named defendant through , a person of suitable age and discretion then residing at said party's usual place of abode, since the defendant could not be found. ❑ SUBSTITUTE: [HRCP 4(d) (1) (B)] I served above-named defendant through authorized agent to receive service of process for said defendant. ❑ BUSINESS/CORPORATION/GOVERNMENTAL ENTITY: On (name of business/corplentity) by serving through (name of person served) who is the and authorized agent (postitionititle) of said Business/Corporation/Governrnental Entity. ❑ GARNISHMENT: I served through (name of garnishee) who is authorized to accept service for the above-amed garnishee. (name of person served) st ❑ NOT FOUND: After due and diligent search and inquiry,I am unable to find (name f party) Attorney(Name,1 D.No.,Address,Phone) Ted H.S. Hong#3569 ra '"a �i P.O. Box 4217 X02C a Hilo, HI 96720 aes, 808-960-3156 ted@tedhonglaw.com �• �� Date: Sheriff/Police Officer(type or print) Sign FORM NO 001103(7191) FjWRN AND ACKNOWLEDGMENT OF SERVICE 1C.P-022 �`t SUBSCRIBED AND SWORN NOTARY PUBLIC'S SIGNATURE: MY COMMISSION EXPIRES: TO BEFORE ME THIS DATE: IN HAWAII STATE OF HAWAI`1 ACKNOWLEDGMENT OF SERVICE q 4 ' z3 -� (signat e of person served) (date) (time) ORIGINAL FILED DAVID M. LOUIE 2612 Attorney General '1' 21(a Z 2014 JUfJ 19 PIN T 23 State of Hawaii CARTER K. SIU 7313 Deputy Attorney General CLEF _7. ,TE Frokij S VIA i 235 South Beretania Street, Room304 Honolulu, Hawaii 96813 Telephone No. 808.586.1255 3 circuit Carter.K.Siu@hawaii, ov Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES ) (AGENCY APPEAL) Applicant-Appellant ) APPLICANT-APPELLANT VS. ) CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S NOTICE OF WINDWARD PLANNING COMMISSION, ) APPEAL TO CIRCUIT COURT AND COUNTY OF HAWAII; DEPARTMENT OF } JOINDER TO APPLICANT-APPELLANT PLANNING, COUNTY OF HAWAII, } COMMUNITY BASED EDUCATION } SUPPORT SERVICES' NOTICE OF Appellees, } APPEAL TO CIRCUIT COURT, FILED } JUNE 9, 2014; CERTIFICATE OF And } SERVICE, SANDRA SONG, in her capacity as Hearing } Officer, JEFFREY GOMES, Intervenor; } SIDNEY FUKE, Intervenor's Representative; } TERENCE YOSHIOKA, Intervenor's ) Representative ) Intervenor-Appellees ) APPLICANT-APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S NOTICE OF APPEAL TO CIRCUIT COURT AND JOINDER TO APPLICANT-APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' NOTICE OF APPEAL TO CIRCUIT COURT, FILED JUNE 9, 2014. Gln Applicant-Appellee CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL ("CONNECTIONS"), by and through its undersigned counsel CARTER K. SIU, Deputy Attorney General, and pursuant to Rule 72, Hawaii Rules of Civil Procedure, and Section 91- 14(g), Hawaii Revised Statutes, and hereby notices its appeal from: (1) the Hearing Officer's Report dated April 7, 2014; and (2) County of Hawaii Windward Planning Commission's decision entered May 1, 2014 to uphold the Hearings Officer's report and recommendations to deny Special Permit Application (SPP12-000138) to develop a K-12 charter school campus on land situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5- 006:141 and (3) the County of Hawaii Windward Planning Commission's Findings of Fact, Conclusions of Law and Decision and Order, dated May 19, 2014. CONNECTIONS hereby substantively joins in Applicant-Appellee Community Based Education Support Services' Notice of Appeal to Circuit Court; Statement of the Case' Exhibits "1" — "2"; Designation of Contents of Record on Appeal; Order for Certification and Transmission of Record on Appeal; Certificate of Service, filed June 9, 2014, and incorporates by reference and adopts herein the Statement of the Case and Exhibits. DATED: Honolulu, Hawaii, June 19, 2014, AARTER . SIU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL DAVID M. LOUIE 2612 Attorney General of Hawaii CARTER K. SIU 7313 Deputy Attorney General Department of the Attorney General, State of Hawaii 235 South Beretania Street, Room304 Honolulu, Hawaii 96813 Telephone No. 808.586.1255 Carter.K.Siu@hawaii.gov Attorney for Applicant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO. 14-1-0223 SUPPORT SERVICES } (AGENCY APPEAL) Applicant-Appellant ) APPLICANT-APPELLANT vs. ) CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S NOTICE OF WINDWARD PLANNING COMMISSION, } APPEAL TO CIRCUIT COURT AND COUNTY OF HAWAII; DEPARTMENT OF ) JOINDER TO APPLICANT-APPELLANT PLANNING, COUNTY OF HAWAII, } COMMUNITY BASED EDUCATION SUPPORT SERVICES' NOTICE OF Appellees, ) APPEAL TO CIRCUIT COURT, FILED } JUNE 9, 2014; CERTIFICATE OF And ) SERVICE. SANDRA SONG, in her capacity as Hearing ) Officer, JEFFREY GOMES, Intervenor; ) SIDNEY FUKE, Intervenor's Representative; ) TERENCE YOSHIOKA, Intervenor's ) Representative ) Intervenor-Appellees ) CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 19, 2014, the undersigned caused a true and correct copy of the foregoing document to be served on the following persons by U.S. Mail, postage prepaid: Sandra P. Song, Esq. Hearings Officer 10 Kamehameha Avenue Hilo, Hawaii 96720 Ted H.S. Hong, Esq. Attorney at Law P. O. Box 4217 Hilo, HI 96720 Telephone No. 808933.1919 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES Amy Self, Esq. Deputy Corporation Counsel Attorney for the County of Hawaii Planning Director 333 Kilauea Avenue Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAII PLANNING DIRECTOR Jeff Gomes Intervenor 281 Edita Street Hilo, Hawaii 96720 Intervenor,pro se Appellee Margaret Masunaga, Esq. Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway Kailua-Kona, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII Mr. Sidney Fuke 1358 Mele Manu Street, Apt. C Hilo, Hawaii 96720 Representative for Intervenor-Appellee, Appellee The Hon. Terence Yoshioka (ret.) 1572 Mele Manu Street Hilo, Hawaii 96720 Representative for Intervenor-Appellee, Appellee DATED: Honolulu, Hawaii, June I9, 2014. ER K. SIU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 4 STATE OF HAWAII CERTIFICATE OF CASE NUMBER CIRCUIT COURT OF THE DISQUALIFICATION CIV. 14-1-223 THIRD CIRCUIT Plaintiff COMMUNITY BASED EDUCATION SUPPORT SERVICES VS. Defendant WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, et al., The undersigned does hereby disqualify himself from presiding or otherwise acting in the above action, pursuant to the Revised Code of Judicial Conduct, Rule 2.11(a): A judge should disqualify or recuse himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned. DATE JUDGE l/ JUN 2 6 2014 GREG K. NAKAMURA I certify that I served a copy of this certificate upon: Ted Hong, Attorney for Applicant-Appellant Carter K Siu, Attorney for State of Hawaii Margaret Masunaga, Attorney for Windward Planning Commission, County of Hawaii Amy Self, Attorney for County of Hawaii a� Sandra P. Song, Hearings Officer Sidney Fuke, Representative for Intervenor-Appellee Jeffrey K. Gomes, Intervenor Pro Se-Appellee - }n Terence Yoshioka, Representative for Intervenor-Appellee z ` r"' ria cn DATE CLERK JUN 2 6 2014 J. NAKAMU -__ _ FILE. 0 CIRCUIT COURT OF MOLLY A. STEBBINS 86395 ATE RD CIRCHAWAIIT Corporation Counsel AMY G. SELF 7628 2014 JUN 27 PH 3s 43 Deputy Corporation Counsel p(, Office of the Corporation Counsel 101 Aupuni Street, Suite 325 CLERK L. Ll;1HEr�i Hilo, Hawai`i 96720 Tel. No. (808) 961-8251 Fax No. (808) 961-8622 :mail: aselliitco.hawaii.hi.us Attorneys for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. I4-I-0223 SUPPORT SERVICES, Applicant-Appellant, APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S MOTION TO VS. DISMISS; MEMORANDUM IN SUPPORT OF MOTION; NOTICE OF HEARING; WINDWARD PLANNING COMMISSION, CERTIFICATE OF SERVICE COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and HEARING: SANDRA SONG, in her capacity as Hearing Date: July 30, 20I4 Officer, JEFFREY GOMES, Intervenor; Time: 9:00 a.m. SIDNEY FUKE, Intervenor's Representative, Judge: Honorable Glenn S. Hara TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S MOTION TO DISMISS Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII (hereinafter "Planning Department"), by and through its undersigned counsel, hereby moves this Honorable (n Court for an order dismissing any and all claims raised by Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES (hereinafter"CBESS") against the Planning Department in its Statement of the Case filed with this Court on June 9, 20I4. CBESS has failed to state a claim upon which relief can be granted against the Planning Department. This motion is made pursuant to Rules 7, I2(b)(6) and 72 of the Hawaii Rules of Civil Procedure and Rule 7 of the Rules of the Circuit Courts of the State of Hawaii, the attached Memorandum in Support of Motion and the records and files herein, and on such further and other grounds as may be adduced at a hearing on this motion. Dated: Hilo, Hawaii. June 27, 2014. DEPARTMENT OF PLANNING, COUN OF HAWAIjAAPPflee By G. SELF Dep ty Corporation Counsel Its Attorney 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES, Applicant-Appellant, MEMORANDUM IN SUPPORT OF MOTION VS. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`l; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY COMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. MEMORANDUM IN SUPPORT OF MOTION I. INTRODUCTION On .lune 9, 2014, Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES (hereinafter "CBESS") filed its Notice of Appeal and Statement of the Case to this Court, pursuant to Rule 72 of the Hawaii Rules of Civil Procedure ("HRCP") and Section 91-14(g) of the Hawaii Revised Statutes ('`HRS''), appealing from: (1) the Hearing Officer's Report dated April 7, 2014, (2) the County of Hawaii Windward Planning Commission's (hereinafter "Planning Commission") decision entered May 1, 2014, and (3) the Planning Commission's Findings of Fact, Conclusions of Law and Decision and Order, dated May 19, 2014. In its Statement of the Case, CBESS seeks attorney's fees and costs against all of the Appellees, including Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII (hereinafter "Planning Department"). However, CBESS has made no allegations that any interest CBESS may have has been damaged by any actions of the Planning Department. Under Rule 72, HRCP, the Statement of the Case is treated as an original complaint and the HRCP apply to motions and answers in response to the Statement of the Case. Therefore, the Planning Department moves to dismiss any and all claims against the Planning Department raised by CBESS in its Statement of the Case because CBESS has failed to state a claim upon which relief may be granted on the following grounds: A. The Appeal must be dismissed as to the Planning Department as CBESS has made no allegations against the Planning Department in its Statement of the Case for which relief may be granted. B. The Planning Department was never a party to the contested case presently being appealed to this Court. II. LEGAL DISCUSSION A. Standard of Review Review of a motion to dismiss is based on the contents of the complaint, the allegations of which a Court accepts as true and construes in the light most favorable to the Appellant. See Bremner v. City & County of'Honolulu, 96 Hawaii 134, 138, 29 P.3d 350, 354 (Haw. App. 2001) (citation omitted, motion to dismiss affirmed). Under Rule 12(b)(6) of the Hawaii Rules of Civil Procedure ("HRCP"), "a complaint may be dismissed if it appears beyond a doubt that the [appellant] can prove no set of facts entitling the [appellant] to relief" Bertelmann v. Taas Assocs., 69 Haw. 95, 99, 735 P.2d 930, 933 (1987) (citation omitted). Although in reviewing a motion to dismiss the allegations contained in the complaint are taken as true, "the court is not required to accept conclusory allegations on the legal effect of the events alleged." 2 Paysek v. Sandvold, 127 Hawaii 390, 403, 279 P.3d 55, 68 (Haw. App. 2012) (quoting Marsland v. Pang, 5 Haw. App, 463, 474, 701 P.2d 175, 186 (1985). Moreover, "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true (even if doubtful in fact)." Id. B. CBESS has made no allegations against the Planning Department for'which relief may be ranted. In the Notice of Appeal and the Statement of the Case, CBESS names the Planning Department as an Appellee and requests this Court to order all of the Appellees to pay CBESS' attorney's fees and costs. However, CBESS has made no allegations of any wrong doing by the Planning Department for which relief may be granted by this Court. In fact, CBESS only mentions the Planning Department with regard to the administrative support the Planning Department provides to the Planning Commission. See Statement of the Case at pp. 4, 6-7 (¶T 111. 10, 19, 20, 25, 29, 31) and p. 14 (¶T V. B.(1) and (2)). The Planning Department is without authority to grant or deny a special permit and, therefore, played no role in such decision. Pursuant to section 205-6, HRS, the Planning Commission has the sole authority to grant or deny special permits. Because the Planning Commission consists of a group of volunteers appointed by the mayor and confirmed by the County Council, the Planning Department serves as the "central coordinating agency" responsible for providing administrative assistance to the Planning Commission(e.g., clerical services, coordination and dissemination of information, publication of notices, etc.). See HRS § 205-6. See also Rule 6 of the County of Hawaii Planning Commission Rules of Practice and Procedure. Accordingly, the Planning Department played no role in the decision making process of the Hearing Officer or the Planning Commission and CBESS has made no allegations of such. 3 C. The Planning Department was never a party to the contested case presently beine appealed to this Court. Although the Planning Department was never a party to the contested case before the Hearing Officer or the Planning Commission, CBESS names the Planning Department as a party to the appeal before this Court. See Exhibits "1" and "2" attached to the Statement of the Case. As stated above, the Planning Department played no role in the Planning Commission's decision to deny the special permit, but merely acted as the "central coordinating agency'' as required by section 205-6, HRS. Moreover, the CBESS has made no allegations of wrong doing by the Planning Department. Therefore, it appears beyond a doubt that CBESS can prove no set of facts entitling the CBESS to relief and any and all claims against the Planning Department must be dismissed accordingly. See Bertelmann, 69 Haw. at 99, 735 P.2d at 933. III. CONCLUSION Based on the foregoing, the Planning Department respectfully requests that this Court dismiss CBESS' appeal against the Planning Department. Doing so will not leave CBESS without any recourse as CBESS may still proceed against the remaining appellees. To hold otherwise would be unjust. Dated: Hilo, Hawaii, June 27, 2014. Respectfully submitted, By & 4�Q--"4 AMY k. SELF DepuW Corporation Counsel Attorney for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII 4 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES, Applicant-Appellant, NOTICE OF HEARING vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. NOTICE OF HEARING TO: TED H.S. HONG, ESQ. P. O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES MARGARET K. MASUNAGA Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and SANDRA SONG, in her capacity as Hearing Officer JEFFREY GOMES 281 Edita Street Hilo, Hawaii 96720 Intervenor SIDNEY FUKE 1358 Mele Manu Street, Apt. C Hilo, Hawaii 96720 Intervenor TERENCE YOSHIOKA 1572 Mele Manu Street Hilo, Hawai`i 96720 Intervenor PLEASE TAKE NOTICE that the undersigned will bring the foregoing motion on for hearing before the Honorable Presiding Judge of the above-entitled court, in his courtroom, located at the Hale Kaulike Building, 777 Kilauea Avenue, Hilo, Hawaii, on Wednesday, July 30, 2014, at 9:00 a.m., or as soon thereafter as counsel can be heard. Dated: Hilo, Hawaii, June 27, 2014. DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellee B qulAG. SELF y Corporation Coun el Its Attorney 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES Applicant-Appellant, CERTIFICATE OF SERVICE VS. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 27, 2014, a copy of the foregoing document was served upon the following in the manner indicated below: Hand Delivery Mail Email N TED H.S. HONG, ESQ. P. O. Box 4217 Hilo, Hawaii 96720 Email• teda,tedhonglaw.com Attorney for COMMUNITY BASED EDUCATION SUPPORT SERVICES Hand Delivery Mail Email MARGARET K. MASUNAGA (X) Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII And SANDRA SONG, in her capacity as Hearing Officer JEFFREY GOMES (X) 281 Edita Street Hilo, Hawaii 96720 Intervenor SIDNEY FUKE (X) 1358 Mele Manu Street, Apt. C Hilo, Hawaii 96720 Intervenor TERENCE YOSHIOKA (X) 1572 Mele Manu Street Hilo, Hawaii 96720 Intervenor Dated: Hilo, Hawaii, June 27, 2014. AMY q. 9'ELF Deput Corporation Counsel County of Hawaii 2 12. STATE OF HAWAII CERTIFICATE OF CASE NUMBER CIRCUIT COURT OF THE DISQUALIFICATION THIRD CIRCUIT Civil No. 14-1-223 APPLICANT-APPELLANT, COMMUNITY BASED EDUCATION SUPPORT SERVICES vs. APPELLEES, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, DEPARTMENT OF PLANNING, COUNTY OF HAWAII And INTERVENOR-APPELLEES, SANDRA SONG, in her capacity as Hearing Office, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERRANCE YOSHIOKA, Intervenor's Representative. The undersigned does hereby disqualify himself from presiding or otherwise acting in the above action, pursuant to the Hawaii Revised Code of Judicial Conduct, Canon 2.11.(a): A judge should disqualify himself or herself in a proceeding in which his impartiality might be reasonably questioned. —+ rn x 'ncx rn y�� D vCD �:? � DATE JUD OUN 3 0 1014 AX e I certify that I served a copy of this certificate up I� I (See attached Certificate of Service) DATE JUN 3 fl CLERK ?Ott S. WALKS CERTIFICATE OF SERVICE CIVIL NO. I4-1-223 I certify that I served a copy of this certificate upon the following parties via USPS on: UUN 3 0 2014 CARTER K. SIU, ESQ. AMY SELF, ESQ. Deputy Attorney General General Corporation Counsel 235 South Beretania Street, Room 304 333 Kilauea Avenue Honolulu, Hawaii 96813 Hilo, Hawaii 96720 Attorney for Applicant-Appellant Attorney for COUNTY OF HAWAII CONNECTIONS NEW CENTURY PLANNING DIRECTOR PUBLIC CHARTER SCHOOL SANDRA P. SONG, ESQ. JEFF GOMES 10 Kamehameha Avenue 281 Edita Street Hilo, Hawaii 96720 Hilo, Hawaii 96720 Hearings Officer Intervenor,pro se Appellee TED H.S. HONG, ESQ. MARGARET MASUNAGA, ESQ. P.O. Box 4217 Deputy Corporation Counsel Hilo, Hawaii 96720 74-5044 Ane Keohokalole Highway Kailua-Kona, Hawaii 96740 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION Attorney for Appellee SUPPORT SERVICES WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII FILED CIRCUIT COURT O NAKAMOTO, OKAMOTO & YAMAMOTO THE NtRo STATE OF CIRCUIT ATTORNEYS AT LAW AWAII A LAW CORPORATION 10 4 JUL -2 ph �+ 54 ALAN M. OKAMOTO #1826 187 Kapiolani Street Hilo, Hawaii 96720 CLERK S. hfURAI AKA Telephone: (808) 961-0641 Attorney for APPELLEES SIDNEY FUKE and TERENCE T. YOSHIOKA fN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO, 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S ANSWER TO VS. NOTICE OF APPEAL TO CIRCUIT COURT; STATEMENT OF THE CASE BY WINDWARD PLANNING COMMUNITY BASED EDUCATION COMMISSION, COUNTY OF HAWAII; SUPPORT SERVICES AND DEPARTMENT OF PLANNING, CONNECTIONS NEW CENTURY PUBLIC COUNTY OF HAWAII, CHARTER SCHOOL; CERTIFICATE OF SERVICE Appellees, vs. E SANDRA SONG, in her capacity as Hearing Officer; JEFFREY COMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE T. YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S ANSWER TO NOTICE OF APPEAL TO CIRCUIT COURT; STATEMENT OF THE CASE BY COMMUNITY BASED EDUCATION SUPPORT SERVICES AND CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 1 VA �, J Comes now Appellees SIDNEY FUKE (hereafter "Appellee FUKE") and TERENCE T. YOSHIOKA (hereafter "Appellee YOSHIOKA"), by and through its attorneys; Nakamoto, Okamoto & Yamamoto and answers the Notice of Appeal to Circuit Court; Statement of the Case of Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES filed on June 9, 2014 and the Applicant-Appellant Connections New Century Public Charter School's Notice of Appeal to Circuit Court and Joinder to Applicant Appellant Community Based Education Support Services Notice of Appeal to Circuit Court filed June 19, 2014 (hereafter collectively"Notice of Appeal") as follows: This Answer is filed in response to the pleadings of both Appellants COMMUNITY BASED EDUCATION SUPPORT SERVICES (hereafter "Appellant COMMUNITY") and CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL (hereafter "Appellant CONNECTIONS"). Because Appellant CONNECTIONS did not recite its own statements but instead "substantively joins", in that of Appellant COMMUNITY, this Answer responds to the specific allegations in the Statement of Case to the Appellant COMMUNITY Notice of Appeal but applies to both Notices of Appeal. FIRST DEFENSE 1. Appellant COMMUNITY's Notice ofAppeal fails to state a claim for relief against Appellee FUKE or Appellee YOSHIOKA upon which relief can be granted. SECOND DEFENSE 2. Said Appellee FUKE and Appellee YOSHIOKA are not proper parties to this appeal. 2 THIRD DEFENSE 3. The court lacks jurisdiction over Appellee FUKE and Appellee YOSHIOKA. FOURTH DEFENSE 4. Appellee FUKE and Appellee YOSHIOKA admit the allegations in the following paragraphs in the Statement of the Case to the Notice of Appeal: Paragraphs 1, 2, 3, 4, 6, 9, 10, 11,19, 26, 27, 28, 29, 30, 31, 35, 36, 38, 39, 41, 43, 47, 48, 49, 50, 51, 52, FIFTH DEFENSE 5. Appellee FUKE and Appellee YOSHIOKA deny the allegations of the following paragraphs of the Statement of the Case to the Notice of Appeal: Paragraphs 53 and 3 as to Appellant CONNECTIONS. SIXTH DEFENSE 6. Appellee FUKE and Appellee YOSHIOKA lack sufficient knowledge or information to forth a belief as to the truth of the allegations of the following paragraphs of the Statement of the Case to the Notice of Appeal: Paragraphs 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 32, 33, 34, 37, 40, 42, 44, 45, 46, and therefore, denies the same. SEVENTH DEFENSE 7. In answer to Paragraph 5 of the Statement of the Case to the Notice of Appeal, Appellee FUKE and Appellee YOSHIOKA admit so much of the allegations the Appellee COUNTY OF HAWAII WINDWARD PLANNING COMMISSION approves special permits under Section 205-6(c), Hawaii Revised Statutes but for applications involving more than 15 acres of land, Section 205-6(d), Hawaii Revised Statutes also 3 requires approval by the State Land Use Commission. Based on the recitals in the Statement of Case to the Notice of Appeal, this appeal involves an area of 70 acres of land. 8. In answer to Paragraph 7 of the Statement of the Case to the Notice of Appeal, Appellee FUKE and Appellee YOSHIOKA admit to the allegations in the first sentence relating to Appellee FUKE's residence, admits to so much of the remaining allegations in said paragraph that Appellee FL KE assisted Appellee JEFFREY GOMES and submitted testimony in the contested case proceeding, denies that Appellee FLKE sought or was granted party status in said proceeding or otherwise intervened in the proceeding and except as otherwise admitted or pleaded herein, denies the remainder of the allegations in said paragraph. 9. In answer to Paragraph 8 of the Statement of the Case to the Notice of Appeal, Appellee FUKE and Appellee YOSHIOKA admit to the allegations in the first sentence relating to Appeliee YOSHIOKA's residence, admits to so much of the remaining allegations in said paragraph that Appellee YOSHIOKA requested admission as a party to the contested case proceedings and that the request was denied, admits to so much of the remaining allegations in said paragraph that Appellee YOSHIOKA assisted Appellee JEFFREY GOMES and submitted testimony in the contested case proceeding and except as otherwise admitted or pleaded herein denies the remainder of the allegations in said paragraph. 10. Nei ther Appellee FUKE nor Appellee YOSHIOKA were admitted as a party to the contested case proceeding. Appellee YOSHIOKA's request for admission was denied on the basis that it was not timely and Appellee YOSHIOKA accepted said 4 finding and did not contest it. Said Appellees are accordingly not aggrieved persons under Section 91-14, Hawaii Revised Statutes and should not have been made parties to this appeal. WHEREFORE, Appellee FUKE and Appellee YOSHIOKA pray as follows: A. That this Court dismiss this appeal with prejudice and dismiss Appellee FUKE and Appellee YOSHIOKA as parties in this action and deny all requested relief of Appellant COMMUNITY and Appellant CONNECTIONS; B. That the Court affirm the action of the Appellees COUNTY OF HAWAII WINDWARD PLANNING COMMISSION denying the Special Permit application of Appellant COMMUNITY and Appellant CONNECTIONS; C. That the; Court award Appellee FUKE and Appellee YOSHIOKA their reasonable attorney's fees and costs; D. That the Court grant such other and further relief that it deems just and equitable under the circumstances. DATED: Hilo, Hawaii, July 2, 2014. lam--- At, z�z� ALAN M. OKAMOTO Attorney for Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA 5 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAW All COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, vs. SANDRA SONG, in her capacity as Hearing Officer; JEFFREY DOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE T. YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. CERTIFICATE OF SERVICE 1 hereby certify that the foregoing Appellees Sidney Fuke and Terence T. Yoshioka's Answer to Notice of Appeal to Circuit Court; Statement of the Case by Community Based Education Support Services and Connections New Century Public Charter School was served on the following by depositing the same with the U.S. Postal Service, postage prepaid, on July 2, 2014: 1 Ted H.S. Hong, Esq. David M. Louie, Esq. P.O. Box 4217 Carter K. Siu, Esq. Hilo, HI 96720 Deputy Attorney General 235 S. Beretania Street, Room 304 Attorney for Applicant-Appellant Honolulu, HI 96813 COMMUNITY BASED EDUATION SUPPORT SERVICES Attorney for Applicant-Appellant CONNECTIONS NEW CENTUREY CHARTER SCHOOL Margaret Masunaga, Esq. Amy Self, Esq. Deputy Corporation Counsel Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway 333 Kilauea Avenue Kailua-Kona, HI 96720 Hilo, HI 96720 Attorney for Appellee Attorney for Appellee WINDWARD PLANNING DEPARTMENT OF PLANNING, COMMISSION, COUNTY OF HAWAII COUNTY OF HAWAII SANDRA SONG JEFFREY GOMES Hearings Officer 281 Edita Street 10 Kamehameha Avenue Hilo, HI 96720 Hilo, Hl 96720 Appellee Pro Se Appellee Pro Se � LJ� ALAN M. OKAMOTO 2 FILED MOLLY A. STEBBINS 8639 Corporation Counsel 2014 JUL -1 PH 3: 35 MARGARET K. MASUNAGA 4568 Deputy Corporation Counsel �w� L! 7, HENR ET TA ri . County of Hawaii Hilo Lagoon Centre 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: 961-8251 Facsimile: 961-8622 E-Mail: mkmasunagaAhawaiicounty.gov Attorneys for Appellee W NDWARD PLANNING COMMISSION, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, vs. APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI-I'S WINDWARD PLANNING COMMISSION, REQUEST FOR EXTENSION OF TIME TO COUNTY OF HAWAII; DEPARTMENT OF FILE RECORD ON APPEAL; AFFIDAVIT OF PLANNING, COUNTY OF HAWAII, SARAH Y. HATA-FINLEY; ORDER; CERTIFICATE OF SERVICE Appellees, and SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. s APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII'S REQUEST FOR EXTENSION OF TIME TO FILE RECORD ON APPEAL SARAH Y. HATA-FINLEY, the secretary for the Windward Planning Commission of the County of Hawaii, by and through the undersigned counsel, pursuant to Rule 72(d)(1) of the Hawai`i Rules of Civil Procedure, does hereby request an extension of time from June 30, 2014 to July 31, 2014, in which to file the record on appeal in the above-entitled matter. This request is based upon the attached Affidavit of Sarah Y. Hata-Finley, and the records and files in this case. Dated: Hilo, Hawaii, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, Appellee By MARGARET K. MASUNAGA Deputy Corporation Counsel Its Attorney 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, Applicant-Appellant, AFFIDAVIT OF SARAH Y. HATA-FINLEY vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. AFFIDAVIT OF SARAH Y. HATA-FINLEY STATE OF HAWAII ) SS. COUNTY OF HAWAII ) SARAH Y. HATA-FINLEY, being first duly sworn, on oath deposes and says that: 1. 1 am employed by the County of Hawaii Planning Department ("Planning Department") as a secretary. As Secretary to Boards and Commissions with the Planning Department, part of my duties include being assigned to assist the Windward Planning Commission and the Board of Appeals ("Board"). 3 2. As secretary for the Windward Planning Commission and the Board, I must accompany those agencies to their respective meetings, set up facilities for and record the proceedings, prepare minutes, notices, and transcripts as needed for the meetings, keep track of documents for the agencies, and perform other administrative support tasks. 3. The Notice of Appeal in the above-captioned case was filed on June 9, 2014, and was accompanied by the Statement of the Case; Exhibits "1"-"2"; Designation of Contents of Record on Appeal; Order for Certification and Transmission of Record on Appeal. The Order requires the Windward Planning Commission to certify and transmit to the Circuit Court the contents of the Record on Appeal as designated, within twenty(20) days of the date of the Order or within such further time as may be allowed by the Court. 4. Pursuant to Rule 72(d)(i) of the Hawaii Rules of Civil Procedure, the Record on Appeal would be due within 20 days, or on June 30, 2014. 5. I am requesting an extension of time to transmit the Record on Appeal for the following reasons: a. The record in this case is voluminous and consists of over 4,000 pages. b. The Windward Planning Commission has been inundated with applications and the July 3, 2014, meeting has a full agenda, one of which is a possible contested case proceeding associated with a special permit application. c. I am currently assisting the manager in training the new Cultural Resources Commission ("CRC") secretary with her responsibilities with the migration of the CRC responsibilities and activities from West Hawaii to Hilo Office. 4 6. In view of these circumstances, I am respectfully requesting an additional period of time, up to and including July 31, 2014, in which to complete the preparation of the record on appeal in the present case. Further, Affiant sayeth naught. SA AH Y. HATA- INLEY Subscribed and sworn to before me this 95'day of Itkne- , 2014. G�ELLE Si ature •'���OTAR2'•�* RACCHELLE LEY = : p �C +'� cn trat6 Print name %�9 •' ......• ''s��;� OF H Notary Public, State of Hawaii My commission expires: U j 1z j.7-C 15 —I NOTARY CERTIFICATION Doc.Date: Ltocialyd of t+lrC o� I204 � No. of Pages: .5 Notary Name: RokCHELLE LEY Third Circuit Doc.Description: Wl6a v�V 6� TAjt 82t' * 10 P N ary ignature V U Date 5 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, ORDER App]i cant-Appellant, VS. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. ORDER Pursuant to Appellee Windward Planning Commission, County of Hawai`i's request to extend the date for filing of the record on appeal, and good cause appearing therefore, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the request for extension of time to file the record on appeal is hereby granted and that Appellee Windward Planning Commission, County of Hawaii, will have up to and including July 31, 2014, to file the record on appeal with the Circuit Cort o the Third Circuit. 8t�d:ByH ,�ai`i, 11 i JUDGE OF THE ABOVE-ENTITLED COURT 6 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, CERTIFICATE OF SERVICE Applicant-Appellant, vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a copy of the foregoing document was served upon the following, in the manner indicated below on JUN 2 7 2454 Ted H. S. Hong, Esq. Attorney for Applicant-Appellant P.O. Box 4217 Community Based Education Hilo, HI 96720 Support Services Via Hand Delivery Carter K. Siu, Esq. Attorney for Applicant Deputy Attorney General Connections New Century Charter State of Hawaii School 235 S. Beretania Street, Rm. 304 Via U.S. Mail,postage prepaid Honolulu, HI 96813 Amy G. Self, Esq. Attorney for Appellees Office of the Corporation Counsel DEPARTMENT OF PLANNING, 101 Aupuni Street, Suite 325 COUNTY OF HAWAV I Hilo, HI 96720 Via hand delivery Mr. Sidney Fuke Representative for 1358 Mele Manu Street, Apt. C Intervenor-Appellee Hilo, HI 96720 Via U.S Mail,postage prepaid Mr. Jeffrey Gomes Intervenor Pro Se Appellee 281 Edita Street Via U.S Mail,postage prepaid Hilo, HI 96720 The Honorable Sandra P. Song (Ret.) Hearing Officer 10 Kamehameha Avenue Via U.S Mail,postage prepaid Hilo, HI 96720 The Honorable Terence Yoshioka(Ret.) Representative for 1572 Mele Manu Street Intervenor-Appellee, Appellee Hilo, H1 96720 Via U.S Mail,postage prepaid MARGARET K. MASUNAGA Deputy Corporation Counsel 2 LED MOLLY A. STEBBINS 8639 Corporation Counsel Nk JUL _7 PN 3: 36 MARGARET K. MASUNAGA 4568 Deputy Corporation Counsel F.E.1; F „ ' Office of the Corporation Counsel TY i ,. County of Ha%vai'i } Hilo Lagoon Centre 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Tel. No. (808) 323-4442 Fax No. (808) 961-8622 Email: mkmasunaga r hawaiicountyjzov Attorneys for Appellee WINDWARD PLANNING COM? ^ISSION, COUNTY OF HAWAII, and Intervenor-Appellee SANDRA SONG, in her capacity as Hearing Officer IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICE'S. Applicftnt-Appellant, APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, and vs. INTERVENOR-APPELLEE SANDRA SONG'S MOTION TO DISMISS; WfINDWARD PLANNING COMMISSION. MEMORANDUM IN SUPPORT OF COUNTY" OF HAWAII; DEPARTMENT OF MOTION; NOTICE OF HEARING; PLANNIfNG. COUNTY OF HAWAII, CERTIFICATE OF SERVICE Appellees, and HEARING: SANDRA SONG, in her capacity as Hearing Date: AUG 2 2 2014 Officer, JEFFREY COMES, Intervenor; Time: � cc, a 4n SIDNEY FUKE, Intervenor's Representative; Judge: RONALD ISARRA TERENCE YOSHIOKA. Intervenor's Representative, No Trial Date Set Intervenor-Appellees. APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, AND INTERVENOR-APPELLEE SANDRA SONG'S MOTION TO DISMISS Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII (hereinafter "Planning Commission"), and Intervenor-Appellee SANDRA SONG (hereinafter "Sandra Song"), in her capacity as Hearing Officer, by and through the undersigned counsel, hereby moves this Honorable Court for an order dismissing Sandra Song as an "Intervenor- Appellee" party in this case, deleting her name in the caption, and dismissing any and all claims raised by Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES (hereinafter "CBESS") against Sandra Song in its Statement of the Case filed with this Court on June 9, 2014. CBESS has failed to state a claim upon which relief can be granted against Sandra Song. This motion is made pursuant to Rules 7, 12(b)(6) and 72 of the Hawaii Rules of Civil Procedure and Rule 7 of the Rules of the Circuit Courts of the State of Hawaii, the attached Memorandum in Support of Motion and the records and files herein,and on such further and other grounds as may be adduced at a hearing on this motion. Dated: Hilo, Hawaii, June 30, 2014. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I, Appellee, and SANDRA SONG, in her capacity as Hearing Officer, Intervenor-Appellee By MARGAIVT K. MASUNAG Deputy Corporation Counsel 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES, Applicant-Appellant, MEMORANDUM IN SUPPORT OF MOTION VS. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appel lees. MEMORANDUM IN SUPPORT OF MOTION I. INTRODUCTION On June 9, 2014, Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES (hereinafter "CBESS") filed its Notice of Appeal and Statement of the Case to this Court, pursuant to Rule 72 of the Hawaii Rules of Civil Procedure ("HRCP") and Section 91-14(g) of the Hawaii Revised Statutes ("HRS"). CBESS named Sandra Song as an Intervenor-Appellee. Sandra Song did not intervene in the case before the Windward Planning Commission (hereinafter"Planning Commission"), She was the duly appointed and designated hearing officer pursuant to Rule 4-4 of the County of Hawaii Planning Commission Rules of Practice and Procedure ("Commission Rules"). On March 7, 2013, the Planning Commission granted a request by CBESS for a contested case hearing on the application for a special permit on a development of a charter school campus with dorm facilities and related improvement for students in kindergarten through twelfth grade on 70.15 acres of land situated within the State Land Use Agricultural District in South Hilo, Hawaii, Tax Map Key (3) 2-5-006:141. On or about July 12, 2013, Applicant-Appellant was notified that Sandra Song would serve as the Hearing Officer in the Contested Case. The contested case hearings by the Hearing Officer were held on October 21, and 22, 2013, November 12, 2013, January 8 and 22, 2014. Pursuant to Rule 4-17(a) of the Commission Rules, strict rules of evidence do not apply, and the Hearing Officer and/or Commission shall not be bound by the rules relating to the admission or rejection of evidence but may exercise its own discretion in such matter with a view to do substantial justice. In its Statement of the Case, CBESS seeks attorney's fees and costs against all of the Appellees, including Intervenor-Appellee Sandra Song. in her capacity as Hearing Officer. Under Rule 72, HRCP, the Statement of the Case is treated as an original complaint and the HRCP apply to motions and answers in response to the Statement of the Case. Therefore, Intervenor-Appellee Sandra Song moves to dismiss her as a party as she should not have been named as an intervenor, delete her name from the caption, and dismiss any and all claims against her by CBESS in its Statement of the Case as it has failed to state a claim upon which relief may be granted. Furthermore, Sandra Song was never a party to the contested case presently being appealed to this Court, and she certainly was not an Intervenor to the underlying contested case hearing. 2 11. LEGAL DISCUSSION A. Standard of Review Review of a motion to dismiss is based on the contents of the complaint, the allegations of which a Court accepts as true and construes in the light most favorable to the Appellant. See Bremner v. City & County of Honolulu, 96 Hawaii 134, 138, 28 P.3d 350, 354 (Haw. App. 200 1) (citation omitted, motion to dismiss affirmed). Under Rule 12(b)(6), HRCP, "a complaint may be dismissed if it appears beyond a doubt that the [appellant] can prove no set of facts entitling the [appellant] to relief." Bertelmann v. Taas Assocs., 69 Haw. 95, 99, 735 P.2d 930, 933 (1987) (citation omitted). Although in reviewing a motion to dismiss the allegations contained in the complaint are taken as true, "the court is not required to accept conclusory allegations on the legal effect of the events alleged." Paysek v. Sandvold, 127 Hawaii 390, 403, 279 P.3d 55, 68 (Haw. App. 2012) (quoting Marsland v. Pang, 5 Haw. App. 463, 474, 701 P.2d 175, 186 (1985). Moreover, "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true (even if doubtful in fact)." Id. B. CBESS should not have named Sandra Sonia as Intervenor-Appellee. In the Notice of Appeal and the Statement of the Case, CBESS names Sandra Song as an Intervenor-Appellee and requests this Court to order all of the Appellees to pay CBESS' attorney's fees and costs. Sandra Song, as the Hearing Officer, issued a Hearing Officer's Report dated April 7, 2014. The report was then considered by the Planning Commission at its May 1, 2014, meeting in Hilo, Hawaii. Sandra Song is without authority to grant or deny a special permit; that is the role of the Planning Commission and its decision was made on May 1, 2014. Pursuant to Section 205-6, HRS, the Planning Commission has the sole authority to grant or deny special permits. 3 See HRS § 205-6. See also Rule 6 of the Commission Rules. C. Sandra Song was never a party to the contested case presently being appealed to this Court. CBESS names Sandra Song as an "Intervenor-Appellee"party to the appeal before this Court. See Exhibits "1" and "2" attached to the Statement of the Case. Sandra Song should not have been named as a party in the instant action as an Intervenor-Appellee. Pursuant to Rule 4- 6(a) of the Commission Rules, "[a] person seeking to intervene as a party [must] file a written request on a form approved by the Planning Director. . . ." Sandra Song never filed a written request to intervene and, therefore, was never granted standing as an intervenor by the Planning Commission in the Special Permit Application (SPP 12-000138). On the other hand, Jeffrey K. Gomes did file a written request to intervene and was granted standing as Intervenor on March 7, 2013, by the Planning Commission. Sandra Song issued a report and made a recommendation to the Planning Commission. It was the Planning Commission's decision that denied the special permit. Sandra Song performed her duties pursuant to Rule 4 of the Commission Rules. CBESS can prove no set of facts entitling the CBESS to relief and any and all claims against Sandra Song should be dismissed. See Bertelmann, 69 Haw. at 99, 735 P.2d at 933. III. CONCLUSION Based on the foregoing, Sandra Song and the Windward Planning Commission respectfully request that this Court dismiss CBESS' appeal against Sandra Song as an Intervenor-Appellee and that the caption be amended to delete "SANDRA SONG, in her capacity as Hearing Officer" as an Intervenor-Appellee. 4 Dated: Hilo, Hawaii, June 30, 2014. Respectfully submitted, By MAR ET K. MASUNAGA Deputy Corporation Counsel Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, and Intervenor-Appellee SANDRA SONG, in her capacity as Hearing Officer Community Based Education Support Services vs. Windward Planning Commission, et al. Civil No. 14-1-0223, Page 5 of 5 5 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES, Applicant-Appellant, NOTICE OF HEARING VS. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. NOTICE OF HEARING TO: TED H.S. HONG, ESQ. P. O. Box 4217 Hilo, Hawai`i 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES AMY G. SELF Deputy Corporation Counsel Office of the Corporation Counsei 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII JEFFREY GOMES 281 Edita Street Hilo, Hawaii 96720 Intervenor SIDNEY FUKE 1358 Mele Manu Street, Apt. C Hilo, Hawaii 96720 Intervenor TERENCE YOSHIOKA 1572 Mele Manu Street Hilo, Hawaii 96720 Intervenor PLEASE TAKE NOTICE that the undersigned will bring the foregoing motion on for hearing before thWao bl Wtegding Judge of the above-entitled court, in his/her courtroom, Third DDvUen - C'run Court located at , Kealakekua, Hawaii 96750 on GKf kk "' � �' 2 2Q14 2014 at DC' ��'') or as soon thereafter as counsel can be heard, Dated: Hilo, Hawaii, June 30, 2014. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, Appellee, and SANDRA SONG, in her capacity as Hearing Officer, Intervenor-Appellee ay 2ko�'� MARG T K. MASUNAGA Deputy Corporation Counsel 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES Applicant-Appellant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 30, 2014, a copy of the foregoing document was served upon the following in the manner indicated below: Hand Delivery Mail Email (X) TED H.S. HONG, ESQ. P. O. Box 4217 Hilo, Hawaii 96720 Email: ted&tedhonglaw.com .Attorney for COMMUNITY BASED EDUCATION SUPPORT SERVICES Hand Delivery Mail Email AMY G. SELF (X) Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII JEFFREY GOMES (X) 281 Edita Street Hilo, Hawaii 96720 Intervenor SIDNEY FUKE N 1358 McIe Manu Street, Apt. C Hilo, Hawaii 96720 Intervenor TERENCE YOSHIOKA (X) 1572 Mele Manu Street Hilo, Hawaii 96720 Intervenor Dated: Hilo, Hawaii, June 30, 2014. MARG K. MASUNAGA Deputy Corporation Counsel 2 FILED MICHAEL J. MATSUKAWA, 1885-0 Territorial Centre, Suite 201 N14 JUL -8 AM 8: 15 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Telephone No. . (808) 329-1385 11 Attorney for Appellee-Intervenor JEFFREY K. GOMES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES, ) (Agency Appeal) Applicant-Appellant, ) APPEARANCE OF COUNSEL FOR VS . ) JEFFREY K. GOMES, INTERVENOR; CERTIFICATE OF SERVICE WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII ; DEPARTMENT OF ) PLANNING, COUNTY OF HAWAII , ) Appellees, ) and ) } SANDRA SONG, in her capacity as } Hearing Officer; JEFFREY GOMES, ) Intervenor; SIDNEY FUKE, ) Intervenor' s Representative; ) TERENCE YOSHIOKA, Intervenor' s ) Representative, ) Intervenor-Appellees. ) } 070214\j-gomes\appear APPEARANCE OF COUNSEL FOR JEFFREY K. COMES, INTERVENOR Michael J. Matsukawa makes an appearance on behalf of the individual joined in this proceeding and who is named as • JEFFREY K. GOMES, Intervenor and requests that copies of all pleadings and other matter filed in this proceeding be served upon him at his addressed noted above . DATED: Kailua-Kona, Hawaii, July 3, 2014 JEFFREY K. GOMES, Appellee- Intervenor By- vvi MICHAEL J. MATSUKAWA His Attorney 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO. 14-1-0223 SUPPORT SERVICES, ) (Agency Appeal) Applicant-Appellant, } CERTIFICATE OF SERVICE VS . ) ) WINDWARD PLANNING COMMISSION, } COUNTY OF HAWAII ; DEPARTMENT OF ) PLANNING, COUNTY OF HAWAII , ) Appellees, ) and ) ) SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY GOMES, ) Intervenor; SIDNEY FUKE, ) Intervenors Representative; ) TERENCE YOSHIOKA, Intervenors ) Representative, ) ) Intervenor-Appellees. } CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a copy of the foregoing document (s) was duly served upon the following parties via the U. S . Post Office, Kailua-Kona, Hawaii , postage prepaid, addressed as follows : SANDRA P . SONG, ESQ. Hearings Officer 10 Kamehameha Avenue Hilo, Hawaii 96720 TED H. S . HONG, ESQ. P.O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General 235 So . Beretania Street , Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AMY SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAII PLANNING DIRECTOR MARGARET MASUNAGA, ESQ. Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway Kailua-Kona, Hawaii 96740 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII ALAN M. OKAMOTO, ESQ. Nakamoto Okamoto & Yamamoto 187 Kapiolani Street Hilo, Hawaii 96720 Attorney for Appellees SIDNEY FUKE and TERENCE YOSHIOKA DATED: Kailua-Kona, Hawaii , Jul3z 3 2014 JEFFREY K. COMES, Appellee- Intervenor By MICHAEL J. MATSUKAWA His Attorney 2 FILED MICHAEL J. MATSUKAWA, 1885-0 Territorial Centre, Suite 201 2014 JUL _$ AN 8, ( � 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Telephone No . . (808) 329-1385 Attorney for Appellee-Intervenor JEFFREY K. COMES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES, ) (Agency Appeal) Applicant-Appellant, ) APPELLEE-INTERVENOR JEFFREY K. VS . ) COMES' RESPONSE TO STATEMENT OF THE CASE FILED JUNE 19, WINDWARD PLANNING COMMISSION, ) 2014 BY APPLICANT-APPELLANT COUNTY OF HAWAII ; DEPARTMENT OF } CONNECTIONS NEW CENTURY PUBLIC PLANNING, COUNTY OF HAWAII , ) CHARTER SCHOOL; CERTIFICATE OF SERVICE Appellees, ) ) and } ) SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY COMES, ) Intervenor; SIDNEY FUKE, ) Intervenor' s Representative; ) TERENCE YOSHIOKA, Intervenor' s ) Representative, } } Intervenor-Appellees. } ) 0702011j-gomeslrespons2.gom APPELLEE-INTERVENOR JEFFREY K. DOMES' RESPONSE TO STATEMENT OF THE CASE FILED JUNE 19, 2014 BY APPLICANT-APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL Appellee-Intervenor Jeffrey K. Gomes makes this response to the Notice of Appeal filed by the so-called "Applicant- Appellant" Connections New Century Public Charter School on June 19, 2014 and the Statement of the Case filed earlier herein on June 9, 2014 by the separate entity called "Community Based Education Support Services" in which Connections New Century Public Charter School "joins . " This response is made pursuant to Rule 72 (e) , Rule 81 (f) and Rule 8 (b) & (c) , HRCP and Costa v. Sunn, 5 Haw. App . 419, 429-430 (1985) . 1 A. NO JURISDICTION 1 . The Notice of Appeal was untimely filed. The Appellee Windward Planning Commission' s notice of decision was served on the parties by mail on May 1 , 2014 and the Notice of Appeal was filed on June 19, 2014 , 49 days later. 2 . Further, the Notice of Appeal is defective and untimely because, if the so-called "Applicant-Appellant" Connections New Century Public Charter School intended to file its own separate appeal , it had to do so in a separate (new) case under a separate (new) civil number. It cannot "join" in the appeal filed earlier herein in this case, Civil No . 14-1-0223 , after-the- fact . 3 . If the so-called "Applicant-Appellant" Connections New Century Public Charter School' s attempt to puruse an appeal from the Appellee Windward Planning Commission' s decision fails, I In the agency proceedings below, two separate entities joined in an application to obtain a Special Permit . The Appellee Windward Planning Commission denied the joint application. Each of the two entities filed separate notices of appeal , one on June 9, 2014 and one on June 19, 2014 . 2 then the separate entity called "Community Based Education Support Services" lacks any interest or standing in this proceeding, Civil No. 14-1-0223 . B. THE AGENCY RECORD 1 . The facts of record are set forth in the record on appeal, which record has not yet been filed herein or served upon the parties . Thus, it is premature to address the facts of record at this time . 2 . Connections New Century Public School adopts the Statement of the Case filed earlier herein on June 9, 2014 . As such, the incorporated reference to Sidney Fuke as an "Intervenor- Appellee" (Page 3 , ¶ 7) is not correct and the characterization of Sidney Fuke as an "agent/representative" of Appellee-Intervenor Jeffrey K. Gomes is not correct . 3 . Further, the incorporated reference to Terence Yoshioka as an "Appellee" (Page 4 , ¶ 8) is also not correct and the characterization of Terence Yoshioka as a "representative" of Appellee-Intervenor Jeffrey K. Gomes is also not correct . C. PROCEDURAL HISTORY The facts of record are set forth in the record on appeal, which record has not yet been filed herein or served upon the parties . Thus , it is premature to address the procedural history of this case at this time . 3 D. POINTS OF ERROR Appellee-Intervenor Jeffrey K. Gomes reserves making a response to the incorporated Points of Error (incorporated from the Statement of Case filed earlier herein on June 9 , 2014 by the separate entity called "Community Based Education Support Services" ) to the time and manner allowed for filing an Answering Brief, if required, pursuant to Rule 72 (f) (1) , HRCP. Costa v. Sunn, su ra. E. OTHER Appellee-Intervenor Jeffrey K. Gomes reserves filing a response to the subjects referred to in the agency record when the agency record is filed and served upon the parties . DATED: Kailua-Kona, Hawaii, July 3 , 2014 . JEFFREY K. COMES, Appellee- Intervenor Ir. By MICHAEL J. MATSUKAWA His Attorney 4 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES, ) (Agency Appeal) ) Applicant-Appellant , ) CERTIFICATE OF SERVICE vs . ) ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII ; DEPARTMENT OF ) PLANNING, COUNTY OF HAWAII , ) Appellees , ) ) and ) ) SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY COMES, ) Intervenor; SIDNEY FUKE, } Intervenor' s Representative; ) TERENCE YOSHIOKA, Intervenor' s ) Representative, } Intervenor-Appellees. ) ) CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a copy of the foregoing document (s) was duly served upon the following parties via the U. S . Post Office, Kailua-Kona, Hawaii, postage prepaid, addressed as follows : SANDRA P . SONG, ESQ. Hearings Officer 10 Kamehameha Avenue Hilo, Hawaii 96720 TED H. S. HONG, ESQ. P. O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General 235 So. Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AMY SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street , Suite 325 Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAII PLANNING DIRECTOR MARGARET MASUNAGA, ESQ. Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway Kailua-Kona, Hawaii 96740 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII ALAN M. OKAMOTO, ESQ. Nakamoto Okamoto & Yamamoto 187 Kapiolani Street Hilo, Hawaii 96720 Attorney for Appellees SIDNEY FUKE and TERENCE YOSHIOKA DATED : Kailua-Kona, Hawaii , July 3, 2014 JEFFREY COMES, Intervenor-Appellee By 1�9czeo-_ MICHAEL J. MATSUKAWA His Attorney 2 FILED MICHAEL J. MATSUKAWA, 1885-0 Territorial Centre, Suite 201 20h JUL _8 AM 8: 5 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Telephone No. . (BOB) 329-1385 C112" / .. Attorney for Appellee-Intervenor JEFFREY K. COMES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES , ) (Agency Appeal) ) Applicant-Appellant, ) APPELLEE-INTERVENOR JEFFREY K. VS . ) GOMES' RESPONSE TO STATEMENT OF THE CASE FILED JUNE 9, 2014 WINDWARD PLANNING COMMISSION, } BY APPLICANT-APPELLANT COM- COUNTY OF HAWAII ; DEPARTMENT OF ) MUNITY BASED EDUCATION SUPPORT PLANNING, COUNTY OF HAWAII, ) SERVICES; CERTIFICATE OF SERVICE Appellees , ) } and ) SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY COMES, ) Intervenor; SIDNEY FUKE, ) Intervenor' s Representative; ) TERENCE YOSHIOKA, Intervenor' s ) Representative, ) ) Intervenor-Appellees . ) 070201\J-9omes\response.gom APPELLEE-INTERVENOR JEFFREY K. COMES' RESPONSE TO STATEMENT OF THE CASE FILED JUNE 9, 2014 BY APPLICANT-APPELLANT COMMUNITY BASED EDUCATION SUPPORT _SERVICES Appellee-Intervenor Jeffrey K. Gomes makes this response to the Statement of the Case filed by the Applicant-Appellant Community Based Education Support Services on June 9, 2014 . This response is made pursuant to Rule 72 (e) , Rule 81 (f) and Rule 8 (b) & (c) , HRCP and Costa v. Sunn, 5 Haw. App . 419, 429-430 (1985) . A. NO JURISDICTION The Notice of Appeal was untimely filed. The Appellee Windward Planning Commission' s notice of decision was served on the parties by mail on May 1, 2014 and the Notice of Appeal was filed on June 9 , 2014 , 39 days later. B. THE AGENCY RECORD 1 . The facts of record are set forth in the record on appeal, which record has not yet been filed herein or served upon the parties . Thus , it is premature to address the facts of record at this time . 2 . The reference to Sidney Fuke as an " Intervenor- Appellee" (Page 3 , ¶ 7) is not correct and the characterization of Sidney Fuke as an "agent/representative" of Appellee-Intervenor Jeffrey K. Gomes is not correct . 3 . The reference to Terence Yoshioka as an "Appellee" (Page 4 , T 8) is not correct and the characterization of Terence Yoshioka as a "representative" of Appellee-Intervenor Jeffrey K. I In the agency proceedings below, two separate entities joined in an application to obtain a Special Permit . The Appellee Windward Planning Commission denied the joint application. Each of the two entities filed separate notices of appeal , one on June 9, 2014 and one on June 19, 2014 . 2 Gomes is not correct . C. PROCEDURAL HISTORY The facts of record are set forth in the record on appeal , which record has not yet been filed herein or served upon the parties . Thus, it is premature to address the procedural history of this case at this time . D. POINTS OF ERROR Appellee-Intervenor Jeffrey K. Gomes reserves making a response to the Points of Error to the time and manner allowed for filing an Answering Brief pursuant to Rule 72 (f) (1) , HRCP. Costa v. Sunn, supra . E. OTHER Appellee-Intervenor Jeffrey K. Gomes reserves filing a response to the subjects referred to in the Agency Record when the agency record is filed and served upon the parties . DATED : Kai 1 ua-Kona, Hawaii, July 3, 2014 JEFFREY K. GOMES , Appellee- Intervenor By. MICHAEL J. MATSUKAWA His Attorney 3 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES, ) (Agency Appeal) Applicant-Appellant, ) CERTIFICATE OF SERVICE vs . ) ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII ; DEPARTMENT OF ) PLANNING, COUNTY OF HAWAII, ) Appellees, ) ) and ) SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY DOMES, ) Intervenor; SIDNEY FUKE, ) Intervenor' s Representative; ) TERENCE YOSHIOKA, Intervenor' s ) Representative, ) Intervenor-Appellees. ) CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a copy of the foregoing document (s) was duly served upon the following parties via the U. S . Post Office, Kailua-Kona, Hawaii , postage prepaid, addressed as follows : SANDRA P . SONG, ESQ. Hearings Officer 10 Kamehameha Avenue Hilo, Hawaii 96720 TED H. S . HONG, ESQ . P .O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General 235 So . Beretania Street , Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AMY SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAII PLANNING DIRECTOR MARGARET MASUNAGA, ESQ. Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway Kailua-Kona, Hawaii 96740 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII ALAN M. OKAMOTO, ESQ. Nakamoto Okamoto & Yamamoto 187 Kapiolani Street Hilo, Hawaii 96720 Attorney for Appellees SIDNEY FUKE and TERENCE YOSHIOKA DATED : Kailua-Kona, Hawaii , July 3, 2014 JEFFREY GOMES, Intervenor-Appellee � �- By- MICHAEL J. MATSUKAWA His Attorney 2 f� CIRCUIT COURT OF MOLLY A. STEBBINS 8639 THE THIRD CIRCUIT Corporation Counsel STATE OF HAWAII 2014 JUL 0 Z: 3 AMY G. SELF 7628 Deputy Corporation Counsel JOSEPH K. KAMELAMELA Senior Deputy Corporation Counsel riLER1L l ' sµ Office of the Corporation Counsel 101 Aupum Street, Suite 325 Hilo, Hawaii 96720 Tel. No. (808) 961-8251 Fax No. (808) 961-8622 Email: aself(cr),co.hawaii.hi.us kameIa�rz.,co.hawaii.hi.us Attorneys for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAI'l IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES, Applicant-Appellant, AMENDED NOTICE OF HEARING REGARDING APPELLEE DEPARTMENT vs. OF PLANNING, COUNTY OF HAWAI`I'S MOTION TO DISMISS FILED JUNE 27, WINDWARD PLANNING COMMISSION, 2014; CERTIFICATE OF SERVICE COUNTY OF HAWAI`l; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, ORIGINAL HEARING: and Date: July 30, 2014 Time: 9:00 a.m. SANDRA SONG, in her capacity as Hearing .fudge: Honorable Glenn S. Hara Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; NEW HEARING: TERENCE YOSHIOKA, Intervenor's Date: August 22, 2014 Representative, Time: 8:00 a.m. .fudge: Honorable Ronald Ibarra Intervenor-Appel lees. No Trial Date Set AMENDED NOTICE OF HEARING REGARDING APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S MOTION TO DISMISS FILED JUNE 27, 2014 TO: TED H.S. HONG, ESQ. P. O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MARGARET K. MASUNAGA Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street. Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and SANDRA SONG, in her capacity as Hearing Officer MICHAEL J. MATSUKAWA, ESQ. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES ALAN M. OKAMOTO, ESQ. Nakamoto, Okamoto & Yamamoto 187 Kapi`olani Street Hilo, Hawaii 96720 Attorney for Intervenors-Appellees SIDNEY FUKE AND TERENCE YOSHIOKA YOU ARE HEREBY NOTIFIED that APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI FS MOTION TO DISMISS; MEMORANDUM IN SUPPORT OF MOTION; NOTICE OF HEARING; CERTIFICATE OF SERVICE filed June 27, 2014, will be heard before the Honorable Ronald Ibarra, Judge of the above-entitled court, in his courtroom, 2 located at 51-940 Haleki`i Street, Kealakekua, Hawaii, on Friday, August 22, 2014, at 8:00 a.m., or as soon thereafter as counsel can be heard. Dated: Hilo, Hawaii, July 10, 2014. DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellee By JOSEP K. KAMELAMELA Senior Deputy Corporation Counsel Its Attorney 3 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES Applicant-Appellant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appel lees. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on July 10, 2014, a copy of the foregoing document was served upon the following in the manner indicated below: Hand Delivery Mail Email N TED H.S. HONG, ESQ. P. O. Box 4217 Hilo, Hawaii 96720 Email: ted cr,tedhonglaw.com Attorney for COMMUNITY BASED EDUCATION SUPPORT SERVICES Hand Delivery Mail Email CARTER K. SIU, ESQ. N Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MARGARET K. MASUNAGA N Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and SANDRA SONG, in her capacity as Hearing Officer MICHAEL J. MATSUKAWA, ESQ. N Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES ALAN M. OKAMOTO, ESQ. N Nakamoto, Okamoto & Yamamoto 187 Kapi`olani Street Hilo, Hawaii 96720 Attorney for Intervenors-Appellees SIDNEY FUKE AND TERENCE YOSHIOKA Dated: Hilo, Hawaii, July 10, 2014. JOSEPH K. KAMELAMELA Senior Deputy Corporation Counsel County of Hawaii 2 A r FILED MOLLY A. STEBBINS 8639 Corporation Counsel43 MARGARET K. MASUNAGA 4568 Deputy Corporation Counsel L.K 4- C„ CL;- Office of the Corporation Counsel TNt,=°) County of Hawaii ' Hilo Lagoon Centre 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Tel. No. (808) 323-4442 Fax No. (808) 961-8622 Email: mkmasunag_aghawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I AND Intervenor-Appellee SANDRA SONG, in her capacity as Hearing Officer IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES, Applicant-Appellant, APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAFI'S vs. MOTION TO QUASH OR CORRECT THE ORDER FOR CERTIFICATION AND WINDWARD PLANNING COMMISSION, TRANSMISSION OF RECORD ON APPEAL COUNTY OF HAWAII; DEPARTMENT OF AS TO TAPE RECORDINGS AND PLANNING, COUNTY OF HAWAII, TRANSCRIPTS OF ALL EXECUTIVE SESSION HEARINGS AND MEETINGS Appellees, DATED JUNE 9, 2014; MEMORANDUM IN SUPPORT OF MOTION; DECLARATION and OF COUNSEL; NOTICE OF HEARING; CERTIFICATE OF SERVICE SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's HEARING: Representative, Date: July 29, 2014 Time: 8:00 a.m. Intervenor-Appellees. Judge: Honorable Ronald .lbarra No Trial Date Set APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAITS MOTION TO QUASH OR CORRECT THE ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL AS TO TAPE RECORDINGS AND TRANSCRIPTS OF ALL EXECUTIVE SESSION HEARINGS AND MEETINGS DATED JUNE 9,2014 Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII (hereinafter "Planning Commission"), by and through the undersigned counsel, hereby moves this Honorable Court for an order quashing or correcting the Order for Certification and Transmission of Record on Appeal to exclude executive session transcripts of all hearings and meetings. This motion is made pursuant to Sections 92-4, 92-5(a)(4) and 92F-I 3 of the Hawaii Revised Statutes, Rules 7 and 72 of the Hawaii Rules of Civil Procedure, Rule 503 of the Hawaii Rules of Evidence and Rule 7 of the Rules of the Circuit Courts of the State of Hawaii, the attached Memorandum in Support of Motion, the Declaration of Counsel and the records and files herein, and on such further and other grounds as may be adduced at a hearing on this motion. Dated: Kailua-Kona, Hawaii, July 11, 2014. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, Appellee By MARGARET K. MAS GA Deputy Corporation Counsel Its Attorney 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES, Applicant-Appellant, MEMORANDUM IN SUPPORT OF MOTION vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. MEMORANDUM IN SUPPORT OF MOTION I. INTRODUCTION On June 9, 2014, Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES (hereinafter "CBESS") filed a"Notice of Appeal to Circuit Court; Statement of the Case, Exhibits "1,"—"2;" Designation of Contents of Record on appeal; Order for Certification and Transmission of Record on Appeal; Certificate of Service" pursuant to Rule 72 of the Hawaii Rules of Civil Procedure ("HRCP") and Section 91-14(g) of the Hawaii Revised Statutes ("HRS''). The Order for Certification and Transmission of Record on Appeal included "transcripts of all hearings and meetings (public and executive session)" (hereinafter referred to as "Order"). On July 7, 2014, this Court granted the Planning Commission an extension of time to file the record on appeal, up to and including July 31, 2014. The Planning Commission is requesting this Court quash and/or modify the Order since it seeks executive session records which are protected by the attorney/client privilege pursuant to Rule 503 of the Hawaii Rules of Evidence and HRS §92F-13, which exempts government records from disclosure. Therefore, the Planning Commission respectfully requests that this Honorable Court issue an Amended Order for Certification and Transmission of Record on Appeal, and delete the word"and executive". II. LEGAL DISCUSSION A. Transcripts of the Plannine Commission's executive sessions are exceptions to the disclosure of public records The Planning Commission is required under Chapter 92F, the Uniform Information Practices Act (hereinafter"UIPA"), to disclose records of its public hearings and meetings. The general rules of disclosure under the UIPA ensure that the formation and conduct of public policy, the discussions, deliberations, decisions, and action of government agencies be conducted as openly as possible. Section 92F-2, HRS. The UIPA defines a"government record" as information maintained by an agency in written, auditory, visual, electronic, or other physical form. The Planning Commission is subject to the UIPA as a County agency. Section 9217-3, HRS. However, while the Planning Commission is required to disclose records of its public hearings and meetings, it is able to withhold any transcripts of executive sessions under Section 9217-13(3), HRS, for government records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function. In the instant case, the Planning Commission consulted with its attorney on questions and issues relating to its powers, duties, immunities, and liabilities, after the Commissioners voted by 2 a two-thirds vote to go into an executive meeting pursuant to Sections 92-4 and 92-5(a)(4), HRS. The Sunshine Law and the UIPA allows the Planning Commission to hold a session closed to the public and withhold its transcripts of the executive session meeting. Sections 92-4, 92-5(a)(4), 92F-13, HRS. B. Applicability of Chapter 92, HRS Any transcripts of the Planning Commission's executive session are not required to be disclosed under Section 92F-13, HRS, exceptions of the UIPA and Section 92-5(a)(4), HRS, exception under the Sunshine Law. Section 92-9. HRS, provides that a board shall keep written minutes of all meetings that shall be public records except where such a disclosure would be inconsistent with Section 92-5; provided that minutes of executive meetings may be withheld so long as their publication would defeat the lawful purpose of the executive meeting. The attorney-client privilege doctrine is codified in Section 92-5(a), HRS, which allows a board to hold an executive meeting closed to the public in order to consult with its attorney on questions and issues pertaining to the board's powers, duties,privileges, immunities, and liabilities and deliberate, or make a decision on a matter that requires the consideration of information that must be kept confidential pursuant to a state law. A County Council was justified in not disclosing the minutes of its closed executive session under Section 92-5(a)(4) where the executive session minutes clearly showed that the attorney consulted with Council consistently and at length throughout the session and the session concerned a legal question. County of Kauai v. Office of Information Practices, State of Hawai`i, 120 Haw. 34, 46, 200 P.3d 403, 415 (Ct. App. 2009). The City Council was not prevented from privately conferring with corporation counsel during an executive session about potential claims nor was it required to wait until a claim was asserted before the attorney-client privilege attached. Hui Malama Aina 0Ko'olau v. Pacarro, 4 Haw.App. 304, 314, 666 P, 2d 177, 184 (1983). 3 In County of Kauai, the court affirmed the withholding the minutes of an executive session during which it was discussed with corporation counsel whether or not to pursue an investigation of the police department. Id. at 45, 415. The Council had stated in its public posting of the agenda item for the executive session that its purpose was to consult with the county's legal counsel on legal issues, and the minutes revealed that most of the discussion concerned the proper procedure to use and what topics should be discussed in a future executive session—legal questions that pertained to Council's powers, duties, and immunities. Id. at 36, 415. As the actual content of the discussion during the executive session and the attorney's consistent consultation throughout the executive session were factors the court found significant in ruling that the Council was justified in withholding its minutes of that session, the Planning Commission in the instant case also asserts this Honorable Court would find these factors significant in justifying that the Planning Commission does not have to disclose the minutes of the executive sessions. In Hui Malama, the court concluded that the City and County Charter permitted the City Council to privately confer with corporation counsel on existing and potential claims and that the Charter's open meeting requirement was not violated by an executive session taken to consult with counsel, during which no discussion or votes were held regarding the merits of the issue before the Council. 4 Haw. App. at 314, 666 P.2d at 184. The court looked to the opinions of other courts which have recognized the necessity of retaining the attorney-client privilege between the Council and its legal counsel. Id. at 313, 183. Citing Sacramento Newspaper Guild v. Sacramento Board of Supervisors, 263 Cal.App.2d 41, 56, 69 Cal.Rptr. 480, 490-491 (1968), the court mentioned if the public's "right to know" compelled admission of an audience, "the ringside seats would be occupied by the government's adversary, delighted to capitalize on every revelation of weakness." In Hui Malama, the Court found that the attorney-client privilege 4 was a compelling reason for the Council to enter into executive session. In this case,this Honorable Court should also find this is an acceptable reason why the Planning Commission should not be compelled to provide transcripts of its executive sessions. The report of the Hearing Officer was considered by the Planning Commission at its May 1, 2014, meeting in Hilo, Hawaii, and the Planning Commission voted to deny the application. Pursuant to Section 205-6, HRS, the Planning Commission has the sole authority to grant or deny special permits. III. CONCLUSION Based on the foregoing, the Planning Commission respectfully requests that this Honorable Court issue an Amended Order for Certification and Transmission of Record on Appeal, and delete the word "and executive" in the parenthesis. Dated: Kailua-Kona, Hawaii, July 11, 2014. Respectfully submitted, By MARC RET K. MASUNAGA Deputy Corporation Counsel Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII 5 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES, Applicant-Appellant, DECLARATION OF COUNSEL VS. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. DECLARATION OF COUNSEL I, MARGARET K. MASUNAGA, do hereby declare the following: 1. I am an attorney licensed to practice law before all courts of the State of Hawaii and the Deputy Corporation Counsel assigned to the Planning Commission. 2. I have personal knowledge of and am competent to testify to the matters hereinafter stated. 3. 1 have reviewed the executive session minutes of the Planning Commission relative to the matter which is before this Court. Each meeting excluded members of the public and an attorney was present for the purpose of providing legal advice to the Planning Commission. I declare under penalty of law that the foregoing is true and accurate. Dated: Kailua-Kona, Hawaii, July 11, 2014. MARGAUT K. MASUNAG 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES, Applicant-Appellant, NOTICE OF HEARING vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. NOTICE OF HEARING TO: TED H.S. HONG, ESQ. P. O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU Deputy Attorney General State of Hawai i 235 S. Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant CONNECTIONS NEW CENTURY CHARTER SCHOOL AMY G. SELF Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII MICHAEL J. MATSUKAWA, ESQ. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES ALAN M. OKAMOTO, ESQ. 187 Kapiolani Street Hilo, Hawaii 96720 Attorney for Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA PLEASE TAKE NOTICE that the undersigned will bring the foregoing motion on for hearing before the Honorable Ronald Ibarra, Judge of the above-entitled court, in his courtroom, located at 81-940 Halekii Street, Kealakekua, Hawaii 96750, on Tuesday, July 29, 2014, at 8:00 a.m., or as soon thereafter as counsel can be heard. Dated: Kailua-Kona, Hawaii, July 11, 2014, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, Appellee By MARGAVET K. MASUNAGA Deputy Corporation Counsel Its Attorney 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES Applicant-Appellant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, AppeIIees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on July 11, 2014, a copy of the foregoing document was served upon the following in the manner indicated below: Hand Delivery Mail Email (X) TED H.S. HONG, ESQ. P. O. Box 4217 Hilo, Hawaii 96720 Email: tedtedhonglaw.com Attorney for COMMUNITY BASED EDUCATION SUPPORT SERVICES Hand Delivery Mail Email CARTER K. SIU (X) Deputy Attorney General State of Hawaii 235 S. Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant CONNECTIONS NEW CENTURY CHARTER SCHOOL AMY G. SELF (X) Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII MICHAEL J. MATSUKAWA, ESQ. (X) Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES ALAN M. OKAMOTO, ESQ. (X) 187 Kapiolani Street Hilo, Hawaii 96720 Attorney for Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA Dated: Kailua-Kona, Hawaii, July 11, 2014. MARGARET K. MASUNAGA Deputy Corporation Counsel County of Hawaii 2 iLi.-LO CIRCUIT COURT OF NAKAMOTO, OKAMOTO & YAMAMOTO THE IHIRD ;IRCUIT ATTORNEYS AT LAW STATE OF HAWAII A LAW CORPORATION 2014 JUL 14 PM ?: 34 ALAN M. OKAMOTO #1826 ol 187 Kapiolani Street Hilo, Hawaii 96720 CLERK_ L, Ci 11 N Telephone: (808) 961-0641 Attorney for APPELLEES SIDNEY FUKE and TERENCE T. YOSHIOKA IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, SUPPLEMENTAL CERTIFICATE OF SERVICE vs. (Re: Appellees Sidney Fuke and Terence T. Yoshioka's Answer to Notice of Appeal to WINDWARD PLANNING Circuit Court; Statement of the Case by COMMISSION, COUNTY OF HAWAII; Community Based Education Support DEPARTMENT OF PLANNING, Services and Connections New Century COUNTY OF HAWAII, Public Charter School) Appellees, vs. SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE T. YOSHIOKA, Intervenor's Representative, Intervenor-Appel lees. SUPPLEMENTAL CERTIFICATE OF SERVICE I hereby certify that the foregoing Appellees Sidney Fuke and Terence T. Yoshioka's Answer to Notice of Appeal to Circuit Court; Statement of the Case by 1 Community Based Education Support Services and Connections New Century Public Charter School was served on the following by depositing the same with the U.S. Postal Service,postage prepaid, on July 14, 2014: Amy Self, Esq. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, HI 967201 Attorney for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII DATED: Hilo, Hawaii, July 14, 2014. ALAN M. OKAMOTO 2 t dd, MICHAEL J. MATSUKAWA, 1885-0 Territorial Centre, Suite 201 � �� � � FN 9 75-5751 Kuakini Highway 2i7 r Kailua-Kona, Hawaii 9£740 Telephone No . : (808) 329-1385 Attorney for Appellee-Intervenor JEFFREY K. GOMES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES, ) (Agency Appeal) Applicant-Appellant , } APPELLEE-INTERVENOR JEFFREY K. vs . ) GOMES' MEMORANDUM IN SUPPORT OF APPELLEE WINDWARD PLANNING WINDWARD PLANNING COMMISSION, ) COMMISSION AND INTERVENOR COUNTY OF HAWAII ; DEPARTMENT OF ) SANDRA SONG' S MOTION TO DIS- PLANNING, COUNTY OF HAWAII , ) MISS SANDRA SONG AS A PARTY TO THE AGENCY APPEAL FILED JUNE Appellees, ) 9, 2014 BY APPLICANT-APPELLANT COMMUNITY BASED EDUCATION SUP- and ) PORT SERVICES; EXHIBIT "A" ; CERTIFICATE OF SERVICE SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY GOMES, ) Intervenor; SIDNEY FUKE, ) Intervenor' s Representative; ) HEARING: TERENCE YOSHIOKA, Intervenor' s ) DATE : AUGUST 21 , 2014 Representative, ) TIME : 8 : 00 A.M. JUDGE : HON. R. IBARRA Intervenor-Appellees. } 070214\j-gomes\dismiss2.mem APPELLEE-INTERVENOR JEFFREY K. GOMES' MEMORANDUM IN SUPPORT OF APPELLEE WINDWARD PLANNING COMMISSION AND INTERVENOR SANDRA SONG' S MOTION TO DISMISS SANDRA SONG AS A PARTY TO THE AGENCY APPEAL FILED JUNE 9, 2014 BY APPLICANT-APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES The Appellee-Intervenor JEFFREY K. GOMES agrees with the Movants that Sandra Song should be dismissed from this agency appeal . In order for Sandra Song to be a party-appellee herein, Sandra Song must have been a party in the contested case below or her recommendations must have been the final agency decision that denied the Special Permit application below. However, she was not a party in the contested case below; she was the duly-appointed Hearing Officer who conducted the evidentiary hearing in the contested case . Further, the decision on review in this case is the final decision that the Appellee Windward Planning Commission made to deny the Special Permit application, not the Hearing Officer' s recommendations that the Commission relied upon in its decision-making. Finally, the fact that Sandra Song has been named as a party-appellee in this agency appeal does not make her a proper party in this agency appeal . A. UNDISPUTED FACTS According to the documents attached to the Applicant- Appellant Community Based Education Support Services' Notice of Appeal and Statement of the Case filed June 9, 2014 (Exhibits " 1" and 112" thereto) , the Appellee Windward Planning Commission (the "Planning Commission" hereafter) appointed Sandra Song as its Hearing Officer to conduct the evidentiary hearing in a contested case on the Special Permit application and to submit her recommen- dations to the Planning Commission pursuant to the Planning Commission' s rules . (See Exhibit "2 , " Pages 1-2 ; Statement of the 2 Case, Page 4 , 1 44 ; Page 7, ¶ 21; Page 9, ¶ 49 . ) Thereafter, the Planning Commission made the final decision to deny the Special Permit application. (Exhibit 112 , " Page 14) The Applicant-Appellant Community Based Education Services (the "Appellant " hereafter) then filed its agency appeal herein on June 9, 2014 pursuant to Section 91-14 (a) , HRS . 1 According to its Statement of the Case, the Appellant intends to assign error to the Planning Commission' s final decision for reasons set forth in Section 91-14 (g) , HRS . (Statement of the Case, Page 10) B. QUESTIONS PRESENTED The questions presented by the motion are as follows : 1 . Was the Hearing Officer a party to the contested case below? NO. 2 . Is the Planning Commission' s final decision the agency decision that is on review in this case? YES . 3 . Do the Hearing Officer' s recommendations constitute an appealable "final decision" that can be made the subject of a separate, independent appeal, i . e. , separate from the Planning Commission' s final decision? NO. I The other applicant, Connections New Century Public Charter School , purported to "join" in this appeal on June 19, 2014 . 3 4 . Has the Hearing Officer been properly joined as a party-appellee in this case? NO. C . POINTS OF LAW 1 . "Party" Status . It is undisputed that Sandra Song was the Hearing Officer in the contested case below. She was not named as a party, did not intervene as a party and as the person who was involved in the Planning Commission' s decision-making functions, could not have been a party in the contested case below. Statutes and rules determine who is or can be made a "party" in a contested case and Sandra Song, as the Hearing Officer below, was not a "party" in the contested case in this instance . Under the Hawaii Administrative Procedure Act , Section 91-1 (3) , HRS, a "party" is defined as follows : "Party" means each oerson or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in any . . . agency proceeding. (emphasis added) The Planning Commission' s Rule 1-3 (m) employs the same definition of a "party" : "Party" means any person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party in a proceeding. (emphasis added) 2 . The Responsible Decision-Making Agency. By statute, the Planning Commission, not its Hearing Officer, decides whether it is appropriate to grant or to deny an 4 application for a Special Permit . Section 205-6, HRS . " [T] he county planning commission may permit certain unusual and reasonable uses within the agricultural and rural districts . . . . " 3 . Character of the Hearing Officer' s Recommendations . Standing alone, the Hearing Officer' s recommendations do not constitute a "final decision" from which an appeal can be taken. See Gealon v. Keala, 60 Haw. 513 , 520, 591 P . 2d 621, 626 (1979) (if some matter remains to be decided, action is not "final" for purpose of appeal) . Further, it is undisputed that the Hearing Officer assisted the Planning Commission in the Commission' s decision-making functions pursuant to Planning Commission Rule, Part 2 (Exhibit "A" ) and that the Planning Commission was the agency that made the final decision to deny the application. Rule 4-32 (Exhibit "A" ) z The Appellant actually appeals from that final decision. 4 . Precedent as Guidance . In Re ' Iao Groundwater Management Area High-Land Source Water Use Permit Application, 128 Haw. 228 , 234--237 , 287 P. 3d 129, 135-138 (2012) , illustrates the progression of a contested case where a hearing officer is involved in the agency' s decision-making functions . In that case, following the receipt of its hearing officer' s recommendations, the agency held a hearing and adopted 2 Cf . Association of Owners of Kukui Plaza v. Swinerton & Walberg, 68 Haw. 98 , 105 , 705 P. 2d 28 , 34 (1985) (all orders that lead towards a final decision merge into the decision for purposes of review) . 5 "most, " but "revised some" of its hearing officer' s recommendations . On judicial review, the Hawaii Supreme Court then examined the agency' s decision and factual determinations therein, not the hearing officer' s report . (Id. , 128 Haw. at 245- 262 , 287 P. 3d at 146-153 . ) 5 . "Party" for Appellate Purposes in an Agency Appeal to the Circuit Court . For purposes of an agency appeal to the circuit court, Section 91-14 (a) , HRS describes who may be a party-appellant : "Any person aggrieved by a final decision and order in a contested case . . . is entitled to judicial review thereof under this chapter. " As provided in Section 91-14 (b) , HRS,3 the civil rules of procedure describes the persons who can be made parties- appellees in an agency appeal . Under Rule 72 (a) , HRCP, the person appealing the agency' s final decision is the "appellant . " Every other party to the contested case below and the decision-making agency are the "appellees . " * * * As used in this rule, the term "appellant" means any person or persons filing a notice of appeal , and "appellee" means every governmental body or official (other than a court) whose decision, order or action is appealed from, and every other part to the proceedings . (emphasis added) 3 " [P] roceedings for review shall be instituted in the circuit court . . . pursuant to rule of court . . . . "" 6 6 . Misjoinder. Under Rule 21 , HRCP, the Court may, on motion, "drop" a person as a party to a case . D. ARGUMENT As the Planning Commission' s Hearing Officer, Sandra Song performed her duties and submitted her recommendations to the Planning Commission for its consideration. The Planning Commission considered those recommendations and voted to deny the Special Permit application. An appeal from that decision followed. This is the same procedure described in In Re ' Iao Groundwater Management Area High-Land Source Water Use Permit A lication, su_ipra . However, in this agency appeal , the Appellant has identified and named the Hearing Officer as a party-appellee (in addition to the Planning Commission and the Intervenor-Appellee Gomes) . 1 . SANDRA SONG WAS NOT A PARTY IN THE CONTESTED CASE BELOW. Sandra Song was not a party in the contested case below. She was the Hearing Officer. She could not have been a party because she was assisting the Planning Commission in its decision- making functions . Since Sandra Song was not and could not have been a party in the contested case below, she should not be a party-appellee in this agency appeal . 7 2 . THE DECISION ON REVIEW IS THE PLANNING COMMISSION' S FINAL DECISION NOT THE HEARING OFFICER' S RECOMMEN- DATIONS . The agency decision on review is the final decision that the Planning Commission made to deny the Special Permit application. Although the Planning Commission enlisted the services of Sandra Song as its Hearing Officer, it is the Planning Commission that voted at the end of the contested case to deny the Special Permit application, not the Hearing Officer. Under Rule 72 (a) , HRCP, the Planning Commission is the agency "whose decision . . . is appealed from. " Since the Hearing Officer' s recommendations are not the "final decision, " the Hearing Officer should not be made a party-appellee in this agency appeal . 3 . THE HEARING OFFICER' S RECOMMENDATIONS DO NOT CONSTITUTE A "FINAL DECISION" FOR PURPOSES OF APPEAL. The Hearing Officer' s recommendations are what they purport to be -- they are recommendations to the Planning Commission for consideration. The recommendations do not constitute a "final decision" and cannot be the basis for an independent , separate agency appeal . Assuming that the Appellant' s appeal from the Planning Commission' s final decision is timely and otherwise proper, the appeal brings up for review all subsidiary issues and orders from the contested case below, including the Hearing Officer' s recommendations, preliminary findings or other actions taken below. (See footnote 2 , supra . ) 8 4 . NAMING SANDRA SONG AS A PARTY-APPELLEE DOES NOT MAKE HER AN APPELLEE IN THIS AGENCY APPEAL. As stated above, statutes and rules do not allow the Appellant to join Sandra Song, the Hearing Officer, as a party- appellee in this agency appeal . The Appellant has nonetheless elected to do so, specifically, as an "'Intervenor-Appellee . " This is a misjoinder and the Court may "drop" Sandra Song as a party- appellee for reasons stated above . E. CONCLUSION If the Appellant seeks to assign error to some of the Hearing Officer' s recommendations, preliminary findings or other actions taken below, the Appellant may challenge the same in its appeal from the Planning Commission' s final decision. It is not necessary for the Appellant to also separately appeal from the Hearing Officer' s recommendations . It is not necessary (and is improper) to join the Hearing Officer as a party-appellee. The Court should grant the relief requested and dismiss Sandra Song as a party to this agency appeal . DATED : Ka i l ua-Kona, Hawaii , July 22, 2014 JEFFREY K. DOMES, Appellee- Intervenor BY: MICHAEL J. MATSUKAWA His Attorney 9 LEEWARD AND WINDWARD PLANNING COMMISSIONS COUNTY OF HAWAII RULES OF PRACTICE AND PROCEDURE RULE 4 . CONTESTED CASE PROCEDURE PART 2 . Post Hearing Procedure for Hearings Conducted by Hearing Officer 4-28 Recommendations of Hearing Officer (a) Submission of Recommendations . Upon completion of taking of the evidence, the hearing officer shall prepare a report, setting forth findings of fact, conclusions of law, and the reasons therefore, and a recommended order and submit the report of the case to the Commission. (b) Contents of Record. The record shall include the petition, notice of hearing, motions, rulings, orders, transcript of the hearing, stipulations, documentary evidence, proposed findings, or other documents submitted by the parties, objections to the conduct of the hearing and the report of the hearing officer and all other matters placed in evidence. (c) Service of Hearing Officer ' s Report . The hearing officer shall cause a copy of the report to be served upon all parties to the proceedings . 4-29, Exceptions to Hearing Officer ' s Report and Recommendations (a) File; Form; Copies; Time; Service. Within fifteen days after service of the report and recommendations by the hearing officer, a party may file with the Commission any exceptions to the report and a brief or statement in support thereof with the Commission. A copy of the EXHIBIT "htj exceptions and brief or statement shall be served upon each party to the proceeding. (b) Contents of Exceptions . The exceptions shall include: (1) The specific questions of procedure, fact, law, or policy to which exceptions are taken. (2 ) That part of the hearing officer ' s report and recommended order to which objections are made. (3 ) All the grounds for exceptions to a ruling, finding, conclusion or recommendation. (c) Waiver of Exceptions . Any exceptions not specifically raised in writing by a party are waived. 4-30 Support of Hearing Officer ' s Report and Recommendations (a) File; Form; Copies; Time; Service. Within seven days after service of the exceptions taken to the hearing officer ' s report, a party may file with the Commission a brief or statement in support of the hearing officer ' s recommendation. A copy of the brief or statement in support shall be served upon each party to the proceeding. (b) Contents of Support Brief or Statement . The supporting brief or statement shall include: (1) The specific points of procedure, fact, law, or policy to which exceptions were taken. (2 ) The facts and reasons why report and recommendations must be affirmed. 4-31 Oral Argument before the Commission (a) Party' s Request . If a party desires to argue orally before the Commission, a written request with reasons therefor shall accompany the exceptions or the support brief or statement filed, and the Commission may grant such request . (b) Commission Direction. The Commission may direct oral argument on its own motion. 4-32 Commission Action (a) No Exceptions Filed. In the event no statement of exceptions is filed with the Commission, the Commission may proceed to reverse, modify, or adopt the recommendations of the hearing officer. (b) Exceptions and Support Statements Filed. Upon the filing of the exceptions and briefs or statements, the Commission may render its decision forthwith upon the record; or if oral argument has been allowed, after oral argument; or may reopen the docket and take further evidence or may make such other disposition of the case that is necessary under the circumstances, provided that where additional evidence is taken and has not been heard and examined by all of the Commission members who are to render a final decision, the Commission shall comply with the procedure in Section 4-23 of this rule. 5-1 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES, ) (Agency Appeal) ) Applicant-Appellant , ) CERTIFICATE OF SERVICE VS . ) ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII ; DEPARTMENT OF ) PLANNING, COUNTY OF HAWAII , ) Appellees, ) and ) } SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY GOMES, ) Intervenor; SIDNEY FUKE, ) Intervenor' s Representative; ) TERENCE YOSHIOKA, Intervenor' s ) Representative, ) ) Intervenor-Appellees. ) CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a copy of the foregoing document (s) was duly served upon the following parties via the U. S . Post Office, Kailua-Kona, Hawaii , postage prepaid, addressed as follows : SANDRA P. SONG, ESQ. Hearings Officer 10 Kamehameha Avenue Hilo, Hawaii 96720 TED H. S . HONG, ESQ. P.O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General 235 So . Beretania Street , Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AMY SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street , Suite 325 Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAII PLANNING DIRECTOR MARGARET MASUNAGA, ESQ. Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway Kailua-Kona, Hawaii 96740 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII ALAN M. OKAMOTO, ESQ. Nakamoto Okamoto & Yamamoto 187 Kapiolani Street Hilo, Hawaii 96720 Attorney for Appellees SIDNEY FUKE and TERENCE YOSHIOKA DATED: Kailua-Kona, Hawaii, July 22 2014 JEFFREY K. GOMES, Appellee- Intervenor By: MICHAEL J. MATSUKAWA His Attorney 2 FILED TED H.S. HONG, 43569 Attorney At Law 2014 JUL 22 PM I-' 10 101 Aupuni Street, PH 1002A oog P.O. Box 4217 HENR ET CHOLAERK Hilo, Hawaii 96720 THIRD ClRCl11jV T Telephone: 808-933-1919 STS{T E; OF l,f'.:11i'dI Facsimile: 808-935-8281 Ted:,r Tedhonglaw.com Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, STIPULATION AND ORDER AMENDING THE HEARING REGARDING APPELLEE vs. DEPARTMENT OF PLANNING, COUNTY OF HAWAII'S MOTION TO DISMISS FILED WINDWARD PLANNING COMMISSION, JUNE 27, 2014 AND APPELLEE COUNTY OF HAWAII; DEPARTMENT OF WINDWARD PLANNING COMMISSION, PLANNING, COUNTY OF HAWAII, COUNTY OF HAWAII, and INTERVENOR- APPELLEE SANDRA SONG'S MOTION TO vs. DISMISS FILED JULY 7, 2014, FROM AUGUST 22, 2014 TO AUGUST 19, 2014; And CERTIFICATE OF SERVICE SANDRA SONG, in her capacity as Hearing OLD HEARING Officer, JEFFREY GOMES, Intervenor; Date: August 22, 2014 SIDNEY FUKE, Intervenor's Representative; Time: 8:00 a.m. TERENCE YOSHIOKA, Intervenor's The Honorable Ronald Ibarra Representative, NEW HEARING Intervenor-Appellees, Date: August 19, 20I4 Time: 8:30 a.m. The Honorable Ronald Ibarra _ e_ STIPULATION AND ORDER AMENDING THE HEARING REGARDING APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAII'S MOTION TO DISMISS FILED JUNE 27, 2014 AND APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, and INTERVENOR-APPELLEE SANDRA SONG'S MOTION TO DISMISS FILED JULY 7, 2014, FROM AUGUST 22, 2014 TO AUGUST 19, 2014 COMES NOW, COMMUNITY BASED EDUCATION SUPPORT SERVICES, hereinafter referred to as "Applicant-Appellant", by and through their legal counsel, TED H.S. HONG, and APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAII, by and through their legal counsel, AMY G. SELF, Deputy Corporation Counsel, and Appellee, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; hereinafter referred to as "Appellees" and SANDRA SONG in her capacity as Hearing Officer, hereinafter referred to as "Intervenor-Appellees, by and through her legal counsel, MARGARET K. MASUNAGA, Deputy Corporation Counsel, hereby stipulate to amend the August 22, 2014, hearing date regarding Appellee Department of Planning, County of Hawaii's Motion to Dismiss filed June 27, 2014 and Appellee Windward Planning Commission, County of Hawaii, and Intervenor- Appellee Sandra Song's Motion to Dismiss filed July 7, 2014, to August 19, 2014 at 8:30 a.m. DATED: Hilo, Hawaii, July 15, 2014. XHS. NG, Attorney at Law Attorney for Appellant COMMUNITY BASE EDUCATION SUPPORT SERVICES (CBESS) 2 DATED: Hilo. Hawaii, JUL 15 2014 AMY G. SELF, JOSEPH K. KAMELAMELA Deputy Corporation Counsel Attorneys for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII DATED: Hilo, Hawaii, JUL 15 2014 MAR T K. MASUNA VA, Attorney at Law Attorneys for Appellee, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and Intervenor- Appellee SANDRA SONG, in her capacity,as Hearing Officer 3 i IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, ORDER AMENDING THE HEARING REGARDING APPELLEE DEPARTMENT OF VS. PLANNING, COUNTY OF HAWAII'S MOTION TO DISMISS FILED JUNE 27, 2014 WINDWARD PLANNING COMMISSION, AND APPELLEE WINDWARD PLANNING COUNTY OF HAWAII; DEPARTMENT OF COMMISSION, COUNTY OF HAWAII, and PLANNING, COUNTY OF HAWAII, INTERVENOR-APPELLEE SANDRA SONG'S MOTION TO DISMISS FILED JULY VS. 7, 2014, FROM AUGUST 22, 2014 TO AUGUST 19, 2014 And OLD HEARING SANDRA SONG, in her capacity as Hearing Date: August 22, 2014 Officer, JEFFREY GOMES, Intervenor; Time: 8:00 a.m. SIDNEY FUKE, Intervenor's Representative; The Honorable Ronald lbarra TERENCE YOSHIOKA, Intervenor's Representative, NEW HEARING Date. August 19, 2014 Intervenor-Appellees, Time: 8:30 a.m. The Honorable Ronald Ibarra ORDER AMENDING THE HEARING REGARDING APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAII'S MOTION TO DISMISS FILED JUNE 27, 2014 AND APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, and INTERVENOR-APPELLEE SANDRA SONG'S MOTION TO DISMISS FILED JULY 7. 2014, FROM AUGUST 22, 2014 TO AUGUST 19, 2014 Based upon the foregoing stipulation, IT IS HEREBY ORDERED: that the hearing regarding Appellee Department of Planning, County of Hawaii's Motion to Dismiss filed June 27, 2014 and Appellee Windward Planning Commission, County of Hawaii, and Intervenor- Appellee Sandra Song's Motion to Dismiss filed July 7, 2014, has been amended from August 22, 2014 at 8:00 a.m. to August 19, 2014 at 8:30 a.m. DATED: � J�( The Honorable RONALD IBARRA, Judge of the Above-Entitled Court 2 FILED TED H.S. HONG, 93569 Attorney At Law ,M 22 PM p 101 Aupuni Street, PH 1002A P.O. Box 4217 C ERK Hilo, Hawaii 96720 TTA �Or r TFlllZtl ClRC1f1 Telephone: 808-933-1919 STt\jE 0V 1;AWAll Facsimile: 808-935-8281 Ted,ci,Tedhonglaw.com Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, STIPULATION AND ORDER AMENDING THE HEARING REGARDING APPELLEE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII'S MOTION TO WINDWARD PLANNING COMMISSION, QUASH OR CORRECT THE ORDER FOR COUNTY OF HAWAII; DEPARTMENT OF CERTIFICATION AND TRANSMISSION OF PLANNING, COUNTY OF HAWAII, RECORD ON APPEAL AS TO TAPE RECORDINGS AND TRANSCRIPTS OF ALL vs. EXECUTIVE SESSION HEARINGS AND MEETINGS DATED JUNE 9, 2014, FROM And JULY 29, 2014 TO SEPTEMBER 26, 2014 SANDRA SONG, in her capacity as Hearing OLD HEARING Officer, JEFFREY GOMES, Intervenor; Date: July 29, 2014 SIDNEY FUKE, Intervenor's Representative; Time. 8:00 a.m. TERENCE YOSHIOKA, Intervenor's The Honorable Ronald Ibarra Representative, NEW HEARING Intervenor-Appellees, Date: September 26, 2014 Time: 8:00 a.m. The Honorable Ronald Ibarra STIPULATION AND ORDER AMENDING THE HEARING REGARDING APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII'S MOTION TO QUASH OR CORRECT THE ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL AS TO TAPE RECORDINGS AND TRANSCRIPTS OF ALL EXECUTIVE SESSION HEARINGS AND MEETINGS DATED JUNE 9, 2014, FROM JULY 29, 2014 TO SEPTEMBER 26, 2014 COMES NOW, COMMUNITY BASED EDUCATION SUPPORT SERVICES, hereinafter referred to as '`Applicant-Appellant", by and through their legal counsel, TED H.S. HONG, and AppeIIee, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; hereinafter referred to as "AppeIIees" and SANDRA SONG in her capacity as Hearing Officer, hereinafter referred to as "Intervenor-Appellees, by and through her legal counsel, MARGARET K. MASUNAGA, Deputy Corporation Counsel, hereby stipulate to amend the July 29, 2014, hearing date regarding Appellee Windward Planning Commission, County of Hawaii's Motioni to Quash or Correct the Order for Certification and Transmission of Record on Appeal as to Tape Recordings and Transcripts of All Executive Session Hearings and Meetings Dated June 9, 2014 to September 26, 2014 at 8:00 a.m. DATED: Hilo, Hawaii, July 15, 2014. D H.S. HONG, Attorney at Law Attorney for Appellant COMMUNITY BASE EDUCATION SUPPORT SERVICES (CBESS) 2 DATED: Hilo, Hawaii, JUL 15 2014 MARGA T K. MAS A, Attorney at Law Attorneys for Appellee, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and Intervenor- Appellee SANDRA SONG, in her capacity as Hearing Officer 3 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, ORDER AMENDING THE HEARING FOR APPELLEE WINDWARD PLANNING vs. COMMISSION, COUNTY OF HAWAII'S MOTION TO QUASH OR CORRECT THE WINDWARD PLANNING COMMISSION, ORDER FOR CERTIFICATION AND COUNTY OF HAWAII; DEPARTMENT OF TRANSMISSION OF RECORD ON APPEAL PLANNING, COUNTY OF HAWAII, AS TO TAPE RECORDINGS AND TRANSCRIPTS OFALL EXECUTIVE vs. SESSION HEARINGS AND MEETINGS DATED JUNE 9, 2014, FROM JULY 29, 2014 And TO SEPTEMBER 26, 2014 SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees, ORDER AMENDING THE HEARING FOR APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII'S MOTION TO QUASH OR CORRECT THE ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL AS TO TAPE RECORDINGS AND TRANSCRIPTS OFALL EXECUTIVE SESSION HEARINGS AND MEETINGS DATED JUNE 9 2014 FROM JULY 29, 2014 TO SEPTEMBER 26 2014 Based upon the foregoing stipulation, IT IS HEREBY ORDERED: that the hearing regarding Appellee Windward Planning Commission, County of Hawai's Motion to Quash or Correct the Order for Certification and Transmission of Record on Appeal as to Tape Recordings and Transcripts of All Executive Session Hearings and Meetings Dated June 9, 2014, has been amended from July 29, 2014 to September 26, 2014. DATED•� Ah '' aii. .- onorable Ronald Ibarra Judge of the Above-Entitled Court 2 1 FILED TED H.S. HONG, #3569 Attorney At Law 2014,E 22 Ph I; 10 101 Aupuni Street, PH 1002A P.O. Box 4217 t3EN Hilo, Hawaii 96720 AkTA CH0ffG,,hERK Telephone: 808-933-1 919 THIRD CIRCUIT COURT Facsimile: 808-935-8281 STATE CF HAWAII TedCu?Tedhon ,law.com Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency AppeaI) Appellant, STIPULATION AND ORDER TO CONTINUE THE DEADLINE FOR CERTIFICATION AND VS. TRANSMISSION OF RECORD ON APPEAL FROM JULY 31, 20I4 TO NOVEMBER 1, WINDWARD PLANNING COMMISSION, 2014 COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, vs. And SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appel Iees, STIPULATION AND ORDER TO CONTINUE THE DEADLINE FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL FROM JULY 31, 20I4 TO NOVEMBER 1, 2014 COMES NOW, COMMUNITY BASED EDUCATION SUPPORT SERVICES, hereinafter referred to as "Applicant-Appellant", by and through their legal counsel, TED H.S. HONG, and WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, hereinafter referred to as "Appellees" and SANDRA SONG in her capacity as Hearing Officer, hereinafter referred to as "Intervenor-Appellees), by and through their legal counsel, MARGARET K. MASUNAGA, hereby stipulate to continue the deadline for Certification and Transmission of Record on Appeal from July 31, 2014 to November 1, 2014. DATED: Hilo, Hawaii, July 15, 2014. TED H.S. HONG. Attorney at Law Attorney for Appellant COMMUNITY BASE EDUCATION SUPPORT SERVICES (CBESS) DATED: Hilo, Hawaii, JUL 15 2014 MARGA T K. MAS GA, Attorney at Law Attorneys for Appellee, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and Intervenor- Appellee SANDRA SONG, in her capacity as Hearing Officer 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, ORDER TO CONTINUE THE DEADLINE FOR CERTIFICATION AND vs. TRANSMISSION OF RECORD ON APPEAL FROM JULY 31, 2014 TO NOVEMBER 1, WINDWARD PLANNING COMMISSION, 2014 COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, vs. And SANDRA SONG, in her capacity as Hearing Officer, JEFFREY COMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees, ORDER TO CONTINUE THE DEADLINE FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL FROM JULY 31, 2014 TO NOVEMBER 1, 2014 Based upon the foregoing stipulation, IT IS HEREBY ORDERED: The Deadline for Certification and Transmission of Record on Appeal has been continued from July 31, 2014 to November 1, 2014. n j DA3waii, Judge of the Above-Entitled Court FILED MICHAEL J. MATSUKAWA, 1885-0 Territorial Centre, Suite 201 2014 JUL 23 PM 2: 56 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Telephone No . : (808) 329-1385 Attorney for Appellee-Intervenor JEFFREY K. GOMES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES, ) (Agency Appeal) ) Applicant-Appellant , ) APPELLEE-INTERVENOR JEFFREY K. vs . ) GOMES' STATEMENT OF NON-OPPO- SITION TO APPELLEE WINDWARD WINDWARD PLANNING COMMISSION, ) PLANNING COMMISSION, COUNTY OF COUNTY OF HAWAII ; DEPARTMENT OF ) HAWAI ' I ' S MOTION TO QUASH OR PLANNING, COUNTY OF HAWAII , ) CORRECT THE ORDER FOR CERTIFI- CATION AND TRANSMISSION OF Appellees , ) RECORD ON APPEAL AS TO TAPE RECORDINGS AND TRANSCRIPTS OF and } ALL EXECUTIVE SESSION HEARING AND MEETINGS DATED JUNE 9, SANDRA SONG, in her capacity as ) 2014 , FILED JULY 11 , 2014 ; Hearing Officer; JEFFREY COMES, ) CERTIFICATE OF �SERVICE Intervenor; SIDNEY FUKE, ) Intervenor' s Representative; } TERENCE YOSHIOKA, Intervenor' s ) HEARING: Representative, ) DATE : JULY 29, 2014 TIME : 8 : 00 A.M . Intervenor-Appellees. ) JUDGE: HON. R. IBARRA ) 072214\j-gomes\qua9h.rsp APPELLEE-INTERVENOR JEFFREY K. COMES' STATEMENT OF NON-OPPOSITION TO APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI ' I ' S MOTION TO QUASH OR CORRECT THE ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL AS TO TAPE RECORDINGS AND TRANSCRIPTS OF ALL EXECUTIVE SESSION HEARING AND MEETINGS DATED JUNE 9, 2014 , FILED JULY 11 , 2014 COMES NOW Appellee-Intervenor Jeffrey K. Gomes, by and through his attorney, and files his statement of non-opposition to Appellee Windward Planning Commission, County of Hawai ' i ' s Motion to Quash or Correct the Order for Certification and Transmission of Record on Appeal as to Tape Recordings and Transcripts of All Executive Session Hearing and Meetings Dated June 9, 2014 , filed herein on July 11 , 2014 . DATED : Kailua-Kona, Hawaii , July 23, 2014 JEFFREY K. COMES, Appellee- Intervenor By: rC-44�� MICHAEL J. MATSUKAWA His Attorney 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES, ) (Agency Appeal) ) Applicant-Appellant , ) CERTIFICATE OF SERVICE vs . ) ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII ; DEPARTMENT OF ) PLANNING, COUNTY OF HAWAII , ) Appellees, ) and ) SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY GOMES, ) Intervenor; SIDNEY FUKE, ) Intervenor' s Representative; ) TERENCE YOSHIOKA, Intervenor' s ) Representative, ) Intervenor-Appellees. ) CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a copy of the foregoing document (s) was duly served upon the following parties via the U. S . Post Office, Kailua-Kona, Hawaii , postage prepaid, addressed as follows : SANDRA P. SONG, ESQ. Hearings Officer 10 Kamehameha Avenue Hilo, Hawaii 96720 TED H. S . HONG, ESQ. P .O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General 235 So. Beretania Street , Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AMY SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street , Suite 325 Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAII PLANNING DIRECTOR MARGARET MASUNAGA, ESQ. Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway Kailua-Kona, Hawaii 96740 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII ALAN M. OKAMOTO, ESQ. Nakamoto Okamoto & Yamamoto 187 Kapiolani Street Hilo, Hawaii 96720 DATED : Kailua-Kona, Hawaii , July 23, 2014 JEFFREY K. GOMES, Appellee- Intervenor �c By- MICHAEL J. MATSUKAWA His Attorney 2 NAKAMOTO, OKAMOTO & YAMAMOTO CIRCUIT COTS THE THIRD CI C T ATTORNEYS AT LAW STATE OF HAIMAl1 A LAW CORPORATION 2014.x. 28 AN P4 19 ALAN M. OKAMOTO 41826 187 Kapiolam Street Hilo, Hawaii 96720 _ L,CiIr ! Telephone: (808) 961-0641 Attornev for APPELLEES SIDNEY FUKE and TERENCE T. YOSHIOKA IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S vs. I MEMORANDUM IN SUPPORT OF APPELLEE WINDWARD PLANNING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI FS COMMISSION, COUNTY OF HAWAII; MOTION TO QUASH OR CORRECT THE DEPARTMENT OF PLANNING, ORDER FOR CERTIFICATION AND COUNTY OFF HAWAII, TRANSMISSION OF RECORD ON APPEAL AS TO TAPE RECORDINGS Appellees, AND TRANSCRIPTS OF ALL EXECUTIVE SESSION HEARINGS AND vs. MEETINGS DATED JUNE 9, 2014 AND STATEMENT OF NON-APPEARANCE; SANDRA SONG, in her capacity as CERTIFICATE OF SERVICE Hearing Officer; JEFFREY COMES, Intervenor; SIDNEY DUKE, Int.ervenor's Representative; TERENCE T. YOSHIOKA, Old Hearing Date: July 29, 2014 Intervenor's Representative, NEW HEARING: Intervenor-Appellees. Date: September 26, 2014 Time: 8:00 am Judge: Honorable Ronald lbarra No Trial Date Set 1 APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MEMORANDUM IN SUPPORT OF APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I'S MOTION TO QUASH OR CORRECT THE ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL AS TO TAPE RECORDINGS AND TRANSCRIPTS OF ALL EXECUTIVE SESSION HEARINGS AND MEETINGS DATED JUNE 9, 2014 AND STATEMENT OF NON-APPEARANCE Comes now Appellees SIDNEY FUKE (hereafter "Appellee FUKE") and TERENCE T. YOSHIOKA (hereafter "Appellee YOSHIOKA"), by and through their attorneys, Nakamoto, Okamoto & Yamamoto and submits this Memorandum in support of Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I's Motion to Quash or Correct the Order for Certification and Transmission of Record on Appeal as to Tape Recordings and Transcripts of all Executive Session Hearings and Meetings dated .Tune 9, 2014 filed July 11, 2014 (hereafter "Motion"). Said Motion appears to be well-founded and the relief requested appears to be appropriate. Counsel for Appellee FUKE and Appellee YOSHIOKA will not be participating in the hearing on this Motion. DATED: Hilo, Hawaii, July 28, 2014. ALAN M. OKAMOTO Attorney for Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING. COUNTY OF HAWAII, Appellees, vs. SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE T. YOSHIOKA, Intervenor's Representative, Intervenor-AppeIIees. CERTIFICATE OF SERVICE I hereby certify that the foregoing Appellees Sidney Fuke and Terence T. Yoshioka 's Memorandum in Support ofAppellee Windward Planning Commission, County of Hawaii's Motion to Quash or Correct the Order for Certification and Transmission of Record on Appeal as to Tape Recordings and Transcripts of all Executive Session Hearings and Meetings dated June 9, 2014 and Statement of Non- Appearance was served on the following by depositing the same with the U.S. Postal Service, postage prepaid, on July 28, 2014: ] Ted H.S. Hong, Esq. David M. Louie, Esq. P.O. Box 4217 Carter K. Siu, Esq. Hilo, HI 96720 Deputy Attorney General 235 S. Beretania Street, Room 304 Attorney for Applicant-Appellant Honolulu, HI 96813 COMMUNITY BASED EDUATION SUPPORT SERVICES Attorney for Applicant-Appellant CONNECTIONS NEW CENTUREY CHARTER SCHOOL Margaret Masunaga, Esq. Amy Self, Esq. Deputy Corporation Counsel Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway 101 Aupuni Street, Suite 325 Kailua-Kona, HI 96740 Hilo, HI 96720 Attorney for Appellees Attorney for Appellee WINDWARD PLANNING DEPARTMENT OF PLANNING, COMMISSION, COUNTY OF HAWAII; COUNTY OF HAWAII and SANDRA SONG Michael Matsukawa. Esq. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, HI 96740 Attorney for Appellee JEFFREY GOMES ALAN M. OKAMOTO 2 FIL-EC' NAKAMOTO, OKAMOTO & YAMAMOTO 1'C IT POW OF ATTORNEYS AT LAW STATE OF FfAWAII A LAW CORPORATION 2614 JUL 28 An As to ALAN M. OKAMOTO it 1826 0( 187 Kapiolani Street Hilo, Hawaii 96720 CL" Ec3i em Telephone: (808) 961-0641 Attorney for APPELLEES SIDNEY FUKE and TERENCE T. YOSHIOKA IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR vs. SUMMARY JUDGMENT; MEMORANDUM IN SUPPORT OF WINDWARD PLANNING MOTION FOR SUMMARY JUDGMENT; COMMISSION, COUNTY OF HAWAII; AFFIDAVIT OF SIDNEY PUKE; DEPARTMENT OF PLANNING, AFFIDAVIT OF TERENCE T. YOSHIOKA, COUNTY OF HAWAII, EXHIBIT A; NOTICE OF HEARING,- CERTIFICATE EARING;CERTIFICATE OF SERVICE Appellees, vs. SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's HEARING: Representative; TERENCE T. YOSHIOKA, Date: August 19, 2014 Intervenor's Representative, Time: 8:30 a.m. .fudge: Honorable Ronald Ibarra Intervenor-Appellees. No Trial Date Set APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 1 Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA (hereafter "FUKE and YOSHIOKA"), by and through their attorneys, Nakamoto, Okamoto & Yamamoto, hereby move this Honorable Court for an order granting summary judgment thereby dismissing them as parties in this case, deleting their names in the caption, and dismissing any and all claims against them raised in this action by Applicant-Appellants COMMUNITY BASED EDUCATION SUPPORT SERVICES (hereafter"CBESS") and by CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL (hereafter "CONNECTIONS") including any claims for Appellants' attorneys' fees. CBESS and CONNECTIONS have failed to state a claim upon which relief can be granted against Appellees FUKE and YOSHIOKA. Appellees FLTK_E and YOSHIOKA also move for entry of judgment under Rule 54(b), Hawaii Rules of Civil Procedure in final judgment as to said Appellees since there is no just reason for delay in entryjudgment as to said Appellees. This motion is made pursuant to Rules 7, 54(b), 56 and 72 of the Hawaii Rules of Civil Procedure and Rule 7 of the Rules of the Circuit Courts of the State of Hawaii, and supported by the attached Memorandum in Support of Motion for Summary Judgment, the attached affidavits, and the records and files herein, and on such further and other grounds as may be adduced at a hearing on this motion. DATED: Hilo, Hawaii, July 28, 2014. ALAN M. OKAMOTO Attorney for Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, vs. SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE T. YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT I. STATEMENT OF THE CASE This action is a Chapter 91 appeal brought by Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES (hereafter"CBESS") and joined by CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL (hereafter "CONNECTIONS") from the denial of a special permit application made to the Appellee WINDWARD PLANNING COMMISSION OF THE COUNTY OF HAWAII (hereafter "WINDWARD PLANNING COMMISSION"), 1 SIDNEY FUKE and TERENCE YOSHIOKA were named in this appeal even though they were not parties to the contested case hearing or parties in the decision made by the Windward Planning Commission. There is no reason to include SIDNEY FUKE and TERENCE YOSHIOKA in this appeal. II. STATEMENT OF FACTS The following are undisputed material facts in this case: 1. On June 9, 2014, Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES filed its Notice of Appeal and Statement of the Case (hereafter "Notice") to this Court, pursuant to Rule 72 of the Hawaii Rules of Civil Procedure (hereafter "HRCP") and Section 91-14(g) of the Hawaii Revised Statutes (hereafter "HRS"). 2. CBESS included in its Notice SIDNEY FUKE as "Intervenor's Representative" and TERENCE YOSHIOKA as "Intervenor's Representative" (hereafter collectively "SIDNEY FUKE" and "TERENCE YOSHIOKA"or "FUKE" and "YOSHIOKA"). 3. On March 7, 2013, the Planning Commission granted a request by CBESS for a contested case hearing on the application for a special permit on a development of a charter school campus with dorm facilities and related improvement for students in kindergarten through twelfth grade on 70.15 acres of land situated within the State Land Use Agricultural District in South Hilo, Hawaii, Tax Map Key (3) 2-5-006: 141. CBESS Statement of Case, Paragraph 30. 4. On or about July 12, 2013, Applicant-Appellant was notified that SONG would serve as the Hearing Officer in the contested case. The contested case hearings by 2 the Hearing Officer were held on October 21, and 22, 2013, November 12, 2013, January 8 and 22, 2014. 5. Although FUKE and YOSHIOKA appeared at the Windward Planning Commission meetings and at some of the contested case proceedings held by Hearing Officer SANDRA SONG (hereafter"SONG" or"Officer SONG"), neither of them were parties in the contested case that CBESS initiated. Affidavit of FUKE, Paragraphs 7 and 9, and Affidavit of YOSHIOKA, Paragraph 5. 6. YOSHIOKA made a request to be admitted as a party. That request was denied by Officer SONG as untimely. CBESS Statement of Case, Paragraph 8, and Affidavit of YOSHIOKA, Paragraph 5. YOSHIOKA did not contest that determination so he was never admitted as a party to the contested case. Affidavit of YOSHIOKA, Paragraph 5. 7. FUKE never made a request to be admitted as a party to the contested case. Affidavit of FUKE, Paragraph 7. 8. As alleged in the Statement of Case, both FUKE and YOSHIOKA live in the Pacific Plantation Subdivision and their access to their residences is on a road that passes through the land involved in the Special Permit Application. CBESS Statement of the Case, Paragraphs 7 and 8, Affidavit of FUKE. 9. FUKE and YOSHIOKA's involvement in the Planning Commission and contested case proceedings were limited to presenting their own public testimony and to attending sorne of these proceedings, and in FUKE's case, when he was called as a witness by Appellant CBESS in the contested case. Affidavit of FUKE, Paragraphs 6 and 8, Affidavit of YOSHIOKA, Paragraphs 5, 6, and 7. 3 10. FUKE and YOSHIOKA discussed the CBESS application for Special Permit and the information that they had about the proposed project with other owners in their subdivision including Appellee JEFFREY GOMES (hereafter "GOMES"). Affidavit of FUKE, Paragraph 8, and Affidavit of YOSHIOKA, Paragraph 3. 11, Neither FUKE nor YOSHIOKA undertook to represent GOMES in the proceedings before the Planning Commission or in the contested case hearings before Officer SONG. Affidavit of FUKE, Paragraph 11, and Affidavit of YOSHIOKA, Paragraph 7. 12. It was understood throughout the Special Permit proceedings that Officer SONG's involvement in these proceedings was solely as a hearing officer appointed by the Planning Commission for that purpose and not as a party in the contested case proceeding. Affidavit of FUKE, Paragraph 10. 13. Neither FUKE nor YOSHIOKA wish to be a party to this appeal, nor do they wish to have the decision of the Windward Planning Commission denying the application changed. Affidavit of FUKE, Paragraph 11, Affidavit of YOSHIOKA, Paragraph 7. 14. In its Statement of the Case, CBESS seeks attorney's fees and costs against all of the Appellees. Appellant CONNECTIONS filed a Notice of Appeal in which it "substantively joined in the CONNECTIONS Statement of Case. III. LEGAL STANDARDS A. A motion for summary judgment should be granted when the record shows that there are no genuine issues of material fact and that the moving party demonstrates that it is entitled to judgment as a matter of law. Hulsman v. Hemmeter 4 Dev. Corp., 65 Haw. 58, 647 P.2d 713 (1982); Clarke v. Civil Service Comm., 50 Haw. 169, 171, 434 P.2d 312 (1967). The standards to be used by the Court in a motion for summary judgment are set forth in Rule 56(c), Hawaii Rules of Civil Procedure (H.R.C.P.), which provides in pertinent part: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fernandes v. Tenbruzzencate, 65 Haw. 266, 649 P.2d 1144 (1982); Hulsman v. Hemmeter Dev. Corp., 65 Haw. 58, 647 P.2d 713 (1982); Lau v. Bautista, 61 Haw. 144, 598 P.2d 161 (1979). Thus, summary judgment properly can be granted where there is no genuine issue as to any material fact and movants clearly demonstrate they should prevail as a matter of law. Rule 56(c), H.R.C.P.; Hulsman v. Hemmeter Dev. Corp., supra. Inferences to be drawn from the underlying facts alleged in affidavits, depositions, answers to interrogatories and the like which are considered by the Court must be viewed in the light most favorable to the party opposing the motion. Gum v. Nakamura, 57 Haw. 39, 549 P.2d 471 (1976). Furthermore, it is the duty of counsel to cite specific portions of depositions, interrogatories, admissions and the like to the attention of the trial court which may raise or dispose of genuine issues of material fact. Munoz v. Yuen, 66 Haw. 603 (1983); Miller v. Manuel, 9 Haw. App. 56, 828 P.2d 286 (1991). 5 A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties. Hulsman v. Hemmeter Dev. Corp., supra;Lau v. Bautista, supra, City & County vv. Tom, 61 Haw. 156 (1979). It is further provided in Rule 56(e), H.R.C.P., that where supporting affidavits have been submitted in a motion of summary judgment: . . . an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. See Costay. Able Distributors, Inc., 3 Haw. App. 486 (1982);Dan, y. Mt. View Estates, 1 Haw, App. 539 (1981). In addition, Rule 54(b), Hawaii Rules of Civil Procedure provides as follows: (b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time claims and the rights and liabilities of all the parties. Thus, any order which does not adjudicate and resolve the claims of all the parties is not a final judgment unless, under Rule 54(b), an express determination is made that there is no just reason for delay and an express direction for the entry of judgment is made. Chang v. City & County, 51 Haw. 137 (1969); Grain Dealers Mutual Ins. Co. v. 6 Manalo, 3 Haw. App. 346 (1982); Mohl v. Bishop Trust Co.. Ltd., 2 Haw. App. 296 (1981); Employees Retirement&stem v. Big Island Realty, Inc., 2 Haw. App. 151 (1981); Sturkie v. Han, 2 Haw. App. 140 (1981). B. Applicable Procedure in this Appeal. Under Rule 72(e), HRCP, the Statement of the Case is treated as an original complaint and the Hawaii Rules of Civil Procedure apply to motions and answers in response to the Statement of the Case. If a motion for summary judgment is involved in such an appeal, the requirements of Rule 56, HRCP must be followed. Clark v. Civil Service Commission, (1967) 50 Haw. 169, 171, 434 P2d 312. C. Parties in a Chapter 91 Appeal The pending appeals were brought under Section 91-14, HRS, which is a part of the Hawaii Administrative Procedure Act ("Act"). The appeals followed the contested case proceeding which was initiated by Appellants. The persons who are admitted as parties to a contested case have substantial rights under the Act. The Act contemplates that an appeal may be taken from the final decision of an agency after a contested case is concluded. Section 91-14(a), HRS, provides that: "(a) Any person aggrieved by a final decision and order in a contested case . . . . is entitled to judicial review thereof under this chapter Rule 4-6(a) of the Planning Commission Rules has a similar provision: "(a) In all proceedings where the Commission's action is directly appealable to circuit court, the applicant and the Planning Director will be designated parties to the action. Any other person seeking to intervene as a party shall file a written request . . ." Although Section 91-14(a) refers to "person aggrieved,"the Hawaii Supreme Court decided that the term necessarily required that a person who wished to appeal had 7 to comply with the appropriate administrative procedure to be admitted as a party in the contested case. fity and Coun of Honolulu v. Public Utilities Commission, (1972) 53 H 431, 495 Ptd 1180, The Supreme Court rejected the City and County's position that it could proceed with an appeal despite its failure to be admitted as a party in the contested case proceeding. City and County, supra, 53 H 431 at p. 433. The Supreme Court stated: "If the legislature intended to give any person aggrieved by a final decision and order, regardless of whether the person participated in a contested case, the right to judicial review, the legislature would have so stated." The admission of a person as a party in a contested case provides that person with significant rights in terms of participation in the proceedings, presentation of evidence, examination of witnesses and of findings. See Sections 91-9, 91-10, 91-11, 91-12 HRS, Planning Commission Rules 4-3, 4-5, 4-6, 4-7, 4-12, 4-13, 4-17, 4-18, 4-19, 4-22, 4-25, 4-29, 4-30, 4-31. There is nothing in the Act to suggest that an appeal taken under Section 91-14(a), HRS is to involve anyone other than the parties in the contested case. It is also undisputed that the WINDWARD PLANNING COMMISSION and the COUNTY PLANNING DEPARTMENT are parties to this appeal. The final decision from which this appeal was taken is from the final decision of the WINDWARD PLANNING COMMISSION. Based on these facts, the court can fully determine the merits of the disputed issues in the appeal without involving Appellees FUKE OR YOSHIOKA. FUKE and YOSHIOKA are satisfied with the final decision of the WINDWARD PLANNING 8 COMMISSION, so there are no issues to be resolved regarding the effect of the final decision on them. IV. ARGUMENT The Statements of the Case do not provide any basis upon which to keep Appellees FUKE and YOSHIOKA in this appeal. Neither of them is the agency taking action on the Special Permit Application. Neither of them was a party in the contested case proceeding. Neither of them wishes to be in this appeal. And neither of them wishes to have the decision of the Windward Planning Commission changed. The court's decision on this appeal can be rendered without the involvement of those who were not parties to the contested case proceedings since the statutory right of appeal affects the final decision of the agency and its effect on the parties to the contested case. The only relief requested that arguably applies to Appellees FUKE and YOSHIOKA is the claim for attorneys fees. However, as a general rule, Hawaii courts require that a litigant must assume its own burden in paying for its legal services. Yokochi v. Yoshimoto (1960), 44 Haw. 297, 307, 353 Ptd 820. Under the general rule, attorney's fees are not taxable against a losing party without a statute, agreement or stipulation allowing such taxation. Ibid. This appeal was brought under Section 9I-14, Hawaii Revised Statutes as an appeal of an agency decision after a contested case proceeding. Neither that section nor any other section in the Act provides for taxation of attorney's fees against appellees. 9 IV. CONCLUSION Based on the undisputed material facts, movants FUKE and YOSHIOKA respectfully request that this Court dismiss the appeals against them and that the caption be amended to delete them. Since there is no just reason for delaying entry of a judgment dismissing them, the Movants also request entry of final judgment under Rule 54(b), Hawaii Rules of Civil Procedure. DATED: Hilo, Hawaii, July 28, 2014. ALAN M. OKAMOTO Attorney for Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA 10 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO, 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, AFFIDAVIT OF SIDNEY FUKE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, vs. SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE T. YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. AFFIDAVIT OF SIDNEY FUKE STATE OF HAWAII ) SS: COUNTY OF HAWAII ) SIDNEY FUKE, herein called the affiant, being first duly sworn, deposes and says: 1. I have personal knowledge of the facts stated in this Affidavit. 1 2. I was named as an Appellee in this appeal which is from the action of the County of Hawaii Windward Planning Commission(hereafter "Planning Commission") in denying the Appellants application for Special Permit. 3. On request of the Appellant, the Planning Commission conducted a contested case proceeding. I did not request a contested case proceeding. 4. I live in the Pacific Plantation subdivision. Access to and from my residence requires that I drive on the road that runs through the land involved in the Special Permit application. S. I attended most of the Planning Commission meetings at which the Special Permit Application was considered. I was called as a witness in the contested case for that Application by the attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES. That Appellant invoked the "witness exclusion rule" so I was not allowed to attend most of the contested case proceedings conducted by HEARING OFFICER Sandra Song [who was appointed by the Planning Commission to serve as Hearings Officer for the contested case proceeding requested by Appellants]. 6. I submitted public testimony at the Planning Commission meetings and testified as a witness during the contested case proceedings. I expressed the concerns of my neighbors which included the inappropriateness of the proposed school for the location, various impacts of the project as presented by Appellants and their failure to address such impacts. 7. I did not request admission as a party in the contested case and was never treated as a party to the contested case or in the Windward Planning Commission proceedings. 8. I did not represent Appellee Jeffrey Gomes who was admitted as a party to the contested case. I did not present Mr. Gomes' position in the contested case. I spoke with a 2 number of residents affected by the proposed development, including Jeffrey Gomes. I discussed with Mr. Gomes the information provided with the Special Permit Application, the Planning Department's information and other information known to us which he could provide on his own behalf to the Windward Planning Commission. I did not represent him to present that information on his behalf. 9. Terence Yoshioka resides in my subdivision. He attended a number of Planning Commission meetings and I believe at least one of the contested case proceedings. He submitted public testimony. Although Mr. Yoshioka requested party status after the contested case began, that request was denied as untimely. To the best of my knowledge, Mr. Yoshioka did not contest the denial and he was never treated as a party in the contested case proceedings or Planning Commission meetings. 10. I am somewhat familiar with Planning Commission procedures on applications for Special Permits and with contested case proceedings. It was clear during the proceedings on Appellants' contested case that Sandra Song's only role in the proceedings was as a Hearing Officer. At no time did Ms. Song appear to be a party in the contested case nor did she act in any capacity other than as a Hearing Officer. 11. I do not wish to be a party in this appeal. I am satisfied with the Windward Planning Commission's denial of the application for Special Permit and do not wish to have that decision changed. And further affiant sayeth not. DATE: Hilo, Hawaii, July 25, 2014. ' 1 SIDNEY 17 3 Subscribed and sworn to before me this Doc. Date: July 25, 2014 25th day of July, 2014. Undated at time of notarization O�v -K Description of Document: � G Amy K. Mne i Affidavit of Sidney Fuke Notary Public, State of Hawaii My commission expires: 5/23/2018 Third Judicial Circuit No. of Pages: 4 (Seal/Stamp) L. C . 4 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO, 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, AFFIDAVIT OF TERENCE T. YOSHIOKA, EXHIBIT A vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII. Appellees, vs. SANDRA SONG, in her capacity as Hearing Officer; JEFFREY DOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE T. YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. AFFIDAVIT OF TERENCE T. YOSHIOKA STATE OF HAWAII ) } SS: COUNTY OF HAWAII ) TERENCE T. YOSHIOKA, herein called the affiant, being first duly swom, deposes and says: 1. I have personal knowledge of the facts stated in this Affidavit. 1 2. 1 was named as an Appellee in this appeal which is from the action of the County of Hawaii Leeward Planning Commission (hereafter"Planning Commission") in denying the Appellants application for Special Permit, 3. 1 became concerned about the potential adverse impacts of the Appellants' project to my neighborhood after 1 learned of the Special Permit Application. I discovered that most of my neighbors, including Jeffrey Gomes, had similar concerns. I discussed the situation with Mr. Gomes. 4. 1 recall I attended two Planning Commission meetings at which I submitted public testimony. 5. I also recall attending one of the contested case hearings at which I submitted written testimony. Before then I had requested that I be admitted as a party in the contested case proceeding. Hearing Officer Sandra Song denied my request as untimely. I decided not to contest the denial or to seek reconsideration of that denial. 6. 1 submitted public testimony at the contested case hearing I attended. Attached as Exhibit A is the written testimonies I submitted on my own behalf. Before I submitted the testimony, 1 had contacted the Office of Disciplinary Counsel for informal advice on what, if any, legal advices or services 1 would be able to provide since 1 had placed my license to practice law on inactive status after my retirement. I was informed that I was very limited in providing legal services to anyone else. I asked Alan M. Okamoto to assist me in understanding the legal issues presented in this Special Permit Application and in how that could be presented to the Planning Commission. Mr. Okamoto and 1 had worked together for many years before I was appointed to the bench and he had a good background in real estate law. He reviewed the documentation I had obtained on the application and discussed with me the applicable law and 2 what could be presented to the Planning Commission. I shared that information with Mr. Gomes. 7. When 1 submitted my public testimony in the contested case proceedings, I disclosed my inactive license status and that I had been counseled to be careful not to practice law unless my license was restored to active status. I disclosed to Hearing Officer Song that I sought legal advice from Mr. Okamoto. The advice assisted me to better understand the legal issues so that 1 could review the application and better express my thoughts on the Special Permit Application. 8. 1 do not wish to be a party to this appeal. 1 am satisfied with the decision of the Windward Planning Commission in denying the Applicants for Special Permit and do not see a need to change its decision. And further affiant sayeth not. DATE: Hilo, Hawaii, July 25, 2014. TERENCE T. Y SHIOKA Subscribed and sworn to before me this Doc. Date: July 25, 2014 25th day of July, 2014. Undated at time of notarization NDescription of Document: JEREL L YAMAMOTO Affidavit of Terence T. Yoshioka) Notary Public. State of Hawaii My commission expires'. AL 0 4 2015 Third Judicial Circuit No. of Pages: � (Seal/Stamp) 3 EXHIBIT A WRITTEN FINAL TESTIMONY OF TERENCE YOSHIOKA Critical to the evaluation and understanding of this Petition is the Hawaii Supreme Court decision in Neighborhood Board vs. State Land Use Commission, 64 Haw. 265 (1982) wherein a special permit granted by the Land Use Commission which would have allowed 103 acres of land in an agricultural district to be used for a recreational theme park was overturned. The Appellant in Neighborhood Board contested the issuance of the special permit on several grounds including, inter alia, that: (1) Chapter 205 required the applicant to pursue a district boundary amendment rather than a special permit; and (2) the applicant failed to meet the substantive special permit requirements of HRS §205-6 and the Land Use District Regulations. In overturning the special permit, the Hawaii Supreme Court held at pages 269 and 270 that "HRS §205 allows the county planning commission and the LUC to issue special permits for 'certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified' but only when the use would promote the effectiveness and objectives of[HRS Ch. 205]." Whether a particular use is 'unusual and reasonable' is determined by applying the five guidelines set forth in the Land Use District Regulations §5-2 to the proposed project. Section 5-2 requires the following: (1) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations. (2) That the desired use would not adversely affect surrounding property. (3) Such use would not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage and school improvements, and police and fire protection. 1 (4) Unusual conditions, trends and needs have arisen since the district boundaries and regulations were established. (5) That the land upon which the proposed use is sought is unsuited for the uses permitted within the District. The Hawaii Supreme Court deemed it "unnecessary" to review all five guidelines as it found that the applicant "failed to comply with the first and critical requirement that the proposed use not run contrary to the objectives sought to be accomplished by the Land Use Laws and Regulations, the counterpart of the statutory mandate that the proposed use promote the effectiveness and objectives of HRS Ch. 205." [Supra, p. 270] After lengthy discussion of the procedural and substantive differences between the special permit and district boundary amendment processes, the Hawaii Supreme Court concluded at page 273 as follows: The interim statewide land use guidance policies enumerated in HRS 205-16.1 (1976 and Supp. 1981) and the Hawaii State Plan HRS Ch. 226, themselves articulate as planning objectives the avoidance of scattered urban development and the accommodation of urban growth in existing urban areas. [Citations omitted]. We do not believe that the legislature envisioned the special use technique to be used as a method of circumventing district boundary amendment procedures to allow the ad hoc infusion of major urban uses into agricultural districts. [Citation omitted.]. We therefore conclude that Oahu's Kahe Point proposal is not an'unusual and reasonable use' which would qualify for a special permit under HRS §205-6 and that planning commission and LUC abused their discretion in approving Oahu's application. The proposed recreational theme park is more properly the subject of a district boundary amendment petition which would be considered in accordance with the requirements of procedure and proof as set forth in HRS §205-4. As noted by the Hawaii Supreme Court, the "essential purpose" of the special permit is to "provide landowners relief in exceptional situations where the use desired would not change the essential character of the district nor be inconsistent therewith." [Supra, p. 271]. It seems, therefore, that the test to be applied to determine if a district 2 boundary amendment is called for should be: is the proposed use a "major urban use" that "changes the essential character of the district" or "is inconsistent therewith"? To answer this question as to this project, we need only refer to the County of Hawaii Planning Department Revised Recommendations wherein it is stated at section (F) on page 782 that "[t]he proposed school will alter or change the essential character of the land and its present use from its current undeveloped character." Despite its acknowledgment, the Planning Department apparently overlooks or accepts the change because of Petitioner's proposal to construct single story structures similar to the surrounding residential community. [Supra]. Even if Petitioner was able to construct a gymnasium that was only one-story high, the Planning Department limited view of what constitutes a "change" to "the essential character" of the property is unrealistic and shortsighted. No matter whether one story or not, the construction of elementary, intermediate and high school classrooms, an administrative center, a 140-space parking lot, a library/resource center, a kitchen/dining facility, a gymnasium/multi-purpose building, green/shade houses, a 6-horse barn, a maintenance building, a 30-person dormitory, a caretaker's residence, and a facility to house the inter-generational program would, by any standard, change the essential character of the land from an agricultural district to an urban district. Furthermore, the Planning Department's narrow view of what constitutes "change" ignores the nearly 500 students, teachers and staff that will occupy the property at least five days per week, and the hundreds of buses and cars going to and from the property each day. It also ignores the noise and dust that must be endured for 16 to 25 years while the improvements are constructed on the property. All of these consequences 3 must and should be taken into consideration to determine if the "essential character" of this property will be "changed." And, obviously, the scrutiny should not be restricted to the height (i.e. one story) of the buildings to be constructed. In reliance upon the foregoing, I urge the Hearing Officer to rule that the school does constitute a "major urban use" of the property which will "change the essential character of the district" or "be inconsistent therewith" so as to require that the proposed use be effected by a district boundary amendment and not a special permit. If this application does not require a district boundary amendment, it must yet be denied for failure to satisfy the seven criteria set forth in Rule 6-3(b)(5) of the Planning Commission Rules of Practice and Procedure. As pointed out in the Neighborhood Board decision, "[w]hether a particular use is 'unusual and reasonable' is determined by applying the five guidelines set forth in the Land Use District Regulations §5-2 to the proposed project." [Neighborhood Board at page 270]. Those five guidelines are now set forth in §15-15-95 of the Land Use Commission Rules. Its counterpart for the County of Hawaii Planning Commission is contained in Rule 6-3(b)(5) and has been expanded to seven criteria. The two additional criteria are: (F) the proposed use will not substantially alter or change the essential character of the land and the present use and (G) The request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design Plans. The additional requirement that the "proposed use will not substantially alter or change the essential character of the land and the present use" is consistent with the Nei&hborhood Board decision to require a district boundary amendment if this requirement is not satisfied. In short, Rule 6-3(b)(5)(F) merely codifies the ruling in 4 Neighborhood Board and forewarns any applicant for a special permit that the special permit cannot be granted if the "essential character" of the land and its present use will be "substantially altered." Clearly, then, only a district boundary amendment can authorize the proposed use if the "essential character" of the agricultural district will be changed and it matters not if the remaining six criteria of Rule 6-3(b)(5) can be satisfied. Assuming, without conceding, that Petitioner's failure to satisfy Rule 6-3(b)(5)(F) is, by itself, not sufficient to deny the special permit, the next issue must then be: How many of the other six criteria must be satisfied before this special permit can be approved? Rule 6-3(b)(5), itself, gives no indication that anything less than all seven criteria is required. Had the authors of Rule 6-3(b)(5) intended to accept 5 or 6, or even a simple majority of the seven criteria to grant a special permit, then why not state so? What line of reasoning can support a belief that less than all seven criteria must be met to grant a special permit? Without additional words of qualification in Rule 6-3(b)(5), it would be pure arbitrary guesswork to select a number less than seven. If we assume, nonetheless, that not all seven criteria must be satisfied, and we review the Petitioner's and Planning Department's position on the criteria, there is a clear acknowledgment that at least three of the seven criteria have not been met. For example, with respect to Rule 6-3(b)(5)(B) which requires that "the desired use would not adversely affect surrounding properties", the Planning Department concedes that "the proposed use is anticipated to have an adverse affect on the surrounding properties, but these adverse impacts can be mitigated to minimize these impacts through conditions of approval." [Planning Department's Revised Recommendations, p. 7]. 5 The use of the term "minimize" is erroneous and totally without support. The Random House Webster's College Dictionary defines "minimize" as "to reduce to the smallest possible amount or degree." As increased traffic and noise are expected to negatively impact surrounding properties, "minimizing" these adverse consequences would mean reducing the extra traffic to one car and reducing the noise to one decibel. It is obvious that these results are unattainable. Without questioning the accuracy or reliability of Applicant's Traffic Impact Analysis Report (TIAR), we know that the school will generate much more traffic going to and from the school. Based upon the TIAR, we can expect at least 621 more buses and cars (p. 536). Except for construction of a left turn lane from Edita Street turning into the school (p. 887), no other action is being recommended by the Planning Department to mitigate traffic delays caused by the school traffic. Neither the Planning Department nor Applicant can state that traffic delays will not be experienced by the surrounding property owners. Whether these delays are classified as "better than acceptable levels of service" [Revised Recommendations, p. 886], for those Kaumana residents who are used to no traffic delays currently, having to wait 8 to 11 seconds (p. 536) before entering to and from Kaumana Drive because of the school traffic will be irritating and upsetting and adversely affect the daily routine and quality of life. Equally, if not more upsetting to the surrounding properties, will be the noise generated by the increased traffic, school activities and 16 to 25 years of construction of the school improvements. Petitioner seeks to avoid this adverse consequence by saying that it will plant landscaping. But we all know, and it is common knowledge, that heavy 6 growth of trees and other vegetation near a construction site does not negate the noise emanating therefrom. And even traffic on Kaumana Drive can be heard despite the barrier of trees between Kaumana Drive and Pacific Plantation Subdivision. Even if the noise from this project could possibly be lessened or abated by landscaping, the issue is this: by how much?No evidence has been submitted by Petitioner to show how much traffic, school and construction noise would be generated by this project, nor by how much such noise would be reduced through landscaping. As it is Petitioner's burden of proof to show that it has met the criteria for the special permit, failure to present such evidence means that Petitioner has failed to prove that the surrounding properties will not be adversely affected. Another criterion that the Planning Department has admitted has not been met is that "[t]he use will not substantially alter or change the essential character of the land and present use." [Rule 6-3(b)(5)(F)]. This requirement as already been extensively discussed hereinabove and need not be repeated. Subsection(E) of Rule 6-3(b)(5) requires that "[t]he land upon which the proposed use is sought is unsuited for the uses permitted within the district." Because of the "poor" quality of the soil, the Planning Department concluded that "the land upon which the proposed use is sought is unsuited for agricultural uses permitted within the Agricultural District" [Revised Recommendations, p. 889]. In contrast, the Petitioner stated at pages 48 and 49 of its Petition that "[d]espite the poor agricultural qualities of the property, the school does intend to include an agricultural program, the purpose of which would be educational rather than commodity driven, and would focus on teaching sustainable practices" including hydroponics and the cultivation of fruits, vegetables, 7 nature trees, plants and ornamental plants. Petitioner also intended to use the property for raising of livestock and the development of a fore strylconservation program. [Supra]. The Planning Department, in order to find the land unsuitable for agricultural use, has overlooked many of the agricultural uses cited in Chapter 205-4.5, HRS, that are not dependent on good quality soil, such as game and fish propagation and public recreational areas such as camps, picnic grounds, parks, etc. Petitioner, on the other hand, has had to concede that the land is suitable for agricultural uses because of its selection of the site for its agricultural program. It was caught between the proverbial rock and hard place. It if admitted that the property was not suitable for agricultural uses to satisfy Rule 6-3(b)(5)(E), then there would be no justification for placement of the school in an agricultural district. But if it admitted that the property was suitable for agricultural uses, then it would not be able to satisfy Rule 6- 3(b)(5)(E). Unfortunately for Petitioner, it cannot have it both ways. So the land, by its own admission, is not unsuitable for the uses permitted within the agricultural district. To conclude what has already been a lengthy closing argument, but without conceding that the other unmentioned criteria have been met, let me point out that because the subject property is more than fifteen acres, Rule 6-9 of the Planning Commission Rules requires approval of the Special Permit by the State Land Use Commission. Both the Planning Commission and Land Use Commission are required by their respective Rules [.e. Chapter 15-15-95 and Rule 6-3(b)(5)] to find that the proposed use is "unusual and reasonable" and would promote, or not be contrary to, the objectives of Chapter 205 and our State Land Use Laws. 8 The Planning Department has determined that the proposed use is "unusual and reasonable" independent of the seven criteria set forth in Rule 6-3(b)(5). In the instant case, the Planning Department found Petitioner's proposed use to be "unusual" because a school is "not normally considered agricultural in nature." [Revised Recommendations page 885]. If this approach to determine what is "unusual" is upheld, then all proposed Special Permits would automatically qualify as "unusual" since each Special Permit is sought to allow a non-agricultural use in an agricultural district. The Planning Department also concluded that Petitioner's proposed use was "reasonable" because the school is "required to support the agricultural community in which they are located" [Supra]. There is nothing on record to support this conclusion nor is there any rational discussion as to how this conclusion was reached. And even if a school can be considered a "reasonable" use in an agricultural district, how do we determine if this school is a "required" service in the subject agricultural district? There has been no showing that another school is desired or needed, much less "required", in the subject agricultural district or any other nearby agricultural district. Why then is it "reasonable" to allow this school to be injected into this agricultural district without such proof? To conclude that the proposed use is "reasonable" by utilizing the Planning Department's definition would be pure conjecture and unsustainable by any burden of proof. Accordingly, I urge the Hearing Officer to find that the Planning Department's determination that the proposed use is "unusual" and "reasonable" to be in error and without any basis in fact or in law. 9 Conclusion Authoritative case law requires that the district boundary amendment process be utilized if the proposed use changes the essential character of the district. Without question, the construction of a kindergarten through twelfth grade school will change the essential character of the subject property from agricultural to urban. As such, the special permit process utilized by Petitioner is inappropriate to authorize the construction of the school. Even if the special permit process is deemed appropriate, Petitioner must, yet, fail as it has not satisfied all of the seven criteria prescribed by Rule 6-3(b)(5) to qualify the school as an "unusual and reasonable" use. For example, the noise and traffic generated by the project is an admitted adverse impact upon the surrounding property owners which will persist for no less than 16 to 25 years (as to the noise) and forever (as to the traffic). In addition, Petitioner has failed to show that the property is unsuited for agricultural uses. In fact, Petitioner has admitted that it is suitable for the growing of crops and for forestry/conservation purposes. Without words of qualification or limitation, there is no logical or justifiable basis for allowing a special permit to be issued if all seven criteria of Rule 6-3(b)(5) have not been satisfied. As the foregoing arguments point out, criteria(A), (B), (E), and (F) have not been satisfied and for that reason. the Petition should be denied. 10 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, NOTICE OF MOTION FOR SUMMARY JUDGMENT vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, vs. SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE T. YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. NOTICE OF MOTION FOR SUMMARY JUDGMENT TO: Ted H.S. Hong, Esq. David M. Louie, Esq. P.O. Box 4217 Carter K. Siu, Esq. Hilo, HI 96720 Deputy Attorney General 235 S. Beretania Street, Room 304 Attorney for Applicant-Appellant Honolulu, HI 96813 COMMUNITY BASED EDUATION SUPPORT SERVICES Attorney for Applicant-Appellant CONNECTIONS NEW CENTUREY CHARTER SCHOOL 1 Margaret Masunaga, Esq. Amy Self, Esq. Deputy Corporation Counsel Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway 101 Aupuni Street, Suite 325 Kailua-Kona, HI 96740 Hilo, HI 96720 Attorney for Appellees Attorney for Appellee WINDWARD PLANNING DEPARTMENT OF PLANNING, COMMISSION, COUNTY OF HAWAII; COUNTY OF HAWAII and SANDRA SONG Michael Matsukawa, Esq. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, HI 96740 Attorney for Appellee JEFFREY GOMES You are hereby notified that the foregoing Appellee Sidney Fuke and Terence T. Yoshioka;s Motion For Suinmary Judgment for Summary Judgment will be presented in the above-entitled Court and cause on August 19, 2014, at 8:30 a.m., or as soon thereafter as counsel can be heard. DATED: Hilo, Hawaii, July 28, 2014. ALAN M. OKAMOTO Attorney for Plaintiff 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, vs. SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE T. YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. CERTIFICATE OF SERVICE I hereby certify that the foregoing Appellee Sidney Fuke and Terence T. Yoshioka's Motion For Summary Judgment; Memorandum in Support of Motion; Affidavit of Sidney Fuke; Affidavit of Terence T. Yoshioka; Notice of Motion was duly 1 mailed, postage prepaid to the parties identified in the foregoing Notice of Motion on this 28th day of July, 2014. y� ALAN M. OKAMOTO 2 FILM NAKAMOTO, OKAMOTO & YAMAMOTO1I . ATTORNEYS AT LAW STATUE OF MAYIAN A LAW CORPORATION 201%AL IUL ALAN M. OKAMOTO #1826 187 Kapiolani Street Hilo, Hawaii 96720 VL Telephone: (808) 961-0641 Attorney for APPELLEES SIDNEY FUKE and TERENCE T. YOSHIOKA IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S VS. MEMORANDUM IN SUPPORT OF APPELLEE WINDWARD PLANNING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I, COMMISSION, COUNTY OF HAWAII; AND INTERVENOR-APPELLEE SANDRA DEPARTMENT OF PLANNING, SONG'S MOTION TO DISMISS FILED COUNTY OF HAWAII, JULY 7, 2014; CERTIFICATE OF SERVICE Appellees, Old Hearing Date: August 22, 2014 VS. NEW HEARING: SANDRA SONG, in her capacity as Date: August 19, 2014 Hearing Officer; JEFFREY GOMES, Time: 8:30 am Intervenor; SIDNEY FUKE, Intervenor's Judge: Honorable Ronald Ibarra Representative; TERENCE T. YOSHIOKA, Intervenor's Representative, No Trial Date Set Intervenor-Appel lees. APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MEMORANDUM IN SUPPORT OF APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I,AND INTERVENOR-APPELLEE SANDRA SONG'S MOTION TO DISMISS FILED JULY 7 2014 1 Comes now Appellees SIDNEY FUKE (hereafter"Appellee FUKE") and TERENCE T. YOSHIOKA (hereafter"Appellee YOSHIOKA"), by and through their attorneys, Nakamoto, Okamoto &Yamamoto and submits this Memorandum in Support of Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I and Intervenor-Appellee SANDRA SONG's Motion to Dismiss filed July 7, 2014 (hereafter "Motion"). Including of Intervenor-Appellee SANDRA SONG (hereafter"Appellee SONG") as a party in this appeal is clearly improper. The legal issues relating to Appellee SONG's inclusion in this appeal are the same as those presented by the inclusion of Appellee FUKE and Appellee YOSHIKA. Appellee FUKE and Appellee YOSHIOKA accordingly refer the Court to the Memorandum in Support of the Motion for Summary Judgment filed on July 28, 2014 and the Affidavits attached thereto. The undisputed facts show that Appellee SONG's involvement in the Applicant- Appellants COMMUNITY BASED EDUCATION SUPPORT SERVICES' and CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL's application for Special Permit was solely as the hearing officer appointed by Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII (hereafter"Appellee WINDWARD PLANNING COMMISSION") to conduct the contested case proceeding which was initiated at the request of Appellants COMMUNITY BASED EDUCATION SUPPORT SERVICES and CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL(hereafter collectively"Appellants"). Given Appellee SONG's role as Hearing Officer, it is apparent that she could not have been a party in the contested case proceeding. 2 It is also undisputed that the final decision from which this appeal was taken was made by Appellee WINDWARD PLANNING COMMISSION. That Appellee is a party in this appeal so the Court can grant relief from that decision without the presence of Appellee SONG in this appeal. The only relief that Appellants requested which could involve Appellee SONG is for taxation of attorneys' fees. As Appellee SONG and Appellee WINDWARD PLANNING COMMISSION have covered in their Motion to Dismiss, Appellants are not entitled to award of attorneys' fees in Chapter 91 appeals. DATED: Hilo, Hawaii, July 28, 2014. ALAN M. OKAMOTO Attorney for Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA 3 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, vs. SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE T. YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. CERTIFICATE OF SERVICE I hereby certify that the foregoing Appellees Sidney Fuke and Terence T. Yoshioka's Memorandum in Support of Appellee Windward Planning Commission, County of Hawai'i and Intervenor-Appellee Sandra Song's Motion to Dismiss Filed July 7, 2014 was served on the following by depositing the same with the U.S. Postal Service, postage prepaid, on July 28, 2014: 1 Ted H.S. Hong, Esq. David M. Louie, Esq. P.O. Box 4217 Carter K. Siu, Esq. Hilo, HI 96720 Deputy Attorney General 235 S. Beretania Street, Room 304 Attorney for Applicant-Appellant Honolulu, HI 96813 COMMUNITY BASED EDUATION SUPPORT SERVICES Attorney for Applicant-Appellant CONNECTIONS NEW CENTUREY CHARTER SCHOOL Margaret Masunaga, Esq. Amy Self, Esq. Deputy Corporation Counsel Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway 101 Aupuni Street, Suite 325 Kailua-Kona, HI 96740 Hilo, HI 96720 Attorney for Appellees Attorney for Appellee WINDWARD PLANNING DEPARTMENT OF PLANNING, COMMISSION, COUNTY OF HAWAII; COUNTY OF HAWAII and SANDRA SONG Michael Matsukawa, Esq. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, HI 96740 Attorney for Appellee JEFFREY GOMES ALAN M. OKAMOTO 2 } 1 �j MICHAEL J . MATSUKAWA, 1885-0 Territorial Centre, Suite 201 2014 PH 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Telephone No . : (808) 329-1385 Attorney for Appellee-Intervenor -, ' ' `-!, JEFFREY K. GOMES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES, } (Agency Appeal) Applicant-Appellant , } } INTERVENOR-APPELLEE JEFFREY K. vs . } GOMES' MEMORANDUM IN SUPPORT OF APPELLEES SIDNEY FUKE AND WINDWARD PLANNING COMMISSION, } TERENCE T. YOSHIOKA' S MOTION COUNTY OF HAWAII ; DEPARTMENT OF ) FOR SUMMARY JUDGMENT FILED PLANNING, COUNTY OF HAWAII , ) JULY 28 , 2014 ; CERTIFICATE OF SERVICE Appellees, ) and ) SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY GOMES, } Intervenor; SIDNEY FUKE, ) Intervenor' s Representative; ) HEARING: TERENCE YOSHIOKA, Intervenor' s ) DATE: AUGUST 19, 2014 Representative, } TIME: 8 : 30 A.M. JUDGE : HON. RONALD IBARRA Intervenor-Appellees. ) ) 080514.2\j-9omes\msj-sup.rsp INTERVENOR-APPELLEE JEFFREY K. COMES' MEMORANDUM IN SUPPORT OF APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA' S MOTION FOR SUMMARY JUDGMENT FILED JULY 28 , 2014 Intervenor-Appellee Jeffrey K. Gomes ( " Intervenor Gomes" ) supports the Movants Fuke and Yoshioka' s motion for dismissal . Their motion raises issues that Intervenor Gomes has previously addressed in his Memorandum filed herein on July 22 , 2014 and that Intervenor Gomes restates by reference . 1 A. Points of Law Intervenor Gomes agrees with the Movants' points of law in their Memorandum filed July 28 , 2014 , Pages 7 to 8 and contends that the following are uncontroverted points of law: • A person' s party status in an administrative proceeding is established by statute and/or agency rule; + A person who gains party status in an agency proceeding acquires substantial rights in the proceeding, beyond the right to testify before the agency; • Under Chapter 91 , HAS, the class of persons who may participate in an agency appeal as an appellant or as an appellee are (1) those who have party status and who are aggrieved by the agency' s decision and (2) the agency whose final decision is on review B. Points of Fact Intervenor Games also agrees with the Movants' statement of the relevant facts of record (Id. , Page 9) that : 1 See discussion relating to "parties" in an administrative proceeding and "appellees" in an agency appeal to the circuit court . (Memorandum filed July 22 , 2014) 2 • Neither Movant was a party below (as the term "Party" is defined) ; • Neither Movant has asked the circuit court to set aside the agency' s final decision in this instance; • Neither Movant falls within the class of persons who may be a party-appellee in this agency appeal . C . "Permissive" Joinder of Parties Not Allowed Although the rules of civil procedure apply in an agency appeal , Section 81 (e) , HRCP makes clear that some rules do NOT apply. "These rules shall apply . . . except as otherwise iprovided in Rule 72 . "' Rule 72 , HRCP specifically describes who are the parties-appellant and who are the parties-appellee in an agency appeal . Accordingly, Rule 72 , HRCP supplants Rule 20 , HRCP relating to the "permissive" joinder of parties . z The Appellant (s) may believe nonetheless that it/they can freely join anyone they choose as parties-appellee in an agency appeal , but the case at bar is an APPELLATE PROCEEDING (not a regular civil action) that is confined to the review of the agency record and the effect of the proceeding below on the rights and obligations of the parties . The Appellant (s) are trying to expand this agency appeal into a different form of civil proceeding, Rule Z Rule 20 , HRCP provides for the "permissive" joinder of persons as parties in an ordinary civil case, but subject to their dismissal for misjoinder under Rule 21 , HRCP . 3 proceeding, Rule 72 , HRCP notwithstanding.3 Conclusion The joinder of non-parties to the agency appeal will "open the door" to issues that are not within this Court ' s scope of review. The Court should grant the Movants' motion. DATED : Kailua-Kona, Hawaii , August 5, 2014 JEFFREY K. COMES, Appellee- Intervenor 'g�_A I By: r>k MICHAEV J. MATSUKAWA His Attorney 3 Under the Appellant (s) ' reasoning, every person who was involved in an agency proceeding in some manner, such as a witness, can be made a party-appellee in an ensuing agency appeal to the circuit court . If so, the court would have to determine which of those persons are "necessary" or "indispensable" under Rule 19, HRCP, even though they were not parties in the agency proceeding. This would convert an appellate proceeding into a broader form of civil action that involves non-appellate issues and non-appellate remedies and that requires the circuit court to expand its scope of review beyond that set forth in Section 91-14 (g) , HRS . 4 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES, ) (Agency Appeal) ) Applicant-Appellant , ) CERTIFICATE OF SERVICE vs . } WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII ; DEPARTMENT OF ) PLANNING, COUNTY OF HAWAII , ) ) Appellees, ) and ) ) SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY COMES, ) Intervenor; SIDNEY FUKE, ) Intervenor' s Representative; ) TERENCE YOSHIOKA, Intervenor' s ) Representative, ) Intervenor-Appellees. ) CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a copy of the foregoing document (s) was duly served upon the following parties via the U. S . Post Office, Kailua-Kona, Hawaii , postage prepaid, addressed as follows : SANDRA P . SONG, ESQ. Hearings Officer 10 Kamehameha Avenue Hilo, Hawaii 96720 TED H. S . HONG, ESQ. P.O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant--Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General 235 So . Beretania Street , Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AMY SELF, ESQ . Deputy Corporation Counsel 101 Aupuni Street , Suite 325 Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAII PLANNING DIRECTOR MARGARET MASUNAGA, ESQ. Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway Kailua-Kona, Hawaii 96740 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII ALAN M. OKAMOTO, ESQ. Nakamoto Okamoto & Yamamoto 187 Kapiolani Street Hilo, Hawaii 96720 DATED : Kai 1 u a-Kona, Hawaii , August 5, 2014 JEFFREY K. GOMES, Appellee- Intervenor By MICHAEL J. MATSUKAWA His Attorney 2 FILL1) CIRCUIT COURT OF NAKAMOTO, OKAMOTO & YAMAMOTO THE THIRD CIRCUIT ATTORNEYS AT LAW STATE OF HAWAII A LAW CORPORATION 2014 AUG -6 FH ?r 55 ALAN M. OKAMOTO #1826 kCkV19k 187 KapioIam Street L. CF1I';6N Hilo, Hawaii 96720 CLERK- Telephone: (808) 961-0641 Attorney for APPELLEES SIDNEY FUKE and TERENCE T. YOSHIOKA IN TIIE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-I-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, SUPPLEMENTAL AFFIDAVIT OF TERENCE T. YOSHIOKA, EXHIBIT A VS. (Re: Appellees Sidney Fuke and Terence T. WINDWARD PLANNING Yoshioka's Motion for Summary Judgment) COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, vs. SANDRA SONG, in her capacity as HEARING: Hearing Officer; JEFFREY COMES, Date: August 19, 2014 Intervenor; SIDNEY FUKE, Intervenor's Time: 8:30 a.m. Representative; TERENCE T. YOSHIOKA, Judge: Honorable Ronald fharra Intervenor's Representative, Intervenor-Appellees. No Trial Date Set SUPPLEMENTAL AFFIDAVIT OF TERENCE T. YOSHIOKA 1 Gy( STATE OF HAWAII ) } SS: COUNTY OF HAWAII } TERENCE T. YOSHIOKA, herein called the affiant, being first duly sworn, deposes and says: 1. I have personal knowledge of the facts stated in this Affidavit. 2. The attached Exhibit A is my complete written testimony, including page 7, that I had submitted during the contested case proceedings. And further affiant sayeth not. DATE: Hilo, Hawaii, August2014. TERENCE T. Y SHIOKA Subscribed and sworn to before me this Doc. Date: August 5 , 2014 day of August, 2014. Undated at time of notarization Description of Document: K N ANEK, Supplemental Affidavit of Terence T. Yoshioka,Exhibit A Notary Public, State of Hawaii My commission expires: 5123/2,019 Third Judicial Circuit No. of Pages: 12 (Seal/Stamp) Z . S. 2 EXHIBIT A WRITTEN FINAL TESTIMONY OF TERENCE YOSHIOKA Critical to the evaluation and understanding of this Petition is the Hawaii Supreme Court decision in Neighborhood Board vs. State Land Use Commission, 64 Haw. 265 (1982) wherein a special permit granted by the Land Use Commission which would have allowed 103 acres of land in an agricultural district to be used for a recreational theme park was overturned. The Appellant in Neighborhood Board contested the issuance of the special permit on several grounds including, inter alfa. that: (1) Chapter 205 required the applicant to pursue a district boundary amendment rather than a special permit; and (2) the applicant failed to meet the substantive special permit requirements of HRS §205-6 and the Land Use District Regulations. In overturning the special permit, the Hawaii Supreme Court held at pages 269 and 270 that "HRS §205 allows the county planning commission and the LUC to issue special permits for 'certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified' but only when the use would promote the effectiveness and objectives of[HRS Ch. 205]." Whether a particular use is 'unusual and reasonable' is determined by applying the five guidelines set forth in the Land Use District Regulations §5-2 to the proposed project. Section 5-2 requires the following: (1) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations. (2) That the desired use would not adversely affect surrounding property. (3) Such use would not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage and school improvements, and police and fire protection. 1 (4) Unusual conditions, trends and needs have arisen since the district boundaries and regulations were established. (5) That the land upon which the proposed use is sought is unsuited for the uses permitted within the District. The Hawaii Supreme Court deemed it "unnecessary" to review all five guidelines as it found that the applicant "failed to comply with the first and critical requirement that the proposed use not run contrary to the objectives sought to be accomplished by the Land Use Laws and Regulations, the counterpart of the statutory mandate that the proposed use promote the effectiveness and objectives of HRS Ch. 205." [Supra, p. 2701 After lengthy discussion of the procedural and substantive differences between the special permit and district boundary amendment processes, the Hawaii Supreme Court concluded at page 273 as follows: The interim statewide land use guidance policies enumerated in HRS 205-16.1 (1976 and Supp. 198 1) and the Hawaii State Plan HRS Ch. 226, themselves articulate as planning objectives the avoidance of scattered urban development and the accommodation of urban growth in existing urban areas. [Citations omitted]. We do not believe that the legislature envisioned the special use technique to be used as a method of circumventing district boundary amendment procedures to allow the ad hoc infusion of major urban uses into agricultural districts. [Citation omitted.]. We therefore conclude that Oahu's Kahe Point proposal is not an 'unusual and reasonable use' which would qualify for a special permit under HRS §205-6 and that planning commission and LUC abused their discretion in approving Oahu's application. The proposed recreational theme park is more properly the subject of a district boundary amendment petition which would be considered in accordance with the requirements of procedure and proof as set forth in HRS §205-4. As noted by the Hawaii Supreme Court, the "essential purpose" of the special permit is to "provide landowners relief in exceptional situations where the use desired would not change the essential character of the district nor be inconsistent therewith." [Supra, p. 271]. It seems, therefore, that the test to be applied to determine if a district 2 boundary amendment is called for should be: Is the proposed use a "major urban use" that "changes the essential character of the district" or "is inconsistent therewith"? To answer this question as to this project, we need only refer to the County of Hawaii PIanning Department Revised Recommendations wherein it is stated at section (F) on page 782 that "[t]he proposed school will alter or change the essential character of the land and its present use from its current undeveloped character." Despite its acknowledgment, the Planning Department apparently overlooks or accepts the change because of Petitioner's proposal to construct single story structures similar to the surrounding residential community. [Supra]. Even if Petitioner was able to construct a gymnasium that was only one-story high, the Planning Department limited view of what constitutes a "change" to "the essential character" of the property is unrealistic and shortsighted. No matter whether one story or not, the construction of elementary, intermediate and high school classrooms, an administrative center, a 140-space parking lot, a library/resource center, a kitchen/dining facility, a gymnasium/multi-purpose building, green shade houses, a 6-horse barn, a maintenance building, a 30-person dormitory, a caretaker's residence, and a facility to house the inter-generational program would, by any standard, change the essential character of the land from an agricultural district to an urban district. Furthermore, the Planning Department's narrow view of what constitutes "change" ignores the nearly 500 students, teachers and staff that will occupy the property at least five days per week, and the hundreds of buses and cars going to and from the property each day. It also ignores the noise and dust that must be endured for 16 to 25 years while the improvements are constructed on the property. All of these consequences 3 must and should be taken into consideration to determine if the "essential character" of this property will be "changed." And, obviously, the scrutiny should not be restricted to the height (i.e. one story) of the buildings to be constructed. In reliance upon the foregoing, 1 urge the Hearing Officer to rule that the school does constitute a "major urban use" of the property which will "change the essential character of the district" or "be inconsistent therewith" so as to require that the proposed use be effected by a district boundary amendment and not a special permit. If this application does not require a district boundary amendment, it must yet be denied for failure to satisfy the seven criteria set forth in Rule 6-3(b)(5) of the Planning Commission Rules of Practice and Procedure. As pointed out in the Neighborhood Board decision, "[w]hether a particular use is 'unusual and reasonable' is determined by applying the five guidelines set forth in the Land Use District Regulations §5-2 to the proposed project." [Neighborhood Board at page 2701. Those five guidelines are now set forth in §15-15-95 of the Land Use Commission Rules. Its counterpart for the County of Hawaii Planning Commission is contained in Rule 6-3(b)(5) and has been expanded to seven criteria. The two additional criteria are: (F) the proposed use will not substantially alter or change the essential character of the land and the present use and (G) The request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design Plans. The additional requirement that the "proposed use will not substantially alter or change the essential character of the land and the present use" is consistent with the Neighborhood Board decision to require a district boundary amendment if this requirement is not satisfied. In short, Rule 6-3(b)(5)(F) merely codifies the ruling in Neighborhood Board and forewarns any applicant for a special permit that the special permit cannot be granted if the "essential character" of the land and its present use will be "substantially altered." Clearly, then, only a district boundary amendment can authorize the proposed use if the "essential character" of the agricultural district will be changed and it matters not if the remaining six criteria of Rule 6-3(b)(5) can be satisfied. Assuming, without conceding, that Petitioner's failure to satisfy Rule 6-3(b)(5)(F) is, by itself, not sufficient to deny the special permit, the next issue must then be: How many of the other six criteria must be satisfied before this special permit can be approved? Rule 6-3(b)(5), itself, gives no indication that anything less than all seven criteria is required. Had the authors of Rule 6-3(b)(5) intended to accept 5 or 6, or even a simple majority of the seven criteria to grant a special permit, then why not state so? What line of reasoning can support a belief that less than all seven criteria must be met to grant a special permit? Without additional words of qualification in Rule 6-3(b)(5), it would be pure arbitrary guesswork to select a number less than seven. If we assume, nonetheless, that not all seven criteria must be satisfied, and we review the Petitioner's and Planning Department's position on the criteria, there is a clear acknowledgment that at least three of the seven criteria have not been met. For example, with respect to Rule 6-3(b)(5)(B) which requires that "the desired use would not adversely affect surrounding properties", the PIanning Department concedes that "the proposed use is anticipated to have an adverse affect on the surrounding properties, but these adverse impacts can be mitigated to minimize these impacts through conditions of approval." [Planning Department's Revised Recommendations, p. 7]. 5 The use of the term "minimize" is erroneous and totally without support. The Random House Webster's College Dictionary defines "minimize" as "to reduce to the smallest possible amount or degree." As increased traffic and noise are expected to negatively impact surrounding properties, "minimizing" these adverse consequences would mean reducing the extra traffic to one car and reducing the noise to one decibel. It is obvious that these results are unattainable. Without questioning the accuracy or reliability of Applicant's Traffic Impact Analysis Report (TZAR), we know that the school will generate much more traffic going to and from the school. Based upon the TZAR, we can expect at least 621 more buses and cars (p. 536). Except for construction of a left turn lane from Edita Street turning into the school (p. 887), no other action is being recommended by the Planning Department to mitigate traffic delays caused by the school traffic. Neither the Planning Department nor Applicant can state that traffic delays will not be experienced by the surrounding property owners. Whether these delays are classified as "better than acceptable levels of service" [Revised Recommendations, p. 8861, for those Kaumana residents who are used to no traffic delays currently, having to wait 8 to 1 1 seconds (p. 536) before entering to and from Kaumana Drive because of the school traffic will be irritating and upsetting and adversely affect the daily routine and quality of life. Equally, if not more upsetting to the surrounding properties, will be the noise generated by the increased traffic, school activities and 16 to 25 years of construction of the school improvements_ Petitioner seeks to avoid this adverse consequence by saying that it will plant landscaping. But we all know, and it is common knowledge, that heavy 6 growth of trees and other vegetation near a construction site does not negate the noise emanating therefrom. And even traffic on Kaumana Drive can be heard despite the barrier of trees between Kaumana Drive and Pacific Plantation Subdivision. Even if the noise from this project could possibly be lessened or abated by landscaping, the issue is this: by how much? No evidence has been submitted by Petitioner to show how much traffic, school and construction noise would be generated by this project, nor by how much such noise would be reduced through landscaping. As it is Petitioner's burden of proof to show that it has met the criteria for the special permit, failure to present such evidence means that Petitioner has failed to prove that the surrounding properties will not be adversely affected. Another criterion that the Planning Department has admitted has not been met is that "[t]he use will not substantially alter or change the essential character of the land and present use." [Rule 6-3(b)(5)(F)]. This requirement as already been extensively discussed hereinabove and need not be repeated. Subsection (E) of Rule 6-3(b)(5) requires that "[t]he land upon which the proposed use is sought is unsuited for the uses permitted within the district." Because of the "poor" quality of the soil, the Planning Department concluded that "the land upon which the proposed use is sought is unsuited for agricultural uses permitted within the Agricultural District" [Revised Recommendations, p. 8891. In contrast, the Petitioner stated at pages 48 and 49 of its Petition that "[d]espite the poor agricultural qualities of the property, the school does intend to include an agricultural program, the purpose of which would be educational rather than commodity driven, and would focus on teaching sustainable practices" including hydroponics and the cultivation of fruits, vegetables, nature trees, plants and ornamental plants. Petitioner also intended to use the property for raising of livestock and the development of a forestry/conservation program. [Supra]. The Planning Department, in order to find the land unsuitable for agricultural use, has overlooked many of the agricultural uses cited in Chapter 205-4.5, HRS, that are not dependent on good quality soil, such as game and fish propagation and public recreational areas such as camps, picnic grounds, parks, etc. Petitioner, on the other hand, has had to concede that the land is suitable for agricultural uses because of its selection of the site for its agricultural program. It was caught between the proverbial rock and hard place. It if admitted that the property was not suitable for agricultural uses to satisfy Rule 6-3(b)(5)(E), then there would be no justification for placement of the school in an agricultural district. But if it admitted that the property was suitable for agricultural uses, then it would not be able to satisfy Rule 6- 3(b)(5)(E). Unfortunately for Petitioner, it cannot have it both ways. So the land, by its own admission, is not unsuitable for the uses permitted within the agricultural district. To conclude what has already been a lengthy closing argument, but without conceding that the other unmentioned criteria have been met. let me point out that because the subject property is more than fifteen acres, Rule 6-9 of the Planning Commission Rules requires approval of the Special Permit by the State Land Use Commission. Both the Planning Commission and Land Use Commission are required by their respective Rules [.e. Chapter 15-15-95 and Rule 6-3(b)(5)] to find that the proposed use is "unusual and reasonable" and would promote, or not be contrary to, the objectives of Chapter 205 and our State Land Use Laws. 8 The Planning Department has determined that the proposed use is "unusual and reasonable" independent of the seven criteria set forth in Rule 6-3(b)(5). In the instant case, the Planning Department found Petitioner's proposed use to be "unusual" because a school is "not normally considered agricultural in nature." [Revised Recommendations page 885]. If this approach to determine what is "unusual" is upheld, then all proposed Special Permits would automatically qualify as "unusual" since each Special Permit is sought to allow a non-agricultural use in an agricultural district. The Planning Department also concluded that Petitioner's proposed use was "reasonable" because the school is "required to support the agricultural community in which they are located" [Supra]. There is nothing on record to support this conclusion nor is there any rational discussion as to how this conclusion was reached. And even if a school can be considered a "reasonable" use in an agricultural district, how do we determine if this school is a "required" service in the subject agricultural district? There has been no showing that another school is desired or needed, much less "required", in the subject agricultural district or any other nearby agricultural district. Why then is it "reasonable" to allow this school to be injected into this agricultural district without such proof? To conclude that the proposed use is "reasonable" by utilizing the Planning Department's definition would be pure conjecture and unsustainable by any burden of proof. Accordingly. I urge the Hearing Officer to find that the Planning Department's determination that the proposed use is "unusual" and "reasonable" to be in error and without any basis in fact or in law. 9 Conclusion Authoritative case law requires that the district boundary amendment process be utilized if the proposed use changes the essential character of the district. Without question, the construction of a kindergarten through twelfth grade school will change the essential character of the subject property from agricultural to urban. As such, the special permit process utilized by Petitioner is inappropriate to authorize the construction of the school. Even if the special permit process is deemed appropriate, Petitioner must, yet, fail as it has not satisfied all of the seven criteria prescribed by Rule 6-3(b)(5) to qualify the school as an "unusual and reasonable" use. For example, the noise and traffic generated by the project is an admitted adverse impact upon the surrounding property owners which will persist for no less than 16 to 25 years (as to the noise) and forever(as to the traffic). In addition, Petitioner has failed to show that the property is unsuited for agricultural uses. In fact, Petitioner has admitted that it is suitable for the growing of crops and for forestry/conservation purposes. Without words of qualification or limitation, there is no logical or justifiable basis for allowing a special permit to be issued if all seven criteria of Rule 6-3(b)(5) have not becn satisfied. As the foregoing arguments point out, criteria(A), (B), (E), and (F) have not been satisfied and for that reason, the Petition should be denied. 1JFCEIAED 10 FILED CIRCUIT COURT Or MOLLY A. STEBBINS 8639 THE TnlRll CIRCUIT Corporation Counsel STATE OF HAWAII LAUREEN L. MARTIN 5927 2014 AUG -7 aM 10` 32 Assistant Corporation Counsel MARGARET K. MASUNAGA 4568 Deputy Corporation Counsel CLERK L. CIiNEE to Office of the Corporation Counsel 10 1 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Tel. No. (808) 961-8251 Fax No. (808) 961-8622 Email: nikmasunagaTci co.hawaii.hi.us ImartinL)co.hawaii.hi.us Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I AND Intervenor-Appellee SANDRA SONG, in her capacity as Hearing Officer IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAW AI`1 COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES. Applicant-Appellant, APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I vs. AND INTERVENOR-APPELLEE SANDRA SONG, IN HER CAPACITY AS HEARING WINDWARD PLANNING COMMISSION, OFFICER'S STATEMENT OF NO POSITION COUNTY OF HAWAII; DEPARTMENT OF AS TO APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAII, PLANNING, COUNTY OF HAWAI`I'S MOTION TO DISMISS FILED JUNE 27, Appellees, 2014; CERTIFICATE OF SERVICE and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appel lees. Judge: Honorable Ronald Ibarra No Trial Date Set APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII AND INTERVENOR-APPELLEE SANDRA SONG, IN HER CAPACITY AS HEARING OFFICER'S STATEMENT OF NO POSITION AS TO APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S MOTION TO DISMISS FILED JUNE 27, 2014 Appellee Windward Planning Commission, County of Hawaii and Sandra Song, in her capacity as Hearing Officer, by and through their undersigned counsel, hereby state that it takes no position as to Appellee Department of Planning, County of Hawai`i's Motion to Dismiss filed June 27, 2014. Dated: Hilo, Hawaii, August 7, 2014. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I, Appellee, and SANDRA SONG, in her capacity as Hearing Officer, Intervenor-Appellee By LACkEtN L. MARTIN Assistant Corporation Counsel Their Attorney 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-I-0223 SUPPORT SERVICES Applicant-Appellant, CERTIFICATE OF SERVICE VS. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appel lees. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 7, 20I4, a copy of the foregoing document was served upon the following in the manner indicated below: Hand Delivery Mail Email N TED H.S. HONG, ESQ. Hilo Lagoon Centre 101 Aupum Street, PH 1002A Hilo, Hawaii 46720 Email: tedr�tedhanglaw.corn Attorney for COMMUNITY BASED EDUCATION SUPPORT SERVICES Hand Delivery Mail Email CARTER K. SIU, ESQ. N Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AMY G. SELF N Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII MICHAEL J. MATSUKAWA, ESQ. N Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES ALAN M. OKAMOTO, ESQ. N Nakamoto, Okamoto & Yamamoto 187 Kapi'olani Street Hilo, Hawaii 96720 Attorney for Intervenors-Appellees SIDNEY FUKE AND TERENCE YOSHIOKA Dated: Hilo, Hawaii, August 7, 2014. LA EN L. MARTIN Deputy Corporation Counsel County of Hawaii MOLLY A. STEBBINS 8639 CIRCUIT COURT OF THE TN1RiD CIRCUIT Corporation Counsel STATE Cr HAWAII AMY G. SELF 7628 2014 AUG -7 AM 10: 32 JOSEPH K. KAMELAMELA ov Deputies Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Tel. No. (808) 961-8251 Fax No. (808) 961-8622 Email: asclf�ii),co.hawaii.hi.us j kam(-,,1 a(u)co.hawaii.hi.us Attorneys for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAI'l IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES, Applicant-Appellant, APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S STATEMENT OF vs. NO POSITION AS TO APPELLEE WINDWARD PLANNING COMMISSION, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, and INTERVENOR- COUNTY OF HAWAII; DEPARTMENT OF APPELLEE SANDRA SONG'S MOTION TO PLANNING, COUNTY OF HAWAII, DISMISS FILED JULY 7, 2014; CERTIFICATE OF SERVICE Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. Judge: Honorable Ronald Ibarra No Trial Date Set APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S STATEMENT OF NO POSITION AS TO APPELLEE WINDWARD PLANNING COMMISSION COUNTY OF HAWAI'I, and INTERVENOR-APPELLEE SANDRA SONG'S MOTION TO DISMISS FILED JULY 7, 2014 Appellee Department of Planning, County of Hawaii, by and through its undersigned counsel, hereby states that it takes no position as to Appellee Windward Planning Commission, County of Hawai`i, and Intervenor-Appellee Sandra Song's Motion to Dismiss filed July 7, 2014. Dated: Hilo, Hawaii, August 7, 2014. DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellee By�_ZA AM)t G. SELF Deputy Corporation Counsel Its Attorney 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES Applicant-Appellant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, AppeIIees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-AppeIIees. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 7, 2014, a copy of the foregoing document was served upon the following in the manner indicated below: Hand Delivery_ Mail Email W TED H.S. HONG, ESQ. Hilo Lagoon Centre 101 Aupuni Street, PH 1002A Hilo, Hawaii 96720 Email: ted(akedhonglaw.corn Attorney for COMMUNITY BASED EDUCATION SUPPORT SERVICES Hand Deliver Mail Email CARTER K. SIU, ESQ. (X) Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MARGARET K. MASUNAGA (X) Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupum Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and SANDRA SONG, in her capacity as Hearing Officer MICHAEL J. MATSUKAWA, ESQ. (X) Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES ALAN M. OKAMOTO, ESQ. (X) Nakamoto, Okamoto & Yamamoto 187 Kapi`olani Street Hilo, Hawaii 96720 Attorney for Intervenors-Appellees SIDNEY FUKE AND TERENCE YOSHIOKA Dated: Hilo, Hawaii, August 7, 2014. AM G. SELF Deputy Corporation Counsel County of Hawai i Y 2 r'IL::;� CIRCUIT EbtRT OF MOLLY A. STEBBINS 8639 THE THIRD CIRCUIT Corporation Counsel STATE OF HAWAII AMY G. SELF 7628 20I4 AUG -7 AKIO-' 33 JOSEPH K. KAMELAMELA Deputies Corporation Counsel Office of the Corporation Counsel CLERI(,_,�' Cl"EN 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Tel. No. (808) 961-8251 Fax No. (808) 961-8622 Email: aselfrd�co.hawaii.hi.us 'kamelarajco.hawaii.hi.us Attorneys for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES, Applicant-Appellant, APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S STATEMENT OF vs. NO POSITION AS TO APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S WINDWARD PLANNING COMMISSION, MOTION FOR SUMMARY JUDGMENT COUNTY OF HAWAII; DEPARTMENT OF FILED JULY 28, 2014; CERTIFICATE OF PLANNING, COUNTY OF HAWAII, SERVICE AppeIIees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Judge: Honorable Ronald Ibarra Intervenor-Appellees. No Trial Date Set 44 R APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S STATEMENT OF NO POSITION AS TO APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT FILED JULY 28 2014 Appellee Department of Planning, County of Hawaii, by and through its undersigned counsel, hereby states that it takes no position as to Appellees Sidney Fuke and Terence T. Yoshioka's Motion for Summary,Judgment filed July 28, 2014. Dated: Hilo, Hawaii, August 7, 2014. DEPARTMENT OF PLANNING, COUNTY OF "AWAIT, Appellee J BY A1��- AMY,6. SELF Depu y Corporation Counsel Its Attorney 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES Applicant-Appellant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, I ntervenor-Appel lees. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 7, 2014, a copy of the foregoing document was served upon the following in the manner indicated below: Hand Delivery Mail Email (X) TED H.S. HONG, ESQ. Hilo Lagoon Centre 101 Aupuni Street, PH 1002A Hilo, Hawaii 96720 Email: ted 0c tedhonglaw.com_ Attorney for COMMUNITY BASED EDUCATION SUPPORT SERVICES Hand Delivery Mail Email CARTER K. SIU, ESQ. (X} Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MARGARET K. MASUNAGA (X) Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and SANDRA SONG, in her capacity as Hearing Officer MICHAEL J. MATSUKAWA, ESQ. (X) Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kana, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES ALAN M. OKAMOTO, ESQ. (X) Nakamoto, Okamoto & Yamamoto 187 Kapi`olani Street Hilo, Hawaii 96720 Attorney for Intervenors-Appellees SIDNEY FUKE AND TERENCE YOSHIOKA Dated: Hilo, Hawaii, August 7, 2014. -A, YP. KETT Deputk Corporation Counsel County of Hawaii I Lu C!^v"lT CCllr,:T OF TF,-- TH1R7 f`,:i0()fT TED H. S. HONG 3569 S-1A1 E OF HAWAil Attorney at LawNO 111 A US , 13; P. O. Box 4217 Hilo, H1 96720 Telephone No. 808.933.1919 Facsimile No. 80893 8.8281 S, F91" ,`! 4"A ted@tedhonglaw.com Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 RI SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' vs. } MEMORANDUM IN OPPOSITION TO APPELLEE DEPARTMENT OF WINDWARD PLANNING COMMISSION,) PLANNING, COUNTY OF HAWAII, COUNTY OF HAWAII; DEPARTMENT ) FILED ON JUNE 27, 2014; EXHIBITS OF PLANNING, COUNTY OF HAWAII, ) "l," - "2;" DECLARATION OF TED H. S. HONG; CERTIFICATE OF Appellees, ) SERVICE and ) HEARING: SANDRA SONG, in her capacity as ) DATE: August 19, 2014 Hearing Officer; JEFFREY GOMES, } TIME: 8:30 a.m. Intervenor; SIDNEY FUKE, Intervenor's } JUDGE: The Hon. Ronald Ibarra Representative; TERENCE YOSHIOKA, } Intervenor's Representative, ) } Intervenor-Appellees. ) APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' MEMORANDUM IN OPPOSITION TO APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAII'S MOTION TO DISMISS FILED ON JUNE 27, 2014 COMES NOW Appellant, COMMUNITY BASED EDUCATION SUPPORT G� SERVICES (hereinafter referred to as "CBESS"), by and through its undersigned counsel and hereby submits its Memorandum in Opposition to Appellee Planning Department, County of Hawaii's (hereinafter referred to as "Department") Motion to Dismiss Filed on June 27, 2014, as follows. I. FACTS Appellant, Community Based Education Support Services ("CBESS") is a co-applicant in Special Permit Application No. 12-000138 to develop a K to 12 Charter School Campus with Dorm Facilities, Intergenerational Programs, a sustainable Agricultural Program and a Forestry/Conservation Program and related uses on approximately 70 acres of land situated in the State Land use Agricultural District located on both the southwest and northeast sides of Edita Street near its intersection with Kaumana Drive, South Hilo, Hawaii and further identified by Tax Map Key (3)2-5-006:141. See, Declaration of Ted H. S. Hong Appellee Sandra P. Song was the Hearing Officer for the Contested Case hearing for Special Permit Application No. 12-00138. Appellee Song presided over the Contested Case, developed and submitted a Hearing Officers Report (sem Exhibit "1," attached hereto) and her recommendations are reflected in the Findings of Fact, Conclusions of Law and Decision and Order adopted by the Windward Planning Commission on May 1, 2014 and May 19, 2014, respectively. See, Exhibit "2," attached hereto. On or about June 6, 2014, CBESS filed its appeal from: (1) the Hearing Officer's Report dated April 7, 2014, attached hereto as Exhibit "1;" and, (2) County of Hawaii Windward Planning Commission's decision entered May 1, 2014 to uphold the Hearings Officer's report and recommendations to deny Special Permit Application(SPP 12-000138) to develop a K to 12 2 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5-006:141; and (3) the County of Hawai'i Windward Planning Commission's Findings of Fact, Conclusions of Law and Decision and Order, dated May 19, 2014, attached hereto as Exhibit "2." II. ARGUMENT A. Motion to Dismiss In considering the sufficiency of the complaint under Rule 12(b)(6), Hawaii Rules of Civil Procedure (hereinafter referred to as "HRCivP") the accepted rule is that well-pleaded allegations of fact are taken as admitted and the complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim which would entitle him to relief. Marsland v. Pang, 5 Haw.App. 463, 474, 701 P.2d 175, 185-186 (Hawaii App., 1985). In Buscher v. Boning, et al., 114 Hawai'i 202, 159 P.2d 814 (2007), the Hawaii State Supreme Court noted that: The court must accept plaintiffs allegations as true and view them in the light most favorable to the plaintiff; dismissal is proper only if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle him or her to relief' Dunlea v. Dappen, 83 Hawai`I 28, 32, 924 P.2d 196, 200 (1996), overruled on other grounds by Hac v. Univ. of Hawai'1, 102 Hawai`l 92, 105-06, 73 P.3d 46, 59-60 (2003) (citations omitted). However, ... a motion seeking dismissal of a complaint is transformed into a Hawaii Rules of Civil Procedure (HRCP) Rule 56 motion for summary judgment when the circuit court considers matters outside the pleadings.Au v. Au, 63 Haw. 210, 213, 626 P.2d 173, 176 (1981). Wong v. Cayetano, 111 Hawai`I 462, 476, 143 P.3d 1. 15 (2006). (Emphasis added) Buscher, supra, 114 Hawai'i at 212, 159 P.2d at 824; see also, Marsland v. Pang, 5 Haw.App. 463, 474, 701 P.2d 175, 186 (Hawaii App., 1985), "The motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted."; 3 s see also,Ravelo v. County of Hawaii, 66 Haw. 194, at 199, 658 P.2d 883, at 886 (1983). B. Appellee Department of Planning, County of Hawaii is Legally Responsible for the Appellee, Windward Planning Commission. The Hawaii County Charter, Article XIII, Sec. 13-1 (2012) states in relevant part: Section 13-1. Definitions. As used in this charter: (a) "Agency" means any office, department, board, commission or other governmental unit of the county. Hawaii County Charter, Article XIII, Sec. 13-1, page 50 (2012). The unambiguous language of the Hawaii County Charter designates the Appellee Department as the legal representative and party for Appellee Windward Planning Commission: Section 6-7.1. Organization. There shall be a planning department consisting of a planning director, a windward planning commission, a leeward planning commission and the necessary staff. (1979, Prop. 7; 2000, Prop. 2, sec. 1; 2008, Ord. No. 08-01, sec. 2.) Section 6-7.2. Planning Director. (b) The director shall be the chief planning officer of the county and the administrative head of the department and shall: (1) Advise the mayor, the windward planning commission, the leeward planning commission and the council on all planning and land use matters. Emphasis added. 4 a final decision and order in a contested case or by a preliminary ruling of the nature that deferral of review pending entry of a subsequent final decision would deprive appellant of adequate relief is entitled to judicial review thereof under this chapter; but nothing in this section shall be deemed to prevent resort to other means of review, redress, relief, or trial de novo, including the right of trial by jury, provided by law. Notwithstanding any other provision of this chapter to the contrary, for the purposes of this section, the term "person aggrieved" shall include an agency that is a party to a contested case proceeding before that agency or another agency. (g) Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are: (1) In violation of constitutional or statutory provisions, or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedure; or (4) Affected by other error of law; or (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. Emphasis added. Appellee Department is an indispensable party to the proceedings. One of the remedies that is specifically permitted by Sec. 91-14(g), HRS, is that this Court could remand the case with instructions, reverse or modify the decision. Most importantly, if the Court finds that the Appellant's substantial rights have been prejudiced because Appellee Department's decision, the Court can give specific and direct instructions to Appellee Department. It would be a waste of Appellant's resources to simply remand the case back to the original hearing officer and have her 7 reach the same result, based on other factors. The Appellant is unfairly prejudiced by Appellee Department's dismissal, because it allows Appellee Department to make the same unlawful mistake based on other grounds and force the Appellant to keep appealing future unlawful decisions, wasting precious time and resources. (2) Rule 19(b), HRCivP. Generally, if it is infeasible to join a necessary party, the court goes on to consider whether the factors set out in Rule 19(b), HRCivP, also apply. The appellate courts recognize that: a court should consider all of the factors and employ a functional balancing approach. Because of the flexibility of the " equity and good conscience" test and the general nature of the factors listed in HR-PP [sic] Rule 19(b), whether a particular nonparty described in Rule 19(a) will be regarded as indispensable depends to a considerable degree on the circumstances of each case. (Emphasis added) GGS Co. v. Masuda, 82 Hawaii 96, 105, 919 P.2d 1008, 1017 (App.1996)). The first factor under Rule 19(b), HRCivP is "to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties." In the present case an appellate judgment rendered for the Appellant concerning the terms, conditions and execution of the terms and conditions of the underlying Special Use Permit in question has a direct bearing on the Appellee Department. The Department would be left to the interpretation and execution of any appellate decision. The second factor is "the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided." Appellee Department has the sole and exclusive authority, under the Hawaii County Charter to effecutate 8 any appellate decision and interpret, enforce and prosecute what it would perceive to be violations of any terms and conditions of a Special Use Permit. The third factor is "whether a judgment rendered in Appellee Department's absence will be adequate." Any judgment rendered by the appeals courts would result in the Department's participation of some varying degree. If the Court dismisses the appeal, the Appellee Department does nothing. However, if the Court grants the appeal, any decision would have some effect on the interpretation, execution and enforcement of the appeals Court's decision. Finally, the fourth factor is, "whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder." Again, the absence of the Appellee Department in the appeal would substantially affect any remedy that the Appellant could obtain. Appellee Department would be given the sole and exclusive authority to interpret, execute and enforce any terms and conditions of the Special Use Permit, to the Appellant's detriment and the entire appeal process would have to be restarted against Appellee Department. Allowing the Appellee Department to be dismissed from the present case, allows it to stray from or erroneously any appellate decision and the Appellant would face another long process of an appeal. Judicial efficacy demands that the Appellee Department remain as a party in the present case and actively participate in the appeal. III. CONCLUSION Based on the foregoing points of authority and law, the Appellant respectfully requests the Court deny Appellee Planning Department, County of Hawaii's Motion to Dismiss Filed on 9 June 27, 2014. DATED: August 11, 2014. Respectfully submitted, ,2 \jJ ED H. . ONG Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 10 SANDRA PECHTER SONG 1552 10 Kamehameha Avenue Hilo, Hawaii 96720 Tel. No. (808) 933-9212 Fax No. (808) 935-3945 Hearing Officer BEFORE THE PLANNING COMMISSION COUNTY OF HAWAII In the Matter of } SPP No. 12-000138 CONNECTIONS NEW CENTURY PUBLIC ) HEARING OFFICER'S REPORT; CHARTER SCHOOL and COMMUNITY ) CERTIFICATE OF SERVICE BASED EDUCATION SUPPORT ) SERVICES ) Hearing Dates: October 21, 2013, October 22, 2013, November 12, 2013, January 8, 2014 Application for Special Permit Application ) and January 21, 2014 No. 12-000138 ) TMK: (3)2-5-006-141; Kaumana, South ) Hilo, Hawaii ) HEARING FFICER'S REPORT This matter came on for contested case hearing before your Hearing Officer on October 21, and 22,2013,November 12, 2013, January 8 and 21, 2014. At the hearing, Applicant, Connections New Century Public Charter School was represented by its counsel, Carter K. Siu, and Applicant Community Based Education Support Services was represented by its counsel Ted H.S. Hong. Applicants Connections New Century Public Charter School and Community Based Education Support Services will hereinafter be collectively referred to herein as "Connections". Also at the hearing, the County of Hawaii Planning Director (hereinafter"Director")was represented by his counsel, Amy G. Self; and Intervenor Jeffrey K. Gomes (hereinafter "Gomes"), represented himself pro se. At the close of the hearing, the parties were provided with an opportunity to submit proposed Findings of fact in this case, Connections and Gomes submitted proposed findings on February 12,2014. The Director submitted a statement on February 12,2014 indicating that he was not taking any position in this matter and would not be filing proposed findings of fact. The EXH1131T 461." Director did, however, reserve the right,to submit exceptions to findings submitted by other parties in this matter. After considering all of the evidence presented at the hearing, the entire record in this proceeding, and the proposed findings of fact submitted by Connections and Gomes, your Hearing Officer makes the following findings of fact, conclusions of law, and recommended order in this case FlNDIN SOF FACT I. Procedural Background I. This matter involves an application filed by Connections on July 25, 2012, for a special permit, pursuant to Section 205-6, Hawaii Revised Statutes("HRS")and Rule 6 of the County of Hawaii Planning Commission Rules of Practice and Procedure (hereinafter "Commission Rules")to allow the development of a charter school campus with dorm facilities and related improvements for students in kindergarten through twelfth grade(hereinafter,the "Development"), on 70.15 acres of land situated within the State Land Use Agricultural District, at Ponahawai, Kukuau 2nd, South Hilo, Hawaii, commonly referred to as the Kaumana area of Hilo,designated by State of Hawaii Tax Map Key("TMK")(3) 2-5-006-141 (hereinafter, the "Property")- 2. Connections has leased the Property on which the Development is proposed from the State of Hawaii under General Lease No. 5-6029. 3. Notices of the Windward Planning Commission of the County of Hawaii (hereinafter "Commission")hearings on the proposed Development were provided to property owners surrounding the proposed Development. 4. The Commission held public hearings on the Connections application on November 12,2012, December 6, 2012 and January 10,2103. At the hearing held on January 10,2013, the Commission voted to deny the Connections application and instructed the Commission staff to prepare proposed findings of fact, conclusions of law and order, which would be considered for adoption by the Commission at its meeting of March 7, 2013. 5. At the Commission meeting of March 7,2013, the Commission suspended the preparation of the findings of fact,conclusions of law and order, and granted a request by 2 Connections for a cowestcd case on tht. subject application. Gorses also submitted a petition til intervene in this matter on March 7, 2013, and the Commission admitted hint as a party to the proceeding. 6. A petition to intervene in this proceeding was filed by Terrence Yoshioka on November 4, 2013, after the contested case hearing in this proceeding had already commenced. On November 8, 2013, your Hearing Officer denied this petition in accordance with Rule 4-6 of the Commission Rules, on the ground that the subject petition was untimely filed. 7. The Director is a party to this proceeding pursuant to Rule 4-7(a) of the Commission Rules. The Director initially recommended approval of the Connections application,subject specific conditions, but took no position on the application at the contested case hearing. 8. The subject application involves a parcel of land greater than fifteen acres in area. Therefore, any permit approved by the Commission is subject to final approval by the State land Use Commission Ii. Proposed Development A. General Description 9. The Connections application proposes the development of a K to 12 charter school campus with dorm facilities,and an intergenerational program that would provide childcare and cider tate at a single facility on the Development, together with related uses on the 70-acre parcel of land. As the site is bisected by Edits Street, the lower portion of the Development would consist of the major school or campus facilities,while the upper portion would be used for outdoor type of educational programs, including a forestry preservation program. 10. The lower campus would support a projected 167 elementary students, t07 intermediate students, 107 high school students (38 l K through 12 students) and 25 intergenerational clients. Also included would be a dormitory capable of supporting 30 students, a gymnasium,kitchenldining facility, library/resource center, caretaker's residence and other related facilities. Two parking lots capable of supporting 140 parking stalls would be provided. 11. The Development would relocate and expand the existing charter school which is presently operating from two separate campuses. The elementary and middle schools are located in the Kress Building on Kamehameha Avenue, in downtown Hilo, and the high school is located 3 in leased facilities at the Nani Mau Gardens,just outside of[lilo town. 12. Connections proposes having 50 full-time and 17 part-time employees at full build- out of the Development, which is the same number presently employed for this charter school. 13. Connections anticipates that 50%of the student population will come from the Hilo area and 50% from the Puna area miles away from the Development. The present student population for this charter school is composed primarily of students from these two geographic areas. 19. The Development does not propose to establish a charier school on the Property to serve the needs of immediate vicinity in the Kaumana area of Hilo, although some students from the area may attend this school. 15. The Development is intended to be constructed in 9 phases and completed within 16 to 25 years. The first phase would include the caretaker's residence, high school and administration building, with the projected opening to be within 2,5 to 3.5 years. B. Public Utilities and Services Access/Traffic 16. Access to the Development is proposed from Edita Street which connects with Kaumana Drive,a major Hilo artery. Both roads are owned and maintained by the County of Hawaii. Edita Street has a 60-foot right-of-way width, with a 48-foot wide pavement width fronting the Development. The paved area accommodates two 20-foot wide travel lanes, a 20- foot wide shoulder on the northeast side of the road, and an 8-foot wide shoulder on the southwest side. Edita Street is in good condition; however, the Hawaii County Police Department recommended that the unpaved shoulder along Edita Street extending from Kaumana Drive to the Development should be paved so that pedestrians could safely walk along the shoulder. 17. A Traffic Impact Analysis Report("TIAR") dated June 28,2010, was prepared in conjunction with the Connections application for the purpose of evaluating the Development's impact at the Development's entrance at Edita Street and at the Edita and Kaumana drive intersection. Based upon traffic counts taken on May 28, 2009,the TIAR found that the current level of service or LOS operates as LOS "A"or"B",meaning that the traffic servicc is 4 uncongesiud The TIAR also cc) cfudcd that upon full build-ow of the Development, the LOS will continue to operate at levels"A" car'13" Although the TIAR concludes that traffic will not be adversely affected by reason of the Development, the County Department of Public Works recommended that a separate left turn lane onto the Development from Edita Street should be constructed to alleviate congestion, and that Connections should prepare a comprehensive traffic management plan for the Development. 18. Notwithstanding the findings of the TIAR and the recommendations of the Police Department and Department of Public Works,the area residents uniformly expressed concerns about the adverse traffic impact of the Development along Edita Street and Kaumana Drive. Also, residents objected that the TIAR was four years old and the traffic counts contained in the TIAR were taken when certain schools were not in session. Water 19. A maximum of 4,200 gallons per day(hereinafter"gpd") of water or seven (7) water units from an existing 8-inch waterline on Kaumana Drive for the upper campus and from an existing 8-inch waterline on Edita Street for the lower campus, is available from the County of Hawaii municipal water system to service the entire Development. Based on a 60 gpd per student standard,4,200 gallons of County water could only support 70 students. At full build-out the entire Development would require 26,100 gpd. 20. Notwithstanding the unavailability of potable water from the County system for the Development, the existing 8-inch waterline within Edita street is adequate to provide the required 2,000 gallons of water per minute for fire protection of the proposed Development. 21. The available water from the County of Hawaii municipal water system is insufficient to support the first phase of the Development. 22. Connections has proposed using water efficient fixtures and supplementing the available County water with either a catchment system for non-potable water or developing an additional water source. However, Connections has not produced any evidence to demonstrate that it has or can develop sufficient water for the Development. Wastewater 23. Connections is proposing to provide its own wastewater system meeting the 5 requirements of the State of Hawaii Department of Hcalth (hereinafter "DUH' ) Connections prefers installing an ecologicallbiological wastewater system cal led the"Living Machine". However, should such a system prove to be unfeasible, Connections would install a traditional septic system with leach fields or any other system required by DOH. Drainage 24. The Property is located within Zone "X" on the U.S. Department of Army Corps of Engineers Flood Insurance Rate Map, which means that the Property is outside the 500-year flood plain. Notwithstanding this flood designation,during severe storms water has been known to overtop the concrete channel and flow across Edita Street, resulting in flooding of adjacent properties. Connections proposes to prepare detailed engineering studies for the purpose of developing appropriate drainage plans to address the potential flood hazard posed by the present condition of Edita Street. Utilities 25. Electrical and telephone services are available to the Property through overhead lines along l:dita Street and Kaumana Drive. Public Safety 26. The Hawaii County Police Department expressed concern that the Development would increase noise,crime and traffic. I iowever, there was no evidence that the Police Department lacks the ability to provide police protection for the Development. Ill. PHYSICAL CHARACTERISTICS OF TLJE PROPERTY AND SURROUNDING AREAS 27. The Property is presently vacant and undeveloped. 28. Surrounding lands to the south and west of the Property are zoned A-1 a, with properties further south being zoned A-20a and-10A. Lands to the north of the Property are zoned RS-10 and RS-15, with some lands zoned A-3a further north across Kaumana Drive. One parcel is also zoned Open adjoining the northeast corner of the lower portion of the Property. Surrounding uses consist mainly of single-family residences with some vacant lands, and a small percentage of agricultural activity. 29. The soils on the Property are primarily composed of pahoehoe lava flow. The State 6 Department of Agriculture's map showing agricultural lands of importance to the State al-Hawacl shows the Property as being unclassified. Also, the Land Study Bureau classifies the soil on the Property under its detailed land classification system,as"D"or`'Poor" for agricultural activity. 30. No archaeological sites have been found on the Property, and its is surmised that any pre-existing sites would have been destroyed by the lava flow of 1880-1881. Although Connections submitted a request to the State Historic Preservation Division ("SHPD"), by letter dated August 17, 2010, requesting a"no-effect"determination from that agency, SHPD has not. responded to the request. 31. A portion of the Kaurnana Cave is accessible from the upper portion of the Property. Connections is proposing to refrain from constructing any major school facilities on the upper portion of the Property and to maintain a minimum 104-foot buffer on either side of the cave alignment to alleviate concerns about impact from the Development on the cave ecosystem. 32. A botanical survey of the Property identified 1 i native plant species, but none of those species are considered protected species. 33. Invertebrate, mammalian and field surveys were conducted on the Property. No protected species were documented to be present on the Property. 34. No traditional or customary native Hawaiian rights have been identified as being exercised on the Property. Likewise, there is no known public access to the mountains or [he shoreline that runs through the Property. IV. STATE AND COUNTY PLANS 35. The Property is within the State Land Use Agricultural District. A school is not a permitted use within the Agricultural district; however, a school may be permitted in this district if a special permit is obtained for such use pursuant to Section 205-6, HRS and Rule 6 of the Commission Rules. 36, The County of Hawaii General Plan Land Use Pattern Allocation Guide ("LUPAG") Map designates the Property for low density urban uses. The LUPAG designation of Low Density urban use, allows for residential uses, with ancillary community and public uses, and neighborhood and convenience-type commercial uses. The Development is not proposed to be a community or public use for the Kaumana area of Hilo. 7 37. The County of Hawaii zoning for the Property is Agricultural with a minium lot size of one-acres (A-]a). Under Section 25-5-72(d) of the Hawaii County Code, a school is permitted in an Agricultural zoned district provided that a special permit is issued for the use if the land is within the State band Use Agricultural District. 38. The Development, which is proposed to be located on State land, is subject to the Hawaii State Environmental Impact Statement law, Chapter 343, HRS. Connections prepared an environment assessment in accordance with Chapter 343, and declaration with a finding of no significant impact was issued for the Development by the State of Hawaii Department of Eland and Natural Resources, 39_ The Property is not situated within the Special Management Area("SMA"), since it is located over three miles From the nearest shoreline. Thus, the coastal environmental considerations relating to the SMA are not applicable to the subject Property. V. SPECIAL PERMIT REQUIREMENTS 44. HRS Section 205-6, which governs special permits, provides in pertinent as follows: "(a) The county planning commission may permit certain unusual and reasonable uses within agricultural . . . districts other than those for which the district is classifted. Any person who desires to use the person's land within an agricultural . . .district other than for an agricultural . . .use. . .may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired. . "(c)The county planning commission may, under such protective restrictions as may be necessary,permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter... "(d)Special permits for land the area of which is greater than fifteen acres. _ . shall be subject to approval by the land use commission. The land use commission may impose additional restrictions as may be necessary or appropriate in granting the approval including the adherence to representations made by the applicant." 41. Planning Commission Rule 6-7, provides, in pertinent part, that "[t]he Commission shall not approve a Special Permit unless it is 8 found that the proposed use "(a) Is an unusual and reasonable use of land situated within the Agricultural. . .District. . .; and "(b) Would promote the effectiveness and objectives of Chapter 205, Hawaii Revised Statutes, as amended. "The Commission shall also consider the criteria listed under Section 6.3(b)(5)(A) through (G)." 42. The seven criteria under Planning Commission Rule 6.3(b)(5)(A) through (G) are: "(A) Such use shall not be contrary tcMhe objectives sought to be accomplished by the Land Use Law and Regulations; "(B) The desired use shall not adversely affect surrounding properties; "(C) Such use shall not unreasonably burden public agencies to provide roads and streets,sewers, water, drainage, school improvements, and police and fire protection; "(D) Unusual conditions, trends and needs have arisen since the district boundaries and regulations were established; "(E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district; "(F) The proposed use will not substantially alter or change the essential character of the land and the present use; and "(G) The request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design plans." 43. Although Gomes asserts that the criteria for a use permit should be considered in the subject application, that criteria is not relevant to a special permit determination. Vi. APPLICATION OF SPECIAL PERMIT CRITERIA TO THE DEVELOPMENT" A. Land Use Law Obiectives 44. The purpose of the State Land Use Law is to preserve the lands of high agricultural 9 potential for agricultural use The Property consists of land that is not considered highly valuabtc for agricultural uses. "Thus, the use of the Property for a school is not contrary to the objectives sought to be accomplished by the State Land Use Law. 45. Likewise, the Development, which proposes the construction of a school for 381 students and related facilities is not akin to a major recreational theme park attracting 1.5 million people each year to the area. Therefore, such a development would not frustrate the objectives and effectiveness of the Hawaii's land use scheme and would not require a State land use boundary amendment in lieu of a special permit. Neighborhood Board No. 24 vs. State Land Use Commission,64 Haw. 265,272, 639, P.2d 1097, 1103 (1982). B. Affect on Surrounding Properties 46. Based upon the testimony from surrounding and neighboring property owners, the Development will have an adverse effect on surrounding properties by creating noise, traffic, and impacting the quality of life of the adjoining residents. 47. Measures proposcd by Connections, regarding the establishment of building setbacks and roadway improvements to Edita Street do not appear to be sufficient to mitigate the overwhelming concerns raised by surrounding property owners. C. Burden on Public Agencies to Provide Services 48. There is insufficient water available from the County system to service the Development. Therefore, to allow the Development would unreasonably burden the Department of Water Supply to provide water for its facilities. 49. There is no evidence that Connections has the ability to develop a potable water source as a mitigating measure, previously proposed by the Director. 50_ A mitigating measure previously proposed by the Director of limiting the number of students to the amount of potable water available to the project is not reasonable because Connections is proposing to construct a highschool for 107 students its first phase, when the potable water available would only allow for 70 students. 51. As such, the proposed use may unreasonably burden the County Department of Water Supply to provide water to the Development. 10 D Unusual Conditions_ Trends and Needs 52. Unusual conditions and needs have arisen since the establishment of this land use district in the 1970s, because the area in which the Property is locatcd has essentially bccome residential in character. Also, the County General Plan LUPAG map recognizes this trend by designating the area for low density urban use. However, there was no evidence presented to demonstrate that location of a school that is not intended to specifically service the needs of the immediate community is such an unusual condition, trend or need that justifies location of the Development at this location. E. Suitability of Land for Agricultural Uses 53. The Land Study Bureau soil classification rating for the Property is "D" or"Poor", which suggests that the land may be unsuited for agricultural uses. 54. Connections is proposing to maintain the upper portion or nearly one-half of the Property for forestry use. In addition, Connections is proposing to construct greenhouses on the Property and conduct an agricultural program in conjunction with its curriculum. 55. Based upon the representations of Connections, it cannot be found that the Property is unsuited for agricultural uses. F. Alteration or Change of the Essential Character of the Land and Present Use 56_ The Property is presently a forest and is vacant of any structures. The (ower half of the Property will be converted into a school with classrooms, dormitories,a gymnasium cafeteria and parking lots. 57. The Development of a school will change the cssential character of the forested land and its undeveloped use. G. Consistency with the General Plan 58. The County General Plan LUPAG map designates the Property for low density urban use. "Low density uses" under the General Plan include residential, with ancillary community and public uses, and neighborhood and convenience-type commercial uses. 59. The Development, which proposes a charter school that is not specifically intended to service the immediate community surrounding the school, is not consistent with the uses permitted in areas of low density urban use. Il 60. The Economic, Public facilities and Land Use element; of the County General Plan ail require consideration of social and community concerns as follows' Economic Element - Goal "Provide an economic environment that allows new, expanded, or improved economic opportunities that are compatible with the County's cultural, natural and social environment." Public Facilities Element - Goal "Encourage the Provision of public facilities that effectively service the community and visitor needs and seek ways of improving public service through better and more functional facilities in keeping with the environmental and aesthetic concerns of the community." Land Use Element- Policy "Encourage the development and maintenance of communities meeting the needs of its residents in balance with the physical and social environments." 61. The evidence has established significant concerns from the community regarding the compatibility of the Development with the surrounding community. fit. Although the County General Plan Public Facilities-Education course of action for South Hilo encourages the establishment of additional schools as the need arises, the proposed Development, at the subject location, is contrary to the General Plan. VIL UNUSUAL AND REASONABLE USE OF LAND 63, The construction of a school on the Property is an unusual use of the land because a school is not a permitted use in the State Land Use Agricultural District, However, the evidence presented does not demonstrate that the Development is a reasonable use of the Property. Specifically, Connections has not demonstrated how this school can be built without sufficient potable water resources. Nor, has Connections demonstrated how the development of a regional charter school on the Property that does not specifically service the needs of the immediate community and that is overwhelmingly objected to by the immediate community is a reasonable site for this facility. In addition, Connections has not demonstzatcd that the Development meets 12 most of the criteria to be considered by the Commission in the subject application. CONCLUSIONS OF LAW Based upon the foregoing Findings of Fact,the your Hearing Officer makes the following Conclusions of Law: I. To the extent that any of the Findings of Fact constitute Conclusions of Law, or Conclusions of Law constitute Findings of Fact, they shall be considered and construed as such. 2. The Commission has jurisdiction over the subject special permit application, including the ability to deny or recommend its approval to the State Land Use Commission, pursuant to Section 205-6, HRS and Rule 6 of the Commission Rules. 3. Connections had the burden of proof on this matter before the Commission, including the burden of producing evidence as well as the burden of persuasion, by a preponderance of evidence, to demonstrate how its request is consistent with the guidelines for a special permit as outlined by Section 205-6, HRS and Rule 6 of the Commission Rules. Connections has failed to meet this burden. 4. The Development does not adequately meet the requirements or guidelines for a special permit as required by Section 205-6, HRS and Rule 6 of the Commission Rules. 5. The Development is not consistent with the County General Plan, particularly as to the impacts on the immediate community. HEARING OFFICER'S RECOMMENDATION Based upon the preceding Findings of Fact and Conclusions of Law,your Hearing Officer recommends to the Windward Planning Commission of the County of Hawaii that Special Permit Application SPP No. 12-000138 of Connections New Century Public Charter School and Community Based Education Support Servi es be denied. DATED: Hilo, Hawaii, 7, 94 I SANDRA C ER 0NZ Hearing Officer 13 BEFORF, THE. PLANKING COMMISSION COUNTY OF HAWAII In the Matter of ) SPP No. 12-000138 } CONNECTIONS NEW CENTURY PUBLIC ) CERTIFICATE OF SERVICE CHARTER SCHOOL and COMMUNITY ) BASED EDUCATION SUPPORT ) SERVICES ) Application for Special Permit Application ) No. 12-000138 } TMK: (30 2-5-006-141; Kaumana, South } Filo, Hawaii } } CERTIFICATE OF SERVICE I hereby certify that on this date,a copy of the foregoing was duly served upon the following parties by depositing the same in the U. S, mail, postage prepaid, and by e-mailing a copy, addressed to: Ted H.,S. Hong, Esq. (ted u tedhonglaw.com) P. O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant Community Based Education Support Services Carter K. Siu, Esq. (Carter.K.Siu@hawaii.g_ovv) Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Attorney for Applicant Connections New Century Charter School Array G. Self, Esq. (aselftaco.hawaii.hi.us) Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for County of Hawaii Planning Director Jeffrey K. Gomes (k3lanigom.esna hawaiiante 1.net) 281 Edna Sireet Hilo, Hawaii 96720 Intervenor pro se Daryn Arai darai co.hawaii.hi.us) Jeffrey Darrow(idarrow 7,co.hawaii.hi.us) County of Hawaii Planning Department 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720 Windward Plannin Commission Staff DATED: Hilo, Hawaii, l / z SANDRA PECHTER SONG Hearing Officer 2 County of Hawaii Planning Commission 101 Pauahi Street, Suite 3 Hilo, Hawai'i 96720-4224 Telephone: (808)961-8288 Facsimile: (808) 961-8742 BEFORE THE COUNTY OF HAWAII PLANNING COMMISSION In the Matter of SPP No. 12-000138 CONNECTIONS NEW CENTURY PUBLIC COUNTY OF HAWAI'l WINDWARD CHARTER SCHOOL AND COMMUNITY PLANNING COMMISSION'S BASED EDUCATION SUPPORT FINDINGS OF FACT,CONCLUSIONS OF SERVICES LAW AND DECISION AND ORDER; � CERTIFICATE OF SERVICE Application for Special Permit Application No. 12-000138 Argument and Decision: Date: 511114 TMK: (3)2-5-006-141; Ka6mana, South Location: Aupuni Center, Hilo, Hawaii Hila, Hawaii COUNTY OF HAWAII WINDWARD PLANNING COMMISSION'S FINDINGS OF FACT,CONCLUSIONS OF LAW AND DECISION AND ORDER The County of Hawai'i, Planning Commission submits its Findings of Fact, Conclusions of Law and Decision and Order pursuant to the request of the Windward Planning Commission of the County of Hawai'i at its May I,2014, meeting in Hilo,Hawaii. Present before the Commission were Ted H. S. Hong, counsel for Applicant Community Based Education Support Services;Carter K. Siu, Deputy Attorney General, for Applicant Connections New Century Public Charter School (hereinaller collectively referred to herein as "Connections"); Amy G. Self, Deputy Corporation Counsel, for County of Hawai'i Planning Director(herein as "Director");Jeffery K. Gomes (herein as "Gomes"), Intervenor, Pro Se; and Sandra Pechter Song, the Hearing Officer(herein as "Hearing Officer"). The contested case hearings by the I EXHIBIT "I" Hearing Officer were held on October 21, and 22, 2013, November 12, 2013, January S and 22, 2014. FINDINGS OF FACT 1. Procedural Background i. This matter involves an application filed by Connections on July 25, 2012, for a special permit,pursuant to Section 205-6, Hawaii Revised Statutes ("HRS") and Rule 6 of the County of Hawaii Planning Commission Rules of Practice and Procedure(hereinafter "Commission Rules") to allow the development of a charter school campus with dorm facilities and related improvements for students in kindergarten through twelfth grade (hereinafter, the "Development"), on 70.15 acres of land situated within the State Land Use Agricultural District, at Ponahawai, Kukuau 2nd, South Hilo, Hawaii, commonly referred to as the Kaumana area of Hilo, designated by State of Hawaii Tax Map Key("TMK") (3) 2-5-006:141 (hereinafter, the "Property"). 2. Connections has leased the Property on which the Development is proposed from the State of Hawai'i under General Lease No. S-6029, 3. Notices of the Windward Planning Commission of the County of Hawaii (hereinafter "Commission") hearings on the proposed Development were provided to property owners surrounding the proposed Development_ 4. The Commission held public hearings on the Connections application on November 9,2012 (sic),December 6, 2012 and January 10, 2013. At the bearing held on January 10, 2013,the Commission moved [sic] to deny the Connections application and instructed the Commission staff to prepare proposed findings of fact, conclusions of law and order, which would be considered for adoption by the Commission at its mceting of March 7, 2013. 5. At the Commission meeting of March 7,2013, the Commission suspended the preparation of the findings of fact,conclusions of law and order, and granted a request by Connections for a contested case on the subject application. Gomes submitted a petition to intervene in this matter on March 7, 2013, and the Commission admitted him as a party to the proceeding. 6. A pelition to intervene in this proceeding was tiled by Terrence Yoshioka on November 4, 2013, after the contested case hearing in this proceeding had already commenced, On November 8, 2013, the Hearing Officer denied this petition in accordance with Rule 4-6 of the Commission Rules, on the ground that the subject petition was untimely filed. 7. The Director is a party to this proceeding pursuant to Rule 4-7(a)of the Commission Rules. The Director initially recommended approval of the Connections application, subject to specific conditions, but took no position on the application at the contested case hearing_ 8. The subject application involves a parcel of land greater than fifteen acres in area. Therefore, any permit approved by the Commission is subject to final approval by the State Land Use Commission. 11. Proposed Dcvclo ment A. General Description 4. The Connections application proposes the development of a K to 12 charter school campus with dorm facilities,and an intergenerational program that would provide childcare and elder care at a single facility on the Development, together with related uses on the 70-acre parcel of land. As the site is bisected by Edita Street, the lower portion of the Development would consist of the major school or campus facilities, while the upper portion would be used for outdoor type of educational programs, including a forestry preservation program. ld. The lower campus would support a projected 167 elementary students, 107 intermediate students, 107 high school students(381 K through 12 students)and 25 intergenerational clients. Also included would be a dormitory capable of supporting 30 students, a gymnasium, kitchen/dining facility, library/resource center, caretaker's residence and other related facilities. Two parking lots capable of supporting 140 parking stalls would be provided. 1. The Development would relocate and expand the existing charter school which is presently operating from two separate campuses. The elementary and middle schools are located in the Kress Building on Kamehameha Avenue, in downtown Hilo, and the high school is located in leased facilities at the Nani Mau Gardens,just outside of Hilo town. 12. Connections proposes having 50 full-time and 17 part-time employees at full build- out of the Development, which is the same number presently employed for this charter school. 3 13 Connections anticipates that 50% of the student population will come from the Hilo area and 50% from the Puna area miles away from the Development. The present student population for this charter school is composed primarily of students from these two geographic areas. 14. The Development does not propose to establish a charter school on the Property to scree the needs of the immediate vicinity in the Kaumana area of Hilo, although some students from the area may attend this school. 15. The Development is intended to be constructed in 9 phases and completed within 16 to 25 years. The first phase would include the caretaker's residence, high school and administration building, with the projected opening to be within 2.5 to 3.5 years. B. Public Utilities and Services AccessfTraffic 16. Access to the Development is proposed from Edita Street which connects with Kaumana Drive, a major Hilo artery, Both roads are owned and maintained by the County of Hawaii. Edita Street has a 60-foot right-of-way width, with a 48-foot wide pavement width fronting the Development- The paved area accommodates two 20-foot wide travel lanes, a 20-foot wide shoulder on the northeast side of the road, and an 8-foot wide shoulder on the southwest side. Edita Strcet is in good condition; however, the Hawaii County Police Department recommended that the unpaved shoulder along Editor Street extending from Kaumana Drive to the Development should be paved so that pedestrians could safely walk along the shoulder_ 17. A Traffic Impact Analysis Report("TIAR")dated June 28, 2010, was prepared in conjunction with the Connections application for the purpose of evaluating the Development's impact at the Development's entrance at Edita Street and at the Edita and Kaumana Drive intersection. Based upon traffic counts taken on May 28,2009, the TIAR found that the current level of service or LOS operates as LOS "A" or"B", meaning that the traffic service is uncongested. The TIAR also concluded that upon full build-out of the Development, the LOS will continue to operate at levels "A"or"B". Although the TIAR concludes that traffic will not be adversely affected by reason of the Development, the County Department of Public Works 4 recommended that a separate left turn lane onto the Development from Edita Street should he constructed to alleviate congestion, and that Connections should prepare a comprehensive traffic management plan for the Development- ]8. evelopment_18. Notwithstanding the findings of the TIAR and the recommendations of the Police Department and Department of Public Works, the area residents uniformly expressed concerns about the adverse traffic impact of the Development along Edita Street and Kaumana Drive. Also, residents objected that the TZAR was four years old and the traffic counts contained in the TIAR were taken when certain schools were not in session. Water 19. A maximum of 4,200 gallons per day(hereinaftergpd-) of water or seven (7) water units from an cxisting 8-inch waterline on Kaumana Drive for the upper campus and from an existing 8-inch waterline on Edita Street for the lower campus, is available from the County of Hawaii municipal water system to service the entire Development. Based on a 60 gpd per student standard, 4,200 gallons of County water could only support 70 students. At full build-out the entire Development would require 26,100 gpd. 20. Notwithstanding the unavailability of potable water from the County system for the Development, the existing 8-inch waterline within Edita Street is adequate to provide the required 2,000 gallons of water per minute for fire protection of the proposed Development. 2l. The available water from the County of Hawaii municipal water system is insufficient to support the first phase of the Development. 22. Connections has proposed using water efficient fixtures and supplementing the available County water with either a catchment system for non-potable water or developing an additional water source. However, Connections has not produced any evidence to demonstratc that it has or can develop sufficient water for the Development. Wastewater 23. Connections is proposing to provide its own wastewater system meeting the requirements of the State of Hawaii Department of Health(hereinafter"DOH"). Connections prefers installing an ecologicallbiologieal wastewater system called the"Living Machine." 5 However, should such a system prove to be unfeasible, Connections would install a traditional septic system with leach fields or any other system required by DOH. Drainage 24. The Property is located within Zone "X"on the U.S. Department of Army Corps of Engineers Flood Insurance Rate Map, which means that the Property is outside the 500-yeas flood plain. Notwithstanding this flood designation, during severe storms water has been known to overtop the concrete channel and flow across Edita Street, resulting in flooding of adjacent properties. Connections proposes to prepare detailed engineering studies for the purpose of developing appropriate drainage plans to address the potential flood hazard posed by the present condition of Edita Street. Utilities 25. Electrical and telephone services are available to the Property through overhead lines along Edita Street and Kaurnana Drive. Public Safety 26_ The Hawaii County Police Department expressed concem that the Development would increase noise, crime and traffic. However, there was no evidence that the Police Department lacks the ability to provide police protection for the Development. Ill. PHYSICAL CHARACTERISTICS OF THE PROPERTY AND SURROUNDING AREAS 27. The Property is presently vacant and undeveloped. 28. Surrounding lands to the south and west of the Property are zoned A-I a, with properties further south being zoned A-20a and A-10a[sic}. Lands to the north of the Property are zoned RS-10 and RS-15, with some lands zoned A-3a further north across KaOrnana Drive_ One parcel is also zoned Open adjoining the northeast corner of the lower portion of the Property. Surrounding uses consist mainly of single-family residences with some vacant lands, and a small percentage of agricultural activity. 29. The soils on the Property are primarily composed of pahoehoe lava flow. The State Department of Agriculture's map showing agricultural lands of importance to the State of Hawaii shows the Property as being unclassified. Also, the Land Study Bureau classifies the 6 soil on the Property under its detailed land classification system, as "D"or"Poor" for agricultural activity. 30. No archaeological sites have been found on the Property, and it is surmised that any pre-existing sites would have been destroyed by the lava flow of 1881-1881. Although Connections submitted a request to the State Historic Preservation Division ("SHPD"), by letter dated August 17, 2010, requesting a "no-effect"determination from that agency, SHPD has not responded to the request. 31. A portion of the Kaumana Cave is accessible from the upper portion of the Property_ Connections is proposing to refrain from constructing any major school facilities on the upper portion of the Property and to maintain a minimum 100-foot buffer on either side of the cave alignment to alleviate concerns about impact from the Development on the cave ecosystem. 32. A botanical survey of the Property identified 1 I native plant species, but none of those species arc considered protected species. 33. Invertebrate, mammalian and field surveys were conducted on the Property. No protected species were documented to be present on the Property. 34. No traditional or customary native Hawaiian rights have been identified as being exercised on the Property. Likewise, there is no known public access to the mountains or the shoreline that runs through the Property. IV. STATE AND COUNTY PLANS 35. The Property is within the State Land Use Agricultural District. A school is not a permitted use within the Agricultural district; however, a school may be permitted in this district if a special permit is obtained for such use pursuant to Section 205-6, HRS and Rule 6 of the Commission Rules. 36. The County of Hawaii General Plan Land Use Pattern Allocation Guide("LUPAG") Map designates the Property for low density urban uses. The LUPAG designation of Low Density urban use, allows for residential uses, with ancillary community and public uses, and neighborhood and convenience-type commercial uses. The Development is not proposed to be a community or public use for the Kaurnana area of Hilo. 7 37 The County of Hawaii zoning for the Property is Agricultural with a minimum} iot size of one acre(A-1 a). Under Section 25-5-72(d)of the Hawaii County Code, a school is permitted in an Agricultural zoned district provided that a special permit is issued for the use if the land is within the State Land Use Agricultural District_ 38 The Development, which is proposed to be located on Stale land, is subject to the Hawaii State Environmental Impact Statement law, Chapter 343, HRS. Connections prepared an environment assessment in accordance with Chapter 343, and declaration with a finding of no significant impact was issued for the Development by the State of Hawaii Department of Land and Natural Resources 39. The Properly is not situated within the Special Management Area("SMA"), since it is located over three miles from the nearest shoreline. Thus,the coastal environmental considerations relating to the SMA are not applicable to the subject Property. V. SPECIAL PERMIT REOU[REMENTS 40, HRS Section 205-6,which governs special permits, provides in pertinent as follows: "(a) The county planning commission may permit certain unusual and reasonable uses within ag'cultural . . . districts other than those for which the district is classified- Any person who desires to use the person's land within an agricultural . . .district other than for an agricultural . . .use. . .may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired. "(c)The county planning commission may, under such protective restrictions as may be necessary, permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter... "(d) Special permits for land the area of which is greater than fzfleen acres. . . shall be subject to approval by the land use commission. The land use commission may impose additional restrictions as may be necessary or appropriate in granting the approval including the adherence to representations made by the applicant." 8 41. Planning Commission Rule 6-7, provides, in pertinent part, that: "It]he Commission shall not approve a Special Permit unless it is found that the proposed use "(a) Is an unusual and reasonable use of land situated within the Agricultural. . .District. . ., and "(b) Would promote the effectiveness and objectives of Chapter 205, Hawaii Revised Statutes, as amended. "The Commission shall also consider the criteria listed under Section 6.3(b)(5)(A) through (G)." 42. The seven criteria under Planning Commission Rule 6.3(b)(5)(A) through(G) are: "(A) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations; "(B) The desired use shall not adversely affect surrounding properties; "(C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers, water,drainage, school improvements, and police and fire protection; "(D) Unusual conditions, trends and needs have arisen since the district boundaries and regulations were established; "(h) The land upon which the proposed use is sought is unsuited for the uses permitted within the district; "(F) The proposed use will not substantially alter or change the essential character of the land and the present use; and "(G) The request will not be contrary to the General Plan and ofcial Community Development Plan and other documents such as Design plans." 43. Although Gomes asserts that the criteria for a use permit should be considered in the subject application, that criteria is not relevant to a special permit determination. 9 VI APPLICATION OF SPECIAL PERMIT CRITERIA 'FO THE DEVELOPMENT A. Land Use Law Obiectives 44. The purpose of the State Land Use Law is to preserve the lands of high agricultural potential for agricultural use. The Property consists of land that is not considered highly valuable for agricultural uses. Thus, the use of the Property for a school is not contrary to the objectives sought to be accomplished by the State Land Use Law. 45. Likewise, the Development, which proposes the construction of a school for 381. students and related facilities is not akin to a major recreational theme park attracting 1.5 million people each year to the area. Therefore,such a development would not frustrate the objectives and effectiveness of the Hawai`i's land use scheme and would not require a State land use boundary amendment in lieu of a special permit. !Neighborhood Board No. 24 vs. Scare Land Use Commission, 64 Haw. 265, 272,639, P.2d 1097, 1 103 (1982). B. Affcct on Surrounding Properties 46. Based upon the testimony from surrounding and neighboring property owners, the Development will have an adverse effect on surrounding properties by creating noise, traffic, and impacting the quality of life of the adjoining residents. 47. Measures proposed by Connections, regarding the establishment of building setbacks and roadway improvements to Edita Street do not appear to be sufficient to mitigate the overwhelming concerns raised by surrounding property owners. C. Burden on Public Agencies to Provide Services 48, There is insufficient water available from the County system to service the Development. Therefore, to allow the Development would unreasonably burden the Department of Water Supply to provide water for its facilities. 49. There is no evidence that Connections has the ability to develop a potable water source as a mitigating measure,previously proposed by the Director. 50. A mitigating measure previously proposed by the Director of limiting the number of students to the amount of potable water available to the project is not reasonable because Connections is proposing to construct a high school for 107 students its first phase, when the potable water available would only allow for 70 students. 10 51. As such, the proposed use may unreasonably burden the County Department of Water Supply to provide water to the Development. D. Unusual Conditions,Trends and Needs 52. Unusual conditions and needs have arisen since the establishment of this land use district in the 1970s, because the area in which the Property is located has essentially become residential in character. Also, the County General Plan LUPAG map recognizes this trend by designating the area for low density urban use. However, there was no evidence presented to demonstrate that location of a school that is not intended to specifically service the needs of the immediate community is such an unusual condition, trend or need that justifies location of the Development at this location. E. Suitability of Land for Agricultural Uses 53, The Land Study Bureau soil classification rating for the Property is "D" or"Poor," which suggests that the land may be unsuited for agricultural uses. 54. Connections is proposing to maintain the upper portion or nearly one-half of the Property for forestry use. In addition, Connections is proposing to construct greenhouscs on the Property and conduct an agricultural program in conjunction with its curriculum. 55. Based upon the representations of Connections, it cannot be found that the Property is unsuited for agricultural uses. F. Alteration or Change of the Essential Character of the Land and Present Use 56. The Property is presently a forest and is vacant of any structures. The lower half of the Property will be converted into a school with classrooms, dormitories, a gymnasium cafeteria and parking lots_ 57. The Development of a school will change the essential character of the forested land and its undeveloped use. G. Consistency with the General Plan 58, The County General Plan LUPAG map designates the Property for low density urban use. "Low density uses" under the General Plan include residential, with ancillary community and public uses, and neighborhood and convenience-type commercial uses. I1 54. 'rhe Development, which proposes a charter school that is not specifically intended to service the immediate community surrounding the school, is not consistent with the uses permitted in arcas of low density urban use. 60. The Economic, Public Facilities and Land Use elements of the County General Plan all rcquire considcration of social and community conccros as follows: Economic Element - Goal "Provide an economic environment that allows ncw, cxpanded, or improved economic opportunities that are compatible with the County's cultural, natural and social environment_" Public Facilities Element- Goal "Encourage the Provision of public facilities that effectively service the community and visitor needs and seek ways of improving public service through better and more functional facilities in keeping with the environmental and aesthetic concerns of the community." Land Use Element - Pohcy "Encourage the development and maintenance of communities meeting the needs of its residents in balance with the physical and social environments." 61. The evidence has established significant concerns from the community regarding the compatibility of the Development with the surrounding community. 62. Although the County General Plan Public Facilities-Education course of action for South Hilo encourages the establishment of additional schools as the need arises, the proposed Developments at the subject location, is contrary to the General Plan. VII. UNUSUAL AND REASONABLE USE OF LAND 63. The construction of a school on the Property is an unusual use of the land because a school is not a permitted use in the State Land Use Agricultural District. However, the evidence presented does not demonstrate that the Development is a reasonable use of the Property. Specifically, Connections has not demonstrated how this school can be built without sufficient potable water resources. Nor, has Connections demonstrated how the development of a regional 12 charier school ou the Property that does not specifically service the needs of the immediate community and that is overwhelmingly objected to by the immediate community is a reasonable site for this facility. In addition, Connections has not demonstrated that the Development meets most of the criteria to be considered by the Commission in the subject application. CONCLUSIONS OF LAW Based upon the foregoing Findings of Fact, the Commission makes the following Conclusions of Law-, I. To the extent that any of the Findings of Fact constitute Conclusions of Law, or Conclusions of Law constitute Findings of Fact, they shall he considered and construed as such_ 2. The Commission has jurisdiction over the subject special permit application, including the ability to deny or recommend its approval to the State Land Use Commission, pursuant to Section 205-6, HRS and Rule 6 of the Commission Rules. 3. Connections had the burden of proof on this matter before the Commission, including the burden of producing evidence as well as the burden of persuasion, by a preponderance of evidence, to demonstrate how its request is consistent with the guidelines for a special permit as outlined by Section 205-6, HRS and Rule 6 of the Commission Rules. Connections has failed to meet this burden. 4. The Development does not adequately meet the requirements or guidelines for a special permit as required by Section 205-6, HRS and Rule 6 of the Commission Rules. 5. The Development is not consistent with the County General Plan, particularly as to the impacts on the immediate community_ ORDER Based upon the preceding Findings of Fact and Conclusions of Law, Special Permit Application SPP No. 12-000138 of Connections New Century Public Charter School and Community Based Education Support Services to develop a K to 12 charter school campus with 13 dorm Facilities and related uses on '10.15 acres situated within the State Land Use Agricultural District is hereby denied. Dated: Hilo, Hawaii, MAY 1 ` 2094 g Kms' 1�- Y RONALD GONZALES, Chairman Windward Planning Commission 14 BEFORE THE COUNTY OF HAWAI`J t L.AN�4tNG COMMISSION In the Matter of SPP No. 12-000138 CONNECTIONS NEW CENTURY PUBLIC CERTIFICATE OF SERVICE CHARTER SCHOOL AND COMMUNITY BASED EDUCATION SUPPORT SERVICES Application for Special Permit Application E No. 12-000138 9 TMK: (3)2-5-006-141; Kaumana, South Hilo, Hawaii CERTIFICATE OF SERVICE I hereby certify that on this date, a copy of the foregoing was duly served upon the following parties by depositing the same in the U. S, mail, postage prepaid, and by e-mailing a copy, addressed to: Ted H. S. Hong, Esq. (tedatedhongJaw.com) P. O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant Community Based Education Support Services Carter K. Siu, Esq. Carter.K.S iuphawaii.gov) Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant Connections New Century Charter School Amy G. Self, Esq. (aself_.co.hawaii.hi.us) Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for County of Hawaii Planning Director Mr. Jeffrey K Gomes (kalanigomes(a-)hawaiiantel.net) 281 Edita Streel Hilo, Hawai'i 96720 Intervenor pro se Mr. Duane Kanuha, Planning Director(plannin co.hawaii.hi.us) County of Hawai'i Planning Department 101 Pauahi Street, Suite 3 Hilo, Hawai'i 96720 Margaret Masunaga, Esq. (rnkrnasunagaQ)co.hawaii.hi.us) Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway Kailua-Kona, HI 96740 Attorney for County of Hawaii Planning Commission Dated: Hilo, Hawaii, MAY x S R NALD GO ZALE , Chairman Windward Planning Commission 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 RI SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) DECLARATION OF TED H. S. HONG vs. } WINDWARD PLANNING COMMISSION,} COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING, COUNTY OF HAWAII, ) Appellees, ) and ) } HEARING: SANDRA SONG, in her capacity as } DATE: August 19, 2014 Hearing Officer; JEFFREY GOMES, } TIME: 8:30 a.m. Intervenor; SIDNEY FUKE, Intervenor's ) JUDGE: The Hon. Ronald Ibarra Representative; TERENCE YOSHIOKA, } Intervenor's Representative, ) Intervenor-Appellees. ) DECLARATION OF TED H. S. HONG STATE OF HAWAII ) SS. COUNTY OF HAWAII ) I, TED H. S. HONG, declares as follows: 1. I am the counsel for Applicant-Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES 2. I make this Declaration based on my personal knowledge and am competent to testify about the matters contained in this Declaration. 3. Appellant, Community Based Education Support Services ("CBESS") is a co- applicant in Special Permit Application No. 12-000138 to develop a K to 12 Charter School Campus with Dorm Facilities, Intergenerational Programs, a sustainable Agricultural Program and a Forestry/Conservation Program and related uses on approximately 70 acres of land situated in the State Land use Agricultural District located on both the southwest and northeast sides of Edita Street near its intersection with Kaumana Drive, South Hilo, Hawaii and further identified by Tax Map Key (3)2-5-006:141 4. That attached hereto as Exhibit "1" is a true and accurate copy of the Hearing Officer for the Contested Case hearing for Special Permit Application No. 12-00138, Report dated April 7, 2014. 5. That attached hereto as Exhibit "2" is a true and accurate copy of Findings of Fact, Conclusions of Law and Decision and Order adopted by the Windward Planning Commission on May 1, 2014 and May 19, 2014, respectively. 6. I declare under penalty of perjury under the laws of the State of Hawaii, that the above is true and accurate. DATED: Hilo, Hawaii, August 11, 2014. ,2 ED H. S. HONG 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 RI SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) CERTIFICATE OF SERVICE vs. ) WINDWARD PLANNING COMMISSION,} COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING, COUNTY OF HAWAII, ) Appellees, ) and ) HEARING: SANDRA SONG, in her capacity as ) DATE: August 19, 2014 Hearing Officer; JEFFREY GOMES, } TIME: 8:30 a.m. Intervenor; SIDNEY FUKE, Intervenor's ) JUDGE: The Hon. Ronald lbarra Representative; TERENCE YOSHIOKA, ) Intervenor's Representative, ) Intervenor-Appellees. } CERTIFICATE OF SERVICE 1 hereby certify that the foregoing document was duly served via U.S. Mail, postage prepaid, on the date indicated below, to the following: MARGARET K. MASUNAGA, ESQ. Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni St., Ste, 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and APPELLEE SANDRA SONG AMY G. SELF, ESQ. Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni St., Ste, 325 Hilo, Hawaii 96720 Attorney for APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAII ALAN M. OKAMOTO, ESQ. 187 Kapiolani Street Hilo, HI 96720 Attorney for APPELLEES SIDNEY FUKE and TERENCE T. YOSHIOKA MICHAEL J. MATSUKAWA, ESQ. 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, HI 96740 Attorney for APPELLEE JEFFREY GOMES CARTER K. SIU, ESQ. Deputy Attorney General 235 S. Beretania Street, Rm. 304 Honolulu, HI 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL DATED: Hilo, Hawaii, August 11, 2014. 40H. S. HONG Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 r ti• '+ �r3'1 ILD CIP U!l U.,0UPT 0 TNF ThIP9 CTRL-U(T TED H. S. HONG 3569 STATE OF HAWAII Attorney at Law -201 AU3 I + PPS 1: + 5 P. O. Box 4217 Hilo, Hl 96720 Telephone No. 808.933.1919 Facsimile No. 808938.8281 CLERK 'S. tiLTAN0A ted@tedhonglaw.com Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 RI SUPPORT SERVICES } (Agency Appeal) Applicant-Appellant, ) APPELLANT COMMUNITY BASED } EDUCATION SUPPORT SERVICES' vs. } MEMORANDUM IN OPPOSITION TO } APPELLEE WINDWARD PLANNING WINDWARD PLANNING COMMISSION,) COMMISSION, COUNTY OF HAWAII, COUNTY OF HAWAII; DEPARTMENT } and INTERVENOR-APPELLEE SANDRA OF PLANNING, COUNTY OF HAWAII, } SONG'S MOTION TO DISMISS FILED } ON JULY 7, 2014; EXHIBITS "I," - "3," Appellees, ) DECLARATION OF TED H. S. HONG; CERTIFICATE OF SERVICE and ) HEARING: SANDRA SONG, in her capacity as ) DATE: August 19, 2014 Hearing Officer; JEFFREY GOMES, ) TIME: 8:30 a.m. Intervenor; SIDNEY FUKE, Intervenor's ) JUDGE: The Hon. Ronald Ibarra Representative; TERENCE YOSHIOKA, ) Intervenor's Representative, } Intervenor-Appellees. } APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' MEMORANDUM IN OPPOSITION TO APPELLEE WINDWARD PLANNING COMMISSION COUNTY OF HAWAII and INTERVENOR-APPELLEE SANDRA SONG'S MOTION TO DISMISS FILED ON JULY 7, 2014 COMES NOW Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES (hereinafter referred to as "CBESS"), by and through its undersigned counsel and hereby submits its Memorandum in Opposition to Appellee Windward Planning Commission, County of Hawaii, and Intervenor-Appellee Sandra Song's Motion to Dismiss Filed on July 7, 2014, as follows. 1. FACTS Appellant, Community Based Education Support Services ("CBESS") is a co-applicant in Special Permit Application No. 12-000138 to develop a K to 12 Charter School Campus with Dorm Facilities, Intergenerational Programs, a sustainable Agricultural Program and a Forestry/Conservation Program and related uses on approximately 70 acres of land situated in the State Land use Agricultural District located on both the southwest and northeast sides of Edita Street near its intersection with Kaumana Drive, South Hilo, Hawaii and further identified by Tax Map Key (3)2-5-006:141. See. Declaration of Ted H. S. Hong Appellee Sandra P. Song was the Hearing Officer for the Contested Case hearing for Special Permit Application No. 12-00138. Appellee Song presided over the Contested Case, developed and submitted a Hearing Officers Report (sem Exhibit "1," attached hereto) and her recommendations are reflected in the Findings of Fact, Conclusions of Law and Decision and Order adopted by the Windward Planning Commission on May 1, 2014 and May 19, 2014, respectively. See, Exhibit "2," attached hereto. Appellee Sandra P. Song, is not an employee of the County of Hawaii. See Exhibit"3." On or about June 6, 2014, CBESS filed its appeal from: (1)the Hearing Officer's Report dated April 7, 2014, attached hereto as Exhibit "1;" and, (2) County of Hawaii Windward 2 a Planning Commission's decision entered May 1, 2014 to uphold the Hearings Officer's report and recommendations to deny Special Permit Application(SPP 12-000138) to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5-006:141; and (3) the County of Hawai'i Windward Planning Commission's Findings of Fact, Conclusions of Law and Decision and Order, dated May 19, 2014, attached hereto as Exhibit "2." II. ARGUMENT A. Motion to Dismiss In considering the sufficiency of the complaint under Rule 12(b)(6), Hawaii Rules of Civil Procedure (hereinafter referred to as "HRCivP") the accepted rule is that well-pleaded allegations of fact are taken as admitted and the complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim which would entitle him to relief. Marsland v. Pang, 5 Haw.App. 463, 474, 701 P.2d 175, 185-186 (Hawaii App., 1985). In Buscher v. Boning, et al., 114 Hawai'i 202, 159 P.2d 814 (2007), the Hawaii State Supreme Court noted that: The court must accept plaintiffs allegations as true and view them in the light most favorable to the plaintiff; dismissal is proper only if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle him or her to relief' Dunlea v. Dappen, 83 Hawai`I 28, 32, 924 P.2d 196, 200 (1996), overruled on other grounds by Hac v. Univ. of Hawai`I, 102 Hawai`I 92, 105-06, 73 P.3d 46, 59-60 (2003) (citations omitted). However, ... a motion seeking dismissal of a complaint is transformed into a Hawaii Rules of Civil Procedure (HRCP) Rule 56 motion for summary judgment when the circuit court considers matters outside the pleadings. Au v. Au, 63 Haw. 210, 213, 626 P.2d 173, 176 (1981). Wong v. Cayetano, 111 Hawai`I 462, 476, 143 P.3d 1, 15 (2006). (Emphasis added) 3 e Buscher, supra, 114 Hawai'i at 212, 159 P.2d at 824; see also, Marsland v. Pang, 5 Haw.App. 463, 474, 701 P.2d 175, 186 (Hawaii App., 1985), "The motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted."; see also, Ravelo v. County of'Hawaii, 66 Haw. 194, at 199, 658 P.2d 883, at 886 (1983). B. Appellee Windward Planning Commission, County of Hawaii Cannot Legally Represent, and Appellee Sandra Song. Appellee Sandra Song is not a county employee and neither the Appellee Windward PIanning Commission, County of Hawaii (hereinafter referred to as "Commission") or the Office of the Corporation Counsel, County of Hawaii may assert any legal defenses on her behalf. In relevant part, the Hawaii County Charter, states: Section 6-5.3. Powers, Duties and Functions. The corporation counsel shall be the chief legal advisor and legal representative of all county agencies, the council and all officers and employees in matters related to their official powers and duties. The corporation counsel shall represent the county in all civil legal proceedings and shall perform all other services incident to the office as may be required by law. (Emphasis added) Hawaii County Charter,Article VI, Chapter V, Sec. 6-5.3, page 15 (2012). The Hawaii County Charter, XIII, Chapter V, Sec. 13-1, (2012), states in relevant part: Section 13-1. Definitions. As used in this charter: ( c) "Employee" means any person, except an officer, employed by the county or any agency thereof but the term shall not include an independent contractor. (d) "Officer" includes the following: (1) Mayor and members of the council. (2) Any person elected or appointed as administrative head of any agency of the county or appointed as a member of any board or commission provided for in this charter. (3) Any person appointed by a board or commission as the administrative head of any agency of the county. 4 i r 1 (4) Deputy, assistant or division chief appointed by the administrative head of any agency of the county. (5) Assistant or deputies of the corporation counsel and prosecuting attorney. Hawaii County Charter, Article XIII, Sec. 13-1, pages 50-51 (2012). Additionally, a government "employee" also includes- §76-11 Definitions. As used in this chapter, unless the context clearly requires otherwise: "Employee" or "public employee" means any person holding a position in the service of a jurisdiction, irrespective of status or type of appointment; provided that, if the context clearly applies only to an employee who is a member of the civil service, "employee" means a civil service employee. §89-2 Definitions. As used in this chapter: "Employee" or "public employee" means any person employed by a public employer, except elected and appointed officials and other employees who are excluded from coverage in section [89-6(f)J. * * * It is generally established that when interpreting a statute: A cardinal rule of statutory construction is that "legislative enactments are presumptively valid and should be interpreted in such a manner as to give them effect." Richardson v. City and County of Honolulu, 76 Hawaii 46, 54-5 5, 868 P.2d 1193, 1201-02 (citation, internal quotation marks, and brackets omitted), recon. denied, 76 Hawai'i 247, 871 P.2d 795 (1994). Hence, "[t]he starting point in statutory construction is to determine the legislative intent from the language of the statute itself." Bowers v. Alamo Rent-A-Car, Inc., 88 Hawai'i 274, 277, 965 P.2d 1274, 1277 (1998) (citations and internal quotation marks omitted) 5 As such, statutory language must be read in the context of the entire statute and be construed in a manner consistent with its purpose. Bowers, 88 Hawai'i at 277, 965 P.2d at 1277. Therefore, "a rational, sensible and practicable interpretation of a statute is preferred to one which is unreasonable or impracticable[,]" inasmuch as "[t]he legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction, and illogicality." Id. (citations, internal quotation marks, and brackets omitted); see also Sato, 79 Hawai'i at 23, 897 P.2d at 950 (explaining that, if a rational, sensible and practical interpretation is reasonably possible, "this court must presume that the legislature meant what it said and is further barred from rejecting otherwise unambiguous statutory language—absent some compelling evidence to the contrary, e.g, unmistakable support in the history and structure of the legislation"). (Emphasis added) Morgan, et al., v. Planning Department, County of Kauai, 104 Hawaii 173, 185, 86 P.3d 982, 994 (2004). The definition of an "employee" under the Hawaii County Charter, 2012, and under State law, does not include the Appellee Hearing Officer, Sandra Song. Moreover, under Chapter 89, HRS, takes precedence over the Hawaii County Charter's definition of an employee. See, §89- 19, HRS, "This chapter shall take precedence over all conflicting statutes concerning this subject matter and shall preempt all contrary local ordinances, executive orders, legislation, or rules adopted by the State, a county, or any department or agency thereof, including the departments of human resources development or of personnel services or the civil service commission." The Appellee Windward Planning Commission, County of Hawaii, may not represent or bring the present motion on behalf of Appellee Sandra Song. Appellee Sandra Song, is an "independent contractor"hired by the County of Hawaii, Planning Department. See, Exhibit "3," attached hereto. She was hired by the Windward Planning Commission to conduct the present hearing. Id.. The Commission did not hire Appellee Song as a County Employee, which as an employee, would entitle the Commission and 6 `t the Corporation Counsel to legally represent her. Appellee Windward Planning Commission, County of Hawaii, and the Office of the Corporation Counsel, by using County resources to protect Appellee Song, may even be in violation of state law. See, Hawaii State Constitution, Article VII, Sec. 4, "No tax shall be levied or appropriation of public money or property made, nor shall the public credit be used, directly or indirectly, except for a public purpose. . . ." (Emphasis added) C. Appellee Song is an Indispensable Party. An"Indispensable Party" is generally defined in Rule 19, Hawaii Rules of Civil Procedure (hereinafter referred to as "HRCivP" states: Rule 19. JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION. (a) Persons to be joined if feasible. A person who is subject to service of process shall be joined as a party in the action if(1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (A) as a practical matter impair or impede the person's ability to protect that interest or (B) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. 1 Rule 19(a), HRCivP. The Court cannot award relief without the presence or participation of Appellee Song. Rule 19(a)(1), HRCivP. Her absence in the present case will impair or impede the Appellant's ability to protect its interest or leave any of the parties in this agency appeal "subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest." Rule 19(a)(2)(A), HRCivP. 7 In terms of agency appeals, Section 91-14(a), HRS, specifically states: §91-14 Judicial review of contested cases. (a) Any person aggrieved by a final decision and order in a contested case or by a preliminary ruling of the nature that deferral of review pending entry of a subsequent final decision would deprive appellant of adequate relief is entitled to.judicial review thereof under this chapter; but nothing in this section shall be deemed to prevent resort to other means of review, redress, relief, or trial de novo, including the right of trial by Jury, provided by law. Notwithstanding any other provision of this chapter to the contrary, for the purposes of this section, the term "person aggrieved" shall include an agency that is a party to a contested case proceeding before that agency or another agency. (g) Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are: (1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedure; or (4) Affected by other error of law; or (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. Emphasis added. In the present case, Appellee Song is an indispensable party to the proceedings. The Appellant is entitled by law to appeal Appellee's Report dated April 7, 2014. See, Exhibit "1," attached hereto. Appellee Song was the Hearing Officer for the Contested Case hearing for Special Permit Application No. 12-00138. Appellee Song presided over the Contested Case, developed and submitted a Hearing Officers Report which were adopted in the Findings of Fact, 8 Conclusions of Law and Decision and Order adopted by the Windward Planning Commission on May 1, 2414 and May 19, 2414, respectively. See, Exhibit "2," attached hereto. One of the remedies that is specifically permitted by Sec. 91-14(g), HRS, is that this Court could remand the case with instructions, reverse or modify the decision. Most importantly, if the Court finds that the Appellant's substantial rights have been prejudiced because Appellee Song's decision the Court can give specific and direct instructions to Appellee Song, as the Hearing Officer. Appellee Song should have the benefit of being held accountable for her decision and any remedy sought by the Appellant. Moreover it would be a waste of Appellant's resources to simply remand the case back to the original hearing officer and have her reach the same result, based on other factors. The Appellant is unfairly prejudiced by Appellee Song's dismissal, because it allows Appellees, including Appellee Song and Commission to make the same unlawful mistake based on other grounds and force the Appellant to keep appealing future unlawful decisions, wasting precious time and resources. IIL CONCLUSION Based on the foregoing points of authority and law,the Appellant respectfully requests the Court deny Appellee Windward Planning Commission, County of Hawaii, and Intervenor- 9 Appellee Sandra Song's Motion to Dismiss Filed on July 7, 2014, DATED: August 11, 2014. Respectfully submitted, �W)41)A,l --TE3 H. S. HON Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 10 SANDRA PECHTER SONG 1552 10 Kamehameha Avenue Hilo, Hawaii 96720 Tel. No. (808) 933-9212 Fax No. (808) 935-3945 Hearing Officer BEFORE THE PLANNING COMMISSION COUNTY OF HAWAII In the Matter of ) SPP No. 12-000138 CONNECTIONS NEW CENTURY PUBLIC ) HEARING OFFICER'S REPORT; CHARTER SCHOOL and COMMUNITY ) CERTIFICATE OF SERVICE BASED EDUCATION SUPPORT ) SERVICES ) Hearing Dates: October 21, 2013, October 22, 2013, November 12, 2013,January 8,2014 Application for Special Permit Application ) and January 21, 2014 No. 12-000138 ) TMK: (3) 2-5-006-141; Kaumana, South ) Hilo, Hawaii ) } HEARING OFFICER'S REPORT This matter came on for contested case hearing before your Hearing Officer on October 21, and 22,2013,November 12, 2013,January 8 and 21,2014. At the hearing,Applicant, Connections New Century Public Charter School was represented by its counsel, Carter K. Siu, and Applicant Community Based Education Support Services was represented by its counsel Ted H.S. Hong. Applicants Connections New Century Public Charter School and Community Based Education Support Services will hereinafter be collectively referred to herein as"Connections". Also at the hearing, the County of Hawaii Planning Director(hereinafter"Director")was represented by his counsel, Amy G. Self; and Intervenor Jeffrey K. Gomes(hereinafter "Gomes"), represented himself pro se. At the close of the hearing, the parties were provided with an opportunity to submit proposed findings of fact in this case. Connections and Gomes submitted proposed findings on February 12,2014. The Director submitted a statement on February 12, 2014 indicating that he was not taking any position in this matter and would not be filing proposed findings of fact. The EXHIBIT 661." Director did,however, reserve the right to submit exceptions to findings submitted by other parties in this matter. After considering all of the evidence presented at the hearing, the entire record in this proceeding,and the proposed findings of fact submitted by Connections and Gomes,your Hearing Officer makes the following findings of fact, conclusions of law, and recommended order in this case: FINVINGIS OF FACT 1. Procedural Background 1_ This matter involves an application filed by Connections on July 25,2012, for a special permit,pursuant to Section 205-6, Hawaii Revised Statutes ("HRS") and Rule 6 of the County of Hawaii Planning Commission Rules of Practice and Procedure (hereinafter "Commission Rules") to allow the development of a charter school campus with dorm facilities and related improvements for students in kindergarten through twelfth grade(hereinafter,the "Development"),on 70.15 acres of land situated within the State Land Use Agricultural District, at Ponahawai, Kukuau 2nd, South Hilo, Hawaii, commonly referred to as the Kaumana area of Hilo, designated by State of Hawaii Tax Map Key("TMK")(3) 2-5-006-141 (hereinafter, the "Property"). 2. Connections has leased the Property on which the Development is proposed from the State of Hawaii under General Lease No. S-6029. 3. Notices of the Windward Planning Commission of the County of Hawaii (hereinafter "Commission")hearings on the proposed Development were provided to property owners surrounding the proposed Development. 4. The Commission held public hearings on the Connections application on November 12,2012, December 6, 2012 and January 10,2103. At the hearing held on January 10,2013,the Commission voted to deny the Connections application and instructed the Commission staff to prepare proposed findings of fact, conclusions of taw and order, which would be considered for adoption by the Commission at its meeting of March 7,2013. 5. At the Commission meeting of March 7,2013, the Commission suspended the preparation of the findings of fact,conclusions of law and order,and granted a request by 2 Connections for a contested case on the subject application. Gomes also submitted a petition to intervene in this matter on March 7, 2013, and the Commission admitted him as a party to the proceeding. 6. A petition to intervene in this proceeding was filed by Terrence Yoshioka on November 4, 2013,after the contested case gearing in this proceeding had already commenced. On November 8, 2013, your Hearing Officer denied this petition in accordance with Rule 4-6 of the Commission Rules,on the ground that the subject petition was untimely filed. 7, The Director is a party to this proceeding pursuant to Rule 4-7(a)of the Commission Rules. The Director initially recommended approval of the Connections application,subject specific conditions,but took no position on the application at the contested case hearing. 8. The subject application involves a parcel of land greater than fifteen acres in area. Therefore,any permit approved by the Commission is subject to final approval by the State Land Use Commission 11. Proposed Development A. General Description 9. The Connections application proposes the development of a K to 12 charter school campus with dorm Facilities, and an intergenerational program that would provide childcare and cider care at a single facility on the Development,together with related uses on the 70-acre parcel of land. As the site is bisected by Edita Strect, the lower portion of the Development would consist of the major school or campus facilities, while the upper portion would be used for outdoor type of educational programs, including a forestry preservation program. 10. The lower campus would support a projected 167 elementary students, 107 intermediate students, 107 high school students(381 K through 12 students)and 25 intergenerational clients. Also included would be a dormitory capable of supporting 30 students, a gymnasium, kitchen/dining facility, library/resource center,caretaker's residence and other related facilities. Two parking lots capable of supporting 140 parking stalls would be provided. 11. The Development would relocate and expand the existing charter school which is presently operating from two separate campuses. The elementary and middle schools are located in the Kress Building on Kamchameha Avenue, in downtown Hilo, and the high school is located 3 in leased facilities at the Nani Mau Gardens,just outside of Hilo town. 12. Connections proposes having 50 full-time and 17 part-time employees at full build- out of the Development, which is the same number presently employed for this charter school. 13. Connections anticipates that 50%of the student population will come from the Hilo area and 50% from the Puna area miles away from the Development. The present student population for this charter school is composed primarily of students from these two geographic areas. 14. The Development does not propose to establish a charter school on the Property to serve the needs of immediate vicinity in the Kaumana area of Hilo, although some students from the area may attend this school. 15. The Development is intended to be constructed in 9 phases and completed within 16 to 25 years. The first phase would include the caretaker's residence, high school and administration building, with the projected opening to be within 2.5 to 3.5 years. B, Public Utilities and Services Access/Traffic 16. Access to the Development is proposed from Edita Street which connects with. Kaumana Drive,a major Hilo artery. Both roads are owned and maintained by the County of Hawaii. Edita Street has a 60-foot right-of-way width, with a 48-foot wide pavement width fronting the Development. The paved area accommodates two 20-foot wide travel lanes, a 20- foot wide shoulder on the northeast side of the road, and an 8-foot wide shoulder on the southwest side. Edits Street is in good condition; however, the Hawaii County Police Department recommended that the unpaved shoulder along Edita Street extending from Kaumana Drive to the Development should be paved so that pedestrians could safely walk along the shoulder. 17. A Traffic Impact Analysis Report("TIAR")dated June 28,2010, was prepared in conjunction with the Connections application for the purpose of evaluating the Development's impact at the Development's entrance at Edita Street and at the Edita and Kaumana drive intersection. Based upon traffic counts taken on May 28,2009,the TIAR found that the current level of service or LOS operates as IAS "A"or"B", meaning that the traffic service is 4 uncongested. The TZAR also concluded that upon full build-out of the Development, the LOS will continue to operate at levels"A"or"B". Although the TIAR concludes that traffic will not be adversely affected by reason of the Development, the County Department of Public Works recommended that a separate left turn lane onto the Development from Edita Street should be constructed to alleviate congestion, and that Connections should prepare a comprehensive traffic management plan for the Development. 18. Notwithstanding the findings of the TIAR and the recommendations of the Police Department and Department of Public Works, the area residents uniformly expressed concerns about the adverse traffic impact of the Development along Edita Street and Kaumana Drive. Also,residents objected that the TIAR was four years old and the traffic counts contained in the TIAR were taken when certain schools were not in session. Water 19. A maximum of 4,200 gallons per day(hereinafter"gpd")of water or seven(7)water units from an existing 8-inch waterline on Kaumana Drive for the upper campus and from an existing 8-inch waterline on Edita Street for the lower campus, is available from the County of Hawaii municipal water system to service the entire Development. Based on a 60 gpd per student standard, 4,200 gallons of County water could only support 70 students. At full build-out the entire Development would require 26,100 gpd. 20. Notwithstanding the unavailability of potable water from the County system for the Development, the existing 8-inch waterline within Edita street is adequate to provide the required 2,000 gallons of water per minute for fire protection of the proposed Development. 21. The available water from the County of Hawaii municipal water system is insufficient to support the first phase of the Development. 22. Connections has proposed using water efficient fixtures and supplementing the available County water with either a catchment system for non-potable water or developing an additional water source. However, Connections has not produced any evidence to demonstrate that it has or can develop sufficient water for the Development. Wastewater 23. Connections is proposing to provide its own wastewater system meeting the 5 requirements of the State of Hawaii Department of Health (hereinafter"DOH"). Connections prefers installing an ecological biological wastewater system called the"Living Machine". However, should such a system prove to be unfeasible,Connections would install a traditional septic system with leach fields or any other system required by DOH. Drainage 24. The Property is located within Zone"X"on the U.S. Department of Army Corps of Engineers Flood Insurance Rate Map, which means that the Property is outside the 500-year flood plain. Notwithstanding this flood designation,during severe storms water has been known to overtop the concrete channel and flow across Edita Street,resulting in flooding of adjacent properties. Connections proposes to prepare detailed engineering studies for the purpose of developing appropriate drainage plans to address the potential flood hazard posed by the present condition of Edita Street. Utilities 25. Electrical and telephone services are available to the Property through overhead lines along Edita Street and Kaumana Drive. Public Safetv 26. The Hawaii County Police Department expressed concern that the Development would increase noise, crime and traffic. However,there was no evidence that the Police Department lacks the ability to provide police protection for the Development. III. PHYSICAL CHARACTERISTICS OF THE PROPERTY AND SURROUNDING AREAS 27. The Property is presently vacant and undeveloped. 28. Surrounding lands to the south and west of the Property are zoned A-1 a, with properties further south being zoned A-20a and-10A. Lands to the north of the Property are zoned RS-1.0 and RS-15, with some lands zoned A-3a further north across Kaumana Drive. One parcel is also zoned Open adjoining the northeast corner of the lower portion of the Property. Surrounding uses consist mainly of single-family residences with some vacant lands, and a small percentage of agricultural activity. 29. The soils on the Property are primarily composed of pahoehoe lava flow. The State 6 Department of Agriculture's map showing agricultural lands of importance to the State of Hawaii shows the Property as being unclassified. Also, the Land Study Bureau classifies the soil on the Property under its detailed land classification system,as"D"or"Poor" for agricultural activity. 30. No archaeological sites have been found on the Property,and its is surmised that any pre-existing sites would have been destroyed by the lava flow of 1880-1881. Although Connections submitted a request to the State Historic Preservation Division ("SHPD"), by letter dated August 17,2010, requesting a"no-effect"determination from that agency, SHPD has not responded to the request. 31. A portion of the Kaumana Cave is accessible from the upper portion of the Property. Connections is proposing to refrain from constructing any major school facilities on the upper portion of the Property and to maintain a minimum 100-foot buffer on either side of the cave alignment to alleviate concerns about impact from the Development on the cave ecosystem. 32. A botanical survey of the Property identified 11 native plant species, but none of those species are considered protected species. 33. Invertebrate, mammalian and field surveys were conducted on the Property. No protected species were documented to be present on the Property, 34. No traditional or customary native Hawaiian rights have been identified as being exercised on the Property. Likewise, there is no known public access to the mountains or the shoreline that runs through the Property. IV, STATE AND COUNTY PLANS 35. The Property is within the State Land Use Agricultural District. A school is not a permitted use within the Agricultural district; however, a school may be permitted in this district if a special permit is obtained for such use pursuant to Section 205-6, HRS and Rule 6 of the Commission Rules. 36. The County of Hawaii General Plan Land Use Pattern Allocation Guide ("LUPAG") Map designates the Property for low density urban uses. The LUPAG designation of Low Density urban use, allows for residential uses, with ancillary community and public uses,and neighborhood and convenience-type commercial uses. The Development is not proposed to be a community or public use for the Kaumana area of Hilo. 7 37. The County of Hawaii zoning for the Property is Agricultural with a minium lot size of one-acres(A-I a). Under Section 25-5-72(d)of the Hawaii County Code, a school is permitted in an Agricultural zoned district provided that a special permit is issued for the use if the land is within the State Land Use Agricultural District. 38. The Development, which is proposed to be located on State land, is subject to the Hawaii State Environmental Impact Statement law, Chapter 343, HRS. Connections prepared an environment assessment in accordance with Chapter 343, and declaration with a finding of no significant impact was issued for the Development by the State of Hawaii Department of Land and Natural Resources. 39_ The Property is not situated within the Special Management Area("SMA"), since it is located over three miles from the nearest shoreline. Thus, the coastal environmental considerations relating to the SMA are not applicable to the subject Property. V. SPECIAL PERMIT REQU1REMENTS 40. HRS Section 205-6, which governs special permits,provides in pertinent as follows: "(a) The county planning commission may permit certain unusual and reasonable uses within agricultural . . . districts other than those for which the district is classified. Any person who desires to use the person's land within an agricultural . . .district other than for an agricultural . . .use. . .may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired, , "(c) The county planning commission may,under such protective restrictions as may be necessary,permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter... "(d) Special permits for land the area of which is greater than fifteen acres. _ . shall be subject to approval by the land use commission. The land use commission may impose additional restrictions as may be necessary or appropriate in granting the approval including the adherence to representations made by the applicant." 41. Planning Commission Rule 6-7,provides, in pertinent part, that "[tlhe Commission shall not approve a Special Permit unless it is 8 found that the proposed use "(a) is an unusual and reasonable use of land situated within the Agricultural. . .District. . .; and "(b) Would promote the effectiveness and objectives of Chapter 205, flawaii Revised Statutes, as amended. "The Commission shall also consider the criteria listed under Section 6.3(b)(5)(A) through(G)." 42. The seven criteria under Planning Commission Rule 6.3(b)(5)(A)through(G)are: "(A) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations; "(B) The desired use shall not adversely affect surrounding properties; "(C) Such use shall not unreasonably burden public agencies to provide roads and streets,sewers, water, drainage,school improvements, and police and fire protection; "(D) Unusual conditions, trends and needs have arisen since the district boundaries and regulations were established; "(E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district; "(F) The proposed use will not substantially alter or change the essential character of the land and the present use; and "(G) The request will not be contrary to the General Pian and official Community Development Plan and other documents such as Design plans." 43. Although Gomes asserts that the criteria for a use permit should be considered in the subject application, that criteria is not relevant to a special permit determination. Vl. APPLICATION OF SPECIAL PERMIT CRITERIA TO THE DEVELOPMENT A. Land Use Law Objectives 44. The purpose of the State Land Use Law is to preserve the lands of high agricultural 9 potential for agricultural use. The Property consists of land that is not considered highly valuable for agricultural uses. Thus, the use of the Property for a school is not contrary to the objectives sought to be accomplished by the State Land Use Law. 45. Likewise, the Development, which proposes the construction of a school for 381 students and related facilities is not akin to a major recreational theme park attracting 1.5 million people each year to the area. Therefore, such a development would not frustrate the objectives and effectiveness of the Hawaii's land use scheme and would not require a State land use boundary amendment in lieu of a special permit. Neighborhood Board No. 24 vs. Stare Land Use Commission,64 Haw.265,272, 639, P.2d 1097, 1103 (1982). B. Affect on Surrounding, Properties 46. Based upon the testimony from surrounding and neighboring property owners, the Development will have an adverse effect on surrounding properties by creating noise,traffic, and impacting the quality of life of the adjoining residents. 47. Measures proposed by Connections,regarding the establishment of building setbacks and roadway improvements to Edita Street do not appear to be sufficient to mitigate the overwhelming concerns raised by surrounding property owners. C. Burden on Public Agencies to Provide Services 48. There is insufficient water available from the County system to service the Development. Therefore, to allow the Development would unreasonably burden the Department of Water Supply to provide water for its facilities. 49. There is no evidence that Connections has the ability to develop a potable water source as a mitigating measure, previously proposed by the Director. 50. A mitigating measure previously proposed by the Director of limiting the number of students to the amount of potable water available to the project is not reasonable because Connections is proposing to construct a highschool for 107 students its first phase,when the potable water available would only allow for 70 students. 51. As such, the proposed use may unreasonably burden the County Department of Water Supply to provide water to the Development. 10 D Unusual Conditions Trends and Needs 52. Unusual conditions and needs have arisen since the establishment of this land use district in the 1970s, because the arca in which the Property is located has essentially become residential in character. Also, the County General Plan LUPAG map recognizes this trend by designating the area for low density urban use. However,there was no evidence presented to demonstrate that Iocation of a school that is not intended to specifically service the needs of the immediate community is such an unusual condition, trend or need that justifies location of the Development at this location. F. Suitability of Land for Agricultural Uses 53. The Land Study Bureau soil classification rating for the Property is"D"or"Poor", which suggests that the land may be unsuited for agricultural uses. 54. Connections is proposing to maintain the upper portion or nearly one-half of the Property for forestry use. In addition, Connections is proposing to construct greenhouses on the Property and conduct an agricultural program in conjunction with its curriculum. 55. Based upon the representations of Connections, it cannot be found that the Property is unsuited for agricultural uses. F. Alteration or Chanyze of the Essential Character of the Land and Present Use 56. The Property is presently a forest and is vacant of any structures. The lower half of the Property will be converted into a school with classrooms,dormitories,a gymnasium cafeteria and parking lots. 57. The Development of a school will change the essential character of the forested land and its undeveloped use. G. Consistency with the General Plan 58. The County General Plan LUPAG map designates the Property for low density urban use. "Low density uses"under the General Plan include residential, with ancillary community and public uses,and neighborhood and convenience-type commercial uses. 59. The Development, which proposes a charter school that is not specifically intended to service the immediate community surrounding the school, is not consistent with the uses permitted in areas of low density urban use. I3 60. The Economic, Public facilities and Land Use elements of the County General Plan all require consideration of social and community concerns as follows: Economic Element - Goal "Provide an economic environment that allows new,expanded, or improved economic opportunities that are compatible with the County's cultural, natural and social environment." Public Facilities Element-Goal "Encourage the Provision of public facilities that effectively service the community and visitor needs and seek ways of improving public service through better and more functional facilities in keeping with the environmental and aesthetic concerns of the community." Land Use Element -Policy "Encourage the development and maintenance of communities meeting the needs of its residents in balance with the physical and social environments." 61. The evidence has established significant concerns from the community regarding the compatibility of the Development with the surrounding community. 62. Although the County General Plan Public Facilities-Education course of action for South Hilo encourages the establishment of additional schools as the need arises, the proposed Development, at the subject location, is contrary to the General Plan. VII. UNUSUAL AND REASONABLE USE OF LAND 63. The construction of a school on the Property is an unusual use of the land because a school is not a permitted use in the State Land Use Agricultural District. However, the evidence presented does not demonstrate that the Development is a reasonable use of the Property. Specifically,Connections has not demonstrated how this school can be built without sufficient potable water resources. Nor, has Connections demonstrated how the development of a regional charter school on the Property that does not specifically service the needs of the immediate community and that is overwhelmingly objected to by the immediate community is a reasonable site for this facility. In addition, Connections has not demonstrated that the Development meets 12 most of the criteria to be considered by the Commission in the subject application. CONCLUSCONS OF LAW Based upon the foregoing Findings of Fact, the your Hearing Officer makes the following Conclusions of Law: I. To the extent that any of the Findings of Fact constitute Conclusions of Law,or Conclusions of Law constitute Findings of Fact, they shall be considered and construed as such. 2. The Commission has jurisdiction over the subject special permit application, including the ability to deny or recommend its approval to the State Land Use Commission,pursuant to Section 205-6, HRS and Rule 6 of the Commission Rules. 3. Connections had the burden of proof on this matter before the Commission, including the burden of producing evidence as well as the burden of persuasion, by a preponderance of evidence, to demonstrate how its request is consistent with the guidelines for a special permit as outlined by Section 205-6, HRS and Rule 6 of the Commission Rules. Connections has failed to meet this burden. 4. The Development does not adequately meet the requirements or guidelines for a special permit as required by Section 205-6, HRS and Rule 6 of the Commission Rules. 5.The Development is not consistent with the County General Plan,particularly as to the impacts on the immediate community. HEARING OFFICER'S RECOMMENDATION Based upon the preceding Findings of Fact and Conclusions of Law, your Hearing Officer recommends to the Windward Planning Commission of the County of Hawaii that Special Permit Application SPP No. 12-000138 of Connections New Century Public Charter School and Community Based Education Sup po Servi es be denied. DATED: Hilo, Hawaii, 7 9410 SANDRA C ER ONG Hearing Officer 13 BEFORE THE PLANNING COMMISSION COUNTY OF HAWAII In the Matter of ) SPP No. 12-000138 CONNECTIONS NEW CENTURY PUBLIC ) CERTIFICATE OF SERVICE CHARTER SCHOOL and COMMUNITY } BASED EDUCATION SUPPORT ) SERVICES ) } Application for Special Permit Application } No. 12-000138 ) TMK: (30 2-5-006-141; Kaumana, South ) Hilo, Hawaii ) CERTIFICATE OF SERVICE I hereby certify that on this date,a copy of the foregoing was duly served upon the following parties by depositing the same in the U. S, mail, postage prepaid, and by e-mailing a copy,addressed to: Ted H.,S. Hong, Esq. (ted(aDtedhonglaw.com) P. O. Box 4217 Hilo,Hawaii 96720 Attorney for Applicant Community Based Education Support Services Carter K. Siu, Esq. (Carter.K.Siuna.hawaii.gov) Deputy Attorney General State of Hawaii 235 South Beretania Street,Room 304 Attorney for Applicant Connections New Century Charter School Amy G. Self, Esq. (aselfa,co.hawaii.hi.usl Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for County of Hawaii Planning Director Jeffrey K. Gomes (kalanieomes0hawaiiantel.net) 281 Edita Street Hilo,Hawaii 96720 lnlervenor pro se Daryn Arai (darai@u co.hawaii.hi.us) Jeffrey Darrow(idarrow@co.hawaii.hi.us) County of Hawaii Planning Department 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720 Windward Plannin Commission Staff DATED: Hilo, Hawaii, rl SANDRA PECHTER SONG Hearing Officer 2 County of Hawaii Planning Commission 101 Pauahi Street, Suite 3 Hilo, Hawai'i 96720-4224 Telephone: (808)961-8288 Facsimile; (808) 961-8742 BEFORE THE COUNTY OF HAWAII PLANNING COMMISSION In the Matter of SPP No. 12-000138 CONNECTIONS NEW CENTURY PUBLIC COUNTY OF HAWAII WINDWARD CHARTER SCHOOL AND COMMUNITY PLANNING COMMISSION'S BASED EDUCATION SUPPORT , FINDINGS OF FACT, CONCLUSIONS OF SERVICES LAW AND DECISION AND ORDER; CERTIFICATE OF SERVICE Application for Special Permit Application No. 12-000138 Argpment and Decision: Date: 511114 TMK: (3)2-5-006-141; Kaumana, South Location: Aupuni Center, Hilo, Hawaii Hilo, Hawaii COUNTY OF HAWAI`1 WINDWARD PLANNING COMMISSION'S FINDINGS OF FACT CONCLUSIONS OF LAW AND DECISION AND ORDER The County of Hawaii, Planning Commission submits its Findings of Fact, Conclusions of Law and Decision and Order pursuant to the request of the Windward Planning Commission of the County of Hawaii at its May 1,2014,meeting in Hilo, Hawaii. Present before the Commission were Ted H. S. Hong, counsel for Applicant Community Based Education Support Services; Carter K. Siu, Deputy Attorney General, for Applicant Connections New Century Public Charter School (hereinafter collectively referred to herein as"Connections"); Amy G. Self, Deputy Corporation Counsel,for County of Hawaii Planning Director(herein as "Director"); Jeffery K. Gomes(herein as"Gomes"), Intervenor, Pro Se; and Sandra Pechter Song, the Hearing Officer(herein as "Hearing Officer"). The contested case hearings by the I EXHIBIT &42-99 Hearing Officer were held on October 21, and 22, 2013, November 12, 2013, January 8 and 22, 2014. FINDINGS OF FACT 1. Procedural Backsround 1. This matter involves an application filed by Connections on July 25, 2012, for a special permit,pursuant to Section 205-6, Hawaii Revised Statutes("HRS") and Rule 6 of the County of Hawaii Planning Commission Rules of Practice and Procedure(hereinafter "Commission Rules")to allow the development of a charter school campus with dorm facilities and related improvements for students in kindergarten through twelfth grade (hereinafter,the "Development"),on 70.15 acres of land situated within the State Land Use Agricultural District, at Ponahawai, KUkuau 2nd, South Hilo, Hawaii, commonly referred to as the Kaumana area of Hilo, designated by State of Hawaii Tax Map Key("TMK")(3)2-5-006:141 (hereinafter,the E "Property"). 2. Connections has leased the Property on which the Development is proposed from the State of Hawaii under General Lease No. 5-6029. 3. Notices of the Windward Planning Commission of the County of Hawaii (hcrcinafter "Commission") hearings on the proposed Development were provided to property owners surrounding the proposed Development. 4. The Commission meld public hearings on the Connections application on November 9,2012 [sic],December 6, 2012 and January 10, 2013. At the hearing held on January 10, 2013,the Commission moved [sic] to deny the Connections application and instructed the Commission staff to prepare proposed findings of fact,conclusions of law and order, which would be considered for adoption by the Commission at its meeting of March 7, 2013. 5. At the Commission meeting of March 7, 2013, the Commission suspended the preparation of the findings of fact, conclusions of law and order, and granted a request by Connections for a contested case on the subject application. Gomes submitted a petition to intervene in this matter on March 7, 2013, and the Commission admitted him as a party to the proceeding. 2 6. A petition to intervene in this proceeding was filed by Terrence Yoshioka on November 4, 2013, after the contested case hearing in this proceeding had already commenced. On November 8, 2013, the Hearing Officer denied this petition in accordance with Rule 4-6 of the Commission Rules,on the ground that the subject petition was untimely filed. 7. The Director is a party to this proceeding pursuant to Rute 4-7(a)of the Commission Rules. The Director initially recommended approval of the Connections application, subject to specific conditions,but took no position on the application at the contested case hearing. 8. The subject application involves a parcel of land greater than fifteen acres in area. Therefore, any permit approved by the Commission is subject to final approval by the State Land Use Commission. 11. Proyosed Development A. General Description 9. The Connections application proposes the development of a K to 12 charter school campus with dorm facilities,and an intergenerational program that would provide childcare and elder care at a single facility on the Development, together with related uses on the 70-acre parcel of land. As the site is bisected by Edita Street,the lower portion of the Development would consist of the major school or campus facilities, while the upper portion would be used for outdoor type of educational programs, including a forestry preservation program. 10. The lower campus would support a projected 167 elementary students, 107 intermediate students, I07 high school students(381 K through 12 students)and 25 intergenerational clients. Also included would be a dormitory capable of supporting 30 students, a gymnasium,kitchen/dining facility, library/resource center,caretaker's residence and other related facilities. Two parking lots capable of supporting 140 parking stalls would be provided. 1 I. The Development would relocate and expand the existing charter school which is presently operating from two separate campuses. The elementary and middle schools are located in the Kress Building on Kamehameha Avenue, in downtown Hilo, and the high school is located in leased facilities at the Nani Mau Gardens,just outside of Hilo town. 12, Connections proposes having 50 full-time and 17 part-time employees at full build- out of the Development, which is the same number presently employed for this charter school. 3 13. Connections anticipates that 50%of the student population will come from the Hilo area and 50% from the Puna area miles away from the Development. The present student population for this charter school is composed primarily of students from these two geographic areas. 14. The Development does not propose to establish a charter school on the Property to serve the needs of the immediate vicinity in the Kaumana area of Hilo,although some students from the area may attend this school. 15. The Development is intended to be constructed in 9 phases and completed within 16 to 25 years. The first phase would include the caretaker's residence,high school and administration building, with the projected opening to be within 2.5 to 3.5 years. B. Public Utilities and Services Access/Traffic Ib. Access to the Development is proposed from Edita Street which connects with Kaamana Drivc, a major Hilo artery. Both roads are owned and maintained by the County of Hawaii. Edita Street has a 60-foot right-of-way width, with a 48-foot wide pavement width fronting the Development. The paved area accommodates two 20-foot wide travel lanes, a 20-foot wide shoulder on the northeast side of the road, and an 8-foot wide shoulder on the southwest side. Edita Strcet is in good condition; however, the Hawaii County Police Department recommended that the unpaved shoulder along Editor Street extending from Kafitnana Drive to the Development should be paved so that pedestrians could safely walk along the shoulder. 17. A Traffic Impact Analysis Report("TIAR")dated June 28, 2010,was prepared in conjunction with the Connections application for the purpose of evaluating the Development's impact at the Development's entrance at Edita Street and at the Edita and Kaumana Drive intersection. Based upon traffic counts taken on May 28,2009, the TZAR found that the current level of service or LOS operates as LOS"A"or"B", meaning that the traffic service is uncongested. The TIAR also concluded that upon full build-out of the Development, the LOS will continue to operate at levels"A"or"B". Although the TIAR concludes that traffic will not be adversely affected by reason of the Development, the County Department of Public Works 4 recommended that a separate left tum lane onto the Development from Edita Street should be constructed to alleviate congestion,and that Connections should prepare a comprehensive traffic management plan for the Development_ 18. Notwithstanding the findings of the TIAR and the recommendations of the Police Department and Department of Public Works, the area residents uniformly expressed concerns about the adverse traffic impact of the Development along Edita Street and KaOmana Drive. Also, residents objected that the TIAR was four years old and the traffic counts contained in the TIAR were taken when certain schools were not in session. Water 19. A maximum of 4,200 gallons per day(hereinafter"gpd")of water or seven (7) water units from an existing 8-inch waterline on Kaumana Drive for the upper campus and from an existing 8-inch waterline on Edita Street for the lower campus, is available from the County of Hawaii municipal water system to service the entire Development. Based on a 60 gpd per student standard,4,200 gallons of County water could only support 70 students. At full build-out the entire Development would require 26,100 gpd. 20. Notwithstanding the unavailability of potable water from the County system for the Development, the existing 8-inch waterline within Edita Street is adequate to provide the required 2,000 gallons of water per minute for fire protection of the proposed Development. 21. The available water from the County of Hawaii municipal water system is insufficient to support the first phase of the Development. 22. Connections has proposed using water efficient fixtures and supplementing the available County water with either a catchment system for non-potable water or developing an additional water source. However, Connections has not produced any evidence to demonstrate that it has or can develop sufficient water for the Development. Wastewater 23. Connections is proposing to provide its own wastewater system meeting the requirements of the State of Hawaii Department of Health (hereinafter"DOH"). Connections prefers installing an ecological biological wastewater system called the"Living Machine." 5 However, should such a system prove to be unfeasible, Connections would install a traditional septic system with ]each fields or any other system required by DOH. Drainage 24, The Property is located within Zone"X"on the U.S. Department of Army Corps of Engineers Flood Insurance Rate Map, which means that the Property is outside the 500-year flood plain. Notwithstanding this flood designation,during severe storms water has been known to overtop the concrete channel and flow across Edita Street, resulting in flooding of adjacent properties. Connections proposes to prepare detailed engineering studies for the purpose of developing appropriate drainage plans to address the potential flood hazard posed by the present condition of Edita Street. Utilities 25. Electrical and telephone services are available to the Property through overhead lines along Edita Street and Kaumana Drive. Public Safety 26. The Hawai'i County Police Department expressed concern that the Development would increase noise,crime and traffic. However,there was no evidence that the Police Department lacks the ability to provide police protection for the Development. III. PHYSICAL CHARACTERISTICS OF THE PROPERTY AND SURROUNDING AREAS 27. The Property is presently vacant and undeveloped. 28. Surrounding lands to the south and west of the Property are zoned A-la, with properties further south being zoned A-20a and A-I Oa [sic]. Lands to the north of the Property are zoned RS-10 and RS-l5,with some lands zoned A-3a further north across Kaumana Drive. One parcel is also zoned Open adjoining the northeast comer of the lower portion of the Property. Surrounding uses consist mainly of single-family residences with some vacant lands, and a small percentage of agricultural activity. 29. The soils on the Property are primarily composed of pahoehoe lava flow. The State Department of Agriculture's map showing agricultural lands of importance to the State of Hawai'i shows the Property as being unclassified. Also, the Land Study Bureau classifies the 6 soil on the Property under its detailed land classification system, as"D"or"Poor" for agricultural activity. 30. No archaeological sites have been found on the Property,and it is surmised that any pre-existing sites would have been destroyed by the lava flow of 1880-1881. Although Connections submitted a request to the State Historic Preservation Division ("SHPD"), by letter dated August 17, 2010, requesting a"no-effect"determination from that agency, SHPD has not responded to the request. 31. A portion of the Kaumana Cave is accessible from the upper portion of the Property. Connections is proposing to refrain froth constructing any major school facilities on the upper portion of the Property and to maintain a minimum 100-foot buffer on either side of the cave alignment to alleviate concerns about impact from the Development on the cave ecosystem. 32. A botanical survey of the Property identified I 1 native plant species, but none of those species are considered protected species. 33. Invertebrate, mammalian and field surveys were conducted on the Property. No protected species were documented to be present on the Property. 34. No traditional or customary native Hawaiian rights have been identified as being exercised on the Property. Likewise, there is no known public access to the mountains or the shoreline that runs through the Property. 1V. STATE AND COUNTY PLANS 35. The Property is within the State Land Use Agricultural District. A school is not a permitted use within the Agricultural district; however,a school may be permitted in this district if a special permit is obtained for such use pursuant to Section 205-6, H RS and Rule 6 of the Commission Rules. 36. The County of Hawaii General Plan Land Use Pattern Allocation Guide("LUPAG") Map designates the Property for low density urban uses. The LUPAG designation of Low Density urban use, allows for residential uses, with ancillary community and public uses, and neighborhood and convenience-type commercial uses. The Development is not proposed to be a community or public use for the Kaurnana area of Hilo. 7 37. The County of Hawaii zoning for the Property is Agricultural with a minimum lot size of one acre(A-]a). Linder Section 25-5-72(d) of the Hawaii County Code,a school is permitted in an Agricultural zoned district provided that a special permit is issued for the use if the land is within the State Land Use Agricultural District. 38. The Development,which is proposed to be located on State land, is subject to the Hawaii State Environmental Impact Statement law, Chapter 343, HRS. Connections prepared an environment assessment in accordance with Chapter 343, and declaration with a finding of no significant impact was issued for the Development by the State of Hawaii Department of land and Natural Resources, 39. The Property is not situated within the Special Management Area ("SMA"), since it is located over three miles from the nearest shoreline. Thus,the coastal environmental considerations relating to the SMA are not applicable to the subject Property. V. SPECIAL PERMIT REQUIREMENTS 40. HRS Section 205-6,which governs special permits, provides in pertinent as follows: "(a) The county planning commission may permit certain unusual and reasonable uses within agricultural . . ,districts other than those for which the district is classified. Any person who desires to use the person's land within an agricultural . . _district other than for an agricultural . . .use. . .may petition the planning commission of the county within which the person's land is Iocated for permission to use the person's land in the manner desired. "(c)The county planning commission may, under such protective restrictions as may be necessary,permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter,.. "(d) Special permits for land the area of which is greater than fifteen acres. . .shall be subject to approval by the land use commission. The land use commission may impose additional restrictions as may be necessary or appropriate in granting the approval including the adherence to representations made by the applicant." 8 41. Planning Commission Rule 5-7, provides, in pertinent part, that: "[t]he Commission shall not approve a Special Permit unless it is found that the proposed use "(a) is an unusual and reasonable use of land situated within the Agricultural. . .District. . .; and "(b) Would promote the effectiveness and objectives of Chapter 205, Hawaii Revised Statutes, as amended. "The Commission shall also consider the criteria listed under Section 6.3(b)(5)(A)through (G)." 42. The seven criteria under Planning Commission Rule 6.3(b)(5)(A) through(G) are: "(A) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations; "(B) The desired use shall not adversely affect surrounding properties; "(C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers, water,drainage, school improvements, and police and fire protection; "(D) Unusual conditions, trends and needs have arisen since the district boundaries and regulations were established; "(E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district; "(F) The proposed Use will not substantially alter or change the essential character of the land and the present use; and "(G) The request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design plans." 43. Although Gomes asserts that the criteria for a use permit should be considered in the subject application, that criteria is not relevant to a special permit determination. 9 VI APPLICATION OF SPECIAL PERMIT CRITERIA TO THE DEVELOPMENT A. Land Use Law Obiectives 44. The purpose of the State Land Use Law is to preserve the lands of high agricultural potential for agricultural use. The Property consists of land that is not considered highly valuable for agricultural uses. Thus, the use of the Property for a school is not contrary to the objectives sought to be accomplished by the State Land Use Law. 45. Likewise, the Development, which proposes the construction of a school for 381 students and related facilities is not akin to a major recreational theme park attracting 1.5 million people each year to the area. Therefore,such a development would not frustrate the objectives and effectiveness of the Hawai`i's land use scheme and would not require a State land use boundary amendment in lieu of a special permit. Neighborhood Board No. 24 vs. Stale Land Use Commission, 64 Haw. 265, 272,639, P.2d 1097, 1 103 (1982). B, Affect on Surrounding Properties 46. Based upon the testimony from surrounding and neighboring property owners, the Development will have an adverse effect on surrounding properties by creating noise, traffic, and impacting the quality of life of the adjoining residents. 47. Measures proposed by Connections, regarding the establishment of building setbacks and roadway improvements to Fdita Street do not appear to be sufficient to mitigate the overwhelming concerns raised by surrounding property owners. C. Burden on Public Agencies to Provide Services 48. There is insufficient water available from the County system to service the Development. Therefore, to allow the Development would unreasonably burden the Department of Watcr Supply to provide water for its facilities. 49. There is no evidence that Connections has the ability to develop a potable water source as a mitigating measure,previously proposed by the Director. 50. A mitigating measure previously proposed by the Director of limiting the number of students to the amount of potable water available to the project is not reasonable because Connections is proposing to construct a high school for 107 students its first phase, when the potable water available would only allow for 70 students. 10 51. As such, the proposed use may unreasonably burden the County Department of Water Supply to provide water to the Development. D. Unusual Conditions,Trends and Needs 52. Unusual conditions and needs have arisen since the establishment of this land use district in the 1970s,because the area in which the Property is located has essentially become residential in character. Also, the County General Plan LUPAG map recognizes this trend by designating the area for low density urban use. However, there was no evidence presented to demonstrate that location of a school that is not intended to specifically service the needs of the immediate community is such an unusual condition, trend or need that justifies location of the Development at this location. E. Suitability of Land for A6- icultural Uses 53. The Land Study Bureau soil classification rating for the Property is "D"or"Poor," which suggests that the land may be unsuited for agricultural uses. 54. Connections is proposing to maintain the upper portion or nearly one-half of the Property for forestry use. In addition, Connections is proposing to construct greenhouses on the Property and conduct an agricultural program in conjunction with its curriculum. 55. Based upon the representations of Connections, it cannot be found that the Property is unsuited for agricultural uses. F. Alteration or Change of the Essential Character of the Land and Present Use 56. The Property is presently a forest and is vacant of any structures. The lower half of the Property will be converted into a school with classrooms,dormitories, a gymnasium cafeteria and parking lots. 57. The Development of a school will change the essential character of the forested land and its undeveloped use. G. Consistency with the General Plan 58, The County General Plan LUPAG map designates the Property for low density urban use. "Low density uses" under the General PIan include residential, with ancillary community and public uses, and neighborhood and convenience-type commercial uses. 11 59. The Development, which proposes a charter school that is not specifically intended to service the immediate community surrounding the school, is not consistent with the uses permitted in areas of low density urban use. 60. The Economic, Public Facilities and Land Use elements of the County General Plan all require consideration of social and community concerns as follows: Economic Element -G al "Provide an economic environment that allows new, expanded, or improved economic opportunities that are compatible with the County's cultural, natural and social environment." Public Facilities Element -Goal "Encourage the Provision of public facilities that effectively service the community and visitor needs and seep ways of improving public service through better and more functional facilities in keeping with the environmental and aesthetic concerns of the community." Land Use Element- PolicY "Encourage the development and maintenance of communities meeting the needs of its residents in balance with the physical and social environments." 61. The evidence has established significant concerns from the community regarding the compatibility of the Development with the surrounding community. 62. Although the County General Plan Public Facilities-Education course of action for South Hilo encourages the establishment of additional schools as the need arises, the proposed Development,at the subject location, is contrary to the General Plan. VII. UNUSUAL AND REASONABLE USE OF LAND 63. The construction of a school on the Property is an unusual use of the land because a school is not a permitted use in the State Land Use Agricultural District. However, the evidence presented does not demonstrate that the Development is a reasonable use of the Property. Specifically, Connections has not demonstrated how this school can be built without sufficient potable water resources. Nor,has Connections demonstrated how the development of a regional 12 charter school on the Property that does not specifically service the needs of the immediate community and that is overwhelmingly objected to by the immediate community is a reasonable site for this facility. In addition, Connections has not demonstrated that the Development meets most of the criteria to be considered by the Commission in the subject application. CONCLUSIONS OF LAW Based upon the foregoing Findings of Fact, the Commission makes the following Conclusions of Law: 1. To the extent that any of the Findings of Fact constitute Conclusions of Law, or Conclusions of Law constitute Findings of Fact,they shall be considered and construed as such. 2. The Commission has jurisdiction over the subject special permit application, including the ability to deny or recommend its approval to the State Land Use Commission, pursuant to Section 205-6, HRS and Rule 6 of the Commission Rules. 3. Connections had the burden of proof on this matter before the Commission, including the burden of producing evidence as well as the burden of persuasion,by a preponderance of evidence, to demonstrate how its request is consistent with the guidelines for a special permit as outlined by Section 205-6, HRS and Rule 6 of the Commission Rules. Connections has failed to meet this burden. 4. The Development does not adequately meet the requirements or guidelines for a special permit as required by Section 205-6, HRS and Rule 6 of the Commission Rulcs. 5.The Development is not consistent with the County General Plan, particularly as to the impacts on the immediate community. ORDER Based upon the preceding Findings of Fact and Conclusions of Law, Special Permit Application SPP No. 12-000138 of Connections New Century Public Charter School and Community Based Education Support Services to develop a K to 12 charter school campus with 13 dorm facilities and related uses on 70.15 acres situated within the State Land Use Agricultural District is hereby denied. Dated: Hilo, Hawaii, MAY 1 e 2014 BP, y RONALD GONZALES,Chairman Windward Planning Commission 14 BEFORE THE COUNTY OF HAWAI`l PLANNING COMMISSION In the Matter of SPP No. 12-000138 CONNECTIONS NEW CENTURY PUBLIC CERTIFICATE OF SERVICE CHARTER SCHOOL AND COMMUNITY BASED EDUCATION SUPPORT SERVICES Application for Special Permit Application No. 12-000138 TMK: (3)2-5-006-141; Kaumana, South Hilo, Hawaii CERTIFICATE OF SERVICE 1 hereby certify that on this date, a copy of the foregoing was duly served upon the following parties by depositing the same in the U. S, mail, postage prepaid, and by e-mailing a copy, addressed to: Ted H. S. Hong, Esq.(tedtar).tedhon aw.com) P. O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant Community Based Education Support Services Carter K. Siu, Esq. (Carter-K.Siuftawaii_gov) Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu,Hawaii 96813 Attomey for Applicant Connections New Century Charter School Amy G. Self, Esq. aself(&co.hawaii_hi.us) Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for County of Hawaii Planning Director Mr. Jeffrey K. Gomes (kalanigomesO hawaiiantel.net) 281 Edita Street Hilo, Hawai'i 96720 Intervenor pro se Mr. Duane Kanuha, Planning Director(planninP-Qco.hawaii.hi.us) County of Hawaii Planning Department 101 Pauahi Street,Suite 3 Hilo, Hawai'i 96720 Margaret Masunaga, Esq. (mkmasunaga(aco hawaii.hi.us) Deputy Corporation Counsel 74-5044 Ane Keohokfilole Highway Kailua-Kona, Ht 96740 Attorney for County of Hawai'i Planning Commission Dated: Hilo, Hawaii, MAY I S R NALD GD ZALE , Chairman Windward Planning Commission 2 0 County of Hawaii WINDWARD PLANNING COMMSSIEON Aupurti Cerner • 101 Pauahi Street,Suite 3 • Hilo,Hawaii 96720 Phone(808)961-8288 • Fax(808)961-8742 July 12, 2013 Monica Morris, Esq. Office of the Attorney General 425 Queen Street Honolulu, HI 96813 Attorney for Applicant, Connections New Century Public Charter School Ted H. S. Hong, Esq. i/ P.O. Box 4217 Hilo, HI 96720 Attorney for Applicant, Community Based Education Support Services (CBESS) Amy Self, Esq. Office of the Corporation Counsel 333 Kilauea Avenue, 2nd Floor Hilo, R1 96720 Attorney for Planning Director, Duane Kanuha Mr. Jeff Gomes 281 Edita Street Hilo, 111 96720 Intervenor Dear Ms. Morris, Mr. Hong, Ms. Self, and Mr. Gomes: Contested Case Proceedings on the Matter before the Windward Planning Commission Regarding Special Permit Application No. 12-000138 (SPP-12-000138) Applicant: Connections New Century Public Charter School and Community Based Education Support Services TMK: 2-5-006:141; Kaumana, South Hilo, Hawaii We would like to announce that the Windward Planning Commission has retained Sandra Pechter Song, Esq. to serve as hearings officer for the contested case hearing in the above- entitled matter. The selection of Mrs. Song was done in accordance with the State Public Procurement Code, Section 1031), Hawaii Revised Statutes. Hawai'i County is an Equal Opporrunuy Provider and Employer EXHIBIT "3" Monica Morris, Esq. Ted H. S. Hong, Esq. Amy Self, Esq. Mr. Jeff Gomes Page 2 July 12, 2013 Mrs. Song will be contacting all of the parties who have been granted standing in this particular contested case proceeding to announce a date, time and place for a pre-hearing meeting to discuss procedural and other related matters. Sincerely, Wallace A. ishibashi, Jr., Chairman v Windward Planning Commission cc: Windward Planning Commission Duane Kanuha, Planning Director Margaret Masunaga, Deputy Corporation Counsel Sandra Pechter Song, Esq. IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO. 14-1-0223 RI SUPPORT SERVICES } (Agency Appeal) ) Applicant-Appellant, ) DECLARATION OF TED H. S. HONG VS. ) WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING, COUNTY OF HAWAII, ) Appellees, ) and ) HEARING: SANDRA SONG, in her capacity as ) DATE: August 19, 2014 Hearing Officer; JEFFREY GOMES, ) TIME: 8:30 a.m. Intervenor; SIDNEY FUKE, Intervenor's ) JUDGE: The Hon. Ronald Ibarra Representative; TERENCE YOSHIOKA, } Intervenor's Representative, ) Intervenor-Appellees. ) DECLARATION OF TED H. S. HONG STATE OF HAWAII } } SS. COUNTY OF HAWAII } 1, TED H. S. HONG, declares as follows: 1. 1 am the counsel for Applicant-Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES 2. I make this Declaration based on my personal knowledge and am competent to testify about the matters contained in this Declaration. 3. Appellant, Community Based Education Support Services ("CBESS") is a co- applicant in Special Permit Application No. 12-000138 to develop a K to 12 Charter School Campus with Dorm Facilities, Intergenerational Programs, a sustainable Agricultural Program and a Forestry/Conservation Program and related uses on approximately 70 acres of land situated in the State Land use Agricultural District located on both the southwest and northeast sides of Edita Street near its intersection with Kaumana Drive, South Hilo, Hawaii and further identified by Tax Map Key(3)2-5-006:141 4. That attached hereto as Exhibit "1" is a true and accurate copy of the Hearing Officer for the Contested Case hearing for Special Permit Application No. 12-00138, Report dated April 7, 2014. 5. That attached hereto as Exhibit "2" is a true and accurate copy of Findings of Fact, Conclusions of Law and Decision and Order adopted by the Windward Planning Commission on May 1, 2014 and May 19, 2014, respectively. 6. That attached hereto as Exhibit "3" is a true and accurate copy of the letter indicating that Appellee Song was hired as an"independent contractor" and not as a County employee. 7. 1 declare under penalty of perjury under the laws of the State of Hawaii, that the above is true and accurate. DATED; Hilo, Hawaii, August 11, 2014 Z?Z�0)4—� 2 H. S. HONG 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 RI SUPPORT SERVICES ) (Agency Appeal) } Applicant-Appellant, } CERTIFICATE OF SERVICE } vs. } } WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT } OF PLANNING, COUNTY OF HAWAII, } } Appellees, ) and ) HEARING: SANDRA SONG, in her capacity as } DATE: August 19, 2014 Hearing Officer; JEFFREY GOMES, ) TIME: 8:30 a.m. Intervenor; SIDNEY FUKE, Intervenor's ) JUDGE: The Hon. Ronald lbarra Representative; TERENCE YOSHIOKA, ) Intervenor's Representative, ) Intervenor-Appellees. ) CERTIFICATE OF SERVICE I hereby certify that the foregoing document was duly served via U.S. Mail, postage prepaid, on the date indicated below, to the following: MARGARET K. MASUNAGA, ESQ. Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni St., Ste, 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and APPELLEE SANDRA SONG a AMY G. SELF, ESQ. Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni St., Ste, 325 Hilo, Hawaii 96720 Attorney for APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAII ALAN M. OKAMOTO, ESQ. 187 Kapiolani Street Hilo, HI 96720 Attorney for APPELLEES SIDNEY FUKE and TERENCE T. YOSHIOKA MICHAEL J. MATSUKAWA, ESQ. 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, HI 96740 Attorney for APPELLEE JEFFREY GOMES CARTER K. SIU, ESQ. Deputy Attorney General 235 S. Beretania Street, Rm. 304 Honolulu, HI 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL DATED: Hilo, Hawaii, August 11, 2014. O TED H. S. HON Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 TED H. S. HONG 3569 Attorney at Law P. O. Box 4217 Hilo, HI 96720 Telephone No. 808.933.1919 Facsimile No. 808.938.8281 ted@tedhonglaw.com Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION ,S SUPPORT SERVICES c� aS IN THE CIRCUIT COURT OF THE THIRD CIRCUIT - oma=+ T STATE OF HAWAII n = a w A�� COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 R cri SUPPORT SERVICES ) {Agency Appeal} Applicant-Appellant, ) APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' vs. ) MEMORANDUM IN OPPOSITION TO APPELLEES SIDNEY FUKE and WINDWARD PLANNING COMMISSION,) TERRANCE T. YOSHIOKA and COUNTY OF HAWAII; DEPARTMENT } JEFFREY GOMES' MOTION FOR OF PLANNING, COUNTY OF HAWAII, } SUMMARY JUDGMENT FILED ON } JULY 28, 2014; EXHIBITS "I," - "4;" Appellees, ) DECLARATION OF TED H. S. HONG; CERTIFICATE OF SERVICE and } HEARING: SANDRA SONG, in her capacity as ) DATE: August 19, 2014 Hearing Officer; JEFFREY GOMES, ) TIME: 8:30 a.m. Intervenor; SIDNEY FUKE, Intervenor's ) JUDGE: The Hon. Ronald Ibarra Representative; TERENCE YOSHIOKA, ) Intervenor's Representative, } Intervenor-Appellees. } APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' MEMORANDUM IN OPPOSITION TO APPELLEES SIDNEY FUKE and TERRANCE T. YOSHIOKA and JEFFREY GOMES' MOTION FOR SUMMARY JUDGMENT FILED ON JULY 28, 2014 41 TABLE OF CONTENTS I. FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 II. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Summary Judgment Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 C. Appellees Fuke, Yoshioka and Gomes are Indispensable Parties . . . . . . . . . . . . . . . . 6 (1) Rule 19(a), HRCivP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 (2) Rule 19(b), HRCivP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S D. Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 111. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 i TABLE OF AUTHORITIES HAWAII CASES: Blake v. County of Kaua'i Planning Comm'n, 131 Haw. 123, 315 P.3d 749 (2013), as amended (Jan. 8, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 County of Kauai ex rel. Nakazawa v. Baptiste, 115 Haw. 15, 165 P.3d 916 (2007) . . . . . . . . . . 5 GGS Co. v. Masuda, 82 Hawai'i 96, 919 P.2d 1008 (App.1996) . . . . . . . . . . . . . . . . . . . . . . . . . 9 Kona Old Hawaiian Trails Group by and through Serrano, v. Lyman, 69 Hawai'i 81, 734 P.2d 161 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Life of the Land, Inc., v. Land Use Commission, 61 Hawai'i 3, 594 P.2d 1079 (1979) . . . . . . . . 6 Oahu Transit Services, Inc., v. Northfield Insurance Company, 107 Hawai'i 231, 112 P.3d 717 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Ralston v. Yim, 129 Hawai'i 46, 292 P.3d 1276 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4, 10 FEDERAL CASES: Liguori v. Hansen, 2:11-CV-00492-GMN, 2012 WL 760747 (D. Nev. Mar. 6, 2012) . . . . . 11-12 Ricotta v. State of Cal., 4 F.Supp.2d 961, 987 (S.D.Ca1.1998) . . . . . . . . . . . . . . . . . . . . . . . . . . 11 STATE CASES: Fong v. Planning and Zoning Bd. of Appeals of Town of Greenwich, 563 A.2d 293 (1989) . . . 10 Riverhill Community Ass'n, v. Cobb County Bd. of Com'rs, 226 S.E.2d 54 (1976) . . . . . . . . . . . 9 Stamford Ridgeway Associates v. Board of Representatives of City of Stamford, 572 A.2d 951 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 HAWAII REVISED STATUTES: Sec. 91-14(g), HRS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 ii STATE RULES: Rule 19, HRCivP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7 Rule 8.4( c), HRPC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 iii APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' MEMORANDUM IN OPPOSITION TO APPELLEES SIDNEY FUKE and TERRANCE T. YOSHIOKA and JEFFREY GOMES' MOTION FOR SUMMARY JUDGMENT FILED ON JULY 28, 2014 COMES NOW Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES (hereinafter referred to as "CBESS"), by and through its undersigned counsel and hereby submits its Memorandum in Opposition to Appellees Sidney Fuke and Terrance T. Yoshioka and Jeffrey Gomes' (hereinafter respectively referred to as "Fuke," "Yoshioka," and "Gomes") Motion for Summary Judgment Filed on July 28, 2014. I. FACTS Appellant, Community Based Education Support Services ("CBESS") is a co-applicant in Special Permit Application No. 12-000138 to develop a K to 12 Charter School Campus with Dorm Facilities, Intergenerational Programs, a sustainable Agricultural Program and a Forestry/Conservation Program and related uses on approximately 70 acres of land situated in the State Land use Agricultural District located on both the southwest and northeast sides of Edita Street near its intersection with Kaumana Drive, South Hilo, Hawaii and further identified by Tax Map Key (3)2-5-006:141. See, Declaration of Ted H. S. Hong Appellee Sandra P. Song was the Hearing Officer for the Contested Case hearing for Special Permit Application No. 12-00138. Appel lee Song presided over the Contested Case, developed and submitted a Hearing Officers Report (sem Exhibit "1," attached hereto) and her recommendations are reflected in the Findings of Fact, Conclusions of Law and Decision and Order adopted by the Windward Planning Commission on May 1, 2014 and May 19, 2014, respectively. See, Exhibit"2," attached hereto. 2 Appellees Fuke, Yoshioka, and Appellee Gomes are property owners in the immediate vicinity of the proposed project. See. Exhibit "3," attached hereto. Appellees Fuke, Yoshioka, including their legal counsel and Appellee Gomes have been the chief antagonists and coordinators of the opposition to the Appellants project. See. Exhibit 114," attached hereto. On or about June 6, 2014, CBESS filed its appeal from: (1) the Hearing Officer's Report dated April 7, 2014, attached hereto as Exhibit "1;" and, (2) County of Hawaii Windward Planning Commission's decision entered May 1, 2014 to uphold the Hearings Officer's report and recommendations to deny Special Permit Application (SPP12-00013$) to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5-006:141; and (3) the County of Hawai'i Windward Planning Commission's Findings of Fact, Conclusions of Law and Decision and Order, dated May 19, 2014, attached hereto as Exhibit"2." II. ARGUMENT A. Summary Judgment Standard. In Ralston v. Yim, 129 Hawai'i 46, 292 P.3d 1276 (2013), the Hawaii State Supreme Court clarified the standard for summary judgment motions: The burden is on the party moving for summary judgment (moving party) to show the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitles the moving party to judgment as a matter of law. This burden has two components. First, the moving party has the burden of producing support for its claim that: (1) no genuine issue of material fact exists with respect to the essential elements of the claim or defense which the motion seeks to establish or which the motion questions; and (2) based on the undisputed facts, it is entitled to summary judgment as a matter of law. Only when the moving party satisfies its initial burden of production does the burden shift to the nonmoving party to respond to the motion for summary judgment and demonstrate specific 3 facts, as opposed to general allegations, that present a genuine issue worthy of trial. Second, the moving party bears the ultimate burden of persuasion. This burden always remains with the moving party and requires the moving party to convince the court that no genuine issue of material fact exists and that the moving party is entitled to summary judgment as a matter of law. French, 105 Hawaii at 470, 99 P.3d at 1054 (citation and emphasis omitted). Ralston v. Yim, 129 Hawai'i at 56-57, 292 P.3d at 1286-1287. The Hawai'i State Supreme Court further ruled that: In sum, this court's case law indicates that a summary judgment movant may satisfy his or her initial burden of production by either(1) presenting evidence negating an element of the non-movant's claim, or (2) demonstrating that the nonmovant will be unable to carry his or her burden of proof at trial. See French, 105 Hawai'i at 470-72, 99 P.3d at 1054-56; Exotics Hawaii—Kana, 116 Hawaii at 302, 172 P.3d at 1046. Where the movant attempts to meet his or her burden through the latter means, he or she must show not only that the non-movant has not placed proof in the record, but also that the movant will be unable to offer proof at trial. See French, 105 Hawaii at 472, 99 P.3d at 1056 (citing Anderson, 834 F.Supp. at 1368). Accordingly, in general, a summary judgment movant cannot merely point to the non-moving party's lack of evidence to support its initial burden of production if discovery has not concluded. See L ("[M]erely asserting that the non-moving party has not come forward with evidence to support its claims is not enough."). (Emphasis added) Ralston v. Yam, 129 Hawai'i at 60-61, 292 P.3d at 1290-1291. In Oahu Transit Services, Inc., v. Northfield Insurance Company, 107 Hawai'i 231, 112 P.3d 717 (2005), the Hawaii State Supreme Court reaffirmed that, "A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties." Oahu Transit Services, Inc., supra, 107 Hawaii at 234, 112 P.3d at 720. B. Standing. Appellees Fuke, Yoshioka and Gomes have standing to assert their legal rights against the 4 subject property. In County of Kauai ex rel. Nakazawa v. Baptiste, 115 Haw. 15, 165 P.3d 91 b (2007), the Hawaii State Supreme Court stated: This court has stated: Standing is that aspect of justiciability focusing on the party seeking a forum rather than on the issues he wants adjudicated. And the crucial inquiry in its determination is whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of the court's jurisdiction and to justify the exercise of the court's remedial powers on his behalf. Life of the Land v. Land Use Comm'n, 63 Haw. 166, 172, 623 P.2d 431, 438 (198 1) (internal quotation marks, brackets, emphasis, and citation omitted). In deciding whether the plaintiff has the requisite interest in the outcome of the litigation, [this court] employ[s] a three-part test: (1) has the plaintiff suffered an actual or threatened injury as a result of the defendant's wrongful conduct; (2) is the injury fairly traceable to the defendant's actions; and (3) would a favorable decision likely provide relief for plaintiffs injury. Mottl v. Miyahira, 95 Hawai'i 381, 389, 23 P.3d 716, 724 (2001) (citing Bush v. Watson, 81 Hawai'i 474, 479, 918 P.2d 1130, 1135 (1996)). Our case law indicates that "the requisite interest" may be the result of a defendant's infringement upon a plaintiffs personal or special interest that is separate and distinct from the traditional infringements of legal rights or privileges. See, e.g., Dalton v. City & County of Honolulu, 51 Haw. 400, 402-03, 462 P.2d 199, 202 (1969) (conferring standing upon neighboring landowners based on their interest in safeguarding scenic view, sense of space, and population density due to adjacent high-rise development); Life of the Land, 63 Haw. at 176 n. 9, 623 P.2d at 440 n. 9 (conferring standing based upon plaintiffs' recreational use of rezoned land for "diving, swimming, hiking, camping, sightseeing, horseback riding, exploring, and hunting and for aesthetic, conservational, occupational, professional and academic pursuits"); and Pele Defense Fund v. Paty, 73 Haw. 578, 589-90, 837 P.2d 1247, 1256 (1992) (standing conferred upon native Hawaiian group based on transfer of public ceded lands that would impede its "customarily and traditionally exercised subsistence, cultural and religious practices" on such land). Moreover, the plaintiff bears the burden of satisfying all three prongs of the injury-in-fact test. Sierra Club v. Hawaii Tourism Auth., 100 Hawaii 242, 250, 59 P.3d 877, 885 (2002). (Emphasis added) County of Kauai ex rel. Nakazawa v. Baptiste, 115 Haw. 15, 26, 165 P.3d 916, 5 927 (2007); see also, Life of the Land, Inc., v. Land Use Commission, 61 Hawai'i 3, 594 R2d 1079 (1979); Kona Old Hawaiian Trails Group by and through Serrano, v. Lyman, 69 Hawai'i 81, 734 P.2d 161 (1987). Appellees Fuke, Yoshioka and Gomes, are property owners within the immediate vicinity of the underlying project. See, Exhibit "3." They have exercised their standing to assert their interests against the underlying Special Use Permit, consistently, openly and surreptitiously. Id.. Having standing, Appellees Fuke, Yoshioka and Gomes, would be able to assert their rights in Court to oppose any future approval or reversal of the Appellee Windward Planning Commission's decision. The interests of judicial economy and efficacy are best served by having Appellees Fuke, Yoshioka and Gomes assert their claims in the present appeal instead of further delaying the project by filing their legal claims, when this case is reversed on appeal, either at the Appellee Commission level or in the appellate courts. Cf, Blake v. County ofKaua`i Planning Comm'n, 131 Haw. 123, 137, 315 P.3d 749, 763 (2013), as amended (Jan. 8, 2014). C. Appellees Fuke, Yoshioka and Gomes are Indispensable Parties. An"Indispensable Party" is generally defined in Rule 19, Hawaii Rules of Civil Procedure (hereinafter referred to as "HRCivP" states: Rule 19. JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION. (a)Persons to be joined if feasible. A person who is subject to service of process shall be joined as a party in the action if(1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (A) as a practical matter impair or impede the person's ability to protect that interest or (B) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. 6 (b) Determination by court whenever joinder not feasible. If a person as described in subdivision (a)(1)-(2) hereof cannot be made a parte court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth,whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. (Emphasis added and included) 1 Rule 19(a), HRCivP. The Court cannot award relief without the presence or participation of Appellee Fuke, Yoshioka and Gomes. Rule 19(a)(1), HRCivP. The absence of Appellees Fuke, Yoshioka and Gomes will impair or impede the Appellant's ability to protect its interest or leave any of the parties in this agency appeal "subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest." Rule 19(a)(2)(A), HRCivP. In terms of agency appeals, Section 91-14(g), HRS, specifically states: (g) Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are: (1)In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedure; or (4) Affected by other error of law; or (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. 7 Emphasis added. Appellees Fuke, Yoshioka and Gomes are indispensable parties to the proceedings. One of the remedies specifically permitted under Sec. 91-14(g), HRS, is that this Court could remand the case with instructions, reverse or modify the Appellee Commission's decision. Most importantly, if the Court finds that the Appellant's substantial rights have been prejudiced because Appellee Commission's decision, the Court can give specific and direct instructions to Appellee Department. Appellees Fuke, Yoshioka and Gomes would then be able to assert their legal rights to essentially relitigate the entire administrative proceeding and agency appeal proceedings. It would be a waste of Appellant's and Judicial resources to simply remand the case back to the original hearing officer, or the Appellee Commission and Department only to have Appellees Fuke, Yoshioka and Gomes reassert the same arguments against the underlying project and have the Appellant appeal each and every decision. For example, when the Court remands or reverses Appellees Song and Commission's decisions, Appellees Fuke, Yoshioka and Gomes could each take turns, separately and in individual actions, tie up the underlying project at every administrative and appellate court levels. The Appellant is unfairly prejudiced by Appellees Fuke, Yoshioka and Gomes dismissal, because it allows each Appellee to make use the same arguments and tactics they made in the present case, in separate, subsequent challenges to the Court's granting of the Appellant's appeal, forcing the Appellant to keep appealing future unlawful decisions by the Appellees Song, Commission and Department, wasting precious time and resources. (2) Rule 19(b), HRCivP. Generally, if it is infeasible to join a necessary party, the court goes on to consider 9 whether the factors set out in Rule 19(b), HRCivP, also apply. The appellate courts recognize that: a court should consider all of the factors and employ a functional balancing approach. Because of the flexibility of the " equity and good conscience" test and the general nature of the factors listed in HRPP [sic] Rule 19(b), whether a particular nonparty described in Rule 19(a) will be regarded as indispensable depends to a considerable degree on the circumstances of each case. (Emphasis added) GGS Co. v. Masuda, 82 Hawaii 96, 105, 919 P.2d 1008, 1017 (App.1996); see also Stamford Ridgeway Associates v. Board of Representatives of City of' Stamford, 572 A.2d 951 (1990) "[a]n applicant who received a favorable decision from the zoning board of appeals is a necessary, indeed indispensable, party to an appeal by person aggrieved by the decision because were the appeal to be sustained the result would be the invalidation and deprivation of rights granted to the applicant by the zoning board."; Riverhill Community Assn, v. Cobb County Bd. of Com'rs, 226 S.E.2d 54 (1976), upholding the dismissal of a suit against the county board of zoning appeals which challenged a rezoning decision because to gain complete relief, the successful zoning applicant had to joined as a party defendant. The first factor under Rule 19(b), HRCivP is "to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties." In the present case an appellate judgment rendered for the Appellant concerning the terms, conditions and execution of the terms and conditions of the underlying Special Use Permit in question has a direct bearing on Appellees Fuke, Yoshioka and Gomes. The three Appellees are property owners in the immediate vicinity of the underlying project. See, Exhibit "I" Their rights as property owners would be directly impacted by any reversal of the Appellee Song, Commission and Department's decisions. The second factor is "the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided." When the 9 Appellee Song and Commission's decisions are reversed, Appellees Fuke, Yoshioka and Gomes would be unfairly prejudiced because of the impact on their property interests. They should be allowed to contribute, as interested parties, to the discussion about the reversal of the unlawful decisions made by Appellees Song and Commission. Moreover, the Appellant has an interest in having all the objections heard in this proceeding instead of an abuse of the agency appeals process by Appellees Fuke, Yoshioka and Gomes, allowing them the opportunity to file separate and consecutive appeals of any reversal of the decisions made by Appellees Song and Commission. See, Fong v. Planning and Zoning Bd. of Appeals of Town of Greenwich, 563 A.2d 293 (1989), "parties are indispensable when they not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such condition that its final termination may be wholly inconsistent with equity and good conscience" and holding that the abutting landowner was an indispensable party where he initiated the proceeding. The third factor is "whether a judgment rendered in Appellees decisions made by Appellees Fuke, Yoshioka and Gomes absence will be adequate." Any judgment rendered in the agency appeals process would directly impact their interest in their property. If the Court dismisses the appeal, then Appellees do nothing. However, on Summary Judgment, the Court must view the agency appeal in the light most favorable to the Appellant. Ralston v. Yim, supra, 129 Hawai'i at 56-57, 292 P.3d at 1286-1287. In the light most favorable to the Appellant, when the Court grants the appeal, any decision would have an effect on the Appellees Fuke, Yoshioka and Gomes' property interests. Finally, the fourth factor is, "whether the plaintiff will have an adequate remedy if the 10 action is dismissed for nonjoinder." Again, the absence of Appellees Fuke, Yoshioka and Gomes absence in this appeal would substantially affect any remedy that the Appellant could obtain. Appellees, Fuke, Yoshioka and Gomes would be able to individually and consecutively file appeals at the agency and agency appeal level and the Appellant would face a series of duplicative and separate agency appeals. Judicial economy demands that the Appellees Fuke, Yoshioka and Gomes remain as parties in the present case and actively participate in the appeal. D. Misconduct. Appellees Fuke, Yoshioka and Gomes have been impermissibly conspiring with and using the firm of Nakamoto, Okamoto and Yamamoto, to "ghostwrite" documents and witness preparation. See, Exhibits "3." It is widely held that "ghostwriting" violates the rules of professional conduct. Ricotta v. State of Cal., 4 F.Supp.2d 961, 987 (S.D.Ca1.1998) (noting that "attorneys cross the line ... when they gather and anonymously present legal arguments, with the actual or constructive knowledge that the work will be presented ... in a motion before the [c}ourt."). It has been generally recognized that: "Ghost-writing" occurs when an attorney drafts pleadings or court filings on behalf of a pro se litigant who, in turn, signs them pro se. It is an inappropriate practice. See e.g., Smallwood v. NCsoft Corp„ 730 F.Supp.2d 1213, 1222 (D. Hawaii 20 10) citing Ricotta v. State, 4 F.Supp.2d 961, 986 (S.D.Cal.1998) (citations omitted); see also Walker v. Pacific Maritime Assoc., 2008 WL 1734757 (N.D.Cal.) (finding that ghost-writing is an inappropriate practice and attorneys who engage in the practice are subject to sanction. under Fed.R.Civ.P. 11}, "Ghost-writing" is inappropriate for several reasons. First, because the standard practice of federal courts is to interpret pro se filings liberally, allowing "ghost-writing" would disadvantage the opposing party. Ricotta, 4 F.Supp.2d at 986. Second, "ghost writing" is a deliberate evasion of responsibilities imposed by II Rule 11, which requires attorneys to personally represent that there are grounds to support assertions made in each filing. Id. Third, "ghostwriting" implicates the Rules of Professional Responsibility. Id. For example, pursuant to the Nevada Rules of Professional Conduct ("NRPC"), "[i]t is professional misconduct for a lawyer to: ( c) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." NRPC 8 .4. An attorney participating in"ghost-writing" is engaged in conduct involving misrepresentation to the Court because another individual is signing pleadings that the attorney drafted. Moreover, "having a litigant appear to be pro se when in truth an attorney is authoring pleadings ... is far below the level of candor which must be met by members of the bar." Ricotta, F.Supp.2d at 986 (citation omitted). Liguori v. Hansen, 2:11-CV-00492-GMN, 2012 WL 760747 (D. Nev. Mar. 6, 2012); see also, Rule 8.4( c), Hawaii Rules of Professional Conduct. In the present case, Appellees Fuke, Yoshioka and Gomes' hired, conspired with and benefitted by the "ghostwriting" of their"shadow" legal counsel, Alan Okamoto. Appellee Yoshioka testified under oath that: Q. (Hong) Okay. Because I mean there is a prohibition against ghost writing, or unauthorized practice of law, right. I just wanted to make sure - - THE HEARINGS OFFICER: Mr. Hong, let's not get into that. Ask the questions. A. (Yoshioka) I wasn't doing it as an attorney, but I was doing it under the supervision of a licensed attorney. Q. (Hong) Okay. Who is the licensed attorney? A. Alan Okamoto, Q. So you were drafting things and then sending it to Mr. Okamoto? A. Yeah. Q. And he would come back - - 12 A. He would approve the form and appropriateness of the questions that 1 drafted for Mr. Gomes. And as I said, if you want me to explain, I'll explain the entire situation. And so what I did was, prepare the questions, had Mr. Okamoto review them, determine the appropriateness. He was familiar with the background of the case, and then he gave approval to it, and then 1 presented it to Mr. Gomes. Q. (Hong) In terms of consultation, was that in person or was that just e-mail or - - A. (Yoshioka) With Mr. Okamoto, you mean? Q. Yeah. A. No, he came over to my house and spent two, two-and-a-half hours going over the questions that I had prepared for Mr. Thatcher and Mr. - - Q. Ms. Shen? A. Whoever was presenting the Planning Department. It was not directed to anyone, it was just Planning Department. Q. Did you and Mr. Okamoto study the Planning Commission record or any evidence of the Planning Commission? A. Planning Commission - - oh, we discussed it, but he didn't go over - - well, no, he did go over some documents. I don't know whether or not it involved this record. Q. Did he review the special permit application? A. Yes, he did, yeah. Q. Did he mark it up and provide you any comments? A. No, no. Q. Did he look at the final EA (Environmental Assessment)? 13 A. Yes, he did, I believe he did. Q. Did he mark it up - - THE HEARINGS OFFICER: Mr. Hong, are you getting into attorney-client privilege communications? And if so, you shouldn't be going there. MR. HONG: I don't know that this is attorney-client privilege. A. (Yoshioka) While we're on this subject, I'd like to make a statement. And I just forgot to do this when I presented the documentation to you. In the documentation you see an e-mail from Mr. Fuke to myself, in which he makes reference to questions that was also part of that e-mail, okay. I have elected to not make copies of those questions, because I do think it falls under the work product rule, and that it does not constitute discoverable material, because this was intended for Mr. Gomes and myself, who Mr. Fuke was expecting to give assistance to Mr. Gomes in an attorney-client capacity, but I don't think he was aware that my inactive license restricted me from actively representing Mr. Gomes in these proceedings. BY MR. HONG: Q. Mr. Fuke is not an attorney, right? A. No, Mr. Fuke is not an attorney, but it was, obviously, for the purpose of assisting Mr. Gomes in the questioning of the witnesses that come before this board. See, Exhibit "3," attached hereto, pages 16-20, lines 13-13. The Record shows that Appellee Yoshioka and Mr. Okamoto, conspiring with Appellees Fuke and Gomes, were engaged in impermissible "ghostwriting," the unauthorized practice of law (Appellee Yoshioka's description of Appellee Fuke's role, supra) as well as the unlawful shielding of discoverable documents from being produced or submitted. The Appellee Hearings Officer, generously and intentionally assisted the Appellees from not only inquiring into the depth and scope of misconduct but also from preventing relevant documents being produced. 14 Exhibit "3," attached hereto, pages 21-25, lines 3-18. This is relevant to the issues raised in the summary judgment motion because it goes to the credibility of legal counsel for Appellees Fuke and Yoshioka. If Appellees' counsel is willing to surreptitiously mask his and his law firm's participation in the underlying proceedings in violation of the Rules of Professional Conduct, then how can this Court take anything that counsel represents in the present motion as reliable? III. CONCLUSION Based on the foregoing points of authority and law, the Appellant respectfully requests the Court deny Appellees Sidney Fuke and Terrance T. Yoshioka and Jeffrey Gomes' Motion for Summary Judgment Filed on July 28, 2014, DATED: August 11, 2014. Respectfully submitted, �_ D H. S. HONG Attorney at Law ` Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 15 SANDRA PECHTER SON6, 155% 10 Kamehameha Avenue Hilo, Hawaii 96720 Tel. No. (808) 933-9212 Fax No. (808) 935-3945 Hearing Officer BEFORE THE PLANNING COMMISSION COUNTY OF HAWAII In the Matter of ) SPP No. 12-000138 CONNECTIONS NEW CENTURY PUBLIC ) HEARING OFFICER'S REPORT; CHARTER SCHOOL and COMMUNITY ) CERTIFICATE OF SERVICE BASED EDUCATION SUPPORT ) SERVICES ) Hearing Dates: October 21, 2013, October 22, 2013, November 12, 2013, January 8,2014 Application for Special Permit Application ) and January 21, 2014 No. 12-000138 ) T.MK: (3) 2-5-006-141; Kaumana, South ) Hilo, Hawaii ) HEARING OFFICER'S REPORT This matter came on for contested case hearing before your Hearing Officer on October 21, and 22, 2013,November 12, 2013, January 8 and 21, 2014. At the hearing,Applicant, Connections New Century Public Charter School was represented by its counsel, Carter K. Siu, and Applicant Community Based Education Support Services was represented by its counsel Ted H.S. Hong. Applicants Connections New Century Public Charter School and Community Based Education Support Services will hereinafter be collectively referred to herein as `'Connections". Also at the hearing, the County of Hawaii Planning Director(hereinafter"Director") was represented by his counsel, Array G. Self; and Intervenor Jeffrey K. Gomes (hereinafter "Gomes"), represented himself prose. At the close of the hearing, the parties were provided with an opportunity to submit proposed findings of fact in this case. Connections and Gomes submitted proposed findings on February 12, 2014. The Director submitted a statement on February 12, 2014 indicating that he was not taking any position in this matter and would not be filing proposed findings of fact. The EXHIBIT "I." Director slid, however, rescmc the right to submit exceptions to findings submitted by other parties in this matter. After considering all of the evidence presented at the hearing, the entire record in this proceeding, and the proposed findings of fact submitted by Connections and Games, your Hearing Officer makes the following findings of fact,conclusions of law, and recommended order in this case: FINDINGS OF FACT 1. Procedural Back round 1. This matter involves an application filed by Connections on July 25,2012, for a special permit, pursuant to Section 205-6, Hawaii Revised Statutes ("HRS") and Rule 6 of the County of Hawaii Planning Commission Rules of Practice and Procedure (hereinafter "Commission Rules")to allow the development of a charter school campus with dorm facilities and related improvements for students in kindergarten through twelfth grade(hereinafter, the "Devclopment"), on 70.15 acres of land situated within the State Land Use Agricultural District, at Ponahawai, Kukoau 2nd, South Hilo, Hawaii, commonly referred to as the Kaumana area of Hilo,designated by State of Hawaii Tax Map Key("TMK")(3) 2-5-006-141 (hereinafter, the "Property"). 2. Connections has leased the Property on which the Development is proposed from the State of Hawaii under Gcneral Lease No, 5-6029. 3. Notices of the Windward Planning Commission of the County of Hawaii (hereinafter "Commission") hearings on the proposed Development were provided to property owners surrounding the proposed Development. 4. The Commission held public hearings on the Connections application on November 12,2012, December 6, 2012 and January 10,2103. At the hearing held on January 10, 2013, the Commission voted to deny the Connections application and instructed the Commission staff to prepare proposed findings of fact, conclusions of law and order, which would be considered for adoption by the Commission at its meeting of March 7, 2013. 5. At the Commission meeting of March 7, 2013, the Commission suspended the preparation of the findings of fact,conclusions of law and order,and granted a request by 2 Connections for a contested case on the subject application, Comes also submitted a petition tv intervene in this matter on March 7, 2013, and the Commission admitted him as a party to the proceeding. 6_ A petition to intervene in this proceeding was filed by Terrence Yoshioka on November 4, 2013, aper the contested case hearing in this proceeding had already commenced. On November 8, 2013, your Hearing Officer denied this petition in accordance with Rule 4-6 of the Commission Rules, on the ground that the subject petition was untimely filed. 7. The Director is a party to this proceeding pursuant to Rule 4-7(a) of the Commission Rules, The Director initially recommended approval of the Connections application, subject specific conditions, but took no position on the application at the contested case hearing. S. The subject application involves a parcel of land greater than fifteen acres in area. Therefore, any permit approved by the Commission is subject to final approval by the State Land Use Commission 11. Proposed Development A. General Description 9. The Connections application proposes the development of a K to 12 charter school campus with down facilities,and an intergenerational program that would provide childcare and cider care at a single facility on the Development, together with related uses on the 70-acre parcel of land. As the site is bisected by Edita Street, the lower portion of the Development would consist of the major school or campus facilities,while the upper portion would be used for outdoor type of educational programs, including a forestry preservation program. 10. The lower campus would support a projected 167 elementary students, 107 intermediate students, 107 high school students(381 K through 12 students) and 25 intergenerational clients. Also included would be a dormitory capable of supporting 30 students, a gymnasium, kitchen/dining facility, library/resource center, caretaker's residence and other related facilities. Two parking lots capable of supporting 140 parking stalls would be provided. 11. The Development would relocate and expand the existing charier school which is presently operating from two separate campuses. The elementary and middle schools are located in the Kress Building on Karnehameha Avenue, in downtown Hilo, and the high school is located 3 in !cased facilities at the rani Mau Gardens,just outside of I lilo town. 12. Connections proposes having 50 full-time and 17 part-time employees at firll build- out of the Development, which is the same number presently employed for this charter school. 13. Connections anticipates that 50%of She student population will come from the Hilo area and 50% from the Puna area miles away from the Development. The present student population for this charter school is composed primarily of students from these two geographic areas. 14. The Development does not propose to establish a charter school on the Property to serve the needs of immediate vicinity in the Kaumana area of Hilo, although some students from the area may attend this school. 15. The Development is intended to be constructed in 9 phases and completed within 16 to 25 years. The first phase would include the caretaker's residence, high school and administration building, with the projected opening to be within 2.5 to 3.5 years. B. Public Utilities and Services Access/Traffic 16. Access to the Development is proposed from Edita Street which connects with Kaumana Drive, a major Hilo artery. Both roads are owned and maintained by the County of Hawaii. Edita Street has a 60-foot right-of-way width, with a 48-foot wide pavement width fronting the Development. The paved area accommodates two 20-foot wide travel lanes, a 20- foot wide shoulder on the northeast side of the road, and an 8-foot wide shoulder on the southwest side. Edita Street is in good condition;however, the Hawaii County Police Department recommended that the unpaved shoulder along Edita Street extending from Kaumana Drive to the Development should be paved so that pedestrians could safely walk along the shoulder. 17. A Traffic Impact Analysis Report("TIAR")dated lune 28, 2010, was prepared in conjunction with the Connections application for the purpose of evaluating the Development's impact at the Development's entrance at Edita Street and at the Edita and Kaumana drive intersection. Based upon traffic counts taken on May 28, 2009, the TIAR found that the current level of service or LOS operates as LOS"A"or"B", meaning that the traffic service is 4 uncongested. The TIAR also conk:iudel; that upon full build-out of the Development, the 1_,US will continue to operate at levels "A" or -13" Although the TIAR concludes that traffic will not be adversely affected by reason of the Development, the County Department of Public Works recommended that a separate left turn lane onto the Development from Edita Street should be constructed to alleviate congestion, and that Connections should prepare a comprehensive traffic management plan for the Development. 18. Notwithstanding the findings of the TIAR and the recommendations of the Police Department and Department of Public Works, the area residents uniformly expressed concems about the adverse traffic impact of the Development along Edita Street and Kaumana Drive. Also, residents objected that the TIAR was four years old and the traffic counts contained in the TIAR were taken when certain schools were not in session. Water 19, A maximum of 4,200 gallons per day(hereinafter"glad")of water or seven (7) water units from an existing 8-inch waterline on Kaumana Drive for the upper campus and from an existing 8-inch waterline on Edita Street for the lower campus, is available from the County of Hawaii municipal water system to service the entire Development. Based on a 60 gpd per student standard,4,200 gallons of County water could only support 70 students. At full build-out the entire Development would require 26,100 gpd. 20. Notwithstanding the unavailability of potable water from the County system for the Development, the existing 8-inch waterline within Edita street is adequate to provide the required 2,000 gallons of water per minute for fire protection of the proposed Development. 21, The available water from the County of hlawaii municipal water system is insufficient to support the first phase of the Development. 22. Connections has proposed using water efficient fixtures and supplementing the available County water with either a catchment system for non-potable water or developing an additional water source. However, Connections has not produced any evidence to demonstrate that it has or can develop sufficient water for the Development. Wastewater 23. Connections is proposing to provide its own wastewater system meeting the 5 requirements of the State of Hawaii Department of Health (hereinafter "Doll") Connections prefers installing an ecological/bioiogical wastewater system called the"Living Machine". Ho,.vever, should such a system prove to be unfeasible, Connections would install a traditional septic system with leach fields or any other system required by DOH. Drainaye 24, The Property is located within Lone "X"on the U.S. Department of Army Corps of Engineers Flood Insurance Rate Map, which means that the Property is outside the 500-year flood plain. Notwithstanding this flood designation,during severe storms water has been known to overtop the concrete channel and flow across Edita Street,resulting in flooding of adjacent properties. Connections proposes to prepare detailed engineering studies for the purpose of developing appropriate drainage plans to address the potential flood hazard posed by the present condition of Edita Street. Utilities 25. Electrical and telephone services are available to the Property through overhead lines along Edita Street and Kaumana Drive, Public Safety 26. The Hawaii County Police Department expressed concern that the Development would increase noise, crime and traffic. 1 lowever, there was no evidence that the Police Department lacks the ability to provide police protection for the Development. II1. PHYSICAL CHARACTERISTICS OF THE PROPERTY AND SURROUNDING AREAS 27, The Property is presently vacant and undeveloped. 28. Surrounding lands to the south and west of the Property are zoned A-I a, with properties further south being zoned A-20a and-I OA. Lands to the north of the Property are zoned RS-l0 and RS-15, with some lands zoned A-3a further north across Kaumana Drive, One parcel is also zoned Open adjoining the northeast corner of the lower portion of the Property. Surrounding uses consist mainly of single-family residences with some vacant lands, and a small percentage of agricultural activity. 29. The soils on the Property are primarily composed of pahoehoe lava flow. The State 6 Department of Agriculture's map showing agrl(�iitural lands of importance to the Slate of Hawaii. shows the Property as being unclassified. Also, the Land Study Bureau classifies the soil on the Property under its detailed land classification system, as "D"or"Poor" for agricultural activity. 30. No archaeological sites have been found on the Property, and its is surmised that any pre-existing sites would have been destroyed by the lava flow of 1880-1881. Although Connections submitted a request to the State Historic Preservation Division("SHPD"), by letter dated August 17, 2010, requesting a"no-effect"determination from that agency, SHPD has not responded to the request. 31. A portion of the Kaumana Cave is accessible from the upper portion of the Property. Connections is proposing to refrain from constructing any major school facilities on the upper portion of the Property and to maintain a minimum 100-foot buffer on either side of the cave alignment to alleviate concerns about impact from the Development on the cave ecosystem. 32. A botanical survey of the Property identified l i native plant species, but none of those species are considered protected species. 33. Invertebrate, mammalian and field surveys were conducted on the Property. No protected species were documented to be present on the Property. 34. No traditional or customary native Hawaiian rights have been identified as being exercised on the Property. Likewise, there is no known public access to the mountains or the shoreline that runs through the Property. 1V. STATE AND COUNTY PLANS 35. The Property is within the State Land Use Agricultural District. A school is not a permitted use within the Agricultural district; however, a school may be permitted in this district if a special permit is obtained for such use pursuant to Section 205-6, HRS and Rule 6 of the Commission Rules. 36. The County of Hawaii General Plan Land Use Pattern Allocation Guide ("LUPAG") Map designates the Property for low density urban uses. The LUPAG designation of Low Density urban use, allows for residential uses, with ancillary community and public uses,and neighborhood and convenience-type commercial uses. The Development is not proposed to be a community or public use for the Kaumana area of Hilo- 7 37_ The County of Hawaii zoning for the Property is Agricultural with a minium lot size of one-acres (A-la). Under Section 25-5-77(d) of the Hawaii County Code, a school is permitted in an Agricultural zoned district provided that a special permit is issued for the use if the land is within the State hand Use Agricultural District. 38. The Development, which is proposed to be located on State land, is subject to the Hawaii State Environmental Impact Statement law, Chapter 343, HRS. Connections prepared an environment assessment in accordance with Chapter 343, and declaration with a finding of no significant impact was issued For the Development by the State of Hawaii Department of Land and Natural Resources. 39_ The Property is not situated within the Special Management Area ("SMA"), since it is located over three miles from the nearest shoreline. Thus, the coastal environmental considerations relating to the SMA are not applicable to the subject Property. V. SPECIAL PERMIT REQUIREMENTS 40. BRS Section 707-6, which governs special permits,provides in pertinent as follows. "(a) The county planning commission may permit certain unusual and reasonable uses within agricultural . . . districts other than those for which the district is classified. Any person who desires to use the person's land within an agricultural . . .district other than For an agricultural . . .use. . .may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired. . "(c) The county planning commission may, under such protective restrictions as may be necessary,permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter... "(d)Special permits for land the area of which is greater than fifteen acres. . . shall be subject to approval by the land use commission. The land use commission may impose additional restrictions as may be necessary or appropriate in granting the approval including the adherence to representations made by the applicant." 41. Planning Commission Rule 6-7,provides, in pertinent part, that "(t]he Commission shall not approve a Special Permit unless it is 8 found that the proposed use "(a) Is an unusual and reasonable use of land situated within the Agricultural. . .District. . ,; and "(b) Would promote the effectiveness and objectives of Chapter 205, I-Iawaii Revised Statutes, as amended_ "The Commission shall also consider the criteria listed under Section 6.3(b)(5)(A) through(G)." 42. The seven criteria under Planning Commission Rule 6.3(b)(5)(A) through(G) are: "(A) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations; "(II) The desired use shall not adversely affect surrounding properties; "(C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and Fre protection; "(D) Unusual conditions, trends and needs have arisen since the district boundaries and regulations were established; "(E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district; "(F) The proposed use will not substantially alter or change the essential character of the land and the present use; and "(G) The request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design plans." 43. Although Gomes asserts that the criteria for a use permit should be considered in the subject application, that criteria is not relevant to a special permit determination. Vl. APPLICATION OF SPECIAL PERMIT CRITERIA TO THE DEVELOPMENT A. Land Use Law Obiectives 4-4. The purpose of the State Land Use Law is to preserve the lands of high agricultural 9 potential fai agricultural us= The Property consists of land that is not considered highly valuable for agricultural uses Thus, the use of the Property for a school is not contrary to the objectives sought to be accomplished by the State Land Use Law. 45. Likewise, the Development, which proposes the construction of a school for 381 students and related facilities is not akin to a major recreational theme park attracting 1.5 million people each year to the area. Therefore, such a development would not frustrate the objectives and effectiveness of the Hawaii's land use scheme and would not require a State land use boundary amendment in lieu of a special permit. Neighborhood Board No. 24 vs. State Lard Use Commission,64 Haw. 265, 272, 639, P.2d 1097, 1103 (1982). B. Affect on Surrounding Properties 46. Based upon the testimony from surrounding and neighboring property owners, the Development will have an adverse effect on surrounding properties by creating noise, traffic, and impacting the quality of life of the adjoining residents. 47. Measures proposed by Connections, regarding the establishment of building setbacks and roadway improvements to Edita Street do not appear to be sufficient to mitigate the overwhelming concerns raised by surrounding property owners. C. Burden on Public Agencies to Provide Services 48. There is insufficient water available from the County system to service the Development_ Therefore, to allow the Development would unreasonably burden the Department of Water Supply to provide water for its facilities. 49. There is no evidence that Connections has the ability to develop a potable water source as a mitigating measure, previously proposed by the Director. 50. A mitigating measure previously proposed by the Director of limiting the number of students to the amount of potable water available to the project is not reasonable because Connections is proposing to construct a highschool for 107 students its first phase, when the potable water available would only allow for 70 students. 51. As such, the proposed use may unreasonably burden the County Department of Water Supply to provide water to the Development. 10 1] Unusual Conditions. Trends and Needs 52. Unusual conditions and needs have arisen since the establishment of this land use district in the 1970s, because the arca in which the Property is located has essentially become residential in character. Also, the County General Plan LUPAG map recognizes this trend by designating the area for low density urban use. However, there was no evidence presented to demonstrate that location of a school that is not intended to specifically service the needs of the immediate community is such an unusual condition, trend or need that justifies location of the Development at this location. E. Suitability of Land for Agricultural Uses 53. The Land Study Bureau soil classification rating for the Property is "D" or"Poor", which suggests (hat the land may be unsuited for agricultural uses. 54. Connections is proposing to maintain the upper portion or nearly one-half of the Property for forestry use. In addition, Connections is proposing to construct greenhouses on the Property and conduct an agricultural program in conjunction with its curriculum. 55. Based upon the representations of Connections, it cannot be found that the Property is unsuited for agricultural uses. F. Alteration or Change of the Essential Character of the Land and Present Use 56_ The Property is presently a forest and is vacant of any structures. The lower half of the Property will be converted into a school with classrooms, dormitories, a gymnasium cafeteria and parking lots. 57. The Development of a school will change the essential character of the forested land and its undeveloped use. G. Consistency with the General Plan 58. The County General Plan LUPAG map designates the Property for low density urban use. "Low density uses'under the General Plan include residential, with ancillary community and public uses,and neighborhood and convenience-type commercial uses. 59. The Development, which proposes a charter school that is not specifically intended to service the immediate community surrounding the school, is not consistent with the uses permitted in areas of low density urban use.. Il 60, The Economic, Public facilities and Land Use elernerits of the County Gencral Plan all require consideration of social and community concerns as follows: Economic Element - Goal "Provide an economic environment that allows new, expanded, or improved economic opportunities that are compatible with the County's cultural, natural and social environment." Public Facilities Element- Goal "Encourage the Provision of public facilities that effectively service the community and visitor needs and seek ways of improving public service through better and more functional facilities in keeping with the environmental and aesthetic concerns of the community." Land Use Element - Policy "Encourage the development and maintenance of communities meeting the needs of its residents in balance with the physical and social environments." 61. The evidence has established significant concerns from the community regarding the compatibility of the Development with the surrounding community. 62. Although the County General Plan Public Facilities-Education course of action for South Hilo encourages the establishment of additional schools as the need arises, the proposed Development, at the subject location, is contrary to the General Plan, VII. UNUSUAL AND REASONABLE USE OF LAND 63. The construction of school on the Property is an unusual use of the land because a school is not a permitted use in the State Land Use Agricultural District. However, the evidence presented does not demonstrate that the Development is a reasonable use of the Property. Specifically, Connections has not demonstrated how this school can be built without sufficient potable water resources. Nor, has Connections demonstrated how the development of a regional charter school on the Property that does not specifically service the needs of the immediate community and that is overwhelmingly objected to by the immediate community is a reasonable site for this facility. In addition, Connections has not demonstrated that the Development meets 12 most of the criteria to be considered by the Commission in the subject application. CONCLUSIONS OF LA1�' Based upon the foregoing Findings of Fact,the your Hearing Officer makes the following Conclusions of Law; 1. To the extent that any of the Findings of Fact constitute Conclusions of Law, or Conclusions of Law constitute Findings of Fact, they shall be considered and construed as such. 2. The Commission has jurisdiction over the subject special permit application, including the ability to deny or recommend its approval to the State Land Use Commission, pursuant to Section 205-6, HRS and Rule 6 of the Commission Rules. 3. Connections had the burden of proof on this matter before the Commission, including the burden of producing evidence as well as the burden of persuasion, by a preponderance of evidence, to demonstrate how its request is consistent with the guidelines for a special permit as outlined by Section 205-6, HRS and Rule 6 of the Commission Rules. Connections has failed to meet this burden. 4. The Development does not adequately meet the requirements or guidelines for a special permit as required by Section 205-6, HRS and Rule 6 of the Commission Rules. 5. The Development is not consistent with the County General Plan, particularly as to the impacts on the immediate community. HEARING OFFICER'S RECOMMENDATION Based upon the preceding Findings of Fact and Conclusions of Law, your Hearing Officer recommends to the Windward Planning Commission of the County of Hawaii that Special Permit Application SPP No. 12-000138 of Connections New Century Public Charter School and Community Based Education Support Servi es be denied. DATED- DATED: Hilo, Hawaii, rq 94! �� SANDRA C ER ONG Hearing Officer 13 BEFORE: THE PLANNING COMMISSION, COUNTY OF HAWAII In the Matter of ) SPP No, 12-000138 CONNECTIONS NEW CENTURY PUBLIC ) CERTIFICATE OF SERVICE CHARTER SCHOOL and COMMUNITY ) BASED EDUCATION SUPPORT ) SERVICES ) } Application for Special Permit Application ) No. 12-000138 } } TMK; (30 2-5-006-141; Kaumana, South ) Hilo, Hawaii ) CERTIFICATE OF SERVICE hereby certify that on this date, a copy of the foregoing was duly served upon the following parties by depositing the same in the U. S, mail, postage prepaid, and by e-mailirig a copy, addressed tm Ted H.,S. Hong, Esq. (ted(2u tedhonalaw,com) P. O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant Community Based Education Support Services Carter K. Siu, Esq. (Carter.K.Siuna.hawaii.gov) Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Attorney for Applicant Connections New Century Charter School Amy G. Self, Esq. aself co.hawaii.hi.us) Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 95720 Attorney for County of Hawaii Planning Director Jeffrey K. Gomes (katanigomesnhawaiiante].net) 281 Edita Street Hilo, Hawaii 96720 Intervenor pro se Daryn Arai (daraiaaco_hawaii.hi.us) Jeffrey Darrow(idarrawOco.hawaii.hi.us) County of Hawaii Planning Department 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720 Windward Plannin Commission Staff DATED: Hilo, Hawaii, 7 f SANDRA PECHTER SONG Hearing Officer 2 0 a County of Hawaii Planning Commission 101 Pauahi Street, Suite 3 Hilo, Hawai'i 96720-4224 Telephone: (808)961-8288 Facsimile: (808) 961-8742 BEFORE THE COUNTY OF HAWAPI PLANNING COMMISSION In the Matter of SPP No. 12-000138 CONNECTIONS NEW CENTURY PUBLIC COUNTY OF HAWAI`l WINDWARD CHARTER SCHOOL AND COMMUNITY PLANNING COMMISSION'S BASED EDUCATION SUPPORT ; FINDINGS OF FACT, CONCLUSIONS OF SERVICES LAW AND DECISION AND ORDER; CERTIFICATE OF SERVICE Application for Special Permit Application No. 12-000138 Argument and Decision: Date: 511114 TM K: (3)2-5-006-141; Kaumana, South Location: Aupuni Center, Hilo, Hawaii Hilo, Hawaii COUNTY OF HAWAPI WINDWARD PLANNING COMMISSION'S FINDINGS OF FACT, CONCLUSIONS OF LAW T AND DECISION AND ORDER The County of Hawaii, Planning Commission submits its Findings of Fact,Conclusions of Law and Decision and Order pursuant to the request of the Windward Planning Commission of the County of Hawaii at its May 1,2014, meeting in Hilo, Hawaii. Present before the Commission were Ted H. S. Hong, counsel for Applicant Community Based Education Support Services; Carter K. Siu, Deputy Attorney General, for Applicant Connections New Century Public Charter School (hereinafter collectively referred to herein as"Connections"); Amy G. Self, Deputy Corporation Counsel, for County of Hawaii Planning Director(herein as "Director"); Jeffery K. Gomes (herein as "Gomes"), Intervenor, Pro Se; and Sandra Pechter Song, the Hearing Officer(herein as "Hearing Officer"), The contested case hearings by the I EXHIBIT "2." Hearing Officer were held on October 21, and 22, 2013, November 12, 2013, January S and 22, 2014. FINDINGS OF FACT I. Procedural BackpTound 1. This matter involves an application filed by Connections on July 25, 2012, for a special permit, pursuant to Section 205-6, Hawaii Revised Statutes ("HRS")and Rule 6 of the County of Hawaii Planning Commission Rules of Practice and Procedure(hereinafter "Commission Rules") to allow the development of a charter school campus with dorm facilities and related improvements for students in kindergarten through twelfth grade (hereinafter, the "Development"), on 70.15 aures of land situated within the State Land Use Agricultural District, at Ponahawai, Kukuau 2nd, South Hilo, Hawaii, commonly referred to as the Kaurnana area of Hilo, designated by State of Hawaii Tax Map Key ("TMK") (3) 2-5-006:141 (hereinafter, the f "Property"). 2. Connections has leased the Property on which the Development is proposed from the State of Hawai`i under General Lease No. 5-6029, 3. Notices of the Windward Planning Commission of the County of Hawaii (hereinafter "Commission") hearings on the proposed Development were provided to property owners surrounding the proposed Dcveloprnent. 4. The Commission held public hearings on the Connections application on November 9,2012 [sic], December 6,20I2 and January 10, 2013. At the hearing held on January 10, 2013, the Commission moved [sic] to deny the Connections application and instructed the Commission staff to prepare proposed findings of fact, conclusions of law and order, which would be considered for adoption by the Commission at its meeting of March 7, 2013. 5. At the Commission meeting of March 7, 2013, the Commission suspended the preparation of the findings of fact, conclusions of law and order, and granted a request by Connections for a contested case on the subject application. Games submitted a petition to intervene in this matter on March 7, 2013, and the Commission admitted him as a party to the proceeding. 2 6. A petition to intervene in this proceeding was filed by Terrence Yoshioka on November 4, 2013, after the contested case hearing in this proceeding had already commenced On November 8,2013, the Hearing Officer denied this petition in accordance with Rule 4-6 of the Commission Rules, on the ground that the subject petition was untimely filed. 7. The Director is a party to this proceeding pursuant to Rule 4-7(a)of the Commission Rules. The Director initially recommended approval of the Connections application, subject to specific conditions, but took no position on the application at the contested case hearing. 8. The subject application involves a parcel of land greater than fifteen acres in area. Therefore, any permit approved by the Commission is subject to final approval by the State Land Use Commission, H. Proposed Development A. General Description 4_ The Connections application proposes the development of a K to 12 charter school campus with dorm facilities, and an intergenerational program that would provide childcare and elder care at a single facility on the Development, together with related uses on the 70-acre parcel of land. As the site is bisected by $dita Street, the lower portion of the Development would consist of the major school or campus facilities, while the upper portion would be used for outdoor type of educational programs, including a forestry preservation program. 10. The lower campus would support a projected 167 elementary students, 107 intermediate students, t07 high school students(381 K through 12 students)and 25 intergenerational clients. Also included would be a dormitory capable of supporting 30 students, a gymnasium, kitchen/dining facility, library/resource center, caretaker's residence and other related facilities. Two parking lots capable of supporting 140 parking stalls would be provided. 1 1. The Development would relocate and expand the existing charter school which is presently operating from two separate campuses. The elementary and middle schools are located in the Kress Building on Kamehameha Avenue, in downtown Hilo, and the high school is located in leased facilities at the Nani Mau Gardens,just outside of Hilo town. 12. Connections proposes having 50 full-time and 17 part-time employces at full build- out of the Development, which is the same number presently employed for this charter school. 3 1 3. Connections anticipates that 50%of the student population will come from the Hike area and 50% from the Puna area miles away from the Development. The present student population for this charter school is composed primarily of students from these two geographic areas. 14. The Development does not propose to establish a charter school on the Property to serve the needs of the immediate vicinity in the Kaumana area of Hilo, although some students from the area may attend this school. 15. The Development is intended to be constructed in 9 phases and completed within 16 to 25 years. The First phase would include the caretaker's residence, high school and administration building, with the projected opening to be within 2.5 to 3.5 years. B. Public Utilities and Services Access/Traffic 16. Acccss to the Development is proposed from Edita Street which connects with Kaumana Drive,a major Hilo artery. Both roads are owned and maintained by the County of Hawaii. Fdita Street has a 60-foot right-of-way width, with a 48-foot wide pavement width fronting the Development. The paved area accommodates two 20-foot wide travel lanes, a 20-foot wide shoulder on the northeast side of the road, and an 8-foot wide shoulder on the southwest side. Edita Street is in good condition; however, the Hawaii County Police Department recommended that the unpaved shoulder along Edita Street extending from Kaumana Drive to the Development should be paved so that pedestrians could safely walk along thc shoulder_ 17. A Traffic Impact Analysis Report("TIAR")dated June 28, 2010,was prepared in conjunction with the Connections application for the purpose of evaluating the Development's impact at the Development's entrance at Edita Street and al the Edita and Kaumana Drive intersection. Based upon traffic counts taken on May 28,2009, the TIAR found that the current level of service or LOS operates as LOS "A"or"B", meaning that the traffic service is uncongested. The TIAR also concluded that upon full build-out of the Development, the LOS will continue to operate at levels"A"or"B". Although the TIAR concludes that traffic will not be adversely affected by reason of the Development, the County Department of Public Works 4 recommended that a separate left turn lane onto the Development from Edita Street should be constructed to alleviate congestion, and that Connections should prepare a comprehensive traffic management plan for the Development. 18. Notwithstanding the findings of the TIAR and the recommendations of the Police Department and Department of Public Works, the area residents uniformly expressed concerns about the adverse traffic impact of the Development along Edita Street and Kaurnana Drive. Also, residents objected that the TZAR was four years old and the traffic counts contained in the TIAR were taken when certain schools were not in session. Water 19. A maximum of 4,200 gal ions per day(hereinafter"gpd") of water or seven (7) water units from an existing 8-inch waterline on Kaumana Drive for the upper campus and from an existing 8-inch waterline on Edila Street for the lower campus, is available from the County of Hawaii municipal water system to service the entire Development. Based on a 60 gpd per student standard, 4,200 gallons of County water could only support 70 students. At full build-out the entire Development would require 26,100 gpd. 20. Notwithstanding the unavailability of potable water from the County system for the Development,the existing 8-inch waterline within Edita Street is adequate to provide the required 2,000 gallons of water per minute for fire protection of the proposed Development. 21. The available water from the County of Hawaii municipal water system is insufficient to support the first phase of the Development. 22. Connections has proposed using water efficient fixtures and supplementing the available County water with either a catchment system for tion-potable water or developing an additional water source. However, Connections has not produced any evidence to demonstrate that it has or can develop sufficient water for the Development. Wastewater 23. Connections is proposing to provide its own wastewater system meeting the requirements of the State of Hawaii Department of Health(hereinafter"DOH"). Connections prefers installing an ecological/biological wastewater system called the"Living Machine." 5 However, should such a system prove to be unfeasible, Connections would install a traditional septic system with leach fields or any other system required by DOH. Drainap, 24. The Property is located within Zone"X"on the U.S. Department of Army Corps of Engineers Flood Insurance Rate Map, which means that the Property is outside the 500-year flood plain. Notwithstanding this flood designation, during severe storms water has been known to overtop the concrete channel and flow across Edita Street, resulting in flooding of adjacent properties. Connections proposes to prepare detailed engineering studies for the purpose of developing appropriate drainage glans to address the potential flood hazard posed by the present condition of Edita Street. Utilities 25. Electrical and telephone services are available to the Property through overhead lines along Edita Street and Kaumana Drive. Public Safety 26_ The Hawaii County Police Department expressed concem that the Development would increase noise, crime and traffic. However, there was no evidence that the Police Department lacks the ability to provide police protection for the Development. Ill. PHYSICAL CHARACTERISTICS OF THE PROPERTY AND SURROUNDING AREAS 27, The Property is presently vacant and undeveloped. 28. Surrounding lands to the south and west of the Property are zoned A-la, with properties further south being zoned A-20a and A-10a [sic]. Lands to the north of the Property are zoned RS-10 and RS-15, with some lands zoned A-3a further north across Kaumana Drive. One parcel is also zoned Open adjoining the northeast corner of the lower portion of the Property, Surrounding uses consist mainly of single-family residences with some vacant lands, and a small percentage of agricultural activity. 29. The soils on the Property are primarily composed of pahoehoe lava flow. The State Department of Agriculture's map showing agricultural lands of importance to the State of Hawai'i shows the Property as being unclassified. Also, the Land Study Bureau classifies the 6 sail on the Property under its detailed land classification system, as"D"or"Poor" for agricultural activity. 30. No archaeological sites have been found on the Property, and it is surmised that any pre-existing sites would have been destroyed by the lava flow of 1880-1881. Although Connections submitted a request to the State Historic Preservation Division ("SHPD"), by letter dated August 17, 2010, requesting a"no-effect"determination from that agency, SHPD has not responded to the request. 31. A portion of the Kaumana Cave is accessible from the upper portion of the Property. Connections is proposing to refrain from constructing any major school facilities on the upper portion of the Property and to maintain a minimum 100-foot buffer on either side of the cave alignment to alleviate concerns about impact from the Development on the cave ecosystem. 32. A botanical survey of the Property identified 1 t native plant species, but none of those species arc considered protected species. 33. Invertebrate, mammalian and Feld surveys were conducted on the Property. No protected species were documented to be present on the Property. 34. No traditional or customary native Hawaiian rights have been identified as being exercised on the Property. Likewise, there is no known public access to the mountains or the shoreline that runs through the Property. IV. STATE AND COUNTY PLANS 35. The Property is within the State Land Use Agricultural District. A school is not a permitted use within the Agricultural district; however,a school may be permitted in this district if a special permit is obtained for such use pursuant to Section 205-6, HRS and Rule 6 of the Commission Rules. 36. The County of Hawaii General Plan Land Use Pattern Allocation Guide("LUPAG") Map designates the Property for low density urban uses. The LUPAG designation of Low Density urban use, allows for residential uses, with ancillary community and public uses, and neighborhood and convenience-type commercial uses. The Development is not proposed to be a community or public use for the KaGmana area of Hilo. 7 37 The County of Hawaii zoning for the Property is Agricultural with a minimum lot size of one acre (A-la). Under Section 25-5-72(d) of the Hawaii County Code, a school is permitted in an Agricultural zoned district provided that a special permit is issued for the use if the land is within the State Land Use Agricultural District. 38. The Development, which is proposed to be located on State land, is subject to the Hawaii State Environmental Impact Statement law, Chapter 343, HRS. Connections prepared an environment assessment in accordance with Chapter 343, and declaration with a finding of no significant impact was issued for the Development by the State of Hawaii Department of Land and Natural Resources. 39. The Property is not situated within the Special Management Area ("SMA"), since it is located over three miles from the nearest shoreline. Thus, the coastal environmental considerations relating to the SMA are not applicable to the subject Property. V. SPECIAL PERMIT REQUIREMENTS 40. HRS Section 205-6, which governs special permits, provides in pertinent as follows= "(a) The county planning commission may permit certain unusual and reasonable uses within agricultural . . . districts other than those for which the district is classified. Any person who desires to use the person's land within an agricultural . _ .district other than for an agricultural . . .use. . .may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the mariner desired. "(c)The county planning commission may, under such protective restrictions as may be necessary,permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter... "(d) Special permits for land the area of which is greater than ftfleen acres. . . shall be subject to approval by the land use commission. The land use commission may impose additional restrictions as may be necessary or appropriate in granting the approval including the adherence to representations made by the applicant." S 4J. Planning Commission Rule 6-7, provides, in pertinent part, that: "[t]he Commission shall not approve a Special Permit unless it is found that the proposed use "(a) Is an unusual and reasonable use of land situated within the Agricultural. . .District. . .; and -(b) Would promote the effectiveness and objectives of Chapter 205, Hawaii Revised Statutes, as amended. "The Commission shall also consider the criteria listed under Section 6.3(b)(5)(A) through (G)." 42. The seven criteria under Planning Commission Rule 6.3(b)(5)(A) through(G) are: "(A) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations; "(B) The desired use shall not adversely affect surrounding properties; "(C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and fire protection; "(D) Unusual conditions, trends and needs have arisen since the district boundaries and regulations were established; "(E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district; "(F) The proposed use will not substantially alter or change the essential character of the land and the present use; and "(G) The request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design plans." 43. Although Gomes asserts that the criteria for a use permit should be considered in the subject application, that criteria is not relevant to a special permit determination. 9 VI APPLICATION OF SPECIAL. PERMIT CRITERIA TO THE DEVELOPMENT A. Land Use Law Objectives 44. The purpose of the State Land Use Law is to preserve the lands of high agricultural potential for agricultural use. The Property consists of land that is not considered highly valuable for agricultural uses. Thus, the use of the Property for a school is not contrary to the objectives sought to be accomplished by the State Land Use Law. 45. Likewise, the Development, which proposes the construction of a school for 381 students and related facilities is not akin to a major recreational theme park attracting 1.5 million people each year to the area. Therefore, such a development would not frustrate the objectives and effectiveness of the Hawai`i's land use scheme and would not require a State land use boundary amendment in lieu of a special permit. Neighborhood Board No. 24 vs_ State Land Use Commission, 64 Flaw. 265, 272, 639, P.2d 1097, 1 103 (1982). B. Affect on Surrounding Properties 46. Based upon the testimony from surrounding and neighboring property owners, the Development will have an adverse effect on surrounding properties by creating noise, traffic, and impacting the quality of life of the adjoining residents. 47. Measures proposed by Connections, regarding the establishment of building setbacks and roadway improvements to Edita Street do not appear to be sufficient to mitigate the overwhelming concerns raised by surrounding property owners. C. Burden on Public Agencies to Provide Services 48. There is insufficient water available from the County system to service the Development. Therefore, to allow the Development would unreasonably burden the Department of Water Supply to provide water for its facilities. 49. There is no evidence that Connections has the ability to develop a potable water source as a mitigating measure, previously proposed by the Director. 50. A mitigating measure previously proposed by the Director of limiting the number of students to the amount of potable water available to the project is not reasonable because Connections is proposing to construct a high school for 107 students its first phase, when the potable water available would only allow for 70 students. 10 5l. As such, the proposed use may unreasonably burden the Courtly Depamnent of Water Supply to provide water to the Development. D. Unusual Conditions,Trends and Needs 52. Unusual conditions and needs have arisen since the establishment of this land use district in the 1970s, because the area in which the Property is located has essentially become residential in character. Also, the County General Plan LUPAG map recognizes this trend by designating the area for low density urban use. However, there was no evidence presented to demonstrate that location of a school that is not intended to specifically service the needs of the immediate community is such an unusual condition, trend or need that justifies location of the Development at this location. E. Suitability of Land for A bicultural Uses 53. The Land Study Bureau soil classification rating for the Property is "D" or"Poor," which suggests that the land may be unsuited for agricultural uses. 54. Connections is proposing to maintain the upper portion or nearly one-half of the Property for forestry use. In addition, Connections is proposing to construct greenhouses on the Property and conduct an agricultural program in conjunction with its curriculum. 55. Based upon the representations of Connections, it cannot be found that the Property is unsuited for agricultural uses. F Alteration or Change of the Essential Character of the Land and Present Use 56. The Property is presently a forest and is vacant of any structures. The lower half of the Property will be converted into a school with classrooms,dormitories, a gymnasium cafeteria and parking lots. 57. The Development of a school will change the essential character of the forested land and its undeveloped use. G. Consistency with the General Plan 58. The County General Plan LUPAG map designates the Property for low density urban use. "Low density uses" under the General Plan include residential, with ancillary community and public uses, and neighborhood and convenience-type commercial uses. Il 59. The Development, which proposes a charter school that is not specifically intended to service the immediate community surrounding the school, is not consistent with the uses permitted in areas of low density urban use. 60. The Economic, Public Facilities and Land Use elements of the County General Plan all require consideration of social and community concems as follows' Economic Element -Goal "Provide an economic environment that allows new, expanded, or improved economic opportunities that are compatible with the County's cultural, natural and social environment." Public Facilities Element- Goal "Encourage the Provision of public facilities that effectively service the community and visitor needs and seek ways of improving public service through better and more functional facilities in keeping with the environmental and aesthetic concerns of the community." Land Use Element- Policy "Encourage the development and maintenance of communities meeting the needs of its residents in balance with the physical and social environments." 61. The evidence has established significant concerns from the wmmunity regarding the compatibility of the Development with the surrounding community. 62. Although the County General Plan Public Facilities-Education course of action for South Hilo encourages the establishment of additional schools as the need arises, the proposed Development, at the subject location, is contrary to the General Plan. VII. UNUSUAL AND REASONABLE USE OF LAND 63. The construction of a school on the Property is an unusual use of the land because a school is not a permitted use in the State Land Use Agricultural District. However, the evidence presented does not demonstrate that the Development is a reasonable use of the Property. Specifically, Connections has not demonstrated how this school can be built without sufficient potable water resources. Nor,has Connections demonstrated how the development of a regional 12 charter school on the Property that does not specifically service the needs of the immediate community and that is overwhelmingly objected to by the immediate community is a reasonable site for this facility. In addition, Connections has not demonstrated that the Development meets most of the criteria to be considered by the Commission in the subject application. CONCLUSIONS OF LAW Based upon the foregoing Findings of Fact, the Commission makes the following Conclusions of Law: 1. To the extent that any of the Findings of Fact constitute Conclusions of Law, or Conclusions of Law constitute Findings of Fact, they shall be considered and construed as such. 2. The Commission has jurisdiction over the subject special permit application, including the ability to deny or recommend its approval to the State Land Use Commission, pursuant to Section 205-6, HRS and Rule 6 of the Commission Rules. 3. Connections had the burden of proof on this matter before the Commission, including the burden of producing evidence as well as the burden of persuasion, by a preponderance of evidence, to demonstrate how its request is consistent with the guidelines for a special permit as outlined by Section 205-6, HRS and Rule 6 of the Commission Rules. Connections has failed to meet this burden. 4. The Development does not adequately meet the requirements or guidelines for a special permit as required by Section 205-6, HRS and Rule 6 of the Commission Rules. 5.The Development is not consistent with the County General Plan,particularly as to the impacts on the immediate community. ORDER Based upon the preceding Findings of Fact and Conclusions of Law, Special Permit Application SPP No. 12-000138 of Connections New Century Public Charter School and Community Based Education Support Services to develop a K to 12 charier school campus with 13 dorm facilities and related uses on 70.15 acres situated within the State Land Use Agricultural District is hereby denied. Dated: Hilo, Hawaii, ^ MAY t 2014 B -- 1�-- Y 2 RONALD GONZALES, Chairman Windward Planning Commission 14 BEFORk THE COUNTY OF HAWAP] PLANNING COMMISSION In the Matter of SPP No. 12-000138 CONNECTIONS NEW CENTURY PUBLIC CERTIFICATE OF SERVICE CHARTER SCHOOL. AND COMMUNITY BASED EDUCAT(ON SUPPORT SERVICES Application for Special Permit Application 3 No. 12-000138 TMK: (3) 2-5-006-[4I; Kaumana, South Hilo, Hawai'i CERTIFICATE OF SERVICE I hereby certify that on this date, a copy of the foregoing was duly served upon the following parties by depositing the same in the U. S, mail, postage prepaid, and by e-mailing a copy, addressed to: Ted H. S. Hong, Esq. (ted tedhon aw.com) P. 0. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant Community Based Education Support Services Carter K. Siu, Esq. (Carter.K.S iuPhawaij.gov) Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu,Hawaii 96813 Attorney for Applicant Connections New Century Charter School Amy G. Self, Esq. (asell@co.hawaii.hi.us) Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for County of Hawaii Planning Director Mr. Jeffrey K. Gomes (Iialanjlzomcs(WhawaFiantel.net) 281 Edita Street Hilo, Hawaii 96720 Intervenor pro se Mr. Duane Kanuha, Planning Director(plannin co.hawaii.hi_us) County ofHawai`i Planning Department 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720 Margaret Masunaga, Esq. (mkmasuna a_,co.hawaii.hi.us) Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway Kailua-Kana, Hl 96740 Attomey for County of Hawaii Planning Commission S 214 Dated: Hilo, Hawaii, MAY I R NALD GO ZALE , Chairman Windward Planning Commission 2 BEFORE HEARING OrFI.CER SANDRA _SONG COUNTY OF HAWAII In the Matter of Connection New } SPP-12-000138 Century Public Charter School and } Cc=unity Based Education Support ) Services ) Special Permit Application No . ) VOLUME II 12-000138 ) T R A N S C R I P T of the Public Hearing had in the above-entitled matter before Hearings Officer Sandra Song at 75 Aupuni Street, Conference Rooms, Hilo Hawaii 96720 commencing at 9 : 07 a .m. on October 22, 2013 . HEARINGS OFFICER: SANDRA SONG, ESQ. 10 Kamehameha Avenue Hilo, Hawaii 96820 REPORTED BY: M. Sharon Souza, CSR No . 189 Ex-3 001 I } j � 77 5 [i .II 1I. s 4 guidelines -Prat is riot -- my -irderstartding is that 5 charter schoc;ls were set up so -- and they do not have 5 to follow quidelines . So that ' s why I ' rr saying, -hey can Pi-'k and chncrs- whether r(� do it car nor . Q . Okay. I might- have misunderstood your r estiM,-)ny . 1C� MR . STU : Okay, that ' s all . 1 ? TETF HEAP :N��S OFFICER : t?s . f , -jI-t -ass 1 ' exar, { MS . SE:,TF nCT . 14 THF HEAR I NG5 OFFICER : Any r edi re('t 16 MR . COMES : No turther questions . i? THE HEARINGS OFFICER: Thank yo,i very m,-.ch, l Mr . Kanemoto, yoi-i ' re excused . 19 Mr- . Hong, yol-ir next witness is Mr . Yoshioka? 20 MR . HONG : That ' s right. , and we ' re looking at 21 Planning Commission records 1315 to 1328 for 22 Mr . Yoshioka . 23 TERRENCE YOSHIOKA 24 called as a witness by and on behalf of Applicant , 25 after having first been duly sworn, was examined and ISLAND COURT REPORTING & TRATISCRIP'TION SERVIrES Ex-3 002 R J 1 i 4 THF GIITME SS : Terrence Y(jshioka , 15,2 Mete Mand Streer , Hilo, Hawaii , 95720 . C THE HEARINGS OFFICER : Thank yuu . Mr . Hong , p Lease prooeed . DIRECT EXAMINATION BY MR . HONG : Mr . Yoshioka , thank you for yo�ir patience . Y'>>� T '�" �1 `-iE _I ;,I S'1".)pCJ 'Ilc3 �1'1C'�s r":Tl �iY l IIq rl--iment" Wi you, rhls Inafn1ng ? h Yes , l4 Q . Alld did yC-) coo sc A . Yes , 1 did . 16 Q . All right . Would you please hand them to me? 17 A . You had wanted four copies , I believe . 18 Q . That ' s correct . 19 A . I believe I have - - =0 Q . These are fair and accurate copies? 21 A. Yes , 22 Q . And they were printed up, and were they kept 23 by you? 24 A . Kept by me , yes , I went to the printers and 25 they printed it our for me , and it ' s been in my ISLAND CnTTP! R.EP(};�TTrIC TR 17CRi P 'ION ;:F'R—VICES Ex-3 003 �� } rS t iT t-' j I ('_I-S 1 5 _ ni- _ - it 4 Cort�T�.issior reords is a written Srate1tLent f rrenc_'e 5 Yosh i oka - -- 5 A. Uh hmm. Q . - - and Ir gees ori to page 132P . Ori yoga 8 recognize that particular document? 9 A . Yes , I do . 10 Q . And that ' s a document that. you submit red t o _11 nc� :1r1''?iIVj ��rrunIssiC,n . is tF, t 1 A . Yes , did . �� . All f Iii - - slrry, L4 yo .. s are r 1�ar " Ihf> appl ]cant- has not- i n any way , or 15 i)y driy , ecog_ltze-d s� ardard cf proof e-sta- b! ishect a 15 sufficient basis for the granting of this special s ? perm]-t . " Do you see that]? IR A. Yes , I do . 19 Q . Okay . Yesterday yol.r cited Section 207 of the 20 Hawaii Revised Statutes , and also referred to the 21 rlaianae Neighborhood Board case . My quest- iora is , what 22 is the legal standard of proof required by law? 23 A. Legal standard of proof , I think preponderance 24 of the evidence , I believe . 25 Q . Okay . Where , o you qet that from? ? �'��ID Ct)URT F�.EP.�r�'rrrr � '��A.f3SCR1 nTIOII .7ER��ICF�, Ex-3 004 °'J F'L d 1 }i!:•.�VV i �'j( 4 case .' 5 A . Yes , I don ' t recall . Q . You go later on -o say on he same page -- 7 mote , "There are no studies or data tr) support the need for an agrict.rltural program, '' do you see that? 9 A . Yes . 16 Q . And do you recall where iri Section 205-6 or 1 i ariy he hat yo,z h cl,e read 12 flaiarae Nelrahborhood Board, where : r sates tha`. "We an ail, L . i al EirC);Tram 14 of G i,,-ed o t he Ilse" - - 5 A . En , sn ' t horsed upon 1)osi t ion or any 16 provision specifically on Chapter 205 . 17 Q . Okay . I appreciate that . 18 ThE:m you go on at page 1317 , and talk about 19 the reasons for denial , essentially yo'i ' re preparing 20 like a finding of fact and conclusions of .'_ aw for the 21 Commission, right ? 22 A . Yes , basically, let me explain, and that -- 23 this is sort of a portion of my authorship . 24 Sidney Fuke also prepared much of what was in 25 this finding . So I cannon tell you what is my work �SrAN� Coy-JRT F.EP;)y`--F-Arr; 1, TRAINS(7PIP"C,?' ES Ex-3 005 1 =is 4 A . VjelI , at rhe ime , yes , and I did read it , and T agree with the provisions therein and signed it . 6 THE HEARINGS OFFICER : Excuse me , Mr . Yoshioka, could yoi-j -,se the rr,z crophone? 8 THE WITNESS : Oh, excuse nye . 9 BY MR . HONG : 10 �� . Okay. Well , I ' m. going to he asking you ii ( ,.est i ')r:s ,sP0C i i l :-"I aS(--)F;P i ;:e things t E'rit ! are wrstten 'here . if it ' s not Pa1- ,t what � ` VJL Vt r yCJia � i1S5 ` el i ?r-_ 1: ' s cif ;ti'hat 14 wro� e , and I ' 11 move >n t (-) the rear riiiestiorn. Now, at 1� page 1317 - - 16 A . Uh hmm. I-7 Q . - - there is a portion that states , " IC is this 18 reliance upon an agricultural program which it 19 justifies placing a schoo squarely in the midst of an 26 existing Sia bdivisicin and far from the residences of 21 its student , " do yo~1 see that ? 22 A. Yes , 23 Q . All right . In terms of an existing 24 subdivision, your subdivision is zoned Ag 1 , is that. 25 correct ? ISLAND C-,DUPT RE P1 rnTr- J�_ -TRkJSCP1PTT(DN SERVICE, Ex-3 006 8 0 j I ' S YtJ'1 KL 1 4 'with certain ry that I ' m the author of t_rli,s pro=vision . 5 I could be . F Q . Okay . Based on drat representation, let me j'-IMP ahead then to page 1 3 2 t) . A. Can you find out the paragraph, so I don ' t 9 have to sear ch fur it , because I don ' F- rave my z eading 10 glasses . 1 That s Li ;r- . ?nt-i ._�ir��. .. �1y, I rnar'..e(l --ip version )f the (zocliment. I 1-lave 1 ' �J fr)r [h t<, hagt, 132 14 A . Th hmrYl. wai - - 15 A . )h hnun . I7 Q , -- 1320 . 18 A . Item number 5 , what paragraph? I9 Q . Right . I ' m looking at the a first one, 20 " Schools can have significant adverse infrastructui: dl 21 and community impacts . Thus , they are not permitted 22 in the ,State Land land use agricultural district and 23 within the County residential and agricultural zones , " 24 did you write that or Mr . Fuke? 25 A . I believe Mr . Fuke did . I.SLc=) O'OT'RT R.FPC)PrTT\Tr_ � RuN.7CRI-PT 1O1i SER ''I CES Ex-3 007 ' � 4 agricultural zoned area? 5 A No , I was riot . �,,ow, T,;as rha` under a special 5 rermiT? Q . 1 believe so . 8 A . Then I think essentially what was intended to 9 be sai d was " hat schools are no-1 permitted asses within 10 an agricl.zltural district , except with the granting of a spe-"ial pelmir , ! 1, in)` trial ' lrrlp,' r�C� 12 �� . ifeII , the statement is pret t_y a'rsc71 _�te , " This , 1 3 `hey aL t, nut Pel'L-- t r pd . " 1 Tr, an ni'C , " n}it'd sir e 14 permit ted with a spe-i a I ise perrr.i r 1 � A . t'Iith a special �zse permit , heat clot permit ted 15 without one . 17 Q . Okay . But you would -- okay . And you don ' t 18 recall writing chat? 19 A. I don ' t recall_ writing it , but I 'm in 20 agreement with it . 21 Q . So they ' re not permitted within the State land 22 use ag unless they get a special permit ? 23 A . Right . 24 Q . If you go to page 1325 -- 25 A . Uh h= . I.7 -,ND C'GJRT REP( PTTAz ' k-- TR�i�,`SCR1Pi TC7P1 SER`J'10E,S Ex--3 008 �`' - I C,s 4 Q . Did yo,_i write that ? 5 A . No, I didn ' t . Q . Okay . And there ' s a part that talks about the 7 Hawaiian hawk at the bottom, in number 5 , sec and to 4 the last sentence on the bottom of the page , "The a Hawaiian hawk and Hawaiian hoary nat_s are known to lu roost in this area, " is that what yogi wrote or is that ] _ ,,:har_ Mr . F,.ke w~ .)t e Y0i-i know, it rr>>a1d be either -ne Cif us , becailsc I if l . . �:� ��i tr ti- -� i e_i seP ~_r i1 rJ :5 :1'") t�� nrt d �_)v IY,�," 14 property, in tact , landiPq A 01M twent '! Net in the 15 trees of my property . so K Ponid very well come frorr 16 me . I don ' t have a definite recollection one way or 17 the other . 1P Q . Did you happen to read the biological 19 assessment or the special permit application or even %D the final environmental assessment ? 21 A . Yes , I did, I did, but I don ' t recall 22 specifically information leading to this subject . 23 Q . Okay. At page - - jumping back - - I 'm sorry, 24 page 1323 , I 'm looking under -- number 1 25 A . U h hirun. 1SLAND COURT REPnwTTMQ A MPkNSCn'_IPTTON SERVICES Ex-3 009 " ' I 4 r t.�r1 S0 r sentence , " It sriouid also be noted that the impact of the proposed school would have the effe(-t of 6 urbanizing this area . " Did yogi write than or Mr . Fuke? P A . I believe Mr . Fuke dict, you know. I don ' t 9 remember whe(-her we had discussion about this , but. it LO is a sentiment that I also share . Al l I-i qrL AYE- -�o11 awar e rla yo':Y � 2 SC1iVISioI1 IS dI IgIiaf eU lrl s he �,_rW Cle isl r i.lbar, 1 ' _.,��� o;. Che C���sr�t_•y ', .rn-� i ���a�.? A - Yes , I ijt- 1 ' erre r eras at t ne r ' me, yeah . 1 U . Okay . 16 A . And i If you note the next senter.ce, " Even the 1-1 Kamehameha School campus in Keaau, although originally 18 approved via the special permit process , " so you know, 19 it does evidence the state of mind that schools are 20 not permitted in agricultural districts except with 21 special permit . 22 Q . Well , you ' re aware that currently that 23 Kamehameha Schools , two-thirds of the campus sits 24 currently on agriculturally zoned land and Lhe other 25 third still sits in urban zoned area? 1 =:l^1D CpriRT PE Pr) T-T,71-1 - rr arISCR I PT r,)D 5 r R`T10E2 Ex-3 0010 1n I I T_ Irl}', 11.l_f ti f e n'.[. 1 is , 4 Corlrt�issiorl? 5 A . Not particular ly . I think the stat-ement clues n clearly evidence- the fact that agricultural districts do nr)t permir schools . And I think that that was a -- that intent was adequately expressed in Ll-ie- 9 he9 docum.ent.ati-on that we subiiitted . 10 Q . Well , I ' m going to phrase it this way -- 1i A . TJi Would it be fair rr7 say It ,�,Tas r.nt_ your 151 ead rhe _rP- 1 -a--,t- 1?.Cj �_�..'?�-Ii;l S �P. ? 14 A . Det finitely ilr>t . 5 Q - Okay . Paqe 1324 , I ' m 1 ookil c1 at the se .ond to 15 the last paragraph, first sentence, "U,?hile the ? catchment system, " do you see that ? 18 A. Yes . 19 Q . "While the catchlr.ent system has been used in 20 areas where there is no public system., it is generally 21 not acceptable for public facilities , particularly 22 those geared to students . " 23 A . Uh h= . 24 Q . Did you write that or did Mr . Fuke? 25 A . Mr . Fuke did . C01-RT REpnPz-Tn;r: Tr;a�S(-?_?IPT1ON �ER',IICE Ex-3 0011 00 4 A . No, T was not . And in terms of `his particular project , 5 you ' re aware of the water use calcular- ions ttlat the Departrnent of ,later S,Apply - - T,,iell , yc),i ' re aware of 8 the Department of G�later Supply ' s limitations of 4200 9 gallons per day far this project ? 10 A. At the time this document ;as prepared, yes , I Pias a'.ti::ire , in i_d"t , froth TI[,, T ead! i Cjs o_ t n`1 r r Incl doc-'J-nen- s as We l AL1 rlgh! And yl_%'1 i �har it -- -ie 14 CcTinectIons Charrer- Sc-,hools st-ay w tr,in trial 1imif of 1` 42.00 gallons per day, that tial wry d fui f i I L the lh requirements of the Department of {,'later Supply, 1-' correct ? 1� A . For what student population_, and for what I9 particular needs -- I think it has to be -- 4200 gallons has to be limited to a particular nir,,ber of 21 people on the property that are utilizing this . So in 22 other words , it might be suitable for fifty , seventy 23 people . It might not be suitable for three to 24 four-hundred people . 25 4 . Do you recall seeing that trie Department of ISLr�TD r'OUR17 PFP )P-'TnTr �, 'TPLNISCRIPTrC)N SFT?%TTCRS Ex-3 0012 °�' �s, 4 others , I think, as well as Mr, . Fuke regarding the 5 inadequacy of tris amoi.rnt for the entire project . 6 Q . GVe l l , were you aware that C,-)nnec t_ ions is differer�- iating between using potable and non-porabie water on the campus? 9 A . 10le? 1 , are you still talking, though, about the lU number of people -- because potable water would still yc)'1 lCl Spi uci,.cp X dmPrjl nt r)f water to support A popuratiurl (-,f ami>>in,. of T 14 asslime t he pot ahle water td be ut i 11 zest r or X - rl"lrr.ber of people . ?� Q . So your concern is as long as there are X 1 number of people and *hat meets the requirements of 1.8 the Department of GJater Supply-- or it has to meet the 19 requirements of the Department of Water Supply -- 2'1 A. It should be . 21 Q . Okay. I ' m just jumping ahead . If you could 22 turn now to page 1902 , this is an oral statement -- 2 3 A . UJh hmm. 24 Q . -- or written oral statement of - - 25 A. I know what you mean . SE,A,ND COURT FEPnRT;r,TC mR �r.;SCRIn' 101 5ER-'IICE Ex-3 0013 °° 1 - e se I ✓t 4 A . I believe AN is ent i rely my - a by-product 5 of myself . 5 Q . Okay . And thea if you look at the 1904 - - ? A . Uh ham. 8 Q . -- that is basically another -- is that the 9 same document that we saw earlier in terms of your i0 reasons for denial of the document that we referred ro 1i earlier , 1:. A . It 1 noks like rhe same . 1 Q . And do ynu re-al l oak! ng any r-hange s t o r hci� i4 document that appears on page 1904? 1 � A . To be frank with you , 1 don ' t recall making K any changes to tris document if it is the same IV document as the previous one that we discussed . 18 Q . Okay . So in terms of just -- in terms of 19 those two particular documents , it ' s just you and 20 Mr . Fuke who wrote those, anybody else? 21 A . You know, as far as the document from 1904 and 22 on, that was Mr . Fuke and myself , it ' s a 23 co-authorship . 24 Q . Right , right , so I `m saying, the earlier 25 document , which you also titled, " reasons fc;r denial " I'SLA'ND COURT RFPn0MTMP n mQnNSCRIPTaON 9E VIC'ES Ex-3 0014 10 I i Y `vim_ 4 par t c,f t he t earn: r_ha t dr-a f t ed i t , and I know Mr . Fuke 7 was , but_ T don ' t kno�rj i f he had a thi r d party . 6 Q . And in terms of - - you ' re fartmiliar with trie `7 VCRs for the Paci fi - Plantation sl bdivision? 8 A. To be honest with you , I didn ' t even know that 9 we had any, bi_it I was informed by ethers , that yes , �e 19 do have . � . DoE,ey a 1 s, i ili orm yo,. that °� , . 12 proper torr f(_)r ar,y agr i cul 1 ural uses . 3 n . - wasr� ' r �Tr; rc ,�f t !�a'_ , rI-,) . I r, ,,; 1ci assu � 14 that. we can, nut it might be limited as to whar kind _ 5 of acaricult_ural use . For example , I just_ pianlect :<>>ir 16 cit-r,-is trees on r,-Ly property . So I guess that might be 17 considered a violatic)n if you can ' t do any 1s agric'.1ltural functions on the property. Best maybe in 19 terms of raising cattle , sheep -- 20 Q . Sure . Did you write any of the questions for 21 Mr . Gomes for the last two days of hearings? 22 A. Yes, T did . 23 Q . Okay. And which people did you help write 24 questions for that Mr. . Gomes could ask? 25 A . I think for the Planning Department and ISLAND Cr,-)TJPT REnrcD—Tarr- C m�7\hISCR-7PTION SER.VICFS Ex-3 0015 300 w e r L a P i a I j u- y 1)eing a Lawyer? A . No , I was not . 6 Q . You ' re doing that as an inrerested community I member? 8 A . Takes a bit of an explanation , you want me to 9 e_I P I a i r,-,) F) Q . LIell , let me ask you this question . Were yo,,.i being retained oi paid r n w-,-- rt t quest ion s A . NO , 1 was not . nkay . Bocanse 1 mean rhera in a prohibitior, 14 against ghost writing, or unautnor ized pracr ice of 19 law, right . I just wanted to make sure - - I 16 THE HEARINGS OFFICER : Mr . Ecuig , let , s not get 17 into than . 18 Ask the questions . 19 MR . HONG : I ' m just clarAying that ' s not what 20 he ' s doing . 21 THE HEARINGS OFFICER : He answered the 22 question . 23 A. That ' s why T was saying it ' s complicated, so 24 if you want me to explain, I ' ll explain . 25 BY MR . HONG : 1SLAND COURT RFPnP7T4& 0 TOLNSCRIPTTON SERVICES EX-3 0016 "' i i Y doing it under the supervision c,f a licensed attorney . Q . Okay . [^Iho is t-he 1 i censed at torrley? 5 A . Alan OKam.oto . Q . So you t.,iere drafting t-hings and t-hen sending it to Mr . Okamoto? 9 A . Yeah . lei Q . And he would come back He wo�:i d f(_)r 1", ant_, aper opt i t mess c t the q1 ies i or_s ha r f cit of t ed f() Mr {7omes . Find a I SCI i(I f l�.� _. rra!l' Pie �) eXi?i i eXp 1 a 1 C1 f_�r1 i4 E'P.ClYe SltllarlO:i . l _ hack r nsul � ed wi �h he Ha,.,iaii State Bar 15 Association ro determine to wr,.al extent I could I % irvoive myself in these proceedings , because I have an i� inactive license . So T labored under the assumption , i9 wrongly, I should add for a co,�ple of years , that a 22 restricted or inactive license only precludes me from 21 representing people in contested cases . Okay . And 22 then I found ouc that I cannot represent them, 23 whatever the type of case it might:, be; whether it ' s a 24 court case, or administrative body, et cetera . Arid I 25 cannot issue advice to them . But I can do so if it ' s ISLAND CO 'R"i' R.EPr RT;=,m IQ L'\J, 'R.I PTIOII SERVICES Ex-3 0017 l r 4 appropriateness . He was familiar with the background 5 of the case , and Lhen he gave approval to i t , and then 6 I presented it to Mr . Gomes . Q . Diel yo,_, pay Mr . Okamoto? 8 A . No . 9 Q . He was doing this pro Bono? 10 A . Up to this point , we spent about- two - - 12 4 . In of consv 1 r ar ion, was that in per son 14 A . With Mi . Okamoto , you mean? 15 Q Y ear. . 15 A . No , he came over to my house and spent two , 17 two-and-a-half hours going over the questions that i 18 had prepared for Mr . Thatcher and Mr . - - 19 Q . Ms . Shen? 20 A. Whoever was presenting the Planning 21 Department . It was not directed to anyone , it was 22 just Planning Department . 23 Q . Did you and Mr . Okamoto study the Planning 24 Commission record or any evidence of the Planning 25 Commission? ISLAND COURT REnr'pOr,,rr 0 7DANSCRIPTION SER1iICES Ex-3 0018 '00 1 f ' { k 4 this record . 5 Q . Did he review the special permit application? 5 A . Yes , he did, yeah . Q . Did he mark i t lip and pro,,,i de y-),a any 9 comments? 9 A . NO , ILL) . 10 Q . Did he look at the Fina : FA? �. A . "es , t_e did , I bel ievu I)i d he mark it- 1-11) - - 1 � HH' OFFIC'EP: e c�et_ kirig inrtprivilege � orr�il�ani ^atinns ? i5 And it sc,, you shculdn ' t be goinq thee . 15 MR . HONG : I don ". know that this is 17 attorney-client privilege . 1R A . ,Jhiie we ' re on this subject , I ' d like to make 19 a statement . And I ;ust forgot to do this when I 20 presented the documentation to you, . 21 In the documentation you see an e-mail from 22 Mr . Fuke to myself , in which he makes reference to 23 q,iest_ions that was also a part of that e-mail , okay . 24 I have elected to not to make copies of those 25 questions , becal-ise I do think it falls -ander the work I SLAC,;1) COURT kEPn�mrrtr, x mn��S� RIP'1ION SEP CE- Ex-3 0019 :°° i I ";-Lc) YI X,�) U1ILCj t t) 4 give assistance to Mi Comes ir'! an at torney-client_ 5 capacity, but I don ' t think he was aware that my 5 inactive license restricted me from actively 7 representing Mr . Gomes in these proceedings . S BY MR . HONG : 9 Q . Mr . Fuke is not an attoinEay, right ? 10 A . No , Mr . Fuke is not an attorney, b).at it was , I1 , 1),,-- ..)11Siy, ior- t�le plitpost' of asSi �� iilq iii . Comes 117 12 rhe questioning of the �-;itnesses chat -orr.e before t_hi. s 14 Just t tying be very c 1 ear , s�j are you 15 saying today 11ha- Mr . Gon.es was your r i ent ? 1� A . No , I ' m, not saying that . 1 ' r, saying that 17 gljes tions that were pr epared by Mr . Fake was int ended 18 to assist Mr . Gomes , and would fa ' I within the work 19 product rule . in other words , it was part of what was 20 intended to give assistance for purposes of this ?1 proceedings . And it wasn ' t intended for discovery, 22 and should not be intended for discovery . 23 Q . Well -- 24 A . It ' s like asking an attorney ' s client to 25 provide all materials provided to him by his attorney I LAND COURT R_EP()R'T'TN,r= ;- TRANSr-RIPTION SER VTCES Ex-3 0020 " j 4 based on Mi Voshioka ' s testimony, that he be ordered to produce the entire e-mai ; including the questions , 5 because that ' s riot w0 7-k prod�ict . ? THF. HF'ARINCS OFFICER : Mr . Hong, r ' ci 1 i ke rn R look at the subpoena before I ' m going L- o rule on 9 anything . Certainly, Mr . Honig, your subpoenas were 10 extraordinarily bi oacl . I signed alt of the subpoenas 1 -- ogardless .,f rare they wE re ext raordinar 1 _'y 1 a>re7ad, beca>>se parties hack a r ic;hr t ask that the s°ar poends be 14 that ' s why I signed them . Alth,.,iigh , frankly, some of 1` , ; e informar ion y()u asked fox went way beyond what was 15 relevant or reasonable . �7 So unr.1 ; have looked at the subpoena , T have 18 to go and assess what ' s going on, and what you asked 19 for and whether it ' s relevant material even to this 20 proceeding . B,it I ' m not going to instruct anybody to 21 have to bring somethina that they didn ' t bring today 22 if it ' s not materially relevant . 23 MR. HONG: And in terms of the original 24 subpoenas , those were given back to you as part of the 25 record or ? S[ AND `'OLTP^ T- FEP(�P -'TT (-- �, T k ANSCFRL PTION SFP VICES EX-3 0021 `� - - we made copies to begirt with of t-he sus )poenas , buL 5 your staff kept sending ;s more and rriure revisions and 6 I don ' t know if we kept copies of everything . MR . PONC' : No , no, I chat . I'he 8 ground rules , as you explained to us in terms of the 9 oz-iginal su. )poena that was served, that wo�ild be 10 returned you and made a part of the file . So my 1I q1lestior_ is , d�, yup. or thc. Platlrii .,q, r'f�CtT[ issLCf'1 s� aff l have rhe oricTinal subpoena that .,,,as car-t i_Ta ly served? 1 's iHII HEARIi C:S )FFIC'F=1 . T1 ?= du:; ' t h=z 1 all I have is rhe retui n of servi c�, , t filar ' s all yCnir 15 stat f gave iiie , was r,er ,irn of service . 16 MR . HONG : Right . May I ask for a recess so 17 we can resolve chis and find the subpoena and sidbmit 18 it to you? 19 THE HEARINGS OFFICER : Actually, since it ' s a 20 quar_-ter to twelve, let ' s take an hour -lunch, and come 21 back after the 12 : 45 . 22 MR. HONG: Sure . 23 THE WITNESS : How many more questions do you 24 have? 25 MR . HONG : ,f+1e11 , depends on whether I get ISZT ANj D COURT TRANSCRIPTION SERVICES j Ex-3 0022 (� I 7t1J�� -,A Oka ail of a:-- -Jl ,-_ - t 1 )j f 7 on K ] NW: ew . 4 THE HEARINGS OFFICER : Huw brig a break do you need, Mr . Hong? If yoga don ' s need very Long, we ' ll just take a short recess . MR . HONG : My suggestion is , given the R witnesses ' schedule, I know we imposed on them in 9 terms of their schedules , we take a short recess and 10 go on, and we take our lunch break . 11 THF T LTNESS : Mad,aI- Fleat i .Igs L f ic•ei I 1 " heiieve Mi- . Gomes has r. tzcjse quest i oris that wei e it prepared by Mr , Fake '- - K 'KO out :Ick , -1nK lie 0n Ma o K that avni LabLe to you foi irlsper-C i on ii' yo)u want_ t o . 15 THE HEARINGS OFFICER : That ' s fine . K Mr . Gomes , if dui ing the recess , you can 17 provide me with the questions , i can look at them with LR without exposing them to the ocher parties . 19 MR . GOME'S : Thank you . (Recess . ) 21 THE HEARINGS OFFICER : We ' re back on the 22 record, and I will note the presence of all parties , 23 and the witness is also present , Mr . Yoshioka . 24 Prior to the recess , Mr . Hong provided me with 25 a copy nt his amended subpoena duces tecum to ISLAND FOURT REPORTING & TRANSCRIPTTON .AFRVTCEU Ex-3 0023 '' I 4 Mr . Hong, do yo'-z have anymore argument ar- Li s 5 issue? c MR . HONG: No - - yes . One of t_he e-mails that 7 was produced in the Subpoena duces tecum does refer fr, 8 a cheat sheet with respect to the current proceedings . 9 And I think we ' re emir led to that_ , because that 101 wasn ' t a part_ of the attorney-client privilege between Mi . F�ike , Mr . Y(()��hioka , and mf . r3--1-re5 . And , think . we ' re entitled Lo se- t flat . 1 THF HFA =NGS, C'-FI'-FP . TTril , ri � r}u �i�V� 14 any comments on this ? 7 NIR. SIU : No . 15 THE HEARINGS OFFICER : Ms . Self ? 1 ' MS . SELF : well , I ' m not sure whether there is lR some relevancy, but we aren ' t 1.1nder the rules of 19 evidence . So I guess I have no continents on it . 2G THE HEARINGS OFFICER : Mr . Gomes , do you have 21 any response? 22 MR_ . GOMES : I don ' t know what the cheat sheet �3 is . 24 THE HEARINGS OFFICER : Okay . First of all , 25 although the Rules of Evidence are not supposed to be ISLAND COURT REPnPTTNC, Y -T''PkNSCRIPTiCN SERVICES Ex-3 0024 ° i CL_t' 4 irrelevant , iar rater ial , unduly repet: i t ions , or wouIC1 5 infringe on any privilege recognized 1)y law . 6 There is a privilege for work pi oduct , and 1 am sire if Char 1 -- and I thin]: Mr . Gnmes , even 8 though he ' s not an attorney, has Char privilege . If 1 9 provide a disclosure o~ this information, it would 10 open I think it ' s a bad practice , because to do itilr a s k I Mi . H )Iig 12 for all of his driesns . Ar-Irl ' ' s_�re Mr j{on(j woaild 13 riot �'c;lt _�_� ill S�'i �S2 a i ')t 1S ! T1 t. l �4 prc�c eeciinc�, nr,r Ms . Self , or Mr . Si U . 15 So cornsegiient ly, I ' m going t (, held that that 15 information should not be produced to Mr . Hong . 17 You may go on with your next question, 18 Mr . Hong, for Mr . Yoshioka . 19 BY MR . HONG : 20 Q . Page 1902 , please . The paragraph that begins , 21 "Nowhere -- nowhere in its application has applicant 22 provided proof that an agricultural program is needed 23 or wanted by its students , " do you see that? 24 A . Yes . 25 Q . And you had testzfied earlier Lhat because I7+,ATPD COURT REPnP7rn1C 7RATISCR.IPiI0N SERVICES Ex-3 0025 ;''`' i f - A . Yes . 5 Q , And where is it required that the applicant has to prove that its agric',111tural program is needed 7 ,,ianted by the sti.icients , if y-,,1 r-an give me the R legal citation for this? 9 A . There is no legal citation, except for comm,-)n 10 sense , that if someone is going to represent that 11 sC)iP�t i_lr.g is C1 be dor:e , "he., it sh, )'. Ci 1k�C 1 fi .-itfirlent evldenre to lndl -,at-' rat i � n1111 , in tact GIL'iaf they propose 'f-) , ar:ri : hat - here is 4 a need for r_r e proposed use , because t ha r is the }gas i s 1� fnZ the fo,jndatloIl of the sel' e,- tion Vi this parLlCUlar 1 property that has been used for agziculture purposes 17 arts that this property was uniquely suited for their l� program . lg So therefore , it seems co me that it you ' re �0 going to say that this is a unique site , that fills 21 their criteria and it ' s needed for the agricultural 22 program then you should establish that you , in fact , 23 have one or will have one , and if so , how many 24 students are going to be participating in it and why 25 do you treed such a large area if you only have one or 7 S ,P.ND COURT REPCIRTTNi(-, r, --P ATJCC--T PTION SF TC'ES Ex-3 0026 °�' i k s f I ctll[i ii_f c'l,nt rt ti dog or jtiaid1an of Che public in' erest aTid It shc)uld 5 lo�,k into these matters tc, see r.hat what is being 5 al eged will , in tact , take place . C� . Okay . And ; n terms of ynl,t familiarity with 8 the charter school law, how would you describe it? A . ?4il . 1 0 Q . I ' m. sorry? i l A . i1 11 � . Okay . Yo,i ' re not aware th(jt iIl tears c,f the has t � i4 cgs) before the charter school ���> n �ission tee justify 1 ~ improvement it needs for its c"Tr 1 iC:ul,%n,? 15 A . No , I was not aware . 17 4 _ Thank you . IR MR . HONG: I have no further questions . 19 THE HEARINGS OFFICER. : Mr . Siu? �C MR . SIFT : I have no questions . 21 THE HEARINGS OFFICER : Ms . Self? 22 MS . SELF : No questions . 23 MR . GOMES : Maybe one question . 24 CROSS EXAMINATION 25 BY MR . GOMES : ISI- ." 'TT) COURT REPnRTTT\Tr= F 7FP,-,NSCP.1pTT0N SEFVIC'FS Ex-3 0027 ",j STAFF OF HA6�IAII } t ) ss . {i 3 COUNTY OF HAWAII ) 4 5 I , MERCEDES SHARON SOUZA, a certified court 6 reporter in the State of Hawaii , do hereby certify 7 that the foregoing pages are a true and correct 8 transcription of the proceedings in the above matter . 9 10 Dated this 24th day of October , 2013 . 11 12 13 14 15 16 Mercedes Sharo ouza, CSR No . 184 17 18 19 20 21 22 23 24 25 ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808 ) 933 -9800 Ex-3 0028 T!'I _r G ;iA'n I Ire the Matter of Connection New ) SPP-12--000138 Century Pub ic' Chart ear S(--hoo1 and Community Based Education Support ) VOLUME IV Services } (Pages 448 - x)90 ) Special Permit Applicatinn No. ; 12-000138 ) --------------------------_----- -__ 7 T R A N S C R I P T of the Public Hear. inq had in the above-entit ; ed marter he,fore Hearings Officer_ Sandra Song at_ 25 Aupuni Street , t'()rn fere rice Rcom, ft i lo, f;awa i i 10 '.I .m. , on Wednesday, January ?3, 2014 . HEAPING-", OFFICER: SANDRA SONG, Ec;QUIRE 10 Kamehameha Avenue Hilo, Hawaii 967;0 TAKEN BEFORE : SUSAN R. NAKAMOTO, CSR NO. 237 Notary Public, State of Hawaii iSIAND COURT REPORTING & TRANSCRIPTION SERVICES X808} 933-9800 Ex-3 0029 lrr 1 'l r }1L ;, JI 1 }I "i '7 h ?jI qj.- h }_ilt 3 rign1_ ? 4 MR.. HONG: I have Mr. Fake as a witness and we anticipated caking Layne Novak because she was finally 6 served. I don ' t krrow if she ' s present and then maybe 1 Mr . Comes, but: I 'm re-eval_uating that . 6 THE HEARTNGS OFFIC;ER.: W€-ll , it ' s 11 : 30 right q now. And before we began, you thought we would t)e done 10 in the morning . It looks like -- we can go later and we IL (-an take Mr . F'iikc , but how much longer are yo.r goinq? 12 MR. HONG: You know, T ' d 1ike to talk to my 3 c1 ient lie may be actLzally our last witness . 14 THE HEARINGS OF' '10ER: All right . We ' ll take a '. 5 short recess' . 16 (Recessed at 11 : 35 a .m. and reconvened at 11 : 45 a .m. ) 17 THE HEARINGS OF'F'ICER: We ' re going to reconvene . 18 Mr . Hong, your next witness . 1q MR. HONG: Thank you. Our next witness is Sidney 2.0 Fuke . 21 S ! DNF',Y FUKF 22 called as a witness on behalf of the Applicant, having 23 been first duly sworn, was examined and testified as ?4 Follows : 25 DIRECT EXAMINATION ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808 ) 933-9800 Ex-3 0030 F 1; . 1.1 F)- f 1 1 t;1 t 1i 3rir ! 1'.E r..i- `t 3 spell your last name . 4 A. Stere . Good morning, everyone . My name is 5 Sidney. Lust name is Fuke . Tt ' s spelled F as in Frank, 6 FJ-K-E . 1 Q. And sir, would you tell us what ' s your 8 profession? y A. I 'm a land use planning consultant . 10 Q. How long have you been a land use planning 11 consu 1 tart '2 12 A. Since 198 , so i would say a short -- a shade 1 3 l ess than 3Fi year s . 14 Q. And you als-) served as the Planning Director for i5 the County of Hawaii? 16 A. That ' s correct . 17 (�. From what period of Lime to what period of time? 1R A. Essentially for eight years between 1976 through 19 1984 . 20 Q. And you ' ve appeared before the Planning 21 Commission for approval on projects, developments, 22 special use permit applications? 23 A. Correct . 24 Q. Hnw many tamps, genpra? ly? 25 A. As a consultaTit or as -- representing the ISLAND COURT REPORTING & TRANSCRIPTION SERVICES {808 ) 933-9K)n Ex-3 0031 nt - n 7t] 3 A. if you average abouL 10 per year, maybe 8 per 4 yeaz , and given 30, T would say at Least 100 -- 5 Q. Okay . 6 A. -- applications . 7 Q. Tn terms of the Planninq Commission record, you 8 have it in front_ of you in two-bound volumes . I ' d like 9 you to start with page 1352 . 10 THE HEARINGS OFFICER: Ms . Lee Loy, 1 think he 11 cdr look at the documents . 1 BY MR. HON(;: ti Q. LeL me know when you have those particud ar pages 14 in front of you . 1 `7 A. Yes, 1 (la. 16 Q. Okay. Pages 1352 to 1354 , that was written 17 testimony than you submitted to the Hawaii County 18 Planning Commission; is that right? 19 A. Yes . I didn ' t deliver it because T was on Oahu 20 Lhat day for another meeting, but i think it was read in 21 the record by someone else . 22 Q . Sure, but this is something Lhat you generated? 23 You typed it up? 24 A. correct . 2.5 Q. And in terms of page 352 , you talk about traffic ISLAND COURT REPORTING & TRANSCRIPTTON SERVICES ,808} 933-9800 Ex-3 0032 1 :? ' z ..r �r iii r �� •' 3 Q. You state that the ,rax.idity of the study is being 4 questioned, the TTAR, by Mr . Powell ; is that correct`? 5 A. Correct . 6 Q. And you know Mr. Rowell; is that true? 7 A. Not very well , but l was associated with one of 8 the work that he did on a project that T was involved in . 9 p. That ' s t-he Regency prof cct on Kaamana, correct`? 10 A. Correct . 11 Q, Did yru have ally -- did you express any 12 objections or concerns to him about the work he did for 13 your proje-t, the Re'lency project ? 14 A. No. 15 4, In terms of -- your statement goes on to talk 16 about windy and narrow Kaumana Drive, not necessarily 11 Edita Street , you talk about 400 students . Do you see 18 that information you provide there? 19 A. Yes . 20 Q. Did you base your concerns on any study, 2. 1 independent study by a traffic engineer? 2.2 A. No. 23 Q. In terms of the next paragraph, paragraph 2, that 24 talks about water. The project requires 26, 100 gallons 25 per day. Do you see that`? TSLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Ex-3 0033 .1 , _hn nt i 3 acceptable by the DOE for any of its existing or newer school facilities . " 'That goes over on to page 1353 . Do 5 you see that? F A. C:orrecL . 1 Q. Do you understand that the school is 8 differentiating between potable and non-potable water 9 with respect to its water use . 10 A. The school -- you ' re referring to the applicant- ' s 11 school2 12 Q. Yes . 3 A. Yes . 14 Q. Arid in terms of your 26, 100 gallons per day that you cite, that ' s total use, ,-or,ect? You don ' } make Lhat 16 distinction; right? 17 A. No, I don ' t . ThaL is what was contained in the 18 environmental assessment and the report -- and in the 19 application that was provided by the -- that was 20 submitter by the applicant . 21 Q. And you' re not aware that. the Hawaii Academy of 22 Arts and Sciences uses catchment water which is also a 23 DOE school? 24 A. No, T 'm nut . 25 Q. You ' re not aware that. the Volcano Charter School ISLAND COUPIT' REPORTING & TRANSCRIPTION SE;RVTCES (808 ) 933-9800 Ex-3 0034 You ' re not aware that the school called SPACE 4 down in Kalapana which is a satellite school of HAAS, 5 you' re not aware that they use catchment_ water. fi A. I don ' t, know whether all of the schools that you 7 had mentioned are K to 12 with a dormitory facility. Q - So when you were putting that information ahout catchment not acceptable by DOE,, you were restricting it 10 to schools that are K to 12 and have dormitories . Is t ha what you' 1e to ? I i r us tnAoy? 12 A. Not necessarily. I Lhink that was just a general ii , ommE=i�r the t C made that if this were like a public 14 f=ici.lity, that generally, public facility or puhlinly- 15 sponsored type of institution would ha-re to have a water 16 system that would be consistent with whatever the County 11 requires . 18 Q. You ' re aware HAAS is a public facility, isn ' t it ? 19 A. HAAS being? 20 Q. Hawaii Academy of Arts and Sciences in Puna . 21 Tt ' s a public charter school . 22 A. Well, you mentioned it . I didn ' t know. 23 Q. You didn ' t know that. HAAS is a public charter ?4 srhnol'? 25 A. That was not my application so I :don ' t really pay ISLAND COURT REPORTING & T RANSCRTPTION SERVICES (8 08) 933-9800 Ex-3 0035 I t t _ i , l i t Iir-d + il_,lt 1. 3 statement to the Windward Planning CCorraRission regarding 4 DOT schools and using catchment water or not . Did you 5 think it was important to actually do any research with 6 respect-_ to what-_ other charter schools are doing? A. Not necessarily. I was just making a general comment about this is a public facility. It ' s going to 9 be a K to 12 with a dormitory Facility. And as a result, 10 that, it sho;,.ild be complying to with whatever any public 11 Eaci i i ty rcquirement_ should be . I aim aware that there 12 are a number of other special permits that were issued ' tilat do not ha�,,e a municipal or not being provided by a 19 municipal water system. It ' s not necessarily limited to 15 only DOE or public-related type of facilities, but_ there 16 are others . 1'1 Q, All right . On the next page 1353, paragraph 3, 18 wastewater . You note the septic system possible -- 19 identified leaching and that it could occur in possible 20 cave -- possible caves in the area and create some 21 Financial harm. Do you see that? 22 A. Some environmental harm, not -- 23 Q. Yeah, environmental harm. 24 A. -- financial . 25 Q, I 'm sorry. ISLAND COURT REPOR'T' ING & TRANSCRIPTION SERVICES (806 ) 93=3-9800 Ex-3 0036 r �..y s hired any consultants to do any studies to verity that 4 al 1egaticn"? 7 11. No, I did riot . 6 Q . A] ] right . You also talk about the duality of 1 life, paragraph 5 on page 1353 . Do you see that? 8 A. Yes, I do . 9 Q. You identified potential loss of forest and Jts ] 0 potential native plant and animal species . You also I -1 idem i fiF�d rv)ise, traf tic, real propc=rty impasse, ioss cf Ip`,tential sense of securii y. Do you see that ? 13 A. Ye�), l d(' . 14 Q. Did y( lu -- was that allegation haled on any 15 independent studies cr consultants that you -- 16 A. No . 11 Q. Let me go on to the next area. We ' re now lockinq 18 at pages 1960 through 1999 . This is a Power Point 1.9 presentation, Connections Charter School issues that you 20 made before the Windward Planning Commission . Pages 1960 21 and 1999 . 22 A. Okay. 23 Q. Before you gave this Power Point presentation to 24 `he Windward Planning Co=tission, you were sworn under 25 oath to tell the truth; isn ' t that right ? ISLAND COURT REPORTING & TRANSCRIPTION SERVICES +:808! 933-9800 Ex-3 0037 3 A. Yes . 4 Q. All right . On page . 966, you identif led land use 5 entitlement process should -- that it_ should he a State F land use boundary amendment, not a special permit. Do 1 you see that? 8 A. Yes . Q. Did you assist Terence Yoshioka in writing his 10 written testimony and submissions to the Windward IL F I ann� ng c'ommi ss i on? 1; A. No . 13 �. Did you prnvide him with any information? 14 A. We talked about it , so I don' t know what 15 information he may have discerned as a result of our 16 cunvorsation. He had a copy of the environmental IJ assessment and the application. And I don ' t recall when 18 I --- whether I had made a copy personally for him or 19 whether he had secured it through another source, but the 20 direct answer to your question is no, I did not assist 21 him or prepare his testimony. 22 Q. All right . If you look at the next page, page :3 1961 . Do you see that ? 24 A. Yes . 25 Q. And it says in the first -- well, it says school TSLAND COURT REPORTING & TRANSCRIPTION SERVICES (808 ) 933-9800 Ex-3 0038 'i., r I S y 4 Q. And then it also says, "Recently constructed 5 schools, Kea lakehe, Keaau, Kamehameha School a I I in the 6 SLU, State Land Use urban district . " Do you see that? 7 A. Yes . 8 Q, Isn ' t it true that Kamehameha Schools, Keaau, is actually in a State land use agricultural district_.? 10 A . I 'm not sure. 11 Q. A11 right A. But my understanding is that it is in the urban 13 1isL7-Ict . They lead initially appl led for a special 14 permit and they were mandated to come in for a boundary 15 amc�radmcnt . Whether in fact they did, I 'm not really 16 sure . 17 Q. Let me show you what ' s been entered into evidence l8 as Exhibits A?9 , 25, 27 and 26 . If you could look 19 through all four exhibits and when you ' ve looked through �0 them, let me know, and I have a few questions I ' d like to 21 ask you based on them. 22 A. Okay, 23 Q. In terms of the statements you make on page 1967 24 of the Planr:i..q Commission recorcl, those statements 25 regarding Kamehameha Schools being in a State use -- ISLAND COURT REPORTING & 'TRANSCRIPTION SERVICES (808 ) 933-9800 Ex-3 0039 :r i,-I! r i rh` 3 A. Wel I , without getting more .information relative 4 -- in a subsequent correspondence to the January ?, 2000, 5 I Can ' t- ne-F-Ssarlly say that 1t ' s not true, but just 6 based on whatever you presented then, if this is correct, 1 whatever exhibits you provided me, then it is what I B represented then Lnc.iuding Kamehameha Schools, it ' s not 9 ernt .irely accurate . A portion of it is within the urban 10 di-strict and portions of it are not . 11 v . An, a large fort ion of it , ire terms of Kamehameha 12 Schools in Keaau, you would agree is in the State land 13 rise aq 01)e, 1-sr ' t_ 1-hat right 14 A. I ,_an ' t really say that because looking at the 15 map, I don ' t know when_° the school facility is relative 16 to one of your exhibits which shows the distinction 17 between the ag and the urban area . 18 Q. Well, let ' s start with A24 in evidence . A24, you 19 recognize, don' t you? That ' s the light green -- 20 A. Are you referring to this? 21 Q. Yes, the designations in the exhibits that you 22 hold in your hand are in the back. 23 A. Okay. 24 Q. So if you look at A24, you ' re familiar- with this 2.5 type of map based on your training and experience; isn ' t ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Ex-3 0040 Q. And I ' ii represent that the dark bolded Mack 4 area is the Kamehameha Schools Keaau hnlzndary. Do you 5 see r hat.? F A. Yes , Q. What does the green area represent in the State 8 lend use hrundary map? A Aq r i (:1 11 ; tune . 10 Q. Anil what does the pink area represent? 11 A tl would seem urk��an . i2 k:. Let ' s take a look at Exhibit Z-'D Ido you 13 1o=c ::gni7e tt.dL? 14 A. That ' s the County lonirig map . 1 `� Q. And in terms of the County zonirig map, what- dies lh it. irdicate? I ' ll again represent the bolded black area 17 indicates Kamehameha Schools, Keaau. What does that, the 18 County zoning map, jndicate with respect_ to t_he land use 19 designation? 20 A. That ' s in the agricult-ure, 20 acres . 21 Q. So, again, it ' s fair to say that what you' re 22 saying in terms of the -- what you were sworn to testify 23 to under oath at the Windward Planning Commission that 14 appears at 1967, page 196 , that rs not 1rue, correct . 25 A. Relative to the Kamehameha School portion, I ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808 ) 933-9600 Ex-3 0041 r 1 rFt . 1ri t r z,a1� 3 19';0, you identify some concerns regarding the Planning A Department ' s recommended rationale . And on page, 1970, r in spit-e of the soil classification, site has other 6 agricultural potential . You identify forestry, citrus . 7 The document speaks for itself . 8 My question is, based on this page at 1970, 9 you ' re aware that the school is intending to perform all LO these functions on their proper :y as part of the school 11 r-itrr� r.,,i ] um, right -� 12 z1. That ' s my und(�rstandi nq . You ' re goirrq tc have t -3 some agric-u1t jural componenr associ.at.e(I witt_r the school . 14 Q. They plan to do forestry, they were planning to 15 do fIoricuItrara1 crops . They' re planning t do non-soil 16 based ag, and they' re also keepinq the upper parcel, the 17 upper mauka parcel open space . That ' s fair to say, ] 8 right? 19 A. Um, I know the mauka portion, based on the 20 revised plan, is intended to be left an open space . As 21 far as the specific activity on the makai side, I can' t ? really say what level of agricultural activity is being 23 proposed, quite honestly. 24 Q . All right . I ' d like you tc turn to your 25 testimony at page 1972 . And if you could aiso look at -- ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Ex-3 0042 -A J 3 excuse me, nn page 1320, he makes the statement and I 'm 4 paraphrasing this . Schools are not permitted in an 5 ag-zoned area . !did you provide Mr. Yoshioka with that 6 information ? 7 A. No, i think he ' s an intelligent orough attorney 8 and former judge that he can do his own research and 9 arrive af_ his own conclusion . 10 Q. Ali right . On page 1974 and I -- just for the 11 record, I just have a few mere (questions . ;)n page 1974 1 ;' of your testimony to the Planning Cc)mmi.ssion, you said 13 Lrie locat_Ior, i7 not. within ail or no-ecied i4 support an agri c-ul t ural community. L!o you see that."? 15 A. Yes . 16 Q. Then it goes on, t.o say, this area is in an urban 17 slash residential community, not an agricultural 18 community. You see that also? 19 A. Correct . 20 Q. What is your current zoning for your house? 21 A. it ' s -- the Pacific Plantation subdivision where 22 I , together with a number of other residents, reside is 23 currently zoned ag 1 , and the State land use designation 24 is agricul tucc . 25 However, we all know that a lot of times the ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Ex-3 0043 3 properties . 4 Q. On page 1971 through and including pages 1981, 5 you ' re now identifyinq certain criticisms or con^erns you E have regarding Mr . Rowell ' s TIAR. Do you see those? A. Yes . 8 Q. Arid, again, it ' s fair to say that you did not 9 hire a independent traffic engineer or any traffic 1C engineer to verify the statistics and concerns that you 11 raise here? 12 A. No . l� Q. On page ;'114 -- or_ page 1114 , this is another 14 Power Point presentation you made to the Windward 15 Planning Coriunissior. . Do you see that ' 16 A. Yes, T do . 1-1 Q. And this is a Power Point presentation that you 18 put_ together personally"? ly A. Yes, with the help of others within Lhe 20 community. 2.1 Q. And, again, you were sworn under oath before you 22 testified and presented this Power Point presentation? 23 A. Correct . To provide information to the best of 24 my knowledge . 25 Q. You characterized the school as a festering sore; ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (8()8) 933-9800 Ex-30044 3 relationship is a festering sore . 4 Q. Are you denying -- let me ask this question. 5 Are you aware of anyone -- are you aware of anyone who 6 vandalized the school by putting bumper stickers, No 1 Connections bumper stickers up at the school at the Kress 8 Building? 9 A. No, I 'm not . 10 Q. Are you aware of a website, No Connections l 1 Ever . :ilTl2 12 A. T don ' t know what. the website is, but I ' ve been 13 receiving a lot of email regarding the Connections 14 school . And, you know, whether the server is actually No 15 Connections . c_om, Wm not sure . T can look at it . 15 Q. Do you know who sponsored or paid for that 17 website address? 18 A. 1 don ' t know who sponsored or paid for it. 19 Q . TN terms of the EA process, environmental 2C assessment process, you ' re aware of that process based on 21 your experience and profession, correct? 22 A. C-3enerally, yes . 23 Q . And you' ve gone Lhrough that process a number of 24 times? 25 A. Yes . ISLAND CO[TRT REPORTING & TRANSCRIPTION SERVICES (888) 93S-9800 Ex-3 0045 111 3 generally in thy_ environmental assessment, right : 4 P. Generally, correct . 5 Q. Isn ' t it true t-h,jt. you -- at no time did you 6 slabmit any responses or concerns with respect to the 1 proposed EA in this particular application? 8 A. Yeah, I did not . 9 Q. Are you willing to sit on the campus design 10 committee of the Connections Charter School to help 11 minimize any future impar[ s should the schoel be to< rjte � 12. at the Kaumana site ? 13 A. Well, pr obahl y -- I w o u I hate. t r qua i 1 f my 14 response by noting that t would k)e yes, ubjeCt to three 15 conditions, I quess _ 16 Like one is that_ provided that I have the time 17 because I 'm still employed, self-employed, and I do 18 considerable community work and I 'm trying to transition I9 into a semi -retirement phase so I got to just -- try to 20 balance it out . So time is the number thing. 21 The other thing too is like how the existing 22 neighborhood or my neighbors are going to feel . You 23 know, if they basically feel that they ' re totally against i4 thF' project and F } Pn I 'In therF dSSlSting i Y , Ism going ?_C1 25 feel like I 'm a rat fink. So I think I 'm goinq to feel a ISLAND COURT REPOPTING & TPANSCRIPTIgN SERVICES (808 ) 933-98100 Ex-3 0046 3 And last of all, of course, is that there ' s been 4 some uncalled for, in my opinion, you knew, negative aspersions casted towards my way -- in booting and all 6 that stuff so I think that, you know, unless there ' s some 7 charige in the attitude on the part of like who I 'm goiiiq 8 to he working with, I think it ' s going to he difficult g �metionally for me to get involved. lU Q. All right , I understand your concern. Are you 1 ; c eve l op i ng ,r cnnsu l t i ng with any other active pro j E-r-t s 12 in the Faumana area:? 13 A. If I ' ve consulLed with or im I -- do 1 have any 14 -- I`: p. Parficii>ating in any developments in the Kaumana 15 area . l7 THE HEARINGS OFFICER: Are you asking at the 18 present time? 19 MR . I-10N,: Yes . 20 THE WITNESS : And when you say like participating 21 in a sense like from a real estate investment standpoint 22 or are you referring more to -- as my role as a planning 23 consultant ? 4 1 "Y MP . HONG: 25 Q. I 'm referring to your role as a planning ISLAND COURT REPORTTNG & TRANSCRIPTION SERVICES (808) 933-9800 Ex-3 0047 r! +- i ."t i T I r, 'i i area . 4 In terms t7f the Pacific Plantation subdivision, `-) what was your role in that subdivision development or 6 what- ' s your role in that development-- A. evelopment?A. In the sul,divi_sion within which I live in? B Q. Yeah, were you the planning consultant on that c, particular subdivision? 10 A. No, I believe that_ the suhdiviSiOn was approved whil (:, T S. cis wc)r. ki ;rl irzi the Cnurlty. 1 dort ` t know whether 12 I was the deputy or planrimcq director ar that time so -- 13 Q. And did you part. i cipcite f i r,ancia 1 l y iii that 14 particular subdivision in any way? I L A. Olt, absolutely not . IL v ou l.d have been a 16 conf] ict . 17 MR. fiONG: Thank you . No further questions . 18 THE HEARINGS OFFICER: Mr . Siu, any questions? 19 MR. SIU : I have no questions . 20 THE HEARINGS OFFICER : Ms . Self? 21 MS . SELF: N') quer r i ons . 22 THE HEARINGS OF'FICFR: Mr . Gomes-, 23 MR. COMES : I have a few questions . 24 CRO SS-EYItNTINATION 25 BY MR . DOMES : ISLAND COURT REPORTING & TRANSCRIPTION SERVICES ,808 ) 933-9800 Ex-3 0048 J [ A :r. Ire A 3 THE HEARINGS OFFICER: Mr . Gomes, Inn goinq to 4 ask you to he specific . He already -- he already 5 testified as to his educational background. If ycu have 6 specific questions, then you can ask specific questions; ? otherwise, this is repetitive . 8 BY MR. COMES : Q. Are you familiar with the general location of A e 10 proposed Connections Charter School development in ll Kaumana? i2 A. Yes, I am. As a matter of fact , the site is -- Y3 I wc)utd say like within `.00 feet of our piopprty. 14 Q. How would you characterize your neighbors ' IS position of th ,,s propose-i development? 16 MR . HONG: Oblection . Ca11s for hearsay and I -/ speculative . 18 THE HEARINGS OFFICER: I 'm going to allow the 19 question if he can answer it . 20 THE WITNESS : Sure . Based on the meetings that 2.1 I ' ve had with members of the community, my sense is that 22 they' re not happy campers with the project, the proposed 23 development . 24 BY MR . GOMES : 25 Q. The applicant ' s attorney sent an email to all ISLAND COURT REPORTING & TRANSCRIPTION SERVI(ES (808 ) q33-9800 Ex-3 0049 � C -I � I �'„ il 1 � i h 1� '•i, 'vI31 ] t ? _. , ; � � ._ i5 C 3 a leat i oI7 _� 4 A. It ' s absolutely false . I mean, you 'Know, I may 5 have written a $200 check to enable you, Mr . (�ome.s, to 6 become a party to the proceedings and for which I was fully reimbursed by -- from the- community themselves . 8 So T think that all things considered, if you 9 call bankroll -- if you call like less than $100 of cash 10 contribution to the quote, unquote, the cause, and if 1I You ' re callinq that fhe bankroli , then I dues-, I would be 11, bankrolling, but T think that if you include my time and 13 yci: know the energies involved, it has berm rather 14 ccostly. But in terms of financial output, I don ' t say it I5 was more than $100 . 16 Q_ Are you getting paid to be r�ere today? 17 A. No, I 'm not . 18 Q. So are you basically losinq money by being here 19 today? 20 A. Yes - 2t Q. How would you become -- how did you become 22 involved with this application? 23 A. Well , initially, there was a community meeting. 24 Ycu know, there was a -- there was a meeting called by 25 the applicant to discuss the project, and I just kind of ISLAND COURT REPORTING & TRANSCRTPTTON SERVICES {8GE3 ) 933-9800 Ex-3 0050 I ' I l 1 3 us(, matters that as a general practice, you know, I don ' t 4 wart to testify for or against any project . You know, 5 hut_ --- and so I felt that as the questions came up, you r know, by members of the community whether it was from you or others like our neighbors that were asking questions 8 about the process, I ' ve felt like okay, I could, you 9 know, get involved by providinq some of what f know in 10 terms of the process and some of the concerns and provide 21 qui.dance in that And I tel r- that. I .aanted t a 12 limit myself only to that. particular role . 13 Fk wever, when Ll:ings got a little bit more 14 personal, then I felt ghat I got to qct involved a little 15 1�it more . And when you *alk about a tittle bit more lE personal , the personal thing had occurred dt a comrunit.y 1', meeting that i had organir.ed for a project about a year 18 and a half ago . And this was for the Regency project. 19 where one of the applicants came up to me after the 20 meeting and actually threatened me and by saying, look, 21 if you arE'_ the ringleader for this project and if you 22 don ' t back off , then I 'm going to have everybody that we 23 know of to come out and testify against your project . ?4 And I felt at that t,mc I was being booted, I was 25 being threatened . I had asked my consultant -- I had ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808 ) 933-9800 Ex-3 0051 1 1cb' T. i L 1 Ili_ t A said, no . And then I had asked my client also what was 4 the discussion between you and this individual . 5 Af-tually, it was Mr . John Thatcher, and my client_ 6 basically said -- he said the same thing. So I said, you want me to walk away, I ' ll walk away. I have no problem. And he said, no, stay on, and 1-(--,t Is kind of keep on moving. So it became like -- and then there was like 10 some -- 1 think a newsletter that came out tl�at didn' t it us- my name, Put everybody knows that I was the anary Q resident, and I wasn' t angry. 1 ' Anc-, --igain, as I merrticn�>d t-ar i i er , at the 14 fD'e'ginrTirng part W -�s I was just trying to -- just to share 15 wh- tever I know to the community to people like yourself 16 and the rest_ of my neighbors because T telt like you guys 17 were -- you had elected on your own not to retain an 18 attorney and it was going to be cost involved, and I telt 19 that I had a little bit that I could share . And that was 20 how T felt- that my role was going to be, but because of 21 all of what had happened since the June or May meeting 22 that we had and all of these other things, the negative 23 things, calling me about bankrolling and all that stuff, 24 you know, my role they; came from more like, one of an 25 advisory -- it kind of like morphed to a -- to a posit.ion ISLAND COURT REPORTING & TRANSCRIPTION SEPVICES (808 ) 933-9800 Ex-3 0052 1I Q' y 3 Mk . STU : Jbjection, relevance . 4 THE HFARING:S OYFICFR : 1 ' il sustain the objection . h I3Y MR . COMES : 4 . Why di-d you agree to provide assistance to me on. B this Matter? 9 A. Well , first of all-, you asked. And in addition I r-o that, I just felt like -- and you didn ' t want to 11 expemd ony more res-unces than needed to r-T-ain the 12 services of an attarnoy because I had shared with you an-d 1 ; nthcrs within the 7ommunity that if you go through a 14 contested case process, that it would generally he 15 beneficial to have an attorney represent yc;u and -- but '6 then the de7isior was made or. your --- for your own 1r reasons, you said no, I 'm not going to have an attorney. 18 And so 1 felt that well, okay, I ' ll try to help L9 you as much as I can . And that ' s the reason why I had at 20 the first -- you know, at the prehearing conferen7e, 1 21 attended the meeting and I basically represented, you 22 know, to the hearing officer that I would be there just 23 to assist you to provide guidance and wha#ever 24 information I can. Becaase I have gone through like a 25 number of contested case hearing that I have some, you ISLAND COURT REPORTING n TRANSCRIPTION SERVICES (SOB) 933-9BOO Ex-3 0053 Ii_r,c: f t r n 3 -- you know, who actually take you through the whole 4 proCes.s, but having been through that , I had some general 5 understanding so I felt that T could be of some value to E yo.a . That ' s the reason why I decided to help you. And E along the way, you know, because of this -- the attorneys 9 for the developer had requested that there be this 10 witness exclusion rule, I felt that -- I feel right now l that you are a hit. handicapped in the sens- that you -- 1 ] was not ahl� to at least hear some of the testirrnony, the 13 direct testimonies )tfer.ed and then maybe, advise you to 14 Say maybe yo�i should ask this q!zest ion or that questi,ori Ili arid all that stuff, but !hat ' s all said and done so - - 16 Q. Do you -- do you feel like t-he fact that you were l-/ subpoenaed, Ti had made it clear that you were going to 18 assist me was a tactic to keep you from helping me? 19 MR. HONG: Objection . �0 THE HEAPTNGS OFFICER: Mr . Gomes, I 'm Going to 21 not allow that . I don' t think there ' s any relevance to 22 this proceeding. 23 MR. COMES : Okay. 21 THE HEAFINCS OIFFICER: Please stick to the 25 application before us . ISLAND COURT REPORTING & TRANSCRIPTTON SERVICES (808) 933-9RO(} Ex-3 0054 3 career, approximately how many applications requiring I County flanninq Commission or County Council appro-,vals 5 ` � tzdve you proce,sP.-Y3. 6 A. As mentioned earlier, if you average about like 7 ten a year, at least about -- I ' d say about 200 . 8 Q. Durinq this period, have you had situations like y this where the directly impacted community was so against 10 a d-,velopment ? if so, what happened? 11 A. We11, I ' ve involved' like in a numher of 12 projects that, you know, where you have discretionary 13 approvals, discretionary as opposed to minist^rial in a 14 discretionary where: it ' s Like the Planning Commission or- 15 r15 Lhc County Cc)uncil they review whatever is presented And 16 sometimes it gets approved, sometimes it gets denied 1'7 depending on the issues that are brought up by the 18 corrLmunit-y or agencies or whatever . 19 And so I ' ve been involved in a number of protects 20 that have not been approved by either the Planning 21. Commission or the County Council . And there ' ve been like 2.2 two projects that I 'm kind of aware of that I was 23 involved in that because of the opposition by the 24 C'v CLrUlii y, that the applicant on t_s own and, you know, 25 had elected to withdraw. ISLAND COURT REPORTING & TRANSCRTPTION SERViCES (808) 933-9800 Ex-3 0055 �r Y t f i I1. re a , f°�I}�? X 11.'.. i 7 3 It ' s in tyle area of Pu ' t_Akala, and it was going to be like 4 -- again, ironically, the same type of school , you know, 5 K tc l ;' srhool with a dormitory, access cominq in from a 6 single road. And the c,mmunity was asking for 7 alternative access, and that was difficult to achieve and 8 at the end of the day, the applicant just felt like it 9 was not good to, Bush it anymore . 10 I was involved in another situation in Waimea, 11 this was like for a r-eznrling . And by the way, the f first 17 one was for a special use permit, similar to this . 13 ThF, sF , end _)ne wcus for a small residential SL]hdivision Irl 1 � Waimea, an-i it was for like an affordable housing 1`; project And all of th- neighbors came out against it 16 and the applicant_ in that situation felt Iik(,- it was not 17 appropriates to press it and even if you get the approval , 18 then you create a really bad feeling within the 19 community. 20 So, the .short answer to your question is yes, I 21 have been involved in a number of applications where the 22 applicant_ has, on their own, elected to withdraw or the 23 applications have been denied. 24 In those situat.] ons like the -)r,e before us, what 25 is your opinion as to the developer ' s rights or ISLAND COURT 1EPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Ex--3 0056 3 this situation, it ' s a discretionary type of permit, 4 then there is no right . if you have like a ministerial type of -- tri my -- this is all in my opinion. T you 6 have like a ministerial situation where like it ' s a 7 building permit or like a subdivision or electrical E1 permit , you know, if you just meet whatever the code is 9 stating, then these are like ail over-the-counter type of 10 permits that , you know, you pretty much have a right to 11 du it . 12 On discretionary permits, whether it ' s tike 13 rezoning, special pormits or variances, it ' s really -- it 1 zi would be a funct i cn of however thr: deci s i onmaker loot; ar- 14 the facts or 'look at the information provided arnd then M3 LE or she would make that determination or the group, 11 whether ir ' s the County Council or the Planning 16 Commission, 19 And I think that when you have discretionary kind 20 of decisions, especially like special permits, rezonings 21 or variances -- not variances, but use permits, there ' s 22 like a public hearing process . And anytime you go -- or 23 like SMA special management area permits, anytime you go 24 before the Planning Commission for those kinds of permits 25 then, there ' s a public hearinq requirement . ISLAND COURT REPORTING & TRANSCRIPTlON SERVICE'S (808 ) 933-9800 Ex-3 0057 f ,r'1 -- 1:-_ � � in I ., + .:n"Jhl 3 public to express themselves and for rhe decisionmakers 4 to at least have the d =pth, the community effect of that 5 issue and then the Commission or the Council can make its 6 own decision based upon the community input . Because if 7 the community input is not important, then you really 8 don' t need to have a public hearing process and that ' s 9 why there ' s a distinction between a discretionary type at 10 permit and a ministerial type of permit . ll �;. What are thoughts as to how a development_ � t 12 This nature should have pro�:,eeded and whv? I MR . HONG: Objection, lacks relevance, . 14 THF, HFARTNGS OVI-'IC .R: T 'm going to sustain the 15 o1)ject. ion.. 16 BY MR. DOMES : 1"1 Q. To the best of your knowledge, in your 18 professional opinion, do you think that the proposed 19 development meets the test for a special permit"? Why or 0 why not , 21 MR. HONG: Objection, calls for a legal 22 conclusion. Additionally, lacks fOut'idatLOn. 23 THE HEARINGS OFFICER: I 'm going to overrule the 24 objection. Mr . Hong, you opened the door so he can - 25 it ' s a legitimate question. TSI,AND COURT REPOR'T'ING & TRANSCRIPTION SERVICES (808 ) 933--9800 Ex-3 0058 I l I:- i r } 1�: .��r r � t � 3 application -- that there are certain tests that t-he 4 project can met . Special -- certain tests of the 5 special permit criteria that can be fuLfilled and others 6 cannot . And i trunk that from my point of view, what is 1 really important_ was, you know, what was the -- what ' s 8 the commurnity' s perception as far as like perceived 9 impacts and not so much like impact . 10 i mean, for exampLe, you can look at the traffic L l impact and you' I. 1 have I i kc, a TIAR than says that, you ' re 12 goinq to have Level of service A or level of service R ! ' with ur without thE- project, but then it doosn ' t 14 necessarily address like how the community is going to -- 11, ycu know, the community that ' s going to be Directly 16 impacted is going to feel the effects of having now to I'1 have a -- you know, either a 59 percent more increase on IB traffi ` along Kaumana Drive . la MR. HONG: E,,xcuse me, I 'm going to object at this 20 point , and i apologize for inL-errupti_nq, bur this 21 response is not responsive to the question that was 22 asked. 2s THE HEARINGS OFFICF;R: Mr . Gomes, you ' re going to 29 have to ask -- 25 MR. COMES : In his professional opinion . ISLAND COURT REIPOPTTNG & TRANSCRIPTION SERVICES (HOP ) 933-9800 Ex-3 0059 1 ' � t I 7r ll7,.t- ,� 3 questions and Mr . F,uke ' s going to have to answer them, 4 okay? -an you he more specific with your questions . 5 BY MR. GOMF5 : 6 Q. Can you just shorten your answer . In your professional opinion, why do you thank the proposed 8 development meets the test or not . A. Okay. it was already provided, I guess in this 10 thick hinder, you know the -- and T had the initial Power 11 Point pr,-sentatioij that was givci . i think Chat a lot of 111) it , a lot of the summary reasons I provided in that_ . 13 Fssent_ tally, you 11,3Ve -- the community is not really -- 14 the rommuni t y pPr ce i ves that it ' s going ti- be adverse I5 impact On tl,,ie project_ 1F, From an infrastructure_ standpoint, there is the 1 ! question about whether, there ' s an adequate amount of 18 water that ' s goinq to service the project . In spite of 19 the applicant ' s claim that they can use -- that they' re 20 proposing to use like a catchment system, there is a 21 question as far as whether, for a school of this size, 22 you get a K tc 12 with a dormitory, but is the entire 73 catchment system going to be adequate . 24 The noti;,n that t_hcy ha-,Tc only 4200 gallons of 25 water now and that they' re goinq to think about how ISLAND COURT RFPORTING & TRANSCRIPTION SFRVICES (808) 933-9800 Ex-3 0060 3 can down the road . 4 And I t I nk is important for the der:isionmakers 5 to havA t hat i reformat ion L,ptront rather than havi rig t o 6 say like we11 , don' t worry, but do they care about zt . 1 But 1 think, in summary, like it ' s already contained in R thn initial P,Dwer Point present-inon that I ' ve given . �, Q . And have you experienced any four; of the school 10 reaching otic anti doinq anything for the community such as 11 posyiLly invitirrq you or the corrrnurtity tri an op�Irl house 1� ar th- school that snows what_ t hPy do- 1 ? MR. S I [1: 0k-� 7ec t i on, You Hur!ur . 1.4 BY NIR.. (-,()MES : 15 Q, Conduct cleanup in our ne-ighhorhood tc, show a 16 sign of good faith that -- are you aware of anything that 17 the school has done poli Live in Lhe -:ormnunity"? 18 THE HEARINGS OFFICER : Mr. Gorres, how is this 19 relevant ? How is this relevant to this application: 20 MR. GOMES : Mrs . Leithead-Todd had directed the 21 school to reach out to the community and try to bond with 22 the community. And the only thing they did was they had 23 one committee meeting fln a work day and the principal 24 wasn ' t there . And so wo "ent to the school and 25 there was no parking . ISLAND COURT RF,PORTING & TRANSCRIPTION SERVICES (808 ) 933-9800 Ex-3 0061 Tr 3 MR . COMES : No further questions . 4 THE HEARINGS OFFICER: Mr . Hong, do you have any 5 redirect-? 6 MR. HONG: Brief followup. 7 REDIRECT EXAMINATION 8 BY MR- HON(--: Cl Q. Yoga talked at)out -- you just talked about kicking 10 the can down the road. You -- is it your testimony that 1 1 you' ,,-, nevt,r teen i nTro` ved In projects that- we r e 12 developed o�,er phases'' 1 .3 A. No, I have . 14 Q. And in f. rr=1s of when you developed and presented 17) plans or your pro ')ects tc, the Planning Commission or the 16 Planning Dcpar_tment , you identified certain phases and 1-7 what it would need to meet -- the infrastructure needs to 18 meet that particular phase, correct? 19 A. Yes, except that in this situation when I 20 mentioned tike kic�kinq the can down the road as it 21 relates to water, because I think that in other 22 applications even if you develop the project in phases, 23 there ' s an answer to how you' re going to be addressinq 24 the overall water nee-is for the project . Arid i -i my 2� estimation, that answer was not provided in the ISLAND COURT REPORTING & TRANSCRIPTION SFRVICES (808) 933-9800 Ex-3 0062 5 9a 1 STATE OF HAWAII j COUNTY OF HAWAII ) SS. I, Susan R. Nakamoto, CSR #237, certified shorthand reporter in the State of Hawaii, do hereby certify that the foregoing pages are a true and correct transcription of the proceedings in this matter. Dated this 13th day of January, 2D14 . CERTIFIED SHORTHAND REPORTER SUSAN R. NAKAMOTO, CSR 237 i I i Ex-3 0063 Sid Fuke From: Layne Novak [noconnectionsever@gmaif.cora] Sent: Friday, October 11, 2013 12:17 PM To: Sidney Fuke Subject: Subpoenas fli Sidney, June Sakamoto and Melvin and Jan Yokota got their subpoenas yesterday. They are getting anxious about this and asked if you can give them any information regarding what to expect. They are worried about what Ted will ask of them. Allen and I have not received our subpoenas yet but since they received theirs, I guess we'll be getting ours shortly. I will not be testifying, I hope, as I will be leaving for the mainland on Monday, 10/21, albeit in the evening. By the way, my emails to Terrance have been bouncing. Could you ask Terrance if he could help Jeff with his line of questioning? As far as I know, Jeff has not sena out his subpoenas to Judge Song yet so I'll be pinging again today about getting this done. Thanks, Layne Ex-4 001 Sid Fuke From: Layne Novak jnoconnectionsever@gmail.c.on } Sent: Monday, October 14, 2013 9:43 AM To: Sid Fuke Subject: Re: Subpoenas Got it -- thanks! On Sat, Oct 12, 2013 at 8:06 PM, Sid Fuke<sidfuke c7,hawaiiantel_net> wrote: Hi, Layne: d3^'t know,when y3u, `v M be reg r ng+Hi$,Z$1 Z+ afiig Some ZmU.LmsVSith itntQmet$Q!:. C^ 4eieiie Japan...especially at the place we stayed the past two nights. Regarding your questions: a. 1 wouldn't worry about Ted's subpoenas. If he asks questions of their testimony and the testifier has not had a chance to review it, the testifier can ask to see it first to refresh his/her memory. As they are notbeing caller/ as "experts" in a field,they can just express their opinions. I would not be surprised, however, if Ted asks questions about the community meeting—maybe to find our what they recall nay statements, etc. He might be trying to paint me—as Thatcher told me at the comm inity meeting I held re:the regency project—as the "ringleader" and that it was unprofessional of me to do so. At the same time, by having many—including Terence—on his witness list, he may ask the hearings officer to Nave t' em ex_tudoed from.the hearsrtg,that Vra',r orip131M)g'the sUppert.flr,left. tf so, 4 k CPP_'the hie rings Zffivaf sees through that. b, I have already asked Terence to assist Jeff, and 1 think he is prepared to do so. Terence has a new email address and I am copying him on this email. Take care! Sid From: Layne Novak[mailto:noconnectionsever mail.com] Sent; Friday, October 11, 2013 12:17 PM To; Sidney Fuke Subject: Subpoenas Ex-4 002 Sid Fuke From: Layne Novak [noconnectionsever@gmaiE_com] Sent: Wednesday, October IS, 213V6 11:134 AM To: Layne Novak Subject: Last Night's Meeting Hi everyone, We had a good turn out last night. Here are some of the highlights: 1_ We would like people to provide a 2-minute testimony on NEW evidence regarding traffi ater, sewage, impact on neighborhood, etc. It's not likely that Judge Song will allow one person to accumulate __ mutes from others the way we had done in the past at the Windward Planning Commission (WPC) meetings. 2. There were 13 people, myself included, that are on Ted Hong's witness list. All, except for myself, were served with subpoenas. These people will not be allowed to watch the entire proceedings so if anyone wants to take notes for the rest of us, please let ane know. 3. Terrance Yoshioka will assist Jeff with his questions_ 4. Some people want to have a mock hearing so that they have a better understanding of the proceedings so I will let you know when that will be held. Let me know if you'd like to add anything else. Aloha, Layne Ex-4 003 Fi,omm "Sid Fuke" <sidfuke@hawaiiantel.net > FW: Connections - Presentation Outline Date: October 2, 2013 6:48:29 AM HST To: "Terence Yoshioka" <tyoshioka5@hawaii.rr.corry 1 Attachment, 32.1 KB FYI. From: Sid Fuke mailto:sidfuke@hawaiiantel.net] Sent: Monday, September 02, 2013 12:43 PM To: 'Jeff Gomes' Subject: FW: Connections - Presentation Outline Trying again—this is in word format. tet me know. From: Sid Fuke rmailto:sittfuke@hawaiiantel.net] Sent: Monday, September 02, 2013 10:03 AM To: 'Jeff Gomes' Cc: 'Layne Novak' Subject: Connections - Presentation outline Jeff: Attached is a pretty detailed outline (STRATEGY) of the approach and points you may want to cover. This is a "cheat" sheet, so you need to be careful NOT to get this in the hands of the applicant. Your witness list and the exhibits have to be geared towards supporting these points. We can talk about this later. Take care! Sid �4 CCOutliine.docx (32.1 ick} Ex-4 004 From. "Sid Fuke" <sidfuke@hawaiiantel.net> ... . = FW: Connections Contested Case Date: October 2, 2013 6:47:03 AM HST To: "Terence Yoshioka" <tyoshioka5@hawaii.rr.com> Hope this works. Thanks! From: Sid Fuke frr+ailto:sidfukeC hawaiianteJ.net] Sent: Tuesday, October 01, 2013 1:33 PM To: Terence Yoshioka (tkyoshiokaahawailantel.net) Cc: lefP gomes' Subject: Connections Contested Case Hi,Terence: Sorry we have been playing telephone tags. Basically, I wanted to check on your availability to sit in and assist Jeff with the upcoming contested case hearing. It is scheduled to begin on Monday and Tuesday, October 21- 22. 1 cannot,as I will be in Japan and returning on the 23,d. Please let me know and if so, I can fill you in on some of the matters. Thanks! Sid Ex-4 005 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 RI SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) DECLARATION OF TED H. S. HONG vs. ) WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING, COUNTY OF HAWAII, ) Appellees, ) and ) HEARING: SANDRA SONG, in her capacity as ) DATE: August 19, 2014 Hearing Officer; JEFFREY GOMES, ) TIME: 8:30 a.m. Intervenor; SIDNEY FUKE, Intervenor's ) JUDGE: The Hon. Ronald Ibarra Representative; TERENCE YOSHIOKA, ) Intervenor's Representative, ) Intervenor-Appellees. ) DECLARATION OF TED H. S. HONG STATE OF HAWAII ) SS. COUNTY OF HAWAII } 1, TED H. S. HONG, declares as follows: 1. I am the counsel for Applicant-Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES 2. 1 make this Declaration rased on my personal knowledge and am competent to testify about the matters contained in this Declaration. 3. Appellant, Community Based Education Support Services ("CBESS") is a co- applicant in Special Permit Application No. 12-000138 to develop a K to 12 Charter School Campus with Dorm Facilities, Intergenerational Programs, a sustainable Agricultural Program and a Forestry/Conservation Program and related uses on approximately 70 acres of land situated in the State Land use Agricultural District located on both the southwest and northeast sides of Edita Street near its intersection with Kaumana Drive, South Hilo, Hawaii and further identified by Tax Map Key (3)2-5-006:141. 4. That attached hereto as Exhibit"1" is a true and accurate copy of the Hearing Officer for the Contested Case hearing for Special Permit Application No. 12-00138, Report dated April 7, 20I4. 5. That attached hereto as Exhibit"2" is a true and accurate copy of Findings of Fact, Conclusions of Law and Decision and Order adopted by the Windward Planning Commission on May 1, 2014 and May 19, 2014, respectively. 6. That attached hereto as Exhibit "3" are fair and accurate copies of excerpts of the transcript and sworn testimony of Appellees Fuke, Yoshioka and Gomes' before the Appellee Hearings Officer. 7. That attached hereto as Exhibit "4," are true and accurate copies of documents received from Appellees Fuke, Yoshioka and Gomes' and produced pursuant to lawful subpoena before the Appellee Hearings Officer. 8. I declare under penalty of perjury under the laws of the State of Hawaii, that the above 2 is true and accurate. DATED: Hilo, Hawaii, August 11, 2014. -IIED H. S. HONG- 3 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO. 14-1-0223 RI SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, } CERTIFICATE OF SERVICE } vs. } WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING, COUNTY OF HAWAII, ) Appellees, ) and } } HEARING: SANDRA SONG, in her capacity as ) DATE: August 19, 2014 Hearing Officer; JEFFREY GOMES, ) TIME: 8:30 a.m. Intervenor; SIDNEY FUKE, Intervenor's ) JUDGE: The Hon. Ronald Ibarra Representative; TERENCE YOSHIOKA, ) Intervenor's Representative, } Intervenor-Appellees. ) CERTIFICATE OF SERVICE I hereby certify that the foregoing document was duly served via U.S. Mail, postage prepaid, on the date indicated below, to the following: MARGARET K. MASUNAGA, ESQ. Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni St., Ste, 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and APPELLEE SANDRA SONG AMY G. SELF, ESQ. Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni St., Ste, 325 Hilo, Hawaii 96720 Attorney for APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAII ALAN M. OKAMOTO, ESQ. 187 Kapiolani Street Hilo, HI 96720 Attorney for APPELLEES SIDNEY FUKE and TERENCE T. YOSHIOKA MICHAEL J. MATSUKAWA, ESQ. 75-5751 Kuakini Hwy., Ste. 20I Kailua-Kona, HI 96740 Attorney for APPELLEE JEFFREY GOMES CARTER K. SIU, ESQ. Deputy Attorney General 235 S. Beretania Street, Rm. 304 Honolulu, HI 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL DATED: Hilo, Hawaii, August 11, 2014. ED H. S. HON Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 SIL CIRCUIT COURT OF NAKAMOTO, OKAMOTO & YAMAMO'I O THE THAD CIRCUIT ATTO[ZNI_:YS A"1" LAW STATE OF HAWAII A LAW CORPORATION 2014 AW t m2:28 ALAN M. OKAMOTO //1826 187 Kapiolaili Street I filo, Hawaii 907')0 CLERK S. MURANAAA Telephone: (SOS) 961-0041 Attorney for A11I'1:1,L1"1:S SIDNI'Y F tJKF1 and 'IT"RENCE T. YOSHIOKA IN ]]IL' CIRC[!JT COURT OF THE THIRD CIRCUIT STATF 01 HAWAII COMMtJNI'I'Y BASEIa EIAXATION CIVIL, NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, CERTIFICATE OF SERVICE vs. i (IZc: Supplemental Affidavit of Terence T. Yoshioka, Exhibit A) WINDWARD PI.ANTIING COMMISSION, COUNTY OI{ 1IAWAII; DEPARTMENT OF PLANNING, COUNTY OF 11AWA11, Appel lees, vs. SANIaRA SONG, in her capacity as Hearing Officer; .IFFFII I;Y GOMFIS, Intervenor; SIDNEY FUKH, Intervenors Representative; 'I'1,.R1;N(.'I� "1". YOSI IIOKA, Intervenor's Representative, Intervenor-Appellees. CF,R'J'1FYCATE OF SERVICE 1 I hereby certify that the foregoing Sr.�ppler�ientul Adavit of Terence T. Yoshioka, Exhibit A was served on the following by depositing the same with the U.S. Postal Service, postage prepaid, on August 7, 2014: Ted H.S. Hong, Esq. David M. Louie, Esq. P.O. Box 4217 Carter K. Siu, Esq. Hilo, H1 96720 Deputy Attorney General 235 S. Bcretania Street, Room 304 Attorney for Applicant-Appellant Honolulu, H1 96813 COMMLJN1'I_Y BASED 1 DUATION SUPPORT SERVICES Attorney for Applicant-Appellant CONNECTIONS NEW CENTUREY CI CARTER SCHOOL Margaret Masunaga, Esq. Amy Self, Esq. Deputy Corporation Counsel Deputy Corporation Counsel 74-5044 Anc Keohokalolc Highway 101 Aupuni Street, Suite 325 Kailua-Kona, 14196740 1Iilo, HI 96720 Attorney for Appellees Attorney for Appellee WINDWARD I'LANNING DEPARTMENT OF PLANNING, COMMISSION, COLJN`I'Y OF HAWAII; COUNTY OF HAWAII and SANDRA SONG Michael Matsukawa, Fsq. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, 11I 96740 Attorney for Appellee JEFFREY GOMLS DATED: Hilo, I lawaii, August 7, 2014. ALAN M. OKAMOTO 2 CIRCUIT COURT rr Tf7r FR3 CIRCUIT MOLLY A. S'l'l--BBINS 8639 STh't OF HAWAII Corporation Counsel 2014 AUG 13 PH 2. 28 AMY G. SELF 7628 ,IOSF111I K. KAMELAMELA 2493 Deputies Corporation Counsel CLERK—S• Ai ';..;',,1;,"KA Office of the Corporation Counsel 101 Aupuni Street, Suite 325 ililo. llawai`i 96720 'l'cl. No. (808) 961-8251 Fax No. (808) 961-8622 Email: aself'a co.hawaii.hi.u5 Lamely uTco.ha��"aLL111.LIS Attorney s for Appellee DEPART,VIL?N"f OF PLANNING, COUNTY OF I IAWAI`l IN '1111" CIRCUIT COURT OF T1 II.: 4'111RD CIRCUIT STATIF, OF IIAWAVI ('OMML:N['fY BASFD 1:DU("A"PION Civil No. 14-1-0223 Sl=PPORf SERVICES. Appiicant-Appel lant, API)FI.I.I F DEPAIZTMEN'I' OI, PLANN'IN(;. COUNTY 01' I IAWAI`I'S IZEPLY 1-0 as. AP111�1.LANF CO W'NF Y BASED I;I)UCATION SLTPPOR'1' SI',RVICES' WINUVL'ARD PLANNING COMMISSION, MEMORANDUM IN OPPOSI'CION '1'O C'Ol iA'LY 01� IIAWAI`L D1:I)AIZ'I-MI;1\T'1' OF APPELLEE I)I"PARTMI,VT OF PLANNING, Pt..ANNING. CO['N"CY 01' I IAWAI'l. COUNTY OI, 11AWAI'I'S MOTION 'I'O DISMISS FILI'D ON JITNI? 27, 2014, FILLD AppcIlccti, AUGUST 11. 2014; CI:IZ'I'IFICA'1'I: 01: SFIZVICI: and SANDRA SONG. in her capacitN as IIeaving Officer-11,1 FIZEY GOMES, lntcrvenor: IIF,AIZING: SIDXFY I:tJKI,. Intervenor's Representative: Date: August 19. 2014 1'I:IZENCL YOSIIIOKA, hntervenor's 'Dime: 8:30 a.m. Representative. Judge: Honorable Ronald Ibarra Intervenor-r1 ppcl[ccs. No Trial Date Set c� APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S REPLY TO APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' MEMORANDUM IN OPPOSITION TO APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S MOTION TO DISMISS FILED ON .TUNE 27, 2014, FILED AUGUST 11, 2014 Appellee Department of Planning. County of I Iawai'i (hereinafter"Planning Department''), by and through its undersigned counsel, hereby submits its Reply to Appellee Community Based Education Support Services' Memorandum in Opposition to Appellee Department of Planning. County of HawaiTs Motion to Dismiss filed on June 27, 2014, filed August It. 2014 as follows: L Applicant-Appellant Community Based Education Support Services (hereinafter "CBESS") Fails to State a Claim Against the Planning Department that Would Entitle CBESS to Relief From the Planning Departmcnt. Although CBESS provides the standard for a motion to dismiss under Rule 12(b)(6) of the l Iawai'i Rules of Civil Procedure ("I IRCI"') in its Opposition to the Planning Department's Motion to Dismiss ("Opposition"), CBESS still points to no claims or allegations against the Planning Department in the matter before this Court. The fact remains that CBESS has never stated a claim against the Planning Department for which relief can be granted by this Court. The relief that may be granted by this Court is limited to the relief provided under Section 91-14(g), flawai'i Revised Statutes ("HRS"), which states: (g) Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are: (1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedure; or (4) Affected by other error of law; or (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. (Emphasis added.) 2 Obviously. it is the decision of the Windward Planning Commission that will either be affirmed, remanded, reversed or modified by this Court. The Planning Department played no role whatsoever in the decision of the Windward Planning Commission. Furthermore, the Planning Department was neither a party to the contested case hearing before Intervenor- Appellee Sandra Song, in her capacity as Hearing Officer, nor the contested case hearing before the Windward Planning Commission. Finally, there simply is no relief available to CBESS against the Planning Department and CI FSS cannot create such relief by simply naming the Planning Department as a party. See id. See also Berlelmann v. Taas Assoes., 69 Haw. 95, 99, 735 P.2d 930. 933 (1987). H. CBESS' Contention that the Planning Department is Legally Responsible for the Windward Planning Commission is Misleading. CBESS attempts to use the organization of the Planning Department under the Hawaii County Charter to name the Planning Department as a party in this matter, but overlooks the difference between the role of the Windward Planning Commission and the role of the Planning Department in a contested case. In a contested case, the Windward Planning Commission performs a quasi-adjudicatory function pursuant to Sections 91-9 and 205-6(b), HRS, and Section 6-7.5(a)(4), Ilawai'i County Charter (2012); whereas, the Planning Department merely provides such administrative support to the Windward Planning Commission as is necessary for the Windward Planning Commission to perform its quasi-adjudicatory function. See I Iawai'i County Code 1983 (2005 Uition, as amended) Section 2-27(a) and (c). Only the Windward Planning Commission had the authority to either grant or deny the special permit, not the Planning Department. See Section 205-6, HRS; ,See also Rule 6 of the County of Hawaii Planning Commission Rules of'Practice and Procedure ("PC Rules"). Furthermore, the Planning Department did not seek to intervene as a party by filing a written request pursuant to Rule 4- 6(a) of the PC Rules. 3 III. The Planning Department is Not an Indispensable Party. CRESS provides absolutely no support for its argument that the Planning Department is an indispensable party to this agency appeal and it is simply not true. As discussed above. Section 91-14(g). HRS, provides the relief that may be granted by this Court. Should this Court decide to remand the case with instructions for further proceedings, the case must be remanded to the Windward Planning Commission because it is the Windward Planning Commission's decision that is being appealed, not the original hearing officer's decision or even the Planning Departments decision as CBLSS seems to think. See Section 91-14(g), IIRS. The same relief will be granted in this matter under Section 91-14(g), IIRS. regardless of whether the Planning Department is named as a party or not. 'T'heref'ore, the Planning Department is not an indispensible party as defined in Rule 19, I]RCI'. IV. Conclusion. Based on the foregoing. the Planning Department respectfully requests that this Court dismiss CBI;SS" appeal against the Planning Department as doing so will have no effect on the relief that may be granted under Section 91-I4(g), NIRS. Dated: Ililo. IIawai`i, August 13. 2014. DEPARTMENT OF PLANNING, COUNTY OF HAWAII, ppellee By � — - AMY i. SLI.I'' Deput Corporation Counsel Its Attorney 4 IN THI; CIRCUIT' COIJR'I' OF "1'II1; '1'lI1RD CIRCUIT, STATE OF HAWAII COMMUNITY BASE:D EDUCATION Civil No, 14-1-0223 SUPPORT SERVICES Applicant-Appellant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAPI; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as I Iearing Officer, .JEFFREY DOMES, Intervenor; SII)NFY I UKI;, Intervenor's Representative; TERI:NCI: YOSHIOKA, Inters enor's Representative, Intervenor-Appellees. CERTIFICATE OF SERVICE 1 l II.'RL•'BY CERTIFY that on August 13. 2014, a copy of the foregoing document was served upon the following in the manner indicated below: Iland Deliver Mail Email TED II.S. HONG, E'SQ. (X) I-Iilo Lagoon Centre 101 Aupuni Street, PI 1002A Hilo, Hawai'i 96720 Email: tcd'a tcdhonglaw.com Attorney for COMMUNITY BASED EDUCATION SUPPORT SERVICES Hand Delivery Mail Email CARTER K. SIU. I'SQ. (X) Deputy Attorney General State of Ifawai'i 235 South Beretania Street, Room 304 Honolulu. IIawai'i 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CIIARITR SCHOOI. MARGARFT K. MASUNAGA (X) Deputy Corporation Counsel Officc of the Corporation Counscl 101 Aupuni Street, Suite 325 Hilo, IIawai'i 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`I and SANDRA SONG, in her capacity as I Iearing Officer MICHAEL J. MATSUKAWA, ESQ. (X) Territorial Centre. Suite 201 75-5751 Kuakini IIighway Kailua-Kona. Ilawai'i 96740 + Attorney for Intervenor-Appellee L' .lI:F F RI"Y GOMES n ALAN M. OKAMOTO, ESQ. {X) Nakamoto, Okamoto & Yamamoto 187 Kapi'olani Strect IIilo, IIawai'i 96720 Attorney for Intervenors-Appellees SIDNF,Y hUKE AND TERENCE YOSHIOKA Dated: IIilo, Ilawai'i. August I3, 2014. ,� AMY . Sl:I.P Deputy Corporation Counscl County of Ilawai`i 2 y F ILE CIRCUIT COURT OF MOLLY A. STEBBINS 8639 THE TRlii� CIROUIT Corporation Counsel STATE Or HAWAII MARGARET K. MASUNAGA 4568 2014 AUG 14 PH 12= 06 MELODY PARKER 4406 Deputies Corporation Counsel Office of the Corporation Counsel f'ErI:#tK 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Tel. No. (808) 961-8251 Fax No. (808) 961-8622 Email: mkmasunagaAco.hawaii.hi.us m arkerCdco.hawaii.hi.us Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I, and Intervenor-Appellee SANDRA SONG, in her capacity as Hearing Officer IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I, vs. AND INTERVENOR-APPELLEE SANDRA SONG, IN HER CAPACITY AS HEARING WINDWARD PLANNING COMMISSION, OFFICER'S REPLY TO APPELLANT COUNTY OF HAWAII; DEPARTMENT OF COMMUNITY BASED EDUCATION PLANNING, COUNTY OF HAWAII, SUPPORT SERVICES'MEMORANDUMIN OPPOSITION TO APPELLEE WINDWARD Appellees, PLANNING COMMISSION, COUNTY OF HAWAI`I, AND INTERVENOR-APPELLEE and SANDRA SONG'S MOTION TO DISMISS FILED ONJULY 7, 2014, FILED AUGUST SANDRA SONG, in her capacity as Hearing 11, 2014; CERTIFICATE OF SERVICE Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; HEARING: TERENCE YOSHIOKA, Intervenor's Date: August 19, 2014 Representative, Time: 8:30 a.m. Judge: Honorable Ronald Ibarra Intervenor-Appellees. No Trial Date Set `tet APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII AND INTERVENOR-APPELLEE SANDRA SONG, IN HER CAPACITY AS HEARING OFFICER'S REPLY TO APPELLANT COMMUNITYBASED EDUCATION SUPPORT SERVICES'MEMORANDUM IN OPPOSITION TO APPELLEE WINDWARD PLANNING COMMISSION COUNTY OF HAWAI`I AND INTERVENOR-APPELLEE SANDRA SONGS MOTION TO DISMISS FILED ONJULY 7, 2014, FILED AUGUST 11, 2014 Appellee WINDWARD PLANNING COMMISSION, COUNT YOF HAWAII, and Intervenor-Appellee SANDRA SONG, in her capacity as Hearing Officer, by and through their undersigned counsel, hereby submit their Reply to Appellant Community Based Education Support Services'Memorandum in Opposition to Appellee Windward Planning Commission, County of Hawai`i("Commission")and Intervenor Appellee Sandra Song's Motion to Dismiss filed on July 7, 2014, filed August 11, 2014 ("CBESS's Memorandum in Opposition") as follows: I. INTRODUCTION In CBESS's Memorandum in Opposition, it asserts that the Corporation Counsel cannot legally represent the interests of Intervenor-Appellee SANDRA SONG ("Hearing Officer Song") in this matter because she is not a COUNTY OF HAWAII ("County") employee, and that she is an indispensable party. The record on appeal is void of evidence to support CBESS's contention that Hearing Officer Song is a party in this matter. CBESS ignores the legal basis for the WINDWARD PLANNING COMMISSION's ('Planning Commission") determination that Hearing Officer Song is not a party and provides no legal authority to establish that Hearing Officer Song is an indispensable party in this appeal. II. CORPORATION COUNSEL PROVIDES LEGAL REPRESENTATION TO THE PLANNING COMMISSION In this instant matter, the County is not representing Hearing Officer Song as an employee. The Corporation Counsel, however, is providing legal representation to the Planning Commission. In relevant part, the Hawaii County Charter, Section 6-5.3 (Powers, Duties and Functions) provides that: The corporation counsel shall be the chief legal advisor and. legal representative of all county agencies[.] The corporation counsel shall represent the county in all civil proceedings and shall perform all other services to the office as may be required by law. There is no dispute that the Planning Department is a County agency. In addition, there is no dispute that the Planning Commission is a part of the Planning Department. Here, Hearing Officer Song was duly appointed and designated the hearing officer pursuant to Rule 4-4 of the Planning Commission Rules of Practice and Procedure ("Planning Commission Rules"). The selection of her as the hearing officer was done in accordance with the State Public Procurement Code, Section 103D, Hawaii Revised Statutes ("HRS"). See Exhibit "3" (letter dated July 12, 2013, from the Planning Commission to the counsels for the parties) attached to CBESS's Memorandum in Opposition. Under the rules, a hearings officer may be challenged upon appointment or during the proceedings based on bias, conflict of interest, fraud or collusion. Upon the Planning Commission's selection of Hearing Officer Song, no such challenge was made, and during the proceedings administered by Hearing Officer Song, no claims of bias, conflict of interest, fraud or collusion were brought to the attention of the Planning Commission. Therefore Hearing Officer Song completed her obligation under her contract with the Planning Commission when she provided her recommendation to the Planning Commission. Under the circumstances of this case, the Corporation Counsel has an obligation to zealously advocate under the Planning Commission Rules. With no evidence to disqualify Hearing Officer Song in administering the contested case hearing and making the resulting 2 findings and recommendation to the Planning Commission, there is no evidence to indicate that Hearing Officer Song should be a party in this agency appeal. Moreover, the Corporation Counsel's legal position to object to CBESS's naming of Hearing Officer Song as a party is not in conflict with the desires of her client. See, e.g., Chun v. Board of Trustees of the Employees' Retirement Sys., 87 Hawaii 152, 171, 174-175, 952 P.2d 1215, 1234, 1237-38 (1998) (when the attorney general's vision of the "state's legal interest'' is at variance with that of her statutory client, "it is the duty of the Attorney General to zealously advocate the public policy positions of her client in pleadings, in negotiations, and in the courtroom and to avoid even the appearance of impropriety to be in conflict with the desires of her client"). Hearing Officer Song, in her contracted capacity and as appointed by the Planning Commission, is entitled to representation by Corporation Counsel in furtherance of the Commission duties and responsibilities. III. HEARING OFFICER SONG 1S NOT AN INDISPENSABLE PARTY Even if you assume that the Corporation Counsel should not be providing any legal representation to the Planning Commission, the relevant issue is not whether Hearing Officer Song is an employee of the County. The relevant issue is whether CBESS has any legal authority that would allow it to name Hearing Officer Song as a party in the current agency appeal. There is no dispute that Hearing Officer Song provided findings and recommendations to the Planning Commission. The hearing officer does not have the authority to make the final decision to deny the special use permit. That authority rests squarely with the Planning Commission. 3 In accordance with Section 205-6(a), HRS, the Planning Commission, not a hearing officer, has the authority to grant or deny special permits. Section 205-6(a), HRS, provides that: [T]he county planning commission may permit certain unusual and reasonable uses within agricultural . . . districts other than those for which the district is classified. Moreover, an aggrieved party appeals the denial by the PIanning Commission. Pursuant to Section 205-6, it states: [A]denial . . . by the county planning commission . . ., as the case may be, of the desired use shall be appealable to the circuit court of the circuit in which the land is situated[.] In the case at bar, the decision-making body is the Planning Commission, not the hearing officer. The hearing officer has limited authority to make findings and recommendations only. The ultimate approval or denial of a special use permit lays with the Planning Commission, not the hearing officer. The statutory framework only provides for an appeal of the Planning Commission's denial. Hearing Officer Song did not deny the special permit; it was the Planning Commission which did so. Also, in CBESS's Memorandum in Opposition, there are no statutory or Planning Commission Rules cited to, referred to, or relied upon that would allow CBESS to name the hearing officer as a party. Given the above stated circumstances and analysis, only the Planning Commission is an indispensable party. Hearing Officer Song is not an indispensable party. The Court is empowered to remand the case with instructions to the Planning Commission. The Court may also reverse or modify the decision of the Planning Commission. The Court can only act on the ultimate decision rendered by the Planning Commission, not the hearing officer. Section 91- 14(g), HRS. 4 IV. CONCLUSION For the reasons stated above, the Planning Commission's Motion to Dismiss should be granted. Dated: Hilo, Hawaii, August 14, 2014, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, Appellee, and SANDRA SONG, in her capacity as Hearing Officer, Intervenor-Appellee By MELO Y PARKEV Deputy Corporation Counsel Their attorney 5 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES Applicant-Appellant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAI`l, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appel lees. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 14, 2014, a copy of the foregoing document was served upon the following in the manner indicated below: Hand Delivery Mail TED H. S. HONG (X) Hilo Lagoon Centre 101 Aupuni Street, PH 1002A Hilo, Hawaii 96720 Attorney for COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU (X) Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL Hand Delivery Mail AMY G. SELF (X) Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAI I MICHAEL J. MATSUKAWA (X) Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES ALAN M. OKAMOTO (X) Nakamoto, Okamoto & Yamamoto 187 Kapi`olani Street Hilo, Hawaii 96720 Attorney for Intervenors-Appellees SIDNEY FUKE AND TERENCE YOSHIOKA Dated: Hilo, Hawaii, August 14, 2014. _x� enl�� MELODY PARK Deputy Corporation Counsel County of Hawaii 2 S F ILisED CIRCUIT COURT OF NAKAMOTO, OKAMOTO & YAMAMOTO THE THIRD CIRCUIT STATE OF HAWAII ATTORNEYS AT LAW A LAW CORPORATION 2014 AUG 14 PM 1: 51 ALAN M. OKAMOTO 41826 187 Kapiolani Street Hilo, Hawaii 96720 CLERK S. MI�Rt�?iAKA Telephone: (808) 961-0641 Attorney for APPELLEES SIDNEY FUKE and TERENCE T. YOSHIOKA IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, APPELLEES TERENCE T. YOSHIOKA AND SIDNEY FUKE'S MEMORANDUM vs. IN RESPONSE TO APPELLANT COMMUNITY BASED EDUCATION WINDWARD PLANNING SUPPORT SERVICES' MEMORANDUM COMMISSION, COUNTY OF HAWAII; IN OPPOSITION TO APPELLEE DEPARTMENT OF PLANNING, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, COUNTY OF HAWAII, AND INTERVENOR-APPELLEE SANDRA Appellees, SONG'S MOTION TO DISMISS FILED ON AUGUST 11, 2014; CERTIFICATE OF vs. SERVICE SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's HEARING: Representative; TERENCE T. YOSHIOKA, Date: August 19, 2014 Intervenor's Representative, Time: 8:30 a.m. Judge: Honorable Ronald Ibarra Intervenor-Appel lees. No Trial Date Set APPELLEES TERENCE T. YOSHIOKA AND SIDNEY FUKE'S MEMORANDUM IN RESPONSE TO APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' MEMORANDUM IN OPPOSITION TO 1 APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, AND INTERVENOR-APPELLEE SANDRA SONG'S MOTION TO DISMISS FILED ON AUGUST 11 2014 Comes now Appellees TERENCE T. YOSHIOKA and SIDNEY FUKE (hereafter "Appellee YOSHIOKA" and "Appellee FUKE" or collectively "Appellees YOSHIOKA and FUKE"), by and through their attorneys,Nakamoto, Okamoto &Yamamoto, hereby submit this Memorandum in Response to the Appellant Community Based Education Support Services' Memorandum in Opposition to Appellee Windward Planning Commission, County of Hawaii, and Intervenor-Appellee Sandra Song's Motion to Dismiss. I. APPELLEE SANDRA SONG IS NOT AN INDISPENSABLE PARTY TO THIS APPEAL Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES' (hereafter"Appellant CBESS")raises the same argument on indispensable parties that it made in its Memorandum in Opposition to Appellees YOSHIOKA and FUKE's Motion for Summary Judgment. There is no dispute about the role of Appellee SANDRA SONG (hereafter "Appellee SONG") in the WINDWARD PLANNING COMMISSION proceedings. Appellant CBESS recognize that Appellee SONG was simply the Hearing Officer in the contested case. Appellant CBESS' Memorandum in Opposition to Appellees WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and Intervenor- Appellee SANDRA SONG's Motion to Dismiss. The appeal in this case is from the decision of the WINDWARD PLANNING COMMISSION and not from a decision of a Hearing Officer. The WINDWARD PLANNING COMMISSION is a party in this appeal which means that the Court can 2 grant any relief it finds appropriate under Section 91-16(g), Hawaii Revised Statutes without Appellee SONG. Once the Court does so, the issues relating to that decision will be resolved so Rule 19(a)(2), Hawaii Rules of Civil Procedures does not apply. Appellant CBESS does not provide any grounds for its assertion that not having Appellee SONG in this appeal will impair Appellant's ability to obtain a definitive ruling on the denial of its Special Permit Application or expose it to multiple or inconsistent obligations. Once this Court rules on whether the WINDWARD PLANNING COMMISSION's denial of the Special Permit Application was proper, the appeal is done. Appellant CBESS appears to be trying to use the appeal process to improperly control future proceedings and to suppress future review of its application if it is able to reprocess its application. As pointed out in Appellee YOSHIOKA and FUKE's Memorandum in Response to Appellant CBESS' Memorandum in Opposition to Appellees Sidney Fuke and Terrance T. Yoshioka and Jeffrey Gomes' Motion for Summary Judgment, that is beyond the scope of the relief available in a Chapter 91 appeal and is inconsistent with the purpose of Chapter 91. DATED: Hilo, Hawaii, August 14, 2014. ALAN M. OKAMOTO Attorney for Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA 3 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, vs. SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE T. YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. CERTIFICATE OF SERVICE I hereby certify that the foregoing Appellees Terence T. Yoshioka and Sidney Fake's Memorandum in Response to Appellant Community Based Education Support Services'Memorandum in Opposition to Appellee Windward Planning Commission, County of Hawaii, and Intervenor-Appellee Sandra Song's Motion to Dismiss filed on August 11, 2014 was served on the following by depositing the same with the U.S. Postal Service, postage prepaid, on August 14, 2014: 1 Ted H.S. Hong, Esq. David M. Louie, Esq. P.O. Box 4217 Carter K. Siu, Esq. Hilo, HI 96720 Deputy Attorney General 235 S. Beretania Street, Room 304 Attorney for Applicant-Appellant Honolulu, HI 96813 COMMUNITY BASED EDUATION SUPPORT SERVICES Attorney for Applicant-Appellant CONNECTIONS NEW CENTUREY CHARTER SCHOOL Margaret Masunaga, Esq. Amy Self, Esq. Deputy Corporation Counsel Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway 101 Aupuni Street, Suite 325 Kailua-Kona, HI 96740 Hilo, HI 96720 Laureen Martin, Esq. Attorney for Appellee Deputy Corporation Counsel DEPARTMENT OF PLANNING, 101 Aupuni Street, Suite 325 COUNTY OF HAWAII Hilo, HI 96720 Attorney for Appellees WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; and SANDRA SONG Michael Matsukawa, Esq. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, 111 96740 Attorney for Appellee JEFFREY GOMES ALAN M. OKAMOTO 2 FILED CIRCUIT EOupT Or NAKAMOTO, OKAMOTO &YAMAMOTO THE THIRD CIRCUIT ATTORNEYS AT LAW STATE OF HAWAII A LAW CORPORATION 1014 AUG 14 PH '; 52 ALAN M. OKAMOTO #1826 187 Kapiolani Street CLERK S. liJnrtI;AKA Hilo, Hawaii 96720 Telephone: (808) 961-0641 Attorney for APPELLEES SIDNEY FUKE and TERENCE T. YOSHIOKA IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, APPELLEES TERENCE T. YOSHIOKA AND SIDNEY FUKE'S MEMORANDUM vs. IN RESPONSE TO APPELLANT COMMUNITY BASED EDUCATION WINDWARD PLANNING SUPPORT SERVICES' MEMORANDUM COMMISSION, COUNTY OF HAWAII; IN OPPOSITION TO APPELLEES SIDNEY DEPARTMENT OF PLANNING, FUKE AND TERRANCE T. YOSHIOKA COUNTY OF HAWAII, AND JEFFREY GOMES' MOTION FOR SUMMARY JUDGMENT FILED ON Appellees, AUGUST 11, 2014; CERTIFICATE OF SERVICE vs. SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, HEARING: Intervenor; SIDNEY FUKE, Intervenor's Date: August 19, 2014 Representative; TERENCE T. YOSHIOKA, Time: 8:30 a.m. Intervenor's Representative, Judge: Honorable Ronald Ibarra Intervenor-Appellees. No Trial Date Set APPELLEES TERENCE T. YOSHIOKA AND SIDNEY FUKE'S MEMORANDUM IN RESPONSE TO APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' MEMORANDUM IN OPPOSITION TO APPELLEES SIDNEY FUKE AND TERRANCE T. YOSHIOKA AND JEFFREY GOMES' MOTION FOR SUMMARY JUDGMENT FILED ON AUGUST 11,2014 1 OA Comes now Appellees TERENCE T. YOSHIOKA and SIDNEY FUKE (hereafter "Appellee YOSHIOKA" and"Appellee FUKE"or collectively"Appellees YOSHIOKA and FUKE"), by and through their attorneys, Nakamoto, Okamoto & Yamamoto, hereby submit this Memorandum in Response to the Appellant Community Based Education Support Services' Memorandum in Opposition to Appellees Sidney Fuke and Terrance T. Yoshioka and Jeffrey Gomes' Motion for Summary Judgment. I. APPELLEES YOSHIOKA AND FUKE ARE NOT INDISPENSABLE PARTIES TO THIS APPEAL Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES' (hereafter"Appellant CBESS") main argument is that Appellees YOSHIOKA and FUKE are Indispensable Parties to its Chapter 91 appeal. The argument appears to be that this appeal should be used as a means to preclude the Appellees YOSHIOKA and FUKE from inconveniencing the Appellants at later proceedings before the WINDWARD PLANNING COMMISSION if they are successful in this appeal. Appellant CBESS' Memorandum in Opposition, pages S, 10 and 11. The fallacy in Appellant CBESS' position is that this appeal is an appeal of the WINDWARD PLANNING COMMISSION's decision on the Appellants' Special Permit application. The parties who are needed for resolution of this appeal are the WINDWARD PLANNING COMMISSION and the parties to the contested case proceedings, all of whom are parties in this appeal. No other persons are needed to resolve the appeal. If Appellants are successful in this appeal, they will be able to obtain a decision from this Court reversing or amending the decision of the WINDWARD PLANNING COMMISSION or to have further proceedings by the WINDWARD 2 PLANNING COMMISSION consistent with the Court's decision. Section 91-14(g), HRS. The Court's ability to do so will not be impaired by the absence of these Appellees YOSHIOKA and FUKE or Appellee SANDRA SONG. The Court can provide complete relief without them. They are accordingly not indispensable parties under Rule 19(a)(1), Hawaii Rules of Civil Procedure. These Appellees YOSHIOKA and FUKE are also not indispensable parties under Rule 19(a)(2), Hawaii Rules of Civil Procedure. Neither Appellee YOSHIOKA nor Appellee FUKE claim an interest to be asserted in this appeal. They do not seek to change the WINDWARD PLANNING COMMISSION's decision. As far as subjecting anyone to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations, this appeal is about the decision of the WINDWARD PLANNING COMMISSION to deny Appellants special permit application. The Court will make a determination as to the merits of the appeal which will decide whether the denial will stand, be modified or be reversed. The absence of Appellee YOSHIOKA and FUKE from this appeal will not affect that result. If the Court remands the proceedings, there will be further proceedings. That may involve additional public testimony and could even involve a contested case. However, Section 94-14(g), HRS does not require that the Court speculate in this appeal on what may occur in later proceedings after the Court makes its ruling on this appeal. It does not allow the Court to require that the WINDWARD PLANNING COMMISSION violate its own rules on the ability of the public to submit public testimony in future proceedings or impair the rights of persons to participate in those future proceedings. 3 Appellant CBESS' efforts are to prevent anyone from providing input to the WINDWARD PLANNING COMMISSION that is not to Appellant's liking. That is an improper use of the appeal rights granted in Chapter 91, HRS. Those rights were provided to foster greater openness in the decision making processes of Hawaii agencies, and not to suppress community input which should be considered before agencies take actions that affect the community. II. ACCUSATIONS OF MISCONDUCT ARE UNSUPPORTED BY ANY EVIDENCE AND ARE IRRELEVANT TO WHETHER APPELLEES YOSHIOKDA AND FUKE ARE PROPERLY MADE PARTIES IN THIS APPEAL Appellant CBESS makes inflammatory accusations of"conspiring with" and improper"ghostwriting" with no factual basis whatsoever. Appellant CBESS's Memorandum in Opposition quotes the testimony of Appellee YOSHIOKA to the hearings officer regarding consultation with his attorney, Alan M. Okamoto. Appellant CBESS' Memorandum in Opposition, page 13. Appellee YOSHIOKA testified that Mr. Okamoto went to Appellee's YOSHIOKA's house and went over questions that Mr. YOSHIOKA prepared. He also testified that Mr. Okamoto did not prepare the questions. Mr. Okamoto did review documents before the Planning Commission, including the special permit application and the Environmental Assessment. There is nothing suggesting that Mr. Okamoto drafted anything. These fabricated accusations are a patent attempt to distract attention from the fact that Appellees YOSHIOKA and FUKE do not belong in this appeal. Even if behavior of this type occurred, it has no bearing on an appeal under Chapter 91, HRS. There is no connection between the alleged improper behavior and the resulting decision of the WINDWARD PLANNING COMMISSION on the Special Permit application. 4 Appellant CBESS cites Appellee YOSHIOKA's testimony in the contested case when he was called as a witness by that Appellant. Appellant CBESS refers to Appellee YOSHIOKA's drafting and working with Appellee FUKE to prepare documents which were submitted in the special permit process. Appellant CBESS' Memorandum in Opposition, Exhibit 3 pages 13-17. Attorney Ted H. S. Hong raised the issue of unauthorized practice of law or as he phrased it "ghostwriting". Appellant CBESS' Memorandum in Opposition, Exhibit 3 page 16. In response, Appellee YOSHIOKA indicated: A. I wasn't doing it as an attorney, but I was doing it under the supervision of a licensed attorney. Q. Okay. Who is the licensed attorney? A. Alan Okamoto Q. So you were drafting things and then sending it to Mr. Okamoto? A. Yeah Q. And he would come back -- A. He would approve the form and appropriateness of the questions that I drafted for Mr. Gomes. And as I said, if you want me to explain, I'll explain the entire situation. I had consulted with the Hawaii State Bar Association to determine to what extent I could involve myself in these proceedings, because I have an inactive license. So I labored under the assumption, wrongly, I should add for a couple of years, that a restricted or inactive license only precludes me from representing people in contested cases. Okay. And then I found out that I cannot represent them, whatever the type of case it might be, whether it's a court case, or administrative body, et cetera. And I cannot issue advice to them. But I can do so if it's under the supervision of a licensed attorney. And so what I did was, prepare the questions, had Mr. Okamoto review them, determine the appropriateness. He was familiar with the background of the case, and then he gave approval to it, and then I presented it to Mr. Gomes. 5 Appellant CBESS' Memorandum in Opposition, Exhibit 3, pages 17-18. It is apparent from this testimony that what Mr. Yoshioka did was to consult with a licensed attorney, receive legal advice and then took action on that advice. There is nothing to suggest that either Appellee YOSHIOKA or Appellee FUKE engaged in the unauthorized practice of law. Appellee FUKE disclosed his involvement in assisting Appellee Gomes to understand the contested case procedure based on Appellee FUKE's prior experience with such proceedings. Appellant CBESS' Memorandum in Opposition, Exhibit 3, Page 53-54. There is nothing in the testimony to suggest that either Appellees YOSHIOKA and FUKE did anything improper, much less engaged in any conspiracy. Appellant has not met its burden to show that there is any genuine issue for trial as required by Rule 56(e), Hawaii Rules of Civil Procedure. Appellees YOSHIOKA and FUKE are accordingly entitled to summary judgment as requested in their Motion for Summary Judgment. DATED: Hilo, Hawaii, August 14, 2014. ALAN M. OKAMOTO Attorney for Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA 6 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, vs. SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE T. YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. CERTIFICATE OF SERVICE I hereby certify that the foregoing Appellees Terence T. Yoshioka and Sidney Fuke's Memorandum in Response to Appellant Community Based Education Support Services'Memorandum in Opposition to Appellees Sidney Fuke and Terrance T. Yoshioka and Jeffrey Gomes'Motion for Summary Judgment filed on August 11, 2014 was served on the following by depositing the same with the U.S. Postal Service, postage prepaid, on August 14, 2014: 1 Ted H.S. Hong, Esq. David M. Louie, Esq. P.O. Box 4217 Carter K. Siu, Esq. Hilo, HI 96720 Deputy Attorney General 235 S. Beretania Street, Room 304 Attorney for Applicant-Appellant Honolulu, HI 96813 COMMUNITY BASED EDUATION SUPPORT SERVICES Attorney for Applicant-Appellant CONNECTIONS NEW CENTUREY CHARTER SCHOOL Margaret Masunaga, Esq. Amy Self, Esq. Deputy Corporation Counsel Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway 101 Aupuni Street, Suite 325 Kailua-Kona, HI 96740 Hilo, HI 96720 Laureen Martin, Esq. Attorney for Appellee Deputy Corporation Counsel DEPARTMENT OF PLANNING, 101 Aupuni Street, Suite 325 COUNTY OF HAWAII Hilo, HI 96720 Attorney for Appellees WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; and SANDRA SONG Michael Matsukawa, Esq. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, HI 96740 Attorney for Appellee JEFFREY GOMES ALAN M. OKAMOTO 2 y I I 1 ltir 4 � CIRCUIT COURT OF MOLLY A. STEBBINS 8639 THE TH1R0 CIRCUIT Corporation Counsel STATE OF HAWAII 2014 AUG 14 MM 2: 27 AMY G. SELF 7628 JOSEPH K. KAMELAMELA 2493 Deputies Corporation Counsel Office of the Corporation Counsel CLERK S, i�ur.�.i�,�lEA 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Tel. No. (808) 961-8251 Fax No. (808) 961-8622 Email: asclf(,�i;co.hawaii.hi.us j kamcla,(t,eo.hawaii.hi.us Attorneys for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAPI COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES, Applicant-Appellant, APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S STATEMENT OF vs. NO POSITION AS TO APPELLEE WINDWARD PLANNING COMMISSION. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI FS MOTION TO COUNTY OF HAWAII; DEPARTMENT OF QUASH OR CORRECT THE ORDER FOR PLANNING, COUNTY OF HAWAII, CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL AS TO TAPE Appellees, RECORDINGS AND TRANSCRIPTS OF ALL EXECUTIVE SESSION HEARINGS and AND MEFTINGS DATED JUNE 9, 2014, FILED JULY 11, 2014: CERTIFICATE OF SANDRA SONG, in her capacity as Hearing SERVICE Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's HEARING: Representative, Date: September 26, 2014 Time: 8:00 a.m. Intervenor-Appellees. Judge: Honorable Ronald Ibarra No Trial Date Set APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S STATEMENT OF NO POSITION AS TO APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I'S MOTION TO QUASH OR CORRECT THE ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL AS TO TAPE RECORDINGS AND TRANSCRIPTS OF ALL EXECUTIVE SESSION HEARINGS AND MEETINGS DATED JUNE 9, 2014, FILED JULY 11, 2014 Appellee Department of Planning, County of Hawaii, by and through its undersigned counsel, hereby states that it takes no position as to Appellee Windward Planning Commission, County of'Hawai`i's Motion to Quash or Correct the Order for Certification and Transmission of Record on Appeal as to Tape Recordings and Transcripts g1'all Executive Session Hearings and Meetings dated June 9, 2014, filed July 11, 2014. Dated; Hilo, Hawaii, August 14, 2014. DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellee g Y AMY SELF Depuvy Corporation Co sel Its Attorney 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAI`I COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES Applicant-Appellant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; STDNFY NUKE, Intervenor's Representative; TF]WNCE YOSHIOKA. Intervenor's Representative, Intervenor-Appellees. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 14, 2014, a copy of the foregoing document was served upon the following in the manner indicated below: Hand Delivery Mail Email (X) TED H.S. HONG, ESQ. Hilo Lagoon Centre 101 Aupuni Street, PH 1002A Hilo, Hawaii 96720 Email: ted Lckedhonglaw.corn Attorney for COMMUNITY BASED EDUCATION SUPPORT SERVICES Hand Delivery Mail Email CARTER K. SIU, ESQ. {X) Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MARGARET K. MASUNAGA {X) Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and SANDRA SONG, in her capacity as Hearing Officer MICHAEL J. MATSUKAWA, ESQ. (X) Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES ALAN M. OKAMOTO, ESQ. {X) Nakamoto, Okamoto & Yamamoto 187 Kapi`olani Street Hilo, Hawaii 96720 Attorney for Intervenors-Appellees SIDNEY FUKE AND TERENCE YOSHIOKA Dated: Hilo, Hawaii, August 14, 2014. r� AMY q. SELF Deputy Corporation Counsel County of Hawaii 2 FILt0 R CURT OF jTE 1R VAC County of Hawaii 0 HAR11 Windward Planning Commission 101 Pauahi Street, Suite 3 �� Hilo, Hawaii 96720-4224 Telephone: (808) 961-8288 Facsimile: (808) 961-8742 �.A, Appellee IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, INDEX TO RECORD ON APPEAL; vs. WINDWARD PLANNING COMMISSION SECRETARY'S CERTIFICATE; WINDWARD PLANNING COMMISSION, CERTIFICATE OF SERVICE COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. INDEX TO RECORD ON APPEAL G�� CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AND COMMUNITY BASED EDUCATION SUPPORT SERVICES SPP 12-000138 Tax Map Key: (3) 2-5-006:141 Pages FILE 1 OF 8 1. PC Application Intake Form 1 2. 7/25/12 Letter from Ted Hong to Planning Department submitting Special Permit Application 2-327 3. 7/26/12 Email from Sue Lee Loy agreeing to time extension for agency reviews 328 4. 7/31/12 Planning Director acknowledges receipt of Application 329-331 5. 7/31/12 Planning Director's Memo to Agencies for comments 332 6. 8/2/12 Department of Environmental Management's comments 333 7. 8/8/12 Letter from Ted Hong to Planning Department regarding notice to surrounding property owners 334-349 8. 8/8/12 Fire Department's comments 350-358 9. 8/9/12 Department of Health's comments 359-362 10. 8/13/12 Police Department's comments 363 11. 8/15/12 Letter from Ted Hong to Planning Department regarding sign posting; Exhibits 1-6 364-373 12. 8/28/12 State DLNR's comments with attachments from Divisions of Forestry and Wildlife and Engineering(rec'd 8/29/12) 374-379 13. 8/28/12 Department of Public Works' comments 380 14. 8/28/12 State DLNR's comments with attachments from Divisions of Forestry and Wildlife and Engineering (rec'd 9/19/12) 381-386 15, 8/29/12 Department of Water Supply's comments 387-388 2 16. 9/10/12 Copy of Ted Hong's letter to Department of Environmental Management 389 17. 9/10/12 Copy of Ted Hong's letter to Fire Department 390 18. 9/10/12 Copy of Ted Hong's letter to Department of Environmental Management 391 19. 9/10/12 Copy of Ted Hong's letter to Department of Health 392 20, 9/18/12 Copy of DPW-Traffic Division's memo to Kelly Gomes, DPW-Engineering Division 393 21. 9/21/12 Copy of Ted Hong's letter to Department of Water Supply 394 22. 9/20/12 Copy of Ted Hong's letter to Police Department 395 23. 9/28/12 Copy of Ted Hong's letter to DLNR, Forestry And Engineering Division 396-397 24. 9/28/12 Copy of Ted Hong's letter to DLNR, Engineering Re: water demands and calculations 398 25. 10/2/12 DLNR's letter regarding intent to lease State Land 399 26. 10/3/12 Copy of letter by Celia Shen/Wil Chee Engineering to DLNR Historic Preservation Division 400 27, 1013112 Office of Planning's comments 401-404 28. 1019112 Email from Allen Novak 405 29. 10/9/12 Letter from Tara M. Riley 406 30. 10/11/12 Email from HI RR/Janice and Harold Caravalho 407 31. 10/12/12 Email from Stephanie Lee(Ivan Mochida) 408 32, 10/12/12 Email from Ming Peng, M.D. 409 33. 10/12/12 Email from Ruth Perreira 410 34, 10/12/12 Email from Ruth Perreira correcting street in earlier email 411 3 35. 10/12/12 Planning Director's letter to Ted Hong notifying of Commission's 11/9/12 meeting 412-416 FILE 2 OF 8 36. 10/15/12 Letter from Ted Hong to Planning Department re: additional information for mauka parcel 417-418 37. Planning Department's Background Report 419-772 38. Planning Department's Recommendation Report 773-787 39. 10/15/12 Email from Janey Ebesu 788-790 40. 10/16/12 Email from Patsy Iwasaki 791-793 41. 10/18/12 Ted Hong's letter to Police Department regarding vandalism, hate crime 794-799 42. 10/19/12 Ted Hong's letter to Planning Director filing first notice to surrounding property owners re: 11/9/12 hearing 800-818 43. 10/21/12 Email from Shawn Paiva 819-820 44. 10/21/12 Email from Jan Yokoyama 821-822 45. 10/23/12 Hawaii Tribune-Herald Article 823-824 46. 10/23/12 Press Release by Ted Hong 825-826 47. 10/23/12 Copy of Ted Hong's letter to Jan Yokoyama 827 48. 10/23/12 Copy of Ted Hong's letter to Paul "Scotty" Paiva 828 49. 10/24/12 Email from Henry Lee Loy, M.D. with copy 829-830 50. 10/24/12 Email from Mark Chun 831 51. 10/24/12 Email from Brice Takata 832 52. 10/24/12 Email from Nelson Nishimoto 833 53, 10/25/12 Email from Elise Yamamoto 834 54, 10/25/12 Email from Steven Sakata 835 4 55. 10/25/12 Letter from Elsie Miyazono 836 56. 10/25/12 Copy of Ted Hong's letter to Dr. Ming Peng 837 57. 10/25/12 Copy of Ted Hong's letter to Patsy Y. Iwasaki 838 58. 10/25/12 Copy of Ted Hong's letter to Janice and Harold Caravalho 839 59. 10/25/12 Copy of Ted Hong's letter to Janey Ebesu 840 60, 10/25/12 Steven Sakata's comments and transmittal of Shelly Cravalho-Wagner's testimony 841-842 61. 10/28/12 Letter from Cyril Pahinui 843 62. 10/29/12 Email from Sue Lee Loy re: update of BLNR hearing 844 63. 10/29/12 Copy of Ted Hong's letter to Elise Yamamoto 845 64. 10/29/12 Letter from Sawyer Salfen 846 65. 10/29/12 Two letters from Janice Harvey of Gemini Observatory with copy 847-848 66. 10/29/12 Letter from Ted Hong regarding amended and revised notice to surrounding property owners 849-867 67. 10/29/12 Copy of Ted Hong's letter to Dr. Brice Takata 868 68. 10/29/12 Copy of Ted Hong's letter to Mark Chun and Marianne Takamiya 869 69. 10/29/12 Copy of Ted Hong's letter to Nelson and Patti Nishimoto 870 70. 10/29/12 Copy of Ted Hong's letter to Tara Riley 871 71. 10/29/12 Copy of Ted Hong's letter to Steven Y. Sakata 872 72. Undated Letter from Carol Trousdale 873 73. 10/30/12 Letter from Maleah Wenzel 874 74. 10/30/12 Letter from Gary Murai 875-876 75. 10/30/12 Letter from Asia Helfrich 877 5 76. 10/30/12 Letter from Maui Arcuri 878 77. 10/30/12 Letter from Jessica Ogawa (submitted at 11/9/12 hearing) 879-880 78. Planning Department's Revised Recommendation 881-896 79. 10/31/12 Letter from Thien Huynh 897 80. 10/31/12 Letter from Clement Pacheco 898 81. 11/1/12 Letter from Darius Kalvaitis 899 82. 11/1/12 Letter from Maya Soetoro Ng 900 83. 11/1/12 Letter from Zakiya Smith 901 84. 11/1/12 Letter from Kahu Kris Kua 902 85. 11/1/12 Letter from Zakiya Smith 903 86, 11/1/12 Letter from Rebecca Romeo 904 87. 11/1/12 Letter from Brian Herr 905 88. 11/1/12 Letter from Thomas Wallace 906 89. 11/1/12 Letter from Vanessa Flores 907 90. 11/1/12 Letter from Shone K. Mandaloniz 908 91. 11/1/12 Letter from Megan Mulvaney 909 92. 11/1/12 Letter from Alexis Pagan 910 93. 11/1/12 Letter from Elizabeth B. Jenkins (Wiragocha Foundation) 911 FILE 3 OF 8 94. 11/2/12 Letter from Ted Hong re: activity report for Connections property 912-1071 95. 11/2/12 Letter from Anne Raferpity, with copy 1072-1073 96, 11/2/12 Letter from Drake Harper, with copy 1074-1075 97. 11/2/12 Letter from Thelma Jacob, with copy 1076-1077 6 98. 11/2/12 Letter from Lauryn Amormino, with copy 1078-1081 99. 11/2/12 Packet of letters received from 4ch Graders (Michale, Fa, Talen, Ben, Kiana, Daline, Jette, Jizele, Elijah, Logan, Mekhi, Katy, Korigan, Malati, Trystan, Talon, Dylan, Addiz, Alicia, Malcom, and Jenna) 1082-1102 100. 11/2/12 Letter from Sarah Stevens 1103 101. 11/2/12 Letter from Loretta & Jason Okamoto 1104 102. 11/2/12 Letter from Donald B. Young, Dean at UH Manoa 1105 103. 11/2/12 Letter from Joan Derbyshire 1106 104. 11/2/12 Letter from Thomas Mooney 1107 105. 11/2/12 Letter from Trent Saragosa 1 108 106. 11/2/12 Letter from Falaniko Kaleo Ramos 1109 107. 11/2/12 Letter from Leilehua Pakele 1110 108, 11/2/12 Letter from MacKenzie Barona-Kahoonei 1111 109. 11/2/12 Letter from Marcin Enoch 1112 110, 11/2/12 Letter from Naomi Burt 1113 111. 11/2/12 Letter from Kyrin Young 1114 112. 11/2/12 Letter from Arcturus Kainalu Yrondi 1115 113. 11/2/12 Letter from Alec Owen 1116 114. 11/2/12 Letter from Sam F. Jenkins 1117 115. 11/2/12 Letter from lsobelle Tempany 1118 116. 11/2/12 Letter from Carmel Wolff 1119 117, 11/2/12 Letter from Sena Short 1120 118. 11/2/12 Letter from Naomi Lemieux 1121 7 119. 11/2/12 Letter from Noah Siderhurst 1122 120, 11/2/12 Letter from Dakota Kalvaitis 1123 121. 11/2/12 Letter from Talia Rose Liepold 1124 122. 11/2/12 Letter from Skyler De Mello 1125 123. 11/2/12 Letter from Aukoa Marsh 1126 124. 11/2/12 Letter from Joshua Evans 1127 125, 11/2/12 Letter from Hunter Kekoa Cortez 1128 126. 11/2/12 Letter from Mica Sarono 1129 127. 11/2/12 Letter from Kylee Ramirez 1130 128. 11/2/12 Letter from Jadelyn Kaleohano 1131 129. 11/2/12 Letter from Kira Pavao 1132 130, 11/2/12 Letter from Gabriel Quander 1133 131. 11/3/12 Letter from Laic Suganuma 1134-1135 132, 11/4/12 Letter from Judith R. Moniz 1136 133. 11/4/12 Letter from P. Cabral 1137 134. 11/4/12 Letter from Pamela Moniz 1138 135. 11/5/12 Letter from Eric Boyd 1139 136. 11/5/12 Letter from Carol S. Gray 1140 137. 11/5/12 Letter from Ethan Goodman 1141 138. 11/5/12 Letter from Diana Charvea 1142-1143 139. 11/5/12 Letter from Steven Sayre 1144 140, 11/5/12 Letter from John Thatcher 1145-1147 141. 11/6/12 Letter from Christina V. Taylor 1148 8 142. 11/7/12 Letter from Jesse Watanabe, with copy 1149-1152 143. 11/7/12 Letter from Drake Wilhelm, with copy 1153-1154 144. 11/7/12 Letter from Isaiah Alles-Nekoba, with copy 1155-1156 145. 11/7/12 Letter from Sequoia Johnson, with copy 1157-1158 146. 11/7/12 Letter from Jamelyn Ilelupeyango, with copy 1159-1160 147. 11/7/12 Letter from Paisley Veilleux, with copy 1161-1162 148. 11/7/12 Letter from Jehinu Ramirez, with copy 1163-1164 149. 11/7/12 Letter from Daniel, with copy 1165-1166 150. 11/7/12 Letter from Drutahi Hancock, with copy 1167-1168 151. 11/7/12 Letter from Ethyn Quirantes, with copy 1169-1170 152. 11/7/12 Letter from Mahealani Joann Sundberg Villiarimo, with copy 1171-1172 153. 11/7/12 Letter from Lanakila Hoelaa Fontanilla, with copy 1173-1174 154. 11/7/12 Letter from Alicia Yamasaki, with copy 1175-1176 155. 11/7/12 Letter from Tanner Ikeda, with copy 1177-1178 156. 11/7/12 Letter from Rikkilynn Surls-Ramirez, with copy 1179-1180 157. 11/7/12 Letter from Derek Kurisu 1181 158. 11/7/12 Letter from Tom Raffipiy 1182 159. 11/7/12 Letter from Kate Wines 1183 160. 11/7/12 Letter from Kathleen Booth 1184 161. 11/7/12 Letter from Emily Lindstrum 1185 162. 11/7/12 Letter from Noelle Buffett 1186-1187 163. 11/7/12 Letter from Taylor Armormino 1188 164. 11/7/12 Letter from Mesepa Short 1189 9 165. 11/7/12 Letter from Heather McDaniel 1190 166. 11/7/12 Letter from Taylor Schabell 1191 167. 11/7/12 Letter from Seneca Helfrich 1192 168. 11/7/12 Letter from Kaipo Ramos 1193 169. 11/7/12 Letter from Zoe Tong 1194 170. 11/7/12 Letter from Merle Yao 1195 171. 11/7/12 Letter from Gabriel Frazier-Jenkins 1196 172. 11/7/12 Letter from Farrah Jensen 1197 173. 11/7/12 Letter report from Pacific Basin-Hawaii Island 1198-1200 174. 11/8/12 Letter from Council Member Fred Blas 1201 175. 11/8/12 Letter from Kathleen Berg, UH Manoa 1202 176. 11/8/12 Email from Pauline Ke`ala Lee Loy 1203 177. 11/8/12 Letter from Tammy Ramirez 1204-1206 178. 11/8/12 Letter from Dr. Mitchell Anderson, UH Manoa 1207-1209 179. 11/8/12 Letter from Annika Yamasaki, with copy 1210-1211 180. 11/8/12 Letter from Berlinda Sipinga 1212-1213 181. 11/8/12 Letter from Shandon Pestano 1214 182. 11/8/12 Letter from Maia 1215 183, 11/8/12 Letter from Evalani Cosgrove 1216 184. 11/8/12 Letter from Michael Scott 1217 185. 11/8/12 Letter from Sierra Longley Kaaumoana 1218 186. 11/8/12 Letter from Nadine Ching 1219 187. 11/8/12 Letter from Courtney Villanueva 1220 10 188. 11/8/12 Letter from Ipoleiokalani Boyd 1221 189. 11/8/12 Letter from Kimberly Meyers 1222 190, 11/8/12 Letter from Damien DeMello, Jr. 1223 191. 11/8/12 Dr. Carol Zimmerman and David Rudacille 1224 192. 11/8/12 Letter from Mario Patino 1225-1226 FILE 4 OF 8 193. Planning Department's Revised Conditions 1227-1231 Items 194 to 263 were received at the November 9. 20-72 hearing from: 194. 11/2/13 Rowan A. Kelly 1232 195. 11/2/12 Maelona 1233 196. 11/2/12 Alora 1234 197. 11/2/12 Ben Skope 1235 198. 11/2/12 Riku 1236 199. 11/2/12 Kaishalei 1237 200. 11/2/12 Bridgette 1238 201. 11/2/12 Kainalu 1239 202. 11/2/12 Danny 1240 203. 11/2/12 Kai 1241 204. 11/2/12 Ron 1242 205. 11/2/12 Joshua 1243 206. 11/1/12 Gail Ogawa 1244 207. 11/7/12 Rachel Taylor 1245-1246 208. 11/2/12 Mamo Esera 1247 11 209. 11/2/12 Gabrielle Loui 1248 210, 11/2/12 Pamela Thatcher 1249 211. 11/7/12 Sarah Ann Stevenson Radl 1250-1252 212. 11/7/12 Newton Miller 1253 213. 11/8/12 Linda Venenciano, Ph.D./UH Manoa 1254 214. 11/8/12 Dakota Helfrich 1255 215. 11/8/12 Larry Kimura(with biography) 1256-1258 216. 11/8/12 Jonathan Shute, Ph.D. 1259 217. Bridger Jensen 1260 218. 11/8/12 Candace M. Lagasca 1261-1262 219. 11/8/12 Dr. Jason Turner 1263-1266 220. 11/8/12 Loretta A. Crivello 1267 221. 11/8/12 Pauline Ke'ala Kealoha Lee Loy 1268-1271 222. 11/9/12 Lauren Keating Wear 1272-1273 223. Pauline Ke'ala Kealoha Lee Loy 1274-1276 224. Pictures taken by Jeff Darrow of over-sized submittals from 11/9/12 hearing 1277-1289 225. Brenda Watanabe 1289 226. Brenda Camacho, M.D. 1290 227. Dr. Neil G. Scott of UH Manoa 1291-1292 228. Parents Teachers Students `Ohana submitting petition in support 1293-1314 229. Terence Yoshioka 1315-1328 230. Me] Yokota 1329-1339 12 231. Henry Lee Loy, M.D. 1340-1345 232, Ming Peng, M.D. 1346-1347 233. Nadezna Lyn `Nalyn' Ang, M.D. 1348-1350 234. Kyra 1351 235. Sidney Fuke 1352-1354 236. Donald Ikeda 1355-1357 237. Marianne Takamiya 1358-1360 238 11/9/12 Chris Brilhante 1361-1362 239. 11/9/12 Mark Chun and Marianne Takamiya 1363-1364 240. 11/9/12 Paul "Scotty"Paiva 1365 241. Layne Novak (and signed petition in opposition) 1366-1413 242, 1019112 Wayne Kanernoto 1414 243. Ivan Mochida 1415 244. Aileen Fuke 1416-1420 245. Shawn Paiva 1421 246. Unknown 1422-1424 247. 11/9/12 Robert Wyman 1425 248, Joel Truesdell 1426-1427 249. Karyn N. and Glenn K.Tada 1428-1429 250. Patti Nishimoto 1430 251. Les Sakamoto 1431-1432 252. 11/9/12 Oarlene Wingate 1433 253. 11/9/12 Marylou Meek 1434 13 254. Jennifer Hopkins 1435 255. Joshua Whisler 1436 256. Nainoa Campbell 1437 257. Jeff Gomes 1438-1439 258. Ryan Kaneko 1440 259. June Sakamoto 1441-1442 260. Wendy Gomes 1443 261. 11/9/12 Eden C. Patino 1444-1445 262. 10/16/12 Patsy Y. Iwasaki 1446-1447 263. Jeff Gomes' materials 1448-1544 264. 11/9/12 Voting Sheet of Withdrawn Motion to Approve with Amendment 1545 265. 11/9/12 Voting Sheet to Continue for water calculations and meeting with William Brilhante on extension to Puainako Street 1546 266 11/9/12 Hearing Transcript 1547-1641 267. 11/13/12 Letter to Ted Hong informing of action of 11/9/12 meeting and informing him of next 12/6/12 meeting 1642-1646 268. 11/13/12 Letter to Surrounding Property Owners informing of 11/9/12 meeting 1647-1667 269. 11/13/12 Returned letter addressed to Sandra Sato due to no mail receptacle 1668-1673 270. 11/16/12 Letter to Ted Hong supplementing 11/13/12 letter 1674 271. 11/16/12 Letter from Ted Hong requesting continuance of 12/6/12 hearing 1675-1676 272. 11/21/12 Transmittal from Wil Chee - Planning & Environmental submitting preliminary water consumption estimates 1677-1684 14 273. 11/26/12 Email from Councilman Fred Blas 1685-1686 274. 11/26/12 Returned envelope from Doreen and Tara Leao 1687-1688 275. 11/26/12 Returned envelope from Henry and Norine Okuhara 1689-1690 276, 11/26/12 Returned envelope from Ezekiel Harvey Lui Trust 1691-1692 277. 11/26/12 Returned envelope from David and Lauri Mattos 1693-1694 278. 11/26/12 Returned envelope from Sandra Sato 1695-1696 279. 11/27/12 Letter from Keola Truly Kaua 1697-1698 280. 11/28/12 Letter from Senator Russell E. Ruderman, with copy 1699-1700 281. 11/29/12 Letter to Ted Hong acknowledging receipt of 11/16/12 (rev'd on 11/26/12) request to continue hearing 1701 FILE 5 OF 8 282. 12/2/12 Letter from Gary Replogle, CSAC, LMHC, with copy 1702-1703 283. 12/4/12 Unknown 1704 284. 12/4/12 Letter from Sam Cooper, with copy 1705-1706 284. 12/4/12 Letter from Alvin Nagasako of HSTA 1707 285. 12/5/12 Letter from Ted Hong requesting postponement of hearing as his office will no longer represent the Applicant and Deputy Attorney General Monica is unable to attend the 12/6/12 meeting 1708-1709 Items 286 to 300 were received at the December 6 2012 hearin 286. 12/5/12 Letter from Caleb Valoaga 1710 287. 12/5/12 Letter from Sarah Hubbell 1711 288 12/5/12 Signed petition in support 1712-1715 289. 12/5/12 Information Outreach meetings report 1716-1792 15 290. 12/6/12 Email from Dr. Carol Zimmerman dated 11/8/12 & 12/6/12 1793-1795 291. 11/29/12 Terence Yoshioka 1796-1798 292. 12/5/12 John Thatcher 1799-1801 293. Ming Peng 1802 294. Melvin Yokota 1803-1804 295. Jeff Gomes 1805-1809 296. Matthew J. Medeiros (regarding caves and species) 1810-1811 297. Wendy Gomes 1812-1813 298. Connections School Board Minutes 1814-1819 299. Henry Lee Loy, M.D. 1820-1822 300. Jeff Games 1823-1826 301. 12/6/12 Voting Sheet to continue to 1/10/13 meeting 1827 302. 12/6/12 Hearing Transcript 1828-1853 303. 12/10/12 Letter to Monica Morris notifying of Commission action to continue hearing to January and informing her of notification to surrounding property owners 1854-1859 304. 12/20/12 Letter to Monica Morns replacing previously sent 12/10/12 Agenda 1860-1864 305. 12/20/12 Letter to Connections acknowledging receipt of filing fee for continued hearing 1865-1867 306. 12/31/12 Letter from Ted Hong re. notice to surrounding property owners of 1/10/13 hearing 1868-1885 Items 307 to 324 were received at the January 10, 2013 hearinz: 307. 1/8/13 Kaumana Community Informational Outreach meeting 1886-1889 308, Status Report of Community Meeting 1890-1891 16 3 09. 1/10/13 Robert Wagner 1892-1893 310. 1/10/13 Lee Botelho 1894-1900 311. M. Bishop 1901 312, Terrance Yoshioka 1902-1919 313. Tom Forbes (submitted by Heather McDaniel) 1920 314. June Sakamoto 1921 315, Ming Peng, M.D. 1922 316, Les Sakamoto 1923-1924 317, Jeff Gomes 1925-1926 318. Henry Lee Loy, M.D. 1927 319. Petition objecting to charter school planned on subject Property 1928-1929 320, Jeff Gomes with attachments 1930-1931 321. 1/10/13 John Thatcher 1932-1933 322. General Lease No. S-6029 1934-1959 323. Power Point by Sidney Fuke 1960-1999 324. 1/10/13 Letter from Monica Morris, Deputy Attorney General urging a favorable recommendation to the State LUC 2000 325. 1/10/13 Voting Sheet on Motion to Deny 2001 326. 1/10/13 Voting Sheet on Executive Session 2002 327, 1/10/13 Hearing Transcript 2003-2056 328. I/24/13 Letter to Parties from Windward Planning Commission on 1/10/13 meeting action 2057 17 FILE 6 OF 8 329. 2/15/13 Letter to Surrounding Property Owners From Planning Department re: 3/7/13 meeting 2058-2065 330. 2/15/13 Letter to Monica Mortis and Ted Hong re: 3/7/13 meeting 2066-2069 331. 2/19/13 Letter from Ted Hong re: suspension of Findings Of Fact, Conclusions of Law, and Decision and Order 2070 332. 2/28/13 Letter to Ted Hong from Commission concurring suspension Of Findings Of Fact, Conclusions of Law, and Decision and Order 2071 333. 3/1/13 Letter from Monica Morris to join in Ted Hong's 2/19/13 letter 2072-2073 334. 3/4/13 JoNelle Fukushima submitting Petition for Standing in a Contested Case Hearing 2074-2077 335. 3/6/13 Letter from Ted Hong, Updated Status Report 3/13 2078-2096 336, 3/7/13 Sidney Fuke's "Enough Already" Powerpoint 2097-2121 337. 3/7/13 Jeffrey K. Gomes submitting Petition for Standing in a contested case hearing 2122-2125 338, 3/7/13 Voting Sheet to go into First Executive Session 2126 339. 3/7/13 Voting Sheet to go into Second Executive Session 2127 340. 3/7/13 Voting Sheet to grant standing to Jeffrey Gomes 2128 341. 3/7/13 Voting Sheet on Motion to hire Hearings Officer 2129 342. 3/7/13 Hearing Transcript 2130-2156 343. 3/13/13 From Ted Hong on notice of activity related to removal of trash and restoration/reforestation plan 2157-2190 344. 3/21/13 Letter to Parties from Windward PIanning Commission regarding 3/7/13 meeting 2191-2192 345. 4/8/13 Letter to Connections re: lost Check No. 8218 2193 346. 4/22/13 Letter to Connections re: lost Check No. 8218 2194 18 347. 5123113 Letter from Ted Hong regarding activity update of removal of trash and restorationlreforestation plan 2195-2202 348. 5130113 Planning Director's letter acknowledging receipt of Ted Hong's 5123113 letter 2203 349. 7/12/13 Letter from Windward Planning Commission to parties Re: Sandra Song retained as hearings officer 2204-2205 Submittals hy Hearin-c O leer Sandra Song iAems 350 to 359): 350. From Hearing Officer Sandra Song Pleadings 2206-2595 351. From Hearing Officer Sandra Song Transcript Vol. 1, October 21, 2013 2596-2850 352. From Hearing Officer Sandra Song Transcript Vol. II, October 22, 2013 2851-3001 353. From Hearing Officer Sandra Song Transcript Vol. 111, November 12, 2013 3002-3042 354. From Hearing Officer Sandra Song Transcript Vol. IV, January 8, 2014 3043-3185 355. From Hearing Officer Sandra Song Transcript Vol. V, January 22, 2014 3186-3196 356. From Hearing Officer Sandra Song Public Testimony 3196a-3329 357. From Hearing Officer Sandra Song All Parties Exhibits 3330-3474 358. From Hearing Officer Sandra Song Emails 3475-3693 359. From Hearing Officer Sandra Song Misc. Correspondence 3694-3730 FILE 7 OF 8 360. 8122113 Letter from Planning Department to Jerry Watanabe/DAGS 3731 confirming reservation of State Building Conference Room for October 21 & 22, 2013 361, 9/4/13 Notice of No Objection to Planning Commission Record; 3732-3735 Certificate of Service (CBESS) wltransmittal 19 362. 9/5/13 Letter from Planning Department to William Brilhante 3736 transmitting disk of revised record file 363. 9/5/13 Letter from Planning Department to Jeffrey Gomes 3737 transmitting disk of revised record file 364. 9/5/13 Letter from Planning Department to Sandra Song 3738 transmitting disk of revised record file 365. 9/5/13 Letter from Planning Department to Carter Siu 3739 transmitting disk of revised record file 366. 10/4/13 Joint Submission of Applicant's Exhibit & Witness 3740-3783 Lists (Connections & CBESS) w/email transmittal 367. 10/15/13 Joint Submission of First Amended Witness List 3784-3793 (Connections & CBESS) w/transmittal 368. 10/15/13 Revised Exhibit A-20 (Connections & CBESS) 3794-3797 w/transmittal 369. 10/17/13 Joint Pre-Hearing Brief; Certificate of Service 3798-3817 (Connections & CBESS) w/transmittal 370. 10/21/13 Amended Subpoena for Duane Kanuha(CBESS) 3818-3819 Item Nos. 371 to 377 were received at the October 21 & 22, 2013 hearings 371. "A Project Manager's Review of the Final Environmental 3820-3849 Assessment For the Connections Public Charter School Master Plan"by Melvin H. Yokota, P.E. 372. Testimony by Henry Lee Loy, M.D. 3850-3873 373. Testimony by Terence Yoshioka 3874-3875 374. Testimony by Jan Yokoyama 3876 375. Testimony by Lee Botelho 3877-3908 376. Return of Service Re: Melvin Yokota & Terence 3909-3910 Yoshioka 377. Testimony by Pauline Ke`ala Lee Loy 3911 20 378. 11/4/13 (filed)Petition for Standing in a Contested Case Hearing 3912-3919 by Terence Yoshioka w/Supporting Affidavits by Terence Yoshioka&Jeff Gomes 379. 1118/13 Applicant CBESS' Memorandum in Opposition to 3920-3953 Petition for Standing in a Contested Case Hearing Filed on November 4, 2013; Declaration of Ted H. S. Hong; Exhibits 1-3; Certificate of Service 380. 11/8/13 Applicant Connections New Century Public Charter 3954-3959 School's Objection to Terence Yoshioka's Petition for Standing in a Contested Case Hearing; Certificate of Service Item Nos 381 to 389 were received at the November 12, 2013 Hearing 381. Written Final Testimony of Terence Yoshioka 3960-3969 382. Testimony by Melvin Yokota 3970 383. Testimony by June Sakamoto 3971-3979 384. Testimony by Clayton Kua 3980 385. Testimony by Larry Kimura 3981 386. Testimony by Henry K. Lee Loy, M.D. 3982-3992 387. Testimony by Pauline Ke`ala Lee Loy 3993-3996 388. Testimony by Dana G. Kenny 3997-4000 389. Testimony by Larry Gering 4001 FILE 8 OF 8 390. 11/8/13 Errata to Applicants Connections New Century 4002-4007 Public Charter School and CBESS Joint Pre-Hearing Brief; Certificate of Service 391. 12/31/13 Email by Ted Hong to Sandra Song, et al. 4008 392. 12/31/13 Email by Sandra Song to Ted Hong, et al. 4009-4010 21 393. 2/12/14 Applicants Connection New Century Public Charter 4011-4044 School and CBESS Joint Proposed Findings of Fact, Conclusions of Law, and Decision and Recommendation; Certificate of Service 394. 2118114 (fled)Order Adopting Proposed Findings of Fact, Conclusions 4045-4077 Of Law, and Decision and Order Denying Application w/ Certificate of Service(Gomes) 395. 2/12/14 Duane Kanuha, County of Hawai`i's Planning Director's 4078-4083 Statement of Taking No Position as to the Submission of Findings of Fact, Conclusions of Law and Decision and Order; Certificate of Service w/transmittal 396. Certificate of Service(duplicate of#394 above) 4084-4085 397. 3/13/14 Letter from Ted Hong to Planning Director and 4086 Planning Commission re: providing Hearings Officer an extension of time to prepare Findings of Fact, Conclusions of Law & Decision and Order 398. 4/7/14 Letter to Surrounding Property Owners w/copy to 4087 Parties notifying them of 5/1/14 Windward Planning Commission meeting 399. 5/1/14 Public Hearing Notice and list of surrounding 4088-4096 property owners 400. 4/7/14 Hearing Officer's Report w/transmittal 4097-4112 401. Returned mail from Sandra Sato TMK 2-5-027:005 4113-4114 402. 4/17114 Letter to Daryn Arai from Sandra Song transmitting 4115-4116 Record 403. 4/17/14 Request to Access a Government Record (Hong) 4117-4124 to Stephen Ono 404. 4/17/14 Request to Access a Government Record (Hong) 4125-4132 to Raylene Moses 405. 4117/14 Request to Access a Government Record (Hong) 4133-4140 to Wally Ishibashi 406. 4/17/14 Request to Access a Government Record (Hong) 4141-4148 to Ronald Gonzales 22 407. 4/21/14 Applicants Connection New Century Public Charter 4149-4169 School and CBESS Joint Exceptions to Hearing Officer's Report, Finding of Fact, Conclusions of Law, and Recommendation dated April 7, 2014; Certificate of Service 408. 4/21/14 Duane Kanuha, County of Hawaii Planning Director's 4170-4176 Exceptions to Hearings Officer's Report dated April 7, 2014; Certificate of Service w/transmittal 409. 4/21/14 Letter from Ted Hong to Planning Director and Planning 4177-4178 Commission re: request for oral argument 410. 4/28/14 Intervenor Jeffrey K. Gomes' Request to Provide Oral 4179-4183 Arguments; Certificate of Service w/transmittal 411. 4/28/14 Intervenor Jeffrey K. Gomes' Support Brief or Statement; 4184-4214 Of Hearings Officer's Report dated April 7, 2014; Certificate Of Service; duplicate copy of#410 above Item Nos. 412 -423 were received at the May 1, 2014 hearing 412. Powerpoint of Oral Argument by Ted Hong 4215-4223 413. Testimony by Norine Okuhara 4224 414. Testimony by (Michael) Bishop 4225-4226 415. Testimony by Donald Ikeda 4227-4231 416. 5/1/14 Testimony by Elizabeth Truesdell 4232 417. 4/30/14 Testimony by Pauline Ke`ala Lee Loy 4233 418. Testimony by Henry Lee Loy, M.D. 4234-4235 419. 5/1/14 Testimony by Wayne Kanemoto 4236-4237 420. Testimony by Jeff Gomes 4238-4240 421. Testimony by Joy Mcleod 4241 422. Testimony by Kahio Papalimu 4242 423. Powerpoint by Jeff Gomes 4243-4260 23 424. 511/14 Hearing Transcript 5/1114 4261-4288 425. 5/1114 Record of Voting(4) 4289-4292 426. 5/1/14 Letter from Windward Planning Commission to 4293-4296 Ted H. S. Hong w/copy to parties re: action at 5/1/14 meeting 427. Returned mail from Dorene and Tara Leao 4297 TMK: 2-5-040:011 428, 5/19/14 Email by Daryn Arai to Ted Hong, et al. 4298 429. Returned mail (unclaimed) from ,teff Gomes 4299 430. 5/19/14 County of Hawaii Windward Planning Commission's 4300-4315 Findings of Fact, Conclusions of Law and Decision and Order; Certificate of Service 24 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, WINDWARD PLANNING COMMISSION SECRETARY'S VS. CERTIFICATE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appel lees. WINDWARD PLANNING COMMISSION SECRETARY'S CERTIFICATE I, Sarah Y. Hata-Finley, Secretary to the County of Hawaii Windward Planning Commission, do hereby certify that the documents listed in the Index to Record on Appeal to the Circuit Court of the Third Circuit, State of Hawaii, and attached hereto, are true copies of the documents of record in the Planning Commission's file regarding the request by Connections New Century Charter School and Community Based Education Support Services (CBESS) for a Special Permit(SPP No. 12-000138) to develop a K to 12 charter school campus with dorm 1 facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District, Tax Map Key: (3) 2-5-006:141. Dated: Hilo, Hawaii, AUG 2 5 2814 Sarah Y. Hata-Finley Secretary to the Windward Planning Commission 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing document was served upon the following, in the manner indicated below on AUG 2 5 2014 Ted H. S. Hong, Esq. Attorney for Applicant-Appellant P.O. Box 4217 Community Based Education Hilo, HI 96720 Support Services Via U.S. Mail,postage prepaid Carter K. Siu, Esq. Attorney for Applicant Deputy Attorney General Connections New Century Charter State of Hawaii School 235 S. Beretania Street, Rm. 304 Via U.S. Mail,postage prepaid Honolulu, HI 96813 Amy G. Self, Esq. Attorney for Appellees Office of the Corporation Counsel DEPARTMENT OF PLANNING, 101 Aupuni Street, Suite 325 COUNTY OF HAWAII Hilo, HI 96720 Via hand delivery Mr. Sidney Fuke Representative for 1358 Mele Manu Street, Apt. C Intervenor-Appellee Hilo, HI 96720 Via U.S. Mail,postage prepaid Mr. Jeffrey Gomes Intervenor Pro Se Appellee 281 Edita Street Via U.S. Mail,postage prepaid Hilo, H1 96720 The Honorable Sandra P. Song(Ret.) Hearing Officer 10 Kamehameha Avenue Via U.S. Mail,postage prepaid Hilo, HI 96720 The Honorable Terence Yoshioka(Ret.) Representative for 1572 Mele Manu Street Intervenor-Appellee, Appellee Hilo, HI 96720 Via U.S. Mail,postage prepaid DATED: Hilo, Hawaii, AUG 2 5 2014 15" Sarah Y. Hata-Finley Secretary to the Windward Planning Commission }A 2 7 FILED CIRCUIT COURT OF MOLLY A. STEBBINS 8639 THE THIRD CIRCUIT Corporation Counsel STATE OF HAWAII 2014 AUG 28 F ?: 3 LAUREEN L. MARTIN 5927 Assistant Corporation Counsel MARGARET K. MASUNAGA 4568 MELODY PARKER 4406 Deputies Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Tel. No. (808) 961-8251 Fax No. (808) 961-8622 Email: mkmasunara(c7hawaiicounty.€,ov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, and Intervenor-Appellee SANDRA SONG, in her capacity as Hearing Officer IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. I4-1-0223 SUPPORT SERVICES, Applicant-Appellant, NOTICE OF SUBMISSION OF ORDER GRANTING APPELLEE WINDWARD vs. PLANNING COMMISSION, COUNTY OF HAWAII, AND INTERVENOR-APPELLEE WINDWARD PLANNING COMMISSION, SANDRA SONG'S MOTION'TO DISMISS COUNTY OF HAWAII; DEPARTMENT FILED ON JULY 7, 2014; EXHIBIT"A", OF PLANNING, COUNTY OF HAWAII, CERTIFICATE OF SERVICE Appellees, And SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. NOTICE OF SUBMISSION OF ORDER GRANTING APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, AND INTERVENOR-APPELLEE SANDRA SONG'S MOTION TO DISMISS FILED ON JULY 7, 2014 TO: TED H.S. HONG, Esq. Hilo Lagoon Centre 101 Aupuni Street, PH 1002A Hilo, Hawaii 96720 CARTER K. SIU, ESQ. Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 AMY G. SELF Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 ALAN M. OKAMOTO, ESQ. Nakamoto, Okamoto & Yamamoto 187 Kapi`olani Street Hilo, Hawaii 96720 MICHAEL J. MATSUKAWA, ESQ. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Pursuant to the provisions of Rule 23 of the Rules of the Circuit Courts of the State of Hawai'i, YOU ARE HEREBY NOTIFIED that the undersigned has prepared and submitted to the Court an ORDER GRANTING APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, AND INTERVENOR-APPELLEE SANDRA SONG'S MOTION TO DISMISS FILED ON JULY 7, 2014, a copy of which is attached hereto as Exhibit"A." Pursuant to the provisions of said Rule, you have five (5) days from your receipt of this Notice to serve upon all parties and to mail or deliver to the Court a statement of your 2 objections thereto and the reasons therefore, or a draft of said order which you propose to substitute for that which is attached. Dated: Hilo, Hawaii, August 28, 2014. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, Appellee, and SANDRA SONG, in her capacity as Hearing Officer, Intervenor-Appellee By DaCk� LAUREEN L. MARTIN Assistant Corporation Counsel Their Attorney 3 MOLLY A. STEBBINS 8639 Corporation Counsel MARGARET K. MASUNAGA 4568 MELODY PARKER 4406 Deputies Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Tel. No. (808) 961-8251 Fax No. (808) 961-8622 Email: mkmasuna a co.hawaii.hi.us Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I, and Intervenor-Appellee SANDRA SONG, in her capacity as Hearing Officer IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, ORDER GRANTING APPELLEE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, AND WINDWARD PLANNING COMMISSION, INTERVENOR-APPELLEE SANDRA COUNTY OF HAWAI`l; DEPARTMENT OF SONG'S MOTION TO DISMISS FILED PLANNING, COUNTY OF HAWAII, ON JULY 7, 2014 Appellees, Hearing held: and Date: August 19, 2014 Time: 8:30 a.m. SANDRA SONG, in her capacity as Hearing Judge: Honorable Ronald Ibarra Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. No Trial Date Set EXHIBIT "A" ORDER GRANTING APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, AND INTERVENOR-APPELLEE SANDRA SONG'S MOTION TO DISMISS FILED ON JULY 7, 2014 Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`l, and Intervenor-Appellee SANDRA SONG's Motion to Dismiss came for hearing before the Honorable Ronald lbarra on August 19, 2014. Present at the hearing were Deputy Corporation Counsel Margaret K. Masunaga on behalf of Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, and Intervenor-Appellee SANDRA SONG, in her capacity as Hearing Officer; Deputy Corporation Counsel Amy G. Self on behalf of Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII; Ted H. S. Hong on behalf of Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES; Michael J. Matsukawa on behalf of Intervenor-Appellee JEFFREY GOMES; Alan Okamoto on behalf of Intervenor-Appellees SIDNEY FUKE and TERENCE YOSHIOKA; and Deputy Attorney General Carter K. Siu, appearing by phone on behalf of Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL. The Court, having reviewed and considered the records and files of the instant case, having heard the oral arguments of the parties, and being otherwise fully apprised in the premises, finds that Intervenor-Appellee SANDRA SONG ("Song") did not have the authority to grant or deny the special permit application pursuant to Hawaii Revised Statutes ("HRS") Section 205-6(a). Song was not a party to the underlying action as defined by Hawaii Administrative Procedure Act, Section 91-1(3), HRS, and therefore, Song is not an Appellee as established by Rule 72(a) of the Hawaii Rules of Civil Procedure. Song's recommendation is solely a recommendation, not a ruling. Therefore, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, and Intervenor-Appellee SANDRA SONG's Motion to Dismiss is hereby GRANTED, and all claims against Song are DISMISSED. This document may be executed by the respective parties to this action in counterparts, each of which shall be deemed an original. All of such counterparts together shall constitute one and the same document, binding all the parties hereto, notwithstanding that all parties are not signatory to the same original or counterparts. Dated: Kealakekua, Hawaii. HONORABLE RONALD IBARRA JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: Ddiirin( TED H. S. HONG Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU Deputy Attorney General Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AMY G. SELF Deputy Corporation Counsel Attorney for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII 2 IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, and Intervenor-Appellee SANDRA SONG's Motion to Dismiss is hereby GRANTED, and all claims against Song are DISMISSED. This document may be executed by the respective parties to this action in counterparts, each of which shall be deemed an original. All of such counterparts together shall constitute one and the same document, binding all the parties hereto, notwithstanding that all parties are not signatory to the same original or counterparts. Dated: Kealakekua, Hawaii, HONORABLE RONALD IBARRA JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: TED H. S. HONG Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IU Deputy Attorney General Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AMY G. SELF Deputy Corporation Counsel Attorney for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAI`l 2 IT IS HEREBY ORDERED,ADJUDGED AND DECREED that Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, and Intervenor-Appellee SANDRA SONG'S Motion to Dismiss is hereby GRANTED, and all claims against Song are DISMISSED. This document may be executed by the respective parties to this action in counterparts, each of which shall be deemed an original. All of such counterparts together shall constitute one and the same document, binding all the parties hereto, notwithstanding that all parties are not signatory to the same original or counterparts. Dated: Kealakekua, Hawaii, HONORABLE RONALD IBARRA JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: TED H. S. HONG Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU Deputy Attorney General Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AS Deputy Corporation Counsel Attorn y for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII 2 ALAN M. OKAMOTO Attorney for Intervenors-Appellees SIDNEY FUKE and TERENCE YOSHIOKA MICHAEL J. MATSUKAWA Attorney for Intervenor-Appellee JEFFREY GOMES Community Based Education Support Services v. Windward Planning Commission, County of Hawaii, et al. • Civil No. 14-1-0223 Order Granting Appellee Windward Planning Commission, County of Hawaii, and Intervenor- Appellee Sandra Song's Motion to Dismiss Filed on July 7, 2014 3 Y � ALAN M. OKAMOTO Attorney for Intervenors-Appellees SIDNEY FUKE and TERENCE YOSHIOKA MICHAEL J. MATSUKAWA Attorney for Intervenor-Appellee JEFFREY GOMES Community Based Education Support Services v. Windward Planning Commission, County of Hawaii, et al. • Civil No. 14-1-0223 Order Granting Appellee Windward Planning Commission, County of Hawaii, and Intervenor- Appellee Sandra Song's Motion to Dismiss Filed on July 7, 2014 3 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. I4-I-0223 SUPPORT SERVICES, Applicant-AppelIant, CERTIFICATE OF SERVICE VS. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAI`i. Appellees, And SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appel lees. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the forgoing document was served upon on the following, by mailing same, postage prepaid on August 28, 2014: Hand Delivery Mail Email (X) TED H.S. HONG, ESQ. Hilo Lagoon Centre 10I Aupuni Street, PH 1002A Hilo, Hawaii 96720 Email: tedra�tedhonlaw.com Attorney for Applicant-AppelIant COMMUNITY BASED EDUCATION SUPPORT SERVICES Hand Delivery Mail Email CARTER K. SIU, ESQ. (X) Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AMY G. SELF (X) Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee DEPARTMENT OF PLANNING. COUNTY OF HAWAI`l MICHAEL J. MATSUKAWA, ESQ. (X) Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES ALAN M. OKAMOTO, ESQ. (X) Nakamoto, Okamoto & Yamamoto 187 Kapi`olani Street Hilo, Hawaii 96720 Attorney for Intervenors-Appellees SIDNEY FUKE AND TERENCE YOSHIOKA Dated: Hilo, Hawaii, August 28, 2014. LAUREEN L. MARTIN Deputy Corporation Counsel County of Hawaii 2 F+LtD CIRCL"T COURT OF MOLLY A. STEBBINS 8639 THE THIRD CIRCUIT Corporation Counsel STATE OF HAWAII AMY G. SELF 7628 201; AU? 8 Ph � ,fl JOSEPH K. KAMELAMELA 2493 Deputies Corporation Counsel Office of the Corporation Counsel ! �;� OW County of HawaiiHilo Lagoon Lagoon Centre 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: 961-8251 Facsimile: 961-8622 E-mail: Amy.Sclf(a?hawaiicounty gov Joseph.KamelamelaL�hawaiicounty.gov Attorneys for Appellee DEPARTMENT OF PLANNING. COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAI`1 COMMUNITY BASED EDUCATION Civil No, 14-1-0223 SUPPORT SERVICES, Applicant-Appellant, NOTICE OF SUBMISSION OF ORDER GRANTING APPELLEE DEPARTMENT OF vs. PLANNING, COUNTY OF HAWAI`I'S MOTION TO DISMISS FILED ON JUNE 27, WINDWARD PLANNING COMMISSION, 20I4; EXHIBIT "A"; CERTIFICATE OF COUNTY OF HAWAII; DEPARTMENT SERVICE OF PLANNING, COUNTY OF HAWAII, AppeIlees, And SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. NOTICE OF SUBMISSION OF ORDER GRANTING APPELLEE DEPARTMENT OF PLANNING COUNTY OF HAWAII'S MOTION TO DISMISS FILED ON .TUNE 27, 2014 TO: TED H.S. HONG, Esq. Hilo Lagoon Centre 101 Aupuni Street, PH 1002A Hilo, Hawaii 96720 CARTER K. SIU, ESQ. Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawai`i 968I3 MARGARET K. MASUNAGA Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 ALAN M. OKAMOTO, ESQ. Nakamoto, Okamoto & Yamamoto 187 Kapi`olani Street Hilo, Hawaii 96720 MICHAEL J. MATSUKAWA, ESQ. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Pursuant to the provisions of Rule 23 of the Rules of the Circuit Courts of the State of Hawaii, YOU ARE HEREBY NOTIFIED that the undersigned has prepared and submitted to the Court an ORDER GRANTING APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S MOTION TO DISMISS FILED ON JUNE 27, 2014, a copy of which is attached hereto as Exhibit "A." Pursuant to the provisions of said Rule, you have five (5) days from your receipt of this Notice to serve upon all parties and to mail or deliver to the Court a statement of your 2 objections thereto and the reasons therefore, or a draft of said order which you propose to substitute for that which is attached. Dated: Hilo, Hawaii, August 28, 2014. DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellee By K/1 6 IV AMY ELF Depu Corporation Counsel Its Attorney 3 MOLLY A. STEBBINS 8639 Corporation Counsel AMY G. SELF 7628 JOSEPH K. KAMELAMELA 2493 Deputies Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Tel.No. (808) 961-8251 Fax No. (808) 961-8622 Email: aself@co.hawaii.hi.us jkamela@co.hawaii.hi.us Attorneys for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES, Applicant-Appellant, ORDER GRANTING APPELLEE DEPARTMENT OF PLANNING, VS. COUNTY OF HAWAI`I'S MOTION TO DISMISS FILED ON JUNE 27, 2014 WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, No Trial Date Set Intervenor-Appellees. EXHIBIT "A" ORDER GRANTING APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAPI'S MOTION TO DISMISS FILED ON NNE 27,2014 Appellee Department of Planning, County of Hawai`i's Motion to Dismiss came on for hearing before the Honorable Ronald Ibarra on August 19, 2014. Present at the hearing were Deputy Corporation Counsel Amy G. Self on behalf of Appellee Department of Planning, County of Hawaii; Deputy Corporation Counsel Margaret K. Masunaga on behalf of Appellee Windward Planning Commission, County of Hawaii and Intervenor-Appellee Sandra Song, in her capacity as Hearing Officer; Ted H.S. Hong, Esq. on behalf of Applicant-Appellant Community Based Education Support Services; Michael Matsukawa, Esq. on behalf of Appel lee Jeffery Gomes; Alan Okamoto, Esq. on behalf of Appellees Sidney Fuke and Terence T. Yoshioka and Deputy Attorney General Carter K. Siu, Esq. appeared by telephone on behalf of Applicant-Appellant Connections New Century Charter School. The Court, having reviewed and considered the records and files of the instant case, having heard the oral arguments of the parties, and being otherwise fully advised in the premises, finds that the Windward Planning Commission is the appropriate government agency to act as Appellee in this case and,therefore, the Planning Department is an improper Appellee as established by Hawaii Rules of Civil Procedure Rule 72(a). IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Appellee Department of Planning, County of Hawai'i's Motion to Dismiss is hereby GRANTED and all claims against the Department of Planning, County of Hawaii are DISMISSED. This document may be executed by the respective parties to this action in counterparts, each of which shall be deemed an original. All of such counterparts together shall constitute one and the same document, binding all the parties hereto notwithstanding that all parties are not signatory to the same original or counterparts. 2 a Dated: Kealakekua, Hawaii, HONORABLE RONALD MARRA JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: TED H.S. HONG, ESQ. ALAN M. OKAMOTO, ESQ. Attorney for Applicant-Appellant Nakamoto, Okamoto & Yamamoto COMMUNITY BASED EDUCATION Attorney for Intervenors-Appellees SUPPORT SERVICES SIDNEY FUKE AND TERENCE T. YOSHIOKA CARTER K. SUI, ESQ. MICHAEL J. MATSUKAWA, ESQ. Deputy Attorney General Attorney for Intervenor-Appellee Attorney for Applicant-Appellant JEFFREY GOMES CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MARGARET K. MASUNAGA Deputy Corporation Counsel Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII AND Intervenor-Appellee SANDRA SONG; in her capacity as Hearings Officer Community Based Education Support Services v Windward Planning Commission, et al. Civil Ni. 14-1-0223 ORDER GRANTING APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S MOTION TO DISMISS FILED ON JUNE 27, 2014 3 Dated: Kealakekua, Hawaii, HONORABLE RONALD IBARRA JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: TED H.S. HONG, ESQ. ALAN M. OKAMOTO, ESQ. Attorney for Applicant-Appellant Nakamoto, Okamoto & Yamamoto COMMUNI'T`Y BASED EDUCATION Attorney for Intervenors-Appellees SUPPORT SERVICES SIDNEY FUKE AND TERENCE T. YOSHIOKA 449L=�= cAITEIR iC SIU,ESQ. MICHAEL J. MATSUKAWA, ESQ. Deputy Attorney General Attorney for Intervenor-Appellee Attorney for Applicant-Appellant JEFFREY GOMES CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MARGARET K. MASUNAGA Deputy Corporation Counsel Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII AND Intervenor-Appellee SANDRA SONG, in her capacity as Hearings Officer Community Based Education Support Services vs. Windward Planning Commission, et a]. Civil No. 14-1-0223 ORDER GRANTING APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S MOTION TO DISMISS FILED ON JUNE 27, 2014 3 Dated: Kealakekua, Hawaii, HONORABLE RONALD IBARRA JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: TED H.S. HONG, ESQ. ALAN M. OKAMOTO, ESQ. Attorney for Applicant-Appellant Nakamoto, Okamoto& Yamamoto COMMUNITY BASED EDUCATION Attorney for Intervenors-Appellees SUPPORT SERVICES SIDNEY FUKE AND TERENCE T. YOSHIOKA CARTER K. SIU, ESQ. MICHAEL J. MATSUKAWA, ESQ. Deputy Attorney General Attorney for Intervenor-Appellee Attorney for Applicant-Appellant JEFFREY GOMES CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MARGA T K. MASUNAGA Deputy Corporation Counsel Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII AND Intervenor-Appellee SANDRA SONG, in her capacity as Hearings Officer Community Based Education Support Services vs. Windward Planning Commission, et al. Civil No. 14-1-0223 ORDER GRANTING APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S MOTION TO DISMISS FILED ON JUNE 27, 20I4 3 Dated: Kealakekua, Hawaii, HONORABLE RONALD IBARRA JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: TED H.S. HONG, ESQ. ALAN M. OKAMOTO, ESQ. Attorney for Applicant-Appellant Nakamoto, Okamoto & Yamamoto COMMUNITY BASED EDUCATION Attorney for Intervenors-Appellees SUPPORT SERVICES SIDNEY FUKE AND TERENCE T. YOSHIOKA CARTER K. SIU, ESQ. MICHAEL J. MATSUKAWA, ESQ. Deputy Attorney General Attorney for Intervenor-Appellee Attorney for Applicant-Appellant JEFFREY GOMES CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MARGARET K. MASUNAGA Deputy Corporation Counsel Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII AND Intervenor-Appellee SANDRA SONG, in her capacity as Hearings Officer Community Based Education Support Services vs. Windward Planning Commission, et al. Civil No. I4-I-0223 ORDER GRANTING APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S MOTION TO DISMISS FILED ON JUNE 27, 2014 3 Dated: Kealakekua, Hawaii, HONORABLE RONALD IBARRA JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: TED H.S. HONG,ESQ. ALAN M. OKAMOTO, ESQ. Attorney for Applicant-Appellant Nakamoto, Okamoto & Yamamoto COMMUNITY BASED EDUCATION Attorney for Intervenors-Appellees SUPPORT SERVICES SIDNEY FUKE AND TERENCE T. YOSHIOKA CARTER K. SIU,ESQ. MIC"L J. MATSUKAWA, ESQ. Deputy Attorney General Attorney for Intervenor-Appellee Attorney for Applicant-Appellant JEFFREY GOMES CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MARGARET K.MASUNAGA Deputy Corporation Counsel Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII AND Intervenor-Appellee SANDRA SONG, in her capacity as Hearings Officer Community Based Education Support Services vs. Windward Planning Commission, et al. Civil No. 14-1-0223 ORDER GRANTING APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S MOTION TO DISMISS FILED ON JUNE 27, 2014 3 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. I4-1-0223 SUPPORT SERVICES, Applicant-Appellant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, And SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appel lees. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the forgoing document was served upon on the following, by mailing same, postage prepaid on August 28, 2014: Hand Delivery Mail Email (X) TED H.S. HONG, ESQ. Hilo Lagoon Centre 101 Aupuni Street, PH 1002A Hilo, Hawaii 96720 Email: tedrr),tedhonylaw.com Attorney for COMMUNITY BASED EDUCATION SUPPORT SERVICES Hand Delivery Mail Email CARTER K. SIU, ESQ. (X) Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MARGARET K. MASUTNAGA (X) Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and SANDRA SONG, in her capacity as Hearing Officer MICHAEL J. MATSUKAWA, ESQ. (X) Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-AppelIee JEFFREY GOMES ALAN M. OKAMOTO, ESQ. (X) Nakamoto. Okamoto & Yamamoto I87 Kapi'olani Street Hilo, Hawaii 96720 Attorney for Intervenors-Appellees SIDNEY FUKE AND TERENCE YOSHIOKA Dated: Hilo, Hawaii, August 28, 20I4. AMY q. SELF Deputy Corporation Counsel County of Hawaii 2 FILED CIRCUIT COURT OF THE THIpD CIRCUIT NAKAMOTO, OKAMOTO & YAMAMOTO STATE OF HAWAII ATTORNEYS AT LAW A LAW CORPORATION ?�! SEP '3 PM 210 6 ALAN M. OKAMOTO #1826 187 Kapiolani Street CLERK Hilo, Hawaii 96720 3• MtFr?,q,a{;�KA Telephone: (808) 961-0641 Attorney for APPELLEES SIDNEY FUKE and TERENCE T. YOSHIOKA IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, NOTICE OF SUBMISSION; EXHIBITS "A"—"B"; CERTIFICATE OF vs. SERVICE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, vs. SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE T. YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. NOTICE OF SUBMISSION 1 Ted H.S. Hong, Esq. David M. Louie, Esq, P.O. Box 4217 Carter K. Siu, Esq. Hilo, HI 96720 Deputy Attorney General 235 S. Beretania Street, Room 304 Honolulu, HI 96813 Margaret Masunaga, Esq. Amy Self, Esq. Laureen Martin, Esq. Deputy Corporation Counsel Deputies Corporation Counsel 101 Aupuni Street, Suite 325 101 Aupuni Street, Suite 325 Hilo, HI 96720 Hilo, HI 96720 Michael Matsukawa, Esq. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, HI 96740 Pursuant to the provisions of Rule 23 of the Rules of the Circuit Court of the State of Hawaii, YOU ARE HEREBY NOTIFIED that the undersigned has submitted to the Court herein the ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT, a copy of which is attached hereto as Exhibit "A", and JUDGMENT PURSUANT TO ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT a copy of which is attached hereto as Exhibit «B„ Any objections to the proposed Order and/or Judgment should be made pursuant to Rule 23 of the Circuit Court Rules within five (5) days of the service of the proposed 2 Order and Judgment upon you. DATED: Hilo, Hawaii, September 3, 2014. ALAN M. OKAMOTO Attorney for Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA 3 EXHIBIT A NAKAMOTO, OKAMOTO &YAMAMOTO ATTORNEYS AT LAW A LAW CORPORATION ALAN M. OKAMOTO 41826 187 Kapiolani Street Hilo, Hawaii 96720 Telephone: (808) 961-0641 Attorney for APPELLEES SIDNEY FUKE and TERENCE T. YOSHIOKA IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S vs. MOTION FOR SUMMARY JUDGMENT WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Date: August 19, 2014 Time: 8:30 a.m. Appellees, Judge: Honorable Ronald Ibarra vs. SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE T. YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. ORDER GRANTING APPELLEES SIDNEY FUKE AND TERRANCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 1 Appellees Sidney Fuke and Terence T. Yoshioka's Motion for Summary Judgment filed on July 28, 2014 was heard by Judge Ronald Ibarra on August 19, 2014 at 8:30am. Appearing at the hearing were attorneys Alan M. Okamoto for movants Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA, Ted H. S. Hong for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES, Deputy Corporation Counsel Margaret Masunaga for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and SANDRA SONG, Deputy Corporation Counsel Amy Self for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII, and Michael Matsukawa for Appellee JEFFREY GOMES. Deputy Attorney General Carter Siu for Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL participated by telephone conference. The Court having considered Appellees Sidney Fuke and Terence T. Yoshioka's Motion for Summary Judgment, the Affidavits attached thereto in support of said Motion, the Memorandum in Support of said Motion, the responses of other parties in this appeal, the pleadings, files and records in this appeal, the oral arguments of counsel, the Court hereby finds that there is no genuine issue of material fact pertinent and this Motion and that Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA are entitled to Judgment as a matter of law against Appellants COMMUNITY BASED EDUCATION SUPPORT SERVICES and CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL. The Court further finds that pursuant to Rule 54(b) Hawaii Rules of Civil Procedure, there is no just reason for delay in entering Judgment dismissing Appellees 2 SIDNEY FUKE and TERENCE T. YOSHIOKA from this appeal since Appellants have failed to state a claim upon which relief can be granted against said Appellees. IT IS HEREBY ORDERED that: 1. The Appellees Sidney Fuke and Terence T. Yoshioka's Motion for Summary Judgment is granted. 2. Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA are dismissed as parties in this appeal and their names shall be removed from the caption of this case. 3. Any and all claims made against Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA are hereby dismissed. 4. The Order shall be binding upon all of the parties to this appeal who were represented by counsel in the August 19, 2014 hearing. 5. Judgment shall be entered accordingly. 6. This Order may be signed in counterparts by the parties as to their approval as to form and combined together as one. DATED: Kealakekua, Hawaii, JUDGE OF THE ABOVE-ENTITLED COURT In the Matter of Community Based Education Support Services v. Windward Planning Commission, County of Hawaii, et al., Civil No. 14-1-0223; ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 3 Approved as to form: TED H.S. HONG Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES Approved as to form: C TE K. SIU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL Approved as to form: MARGARET MASUNAGA Attorney for Appellees WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; and SANDRA SONG Approved as to form: AMY SELF Attorney for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII In the Matter of Community Based Education Support Services v. Windward Planning Commission, County of Hawaii, et al., Civil No. 14-1-0223; ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 4 Approved as to form: TED H.S. HONG Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES Approved as to form: CARTER K. SIU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL Approved as to form: MARGARET MASUNAGA Attorney for Appellees WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; and SANDRA SONG Approved as to form: AMY SELF Attorney for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII In the Matter of Community Based Education Support Services v. Windward Planning Commission, County of Hawaii, et a]., Civil No. 14-1-0223; ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 4 Approved as to form: TED H.S. HONG Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES Approved as to form: CARTER K. SIU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL Approved as to form: MARGARET MASUNAGA Attorney for Appellees WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; and SANDRA SONG Approved as to form: r AM,Y SLP ktorne, for Appellee Uf DEPARTMENT OF PLANNING, COUNTY OF HAWAII In the Matter of Community Based Education Support Services v. Windward Planning Commission, County of Hawaii, et al., Civil No. 14-1-0223; ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 4 Approved as to form: VVV L A�, MICHAEL MATSukAWA Attorney for Appellee JEFFREY GOMES In the Matter of Community Based Education Support Services v. Windward Planning Commission, County of Hawaii, et al., Civil No. 14-1-0223; ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 5 EXHIBIT B NAKAMOTO, OKAMOTO & YAMAMOTO ATTORNEYS AT LAW A LAW CORPORATION ALAN M. OKAMOTO 91826 187 Kapiolani Street Hilo, Hawaii 96720 Telephone: (808) 961-0641 Attorney for APPELLEES SIDNEY FUKE and TERENCE T. YOSHIOKA IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, JUDGMENT PURSUANT TO ORDER GRANTING APPELLEES SIDNEY FUKE vs. AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Date: August 19, 2014 Appellees, Time: 8:30 a.m. Judge: Honorable Ronald Ibarra vs. SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE T. YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. JUDGMENT PURSUANT TO ORDER GRANTING APPELLEES SIDNEY FUKE AND TERRANCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 1 The Court having granted the Appellees Sidney Fuke and Terence T. Yoshioka's Motion for Summary Judgment filed on July 28, 2014 by the Court's Order Granting Appellees Sidney Fuke and Terence T. Yoshioka's Motion for Summary Judgment on , 2014 and having directed that since there is no just reason for delay in entering Final Judgment under Rule 54(b), Hawaii Rules of Civil Procedure. IT IS HEREBY ORDERED, ADJUDGE AND DECREED that: 1. Judgment is entered in favor of Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA and against Appellants COMMUNITY BASED EDUCATION SUPPORT SERVICES and CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL. 2. This Judgment disposes of all of the claims in this appeal involving Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA. 3. Final Judgment is entered under rule 54(b), Hawaii Rules of Civil Procedures. 4. This Judgment may be signed in counterparts by the parties as to their approval as to form and combined together as one. DATED: Kealakekua, Hawaii, JUDGE OF THE ABOVE-ENTITLED COURT In the Matter of Community Based Education Support Services v. Windward Planning Commission, County of Hawaii et al. Civil No. 14-1-0223; JUDGMENT PURSUANT TO ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 2 Approved as to form: TED H.S. HONG Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES Approved as to form: 1 C�f ___.� CA E IU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL Approved as to form: MARGARET MASUNAGA Attorney for Appellees WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; and SANDRA SONG Approved as to form: AMY SELF Attorney for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII In the Matter of Community Based Education Support Services v. Windward Planning Commission, Countyf Hawaii, et al., Civil No. 14-1-0223; JUDGMENT PURSUANT TO ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 3 Approved as to form: TED H.S. HONG Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES Approved as to form: CARTER K. SIU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL Approved as to form: MARGARE MASUNAGA Attorney for Appellees WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; and SANDRA SONG Approved as to form: AMY SELF Attorney for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII In the Matter of Community Based Education Support Services v. Windward Planning Commission County of Hawaii et al. Civil No. 14-1-0223; JUDGMENT PURSUANT TO ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 3 Approved as to form: TED H.S. HONG Attorney for Applicant-Appellant COMMLTNITY BASED EDUCATION SUPPORT SERVICES Approved as to form: CARTER K. SIU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL Approved as to form: MARGARET MASUNAGA Attorney for Appellees WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; and SANDRA SONG Approved as to form: AM SELF Att rney for Appellee DE ARTMENT OF PLA ANG, COUNTY OF HAWAII In the Matter of Community Based Education Support Services v. Windward Planning Commission, County of llawaii et al. Civil No. 14-1-0223; JUDGMENT PURSUANT TO ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 3 Approved as to form: f, MICHAEL MATSUKAWA Attorney for Appellee JEFFREY GOMES In the Matter of Community Based Education Support Services v. Windward Planning Commission, County of Hawaii, et al., Civil No. 14-1-0223; JUDGMENT PURSUANT TO ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 4 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, CERTIFICATE OF SERVICE Vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, VS. SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE T. YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. CERTIFICATE OF SERVICE I hereby certify that the foregoing Notice of Submission; Exhibits `A"— -B", was served on the following by depositing the same with the U.S. Postal Service, postage prepaid, on September 3, 2014: Ted H.S. Hong, Esq. David M. Louie, Esq. P.O. Box 4217 Carter K. Siu, Esq. Hilo, HI 96720 Deputy Attorney General 235 S. Beretania Street, Room 304 Attorney for Applicant-Appellant Honolulu, HI 96813 COMMUNITY BASED EDUATION SUPPORT SERVICES Attorney for Applicant-Appellant CONNECTIONS NEW CENTUREY CHARTER SCHOOL 1 Margaret Masunaga, Esq. Amy Self, Esq. Laureen Martin, Esq. Deputy Corporation Counsel Deputies Corporation Counsel 101 Aupuni Street, Suite 325 101 Aupuni Street, Suite 325 Hilo, HI 96720 Hilo, HI 96720 Attorney for Appellee Attorney for Appellees DEPARTMENT OF PLANNING, WINDWARD PLANNING COUNTY OF HAWAII COMMISSION, COUNTY OF HAWAII; and SANDRA SONG Michael Matsukawa, Esq, Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, HI 96740 Attorney for Appellee JEFFREY GOMES ALAN M. OKAMOTO 2 ORIGINAL F1! / v CIRCUIT Gkil OF THE T'�«n CIRCUIT TED H. S. HONG 3569 STATE of HAY(PAII Attorney at Law P. O. Box 4217 ZI)I li S 15 ' IQ. 15 Hilo, HI 96720 Telephone No. 808.933.1919 Facsimile No. 808938.8281 1-• ' ` ' �'�" CE.t-RiS .�-- ted@tedhonglaw.com Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 RI SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' vs. ) MEMORANDUM IN OPPOSITION TO APPELLEE WINDWARD PLANNING WINDWARD PLANNING COMMISSION,) COMMISSION, COUNTY OF HAWAII'S, COUNTY OF HAWAII; DEPARTMENT } MOTION TO QUASH OR CORRECT THE OF PLANNING, COUNTY OF HAWAII, ) ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON Appellees, } APPEAL AS TO TAPE RECORDINGS AND TRANSCRIPTS OF ALL and } EXECUTIVE SESSION HEARINGS AND MEETINGS DATED JUNE 9, 2014, FILED SANDRA SONG, in her capacity as ) JULY 11, 2014, FILED ON AUGUST 14, Hearing Officer; JEFFREY GOMES, ) 2014; EXHIBITS "1," - -2; Intervenor; SIDNEY FUKE, Intervenor's ) DECLARATION OF TED H. S. HONG; Representative; TERENCE YOSHIOKA, ) CERTIFICATE OF SERVICE Intervenor's Representative, ) HEARING: Intervenor-Appellees. ) DATE: September 26, 2014 TIME: 8:00 a.m. JUDGE: The Hon. Ronald Ibarra J TABLE OF CONTENTS I. SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 111. LAW and ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Subjects in Executive Session are Statutorily Limited . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Minutes from Executive Sessions are Public Record . . . . . . . . . . . . . . . . . . . . . . . . . . 5 C. Appellee has Failed to Meet the Foundation to Keep Minutes Confidential . . . . . . . . 7 D. Alternatives Available to the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I1 i r s TABLE OF AUTHORITIES HAWAII CASES: County of Kauai v. Office oflnformation Practices, State of Hawaii, 120 Hawaii 34, 200 P.3d 403 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7, 8, 9 Paul's Electrical Service, Inc., v. Befitel, 104 Hawai'i 412, 91 P.3d 494 (2004) . . . . . . . . . . . . . 6 Sapp v. Wong, 62 Haw. 34, 609 P.2d 137 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 FEDERAL CASES: Holifield v. United States, 909 F.2d 201 (7th Cir.1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Obiajulu v. City of Rochester, Dep't of Law, 166 F.R.D. 293 (W.D.N.Y. 1996) . . . . . . . . . . . . . 9 Teed v. JT Packard&Assocs. Inc., No. 10-MISC-23, 20I0 WL 2925902 (E.D.Wis. July 20, 20I0) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 HAWAII REVISED STATUTES: Sec. 91-14(g), HRS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 Sec. 92-5, HRS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4 Sec. 92-9, HRS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 See. 92F-42(18), HRS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ii APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' MEMORANDUM IN OPPOSITION TO APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII'S, MOTION TO QUASH OR CORRECT THE ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL AS TO TAPE RECORDINGS AND TRANSCRIPTS OF ALL EXECUTIVE SESSION HEARINGS AND MEETINGS DATED JUNE 9, 2014, FILED JULY 11, 2014, FILED AUGUST 14, 2014 COMES NOW Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES (hereinafter referred to as "CBESS"), by and through its undersigned counsel and hereby submits its Memorandum in Opposition to Appellee Windward Planning Commission, County of Hawaii's Motion to Quash or Correct the Order for Certification and Transmission of Record on Appeal as to Tape Recordings and Transcripts of All Executive Session Hearings and Meetings dated June 9, 2014, Filed July 11, 2014, Filed August I4, 2014, as follows: I. SUMMARY Appellee Commission seeks to prevent any disclosure of Executive Session Minutes based on an assertion of the Attorney-Client Privilege that is overbroad and lacks any foundation. Appellee has failed to meet any foundational requirement necessary to prohibit the disclosure of minutes in Executive sessions or shown that such minutes cannot be redacted to prevent disclosure of privileged discussions as set forth in County of Kauai v. Office of Information Practices, State of Hawaii, 120 Hawai'i 34, 200 P.3d 403 (2009). II. FACTS On or about June 9, 2014, Appellant CBESS filed its Notice of Appeal to the Third Circuit Court, including its Designation of Contents of Record on Appeal and Order for Certification and Transmission of Record on Appeal. In the Order for Certification and Transmission of Record on Appeal, the Appellee, Windward Planning Commission, County of I Hawaii (hereinafter referred to as "Commission") was ordered to produce the following as part of the Certified Record on Appeal: Pursuant to Section 91-14(d), Hawaii Revised Statutes, you are hereby ordered to certify and transmit to this Court,within twenty (20) days of the date of this order, or within such further time as may be allowed by the Court, the entire file relating to the entire record, any and all documents, papers, reports, transcripts, exhibits, affidavits, depositions, transcripts of proceedings, statements, letters, correspondence, subpoenas, notices, notes, memoranda of counsel, decisions, awards, requests for reconsideration or reopening, as well as the tape recordings and transcripts of all hearings and meetings (public and executive session) in which the Appellant's application was discussed including but not limited to: A. Hearing Officer's Report dated April 7, 2014 (attached hereto as Exhibit "I"), including the Contested Case proceedings before her; B. The County of Hawaii Windward Planning Commission's meeting and decision entered May 1,2014 to uphold the Hearings Officer's report and recommendations to deny Special Permit Application (SPP12-000138) to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5-006:141; C. The County of Hawai'i Windward Planning Commission's Findings of Fact, Conclusions of Law and Decision and Order, dated May 19,2014, attached hereto as Exhibit "2," which is a final administrative agency decision, that denied CBESS' application for a Special Permit Application (SPP12-000138) to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5-006:141. Emphasis added. On or about June 10, 2014, Appellee Commission was served with the Notice of Appeal to the Third Circuit Court, including its Designation of Contents of Record on Appeal and Order for Certification and Transmission of Record on Appeal. The deadline to submit the Certified Record on Appeal was June 30, 2014. 2 On or about July 7, 2014, the Appellee Commission filed its Request for Extension of Time to file Record on Appeal. III. LAW and ANALYSIS A. Subjects in Executive Session are Statutorily Limited. Pursuant to Section 92-5, Hawaii Revised Statutes (hereinafter referred to as "HRS")the Appellee Commission was statutorily permitted to go into executive session for limited reasons, including in relevant part: §92-5 Exceptions. (a) A board may hold a meeting closed to the public pursuant to section 92-4 for one or more of the following purposes: (4) To consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities; (8) To deliberate or make a decision upon a matter that requires the consideration of information that must be kept confidential pursuant to a state or federal law, or a court order. (b) In no instance shall the board make a decision or deliberate toward a decision in an executive meeting on matters not directly related to the purposes specified in subsection (a). No chance meeting, permitted interaction, or electronic communication shall be used to circumvent the spirit or requirements of this part to make a decision or to deliberate toward a decision upon a matter over which the board has supervision, control,jurisdiction, or advisory power. [L 1975, c 166, pt of§1; am L 1985, c 278, §3; gen ch 1985; am L 1996, c 267, §3; am L 1998, c 48, §1; am L 1999, c 49, §1] (Emphasis added) In relevant part, the Appellee Commission's public agenda for May 1, 2014 stated: 7. APPLICANTS: CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL/ CBESS (SPP12-138) 3 Discussion and action on the Hearings Officer's report and recommendation on an application for a Special Permit to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District. The property is located on both the southwest and northeast sides of Edita Street near its intersection with Kaumana Drive and adjoining the Pacific Plantation Subdivision in Kaumana, South Hilo, Hawaii, TMK: 2- 5-006:141. The Commission anticipates convening an executive meeting regarding the above matter, pursuant to Section 92-5(a)(4), Hawaii RevisedStatutes, for the purpose of consulting with the Commission's attorney on questions and issues pertaining to the Commission's powers, duties, privileges, immunities, and liabilities. A 2/3 vote pursuant to Hawaii Revised Statutes, Section 92-4 and Planning Commission Rulel-5(e) is necessary to hold an executive meeting. (Emphasis added) See, Exhibit "l," attached hereto. The purpose of requesting the Executive Session minutes is to determine, whether or not the Appellee Commission violated Section 92-5(b), HRS, by discussing and deliberating on the merits of the Appellant's application. The information is directly relevant pursuant to Sec. 91- 14(8), HRS, under the following sub-sections: • Sec. 91-14(8)(1), HRS, that Appellee's decision violated "constitutional or statutory provisions," • Sec. 91-14(g)(2), HRS, because Appellee's decision was "In excess of the statutory authority or jurisdiction of the agency," • Sec. 91-14(g)(3), HRS, because Appellee's decision, in Executive session, if any, was "Made upon unlawful procedure," • Sec. 91-14(g)(4), HRS, that the Appellee's decision was "Affected by 4 other error of law," or • Sec. 91-14(g)(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. Appellee's overbroad, blanket claim of attorney-client privilege is being used to withhold evidence, that by law, should be included in the Certified Record on Appeal which may be critical to overturning Appellee Commission's decision. B. Minutes from Executive Sessions are Public Record. Section 92-9, HRS, states in relevant part that minutes of executive session meetings must be available to the public: §92-9 Minutes. (a) The board shall keep written minutes of all meetings. Unless otherwise required by law, neither a full transcript nor a recording of the meeting is required, but the written minutes shall give a true reflection of the matters discussed at the meeting and the views of the participants. The minutes shall include, but need not be limited to: (3) The substance of all matters proposed, discussed, or decided; and a record, by individual member, of any votes taken; and (b) The minutes shall be public records and shall be available within thirty days after the meeting except where such disclosure would be inconsistent with section 92-5; provided that minutes of executive meetings may be withheld so long as their publication would defeat the lawful purpose of the executive meeting, but no longer. ( c) All or any part of a meeting of a board may be recorded by any person in attendance by means of a tape recorder or any other means of sonic reproduction, except when a meeting is closed pursuant to section 92-4; provided the recording does not actively interfere with the conduct of the meeting. [L 1975, c 166, pt of§1] (Emphasis added) 5 The Office of Information Practice, State of Hawaii (hereinafter referred to as "OIP") is statutorily authorized to interpret and enforce provisions of Chapter 92, HRS, including but not limited to Sec. 92-9, HRS. See, Sec. 92F-42(18), HRS, "Advising all government boards and the public about compliance with chapter 92." The interpretation of statutes under its jurisdiction should be afforded deference. Paul's Electrical Service, Inc., v. Befitel, 104 Hawai'i 412, 91 P.3d 494, at 499 (2004). The Office of Information has advised that when the need for the executive session minutes to be confidential expires, those minutes should be released to the public. On or about October 30, 2006, in response to an inquiry from the Department of Education to keep executive session minutes confidential, O1P noted: The Sunshine Law expressly recognizes that a board may withhold executive meeting minutes to avoid frustration of its ability to protect certain matters properly discussed in a closed meeting under the Sunshine aw. See, Haw. Rev. Stat. Sec. 92-9 (1993). However, the Sunshine Law also clearly recognizes that, at a future point in time, the need to maintain the confidentiality of information contained in an executive meeting's minutes may end. See id Specifically, the Sunshine Law provides that a board may withhold public access to the minutes of that executive meeting "so long as their publication would defeat the lawful purpose of the executive meeting, but no longer." Id. (Emphasis added). Thus, for an executive meeting convened to protect an employee's privacy interest, when and to the extent matters considered would no longer affect that person's privacy, the minutes or portions of the minutes reflecting those matters must be made available to the public. OIP also finds that BOE's discussion relating to certain procedural issues and other matters unrelated to Dr. Shon must be disclosed as BOE has provided no reasonable basis to justify withholding that information. See, Haw. Rev. Stat. Sec. 92F-15( c) (1993) (agency bears burden of justifying nondisclosure). OIP, however, agrees with BOE that the remaining information in the Minutes comprising Dr. Shon's evaluation itself, including BOE's discussion and deliberations on Dr. Shon's retention, may be withheld. Absent publication 6 of those matters or Dr. Shon's consent, OIP believes that Dr. Shon's significant privacy interests outweigh the public interest in disclosure as to those matter. (Emphasis added) See, Exhibit "2," attached hereto. In the present case, the need for maintaining any confidentiality of Appel lee Commission's executive session minutes has ended. The only issue before the Appellee Commission on May 1, 2014 was whether to accept or reject the Hearing Officer's decision. See, Exhibit"l," attached hereto. That decision was made, which the Appellant appealed from. The Appellee Commission's Decision and Order is the subject of the present litigation. There is no need to maintain or keep those executive session minutes confidential. C. Appellee has Failed to Meet the Foundation to Keep Minutes Confidential. In County of Kauai v. Office of Information Practices, State of Hawaii, 120 Hawaii 34, 200 P.3d 403 (2009), the Intermediate Court of Appeals articulated the standard by which executive session minutes confidential based on a claim of attorney-client privileged communications: The ability of a public body to confer freely with its counsel is so critical that even where the open meeting law did not specifically provide for such protection, one court has held that "[w]hile exceptions to right-to-know legislative provisions are to be strictly construed, the right of a public agency privately to consult legal counsel on the settlement or avoidance of litigation is an activity properly excepted from the right-to-know acts. A public agency should neither be given an advantage, nor placed at a disadvantage in litigation." Port of Seattle v. Rio, 16 Wash.App. 718, [724,] 559 P.2d 18, 22 (1977); see also Oklahoma Assoc. of Municipal Attorneys v. State, 577 P.2d 1310 (Okl.1978). (Emphasis added) 7 County of Kauai v. Office of Info. Practices, State of Haw., 120 Haw. 34, 45, 200 P.3d 403, 414 (Ct. App. 2009), citing, Hui Malama Aina O Ko'olau v. Pacarro, 4 Haw.App. 304, 313-14, 666 P.2d 177, 183-84 (1983). The appeals court also noted: As we have already discussed, most of the conversation at ES-177 concerned legal matters pertaining to Council's powers, duties, and immunities, i.e., the proper procedure to follow in conducting an investigation into the practices of KPD and the ramifications of the Sunshine Law on the investigation. Because the conversation consisted of either direct communication between Council members and Nakazawa or communication among Council members that flowed from consultation with Nakazawa, we agree that redacting the privileged portions of the meeting would be impractical. (Emphasis added) County of Kauai v. Office of Info. Practices, State of Haw., 120 Haw. 34, 46, 200 P.3d 403, 415 (Ct. App. 2009). In the present case, the factors that the Court must consider include: (1) Were the discussions between counsel and the Appellee Commission in the nature of legal consultation on the settlement or avoidance of litigation, or a discussion how to frame or shape its decision; (2) Did the discussions involve ongoing, legal issues; (3) Are the privileged communications so intertwined with non-privileged communications to make redaction impractical; and (4) Did the privileged communications include direct communications with Appellee Commission members and legal counsel or communications among commission members that flowed from consultation with legal counsel. Appellee Commission's counsel has failed to provide the Court any foundational information that would allow the privilege to be considered. Generally, overbroad, general, conclusory assertions of privilege claim are insufficient to invoke or sustain the privilege. Sapp 8 v. Wong, 62 Haw. 34, at 39, 609 P.2d 137, at 141 (1980); see also, Holifield v. United States, 909 F.2d 201, 203-04 (7th Cir.1990) ("blanket objections" would not suffice to support a claim that the attorney-client privilege prohibits the production of documents where party asserting an attorney-client privilege failed to specify the applicability of the privilege with respect to each document being withheld, nor did he set forth any specific facts to support his legal conclusions); Teed v. JT Packard&Assocs. Inc., No. 10-MISC-23, 2010 WL 2925902, at *3 (E.D.Wis. July 20, 20 10) (conclusory assertions of a privilege was insufficient to establish that the information was privileged); Obiajulu v. City of Rochester, Dept of Law, 166 F.R.D. 293, 295 (W.D.N.Y. 1996) (general claims of privilege, be it work-product or attorney-client, is an inadequate response to a discovery request.). In the present case, Appellee has failed to provide the Court any evidence either by Declaration or submission of exhibits that would meet any of the four(4) requirements in County of Kauai v. Office of Info. Practices, State of Haw., 120 Haw. 34, 200 P.3d 403 (Ct. App. 2009). The Court cannot make an informed decision concerning the assertion of the attorney-client privilege. The following is an analysis of each of the four (4) factors: (1) Were the discussions between counsel and the Appellee Commission in the nature of legal consultation on the settlement or avoidance of litigation, or a discussion how to frame or shape its decision? In the present case, Appellee Commission's counsel offers only a blanket assertion of the privilege and failed to include a Declaration or statement either from herself or any of the Commissioners present concerning the nature of the consultation. (2) Did the discussions involve ongoing, legal issues? 9 Appellee Commission's counsel offers only a blanket assertion of the privilege and failed to include any Declaration or statement either from herself or any of the Commissioners present concerning the nature of the consultation. However, any discussion the Commissioners had with legal counsel no longer involves an ongoing or continuing legal issue. The Appellee Commission already decided the matter and it is now for this Court to make a decision, based on the Certified Record on Appeal, whether that decision was correct given the standard in Sec. 91- 14(g), HRS. (3) Are the privileged communications so intertwined with non-privileged communications to make redaction impractical? Appellee Commission's counsel offers only a blanket assertion of the privilege and failed to include any Declaration or statement either from herself or any of the Commissioners present concerning the nature of the consultation or any information from which the Court could decide whether the privileged communications could be separated or redacted from any non-privileged communications. (4) Did the privileged communications include direct communications with Appellee Commission members and legal counsel or communications among commission members that flowed from consultation with legal counsel? Appellee Commission's counsel offers only a blanket assertion of the privilege and failed to submit any Declaration or statement either from herself or any of the Commissioners present concerning the nature of the consultation. Appellee Commission's motion is unsupported by any information that this Court can rely upon, other than a generalized, blanket assertion of the attorney-client privilege for an event 10 that has already been resolved. The assertion of the privilege unlawfully impairs the Appellant's constitutional due process protections, because it secrets away potentially relevant information that could be relied upon in overturning the Appellee Commission's decision based on the factors set forth in Sec. 91-14(g), HRS, D. Alternatives Available to the Court. In the present case, the Court has two (2) alternatives concerning the documents: (1) In camera review. The Court can review the minutes in camera to determine whether the minutes and tape recording, if any, should be turned over to Appellant's counsel; and/or (2)Redaction of privileged information. The Court can review the minutes and determine whether the documents can be redacted or whether the privileged communications are so intertwined with non-privileged communications to make redaction impractical. 1V. CONCLUSION The Court should deny the present motion. Appellee's counsel only made an overbroad, blanket assertion of the attorney-client privilege. Appellee has failed to provide any information that any of the communications qualified under the privilege. Appellee has failed to meet its burden that would allow the Court to grant the motion. The Court should also deny the motion based on the merits. The attorney-client privilege only protects communications concerning ongoing or future litigation. Based on the lack of any foundational evidence from Appellee's counsel, it is reasonable to assume that the only communications between the Commission members and its legal counsel were about the form and content of the Commission's decision. Once that decision was made and appealed from, the need for confidentiality ended. 11 Alternatively, the Court should review the documents in camera and determine whether the documents can be redacted to protect any attorney-client privilege. DATED: September 15, 2014 Respectfully submitted, ED H. S. HONG Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 12 AGENDA WINDWARD PLANNING COMMISSIION COUNTY OF HAWAII NOTICE IS HEREBY GIVEN of the following matters to be considered by the Windward Planning Commission of the County of Hawaii in accordance with the provisions of Chapters 91 and 92, Hawai`i Revised Statutes, Section 6-7.5(a)of the Charter of the County of Hawaii, and the Planning Commission's Rules of Practice and Procedure. DATE: Thursday, May 1, 2014 TIME: 9:00 a.m. PLACE: County of Hawai`i Aupuni Center Conference Room 101 Pauahi Street, Hilo, HI 96720 STATEMENTS FROM THE PUBLIC— Note that statements from the public regarding any particular item on this agenda will be taken at the time the particular item is called to order. NEW BUSINESS— 9:00 a.m. 1. APPLICANT: 132-II EDUCATIONAL TRUST (REZ 14-172) Application for a Change of Zone from an Agricultural 3-acre (A-3 a) and an Agricultural 1-acre (A-la) to a Family Agricultural 1-acre (FA-la) zoned district for 3.012 acres of land. The property is located at the end of Ho`ohoaloha Street, approximately 1,500 feet south from its intersection with Ainaola Drive, Waiakea Homestead 2nd Series, South Hilo, Hawaii, TMK: 2-4-034:046. 2. APPLICANT: JASON DEPONTE (REZ 14-173) Application for a Change of Zone from an Agricultural-3 acre(A-3a)to a Residential and Agricultural-1 acre (RA-la) zoning district for 3.23 acres of land. The property is located along the east (makai) side of Kupulau Street approximately 100 feet south of its intersection with the drivewav entrance to New Hope Christian Fellowship Church, portion of Waiakea Homestead 2nd Series, South Hilo, Hawaii, TMK: 2-4-038:012 3. APPLICANTS: RICHARD AND CINDY VOGEL (Amend SPP 09-077) Amendment to Special Permit No. 09-077 to increase the number of permitted bed and breakfast bedrooms units from one (1) bedroom Unit to three(3) bedroom units. Special Permit No. 09-077 was originally approved to allow the establishment of a 1-bedroom bed and breakfast establishment within an existing 4-bedroom single family dwelling situated on 1-acre of land within the State Land Use Agricultural District. The property is located at 13- 3357 Ho`olnipu Street, Leilani Estates Subdivision, Keahialaka, Puna, Hawaii, TMK: 1-3- 31:66. EXHIBIT 66 1." NEW BUSINESS— 9:30 a.m. 4. APPLICANT: JOHN HABERMANN (SPP 14-159) Application for a Special Permit to establish an auto repair shop on .91-acre of land situated in the State Land Use Agricultural District. The property is located on the southwest side of 33"1 Avenue, approximately 1,000 feet northwest of its intersection with Maku`u Drive, Hawaiian Paradise Parks Subdivision, Kea`au, Puna, Hawaii, TMK: 1-5-016:169. 5. INITIATOR, COUNTY COUNCIL (Bill No. 191) An ordinance amending Chapter 25, Article 5, Division 14 of the Hawai`i County Code 1983 (2005 Edition, as Amended) by allowing Village Commercial (CV) zoning district uses within the Limited Industrial (ML) zoning district. 6. INITIATOR, COUNTY COUNCIL (Bill No. 192) An ordinance amending Chapter 25, Article 5, Division 14 of the Hawaii County Code 1983 (2005 Edition, as Amended) by allowing Village Commercial (CV) zoning district uses within the Industrial-Commercial Mixed Use (MCX) zoning district. UNFINISHED BUSINESS— 10:00 a.m. 7. APPLICANTS: CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL/ CBESS (SPP 12-138) Discussion and action on the Hearings Officer's report and recommendation on an application for a Special Permit to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District. The property is located on both the southwest and northeast sides of Edita Street near its intersection with Kaumana Drive and adjoining the Pacific Plantation Subdivision in KaOmana, South Hilo, Hawaii, TMK: 2-5-006:141, The Commission anticipates convening an executive meeting regarding the above matter, pursuant to Section 92-5(a)(4), Hawaii Revised Statutes, for the purpose of consulting with the Commission's attorney on questions and issues pertaining to the Commission's powers, duties, privileges, immunities, and liabilities. A 213 vote pursuant to Hawaii Revised Statutes, Section 92-4 and Planning Commission Rule 1-5(e) is necessary to hold an executive meeting. MINUTES Approval of Minutes of the April 3, 2014 meeting ADMINISTRATIVE MATTERS 1. Status of applications heard by Windward Planning Commission that are pending before County Council. ANNOUNCEMENTS 2 ADJOURNMENT The purpose of the public hearings is to afford all interested persons a reasonable opportunity to be heard on the above matters. Submitting Testimony: According to Rule 1 (General Rules) of the Planning Commission, a person desiring to submit oral or written testimony shall indicate her/his name; residence address; and whether the testimony is on her/his behalf or as a representative of an organization or individual. If testimony is being submitted on behalf of an organization, documentation showing membership ratification should accompany the testimony. Written testimony shall be submitted with an original and nine copies prior to testifying. The Commission would appreciate timely submittal to the Planning Department at least one week prior to the hearing date to allow for mailing and thorough Commission review. Testimony that is irre[evant or unduly repetitious may be limited by the Chairperson pursuant to Rule 1. Pursuant to Rule 4, Contested Case Procedure, of the County of Hawaii Planning Commission Rules of Practice and Procedure, any person seeking to intervene as a party to a contested case hearing on Agenda Item Nos. 3 & 4 above is required to file a written request which must be received in the office of the Planning Department no later than seven (7) calendar days prior to the Planning Commission's first public meeting on the matter. Such written request shall be in conformity with Rule 4, in a form as provided by the Planning Department entitled "Petition for Standing in a Contested Case Hearing." The written petition/request shal[ be filed with the Planning Commission at Aupuni Center, 101 Pauahi Street, Suite 3, Hilo, Hawaii 96720, and accompanied by a filing fee of$200 payable to the Director of Finance. Any party may retain counsel if that person so desires. Rule 4 may be inspected or purchased ($2.50) at the above-cited location. Rule 4 may also be viewed at the County of Hawai`i website (http://www.co.Hawaii.hi.us). Anyone who requires an auxiliary aid or service, other reasonable modification, or language interpretation to access this meeting please contact Sarah Hata-Finley (961-8157) or Daryn Arai (961-8142)of the Planning Department as soon as possible, but no later than five days prior to the meeting date, to arrange for accommodations. `Other reasonable modification" refers to communication methods or devices for people with disabilities who are mentally and/or physically challenged. Hcnrai'i C omiry is an Equal Opportunity Provider and Employer. WINDWARD PLANNING COMMISSION RONALD GONZALES, Chairperson (Hawaii Tribune Herald: Friday, April 11, 2014) (West Hawaii Today: Friday, April 11, 2014) t 01 ea 'P a ,4" * cyby `°LIMEPA `� STATE OF HAWAII i;OVERhOfi JPMFS R.MNA,JR. OFFICE OF THE LIEUTENANT GOVERNOR LESUS N.1 Oi= L:EUTFKWWWPPro OFFICE OF INFORMATION PRACTICES .L4$WCTOR NO 4 CAPITOL DISTRICT BUnLDiNG 2250 SOUTH HOTEL STREE i,SUITE 107 HONOLULU,HAWAI)96813 Telephone 1606)SW-1400 FAX. ,808)586-1412 E-MAIL 94)_Qnawa,i(�ov www.h W21i,Qcy?pi0 DECISION Requesters: David Rizor, Ph.D. (Appeal 07-9) Larry Geller (Appeal 07-13) Board: Board of Education Date: October 30, 2006 Subject: Executive Meeting Minutes Re: Employee Evaluation REQUEST FOR DECISION Requesters seek a determination from the Office of Information Practices ("OIP") on whether the Board of Education ("BOE") properly denied their separate requests for records made under part II of the Uniform Information Practices Act (Modified), chapter 92F, Hawaii Revised Statutes ("HRS") ("UIPA").1 Requesters both generally sought access to portions of BOE's September 7, 2006, executive meeting minutes ("the Minutes") related to the evaluation of Dr. James Shon, then Executive Director of the Charter School Administrative Office. Dr. David Rizor requested the portion of the Minutes concerning the retention or dismissal of Dr. Shon. Mr. Larry Geller requested a copy of the Minutes and the audiotape related to the agenda item for the September 7 executive meeting concerning the evaluation of Dr. Shon. DECISION BOE must provide Requesters access to those portions of the Minutes that reflect the motions voted on regarding Dr. Shoe's retention as well as the votes cast by the individual BOE members on those motions. Disclosure of those portions of the I Requesters filed separate appeals from BOE's denials of access to the records each requested. Because the appeals present the same underlying issue for review, OIP issues this decision for both appeals. OIP Op. Ltr. No. 06-07 EXHIBIT "2." Minutes would not defeat the September 7 executive meeting's lawful purpose of protecting the privacy interests of Dr. Shon in light of the fact that BOE's decision to not continue Dr. Shoe's appointment was made public and given the strong public interest in knowing how the elected BOE members are performing their duties. BOE must also disclose those portions of the Minutes reflecting its discussion relating to certain procedural issues and other matters unrelated to Dr. Shon as BOE has provided no reasonable basis to justify withholding that information. With respect to Mr. Geller's request for the audiotape, BOE should provide Mr. Geller with a copy of the audiotape, if any, and may redact that recording to withhold the same type of information redacted from the Minutes in accordance with this Decision. FACTS BOE convened the September 7 executive meeting to consider the evaluation of Dr. Shon and, as part of the closed meeting, voted not to continue Dr. Shon's appointment as the Executive Director.2 BOE publicly announced its decision concerning Dr. Shon's appointment after the meeting, which decision was reported by the Honolulu Advertiser on September 8, 2006,3 and as part of a news conference on September S, 2006. On September 14, 2006, Mr. Geller requested that BOE provide him with a copy of the Minutes and an audiotape of the September 7 executive meeting related to Dr. Shoe's evaluation. After not receiving a response to his record request, Mr. Geller requested assistance from OIP.¢ 2 As part of an investigation under part I of chapter 92, HRS ("the Sunshine Law"), QIP will issue a separate opinion on whether BOE's convening of the September 7 executive meeting to consider the evaluation of Dr. Shon was proper, as well as other procedural matters related to that meeting. See Haw. Rev. Stat. § 92F-42(18)(Supp. 2005) (charging QIP with overseeing compliance with the Sunshine Law), Haw. Rev. Stat. § 92-4 (1993) and -5 (Supp. 2005). 3 ee http://the.honoluCuadvertiser.com/article/2006/Sep/08an/FP609090336. html. ' BOE represented to UIP that it had responded to or, if it had not, would be responding to Mr. Geller's request. On October 13, 2006, Mr. Geller informed OIP that, as of that date,he had not received a response from BOE. In light of BOE's response to Dr. Riaor's record request for a portion of the Minutes and OIP's understanding that BOE denied or would have denied Mr. Geller's request,QIP has considered Mr. Geller's request for assistance to be an appeal of BOE's denial of access. OIP reminds BOE that it must, at a minimum, respond in writing to a written request for access to government records within 2 OIP Op. Ltr. No. 06-07 By letters to BOE dated September 21 and September 28, 2006, Dr. Rizor sought a copy of the portion of the Minutes relating to the retention of Dr. Shon. In its response to Dr. Rizor dated October 5, 2006, BOE denied access to the Minutes, stating that "providing the [Minutes would be a violation of Dr. Shon's privacy rights." Dr. Rizor appealed BOE's decision to OIP. At OIP's request, BOE provided a copy of the Minutes for OIP's in camera review and its reasons for denying Requesters' access to the Minutes, arguing that "the information contained in the September 7, 2006, Board executive session minutes contains and concerns significant privacy interests with respect to Dr. Shon." BOE also asserted the attorney-client privilege protects portions of the Minutes from disclosure.5 DISCUSSION The UIPA generally mandates the disclosure of minutes of meetings of government boards. See Haw. Rev. Stat. § 92F-12(7) (Supp. 2005) (agency shall make available "[mlinutes of all agency meetings required to be public"). This mandate does not apply to the minutes of executive meetings that are properly closed to the public. See OIP Op. Ltr. No. 92-27 at 5 n.1. For executive meetings properly held under the Sunshine Law, a board may withhold minutes of these meetings from disclosure under the UIPA's frustration exception because disclosure would defeat the purpose of holding the meeting closed to the public in the first place. See Haw. Rev. Stat. § 92F-13(3) (1993) (UIPA does not require disclosure of"(glovernment records that, but their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function"). The Sunshine Law expressly recognizes that a board may withhold executive meeting minutes to avoid frustration of its ability to protect certain matters properly discussed in a closed meeting under the Sunshine Law. See Haw. Rev. Stat. § 92-9 (1993). However, the Sunshine Lav also clearly recognizes that, at a future point in time, the need to maintain the confidentiality of information contained in an executive meeting's minutes may end. See id. Specifically, the Sunshine Law a reasonable time not to exceed ten business days. See Haw. Admin. R. § 2-71-13 (1.999). 5 OIP interprets BOE's position to be that sections 92F-13(2), (3) and(4) support its withholding of the record. 011? reminds BOE that it must cite to at least one of the UIPA exceptions to deny access to a record that it maintains. OLP agrees that the Minutes include discussions between BOE and its attorney that fall within the attorney-client privilege and which are, therefore,protected from disclosure. Haw. Rev. Stat. §§ 92F-1.3(2), (3) and(4)(1.993). In advising BOE below regarding the specific information that it may withhold,OIP has included those attorney-client communications that it finds may be redacted. 3 OIP Op. Ltr. No. 06-07 provides that a board may withhold public access to the minutes of that executive meeting"so long as their publication would defeat the lawful purpose of the executive meeting, but no longer." Id. (Emphasis added). Thus, for an executive meeting convened to protect an employee's privacy interest, when and to the extent matters considered would no longer affect that person's privacy, the minutes or portions of the minutes reflecting those matters must be made available to the public. At issue in this opinion is an executive meeting BOE held for, among other things, the purpose of considering the evaluation of an employee "where consideration of matters affecting privacy [would] be involved[j" Haw. Rev. Stat. § 92-4 (1993); see Haw. Rev, Stat. § 92-5(a)(2) (Supp. 2005).6 Under this executive meeting purpose, when a request is made for the executive meeting minutes, a board must, at that time, determine whether disclosure of the specific matters recorded in the minutes would still affect the individual's privacy interests in that information. This requires the board to analyze at the time of the request: (1) whether a matter reported in the minutes is of the kind that affects the privacy of an individual; and (2) whether disclosure of all or certain portions of the minutes recording that matter would defeat the purpose of the closed meeting by revealing information that should or must remain confidential. See Op. Att'y Gen. No. 94-01 (1994) (opining on the extent to which individual board members may disclose `natters discussed and decided in a BOE executive meeting held under section 92-5(a)(2) to protect the privacy of candidates for appointment as the State's Superintendent of Education).? First, a matter reported in the minutes affects the privacy of an individual if it is one that would generally be protected under the UIPA. Id.a Second, a matter no longer affects the privacy of the individual where it has been made public or has been published. See Op. Att'y Gen. No. 94-01 at 7 (citing in Painting Industry of Hawaii Market Recovery Fund v. Alm, 69 Haw. 449, 746 P.2d 79 (1987)); Op. Att'y Gen. No. 6 Under the Sunshine Law, a board may hold a meeting closed to the public for certain purposes expressly set forth in the statute,including"[t]o consider the hire, evaluation, dismissal, or discipline of an officer or employee or of charges brought against the officer or employee, where consideration of matters affecting privacy will be involved; provided that if the individual concerned requests an open meeting, an open meeting shall be held . . .."). Haw. Rev. Stat. § 92-5(a)(2). 7 The Office of the Attorney General(the"Attorney Genera]") was charged with administration of the Sunshine Law from 1975 through 1998. 9 Because the Sunshine Law does not elaborate on what kinds of matters affect an individual's privacy, the Attorney General there opined that, under the rules of statutory construction, it is appropriate to look to the ITIPA for guidance in construing the phrase "matters affecting privacy[.]" Accordingly,matters protected would be those falling within section 92F-13(1), which protects information where disclosure would constitute a clearly unwarranted invasion of personal privacy. 4 OIP Op. Ltr. No. 06-07 86-19 (1986). In addition, an individual may at any point in time demand the disclosure of those portions of the minutes that affect his or her privacy. See Haw. Rev, Stat. § 92-5(a)(2) (individual may require that meeting under this section be open). In this case, OIP has reviewed the Minutes and generally finds the matters reported related to Dr. Shoe's evaluation and dismissal would be matters protected under the LIPA's privacy exception and, accordingly, BOE may withhold those portions of the Minutes. See Haw. Rev. Stat. § 92F-13(1) and -14(b)(4), (8) (Supp. 2005). However, OIP also finds that certain portions of the Minutes reflect matters no longer protected because they have been made public and because the public interest in disclosure of those matters outweighs Dr. Shon's privacy interests. Specifically, OIP finds that the motions made and the votes cast by individual members regarding Dr. Shon's dismissal are no longer protected. Disclosure, at this point, would generally not defeat the September 7 executive meeting's lawful purpose by disclosing matters affecting Dr. Shon's privacy in light of the fact that BOE's decision to terminate Dr. Shon has been made public. See Op. Att'y Gen. No. $8-19; OIP Op. Ltr. No. 03-07 (individual members'votes taken in an executive meeting may only be withheld so long as disclosure would defeat lawful purpose of meeting); Op. Att'y Gen. No. 94-01 (opining that, after appointment of superintendent of education and where all candidates' names had been published, individual member's disclosure of how he voted and certain reasons underlying his vote would not defeat the executive meeting•'s purpose of protecting the candidates'privacy). Although OIP recognizes that Dr. Shon may have a privacy interest in the actual vote recorded by individual member that is separate from his interest in the fact that his employment was terminated, OIP believes that the public's interest here in knowing how board members -- especially elected board members -- are performing their individual functions9 outweighs that privacy interest. See Haw. Rev. Stat. § 92F-14(a) ("Disclosure of a government record shall not constitute a clearly unwarranted invasion of personal privacy if the public interest in disclosure outweighs the privacy interest of the individual,"). OIP also finds that BOE's discussion relating to certain procedural issues and other matters unrelated to Dr. Shon must be disclosed as BOE has provided no reasonable basis to justify withholding that information. See Have. Rev. Stat. § 92F- 15(c) (1993) (agency bears burden of justifying nondisclosure). OIP, however, agrees 9 For the purpose of the balancing test under section 92F-13(1), the relevant public interest is the public interest in the disclosure of official information that sheds light on an agency's performance of its statutory purpose and the conduct of government officials, or which otherwise promotes governments) accountability. See OIP Op. Ltr. No. 06-04; seg generally State of Haw. Org.of Police Officers v. Soc'y of Prof 1.Journalists-Univ. of Haw. Chapter, 83 Haw. 378, 399-400, 927 R 2 386,407-08(1996). 5 OIP Op. Ltr. No. 06-07 with EOE that the remaining information in the Minutes comprising Dr. Shon's evaluation itself, including BOE's discussion and deliberations on Dr. Shon's retention, may be withheld. Absent publication of those matters or Dr. Shon's consent, 01P believes that Dr. Shon's significant privacy interests outweigh the public interest in disclosure as to those matters. Because of the upcoming general election on November 7, 2006, OIP directs that the portions of the Minutes that cannot be withheld, as discussed above, must be disclosed no later than the close of business on Wednesday, November 1, 2006.10 To assist BOE in understanding which specific portions of the Minutes OIP has determined are public and because of the short timeframe OIP has set for BOE to release the Minutes, OIP has redacted the portions of the Minutes that can be withheld and is providing BOE and its deputy attorney general with a copy of those redacted Minutes. It is OIP's determination that the !Minutes in the redacted form provided to BOE and its attorney cannot be withheld. RIGHT TO BRING SUIT By copy of this Decision to the agency, OIP hereby notifies the agency of its determination that the record be disclosed. Haw. Rev. Stat. § 92F-15.5(b) (1993) (If OIP's decision is to disclose, OIP shall notify agency of its decision "and the agency shall make the record available."). OIP also notifies Requester that Requester may appeal the agency's denial of access to the circuit court. See Haw. Rev. Stat. ¢§ 92F-15 and -15.5(a) (1993). This action must be brought within two years after the agency denial. If Requester prevails, the court will assess against the agency Requester's reasonable attorney's fees and costs incurred in the action. Haw. Rev. Stat. § 92F-15(d). If Requester to The primary purpose of both the UIPA and Sunshine Law is to open up governmental processes to public scrutiny and participation, Haw. Rev. Stat. § 92F-2 (1993); Haw. Rev. Stat. § 92-1 (1993). Among other things, the disclosure provided allows the public, in the case of an elected body such as BOE, to make informed choices when electing its officials. 6 OIP Op. Ltr. No. 06-07 decides to file a lawsuit, Requester must notify OIP in writing at the time the action is filed. Haw. Rev. Stat. § 92F-15.3 (Supp. 2005). OFFICE OF INFORMATION PRACTICES Leslie H. Kondo Cathy L. Takase Leah L. Takeuchi 7 OIP Op. Ur. No. 06-07 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 RI SUPPORT SERVICES ) (Agency Appeal) } Applicant-Appellant, ) DECLARATION OF TED H. S. HONG vs. ) WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING, COUNTY OF HAWAII, ) Appellees, ) and ) HEARING: SANDRA SONG, in her capacity as ) DATE: September 26, 2014 Hearing Officer; JEFFREY GOMES, ) TIME: 8:00 a.m. Intervenor; SIDNEY FUKE, Intervenor's ) JUDGE: The Hon. Ronald lbarra Representative; TERENCE YOSHIOKA, ) Intervenor's Representative, ) Intervenor-Appellees. } DECLARATION OF TED H. S. HONG STATE OF HAWAII ) SS. COUNTY OF HAWAII ) I, TED H. S. HONG, declares as follows: 1. I am the counsel for Applicant-Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES 2. I make this Declaration based on my personal knowledge and am competent to testify about the matters contained in this Declaration. 3. Appellant, Community Based Education Support Services ("CBESS") is a co- applicant in Special Permit Application No. 12-000138 to develop a K to 12 Charter School Campus with Dorm Facilities, Intergenerational Programs, a sustainable Agricultural Program and a Forestry/Conservation Program and related uses on approximately 70 acres of land situated in the State Land use Agricultural District located on both the southwest and northeast sides of Edita Street near its intersection with Kaumana Drive, South Hilo, Hawaii and further identified by Tax Map Key(3)2-5-006:141 4. That attached hereto as Exhibit"1" is a true and accurate copy of the Agenda for the Windward Planning Commission, County of Hawaii for May 1, 2014, and publicly available on the website for the Department of Planning, County of Hawaii. 5. That attached hereto as Exhibit "2" is a true and accurate copy of an advisory letter from the Office of Information Practices, dated October 30, 2006, in the above entitled case, and publicly available on the website for the Office of Information Practices, County of Hawaii. 6. 1 declare under penalty of perjury under the laws of the State of Hawaii, that the above is true and accurate. DATED: Hilo, Hawaii, September 15, 2014. r ED H. S. HONG 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO, 14-1-0223 RI SUPPORT SERVICES ) (Agency Appeal) ) Applicant-Appellant, ) CERTIFICATE OF SERVICE } vs. ) WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT } OF PLANNING, COUNTY OF HAWAII, ) } Appellees, ) and ) HEARING: SANDRA SONG, in her capacity as ) DATE: September 26, 2014 Hearing Officer; JEFFREY GOMES, ) TIME: 8:00 a.m. Intervenor; SIDNEY FUKE, Intervenor's ) JUDGE: The Hon. Ronald Ibarra Representative; TERENCE YOSHIOKA, ) Intervenor's Representative, ) Intervenor-Appellees. ) CERTIFICATE OF SERVICE I hereby certify that the foregoing document was duly served via U.S. Mail, postage prepaid, on the date indicated below, to the following: MARGARET K. MASUNAGA, ESQ. Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni St., Ste, 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and APPELLEE SANDRA SONG MICHAEL J. MATSUKAWA, ESQ. 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, HI 96740 Attorney for APPELLEE JEFFREY GOMES DATED: Hilo, Hawaii, September 15, 2014. -rfD H. S. HONG Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 r = FILED MOLLY A. STEBBINS 8639 Corporation Counsel MARGARET K. MASUNAGA 4568 �MELODY PARKER 4406 CLERK Deputies Corporation Counsel MRC�K115Eil �liIRD CIItCUl1 COURT Office of the Corporation Counsel STATE OF HAWAII 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Tel. No. (808) 961-8251 Fax No. (808) 961-8622 Email: mkmasuna a a co.hawaii.hi.us Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I, and Intervenor-Appellee SANDRA SONG, in her capacity as Hearing Officer IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAI`l COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, ORDER GRANTING APPELLEE VS. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, AND WINDWARD PLANNING COMMISSION, INTERVENOR-APPELLEE SANDRA COUNTY OF HAWAII; DEPARTMENT OF SONG'S MOTION TO DISMISS FILED PLANNING, COUNTY OF HAWAII, ON JULY 7, 2014 Appellees, Hearing held: and Date: August 19, 2014 Time: 8:30 a.m. SANDRA SONG, in her capacity as Hearing Judge: Honorable Ronald lbarra Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. No Trial Date Set ORDER GRANTING APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, AND INTERVENOR-APPELLEE SANDRA SONG'S MOTION TO DISMISS FILED ON JULY 7, 2014 Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, and Intervenor-Appellee SANDRA SONG's Motion to Dismiss came for hearing before the Honorable Ronald Ibarra on August 19, 2014. Present at the hearing were Deputy Corporation Counsel Margaret K. Masunaga on behalf of Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, and Intervenor-Appellee SANDRA SONG, in her capacity as Hearing Officer; Deputy Corporation Counsel Amy G_ Self on behalf of Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII; Ted H. S. Hong on behalf of Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES; Michael J. Matsukawa on behalf of Intervenor-Appel lee JEFFREY GOMES; Alan Okamoto on behalf of Intervenor-Appellees SIDNEY FUKE and TERENCE YOSHIOKA: and Deputy Attorney General Carter K. Siu, appearing by phone on behalf of Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL. The Court, having reviewed and considered the records and files of the instant case, having heard the oral arguments of the parties, and being otherwise fully apprised in the premises, finds that Intervenor-Appellee SANDRA SONG ("Song") did not have the authority to grant or deny the special permit application pursuant to Hawaii Revised Statutes ("HRS") Section 205-6(a). Song was not a party to the underlying action as defined by Hawaii Administrative Procedure Act, Section 91-1(3), HRS, and therefore, Song is not an Appellee as established by Rule 72(a) of the Hawaii Rules of Civil Procedure. Song's recommendation is solely a recommendation, not a ruling. Therefore, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, and Intervenor-Appellee SANDRA SONG's Motion to Dismiss is hereby GRANTED, and all claims against Song are DISMISSED. This document may be executed by the respective parties to this action in counterparts, each of which shall be deemed an original. All of such counterparts together shall constitute one and the same document, binding all the parties hereto, notwithstanding that all parties are not signatory to the same original or counterparts. Dated: Kealakekua, Hawaii, HONORABLE RONALD IBARRA JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: "Odid'A TED H. S. HONG Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU Deputy Attorney General Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AMY G. SELF Deputy Corporation Counsel Attorney for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII 2 IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, and Intervenor-Appellee SANDRA SONG's Motion to Dismiss is hereby GRANTED, and all claims against Song are DISMISSED. This document may be executed by the respective parties to this action in counterparts, each of which shall be deemed an original. All of such counterparts together shall constitute one and the same document, binding all the parties hereto, notwithstanding that all parties are not signatory to the same original or counterparts. Dated: Kealakekua, Hawaii, HONORABLE RONALD IBARRA JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: TED H. S. HONG Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IU Deputy Attomey General Attomey for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AMY G. SELF Deputy Corporation Counsel Attomey for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII 2 IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`l, and Intervenor-Appellee SANDRA SONG'S Motion to Dismiss is hereby GRANTED, and all claims against Song are DISMISSED. This document may be executed by the respective parties to this action in counterparts, each of which shall be deemed an original. All of such counterparts together shall constitute one and the same document, binding all the parties hereto, notwithstanding that all parties are not signatory to the same original or counterparts. Dated: Kealakekua, Hawaii, HONORABLE RONALD IBARRA JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: TED H. S. HONG Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU Deputy Attorney General Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL �1'1 '� AS Deputy Corporation Counsel Attorny for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWA141 2 ALAN M. OKAMOTO Attorney for Intervenors-Appellees SIDNEY FUKE and TERENCE YOSHIOKA MICHAEL J. MATSUKAWA Attorney for Intervenor-Appellee JEFFREY GOMES Community Based Education Support Services v. Windward Planning Commission, County of Hawaii, et al. - Civil No. 14-1-0223 Order Granting Appellee Windward Planning Commission, County of Hawaii. and Intervenor- Appellee Sandra Song's Motion to Dismiss Filed on July 7, 2014 3 ALAN M. OKAMOTO Attorney for Intervenors-Appellees SIDNEY FUKE and TERENCE YOSHIOKA MICHAEL J. MATSUKAWA Attorney for Intervenor-Appellee JEFFREY GOMES Community Based Education Support Services v. Windward Planning Commission, County of Hawaii, et al. • Civil No. 14-1-0223 Order Granting Appellee Windward Planning Commission, County of Hawaii, and Intervenor- Appellee Sandra Song's Motion to Dismiss Filed on July 7, 2014 3 �1 FILED MOLLY A. STEBBINS 8639 Corporation Counsel AM 11; 29 AMY G. SELF 7628 x �� JOSEPH K. KAMELAMELA 2493 L 14OCK C14EW,CLERK Deputies Corporation Counsel T�Mo C1RC11IT COURT Office of the Corporation Counsel STATE Of KAWA11 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Tel. No. (808) 961-8251 Fax No. (808) 961-8622 Email: asel gco.hawaii.hi.us kamela,co.hawaii.hi.us Attorneys for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAP I COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES, Applicant-Appellant, ORDER GRANTING APPELLEE DEPARTMENT OF PLANNING, vs. COUNTY OF HAWAI`I'S MOTION TO DISMISS FILED ON JUNE 27, 2014 WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, No Trial Date Set Intervenor-Appellees. ORDER GRANTING APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S MOTION TO DISMISS FILED ON JUNE 27 2014 Appellee Department of Planning, County of Hawai`i's Motion to Dismiss came on for hearing before the Honorable Ronald Ibarra on August 19, 2014. Present at the hearing were Deputy Corporation Counsel Amy G. Self on behalf of Appellee Department of Planning, County of Hawaii; Deputy Corporation Counsel Margaret K. Masunaga on behalf of Appellee Windward Planning Commission, County of Hawaii and Intervenor-Appellee Sandra Song, in her capacity as Hearing Officer; Ted H.S. Hong, Esq. on behalf of Applicant-Appellant Community Based Education Support Services; Michael Matsukawa, Esq. on behalf of Appellee Jeffery Gomes; Alan Okamoto, Esq. on behalf of Appellees Sidney Fuke and Terence T. Yoshioka and Deputy Attorney General Carter K. Siu, Esq. appeared by telephone on behalf of Applicant-Appellant Connections New Century Charter School. The Court, having reviewed and considered the records and files of the instant case, having heard the oral arguments of the parties, and being otherwise fully advised in the premises, finds that the Windward Planning Commission is the appropriate government agency to act as Appellee in this case and,therefore, the Planning Department is an improper Appellee as established by Hawaii Rules of Civil Procedure Rule 72(a). IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Appellee Department of Planning, County of Hawai`i's Motion to Dismiss is hereby GRANTED and all claims against the Department of Planning, County of Hawaii are DISMISSED. This document may be executed by the respective parties to this action in counterparts, each of which shal I be deemed an original. All of such counterparts together shall constitute one and the same document, binding all the parties hereto notwithstanding that all parties are not signatory to the same original or counterparts. 2 Dated: Kealakekua, Hawaii, HONORABLE RONALD IBARRA JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: TED H.S. HONG, ESQ. ALAN M. OKAMOTO, ESQ. Attorney for Applicant-Appellant Nakamoto, Okamoto & Yamamoto COMMUNITY BASED EDUCATION Attorney for Intervenors-Appellees SUPPORT SERVICES SIDNEY FUKE AND TERENCE T. YOSHIOKA CARTER K. SU, ESQ. MICHAEL J. MATSUKAWA, ESQ. Deputy Attorney General Attorney for Intervenor-Appellee Attorney for Applicant-Appellant JEFFREY COMES CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MARGARET K. MASUNAGA Deputy Corporation Counsel Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII AND Intervenor-AppeIIee SANDRA SONG, in her capacity as Hearings Officer Community Based Education Support Services v Windward Planning Commission, et al. Civil Ni. 14-1-0223 ORDER GRANTING APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S MOTION TO DISMISS FILED ON .TUNE 27, 2014 3 Dated: Kealakekua, Hawaii, HONORABLE RONALD IBARRA JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: TED H.S. HONG, ESQ. ALAN M. OKAMOTO, ESQ. Attorney for Applicant-Appellant Nakamoto, Okamoto & Yamamoto COMMUNITY BASED EDUCATION Attorney for Intervenors-Appellees SUPPORT SERVICES SIDNEY FUKE AND TERENCE T. YOSHIOKA CARTIMICSIU, ESQ. MICHAEL J. MATSUKAWA, ESQ. Deputy Attorney General Attorney for Intervenor-Appellee Attomey for Applicant-Appellant JEFFREY GOMES CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MARGARET K. MASUNAGA Deputy Corporation Counsel Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII AND Intervenor-Appellee SANDRA SONG, in her capacity as Hearings Officer Community Based Education Support Services vs. Windward Planning Commission, et aI. Civil No. 14-1-0223 ORDER GRANTING APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S MOTION TO DISMISS FILED ON JUNE 27, 2014 3 Dated: Kealakekua, Hawaii, HONORABLE RONALD IBARRA JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: TED H.S. HONG, ESQ. ALAN M. OKAMOTO, ESQ. Attorney for Applicant-Appellant Nakamoto, Okamoto & Yamamoto COMMUNITY BASED EDUCATION Attorney for Intervenors-Appellees SUPPORT SERVICES SIDNEY FUKE AND TERENCE T. YOSHIOKA CARTER K. SIU, ESQ. MICHAEL J. MATSUKAWA, ESQ. Deputy Attorney General Attorney for Intervenor-Appellee Attorney for Applicant-Appellant JEFFREY GOMES CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL A MARGT K. MASUNAGA Deputy Corporation Counsel Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'l AND [ntervenor-Appellee SANDRA SONG, in her capacity as Hearings Officer Community Based Education Support Services vs. Windward Planning Commission, et al. Civil No. 14-1-0223 ORDER GRANTING APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S MOTION TO DISMISS FILED ON JUNE 27, 2014 3 Dated: Kealakekua, Hawaii, HONORABLE RONALD IBARRA JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: ,�? joo�Caw o TED H.S. HONG, ESQ. ALAN M. OKAMOTO, ESQ. Attorney for Applicant-Appellant Nakamoto, Okamoto & Yamamoto COMMUNITY BASED EDUCATION Attorney for Intervenors-Appellees SUPPORT SERVICES SIDNEY FUKE AND TERENCE T. YOSHIOKA CARTER K. SIU, ESQ. MICHAEL J. MATSUKAWA, ESQ. Deputy Attorney General Attorney for Interyenor-Appellee Attorney for Applicant-Appellant JEFFREY GOMES CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MARGARET K. MASUNAGA Deputy Corporation Counsel Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`l AND Intervenor-Appellee SANDRA SONG, in her capacity as Hearings Officer Community Based Education Support Services vs. Windward PIanning Commission, et a]. Civil No. I4-1-0223 ORDER GRANTING APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S MOTION TO DISMISS FILED ON JUNE 27, 20I4 3 J Dated: Kealakekua, Hawaii, HONORABLE RONALD IBARRA JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: TED H.S. HONG, ESQ. ALAN M. OKAMOTO, ESQ. Attorney for Applicant-Appellant Nakamoto, Okamoto & Yamamoto COMMUNITY BASED EDUCATION Attorney for Intervenors-Appellees SUPPORT SERVICES SIDNEY FUKE AND TERENCE T. YOSHIOKA CARTER K. SIU, ESQ. MIC L J. MATSUKAWA, ESQ. Deputy Attorney General Attorney for Intervenor-Appellee Attorney for Applicant-Appellant JEFFREY GOMES CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MARGARET K. MASUNAGA Deputy Corporation Counsel Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII AND Intervenor-Appellee SANDRA SONG, in her capacity as Hearings Officer Community Based Education Support Services vs. Windward Planning Commission, et al. Civil No. 14-1-0223 ORDER GRANTING APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAI`I'S MOTION TO DISMISS FILED ON JUNE 27, 2014 3 FILED NAKAMOTO, OKAMOTO &YAMAMOTO ATTORNEYS AT LAW A LAW CORPORATION 21*9P 22 AN 11: 31 ALAN M. OKAMOTO #1826 A� (�7_ 187 Kapiolani Street MOCK CREW.CLERK Hilo, Hawaii 96720 HSTTATRD CIRCUIT �1F HAWA�� Telephone: (808) 961-0641 Attorney for APPELLEES SIDNEY FUKE and TERENCE T. YOSHIOKA IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S vs. MOTION FOR SUMMARY JUDGMENT WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Date: August 19, 2014 Time: 8:30 a.m. Appellees, Judge: Honorable Ronald Ibarra vs. SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE T. YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. ORDER GRANTING APPELLEES SIDNEY FUKE AND TERRANCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 1 Appellees Sidney Fuke and Terence T. Yoshioka's Motion for Summary Judgment filed on July 28, 2014 was heard by Judge Ronald fbarra on August 19, 2014 at 8:30am. Appearing at the hearing were attorneys Alan M. Okamoto for movants Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA, Ted H. S. Hong for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES, Deputy Corporation Counsel Margaret Masunaga for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and SANDRA SONG, Deputy Corporation Counsel Amy Self for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII, and Michael Matsukawa for Appellee JEFFREY GOMES. Deputy Attorney General Carter Siu for Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL participated by telephone conference. The Court having considered Appellees Sidney Fuke and Terence T. Yoshioka's Motion for Summary Judgment, the Affidavits attached thereto in support of said Motion, the Memorandum in Support of said Motion, the responses of other parties in this appeal, the pleadings, files and records in this appeal, the oral arguments of counsel, the Court hereby finds that there is no genuine issue of material fact pertinent and this Motion and that Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA are entitled to Judgment as a matter of law against Appellants COMMUNITY BASED EDUCATION SUPPORT SERVICES and CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL. The Court further finds that pursuant to Rule 54{b} Hawaii Rules of Civil Procedure, there is no just reason for delay in entering Judgment dismissing Appellees 2 SIDNEY FUKE and TERENCE T. YOSHIOKA from this appeal since Appellants have failed to state a claim upon which relief can be granted against said Appellees. IT IS HEREBY ORDERED that: 1. The Appellees Sidney Fuke and Terence T. Yoshioka's Motion for Summary Judgment is granted. 2. Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA are dismissed as parties in this appeal and their names shall be removed from the caption of this case. 3. Any and all claims made against Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA are hereby dismissed. 4. The Order shall be binding upon all of the parties to this appeal who were represented by counsel in the August 19, 2014 hearing. 5. Judgment shall be entered accordingly. 6. This Order may be signed in counterparts by the parties as to their approval as to form and combined together as one. DA ekua Hawaii, TED: Kealak , Ha a , r JUDGE OF THE ABOVE-ENTITLED COURT In the Matter of Community Based Education Su ort Services v. Windward Plannin Commission County of Hawaii et al. Civil No. 14-1-0223; ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 3 Approved as to form: TED H.S. HONG Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES Approved as to form: C TE k K. SIU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL Approved as to form, MARGARET MASUNAGA Attorney for Appellees WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; and SANDRA SONG Approved as to form: AMY SELF Attorney for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII In the Matter of Community Based Education Support Services v. Windward Planning Commission, County of Hawaii, et al., Civil No. 14-1-0223; ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 4 Approved as to form: TED H.S. HONG Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES Approved as to form: CARTER K. SIU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL Approved as to form: MARGARET MASUNAGA Attorney for Appellees WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; and SANDRA SONG Approved as to form: AMY SELF Attorney for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII In the Matter of Community Based Education Support Services v. Windward Planning Commission Coun of Hawaii et al. Civil No. 14-1-0223; ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 4 Approved as to form: TED H.S. HONG Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES Approved as to form: CARTER K. SIU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL Approved as to form: MARGARET MASUNAGA Attorney for Appellees WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; and SANDRA SONG Approved as to form: /11,1 0 1 )q--1-1 S VL V Artorney for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII In the Matter of Community Based Education Support Services v. Windward Planning Commission, County of Hawaii, et al., Civil No. 14-1-0223; ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 4 Approved as to form: A MICHAEL MATSU A Attorney for Appellee JEFFREY GOMES In the Matter of Community Based Education Support Services v. Windward Planning Commission, County of Hawaii, et al., Civil No. 14-1-0223; ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 5 li FILED NAKAMOTO, OKAMOTO & YAMAMOTO ATTORNEYS AT LAW A LAW CORPORATION RAMP2Z WON ALAN M. OKAMOTO #1826 t__-e 187 Kapiolani StreetK CHEW.CLE Hilo, Hawaii 95720 6 Rf CIRCUIT COUR STATE OF HAWAII Telephone: (808) 951-0541 Attorney for APPELLEES SIDNEY FUKE and TERENCE T. YOSHIOKA IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, JUDGMENT PURSUANT TO ORDER GRANTING APPELLEES SIDNEY FUKE vs. AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Date: August 19, 2014 Appellees, Time: 8:30 a.m. Judge: Honorable Ronald Ibarra VS. SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FLKE, Intervenor's Representative; TERENCE T. YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. JUDGMENT PURSUANT TO ORDER GRANTING APPELLEES SIDNEY FUKE AND TERRANCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 1 The Court having granted the Appellees Sidney Fuke and Terence T. Yoshioka's Motion for Summary Judgment filed on July 28, 2014 by the Court's Order Granting Appellees Sidney Fuke and Terence T. Yoshioka's Motion for Summary Judgment on 1//K//y 6�'a ) , 2014 and having directed that since there is no just reason for delay in entering Final Judgment under Rule 54(b), Hawaii Rules of Civil Procedure. IT IS HEREBY ORDERED, ADJUDGE AND DECREED that: 1. Judgment is entered in favor of Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA and against Appellants COMMUNITY BASED EDUCATION SUPPORT SERVICES and CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL. 2, This Judgment disposes of all of the claims in this appeal involving Appellees SIDNEY FUKE and TERENCE T. YOSHIOKA. 3. Final Judgment is entered under rule 54(b), Hawaii Rules of Civil Procedures. 4. This Judgment may be signed in counterparts by the parties as to their approval as to form and combined together 7p� ' DATED: Kealakekua, Hawaii, JUD THE ABOVE-ENTITLED COURT In the Matter of Community Based Education Support Servicesy. Windward Planning Commission, County of Hawaii, et al., Civil No. 14-1-0223; JUDGMENT PURSUANT TO ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 2 Approved as to form: TED H.S. HONG Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES Approved as to form: CA E IU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL Approved as to form: MARGARET MASUNAGA Attorney for Appellees WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; and SANDRA SONG Approved as to form: AMY SELF Attorney for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII In the Matter of Community Based Education Support Services v. Windward Planning Commission, County of Hawaii, et at.,Civil No. 14-1-0223; JUDGMENT PURSUANT TO ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 3 Approved as to form: TED H.S. HONG Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES Approved as to form: CARTER K. SIU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL Approved as to form: MARGAREI MASUNAGA Attorney for Appellees WINDWARD PLANNING COMMISSION. COUNTY OF HAWAII; and SANDRA SONG Approved as to form: AMY SELF Attorney for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII In the Matter of Community Based Education Support Servicesy. Windward Planning Commission, County of Hawaii, et al., Civil No. 14-1-0223; JUDGMENT PURSUANT TO ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 3 Approved as to form: TED H.S. HONG Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES Approved as to form: CARTER K. SIU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL Approved as to form: MARGARET MASUNAGA Attorney for Appellees WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; and SANDRA SONG Appr ved as to form: 1 AM SELF Att rney for Appellee DE ARTMENT OF PLA G, COUNTY OF HAWAII In the Matter of Community Based Education Support Services v. Windward Planning Commission, County of Hawaii, et al.,Civil No. 14-1-0223; JUDGMENT PURSUANT TO ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSMOKA'S MOTION FOR SUMMARY JUDGMENT 3 Approved as to form: MICHAEL MATSUKAWA Attorney for Appellee JEFFREY GOMES In the Matter of Community Based Education Support Services v. Windward Planning Commission, County of Hawaii, et al., Civil No. 14-1-0223; JUDGMENT PURSUANT TO ORDER GRANTING APPELLEES SIDNEY FUKE AND TERENCE T. YOSHIOKA'S MOTION FOR SUMMARY JUDGMENT 4 FILED MOLLY A. STEBBINS 8639 Corporation Counsel 2014PM 2. 13 LAUREEN L. MARTIN 5927 Assistant Corporation Counsel MARGARET K. MASUNAGA 4568 L-K1 ,"", = A, c SK MELODY PARKER 4406 THIRD CIRCUIT COURT STATE GF IIAWAII Deputies Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Tel. No. (808) 961-8251 Fax No. (808) 961-8622 Email: mkmasunagaghawaiicounty. ov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 RI SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII'S vs. REPLY TO APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' WINDWARD PLANNING COMMISSION, MEMORANDUM IN OPPOSITION TO COUNTY OF HAWAII, APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`I'S Appellee, MOTION TO QUASH OR CORRECT THE ORDER FOR CERTIFICATION AND and TRANSMISSION OF RECORD ON APPEAL AS TO TAPE RECORDINGS AND JEFFREY GOMES, TRANSCRIPTS OF ALL EXECUTIVE SESSION HEARINGS AND MEETINGS Intervenor-Appellee. DATED JUNE 9, 2014, FILED SEPTEMBER 15, 2014; CERTIFICATE OF SERVICE HEARING: Date: September 26, 2014 Time: 8:00 a.m. Judge: Honorable Ronald Ibarra No Trial Date Set i 4� APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`I'S REPLY TO APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' MEMORANDUM IN OPPOSITION TO APPELLEE WINDWARD PLANNING COMMISSION COUNTY OF HAWAI`I'S MOTION TO QUASH OR CORRECT THE ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL AS TO TAPE RECORDINGS AND TRANSCRIPTS OF ALL EXECUTIVE SESSION HEARINGS AND MEETINGS DATED JUNE 9, 2014, FILED SEPTEMBER 15, 2014 Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII (hereinafter "Planning Commission"), by and through its undersigned counsel, hereby replies to Applicant-Appellant's Community Based Education Support Services' ("CBESS") Memorandum in Opposition to Planning Commission's Motion to Quash or Correct the Order for Certification and Transmission of Record on Appeal as to Tape Recordings and Transcript of All Executive Session Hearings and Meetings dated June 9, 2014, filed September 15, 2014. On June 9, 2014, CBESS filed a"Notice of Appeal to Circuit Court; Statement of the Case; Exhibits "1,"—"2;" Designation of Contents of Record on Appeal; Order for Certification and Transmission of Record on Appeal; Certificate of Service". The Order for Certification and Transmission of Record on Appeal included "transcripts of all hearings and meetings (public and executive session)" (hereinafter referred to as "Order"). On July 7, 2014, this Court granted the Planning Commission an extension of time to file the record on appeal, up to and including July 31, 2014. On July 11, 2014, the Planning Commission filed a Motion to Quash and the hearing date was continued at the request of CBESS and by stipulation from July 29, 2014 to September 26, 2014. The Planning Commission respectfully requests that this Honorable Court issue an Amended Order for Certification and Transmission of Record on Appeal and delete the word "and executive" in the parenthesis. 2 The Planning Commission is subject to the "Sunshine Law" which is Part I of Chapter 92, Hawaii Revised Statutes ("HRS"), as a County agency. In the instant case, the Planning Commission consulted with its attorney on questions and issues relating to its powers, duties, immunities and liabilities after the Commissioners voted by a two-thirds vote to go into an executive meeting pursuant to Sections 92-4 and 92-5(a)(4), HRS. The Sunshine Law allows the Planning Commission to hold a session closed to the public and withhold its transcripts of the executive session meeting. Sections 92-4, 92-5(a)(4), HRS. Any transcripts of the Planning Commission's executive session are not required to be disclosed under Section 92-5(a)(4), HRS, exception under the Sunshine Law. Section 92-9, HRS, provides that a board shall keep written minutes of all meetings that shall be public records except where such a disclosure would be inconsistent with Section 92-5; provided that minutes of executive meetings may be withheld so long as their publication would defeat the lawful purpose of the executive meeting. The attorney-client privilege doctrine is codified in Section 92-5(a), HRS, which allows a board to hold an executive meeting closed to the public in order to consult with its attorney on questions and issues pertaining to the board's powers, duties,privileges, immunities and liabilities and deliberate, or make a decision on a matter that requires the consideration of information that must be kept confidential pursuant to a state law. In County of Kauai v. Office of Information Practices, State of Hawaii, 120 Hawaii 34, 200 P.3d 403 (Ct. App. 2009), the Intermediate Court of Appeals of Hawaii (Chief Judge Recktenwald, Judge Foley and Judge Leonard), agreed with Fifth Circuit Court Judge George Masuoka that public agency meetings can be closed pursuant to HRS Section 92-5, and that because the minutes of the executive session originated from a discussion in a closed meeting regarding matters privileged under HRS Section 92-5(a)(4) and the disclosure of the transcribed 3 minutes would be inconsistent with HRS Section 92-5, the statutory scheme of Chapter 92 controls. Further, the Court agreed there are compelling reasons for respecting and preserving the attorney-client privilege afforded to public agencies. Hui Malama Aina O Ko'olau v. Pacarro, 4 Haw.App. 304, 666 P.2d 177 (1983). The proper standard that applies in this case is whether there was an abuse of discretion by the Planning Commission. The Planning Commission in the instant case requests this Honorable Court finds the Planning Commission does not have to disclose the executive sessions of January 10, 2013, March 7, 2013 and May 1, 2014, and the Planning Commission does not have to provide transcripts of its executive sessions herein stated. The attorney-client privilege protects communications concerning ongoing or future litigation. The instant case is ongoing litigation in the form of an agency appeal. The need for confidentiality continues. Based on the foregoing, the Planning Commission respectfully requests that this Honorable Court issue an Amended Order for Certification and Transmission of Record on Appeal, and delete the word "and executive" in the parenthesis. Dated: Kailua-Kona, Hawaii, September 23, 2014. Respectfully submitted, By 1 ti V► lT MARG T K. MASUNAG Deputy Corporation Counsel Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII 4 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 RI SUPPORT SERVICES (Agency Appeal) Applicant-AppelIant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, Appellee, and JEFFREY GOMES, Intervenor-Appellee. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 23, 2014, a copy of the foregoing document was served upon the following in the manner indicated below: Hand Delivery Mail Email (X) TED H.S. HONG, ESQ. P. 0. Box 4217 Hilo, Hawaii 96720 Email: tedgtedhonglaw.com Attorney for COMMUNITY BASED EDUCATION SUPPORT SERVICES Hand Delivery Mail Email CARTER K. SIU N Deputy Attorney General State of Hawaii 235 S. Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant CONNECTIONS NEW CENTURY CHARTER SCHOOL MICHAEL J. MATSUKAWA, ESQ. N Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES Dated: Kailua-Kona, Hawaii, September 23, 2014, MARGARtT K. MASUNAGA Deputy Corporation Counsel County of Hawaii 2 FILED CITCTHIRD�RCUIT HE MOLLY A. STEBBINS 8639 STATE OF HAWAII Corporation Counsel 2014 SP 24 FM ?I AMY G. SELF 7628 JOSEPH K. KAMELAMELA 2493 Deputies Corporation Counsel Office of the Corporation Counsel CLERK S. HURZAHAKA County of Hawaii Hilo Lagoon Centre 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: 961-8251 Facsimile: 961-8622 E-mail: Aniv.Self�U,hawaiicowit )ov Joseph.K melamela'u,hawaiicounty.gov Attorneys for Appellee DEPARTMENT OF PLANNING, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE, OF HAWAI'1 COMMUNITY BASED EDUCATION Civil No. 14-I-0223 SUPPORT SERVICES, Applicant-Appellant, CERTIFICATE OF SERVICE: vs. [ RE: ORDER GRANTING APPF,LLEF DEPARTMENT OF PLANNING, COUNTY WINDWARD PLANNING COMMISSION, OF HAWAI`I'S MOTION TO DISMISS FILED COUNTY OF HAWAII; DEPARTMENT ON JUNE 27, 2014, FILED SEPTEMBER 22. OF PLANNING, COUNTY OF HAWAII, 20I4] Appellees, And SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA. Intervenor's Representative, Intervenor-Appellees. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a filed copy of the ORDER GRANTING APPELLEE DEPARTMENT OF PLAANING, COUNTY OF HAWAII:S MOTION TO DI,SMIS:S FILLD ONJUNE 27, 2014, FILED SEPTEMBER 22, 2014 was served upon on the following, on September 24, 2014, as follows: Hand Delivery Mail Email {X) TED H.S. HONG, ESQ. Hilo Lagoon Centre 101 Aupum Street, PH 1002A Hilo, Hawaii 96720 Email: ted(a4edhonglaw.corn Attorney for COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. (X) Deputy Attorney General State of Hawaii 235 South Berctania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MARGARET K. MASUNAGA (X) Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and SANDRA SONG, in her capacity as Hearing Officer MICHAEL J. MATSUKAWA, ESQ. (X) Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawai"i 96740 Attornev for Intervenor-Appellee JEFFREY GOMES 2 Hand Delivery Mail Email ALAN M. OKAMOTO, ESQ. N Nakamoto, Okamoto & Yamamoto 187 Kapi`olani Street Hilo, Hawaii 96720 Attorney for Intervenors-Appellees SIDNEY FUKE AND TERENCE YOSHIOKA Dated: Hilo, Hawaii. September 24, 2014. JOSEPH ELAMELA Deputy Corporation Counsel County of Hawaii 3 ' • a r h - FILED TED H.S. HONG,#3569 Attorney At Law 101 Aupuni Street, PH 1002A 2014 SEP 25 PM 1? 59 P.O. Box 4217 Hilo, Hawaii 96720 Telephone: 808-933-19I9 TH1RD IT C RT Facsimile: 808-935-8281 STATE= OF 11AWA11 Ted(cr�,Tedhonglaw.com Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, APPELLANT'S EX PARTE MOTION TO EXTEND TIME TO FILE OPENING BRIEF; vs. DECLARATION OF TED H. S. HONG; ORDER GRANTING APPELLANT'S EX WINDWARD PLANNING COMMISSION, PARTE MOTION TO EXTEND TIME TO FILE COUNTY OF HAWAII; DEPARTMENT OF OPENING BRIEF; CERTIFICATE OF PLANNING, COUNTY OF HAWAII, SERVICE vs. and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Judge: Honorable Ronald Ibarra Intervenor-Appe[lees, APPELLANT'S EX PARTE MOTION TO EXTEND TIME TO FILE OPENING BRIEF COMES NOW Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES (CBESS), (hereinafter referred to as "Appellant"), by and through its undersigned I y counsel and hereby requests this Honorable Court for an Order approving Appellant's Ex Parte Motion to Extend Time to File Opening Brief. Appellant respectfully requests the Court enter an Order granting Appellant an additional 20 days, extending the deadline to file its opening brief to October 24, 2014. This motion is brought pursuant to Rules b, 7, 72, and 81 of the Hawaii Rules of Civil Procedure (hereinafter referred to as "HRCP"), and is based on the attached Declaration of Counsel. I� DATED; Hilo, Hawaii, September , 2014. 2-,a9ll� �Q /J,� TED H. S. HONG 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, vs. DECLARATION OF TED H. S. HONG WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, vs. and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees, DECLARATION OF TED H. S. HONG I, TED H. S. HONG, hereby declare under penalty of perjury that the following is true and correct to the best of my knowledge: 1. I am a member in good standing of the Bar of the State of Hawaii. I am admitted to practice before, among other courts, the United States District Court of the District of Hawaii. 2. I make this Declaration in support of the Ex Parte Motion to Extend Time to file Opening Brief. 1 3. Appellants timely filed its appeal Notice of Appeal to Circuit Court; Statement of the Case; Exhibits "1"-"2"; Designation of Contents of Record on Appeal; Order for Certification and Transmission of Record on Appeal on June 9, 2014. 4. The Record on Appeal was transmitted to the Third Circuit Court on August 25, 2014. 5. Appellant has not previously requested any extension of time to file its brief, and good cause exists for the requested extension. 6. Counsel would need additional time to review records currently withheld by Appellee Windward Planning Commission, County of Hawaii, pending the outcome of Appellee Windward Planning Commission, County of Hawaii's Motion to Quash or Correct the Order for Certification and Transmission of Record on Appeal as to Tape Recordings and Transcripts of all Executive Session Hearings and Meetings dated June 9, 2014, filed on July 11, 2014, which motion is set for hearing before this Court on September 26, 2014. 7. A twenty (20) day extension of time would provide counsel sufficient time to review the records currently withheld and effectively prepare and file the opening brief which is due on October 4, 2014. 8. This request for an extension is made in good faith and not for purposes of delay. 9. An extension of time as requested herein will not cause any prejudice to the parties herein, nor will it delay proceedings. 10. I declare under penalty of perjury under the laws of the State of Hawaii that the foregoing is true and correct to the best of my knowledge and belief. 2 r DATED: Hilo, Hawaii, September j 5 , 2014. 21f . S. HONG 3 TED H.S. HONG, #3569 Attorney At Law 101 Aupuni Street, PH 1002A P.O. Box 4217 Hilo,Hawaii 96720 Telephone: 808-933-1919 Facsimile: 808-935-8281 Ted cr,Tedhonglaw.com Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, vs. ORDER GRANTING APPELLANT'S EX PARTE MOTION TO EXTEND TIME TO WINDWARD PLANNING COMMISSION, FILE OPENING BRIEF COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, vs. and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees, ORDER GRANTING APPELLANT'S EXPARTE MOTION TO EXTEND TIME TO FILE OPENING BRIEF The Court, having reviewed Appellant's Ex Parte Motion to Extend Time to File Opening Brief(Motion), the records and files herein, finds that there appears to be good cause for granting the Motion; Now, therefor, IT IS HEREBY ORDERED, AJUDGED, AND DECREED that Appellant's Ex Parte Motion to Extend Time to File Opening Brief is GRANTED. The deadline for Appellant to file its Opening brief has been extended from Octob r 4, 2014 to October 24, 2014. KEALAKEKUA DATIP0Miivaii, / Judge ToRr theAbove-Entitled Court In the Circuit Court of the Third Circuit, Kona Division; Community Based Education Support Services (CBESS) vs. Windard Planning Commission, County of Hawaii; Department of Planning, County of Hawaii, vs. and Sandra Song, in her capacity as Hearing Officer, Jeffrey Gomes, Intervenor; Sidney Fuke, Intervenor's Representative; Terence Yoshioka, Intervenor's Representative; ORDER GRANTING APPELLANT'S EXPARTE MOTION TO EXTEND TIME TO FILE OPENING BRIEF 2 TED H.S. HONG, #3569 Attorney At Law 101 Aupuni Street,PH 1002A P.Q. Box 4217 Hilo, Hawaii 96720 Telephone: 808-933-1919 Facsimile: 808-935-8281 TedgTedhonglaw.com Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, CERTIFICATE OF SERVICE VS. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, VS. and Judge: Honorable Ronald Ibarra SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees, CERTIFICATE OF SERVICE I hereby certify that the foregoing document was duly served via U.S. Mail, postage prepaid, on the date indicated below, to the following parties: 1 MARGARET K. MASUNAGA, ESQ. Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, HI 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and APPELLEE SANDRA SONG MICHAEL J. MATSUKAWA, ESQ. 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, HI 96740 Attorney for Appellee JEFFREY GOMES Dated: Hilo, Hawaii, September 15,20t4. ED H. S. HO9G Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 F!LEtb CIRCUIT COWff OF THE IHirW CIRCUM, MOLLY A. STEBBINS 8639 STATE OF HAWAII Corporation Counsel 2014 SD 25 rM ?1 23 MARGARET K. MASUNAGA 4568 MELODY PARKER 4406 Deputies Corporation Counsel CLEM S.MURANAKA Office of the Corporation Counsel I0I Aupuni Street, Suite 325 Hilo, Hawaii 96720 TeI, No. (808) 96I-825I Fax No. (808) 961-8622 Email: margaret.masunagad,,hawaiicounty_ Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, and Intervenor-Appellee SANDRA SONG, in her capacity as Hearing Officer IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. I4-1-0223 SUPPORT SERVICES, Applicant-AppeIIant, CERTIFICATE OF SERVICE vs. [RE: ORDER GRANTING APPELLEE WINDWARD PLANNING COMMISSION. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`1, AND INTERVFNOR- COUNTY OF HAWAII; DEPARTMENT APPELLEE SANDRA SONG'S MOTION TO OF PLANNING, COUNTY OF HAWAII, DISMISS FILED ON JULY 7, 2014, FILED SEPTEMBER 22, 20141 Appellees, And SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a filed copy of the ORDER GRANTING APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HA WAI'I, AND INTER VENOR- APPELLEE SANDRA SONG'S MOTION TO DISMISS FILED ON.IULY 7, 2014, FILED SEPTEMBER 22, 2014 was served upon on the following, on September 25, 2014, as follows: Hand Delivery Mail Email N TED H.S. HONG, ESQ. Hilo Lagoon Centre 101 Aupuni Street, PH I002A Hilo, Hawaii 96720 Email: tedi}tedhong,law.com Attorney for COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. N Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL, AMY G. SELF N Deputy Corporation Counsel Office of the Corporation Counsel I01 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee DEPARTMENT OF PLANNING. COUNTY OF HAWAII MICHAEL J. MATSUKAWA, ESQ. N Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES 2 Hand Delivery Mail Email ALAN M. OKAMOTO, ESQ. N Nakamoto, Okamoto & Yamamoto 187 Kapi'olani Street Hilo, Hawaii 96720 Attorney for Intervenors-Appellees SIDNEY FUKE AND TERENCE YOSHIOKA Dated: Hilo, Hawaii, September 25, 2014. YV � MARG ET K. MASUNAGA Deputy Corporation Counsel County of Hawaii FILED IFUllx�tZD y� 'NAKAMOTO, OKAMOTO & YAMAMOTO IE OFhAlC ATTORNEYS AT LAW An A LAW CORPORATION 2114 SM 26 PR 10 ALAN M. OKAMOTO #1826 187 Kapiolani Street S. M URANAKA Hilo, Hawaii 96720 CLQ Telephone: (808) 961-0641 Attorney for APPELLEES SIDNEY FUKE and TERENCE T. YOSHIOKA IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, CERTIFICATE OF SERVICE vs. (Re: Order Granting Appellees Sidney Fuke and Terence T. Yoshioka's Motion for WINDWARD PLANNING Summary Judgment and Judgment Pursuant COMMISSION, COUNTY OF HAWAII; to Order Granting Appellees Sidney Fuke and DEPARTMENT OF PLANNING, Terence T. Yoshioka's Motion for Summary COUNTY OF HAWAII, Judgment) Appellees, vs. SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE T. YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. CERTIFICATE OF SERVICE I hereby certify that a filed copy of the Order Granting Appellees Sidney Fuke and Terence T. Yoshioka's Motion for Summary Judgment and Judgment Pursuant to 1 Order Granting Appellees Sidney Fuke and Terence T. Yoshioka 's Motion for Summary Judgment were served on the following by depositing the same with the U.S. Postal Service, postage prepaid, on September 26, 2014: Ted H.S. Hong, Esq. David M. Louie, Esq. P.O. Box 4217 Carter K. Siu, Esq. Hilo, HI 96720 Deputy Attorney General 235 S. Beretania Street, Room 304 Attorney for Applicant-Appellant Honolulu, HI 96813 COMMUNITY BASED EDUATION SUPPORT SERVICES Attorney for Applicant-Appellant CONNECTIONS NEW CENTUREY CHARTER SCHOOL Margaret Masunaga, Esq. Amy Self, Esq. Laureen Martin, Esq. Deputy Corporation Counsel Deputies Corporation Counsel 101 Aupuni Street, Suite 325 101 Aupuni Street, Suite 325 Hilo, HI 96720 Hilo, HI 96720 Attorney for Appellee Attorney for Appellees DEPARTMENT OF PLANNING, WINDWARD PLANNING COUNTY OF HAWAII COMMISSION, COUNTY OF HAWAII; and SANDRA SONG Michael Matsukawa, Esq. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, HI 96740 Attorney for Appellee JEFFREY GOMES DATED: Hilo, Hawaii, September 26, 2014. ALAN M. OKAMOTO 2 t FILED cc: Margaret Masunaga, Esq. Ted Hong, Esq. 201%SEP 30 PM 1: 21 Michael Matsukawa, Esq. L,MOCK CHEW,CLERK IN THE CIRCUIT COURT OF THE THIRD CIRCUIT THIRD CIRCUIT COURT STATE OF HAWAII STATE OF HAWAII COMMUNITY BASED EDUCATION ) Civil No. 14-1-223 SUPPORT SERVICES, ) ORDER GRANTING IN PART APPELLEE WINDWARD PLANNING Applicant-Appellant, ) COMMISSION, COUNTY OF HAWAITS MOTION TO QUASH OR CORRECT VS. ) THE ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD WINDWARD PLANNING COMMISSION, ) ON APPEAL AS TO TAPE COUNTY OF HAWAII, ) RECORDINGS AND TRANSCRIPTS OF ALL EXECUTIVE SESSION Appellee, ) HEARINGS AND MEETINGS DATED JUNE 9, 2014 and ) JEFFREY GOMES, ) JUDGE: Hon. Ronald Ibarra Intervenor-Appellee. ) ORDER GRANTING IN PART APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAITS MOTION TO QUASH OR CORRECT THE ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD ON APPEAL AS TO TAPE RECORDINGS AND TRANSCRIPTS OF ALL EXECUTIVE SESSION HEARINGS AND MEETINGS DATED JUNE 9, 2014 On September 26, 2014 the Court held a hearing on Appellee Windward Planning Commission, County of HawaiTs Motion to Quash or Correct the Order for Certification and Transmission of Record on Appeal as to Tape Recordings and Transcripts of All Executive Session Hearings and Meetings Dated June 9, 2014. A telephonic appearance was made by Ted Hong, Esq. for Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES. Appearances were made in person by 1 Margaret Masunaga, Esq. for Appellee, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, and Michael Matsukawa, Esq. for Intervenor-Appellee JEFFREY GOMES. The Court having considered Appellee Windward Planning Commission, County of HawaiTs Motion to Quash or Correct the Order for Certification and Transmission of Record on Appeal as to Tape Recordings and Transcripts of All Executive Session Hearings and Meetings Dated June 9, 2014, which was filed July 11, 2014; Appellee- Intervenor Jeffrey K. Gomes' Statement of Non-Opposition to Appellee Windward Commission's Motion, which was filed July 23, 2014; Appellant Community Based Education Support Services' Memorandum in Opposition to the Motion, which was filed September 15, 2014; Appellees Windward Planning Commission, County of HawaiTs reply, which was filed September 23, 2014; supporting memorandum and declarations; all subsequent filings relating to the motion; all supplemental filings relating to the motion, having reviewed the file of Civil No. 14-1-223, having considered the arguments and statements of counsel at the September 26, 2014 hearing, and based on the record and files herein. IT IS HEREBY ORDERED, ADJUDGED AND DECREED: 1) The Order for Certification and Transmission of Record on Appeal, filed herein on June 9, 2014, is modified as follows: a. The words "and executive sessions" are deleted from Page 2, Line 2 of the order. b. Page 2, Line 2 shall now read, "recordings and transcripts of all hearings and meetings (public) in which". 2 J 2) The recordings and transcripts of the executive meetings for which the Appellant seeks to assert the attorney-client privilege shall be transmitted to the Court, within 30 days from the file date of this Order, for in camera review and determination of whether the attorney-client privilege applies. DATED: Kealakekua, Hawai'i; �f The Honorable Ronald lbarra 3 PLED TED H.S. HONG, #3569 Attorney At Law 101 Aupuni Street, PH 1002A 09 P.O. Box 4217 Hilo, Hawaii 96720 E..I�1TkOKA,CLFRK Telephone: 808-933-1919 Tyf CIRCUIT COURT Facsimile: 808-935-8281 STATE CF 1fAWAII TedgTedhonglaw.com Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, APPELLANT'S SECOND EX PARTE MOTION TO EXTEND TIME TO FILE OPENING VS. BRIEF; DECLARATION OF TED H. S. HONG; ORDER GRANTING APPELLANT'S SECOND WINDWARD PLANNING COMMISSION, EXPARTE MOTION TO EXTEND TIME TO COUNTY OF HAWAII; DEPARTMENT OF FILE OPENING BRIEF; CERTIFICATE OF PLANNING, COUNTY OF HAWAII, SERVICE VS. and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Judge: Honorable Ronald Ibarra Intervenor-Appellees, APPELLANT'S SECOND EX PARTE MOTION TO EXTEND TIME TO FILE OPENING BRIEF 1 COMES NOW Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES (CBESS), (hereinafter referred to as "Appellant"), by and through its undersigned counsel and hereby requests this Honorable Court for an Order approving Appellant's Second Ex Parte Motion to Extend Time to File Opening Brief. Appellant respectfully requests the Court enter an Order granting extending the deadline to file its opening brief from October 24, 2014 to November 24, 2014. This motion is brought pursuant to Rules b, 7, 72, and 81 of the Hawaii Rules of Civil Procedure (hereinafter referred to as "HRCP"), and is based on the attached Declaration of Counsel. DATED: Hilo, Hawaii, October 7- , 2014. D H. S. HON 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, VS. DECLARATION OF TED H. S. HONG WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, vs. and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees, DECLARATION OF TED H. S. HONG I, TED H. S. HONG, hereby declare under penalty of perjury that the following is true and correct to the best of my knowledge: 1. I am an attorney at law duly licensed to practice before this Court, and I am a member in good standing of the Hawaii State Bar Association. 2. 1 make this Declaration in support of the Second Ex Parte Motion to Extend Time to file Opening Brief. 1 3. Appellants timely filed its Notice of Appeal to Circuit Court; Statement of the Case; Exhibits "1"-"2"; Designation of Contents of Record on Appeal; Order for Certification and Transmission of Record on Appeal on June 9, 2014. 4. The Record on Appeal was transmitted to the Third Circuit Court on August 25, 2014. 5. On September 24, 2014, this Court granted Appellant with an extension of time to file its opening brief, extending the deadline from October 4, 2014 to October 24, 2014. This extension of time was based upon the Appellee Windward Planning Commission, County of Hawaii's Motion to Quash or Correct the Order for Certification and Transmission of Record on Appeal as to Tape Recordings and Transcripts of all Executive Session Hearings and Meetings dated June 9, 2014, filed on July 11, 2014, which motion was heard before this Court on September 26, 2014. 6. On September 30, 2014, the Court entered an Order on the aforementioned motion, ordering modification of the Order for Certification and Transmission of Record on Appeal, filed on June 9, 2014, and provided Appellee, Windward Planning Commission, County of Hawaii, thirty (30) days from September 30, 2014, the date the Order was filed, to transmit the recordings and transcripts of the executive meetings for which the Appellee seeks to assert the attorney-client privilege, for in camera review and determination of whether the attorney-client privilege applies. 7. In accordance with the September 30, 2014 Order, Appellee's deadline falls on October 30, 2014. Appellant's deadline to file its opening brief is October 24, 2014. Counsel will need additional time to review the records and transcripts pending the Court's in camera review and determination, in the event the attorney-client privilege does not apply. 2 8. A thirty (30) day extension of time, extending the deadline from October 24, 2014 to November 24, 2014, would provide counsel sufficient time to effectively prepare and file the opening brief. 4. This request for an extension is made in good faith and not for purposes of delay. 10. An extension of time as requested herein will not cause any prejudice to the parties herein, nor will it delay proceedings. 11. I declare under penalty of perjury under the laws of the State of Hawaii that the foregoing is true and correct to the best of my knowledge and belief. DATED: Hilo, Hawaii, October 1 2014, T H. . HON 3 TED H.S. HONG, #3569 Attorney At Law 101 Aupuni Street, PH 1002A P.O. Box 4217 Hilo,Hawaii 96720 Telephone: 808-933-1919 Facsimile: 808-935-8281 Ted@Tedhonglaw.com Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, vs. ORDER GRANTING APPELLANT'S SECOND EX PARTE MOTION TO EXTEND TIME TO WINDWARD PLANNING COMMISSION, FILE OPENING BRIEF COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, vs. and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees, Judge: Honorable Ronald Ibarra ORDER GRANTING APPELLANT'S SECOND EX PARTE MOTION TO EXTEND TIME TO FILE OPENING BRIEF The Court, having reviewed Appellant's Second Ex Parte Motion to Extend Time to File Opening Brief(Motion), the records and files herein, finds that there appears to be good cause for granting the Motion; Now, therefor, IT IS HEREBY ORDERED, AJUDGED, AND DECREED that Appellant's Second Ex Parte Motion to Extend Time to File Opening Brief is GRANTED. The deadline for Appellant to file its Opening brief has been extended from October 24, 20I4 to November 24, 2014, DATED: Kealakekua, Hawaii, 12-Z _6WL Judge for the Above-Entitled Court In the Circuit Court of the Third Circuit, Kona Division; Community Based Education Support Services (CBESS) vs. Windard Planning Commission, County of Hawaii; Department of Planning, County of Hawaii, vs. and Sandra Song, in her capacity as Hearing Officer, Jeffrey Gomes, Intervenor; Sidney Fuke, Intervenor's Representative; Terence Yoshioka, Intervenor's Representative; ORDER GRANTING APPELLANT'S SECOND EX PARTE MOTION TO EXTEND TIME TO FILE OPENING BRIEF 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, CERTIFICATE OF SERVICE V5. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, V5. and Judge: Honorable Ronald Ibarra SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees, CERTIFICATE OF SERVICE I hereby certify that the foregoing document was duly served to the following parties, by the means indicated below: MARGARET K. MASUNAGA, ESQ. By Hand Delivery Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, HI 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and APPELLEE SANDRA SONG MICHAEL J. MATSUKAWA, ESQ. By US First Class Mail 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, HI 96740 Attorney for Appellee JEFFREY GOMES Dated: Hilo, Hawaii, October 8, 2014. TED H. S. H NG Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES a�Jf FILED MICHAQEL J. MATSUKAWA, 1885 ?M 2' �9 75-5751 Kuakini Highway, Room 201 IDI4OCT 30 Kailua-Kona, HI 96740 . ix &�' Telephone (808) 329-1385M���tC�;_bt;.CLERK Attorney for Intervenor-Appellee Jeffery Gomes IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION SUPPORT ) CIVIL NO. 14-1-0223 SERVICES (CBESS) ) (Agency Appeal) ) Appellant, ) INTERVENOR-APPELLEE Vs . ) GOMES ' OBJECTION TO APPELLANT COMMUNITY WINDWARD PLANNING COMMISSION, ) BASED EDUCATION SERVICES COUNTY OF HAWAII, et al . , ) EX PARTE MOTION FOR LEAVE TO FILE OPENING Appellees, ) BRIEF IN EXCESS OF 35 PAGES; CERTIFICATE and ) OF SERVICE JEFFERY GOMES, ) ) Intervenor- ) Appellee ) INTERVENOR-APPELLEE GOMES ' OBJECTION TO APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES ' EX PARTE MOTION FOR LEAVE TO FILE OPENING BRIEF IN EXCESS OF 35 PAGES Intervenor-Appellee Gomes objects to the Appellant Community Based Education Support Services ' request to enlarge the page length limitation for its Opening Brief . 1 A. Size of Record Not Relevant The size of the record on appeal is not relevant . Rules of court allow certain parts of the record to be appended to the Opening Brief if necessary. B. Number of Points of Error The purpose of an appeal is to identify the alleged errors that affected the Appellant ' s substantial rights, not every point of disagreement . It is incumbent upon the Appellant, who has dealt with the issues since the date of the Appellee Windward Planning Commission' s hearing below and during the time since it filed its appeal herein, to identify the points of error it intends to address in its Opening Brief . C . Purpose of Page Limitation The purpose of the page limitation is to compel an appellant to present a succinct argument on appeal . Conclusion The Appellant Community Based Education Support Services ' request should be denied. No due process issues are implicated. Further, if the Appellant ' s request were granted, then the Intervenor-Appellee Gomes and other Appellees may in 2 turn feel compelled to request an enlargement of the page limitation for their Answering Briefs as well . The rules of court exist for a purpose and the Appellant carries the burden of convincing the Court that the page limitation should be enlarged from 35 pages to 50 pages . Dated at Kailua-Kona, Hawaii : October 30 , 2014 . JEFFREY COMES, Intervenor-Appellee MICHAEL J. MATSUKAWA His Attorney 3 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES, ) (Agency Appeal) Applicant-Appellant, ) CERTIFICATE OF SERVICE vs . ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; DEPARTMENT OF ) PLANNING, COUNTY OF HAWAII, } Appellees, ) ) and } SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY DOMES, ) Intervenor; SIDNEY FUKE, } Intervenor' s Representative; } TERENCE YOSHIOKA, Intervenor' s ) Representative, ) } Intervenor-Appellees- CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a copy of the foregoing document (s) was duly served upon the following parties via the U. S . Post Office, Kailua-Kona, Hawaii, postage prepaid, addressed as follows : SANDRA P. SONG, ESQ. Hearings Officer 10 Kamehameha Avenue Hilo, Hawaii 96724 TED H. S . HONG, ESQ. P.O . Bob[ 4217 Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General 235 So. Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AMY SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAII PLANNING DIRECTOR MARGARET MASUNAGA, ESQ. Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway Kailua-Kona, Hawaii 96740 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII ALAN M. OKAMOTO, ESQ. Nakamoto Okamoto & Yamamoto 187 Kapiolani Street Hilo, Hawaii 96720 DATED: Kailua-Kona, Hawaii, October 30, 2014 . JEFFREY K. GOMES, Appellee- Intervenor By: MICHAEL J. MATSUKAWA His Attorney 2 FILED TED H.S. HONG, #3569 Attorney At Law 10��OCT 3 I PH 3. 26 101 Aupuni Street, PH 1002A P.O. Box 4217 Hilo, Hawaii 96720 HERR ER Telephone: 808-933-1919 Tlf` .'; ;T Facsimile: 808-935-8281 Teclrri'Tedhon<�lai�.can7 Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF IIAWAI:I COMMUNITY BASED EDUCATION CIVIL NO, 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' EX vs. PARTE MOTION FOR LEAVE TO ALLOW APPELLANT TO FILE ITS OVER-LENGTH WINDWARD PLANNING COMMISSION, OPENING BRIEF; DECLARATION OF TED COUNTY OF HAWAII; DEPARTMENT OF H. S. HONG; ORDER GRANTING PLANNING, COUNTY OF HAWAII, APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' EX vs. PARTE MOTION FOR LEAVE TO ALLOW APPELLANT TO FILE ITS OVERLENGTH and OPENING BRIEF; CERTIFICATE OF SERVICE SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA. Intervenor's Representative, Intervenor-Appel lees, Judge: Honorable Ronald Ibarra APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' EX PARTE MOTION FOR LEAVE TO ALLOW APPELLANT TO FILE ITS OVER-LENGTH OPENING BRIEF C/( COMES NOW Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES (CBESS)(hereinafter referred to as "Appellant"), by and through its undersigned attorney, and hereby submits its Ex Parte Motion for an Order Allowing Appellant to File its Over-Length Opening Brief, exceeding the 35-page limitation pursuant to Rule 72 (f)(2) of the Hawaii Rules of Civil Procedure and Rule 28 (a) of the Hawaii Rules of Appellate Procedure. Appellant is likely to address approximately 74 points of error in its opening brief, citing to a volLmlinous Record on Appeal that contains no less than 4.350 pages. Appellant will be challenging the Order Adopting Proposed Findings of Fact, Conclusions of Law, and Decision and Order which contains no less than 64 pages. Therefore, to enable Appellant to adequately argue its position and provide the law and analysis in support thereof, Appellant's brief is expected to exceed 15 pages. Appellant respectfully requests that the Court grant its motion for leave to file its over-length opening brief, and further requests the Court extend the page limitation to 50 pages for Appellant's opening brief. This motion is brought pursuant to Rules 6. 7, 72, and 81 of the Hawaii Rules of Civil Procedure (hereinafter referred to as `'HRCP") and Rule 28 (a) of the Hawaii Rules of Appellate Procedure (hereinafter referred to as "HRAP"), and is based on the attached Declaration of Counsel. DATED. Hilo, Hawaii, October , 2014. 4, - ,-fED H. S. HONV 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-022; SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, vs. DECLARATION OF TED H. S. HONG WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII: DEPARTMENT OF PLANNING, COUNTY OF HAWAII, vs. and SANDRA SONG, in tier capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees, DECLARATION OF TED H. S. HONG I, TED H. S. HONG, hereby declare Colder penalty of perjury that the following is true and correct to the best of my knowledge: 1. I am counsel of record for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES (CBESS). 2. I make this Declaration in support of Appellant's Ex Parte Motion for an Order Allowing Appellant to File its Over-Length Opening Brief, which brief is expected to exceed the 35-page limitation imposed by Rule 72 (f)(2) of the Hawaii Rules of Civil Procedure and Rule 28 (a) of the Hawaii Ryles of Appellate Procedure for the following reasons: 1 a. Appellant is likely to raise approximately 74 points of error, and will be citing to a voluminous Record on Appeal, containing no less than 4,350 pages, and challenging the Order Adopting Proposed Findings of Fact, Conclusions of Law, and Decision and Order which contains no less than 64 pages. b. Counsel believes he will need an additional 15 pages to adequately present Appellant's argument and to state the applicable law and analysis in support of Appellant's position and numerous points of error. Therefore, Appellant requests leave by the Court to permit Appellant to file its opening brief, extending the page limit to 50 pages. I declare under penalty of perjury under the laws of the State of Hawaii that the foregoing is true and correct to the best of my knowledge and belief: DATED: Hilo, Hawaii_ October 23 , 2014. ED H. S. HON 2 TED H.S. HONG, #3569 Attorney At Law 101 Aupuni Street, PH 1002A P.O. Box 4217 Hilo, Hawaii 96720 Telephone: 808-933-1919 Facsimile: 808-935-8281 Ted(ir,Ted hon alaw.com Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, vs. ORDER GRANTING APPELLANT COMMUNITY BASED EDUCATION WINDWARD PLANNING COMMISSION. SUPPORT SERVICES' EX PARTE MOTION COUNTY OF HAWAII; DEPARTMENT OF FOR LEAVE TO ALLOW APPELLANT TO PLANNING, COUNTY OF HAWAII, FILE ITS OVERLENGTH OPENING BRIEF vs. and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative: TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appel lees_ .)edge: Honorable Ronald Ibarra ORDER GRANTING APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' LX PARTE MOTION FOR I,EAVE TO ALLOW APPELLANT TO FILE ITS OVERLENGI H OPENING BRIEF 1 The Court, having reviewed Appellant's Ex Parte Motion for an Order Allowing Appellant to File its Over-Length Opening Brief, Declaration of Counsel, the records and Files herein, finds that there appears to be good cause for granting the Motion; IT IS HEREBY ORDERED, AJUDGED, AND DECREED that Appellant's Ex Parte Motion for an Order Allowing Appellant to File its Over-Length Opening Brief is GRANTED. IT 1S FURTHER ORDERED that Appellant's opening brief shall not exceed 50 pages. DATED: Kealakekua, Hawaii. 13 G//� Judg ' Ke Above-Entitled Court In the Circuit Court of the Third Circuit, Kona Division; Community Based Education Support Services (CRESS) vs. Windard Planning Commission, County of Haivaii; Department of Planning, County of Hawaii, vs. and Sandra Song, in her capacity as Hearil� 0 cer, Jeffrey Gomes, Intervenor; Sidney Fuke, Intervenor's Representative; Terence Yoshioka, Intervenors Representative; Civil No. 14-1-0223 (Agency Appeal); ORDER GRANTING APPELLANT'S EX PARTE MOTION FOR LEAVE TO ALLOW APPELLANT TO FILE ITS OVER-LENGTH OPENING BRIEF 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATIN OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII. DEPARTMENT OF PLANNING, COUNTY OF HAWAII, vs. and .fudge: Honorable Ronald Ibarra SANDRA SONG, in her capacity as Hearing Officer, JEFFREY COMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA_ Intervener's Representative. Intervenor-Appellees. CERTIFICATE OF SERVICE I hereby certify that the foregoing motion was duly served to the following parties, by the means indicated below: MARGARET K. MASUNAGA. ESQ. By Hancl Delivery Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 I-Iilo, HI 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and APPELLEE SANDRA SONG 1 MICHAEL J. MATSUKAWA, ESQ. By US First Class Mail 75-5751 Kuakini Hwy., Ste. 20I Kailua-Kona, HI 96740 Attorney for Appellee ,JEFFREY DOMES Dated: Hilo, Hawaii, October �2,3, 2014, 3V-11 0- -� al-xx ED H. S. HOKG- Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 FILED cc: Margaret Masunaga, Esq. Ted Hong, Esq. 1014 OCT31 Ph 3: 25 Michael Matsukawa, Esq. H E IN _�_A,' ' i �% IN THE CIRCUIT COURT OF THE THIRD CIRCA STATE OF HAWAI'l COMMUNITY BASED EDUCATION ) Civil No. 14-1-223 SUPPORT SERVICES, ) ORDER FOLLOWING IN CAMERA REVIEW OF DOCUMENTS Applicant-Appellant, ) SUBMITTED vs. ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAI'l, ) Appellee, ) JUDGE: Hon. Ronald lbarra and ) JEFFREY GOMES, ) Intervenor-Appellee. ) ORDER FOLLOWING IN CAMERA REVIEW OF DOCUMENTS SUBMITTED On September 30, 2014 the Court issued an Order Granting in Part Appellee Windward Planning Commission, County of HawaiTs Motion to Quash or Correct the Order for Certification and Transmission of Record on Appeal as to Tape Recordings and Transcripts of all Executive Session Hearings and Meetings Dated June 9, 2014. On October 24, 2014 the Court received documents submitted by the Appellee, Windward Planning Commission. The documents received were the Executive Session Minutes from January 10, 2013, March 7, 2013 and May 1 , 2014. The minutes contain a summary of the executive sessions. This Court's September 30, 2014 Order required 1 ejA the Appellee to submit the recordings and transcripts from the executive session which have not yet been received, and therefore; IT IS HEREBY ORDERED, ADJUDGED AND DECREED: Appellant must transmit the recordings and transcripts from the executive session meetings of January 10, 2013, March 7, 2013 and May 1, 2014 within 30 days from the filed date of this Order, for in camera review and determination of whether the attorney-client privilege applies. DATED: Kealakekua, Hawai'i; 54 The Honor6bie Ronald lbarra 2 FILED TED H. S. HONG 3569 Attorney at Law P. O. Box 4217 4T1014 4 Hilo, HI 96720 Telephone No. 808.933.1919 7� � nK tedra tedhon,law.com LISI THIRD � iicu1I GDUEZT SIAIE 4F HAWnII Attorney for Applicant COMMUNITY BASED EDUCATION SUPPORT SERVICES (CBESS) IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 RI SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) VS. ) APPELLANT'S THIRD EX PARTE MOTION TO EXTEND TIME TO FILE OPENING COUNTY OF HAWAII WINDWARD ) BRIEF; DECLARATION OF TED H.S. PLANNING COMMISSION, COUNTY OF ) HONG; ORDER GRANTING APPELLANT'S HAWAII } THIRD EX PARTE MOTION TO EXTEND TIME TO FILE OPENING BRIEF; } Appellees, CERTIFICATE OF SERVICE } } vs. } ) and ) SANDRA SONG, in her capacity as Hearing ) Officer, JEFFREY GOMES, Intervenor; ) SIDNEY FUKE; Intervenor's Representative; ) TERENCE YOSHIOKA, Intervenor's ) Representative, ) Intervenor-Appellees. ) JUDGE: Honorable Ronald Ibarra APPELLANT'S THIRD EX PARTE MOTION TO EXTEND TIME TO FILE OPENING BRIEF COMES NOW, Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICE (CBESS), (hereinafter referred to as "Appellant"), by and through its undersigned counsel and hereby requests this Honorable Court for an Order approving Appellant's Third Ex Parte Motion to Exten Time to File Opening Brief. Appellant respectfully requests the Court enter an Order granting Appellant's motion extending the deadline to file its opening brief from November 24, 2014 to December 31, 2014. This motion is brought pursuant to Rules 6, 7, 72 and 81 of the Hawaii Rules of Civil Procedure (hereinafter referred to as "HRCP"), and is based on the attached Declaration of Counsel. DATED: Hilo, Hawaii,November , 2014 T H.S. HONG Attorney for Applicant COMMUNITY BASED EDUCATION SUPPORT SERVICES (CBESS) IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 RI SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) DECLARATION TO TED H.S. HONG vs. ) COUNTY OF HAWAII WINDWARD } PLANNING COMMISSION, COUNTY OF ) HAWAII ) Appellees, ) vs. ) and ) SANDRA SONG, in her capacity as Hearing ) Officer, JEFFREY GOMES, Intervenor; ) SIDNEY FUKE; Intervenor's Representative; ) TERENCE YOSHIOKA, Intervenor's ) Representative, ) Intervenor-Appellees. ) DECLARATION OF TED H.S. HONG 1, TED H.S. HONGS, hereby declare under penalty of perjury that the following is true and correct to the best of my knowledge: 1. I am an attorney at law duly license to practice before this Court, and I am a member in good standing of the Hawaii Bar Association. 2. I make this Declaration in support of the Third Ex Parte Motion to Extend Time to File Opening Brief. 3. Appellants timely filed its Notice of Appeal to Circuit Court; Statement of the Case; Exhibits "1"-"2"; Designation of Contents of Record on Appeal; Order for Certification and Transmission of Record on Appeal on June 9, 2014. 4. The Record on Appeal was transmitted to the Third Circuit Court on August 25, 2014, 5. On September 24, 2014, this Court granted Appellant with an extension of time to file its opening brief, extending the deadline from October 4, 2014 to October 24, 2014. This extension of time was based upon the Appellee Windward Planning Commission, County of Hawaii's Motion to Quash or Correct the Order for Certification and Transmission of Record on Appeal as to Tape Recordings and Transcripts of all Executive Session Hearings and Meeting dated June 9, 2014, filed on July 11, 2014, which motion was heard before this Court on September 26, 2014. 6. On September 30, 2014, the Court entered an Order on the aforementioned motion, ordering modification of the Order for Certification and Transmission of Record on Appeal, filed on June 9, 2014, and provided Appellee, Windward Planning Commission, County of Hawaii, thirty (30) days from September 30, 2014, the date the Order was filed, to transmit the recordings and transcripts of the executive meetings for which the Appellee seeks to assert the attorney-client privilege, for in camera review and determination of whether the attorney-client privilege applies. 2 7. On October 24, 2014, the Court received documents submitted by the Appellee, Windward Planning Commission. The documents received were the Executive Session Minutes from January 10, 2013, March 7, 2013 and May 1, 2014. The minutes contain a summary of the executive sessions. 8. On October 31, 2014, the Court entered an Order Following In Camera Review of Documents Submitted. 9. On October 31, 2014, the Court Ordered, Adjudged and Decreed, Appellant must transmit the recordings and transcripts from the executive session meetings of January 10, 2013, March 7, 2013 and May 1, 2013 within 30 days from the file date of the Order, for in camera review and determination of whether the attorney-client privilege applies. 10. In accordance with the Court's October 31, 2014 Order, Appelle's deadline falls on November 30, 2014, 11, On October 24, 2014, this Court extended Appellant's deadline to file it opening brief on November 24, 2014. 12. Counsel will need additional time to review the records and transcripts pending the Court's in camera review and determination, in the event the attorney-client privileges does not apply. 13. A thirty (30) day extension of time, extending the deadline from November 24, 2014 to December 24, 2014, would provided counsel sufficient time to effectively prepare and file the opening brief. 14. This request for an extension is made in good faith and not for purposes of delay. 15. An extension of time as requested herein will not cause any prejudice to the parties herein, nor will it delay proceedings. 3 16. I declare under penalty of perjury under the laws of the State of Hawaii that the foregoing is true and correct to the best of my knowledge and belief. DATED: Hilo, Hawaii,November , 2014 TT�b H.S. HONG 4 TED H. S. HONG 3569 Attorney at Law P. O. Box 4217 Hilo, HI 96720 Telephone No. 808.933.1919 ted(u;tedhongrlaw.corn Attorney for Applicant COMMUNITY BASED EDUCATION SUPPORT SERVICES (CBESS) IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO. 14-1-0223 RI SUPPORT SERVICES } (Agency Appeal) } Applicant-Appellant, } } vs. } ORDER GRANTING APPELLANT'S THIRD EX PARTE MOTION TO EXTEND TIME TO COUNTY OF HAWAII WINDWARD } FILE OPENING BRIEF PLANNING COMMISSION, COUNTY OF } HAWAII } Appellees, ) vs. ) } and ) SANDRA SONG, in her capacity as Hearing ) Officer, JEFFREY GOMES, Intervenor; } SIDNEY FUKE; Intervenor's Representative; ) TERENCE YOSHIOKA, Intervenor's ) JUDGE: Honorable Ronald Ibarra Representative, } } Intervenor-Appellees. } ORDER GRANTING THIRD EX PARTE MOTION TO EXTEND TIME TO FILE OPENING BRIEF The Court, having reviewed Appellant's Third Ex Parte Motion to Extend Time to File Opening Brief(Motion), the records and files herein, finds that there appears to be good cause for granting the Motion; Now,therefore, IT IS HEREBY ORDERED, AJUDGED, AND DECREED that Appellant's Third Ex Parte Motion to Extend Time to File Opening Brief is GRANTED. The deadline for Appellant to file its Opening Brief has been extended from November 24, 2014 to December 24, 2014. DATED: Kealakekua, Hawaii �lhe-iX, Judge for the Above-Entitled Court In the Circuit Court of the Third Circuit, Kona Division; Community Based Education Support Services (CBESS) vs. Windward Planning Commission, County of Hawaii; Department of Planning, County of Hawaii, vs. and Sandra Song, in her capacity as Hearing Officer, Jeffrey Gomes, Intervenor; Sidney Fuke, Intervenor's Representative; Terence Yoshioka, Intervenor's Representative; CIVIL NO. 14-1-0223 RI; ORDER GRANTING APPELLANT'S THIRD EX PARTE MOTION TO EXTEND TIME TO FILE OPENING BRIEF 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-I-0223 RI SUPPORT SERVICES } (Agency Appeal) } Applicant-Appellant, ) } VS. ) CERTIFICATE OF SERVICE COUNTY OF HAWAII WINDWARD } PLANNING COMMISSION, COUNTY OF } HAWAII } } Appellees, } } VS. } and ) SANDRA SONG, in her capacity as Hearing ) Officer, JEFFREY GOMES, Intervenor; ) JUDGE: Honorable Ronald Ibarra SIDNEY FUKE; Intervenor's Representative; ) TERENCE YOSHIOKA, Intervenor's ) Representative, ) Intervenor-Appellees. ) CERTIFICATE OF SERVICE I HEREBY CERTIFY that on November , 2014, I caused a true and correct copy of the foregoing document to be served on the following persons by means indicated below: MARGARET K. MASUNAGA, ESQ. By Hand Delivery Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Ililo, Hawaii 96720 1 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and APPELLEE SANDRA SONG MICHAEL J. MATSUKAWA, ESQ. By U.S_ Mail 75-5751 Kuakini Highway, Suite 201 Kailua-Kona, Hawaii 96740 Attorney for Appellee JEFFREY GOMES DATED: Hilo, Hawaii November_, 2014. 2d�')1� (2- Z D H.S. HONG V 61 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES (CBESS) 2 FILED MOLLY A. STEBBINS 8639 Corporation Counsel LAUREEN L. MARTIN 5927 201hNoy 26 AM 8= 25 Assistant Corporation Counsel MARGARET K. MASUNAGA 4568 L. A0,�O A. r.nK MELODY PARKER 4406 TH1130 CmCu1 i COU+ZT Deputies Corporation Counsel STATE OF I1AWA11 Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Tel. No. (808) 961-8251 Fax No. (808) 961-8622 Email: mkmasuna�?a a l-iaiv,,tiicotiiity.Liov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES, Applicant-Appellant, NOTICE OF DISASSOCIATION OF COUNSEL MARGARET K. MASUNAGA; CERTIFICATE vs. OF SERVICE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; Appellee, and JEFFREY GOMES, Intervenor; Intervenor-Appellee. NOTICE OF DISASSOCIATION OF COUNSEL MARGARET K. MASUNAGA PLEASE TAKE NOTICE THAT, effective December 3, 2014, Margaret K. Masunaga will no longer be associated with counsel of record: Corporation Counsel, County of Hawaii. ry{ Corporation Counsel, County of Hawaii continues to serve as counsel of record for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I. Dated: Hilo, Hawaii, November 26, 2014. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, Appellee, By /� MAR RET K. MASUNAG Deputy Corporation Counsel Their Attorney 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. I4-1-0223 SUPPORT SERVICES, Applicant-Appellant, CERTIFICATE OF SERVICE VS. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, Appellee, and JEFFREY GOMES, Intervenor-Appellee. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing document was served upon the following by U.S. Mail, postage prepaid on November 26, 2014: TED H.S. HONG, ESQ. Hilo Lagoon Centre 10I Aupuni Street, PH I002A Hilo, Hawaii 96720 Email: ted rerrled lion glaw.corn Attorney for Applicant-AppeIIant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General State of Hawai i 235 South Beretania Street, Room 304 HonoIuIu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MICHAEL J. MATSUKAWA, ESQ. Territorial Centre, Suite 201 75-5751 Kuakini Highway KaiIua-Kona, Hawai`i 96740 Attorney for Intervenor-Appellee JEFFREY GOMES Dated: Hilo, Hawaii, November 26, 2014. MARGWRET K. MASUNAGAP Deputy Corporation Counsel County of Hawaii 2 cc: Margaret Masunaga, Esq. Ted Hong, Esq. 20f4EEC — I P '12; 54 Michael Matsukawa, Esq. L. 91, A.0 RK IN THE CIRCUIT COURT OF THE THIRD CIRCUIT THIRD CIRCUIT COURT STATE OF HAWAII STATE OF HAWAII COMMUNITY BASED EDUCATION ) Civil No. 14-1-223 SUPPORT SERVICES, ) ORDER ON EXECUTIVE SESSION MINUTES Applicant-Appellant, ) vs. ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAI'I, } } Appellee, } JUDGE: Han. Ronald Ibarra and ) } JEFFREY GOMES, } } Intervenor-Appellee. ) ORDER ON EXECUTIVE SESSION MINUTES On October 24, 2014 the Court received documents submitted by the Appellee, Windward Planning Commission. The documents received were the Executive Session Minutes from January 10, 2013, March 7, 2013 and May 1, 2014. The minutes contain a summary of the executive sessions. On October 31, 2014 this Court issued an Order requiring the Appellant to transmit the recordings and transcripts from the executive session meetings of January 10, 2013, March 7, 2013 and May 1, 2014 within 30 days from the filed date of the Order. The Court then received a letter from the Appellant 1 �3 dated November 13, 2014 which stated no recordings or transcripts of the Executive Session meetings existed and therefore the Court finds and concludes as follows. The minutes of the executive session meetings of January 10, 2013, March 7, 2013 and May 1, 2014 reveal that the meetings were in the nature of legal consultation between counsel and the Appellee Commission and therefore fall within the provisions of HRS §92-5. The Appellee Commission was not required to disclose the minutes of its closed executive session under HRS §92-5(a)(4) as the minutes show the attorney consulted with the Commission throughout the session. IT IS HEREBY ORDERED, ADJUDGED AND DECREED: The attorney-client privilege applies, and the Appellee Commission is not required to disclose, the executive session minutes from the meetings of January 10, 2013, March 7, 2013 and May 1, 2014. DATED: Kealakekua, Hawai i; �r � r The Honorable Ronald lbarr 2 1 FILED MICHAEL J. MATSUKAWA, 1885-0 2014 DEC _2 Pr 2= 02 Territorial Centre, Suite 201 ��TA HONG 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 ERK Telephone No. . (808) 329-1385 N10 [;.��i! C;31! T Attorney for Intervenor-Appellee JEFFREY K. GOMES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES, ) (Agency Appeal) ) Applicant-Appellant, ) } INTERVENOR-APPELLEE JEFFREY K. vs . } GOMES' MOTION (1) TO STRIKE NOTICE OF APPEAL AND JOINDER WINDWARD PLANNING COMMISSION, ) FILED BY CONNECTIONS NEW COUNTY OF HAWAII ; DEPARTMENT OF ) CENTURY PUBLIC CHARTER SCHOOL PLANNING, COUNTY OF HAWAII, ) (FILED JUNE 19 , 2014) (2) TO DISMISS SAID NOTICE OF APPEAL Appellees, ) AND (3) FOR SUMMARY JUDGMENT } AGAINST CONNECTIONS NEW and } CENTURY PUBLIC CHARTER SCHOOL } ON ITS NOTICE OF APPEAL (FILED SANDRA SONG, in her capacity as } JUNE 19, 2014) ; MEMORANDUM IN Hearing Officer; JEFFREY GOMES, } SUPPORT OF MOTION; NOTICE OF Intervenor; SIDNEY FUKE, ) HEARING MOTION; CERTIFICATE OF Intervenor' s Representative; } SERVICE TERENCE YOSHIOKA, Intervenor' s ) Representative, ) HEARING: Intervenor-Appellees. ) DATE: JANUARY 6 , 2015 TIME: 10 : 00 A.M. JUDGE: HON. RONALD IBARRA 112514.5\j-gomes\etrike.mtn INTERVENOR-APPELLEE JEFFREY K. COMES' MOTION (1) TO STRIKE NOTICE OF APPEAL AND JOINDER FILED BY CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL (FILED JUNE 19, 2014) (2) TO DISMISS SAID NOTICE OF APPEAL AND (3) FOR SUMMARY JUDGMENT AGAINST CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL ON ITS NOTICE OF APPEAL FILED JUNE 19, 2014) The Intervenor-Appellee Jeffrey K. Gomes moves this Court for an order to strike the pleading that Connections New Century Public Charter School filed herein on June 19 , 2014 and to dismiss the purported notice of appeal and "joinder" contained therein. The Intervenor-Appellee Jeffrey K. Gomes also moves this Court for an order that grants summary judgment in favor of Intervenor-Appellee Jeffrey K. Gomes and against Connections New Century Public Charter School on the purported notice of appeal that Connections New Century Public Charter School filed herein on June 19, 2014 and on the "joinder" that Connections New Century Public Charter School filed on June 19, 2014 to give itself the status of an appellant in this case. This motion is based on Rule 12 (b) (1) & (6) , HRCP and Rule 56, HRCP.1 This Court is not being asked to consider facts that are extraneous to the pleadings that have been filed in this case, Civil No . 14-1-0223 . Instead, this Court is being asked to determine, based on the pleadings and as a matter of law, (1) whether Connections New Century Public Charter School is or is not a party in this case, (2) whether it may appear in this case (without leave of court or other lawful authority) and file pleadings in this case and (3) whether it may file what it alleges to be its own separate agency appeal in this case and also give itself the status of an appellant by its "joinder" in the pleadings 1 No specific court rule exists that prohibits a non-party from appearing in a case or to file pleadings in a case to which it is a complete stranger, except for Rule 13 (h) , HRCP . 2 that the Applicant-Appellant Community Based Education Support Services has already filed herein. DATED; Kailua-Kona, Hawaii, December 1 L 2014 JEFFREY K. GOMES, Intervenor- Appellee *>�I�A By: MICHAEL J. MATSUKAWA His Attorney 3 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO . 14-1-0223 SUPPORT SERVICES, ) (Agency Appeal) Applicant-Appellant, } } MEMORANDUM IN SUPPORT OF vs . ) MOTION WINDWARD PLANNING COMMISSION, } COUNTY OF HAWAII; DEPARTMENT OF } PLANNING, COUNTY OF HAWAII, } Appellees, } ) and } J SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY GOMES, ) Intervenor; SIDNEY FUKE, } Intervenor' s Representative; ) TERENCE YOSHIOKA, Intervenor' s } Representative, ) } Intervenor-Appellees- MEMORANDUM IN SUPPORT OF MOTION Intervenor-Appellee Jeffrey K. Gomes seeks to strike the pleading that the "Applicant-Appellant Connections New Century Public School" filed herein on June 19, 2014 . He contends that the entity designated herein as the "Applicant-Appellant Connections New Century Public Charter School" is not a party in this case, Civil No. 14-1-0223 , and that a non-party cannot simply appear in this case and file pleadings, i .e. , an unauthorized "notice of appeal" and a "joinder" to give itself the status of an appellant in this case . Further, if the entity designated herein as the "Applicant-Appellant Connections New Century Public Charter School" is deemed to be a party in this case, Intervenor-Appellee Jeffrey K. Gomes contends that the entity is a party-appellee and seeks to dismiss the purported "notice of appeal'" contained in the subject pleading and to dismiss the "joinder" contained in the subject pleading to the extent the "joinder" purports to give the entity the status of an appellant in this case . Intervenor-Appellee Jeffrey K. Gomes' motion is based on Rules 12 (b) (1) & (6) , HRCP (lack of subject matter jurisdiction and failure to state a claim) and Rule 56, HRCP (summary judgment) . A. THE MATERIAL FACTS 1. The dispute in this instance arises from the Appellee windward Planning Commission' s decision to deny a Special Permit application that two entities submitted to build and operate facilities for a charter school on land covered by State of Hawaii General Lease No. 5-6029 in South Hilo, Hawaii . The two entities who joined in the Special Permit application in question are the "Connections New Century Public Charter School"" (also called "CONNECTIONS" hereafter) and the "Community Based Education Support Services" (also called ""CBESS"" hereafter) . 2 . The two entities are separate organizations, but were allowed to join in the Special Permit application for the proposed charter school facilities as co-applicants with the Planning Department' s apparent approval . (Record on Appeal, Record Pages 1, 329-331) 2 3 . The agency record shows that both entities partici- pated in the contested case that the Appellee Windward Planning Commission held on the Special Permit application. 4 . The Appellee Windward Planning Commission, however, voted to deny the Special Permit application in question and on May 1, 2014, sent the two co-applicants a letter that confirmed the Planning Commission' s adverse vote. (Record on Appeal, Record Pages 4289-4292, 4293-4296) 5 . On May 19, 2014, the Appellee Windward Planning Commission then served its written findings, conclusions, order and decision to deny the Special Permit application on all parties to the contested case. (Record on Appeal, Record Pages 4300-4315) 2 6 . On June 9, 2014, one of the two Special Permit co- applicants, the Applicant-Appellant Community Based Education Support Services ( "CBESS" ) , filed a notice of appeal from the Appellee Windward Planning Commission' s decision pursuant to Section 91-14, HRS and Rule 72, HRCP. 7 . In its notice of appeal, the Applicant-Appellant Community Based Education Support Services ( 11CBESS11) did not name its Special Permit co-applicant, the Connections New Century Public Charter School ( "CONNECTIONS" ) , as an "appellant" or as an "appellee . 1' The only appellant named therein is the Applicant- 2 Section 91-14 (b) , HRS states that an agency appeal is to be governed by rules of court . Under Rule 6 (e) , HRCP, two days are added to the 30-day appeal period because the Planning Commission served the parties with its final decision by mail . The 32nd day ended on June 20, 2014 . 3 Appellant CBESS alone .-' 8 . Although the two Special Permit co-applicants could have tried to file a joint appeal to the circuit court at the outset of this case, pursuant to Rule 72 (a) , HRCP (any "person or persons" may file a notice of appeal) , they did not do so . 9 . Thus, as of June 9 , 2014, CONNECTIONS was not a party in this case, Civil No. 14-1-0223 . It was and continues to be a complete stranger to this case. 10 . However, on June 19, 2014 , CONNECTIONS filed a document herein that purports to be both a "Notice of Appeal" and a "Joinder" in the Applicant-Appellant CBESS' notice of appeal filed in this case, Civil No . 14-1-0223 . 11 . In its document filed on June 19, 2014 , CONNECTIONS states that it "hereby notices its appeal from . . . the County of Hawaii windward Planning Commission' s Findings of Fact, Conclusions of Law and Decision and Order, dated May 19, 2014 . " (emphasis added) and, further, that : "CONNECTIONS hereby substantively joins in Applicant-Appellant Community Based Education Support Services' Notice of Appeal to Circuit Court . . . filed June 9, 2014 . " (emphasis added) 3 while the Appellant' s failure to name a party as an "appellee" is not fatal to the Appellant' s own cause, see In Re Hawaiian Government Employees Association, Local 152, AFCME, AFL- C20, 63 Haw. 85, 87, 621 P. 2d 361, 363 (1980) , it may be fatal to a person who is not named as a party to the agency appeal . 4 12 . In essence, CONNECTIONS, who is not named as a party in this agency appeal, purported (a) to make an appearance in this case (without leave of court or other lawful authority) , (b) to file its own separate notice of appeal within this case and, further, (c) to "join" in the pleadings previously filed by its special Permit co-applicant, the Applicant-Appellant CRESS, and thereby give itself the status of an appellant in this case . B. QUESTIONS PRESENTED The questions presented by CONNECTIONS' appearance and June 19, 2014 pleading are: 1 . Is CONNECTIONS a party in this case? 2 . Can a non-party, such as CONNECTIONS, nevertheless appear in and file pleadings in a pending case without leave of court or other lawful authority? 3 . Furthermore, can a non-party, such as CONNECTIONS, initiate its own separate agency appeal within a pending agency appeal? 4 . Can CONNECTIONS, if it is assumed to be a party in this case, give itself the status of an appellant in this case by its "joinder"? The Intervenor-Appellee Jeffrey K. Gomes contends that CONNECTIONS is not a party in this case, cannot file pleadings herein, should have initiated its own separate agency appeal in a separate civil appeal docket and cannot give itself the status of an appellant in this case by its "joinder. " 5 C. APPLICABLE LAW The right to an appeal is a matter of legislative grace and a person seeking to exercise a right of appeal must comply with all applicable laws governing the appeal . Korean Buddhist Dae Won Sa Temple v. Concerned Citizens of Palolo, 107 Haw. 371, 380, 114 P.3d 113 , 122 (2005) . The laws governing an agency appeal from the Appellee Windward Planning Commission' s decision to the circuit court are as follows : 1 . Section 91-14 HRS Under Section 91-14 , HRS, an "aggrieved person" who participated in a contested case before an agency may pursue an appeal from the agency' s decision to the circuit court . Section 91-14 (b) , HRS continues that the appellate procedure therefor is to be governed by rules of court . 2 . Rules 72 and 81 (e) , HRCP Rule 72, HRCP describes the procedure to be followed in an agency appeal to the circuit court and Rule 81 (e) , HRCP states that all other rules in the Hawaii Rules of Civil Procedure also apply. 3 . Common Interests If two or more persons who participated in a contested case before an agency wish to file a common or joint appeal to the circuit court, they may try to do so under Rule 72 (a) , HRCP that specifically allows any "persona" to file a joint notice of appeal, but only at the outset of the case . 6 There is no provision in Section 91-14, HRS or Rule 72 , HRCP, however, that allows a person who participated in a contested case, but who was not named an appellant or appellee in a notice of appeal taken by another person to the circuit court, to appear in the agency appeal so taken and therein file its own separate notice of appeal from the same agency decision in question. 4 . "Joinder" as Appellant Even if a person is assumed to be a party-appellee in an agency appeal, it cannot give itself the status of an appellant by filing a "joinder" in the notice of appeal filed by another person. No law allows such a joinder. " CONNECTIONS recognized that it should take some action to protect its own discrete interests in this case, but nevertheless did not move to intervene in this case, Civil No. 14-1-0223 . Further, it did not act to file its own separate and independent agency appeal in a separate civil appeal docket . CONNECTIONS apparently felt it was sufficient to simply appear in this case (though it is a non-party) without leave of court or other lawful authority and then file its separate agency appeal within this case (an additional appeal within a pending appeal) and, further, make itself an appellant in this case by a "joinder" in the pleadings that its Special Permit co-applicant, the Applicant-Appellant CBESS, had filed on June 9, 2014 . D. ARGUMENT It is obvious that CONNECTIONS wants to pursue its own 7 separate and independent agency appeal and, at the same time, support the appeal that its Special Permit co-applicant has already taken in this case, Civil No. 14-1-0223 . However, no law allows CONNECTIONS, a non-party, to simply appear in this case and to file its own separate notice of appeal and "joinder" herein.' 1 . CONNECTIONS IS NOT A PARTY IN THIS CASE AND IS NOT AUTHORIZED TO FILE PLEADINGS IN THIS CASE . As stated above, as of June 19, 2014 , CONNECTIONS was and is not a party in this case, Civil No. 14-1-0223 . It was and is not a party because its Special Permit co-applicant did not identify or name CONNECTIONS as a party in its notice of appeal . Cf. Stewart Properties Inc. v. Brennan, 8 Haw. App . 431, 435, 807 P. 2d 505 (1991) (parties to appeal must be identified in notice) . The circuit court record also shows that the Applicant-Appellant CBESS served a copy of its notice of appeal on CONNECTIONS' attorney, but the Certificate of service describes CONNECTIONS simply as "Applicant, " not as an "appellant" or as an "appellee . " As a result, if CONNECTIONS wished to participate in this case, it had to first intervene in this case pursuant to Rule 24, HRCP. W.H. Shipman, Ltd. v. Hawaiian Holiday Macadamia Nut Co. , Ltd. , 8 Haw App. 354, 370, 802 P. 2d 1203 , 1211 (1990) (non-party must intervene to participate in pending action) . This Court must therefore strike CONNECTIONS' pleading filed June 19, 2014 . 4 CONNECTIONS' status as a non-party was not of its own making. Its Special Permit co-applicant created the circumstances at hand. However, CONNECTIONS has to deal with the circumstances within the requirements of the law. 8 S. Utsunomiya Enterprises, Inc. v. Moomuku Country Club, 75 Haw. 480 , 493 , 866 P.2d 951, 959 (1994) does not help CONNEC- TIONS in this instance. In Utsunomiya, the appellant did not specifically name S. Utsunomiya Enterprises, Inc . (which was a party at the trial court level) as an "appellee" in its notice of appeal . A question then arose as to the effect of this omission and whether S . Utsunomiya Enterprises, Inc . was or was not a party- appellee in the appeal . The Hawaii Supreme Court, citing Rule 3 (c) , HRAP, held that S. Utsunomiya Enterprises, Inc . , by operation of Rule 3 (a) , HRAP, was automatically deemed to be a party- appellee, even if it had not been specifically named as an appellee in the notice of appeal .' Rule 72, HRCP governing agency appeals to the circuit court, however, does not contain similar language as that which appears in Rule 3 (c) , HRAP. Rule 72 (a) , HRCP does not declare that every person who participated in the contested case before the agency below is "automatically" deemed to be a party-appellee in the agency appeal . See In Re Hawaiian Government Employees Association, Local 252, AFCME, AFLO-CIO, supra. Rule 72 (a) states : [T] he term "appellant" means any person or persons filing a notice of appeal, and "appellee" means every governmental body or official (other than a court) whose decision, order or action is appealed from, and every other party to the proceedings . 5 Rule 3 (c) , HRAP states that the party filing the appeal is the appellant and that "All other parties shall be denominated appellees . '" 9 2 . CONNECTIONS SHOULD HAVE FILED ITS OWN SEPARATE APPEAL IN A SEPARATE CIVIL APPEAL DOCKET. If it wanted to bring its own challenge to the Appellee Windward Planning Commission' s decision, CONNECTIONS had to initiate its own separate agency appeal in a separate civil appeal docket . This is the only mechanism that was and is available to CONNECTIONS under the applicable law. CONNECTIONS could then move to consolidate its own separate agency appeal with this case, Civil No . 14-1-0223 . While some might argue this puts form over substance, the substance of an appeal is governed by statute (not equity) . See Stewart Properties Inc. v. Brennan, supra. Assuming that CONNECTIONS is deemed to be a party- appellee in this case (based on the Utsunomiya decision) , no law authorizes CONNECTIONS to file what essentially is a "cross-appeal" filed by an appellee . Section 91-14 , HRS and Rule 72 , HRCP make no provision for "cross-appeals . " Compare with Rule 4 . 1, HRAP that expressly permits a party-appellee to file a "cross-appeal" in a pending appeal . If CONNECTIONS wanted to pursue its own separate and independent agency appeal from the Appellee Windward Planning Commission' s May 19, 2014 written decision, CONNECTIONS had to file a separate notice of appeal in a separate civil appeal docket and not in this case, Civil No. 14-1-0223 . Further, CONNECTIONS, as an appellee, cannot make itself an appellant, by its "joinder" in the notice of appeal taken by the Applicant-Appellant CBESS, its co- applicant . 10 3 . THIS COURT MUST DISMISS CONNECTIONS` DEFECTIVE NOTICE OF APPEAL. CONNECTIONS' two-fold pleading that it filed on June 19, 2014 contains both a notice of appeal from the Appellee Windward Planning Commission' s May 19, 2014 written decision and a "joinder" in the pleadings that its Special Permit co-applicant, the Applicant-Appellant CRESS, had previously filed in this case, Civil No. 14-0223 , on June 9, 2014 . As stated above, no law authorized CONNECTIONS, a non-party in this case, to file such a pleading without leave of court or other lawful authority. Even assuming that CONNECTIONS is "automatically" deemed to be a party-appellee in this case (pursuant to the Utsunomiya decision) , as noted above, no law authorizes CONNECTIONS to file what in essence is a "cross-appeal" in this case, Civil No. 14-1- 0223 . While cross-appeals are expressly permitted in the appellate courts under the Hawaii Rules of Appellate Procedure (Rule 4 . 1, HRAP) , cross-appeals are not allowed in an agency appeal to the circuit court under Section 91-14, HRS and Rule 72, HRCP. 4 . EVEN ASSUMING THAT CONNECTIONS IS "AUTOMATICALLY" DEEMED TO BE AN APPELLEE IN THIS CASE. CONNECTIONS CANNOT "JOIN" IN ITS CO-APPLICANT' S NOTICE OF APPEAL. If the Utsunomiya decision applies in this instance and makes CONNECTIONS an "automatic" party-appellee, CONNECTIONS is entitled to file a brief as an appellee and to make argument in this case as any other appellee can do. However, nothing in Section 91-14 , HRS or Rule 72, HRCP allows CONNECTIONS to "join" in its co-applicant' s notice of appeal filed June 9, 2014 and thereby 11 become an appellant in this case. To the extent that CONNECTIONS' "joinder" is an attempt by CONNECTIONS to "join" in its co- applicant' s notice of appeal and become an appellant herein, no law authorizes such a "joinder. '" 5 . THIS COURT SHOULD ENTER SUMMARY JUDGMENT ON CONNECTIONS' PURPORTED NOTICE OF APPEAL AND "JOINDER" AGAINST CONNECTIONS AND IN FAVOR OF THE APPELLEES . To the extent that this Court believes that it should dismiss CONNECTIONS' purported notice of appeal and preclude CONNECTIONS from trying -to give itself the status of an appellant by its "joinder, " this Court should enter summary judgment against CONNECTIONS and in favor of the Intervenor-Appellee Jeffrey K. Gomes and the other Appellees on CONNECTIONS' purported notice of appeal and "joinder. " CONCLUSION The Intervenor-Appellee Jeffrey K. Gomes asks this Court for the following relief : 1 . First, to strike the pleading that CONNECTIONS, a non-party, filed in this case on June 19, 2014 because it is an unauthorized pleading. This request is based on Rule 12 (b) (1) & (G) , HRCP. 2 . Second, if CONNECTIONS is deemed to be an "automatic" party-appellee in this case, to dismiss CONNECTIONS' purported notice of appeal that CONNECTIONS filed on June 19, 2014 since such an appeal is not authorized by law and, further, to enter summary judgment 12 against CONNECTIONS on its notice of appeal . If CONNECTIONS wanted to pursue its own agency appeal, it had to initiate its appeal in a separate civil appeal docket . This request is based on Rules 12 (b) (1) & (6) and 56, HRCP. 3 . Third, if CONNECTIONS is deemed to be an "automatic" party-appellee in this case, to dismiss its "joinder" to the extent that the "joinder" purports to give CONNECTIONS the status as an appellant in this case and, further, to enter summary judgment against CONNEC- TIONS in this regard. No law allows such a "joinder. " This Court' s favorable ruling on Intervenor-Appellee Jeffrey K. Gomes' motion will have implications on the standing of the Applicant-Appellant CBESS to maintain its appeal herein, but this subject will be raised and discussed separately and at a later time. DATED: Kailua-Kona, Hawaii, December 1, 2014 JEFFREY K. GOMES, Intervenor- Appellee By: dkt� MICHAEL J. MATSUKAWA His Attorney 13 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES, ) (Agency Appeal) 1 Applicant-Appellant, ) NOTICE OF HEARING MOTION vs . ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; DEPARTMENT OF } PLANNING, COUNTY OF HAWAII, } ) Appellees, ) } and ) ) SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY GOMES, ) Intervenor; SIDNEY FUKE, ) Intervenor' s Representative; ) TERENCE YOSHIOKA, Intervenors ) Representative, ) ) Intervenor-Appellees. } ) NOTICE OF HEARING MOTION TO: ALL THOSE LISTED ON THE ATTACHED CERTIFICATE OF SERVICE YOU ARE HEREBY NOTIFIED that the foregoing Motion shall come on for hearing before the Honorable Ronald Ibarra, Judge of the above-entitled Court, in his courtroom located at 81-940 Halekii Street, Kealakekua, Hawaii, on TUESDAY, JANUARY 5, 2015, at 10 o'clock a.m. , or as soon thereafter as counsel may be heard. DATED: Kailua-Ilona, Hawaii, December 1, 2014 JEFFREY K. GOMES, Intervenor- Appellee La By: MICHAEL J. MATSUKAWA His Attorney 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES, ) (Agency Appeal) } Applicant-Appellant, ) CERTIFICATE OF SERVICE vs . ) ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; DEPARTMENT OF } PLANNING, COUNTY OF HAWAII, ) ) Appellees , } } and ) } SANDRA SONG, in her capacity as } Hearing officer; JEFFREY COMES, } Intervenor; SIDNEY FUKE, } Intervenor' s Representative; ) TERENCE YOSHIOKA, Intervenor' s } Representative, ) ) Intervenor-Appellees. ) CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a copy of the foregoing document (s) was duly served upon the following parties via the U.S . Post Office, Kailua-Kona, Hawaii, postage prepaid, addressed as follows : SANDRA P. SONG, ESQ. Hearings officer 10 Kamehameha Avenue Hilo, Hawaii 96720 TED H. S . HONG, ESQ. P .O . Box 4217 Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General 235 So. Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AMY SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAII PLANNING DIRECTOR LAUREEN T. MARTIN, ESQ. Assistant Corporation Counsel 74-5044 Ane Keohokalole Highway Kailua-Kona, Hawaii 96740 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII ALAN M. OKAMOTO, ESQ. Nakamoto Okamoto & Yamamoto 187 Kapiolani Street Hilo, Hawaii 96720 DATED: Kailua-Kona, Hawaii, December 1, 2014 JEFFREY K. GOMES, Appellee- Intervenor By: U'�'�'4 MICHAE J. MATSUKAWA His Attorney 2 MICHAEL J. MATSUKAWA, 1865-0 Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Telephone No. : (808) 329-1385 Attorney for Intervenor-Appellee JEFFREY K. GOMES w ra 1 xr IN THE CIRCUIT COURT OF THE THIRD CIRCUIT _JL3 .n STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-022 n r = SUPPORT SERVICES, ) (Agency Appeal) rj Applicant-Appellant, ) co INTERVENOR-APPELLEE JEFFREY K. VS . ) GOMES' MOTION (1) TO DISMISS NOTICE OF APPEAL TAKEN BY WINDWARD PLANNING COMMISSION, ) APPLICANT-APPELLANT COMMUNITY COUNTY OF HAWAII; DEPARTMENT OF ) BASED EDUCATION SUPPORT PLANNING, COUNTY OF HAWAII, ) SERVICES (FILED JUNE 9, 2014) AND (2) FOR SUMMARY JUDGMENT Appellees, ) ON SAID NOTICE OF APPEAL; MEMORANDUM IN SUPPORT OF and ) MOTION; DECLARATION OF MICHAEL J. MATSUKAWA; APPENDICES "1" SANDRA SONG, in her capacity as } TO "5" ; NOTICE OF HEARING Hearing Officer; JEFFREY GOMES, ) MOTION; CERTIFICATE OF SERVICE Intervenor; SIDNEY FUKE, ) Intervenor' s Representative; ) TERENCE YOSHIOKA, Intervenor' s } HEARING: Representative, ) DATE: FEBRUARY 10 , 2015 TIME: 8 : 00 A.M. Intervenor-Appellees. ) JUDGE: HON. RONALD IBARRA 126114.5\j-gomes\dismiss.mtn INTERVENOR-APPELLEE JEFFREY K. GOMES' MOTION (1) TO DISMISS NOTICE OF APPEAL TAKEN BY APPLICANT- APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES (FILED JUNE 9, 2014) AND (2) FOR SUMMARY JUDGMENT ON SAID NOTICEOF APPEAL The Intervenor-Appellee Jeffrey K. Gomes moves this Court for an order that dismisses the notice of appeal that the Applicant-Appellant Community Based Education Support Services (also called °CBESS° ) filed herein on June 9, 2014 and for an order that grants summary judgment on said notice of appeal in favor of the Intervenor-Appellee Jeffrey K. Gomes and against the Applicant- Appellant Community Based Education Support Services ( "CBESS" ) . The Intervenor-Appellee Jeffrey K. Gomes contends that the Applicant-Appellant CBESS is not an "aggrieved party" and lacks standing to maintain an agency appeal in this Court even though it participated in the contested case below. The Intervenor-Appellee Jeffrey K. Gomes relies upon Rules 12 (b) (1) & (6) , 56 and 81 (e) , HRCP and the agency record filed in this case . DATED: Kailua-Kona, Hawaii, December 11 2014 JEFFREY K. COMES, Intervenor- Appellee s By. MICHA J. MATSUKAWA His Attorney 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES, ) (Agency Appeal) } Applicant-Appellant, ) MEMORANDUM IN SUPPORT OF vs . ) MOTION } WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; DEPARTMENT OF ) PLANNING, COUNTY OF HAWAII, ) Appellees, ) } and ) ) SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY GOMES, ) Intervenor; SIDNEY FUKE, ) Intervenor' s Representative; ) TERENCE YOSHIOKA, Intervenor' s ) Representative, } Intervenor-Appellees. ) MEMORANDUM IN SUPPORT OF MOTION SUBJECT INDEX P_aare Table of Authorities Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. STATEMENT OF THE MATERIAL FACTS . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. APPLICABLE LAW 1. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2 . Agency Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 3 . Judicial Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 C. AS TO THE COMMUNITY BASED EDUCATION SUPPORT SERVICES' STANDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 D. ARGUMENT 1 . THE APPLICANT-APPELLANT CBESS PARTICIPATED IN THE CONTESTED CASE BELOW BECAUSE IT WAS "NAMED" IN THE APPLICATION AS A CO-APPLICANT . . . . . . 14 2 . THE APPLICANT-APPELLANT CBESS CANNOT SATISFY THE "INJURY-IN-FACT" TEST FOR STANDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 3 . CONSTITUTIONAL DUE PROCESS DOES NOT REQUIRE THIS COURT TO GIVE THE APPLICANT-APPELLANT CBESS THE RIGHT TO MAINTAIN AN AGENCY APPEAL . . . . . . 14 4 . ARTICLE XI, SECTION 9 OF THE HAWAII STATE CONSTITUTION DOES NOT APPLY . . . . . . . . . . . . . . . . . . . . . . . 16 5 . THIS COURT SHOULD DISMISS THE APPEAL TAKEN BY THE APPLICANT-APPELLANT CBESS AND ALSO ENTER SUMMARY JUDGMENT IN FAVOR OF INTERVENOR- APPELLEE JEFFREY K. GOMES . . . . . . . . . . . . . . . . . . . . . . . . . 17 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 i TABLE OF AUTHORITIES Paae Primary Sources Alohacare v. Ito, 126 Haw. 326, 271 P. 3d 621 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 9, 11, 13 County of Hawaii v. Ala Loop Homeowners, 123 Haw. 391, 235 P. 3d 1103 (2010) . . . . . . . . . . . . . . . . . . . . . 16 DW Aina Le/a Development LLC v. Bridge Aina Le-la LLC, SOAP No. 13-000091, Haw. P.3d , Hawaii LEXIS 2014 (Nov. 25, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . 13 , 15 Ka Pa lakai -10 Ka laina v. Land Use Commission, 94 Haw. 31, 7 P. 3d 1068 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . 11 Kilakila to Haleakala v. Board of Land and Natural Resources, 131 Haw. 193, 317 P.3d 27 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11 Medeiros v. Hawaii County Planning Commission, 8 Haw. App. 183 , 797 P.2d 59 (1990) . . . . . . . . . . . . . . . . . . . . 15 Sandy Beach Defense Fund v. City Council, 70 Haw. 361, 773 P.2d 250 (1989) . . . . . . . . . . . . . . . . . . . . . . . 15 Sierra Club v. Office of Planning, 109 Haw. 411, 126 P. 3d 1098 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Legislative Sources Hawaii State Constitution Article XI, Section 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ii Table of Authorities, cont . Page Hawaii Revised statutes Section 91-1 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 14 Section 91-14 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 8 Section 205-4 (e) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Hawaii Rules of Civil Procedure Rule 72 (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Rule 12 (b) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 17 Rule 12 (b) (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 17 Rule56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Planning Commission Rules Rule 1-3 (m) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 , 9, 10, 14 Rule4-6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Rule 4-6 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 14 Rule4-6 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 iii MEMORANDUM IN SUPPORT OF MOTION The Intervenor-Appellee Jeffrey K. Gomes moves this Court for an order that dismisses the notice of appeal that the Appli- cant-Appellant Community Based Education Support Services (also called "CBESS") filed herein on June 9, 2014 and for an order that grants summary judgment on said notice of appeal in favor of the Intervenor-Appellee Jeffrey K. Gomes and against the Applicant- Appellant Community Based Education Support Services ( "CBESS" ) . The Intervenor-Appellee Jeffrey K. Gomes contends that the Applicant-Appellant CRESS is not an "aggrieved party" and lacks standing to maintain an agency appeal in this Court even though it participated in the contested case below. The Intervenor-Appellee Jeffrey K. Gomes relies upon Rules 12 (b) (1) &:(6) , 56 and 81 (e) , HRCP and the agency record filed in this case . Summary of Argument In Alohacare y. Ito, 126 Haw. 326, 342-343 , 271 P.3d 621, 627-628 (2012) , the Hawaii Supreme Court held that the term "person aggrieved" as it is used in Section 91-14 (a) , HRS (Appendix 113 " ) , dealing with agency appeals to the circuit courts, is synonymous with the term judicial "standing. " In other words, a person who takes an agency appeal to the circuit court under Section 91-14 (a) , HRS, such as the Applicant-Appellant CBESS, must have judicial standing to do so, i .e . , must be "someone who has suffered ' injury in fact . " It is not enough for it to have participated in the contested case below. The agency record shows that the Applicant-Appellant CRESS has not suffered an "injury in fact" and, therefore, lacks judicial standing to take an agency appeal from the Appellee Windward Planning Commission' s May 19, 2014 written decision to this Court . As such, this Court must dismiss the Applicant- Appellant CRESS' notice of appeal filed herein on June 9, 2014 and must also grant summary judgment against the Applicant-Appellant CRESS and in favor of Intervenor Jeffrey K. Gomes in this case. A. STATEMENT OF THE MATERIAL FACTS The following facts are not disputed. 1 . In July 2012 , the Applicant-Appellant CBESS and the Connections New Century Public Charter School submitted a joint application for a Special Permit to build and operate new charter school facilities and to maintain related educational programs on a 70 acre parcel of state-owned land in South Hilo, Hawaii . (Record on Appeal, Record Pages 2-327; Doc . #2) (Appendix "1" ) 2 . The New Century Public Charter School (also called "Connections") and the Applicant-Appellant CBESS are separate legal entities . Connections leases the subject land from the State of Hawaii under General Lease No. 6029 (the "project site" ) . (Record on Appeal, Record Pages 1934-1959; Doc . #322) Connections currently operates two campuses -- one in downtown Hilo (at the former "Kress Building" ) and one at Nani Mau Gardens . 3 . Connections seeks to consolidate its two campuses on the project site and, further, to expand its charter school 2 population and programs . The proposed facilities include several classrooms, a dormitory, a cafeteria and a gymnasium as well as outdoor recreational and educational areas . Connections expects to develop the project site under a phased development plan_ (Record on Appeal, Record Pages 72-73 , 420, Doc . ##20, 37) 4 . According to the agency record, the Applicant- Appellant CBESS owns the Kress Building in downtown Hilo where Connections maintains its present downtown Hilo campus . The Applicant-Appellant CBESS is "affiliated" with Connections (Record on Appeal, Record Page 27, Doc. #2) , particularly with fund raising. (Record on Appeal, Record Pages 2635 , 2639; Transcript, April 18 , 2014, Vol . I, Tr. Pages 40, 44, Doc. #351) S . There is no evidence in the agency record that explains the specific role that the Applicant-Appellant CBESS has in the construction, operation and maintenance of the proposed charter school facilities and programs . 6 . Neither the County of Hawaii Planning Department nor the Appellee Windward Planning Commission questioned why the Applicant-Appellant CBESS was described as a co-applicant in the Special Permit application. 7 . The Appellee Windward Planning Commission treated the Applicant-Appellant CBESS as a co-applicant and "agency party" in the agency proceeding below and the Applicant-Appellant CBESS, together with Connections, actively participated in the contested 3 case before the Appellee Windward Planning Commission. ' 8 . The County of Hawaii Planning Department recommended that the Appellee Windward Planning Commission approve the Special Permit application, subject to various conditions _ (Record on Appeal, Record Pages 419-772, 773-787, 881-896 , 1227-1231, Doc. 4#37, 38, 78 , 193) The state Office of Planning also offered favorable "consistency" comments . (Record on Appeal, Record Pages 401-404, Doc. #27) 9 . On July 12, 2013 , the Appellee Windward Planning Commission referred the matter to a hearings officer (Sandra Song) (Record on Appeal, Record Pages 2204-2205 , Doc. #349) who held evidentiary hearings in which the Applicant-Appellant CBESS, Connections and Intervenor Jeffrey K. Gomes all actively participated. The hearings officer also received public testimony at each of the several evidentiary hearings. (Record on Appeal, Record Pages 2206-4096, Doc . #4350-399) 10 . The hearings officer then submitted her recommendation to the Appellee Windward Planning Commission that the commission deny the Special Permit . (Record on Appeal, Record Pages 4097-4112, Doc. #400) 11 . The agency record shows that the Appellee Windward Planning Commission received substantial public testimony (Record on Appeal, Record Pages 405-411, 788-793 , 819-822, 829-836 , 841- 844, 846-848, 873-880 , 897-911, 1072-1226, 1232-1276 , 1289-1700, x Connections was represented by Deputy Attorney General Carter Siu. 4 1702-1707 . 1710-1826, 1886-1933 , 1960-1999, 2072-2073 , 2097-2121, 3916a-3329, 3050-3911, 3960-4001, 4224-4242 , Record Pages 2596- 3196, transcripts containing public testimony) , as well as the hearings officer' s report, exceptions to and arguments in support of the hearings officer' s recommendation, the Planning Department' s favorable recommendation and the state office of Planning' s favorable "consistency" comments (Record on Appeal , Record Pages 4097-4112 , Doc. #400 [hearings officer report] , Record Pages 4149- 4169, Doc. #407 [joint exceptions] , Record Pages 4181-4214, Doc . #411 [argument in support] , Record Pages 773-787, 881-896, 1227- 1231, Doc . ##37, 38, 193 [planning department recommendation} , Record Pages 401-404 , Doc. #27 [state office of planning comment] , Record Pages 4215-4223, 4243-4260 [party arguments] , Record Pages 4261-4288 [transcript, May 1, 2014] , Record Pages 1828-1853 [transcript, December 6, 2012] , Record Pages 2003-2056 [transcript, January 10, 2013] , Record Pages 2130-2156 [transcript, March 7, 20131 ) . 12 . On May 1, 2014, the Appellee Windward Planning Commission held its final hearing on the Special Permit application and heard closing arguments from the contested case participants .' ' The Applicant-Appellant CBESS' closing argument appears in the hearing transcript for May 1, 2014 . (Record on Appeal, Record Pages 4261-4288 , Doc. #424) The critical portions of its argument state, " [W]e're requesting you as a Planning Commission reject the hearings officer's decision. It lacks any legal authorities or legal citation and omits key evidence. " (Record Pages 4275-4276, Transcript, Page 16) 11fT1he only intelligent choice that you can make -- is actually to reject the hearing officer's report, and actually approve the application. " (Record Page 4276, Transcript Page 16) In contrast, the Intervenor- Appellee Jeffrey K. Gomes argued, " felt's the applicant's and not 5 The Deputy Attorney General representing Connections did not present argument at the final hearing. 13 . At the end of the May 1, 2014 hearing, the Appellee Windward Planning Commission held its vote on the Special Permit application. 14 . The Appellee Windward Planning Commission voted to deny the Special Permit . The vote was 4-1 to deny the Special Permit, with 2 commissioners being excused from voting. (Record on Appeal, Record Pages 4289-4292, Doc . #426) 15 . On May 19, 2014 , the Appellee Windward Planning Commission served the contested case participants with its written findings, conclusions, decision and order by mail . (Record on Appeal, Record Pages 4300-4315, Doc. #430) 16 . On June 9, 2014 , the Applicant-Appellant CBESS alone filed a notice of appeal from the Appellee Windward Planning Commission' s May 19, 2014 written decision. 17 _ The Applicant-Appellant CBESS did not name Connections, who is its co-applicant for the Special Permit, as either an "appellant" or an "appellee" in the notice of appeal . 18 . On June 19, 2014, one day before the appeal period necessary the community or the intervenors burden, responsibility to have the burden of proof to show how the request is consistent with the guidelines of the Special Permit and that has to be done by preponderance of evidence. " (Record Page 4277, Transcript Page 17) " You might have an idea as to the total project, but you dont have an idea as far as how the infrastructure requirements for the total project is going to be addressed. " (Record Page 4278, Transcript Page 18) " You 've got to look at its totality. You cannot take it in segments. " (Id. ) 6 expired, Connections attempted to file its own separate notice of appeal from the Appellee Windward Planning Commission' s May 19, 2014 written decision and a "joinder" in the Applicant-Appellant CBESS' June 9, 2014 notice of appeal . 19 . Connections' purported notice of appeal and "joinder" are the subject of a separate motion brought by the Intervenor-Appellee Jeffrey K. Gomes for a dismissal of and summary judgment on Connections' notice of appeal and "joinder. "' 20 . The Applicant-Appellant CBESS requested three extensions of the deadline for filing its Opening Brief, which Opening Brief is due on December 24, 2014 , 21 . Assuming that Connections is a party-appellant (and not an "appellee" ) in this case, based on its purported June 19, 2014 notice of appeal and "joinder, " Connections did not seek leave to extend the filing deadlines for its opening Brief and has not yet filed its opening Brief .' B. APPLICABLE LAW 1 . Generally Just because the Appellee Windward Planning Commission allowed the Applicant-Appellant CBESS to participate in the 3 The hearing is set for January 6, 2015 . Under Rule 72 (f) , HRCP (Appendix 1'211 ) , the Opening Brief is due 40 days after the record on appeal is filed. The record on appeal was filed on August 25, 2014 . More than 40 days have since passed. 7 contested case below' does not mean that the Applicant-Appellant CBESS automatically has judicial standing to maintain an agency appeal to this Court . No doubt, as the "lead" litigant below, the Applicant-Appellant CBESS is disappointed with the Appellee Windward Planning Commission' s decision (1) because the Planning Department had recommended that the commission approve the Special Permit, (2) because it believed that the evidence supported the issuance of the Special Permit and (3) because the construction of schools and their operation have been allowed in the Agricultural District in the past under Special Permits . Nevertheless, the agency record does not demonstrate that the Applicant-Appellant CBESS is a "person aggrieved" or has judicial standing to pursue an agency appeal to this Court . Section 91-14 (a) , HRS (Appendix 113") allows any "person" who is "aggrieved" by an agency' s "final decision . . . in a contested case" to file and to maintain an agency appeal to the circuit court : (a) Any person aggrieved by a final decision and order in a contested case . . . is entitled to judicial review thereof under this chapter; but nothing in this section shall be deemed to prevent resort to other means of review, redress, relief, or trial de novo, including the right of trial by jury provided by law. (emphasis added) 5 Planning Commission Rule 1-3 (m) (Appendix "3" ) defines a "party" as "any person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party in a proceeding. " In this instance, the Applicant-Appellant CBESS joined in the Special Permit application and, thus, was a "person . . . named . . . as a party" in the agency proceeding. Planning Commission Rule 4-6 (d) states that the Planning Commission "establishes" the parties and then proceeds with the contested case. (Appendix "4" ) 8 In Alohacare v. .Ito, supra, the Hawaii Supreme Court interpreted the term "person aggrieved" to mean that the complaining person must have judicial "standing" to maintain an appeal. See also Kilakila -o Haleakala v. Board of Land and Natural Resources, 131 Haw. 193 , 204, 317 P. 3d 27, 38 (2013) . 2 . Agency Standing It is important to note that agencies and courts have different standards to determine who may be allowed to participate in proceedings that are brought before them. The agency standard under the Hawaii Administrative Procedure Act (Chapter 91, HRS) is more liberal than the judicial standard. For example, under Section 91-1 (3) , HRS (Appendix 11311 ) and Planning Commission Rule 1- 3 (m) and Rule 4-6 (a) (Appendices 113" and 114" ) , a person is treated as a party in an agency proceeding before the Appellee Windward Planning Commission if it is "NAMED" in the application.' In this respect, the Appellee Windward Planning Commission' s agency standard is very liberal . As long as one is "NAMED" in the application as an applicant, that person is treated as a party in the agency proceeding. In this instance, the Appellee Windward Planning Commission "established" the Applicant- Appellant CBESS as an "agency party" because it was "NAMED" in the Special Permit application as being one of two co-applicants for 6 Section 91-1 (3) , HRS and Planning Commission Rule 1-3 (m) are identical and both define a "party" in an agency proceeding as a "person or agency named . . . as a party . . . . " (See Appendix 113 . 11 ) 9 the Special Permit . Planning Commission Rule 4-6 (Appendix "4") , on the other hand, deals with a person who is NOT "named" as a party in the application, but who nonetheless seeks to participate in the agency proceeding. To do so, he, she or it must demonstrate that he, she or it : *has an interest that is "clearly distinguishable from that of the general public" ; *is a government agency whose jurisdiction covers the land involved; *has some property interest in the land or lawfully resides on the land; *may suffer an "actual or threatened injury in fact" from the proposed action; *is a descendant of native Hawaiians who inhabited the Hawaii islands prior to 1778, who practices those rights which were customarily and traditionally exercised for subsistence, cultural or religious purposes . The Appellee Windward Planning Commission made no determination as to whether the Applicant-Appellant CBESS met the requirements of Planning Commission Rule 4-6 . The Appellee Windward Planning Commission was not required to do so because the Applicant-Appellant CBESS had already been "NAMED" as one of the two co-applicants for the Special Permit and the commission had therefore "established" it as a party according to Section 91-1 (3) , HRS (Appendix 113 " ) and Planning Commission Rule 1-3 (m) and Rule 4- 6 (a) (Appendices 113" and 1141F) . 10 3 . Judicial Standing Courts have a much stricter standard for determining who may participate in a court proceeding. See Alohacare v. Ito, supra (showing of an "injury in fact" required) . Just because a person may have participated in a contested case before an agency does not mean that person automatically has standing to seek judicial relief in the circuit court by way of an agency appeal . This principle is not a policy of exclusion but is a long-standing judicial princi- ple. There are other cases, in addition to Alohaca e v. Ito, supra, and Kila ila to Haleakala v. Board of Land and Natural Resources, supra, where the Hawaii Supreme Court has applied the stricter judicial standard against an appellant in an agency appeal, such as Ka Pa lakai to Ka laina v. Land Use Commission, 94 Haw. 31, 42-44, 7 P. 3d 1068, 1079-1080 (2000) and Sierra Club v. Office of Planning, 109 Haw. 411, 414, n. 2 , 126 P. 3d 1098, 2001, n. 2 (2006) , where the court reviewed the appellants' standing to maintain their respective appeals to the circuit court against judicial standards . The court' s cryptic statement in Sierra club v. Office of Planning, supra, which appears in a footnote, is better understood by the fact that the Legislature requires (mandates) the state office of Planning to be a party "in every case, " including an agency appeal . Section 205-4 (e) (1) , HRS states that "The office of state planning . . . shall in every case appear as [a] party. " Section 205-4 (e) (1) , HRS. (See Appendix 115 . " ) In other words, the 11 state Office of Planning has judicial standing by virtue of statute and can pursue an appeal from an adverse agency decision. C. AS TO THE COMMUNITY BASED EDUCATION SUPPORT SERVICES' STANDING The record on appeal at best shows that the Applicant- Appellant CBESS is an advocate for Connections, was willing to be a co-applicant in the Special Permit application and was the "lead" litigant in the contested case below.' The agency record shows that the Applicant-Appellant CBESS does not have an interest in the land covered by State of Hawaii General Lease 5-6029 . All that the agency record reveals is that the Applicant-Appellant CBESS owns the Kress Building in downtown Hilo where Connections maintains its present downtown Hilo campus and is "affiliated" with Connections (Record on Appeal , Record Page 27) , particularly with fund raising. (Record on Appeal, Record Pages 2635, 2639; Transcript, April 18, 2014, J. Thatcher, Tr. Pages 40, 44) There is no evidence in the agency record that explains how the Applicant-Appellant CBESS is affected by the Appellee Windward Planning Commission' s decision to deny the Special Permit, i.e . , what "injury in fact" the Applicant-Appellant has sustained as a result of the Appellee Windward Planning Commission' s 7 At one point, Ted Hong stated that the Deputy Attorney General had to appear in the proceeding. (Record on Appeal, Record Pages 1708-1709, letter dated December 5, 2412) 12 decision.' In Alohacare v. Ito, supra, the court required the following as proof of an appealing person' s standing: HRS chapter 91 does not define the term "person aggrieved, " but the court has noted that " 'person aggrieved' " appears to be essentially synonymous with someone who has suffered "injury in fact . ,, (citing case) Whether a party has suffered an "injury in fact" is determined under a three-part test : " (1) whether the person has ' suffered an actual or threatened injury as a result of the [agency' s decision] , ' (2) whether the injury is fairly traceable to the [agency' s decision] , ' and (3) whether 'a favorable decision would likely provide relief of [the person' s] injury. ' " (citing case) If the Applicant-Appellant CBESS' position is that it is some kind of representative or agency of Connections, that fact, if true, does not appear in the agency record and, in any event, does not alter the fact that Connections is the "injured" person. Nor can the Applicant-Appellant CBESS contend that it had agreed to take the agency appeal on behalf of Connections (as Connections' alter ego or at Connections' request) since there is no evidence to that effect in the agency record whereby Connections can assign its cause of action to another. ' An agency appeal is taken "on the record" and extraneous matter are not to be considered. DW Aina Lela Development, LLC v. Bridge Aima Lela, LLC, SCAP No. 13-000091, Haw. P.3d , Hawaii LEXIS 2014 (Nov. 25, 2014) , Slip Opinion, Pages 66- 67 . 13 D. ARGUMENT 1 . THE APPLICANT-APPELLANT CBESS PARTICIPATED IN THE CONTESTED CASE BELOW BECAUSE IT WAS "NAMED" IN THE APPLICATION AS A CO-APPLICANT. It is undisputed that the Applicant-Appellant CBESS submitted the application for the Special Permit as one of two co- applicants and pursuant to Section 91-1 (3) , HRS (Appendix 11311 ) and Planning Commission Rule 1-3 (m) and Rule 4-6 (a) {Appendices "3+1 and "4" ) , the Appellee Windward Planning Commission allowed it to participate in the contested case because it had been "NAMED" as a party in the application. 2 . THE APPLICANT-APPELLANT CBESS CANNOT SATISFY THE "INJURY-IN-FACT" TEST FOR STANDING. The Applicant-Appellant CBESS had substantial opportunity below to define its specific interest in the application and in the subject matter of the contested case below, but did not do so. At best, the agency record shows that the Applicant-Appellant CBESS acted as the "lead" advocate in favor of the Special Permit application, nothing more . There is no evidence that the Applicant-Appellant CBESS suffered any "injury in fact" as a result of the Appellee Windward Planning Commission's decision (the first of three factors in the "injury-in-fact" test) . 3 . CONSTITUTIONAL DUE PROCESS DOES NOT REQUIRE THIS COURT TO GIVE THE APPLICANT-APPELLANT CBESS THE RIGHT TO MAINTAIN AN AGENCY APPEAL. If this Court applies the judicial test for standing in this case, which it must, such action will not deny the Applicant- 14 Appellant CBESS` right to constitutional due process . First, the agency record does not show that the Applicant-Appellant CBESS has any protectable property interest in the application, in the subject matter covered by the application or in the land covered by State of Hawaii General Lease 6029 . Second, constitutional due process is a flexible concept . In Sandy Beach Defense Fund v. City Council, 70 Haw. 361, 378 , 773 P. 2d 250, 261 (1989) , the Hawaii Supreme Court explained that due process is satisfied if the complainant had notice of a permit application and had an opportunity to be heard thereon. That opportunity to be heard does not include the right to an agency appeal from an adverse decision rendered in a contested case. Cf. Medeiros v. Hawaii Count Planning Commission, 8 Haw. App. 183 , 195-198 , 797 P . 2d 59, 65-67 (1990) . The court continued in the Sandy Beach case that even if the complainant had a "protectable property interest" at stake, the agency had notified the complainant of the permit application and the complainant participated in many public meetings and hearings that were held on the application. For that reason, the court held that "there is no evidence of procedural impropriety or other corruption of the hearing and decision-making process" to raise constitutional due process concerns . Accord, DW Aina Le-a Development, LLC v. Bridge Aina Lela, LLC, supra, Slip opinion at Pages 72-74 . 15 4 . ARTICLE XI, SECTION 9 OF THE HAWAII STATE CONSTI- TUTION DOES NOT APPLY. In County of Hawaii V. Ala Loop Homeowners, 123 Haw. 391, 409, 235 P_3d 1103 (2010) , the court discussed a person' s right to maintain a private action to enforce an "environmental law under Article XI, Section 9 of the Hawaii State Constitution. In that case, the plaintiff was an association of homeowners who complained that a charter school was operating a school and conducting school activities on agricultural land without a Special Permit . The plaintiff, who alleged that the charter school was not exempt from the Special Permit law, then brought a private direct action in the circuit court against the charter school to enforce the Special Permit law. The Hawaii Supreme Court held that the plaintiff could enforce that law by way of a private direct action. However, the procedural posture between the Ala Loop case and the present agency appeal is different . First, the case at hand is an agency appeal and not a direct action. See County of Hawaii v. Ala Loop Homeowners, supra, 123 Haw. at 406, n. 20, 418- 422, 235 P.3d at 1118, n. 20, 1130-1134 (distinguishing the subject of standing in an agency appeal case from a right to bring a private direct action) . Second, in the case at hand, the Applicant-Appellant CRESS is not trying to enforce a violation of the Special Permit law by way of a direct action. Third, although the Applicant-Appellant CRESS disagrees with the Appellee Windward Planning Commission' s determination, under the applicable law, the Appellee Windward Planning Commission' s decision does not give rise to a private right of action (but only to an agency appeal that can 16 only be maintained by an "appropriate appellant" ) . 5 . THIS COURT SHOULD DISMISS THE APPEAL TAKEN BY THE APPLICANT-APPELLANT CBESS AND ALSO ENTER SUMMARY JUDGMENT IN FAVOR OF INTERVENOR-APPELLEE JEFFREY K. GOMES . The Applicant-Appellant CBESS does not have standing to maintain the appeal that it initiated on June 9, 2014 . This Court must therefore dismiss the notice of appeal pursuant to Rule 12 (b) (1) &: (6) , HRCP and grant summary judgment pursuant to Rule 56, HRCP in favor of the Intervenor-Appellee Jeffrey K. Gomes and against the Applicant-Appellant CBESS . CONCL S I ON The Applicant-Appellant CBESS cannot take an appeal to this Court for lack of standing and, therefore, this Court should dismiss the appeal and enter summary judgment herein in favor of Intervenor-Appellee Jeffrey K. Gomes and against the Applicant- Appellant CBESS . DATED: Kailua-Kona, Hawaii, December 1 JEFFREY K. GOMES, Intervenor- Appellee By: MICHAEL J. MATSUKAWA His Attorney 17 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO. 14-1-0223 SUPPORT SERVICES, } (Agency Appeal) } Applicant-Appellant, } DECLARATION OF MICHAEL J. VS. } MATSUKAWA; APPENDICES 111" TO WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; DEPARTMENT OF } PLANNING, COUNTY OF HAWAII, } } Appellees, } } and ) } SANDRA SONG, in her capacity as } Hearing Officer; JEFFREY GOMES, } Intervenor; SIDNEY FUKE, } Intervenor' s Representative; ) TERENCE YOSHIOKA, Intervenor' s ) Representative, ) } Intervenor-Appellees. } DECLARATION OF MICHAEL J. MATSUKAWA Pursuant to rules of Court, the undersigned makes the following declaration: 1 . He is the attorney for Intervenor-Appellee Jeffrey K. Gomes herein; 2 . He has personal knowledge of the facts stated herein; 3 . He has attached copies of various laws and rules as appendices to this motion; 4 . He has attached a portion of the Statement of the Case filed by the Applicant-Appellant CRESS in this case, Pages 1-3 (Appendix "1") ; 5 . At Paragraph 4, Page 3 , the Applicant-Appellant CBESS is a "co-applicant" for the Special Permit in question. I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT. DATED: Kailua-Kona, Hawaii, December 11 , 2014 MICHAEL J. MATSUKAWA 2 APPENDICES No. Description 1 Portion of Statement of the Case 2 Rule 72, HRCP 3 Section 91-1, HRS, Section 91-14, HRS and Planning Commission Rule 1-3 4 Planning Commission Rule 4-6 5 Section 205-4, HRS and Section 205-6, HRS IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII 14Z,-I' M02 23 COMMUNITY BASED EDUCATION ) CIVIL NO. SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, } STATEMENT OF THE CASE vs. } WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING, COUNTY OF HAWAII, ) Appellees, ) and ) SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY K. GOMES, ) Intervenor; SIDNEY FUKE, Intervenor's ) Representative; and TERENCE ) YOSHIOKA, Intervenor's Representative, ) Intervenor-Appellees. ) STATEMENT OF THE CASE Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES (hereinafter referred to as "CBESS"), by its undersigned counsel, pursuant to Rule 72(e), HRCivP, alleges for its Statement of the Case as follows: I. JURISDICTION 1. This case is an appeal from.- (a) Hearing Officer's Report dated April 7, 2014 (attached hereto as Exhibit "1"); (b) the County of Hawaii Windward Planning Commission's decision entered May 1, 2014 to uphold the Hearings Officer's report and recommendations to deny Special Permit Application (SPP12-000138) to develop a K to 12 charter school campus with APPENDIX "1" dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5-006:141; and ( c) the County of Hawaii Windward Planning Commission's Findings of Fact, Conclusions of Law and Decision and Order, dated May 19, 2014, attached hereto as Exhibit "2," which is a final administrative agency decision, that denied CBESS' application for a Special Permit Application (SPP12-000138) to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5-006:141. 2. This Court has jurisdiction over this appeal pursuant to Section 91-14(g), HRS, and Rule 72, HRCivP. Pursuant to Hawaii Revised Statues, Section 91-14(a) which governs judicial review of contested case hearings: "Any person aggrieved by a final decision and order in a contested case. . . is entitled to judicial review." Hawaii Revised Statues, Section 91-14(b) states: proceedings for review shall be instituted in the circuit court within thirty days after the preliminary ruling or within thirty days after service of the certified copy of the final decision and order of the agency pursuant to the rule of the court[.] Appellant is aggrieved within the meaning of the statue for judicial review. Appellant was granted standing to participate in the Contested Case, actively participated in the Contested Case and received a ruling that is substantially to the detriment of the Appellant's respective cognizable legal interest in the outcome of the Contested Case. As the Hawaii Supreme Court held in Mahuiku v. Planning Commission, 65 Haw. 506 (1982): "One whose legitimate interest is in fact injured by illegal action of an administrative agency or officer should have standing to 2 appeal because justice requires that such party should have a chance to show that the action hurts his interest is illegal.' 3. The present appeal is timely pursuant to Section 91-14, HRS. 1I_ SUMMARY OF APPELLANT'S POSITION 4. The Appellant, Community Based Education Support Services ("CBESS") is a co- applicant in Special Permit Application No. 12-000138 to develop a K to 12 Charter School Campus with Dorm Facilities, Intergenerational Programs, a sustainable Agricultural Program and a Forestry/Conservation Program and related uses on approximately 70 acres of land situated in the State Land use Agricultural District located on both the southwest and northeast sides of Edita Street near its intersection with Kaumana Drive, South Hilo, Hawaii and further identified by Tax Map Key(3)2-5-006:141. 5. Appellee County of Hawaii Windward Planning Commission is the agency responsible for issuance of Special Permits pursuant to Chapter 205 of the Hawaii Revised Statues and Rule 6 of the County of Hawaii Planning Commission Rules of Practice and Procedure. 6. Intervenor-Appellee, Jeffrey K. Gomes resides at 281 Edita Street, Hilo, Hawaii. On March 7, 2013 the Windward Planning Commission voted to grant Appellee Gomes standing in a contested case as Intervenor. Appellee Gomes participated in the Contested Case hearing for Special Permit Application No. 12-000138. 7. Intervenor-Appellee Sidney Fuke resides at 1358 Mele Manu Street, Apt. C Hilo, Hawaii 96720. Appellee Fuke was identified as Appellee Gomes' agent/representative and participated and testified in the Contested Case hearing for Special Permit Application No. 12- 3 IX. APPEALS Rule 72. APPEAL TO A CIRCUIT COURT. (a)How taken. Where a right of redetermination or review in a circuit court is allowed by statute, any person adversely affected by the decision, order or action of a governmental official or body other than a court, may app,, d from such decision, order or action by filing a notice of appeal in the circuit court having jurisdiction of the matter. As used in this rule, the term "appellant" means any person or persons filing a notice of appeal, and "appellee" means every governmental body or official (other than a court) whose decision, order or action is appealed from, and every other party to the proceedings. (b)Time. The notice of appeal shall be filed in the circuit court within 30 days after the person desiring to appeal is notified of the rendering or entry of the decision or order, or of the action taken, in the manner provided by statute. (c) Service. Promptly after filing the notice of appeal, the appellant shall serve a certified copy thereof upon each appellee. (d)Record on appeal. (1)DESIGNATION. The appellant shall, within the time provided for filing the notice of appeal or within such further time, not to exceed 30 days, as may be allowed by the court for good cause shown, prepare and present to the clerk of the circuit court a designation, which shall specify the papers, transcripts, minutes and exhibits which the appellant desires filed in the circuit court in connection with the appeal. The clerk, in the name and under the seal of the circuit court, shall endorse on the designation an order, directed to the official or body whose decision, order or action is appealed from, commanding the latter to certify and transmit such papers, transcripts, minutes and exhibits to the circuit court within 20 days of the date of the order or within such further time as may be allowed by the court. The clerk shall issue certified copies of such designation and order to the appellant for service upon the official or body whose decision, order or action is appealed from and for service upon any other appellee. The appellant shall serve certified copies of the designation and order and shall make due return of service thereof to the clerk of the circuit court. The circuit court may compel obedience to the order by any appropriate process. (2)COUNTER DESIGNATION. Any appellee may, within 10 days after service of the designation and statement of the case, prepare and present to the clerk of the circuit court a counter designation, which shall specify additional papers, transcripts, minutes and exhibits which the appellee desires to be filed in the circuit court. The clerk shall endorse thereon an order, as in the case of a designation, and shall issue the order and counter designation to the appellee for service and return as provided in Rule 72(d) (1) in the case of a designation and order. The circuit court may, compel obedience to the order by any appropriate process. When the appellee desiring such additional papers, transcripts, minutes and exhibits has official custody of the same, it shall be sufficient that the appellee file the same and identify the same in an accompanying certificate. A copy of such certificate and of any counter designation shall be served forthwith upon the appellant. (e) Statement of case. The appellant shall file in the circuit court concurrently with the filing of appellant's designation, a short and plain statement of the case and a prayer for relief. Certified copies of such statement shall be served forthwith upon every appellee. The statement shall be treated, as near as may be, as an original complaint and the provision of these rules respecting motions and answers in response thereto shall apply. (f) Briefs; oral argument. (1)BRIEFS;DEADLINES. The opening brief shall be filed within 40 days after the filing of the record on appeal. The answering brief shall be filed within 40 days after service of the appellant's opening brief. Within 14 days after service of the appellee's answering brief, the appellant may file a reply brief. Reply briefs shall be confined to matters presented in the answering brief. If no reply brief is to be filed, the appellant shall notify the clerk and the appellee in writing of the decision not to file a reply brief, prior to the expiration of the time for filing the reply brief, APPENDIX "2" (2) REQUIREMFNTS. The opening, answering, and reply briefs shall be subject to the page limitations set forth in Rule 28(a)of the Hawaii Rules of Appellate Procedure and shall include, at a minimum: (A)a statement of the questions presented for decision; (B) a brief statement of the facts (that need not duplicate the statement of the case separately required under Rule 72(e)); (C)a concise argument; and (D) a conclusion specifying the relief sought. (3) ORAL ARGUMENT. On the filing of the answering brief, the court shall schedule the matter for oral argument,with argument to take place after the deadline for the reply brief. (g)Trial by jury. Where by law an appeal may be tried before a jury, the case shall be tried without jury unless any appellant or appellee shall have demanded trial by jury in the manner and within the time provided in Rule 38. (h)Costs. No appeal shall be heard, and the appeal shall be dismissed, unless the appellant shall pay all costs, if any, and furnish every bond or other security, if any, required by law. (i) Stay. The filing of a notice of appeal shall not operate as a stay of the decision, order or action appealed from, unless otherwise provided by statute or unless ordered, for good cause shown, by the circuit court. (j) Reserved. (k)Judgment. Upon determination of the appeal, the court having jurisdiction shall enter judgment. Such judgment shall be reviewable, or final, as may be provided by law. Promptly after final determination of the appeal in the circuit court or in the appellate court, the clerk of the court finally determining the case shall notify the governmental official or body concerned, of the disposition of the appeal. (Amended May 15, 1972, effective July 1, 1972;further amended and effective May 8, 1996;further amended May 30, 2006, effective July 1, 2006,-further amended August 26, 2011, effective January 1, 2012.) §91-1 Definit: -ons . For the purpose of this chapter: (1) "Agency" means each state or county board, commission, department, or officer authorized by law to make rules or to adjudicate contested cases, except those in the legislative or Judicial branches. (2) "persons" includes individuals, partnerships, corporations, associations, or public or private organizations of any character other than agencies. (3) "party" means each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in any court or agency proceeding. (4) 'Rule" means each agency statement of general or particular applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency. The term does not include regulations concerning only the internal management of an agency and not affecting private rights of or procedures available to the public, nor does the term include declaratory rulings issued pursuant to section 91-8, nor intra-agency memoranda. (5) "Contested case" means a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing. (6) "Agency hearing" refers only to such hearing held by an agency immediately prior to a judicial review of a contested case as provided in section 91-14. [I, 1961, c 103, §]; Supp, §6C-1; HRS §91-1] APPENDIX 113" LEEWARD AND WINDWARD PLANNING COMMISSIONS COUNTY OF HAWAII RULES OF PRACTICE AND PROCEDURE RULE 1. GENERAL RULES 1-1 Authority The rules hereinafter contained are established pursuant to the authority of Section 6-7.5 of the 2000 Charter of the County of Hawaii, (2008 Edition), and Chapter 91, Hawaii Revised Statutes. 1-2 Purpose These rules govern the practice and procedure before the Leeward and Windward Planning Commissions of the County of Hawaii. 1-3 General Definitions (a) "Agency" means any agency, board, commission, department, or officer of the county or state government. (b) "Applicant" means any agency or person who applies to the Commission for a land use application and/or permit. (c) "Board" means the Board of Appeals. (d) "Chairperson" means the chairperson of the Leeward Planning Commission or the Windward Planning Commission, or both. (e) "Commission' means either the Leeward Planning Commission or the Windward Planning Commission. (f) "Contested case" means a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing. (g) "Council" means the County Council. (h) "County" means the County of Hawaii. (i) "Department" means the PIanning Department. (j) "Director" means the Planning Director. (k) "General Plan" means the Hawaii County General Plan. 1-1 (1) "Hearings Officer"means a person or person duly designated and authorized by the Commission to conduct proceedings on matters within the jurisdiction of the Commission for purpose of taking testimony and to report the findings and recommendations to the Commission. • (m) "Party" means any person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party in a proceeding. (n) "Person"means any individual, partnership, firm, association, trust, estate, corporation, or other legal entity of any character other than an agency. (o) "Presiding Officer" means any commissioner or a hearings officer duly designated as such. Unless otherwise designated, the chairperson shall be the presiding officer. (p) 'Zoning Amendments" means changes to the boundaries of the zoning district or changes to any other provision of Chapter 25 (Zoning Code), Hawai`i County Code 1983 (2005 edition). 1-4 The Commissions (a) Office. The office of the Commissions is at Hilo, Hawaii. (b) Communications. Any communication to the Commissions shall be addressed to the Chairperson, Leeward or Windward Planning Commission, 101 Pauahi Street, Suite 3, Hilo, Hawai`i, 96720, unless otherwise directed. (c) Membership. Each Commission consists of seven members appointed by the Mayor and confirmed by the Council. In addition, the Director of the Department of Public Works and the Manager of the Department of Water Supply or their designated representatives serve as ex-officio members without voting privileges. (d) Chairperson: Vice-chairperson. The chairperson and vice-chairperson shall be elected annually. The chairperson shall have the responsibilities and duties prescribed in this rule. The vice-chairperson shall perform all the duties of the chairperson during the absence of the chairperson. 1-5 Meetings The Commission may meet and exercise its powers in its respective jurisdiction within the County. All Commission meetings are open to the public, except as provided by law. The parliamentary procedure to be utilized by the Commission in the conduct of its own meeting shall be based on the current edition of Robert's Rules of Order. (a) Regular Meetings. Regular meetings shall be held at least once a month in the Commission's jurisdiction, unless otherwise specified by law. (b) Special Meetings. Special meetings of the Commission for the transaction of its business may be held at any time and place as scheduled by the Commission. 1-2 §91-14 Judicial review of contested cases . (a) Any person aggrieved by a final decision and order in a contested case or by a preliminary ruling of the nature that deferral of review pending entry of a subsequent final decision would deprive appellant of adequate relief is entitled to judicial review thereof under this chapter; but nothing in this section shall be deemed to prevent resort to other means of review, redress, relief, or trial de novo, including the right of trial by jury, provided by law. Notwithstanding any other provision of this chapter to the contrary, for the purposes of this section, the term "person aggrieved" shall include an agency that is a party to a contested case proceeding before that agency or another agency. (b) Except as otherwise provided herein, proceedings for review shall be instituted in the circuit court within thirty days after the preliminary ruling or within thirty days after service of the certified copy of the final decision and order of the agency pursuant to rule of court, except where a statute provides for a direct appeal to the intermediate appellate court, subject to chapter 602 . In such cases, the appeal shall be treated in the same manner as an appeal from the circuit court to the intermediate appellate court, including payment of the fee prescribed by section 607-5 for filing the notice of appeal (except in cases appealed under sections 11-51 and 40-91 ) . The court in its discretion may permit other interested persons to intervene . (c) The proceedings for review shall not stay enforcement of the agency decisions or the confirmation of any fine as a judgment pursuant to section 92-17 (g) ; but the reviewing court may order a stay if the following criteria have been met : (1) There is likelihood that the subject person will prevail on the merits of an appeal from the administrative proceeding to the court; (2) Irreparable damage to the subject person will result if a stay is not ordered; (3) No irreparable damage to the public will result from the stay order; and (4) Public interest will be served by the stay order. (d) Within twenty days after the determination of the contents of the record on appeal in the manner provided by the rules of court, or within such further time as the court may allow, the agency shall transmit to the reviewing court the record of the proceeding under review. The court may require or permit subsequent corrections or additions to the record when deemed desirable . (e) If, before the date set for hearing, application is made to the court for leave to present additional evidence material to the issue in the case, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon such conditions as the court deems proper The agency may modify its findings, decision, and order by reaso the additional evidence and shall file with the reviewing court, become a part of the record, the additional evidence, together w any modifications or new findings or decision . (f) The review shall be conducted by the appropriate court without a jury and shall be confined to the record, except that the cases where a trial de novo, including trial by jury, is provided by law and also in cases of alleged irregularities in procedure before the agency not shown in the record, testimony thereon may be taken in court . The court shall , upon request b) party, hear oral arguments and receive written briefs . (g) Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision as order if the substantial rights of the petitioners may have bees prejudiced because the administrative findings, conclusions, decisions , or orders are : (1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedure; or (4) Affected by other error of law; or (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the wl record; or (6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. (h) Upon a trial de novo, including a trial by jury as provided by law, the court shall transmit to the agency its de( and order with instructions to comply with the order . [L 1961, 103, §14 ; Supp, §6C-14 ; HRS §91-14 ; am L 1973 , c 31 , §5; am L c 145, §1; am L 1979, c 111, §9 ; am L 1980 , c 130, §2 ; am L 19 150, §1 ; am L 1986, c 274 , §1 ; am L 1993 , c 115, §1 ; am L 2004 202 , §8 ; am L 2006, c 94 , §1 ; am L 2010, c 109, §11 RULE 4. CONTESTED CASE PROCEDURE PART 1. General Provisions. 4-1 Purpose This rule governs contested case procedure before the Commission whenever it is required by law; provided that any procedure in a contested case may be modified or waived by stipulation of the parties, and informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default. This procedure shall be used in all cases where the action of the Commission is the final action of a County official or agency, prior to the opportunity for appeal to Circuit Court, whenever it is required. It shall therefore be followed in all cases where State statutes provide for direct appeal from the Commission to Circuit Court. 4-2 Conflict with Other Time and Notice Requirements In any case of conflict of time and notice requirements between this rule and any other rule of the Commission, the provisions of this rule shall be applied. 4-3 Service of Notices, Documents, and Other Papers (a) Upon Whom Served. All notices, documents, and other papers shall be served on the Commission and all parties, except that where a party is represented, such representative shall be served, rather than the party. (b) Method of Service. Service shall be made by personal delivery, first-class mail, certified or registered mail or by other means authorized by law. If by mail, service shall be regarded as complete upon the mailing of an item which is properly stamped and addressed. (c) Additional Time after Service by Mail. Whenever a party has the right or is required to do some act within a prescribed period after the service of a notice, document, or paper upon that parry by mail, two days shall be added to the prescribed period. 4-4 Presiding Officer (a) Person Presiding. The chairperson of the Commission, one of its members, or a hearing officer duly appointed and designated, shall preside at the hearing. (b) Powers. The presiding officer controls the course of hearings, administers oaths, rules on questions of evidence, holds appropriate conferences before or during hearings, rules upon all objections or motions which do not involve a final determination of the proceeding, receives offers of proof, fixes the time for the filing of briefs, disposes of any other matter that normally and properly arises in 4-1 APPENDIX 114" the course of a hearing, and takes all other actions authorized by law that are deemed necessary for the orderly and just conduct of a hearing. (c) Continuance. The presiding officer may postpone or continue any hearing to ensure the orderly and just conduct of a hearing. 4-5 Notice of Contested Case Hearing (a) Unless otherwise provided by law, the notice of hearing will be served on all parties and persons on the mailing list for this purpose at their last recorded addresses within a reasonable time after the hearing date has been set. The notice shall include a statement of. (1) The date, time, place, and nature of hearing; (2) The legal authority under which the hearing is to be held; (3) The particular sections of the statutes and rules involved; (4) An explicit statement of the issues involved and the facts alleged by the agency in support thereof; provided, that if the agency is unable to state such issues and facts in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved, and thereafter upon application a bill of particulars shall be furnished; and (5) The fact that any party may retain counsel if so desired. (6) The fact that any interested person may move to intervene and be admitted as a party. (b) The notice of the date, time, place, and nature of the hearing shall also be published twice in two newspapers of general circulation in the County. Within ten days after the application has been filed, a notice shall appear in two County newspapers of general circulation and a second notice, not less than ten days prior to the hearing, shall appear in two County newspapers of general circulation and shall also be filed at least six calendar days prior to the hearing with the Office of the County Clerk. (c) The applicant shall serve notice to surrounding property owners and lessees of record pursuant to Section 25-2-4 of Chapter 25, Hawaii County Code. Such notice shall also include a form developed by the Planning Department that outlines the contested case procedure and who qualifies. In addition, the notice shall state that you have a right to file a written request for a contested case procedure. 4-2 4-6 Preheariny, Procedure (a) In all proceedings where the Commission's action is directly appealable to Circuit Court, the applicant and the Planning Director will be designated parties to the s action. Any other person seeking to intervene as a party shall file a written request on a form approved by the Planning Director and accompanied by a filing fee of two hundred dollars no later than seven calendar days, prior to the Commission's first meeting on the matter. if the applicant files a request with the Commission for the deferral or continuance of the hearing prior to the commencement of the hearing, the next regularly scheduled meeting of the Commission will then be considered the subsequent rescheduled hearing date. if the request for intervention is withdrawn in writing before the commencement of the hearing, the filing fee shall be refunded to the person seeking standing to intervene. (b) Upon receipt of a written request to intervene, the Commission, at the first meeting on the matter, shall hold a hearing on the written request. The petitioner shall be admitted as a party if it can demonstrate that: 1} His or her interest is clearly distinguishable from that of the general public; or 2) Government agencies whose jurisdiction includes the land involved in the subject request; or 3) That they have some property interest in the land or lawfully reside on the land; or 4) That even though they do not have an interest different than the public generally, that the proposed action will cause them actual or threatened injury in fact; or 5) Persons who are descendants of native Hawaiians who inhabited the Hawaiian islands prior to 1778, who practiced those rights which were customarily and traditionally exercised for subsistence, cultural or religious purposes. The Commission will grant or deny such written request prior to any further action on the matter. (c) Appeal from Denial. Any petitioner who has been denied standing as a party may appeal such denial to the Circuit Court pursuant to Section 91-14, Hawaii Revised Statutes. (d) After establishing the parties to the proceeding, the Commission may either proceed with the hearing, or continue the matter to a more appropriate time and date. 4-3 (e) The Commission may join as a party any other person subject to service of process if complete relief cannot be accorded among those already parties or that person has an interest in the matter so that the action of the Commission may impair or impede that person's ability to protect that interest or create a risk of multiple or otherwise inconsistent actions. Should such an order of joinder be issued, further proceedings will be suspended until a date not less than 20 days from service of the order, so that the joined party might properly respond. (1) Prior to proceeding further, the Commission may vote upon the motion of any member, to refer the matter for further proceedings to either a hearings officer, or to one or more members to act as hearings officer(s). 4-7 Conference with Presiding Officer At any time during the proceedings, the Presiding Officer may hold a conference with the parties for the purpose of formulating or simplifying the issues, arranging for the exchange of proposed exhibits or proposed written testimony, setting of schedules, exchanging names of witnesses, limiting the number of witnesses, and any other matter that may expedite the orderly conduct and disposition of the proceeding. 4-8 Limitine Testimonv To avoid unnecessary cumulative evidence, the presiding officer may limit the number of witnesses or the time for testimony upon a particular issue. 4-9 Removal from Proceeding Any person who disrupts a hearing which prevents or compromises the conduct of the hearing shall be removed from the hearing room. 4-10 Order of Procedure The applicant shal l open and close. Other parties shall be heard in such order as the presiding officer directs. 4-11 Questions from Commission There shall be opportunity for the Commission, including its ex-officio members, to ask questions of the parties' witnesses as may be required for a full and true disclosure of the facts. 4-12 Cross-Examination Each party shall have the right to conduct such cross-examination of the witnesses as may be required for a full and true disclosure of the facts and shall have the right to submit rebuttal evidence. 4-4 §205-4 ]amendments to district boundaries involving land areas greater than fifteen acres . (a) Any department or agency of the State, any department or agency of the county in which the land is situated, or any person with a property interest in the land sought to be reclassified, may petition the land use commission for a change in the boundary of a district . This section applies to all petitions for changes in district boundaries of lands within conservation districts, lands designated or sought to be designated as important agricultural hands, and lands greater than fifteen acres in the agricultural , rural , and urban districts, except as provided in section 201.H-38 . The land use commission shall adopt rules pursuant to chapter 91 to implement section 201H-38 . (b) Upon proper filing of a petition pursuant to subsection (a) the commission shall , within not less than sixty and not more than one hundred and eighty days, conduct a hearing on the appropriate island in accordance with the provisions of sections 91-9, 91-10, 91-11 , 91-12, and 91-13, as applicable . (c) Any other provision of law to the contrary notwithstanding, notice of the hearing together with a copy of the petition shad be served on the county planning commission and the county planning department of the county in which the land is located and all persons with a property interest in the land as recorded in the county ' s real property tax records . In addition, notice of the hearing shall be mailed to all persons who have made a timely written request for advance notice of boundary amendment proceedings, and public notice shall be given at least once in the county in which the land sought to be redistricted is situated as well as once statewide at least thirty days in advance of the hearing. The notice shall comply with section 91-9, shall indicate the time and place that maps showing the proposed district boundary may be inspected, and further shall inform all interested persons of their rights under subsection (e) . (d) Any other provisions of law to the contrary notwithstanding, prior to hearing of a petition the commission and its staff may view and inspect any land which is the subject of the petition. (e) Any other provisions of law to the contrary notwithstanding, agencies and persons may intervene in the proceedings in accordance with this subsection. (1) The petitioner, the office of planning, and the county planning department shall in every case appear as parties and make recommendations relative to the proposed boundary change. (2) All departments and agencies of the State and of the county in which the land is situated shall be admitted as parties upon timely application for intervention. (3) All persons who have some property interest in the land, who lawfully reside on the land, or who otherwise can demonstrate that they will be so directly and immediately affected by the proposed change that their interest in the proceeding is clearly distinguishable from that of the general public shall be admitted as parties upon timely application for intervention. APPENDIX "5" (4) All other persons may apply to the commission for leave to intervene as parties. Leave to intervene shall be freely granted, provided that the commission or its hearing officer if one is appointed may deny an application to intervene when in the commission's or hearing officer's sound discretion it appears that: (A) the position of the applicant for intervention concerning the proposed change is substantially the same as the position of a party already admitted to the proceeding; and (B) the admission of additional parties will render the proceedings inefficient and unmanageable. A person whose application to intervene is denied may appeal such denial to the circuit court pursuant to section 91-14. (5) The commission shall pursuant to chapter 91 adopt rules governing the intervention of agencies and persons under this subsection. Such rules shall without limitation establish: (A) the information to be set forth in any application for intervention; (B) time limits within which such applications shall be filed; and (C) reasonable filing fees to accompany such applications. (f) Together with other witnesses that the commission may desire to hear at the hearing, it shall allow a representative of a citizen or a community group to testify who indicates a desire to express the view of such citizen or community group concerning the proposed boundary change. (g) within a period of not more than three hundred sixty- five days after the proper filing of a petition, unless otherwise ordered by a court, or unless a time extension, which shall not exceed ninety days, is established by a two-thirds vote of the members of the commission, the commission, by filing findings of fact and conclusions of law, shall act to approve the petition, deny the petition, or to modify the petition by imposing conditions necessary to uphold the intent and spirit of this chapter or the policies and criteria established pursuant to section 205-17 or to assure substantial compliance with representations made by the petitioner in seeking a boundary change . The commission may provide by condition that absent substantial commencement of use of the land in accordance with such representations, the commission shall issue and serve upon the party bound by the condition an order to show cause why the property should not revert to its former land use classification or be changed to a more appropriate classification. Such conditions, if any, shall run with the land and be recorded in the bureau of conveyances . (h) No amendment of a land use district boundary shall be approved unless the commission finds upon the clear preponderance of the evidence that the proposed boundary is reasonable, not violative of section 205-2 and part III of this chapter, and consistent with the policies and criteria established pursuant to sections 205-16 and 205-17 . Six affirmative votes of the commission shall be necessary for any boundary amendment under this section . (i ) Parties to proceedings to amend land use district boundaries may obtain judicial review thereof in the manner set forth in section 91-14 , provided that the court may also reverse or modify a finding of the commission if such finding appears to be contrary to the clear preponderance of the evidence . At the hearing, all parties may enter into appropriate stipulations as to findings of fact, conc] usions of law, and conditions of reclassification concerning the proposed boundary change. The commission may but shall not be required to approve such stipulations based on the evidence adduced. [L 1963, c 205, pt of 52 ; am L 1965, c 32. , 52; Supp, §98H-4 ; HRS §205-4 ; am L 1972 , c 187, §2 ; am L 1975, c 193, §5; am L 1976, c 4 , 51 ; am L 1985, c 230, §4 ; am L 1986, c 93, §1 ; am L 1987 , c 336, §7 ; am L 1988, c 352 , 52 ; am L 1989, c .2.61, §10 ; am L, 1990, c 261 , 51 ; am L 1995, c 235, §1 ; am L 1996, c 299, §3; am L 1991 , c 350, 515; am L 1998 , c 2, 560; am L 2005, c 183, §4 ; am L 2007 , c 249, §15] §205--6 Special permit . (a) Subject to this section, the county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified. Any person who desires to use the person ' s land within an agricultural or rural district other than for an agricultural or rural use, as the case may be, may petition the planning commission of the county within which the person ' s land is located for permission to use the person' s land in the manner desired. Each county may establish the appropriate fee for processing the special permit petition . Copies of the special permit petition shall be forwarded to the land use commission, the office of planning, and the department of agriculture for their review and comment . (b) The planning commission, upon consultation with the central coordinating agency, except in counties where the planning commission is advisory only in which case the central coordinating agency, shall establish by rule or regulation, the time within which the hearing and action on petition for special permit shall occur . The county planning commission shall notify the land use commission and such persons and agencies that may have an interest in the subject matter of the time and place of the hearing. (c) The county planning commission may, under such protective restrictions as may be deemed necessary, permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter; provided that a use proposed for designated important agricultural lands shall not conflict with any part of this chapter. A decision in favor of the applicant shall require a majority vote of the total membership of the county planning commission . (d) Special permits for land the area of which is greater than fifteen acres or for lands designated as important agricultural lands shall be subject to approval by the land use commission. The land use commission may impose additional restrictions as may be necessary or appropriate in granting the approval, including the adherence to representations made by the applicant. (e) A copy of the decision, together with the complete record of the proceeding before the county planning commission on all special permit requests involving a land area greater than fifteen acres or for lands designated as important agricultural lands, shall be transmitted to the land use commission within sixty days after the decision is rendered. Within forty-five days after receipt of the complete record from the county planning commission, the land use commission shall act to approve, approve with modification, or deny the petition . A denial either by the county planning commission or by the land use commission, or a modification by the land use commission, as the case may be, of the desired use shall be appealable to the circuit court of the circuit in which the land is situated and shall be made pursuant to the Hawaii rules of civil procedure . ( f) Land ries sibstantially involving or supporting educational ecotourism, related to the preservation of native Hawaiian endangered, threatened, proposed, and candidate species, that are allowed in an approved habitat conservation plan under section 1958-21 or safe harbor agreement under section 195D-22, which are not identified as permissible uses within the agricultural district under sections 205-2 and 205-4 . 5, may be permitted in the agricultural district by special permit under this section, on lands with soils classified by the land study bureau ' s detailed land classification as overall (master) productivity rating class C, D, E, or U , (L 1963, c 205, pt of §2 ; Supp, §98H-6; HRS §205-6; am L 1970, c 136, §1 ; am I, 1976, c 4 , §2 ; am L 1978 , c 166, §1 ; am L 1979, c 221, §1; gen ch 1985; am L 1998, c 237 , 56; am L 2005, c 183, §5] IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES, ) (Agency Appeal) Applicant-Appellant, } NOTICE OF HEARING MOTION VS . } ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; DEPARTMENT OF } PLANNING, COUNTY OF HAWAII, } } Appellees, ) and ) ) SANDRA SONG, in her capacity as } Hearing Officer; JEFFREY GOMES, ) Intervenor; SIDNEY FUKE, ) Intervenor' s Representative; ) TERENCE YOSHIOKA, Intervenor' s ) Representative, ) ) Intervenor-Appellees- NOTICE OF HEARING MOTION TO: ALL THOSE LISTED ON THE ATTACHED CERTIFICATE OF SERVICE YOU ARE HEREBY NOTIFIED that the foregoing Motion shall come on for hearing before the Honorable Ronald Ibarra, Judge of the above-entitled Court, in his courtroom located at 81-940 Halekii Street, Kealakekua, Hawaii, on TUESDAY, FEBRUARY 10, 2015, at 8 o'clock a.m. , or as soon thereafter as counsel may be heard. DATED: Kailua-Kona, Hawaii, 1 DEC �Q1� JEFFREY K. GOMES, Intervenor- Appellee By:_�Aj (-O - MICHAEL J. MATSUKAWA His Attorney 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO. 14-1-0223 SUPPORT SERVICES, } (Agency Appeal) ) Applicant-Appellant, } CERTIFICATE OF SERVICE VS . ) ) WINDWARD PLANNING COMMISSION, } COUNTY OF HAWAII; DEPARTMENT OF ) PLANNING, COUNTY OF HAWAII, } ) Appellees, ) } and } ) SANDRA SONG, in her capacity as } Hearing Officer; JEFFREY GOMES, } Intervenor; SIDNEY FUKE, } Intervenor' s Representative; } TERENCE YOSHIOKA, Intervenor' s ) Representative, ) } Intervenor-Appellees. ) ) CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a copy of the foregoing document (s) was duly served upon the following parties via the U. S . Post Office, Kailua-Kona, Hawaii, postage prepaid, addressed as follows : SANDRA P. SONG, ESQ. Hearings Officer 10 Kamehameha Avenue Hilo, Hawaii 96720 TED H.S . HONG, ESQ. P .O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General 235 So. Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AMY SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAII PLANNING DIRECTOR LAUREEN T. MARTIN, ESQ. Assistant Corporation Counsel 74-5044 Ane Keohokalole Highway Kailua-Kona, Hawaii 96740 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII ALAN M. OKAMOTO, ESQ. Nakamoto Okamoto & Yamamoto 187 Kapiolani Street Hilo, Hawaii 96720 DATED: Kailua-Kona, Hawaii, December 11 , 2014 JEFFREY K. GOMES, Intervenor- Appellee D4 By: MICHAEL J. MATSUKAWA His Attorney 2 FILED cc: Corporation Counsel, Esq. Ted Hong, Esq, Michael Matsukawa, Esq. 211 C 18 Ffl 2: 23 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT L.40 LK STATE OF HAWAII THIRD CIRCUIT COURT STATE OF HAWAII COMMUNITY BASED EDUCATION } Civil No. 14-1-223 SUPPORT SERVICES, } } } ORDER TO FILE EXECUTIVE SESSION MINUTES UNDER SEAL Applicant-Appellant, } } vs. ) WINDWARD PLANNING COMMISSION, } COUNTY OF HAWAII, ) Appellee, ) JUDGE: Hon. Ronald ibarra and ) JEFFREY COMES, } Intervenor-Appellee. ) } ORDER TO FILE EXECUTIVE SESSION MINUTES UNDER SEAL On September 26, 2014 this Court conducted a hearing on Appellee Windward Planning Commission, County of HawaiTs Motion to Quash or Correct the Order for Certification and Transmission of Record on Appeal as to Tape Recordings and Transcipts of All Executive Session Hearings and Meetings Dated June 9, 2014 (hereinafter `Motion'), which was filed on July 11, 2014. Appearances were made by Margaret Masunaga, Esq. for Appellee Windward Planning Commission, and Michael Matsukawa for Intervenor Jeffrey Gomes. A telephonic appearance was made by Ted Hong, Esq. for Appellant Community Based Education Support Services. 1 Upon considering the Motion, the Court issued an Order Granting in part Appellee Windward Planning Commission, County of Hawai'i's Motion to Quash or Correct the Order for Certification and Transmission of Record on Appeal as to Tape Recodings and Transcripts of all Executive Session Hearings and Meetings, which was filed September 30, 2014 (hereinafter `Order'). Pursuant to the Order the Court received a confidential transmission from the Appellee which included the Executive Session Minutes from January 10, 2013, March 7, 2013 and May 1, 2014. Due to the confidential nature of the documents received, IT IS HEREBY ORDERED, ADJUDGED AND DECREED: The minutes from the executive session meetings of January 10, 2013, March 7, 2013 and May 1, 2014 shall be filed under seal. DATED: Kealakekua, Hawai'i; a The onorable Ronald lbarra ORIGINIM FILED RUSSEEL A. SUZUKI 2084 Attorney General State of Hawaii 201h DEC 22 PM 2: 39 CARTER K. SIU 7313 Deputy Attorney General L.MOCK NEW.CLERK THIRD CIRCUIT COURT 235 South Beretania Street, Room304 STATE OF HAWAII Honolulu, Hawaii 96813 Telephone No. 808.586.1255 Carter.K.Siu@hawaii.gov Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAI`1 COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES ) (AGENCY APPEAL) Applicant-Appellant ) APPLICANT-APPELLANT vs. ) CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S EX PARTE WINDWARD PLANNING COMMISSION, ) MOTION TO EXTEND TIME FOR FILING COUNTY OF HAWAII; DEPARTMENT OF ) OF OPENING BRIEF; DECLARATION OF PLANNING, COUNTY OF HAWAII, ) CARTER K. SIU; ORDER GRANTING APPLICANT-APPELLANT Appellees, ) CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S EX PARTE And ) MOTION TO EXTEND TIME FOR FILING OF OPENING BRIEF; CERTIFICATE OF SANDRA SONG, in her capacity as Hearing ) SERVICE Officer, JEFFREY GOMES, Intervenor; ) SIDNEY FUKE, Intervenor's Representative; ) TERENCE YOSHIOKA, Intervenor's ) Representative ) Judge: The Honorable Ronald Ibarra Intervenor-Appellees ) APPLICANT-APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S EX PARTE MOTION TO EXTEND TIME FOR FILING OF OPENING BRIEF Applicant-Appellee CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL ("CONNECTIONS"), by and through its undersigned counsel CARTER K. SIU, Deputy Attorney General, hereby requests this Honorable Court for an Order approving Applicant- Appellant Connections New Century Public Charter School's Ex Parte Motion to Extend Time for Filing of Opening Brief. CONNECTIONS respectfully requests that the deadline to file its Opening Brief be extended, and that it be allowed to file its Opening Brief 10 days after the Court issues its ruling on intervenor-Appellee Jeffrey K. Gomes' Motion (1) To Strike Notice of Appeal and Joinder Filed by Connections New Century Public Charter School (Filed June 19, 2014) (2) To Dismiss Said Notice of Appeal and (3) For Summary Judgment Against Connections New Century Charter School on its Notice of Appeal (Filed June 19, 2014), filed December 1, 2014, which is currently scheduled for hearing on January 6, 2015 at 10:00 a.m. This ex-parte motion is brought pursuant to Rules 6(b) and 7, Hawaii Rules of Civil Procedure and Rules 7 and 7.2(f), Hawaii Circuit Court Rules, and is based on the attached declaration of counsel. DATED: Honolulu, Hawaii, December 10, 2014. CA ER . SIU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO. 14-1-0223 SUPPORT SERVICES } (AGENCY APPEAL) Applicant-Appellant } } DECLARATION OF CARTER K. SIU vs. ) } WINDWARD PLANNING COMMISSION, } COUNTY OF HAWAII; DEPARTMENT OF } PLANNING, COUNTY OF HAWAII, ) Appellees, ) And ) SANDRA SONG, in her capacity as Hearing ) Officer, JEFFREY COMES, Intervenor; ) SIDNEY FUKE, Intervenor's Representative; ) TERENCE YOSHIOKA, Intervenor's ) Representative ) Intervenor-Appellees ) DECARLATION OF CARTER K. SIU CARTER K. SIU , duly declares: 1. I am the attorney of record for Connections New Century Public Charter School (Connections), in this case. 2. I am seeking an extension of time in which to submit Connections' Opening Brief in this case, which is due on December 24, 2014. 3. This request is based on Intervenor-Appellee Jeffrey K. Gomes' Motion (1) To Strike Notice of Appeal and Joinder Filed by Connections New Century Public Charter School (Filed June 19, 2014) (2) To Dismiss Said Notice of Appeal and (3) For Summary Judgment Against Connections New Century Charter School on its Notice of Appeal (Filed June 19, 2014), filed December 1, 2014 ("motion to dismiss"), which is currently scheduled for hearing on January 6, 2015 at 10:00 a.m. 4. The deadline to file an opposition to the motion to dismiss is December 29, 2014, which is subsequent to the filing of the Opening Briefs herein. 5. Although Connections believes that the motion to dismiss lacks merit and that it intends to vigorously oppose the motion to dismiss, it cannot predict the outcome of the hearing. 6. Thus, if Connections filed an Opening Brief on December 24, 2014, but this Court granted the motion to dismiss on January 6, 2015, the time, effort, and money spent on drafting and filing the Opening Brief would be for not. 7. Therefore, Connections requests that it be granted an extension of time to file an Opening Brief and that it be permitted to file its Opening Brief 10 days after the Court issues its ruling on the merits of the motion to dismiss. 8. This request for an extension is made in good faith and not for purposes of delay. 9. This extension of time herein will not prejudice any parties herein or delay the proceedings as a hearing date on the agency appeal has yet to be determined. 8. I have spoken to both Ted H.S. Hong, Esq. and Michael J. Matsukawa, Esq. about an extension of time, and none have any objections to the foregoing motion. 1, CARTER K. SIU, declare under penalty of perjury under the laws of the State of Hawaii that the foregoing is true and correct. DATED: Honolulu, Hawaii, December 10, 2014. 4C �TTER K. S IU RUSSELL A. SUZUKI 2084 Attorney General State of Hawai'i CARTER K. SIU 7313 Deputy Attorney General 235 South Beretania Street, Room304 Honolulu, Hawaii 96813 Telephone No. 808.556.1255 Carter.K.Siu Co)hawaii.gov_ Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES ) (AGENCY APPEAL) Applicant-Appellant ) ORDER GRANTING APPLICANT- vs. ) APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S WINDWARD PLANNING COMMISSION, ) EX PARTE MOTION TO EXTEND TIME COUNTY OF HAWAII; DEPARTMENT OF ) FOR FILING OF OPENING BRIEF PLANNING, COUNTY OF HAWAII, ) } Appellees, ) And ) SANDRA SONG, in her capacity as Hearing ) Officer, JEFFREY GOMES, Intervenor; ) SIDNEY FUKE, Intervenor's Representative; ) TERENCE YOSHIOKA, Intervenor's ) Representative } Intervenor-Appellees ) ORDER GRANTING APPLICANT-APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S EX PARTE MOTION TO EXTEND TIME FOR FILING OF OPENING BRIEF The Court, having reviewed Applicant-Appellant's Connections New Century Public Charter School's Ex Parte Motion to Extend Time for Filing of Opening Brief, the records and files herein, finds that there appears to be good cause for granting the Motion; Now, therefore, IT IS HEREBY ORDERED, AJUDGED, AND DECREED that Applicant-Appellant Connections New Century Public Charter School's Ex Parte Motion be and is GRANTED. Applicant-Appellant Connections New Century Public Charter School must file its Opening Brief within 10 days from the date that this Court issues its ruling on Intervenor- Appellee Jeffrey K. Gomes' Motion (1) To Strike Notice of Appeal and Joinder Filed by Connections New Century Public Charter School (Filed June 19, 2014) (2) To Dismiss Said Notice of Appeal and(3) For Summary Judgment Against Connections New Century Charter School on its Notice of Appeal (Filed June 19, 2014), filed December 1, 2014. DATED: Kealakekua, Hawaii, t -- Judge for the Above-Entitled Court ORDER GRANTING APPLICANT-APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S EX PARTE MOTION TO EXTEND TIME FOR FILING OF OPENING BRIEF;COMMUNITY BASED EDUCATION SUPPORT SERVICES vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING,COUNTY OF HAWAII, , and SANDRA SONG, in her capacity as Hearing Officer,JEFFREY DOMES;SIDNEY FUKE;TERENCE YOSHIOKA;Civil No. 14-1-0223 RI(Agency Appeal),Circuit Court of the Third Circuit IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. I4-1-0223 SUPPORT SERVICES ) (AGENCY APPEAL) Applicant-Appellant ) CERTIFICATE OF SERVICE VS. ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; DEPARTMENT OF ) PLANNING, COUNTY OF HAWAII, ) Appellees, ) And ) SANDRA SONG, in her capacity as Hearing ) Officer, JEFFREY GOMES, Intervenor; ) SIDNEY FUKE, Intervenor's Representative; ) TERENCE YOSHIOKA, Intervenor's ) Representative ) Intervenor-Appellees ) CERTIFICATE OF SERVICE I HEREBY CERTIFY that on December 10, 2014, the undersigned caused a true and correct copy of the foregoing document to be served on the following persons by U.S. Mail, postage prepaid: Sandra P. Song, Esq. I0 Kamehameha Avenue Hilo, Hawaii 96720 Ted H.S. Hong, Esq. Attorney at Law P. O. Box 4217 Hilo. Hawaii 96720 Telephone No. 808.933.1919 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES Amy Self, Esq. Deputy Corporation Counsel Attorney for the County of Hawaii Planning Director 333 Kilauea Avenue Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAII PLANNING DIRECTOR Michael J. Matsukawa, Esq. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY K. GOMES Laurcen L. Martin, Esq. Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway Kailua-Kona, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAPI DATED: Honolulu, H4ttney `', December 10, 2014. R SI for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 7 FIL:E�, CIRCUIT COURT OF T!i.►_" T�tIRv UIR;UIT TED H.S. HONG, #3569 "STATE Of HAWAf Attorney At Law 1Q!4 DEC 23 PM I� 4 4 101 Aupuni Street, PH 1002A P.O. Box 4217 Hilo, Hawaii 96720 Telephone: 808-933-1919 Facsimile: 808-935-8281 CL"`8 Ted@Tedhonglaw.com Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' vs. MEMORANDUM IN OPPOSITION TO INTERVENOR-APPELLEE JEFFREY K. WINDWARD PLANNING COMMISSION, GOMES' MOTION (1) TO STRIKE NOTICE COUNTY OF HAWAII; DEPARTMENT OF OF APPEAL AND JOINDER FILED BY PLANNING, COUNTY OF HAWAII, CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL(FILED JUNE 19, 2014) Appellees, (2) TO DISMISS SAID NOTICE OF APPEAL and AND (3) FOR SUMMARY JUDGMENT AGAINST CONNECTIONS NEW CENTURY SANDRA SONG, in her capacity as Hearing PUBLIC CHARTER SCHOOL ON ITS NOTICE Officer, JEFFREY COMES, Intervenor; OF APPEAL(FILED JUNE 19, 2014)FILED SIDNEY FUKE, Intervenor's Representative; ON DECEMBER 2, 2014; DECLARATION OF TERENCE YOSHIOKA, Intervenor's TED H. S. HONG; EXHIBIT A; CERTIFICATE Representative, OF SERVICE Intervenor-Appellees. HEARING: DATE: January 6, 2015 TIME: 10:00 a.m. JUDGE: Honorable Ronald Ibarra APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' MEMORANDUM IN OPPOSITION TO INTERVENOR-APPELLEE JEFFREY K. GOMES' MOTION (1)TO STRIKE NOTICE OF APPEAL AND JOINDER FILED BY CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL(FILED JUNE 19, 2014) (2) TO DISMISS SAID NOTICE OF APPEAL AND 3 FOR SUMMARY JUDGMENT AGAINST CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL ON ITS NOTICE OF APPEAL FILED JUNE 19 2014) FILED ON DECEMBER 2, 2014 COMES NOW Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES (CBESS)(hereinafter referred to as "Appellant"), by and through its undersigned attorney, and hereby submits its memorandum in opposition to Intervenor-Appellee Jeffrey K. Gomes' Motion (1) To Strike Notice of Appeal and Joinder Filed by Connections New Century Public Charter School (Filed June 19, 2014) (2)To Dismiss said Notice of Appeal and (3) For Summary Judgment Against Connections New Century Public Charter School on its Notice of Appeal (Filed June 19,2014) filed on December 2,2014. 1. INTRODUCTION This dispute arises from the appeal from: (1) the Hearing Officer's Report dated April 7, 2014; ROA pp. 2581-2593; (2) the County of Hawaii Windward Planning Commission's decision entered May 1, 2014, in favor of the Hearing Officer's report and recommendations to deny Special Permit Application (SPP12-000138) to develop a K to 12 charter school campus with dorm facilities and related uses on land situated in the State Land Use Agricultural District identified by Tax Map Key (3) 2-5-006: 14; ROA p. 4293; and (3) the County of Hawaii Windward Planning Commission's Findings of Fact, Conclusions of Law and Decision and Order dated May 19, 2014, which is a final administrative agency decision that denied Appellants' application for Special Permit Application (SPP12-000138), ROA pp. 4300-4313. II. PURPOSE FOR APPELLANTS' APPLICATION FOR SPECIAL PERMIT Connections New Century Public Charter School (Connections) opened in August 2000, with 184 students in grades K-6. By August 2001, the school had expanded to a K-12 program 2 t with a total of 360 students. Connections maintains an enrollment waiting list today, evidence of the school's success and the need and desire amongst the Hilo community for alternative educational opportunities. Currently, Connections is operating from two separate campuses. The elementary and middle school are located in the Kress Building on Kamehameha Avenue in downtown Hilo, while the high school is located in leased facilities at the Nani Mau Gardens,just outside of Hilo town. The desire to vacate the leased facilities in which the high school operates has provided the impetus to explore options for consolidating all of the academic programs at a single location. Consolidation presents an attractive option for management, operational, and financial reasons. The new campus would provide a long-term base of operations for Connections and improve the quality and diversity of education the school can offer its students. Building a new campus from the ground up provides the opportunity to develop academic facilities that are tailored to Connections' specific educational philosophy and approach to teaching and learning, and would create a unique learning environment for this multi-cultural, globally-oriented charter school. In coordination with the State of Hawai'i Department of Land and Natural Resources (DLNR), a State-owned property in Kaumana was identified by the school as a potential site for the new campus. Connections has requested and received approval from DLNR's Board of Land and Natural Resources (BLNR) for a Iong-term land lease for the Kaurnana property. On May 1, 2012 DLNR published a public notice stating their intent to issue a direct lease of the Kaurnana 3 property to Connections Charter School. A copy of this notice is attached as Exhibit A. ROA pp. 53-54. Community-Based Education Support Services - Friends of Connections (CBESS), Connections Public Charter School's affiliated non-profit, is requesting a Special Permit to develop a new school campus for Connections in Kaumana. The new campus would allow Connections to consolidate their academic programs at a single location and provide facilities that support the goals and visions of the school. One of those visions is implementation of a forestry/conservation program and a sustainable agricultural program. A new location outside of downtown Hilo would provide an improved educational environment and the necessary land area to expand the academic program to include the desired sustainable agricultural and forestry components. The objective of the request is to allow the Applicant to continue its planning efforts to develop a new campus in Kaumana. Applicant-Appellant Connections New Century Public Charter Public School and Applicant-Appellant Community Based Education Support Services are indeed two separate entities, both of which are and have been represented by their own respective attorneys. III. STANDARD OF REVIEW IN GRANTING SUMMARY JUDGMENT The movant in a summary judgment proceeding has the burden of showing the absence of any material fact issue, First Hawaiian Bank v. Weeks, 70 Haw. 392, 772 P.2d 1187 (1989), and the movant may discharge that burden by showing that if the case went to trial there would be no evidence to support the non-movant's position. Id. The evidence and the reasonable inferences therefrom must be viewed in the light most favorable to the non-moving party, Bidar v. AMFAC, Inc., 66 Haw. 547, 669 P.2d 154 (1983), and summary judgment will be denied where the movant's proof supplies evidence showing a genuine issue of material fact, see Dalke v. Upjohn Co., 555 F.2d 245 (9th Cir.1977), even if the opposing party has presented no opposing evidence. The general rule is that "[w]here the evidentiary matter in support of the motion does not establish the absence of a 4 genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented." l0A C. Wright, A. Miller& M. Kane,Federal Practice & Procedure: Civil § 2739, at 524 (1983) (Wright& Miller) (quoting Advisory Committee on Civil Rules Note to the 1963 amendments to Rule 56) (emphasis in Wright & Miller). Wagatsuma v. Patch, 10 Haw. App. 547, 561-62, 879 P.2d 572, 581-82 (1994). IV. ARGUMENT A. Applicant-Appellant Connections has Standing to Appeal Appeals from administrative agencies to a circuit court are governed by section 14 of the Hawaii Administrative Procedure Act (HRS s 91-14) and Rule 72 of the Hawaii Rules of Civil Procedure. Life of the Land v. Land Use Commission, 58 Haw. 292, 568 P.2d 1189 (1977). HRS s 91-14 evinces a purpose to grant broad rights to judicial review as it permits "any person aggrieved" by a final decision or order of a government agency to seek review, provided he institutes proceedings in the circuit court within thirty days of service of the decision or order. The procedural rule implementing this statutory right is Rule 72, H.R.C.P., and it provides that a request for review may be instituted "by filing a notice of appeal in the circuit court" within the thirty-day period specified by law. The rule further requires prompt service of such notice upon each appellee, the designation of the record to be presented to the reviewing court, and the filing of a statement of the case and prayer for relief. By its terms, "appellee" includes "every governmental body or official (other than a court) whose decision, order or action is appealed from, and every other party to the proceedings." Jordan v. Hamada, 62 Haw. 444, 447-48, 616 P.2d 1368, 1371 (1980) (footnotes omitted). To have standing to appeal agency decision to Circuit Court, a person must be aggrieved by final order and decision by agency and have been involved in administrative proceeding that culminated in unfavorable decision. HRS § 91-14(a). United Public Workers, Local 646, AFSCME, AFL-CIO v. Brown, 1996, 80 Hawaii 376, 910 P.2d 147. Standing to appeal an agency decision as an"aggrieved"person, for example, has not been conditioned upon formal intervention in the agency proceeding. In re Application Of Hawaiian Electric Co., Ltd., 56 Haw. 260, 535 P.2d 1102 (1975); East Diamond Head Association v. Zoning Board, 52 Haw. 518, 479 P.2d 796 (1971). . . Rule 72, also, has not been regarded as a road block to judicial review in any sense. Life of the Land v. Land Use Commission, supra. Jordan, 62 Haw. at 448-49, 616 P.2d at 1371-72 (footnote omitted). 5 Connections, co-applicant,was a necessary party and participated in the contested case hearing. As co-applicant, Connections is an aggrieved party and has an interest in the subject matter of this appeal. King v. Buttolph, 30F.2d 769(9'1i Cir.1929). Alejado v. City & County of Honolulu, 1998, 971 P.2d 310, 89 Hawai'i 221, amended on denial of reconsideration. Hawaii Rules of Civil Procedure, Rule 72, states: (a) How Taken. Where a right of redetermination or review in a circuit court is allowed by statute, any person adversely affected by the decision, order or action of a governmental official or body other than a court,may appeal from such decision, order or action by filing a notice of appeal in the circuit court having jurisdiction of the matter. As used in this rule the term "appellant" means an person or persons filing a notice of appeal, and "appellee" means every governmental body or official (other than a court) whose decision, order or action is appealed from, and every other party to the proceedings. (b) Time. The notice of appeal shall be filed in the circuit court within 30 days after the erson desiring to appeal is notified of the rendering or entry of the decision or order, or of the action taken in the manner-provided b statute. Haw. R. Civ. P. 72 (emphasis added). Connections, as an aggrieved parry, invoked its right to appeal,timely filed its notice of appeal, and for the sake of expediency,joined in CBESS's appeal. There is no rule that requires the parties, who are independently represented by counsel, to file a joint Notice of Appeal, although it is encouraged to consolidate appeals whenever feasible. Although, Connections and CBESS have common interests,they are each represented by their own respective attorneys. CBESS,by and through its attorney, filed its Notice of Appeal on June 9,2014; and Connections, by and through its attorney, filed its Notice of Appeal and its joinder on June 19, 20141 under the present case. Both notices were timely filed. ' A copy of Applicant-Appellant Connections New Century Public Charter School's Notice of Appeal to Circuit Court and Joinder to Applicant-Appellant Community Based Education Support Services' Notice of Appeal to Circuit Court,Filed on June 9,2014;Certificate of Service is attached hereto as Exhibit A. 6 Since neither HRS § 91-14, nor HRCP Rule 72, addresses joint or consolidated appeals; therefore, Connections looks to the Hawaii Rules of Appellate Procedure, Rule 3 (b), which states: If two or more parties are entitled to appeal from a judgment or order and their interests are such as to make joinder practicable, they!Ma file a joint notice of appeal and thereafter proceed on appeal as a single appellant. Appeals may be consolidated by order of either of the Hawaii appellate courts upon the court's own motion, upon motion of a party, or upon stipulation of the parties to the several appeals. Haw. R. App. P. 3 (emphasis added). Because Connections has standing to appeal, and timely filed its Notice of Appeal, Connections is a party to the matter pending before this Court. Gomes argues that Connections' intentions of pursuing "its own separate and independent agency appeal and, at the same time, support the appeal that its Special Permit co- applicant has already taken in this case, Civil No. 14-1-0223. However, no law allows CONNECTIONS, a non-party, to simply appear in this case and to file its own separate notice of appeal and `joinder' herein." (See, p. 8, ¶ I of Intervenor-Appellee Jeffrey K. Gomes' Motion (1) to Strike Notice of Appeal and Joinder filed by connections New Century Public Charter School (Filed June 19, 2014) (2) To Dismiss Said Notice of Appeal and (3) For Summary Judgment Against Connections New Century Public Charter School on its Notice of Appeal (Filed June 19, 2014), filed December 2, 2014), and further contributes blame to CBESS (see fn 4). Gomes' assertions are futile. As argued above, there is no rule that specifically requires the parties, who are independently represented by counsel, to file a joint Notice of Appeal, although it is encouraged to consolidate appeals whenever feasible. 7 Despite Gomes' argument, both Connections and CBESS invoked the appellate jurisdiction of the Circuit Court. They both timely filed their respective notices of appeal, which is the method prescribed for taking the appeal pursuant to HRS § 91-14 and Rule 72 of the Hawaii Rules of Civil Procedure. Both Appellants have standing to appeal, pursuant to HRS § 91-14, which grants broad rights to judicial review as it permits any person aggrieved by a final decision or order of a government agency to seek review, provided he institutes proceedings in the Circuit Court within thirty days of service of the decision or order. CBESS, by and through its attorney, filed its Notice of Appeal on June 9, 2014; and Connections, by and through its attorney, filed its Notice of Appeal and its joinder on June 19, 2014 under the present case. A. Incorrect Caption is Not Fatal Error In promptly filing its notice of appeal, CBESS invoked its independent right of appeal, rather than waiting on Connections' decision to join CBESS's appeal, which does not render CBESS a faulty party. It is the essential responsibility of each party to act timely or suffer harsher consequences for negligence for failing to act within the time period set by law. Finally, Gomes asserts that Connections was and is not a party in the instant agency appeal, simply because CBESS did not identify or name Connections as a party in its notice of appeal. Gomes cites to Stewart Properties, Inc. v. Brennan, 8 Haw. App. 431, 807 P.2d 606 (1991). This case fails to support Gomes' argument, because in Stewart, the Defendants moved to substitute Robert A. Stewart (Stewart) as plaintiff for Properties in the action. The Circuit Court's order substituted Stewart in place of Properties as a party in interest, Properties became a nonparty. The record failed to disclose that Properties subsequently intervened or replaced Stewart as the party plaintiff. Id., 8 Haw. App. at 436, 807 P.2d at 607. 8 In the instant case, there is no dispute that Connections was a party to the contested case hearings and actively participated therein. To intervene to participate in the appeal, as Gomes suggests, is disputable, because Connections invoked its right to appeal, and the contents of Connections and CBESS' notices of appeal specify the party or parties taking the appeal, respectively. Gomes' motion is without merit and should be denied. Even if the Court finds that Appellant CBESS erred in omitting Connections from the case caption is hardly cause for dismissal or summary judgment. The Supreme Court has held that a failure to designate a party is hardly cause of dismissal, particularly where there is a policy favoring judicial review of administrative actions. Matter of Hawaii Gov't Employees'Assn, Local 152, AFSCME, AFL-CIO, 63 Haw. 85, 87, 621 P.2d 361, 363 (1980). V. CONCLUSION Based on the forgoing, CBESS respectfully requests this Court deny Gomes' Motion dated December 1, 2014. CBESS further requests such other and further relief as the Court deems just and equitable. DATED: Hilo, Hawaii, EC e rr- 2.3 ?_ 0L1. ED H. . HON Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 9 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, VS. DECLARATION OF TED H. S. HONG WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appel lees, DECLARATION OF TED H. S. HONG I, TED H. S. HONG, hereby declare under penalty of perjury that the following is true and correct to the best of my knowledge: I. 1 am an attorney licensed to practice in the State of Hawaii, and I am the attorney of record for the Applicant-Appellant Community Based Education Support Services (CBESS). 1. I make this Declaration in support of the forgoing memorandum in opposition to Intervenor-Appellee Jeffrey K. Gomes' Motion(1)To Strike Notice of Appeal and Joinder Filed by Connections New Century Public Charter School(Filed June 19, 2014) (2)To Dismiss said Notice of Appeal and (3) For Summary Judgment Against Connections New Century Public Charger School on its Notice of Appeal (Filed June 19, 2014) filed on December 2,2014. 1 2, Appellants timely filed its appeal Notice of Appeal to Circuit Court; Statement of the Case; Exhibits "I"-"2"; Designation of Contents of Record on Appeal; Order for Certification and Transmission of Record on Appeal on June 9, 2014. 3. The Record on Appeal was transmitted to the Third Circuit Court on August 25, 2014. 4. Attached hereto as Exhibit A, is true and correct copy of Applicant-Appellant Connections New Century Public Charger School's Notice of Appeal to Circuit Court and Joinder to Applicant-Appellant Community Based Education Support Services' Notice of Appeal to Circuit Court, Filed June 9, 2014; Certificate of Service, filed on June 19, 2014 that was served upon counsel. 5. I declare under penalty of perjury under the laws of the State of Hawaii that the foregoing is true and correct to the best of my knowledge and belief. DATED: Hilo, Hawaii, December 23 , 2014. . � 1 ED H. S. HON 2 FILED DAVID M. LOUIE 26I2 Attorney General 2014 JU 119 PM 3: 23 State of Hawaii CARTER K, SIU 7313 _ Deputy Attorney General %f� ,i`;�CuU+RTS 235 South Beretania Street, Room304 �'' ! `i`AI Honolulu, Hawaii 96813 arK Telephone No. 808.586.1255 Curr.._.&r Circ�u Carter_K.Siu@hawaii, ov Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES ) (AGENCY APPEAL) Applicant-Appellant } APPLICANT-APPELLANT vs. ) CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S NOTICE OF WINDWARD PLANNING COMMISSION, ) APPEAL TO CIRCUIT COURT AND COUNTY OF HAWAII; DEPARTMENT OF ) JOINDER TO APPLICANT-APPELLANT PLANNING, COUNTY OF HAWAII, ) COMMUNITY BASED EDUCATION SUPPORT SERVICES' NOTICE OF Appellees, } APPEAL TO CIRCUIT COURT, FILED JUNE 9, 2014; CERTIFICATE OF And ) SERVICE. SANDRA SONG, in her capacity as Hearing ) Officer, JEFFREY DOMES, Intervenor; ) SIDNEY FUKE, Intervenor's Representative; } TERENCE YOSHIOKA, Intervenor's ) Representative ) Intervenor-Appel lees ) APPLICANT-APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S NOTICE OF APPEAL TO CIRCUIT COURT AND JOINDER TO APPLICANT-APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' NOTICE OF APPEAL TO CIRCUIT COURT, FILED JUNE 9, 2014, EXHIBIT A Page 1 of 5 Applicant-Appellee CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL ("CONNECTIONS"), by and through its undersigned counsel CARTER K. SIU, Deputy Attorney General, and pursuant to Rule 72, Hawaii Rules of Civil Procedure, and Section 91- 14(g), Hawaii Revised Statutes, and hereby notices its appeal from: (1) the Hearing Officer's Report dated April 7, 2014; and (2) County of Hawaii Windward Planning Commission's decision entered May 1, 2014 to uphold the Hearings Officer's report and recornmend ations to deny Special Permit Application (SPP12-000138) to develop a K-12 charter school campus on land situated in the State Land Use Agricultural District identified by Tax Map Key (3)2-5- 006:141 and (3) the County of Hawaii Windward Planning Commission's Findings of Fact, Conclusions of Law and Decision and Order, dated May 19, 2014. CONNECTIONS hereby substantively joins in Applicant-Appellee Community Based Education Support Services' Notice of Appeal to Circuit Court; Statement of the Case' Exhibits "1"— "2"; Designation of Contents of Record on Appeal; Order for Certification and Transmission of Record on Appeal; Certificate of Service, filed June 9, 2014, and incorporates by reference and adopts herein the Statement of the Case and Exhibits. DATED: Honolulu, Hawaii, June 19, 2014. ARTER K. SN Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL. Page 2of5 DAVID M. LOUIE 2612 Attorney General of Hawaii CARTER K. SIU 7313 Deputy Attorney General Department of the Attorney General, State of Hawaii 235 South Beretania Street, Roorn304 Honolulu, Hawaii 96813 Telephone No, 808.586.1255 Carter.K.Siu@hawaii. ov Attorney for Applicant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO, 14-I-0223 SUPPORT SERVICES } (AGENCY APPEAL) Applicant-Appellant } } APPLICANT-APPELLANT vs. } CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S NOTICE OF WINDWARD PLANNING COMMISSION, } APPEAL TO CIRCUIT COURT AND COUNTY OF HAWAII; DEPARTMENT OF } JOINDER TO APPLICANT-APPELLANT PLANNING, COUNTY OF HAWAII, } COMMUNITY BASED EDUCATION SUPPORT SERVICES' NOTICE OF Appellees, ) APPEAL TO CIRCUIT COURT, FILED JUNE 9, 2014-, CERTIFICATE OF And ) SERVICE. } SANDRA SONG, in her capacity as Hearing ) Officer, JEFFREY COMES, Intervenor; ) SIDNEY FUKE, Intervenor's Representative.; ) TERENCE YOSHIOKA, Intervenor's } Representative ) Intervenor-Appellees ) CERTIFICATE OF SERVICE Page 3 of 5 I HEREBY CERTIFY that on June 19, 2014, the undersigned caused a true and correct copy of the foregoing document to be served on the following persons by U.S. Mail, postage prepaid: Sandra P, Song, Esq. Hearings Officer 10 Kamehameha Avenue Hilo, Hawaii 96720 Ted H.S. Hong, Esq. Attorney at Law P. O. Box 4217 Hilo, HI 96720 Telephone No. 808.933.1919 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES Amy Self, Esq, Deputy Corporation Counsel Attorney for the County of Hawaii Planning Director tn 333 Kilauea Avenue Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAII PLANNING DIRECTOR Jeff Gomes Intervenor 281 Edita Street Hilo, Hawaii 96720 Intervenor,pro se Appellee Margaret Masunaga, Esq. Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway Kailua-Kona, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII Page 4 of 5 Mr. Sidney Fuke 1358 Mele Manu Street, Apt. C Hilo, Hawaii 96720 Representative for Intervenor-Appellee, Appellee The Hon. Terence Yoshioka (ret.) 1572 Mele Manu SIA-eet Hilo, Hawaii 96720 Representative for Intervenor-Appellee, Appellee DATED: Honolulu, Hawaii, June 19, 2014. ER K. SIU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL Page 5 of 5 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, vs. CERTIFICATE OF SERVICE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees, CERTIFICATE OF SERVICE I hereby certify that the foregoing documents were duly served upon the following parties, by the means indicated below: MARGARET K. MASUNAGA, ESQ. By Hand Delivery Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, HI 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and APPELLEE SANDRA SONG 1 MICHAEL J. MATSUKAWA, ESQ. By US First Class Mail 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, HI 96740 Attorney for Appellee JEFFREY GOMES CARTER K. SUI, ESQ. By US First Class Mail Deputy Attorney General 235 South Beretania Street, Room 304 Honolulu, HI 96813 Attorney for Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL Dated: Hilo, Hawaii, December , 2014. TE S. HONG Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 ar TED H. S. HONG 3569 Attorney at Law P. O. Box 4217 Hilo, HI 96720 Telephone No. 809.933.19I9 Facsimile No. 80893 8.8281 ted@tedhonglaw.com rn o 4w W Attorney for Applicant-Appellant � N COMMUNITY BASED EDUCATION �� Pa rn =�— SUPPORT SERVICES m = >C) v ao IN THE CIRCUIT COURT OF THE THIRD CIRCUIT —tea STATE OF HAWAII v' COMMUNITY BASED EDUCATION } CIVIL NO. I4-1-0223 RI SUPPORT SERVICES } (Agency Appeal) } Applicant-Appellant, ) APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' vs. } OPENING BRIEF; APPENDIX "I," - "4;" CERTIFICATE OF SERVICE WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING, COUNTY OF HAWAII, ) ) Appellees, ) and ) SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY GOMES, ) Intervenor; SIDNEY FUKE, Intervenor's ) Representative; TERENCE YOSHIOKA, ) Intervenor's Representative, ) JUDGE: Hon. Ronald Ibarra Intervenor-Appellees. ) APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' OPENING BRIEF L TABLE OF CONTENTS I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. POINTS OF ERROR ON APPEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . I . . . . . . . . . . . . . . . . 1 A. Findings of Fact (clearly erroneous standard) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. Conclusions of Law(right/wrong standard) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 C. Mixed Findings of Fact and Conclusions of Law (clearly erroneous standard) . . . . . . 6 111. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 . 1 7 A. Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 B. Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 IV. APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 B. Purpose of"Special Permit.'' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 C. Planning Commission had no Jurisdiction to Find Violation of General Plan . . . . . 16 D. Appellee Commission Refused to Consider the Substantial Evidence in the Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 (1) Water Availability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 (2) Service the Immediate Surrounding Community as a School . . . . . . . . . . . . 31 (3) Traffic Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 (4) General Adverse Impacts to Surrounding Property Owners . . . . . . . . . . . . . 41 (5) Suitability of Property for Agriculture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 E. Unusual and Reasonable Use of Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 V. RELIEF SOUGHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 ii TABLE OF AUTHORITIES HAWAII CASES: Aluminum Shake Roofing, Inc. v. Hirayasu, 110 Hawai'i 248, 252, 131 P.3d 1230, 1234 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Curtis v. Bd. of Appeals, Cnty. of Hawaii, 90 Hawaii 384, 978 P.2d 822 (1999) . . . . . . . . . . . 24 Del Monte Fresh Produce (Hawaii), Inc. v. Intl Longshore & Warehouse Union, Local 142, AFL-CIO, 112 Hawaii 489, 146 P.3d 1066 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 24, 31, 43 Department of Environmental Services, City and County of Honolulu v. Land Use Commission, et al.. 127 Hawaii 5, 275 P.3d 809 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Foytikv. Chandler, 88 Hawai'i 307, 966 P.2d 619 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 . 16 Honda v. Bd. of Trustees of the Employees'Ret. Sys. of the State, 108 Hawaii 212, 118 P.3d 1155 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Hua v. Bd. of Trustees of the Employees'Ret. Sys., State of Hawaii, 112 Hawai'i 292, 145 P.3d 835 (Ct.App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 13-14, 30, 34, 40 Hyatt Corp., v. Honolulu Liquor Comm'n 69 Hawaii 238, 738 P.2d 1205 (1987) . . . . . . . . . . . 16 Kauai Springs, Inc. v. Planning Comm'n of Cnty. of Kauai, 130 Hawaii 407, 312 P.3d 283 (Ct. App. 2013) cert. granted sub nom. Kauai Springs, Inc. v. Planning Comm'n of Cnty. of Kaua"i, No. SCWC 29440, 2013 WL 4779589 (Haw. Sept. 4, 2013) and affd, 133 Hawaii 141, 324 P.3d 951 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16, 24, 26 Maha'ulepu v. Land Use Commission, et al., 71 Hawaii 332, 790 P.2d 906 (1990) . . . . . . . 17, 22 Topliss v. Planning Commission, 9 Haw.App. 377, 842 P.2d 648 (1993) . . . . . . . . . . . . . . . . . 25 Troyer v. Adams, 102 Hawai'i 399, 77 P.3d 83 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 46 HAWAII REVISED STATUTES: Sec. 91-14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I2-13 Sec. 91-14(8)(1), (2), and (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Sec. 91-14(g)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 iii Sec. 205-6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Sec. 225M-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46-47 Sec. 226-51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Sec. 226-53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Sec. 302D-13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31-32 HAWAII COUNTY CHARTER: Sec. 6-7.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Sec. 6-7-2(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Sec, 6-7.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18, 23 Sec. 6-7.5(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Sec. 6-7.5(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Sec. 6-7.5(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 HAWAII COUNTY CODE: Sec. 2-31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19 HAWAII COUNTY GENERAL PLAN: Sec. 1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Sec. 10.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Sec. 10.1.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Sec. 10.2.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Sec. 10.2.4.2.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 iv HAWAII COUNTY PLANNING COMMISSION RULES OF PRACTICE AND PROCEDURE: See. 1-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Sec. 6-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22 v APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' OPENING BRIEF COMES NOW Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES (hereinafter referred to as "CBESS"), by and through its undersigned counsel and pursuant to Rule 72, Hawaii Rules of Civil Procedure (hereinafter referred to as "HRCivP") hereby submits its Opening Brief as follows: I. INTRODUCTION The Commission's Findings of Fact, Conclusion of Law, and Decision and Order Denying Application SPP No. I2-000138, filed on May 19, 2014 held the Appellant to a higher standard than required by the law and misinterpreted the law. This case has wider implications on future land use throughout the County of Hawaii. The issue presented is whether the County's Windward Planning Commission can reject a development despite every other State and County regulatory agencies recommending approval of the application and the Appellant fulfilling all regulatory requirements by substantial, overwhelming and credible evidence? II. POINTS OF ERROR ON APPEAL A. Findings of Fact (clearly erroneous standard) The following Findings of Fact are clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. See, Section 91-14(g)(5), Hawaii Revised Statutes (hereinafter referred to as "HRS);" Hua v, Bd. of Trustees of the Employees'Ret. Sys., State of Hawaii, 112 Hawai'i 292, 298, 145 P.3d 835, 841 (Ct.App. 2006). 1 II. Proposed Development A. General Description 9. The Connections application proposes the development of a K to 12 charter school campus with dorm facilities, and an intergenerational program that would provide childcare and elder care at a single facility on the Development, together with related use on the 70-acre parcel of land. As the site is bisected by Edita Street, the lower portion of the Development would consist of the major school or campus facilities, while the upper portion of the Development would be use for outdoor type of educational programs, including a forestry preservation program. (Emphasis added) CROA: 4302. 14, The Development does not propose to establish a charter on the Property to serve the needs of the immediate vicinity in the Kaumana area of Hilo, although some students from the area may attend this school. (Emphasis added) CROA: 4303. B. Public Utilities and Services Access/Traffic 18. Notwithstanding the findings of the TIAR and the recommendations of the Police Department and Department of Public Works, the area residents uniformly expressed concerns about the adverse traffic impacts of the Development along Edita Street and Kaumana Drive. Also residents objected that the TIAR was four years old and the traffic counts contained in the TIAR were taken when certain schools were not in session. (Emphasis added) CROA: 4304. 2 Water 21. The available water from the County of Hawaii municipal water system is insufficient to support the first phase of the Development. (Emphasis added) CROA: 4304, 1V. STATE AND COUNTY PLANS 36. The County of Hawaii General Plan Land Use Pattern Allocation Guide ("LUPAG") Map designates the Property for low density urban uses. The LUPAG designation of Low Density urban use, allow for residential uses, with ancillary community and public uses, and neighborhood and convenience-type commercial uses. The Development is not proposed to be a community or public use for the Kaumana area of Hilo. (Emphasis added) CROA: 4306. VI. APPLICATION OF SPECIAL PERMIT CRITERIA TO THE DEVELOPMENT B. Affect on SurroundingProoperties 46. Based upon the testimony from surrounding and neighboring property owners, the Development will have an adverse effect on surrounding properties by creating noise, traffic, and impacting the quality of life of the adjoining residents. 47. Measures proposed by Connections, regarding the establishment of building setbacks and roadway improvements to Edita Street do not appear to be sufficient to mitigate the overwhelming concerns raised by surrounding property owners. 3 C. Burden on Public Agencies to Provide Services 48. There is insufficient water available from the county system to service the Development. Therefore, to allow the Development would unreasonably burden the Department of Water Supply to provide water for its facilities. 49. There is no evidence that Connections has the ability to develop a potable water source as a mitigating measure, previously proposed by the Director. 50. A mitigating measure previously proposed by the Director of limiting the number of students to the amount of potable water available to the project is not reasonable because Connections is proposing to construct a high school for 107 students it first phase, when the potable water available would only allow for 70 students. 51. As such, the proposed use may unreasonably burden the County Department of Water Supply to provide water to the Development. (Emphasis added) CROA: 4309-4310. D. Unusual Conditions, Trends and Needs 52. Unusual conditions and needs have arisen since the establishment of this land use district in the 1970s, because the area in which the Property is located has essentially become residential in character. Also the County General Plan LUPAG map recognizes this trend by designating the area for low density urban use. However, there was no evidence presented to demonstrate that location of a school that is not intended to specifically service the needs of the immediate community is such an unusual condition, trend or need that justifies location of the Development at this location. E. Suitabili1y of Land for Agricultural Uses 53. The Land Study Bureau soil classification rating for the Property is "D" or "Poor," which suggests that the land may be unsuited for agricultural uses. 54. Connections is proposing to maintain the upper portion or nearly one- half of the Property for forestry use. In addition Connections is proposing to construct greenhouses on the Property and conduct an agricultural program in 4 conjunction with its curriculum. 55. Based upon the representations of Connections, it cannot be found that the Property is unsuited for agricultural uses. (Emphasis added) CROA: 4310 59. The Development, which proposes a charter school that is not specifically intended to service the immediate community surrounding the school, is not consistent with the uses permitted in the area of low density urban use. CROA: 4311, B. Conclusions of Law (right/wrong standard) The following Conclusions of Law are wrong. Generally, "A conclusion of law (COL) is reviewed " de novo under the right/wrong standard."" Troyer v. Adams, 102 Hawai'i 399, 409, 77 P.3d 83, 93 (2003). See, Sec. 91-14(8)(1), (2), and(4), HRS. Based upon the forgoing Findings of Fact, the Commission makes the following Conclusions of Law: 3. Connections has the burden of proof on this matter before the Commission, including the burden of producing evidence as well as the burden of persuasion, by a preponderance of evidence, to demonstrate how its request is consistent with the guidelines for a special permit as outlined in Section 205-6, HRS, and Rule 6 of the Commission Rules. Connections has failed to meet this burden. 4. The Development does not adequately meet the requirements or guidelines for a special permit as required by Section 205-6, HRS and Rule 6 of the Commission Rules. 5. The Development is not consistent with the County General Plan, particularly as to the impacts on the immediate community. (Emphasis added) CROA: 4312. 5 C. Mixed Findings of Fact and Conclusions of Law ,clearly erroneous standard Generally, mixed questions of fact and law is reviewed under the clearly erroneous standard because the court's conclusions are dependent upon the facts and circumstances of each individual case." Aluminum Shake Roofing, Inc. v. Hirayasu, 110 Hawaii 248, 252, 131 P.3d 1230, 1234 (2006). The following are Mixed Findings of Face and Conclusions of Law: VI. APPLICATION OF SPECIAL PERMIT CRITERIA TO THE DEVELOPMENT 62. Although the County General Plan Public Facilities-Education course of action for South Hilo encourages the establishment of additional schools as the need arises, the property Development, at the subject location, is contrary to the General Plan. (Emphasis added) CROA: 4311. V11. UNUSUAL AND REASONABLE USE OF LAND 63. The construction of a school on the Property is an unusual use of the land because a school is not a permitted use in the State Land Use Agricultural District. However, the evidence presented does not demonstrate that the Development is a reasonable use of the Property. Specifically, Connections has not demonstrated how this school can be built without sufficient potable water resources. Nor, has Connections demonstrated how the development of a regional charter school on the Property that does not specifically service the needs the immediate community and this is overwhelmingly objected to by the immediate community is a reasonable site for this facility. In addition, Connections has not demonstrated that the Development meets most of the criteria to be considered by the Commission in the subject application. (Emphasis added) CROA: 4311-4312. 6 III. STATEMENT OF FACTS A. Factual Back round. Connections currently operates their elementary and middle school at the Kress Building on Kamehameha Avenue in downtown Hilo and the high school is presently located in leased facilities at the Nani Mau Gardens,just outside of Hilo town. CROA:63 For the sake of long- term planning and budgeting ConnectionsiCBESS would like to consolidate their academic programs at a single location. CROA: 63. Consolidation provides an attractive option for management, operation, and financial prudence. CROA: 63. In March 2008, the State of Hawaii Department of Land and Natural Resources, Board of Land and Natural Resources issued their Approval in Principal of Direct Lease to Connections for school purposes at the Property. CROA: 930. A Draft Environmental Assessment (EA) address the campus maters plan was prepared and distributed for agency and public comment in August 2009. CROA: 63. Several comments were received on the Draft EA regarding potential impacts to Kaumana Cave, a segment of which underlies portions of the Property. CROA: 63. After further research and review, it was determined that reconfiguring the campus plan to avoid Kaumana Cave and any potential impacts was prudent. CROA: 63. A Revised Draft EA was prepared to analyze the potential impacts of the reconfigured campus plan. CROA: 63, The Revised Draft EA was distributed for public and agency comment in August 2010. CROA: 63. In this Final EA, the reconfigured campus plan is presented, CROA: 63. On October 22, 2010 the Department of Land and Natural Resources issued a Finding of No Significant Impact for Connections school master plan at the Property. CROA: 893 7 On January 13, 2011 the State Department of Land and Natural Resources Board of Land and Natural Resources issued a Direct Lease to Connections for school purposes at the Property. CROA: 985-990 On July 25, 2012 a Special Permit application was prepared and submitted to the County of Hawaii Planning Department and on July 31, 2012 the County of Hawaii Planning Department acknowledged receipt of the Special Permit Application (SPP No. 12-000138). CROA: 1-404. On August 8, 2012, Appellant provided timely notice of SPP No. 12-00138 to property owners within 500-feet of the Property in accordance with Planning Commission Rule 4. CROA: 334- 349. On August 10, 2013, Appellant provided timely posting of a sign regarding SPP No. 12- 000138 at the Property in accordance with Chapter 25 (Zoning Code), Article 2, Division 1, Section 25-2-12 and/or Planning Commission Rules of Practice and Procedure. CROA: 365-373, On October 12, 2012, County of Hawaii Planning Department notified the Appellant that SPP No. 12-000138 was scheduled for a public hearing. The notice included instructions of information to be included that provided interested parties the right to submit a written request for a contested case hearing. CROA: 412-416. On October 19, 2012, the Appellant provided timely notice to property owners within 500-feet of the Property of SPP No. 12-000138 that included information regarding the public hearing date and instructions for interested parties to submit a written request for a contested case hearing. CROA: 800-818. On October 29, 2012, at the instruction of the County of Hawaii Planning Department the Appellant provided timely notice to property owners within 500-feet of the Property of SPP No. 8 12-000138 that include information regarding the public hearing and instructions that a party wishing to intervene would do so at the State Land Use Commission CROA:849-867. On November 9, 2012, at the regularly advertised hearing on the SPP No. 12-000138, after hearing presentations by the Appellant and the Appellant's experts and testimony from surrounding property owners the Windward Planning Commission voted to defer SPP No. 12- 000138 to allow the Appellant an opportunity to submit: (1) water calculations to address water concerns and (2) meet with an adjacent property owner to explore an alternative access through the Puainako Extension. CROA: 1640. On November 13, 2012 the County of Hawaii Planning Department provided timely notice to property owners within 500-feet of the Property of a continued public hearing on SPP No. 12-000138 on December 6, 2012. CROA: 1647. On December 6, 2012, at the regularly advertised continued hearing on SPP No. 12- 000138, the Windward Planning Commission voted to defer SPP No. 12-000138 to allow Deputy Attorney General to represent Connections in SPP No. 12-000138 application process. CROA: 1853. On December 28, 2012 the Appellant provided timely notice to property owners within 500-feet of the Property of a continued public hearing of SPP No. 12-000138 on January 10, 2013. CROA: 1868. B. Procedural Back round. On January 10, 2013, at the regularly advertised continued hearing of SPP No. 12- 000138, the Windward Planning Commission moved to deny SPP No. 12-000138 and allow for the preparation of Findings of Fact, Conclusions of Law and Decision and Order. CROA: 2052. 9 On February 15, 2013 the County of Hawaii Planning Department provided timely notice to property owners within 500-feet of the Property of the continued public hearing of SPP No. 12-000138 for March 7, 2013 with instructions for parties wishing to intervene in a contested case to complete the '`Petition for Standing in a Contested Case Hearing" form by February 28, 2013. CROA: 2058. On March 7, 2013, at the regularly advertised continued hearing of SPP No. 12-000138, the Windward Planning Commission voted to withdraw its motion to deny SPP No. 12-000138. CROA: 2143-2144. On March 7, 2013 the Windward Planning Commission also affirmed/confirmed the Appellant was a Party in the Contested Cased Hearing, CROA: 2144. On March 7, 2013, the Windward Planning Commission received a Petition for Standing in Contested Case Hearing from Jeffrey Gomes on March 7, 2013. CROA 2147-2148. Mr. Gomes is an adjacent property owner. CROA 2148. Mr. Gomes was granted standing at the Windward Planning Commission's March 7, 2013 meeting. CROA: 2153. On March 7, 2013, at the regularly advertised continued hearing of SPP No. 12-000138, the Windward Planning Commission voted to retain a hearings officer to conduct a Contested Case. CROA: 2155 On July 12, 2013, the Windward Planning Commission notified parties that Sandra Pechter Song, Esq. was retained to serve as hearings officer of the contested case hearing on SPP No. 12-000138. CROA: 2204-2205. On October 4, 2013, pursuant to deadlines set at the August 22, 2013 pre-hearing conference held by Hearings Officer Sandra Song Esq., Appellant submitted a Joint Submission 10 of Applicant's Exhibit List and a Joint Submission of Applicant's Witness List, CROA: 2224- 2270. SPP No. 12-00138 came on for Hearing on October 21, 2013, October 22, 2013, November 12, 2013, January 8, 2014 and January 22, 2014. CROA: 2596; 2851; 3002; 3043; 3186, On November 4, 2013 a Petition for Standing in a Contested Case was filed by Terence Yoshioka. CROA: 2376 . On November 8, 2013, Appellant submitted a Memorandum in Opposition to Petition for Standing in a Contested Case. CROA: 2423-2456. On November 12, 2013, Hearing Officer ruled that the request for standing by Terence Yoshioka in the Contested Case was untimely. CROA: 3025-3027, On November 25, 2013, the Planning Department notified Terence Yoshioka of the disposition of his Petition for Standing in a Contested Case. CROA: 2458 On January 22, 2014, the Hearing Officer closed the contested case hearing. CROA: 3190. On February 12, 2014 the Appellant, timely submitted the proposed findings of fact, conclusions of law and decision and order. CROA: 4011-4044. On March 13, 2013, the Appellant, provided an extension of time to allow the Hearing Officer and additional 30-days to prepare Findings of Fact, Conclusions of Law and a Decision and Order. CROA: 4086. On April 7, 2013, the Hearing Officer submitted her Report to the parties and Planning Commission. CROA: 4098-4112. 11 On April 7, 2013, the County of Hawaii Planning Department provided timely notice to property owners within 500-feet of the Property of the public hearing of SPP No. 12-000138 on May 1, 2013. CROA: 4087. On April 21, 2013, the Appellant timely submitted Joint Exceptions of Hearing Officer's Report, Finding of Fact, Conclusions of Law and Recommendation. CROA: 4149-4169. On April 21, 2013, Duane Kanuha, County of Hawaii Planning Director submitted Exceptions to the Hearing Officer's Report. CROA: 4171-4176. On April 21, 2014, the Appellant timely submitted a request for Oral Argument. CROA: 4177-4718. On May 1, 2014, the Windward Planning Commission voted to uphold the Hearings Officer's report and recommendation and denied SPP No. 12-000138. CROA: 4293. On May 19, 2014, the Windward Planning Commission submitted its Findings of Fact, Conclusions of Land and Decision and Order. CROA: 4300-4315. On June 9, 2014, the Appellant, timely submitted its Notice of Appeal. IV. APPLICABLE LAW A. Standard of Review In an agency appeal, the standard of judicial review is set out in Section 91-14, HRS, which states in relevant part: §91-14 Judicial review of contested cases. (g) Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have 12 been prejudiced because the administrative findings, conclusions, decisions, or orders are: (1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedure; or (4) Affected by other error of law; or (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. (Emphasis added) In Hua v. Board of Trustees of the Employees'Retirement System, State of Hawaii, 112 Hawai'i 292, 145 P.3d 835 (Hawai'i App. 2006), the Intermediate Court of Appeals restated that: Under HRS § 91-14(g), conclusions of law are reviewable under subsections (1), (2), and (4); questions regarding procedural defects under subsection (3); findings of fact [(FOF)l under subsection (5); and an agency's exercise of its discretion under subsection (b). Outdoor Circle v. Harold K.L. Castle Trust Estate, 4 Haw.App. 633, 638-39, 675 P.2d 784, 789 (1983), cert. denied, 67 Haw. 1, 677 P.2d 965 (1984). Accordingly, a reviewing court will reverse an agency's [FOF] if it concludes that such agency finding is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. HRS § 91-14(g)(5). On the other hand, the agency's conclusions of law are freely reviewable. Amfac, Inc. v. Waikiki Beachcomber Investment Co., 74 Haw. 85, 119, 839 P.2d 10, 28, recon. denied, 74 Haw. 650, 843 P.2d 144 (1992). Sussel v. Civil Serv. Comm'n, 74 Haw. 599, 608-10, 851 P.2d 311, 316-17 (1993) (original brackets omitted). A conclusion of law (COL) is reviewed " de novo under the right/wrong standard." Troyer v. Adams, 102 Hawai'i 399, 409, 77 P.3d 83, 93 (2003) (citation omitted). "However, a COL that presents mixed questions of fact and law is reviewed under the clearly erroneous standard because the court's conclusions are dependent upon the facts and circumstances of each individual case." Aluminum Shake Roofing, Inc. v. Hirayasu, 110 Hawaii 248, 252, 131 P.3d 1230, 1234 (2006) (citations, internal quotation marks and block quote format omitted). "A FOF is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made. 'Substantial evidence' is credible evidence which is of sufficient quality and probative value to enable a person of 13 reasonable caution to support a conclusion." Troyer, 102 Hawai'i at 410, 77 P.3d at 94 (ellipsis, citations, block quote format and some internal quotation marks omitted). (Emphasis added) Hua v. Board of Trustees of the Employees'Retirement System, State of Hawaii, 112 Hawai'i at 298, 145 P.3d at 841. Additionally, with respect to "findings of fact" the Court has held: It is axiomatic that findings of fact by an agency must be disregarded if clearly erroneous because of a lack of substantial evidence, or if we are "left with a definite and firm conviction in reviewing the entire evidence that a mistake has been committed[,]" despite evidence to support the finding. Bremer v. Weeks, 104 Hawaii 43, 51, 85 P.3d 150, 158 (2004). Honda v. Bd of'Trustees of the Employees'Ret. Sys. of the State, 108 Hawaii 212, 216, 118 P.3d 1155, 1159 (2005). The Hawaii State Supreme Court has also stated in cases that involve mixed questions of fact and law, that: As a general matter, a finding of fact or a mixed determination of law and fact is clearly erroneous when "(1) the record lacks substantial evidence to support the finding or determination, or (2) despite substantial evidence to support the finding or determination, the appellate court is left with the definite and firm conviction that a mistake has been made." In re Water Use Permit Applications, 94 Hawaii 97, 119, 9 P.3d 409, 431 (2000). Substantial evidence is "credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Id (quoting Leslie v. Estate of Tavares, 91 Hawaii 394, 399, 984 P.2d 1220, 1225 (1999)). (Emphasis added) Del Monte Fresh Produce (Hawaii), Inc. v. Intl Longshore & Warehouse Union, Local 142, AFL-CIO, 112 Hawaii 489, 499, 146 P.3d 1066, 1076 (2006). B. Purpose of"Special Permit." The Appellant was required to seek a "Special Permit" because the property it has leased from the State of Hawaii is located in a state agricultural district and a school was not a permitted use under Sec. 205-4.5, HRS. CROA: 930. Generally, the "Special Permit"process requires: 14 §205-6 Special permit. (a) Subject to this section, the county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified. Any person who desires to use the person's land within an agricultural or rural district other than for an agricultural or rural use, as the case may be, may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired. Each county may establish the appropriate fee for processing the special permit petition. Copies of the special permit petition shall be forwarded to the land use commission, the office of planning, and the department of agriculture for their review and comment. { c) The county planning commission may, under such protective restrictions as may be deemed necessary, permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter; provided that a use proposed for designated important agricultural lands shall not conflict with any part of this chapter. A decision in favor of the applicant shall require a majority vote of the total membership of the county planning commission. (d) Special permits for land the area of which is greater than fifteen acres or for lands designated as important agricultural lands shall be subject to approval by the land use commission. The land use commission may impose additional restrictions as may be necessary or appropriate in granting the approval, including the adherence to representations made by the applicant. Within forty-five days after receipt of the complete record from the county planning commission, the land use commission shall act to approve, approve with modification, or deny the petition. A denial either by the county planning commission or by the land use commission, or a modification by the land use commission, as the case may be, of the desired use shall be appealable to the circuit court of the circuit in which the land is situated and shall be made pursuant to the Hawaii rules of civil procedure. (Emphasis added) The purpose of the "Special Permit" process has been generally recognized as: The Hawaii Supreme Court has ruled that the"overarching purpose" of HRS Chapter 205 is to "protect and conserve natural resources and foster intelligent, effective, and orderly land allocation and development." Curtis v. Bd. of Appeals, Cnly. ofHawai'i, 90 Hawaii 384, 396, 978 P.2d 822, 834 (1999) (internal quotation marks omitted); see also Cnty. of Hawaii v. Ala Loop I5 Homeowners, 123 Hawaii 391, 409, 235 P.3d 1103, 1121 (2010) ("HRS chapter 205 is a law relating to the conservation, protection and enhancement of natural resources[.]"). As noted in Curtis, The stated purpose of the law is, inter alfa: to protect and conserve through zoning the urhan, agricultural and conservation lands within all the counties. A coordinated, balanced approach not only within each county but an overall balance of statewide land needs for economic growth is essential to: (1) Utilize the land resources in an intelligent, effective manner based upon the capabilities and cbaracteristics of the soil and the needs of the economy; (2) Conserve forests, water resources and land, particularly to preserve the prime agricultural lands from unnecessary urbanization; (3) State the allocation of land for development in an orderly plan to meet actual needs and minimize costs of providing utilities and other public services.... 90 Hawaii at 396, 978 P.2d at 834 (underline emphases added, italics and footnote omitted) (quoting H. Stand. Comm. Rep. No. 395, in 1961 House Journal, at 85556). HRS § 205-6 thus confers authority to the Planning Commission to grant special permits for uses not otherwise permitted in state agricultural districts, but only when the use would promote the effectiveness and objectives of HRS Chapter 205. (Emphasis added) Kauai Springs, Inc. v. Planning Comm'n of Cnty. of'Kauai, 130 Haw. 407, 426, 312 P.3d 283, 302 (Ct. App. 2013) cert, granted sub nom. Kauai Springs, Inc. v. Planning Comm'n of'Cnty. gfKaua"i, No. SCWC 29440, 2013 WL 4779589 (Haw. Sept. 4, 2013) and affd, 133 Haw. 141, 324 P.3d 951 (2014). C. Planning Commission had no Jurisdiction to Find Violation of General Plan. The general rule of law is that, "Absent legislative authority, an agency has no power to act." Foytik v. Chandler, 88 Hawai'i 307, 316, 966 P.2d 619, 628 (1998). Also, "an administrative rule cannot contradict or conflict with a statute it attempts to implement." Hyatt 16 Corp., v. Honolulu Liquor Comm'n 69 Hawaii 238, 241, 738 P.2d 1205, 1206-07 (1987); see also Maha'ulepu v. Land Use Commission, et al., 71 Hawaii 332, 336, 790 P.2d 906, 908 (1990). The Planning Commission did not have the authority to find that the Appellant's proposed use violated the Hawaii County General Plan. CROA: 4311 (FOF #62); CROA: 4312 (COL #5). In relevant part, the County Charter, County of Hawaii (hereinafter referred to as "Charter") separates the powers of the Planning Director from the Planning Commission: Section 6-7.2. Planning Director. (a) The planning director shall be appointed by the mayor, confirmed by the council and may be removed by the mayor. The planning director shall have had a minimum of five years of training and experience in a responsible planning position, or a degree in planning, engineering, architecture, geography, or another planning-related field and three years of experience in a responsible planning position. No less than three years of experience shall have been in an administrative capacity. (b) The director shall be the chief planning officer of the county and the administrative head of the department and shall: (1) Advise the mayor, the windward planning commission, the leeward planning commission and the council on all planning and land use matters. (2) Prepare a general plan, implementation plans and any amendments thereto in accordance with Section 3-15. (7) Make recommendations on rezoning applications, special exceptions and other similar requests. See, Article VI, Chapter 7, Hawaii County Charter(2012), page 18, attached hereto as Appendix "1," The Appellee Planning Commission is limited in its authority by the Charter: Section 6-7.5. Duties and Functions of the Windward and Leeward Planning Commissions. (a) Both commissions shall: (1) Advise the mayor, council and the planning director on planning and land use 17 matters pursuant to law and this charter. (2) Review the general plan, its amendments and other plans and modifications thereof and transmit such plans with recommendations thereon through the mayor to the council for consideration and action. (4) Conduct public hearings in every case prior to action on any matter upon which the commission is required by law or this charter to act. Notice of the time and place of the hearing shall be published at least ten days prior to such hearing in at least two daily newspapers of general circulation in the county and shall also be distributed via an electronic medium, such as the Internet. (5) Perform such other related duties and functions as may be necessary or required pursuant to law and this charter. ( c) Each planning commission shall review and take action upon applications for land use changes and community development plans involving only property within their respective jurisdictions, other than those involving the general plan. . . . (Emphasis added) See, Article VI, Chapter 7, Sec. 6-7.5, Hawaii County Charter (2012), at 19-20, attached hereto as Appendix "1." The Hawaii County Code, does not authorize the Planning Commission to interpret or adjudicate violations of the General Plan: Section 2-31.. General plan; contents; location. (a) The general plan shall include a map of the County and shall contain a statement of: (1) Development objectives, standards and principles with respect to the most desirable use of land within the County for residential, recreational, agricultural, commercial, industrial, and other purposes; (2) The most desirable density of population in the several parts of the County; a system of principal thoroughfares, highways, streets, and other public open spaces; the general location, relocation, and improvement of public buildings; (6) Such other matters as may, in the council's judgment, be beneficial to the social, economic, and governmental conditions and trends, and which are 18 designed to assure the coordinated development of the County and to promote the general welfare and prosperity of its people. (Emphasis added) See, Hawaii County Code, v.1, Chapter 2, Article 7, Sec. 2-31 (2010), at 2-9.1, attached hereto as Appendix "2." The Hawaii County General Plan, does not allow the Planning Commission to interpret or make any findings that a proposed use violates or is contrary to the General Plan. Adopted as a County ordinance under Sec. 2-31, Hawaii County Code, its purpose includes: 1.1 PURPOSE OF THE GENERAL PLAN The County of Hawaii's General Plan is the policy document for the long range comprehensive development of the island of Hawaii. The purposes of the General Plan are to: • Guide the pattern of future development in this County based on long-term goals; • Provide the framework for regulatory decisions, capital improvement priorities, acquisitions strategies, and other pertinent government programs within the County organization and coordinated with State and Federal programs. • Promote and safeguard the public interest and the interest of the County as a whole. (Emphasis included and added) See, County of Hawaii General Plan (2005, as amended), at 1-1, attached hereto as Appendix "Y' Section 10.1 of the General Plan specifically address schools and in particular, Charter Schools. See, County of Hawai'i General Plan (2005, as amended), at 10-1, through 10-3, attached hereto as Appendix "3." The stated goal of the General Plan and public facilities, like schools, is limited to: 19 10.1.2 GOAL (a) Encourage the provision of public facilities that effectively service community and visitor needs and seek ways of improving public service through better and more functional facilities in keeping with the environmental and aesthetic concerns of the community. (Emphasis added and included) See, County of Hawaii General Plan (2005, as amended), at 10-1, attached hereto as Appendix "3." The General Plan's policy concerning schools states in relevant part: 10.2.2 POLICIES Educational polices relate to the provision of facilities rather than programs, which are the province of the State. It is nevertheless recognized that the facilities and programs are the tools necessary to improve total educational service. (a) Encourage continuous joint pre-pIanning of schools with the Department of Education and the University of Hawaii to ensure coordination with roads, water, and other support facilities and considerations such as traffic and safety, and access for vehicle, hicycle, and pedestrian. Encourage master planning of present and proposed public and private institutions. (Emphasis added and included) See, County of Hawai'i General Plan(2005, as amended), at 10-4, attached hereto as Appendix "3." In the South Hilo area, the General Plan notes: 10.2.4.2.2 COURSES OF ACTON (a) Encourage the establishment of additional schools as the need arises. See, County of Hawai'i General Plan(2005, as amended), at 10-7, attached hereto as Appendix "3." The Appellee Planning Commission gave itself the unilateral authority to interpret and 20 penalize applicants, like the Appellant, for perceived violations of the General Plan. The Appellee Commission established its Rules of Practice and Procedure and identifies Section 6- 7.5 of the Hawaii County Charter as its enabling legislation. See, Rule 1, Sec. 1-1, County of Hawaii Planing Commission, Rules of Practice and Procedure, attached hereto as Appendix "4." Appellee Commission's procedural rules only permits the review and amendment of the General Plan. Id., at 5-1 through 5-3, attached hereto as Appendix "4." However, in its rules of procedure for Special Permits, the Appellee Commission exceeded its legal authority by granting itself the authority to penalize applicants that violate the General Plan: 6-3 Petition and Content A petition for a Special Permit shall be filed with the Commission's office and shall include the following: (a) Non-refundable filing and processing fee of five hundred dollars. (b) Original and twenty copies of: (1) Application form; (2) Description of the property in sufficient detail to determine its precise location; (3) A plot or site plan of the property, drawn to scale, with all existing and proposed uses and/or structures shown thereon; (4) Building elevations, if required, of the proposed structures; (5) A statement of the reasons for the granting of the Special Permit citing how the proposed use would promote the effectiveness and objectives of Chapter 205, HRS, and why the proposal is an unusual and reasonable use of the land. The following criteria shall also be addressed: (A) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations; (B) The desired use shall not adversely affect surrounding properties; ( C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and fire protection; (D) Unusual conditions, trends, and needs have arisen since the district boundaries and regulations were established; (E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district; 21 (F) The proposed use will not substantially alter or change the essential character of the land and the present use; and (G)The request will not be contrary to the General Pian and official Communily Development Plan and other documents such as Design Plans. (Emphasis added) See Rule 6, County of Hawaii Planing Commission, Rules of Practice and Procedure, at 6-1 through 6-2, attached hereto as Appendix "4." In the present case, the Appellee Commission also concluded as a mixed question of fact and law: VI. APPLICATION OF SPECIAL PERMIT CRITERIA TO THE DEVELOPMENT 62. Although the County General Plan Public Facilities-Education course of action for South Hilo encourages the establishment of additional schools as the need arises, the property Development, at the subject Iocation, is contrary to the General Plan. (Emphasis added) CROA: 4311. The Appellee Commission ruled as a matter of law: 5. The Development is not consistent with the County General Plan, particularly as to the impacts on the immediate community. (Emphasis added) CROA: 4312. In determining whether an administrative agency exceeds its authority under Chapter 205, HRS, conclusions of law are reviewed de novo. Maha'ulepu v. Land Use Commission, et al., 71 Hawaii 332, 336, 790 P.2d 906, 908 (1990). The enabling legislation in the Hawaii County Charter and Hawaii County Code do not give the Appellee Commission the authority to interpret the General Plan or grant it the adjudicatory authority to penalize applicants if they fail to meet the conditions in the General 22 Plan. As the organic, enabling document for the County of Hawaii, the County Charter specially authorizes the Planning Director to be the administrative leader concerning the General Pian and amendments. See, Sec. 6-7.2(b)(2), Hawaii County Charter (2012), at 18, attached as Appendix «1 „ The Appellee Commission is specifically limited to reviewing the General Plan and "transmitting its "recommendations thereon through the mayor to the council for consideration and action. (Emphasis added)" Sec. 6-7.5(a)(2), Hawaii County Charter (2012), at 19-20, attached as Appendix "1." Under the Charter the Appellee Commission is permitted to conduct hearings on matters required by law or charter, but says nothing about conducting hearings to determine compliance with the General Plan. See, Sec. 6-7.5(a)(4), Hawaii County Charter (2012), at 20, attached as Appendix "1." Although the Charter does incorporate a "catch all" section, allowing it to perform such "other related duties and functions as may be necessary or required" by law, Sec. 6-7.5(a)(5), the Charter and Chapter 205, HRS, do not grant the Appellee Commission any enforcement and/or adjudicatory authority over the General Plan. See, Sec. 6- 7,5(a)(5), Hawaii County Charter (2012), at 20, attached as Appendix "l." Importantly, the plain language of the County Charter prohibits the Appellee Commission to enforce or find a violation of the General Plan in any land use change application: ( c) Each planning commission shall review and take action upon applications for land use changes and community development plans involving only property within their respective jurisdictions, other than those involving the general plan. . . . (Emphasis added) See,Article VI, Chapter 7, Sec. 6-7.5, Hawaii County Charter (2012), at 20, attached hereto as Appendix"1." In the present case, the Appellee Commission did not have the authority to enforce and 23 penalize the Appellant for perceived violations of the General Plan, The Appellee Commission's denial of the Appellant's application was wrong, because it found as a matter of law that the General Plan would be violated because of the Appellee's land use change application. The Appellee Commission overreached and legally overstepped the scope of its authority and held the Appellant to different and higher proof than other applicants. Accordingly, the Court should reverse the Appellee Commission's decision and based on the substantial evidence in the record find that the Appellant's application for a Special Permit should have been granted. D. Appellee Commission Refused to Consider the Substantial Evidence in the Record. The "overarching purpose" of the Special Permit application process HRS Chapter 205 is to "protect and conserve natural resources and foster intelligent, effective, and orderly land allocation and development. (Emphasis added)" Curtis v. Bd. ofAppeals, Cnty. of Hawaii, 90 Hawaii 384, 396, 978 P.2d 822, 834 (1999) (internal quotation marks omitted). The process and Chapter 205, HRS is primarily concerned with the "conservation, protection and enhancement of natural resources. Id- The Intermediate Court of Appeals has noted that: HRS § 205—thus confers authority to the Planning Commission to grant special permits for uses not otherwise permitted in state agricultural districts, but only when the use would promote the effectiveness and objectives of HRS Chapter 205. Kauai Springs, Inc. v. Planning Comm'n of Cnty. of Kauai, 130 Haw. 407, 426, 312 P.3d 283, 302 (Ct. App. 2013) cert. granted sub nom. Kauai Springs, Inc. v. Planning Comm'n of Cnty. of Kaua'i, No. SCWC 29440, 2013 WL 4779589 (Haw. Sept. 4, 2013) and affd, 133 Haw, I41, 324 P.3d 951 (2014). The members of the Appellee Commission ignored the "credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Del Monte Fresh Produce (Hawaii), Inc. v. Intl Longshore & Warehouse Union, 24 Local 142, AFL-CIO, 112 Haw. 489, 499, 146 P.3d 1066, 1076 (2006). The Appellee Commission rejected the Appellant's application on grounds other than what Chapter 205, HRS was intended to protect. The Appellant presented qualified expert witnesses, with respect to "conservation, protection and enhancement of natural resources," whose testimony was unchallenged. The Appellee Commission ignored the competent and probative evidence and denied the Special Permit request based on factors that were unsubstantiated and erroneous, such as water availability, traffic and the protection of a small, well-heeled community. In Topliss v. Planning Commission, 9 Haw.App. 377, 842 P.2d 648 (1993), the appeals court examined a special permit application under Chapter 205A, HRS. Id 9 Haw.App. at 392- 393, 842 P.2d at 657. The court noted that when reviewing the administrative process: It follows that, where an administrative record indicates that a proposed development within an SMA would not contravene the statute's policies, objectives, and purposes, the Commission would exceed its authority by denying an SMAP that may have been requested for that project. (Emphasis added) Topliss, supra, 9 Haw.App. at 393, 842 P.2d at 657. In this case, the "substantial" evidence showed that the Appellant's proposed development did not contravene or contradict either Sec. 205-6, HRS or any other, objective, land use guidelines. 1 Water Availability. The Appellee Commission found as fact and mixed question of fact and law that there was insufficient County water to support the Appellant's project. CROA: 4304 (FOF #21); CROA: 4309-4310 (FOF #48-51); CROA: 4311-4312 (Mixed: #63). The overarching purpose of HRS Chapter 205 includes, among other things, the 25 protection and conservation of water resources. Kauai Springs, Inc. V. Planning Comm'n of Cnty. of Kauai, 130 Hawaii 407, 426, 312 P.3d 283, 302 (Ct. App. 2013) cert. granted sub nom. Kauai Springs, Inc. v. Planning Comm'n of Cnty. of Kaua"I, No. SCWC 29440, 2013 WL 4779589 (Haw. Sept. 4, 2013) and affd, 133 Haw. 141, 324 P.3d 951 (2014). The Kauai Springs supra, case states that the Appellee Commission has a"public trust" duty to protect and conserve water resources. Id at 130 Hawaii 407, at 428, 312 P.3d 283, at 304. The appeals court held that with respect to water resources concerning a special permit application that: Based on our reading of Kelly, Waiahole I, and In re Kukui (Molokai), Inc., we thus hold that the applicable standards and criteria that the Planning Commission is required to employ to meet its public trust obligations in this case are as follows: that the Planning Commission's decision be initially grounded in the framework of the statutes and regulatory provisions that authorize the Planning Commission to act in this instance; in addition thereto, that the Planning Commission make appropriate assessments and require reasonable measures to protect the water resources at issue in this case; . . . (Emphasis added) Kauai Springs, Inc. v. Planning Comm'n of Cnty. of Kauai, 130 Hawaii 407, 429, 312 P.3d 283, 305 (Ct. App. 2013) cert. granted sub nom. Kauai Springs, Inc. v. Planning Comm'n of Cnty. of Kaua"1, No. SCWC 29440, 2013 WL 4779589 (Haw. Sept. 4, 2013) and affd, 133 Hawaii 141, 324 P.3d 951 (2014). The Appellee Commission ignored the substantial, competent and probative evidence that proved that there was sufficient water for the initial phases of the project and that for excess water needs, the Appellant would be responsible for securing additional water sources. CROA: 1227. The Appellant's initial petition, dated July 2012, recognized the limit was for the "entire" project and identified alternatives that the Appellant intended to utilize to meet future needs: The County of Hawaii Department of Water Supply (DWS) has stated that potable water allocation to the property is limited to 4,200 gallons per day 26 (gpd). Based on a 60 gpd per student standard, the 4200-gallon allocation could support 70 students. Due to the limited amount of potable water, agriculture and landscape irrigation would rely solely on rainfall, supplemented by wastewater effluent and catchment water; no DWS-supplied potable water would be used. Potable water usage could be further offset by the use of rain catchment for toilet flushing and custodial uses. The project would likely involve separate potable and non-potable water systems. To support the rainwater catchment system, a minimum of two tanks—a catchment tank and a reservoir tank-----would be needed. Due to the probable incremental development of the campus over several years, multiple smaller tanks would likely be implemented. These water tanks are shown conceptually on the site plans; however, these locations are subject to change once a detailed topographic survey and on-the-ground conditions are assessed. Further, during the design phase, the actual number and size of these tanks would be determined based on amount of captured rainfall to be collected and the amount of reserves needed to support the campus' non-potable water uses. Catchment and reservoir tanks could be as large as several hundred thousands of gallons each. A typical elevation of an approximately 300,000-gallon water tank is attached as Exhibit D.10. The Applicant understands that the availability of water does constrain the scope of development on the property and intends to investigate other sources of water to support the project. (Emphasis added) CROA: 445; see also, CROA: 455, 460, and 527-529 (catchment as supplemental water source). After months of discussion with County agencies, on or about November 9, 2012, Appellee Planning Department submitted revised conditions that the Appellant was required to comply with, including in relevant part: 3. Prior to the issuance of a water commitment by the Department of Water Supply, the applicant(s) shall submit the anticipated maximum daily water usage calculations as prepared by a professional engineer licensed in the state of Hawaii and a water commitment deposit in accordance with the "Water Commitment Guidelines Policy" to the Department of water Supply within 180 days from the effective date of this permit. The calculations must include the estimated peak flow in gallons per minute and total estimated maximum daily potable water demand in gallons per day. Should the applicant utilize more that the maximum average daily usage of potable water(4,200 gpd) from the County 8-inch water line, the applicant will be required to secure or construct an additional source of potable water or limit the amount of student to 27 the amount of potable water available." (Emphasis added) CROA: 1551 (submittal); 1227 (revised conditions). On or about November 21, 2012, the Appellant transmitted to the County of Hawaii, Department of Water Supply, its preliminary estimates for water usage. CROA: 1578-1684. On or about October 21, 2013, the head of the County of Hawaii, Department of Water Supply, Mr. Kurt Inaba, testified before the Hearings Officer. CROA: 2776-2782. In his testimony he agreed that the standards and guidelines that the Appellant used in developing its usage estimates were the same standards used by the County. CROA: 2778, lines 1-13. Mr. Inaba agreed that the calculations used by the Appellant were accurate. CROA: 2778, lines 10- 13. Mr. Inaba agreed that the Water Department's limit of 4,200 gallons per day was for the entire project when fully built. CROA: 2778: lines 18-21. He also specifically testified that if the Appellant used what it was limited to, its water usage would have no effect on surrounding property owners. CROA: 2778-2779: lines 22-5. Additionally, he was aware of another Charter school that utilized catchment water to supplement its available water. CROA: 2780: lines 5-12. Mr. Inaba further testified that the Appellant's project was phased or broken down into several parts. CROA: 2778: lines 14-17. Significantly, he also testified that at the Special Permit application phase the applicant is not required to submit its final or actual water use. CROA: 2779: lines 6-14; 2779-2780: lines 24-4. In the present case, the Appellee, Planning Commission failed to make the appropriate assessments and ignored all of the Appellant's reasonable measures to designed to protect the County's water resources. The County has specifically limited the Appellant's water usage to 4,200 gallons per day. CROA: 578, 734-735; 767. The Appellant's estimates, using the same 28 engineering standards and guidelines the County Water Department relied on, clearly showed that different phases would use less water than the limit: Based on the these preliminary estimates the 4,200-gpd of potable water,while possibly not sufficient to support the entire campus (although this will not be known definitively until the additional engineering analysis is undertaken during the project's design phase), can sustain development of several campus components. (For reference, Attachment 3 shows a breakdown of approximate water usage by program. This breakdown is derived from the usage estimates for a day school without a cafeteria provided in Attachment 2). The project implementation phasing presented in the Special Permit application places the high school program on the subject property first, followed by the intermediate school program, the elementary school program and cafeteria, and lastly the dormitory and intergenerational facilities. Using the estimate provided in Attachments 1, 2, and 3 it can be reasonably expected that the 4,200-gpd- allocation would be reached during Phase 7 when the elementary school program and cafeteria are placed on the site. Therefore, it could take anywhere from 10 to 16 years to reach the point when additional potable water is needed. During the design phase when additional evaluation and analysis of the project's potable water demands are conducted, the Applicant may choose to reprioritize project phasing to ensure that the more critical components of the project are constructed first to ensure provision of potable water by the DWS allocation. (Emphasis added) Considering that it could reasonably take between one to two decades before the 4,200-gpd allotment is reached, there is ample time for the Applicant to identify and assess the feasibility of other potential sources of potable water. (Emphasis added) CROA: 1680-1681; see also CROA: 2732-2737, testimony of Kevin Louma, Licensed Professional Engineer regarding water calculations; 3339-3340, Mr. Louma's curriculum vitae. The Appellant identified a number of alternatives that it would use to reduce its potable water needs. The alternatives included utilizing: • Waterless fixtures; 29 • non-potable water sources (urinals and water closets); • low-flow fixtures; CROA: 1679-1680. There was no credible or probative evidence that: (1) Contradicted the Appellant's usage estimates, including those estimates that documented that the project's initial phases would use less water the limit (CROA: 2786); or (2) Challenged the Appellant's suggested alternatives such as using the abundantly available catchment water (CROA: 512) for non-potable uses and low-flow fixtures that would reduce its County water needs; or (3) Disputed that given the water limit, the Appellant could not reprioritize its needs in terms of what buildings should be built first, or built at all (CROA: 2786, Director Kanuha); or (4) Cast any doubt on the Appellant's timeline that it would take over a decade of building and operating facilities to reach the limit allotted by Water Department; or (5) Disputed that the Department of Water Supply had no objections to Appellant's project (CROA: 387-388; 734-735; 1678-1684). Appellee Commission's FOF and COL concerning the lack of water was clearly erroneous because the Record lacked substantial evidence to support the finding. Hua v. Board of Trustees of the Employees'Retirement System, State of Hawaii, 112 Hawai'i at 298, 145 P.3d at 841. The CROA shows that there was "substantial evidence"defined as "credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion" that there was sufficient water for the initial phases for the Appellant's project and that reasonable alternatives existed for the fully complete project or that the 30 Appellant could revise its building schedule to make sure that it fell below the water usage limit. The Appellee's denial of the Appellant's Special Permit Application was "arbitrary and capricious" and should be reversed. (2) Service the Immediate Surrounding Community as a School. As part of the basis for denying the Appellant's request for a Special Permit, the Appellee found as fact and mixed fact and conclusion of law, that the proposed school would not serve the immediate community's children. CROA: 4303 (FOF 414); 4306 (FOF 436); 4310 (FOF 452); 4311 (Mixed 462); 4311-4312 (Mixed 463). The Appellee's finding of fact and mixed determination of law and fact were clearly erroneous because the record lacked substantial evidence to support the finding or determination. Del Monte Fresh Produce (Hawaii), Inc. v. Int'l Longshore & Warehouse Union, Local 142, AFL-CIO, 112 Haw. 489, 499, 146 P.3d 1066, 1076 (2006). The Appellee Commission clearly erred because its members required the Appellee's student body to be limited to the surrounding community. CROA: 4303 (FOF #14); 4306 (FOF 436); 4310 (FOF 452); 4311 (Mixed 462); 4311-4312 (Mixed 463). Unlike schools under the Department of Education (See, Sec. 302A-1143, HRS), Charter Schools are not limited to a specific geographical location or communities in which students may live. Specifically, Sec, 302D-13, HRS, states: (d) A charter application to become a start-up charter school shall meet the requirements of this subsection and section 302D-25. The charter application shall, at a minimum, include the following: (3) A plan for identifying, recruiting, and selecting students that is not exclusive, 31 elitist, or segregationist, and complies with this chapter; (Emphasis added) In the Appellee Planning Director's original recommendation to the Planning Commission, dated September 28, 2012, favoring the Appellant's project, the Director noted: There will be an opportunity for students living in the immediate area to attend this facility as the school and the curriculum evolves and matures to be an integral part of the community. (Emphasis added) CROA 776; 4154-4155. The School's Principal, John Thatcher, testified that Connections is a"start-up" Charter School. CROA: 2625-2626; 2632 (start up). In terms of the make of the student body, he further testified: Q. (Hong) In terms of your student body, do you have to submit a plan for identifying, recruiting, and selecting students under the law 30213-13? A. (Thatcher) Yes, we do. Q. And that would be that charter school commission you talked about? A. Yes. CROA: 2634: lines 4-10. Q. Okay. The school has received criticism that since a number of students are from Puna, the school should be in Puna. As a charter school, are you limited to students from a geographical area on this island? A. No. In our contract, we say where our students will come from, and we have basically noted that our students come from any area on the eastern side of the Big Island all the way as far north as Hamakua, a]l the way to Na'alehu, in that direction, and just —it's a huge area. Q. And in terms of your student population, does that also include students from the Kaumana area? 32 A. Yes, it does. (Emphasis added) CROA: 2635-2636: lines 18-6. A. (Thatcher) Do you mean where do our students live? Q. (Gomes) Yes. A. Okay. Roughly half of our students live in the Hilo area and about half of them live in Puna or— CROA: 2700: lines 10-13. In her testimony at the contested case hearing, the former Planning Director elaborated: A. (Leithead-Todd) The biggest issue that we had, really, was when we looked at the student body. And since a substantial portion of the student body came from the Puna area, we were questioning whether locating the school up in Kaumana was an appropriate location for a student body. However, ultimately, when we reviewed it,we looked at the fact that the student body changes. When Connections originally started, and this I'm familiar with because my good friend lived in Glenwood and taught at Mountain View Elementary School where Connections started. When Connections started, I would say that virtually 100 percent of its students resided in Puna. As Connections moved to its location at the Kress Building and subsequently opened up additional facilities at Nani Mau, over the years the percentage of students who were from let's say South Hilo and North Hilo has changed so that now you have a mix. And, ultimately, if Connections moves to Kaumana over time you're going to probably see a change in the mix too and you will see more of those students will reside from South Hilo because that has been the trend if you look at the trend. So it became that we needed to look at the permit in terms of its land use and whether it was an appropriate use of this land as opposed to what percentage of students lived in Puna and what percentage of students lived in Hilo. (Emphasis added) CROA: 3121-3122. Under cross-examination, the current Planning Director specifically addressed the issue 33 of the make up of the student body: Q. (Gomes) Regarding residents or students of the Connections Charter School, you have concerns about this application because most of the students who will attend this school do not reside near the school. Is that correct? A. (Kanuha). I don't have that concern, and 1 don't think it's a concern that's covered in the criteria that we use to make a determination of it. It may play into the decision-making process, but in this particular case, I don't think it overrides how the recommendation was put together, (Emphasis added) CROA: 2792-2793: lines 16-1. Under further questioning, Director Kanuha testified: Q. (Gomes) Do you know what percentage of the students reside in the Kaumana area? A. (Kanuha) Again, as I stated earlier, that number is not an overriding criteria in the things of this nature, I think maybe I might use an example of churches, you know. We don't make any findings as to where the denomination comes from when an application for a church comes before us. (Emphasis added) CROA: 2793: lines 18-25; see also 2794: lines 1-16. Appellee Commission's FOF and COL concerning the School servicing the immediate community was clearly erroneous because the Iaw governing Charter Schools prohibits any discrimination on the basis of a student's geographic residence. Additionally the Record lacked any substantial evidence to support the Appellee Commission's findings and denial of the permit. Hua v. Board of Trustees of the Employees'Retirement System, State of Hawaii, 112 Hawaii at 298, 145 P.3d at 841. The CROA shows that there was "substantial evidence" defined as "credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion" and unchallenged evidence, that the focus of the 34 Commission should have been the use of the land and not whether students from the surrounding property owners should be given priority in terms of admission. The Appellee Commission's denial of the Appellant's Special Permit Application was "arbitrary and capricious" because it disregarded the Record, including the testimony of the former and current Planning Directors concerning the applicable criteria and analysis, the law and should be reversed. (3) Traffic Impact The Appellee Commission found as fact that despite the Traffic Impact Analysis Report (hereinafter referred to as "TIAR"), the approval of the County's Department of Public Works and the Planning Department's revised conditions of approval, the hypothetical impact of traffic caused by the proposed development was too adverse and denied the permit application. CROA: 4304 (FOF #18); 4309 (FOF #46-47). In the July 2012 Special Permit application, the Appellant's summarized the TIAR: Based on the traffic general data, an LOS (Loss of Service) analysis was performed and concluded that the majority of vehicular approach and movement patterns on adjacent public roadway intersections would experience little or no delays if the project if fully developed. The LOS analysis projects that traffic movements in the project area would continue to operate at LOS A and B (best operating conditions) with over 73 percent of all movements operating at LOS A and 27 percent of movements operating at LOS B. Based on the findings of the TIAR, project is not expected to generate large increases in traffic volumes and would not result in adverse impacts to traffic and circulation patterns in the project area. CROA: 41; see also, 693-699 (TIAR). On September 18, 2012, the County's Department of Public Works, Traffic Division, submitted its comments and review based on the TIAR submitted by the Appellant. CROA: 393. The department did not find any fault or flaw in the data collection, the data or the analysis. Id.- 35 d35 see also, CROA: 2756: The department made suggestions that were incorporated by the Planning Department in its Revised Conditions of Approval. ld.. On October 31, 2012, the Planning Department submitted its Revised Recommendations, which analyzed any"adverse impacts" on the surrounding area. In relevant part, the Planning Department noted: (B) The desired use would not adversely affect surrounding properties. An adverse affect is defined as an unwanted and unanticipated result of taking a particular action. The proposed action is to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land. The anticipated impacts that would adversely affect surrounding properties from the proposed school are an increase in traffic to the area and an increase in noise. Although there are anticipated adverse impacts that would be created by this new use, these im acts can be mitigated to minimize their effects to surrounding property owners. Conditions of approval will be added to address traffic and noise that will mitigate and minimize these impacts. A Traffic Impact Analysis Report (TIAR)was conducted as part of the Environmental Assessment for the project. The report concluded that based on the level-of-service, all controlled traffic movements are expected to operate at better than acceptable levels-of-service and no additional mitigation measure are recommended at this time. Further, the report stated that the level- of-service analysis concluded that the project driveways along Edita Street will operate at acceptable levels-of-service without separate left turn lanes. However, school related vehicles turning left into the project will cause delays to through traffic along Edita Street unless separate left turn lanes are provided. To minimize the impact of project related traffic on the through traffic, the TIAR recommended that a separate left turn lane be provided for left turns from eastbound Edita Street into the Lower Campus at Road A. Additionally, to help mitigate noise and visual impacts, landscaping will be required along thg perimeter of the property. Based on the above discussion,the proposed use is anticipated to have an adverse affect on the surrounding properties, but these adverse impacts can be mitigated to minimize these impacts through conditions of approval. (Emphasis added) 36 CROA, 886-887; see also, 2804: lines 2-15 (Kanuha) ". . . we depend on the commentary of consulting agencies to assist us in determining whether or not a TZAR is acceptable or not." The Planning Department's submitted its revised Conditions of Approval to the Appellant on November 9, 2012. CROA: 1227-1231; 2804 (Mr. Kanuha's testimony). The revised conditions were part of the record and presented to the Appellee Commission. CROA: 1547, 1551. The revised conditions incorporated several changes to mitigate traffic impacts including but not limited to: • Conduct an updated TIAR before plan approval for the intermediate and elementary school phases and construct any improvements required (CROA: 1228: #7); • Construct separate turn left turn lanes from the street into the Appellant's property (CROA: 1228: #9); • Construct an 8 foot paved shoulder (CROA: 1228: 410) • Submit a"Traffic Management Plan" subject to review and approval of the Department of Public Works-Traffic Division and Police Department before any Plan Approval. (CROA: 1229: #11) • The "Traffic Management Plan" would identify "traffic management strategies that reduce traffic congestion on surrounding County roads" during special events and activities, in addition to dedicated drop off and pick up areas in the property and carpool, bus and van services and staggering drop off and pick up times (Id see also, 3088-3089: lines 6-7); • Required all driveways, roads and parking to be within the Appellant's property and not go out onto the County Roads (CROA: 1229: #12); • Required Appellant to work with neighboring property owner to open alternative access to a different County Road (Puainako extension) and avoid Edita Street (Id..). In the Contested Case hearing, the Appellant presented the testimony of two (2) traffic engineers, the Appellant's expert witness, Mr. Phillip Rowell (CROA: 3337-3338, curriculum vitae) and the chief of the Department of Public Works-Traffic Division, Mr. Ron Thiel. CROA: 2749-2760. As the traffic engineer, using recognized industry standards, Mr. Rowell testified that his traffic study was conducted when public schools were in session. CROA: 3056: line 6- 37 15. He also testified about the concern the TIAR may have been outdated. CROA: 3057-3059. He testified that the length of the application process in this case was the reason the TIAR was four (4) years old. CROA: 3 05 8: lines 1-16. He noted that in normal applications, the TIAR and special permit application is submitted to the Planning Commission within six (6) months. CROA: 3058: lines 9-16. However, he also noted that the delay was not unique and that an updated report should be submitted if the permit application went to the State Land Use Commission. CROA: 3058-3059: lines 19-1. Mr. Ron Thiel, a professional traffic engineer, testified that he has reviewed over one hundred TIARs in the course of his career. CROA: 2750-2751: lines 7-2 (professional credentials); 2757: lines 2-10. As the County's representative, he agreed with the Appellant's TIAR findings and described them as "a little overconservative." CROA: 2756. lines 11-24. In addressing the issue of whether public schools were in session during the TIAR data collection, he noted: Q. (Gomes) Okay. He also states that because the study was done on one day, May 28th, that University of Hawaii-Hilo, Hawaii Community College, and Kamehameha Schools Hawaii campus were out and so over 7,000 students were not in school that day. Would that make a difference in the TZAR? A (Thiel) It could make a difference. It actually could make it even worse. They might have even been on this street instead of at school. Let me give you just a little bit of history on TIARs. We generally look at what is called average daily traffic -- average annual daily traffic. We try to determine the annual traffic over the entire year. And counts were taken on individual days, but we have permanent traffic records that tell us what the traffic -- how the traffic varies from one day to the next, whether it's Monday or Friday, what time of the year, what month, what week, what activities. And we can adjust all that information. And, generally, the information you will see in these are adjusted to the AADT, the average annual daily traffic. So it doesn't make any difference what year, what day,what week the traffic counts are taken; it should all be adjusted. (Emphasis added) 38 CROA 2770-2771: lines 10-1. In terms of the when the TIAR was conducted, Mr. Thiel also testified: Q. (Gomes) Mr. Thiel, Dr. Henry Lee Loy turned in written testimony stating that the TIAR was done in May of 2009. Does that make it outdated since it has been so long ago and different communities have popped up along Kaumana Drive? A. (Thiel) Well, normally 1 would say yes, but you know, we had an economic turndown from 2009. The traffic volumes went up to about 2009, and then they started plummeting, and we are just getting back to about where they were, and maybe just a little bit higher now; so I would say, given any unforeseen conditions, it would be pretty close to the way it is now. I just did a review on another project of this very nature to determine what the volumes were along the Hamakua Coast, and I didn't see too much of a change in volumes. (Emphasis added) CROA 2769-2770: lines 18-3. The only criticism of the TIAR came from an electrical engineer(CROA: 2914: lines 5-7; 19-20), Mr. Melvin Yokota. Mr. Yokota's testimony was neither competent or probative evidence. Mr. Yokota admitted that neither he nor the company he worked for did T1ARs. CROA: 2917: lines 9-13; see also 2917-2918: lines 24-2, "I haven't had training in analysis of traffic..." He admitted that he has never done any project management in the County of Hawaii. CROA: 2925: lines 13-15. He did testify that with respect to traffic he did plans and specifications for putting in stop lights and roadway lighting. CROA: 2918: Iines 3-10. Mr. Yokota's submissions which criticized the TIAR and included his "professional opinion" about the Appellant's application being "deficient" were reviewed by a qualified Traffic Engineer, Mr. Phi I lip Rowell who testified: Q. (Hong) What concerns do you have, if any, concerning the credibility and reliability of Mr. Yokota's opinions? 39 A. (Rowell) First of all, he didn't follow any of the standard procedures and criteria guidelines that I cited before. There's no traffic counts. None of the statements were established by any calculations or data. Q. And did his reports follow or use any of the accepted guidelines that you rely upon in drafting and submitting a TIAR? A. Not that I could tell. CROA: 3052: lines 15-24; see also, 2757: lines 1 1-18, Mr. Thiel questioned the reliability of an electrical engineer submitting a TIAR without training or experience. Appellee Commission's FOF concerning adverse traffic impacts was clearly erroneous because the substantial evidence did not support the Appellee Commission's findings and denial of the permit. Hua v. Board of Trustees of the Employees'Retirement System, State of Hawaii, 112 Hawaii at 298, 145 P.3d at 841. The CROA shows that there was "substantial evidence" defined as "credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion" and unchallenged evidence, that any traffic impacts could be mitigated, the County and Appellant had agreed to such mitigation factors and that not only would an updated TIAR be submitted, but a more detailed and thorough Traffic Management Plan would also be submitted and adopted. CROA: 2804 (Mr. Kanuha's testimony) Nothing in the Record and no substantial evidence was introduced to show that the mitigating factors could not meet or lessen any adverse impacts. The Appellee Commission's denial of the Appellant's Special Permit Application was "arbitrary and capricious" because it disregarded the Record, including the testimony of the licensed traffic engineers concerning the applicable criteria and analysis and should be reversed. 40 (4) General Adverse Impacts to Surrounding Property Owners. The Appellee Commission found as fact that despite all the mitigating factors, questionable adverse impacts required the Commission to deny the Appellant's Special Permit Application. CROA: 4309 (FOF 446); 4312 (COL 44-5). On October 31, 2012, the Planning Department submitted its Revised Recommendations, and defined "adverse impacts" as including: (B) The desired use would not adversely affect surrounding properties. An adverse affect is defined as an unwanted and unanticipated result of taking a particular action. The proposed action is to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land. The anticipated impacts that would adversely affect surrounding properties from the proposed school are an increase in traffic to the area and an increase in noise. Although there are anticipated adverse impacts that would be created by this new use, these impacts can be mitigated to minimize their effects to surrounding property owners. Conditions of approval will be added to address traffic and noise that will mitigate and minimize these impacts. Based on the above discussion, the proposed use is anticipated to have an adverse affect on the surrounding properties, but these adverse impacts can be mitigated to minimize these impacts through conditions of approval. (Emphasis added) CROA: 886-887. At the contested case hearing, the current Planning Director specifically addressed the issue of "adverse impacts," the surrounding property owners' concerns and the how it influenced the Planning Department's favorable recommendation: Q. (Gomes) How are you able to just no adverse impact in light of the 41 police department's August 13, 2012 comments: The proposed school is being placed in a residential area that will likely affect the quality of life for residents that border this proposed site, that would be an increase in noise, crime and traffic? A. (Kanuha) There's going to be impacts, you know, one way or another. The level of what constitutes —what would constitute adverse impacts, you know, I think also, in our deliberations, we consider that. We also consider the significance of that adverse impact is, because there's different levels of this kind of impact that you are talking about. Q. The department noted the traffic impact is not adverse because of the planned left turn lane. Did you consider impacts to other streets along Kaumana Drive and the possible need for more police personnel for traffic control? A. I think the record will show that for each of these impacts and the level of adversity that these impacts will bring, that they have then or either instituted on behalf of our office or governmental agencies or on behalf of the applicant various measures to mitigate those impacts and I think the efforts to do that is quite clear that there has been efforts to do that. 1 would point to the revised conditions in the Planning Department's recommendation as efforts that have more precisely tired to mitigate what they anticipate those adverse impacts would be. (Emphasis added) CROA 2807-2808: lines 18-21; see also, 3120: lines 13-14 (Testimony of former Director Leithead-Todd), "Pursuant to the code, it's officially my recommendation, but it's not made in a vacuum."; see also 3120: lines 19-21, "In this case, we had discussion back and forth over the application. And, ultimately, both staff and I agreed that the recommendation should be favorable." In Department of Environmental Services, City and County of Honolulu v. Land Use Commission, et al., 127 Hawai'i 5, 275 P.3d 809 (2012), the Supreme Court noted that an agency's imposition of restrictive conditions regarding the use of the land on an applicant must be support by substantial evidence. Id 127 Hawaii at 13, 275 P.3d at 817. Appellee Commission's FOF and COL finding that the Appellant failed to disprove, by substantial evidence, that the proposed project would not have any adverse impact were clearly 42 erroneous. The "substantial evidence" is defined as"credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Del Monte Fresh Produce (Hawaii), Inc. v. Int7 Longshore & Warehouse Union, Local 142, AFL-CIO, 112 Hawaii 489, 499, 146 P.3d 1066, 1076 (2006). The substantial evidence proved that for each potential adverse impact; the Appellant and the County addressed such impacts and agreed to conditions that would mitigate, if not eliminate, such impacts. Nothing in the Record and no substantial evidence was introduced to show that the mitigating factors could not meet or lessen any adverse impacts. The Appellee Commission's denial of the Appellant's Special Permit Application was "arbitrary and capricious" because it disregarded the Record, including the testimony of the former and present Planning Directors concerning the mitigation of any, anticipated "adverse impacts." Accordingly.. the Appellee Commission's decision should be reversed. (5) Suitability of Property for Agriculture. The Appellee Commission found as fact that the property in question could be used for "agriculture" and as a Conclusion of Law the Appellant's application was not an"unusual and reasonable use" of the subject property. CROA: 4310 (FOF #53-55); 4312 (COL #4-5). The School's principal did testify that one of the programs offered at the school would involve agriculture as a component to larger programs and courses. CROA: 2649-2650: lines 10- 14. The agriculture component of classes that the school would teach involved "hydroponics, aquaponics, greenhouses, shade houses." CROA: 2650-2651: lines 18-8. The three (3) primary programs that the property could be used for involved "agriculture, the forestry conservation, and the ecotourism." CROA: 2652: lines 2-18. Agriculture would be done through hydroponics and 43 aquaponics. CROA: 2686: lines 18-25. Classes and programs use agriculture only as a component, such as teaching nutrition in a Science and Health class, not as a stand alone agriculture class. CROA: 2708: 3-25. Agriculture classes for high school students are intermittent and involved hydroponics, raised bed, nursery, ornamentals and gardening all tied to nutrition classes as part of the school's after-school programs. CROA: 2709: lines 8-19; 2711: lines 2-16. The substantial and undisputed evidence was that agricultural activities were part of a class curricula, not an end in and of itself. The current Planning Director testified extensively that the proposed school was not engaged in nor the property used for agriculture. In terms of agricultural uses, Mr. Kanuha testified: Q. (Gomes) The recommendation goes on to say that the request for special permit is reasonable because communities within agricultural districts require certain services to support the agricultural community in which they are included, including schools. You agree with that statement? A. (Kanuha) Yes. Q. What is the agricultural community you are referring to? A. The agricultural community in the context that we used here is basically as it relates to Chapter 205, which, you know, designates lands as, you know, agricultural classification. The county zoning also, you know, designates this property for agricultural designation. That is notwithstanding what the actual uses are, okay, because, again, on a case-by-case basis, in a lot of situations where use is proposed, the surrounding neighborhood may not necessarily represent a neighborhood or surrounding environment that is agricultural in nature. And I think in this particular case, you know, as you well know, that area is probably not used extensively for agricultural, and the surrounding uses are not essentially agricultural-, and that is why the recommendation is based on what the actual designations are that we are looking for. And,you know, that is the purpose for the special permit and exceptions. (Emphasis added) 44 CROA: 2796-2797: lines 20-22. In this same line of questioning about agricultural uses for the property, Mr. Kanuha testified: Q. (Gomes) And you have determined that the school will not adversely affect the preservation and use of the county's prime agricultural lands, and, therefore, it is not contrary to the objectives sought to be accomplished by the State Land Use law and regulations. Is that correct? A. (Kanuha) That's correct. Q. This is because the property has poor soil and is not prime agricultural land. Is that right? A. That's correct. CROA: 2799: lines 13-22. Q. How is the school an unusual use? A. Well, it is an unusual use because it's not a permitted use in this particular zone, both on the state level and the county level. Q. So does it not belong in an urban area? A. We have schools in agricultural areas as well. We have schools in urban areas. 1 think as a rule of thumb, it just depends on the size and scale of the school. And in this particular case, based on the acreage involved as compared to other— let's say public schools, it doesn't necessarily fit into that category. It could fit into either category; but for the purposes of this application, a special permit. as I said earlier, is an appropriate application for it. (Emphasis added) CROA: 2803: lines 13-21; see also_. CROA: 401-404, October 3, 2013 opinion letter from Office of State Planning, "The Office believes the proposal meets the guidelines in HAR Sec. 15-15-95 for determining an `unusual and reasonable use' for the purpose of granting a special permit pursuant to HRS Sec. 205-6." Appellee Commission's FOF and COL finding that the Appellant failed to disprove by 45 substantial evidence that the property in question could not be used for agricultural purposes was clearly erroneous. The substantial and credible evidence proved that for the property could not be used for agriculture purposes due to its classification and poor nature of the soil, the surrounding properties are not engaged in agriculture and the placement of the school is not in an agricultural community. There was no evidence submitted that indicated that the property could be used for agriculture, the type of agriculture it could be used for or that any of the surrounding property owners were engaged in agriculture. The Appellee Commission's denial of the Appellant's Special Permit Application was "arbitrary and capricious" because it disregarded the Record, including the testimony of the present Planning Director that the school was a reasonable use for the property, given the surrounding area. Accordingly, the Appellee Commission's decision should be reversed. E. Unusual and Reasonable Use of Land. The Appellee Commission concluded as a matter of law that the Appellant's application did not meet the requirements of Sec. 205-6, HRS and Rule 6 of its own rules. CROA: 4312 (COL #4-5). The Appellee Commission's COL are reviewed de novo under the right/wrong standard. Troyer v. Adams, 102 Hawai'i 399, 409, 77 P.3d 83, 93 (2003). In the present case, the State Office of Planning had reviewed, assessed and confirmed that the Appellant's application met all statutory requirements under Sec. 205-6, HRS. CROA: 401-404. By law, the State Office of Planning is charged with determining whether Special Permit applications meet all State land use requirements: In relevant part, Section 225M-2, HRS, defines the duties of the State Office of Planning: Sec. 225M-2 Office of planning, establishment; responsibilities. (a) There is 46 established within the department of business, economic development, and tourism an office of planning. . . . (b) The office of planning shall gather, analyze, and provide information to the governor to assist in the overall analysis and formulation of state policies and strategies to provide central direction and cohesion in the allocation of resources and effectuation of state activities and programs and effectively address current or emerging issues and opportunities. More specifically, the office shall engage in the following activities: (3) Planning coordination and cooperation. Facilitating coordinated and cooperative planning and policy development and implementation activities among state agencies and between the state, county, and federal governments, by: (A) Reviewing, assessing, and coordinating, as necessary, major plans, programs, projects, and regulatory activities existing or proposed by state and county agencies; Emphasis added. In relevant part, Sec. 226-53, HRS similarly provides: §226-53 Office of planning; duties. The office shall provide technical assistance in administering this chapter. To further the intent and purpose of this chapter, the office shall: (1) Provide recommendations to the governor and state and county agencies on conflicts between and among this chapter, state functional plans approved by the governor, county general plans and development plans, and state programs; (2) Review and evaluate this chapter and recommend amendments as needed to the legislature; (3) Review, as necessary, major plans, programs, projects, and regulatory activities proposed by state and county agencies, and provide advisory opinions and reports to the governor as needed; Emphasis added. On or about October 3, 2012, the State Office of Planning transmitted an opinion letter 47 stating that it had no objection to the Appellant's project. CROA: 401-404. Specifically, the Office of Planning found: Assessment The Office believes the proposal meets the guidelines in HAR Sec. 15-15- 95, for determining an "unusual and reasonable use" for the purpose of granting a special permit pursuant to HRS Sec. 205-6: 1. The proposed use would not be contrary to HRS Chapters 205 and 205A, and the rules of the LUC in that: (a) the pahoehoe soils of the 1880-1881 lava flow overlying the property are unsuitable for conventional agriculture; (b) there is and has been no agricultural use of the property; and (c) the applicant proposes to incorporate a sustainable agriculture program into the school curriculum; 2. The proposed use would not adversely affect the surrounding low density residential properties provided that: (a) roadway improvements and traffic management measures are adopted to minimize the impact of increased traffic on local roads and residences in the vicinity of the school; and (b) the project's drainage system improvements are designed, constructed, and maintained to ensure the runoff generated by the project is retained onsite and stormwater overflow from Kaumana Cave does not adversely impact downstream receiving streams and properties; 3. The proposed use would not unreasonably burden public agencies to provide or expand public facilities and services as the applicant will be responsible for any infrastructure and utility improvements required by the project; (Emphasis included and added) CROA: 402-403. In its recommendations, the Office of Planning found: Recommendations The Office commends the applicant for its decision to redesign the campus plan in response to concerns raised in the environmental review 48 process, such that the school facilities are consolidated on the lower site to avoid direct impacts to the Kaumana Cave system underlying the upper site. OP recommends that the applicant be required to comply with representations and recommended mitigation measures contained in the application, the Final Environmental Assessment(FEA), and supporting documents for the design, construction, and operation of the project with respect to: 4. Proposals for the development and maintenance of potable and non- potable water, wastewater, and drainage systems for the project; 5. Mitigation measures proposed in the FEA to be taken to avoid adverse impacts to endangered and threatened native species . . . 6. Traffic improvements and other mitigation measures recommended in the project's Traffic Impact Analysis Report; and (Emphasis included and added) CROA: 403-404. In the present case, the State Office of Planning charged with interpreting Chapter 205, 205A and the paramount governmental agency as it relates to state land use and planning matters contradicted the Appellee Planning Commission on all levels. The Appellee Planning Commission does not have the authority to interpret state law. As it relates to the present case, Section 6-7.5 of the Hawaii County Charter only allows it to conduct public hearings and proposed land use changes. See, Sec. 6-7.5(4), Hawaii County Charter. Section 205-6, HRS, allows the Commission to determine whether the application is consistent with state law. The Appellee commits error when it takes on the responsibility of interpreting Sec. 205-6, HRS because it leaves parties, as in this case, with inconsistent and contradictory results. One of the primary goals of pPlanning at the State level is consistency. See, Sec. 226-51, HRS. In the 49 present case, every State and County agency that reviewed the application and the revised conditions of approval agreed that the request was appropriate. However, the Appellee Commission will misinterpret the law for less than objective reasons to subvert the purpose and intent of land use law. V. RELIEF SOUGHT The Appellant seeks the following remedy, including but not limited to: A. Reverse the Findings of Fact, Conclusions of Law and Decision and Order adopted by the Windward Planning Commission on May 1, 2014 and May 19, 2014, respectively. CROA: CROA 4293; 4300-4315. B. Grant in whole, CBESS' application of July 25, 2012, filed with the County of Hawaii Planning Department, for a Special Permit.. pursuant to Section 205-6, Hawaii Revised Statutes ("HRS") and Rule 6 of the County of Hawaii Planning Commission Rules of Practice and Procedure to allow the development of a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres situated in the State Land Use Agricultural District, at Ponahawai, Kukuau 2"', South Hilo, Hawaii, and further identified by Tax May Key ("TMK"} (3)2-5-006:141 (CROAT 1-404); or, C. Remand the matter to the Appellee Windward Planning Commission with the specific instruction to grant in whole, CBESS' application of July 25, 2012; D. The Court order the Appellees to pay the Appellant's attorney's fees and costs in the present case. 50 DATED: Hilo, Hawaii, December 24, 2014 Respectfully submitted, ED H. S. HON Attorney at Law Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 51 0 0 Lb COUNTY CHARTER • t4• ' f • r �rE•�F•NAS COUNTY OF HAWAII 20112 APPENDIX "1," (m) Exercise such other powers and perform such other duties as may be prescribed by this charter, by ordinance,by law or by the mayor or managing director. (1979, Prop. 13; 1990, Prop. 14, sec. 1; 2000, Prop. 2, sec. 1; 2000, Prop. 2, sec. 6; 2010, Prop. 7, sec. 17.) Section 6-6.4. Pension Board. There shall be a pension board consisting of five members who shall be appointed by the mayor and confirmed by the council in the manner prescribed in Section 13-4. The pension board shall assume the duties and functions of the pension board of the county and the board of trustees of the police officers, firefighters, and band members as provided by law and shall be attached to the department of finance. The county clerk and the director of finance shall ex- officio be the secretary and treasurer, respectively, of the pension board. (1979,Prop. 13; 1990, Prop. 14, sec. 1;2000,Prop. 2,sec. 1.) CHAPTER 7 PLANNING DEPARTMENT Section 6-7.1. Organization. There shall be a planning department consisting of a planning director, a windward planning commission, a leeward planning commission and the necessary staff. (1979, Prop. 7;2000, Prop. 2, sec. l; 2008,Ord.No. 08-01, sec. 2.) Section 6-7.2. Planning Director. (a) The planning director shall be appointed by the mayor, confirmed by the council and may be removed by the mayor. The planning director shall have had a minimum of five years of training and experience in a responsible planning position, or a degree in planning, engineering, architecture, geography, or another planning-related field and three years of experience in a responsible planning position. No less than three years of experience shall have been in an administrative capacity. (b) The director shall be the chief planning officer of the county and the administrative head of the department and shall: (1) Advise the mayor, the windward planning commission, the leeward planning commission and the council on all planning and land use matters. (2) Prepare a general plan, implementation plans and any amendments thereto in accordance with Section 3-15. (3) Prepare proposed zoning and subdivision ordinances, zoning maps and regulations and any amendments thereto. (4) Review the lists of proposed capital improvements contemplated by agencies of the county and recommend the order of their priority. (5) Administer the subdivision and zoning ordinances and regulations adopted thereunder. (6) Render decisions on proposed subdivision plans pursuant to law. (7) Make recommendations on rezoning applications, special exceptions and other similar requests. 19 (8) Render decisions on proposed variances pursuant to law, except that, if any written objections are made to the planning director's actions under this section, said actions shall be subject to review by the board of appeals in accordance with Section 6-9.2,unless otherwise provided by law or this charter. (9) Perform such other related duties and functions as may be necessary or required pursuant to law and this charter. (1979, Prop. 5; 1979, Prop. 12; 1979, Prop. 13; 1998; Ord. No. 98-83, sec. 2; 2000, Prop. 2, sec. 1; 2000, Prop. 7, sec. 2; 2008, Ord.No. 08-01, sec. 3;2010,Prop. 7, sec, 18.) Section 6-7.3. Windward Planning Commission. (a) There is established a windward planning commission that shall have jurisdiction over the area consisting of the judicial districts of Puna, South Hilo, North Hilo, Hamakua, and Ka`u. (b) There shall be seven members on this commission. The commission shall include one member from each of the judicial districts of Puna, South Hilo, North Hilo/Hamakua combined, and Ka`u and three "at-large" members selected from these districts. Not more than two members, appointed from any one judicial district, shall serve on the windward planning commission. (c) The members shall be appointed by the mayor and confirmed by the council in the manner prescribed in Section 13-4. Each member representing a district shall be a legal resident and registered voter of that district. In addition, the director of public works and the manager of the department of water supply, or their designated representatives, shall serve as ex-officio members of the windward planning commission, without power to vote. (2008, Ord.No. 08-01, sec. 5;2010,Prop. 7, see. 19.) Section 6-7.4. Leeward Planning Commission. (a) There is established a leeward planning commission that shall have jurisdiction over the area consisting of the judicial districts of North Kohala, South Kohala, North Kona, and South Kona. (b) There shall be seven members on this commission. The commission shall include one member from each of the judicial districts of North Kohala, South Kohala, North Kona and South Kona and three "at-large" members selected from these districts. Not more than two members, appointed from any one judicial district, shall serve on the leeward planning commission. (c) The members shall be appointed by the mayor and confirmed by the council in the manner prescribed in Section 13-4. Each member representing a district shall be a legal resident and registered voter of that district. In addition, the director of public works and the manager of the department of water supply, or their designated representatives, shall serve as ex-officio members of the leeward planning commission, without power to vote. (2008, Ord.No. 08-01, sec. 5; 2010,Prop. 7, see. 20.) Section 6-7.5. Duties and Functions of the Windward and Leeward PIanning Commissions. (a) Both commissions shall: (1) Advise the mayor, council and the planning director on planning and land use matters pursuant to law and this charter. 19 (2) Review the general plan, its amendments and other plans and modifications thereof and transmit such plans with recommendations thereon through the mayor to the council for consideration and action. (3) Review proposed subdivision and zoning ordinances and amendments thereto and transmit such ordinances with recommendations thereon through the mayor to the council for consideration and action. (4) Conduct public hearings in every case prior to action on any matter upon which the commission is required by law or this charter to act. Notice of the time and place of the hearing shall be published at least ten days prior to such hearing in at least two daily newspapers of general circulation in the county and shall also be distributed via an electronic medium, such as the Internet. (5) Perform such other related duties and functions as may be necessary or required pursuant to law and this charter. (b) A uniform body of rules of practice and procedure, except for meeting places and times, shall apply to both commissions. Uniform rules of practice and procedure shall be adopted by a majority vote of the combined membership of the windward planning commission and the leeward planning commission, meeting jointly. The existing rules of practice and procedure of the Hawaii county planning commission, except for meeting places, shall apply to both commissions until the new uniform rules of practice and procedure are adopted. (c) Each planning commission shall review and take action upon applications for land use changes and community development plans involving only property within their respective jurisdictions, other than those involving the general plan. If an application for a land use change or a community development plan includes land within the jurisdiction of both the windward planning commission and the leeward planning commission, the application shall be considered by both commissions meeting jointly and action shall require the affirmative vote of a majority of the combined membership of the two commissions. All amendments to the general plan or the adoption of a new general plan shall be considered by each planning commission, meeting separately, and each commission shall make its own recommendation to the council. Each planning commission, meeting separately, shall make its own recommendations to the council on changes to the subdivision and zoning codes and any other planning or land use matters which apply generally and not to a specific area. The planning director shall determine which commission shall take jurisdiction over any matters when not fully established by the charter. (2008, Ord.No. 08-01, sec. 5;2010,Prop. 7, sec. 21;2010, Prop. 19, sec. 3.) Section 6-7.6. Transitional Provisions. (a) The existing planning commission shall remain in effect and continue to hear and decide matters pursuant to Section 6-7.3, Hawaii County Charter(2000), until April 1, 2009, the date upon which the windward planning commission and the leeward planning commission becomes effective. Matters pending before the existing planning commission that are not finally decided by April 1, 2009, will be transferred to the windward or leeward planning commissions, as appropriate to be finalized. 20 PLANNING § 16-1 Chapter 16 PLANNING Article 1. General Plan Section 16-1. The County of Hawaiti general plan. (a) That certain planning code known and designated as "County of Hawaii general plan," as adopted on December 5, 1971, by the council of the County of Hawaii, is hereby adopted by reference, subject to later amendments by ordinance, and may be cited as the"general plan."* (b) A copy of the general plan and amendments shall be available for public inspection at the planning department. (1975 C.C.,c. 7,art. 1, sec. 1;Am. 2006, Ord.No. 06-153, sec. 1;Am. 2007, Ord.No. 07-70, secs. 2, 3 and 4; Am 2008, Ord.No. 08-98,sec 2;Am. 2009, Ord, No. 09-150, sec.2, Ord.No. 09-161, secs. 1,2, 3 and 4.) Editor's Dote. A 2005 edition of the general plan was adopted by Ordinance 05-25. Ordinance 05-25 was subsequently amended by Ordinance 06-153,Ordinance 07-70,Ordinance 09-150,&Ordinance 09-161. Article 2. Community Development Plans Section 16-2. Adoption of community development plans. The community development plans listed below are adopted and incorporated by reference. A copy of the plans and amendments shalt be available for public inspection at the planning department. KONA. The document identified as "Mapping the Future: Kona Community Development Plan Volume 1" is adopted by reference subject to later amendments by ordinance, and may be cited as the "Kona CDP." The planning area for the Kona CDP encompasses the judicial districts of North and South Kona. NORTH KOHALA. The document identified as "North Kohala Community Development Plan" is adopted by reference subject to later amendments by ordinance, and may be cited as the "North Kohala CDP." The planning area for the North Kohala CDP encompasses the judicial district of North Kohala. PUNA. The document identified as "Puna Community Development Plan" is adopted by reference subject to later amendments by ordinance, and may be cited as the "Puna CDP." The planning area for the Puna CDP encompasses the judicial district of Puna and the Volcano Census Designated Place that includes the Volcano Golf Course subdivision in the district of Ka`u. SOUTH KOHALA. The document identified as "South Kohala Community Development Plan" is adopted by reference subject to later amendments by ordinance,and may be cited as the "South Kohala CDP." The planning area for the South Kohala CDP encompasses the judicial district of South Kohala. (2008, Ord.No. 08-98, sec. 3;Am. 2008, Ord,No. 08-116, sec. 2; Am. 2008, Ord. No. 08-131, sec. 2; Am. 2008,Ord.No. 08-151,sec. 2; Am. 2008,Ord.No. 08-159, sec. 2,) * Editor's Note: The Puna Community Development Plan,as adopted by Ordinance No.08-116,was amended by Ordinance No. 10-104,Ordinance No. 11-51,Ordinance No.11-52,Ordinance No. 11-53,Ordinance No. 11-117,and Ordinance No, l l-1 l8. Section 16-3. Review and amendment. A comprehensive review of the community development plans shall commence within ten years from the date of adoption. (2008, Ord.No. 08-98, sec. 3.) Article 3. CDP Action Committees Section 16-4. CDP action committees. (a) A community development plan (CDP) action committee shall succeed each CDP steering committee upon adoption of a community development plan. 16-1 SUPP. 13 (1-2012) Chapter 2 ADMINISTRATION Article 1.General Provisions. Section 2-1. Purpose of chapter. Section 2-2. Bonds of officials required; amount; filing; payment of premiums. Section 2-3. Issuance of commissions. Section 2-4. Subpoenas. Section 2-5. Inspections; charges for overtime. Section 2-5.1. Hawaiian language; spelling. Article 2. Executive Branch. Section 2-6. Office of the mayor. Section 2-7. Organization of executive branch. Section 2-8. Order of succession to office of mayor. Article 3. Office of the Corporation Counsel. Section 2-9. Settlement of claims. Section 2-10. Settlement of land acquisitions. Article 3A. Office of the Prosecuting Attorney. Section 2-10A. Appointment of personnel. Article 4. Department of Finance. Section 2-11. Issuance of warrants. Section 2-12. Refund of permit fees. Section 2-12,1. Encumbrances, Section 2-12.2. Lien parity. Section 2-12.3. Change orders and contract supplements; notification to the council. Section 2-12.4. Fund balance. Article 5. Fire Department. Section 2-13. Fire chief; appointment; qualifications. Section 2-14. Powers, duties and functions. Section 2-15. Fire commission. Section 2-15.1. Powers, duties and functions. Article 6.Volunteer Fire Department. Section 2-16. Volunteer fire department created, Section 2-16.1. Volunteer fire stations. Section 2-17. Head of volunteer fire department. Section 2-I8. Appointment of other personnel. Section 2-19. Volunteer personnel. Section 2-20. Mileage reimbursements for volunteer fire personnel. Section 2-21. Coordination of volunteer and regular fire departments. Section 2-22. Use of County fire-fighting equipment. i SUPP. 12 (7-2011) APPENDIX "2." Section 2-23. Benefits. Section 2-24. Extent of coverage. Section 2-25. Computation of wages. Section 2-26. Volunteers not members of volunteer fire department. Article 7. Planning Department. Section 2-27. Windward and leeward planning commissions. Section 2-28. Quorum; meetings. Section 2-28.1. Community development plan. Section 2-29. Records of findings required; location of office. Section 2-30. Publication of notice. Section 2-31. General plan; contents; location. Section 2-32. Subdivision regulations. Section 2-33. Zoning regulations; amendments. Section 2-34, Application for changes or new provisions. Section 2-35. Reserved. Section 2-35.1. Urban renewal. Article S. Department of Research and Development. Section 2-36. Purpose. Section 2-37. Sustainability Action Committee. Section 2-37.1. Duties of the committee. Section 2-37.2. Guidelines for committee recommendations. Article 9. Department of Public Works. Division 1. Organization. Section 2-38. Director of public works as department head. Section 2-39. Duties of director of public works. Section 2-40. Duties and functions of department. Section 2-41. Divisions within department. Division 2. Reserved. Article 10.Junior Police Officers. Section 2-51. Financial aid to parents. Section 2-52. Reporting of injury; investigation. Article 11. Department of Parks and Recreation. Section 2-53. Powers and authority. Section 2-54. Powers and duties of director. Section 2-55. Deputy director. Section 2-56. Full-time employees. Section 2-57, Part-time and temporary employees. Section 2-58. Cooperation with other agencies and organizations. Section 2-59. Authority to levy charges and fees. Section 2-60. Power to adopt rules and regulations; penalty. SUPP. 9 (1-2010) ii § 2-21 HAWAVI COUNTY CODE Section 2-21. Coordination of volunteer and regular fire departments. In the event of a fire occurring at any place within the County, the head of the volunteer fire department shall place the personnel of this department under the direction and control of the County fire department, which may utilize the service of the personnel of the volunteer fire department to the fullest extent to aid in bringing such fire under control and to perform such other duties as may be necessary to provide for the maximum safety of the inhabitants of the area threatened by such conflagration. (1975 C.C.,c. 2, an. 3, sec. 5.06.) Section 2-22. Use of County fire-fighting equipment. The fire-fighting apparatus and facilities of the County fire department, necessary to carry out the purpose of this article shall be made available to the volunteer fire department when the chief engineer, County fire department, is satisfied that the efficiency of this department will not be seriously impaired, (1975 C.C.,c. 2, art. 3, sec. 5.07.) Section 2-23. Benefits. All persons who are members of the volunteer fire department while engaged in the training and performance of volunteer fire fighting shall be entitled to benefits as provided by this article. (1975 C.C., c. 2, art. 3, sec. 5.08.) Section 2-24. Extent of coverage. In case of injury or death arising out of and in the performance of volunteer fire fighting or training, all persons included in section 2-23, shall be entitled to benefits as prescribed by chapter 386, Hawaii Revised Statutes. No person shall be excluded from receiving such benefits by reason of being an elected official, employer,or having an occupation which is excluded from coverage under chapter 386. (1975 C.C., c. 2, art. 3, sec. 5.09.) Section 2-25. Computation of wages. For the purposes of the benefits under this article, average weekly wages or earnings shall be computed from the usual employment or occupation of the person upon the basis set forth in section 386-51, Hawaii Revised Statutes, or upon the basis of earnings at the rate of$20 per week, whichever is most favorable to the claimant. (1975 C.C., c. 2, art. 3, sec. 5.10.) Section 2-26. Volunteers not members of volunteer fire department. (a) All persons not members of the volunteer fire department who volunteer their services at fires and whose services are accepted by authorized persons and whose injuries or death arise out of and in the performance of volunteer fire fighting shall be paid their reasonable hospital and medical expenses as authorized by section 386-171, Hawaii Revised Statutes,and funeral expenses not to exceed $300. (b) "Authorized persons„ as used in this section means such persons in the County fire department or volunteer fire department who are supervising or directing the fire-fighting operations. (1975 C.C., c. 2, art. 3, sec. 5.11.) Article 7. Planning Department. Section 2-27. Windward and leeward planning commissions. (a) There shall be a windward planning commission and a leeward planning commission, each made up of seven members as provided for by Charter. The windward and leeward planning commissions shall: (I) Perform such duties as are prescribed by the Charter. (2) Perform such other duties as are assigned to it by state law or this Code. SUPP. 9 (1-2010) 2-8 ADMIriiSTxA-110N § 2-27 (b) The windward planning commission shall administer, adjudicate and authorize payment from the Geothermal asset fund and claims made against the Geothermal asset fund, provided that no payments shall be made nor obligation incurred for any claim for which there are insufficient funds in the Geothermal asset fund to satisfy. No claim made pursuant to this subsection will be deemed a claim against the County nor will the payment of any claim be construed as an admission of fault by the County or its officers,employees or agents. (c) These commissions may incur expenses as are necessary to carry out these duties for which an appropriation has been made by the council. The planning director shall provide the windward and leeward planning commissions with such administrative support as is necessary. (1975 C.C., c.2, art. 2, sec. 3.01;Am. 1995, Ord. No. 95-62, secs. I and 2;Am. 2009, Ord. No. 09-118, sec.2.) Section 2-28. Quorum; meetings. (a) The majority of the voting members of the windward planning commission shall constitute a quorum for the transaction of business and for the exercise of the powers and authority conferred upon this commission. All actions of the windward planning commission shall require the affirmative vote of a majority of its members. (b) The majority of the voting members of the leeward planning commission shall constitute a quorum for the transaction of business and for the exercise of the powers and authority conferred upon this commission. All actions of the leeward planning commission shall require the affirmative vote of a majority of its members. (c) For those matters requiring a joint meeting of the windward and leeward planning commissions, as provided for in the Charter, a majority of each commission's voting members shall constitute a quorum. All actions of a joint meeting of these commissions shall require the affirmative vote of a majority of their combined membership. (d) The windward and leeward planning commissions shall each hold at least one meeting in each month. (e) Pursuant to the Charter, a uniform body of rules of practice and procedure, except for meeting places and times, shall be adopted by a majority vote of the combined membership of the windward planning commission and leeward planning commission, meeting jointly. Any rule adopted for the transaction of business shall be consistent with the laws of the State and the ordinances of the County. (1975 C.C., c. 2, art. 2, sec. 3.02;Am. 2009, Ord. No. 09-118,sec. 3.) Section 2-28.1. Community development plan. Within sixty days after receipt of the planning director's recommendation on a draft community development plan or any amendment thereof, either the windward or leeward planning commission, or both meeting as a joint commission as provided for in the Charter, shall transmit the draft community development plan or any amendment with its recommendation through the mayor to the County council. The designated commission, or joint commission, shall recommend approval in whole or in part, with or without modifications, or rejection of the community development plan or any amendment. In the event the designated planning commission, or joint commission, fails to act on the community development plan or amendment within the sixty-day period, such inaction shall be considered as an unfavorable recommendation by that commission, and the community development plan or amendment shall then be submitted through the mayor to the County council with such recommendation. (2008, Ord. No. 08-7I, sec. 2;Am. 2009, Ord. No. 09-118, sec. 4.) 2.9 SUPP. 9 (1-2010) 2-29 HAWAII COUNTY CODE Section 2-29. Records of findings required; location of office. (a) The windward and leeward planning commissions shall keep public records of their findings and determinations,whether acting independently or jointly. (b) The office of the windward and leeward planning commissions shall be in the planning department, or such other place designated by a consensus of both commissions determined by an affirmative vote of a majority of the combined membership, with the approval of the council. Any such vote shall occur only during a joint meeting of both commissions. (1975 C.C., c.2,art. 2,sec. 3.02; Am. 2009, Ord. 09-118, sec. 5.) Section 2-30. Publication of notice. Whenever published notice of either a windward or leeward planning commission meeting is required, it shall be provided in accordance with state law. This section shall also apply to any joint meeting of the windward and leeward planning commissions. (1975 C.C., c.2,art. 2, sec. 3.02; Am. 1995,Ord. No. 95-62, sec. 3;Am. 2009,Ord. No. 09-118, sec. 6) Section 2-31. General plan; contents; location. (a) The general plan shall include a map of the County and shall contain a statement of: (1) Development objectives, standards and principles with respect to the most desirable use of land within the County for residential, recreational, agricultural, commercial, industrial, and other purposes; (2) The most desirable density of population in the several parts of the County; a system of principal thoroughfares, highways, streets, and other public open spaces; the general location, relocation, and improvement of public buildings; (3) The general location and extent of public utilities and terminals, whether publicly or privately owned, for water, sewers, light,power,transit, and other purposes; (4) The extent and location of public housing projects; (5) Adequate drainage facilities and control; and (6) Such other matters as may, in the council's judgment, be beneficial to the social, economic, and governmental conditions and trends, and which are designed to assure the coordinated development of the County and to promote the general welfare and prosperity of its people. (b) The general plan shall be kept on file at the planning department. (1975 C.C., c.2, art. 2, sec, 3.03;Am. 2009,Ord.No. 09-118,sec. 7.) Intentionally left blank. SUPP. 9 (1-2010) 2-9.1 This page intentionally left blank. 2-9.2 SUPP. 6 (7-2008) § 2-32 HAWAII COUNTY CODE Section 2-32. Subdivision regulations. Regulations provided for under this section and as codified in chapter 23 of this Code shall coordinate streets within subdivisions with other existing or planned streets, or with other features of the general plan for the adequate and convenient placing of open spaces for traffic, utilities, access for fire-fighting apparatus, recreation, light and air, and for the avoidance of congestion of population, including minimum width and area of lots, and for a proper distribution of population and traffic which will tend to create conditions favorable to public health, safety, and morals. All such regulations shall be enacted as ordinances of the County and published as provided by law. Pursuant to the Charter, the windward and leeward planning commissions shall meet separately and provide separate recommendations on any amendment to subdivision regulations. (1975 C.C., c. 2, art. 2, sec. 3.04; Am. 2009, Ord.No. 09-118, sec. 8.) Section 2-33. Zoning regulations; amendments. (a) Regulations provided for under this section and as codified in chapter 25 of this Code shall regulate and limit the height and bulk of buildings, to regulate and determine the area of yards, courts and other open spaces, and to regulate and restrict the location of trades and industries and the location of buildings designed for specific uses or creating districts for any such purposes. The regulations shall be enacted as ordinances of the County and published as provided by law. Pursuant to the Charter, the windward and leeward planning commissions shall meet separately and provide separate recommendations on any amendment to zoning regulations. (b) The director, with the approval of either the windward or leeward planning commission, or both acting jointly, as provided in the Charter, may initiate at any time or upon application as provided in section 2- 34 and recommend to the council the adoption of an ordinance amending or repealing any zoning regulation or the enactment of a new ordinance regulating land uses after a public hearing is held. Published notice of the hearing shall be given in the manner provided in section 2-30. (c) Notwithstanding any provision in this section, any ordinance regulating land use and affecting lands in a redevelopment project area shall be amended without the necessity of a public hearing to conform to the approved redevelopment plan upon acquisition of the lands by the Hawaii redevelopment agency in accordance with section 53-6, Hawaii Revised Statutes. (1975 C.C.,c. 2, art. 2, sec. 3.05; Am. 2009, Ord.No. 09-118, sec. 9.) Section 2-34. Application for changes or new provisions. (a) Any application for a change, amendment or other modification or addition to any zoning ordinance may be filed with the director by the owner or lessee holding under a recorded lease of any real estate affected by any such ordinance or to be affected by the proposed changes, upon depositing with the director the sum of$100 to cover all necessary costs. (b) When all the preliminary procedures have been complied with, the director shall refer the application to either the windward or leeward planning commission, or both acting jointly, as provided in the Charter. The designated commission, or both commissions if so required by Charter, shall consider and act upon the application by holding a public hearing, published notice of which shall be given in the manner provided by law. (1975 C.C., c.2,art,2, sec. 3.06;Am. 1994, Ord. No. 94-14, sec. 2; Am. 2009, Ord.No. 09-118, sec. 10.) Intentionally left blank. SUPP. 9 (1-2014) 2-10 ADNUNISTRATION §2-315 Section 2-35. Reserved. (1975 C.C., c. 2, art. 2, sec. 3.07; Am. 2009,Ord.No. 09-118, sec. 11.) Section 2-35.1. Urban renewal. The planning department is hereby determined to be the lead agency in enabling the County to directly exercise its powers as provided for in parts I and 11 of chapter 53, Hawai`i Revised Statutes. As the lead agency,the planning department shall delegate the responsibilities of the Hawaii redevelopment agency to the appropriate departments, commissions and agencies to insure that the procedures of compliance are adhered to. (1992,Ord. No. 92-37, sec. 2.) Article 8. Department of Research and Development.* Section 2-36. Purpose. It is the purpose of this article to provide the necessary leadership to anchor the department of research and development's planning, policies, goals and actions in sustainable economic, societal and environmental practices. The adoption and employment of sustainable practices as a framework for business as usual through systematic change processes which shall result in concrete outcomes, changes in multiple functions or portions of the system, and institutionalization of these changes on an on-going basis to address sustainable agriculture; alternative energy, fuel and waste management; ecological education, business development, green housing and buildings; and protection of biodiversity. (2007,Ord.No. 07-161, sec. 1.) Section 2-37. Sustainability Action Committee. (a) There shall be designated within the department of research and development a sustainability action committee, which shall sit in an advisory capacity to the director of the department on matters that support a sustainable economy, society and environment and are within the department's purview to include energy, business development, agriculture, tourism, film, community development, and other related subjects. The department shall provide support service to the committee. (b) Membership and term. The committee shall be composed of five members, who shall be appointed by the mayor and confirmed by the council. Any member of the committee may be removed upon recommendation of the mayor and the approval of the council. Members shall serve a term of five years. However, for the initial appointment of members, one member shall be appointed for a term of one year, one for a term of two years, one for a term of three years, one for a term of four years and one for a term of five years. In addition to the five members, the director or the director's designee will serve as an ex-officio member of the committee. *Editor's Note: Article 8 was repealed in its entirety and replaced by Ordinance 07-151. Intentionally left blank. 2-11 SUPP. 9 (1-2010) ...� � � '� '�� �I COUNTY OF HAWAII GENERAL PLAN i February 2005 Pursuant Ord. No. 05-025 (Amended December 2006 by Ord. No. 06-153, May 2007 by Ord. No. 07-070, December 2009 by Ord. No. 09-150 and 09-161, June 2012 by Ord. No. 12-089, and June 2014 by Ord. No. 14-087) Supp. 1 (Ord. No. 06-153) APPENDIX "I" CONTENTS 1: INTRODUCTION 1.1. Purpose Of The General Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-1 1.2. History Of The Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-1 1 3. General Plan Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-3 1.4.The Current General Plan Comprehensive Review Program. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-4 1.5. County Profile . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-7 1.6. Statement Of Assumptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-11 1.7 Employment And Population Projections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-12 1.7.1. Series A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-13 1.7.2 Series B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-14 1.7.3 Series C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-15 1.8. Population Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1-17 2: ECONOMIC 2.1. Introduction And Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2-1 2.2. Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2-12 2.3. Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2-13 2.4 Districts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2-15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24.1. Puna . . . . . . . . . . . . . . . 2-15 2.4 2. South Hilo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-17 2.4.3. North Hilo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-19 2 4.4. Hamakua. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-20 2.4.5. North Kohala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-22 2.4.6. South Kohala. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-23 2.4.7. North Kona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-25 2.4.8 South Kona. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-28 2.49. Ka'u. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-29 3: ENERGY 3.1. Introduction And Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3-1 3.2. Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-8 3.3. Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-9 3.4. Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-9 4: ENVIRONMENTAL QUALITY 4.1. Introduction And Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4-1 4.2. Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4-4 4.3 Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4-5 4.4. Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4-5 5: FLOODING AND OTHER NATURAL HAZARDS 5.1. Introduction And Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5-1 5.2 Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5-5 5.3. Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5-5 SUPP. 1 (Ord. No. 06-153) Hawaii County General Plan i CONTENTS 5.4. Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-7 5.5. Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-7 5.5.1. Puna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-7 5.5.2. South Hilo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-8 5.5.3. North Hilo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5-11 5.5.4. Hamakua . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5-12 5.5.5. North Kohala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5-13 5.5.6. South Kohala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5-14 5.5.7. North Kona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5-15 5.5.8. South Kona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-16 55.9. Ka'u . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5-17 6: HISTORIC SITES 6,1 Introduction And Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-1 6.2 Goals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-2 6 3. Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-2 6.4. Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-3 6.5. Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-4 6.5.1. Puna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-4 6.52. North And South Hilo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-5 6.5.3. Hamakua . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7 6.5.4. North And South Kohala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8 6.5.5. North And South Kona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6-10 6.5.6. Ka'u . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6-12 7: NATURAL BEAUTY 7 1. Introduction And Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-1 7 2. Goals. . . . . . . . . . . 7-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3. Policies . . . . 7-2 7.4. Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-3 7.5, Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-3 7.5 1. Puna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-3 7.52. South Hilo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-5 7.5.3. North Hilo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-7 7.5.4. Hamakua . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8 7.5.5. North Kohala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-9 7.5.6. South Kohala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7-10 7.5.7. North And South Kona Districts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7-12 7.5.8. Ka'u . . . . . . . . . . . . . . . . . . . . . . . . . . . .7-14 8: NATURAL RESOURCES AND SHORELINE 8.1. Introduction And Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-1 8.2.Goals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-4 8.3. Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-4 8.4. Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-6 9: HOUSING 9.1. Introduction And Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-1 ii Hawaii County Genera!Plan SUPP. 1 (Ord. No. 06-153) CONTENTS 9.2. Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9-10 9.3. Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9-10 9.4. Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . .9-12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.5. Districts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9-12 . . . . . . . . . . . . . . . . . . . 9.5.1. Puna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-12 9.5.2. South Hilo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-14 9.5.3. North Hilo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-16 9.5.4. Hamakua. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-18 9.5.5. North Kohala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-20 9.5.6, South Kohala. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-22 9.5.7. North Kona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-24 9.5.8. South Kona. . . . . . . . . . . . . . . . . . . . . . 9-26 9.5.9. Ka'u. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-28 10: PUBLIC FACILITIES 10.1. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-1 10.1.1. Introduction And Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-1 10.1.2. Goal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-1 10.1.3. Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-1 10.1.4, Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-2 10.2. Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-2 10.2 1. Introduction and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-2 10.2.2. Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-4 10.2.3. Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-4 10.2.4. Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-5 10.3. Protective Services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11 10.3.1. Introduction and Description . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11 10.3.2 Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-13 10.3.3. Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-14 10.3.4. Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-14 10.4. Government Operations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-17 10.4.1. Introduction and Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-17 10.4.2. Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-18 10 4.3. Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-18 10.5. Health And Sanitation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-21 10.5.1. Introduction and Description . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-21 10.5.2. Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-25 10.5.3. Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-25 10.5.4. Districts . . . . . . . . . . . . . . . . . . . . . . . . 10-26 11: PUBLIC UTILITIES 11.1. Overview. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-1 11.1.1. Introduction and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-1 11.1.2. Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-1 11.1.3. Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-1 11.2. Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-2 11.2.1. Introduction And Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-2 11.2.2. Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-4 11.2.3. Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-5 11.2.4. Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-5 11.3.Telecommunications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12 11.3.1, Introduction and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12 SUPP. 1 (Ord. No. 06-153) Mawaii County General Plan iii CONTENTS 11.3.2. Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-13 11.3.3.Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-13 11 A. Electricity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-13 11.4.1. Introduction and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-13 11.4.2. Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-15 11.4.3.Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-15 11.5. Gas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-15 11.5.1. Introduction and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-15 11.5.2. Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-16 11.5.3. Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-16 11.6.Sewer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-16 11.6.1. Introduction and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-16 11.6.2. Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-18 11.6.3. Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-18 11.6.4. Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-19 12: RECREATION 12.1. Introduction And Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-1 12.2 Goals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-4 12.3. Poiicies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-4 12 4. Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-5 12.5. Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 12-7 12.5.1. Puna. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12-7 12.5 2. South Hilo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12-9 12.5.3. North Hilo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13 12.5.4. Hamakua . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13 12.5.5. North Kohala. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-14 12.5.6.South Kohala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-16 12.5.7. North Kona. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-17 12.5.8. South Kona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-19 12.5.9. Ka'u . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-21 13: TRANSPORTATION 13.1. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-1 13.1 1. Introduction and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13-1 13.1.2. Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13-2 13.1.3. Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13-2 13.1.4.Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13-3 13.2. Roadways . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-3 13.2.1. Introduction and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-3 13.2.2. Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13-5 13.2.3 Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13-5 13.2.4. Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13-6 13.2.5. Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13-7 13 3.Transportation Terminals: Airports& Harbors. . . . . . . . . . . . . . . . . . . . . . . . . . . 13-16 13 3.1. Introduction and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-16 13.3.2. Goal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-17 13.3.3. Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-17 13.3.4.Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-17 13.3.5. Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-18 13.4. Mass Transit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-22 13.4.1. Introduction and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-22 iv Ilawaii Counly General Plan SUPP. 1 (Ord. No. 06-153) CONTENTS 13.4.2. Goal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-23 13.4.3. Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-23 13.4.4. Standards. . . . . . . . . . . . . . . . . . . . . . . . . 13-24 14: LAND USE 14.1 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-1 14.1.1. Introduction And Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-1 14.1.2. Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-13 14.1.3. Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-13 14.1.4. Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-14 14.2.Agriculture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14-15 . . . . . . . . . . . . . . . . . . . . . . . . 14.2.1. Introduction and Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15 14.2.2. Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-17 14.2.3. Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-17 14.2.4. Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-18 14.3. Commercial Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-23 14.3.1. Introduction and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-23 14.3 2. Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-24 14.3.3. Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-24 14.3.4. Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . 14-25 14.3.5. Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-25 14.4 Industrial. . . . . . . . . . . . . . . . . . . . . . . . . 14-32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 4,1. Introduction and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-32 14.4.2. Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-34 14.4.3. Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-34 14.4.4. Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-34 14.4.5. Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-35 14.5 Multiple Residential . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-41 14.5.1. Introduction and Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-41 14.5.2. Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-42 14.5.3. Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-42 14.5.4. Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-42 14.5.5. Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-43 14.6. Single-Family Residential. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-46 14.6.1. Introduction and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-46 14 6.2. Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-47 14.6.3. Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-47 14.6.4. Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-48 14.6.5. Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-48 14.7. Resort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-52 14.7.1. Introduction and Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-52 14.7.2. Goals . . . . . . . . . . . . 14-54 . . . . . . . . . . . . . . . . . . . . . . . 14,7.3. Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-54 14 7.4. Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-55 14.7.5. Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-56 14.8. Open Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-62 14.8.1. Introduction and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-62 14.8.2. Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-63 14.8.3. Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-63 14.8.4. Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-63 14.9. Public Lands. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-64 14.9.1, Introduction and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-64 14.9.2. Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-65 14.9.3. Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-65 SUPP. 1 (Ord. N0. 06-153) Hawaii County General Plan v CONTENTS 14.9.4. Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-66 15: PLAN IMPLEMENTATION 15.1. Community Development Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-1 15.2. Capital Improvements Program (CIP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-3 15.3.Annual Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-4 16: AMENDMENT PROCEDURES 16.1. Comprehensive Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-1 16.2. Interim Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-2 16.3. Rules And Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-4 Vi Hawaii County General Plan SUPP. 1 (Ord. No. 06-153) INTRODUCTION 1.1 PURPOSE OF THE GENERAL PLAN The County of Hawaii's General Plan is the policy document for the long range compre- hensive development of the island of Hawaii. The purposes of the General Plan are to: • Guide the pattern of future development in this County based on long-term goals; • Identify the visions, values, and priorities important to the people of this County; • Provide the framework for regulatory decisions,capital improvement priorities, acquisi- tion strategies, and other pertinent government programs within the County organiza- tion and coordinated with State and Federal programs. • Improve the physical environment of the County as a setting for human activities; to make it more functional, beautiful, healthful, interesting, and efficient. • Promote and safeguard the public interest and the interest of the County as a whole. • Facilitate the democratic determination of community policies concerning the utiliza- tion of its natural, man-made, and human resources. • Effect political and technical coordination in community improvement and develop- ment. • inject long-range considerations into the determination of short-range actions and im- plementation. 1.2 HISTORY OF THE PLAN General Plan studies in the County of Hawaii were initiated in the late 1950's and were limited to particular regions of the island such as the Hilo, Kona, Kohala, Hamakua, and Puna Districts. As such, these initial general plans lacked a comprehensive, coordinated, and integrated overview of the entire County. The first of these studies, "A Plan for Ko- na", was completed in 1960 and encompassed the districts of North and South Kona. "A Plan for the Metropolitan Area of Hilo" was completed in 1961 for the districts of South Hilo and Puna. "The Kohala-Hamakua Region General Plan" was completed in 1963 and covered part of the district of North Kona and the districts of North and South Kohala, Ha- makua and North Hilo. These regional plans were adopted by Ordinance No. 317 in July 1965, as the General Plan for the County. The district of Ka'u was the only area in the County not covered by this plan. Hawaii County General Plan 1-1 PUBLIC FACILITIES 10.1 OVERVIEW 10.1.1 Introduction And Analysis Public facilities are those service systems that are provided, staffed, and maintained by government to directly serve the residents of the County. Public facilities include the sys- tems of schools, libraries, fire stations, police stations, detention and correctional facili- ties, refuse disposal areas, harbors, and airfields. (Harbors and airfields are further described under the Transportation Element) These facilities are often located in larger towns or centrally situated areas that are in close proximity to the commercial, industrial and cultural activities of established communities. The majority of public facilities that service the residents of this County are managed by the State and County. For example, the State operates the public school system, libraries, and the public hospitals. The County provides police and fire protection and solid waste disposal. Additionally, both the State and County maintain administrative offices on the island to serve the residents' needs. It is necessary to carefully coordinate the provision of public facilities in order to use them most effectively and to maximize the effect of the public dollar. It is equally necessary to realize that the type, quality, capacity and location of facilities and services have a signifi- cant impact on the community, the people and the total environment. 10.1.2 Goal (a) Encourage the provision of public facilities that effectively service community and visitor needs and seek ways of improving public service through better and more functional facilities in keeping with the environmental and aesthetic concerns of the community. 10.1.3 Policies (a) Continue to seek ways of improving public service through the coordination of ser- vice and maximizing the use of personnel and facilities. Hawaii County General Plan : 10-1 §10.1.4: Standards (b) Coordinate with appropriate State agencies for the provision of public facilities to serve the needs of the community. (c) Develop short and long-range capital improvement programs and operating bud- gets for public facilities and services. (d) Develop and adopt an Impact Fees Ordinance. (e) Capital Improvement and Operating budgets shall reflect the goals and policies of the County General Plan. (t) Require a six-year, long-term, capital improvements budget by County Depart- ments and agencies that shall be reviewed for consistency with the General Plan. 10.1.4 Standards (a) Standards have been established in each of the four major groupings of public facilities. (b) The various public facilities have been categorized into education, protective ser- vices, health and sanitation, and government operations. (c) The following are set forth for the overall provision and maintenance of public facilities in the County. 10.2 EDUCATION 10.2.1 Introduction and Analysis There are 39 public schools in the County with a total enrollment of 27,557 students from kindergarten through the l2th grade. The schools range in size from 169 stu- dents at Haaheo to 2,180 students at Waiakea High School. There are 17 licensed pri- vate regular education schools serving a total of 2,216 students from kindergarten through the 12th grade. The number of students from kindergarten through the 12th grade on the island, public and private school complexes combined,total 30,209 or ap- proximately 20 per cent of the total island population. In 1999, the Legislature of the State of Hawaii created a new educational initiative with the passage of Act 62, SLH 1999 or "The New Century Charter Schools" law. Charter schools are more autonomous with greater flexibility in decision-making. Charter schools are excluded from many State laws and department rules and regula- tions. However, charter schools are public schools in that they receive public funds. These schools must still meet all applicable federal, State and County requirements and are not exempt from collective bargaining, discriminatory practice laws, health and safety laws and standards, and the implementation of the Hawaii content and per- formance standards. 10-2 Hawaii County General Plan §10.2.1: Introduction and Analysis MIDI C a) Each charter school is responsible for selecting their own sites. If a public school has r space available, a charter school may seek to enter into an arrangement with the De- n partment of Education for the use of a portion of the school's facilities. This law al- 11 lows up to 25 charter schools to be established statewide. Thus far, charter certificates have been issued for five schools, nF School complexes with limited enrollment have not always been able to maximize ed- ucational opportunities in comparison with the ability of larger facilities to provide a m wider scope of educational opportunities. Some older schools lack adequate parking N facilities and sufficient area for expansion and some have infrastructure and traffic problems. m CL The Hawaii Library District is comprised of a regional library in Hilo; six community C libraries in Honokaa, Kapaau, Holualoa, Kailua-Kona, Kealakekua, and Naalehu (part-time); and six joint community-school libraries in Keaau, Mountain View, Pa- '* hoa, Pahala, Laupahoehoe and Waimea. Size is described by the number of volumes 7 (books, periodicals, etc.) and range from 6,445 volumes at Holualoa to 208,065 vol- umes in Hilo. Some library facilities will require improvements as the demand for learning and in- formation increases. More up-to-date facilities are also required in some areas. The University of Hawaii at Hilo (UHH), located in Hilo provides alternative higher educational opportunities within the University of Hawaii system through its variety of high quality certificate, baccalaureate, and masters degree programs. The 1973 "University of Hawaii at Hilo Long Range Development Plan" was updated and revised in 1981 and again in 1996. The University of Hawaii at Hilo Long Range Development plan serves as a physical planning guide for the UHH campus. The Plan emphasizes the "spine" concept that organizes all campus structures along a main pe- destrian accessway and assures that future development would continue in relation to the various existing structures. As such, new facilities would be developed towards Komohana Street. The University continues to lack adequate student and faculty housing. Hawaii Community College provides access to higher education, and workforce train- ing for the entire County. The College offers an extensive program of certificate and associate degree programs in technical fields as well as the first two years of a bacca- laureate degree. The College also offers an extensive program of short-term training programs throughout the County. The community college serves the entire County with programs on site in the communities and utilizes distance education technologies. The Long Range Development Plan for Hawaii Community College was approved by the Board of Regents in 1996 and calls for the construction of a new campus in Hilo Hawaii County General Plan 10-3 §10.22: Policies mauka of Komohana Street. In West Hawaii, in addition to Hawaii Community Col- lege programs, the college is responsible for the University of Hawaii Center, through which it delivers baccalaureate and masters degree programs from other institutions in the University Center. The Long Range Development Plan for the West Hawaii campus of the University of Hawaii was completed in 1998. The State is currently in the process of preparing an environmental impact statement for the initial phase of development of the new cam- pus (University of Hawaii Center at West Hawaii)to be located on a 33-acre portion of a 500-acre State-owned parcel in Kalaoa, North Kona. The proposed campus, which will accommodate approximately 1,500 students upon completion, will be located mauka of the Queen Kaahumanu Highway and the Kona International Airport at Keahole. 10.2.2 Policies Educational policies relate to the provision of facilities rather than programs, which are the province of the State. It is nevertheless recognized that the facilities and pro- grams are the tools necessary to improve total educational service. (a) Encourage continuous joint pre-planning of schools with the Department of Edu- cation and the University of Hawaii to ensure coordination with roads, water, and other support facilities and considerations such as traffic and safety, and access for vehicle, bicycle, and pedestrian. Encourage master planning of present and pro- posed public and private institutions. (b) Encourage combining schoolyards with county parks and allow school facilities for afterschool use by the community for recreational, cultural, and other compati- ble uses. (c) Encourage joint community-school library facilities, where a separate community library may not be feasible, in proximity to other community facilities, affording both pedestrian and vehicular access. (d) Encourage implementation of the Department of Education's'Educational Specifi- cations and Standards for Facilities.' (e) Encourage the Hawaii State Library System to seek alternate sites for public libraries located on the campuses of public schools. 10.2.3 Standards (a) In proposed communities, sufficient acreage shall be reserved for school facilities. Sites shall be free from flooding and drainage problems, excessive slope and shall incorporate appropriate street and driveway design and location to minimize traf- fic interference, pedestrian hazard, and enable safe and easy access for vehicles, bicycles and pedestrians. 10-4 : Hawaii County General Plan §10.2.4: Districts ba C (b) State Department of Education's education specifications and standards for facili- ties. n 10.2.4 Districts n The following is an examination and analysis of educational facilities by districts. For r the purposes of this section, a complex refers to a high school and its associated feeder schools. Feeder schools are the elementary and intermediate (middle) schools that rn send students to an associated high school. For instance, the Waiakea High School N complex has Waiakea High School as its designated high school and Waiakea Inter- i mediate, Waiakeawaena Elementary, and Waiakea Elementary as its feeder schools. M a 10.2.4.1 PUNA 10.2.4.1.1 Profile , Public school complexes in the Puna District are located in the communities of Keaau, G Mt. View and Pahoa. The Keaau High School complex is comprised of Keaau High School, Keaau Middle School, Keaau Elementary School, and Mt. View Elementary School, and serves a to- tal enrollment of 2,441 students. Existing complex facilities are adequate to serve the current enrollment. The new Keaau High School is being built in phases. As each phase is completed, the incoming class (i.e. freshman, sophomores, etc.) can be ac- commodated. The Keaau Elementary School is being built in a similar fashion. Thus, in a few years, the need to transport students from the Keaau and Mt. View area will not be necessary. Currently. I lth and 12th graders from Keaau commute to Waiakea High School in South Hilo. At this time, the first phase of Keaau High School has been completed and is in operation. The Pahoa High School complex is comprised of Pahoa High and Intermediate School, Pahoa Elementary School, Keonepoko Elementary School and serves 2,323 students from kindergarten through the 12th grade level. The natural population growth and in-migration into the subdivisions in the area are contributing to the in- creased pressure on education facilities at the Pahoa complex. In response to these growth pressures, facilities have been expanded to accommodate the increased enroll- ment. However, there is still overcrowding at the elementary school. The Keaau, Mt. View and Pahoa branch libraries are joint community-school facili- ties. The Keaau facility has 21,332 volumes. The Pahoa and Mt. View facilities house 34,365 volumes and 18,345 volumes, respectively. Both library facilities are inade- quate in size to meet the needs of the students and community. Furthermore, the lack of adequate pedestrian access and parking at these facilities is an ongoing problem. Hawaii County General Plan 10-5 §10.2.4.2: SOUTH HILO 10.2.4.1.2 Courses of Action (a) Improve existing school complexes to meet the standards established by the State Department of Education. (b) School facilities should be made available to the community for recreation and other compatible uses during after school hours. (c) Encourage the Department of Education to plan and develop school facilities as the need arises. (d) Encourage improvements to pedestrian access between the village of Pahoa and the school and library facilities. 10.2.4.2 SOUTH HILO 10.2.4.2.1 Profile The public school complexes in the South Hilo district includes two high schools, three intermediate and eight elementary schools. One of the intermediate schools is a combined elementary-intermediate facility serving the kindergarten through the eighth grade level. The school enrollment of South Hilo is about 10,339 students. The Hilo High School complex is comprised of Hilo High School, Kalanianaole Ele- mentary and Intermediate School, Hilo Intermediate School, DeSilva Elementary School, Haaheo Elementary School, Hilo Union Elementary School, Queen Kapiolani Elementary School, Kaumana Elementary School, and Keaukaha Elementary School and serves about 5,576 students. The Waiakea High School complex is comprised of Waiakea High School, Waiakea Intermediate School, Waiakeawaena Elementary School, and Waiakea Elementary School and has an enrollment of 4,763 students. The facility serves students from the Waiakea, Keaau and Mt. View intermediate schools. A new high school in Keaau opened in 1999. Upon completion of all phases, the new high school will serve the students from the Keaau complex. The Waiakea Intermediate School presently accommodates 6th grade students from the Waiakea Elementary and Waiakeawaena Elementary facilities to relieve the over- crowded student population. All three schools have an enrollment of 2,583 students. Traffic congestion occur in the area of the Waiakea High-Intermediate-Elementary School and the Hilo High-Intermediate-Union School-Haili Christian (private) com- plexes where students commute to and from school twice daily at nearly the same time. The areas surrounding some school complexes have practically no sidewalks or curb separations for the students' ease of access and safety. The regional library, with a collection of 208,065 volumes, is located in Hilo and is the administrative center for all the branch libraries in Hawaii County. Although conve- 10-6 : Hawaii County General Plan §10.2.4.2: SOUTH HILO 00 C a) niently located, it lacks a meeting room or auditorium to conduct cultural or similar r programs. n The University of Hawaii at Hilo complex has an enrollment count of 2,800 students. The main or mauka campus encompasses an area of approximately 115 acres. Hawaii 0 Community College has an enrollment of 2,100 degree students and shares the cam- r- pus, as well as the 21-acre makai campus. located approximately 114 mile away. The mauka campus has undergone expansion over the past ten years. The makai campus is m being renovated to accommodate some Hawaii Community College programs until a N new campus can be constructed. M A recent addition to the mauka campus is the 163-acre University Park, located be- Q tween Komohana Street and the northern portion of the mauka campus. In addition to University Park, an additional 323 acres directly mauka of the Park on the mauka side of Komohana Street is expected to be transferred to the University and will be devel- M oped to include a new campus for Hawaii Community College. The University also owns an additional 33 acres across Kawili Street adjacent and above Waiakea High School. These three properties are designated for University expansion. In addition, the University also uses 110 acres in Panaewa for its agriculture program. The Edwin H. Mookini Library, located on the main university campus, has a collec- tion of 180,000 bound volumes and other library materials, including periodicals, newspapers, audio/video cassettes and microfilms. It has a capacity of 450,000 vol- umes and study space for 800 students and faculty members. The library also houses a media production center, providing graphics and duplicating facilities as well as audio and television studios. 10.2.4.2.2 Courses of Action (a) Encourage the establishment of additional schools as the need arises. (b) Participate in the development of student and faculty housing for the university and other joint-use facilities. (c) Provide pedestrian walkways to and around all school complexes. (d) Support the continued expansion of the University system and the University of Hawaii at Hilo and Hawaii Community College campus and encourage the con- tinuing education programs throughout the community. The transfer of State lands to the University should be actively pursued. (e) Encourage continual improvements to existing educational facilities. (t} Support and encourage the strengthening of the University of Hawaii at Hilo through the transfer of appropriate colleges and departments from the University of Hawaii at Manoa to the University of Hawaii at Hilo. Hawaii County General Plan 10-7 §10.2.4,3: NORTH HIL.OIHAMAKUA (g) Encourage the implementation of existing State and University of Hawaii plans for the continued development of the "Research and Technology Park" on the campus of the University of Hawaii at Hilo. 10.2.4.3 NORTH HILOIHAMAKUA 10.2.4.3.1 Profile The Laupahoehoe High and Elementary School complex serves 250 students from kindergarten through the 12th grade level. The existing facility is adequate, as enroll- ment has been relatively stable due to the aging of the district's population. The physical disadvantages of the Laupahoehoe School facility include the steep grade and narrow access from the highway, the lack of adequate pedestrian walkways lead- ing to the school, and the abruptness of the road junctions. The Honokaa High School Complex is comprised of Honokaa High School, Waimea Elementary and Intermediate School, Paaudo Elementary and Intermediate School, Honokaa Elementary School, and Waikoloa Elementary School and serves 3,258 stu- dents from kindergarten through the 12th grade level. Honokaa High School accom- modates students from South Kohala as well as from the Hamakua district. A traffic problem exists within the Honokaa School complex due to a through-street bisecting the campus. Vehicular and pedestrian problems also exist in Paauilo. The Laupahoehoe library is a joint community-school facility housing 20,277 vol- umes. The community facility in Honokaa has 16,705 volumes. 10.2.4.3.2 Courses of Action (North Hilo) (a) Improve pedestrian and vehicular access to the Laupahoehoe and Hamaku School complexes. (b) Encourage continual improvements to existing educational facilities. 10.2.4.3.3 Courses of Action (Hamakua) (a) Encourage continual improvements to existing educational facilities. (b) Encourage traffic re-routing to resolve school traffic problems. (c) Implement the Honokaa school campus master plan. (d) Encourage expansion of the present library facility and services. 10-8 Hawaii County General Plan §10.2.4.4: NORTH AND SOUTH KOHALA lu C 09 10.2.4.4 NORTH AND SOUTH KOHALA r n 10.2.4.4.1 Profile The Kohala High and Elementary School complex is comprised of Kohala High and D Intermediate School and Kohala Elementary School. The complex services all of North Kohala's 994 student enrollment. The existing facilities are sufficient for the r district's needs. -� M The South Kohala district public school is located in Waimea and accommodates an 0 enrollment of 1,195 students from kindergarten through the 8th grade level. High school students commute a distance of 16 miles to Honokaa. An additional elementa- m ry school has been constructed and is in operation at Waikoloa. a C n Department of Education is developing a master plan for Waimea School that provides 2 for a new elementary school, an expanded intermediate school, improved access and 0 parking areas. 0 The Bond Memorial Library has a collection of 16,435 volumes. The Parker Memori- al community-school library, located adjacent to Waimea school is the second largest public library on the island. The facility has a collection of 43,309 volumes. 10.2.4.4.2 Courses of Action (North Kohala) (a) Encourage the expansion of the public school and library facilities as needs arise. (b) Encourage the Hawaii State Library System to establish a public library separate from the school facility. (c) Encourage continual improvements to existing educational facilities. 10.2.4.4.3 Courses of Action (South Kohala) (a) Encourage the expansion of the public school and library facilities as needs arise. (b) Encourage continual improvements to existing educational facilities. (c) Encourage the installation of walkways to and around schools and street crossing facilities for pedestrian safety. (d) Encourage the development of State and private higher educational facilities in West Hawaii. (e) Support the development of an intermediate or middle school in Waikoloa. (f) Encourage the Hawaii State Library System to establish a public library in Waikoloa. (g) Encourage the State Department of Education to explore the feasibility of estab- lishing a high school in the South Kohala district. Hawaii County General Plan 10-9 §10,2.4.5: NORTH AND SOUTH KONA 10.2.4.5 NORTH AND SOUTH KONA 10.2.45.1 Profile The Kona public school system is comprised of the Konawaena and Kealakehe High School complexes. The Konawaena High School complex includes Konawaena High School, Konawaena Middle School, Konawaena Elementary School Hookena Elementary School, and Honaunau Elementary School and serves 2,882 students. Ho'okena Elementary/Intermediate and Honaunau Elementary/Intermediate kinder- garten to 8th grade may be transferred to the Konawaena complex due to extremely limited program offerings as only about 364 students are presently enrolled. The con- struction of a new Konawaena Elementary School was recently completed. The Kealakehe High School complex is comprised of Kealakehe High School, Kealakehe Intermediate School, Holualoa Elementary School, Kealakehe Elementary School, and Kahakai Elementary School. The Kealakehe High School complex serves 4,063 students. Kahakai Elementary School opened in 1982 to relieve the overcrowded enrollment at Kealakehe Elementary School. However, the Kealakehe High School complex con- tinues to experience student population growth problems. It has developed separate facilities for the kindergarten through 6th grade level and 7th through 8th grades. The new Kealakehe High School wiI I serve grades nine through twelve. The Holualoa Library, located near the school, has a collection of 6,445 volumes; Kealakekua library has 28,467 volumes and the Kailua-Kona branch library has 47,955 volumes. The Kailua-Kona library is inadequate in size to serve the needs of the area. The State is currently in the planning stages for the University of Hawaii Center at West Hawaii (UHCWH). The new University campus will initially be located on a 33-acre portion of a larger 500-acre site on the mauka side of the Queen Kaahumanu Highway, directly mauka of the Kona International Airport at Keahole. Upon comple- tion, the new campus is anticipated to accommodate 1,500 students. For administra- tive purposes, the UHCWH will be assigned to the Hawaii Community College at Hilo. 10.2.4.5.2 Courses of Action (North Kona) (a) Encourage expansion of the Holualoa school complex to meet school district needs. (b) Encourage the State Department of Education to add facilities as the need arises. 10-10: Hawaii County General Plan §10.2.4.6: KA'U T C 0 (c) Improve basic school facilities to meet current standards. r (d) Encourage construction of anew library facility to serve the Kailua-Keauhou area. 0 11 10.2.4.5.3 Course of Action (South Kona) 0 (a) Improve basic school facilities to meet current standards. 10.2.4.6 KA'u 4 M 10.2.4.6.1 Profile N The Ka'u High School complex is comprised of Ka'u High School, Pahala Elementary School, and Naalehu Elementary and Intermediate School, and serves a total enroll- 0 ment of 810 students from kindergarten through the 12th grade level. The overall F physical facilities at Naalehu and Pahala are adequate to serve the district needs. n rr Pahala and Naalehu both have adequate library facilities. Pahala is a joint community- < school library facility located within the school complex and houses a collection of 19,564 volumes. Naalehu's facility is located behind the local post office and houses a collection of 7,631 volumes. 10.2.4.6.2 Courses of Action � (a) Encourage continual improvements to existing educational facilities. H (b) Encourage the State Department of Education to plan a K-8 School at Ocean View. 10.3 PROTECTIVE SERVICES 10.3.1 Introduction and Description Protective services consist of fire, police, detention and correctional facilities, civil de- fense, the Coast Guard, and National Guard armories. Fire and Emergency Medical Services There are presently 20 regular fire stations, 22 volunteer fire stations and 1 federal fire station located throughout the island. The County is proposing a fire station in the Kalaoa-Mauka area. The Pohakuloa fire station is a federally operated facility. The regular fire stations provide 24 hour fire fighting and emergency medical services. The Waiakea and Kailua-Kona stations provide rescue services, the Kaumana station provides hazardous materials response and the South Kohala station provides air med- ical services. SUPP.1 (Ord.No.06-153) Hawaii County General Plan : 10-11 §14.9: Public Lands 14.9 PUBLIC LANDS 14.9.1 Introduction and Analysis The utilization of land resources in Hawaii is greatly influenced by the policies and practices of a relatively small number of major landowners. Approximately 52 per cent of the total land area in the State of Hawaii is government-owned. Federal lands constitute 8 per cent of these government-owned lands while State lands, including those of the Department of Hawaiian Homes Lands, comprise the remaining 34 per cent. Of the 48 per cent in private ownership, approximately three-fourths are owned by approximately fifty large landowners. The degree to which private and public lands can be put to their respective designated and zoned uses will determine the effectiveness of the General Plan. The historical pattern of land ownership in specific situations may adversely affect the realization of stated objectives and goals. County-owned lands amount to less than 1 per cent of the total land area of the island. State owned lands account for 44 per cent of the County's 2.5 million acres, with dis- trict proportions ranging from a low of 17 per cent in South Kona to a high of 76 per cent in North Hilo. State lands include a variety of uses such as commercial, industri- al, residential and resort uses and education and research in South Hilo to wilderness areas and mountain tops in Hamakua and Ka'u. Federal lands in the County of Hawaii include the Hawaii Volcanoes National Park and the National Historic Parks at Pu'ukohola and Honaunau, both of which are estab- lished programs of the National Park Service of the U.S. Department of Interior. The National Park Service proposes to acquire additional lands for the expansion of the Hawaii Volcanoes, Puukohola and Puuhonua O Honaunau National Historic Parks at Kahuku, Kohanaiki, and Kiilae, respectively. Public trust or ceded lands in Hawaii comprise approximately 1.8 million acres of property throughout the State, or 43 per cent of the State's total land area. These lands were "ceded", or transferred, to the United States by the Republic of Hawaii, under the 1898 annexation of Hawaii as a Territory of the United States and after the 1893 over- throw of the Hawaiian Kingdom. The Admissions Act of 1959 that granted Hawaii statehood, defined the State as trustee for I.4 million acres of these ceded lands and defined five purposes for its use, including one for the betterment of conditions for na- tive Hawaiians. The 1963 Ceded Lands Act allowed the transfer of title to the State of all but 300,000 acres of ceded lands that were excepted by the Federal government. In 1978, voters approved constitutional amendments to create the Office of Hawaiian Af- fairs and fund it with a share of the money derived from the use of ceded lands. In 1980,the Legislature defined the Office of Hawaiian Affairs' share of ceded land reve- nues at 20 per cent. The exact amount of ceded lands within the County is currently 14-64: Hawaii County General Plan §14.9.2: Goals Z unknown. Act 125 was adopted by the 2000 Legislature to facilitate the establishment o of a comprehensive information system for inventorying and maintaining information C about these ceded lands. N M The use of publicly owned lands needs to be more judiciously administered. There is at present no master plan for the vast public lands; namely those that are designated C Conservation, over which the County has virtually no administrative jurisdiction. Cr The County acquires land for public uses such as parks and rights-of-way. Presently n there is no County agency whose function is to expedite land acquisitions. Various d County departments are involved, depending on the nature of acquisition. There is also a need for an agency to keep abreast of and initiate various programs on public Q land. H The University of Hawaii, as a corporate body under the State Constitution, holds a unique position on land ownership unlike other State or County agencies that utilize public lands. The University, under the State Constitution, obtains in fee title the land granted it by Executive Order. The University can therefore subdivide, lease or sell its lands provided it is in the interest of public education. 14.9.2 Goals (a) Utilize publicly owned lands in the best public interest and to the maximum bene- fit for the greatest number of people. (b) Acquire lands for public use to implement policies and programs contained in the General Plan. 14.9.3 Policies (a) Encourage uses of public lands that will satisfy specific public needs, such as housing, recreation, open space and education. (b) Encourage the adoption of State programs for State lands consistent with the Gen- eral Plan. (c) State and County Capital Improvement Programs should continue to be coordi- nated. (d) A sub-classification, University use, shall continue to be utilized, permitting the primary institutional and numerous supportive and accessory uses required for establishing and/or expanding a public university. Its designation shall continue to be shown on the Land Use Pattern Allocation Guide map. (e) Support the U.S. Department of Interior, National Park Service's expansion plans for the Hawaii Volcanoes, Puukohola and Puuhonua O Honaunau National His- toric Parks. [f) Encourage the State to continue the Villages of Lai'opua project at Kealakehe. Hawaii County General Plan :14-65 §14.9.4: Standard 14.9.4 Standard (a) Public lands with unique recreational and natural resources shall be maintained for public use. 14-66: Hawaii County General Plan i COUNTY OF HAWAII PLANNING COMMISSION RULES OF PRACTICE AND PROCEDURE RULES 1 - 15 LEEWARD AND WINDWARD PLANNING COMMISSIONS COUNTY OF HAWAII RULES OF PRACTICE AND PROCEDURE RULE 1. GENERAL RULES 1-1 Authority The rules hereinafter contained are established pursuant to the authority of Section 6-7.5 of the 2000 Charter of the County of Hawaii, (2008 Edition), and Chapter 91, Hawaii Revised Statutes. 1-2 Purpose These rules govern the practice and procedure before the Leeward and Windward Planning Commissions of the County of Hawaii. 1-3 General Definitions (a) "Agency" means any agency, board, commission, department, or officer of the county or state government. (b) "Applicant"means any agency or person who applies to the Commission for a land use application and/or permit. (c) `Board"means the Board of Appeals. (d) "Chairperson" means the chairperson of the Leeward Planning Commission or the Windward Planning Commission, or both. (e) "Commission" means either the Leeward Planning Commission or the Windward Planning Commission. (n "Contested case" means a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing. (g) "Council" means the County Council. (h) "County" means the County of Hawaii. (i) "Department"means the Planning Department. 0) "Director" means the Planning Director. (k) "General Plan" means the Hawaii County General Plan. 1-1 (1) "Hearings Officer" means a person or person duly designated and authorized by the Commission to conduct proceedings on matters within the jurisdiction of the Commission for purpose of taking testimony and to report the findings and recommendations to the Commission. (m) "Party"means any person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party in a proceeding. (n) "Person" means any individual, partnership, firm, association, trust, estate, corporation. or other legal entity of any character other than an agency. (o) "Presiding Officer" means any commissioner or a hearings officer duly designated as such. Unless otherwise designated, the chairperson shall be the presiding officer. (p) "Zoning Amendments" means changes to the boundaries of the zoning district or changes to any other provision of Chapter 25 (Zoning Code), Hawaii County Code 1983 (2005 edition). 1-4 The Commissions (a) Office. The office of the Commissions is at Hilo, Hawaii. (b) Communications. Any communication to the Commissions shall be addressed to the Chairperson, Leeward or Windward Planning Commission, 101 Pauahi Street, Suite 3, Hilo, Hawai.`i, 96720, unless otherwise directed. (c) Membership. Each Commission consists of seven members appointed by the Mayor and confirmed by the Council. In addition, the Director of the Department of Public Works and the Manager of the Department of Water Supply or their designated representatives serve as ex-officio members without voting privileges. (d) Chairperson; Vice-chairperson. The chairperson and vice-chairperson shall be elected annually. The chairperson shall have the responsibilities and duties prescribed in this rule. The vice-chairperson shall perform all the duties of the chairperson during the absence of the chairperson. 1-5 Meetings The Commission may meet and exercise its powers in its respective jurisdiction within the County. All Commission meetings are open to the public, except as provided by law. The parliamentary procedure to be utilized by the Commission in the conduct of its own meeting shall be based on the current edition of Robert's Rules of Order. (a) Regular Meetings. Regular meetings shall be held at least once a month in the Commission's jurisdiction, unless otherwise specified by law. (b) Special Meetings. Special meetings of the Commission for the transaction of its business may be held at any time and place as scheduled by the Commission. 1-2 (c) Notice of Regular and Special Meetings. (1) The Commission shall give written public notice of any regular or special meeting. The notice shall include an agenda which lists all of the items to be considered at the meeting, and the date,time, and place of the meeting, (2) The Commission shall file the notice in the Office of the County Clerk and in the Commission's office for public inspection at least six calendar days before the meeting. The notice shall also be posted at the site of the meeting whenever feasible. The Commission shall not add items to the agenda, once filed, without a two-thirds recorded vote of all members to which the Commission is entitled; provided that no item shall be added to the agenda in the manner provided herein, if it is of reasonably major importance and action thereof by the Commission will affect a significant number of persons. (3) The Commission shall maintain a list of names and addresses of persons who request notification of meetings and shall mail a copy of the agenda to such persons at their last recorded address no later than the time the agenda is filed under Subsection(2). (4) Notice of any special meeting shall be published in a newspaper of general circulation in the County at least twenty-four hours in advance of the meeting. (d) Emergency Meetings; Notice. An emergency meeting is a meeting in which the six calendar days notice requirement cannot be met. Such a meeting can only be held if there is a written finding that there is imminent peril to the public health, safety, or welfare and provided the following procedures are met: (1) The Commission states in writing the reasons for its findings: (2) Two-thirds of the members to which the Commission is entitled agree that the findings are correct and an emergency exists; (3) An emergency agenda and the findings are filed with the Office of the County Clerk and in the Commission's office; and (4) Persons requesting notification pursuant to Rule 1-5(c)(3) are contacted by mail or telephone as soon as practicable. (5) A notice of the meeting shall be published in a newspaper of general circulation in the County at least twenty-four hours prior to the meeting, or if the requirement with respect to publication of notice cannot be met because of insufficient time,the meeting notice shall be made by broadcasting a minimum of three announcements in the English language over an FCC licensed public radio station in the County or a television station with local audience. (e) Executive Meetings. The Commission may hold an executive meeting, closed to the public, upon an affirmative vote,taken at an open meeting, of two-thirds of 1-3 the members present. The vote of each member on the question of holding a meeting closed to the public and the reason for holding such a meeting shall be recorded and entered into the minutes of the meeting. A meeting closed to the public may be held only for the following purposes: (1) To consult with the Commission's attorney; and/or (2) For any other specific purpose authorized by law. (fl Joint Leeward and Windward Planning Commissions' Meetings. Whcn the Leeward and Windward Planning Commissions convene and meet jointly, the chairperson for that joint meeting shall be either the chairperson of the Leeward Planning Commission or the chairperson of the Windward Planning Commission, selected at that meeting by the affirmative vote of a majority of the combined membership of the two commissions. The chairperson not selected as the chairperson for the joint meeting shal I be the first vice chairperson of the joint meeting. (g) Quorum. A majority (four) of all members to which the Commission is entitled shall constitute a quorum to transact business. For a joint Leeward and Windward commission meeting, a majority of eight members constitutes a quorum. (h) Minutes. The Commission shall keep written minutes of all meetings. Unless otherwise required by law, neither a full transcript nor a recording of the meeting is required, but the written minutes shall give a true reflection of the matters discussed and the views of the participants. The minutes shall include, but need not be limited to: (1) The date, time, and place of the meeting; (2) The members of the Commission recorded as either present or absent; (3) The substance of all matters proposed, discussed, or decided, and a record, by individual members, of any votes taken; and (4) Any other information that any member of the Commission requests be included or reflected in the minutes. The minutes shall be public records and shall be available within thirty days after the meeting except where such disclosure would he inconsistent with Section 92-5, Hawaii Revised Statutes, or Section 13-20 of the Charter; provided that minutes of executive meetings may be withheld so long as their publication would defeat the lawful purpose of the executive meeting, but no longer. (i) Procedure for Testimony at Public Hearings. Members of the public desiring to testify shall register with the commission staff prior to the convening of the meeting. Additionally,the following procedures shall be followed when the applicant, the applicant's representative, or members of the public desire to testify during public hearings before the Commission: (1) The person desiring to testify shall indicate his or her name and address. 1-4 (2) The person testifying shall indicate whether he or she is testifying on their own behalf or as a representative of the applicant or an organization. (3) An original and fifteen copies of all written testimony offered by any person shall be submitted to the Commission prior to the time the person gives such testimony. (4) The person testifying shall submit such oral testimony under oath. That oath shall be administered by the chairperson or chairperson's designee. (5) The chairperson or vice-chairperson may limit testimony which is irrelevant, abusive, disruptive, or unduly repetitious. (6) The person testifying shall direct their remarks to the Chairperson and not to any individual commission member, staff member, or person in the audience. (7) All members of the public shall extend proper courtesy and respect to one another and to all commission members and staff, and all persons shall be addressed by their surnames. No profanity or abusive remarks will be allowed at any time in any meeting. (8) Any person who does not abide by these rules may be ruled out of order by the Chairperson. (9) Nothing in these procedures shall diminish the responsibility or the authority of the Chairperson to maintain order and decorum. (j) Removal of Person from Meeting. Any person who disrupts a meeting which prevents or compromises the conduct of the meeting may be removed from the meeting at the discretion of the Chairperson. 1-6 Public Records The term "public records" shall have the same meaning as is defined in Chapter 92, Hawaii Revised Statutes, and shall include all maps, rules, written statements of policy or interpretation formulated, adopted, or used by the Commission in its functions, all decisions, orders, minutes of the Commission meetings and records of any proceeding on file with the Commission, but shall not include records protected by law or which invades the right of privacy of an individual. (a) Inspection of Public Records. All public records shall be available for inspection by any person during established office hours unless public inspection of such records is in violation of any other state, federal, or county law; provided that, except where such records are open under any rule of court, the Corporation Counsel or Prosecuting Attorney may determine which records may be withheld from public inspection when such records pertain to the preparation of the prosecution or defense of any action or proceeding to which the County is or may be a party, or when such records do not relate to a matter in violation of law and 1-5 are deemed necessary for the protection of the character or reputation of any person. (b) Copies of Public Records. Copies of records printed or reproduced for persons other than governmental agencies shall be given to any person, provided that the fees or costs prescribed in the Code are paid. (c) Denial of Inspection; Application to Circuit Court. Any person aggrieved by the person having custody of any public record of the right to inspect the records or to obtain copies of extracts thereof may apply to the circuit court for an order directing the person having custody of the record to permit the inspection of or to furnish copies or extracts of the public record. The court shall grant the order after hearing, upon a finding that the denial was not for just and proper cause. 1-7 Computation of Time In computing any period of time under these rules, by notice, or by any order or rule of the Commission, the time begins with the day following the act, event, or default, and includes the last day of the period unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or holiday. L-S Scvcrabilitv In the event any portion of the Rules of Practice and Procedure of the Leeward and Windward Planning Commissions of the County of Hawaii ("Rules of Practice and Procedure") are declared invalid, such invalidity shall not affect other parts of the Rules of Practice and Procedure. 1-6 RULE 5. GENERAL PLAN AMFNDMF,NTS 5-1 Authority This rule implements General Plan amendment procedures before the Planning Commission as provided by Chapter 16, Hawaii County Code. 5-2 Scope and Purpose The General Plan may be amended by changing its goals, policies, standards, zoning acreage allocations, land use pattern allocation guide map, and other applicable sections thereof, when the conditions or premises upon which the General Plan is based have changed and when such an amendment would assure the coordinated development of the County of Hawaii and the general welfare and prosperity of its people. 5-3 Definition As used in these rules, except as otherwise recognized by context: (a) "Comprehensive review" means a complete review of the General Plan conducted by the Director at least once every ten years from the initial date of adoption of the General Plan as well as all other subsequent ten-year reviews. (b) "Interim amendments"means amendments to the General Plan proposed by a property owner, the general public, Council, or Director at any other time other than during the comprehensive review period. (c) "Property owner" means a person having an interest in title to the affected land proposed for an amendment and includes the holder of a lease interest in the affected land, where such lease interest is not due to expire until after ten years following the date of the filing of the petition. 5-4 Amendment Pursuant to Comprehensive Review (a) The Director shall, upon notification to the County Council, initiate the comprehensive review of the General Plan. The scope of the review includes, but is not limited to, the basic elements of the General Plan; goals, policies, standards and courses of aetion of the various elements; land use designations of the land use pattern allocation guide map; facilities map; and urban land use pattern acreage and zoning acreage allocations. (b) Upon completion of the review, the Director shall submit any proposed amendment to the Commission. (c) The Commission shall conduct and complete its review on the proposed amendments to the General Plan, and shall submit its recommendations, within one hundred fifty days from the date of receipt of the proposed amendments from the Director. 5-1 (d) The Commission shall recommend approval of the proposed amendments, in whole or in part, recommend changes, or recommend the rejection of the proposal for changes to the General Plan. (e) If the Commission fails to act on a proposed amendment within the required period, it shall be deemed a negative recommendation. 5-5 Interim Amendments (a) Council-initiated (1) The Council may initiate interim amendments to the General Plan at any time, except during the comprchcnsivc revicw. The Counci I may, by resolution, request the Director and the Commission to review and make a recommendation on a proposed amendment. (2) The Director shall have sixty days or a longer period, as may be agreed to by the Council, to submit a recommendation on the proposal to the Commission for review and recommendation. (3) The Commission shall consider the proposed amendment at no less than two meetings, and shall make its recommendation on the proposed amendment to the Council within sixty days from its receipt of the Director's recommendation. (4) If the Commission fails to act within the required period, it shall be deemed a negative recommendation. (b) Director-initiated (l) The Director may initiate an interim amendment to the General Plan at any time other than during the comprehensive review. The Director shall submit the proposed amendment to the Commission for its review and recommendation. (2) The Commission shall conduct and complete its review on the proposed amendments and shall submit its recommendations within one hundred twenty days from the date of receipt of the proposed amendments. (3) If the Commission fails to act within the required period, it shall be deemed a negative recommendation. 5-2 (c) General Public (1) A member of the public may submit an application requesting the Director to initiate an amendment to the General Plan at any time except during the comprehensive review. (2) Should the Director initiate the amendment from the member of the public, the amendment shall be processed according to Section 5-5(b). 5-3 RULE 6. SPECIAL PERMITS 6-1 Authority This rule governs special permit procedures pursuant to authority conferred by Chapter 205-6, Hawaii Revised Statutes, as amended. 6-2 Standing to Submit a Petition for a Special Permit Any person who desires to use its land within a State Land Use agricultural or rural district other than for an agricultural or rural use may petition the Commission for permission to use its land in the manner desired. 6-3 Petition and Content A petition for a Special Permit shall be filed with the Commission's office and shall include the following: (a) Non-refundable filing and processing fee of five hundred dollars. (b) Original and twenty copies of: (I) Application form; (2) Description of the property in sufficient detail to determine its precise location; (3) A plot or site plan of the property, drawn to scale, with all existing and proposed uses and/or structures shown thereon; (4) Building elevations, if required, of the proposed structures; (5) A statement of the reasons for the granting of the Special Permit citing how the proposed use would promote the effectiveness and objectives of Chapter 205, HRS. and why the proposal is an unusual and reasonable use of the land. The following criteria shall also be addressed: (A) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations; (B) The desired use shall not adversely affect surrounding properties; (C) Such use shatI not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and fire protection; (D) Unusual conditions, trends, and needs have arisen since the district boundaries and regulations were established; 6-1 (F.) The land upon which the proposed use is sought is unsuited for the uses permitted within the district; (F) The proposed use will not substantially alter or change the essential character of the land and the present use; and (G) The request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design Plans. (c) A copy of full-size site plan and/or elevations of the proposed structure(s), a minimum of 2 feet by 3 feet in dimension, drawn to scale. The site plan should include property lines, reference points (roadways, shoreline, etc.), and existing and proposed structures and uses. (d) A certificate of clearance from the County Director of Finance stating that the real property taxes and all other fees relating to the subject parcel(s) have been paid, and that there are no outstanding delinquencies. 6-4 Incomplete Application The Commission, through the Planning Department, shall neither accept nor process an application which is incomplete as to form and content. 6-5 Posting of Sims for Public Notification (a) Within ten days of being notified of the acceptance of an application, the applicant shall post a sign on the subject property notifying the public of the following: (1) The nature of the application; (2) The proposed use of the property; (3) The size of the property; (4) The tax map key(s) of the property; (5) That the public may contact the planning department for additional information; and (6) The address and telephone number of the planning department. (b) The sign shall remain posted until the application has been granted, denied, or withdrawn. The applicant shall remove the sign promptly after such action. (c) Notwithstanding any other provisions of law, the sign shall not be less than nine square feet and not more than twelve square feet in area, with letters not less than 6-2 one inch high. No pictures, drawings, or promotional materials shall be permitted on the sign. The sign shall be posted at or near the property boundary adjacent to a public road bordering the property and shall be readable from said public road. If more than one public road borders the property, the applicant shall post the sign to be visible from the more heavily traveled public road. The sign shall. in all other respects, be in compliance with Chapter 3 (signs) Hawaii County Code 1983 (2005 edition). (d) The applicant shall file an affidavit with the planning department not more than five days after posting the sign stating that a sign has been posted in compliance with this section, and that the applicant and its agents will not remove the sign until the application has been granted, denied, or withdrawn. A photograph of the sign in place shall accompany the affidavit. 6-6 Public Hearin (a) The Commission shall conduct a public hearing within a period of ninety days from the date of acceptance of a complete application. (b) Promptly after the Commission's fixing a date for the public hearing, the applicant shall mail a notice of the application and hearing to owners of interests in properties within five hundred feet of the perimeter boundary of the affected property and to owners of interests in other properties which the Planning Commission may find to be directly affected by the proposed request. Such notice shall state: (1) Name of the applicant: (2) Precise location of the property involved; (3) Nature of the proposed use; and (4) Date, time, and place of the hearing. (c) Prior to the date of the hearing, the applicant shall file with the Commission, an affidavit or other similar proof of mailing of said notice. The Commission shall not conduct a hearing if this requirement has not been complied with. (d) In addition to said notice and at least ten days prior to the date of the hearing, the Commission shall publish notice of the hearing in a newspaper of general circulation in the County which includes the information provided under Section 6-6(b)(1-4) of this rule. (e) For each hearing continued at the request of the applicant, the applicant shall serve notice of the hearing on surrounding property owners and lessees of record as provided by Section 6-6(b). An additional two hundred fifty dollar processing fee shall be submitted by the applicant for each hearing continued at the request of the applicant. 6-3 6-7 Grounds for Special Permit The Commission shall not approve a Special Permit unless it is found that the proposed use: (a) Is an unusual and reasonable use of land situated within the Agricultural or Rural District, whichever the case may be; and (b) Would promote the effectiveness and objectives of Chapter 205, Hawaii Revised Statutes, as amended. The Commission shall also consider the criteria listed under Section 6.3(b)(5)(A) through (G). 6-8 Action Within thirty days after the close of the hearing or within a longer period as may be agreed to by the applicant, the Commission shall: (a) For a Special Permit involving fifteen acres of land or less, approve it by stating the reasons and attaching appropriate performance conditions; or (b) For a Special Permit involving greater than fifteen acres of land, recommend approval to the State Land Use Commission by stating the reasons and attaching appropriate performance conditions; or (e) Deny it by stating the reasons. An application recommended for approval to the State Land Use Commission shall be forwarded within sixty days after the decision is rendered by the Commission. 6-9 Amendments of Permit or Conditions (a) The applicant may apply to the Commission through the Planning Department for an amendment to the permit or condition(s) imposed. (b) In the case of time extensions, the applicant shall file the request not less than ninety days prior to the expiration date of the time conditions, setting forth: (1) The affected condition; (2) The length of time requested; and (3) The reasons for the request. If the Commission is not able to act on a properly filed time extension request prior to the expiration date, the use granted under the Special Permit may be 6-4 continued, unless the Commission specifically disallows the activity during the interim period. (c) In the case of additions, modifications, and/or deletions of conditions; or the original permit granted, the applicant shall set forth in writing: (1) The affected condition; (2) The specific amendment requested; and (3) The reasons for the request. (d) The applicant shall also file a two hundred fifty dollar processing fee, along with the original and twenty copies of the request. (e) The hearing and notice procedures and action shall be the same as under Sections 6-6 and 6-8 of this rule, provided further that the Commission shall conduct a hearing within a period of ninety days from the date of receipt of a properly filed request. or within a longer period as may be agreed to by the Commission. 6-10 Appeals The Commission's decision is appealable to the Third Circuit Court. 6-S IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 RI SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) CERTIFICATE OF SERVICE vs. ) WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT } OF PLANNING, COUNTY OF HAWAII, } Appellees, ) and ) SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY K. GOMES, ) Intervenor; SIDNEY FUKE, Intervenor's ) Representative; and TERENCE ) YOSHIOKA, Intervenor's Representative, ) Intervenor-Appellees. ) JUDGE: Hon. RONALD IBARRA CERTIFICATE OF SERVICE I hereby certify that the foregoing document was duly served via U.S. Mail, postage prepaid, on the date indicated below, to the following: CARTER K. SIU, ESQ. Deputy Attorney General State of Hawai'i 235 S. Beretania Street, Rm. 304 Honolulu, Hawaii 96813 Attorney for Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL 1 AMY G. SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee COUNTY OF HAWA1'I PLANNING DIRECTOR MOLLY A. STEBBINS, ESQ. Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII MR. MICHAEL J. MATSUKAWA, ESQ. 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, HI 96740 Attorney for Appellee JEFFREY K. GOMES DATED: Hilo, Hawaii, December 24, 2014 ED H. S. HONG Attorney at Law Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 CIRCGIP�~u T ' Il',r j) CIR` OT MOLLY A. STEBBINS 8639 STA7E OF HAWA;j Corporation Counsel 2014 DEC 26 Ph 2. 26 LAUREEN L. MARTIN 5927 Assistant Corporation Counsel DANNY B. PATEL 9578 CLERK S. MURANAKA Deputy Corporation Counsel County of Hawaii I0I Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: (808) 96I-825I Facsimile: (808) 96I-8622 E-mail: laureen.martin@hawaiicounty.gov danny.patel@hawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, NOTICE OF APPEARANCE OF COUNSEL vs. FOR APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; WINDWARD PLANNING COMMISSION, CERTIFICATE OF SERVICE COUNTY OF HAWAII: DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appel lees. S. J �.J NOTICE OF APPEARANCE OF COUNSEL FOR APPELLEE WINDWARD PLANNING COMMISSION COUNTY OF HAWAII COMES NOW DANNY B. PATEL, Deputy Corporation Counsel, Office of the Corporation Counsel, and hereby makes an appearance as counsel for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII. Dated: Hilo, Hawaii, December 2—(-,_, 2014. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII By DA PATE Deputy n Counsel Attorney for Appellee 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. I4-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer; .JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, I nterve no r-Appel lees. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing document was served upon the following by U.S. Mail, postage prepaid on December 2� , 2014: TED H.S. HONG, ESQ. Hilo Lagoon Centre 101 Aupuni Street, PH 1002A Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MICHAEL J. MATSUKAWA, ESQ. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES Dated: Hilo, Hawaii, December , 2014. DANS P EL Deputy Corp sel 2 ,L. CIRCUIT COURT Or TK` TtOFD CIRCUf,` MOLLY A. STEBBINS 8639 SPATE OF liAWAII Corporation Counsel 2014 DEC Z6 PH 2. 27 LAUREEN L. MARTIN 5927 Assistant Corporation Counsel DANNY B. PATEL 9578 S, MURABdKA Deputy Corporation Counsel CLERK County of Hawai i 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: laureen.martin@hawaiicounty.gov danny.patelnhawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAW'AI`I COMMUNITY BASED EDUCATION Civil No, 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, STATEMENT OF NO POSITION OF vs. APPELLEE WINDWARD PLANNING COMMISSION. COUNTY OF HAWAII, AS WINDWARD PLANNING COMMISSION, TO INTERVENOR-APPELLEE JEFFREY COUNTY OF HAWAII; DEPARTMENT GOMES' MOTION (1) TO STRIKE NOTICE OF PLANNING, COUNTY OF HAWAII, OF APPEAL AND JOINDER FILED BY CONNECTIONS NEW CENTURY PUBLIC Appellees, CHARTER SCHOOL (FILED JUNE 19, 2014), and (2) TO DISMISS SAID NOTICE OF APPEAL AND (3) FOR SUMMARY JUDGMI rNT SANDRA SONG, in her capacity as Hearing AGAINST CONNECTIONS NEW CLNTURY Officer; JEFFREY GOMES, Intervenor; PUBLIC CHARTER SCHOOL ON ITS NOTICE SIDNEY FUKE, Intervenor's Representative; OF APPEAL (FILED JUNE 19, 20I4). FILED TERENCE YOSHIOKA, Intervenor's DECEMBER 2, 2014: CERTIFICATE, OF Representative, SERVICE Intervenor-Appellees. Hearin: Date: January 6, 2015 Time: 10:00 a.m. Judge: Hon. Ronald Ibarra STATEMENT OF NO POSITION OF APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, AS TO INTERVENOR-APPELLEE JEFFREY GOMES' MOTION (1) TO STRIKE NOTICE OF APPEAL AND JOINDER FILED BY CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL (FILED JUNE 19, 2014), (2) TO DISMISS SAID NOTICE OF APPEAL AND (3) FOR SUMMARY JUDGMENT AGAINST CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL ON ITS NOTICE OF APPEAL (FILED JUNE 19 2014), FILED DECEMBER 2, 2014 Appellee Windward Planning Commission, County of Hawaii, by and through its undersigned counsel, hereby states that it takes no position as to Intervenor-Appellee Jeffrey Gomes'Motion (1) To Strike Notice of Appeal and Joinder Filed by Connections New Century Public Charter School (Filed June 19, 2014), (2) To Dismiss Said Notice ofAppeal and (3) For .Summary Judgment Against Connections New Century Public Charter School On Its Notice of Appeal (Filed June 19, 2014), filed December 2, 2014. Dated: Hilo, Hawaii, December '* 2014. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII By S' DANNY if PAT L Deputy Corporation Counsel Attorney for Appellee 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES, (Agency Appeal) Applicant-Appellant, CERTIFICATE OF SERVICE VS. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer; JEFFREY COMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing document was served upon the following by U.S. Mail, postage prepaid on December , 2014: TED H.S. HONG, ESQ. Hilo Lagoon Centre 101 Aupuni Street, PH 1002A Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MICHAEL J. MATSUKAWA, ESQ. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES Dated: Hilo, Hawaii, December 2(f , 2014. DANTW B. AT L Deputy Car at ounsel 2 ORIGINAt RUSSELL A. SUZUKI 2084 Attorney General State of Hawaii HOLLY T. SHIKADA 4017 CARTER K. SIU 7313 Deputy Attorney General n m r� 1 235 South Beretania Street, Room304 " "' o - ,�C Honolulu, Hawaii 96813 o n r? n —r Telephone No. 808.586.1255 0 n� N) Crj Carter.K.Siu @hawaii.Rov Attorney for Applicant-Appellant ..o CZ CONNECTIONS NEW CENTURY r PUBLIC CHARTER SCHOOL `� co IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES ) (AGENCY APPEAL) Applicant-Appellant ) CONNECTIONS NEW CENTURY PUBLIC vs. ) CHARTER SCHOOL'S MEMORANDUM } IN OPPOSITION TO INTERVENOR- WINDWARD PLANNING COMMISSION, ) APPELLEE JEFFREY K. GOMES' COUNTY OF HAWAII; DEPARTMENT OF ) MOTION (1) TO STRIKE NOTICE OF PLANNING, COUNTY OF HAWAII, ) APPEAL AND JOINDER FILED BY CONNECTIONS NEW CENTURY PUBLIC Appellees, j CHARTER SCHOOL (FILED JUNE 19, 2014) (2) TO DISMISS SAID NOTICE OF And ) APPEAL AND (3) FOR SUMMARY JUDGMENT AGAINST CONNECTIONS SANDRA SONG, in her capacity as Hearing ) NEW CENTURY PUBLIC CHARTER Officer, JEFFREY GOMES, Intervenor; ) SCHOOL ON ITS NOTICE OF APPEAL SIDNEY FUKE, Intervenor's Representative; ) (FILED JUNE 19, 2014), FILED TERENCE YOSHIOKA, Intervenor's ) DECEMBER 1, 2014; CERTIFICATE OF Representative } SERVICE Intervenor-Appellees ) HEARING Date: January 6, 2015 Time: 10:00 a.m. Judge: The Honorable Ronald Ibarra CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S MEMORANDUM IN OPPOSITION TO INTERVENOR-APPELLEE JEFFREY K. GOMES' MOTION (t) TO STRIKE NOTICE OF APPEAL AND JOINDER FILED BY CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL (FILED JUNE 19, 2014) (2) TO DISMISS SAID NOTICE OF APPEAL AND (3) FOR SUMMARY JUDGMENT AGAINST CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL ON ITS NOTICE OF APPEAL (FILED JUNE 19,2014), FILED DECEMBER 1,2014 Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL ("Connections"), by and through its attorneys, Russell A. Suzuki, Attorney General, and Holly T. Shikada and Carter K. Siu, Deputy Attorneys General, hereby submits its memorandum in opposition to Intervenor-Appellee Jeffrey K. Gomes' Motion (1) To Strike Notice of Appeal and Joinder Filed by Connections New Century Public Charter School (Filed June 19, 2014) (2) To Dismiss Said Notice of Appeal and (3) For Summary .Judgment Against Connections New Century Public Charter School on its Notice of Appeal (Filed June 19, 2014), filed December 1, 2014, for this Honorable Court's review and consideration. I. BRIEF PROCEDURAL HISTORY This case is an appeal from an agency decision rendered in In re: Connections New Century Public Charter School and Community Based Education Support Services, SPP No. 12- 000138, regarding the applicants Connections and Community Based Education Support Services' (CBESS)request for the issuance of a special use permit. In the Underlying proceedings, both Connections and CBESS appeared and participated in the contested case hearing held on the island of Hawaii. After several days of hearing and reviewing the written submissions, the hearings officer, Sandra Song, Esq. issued a Hearings Officer Report, filed April 9, 2014, recommending that the special use permit application be denied. Record on Appeal (ROA) at 4098. Subsequently, the County of Hawaii Windward Planning Commission ("the Commission") issued its Findings of Fact.. Conclusions of Law and Decision and Order, dated May 19, 2014 (hereinafter "the Decision"). In the Decision, the Commission ruled that "[b]ased on the preceding Findings of Fact and Conclusions of Law, Special Permit Application SPP No. 12-000138 of Connections New Century Public Charter School and Community Based Education Support Services...is hereby denied." ROA at pgs. 4312-13. The Decision was mailed to Connections' attorney on May 19, 2014 and received on May 21, 2014, On June 9, 2014, CBESS timely filed its Notice of Appeal to Circuit Court; the case was assigned Civil No. 14-1-0223. Subsequently, on June 19, 2014, Connections timely filed its Notice of Appeal to Circuit Court and Joinder to Applicant-Appellant Community Based Education Support Services' Notice of Appeal to Circuit Court, under the same Civil No, 14-1- 0223. On or about July 3, 2014, Appellee-Intervenor Jeffrey K. Gomes ("Gomes") filed a Response to Statement of the Case filed June 19, 2014 by Applicant-Appellant Connections New Century Public Charter .School. Five months later, Games filed the instant motion, seeking dismissal of Connections notice of appeal. Recently, Gomes filed a similar motion seeking to dismiss and/or strike CBESS' notice of appeal. II. DISCUSSION A. Motion To Strike is Untimely To the extent that Gomes seeks to strike Connection's Notice of Appeal under Rule 12(1), Hawaii Rules of Civil Procedure ("HRCP"), any such motion was required to be filed within 20 days after the service of the pleading upon the party. Because the present motion was filed on December 1, 2014, several months beyond the 20 day time period, the motion must be denied. 11 B. Connections Filed A Timely Notice of Appeal The rules governing the right to challenge an agency's decision in a contested case hearing and the procedures to follow are contained in statute § 91-14, Hawaii Rules of Civil Procedure (HRS) and Hawaii Rules of Civil Procedure (HRCP) Rule 72. In order to initiate an appeal, an aggrieved party must comply with HRCP Rule 72, which requires the filing of a notice of appeal, along with a designation of the record on appeal and a brief statement of case. Although Gomes argues that all other appeals of the same Decision are required to be filed in a separate suit, there is no such rule.' In fact, the purpose of HRCP Rule 72 is to provide all interested parties with notice of Connection's desire to appeal: We should think of(a) notice of appeal as a sign, not a rite. Its function is to communicate, not to perform a ceremony. The appeal papers served on HGEA and HPERB communicated Jordan's desire to seek judicial review in timely fashion and with sufficient particularity to enable both to respond. A ruling that more was required to properly endow the circuit court with authority to consider the appeal would be an undue preference of archaic formalism over Rule 72's purpose. Cognizant of the rule's purpose to facilitate judicial review, we reiterate what was implied in Life of the Land v. Land Use Commission, supra, 58 Haw. at 298, 568 P.2d at 1194; a "(f)ailure of an appellant to take any step other than the timely filing of notice of appeal does not affect the validity of the appeal . . .," so long as all necessary parties are subsequently brought into court and there is prompt compliance with the requirements of Rule 72. A timely notice identifying the decision or order being appealed and the parties involved in the administrative proceeding is sufficient to vest the circuit court with authority to consider the appeal, Its jurisdiction over any appellee (including the administrative agency) is, of course, contingent upon prompt service of the appeal documents or upon subsequent t This case is inapposite of Ahmann v. Corr. Ctr, Lincoln, 755 N.W.2d 608 (Neb.2008). In Ahmann. the court dealt with the timeliness of a cross-petition from the appellee; here, Connections is a co-applicant and has identical interests to that of CBESS. It must also be noted that the Nebraska statute requires that "[p]roceedings for review shall be instituted by filing a petition" along with a summons. Neb. Rev. Stat. § 84-917. Neither HRS §91-14 nor HRCP Rule 72 require the filing of either a petition or a summons. joinder pursuant to Rule 19, H.R.C.P., if necessary. This is consistent with our policy which `has always been to permit litigants, where possible, to appeal.' Jordan v. Hamada, 62 Haw. 444, 451-52, 616 P.2d 1368, 1373 (1980)(internal citations omitted). Gomes' assertion that Connections was required to submit an application for intervention pursuant to HRCP Rule 24 is misplaced because it would be contrary to not only the 30-day requirement of HRS §91-14 but the requirement to file a notice of appeal. As noted previously, in order to initiate an appeal, an aggrieved party must file a notice of appeal vis-a-vis a motion to intervene within 30 days. Recently, the Hawaii Supreme Court, within the context of filing a cross-appeal, determined that HRS §91-14 requires that "an `aggrieved person' seeking judicial review of an administrative decision under the Hawaii APA must institute review proceedings within thirty days after service of the final decision and order, as provided in HRS § 91-14." Friends of Makakilo v. D.R. Horton-Schuler Homes, LLC, _ P.3d , 2014 WL 5483460 at *7 (Sup.Ct. 2014). Here, it is undisputed that Connections filed its Notice of Appeal to Circuit Court and Joinder to Applicant-Appellant Community Based Education Support Services' Notice of Appeal to Circuit Court, providing notice to all parties of its intent to appeal the underlying administrative decision. That is exactly what the statute, court rules, and case law require. Moreover, Connections' notice of appeal was also timely filed; this fact was conceded by Games. 2 2 HRCP Rule 72(b) states that the 30 days starts when the party is "notified of the rendering or entry of the decision or order...in the manner prescribed by statute." In this case, Rule 4-3(b) of the Leeward and Windward Planning Commissions, County of Hawai`i's Rules of Practice of Procedure requires that service "shall be made by personal delivery, first-class mail, certified or registered mail or by other means authorized by law." When service is accomplished via U.S. mail, HRCP Rule 6(e) operates to provide the parties two additional days to file a notice of appeal. Based on the foregoing, Connections submits that it timely filed its Notice of Appeal in accordance with HRCP Rule 72 and HRS § 91-14 and that Gomes' motion be denied. C. There is No Requirement to File a Separate Appeal Appellee GOMES claims that there is a requirement to file a separate civil appeal docket, but fails to cite to any relevant statute, rule, or case law that requires this. As stated previously, other jurisdictions require appellants to file a petition and summons in order to initiate appeal proceedings. See Neb. Rev. Stat. § 84-917(2)(a)(i). There are no similar requirements in Hawaii as the law only requires the filing of a notice of appeal in accordance with HRCP Rule 72; nor is there a requirement that a summons issue and that it be served contemporaneously with the petition. Gomes also tries to claim that Connections cannot file what is he is classifying as a "cross-appeal" under HRS § 91-14 and HRCP Rule 72. This claim, however, is contrary to the Hawaii Supreme Court's recent decision stating that HRS § 91-14 allows for cross-claims if filed within the 30-day appeal period. Friends of Makakilo v. D.R. Horton-Schuler Homes, LLC, P.3d , 2014 WL 5483460 (Sup.Ct. 2014). It must be noted that the Court did not rule on whether cross-appeals were required to be preserved by way of a separate civil appeal docket. Gomes also misclassifies Connections' position in this case. Connections does not want to "pursue its own separate and independent agency appeal;"rather, Connections seeks to join in CBESS's appeal. Connections is also an "appellant" as it was directly affected by the planning commission's denial of the special use permit. Any notion that Connections is an appellee insinuates that its position is directly adverse to that of CBESS. It is not, as CBESS and Connections were joint applicants and filed joint briefing and objections in the underlying matter. Even though there are no specific provisions within HRS §91-14 or HRCP Rule 72 allowing for the filing of a cross-appeal, the Hawaii Supreme Court nevertheless broadly interpreted HRS § 91-14 to include the right to file a cross-appeal. A similar broad interpretation of the rule allows Connections to preserve its right to appeal by filing a notice of appeal in this case within the prescribed 30-day time period. As a result, the present motion should be denied. D. Dismissal is Not Warranted To the extent that this Court believes that Connections should have filed a separate appeal under its own case number, dismissal is nevertheless unwarranted and Connections respectfully requests that this Court, sua sponte, add Connections as a party-appellant pursuant to HRCP Rule 21, which states: Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately by order of the court. The addition of Connections pursuant to HRCP Rule 21 will save on the time and expense of filing separate actions and seeking, by motion, consolidation of the cases. Moreover, adding Connections to the case will not be prejudicial to any remaining party. Connections claims are identical to that of CBESS and rulings in this case against CBESS have already been applied equally to Connections. In fact, allowing Connections to join as an appellant will expedite resolution of this case as all parties who participated in the planning commission hearing are already participating in the present appeal. There will be no need to wait until a new case is filed, allow 20 days for all appellants to file written responses thereto, and then seek a court order consolidating the matters. To the extent that the Court determines that it will not sua sponte add Connections as a party pursuant to HRCP Rule 21, Connections requests leave and permission to file a notice of appeal under a separate agency appeal number. III. CONCLUSION Based on the foregoing, Connections submits that it filed its notice of appeal in a proper and timely fashion and that Appellee GOMES' motion be denied. In the alternative, Connections requests that the Court exercise its discretion pursuant to HRCP Rule 21 and add Connections as a party-Appellant in this case and/or to allow Connections leave to file a notice of appeal under a different civil number, and have that matter relate back to the filing of its Notice of Appeal and Joinder filed on June 19, 2014. DATED: Honolulu, Hawaii, December 26, 2014. CATER K. SIU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 3 Under an identical rule, the Ninth Circuit Court of Appeals ruled that: `By itself, Rule 21 cannot furnish standards for the propriety of joinder, for it contains none. Hence it must incorporate standards to be found elsewhere. The only standards for proper joinder relevant to this case are Rules 19 and 20 but, as earlier demonstrated, Rule 19 is inapplicable. This leaves Rule 20, which allows persons to join as plaintiffs in a single action if they assert claims arising out of the same occurrence and if those claims share a common question of law or fact." Pan Am. World Airways, Inc. v, U.S. Dist. Court for Cent. Dist. of California, 523 F.2d 1073, 1079- 80 (9th Cir. 1975). IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAI I COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES ) (AGENCY APPEAL) Applicant-Appellant ) CERTIFICATE OF SERVICE vs. ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; DEPARTMENT OF } PLANNING, COUNTY OF HAWAII, } } Appellees, ) And ) SANDRA SONG, in her capacity as Hearing } Officer, JEFFREY GOMES, Intervenor; } SIDNEY FUKE, Intervenor's Representative; ) TERENCE YOSHIOKA, Intervenor's ) Representative ) Intervenor-Appellees ) CERTIFICATE OF SERVICE I HEREBY CERTIFY that on December 26, 2014, the undersigned caused a true and correct copy of the foregoing document to be served on the following persons by U.S. Mail, postage prepaid: Sandra P. Song, Esq. 10 Kamehameha Avenue Hilo, Hawaii 96720 Ted H.S. Hong, Esq. Attorney at Law P. O. Box 4217 Hilo, Hawaii 96720 Telephone No. 808.933.1919 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES Amy Self, Esq. Deputy Corporation Counsel Attorney for the County of Hawaii Planning Director 333 Kilauea Avenue Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAII PLANNING DIRECTOR Michael J. Matsukawa, Esq. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY K. GOMES Laureen L. Martin, Esq. Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway Kailua-Kona, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII DATED: Honolulu, Hawai`', December 26, 2014. CA ER K. SIU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL DAVID Y.IGE i�`.�• ~4;":; GOVERNOR Ips r''�`� , p,'° RUSSELL A.SUZUKI .�".` ATTORNEY GENERAL i, l o-. STATE OF HAWAII DEPARTMENT OF THE ATTORNEY GENERAL 233 5 8ERETANIA STREET,ROOM 304 HONOLULU,HAWAII 86813 (80e)588-1255 TRANSMITTAL LETTER [ ] PICK-UP [ ] VIA MESSENGER [X] U.S. MAIL TO: Circuit Court of the Third Circuit 75 Aupuni Street Hilo, Hawai'i 96720 ATTENTION: CLERK OF THE COURT FROM: Gina Lum, Secretary to % CARTER K. SIU, ESQ. Deputy Attorney General DATE: December 26, 2014 RE: Community Based Education Support Services v. Windward Planning Commission, et a]; and Sandra Song, et a].; Civil No. 14-1-0223 NO. DATE DESCRIPTION 1 Original Connections New Century Public Charter School's Filed Ex Officio Memorandum in Opposition to Intervenor-Appellee Jeffrey 12/26/14 K. Gomes' Motion (1) to Strike Notice of Appeal and Joinder Filed by Connections New Century Public Charter School (Filed June 19, 2014) (2) to Dismiss Said Notice of Appeal and (3) for Summary Judgment Against Connections New Century Public Charter School on its Notice of Appeal (frilled June 19, 2014), Filed December 1, 2014; Certificate of Service TRANSMITTED FOR: [X] For your information& files [ ] Your approval [ ] For processing [ ] Your review& comments [ ] For signature and forwarding [ ] Per your request as indicated below [ ] See remarks below REMARKS: Copies to Atty by .._, Mail RECEIVED Jecket (+ADB) 0 EC 3 12014 Pouch Count^r FILED TED H.S. HONG, #3569 Attorney At Law 2014 DEC 29 PM 1: 04 101 Aupuni Street, PH 1002A P.O. Box 4217 Hilo, Hawaii 96720 .�1K . t Telephone: 808-933-1919 TfIFRI) �IRXUIT c0uRr Facsimile: 808-935-8281 STATE OF HAWAII TedgTedhonglaw.com Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' (CBESS) vs. FOURTH EX PARTE MOTION TO EXTEND TIME TO FILE OPENING BRIEF; WINDWARD PLANNING COMMISSION, DECLARATION OF TED H. S. HONG; COUNTY OF HAWAII; DEPARTMENT OF ORDER GRANTING APPELLANT'S FOURTH PLANNING, COUNTY OF HAWAII, EXPARTE MOTION TO EXTEND TIME TO FILE OPENING BRIEF; CERTIFICATE OF Appellees, SERVICE and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. Judge: Honorable Ronald Ibarra APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' (CBESS) FOURTH EX PARTE MOTION TO EXTEND TIME TO FILE OPENING BRIEF 1 COMES NOW Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES (CBESS), (hereinafter referred to as "Appellant"), by and through its undersigned counsel and hereby requests this Honorable Court for an Order approving Appellant's Fourth Ex Parte Motion to Extend Time to File Opening Brief. Appellant respectfully requests the Court enter an Order granting extending the deadline to file its opening brief from December 24, 2014 to February 24, 2015. This motion is brought pursuant to Rules 6, 7, 72, and 81 of the Hawaii Rules of Civil Procedure (hereinafter referred to as "HRCP"), and is based on the attached Declaration of Counsel. DATED: Hilo, Hawaii, December '--, 2014. z-�) )/�- /) //,I� ED A S. HON 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, vs. DECLARATION OF TED H. S. HONG WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. DECLARATION OF TED H. S. HONG I, TED H. S. HONG, hereby declare under penalty of perjury that the following is true and correct to the best of my knowledge: 1. I am an attorney at law duly licensed to practice before this Court, and I am a member in good standing of the Hawaii State Bar Association. 2. 1 make this Declaration in support of the Fourth Ex Parte Motion to Extend Time to file Opening Brief. 3. Appellants timely filed its Notice of Appeal to Circuit Court; Statement of the Case; Exhibits "1"-"2"; Designation of Contents of Record on Appeal; Order for Certification and Transmission of Record on Appeal on June 9, 2014. 1 4. The Record on Appeal was transmitted to the Third Circuit Court on August 25, 2014. 5. On September 24, 2014, this Court granted Appellant with an extension of time to file its opening brief, extending the deadline from October 4, 2014 to October 24, 2014. This extension of time was based upon the Appellee Windward Planning Commission, County of Hawaii's Motion to Quash or Correct the Order for Certification and Transmission of Record on Appeal as to Tape Recordings and Transcripts of all Executive Session Hearings and Meetings dated June 9, 2014, filed on July 11, 2014, which motion was heard before this Court on September 26, 2014. 6. On October 22, 2014, this Court granted Appellant with a second extension of time to file its opening brief, extending the deadline from October 24, 2014 to November 24, 2014, based on this Court's September 30, 2014 Order, instructing Appellee Windward Planning Commission, County of Hawaii to transmit the recordings and transcripts of the executive meetings to the Court within thirty (30) days from September 30, 2014, for in camera review and determination of whether or not the attorney-client privilege applied. 7. On November 19, 2014, this Court granted Appellant with a third extension of time to file its opening brief, extending the deadline from November 24, 2014 to December 24, 2014, as a result of this Court's October 31, 2014 Order, requesting Appellee Windward Planning Commission, County of Hawaii to transmit recordings and transcripts from the executive meetings of January 10, 2013, March 7, 2013, and May 1, 2013 to the Court, within thirty (30) days, for in camera review and determination of whether or not the attorney-client privilege applied. 2 8. On December 17, 2014, your counsel received a copy of Intervenor-Appellee Jeffrey K. Gomes' Motion (1)to Dismiss Notice of Appeal taken by Applicant-Appellant Community Based Education Support Services (Filed June 9, 2014) and (2) For Summary Judgment of Said Notice of Appeal, set for hearing on February 10, 2015, 9. Although, Appellant CBESS intends on filing an opposition to Intervenor- Appellee Jeffrey K. Gomes' motion, which is due on or about January 30, 2015, Appellant is unable to predict the outcome of the hearing set for February 10, 2015; and therefore, Appellant is requesting an extension of time to file its Opening Brief, which is due on December 24, 2014. 10. Appellant believes it is prudent to request the deadline of December 24, 2014 be extended to February 24, 2015, after the hearing date, to file its opening brief. 11. This request for an extension is made in good faith and not for purposes of delay. 12. An extension of time as requested herein will not cause any prejudice to the parties herein, nor will it delay proceedings. 13. I declare under penalty of perjury under the laws of the State of Hawaii that the foregoing is true and correct to the best of my knowledge and belief. DATED: Hilo, Hawaii, December 2Z, 2014. ED H. S. HONG' 3 TED H.S. HONG, #3569 Attorney At Law 101 Aupuni Street, PH 1002A P.O. Box 4217 Hilo, Hawaii 96720 Telephone: 808-933-1919 Facsimile: 808-935-8281 Ted a,Tedhonglaw.com Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, vs. ORDER GRANTING APPELLANT COMMUNITY BASED EDUCATION WINDWARD PLANNING COMMISSION, SUPPORT SERVICES' (CBESS) FOURTH COUNTY OF HAWAII; DEPARTMENT OF EX PARTE MOTION TO EXTEND TIME TO PLANNING, COUNTY OF HAWAII, FILE OPENING BRIEF Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. Judge: Honorable Ronald Ibarra ORDER GRANTING APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' (CBESS) FOURTH EXPARTE MOTION TO EXTEND TIME TO FILE OPENING BRIEF The Court, having reviewed Appellant's Fourth Ex Parte Motion to Extend Time to File Opening Brief(Motion), the records and files herein, finds that there appears to be good cause for granting the Motion; Now, therefor, IT IS HEREBY ORDERED, AJUDGED, AND DECREED that Appellant Community Based Education Support Services' (CBESS) Fourth Ex Parte Motion to Extend Time to File Opening Brief is GRANTED. The deadline for Appellant to file its Opening brief has been extended from December 24, 2014 to Feb 77z;�; , DATED: Kealakekua, Hawaii, � J or the Above-Entitled Court In the Circuit Court of the Third Circuit, Kona Division; Community Based Education Support Services (CBESS) vs. Windard Planning Commission, County of Hawaii; Department of Planning, County of Hawaii, vs. and Sandra Song, in her capacity as Hearing Officer, Jeffrey Gomes, Intervenor; Sidney Fuke, Intervenor's Representative; Terence Yoshioka, Intervenor's Representative; ORDER GRANTING APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' (CBESS) FOURTH EX PARTE MOTION TO EXTEND TIME TO FILE OPENING BRIEF 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and Judge: Honorable Ronald Ibarra SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. CERTIFICATE OF SERVICE I hereby certify that the foregoing document was duly served to the following parties, by the means indicated below: MARGARET K. MASUNAGA, ESQ. By Hand Delivery Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, HI 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and APPELLEE SANDRA SONG 1 MICHAEL J. MATSUKAWA, ESQ. By US First Class Mail 75-5751 Kuakini Hwy., Ste. 201 Kaiiva-Kona, HI 96740 Attorney for Intervenor-Appellee JEFFREY GOMES Dated: Hilo, Hawaii, December 2014. )4z"� ED H. S. HO Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 MICHAEL J. MATSUKAWA, 1885 75-5751 Kuakini Highway, Room 201r .� Kailua-Kona, Hawaii 96740 vn Telephone No . 808-329-1385 rn Attorney for Intervenor-Appellee=, -o JEFFREY K. COMES G x tj IN THE CIRCUIT COURT OF THE THIRD CIRCUIT co STATE OF HAWAII COMMUNITY BASED EDUCATION SUPPORT ) CIVIL NO . 14-1-0223 SERVICES, ) (Agency Appeal) Applicant-Appellant, ) V. ) INTERVENOR-APPELLEE WINDWARD PLANNING COMMISSION, } JEFFREY COMES ' REPLY COUNTY OF HAWAII; DEPARTMENT OF } TO OPPOSITION FILED BY PLANNING, COUNTY OF HAWAII, } APPLICANT-APPELLANT COMMUNITY BASED EDUCA- Appellees, } TION SUPPORT SERVICES AND BY CONNECTIONS NEW and ) CENTURY PUBLIC CHARTER SCHOOL TO INTERVENOR- SANDRA SONG, in her capacity as ) APPELLEE JEFFREY GOMES ' Hearing Officer; ) MOTION TO STRIKE NOTICE OF APPEAL AND JOINDER Appellee, } FILED BY CONNECTIONS NEW CENTURY PUBLIC and ) CHARTER SCHOOL, TO DIS- MISS SAID NOTICE OF JEFFREY COMES, ) APPEAL AND FOR SUMMARY } JUDGMENT AGAINST CONNEC- Intervenor-Appellee, ) TIONS NEW CENTURY PUBLIC CHARTER SCHOOL; EXHIBIT and ) "1; " CERTIFICATE OF SERVICE } SIDNEY FUKE; TERRENCE YOSHIOKA, ) Hearing Date: Date : January 6, 2015 Intervenor' s Represen- ) Time : 10 : 00 a.m. tative (s) ) Judge : Hon. R. Ibarra ) 1 ) CONNECTIONS NEW CENTURY PUBLIC } CHARTER SCHOOL, ) ) Applicant-Appellee- ) Appellant, ) VS . ) WINDWARD PLANNNIG COMMISSION, ) COUNTY OF HAWAII , et al . , ) Appellees . ) ) 1 INTERVENOR-APPELLEE JEFFRY COMES ' REPLY TO OPPOSITION FILED BY APPLICANT-APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES AND BY CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL TO INTERVENOR-APPELLEE JEFFREY COMES ' MOTION TO STRIKE NOTICE OF APPEAL AND JOINDER FILED BY CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL, TO DIMISS SAID NOTICE OF APPEAL AND FOR SUMMARY JUDGMENT AGAINST CONNECTIONS NEW CENTURY PUBLC CHARTER SCHOOL The motion before this Court involves a procedural question that has significant consequences on the rights and obligations of the parties who participated in the contested case before the Appellee Windward Planning Commission. On December 2 , 2014, the Intervenor-Appellee Jeffrey Gomes moved to strike the Notice of Appeal and "Joinder" that 1 By prior orders, SANDRA SONG, SIDNEY FUKE and TERRENCE YOSHIOKA were dismissed from this action. On June 19 , 2014 , CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL filed a "notice of appeal,, from the decision of the Windward Planning Commission and "joined" in the notice of appeal and related papers previously filed by the Applicant-Appellant Community Based Education Support Services on June 9 , 2014 . 2 Connections New Century Public Charter School filed herein on June 19, 2014 and, further, for summary judgment against Connec- tions New Century Public Charter School . Connections New Century Public Charter School (also called "CONNECTIONS" hereafter) and the Applicant-Appellant Community Based Education Support Services (also called "CBESS" hereafter) both filed memoranda in opposition to the Intervenor- Appellee Jeffrey Gomes ' motion. Since the memoranda in oppose- tion raise similar arguments, the Intervenor-Appellee Jeffrey Gomes makes his reply thereto in this singular Reply. A. THE INTERVENOR-APPELLEE' S MOTION TO STRIKE, MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT ARE ALL TIMELY. The 20-day rule that CONNECTIONS refers to does NOT apply to the Intervener-Appellee' s motion to strike CONNECTIONS ' notice of appeal or "joinder. " The 20-day rule applies only in cases where no "responsive pleading is permitted" to CONNEC- TIONS' pleadings . Pursuant to Rule 72 (c) , HRCP relating to agency appeals in the circuit court, "the provision of these rules [of civil procedure] respecting motions and answers in response thereto [the statement of the case] shall apply. " The Intervenor-Appellee Jeffry Gomes filed his "response" to CONNECTIONS' Statement of the Case (i . e. , CBESS ' statement that CONNECTIONS incorporated by reference) on July 8 , 2014 , 19 days after CONNECTIONS filed its notice of appeal and "joinder" 3 herein. In his "response, " the Intervenor-Appellee objected to this Court ' s jurisdiction over CONNECTIONS ' appeal . (See Response, Part A, Pages 2-3 ) Having filed a permitted response to CONNECTIONS ' statement of the case, the Intervenor-Appellee Jeffry Gomes was not subject to any time restraints to file the motion that is now before this Court . Rule 12 (f) , HRCP states : (f) Motion to strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court ' s own initiative at any time, the court may order stricken from any pleading any insuffi- cient defense or any redundant, immaterial , impertinent, or scandalous matter . (emphasis added) The 20-day limitation applies only if the moving party (here, the Intervenor-Appellee Jeffrey Gomes) did not file a responsive pleading. The motion to dismiss being jurisdictional in nature can be filed at any time and at any stage of a case. The motion for summary judgment may also be filed at any time. B. THE PROBLEM AROSE WHEN THE TWO CO-APPLICANTS ELECTED NOT TO FILE A JOINT NOTICE OF APPEAL AT THE OUTSET. The Legislature established the right of judicial review from an agency' s decision under Section 91-14 (b) , HRS, stating that the right of appeal shall be governed by "rule [s] 4 of court . "Z Rule 72 (a) , HRCP states that "any person adversely affected by the decision ... may appeal from such decision ... by filing a notice of appeal in the circuit court ... . " Rule 72 , HRCP, however, does not explain HOW a second or third appeal might be initiated when multiple parties wish to appeal from the same agency decision. The only guiding rule appears in the Rules of the Circuit Court . Rule 2 , Rules of the Circuit Court states : (a) Classification. Upon the filing of the initial pleading the clerk shall classify and assign a number to such proceeding. . . . . . (c) Docket entry and filing. Upon the filing o f any documents, an appropriate entry shall be made in a docket sheet kept for each case. Each case shall be filed separately and its file shall contain an index sheet identifying particularly each document in such file and stating the date of filing. (emphasis added) While it may be cumbersome for multiple parties to be required to initiate and open separate civil dockets if they elect not to file a joint appeal , neither Section 91-14, HRS nor Rule 72 provide any other procedure to follow. Thus, in a case where the appealing parties are co-applicants who jointly sought a permit from an agency, it behooves them to file a joint notice 2 (b) . . . [P] roceedings for review shall be instituted in the circuit court . . . pursuant to rule of court . . . . The court in its discretion may permit other interested persons to intervene. " 5 of appeal at the outset for judicial efficiency. Each would be free to pursue its own issues in their respective briefs . Because the jurisdictional basis for an appeal is based on statute, one must be careful to act within the statute or risk jurisdictional problems . Here, the Applicant-Appellant CBESS was the first of the two co-applicants to file a notice of appeal from the Appellee windward Planning Commission' s adverse decision and for this purpose CBESS initiated and opened Civil No . 14-1-0223 . CBESS styled itself as the "appellant" and made no mention of CONNECTIONS in the pleadings, but did serve CONNECTIONS with the notice of appeal . As the 30-day appeal deadline neared, CONNECTIONS filed its own notice of appeal and "joinder" that are the subject of the Intervenor-Appellee Jeffry Gomes ' present motion. CONNECTIONS is correct in its citation to Jordan v. Hamada, 62 Haw. 444 , 451-452 , 616 P. 2d 1368, 1372 (1980) , that the "timely" filing of a notice of appeal is generally the only matter of focus for jurisdictional purposes . 3 However, there 3 In Jordan, the appellant filed a notice of appeal that made no reference to the agency whose decision was to be reviewed. He also filed a designation of record on appeal and order for transmission of the agency record and a statement of the case. He served copies of the same on the agency. He then tried to correct his pleadings, but the 30-day appeal deadline had already expired by then. 6 must be some limitation on a "too liberal" policy where the rights of the other parties , such as the Intervenor-Appellee Jeffry Gomes, are also at stake. In fact, the Hawaii Supreme Court recently discussed this policy in a case of "first impression. " In Friends v. Makakilo V. D.R. Horton-Schuler Homes, LLC, y Haw. , 338 P. 3d 516, 2014 Hawaii LEXIS (Slip Opinion, Case No. SOAP 13-0002408, Oct . 30 , 2014) , two of three intervenors (state senator Hee and the Sierra Club) appealed from the Land Use Commission' s June 21 , 2012 decision in a boundary amendment proceeding. They filed their notice of appeal on July 20, 2012 , within the 30-day appeal deadline. The third of the three intervenors ( "Friends of Makakilo" ) filed its own separate appeal in the same civil docket on August 2 , 2012 , but after the 30-day had expired. The third intervenor ( "Friends of Makakilo" ) described its pleading as a "cross appeal" and argued that the 30-day appeal deadline was automatically extended by 14 days as a matter of law. The Hawaii Supreme Court disagreed. The state supreme court was not concerned with the label that the "Friends of Makakilo" had given to its pleading, 4 4 According to the court, multiple aggrieved parties are permitted to appeal from the same agency decision. (Slip Opinion, Page 10) , but the court did not explain the exact procedure that the person who is "not first to file" must 7 but was concerned with the timeliness of the notice that the "Friends of Makakilo" had filed (more than 30 days after the Land Use Commission' s decision) . (Slip Opinion, Page 10) While the state supreme court observed that an omitted party (i .e . , one who is not identified in the notice of appeal and service list filed by the first to file) may nonetheless "participate [ ] in the appeal" (Slip Opinion, Page 19) , the court did not explain the nature and extent of such participation. Would it be solely as an "appellee" because under Rule 72 (a) , HRCP one can be an "appellant" only if it is the "the person or persons filing a notice of appeal . " And if the omitted person (who was a party in the contested case below) wishes to file its own appeal from the same agency decision, HOW is it to proceed? Must it initiate and open a new civil docket for its own agency appeal? In Friends of Makakilo, the Hawaii Supreme Court only addressed the time in which that omitted person has to file its appeal - 30 days . C. THE HAWAII RULES OF APPELLATE PROCEDURE DO NOT APPLY. The Applicant-Appellant Community Based Education Support Services ( "CBESS" ) argues at Page 7 of its Opposition follow. CONNECTIONS agrees that the state supreme court "did not rule on whether cross-appeals were required to be preserved by way of a separate civil appeal docket . " (Opposition Memorandum, Part II .C, Second Paragraph) 8 Memorandum that Rule 3 (a) of the Hawaii Rules of Appellate Procedure applies to the situation at hand. However, the Hawaii Supreme Court has already held in the Friends of Makakilo case that the appellate rules do NOT apply in an agency appeal in the circuit court . (Slip Opinion, Page 14) D. THE APPLICANT-APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES ' STANDING IS NOT INVOLVED IN THIS PRESENT MOTION. The Applicant-Appellant CBESS argues, at Page 8 of its opposing memorandum, that CBESS has "standing" to pursue its notice of appeal . However, the issue of CBESS ' standing is not involved in the motion that is now before this Court . CBESS ' standing is the subject of a separate motion. CONCLUSION The Friends of Makakilo decision does not answer the questions raised by the Intervenor-Appellee Jeffrey Gomes ' motion (See Page 5 of his supporting memorandum) . If multiple parties (here CBESS and CONNECTIONS) elect to file separate appeals from the Appellee Windward Planning Commission' s adverse decision, HOW are they supposed to proceed? The Hawaii Supreme Court observed in Friends of Makakilo that subject may rightfully be "within the purview of the legislature, not the court" to resolve. (Slip Opinion, Page 19) The Intervenor-Appellee Jeffrey Gomes contends that unless the rules of court and/or Section 91-14 , HRS are amended, 9 CONNECTIONS had to file a separate notice of appeal and initiate and open a separate civil docket therefor, as required under Rule 2 , Rules of the Circuit Court (not in this present action, Civil No. 14-1-0223 ) . Having failed to do so, CONNECTIONS' notice of appeal is defective and the time to cure this defect has expired. If this Court were to conclude that CONNECTIONS, though omitted as a party in the Applicant-Appellant CBESS ' s first filed notice of appeal, is nonetheless a "party" in this action, then this Court should further conclude that at most CONNECTIONS is an "appellee" in this action and not an "appellant . " Dated at Kailua-Kona, HI : December m , 2014 . JEFFREY GOMES, Intervenor-Appellee By Michael J. Matsukawa His Attorney 10 FOR PUBLICATION IN WEST' S HAWAII REPORTS AND PACIFIC REPORTER Electronically Filed Supreme Court SCAPA 3-0002408 30-OCT-2014 08;58 AM IN THE SUPREME COURT OF THE STATE OF HAWAII ---000--- FRIENDS OF MAKAKILO, Petitioner/Intervenor/Cross-Appellant-Appellant, Vs . D. R. HORTON-SCHULER HOMES, LLC, a Delaware limited liability company, d. b. a. D. R. HORTON-SCHULER DIVISION; THE LAND USE COMMISSION OF THE STATE OF HAWAII; OFFICE OF PLANNING, STATE OF HAWAII ; DEPARTMENT OF PLANNING AND PERMITTING, CITY AND COUNTY OF HONOLULU, Respondents/Appellees-Appellees, and THE SIERRA CLUB and THE HONORABLE SENATOR CLAYTON HEE, Respondents/Appellants-Appellants . SCAP-13-0002408 APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIV. NO. 12-1-2000) OCTOBER 30, 2014 RECKTENWALD, C. J. , NAKAYAMA, McKENNA, AND POLLACK, JJ. , AND CIRCUIT JUDGE CHANG, ASSIGNED BY REASON OF VACANCY OPINION OF THE COURT BY McKENNA, J. EXHIBIT *** FOR PUBLICATION IN WEST' S HAWAII REPORTS AND PACIFIC REPORTER *** I . Introduction Petitioner/Intervenor/Cross-Appellant-Appellant Friends of Makakilo ("Friends" or "FOM") , a 501 (c) (4 ) non-profit corporation, appeals from the Circuit Court of the First Circuit' s Final Judgment dated June 26, 2013, and filed June 27, 2013, which affirmed its November 9, 2013 Order dismissing FOM' s "cross-appeal"1 as untimely. Friends filed an Application for Transfer ("Application") with the Court on April 2, 2014 . The Court has accepted FOM' s appeal as a discretionary transfer under Hawaii Revised Statutes ("HRS") § 602-58 (Supp. 2013) FOM' s appeal poses a question of first impression: when must a party that seeks judicial review of an administrative decision in the form of a cross-appeal file notice of its cross-appeal in circuit court? In brief, Friends suggests that cross-appeals may be filed within the deadlines set forth in Rule 4 . 1 (b) of the Hawai'i Rules of Appellate Procedure ("HRAP") , 2 i . e . , within fourteen days after the initial notice of appeal is served on the cross-appellant, or within the time prescribed for filing the notice of appeal, whichever is later . Respondents/Appellees-Appellees D. R. Horton-Schuler Homes, LLC ("Horton-Schuler") , the Office of Planning, State of 1 This memorandum opinion employs quotation marks when referring to FOM' s "cross-appeal" to demark that the at-issue document was thus named by Friends. No further inferences about the content of the document should be made by use of this label. ' HRAP Rule 4 . 1 (2012) . 2 *** FOR PUBLICATION IN WEST' S HAWAII REPORTS AND PACIFIC REPORTER *** Hawaii ("State") , and the Land Use Commission ("LUC") assert that there is no fourteen-day extension for the filing of cross- appeals, as all requests for judicial review must be filed within thirty days after service of the certified copy of the agency' s final decision and order, as provided for in HRS § 91- 14 (b) (Supp. 2010) . II . Background A. Procedural History The at-issue "cross-appeal" arises from an LUC contested case hearing, Docket Number A06-771 . In January 2007, Horton-Schuler petitioned the LUC to reclassify certain lands in `Ewa District, Oahu from agricultural to urban use ("Ho`opili lands" or "Ho`opili Development") . Horton-Schuler later amended its petition in September 2008 . In February 2009, the LUC permitted Friends to intervene, and in September 2009, the LUC granted FOM' s motion to declare the petition deficient, with leave to Horton-Schuler to amend. Horton-Schuler filed subsequent amendments to its petition in May and July 2011 . In September 2011, the Sierra Club and Senator Clayton Hee were granted intervenor status . The LUC continued a hearing on the revised petition on several discrete days from October 2011 to March 2012, with oral arguments held in May and June 2012 . In its June 21, 2012 Findings of Fact, Conclusions of Law, and Decision and Order ("Decision") , the LUC granted Horton- 3 *** FOR PUBLICATION IN WEST'S RAWAI`I REPORTS AND PACIFIC REPORTER *** Schuler' s petition to reclassify the Hc'opili lands subject to certain conditions . 3 A copy of the LUC' s Decision was delivered to Friends on June 23, 2012 . On July 20, 2012 , Senator Hee and the Sierra Club filed a notice of appeal with the Circuit Court of the First Circuit, requesting judicial review of the Decision ("Sierra Club appeal" or "Sierra Club notice of appeal") . On August 2, 2012, Friends filed a "Notice of Cross Appeal to Circuit Court . " On August 23 and 24, 2012, the LUC and Horton-Schuler respectively filed motions to dismiss FOM' s "cross-appeal . ,4 Oral argument on the motions was held on October 9, 2012 . By an order dated November 9, 2012 ("Order") , the circuit court held, pursuant to HRS § 91-14, that : (a) FOM' s "cross- appeal" was not allowed by law because aggrieved parties, as defined in HRS § 91-14 , have a right to appeal an agency decision, but not a right to cross-appeal, and (b) it is undisputed that FOM' s "cross-appeal, " when viewed simply as a request for judicial review, was untimely. The circuit court further held that even if cross-appeals of agency decisions were permitted and FOM' s "cross-appeal" was deemed timely, (1) the 3 On ,lune 27, 2012, the LUC issued errata to its Decision to correct a typographical error. A copy of the errata was delivered to Friends on June 29, 2012 . None of the parties assert that the errata affect our consideration of the issues presented. ' The Office of Planning, State of Hawaii joined both motions to dismiss, and Horton-Schuler joined the LUC' s motion. 4 *** FOR PUBLICATION IN WEST' S HAWAII REPORTS AND PACIFIC REPORTER *** content of the "cross-appeal" exceeded the scope of FOM' s limited intervention in the proceedings before the LUC, and (2) Friends lacked standing to appeal as an "aggrieved person. " Accordingly, the circuit court dismissed FOM' s "cross-appeal" with prejudice, and affirmed its Order by Final Judgment filed June 27 , 2013 . B. Points of Error In its opening brief, Friends identifies eight points of error. Point one contends the circuit court erred when it concluded that, pursuant to HRS § 91-14, an aggrieved party in a contested case before the LUC " [does] not [have] the right to cross-appeal . " Points two through five repeat a single reason why the circuit court erred in concluding that FOM' s "cross-appeal" was untimely: " [T] he timely appeal by the Sierra Club/Hee divested the LUC of jurisdiction and cross-appeals were appropriate and allowed by Rule 4 . 1, H. R. A. P. thereby extending the deadline for a cross appeal to 14 days after the original appeal deadline of 30 days . " Points six and seven attack the circuit court' s alternative rulings, which are based on the assumption that FOM' s "cross-appeal" was timely and appropriately filed. 5 *** FOR PUBLICATION IN WEST' S FEAWAI`I REPORTS AND PACIFIC REPORTER *** Lastly, in point eight, it appears Friends contends that because the November 9, 2012 Order dismissed Friends from the case, final judgment should not have been entered against it pursuant to that Order. "It is Friends' belief that due process would prohibit ruling on a party no longer a party to a case . " III . Standards of Review A. Jurisdiction The existence of jurisdiction is a question of law that we review de novo under the right/wrong standard. Questions regarding subject matter jurisdiction may be raised at any stage of an action. When reviewing a case where the circuit court lacked subject matter jurisdiction, the appellate court retains jurisdiction, not on the merits, but for the purpose of correcting the error in jurisdiction. A judgment rendered by a circuit court without subject matter jurisdiction is void. Lingle v. Haw. Gov' t Employees Assn, 107 Hawaii 178, 183, 111 P. 3d 587 , 591 (2005) (citation and quotation marks omitted) . B. Statutory Interpretation "Statutory interpretation is a question of law reviewable de novo. " Kaleikini v. Yoshioka, 128 Hawaii 53, 67, 283 P . 3d 60, 74 (2012) (citation omitted) . IV. Discussion The right to appeal is purely statutory and exists only when jurisdiction is given by some constitutional or 6 *** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** statutory provision. Lim, 107 Hawaii at 184, 111 P . 3d at 593 (quotation marks omitted) (citing Burke v. Cnty. of Maui, 95 Hawaii 288, 289, 22 P. 3d 84, 85 (2001 ) ; Oppenheimer v. AIG Haw. Ins . Co. , 77 Hawaii 88 , 91, 881 P . 2d 1234, 1237 (1994 ) ; Chambers v. Leavey, 60 Haw. 52, 57, 587 P. 2d 807 , 810 (1978) ) . Jurisdiction is conferred upon circuit courts to review administrative decisions by HRS § 91-14, which provides in part : (a) Any person aggrieved by a final decision and order in a contested case . . . is entitled to judicial review thereof under this chapter; but nothing in this section shall be deemed to prevent resort to other means of review, redress, relief, or trial de novo, including the right of trial by jury, provided by law. . . . (b) Except as otherwise provided herein, proceedings for review shall be instituted in the circuit court . . . within thirty days after service of the certified copy of the final decision and order of the agency pursuant to rule of court . . . . The court in its discretion may permit other interested persons to intervene_ HRS 91-14 . It is uncontested that Friends did not file its "cross-appeal" within "thirty days after service of the certified copy of the final decision and order of the agency, " as required by HRS § 91-14 (b) . Nevertheless, Friends contends that the deadline set forth in HRS § 91-14 (b) does not apply to its "cross-appeal"; rather, court rules govern. 5 Specifically, Friends asserts : ( 1) its "cross-appeal" was timely filed because 5 Friends asserts the filing of the Sierra Club notice of appeal divested the LUC of jurisdiction, but fails to explain why it therefore follows that the Hawaii Rules of Appellate Procedure govern its "cross-appeal" in circuit court. 7 *** FOR PUBLICATION IN WEST' S HAWAII REPORTS AND PACIFIC REPORTER *** Rule 4 . 1 of the Hawaii Rules of Appellate Procedure, which permits a party to file a cross-appeal within fourteen days of that party' s receipt of another party' s timely filed notice of appeal, applies to its "cross-appeal, "6 and (2 ) nothing in HRS § 91-14 prohibits the filing of cross-appeals of agency decisions to circuit court . A. HRS § 91-14 Permits the Filing of Cross-Appeals of Agency Decisions within the Time Allowed in HRS § 91-14 (b) As a preliminary matter, the term "cross-appeal" should be defined: where multiple requests for judicial review are initiated, "the appeal of each is called a `cross-appeal' as regards that of the other [s] . " Black' s Law Dictionary 124 (4th ed. 1957 ) . In other words, cross-appeals exist whenever more than one party requests judicial review of the same decision . The plain language of NRS § 91-14 (a) shows the Hawaii Legislature contemplated that multiple requests for review of a 6 HRAP Rule 4 .1 provides: (a) Right of cross-appeal. (1) If a timely notice of appeal is filed by a party, any other party may, if allowed by law, file a cross-appeal . (2) In civil cases involving multiple-party plaintiffs or defendants, if one party files a timely notice of appeal, any other party, whether on the same or opposite side as the party first appealing, may file a notice of cross-appeal. (3) In criminal cases, the state or the defendant may file a cross-appeal within the time and under the circumstances permitted by this rule if the appeal is otherwise allowed by law. (b) Manner and time of filing. (1) A notice of cross-appeal shall be filed within 14 days after the notice of appeal is served on the cross-appellant, or within the time prescribed for filing the notice of appeal, whichever is later. . . . HRAP Rule 4 . 1. 8 *** FDR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** single decision and order may be initiated. See HRS § 91-14 ("Any person aggrieved . . . is entitled to judicial review (emphasis added) ) ; Bowers v. Alamo Rent-A-Car, Inc. , 88 Hawaii 274, 277, 965 P. 2d 1274, 1277 ( 1998) ("The starting point in statutory construction is to determine the legislative intent from the language of the statute itself. " (citation and internal quotation marks omitted) ) . Moreover, the Court has previously heard matters where multiple parties request judicial review of the same agency decision without sua sponte addressing the issue of jurisdiction. See, e . g. , Ka Pa`akai O Ka`aina v. Land Use Comm' n, 94 Hawaii 31, 34, 39, 7 P. 3d 1068, 1071, 1076 (2000) (noting that four distinct parties each filed separate timely agency appeals from the LUC' s order to the Circuit Court of the Third Circuit, and addressing the appeals of the circuit court decision lodged by two of those parties) ; see also Bacon v. Karlin, 68 Haw. 648, 650, 727 P. 2d 1127 , 1129 ( 1986) ("when we perceive a jurisdictional defect in an appeal, we must, sua sponte, dismiss that appeal . " (quoting Familian Nw. , Inc. v. Cent . Pac. Boiler & Piping, Ltd. , 68 Haw. 368, 369, 714 P. 2d 936, 937 ( 1986) ) (internal quotation marks omitted) ) . Thus, HRS § 91-14 specifically permits the filing of cross-appeals in circumstances where multiple parties request judicial review of an agency decision within the thirty-day window provided in HRS § 91-14 (b) . 9 *** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** The circuit court ' s Order might be read to be contrary to this, as the court stated: "Pursuant to [HRS] § 91-14 , an aggrieved party to the proceedings below before the hand Use Commission has the right of appeal to the circuit court, but not the right to cross-appeal . . . . Haw. Rev. Stat . § 91-14 [ ] . . . does not provide for cross-appeals . . . . " However, a careful examination of the Order reveals that the court was not concerned with whether multiple aggrieved parties are permitted to appeal the same agency decision, or whether aggrieved parties are denied a right to request judicial review of an agency decision if they are not first to file. 7 Indeed, had Friends filed its "Notice of Cross Appeal" within the thirty-day window provided in HRS § 91-14 (b) , timeliness would not be an issue. 8 Rather, the circuit court was concerned with whether HRS § 91-14 specifically addresses the right to "cross-appeal" according to the procedure described in Rule 4 . 1 of Hawaii Rules of Appellate Procedure (or a similar procedure that provides additional time for the filing of a cross-appeal beyond the thirty--day window of HRS § 91-14 (b) ) . The circuit court correctly observed, that by the statute' s plain language, it does not . ' During oral argument in discussing Ka Pa`akai 0 Ka`aina, 94 Hawaii 31, the circuit court acknowledged that multiple parties may request judicial review of the same agency decision. e See supra note 7 . ld *** FOR PUBLICATION IN WEST' S HAWAII REPORTS AND PACIFIC REPORTER *** Yet, even if the plain language of a statute is clear, this court can nevertheless consider legislative history to ensure its interpretation of the statute does not produce an absurd result contrary to legislative intent . See Survivors of Medeiros v. Maui Land & Pineapple Co. , 66 Haw. 290, 297 , 66C P. 2d 1316, 1321 (1983) (observing that the plain language rule does not preclude this court from examining the legislative history to "adequately discern the underlying policy which the legislature seeks to promulgate and . . . to determine if a literal construction would produce an absurd or unjust result, inconsistent with the policies of the statute") . Accordingly, the following sections explore whether, despite the plain language of HRS § 91-14, the legislature intended to allow an extension of time to file cross-appeals in the manner described in HRAP Rule 4 . 1 . B. HRS § 91-14 Does Not Permit the Filing of Cross-Appeals of Agency Decisions Outside the Time Allowed in HRS § 91-14 (b) 1 . Rule 72 of the Hawaii Rules of Civil Procedure, Not Rule 4 . 1 of the Hawaii Rules of Appellate Procedure, Applies to FOM' s "Cross-Appeal . " As a preliminary matter, we observe that HRAP Rule 4 . 1 (a) appears to confer a "right" to cross-appeal in certain circumstances . See HRAP Rule 4 . 1 (a) (titling the provision as "Right of cross-appeal") ; Haw. Const. art . VI, § 7 (stating that rules relating to "process, practice, procedure, and appeals" 11 *** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** promulgated by the Supreme Court have the "force and effect of law") ; Cresencia v. Kim, 85 Hawaii 334 , 335, 944 P. 2d 1277 , 1278 (1997 ) ("The interpretation of a rule promulgated by the courts involves principles of statutory construction. " (citation omitted) ) . Nevertheless, there is no need to comment on whether a "right" to cross-appeal is bestowed by HRAP Rule 4 . 1, as the Hawaii Rules of Appellate Procedure do not apply to a circuit court' s review of administrative decisions and orders . See HRAP Rule 1 (a) ("Scope of Rules . These rules govern all proceedings in the Hawaii appellate courts except as otherwise provided by statute, Rules of the Supreme Court, or Rules of the Intermediate Court of Appeals . " (emphasis added) ) ; Rule 2 . 1 (" ` [A] ppel late court (s) ' or 'Hawai'i appellate court (s) ' mean (s) the Hawaii Supreme Court and the Hawaii Intermediate Court of Appeals, collectively and individually, but does not include the land or tax appeal courts [ . ] ") . Although a circuit court might assume an appellate role when reviewing administrative decisions, it is not an "appellate court" as that term is used in the HRAP, and therefore the HRAP — including Rule 4 . 1 — do not apply to it . Indeed, when the HRAP were first promulgated and adopted in 1984 , Rules 73 through 76 of the Hawaii Rules of Civil Procedure ("HRCP") (each relating to appeals to the Supreme Court) were deleted from the HRCP because they were addressed by the new 12 *** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** HRAP. HRCP Rule 72, "Appeal to a Circuit Court, " on the other hand, remained intact . See Order Adopting Hawaii Rules of Appellate Procedure and Superseding Certain Other Rules (Apr. 16, 1984 ) . Simply put, by its plain language and history, the HRAP do not, nor were they ever intended to, address requests for judicial review of administrative decisions submitted to circuit courts; instead, the HRCP are the source of relevant rules . See Cresencia, 85 Hawaii at 335, 944 P. 2d at 1278 ; Bowers, 88 Hawaii at 277, 965 P . 2d at 1277 ("A rational, sensible and practicable interpretation [of a statute] is preferred to one which is unreasonable or impracticable . " (quoting State v. Lobendahn, 71 Haw. 111, 112, 784 P. 2d 872, 873 (1989) ) (internal quotation marks omitted) (brackets in original) ) . The adoption of HRAP Rule 4 . 1 in 19999 and subsequent amendments do not alter this arrangement . Tellingly, Rule 4 . 1 largely mirrors former HRCP Rule 73 . Compare HRAP Rule 4 . 1 (a) , (b) ("If a timely notice of appeal is filed by a party, any other party may, if allowed by law, file a cross-appeal . . . . A notice of cross-appeal shall be filed within 14 days after the notice of appeal is served on the cross-appellant, or within the time prescribed for filing the notice of appeal, whichever is 9 Effective January 1, 2000. See Order Amending the Hawaii Rules of Appellate Procedure (Dec. 6, 1999) . 13 *** FOR PUBLICATION IN WEST' S HAWAII REPORTS AND PACIFIC REPORTER *** later . ") , with HRCP Rule 73 (a) (2) ( 1972 ) (" [I] f a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed, or within the time otherwise herein prescribed, whichever period last expires . ") . HRCP Rule 72 (2012 ) , the relevant portions of which have not changed since 1972 — prior to the enactment of the HRAP — lacks language similar to former HRCP Rule 73 or HRAP Rule 4 . 1 . Thus, when HRCP Rule 72 (appeals to a circuit court) is read together with former HRCP Rule 73 (appeals to the Supreme Court) , it is evident that a fourteen-day cross-appeal provision was purposefully excluded from HRCP Rule 72 . This court' s clear intent restricting the scope of HRCP Rule 72 is unchanged by the subsequent adoption of HRAP Rule 4 . 1 . Friends suggests that application of Rule 72 nevertheless permits the filing of cross-appeals . According to Friends, because HRCP Rule 72 (e) requires the statement of the case filed by an appellant be treated by the court "as near as may be [ ] as an original complaint, " HRCP Rule 72 (e) , 10 it ° Statement of case. The appellant shall file in the circuit court concurrently with the filing of appellant' s designation, a short and plain statement of the case and a prayer for relief. Certified copies of such statement shall be served forthwith upon every appellee. The statement shall be treated, as near as may be, as an original complaint and the provision of these rules respecting motions and answers in response thereto shall apply. HRCP Rule 72 (e) 14 *** FOR PUBLICATION IN WEST' S HAWAII REPORTS AND PACIFIC REPORTER *** therefore argues analogous treatment should be extended to the rest of the case so as to permit the filing of cross-appeals in the same manner as cross- or counter-claims . Nothing in HRCP Rule 72 (e) allows such an extension. The focus of the rule is, as designated by its title, confined to (1) mandating the filing of a statement of the case together with a notice of appeal, and (2) applying the Hawaii Rules of Civil Procedure with respect only to motions and answers — there is no mention of cross- appeals — that are filed in response to the statement . " Friends fails to identify any support for a contrary interpretation. Thus, the application of HRCP Rule 72 to FOM' s "cross-appeal" does not give it the relief it seeks . 2 . The Legislature Intended HRS § 91-14 to Conform with HRCP Rule 72 . The limited scope of HRCP Rule 72 bears on a proper interpretation of HRS § 91-14 . The Hawaii Administrative Procedure Act ("HAPA" or "Hawai`i APA") , which includes HRS § 91- 14 , was enacted in 1961 and modeled after a 1959 draft of the National Conference of Commissioners' Model State Administrative 11 Friends also notes that HRCP Rule 81 (e)( ) (2006) requires that, except as otherwise provided in Rule 72, the Hawaii Rules of Civil Procedure apply to all proceedings in circuit court, including certain administrative appeals such as the one here , However, Friends fails to identify which rule of civil procedure the circuit court failed to apply that would have otherwise offered it the relief it seeks. 15 *** FOR PUBLICATION IN WEST' S HAWAII REPORTS AND PACIFIC REPORTER *** Procedure Act ("1959 Draft") . 12 H. 1-8, Gen. Sess . , at 654 (Hawai`i 1961) . The legislature intentionally deviated from the 1959 Draft with respect to Section 91-14 (b) in order to "conform to the procedure provided in the Hawaii Rules of Civil Procedure . . . . " Id. at 660 . Specifically, the legislature required that, " [e] xcept as otherwise provided herein, proceedings for review shall be instituted in the circuit court . . . pursuant to the provisions of the Hawaii rules of civil procedure HRS § 91-14 (b) ( 1961 ) (emphasis added) . 13 See Lingle, 107 Hawaii at 183, 111 P. 3d at 591 (" [0] ur foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself . And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose . " ( internal quotation marks and citation omitted) ) . Thus, when first enacted in 1961, HRS § 91-14 (b) employed language that expressly triggered the rule concerning 12 The final version of the Revised Model State Administrative Procedure Act was approved in 1961, superseding the original 1946 Model Act. 13 Except as otherwise provided herein, proceedings for review shall be instituted in the circuit court within thirty days after the preliminary ruling or within thirty days after service of the certified copy of the final decision and order of the agency pursuant to the provisions of the Hawaii rules of civil procedure HRS § 91-14 (b) (1961 ) . 16 *** FOR PUBLICATION IN WEST' S HAWAII REPORTS AND PACIFIC REPORTER ttt appeals "instituted in the circuit court, " HRCP Rule 72 — not former HRCP Rule 73 and its accompanying intentional lack of a provision for an extension of time to file a cross-appeal . A review of the legislative histories for post-1961 amendments to HRS § 91-14 does not provide reason to alter this interpretation of the legislature' s intent . 3 . Another State Has Concluded That in the Absence of a Specific Statutory Provision, "Cross-Appeals" of Administrative Decisions Are Subject to the Same Filing Deadlines as the Initial Appeal . Although it may be a matter of first impression for this court whether a cross-appeal of an administrative decision may be timely filed beyond the statutory deadline to institute administrative "proceedings for review, " one other court has already addressed the issue: Courts to have considered similar statutory schemes [as that presented in Hawai`i' s APA] have concluded that in the absence of a provision expressly extending the time for filing a cross- petition, any aggrieved party seeking judicial review of an administrative decision must file a separate, timely petition for review. In other words, where another deadline is not specified, a cross-petition is subject to the same filing deadline as the original petition. `JI I b iJ,� Vj Ahmann v. Corr. Ctr. Lincoln, 755 N.W. 3d 608, 611 (Neb. 2008) ; yL see also id. at 611 nn. 11 , 12 (cases cited The circumstances in Nebraska are particularly insightful . Up until 2008, the timing provision in Nebraska' s APA read: "Proceedings for review shall be instituted by filing a petition in the district court of the county where the action 17 *** FOR PUBLICATION IN WEST' S HAWAII REPORTS AND PACIFIC REPORTER *** is taken within thirty days after the service of the final decision by the agency. . . Neb. Rev. Stat . § 84-917 (2 ) (a) (2008 ) . The statute' s similarity to HRS § 91-14 is unsurprising as both the Hawaii APA and Nebraska APA amount to `substantial adoption [s] of the major provisions of the Revised 1961 Model State Administrative Procedure Act . " 15 Uniform Laws Annotated 180, 181 (Master ed. 2000) . 14 In reviewing the provision, the Nebraska Supreme Court held: " [B] ecause the [Nebraska] APA makes no mention of an extended or different deadline for filing a cross-petition . . . . the plain language of the APA requires that the same deadline be applied to any party seeking judicial review of an administrative decision. " Ahmann, 755 N.W. 2d at 612 (footnote omitted) . In this case, HRS § 91-14 (b) ' s similar omission of extended or different deadlines to file a cross-appeal indicates that all parties seeking review in the circuit court must institute proceedings in the circuit court within thirty days after service of the certified copy of the agency' s final decision and order. 21 The section regarding the deadline for requesting judicial review in the various iterations of the Model State Administrative Procedure Act has gone substantively unchanged. Compare Model State Admin. Proc. Act § 12, 9C U.L.A. 179 (1957) (1946 Act) , with Nat' l Conference of Comm' rs on Unif. State Laws, Revision of the Model State Admin. Proc. Act § 14 (1960) (reflecting recommendations made by committee members to the 1959 Draft) , and Unif. Law Comm' rs Model State Admin. Proc. Act (1961) § 15, 15A U.L.A. 11 (2000) . 18 *** FOR PUBLICATION IN WEST' S HAWAII REPORTS AND PACIFIC REPORTER *** 4 . The Legislature, Not the Court, Should Balance Parties' Competing Interests . Although there may be prudential reasons for applying the same deadline to all requests for judicial review, 15 such a rule may spark the filing of preemptive appeals, thereby wasting client and court resources . Friends makes a similar argument : "If the silence of Rule 72 on cross appeals is interpreted as a denial of the right to file a cross appeal, the result is that every party in a contested case must file an appeal to protect itself in case another party files an appeal and does not include them as a party. " FOM' s position, however, is based on an unfounded legal conclusion that an appellant' s omission of a party from the appeal' s case caption or service list precludes the "omitted" party from participating in the appeal . In any event, it is within the purview of the legislature, not the court, to re-examine and address these competing interests . For example, after the Nebraska Supreme Court' s ruling in Ahmann, the Nebraska Legislature revised its APA to expressly "vest in a responding party of record the right to a cross-appeal against any other party of record, " and provide the respondent with "thirty days after being served with 15 See, e.g. , Ahmann, 755 N.W. 3d at 611-12 ("Applying the same deadline for petitions and cross--petitions serves to ensure that all the parties affected by an administrative decision are aware of any challenge to that decision and receive prompt notice of the issues presented for judicial review.") . 19 *** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** the summons and petition for review" to serve its cross-appeal . Neb. Rev. Stat . § 84-917 (2 ) (a) (2009) . Unless the legislature enacts a similar provision, however, for the reasons already discussed, an "aggrieved person" seeking judicial review of an administrative decision under the Hawaii APA must institute review proceedings within thirty days after service of the final decision and order, as provided in HRS § 91-14 . Accordingly, the circuit court did not err when it concluded Friends untimely filed its "cross-appeal . " C. As FOM' s "Cross-Appeal" Was Untimely Filed, the Remaining Points of Error Need Not Be Reached by the Court Points of error six and seven concern the circuit court' s alternative rulings that are contingent on a timely filed "cross-appeal . " As we affirm the circuit court' s dismissal of FOM' s "cross-appeal" as untimely, we need not, and do not, reach these points of error. Further, Friends concedes that the issue raised in point of error eight is relevant only "if the case is reversed. " As we affirm the circuit court' s dismissal of FOM' s "cross- appeal, " we need not reach point eight . 20 *** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** V. Conclusion For the foregoing reasons, we affirm the circuit court' s dismissal of FOM' s "cross-appeal" as untimely. Jack Schweigert and /s/ Mark E . Recktenwald Linda M. B. Paul for petitioner /s/ Paula A. Nakayama tµr r o aR Gregory W. Kugle and /s/ Sabrina S . McKenna r Matthew T . Evans ` for respondent, /s/ Richard W. Pollack D. R. Horton-Schuler Homes, LLC /s/ Gary W. B. Chang David M. Louie, Bryan C. Yee, and Deborah Day Emerson for respondent, Office of Planning, State of Hawaii David M. Louie, Diane Erickson, and Patricia Ohara for respondent, Land Use Commission of the State of Hawaii Donna Y. L. Leong and Dawn Takeuchi Apuna for respondent, Department of Planning and Permitting, City and County of Honolulu 21 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO . 14-1-0223 SUPPORT SERVICES, ) (Agency Appeal) ) Applicant-Appellant, } } CERTIFICATE OF SERVICE VS. } ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; DEPARTMENT OF ) PLANNING, COUNTY OF HAWAII, ) ) Appellees, ) } and } SANDRA SONG, in her capacity as } Hearing Officer; JEFFREY GOMES, ) Intervenor; SIDNEY FUKE, } Intervenor' s Representative; ) TERENCE YOSHIOKA, Intervenor' s } Representative, } Intervenor-Appellees. ) } CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a copy of the foregoing document (s) was duly served upon the following parties via the U.S. Post Office, Kailua-Kona, Hawaii , postage prepaid, addressed as follows : TED H.S . HONG, ESQ. P.O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General 235 So. Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AMY SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAII PLANNING DIRECTOR LAUREEN T. MARTIN, ESQ. Assistant Corporation Counsel 74-5044 Ane Keohokalole Highway Kailua-Kana, Hawaii 96740 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII DATED: Kailua-Kona, Hawaii, I / JEFFREY K. GOMES, Intervenor- Appellee BY: MICHAEL J. MATSUKAWA His Attorney 2 FILED TED H.S. HONG, 43569 Attorney At Law 101 Aupuni Street, PH I002A 2015 JAN -8 PH 1= 31 P.O. Box 4217 fJ Hilo, Hawaii 96720 �'r`L Telephone: 808-933-1919 L.MOCK CHEW.CLERK THIRD CIRCUIT COURT Facsimile: 808-935-8281 STATE OF 'r?A14'All Ted@Tedhonglaw.com Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' EX vs. PARTE MOTION FOR LEAVE TO ALLOW APPELLANT TO FILE ITS OVER-LENGTH WINDWARD PLANNING COMMISSION, REPLY BRIEF; DECLARATION OF TED H. S. COUNTY OF HAWAII; DEPARTMENT OF HONG; ORDER GRANTING APPELLANT PLANNING, COUNTY OF HAWAII, COMMUNITY BASED EDUCATION SUPPORT SERVICES' EX PARTE MOTION FOR LEAVE TO ALLOW APPELLANT TO and FILE ITS OVER-LENGTH REPLY BRIEF; CERTIFICATE OF SERVICE SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Judge: Honorable Ronald lbarra Intervenor-Appellees. APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' EX PARTE MOTION FOR LEAVE TO ALLOW APPELLANT TO FILE ITS OVER-LENGTH REPLY BRIEF 1 COMES NOW Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES (CBESS)(hereinafter referred to as "Appellant"), by and through its undersigned attorney, and hereby submits its Ex Parte Motion for an Order Allowing Appellant to file its Over-Length Reply Brief, exceeding the 10-page limitation pursuant to Rule 72 (f)(2) of the Hawaii Rules of Civil Procedure and Rule 28 (a) of the Hawaii Rules of Appellate Procedure. Provided Appellant's opening brief filed with this Court on December 24, 2014, was 50 pages, presenting significant issues arising from the misapplication of land-use law and error by Appellees, set forth in the Findings of Fact, Conclusions of Law and Decision and Order adopted by Windward Planning Commission. Having raised these issues in its over-length opening brief, Appellant anticipates its reply to Appellees' answering briefs will exceed 10 pages, to adequately present the relevant and necessary facts and legal argument. Appellant respectfully requests that the Court grant its motion for leave to file its over-length reply brief, and further requests the Court extend the page Iimitation for AppeIlant's reply brief to 20 pages. This motion is brought pursuant to Rules 6, 7, 72, and 81 of the Hawaii Rules of Civil Procedure (hereinafter referred to as "HRCP") and Rule 28 (a) of the Hawaii Rules of Appellate Procedure (hereinafter referred to as "HRAP"), and is based on the attached Declaration of Counsel. DATED: Hilo, Hawaii, January '-�_ , 2015. ED H. S. HONG 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, vs. DECLARATION OF TED H. S. HONG WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. DECLARATION OF TED H. S. HONG I, TED H. S. HONG, hereby declare under penalty of perjury that the following is true and correct to the best of my knowledge: 1. I am counsel of record for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES (CBESS). 2. I make this Declaration in support of Appellant's Ex Parte Motion for an Order Allowing Appellant to File its Over-Length Reply Brief, which brief is expected to exceed the 10-page limitation imposed by Rule 72 (0(2) of the Hawaii Rules of Civil Procedure and Rule 28 (a) of the Hawaii Rules of Appellate Procedure for the following reasons: a. Appellant's opening brief filed with this Court on December 24, 2014,was 50 pages, wherein Appellant presented many significant issues arising from the 1 misapplication of land-use law contained in the Findings of Fact, Conclusions of Law and Decision and Order adopted by Windward Planning Commission. b. Due to the importance of these issues, the additional pages of briefing are necessary to assist the Court with the issues raised by this case. Counsel is unable to adequately present the relevant and necessary facts and legal argument within 10 pages, but will be able to do so with 20 pages. a. Allowing Appellant to file its over-length brief does not affect the substantial rights of any party. Therefore, Appellant requests leave by the Court to permit Appellant to file its reply brief, extending the page limit to 20 pages. I declare under penalty of perjury under the laws of the State of Hawai'i that the foregoing is true and correct to the best of my knowledge and belief. DATED: Hilo, Hawaii, January , 2015. �0)J/) )47 TED H. S. HONG 2 TED H.S. HONG, #3569 Attorney At Law 101 Aupuni Street, PH 1002A P.O. Box 4217 Hilo, Hawaii 96720 Telephone: 808-933-1919 Facsimile: 808-935-8281 Ted cr,Tedhonglaw.com Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, vs. ORDER GRANTING APPELLANT COMMUNITY BASED EDUCATION WINDWARD PLANNING COMMISSION, SUPPORT SERVICES' EXPARTE MOTION COUNTY OF HAWAII; DEPARTMENT OF FOR LEAVE TO ALLOW APPELLANT TO PLANNING, COUNTY OF HAWAII, FILE ITS OVERLENGTH REPLY BRIEF and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. Judge: Honorable Ronald Ibarra ORDER GRANTING APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES'EX PARTE MOTION FOR LEAVE TO ALLOW APPELLANT TO FILE ITS OVERLENGTH REPLY BRIEF 1 The Court, having reviewed Appellant's Ex Parte Motion for an Order Allowing Appellant to File its Over-Length Reply Brief, Declaration of Counsel, the records and files herein, finds that there appears to be good cause for granting the Motion; IT IS HEREBY ORDERED, AJUDGED, AND DECREED that Appellant's Ex Parte Motion for an Order Allowing Appellant to File its Over-Length Reply Brief is GRANTED. IT IS FURTHER ORDERED that Appellant's r ply.brief shall not exceed 20 pages. DATED: Kealakekua, Hawaii, Judg or the Above-Entitled Court In the Circuit Court of the Third Circuit, Kona Division; Community Based Education Support Services (CBESS) vs. Windard Planning Commission, County of Hawaii; Department of Planning, County of Hawaii, vs. and Sandra Song, in her capacity as Hearing Officer, Jeffrey Gomes, Intervenor; Sidney Fuke, Intervenor's Representative; Terence Yoshioka, Intervenor's Representative; Civil No. 14-1-0223 (Agency Appeal); ORDER GRANTING APPELLANT'S EX PARTE MOTION FOR LEAVE TO ALLOW APPELLANT TO FILE ITS OVER-LENGTH REPLY BRIEF 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, CERTIFICATE OF SERVICE VS. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, and Judge: Honorable Ronald Ibarra SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. CERTIFICATE OF SERVICE I hereby certify that the foregoing motion was duly served to the following parties, by the means indicated below: MARGARET K. MASUNAGA, ESQ. By Hand Delivery Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, HI 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and APPELLEE SANDRA SONG 1 MICHAEL J. MATSUKAWA, ESQ. By US First Class Mail 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, HI 96740 Attorney for Appellee JEFFREY GOMES CARTER K. SUI, ESQ. By US First Class Mail Deputy Attorney General 235 South Beretania Street, Room 304 Honolulu, HI 96813 Attorney for Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL Dated: Hilo, Hawaii, January__�f 2015. ED H. S. HONG Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 Y PILED a r tour ff MOLLY A. STEBBINS 8639 STATE OF HAWAII Corporation Counsel 2015 JAN 16 PM I%, 36 LAUREEN L. MARTIN 5927 Assistant Corporation Counsel cJ DANNY B. PATEL 9578 Deputy Corporation Counsel County of Hawaii 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: laureen.martin@hawaiicounty.gov danny.patel@hawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HA WAI I COMMUNITY BASED EDUCATION Civil No. 14-I-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, STATEMENT OF NO POSITION OF Applicants-Appellants, APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HA WAIT, AS TO vs. INTER VENOR-APPELLEE JEFFREY K. GOMES'MOTION(1) TO DISMISS NOTICE()F WINDWARD PLANNING COMMISSION, APPEAL TAKEN BYAPPLICANT-APPELLANT COUNTY OF HAWAII COMMUNITY BASED EDUCATION SUPPORT SERVICES (FILED JUNE 9, 2014)AND (2) FOR Appellee, SUMMARY JUDGMENT ON SAID NOTICE OF and APPEAL FILED DECEMBER 11, 2014; CERTIFICATE OF SERVICE JEFFREY GOMES, Intervenor Hearing: Date: February, 10, 2015 Time: 8:00 a.m. Judge: Hon. Ronald Ibarra STATEMENT OF NO POSITION OF APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HA WAI`I,AS TO INTER VENOR APPELLEE JEFFREY K. GOMES'MOTION(I) TO DISMISS NOTICE OFAPPEAL TAKEN BYAPPLICANT APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES (FILED JUNE 9, 2014)AND (2) FOR SUMMARY JUDGMENT ON SAID NOTICE OF APPEAL FILED DECEMBER 11 2014 Appellee Windward Planning Commission, County of Hawaii, by and through its undersigned counsel, hereby states that it takes no position as to Intervenor-Appellee .Jaffrey K. Gomes 'Motion (1) To Dismiss Notice of Appeal Taken by Applicant-Appellant Community Based Education Support Services (Filed June 9, 2014) and(2) For Summary.Iudgment on Said Notice ofAppeal, filed December 11, 2014, Dated: Hilo, Hawaii, January 16, 2015, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII By DANNY , PATE Deputy Co ion Counsel Attorney for Appellee 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAI`1 COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, CERTIFICATE OF SERVICE Applicants-Appellants, vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`1 Appellee, and JEFFREY COMES, Intervenor; CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing motion was served upon the parties below at their respective addresses by U.S. Mail, postage prepaid on January 16, 2015: TED H.S. HONG, ESQ. Hilo Lagoon Centre I01 Aupuni Street, PH 1002A Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MICHAEL J. MATSUKAWA, ESQ. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES Dated: Hilo, Hawaii, January 16, 2015. DA B ATEL Deputy CoiporatioTCounsel 2 1_r 'FILED MICHAEL J. MATSUKAWA, 1865-0 Territorial Centre, Suite 201 75-5751 Kuakini Highway 2015 JA*2PH I: f2 Kailua-Kona, Hawaii 96740 Telephone No . : (808) 329-1385 r UR i( Attorney for Intervenor-Appellee THlt] rIUITCOURF JEFFREY K. GOMES T''TF OF 1fAW,^.II IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO . 14-1-0223 SUPPORT SERVICES (CRESS) , ) (Agency Appeal) Applicant-Appellant, ) INTERVENOR-APPELLEE JEFFREY K. vs . ) GOMES' EX PARTE MOTION TO EXTEND TIME TO FILE ANSWERING WINDWARD PLANNING COMMISSION, ) BRIEF; DECLARATION OF MICHAEL COUNTY OF HAWAII ; DEPARTMENT OF ) J. MATSUKAWA; CERTIFICATE OF PLANNING, COUNTY OF HAWAII, ) SERVICE } Appellees, ) ) and ) } SANDRA SONG, in her capacity as } Hearing Officer; JEFFREY GOMES, ) Intervenor; SIDNEY FUKE, ) Intervenor' s Representative; ) TERENCE YOSHIOKA, Intervenor' s ) Representative, ) Intervenor-Appellees. ) } 012114.1\j-90me5\ext-ans xp INTERVENOR-APPELLEE JEFFREY K. GOMES' EX PARTE MOTION TO EXTEND TIME TO FILE ANSWERING BRIEF COMES NOW Intervenor-Appellee JEFFREY K. GOMES, by and through his attorney, Michael J. Matsukawa, and hereby requests this Honorable Court for an Order approving Intervenor-Appellee Jeffrey K. Gomes' Ex Parte Motion to Extend Time to File Answering Brief . Intervenor-Appellee Jeffrey K. Gomes respectfully requests this Court to enter an Order extending his Answering Brief deadline to answer Applicant-Appellant community Based Education Support Services' Opening Brief filed December 24 , 2014 . The request is to extend the Answering Brief deadline (February 3 , 2015) to March 3 , 2015 . This motion is brought pursuant to Mules s , 7 , 72 and 81 of the Hawaii Rules of Civil Procedure and is based on the attached Declaration of counsel . DATED: Kailua-Kona, Hawaii, January 22 , 2015 . JEFFREY K. GOMES, Intervenor- Appellee By: ,{, MICHAEMATSUKAWA His Attorney 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO. 14-1-0223 SUPPORT SERVICES, } (Agency Appeal) ) Applicant-Appellant, } DECLARATION OF MICHAEL J. vs . ] MATSUKAWA WINDWARD PLANNING COMMISSION, } COUNTY OF HAWAII; DEPARTMENT OF } PLANNING, COUNTY OF HAWAII, ) Appellees, } and ) ) SANDRA SONG, in her capacity as ] Hearing Officer; JEFFREY GOMES, } Intervenor; SIDNEY FUKE, ) Intervenor' s Representative; ] TERENCE YOSHIOKA, Intervenor' s } Representative, } } Intervenor-Appellees. ) DECLARATION OF MICHAEL J. MATSUKAWA Pursuant to rules of Court, the undersigned makes the following declaration: 1 . He is the attorney for Intervenor-Appellee Jeffrey K. Gomes herein; 2 . He has personal knowledge of the facts stated herein, 3 . On December 29, 2014, the Court granted Applicant- Appellant Community Based Education Support Services' Fourth Ex Parte Motion to Extend Time to File Opening Brief, from December 24 , 2014 to February 24 , 2014 [sic] ; however, the Opening Brief was filed on December 24 , 2014 anyway. 4 . He is in the midst of preparing for two trials, one on March 10, 2015 and the other on April 10, 2015 and in the midst of briefing a summary judgment motion due January 27, 2015 ; 5 . The extension request is for 30 days and works no prejudice to the other parties . I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT. DATED: Kailua-Kona, Hawaii, January 22 , 2015 . MICHAEL J . MATSUKAWA 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO. 14-1-0223 SUPPORT SERVICES, } (Agency Appeal) Applicant-Appellant, } } CERTIFICATE OF SERVICE vs . } ) WINDWARD PLANNING COMMISSION, } COUNTY OF HAWAII ; DEPARTMENT OF } PLANNING, COUNTY OF HAWAII, } ) Appellees, } ) and } ) SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY GOMES, } Intervenor; SIDNEY FUKE, } Intervenor' s Representative; } TERENCE YOSHIOKA, Intervenor' s } Representative, } } Intervenor-Appellees. } 1 CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a copy of the foregoing document (s) was duly served upon the following parties via the U. S . Post Office, Kailua-Kona, Hawaii, postage prepaid, addressed as follows : SANDRA P. SONG, ESQ. Hearings officer 10 Kamehameha Avenue Hilo, Hawaii 96720 TED H.S _ HONG, ESQ. P.O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General 235 So. Beretania Street , Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AMY SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAII PLANNING DIRECTOR LAUREEN T. MARTIN, ESQ. Assistant Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII ALAN M. OKAMOTO, ESQ. Nakamoto Okamoto & Yamamoto 187 Kapiolani Street Hilo, Hawaii 96720 DATED: Kailua-Kona, Hawaii, January 22 , 2015 , JEFFREY K. GOMES, Intervenor- Appellee By: MICHAEL J. MATSUKAWA His Attorney 2 r � ti r FILED MOLLY A. STEBBINS 8639 Corporation Counsel 2815 JJ 28 PM 2: 56 LAUREEN L. MARTIN 5927 Assistant Corporation CounselDANNY B. PATEL 9578THIDCIilClll CQUT Deputy Corporation Counsel STATE Ot HAWAII County of Hawaii 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: laureen.martin@hawaiicounty.gov danny.patel@hawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI=I IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, EX PARTE MOTION OF APPELLEI= Applicants-Appellants, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, TO EXTEND TIME vs. FOR FILING OF ANSWERING BRIEF TO APPELLANT COMMUNITY BASED WINDWARD PLANNING COMMISSION. F,DUCATION SUPPORT SERVICES' OPENING COUNTY OF HAWAII, BRIEF; DECLARATION OF COUNSEL; ORDER GRANTING EX PARTE MOTION OF Appellee. APPELLEE WINDWARD PLANNING and COMMISSION, COUNTY OF HAWAII, TO EXTEND TIME FOR FILING OF ANSWERING JEFFREY GOMES, Intervenor, BRIEF TO APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' OPENING Intervenor-Appellee. BRIEF; CERTIFICATE OF SERVICE Judge: The Honorable Ronald Ibarra No Trial date set EX PARTE MOTION OF APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAVI, TO EXTEND TIME FOR FILING OF ANSWERING BRIEF TO APPELLANT COMMUNITY BASED ED UCA TION SUPPOR T SER VICES' OPENING BRIEF Appellee Windward Planning Commission, County of Hawaii ("County"), by and through its undersigned counsel, hereby requests this Honorable Court for an Order granting the EX PARTE MOTION OF APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`l, TO EXTEND TIME FOR FILING OF ANSWERING BRIEF TO APPELLANT COMMUNITY BASED EDUCA TION SUPPORT SERVICES' OPENING BRIEF. County respectfully requests that the deadline to file its Answering Brief in response to the Appellant Community Based Education Support Services' Opening Brief be extended, and that it be allowed to file its Answering Brief within ten (10) days after this Court enters and files its order on Intervenor-Appellee Jeffrey K Comes'Motion (1) To Dismiss Notice of'Appeal Taken by Applicant-Appellant Community Based Education Support Services (Filed June 9, 201 4) and(2) For Summary Judgment on Said Notice of Appeal, filed December 11, 2014 ("Intervenor-Appellee's Motion"), Intervenor-Appellee's Motion is currently scheduled for hearing on February 10, 2015 at 08:00 a.m. This ex parte motion is brought pursuant to Rules 6(b) and 7, of the Hawaii Rules of Civil Procedure and Rules 7 and 7.2(f) of the Rules of the Circuit Courts of the State of Hawaii, and is based on the attached Declaration of Counsel. Dated: Hilo, Hawaii, January 21, 2015. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAVI, Appellee By l DANNY ATE Deputy orpot n Counsel Its Attorney 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, DECLARATION OF COUNSEL App]icants-Appellants, vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, Appellee, and JEFFREY GOMES, Intervenor, Intervenor-Appelle DECLARATION OF COUNSEL I, DANNY B. PATEL, hereby declare as follows: 1. I am an attorney of record for Appellee Windward Planning Commission. County of Hawaii ("County"). 2. The County seeks an extension of time in which to file its Answering Brief in response to Appellant Community Based Education Support Services' Opening Brief filed December 24, 2014 ("Opening Brief'). 3. The County's Answering Brief is due on February 2, 2015. 4. This request is based on Intervenor-Appellee Jeffrey K. Gomes'Motion (1) To Dismiss Notice of Appeal Taken by Applicant-Appellant Community Based Education Support Services (Filed June 9, 2014) and(2) For Summary Judgment on .Said Notice of Appeal, filed December 11, 2014 ("Intervenor-Appellee's Motion"). 5. Intervenor-Appellee's Motion is currently scheduled for hearing on February 10, 2015 at 08:00 a.m. 6. The deadline to file an opposition to Intervenor-Appel lee's Motion is on February 2, 20I5. 7. The County filed its Statement of No Position gfAppellee Windward Planning Commission, County of Hawai`i, as to Intervenor Appellee Jeffrey K Gomes'Molinn (1) to Dismiss Notice of'Appeal Taken by Applicant-Appellant Community Based Education Support Services (Filed June 9, 2014) and (2)for Summary Judgment on Said Notice of Appeal filed December 2, 2014, on January 16, 2015. 8. In Appellant Community Based Education Support Services' (CBESS) Fourth Ex Parte Motion to Extend Time to File Opening Brief filed December 29, 2014 ("CBESS Motion to Extend"), CBESS gave notice of its intent to file an opposition to Intervenor-Appel lee's Motion. See CBESS Motion to Extend, Declaration of Ted H.S. Hong, paragraph 9. 9. The County is unable to predict the outcome of the February 10, 2015 hearing on Intervenor-Appel lee's Motion; if said motion is granted, the time, effort, and public moneys spent on drafting and filing the County's Answering Brief would be for not. 10. Under these circumstances, the County requests that it be allowed to file its Answering Brief to CBESS' Opening Brief within ten (10) days after this Court enters and files its order on Intervenor-Appel lee's Motion. 11. This request for an extension of time is made in good faith and not for the purposes of delay. 12. An extension of time as requested herein will not prejudice the parties herein nor delay these proceedings as a hearing date on the agency appeal has yet to be determined. 2 13. l have spoken with both Michael J. Matsukawa, Esq. and Carter K. Siu about an extension of time, and neither have any objections to the County's request for an extension of time. 1, Danny B. Patel declare under penalty of the Iaw that the foregoing is true and correct to the best of my knowledge and belief. DATED: Hilo, Hawaii, January 21, 2015. DANNY L Attorney for Appellee 3 MOLLY A. STEBBINS 8639 Corporation Counsel LAUREEN L. MARTIN 5927 Assistant Corporation Counsel DANNY B. PATEL 9578 Deputy Corporation Counsel County of Hawaii 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: laureen.martin@hawaiicounty.gov danny.patel@hawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, ORDER GRANTING EX PARTE MOTION OF Applicants-Appellants, APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, TO vs. EXTEND TIME FOR FILING OF ANSWERING BRIEF TOAPPELL.4NT C'OMMUNITYBASED WINDWARD PLANNING COMMISSION, EDUCA TION SUPPORT SERVICES' OPENING COUNTY OF HAWAII, BRIEF Appellee, and JEFFREY GOMES, Intervenor, Intervenor-AppeIIee. ORDER GRANTING EX PARTE MOTION OF APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, TO EXTEND TIME FOR FILING OF ANSWERING BRIEF TO APPELLANT COMMUNITY BASED EDUCA TION SUPPOR T SER VICES' OPENING BRIEF The Court, having reviewed the Ex Parte Motion of Appellee Windward Planning Commission, County of Hawaii, to Extend Time for Filing of Answering Brief to Appellant Community Based Education Support Services' Opening Brief("Ex Parte Motion"), the records and files herein, finds that there appears to be good cause for granting said Ex Parte motion, Now, therefore, 1T 1S HEREBY ORDERED, ADJUDGED, AND DECREED that the Ex Parte Motion be and is GRANTED. Appellee Windward Planning Commission, County of Hawaii, shall file its Answering Brief to Appellant Community Based Education Support Services' Opening Brief, filed December 24, 2014, within ten (10) days after this Court enters and files its order on Intervenor-Appellee Jeffrey K. Gomes' Motion (1) To Dismiss Notice of Appeal Taken by Applicant-Appellant Community Based Education Support Services (Filed June 9, 2014) and(2) For Summary Judgment on Said Notice of Appeal, tiled December 11, 2014 DATED: Kealakekua, Hawaii, Judge for the Above-Entitled Court In the Circuit Court of the Third Circuit; Community Based Education Support Services; Connections New Century Public Charter School vs. Windward Planning Commission, County of Hawaii vs. Jeffrey Gomes, Intervenor; Civil No. 14-1-0223 (Agency Appeal); ORDER GRANTING EX PARTE MOTION OF APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`l, TO EXTEND TIME FOR FILING OF ANSWERING BRIEF TO APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' OPENING BRIEF 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAI41 COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, CERTIFICATE OF SERVICE Applicants-Appellants, vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`l, Appellee, and JEFFREY GOMES, Intervenor, Intervenor-Appelle CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document was served upon the parties below at their respective addresses by U.S. Mail, postage prepaid on January 21, 2015: TED H.S. HONG, ESQ. Hilo Lagoon Centre 101 Aupuni Street, PH 1002A Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MICHAEL J. MATSUKAWA, ESQ. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES Dated: Hilo, Hawaii, January 21, 2015. DANNY B. P EL Deputy Corp&ation Counsel 2 PILED MICHAEL J. MATSUKAWA, 1885-0 Territorial Centre, Suite 201 A 28 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Telephone No . : (808) 329-1385 L. Attorney for Intervenor-Appellee THIRD CIRCUIT_ RT JEFFREY K. GOMES STAVE OF ifAll IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES, ) (Agency Appeal) ) Applicant-Appellant, ) ORDER GRANTING INTERVENOR- vs . ) APPELLEE JEFFREY K. GOMES' EX PARTE MOTION TO EXTEND TIME TO WINDWARD PLANNING COMMISSION, ) FILE ANSWERING BRIEF COUNTY OF HAWAII; DEPARTMENT OF } PLANNING, COUNTY OF HAWAII, ) Appellees, ) and ) SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY GOMES, } Intervenor; SIDNEY FUKE, ) Intervenor' s Representative; } TERENCE YOSHIOKA, Intervenor' s ) Representative, ) Intervenor-Appellees. ) 012114.1\j-games\ext-ans xp ORDER GRANTING INTERVENOR-APPELLEE JEFFREY K. GOMES' EX PARTE MOTION TO EXTEND TIME To FILE ANSWERING BRIEF The Court having reviewed Intervenor-Appellee Jeffrey K. Gomes' Ex Parte Motion to Extend Time to File Answering Brief, the records and file herein, finds that there appears to be good cause for granting the Motion; Now, therefor, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Intervenor-Appellee Jeffrey K. Gomes Ex Parte Motion to Extend Time to File Answering Brief is GRANTED. The deadline for Intervenor-Appellee Jeffrey K. Gomes to file his Answering Brief has been extended from February 3 , 2015 to Mar h 3e2�015 . DATED: Kealakekua, Hawai ' , ��27</J JUDGE OF TA ABOVE-ENTITLED COURT -------------------------------------- ---------------------------- order Granting Intervenor-Appellee Jeffrey K. Gomes' Ex Parte Motion to Extend Time to File Answering Brief Community Based Education Support Services (CBESS) v. Windward Planning Commission, County of Hawaii., et al. and Sandra Song, et al. , Civil No_ 14-1-0223 In the Circuit Court of the Third Circuit , State of Hawaii 2 0FWt'j1NA1 F:_:) 1'11E T tdp," T!'il_I!T TED H.S. HONG, #3569 SIA1�- 0r !HAii,%;I Attorney At Law 101 Aupuni Street, PH 1002A 23iSi JAr13 d PN I: 56 P.O. Box 4217 Hilo, Hawaii 96720 Telephone: 808-933-1919 1 r+��t"ro,, Facsimile. 808-935-8281 CL�R�`' — Tedc7Ted honallaw.com Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' VS. MEMORANDUM IN OPPOSITION TO INTERVENOR-APPELLEE JEFFREY K. WINDWARD PLANNING COMMISSION, GOMES' MOTION (I) TO DISMISS NOTICE COUNTY OF HAWAII; DEPARTMENT OF OF APPEAL TAKEN BY APPLICANT- PLANNING, COUNTY OF HAWAII, APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES (FILED Appellees, JUNE 9, 2014)AND(2)FOR SUMMARY and JUDGMENT ON SAID NOTICE OF APPEAL, FILED ON DECEMBER 11, 2014; SANDRA SONG, in her capacity as Hearing DECLARATION OF TED H. S. HONG; Officer, JEFFREY GOMES, Intervenor; DECLARATION OF CHRISTINE PERIATT; SIDNEY FUKE, Intervenor's Representative; EXHIBITS A—B; CERTIFICATE OF SERVICE TERENCE YOSHIOKA, Intervenor's Representative, HEARING: DATE: February 10, 2015 Intervenor-Appellees. TIME: 8:00 a.m. JUDGE: Honorable Ronald Ibarra APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' MEMORANDUM IN OPPOSITION TO INTERVENOR-APPELLEE JEFFREY K. GOMES' MOTION 1 TO DISMISS NOTICE OF APPEAL TAKEN BY APPLICANT-APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES {FILED JUNE 9, 2014)AND (2)FOR SUMMARY JUDGMENT ON SAID NOTICE OF APPEAL, FILED ON DECEMBER 11,2014 1 COMES NOW Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES (CBESS) (hereinafter referred to, interchangeably as "CBESS" or"Appellant"), by and through its undersigned attorney, and hereby submits its memorandum in opposition to Intervenor-Appellee Jeffrey K. Gomes' Motion(1)To Dismiss Notice of Appeal Taken by Applicant-Appellant Community Based Education Support Services(Filed June 9, 2014)and (2) For Summary Judgment on Said Notice of Appeal; filed on December 11, 2014, I. INTRODUCTION This dispute arises from the appeal from: (1) the Hearing Officer's Report dated April 7, 2014; ROA pp. 2581-2593; (2) the County of Hawaii Windward Planning Commission's decision entered May 1, 2014, in favor of the Hearing Officer's report and recommendations to deny Special Permit Application (SPP 12-000138) to develop a K to 12 charter school campus with dorm facilities and related uses on land situated in the State Land Use Agricultural District identified by Tax Map Key (3) 2-5-006: 14; ROA p. 4293; and (3) the County of Hawaii Windward Planning Commission's Findings of Fact, Conclusions of Law and Decision and Order dated May 19, 2014, which is a final administrative agency decision that denied Appellants' application for Special Permit Application (SPP 12-000138), ROA pp. 4300-4313. II. PURPOSE FOR CBESS'S APPLICATION FOR SPECIAL PERMIT Community-Based Education Support Services - Friends of Connections, Connections Public Charter School's affiliated non-profit, is requesting a Special Permit to develop a new school campus for Connections in Kaumana. The new campus would allow Connections to consolidate their academic programs at a single location and provide facilities that support the goals and visions of the school. One of those visions is implementation of a forestry/conservation 2 program and a sustainable agricultural program. A new location outside of downtown Hilo would provide an improved educational environment and the necessary land area to expand the academic program to include the desired sustainable agricultural and forestry components. The objective of the request is to allow CBESS to continue its planning efforts to develop a new campus in Kaumana. A conceptual master plan, representing the ultimate vision for the property, has been developed. While the conceptual plan acts as a guide, unresolved issues do remain,particularly with regards to infrastructure and engineering. Securing the Special Permit would facilitate fundraising efforts so that additional studies and planning/design work can continue, which would aid in resolving these outstanding issues. Approval of the Special Permit, would also allow CBESS to implement the initial phases of the school while they continue to work at resolving infrastructure and financial constraints. ROA p. 27. In coordination with the State of Hawai'i Department of Land and Natural Resources (DLNR), a State-owned property in Kaumana was identified by the school as a potential site for the new campus. Connections has requested and received approval from DLNR's Board of Land and Natural Resources (BLNR)for a long-term land lease for the Kaumana property. On May 1, 2012, DLNR published a public notice stating their intent to issue a direct lease of the Kaumana property to Connections Charter School. ROA pp. 53-54. The State of Hawaii, owner of the property, has entered into General Lease No. 5- 6024 between the State of Hawaii and Connections New Century Public Charter School and has consented to the request for the Special Permit. ROA p. 2161. 3 III. STANDARD OF REVIEW IN GRANTING SUMMARY JUDGMENT The movant in a summary judgment proceeding has the burden of showing the absence of any material fact issue, First Hawaiian Bank v. Weeks, 70 Haw. 392, 772 P.2d 1187 (1989), and the movant may discharge that burden by showing that if the case went to trial there would be no evidence to support the non-movant's position. Id. The evidence and the reasonable inferences therefrom must be viewed in the light most favorable to the non-moving party, Bidar v. AMFAC, Inc., 66 Haw. 547, 669 P.2d 154 (1983), and summary judgment will be denied where the movant's proof supplies evidence showing a genuine issue of material fact,see Dalke v. Upjohn Co., 555 F.2d 245 (9th Cir.1977), even if the opposing party has presented no opposing evidence. The general rule is that "[w]here the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if'no opposing evidentiary matter is presented." 10A C. Wright, A. Miller& M. Kane, Federal Practice & Procedure: Civil § 2739, at 524 (1983) (Wright & Miller) (quoting Advisory Committee on Civil Rules Note to the 1963 amendments to Rule 56) (emphasis in Wright & Miller). Wagatsuma v. Patch, 10 Haw. App. 547, 561-62, 879 P.2d 572, 581-82 (1994). IV. ARGUMENT A. Gomes has failed to demonstrate_the absence of a material fact issue to grant summaryjudgment The Declaration of Michael J. Matsukawa (in support of Gomes' motion for summary judgment), states that he, the declarant, has "personal knowledge of the facts stated herein,"but fails to state how that personal knowledge was obtained, thus fails to "show"personal knowledge. Declarant is not competent to testify to the matters stated therein, because he is unable to show the court that he has personal knowledge of the facts stated in his motion. Pursuant to Rule 56, of the Hawaii Rules of Civil Procedure, "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively at the affiant is competent to testify to the matters stated therein." Haw. R. Civ. P. 56 (e) (emphasis added). 4 "[T]he rule in Hawaii is that `[a]n affidavit consisting of inadmissible hearsay cannot serve as a basis for awarding or denying summary judgment.' " GE Capital Hawaii, Inc. v. Miguel, 92 Hawaii 236, 242, 990 P.2d 134, 140 (App.1999) (quoting Nakato v. Macharg, 89 Hawaii 79, 89, 969 P.2d 824, 834 (App.1998)) (some brackets added and some in original); Rodriguez v. Nishiki, 65 Haw. 430,434 n, 3, 653 P.2d 1145, 1148 n. 3 (1982); Cahill v. Hawaiian Paradise Park Corp., 56 Haw. 522, 539, 543 P.2d 1356, 1367 (1975) ("To the extent that the affidavits [dol not comply with [HRCP Rule 56(e),] they should be disregarded."). Hawaii Cmry. Fed. Credit Union v. Keka, 94 Haw. 213, 221, 11 P.3d 1, 9 (2000) The GE Capital court, in turn, relied on this court's decision in Pacific Concrete Federal Credit Union v. Kauanoe, 62 Haw. 334, 614 P.2d 936 (1980), in which we similarly reversed a summary judgment in favor of a creditor because the facts regarding the defendant-debtor's payment history, as set forth in an affidavit in support of the creditor's motion for summary judgment, were not properly before the court,, inasmuch as the affidavit merely referred to a ledger and certain checks and vouchers without attaching certified or sworn copies of them to the affidavit. We held that HRCP Rule 56(e), see supra note 5, required that facts set forth in ... affidavits [supporting motions for summary judgment] be admissible in evidence. All papers referred to in the affidavits must also be attached and swom to or certified. These requirements are mandatory.... [M]ere statements in affidavits do not authenticate exhibits referred to unless these exhibits are sworn to or certified. Pacific Concrete, 62 Haw. at 336-37, 614 P.2d at 938 (citation omitted). Pursuant to HRCP Rule 56(c), however, affidavits in support of a motion for summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Consequently, affidavits which state ultimate or conclusory facts or conclusions of law cannot be utilized in support of a motion for summary judgment. Id, 94 Haw. at 222, 11 P.3d at 10. This matter is taken on appeal by this Court, and not traveling on a pre-trial track, subject to trial. Motion for summary judgment appears inappropriate under these proceedings, and CBESS believes that Gomes' motion is made in bad faith, and for purpose of delay. 5 Rule 56, further states that Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt. Haw. R. Civ. P. 56 (g) Pursuant to Hawaii Revised Statue § 91-14, the purpose of this appeal is to provide judicial review of the (1) the Hearing Officer's Report dated April 7, 2014; and (2)the County of Hawaii Windward Planning Commission's decision entered May 1, 2014, upholding the Hearing Officer's report and recommendations to deny Special Permit Application (SPP12-000138); and (3)the County of Hawaii Windward Planning Commission's Findings of Fact, Conclusions of Law and Decision and Order, dated May 19, 2014. The issues pending before this Court have been framed by Appellant-Applicant in its opening brief filed December 24, 2014 (and incorporated herein by reference only), accordingly, this appeal shall be treated in the same manner as an appeal from the circuit court to the intermediate appellate court. Haw. Rev. Stat. § 91-14. Gomes' motion for summary judgment should be denied, because this is not the forum for summary judgment, the motion has no legal basis, the motion is unsupported by affidavits or depositions, and is incomplete because it requests this Court to consider facts outside the record which have not been presented in the form required by Rules 12(b)(1) and (6) and 56, of the Hawaii Rules of Civil Procedure. 6 B. Applicant-Appellant CBESS has Standing to Appeal Appeals from administrative agencies to a circuit court are governed by section 14 of the Hawaii Administrative Procedure Act (HRS s 91-14) and Rule 72 of the Hawaii Rules of Civil Procedure. Life of the Land v. Land Use Commission, 58 Haw. 292, 568 P.2d 1189 (1977). HRS s 91-14 evinces a purpose to grant broad Tights to judicial review as it permits "any person aggrieved" by a final decision or order of a government agency to seek review, provided he institutes proceedings in the circuit court within thirty days of service of the decision or order. The procedural rule implementing this statutory right is Rule 72, H.R.C.P., and it provides that a request for review may be instituted "by filing a notice of appeal in the circuit court" within the thirty-day period specified by law. The rule further requires prompt service of such notice upon each appellee, the designation of the record to be presented to the reviewing court, and the filing of a statement of the case and prayer for relief. By its terms, "appellee" includes "every governmental body or official (other than a court) whose decision, order or action is appealed from, and every other party to the proceedings." Jordan v. Hamada, 62 Haw, 444, 447-48, 616 P.2d 1368, 1371 (1980) (footnotes omitted). To have standing to appeal agency decision to Circuit Court, a person must be aggrieved by final order and decision by agency and have been involved in administrative proceeding that culminated in unfavorable decision. HRS § 91-14(a). United Public Workers, Local 646, AFSCME, AFL-CIO v. Brown, 1996, 80 Hawai'i 376, 910 P-2d 147. Standing to appeal an agency decision as an"aggrieved" person, for example, has not been conditioned upon formal intervention in the agency proceeding. In re Application Of Hawaiian Electric Co., Ltd., 56 Haw. 260, 535 P.2d 1102 (1975); East Diamond Head Association v. Zoning Board, 52 Haw. 518, 479 P-2d 796 (1971). . . Rule 72, also, has not been regarded as a road block to judicial review in any sense. Life of the Land v. Land Use Commission, supra. Jordan, 62 Haw. at 448-49, 616 P.2d at 1371-72 (footnote omitted). CBESS is funding the project and has a secured long-term, low-interest loan from the United States Department of Agriculture(USDA),' which loan will provide $8 million dollars to ` See,copy of the obligation form from USDA Rural Development,approving the Community Facility Direct Loan to Community Based Education Support Services-Friends of Connections,and a copy of the News Release announcing the CBES loan approval, attached, collectively,hereto as Exhibit A. 7 start implementing the project's initial phases (phase 1, 2 and 3). Future funding is expected from operational money the Applicant receives through rental income from the Kress Building, grants, and private donations. The Applicant currently has an active capital campaign to raise funds for the project, which includes annual in-house donations from the school's staff. It is also possible that capital improvement funds and/or facility funds may become available from the State. CBESS provides this information in its Petition for Special Permit Application, in July 2012. ROA p. 33 During the Public Hearing on Special Permit No. 12-000138, held on October 21, 2013, before Hearings Officer Sandra Song, Joan Derbyshire ("JD"), CBESS Board President, testified under direct examination by your undersigned counsel. Below are excerpts of Ms. Derbyshire's testimony in support of CBESS's vested interest in this matter: Hong: Okay. How has your involvement with the school grown? JD: I had been involved on the board level for the school itself when we first started back in 2001 in the Kress building, and I have been on the board of CBESS for five years. Hong: And describe the role of CBESS in terms of school operations. JD: CBESS is the nonprofit arm of-- pretty much CBESS was created to assist and help for the school itself. Hong: Okay. In terms of the new Connections property up in Kaumana, you are familiar with the proposal to develop that property? JD: Yes. We started that process in 2007. Hong: Okay. And did CBESS approve that proposal? JD: Yes. Hong: And what is CBESS's role in the special permit application? JD: We are actually co-applicants with the school in the special needs application. 8 Hong: And in terms of CBESS, what role does it play in the process, the special permit application process? JD: Well, we are one of the co-applicants. Once we end up with -- once we were -- would get a special use -- or special permit, we would be the administrators of the project. Hong: Okay. Let's talk about the project itself. This is a phased project; it is supposed to be constructed in phases, right? JD: Yes. Hong: And in terms of funding for the phases, could you tell us about that? JD: Well, the funding is coming through many different sources: Donations, grants, loans, new market tax credits. Initially, we have applied and received a U.S.D.A. loan for S million, and that will get us started on the first phase. Hong: Could you describe for us the level of CBESS's commitment to the new campus in total? JD: Well, from the very beginning, we have always envisioned one campus. Right now, we are on two campuses, and we are all pretty committed to trying to put together a one-campus school. Hong: After the S million that you had talked about earlier to fund the first phase, how do you intend to pursue funding for the remainder of the phases? JD: Well, donations, grants. Whatever comes up, we apply for. We don't get the same level of support from the State that other schools do, so we have to go out and fundraise and look for other sources of funding. Hong: And is the board unified on its commitment to the entire project in securing funding for the future phases? JD: Yes. ROA p. 2713-2715, Transcript of Proceedings held October 21,2013. CBESS is a domestic nonprofit corporation organized under the laws of the State of Hawaii.2 The corporation's intended purpose is to: (1) to provide fiscal support to the '`See, Business information of CBESS downloaded from the website of the State of Hawaii, Department of Commerce and Consumer Affairs, http://hbe.ehawaii.gov/documents,a copy of which is attached hereto as Exhibit B. 9 Connections Public Charter School (Connections); and (2) to operate exclusively for charitable, scientific, literary, religious, or educational purposes. CBESS has a vested interest in the subject matter of this appeal, and is aggrieved within the meaning of the statute for judicial review. Appellant was granted standing to participate in the Contested Case, actively participated in the Contested Case and received a ruling that is substantially to the detriment of CBESS's respective cognizable legal interest in the outcome of the Contested Case. King v. Buttolph, 30F.2d 769 (9" Cir.1929). Alejado v. City & County of Honolulu, 1998, 971 P.2d 310, 89 Hawaii 221, amended on denial of reconsideration. To determine whether a party has a sufficient personal stake in the outcome of a case, Hawaii uses a three-part test. Under this test, the plaintiff or injured party must show that: "(1) he or she has suffered an actual or threatened injury as a result of the defendant's wrongful conduct, (2) the injury is fairly traceable to the defendant's actions, and (3) a favorable decision would likely provide relief for [the] plaintiffs injury."Bush v. Watson, 81 Hawaii 474, 479, 918 P.2d 1130, 1135 (1996) (citing Pele Defense Fund v. Paty, 73 Haw. 578, 594, 837 P.2d 1247, 1258 (1992), cert. denied, 507 U.S. 918, 113 S.Ct. 1277, 122 L.Ed.2d 671 (1993)); accord Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 2135-37, 119 L.Ed.2d 351 (1992) (discussing standing elements in federal cases) (emphasis added). In Cnty. of Kauai ex rel. Nahazawa v. Baptiste, 115 Haw. 15, 165 P.3d 916 (2007), as corrected(Aug. 7, 2007), the Court stated, Standing is that aspect of justiciability focusing on the party seeking a forum rather than on the issues he wants adjudicated. And the crucial inquiry in its determination is whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of the court's jurisdiction and to justify the exercise of the court's remedial powers on his behalf. Life of the Land v. Land Use Comm`n, 63 Haw. 166, 172, 623 P.2d 431, 43 8 (1981) (internal quotation marks,brackets, emphasis, and citation omitted). 10 In deciding whether the plaintiff has the requisite interest in the outcome of the litigation, [this court] employ[s] a three-part test: (1) has the plaintiff suffered an actual or threatened injury as a result of the defendant's wrongful conduct; (2) is the injury fairly traceable to the defendant's actions; and(3) would a favorable decision likely provide relief for plaintiffs injury. Id. 115 Haw. at 26, 165 P.3d at 927 (2007) Despite Gomes' argument, CBESS invoked the appellate jurisdiction of the Circuit Court, timely filed its notice of appeal, which is the method prescribed for taking the appeal pursuant to HRS § 91-14 and Rule 72 of the Hawaii Rules of Civil Procedure. Appellant CBESS has standing to appeal, pursuant to HRS § 91-14, which grants broad rights to judicial review as it permits any person aggrieved by a final decision or order of a government agency to seek review, provided he institutes proceedings in the Circuit Court within thirty days of service of the decision or order. As the Hawaii Supreme Court held in Mahuiku v. Planning Commission, 65 Haw. 506 (1982): "One whose legitimate interest is in fact injured by illegal action of an administrative agency or officer should have standing to appeal because justice requires that such party should have a chance to show that the action hurts his interest is illegal." In County of Kaua`i, the court stated, "`standing should not serve as a barrier to consideration of cases of great public importance' nor its reliance on the `procedural standing doctrine' discussed in Sierra Club v. Hawaii Tourism Auth., 100 Hawaii 242, 59 P.3d 877 (2002)." Cnty. ofKaua'i ex rel. Nakazawa v. Baptiste, 115 Haw. 15, 36 n.21, 165 P.3d 916, 937 (2007), as corrected (Aug. 7, 2007). CBESS has a legitimate interest, as fiscal supporter of Connections, and as co-applicant in these proceedings. CBESS risks losing the grants,already approved for the intended purpose of funding the project. As Ms. Derbyshire stated in her testimony, "We don't get the same level 11 of support frorn the State that other schools do, so we have to go out and fundraise and look for other sources of funding," and the board of CBESS is unified on its commitment to the entire project in securing the funding for the future phases. ROA p. 2713-2715, Transcript of Proceedings held October 21, 2013. Each applicant, Connections and CBESS, both having a vested interest in the special permit, cannot proceed without the other. V. CONCLUSION Based on the forgoing, CBESS respectfully requests this Court deny Gomes'Motion filed on December 11, 2014. CBESS further requests such other and further relief as the Court deems just and equitable. DATED: Hilo, Hawaii, January 30, 2015. 4ET) "HONG Attorney for Applicant-Appell t COMMUNITY BASED EDUCATION SUPPORT SERVICES 12 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, vs. DECLARATION OF TED H. S. HONG WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appel lees, DECLARATION OF TED H. S. HONG 1, TED H. S. HONG, hereby declare under penalty of perjury that the following is true and correct to the best of my knowledge: 1. I am an attorney licensed to practice in the State of Hawaii, and I am the attorney of record for the Applicant-Appellant Community Based Education Support Services (CBESS). 2. I make this Declaration in support of the forgoing memorandum in opposition to Intervenor-Appellee Jeffrey K. Gomes' Motion(1)To Dismiss Notice of Appeal Taken by Applicant-Appellant Community Based Education Support Services(Filed June 9, 2014)and (2) For Summary Judgment on Said Notice of Appeal; filed on December 11,2014. 1 3. Appellant timely filed its appeal Notice of Appeal to Circuit Court; Statement of the Case; Exhibits "1"-"2"; Designation of Contents of Record on Appeal; Order for Certification and Transmission of Record on Appeal on June 9, 2014. 4. The Record on Appeal was transmitted to the Third Circuit Court on August 25, 2014. 5. Appellant timely filed its opening brief with this court on December 24, 2014. 6. Attached hereto as Exhibit A, are true and correct copies consisting of email correspondence received by my office from Sandy Kelley, Connections PCS, transmitting a copy of the obligation form approving a Community Facility Direct Loan from USDA Rural Development for Borrower, Community Based Education Support Services-Friends of Connections and a copy of the News Release announcing the CBESS loan approval. See, the Declaration of Christine Periatt, submitted herewith. 7. Attached hereto as Exhibit B, is true and correct copy of Community Based Education Support Services Friends of* Connections' Business Information, downloaded from the State of Hawaii, Department of Commerce and Consumer Affairs' website lhtt salhbe.ehawaii. kov/documents/search.html), which shows the purpose of CBESS. 8. I declare under penalty of perjury under the laws of the State of Hawaii that the foregoing is true and correct to the best of my knowledge and belief. DATED: Hilo, Hawaii, January 29, 2015. W't, )/,��/) / ED H. S. HON d- 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, vs. DECLARATION OF CHRISTINE PERIATT WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees, DECLARATION OF CHRISTINE PERIATT I, CHRISTINE PERIATT, declare under penalty of law that the following is true and correct: 1. I am a paralegal and assisting Attorney Ted H. S. Hong with the above-captioned matter. 2. I submit this Declaration based upon my personal knowledge of the statements contained in this Declaration. 3. Attached as Exhibit A, are true and correct copies of email correspondence I received from Sandy Kelley, at Connections PCS, transmitting a copy of the obligation form approving a Community Facility Direct Loan from USDA Rural Development to Borrower, 1 Community Based Education Support Services-Friends of Connections; and a copy of the News Release announcing the CBESS loan approval. The emails show the documents being transmitted by Sandy Kelley originated from Dora Garcia, the Loan Technician at the Community Facilities Rural Development, U.S. Department of Agriculture. 4. Attached as Exhibit B, is a true and correct copy of Community Based Education Support Services—Friends of'* Connections' Business Information, I personally downloaded from the State of Hawaii, Department of Commerce and Consumer Affairs' website https://hbe.ehawaii gov/documents/search.html), which shows the purpose of CBESS. S. I declare under penalty of perjury under the laws of the State of Hawaii that the foregoing is true and correct to the best of my knowledge and belief. DATED: Hilo, Hawaii, January 29, 201 CHRISTINE PER ATT 2 Law office of Ted Hong Mail -Fwd: LAPAS https://mail.google.corol ail/u/0/?ui=2&ik=a6ab8f639f&view=pt&searc... Gs i^„f Christine Periatt<christine@tedhonglaw.com> Fwd: LAPAS 1 message Connections PCS<cpcs@hawaii,rr.com> Thu, Jan 29,2015 at 8:52 AM To: Christine Periatt<christine@tedhonglaw.com> Christine attached is the obligation form that was sent to the leg to obligate the funds. I contacted Dora at USDA.there is no formal signature. She is looking to see if there was a response to this document. No note because we cannot close the loan until we submited plans etc. The funds are obligated, from what I understand as long as it takes. Sandy -------- Forwarded Message-------- Sutsject:IL4PAS Date:Thu, 29 Jan 2015 18:24:54 +0000 From.-Garcia, Dora - RD, Hilo, HI <dora.garcia@hi.usda.gov> To:cpcs@hawaii,rr.com <cpcs@hawaii.rr.com> Hope the attached is sufficient for your purposes. If not, don't hesitate to contact me. Thank you, Dora Garcia Loan Technician I Community Facilities Rural Development U.S. Department of Agriculture Phone: (808) 933-8309 Facsimile: (855) 878-2460 www.rurdev.usda.ciov "Committed to the future of rural communities” Stay Connected with USDA: USD in "USDA WjLA {L.a,7 '7lickr ' "USDA is an equal opportunity provider and employer" EXHIBIT A 1 of 6 1 of 2 1/29/2015 11:00 AM Law office of Tea Hong Mail - Fwd. LAPAS https-.//mail.googic.co- '-sail/u/0/?ui=2&ik=a6ab8f639f&view=pt&searc.. This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. CBESS LAPAS.doc 205K EXHIBIT A 2 of 6 2 of 2 1/29/2015 11:00 AM USDA Field Contact: Alton M. Kimura Rural Phone: (808) 933-8317 Development Obligation Date: 7/6/2012 PROJECT INFORMATION Rural Development has approved a loan of 58,000,000 Program: Community Facility Direct Loan State: Hawaii County: Hawaii Congressman, District: Hirono, District 2 Senators: Inouye, Akaka Borrower: COMMUNITY BASED EDUCATION SUPPORT SERVICES- FRIENDS OF CONNECTIONS Borrower Contact: John Thatcher Mailing Address: 174 Kamehameha Avenue Hilo, HI 96720 Email Address: ighnthatcher(cThawaii.rr.com Telephone: (808) 895-6856 Project Description: Rural Development funds will be used for development of a 70-acre parcel and construction of a school campus including the elementary, intermediate, and high school programs and supporting services; an agricultural program, a small dormitory facility, and a pre-Kindergarten program. Connections Public Charter School was chartered by the State in 2000. The need and desire for this unique charter school is evidenced by an enrollment waiting list and is further illustrated by the broad-based community representation the operation of the school. Loan Terms: 40 years at 3.375 percent Previous Funding: None Other Funding: NIA Total Project Cost: $8,000,000 EXHIBIT A 3 of 6 Law office of Ted Hong Mail- Fwd:CBESS https://mail,google.cor 'ail/u/0/?ui=2&ik=a6ab8f639f&view-pt&searc... Christine Periatt<christine@tedhonglaw.com> .1131,ik Fwd: CBESS 1 message Connections PCS <cpcs@hawaii,rr.com> Thu,Jan 29, 2015 at 1106 PM To: Christine Periatt<christine@tedhonglaw.com> Christine Dora also found this news release Sandy -------- Forwarded Message -------- Subject:CBESS Date:Thu, 29 Jan 2095 21:1$:04 +0000 From:Garcia, Dora- RD, Hilo, HI <dora.garda@hi.usda,gov> To:cpcs@hawaii,rr,com cpcs@hawaii rr.com> Hi Sandy: Found the attached News Release announcing the CBESS loan approval. Let me know if this helps. Thank you, Dora Garcia Loan Technician I Community Facilities Rural Development U.S. Department of Agriculture Phone: (808) 933-8309 Facsimile: (855) 878-2460 www.rurdev.usda.gov "Committed to the future of rural communities" Stay Connected with USDA: USD �INC�i;� ?Istkr "USDA is an equal opportunity provider and employer" EXHIBIT A 4 of 6 1 of 2 1/29/2015 3:51 PM Law office of Ted Hong Mail -Fwd: CBESS https://mail.google.corr' -iif/u/0/?ui=2&ik=a6ab8f639f&view=pt&searc... This electronic message contains information generated by the USDA solely for the intended recipients.Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. SECOND DRAFT NEWS RELEASE Community Connections.docx 20K EXHIBIT A 5 of 6 2 of 2 1/29/2015 3:51 PM USDA ..NEWS RELEASE United States Department of Agriculture•Rural Development•Hawaii State Office Room 311,Federal Building,154 Waianuerwe Avenue,Hilo,Hawaii 96720 Phone:(BOB)933-8380•Fax:(808)933-8327•TDD:(808)933-8321•Web:httPJ/WWW.rurdev.usda.00v Media Contact: Chris J. Kanazawa State Director (808)933-8302 Rocky Chenelle, Community Programs Specialist (808)933-8333 Rural Development approves $8,000,000 Community Facilities Direct Loan to Connections Public Charter School HILO, August 9, 2012— USDA Rural Development State Director Chris Kanazawa announced today a $8,000,000 Community Facilities Program (CF) Direct Loan to Community Based Education Support Services-Friends of Connections School, for development of a 70 acre parcel and construction of a new school campus. This loan will make possible the construction of a facility that will offer elementary, intermediate, and high school programs and supporting services. The new facilities will consolidate Connections Public Charter School's existing academic programs at a single location plus provide land area to expand its academic offerings. The school, chartered by the State in 2000, opened doors with 184 students and currently houses approximately 360 students. The need and desire for this unique charter school is evidenced by an enrollment waiting list and by the broad-based community representation. "At USDA we understand the important role education plays in improving quality of life," said Kanazawa. "Our CF loan programs aim to help eligible schools in rural areas to construct and/or to expand educational facilities to provide the student population they serve with quality education." "This project is an example of the many ways that USDA is helping revitalize rural economies by creating opportunities for educational opportunity and for a better future". USDA Rural Development's mission is to deliver programs in a way that will support economic opportunity and improve the quality of life of rural residents. As a venture capital entity, Rural Development provides equity and technical assistance to finance and foster growth in homeownership, business development, and critical community and technology infrastructure. USDA is an equal opportunity provider, employer and lender. To f le a complaint of discrimination, write: USDA, Director, Office of Civil Rights, 1400 Independence Avenue, SW, Washington, DC 20250-9410 or call(800) 795- 3272(voice), or(202) 720-6382(TDD). EXHIBIT A 6 of 6 RCCA State of Hawaii Downloaded on December 12,2014. The information provided below is not a certification of good standing and does not constitute any other certification by the State. Website URL:http://hbe.ehawaii.gov/documents Business Information MASTER NAME COMMUNITY BASED EDUCATION SUPPORT SERVICES - FRIENDS OF` CONNECTIONS BUSINESS TYPE Domestic Nonprofit Corporation FILE NUMBER 122312 D2 STATUS Active PURPOSE 1. TO PROVIDE FISCAL SUPPORT TO THE CONNECTIONS PUBLIC CHARTER SCHOOL; AND 2. TO OPERATE EXCLUSIVELY FOR CHARITABLE, SCIENTIFIC, LITERARY, RELIGIOUS, OR EDUCATIONAL PURPOSES; PLACE Hawaii UNITED STATES INCORPORATED INCORPORATION May 15, 2001 DATE MAILING ADDRESS 174 KAMEHAMEHA AVE HILO, Hawaii 96720-2834 UNITED STATES TERM PER AGENT NAME HEATHER MCDANIEL AGENT ADDRESS 174 KAMEHAM EHA AVE HILO, Hawaii 96720-2834 UNITED STATES Annual Filings FILING YEAR DATE RECEIVED STATUS 2014 Apr 4, 2014 Processed 2013 Apr 8, 2013 Processed 2012 Apr 4, 2012 Processed 2011 Apr 18, 2011 Processed 2010 Jul 13, 2010 Processed 2009 Jul 31, 2009 Processed 2008 May 13, 2008 Processed 2007 May 30, 2007 Processed 2006 Jun 9, 2006 Processed 2005 Jun 20, 2005 Processed 2004 Jun 21, 2004 Processed 2003 Sep 5, 2003 Processed 2002 Not Required 2001 Mar 19, 2002 Processed Officers NAME OFFICE DATE EXHIBIT B 1 of 2 MCDANIEL,HEATHER PID App 1, 2014 LLOYD,WILLIAM V/D Apr 1, 2008 JACKSON,LAWRENCE S/D Dec 16, 2010 MELLO, SNOOKIE T/D Apr 1, 2011 EXHIBIT B 2 of 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, vs. CERTIFICATE OF SERVICE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees, CERTIFICATE OF SERVICE I hereby certify that the foregoing documents were duly served upon the following parties, by the means indicated below: MOLLY A. STEBBINS, ESQ. By Hand Delivery Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, HI 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and APPELLEE SANDRA SONG 1 MICHAEL J. MATSUKAWA, ESQ. By US First Class Mail 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, HI 96740 Attorney for Appellee JEFFREY GOMES CARTER K. SUI, ESQ. By US First Class Mail Deputy Attorney General 235 South Beretania Street, Room 304 Honolulu, HI 96813 Attorney for Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL Dated: Hilo, Hawaii, January 30, 2015. ED FrS. HON Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 RUSSEELA. SUZUKI 2084 n"" 5 Pig I: 43 Attorney General State of Hawaii HOLLY T. SHIKADA 4017 f r CARTER K. SIU 7313 Deputy Attorney General 235 South Beretania Street, Room304 Honolulu, Hawaii 96813 Telephone No. 808.586.1255 Carter.K..Siu(hawaii.U Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES; CONNECTIONS ) (AGENCY APPEAL) NEW CENTURY PUBLIC CHARTER ) SCHOOL; ) ORDER DENYING INTERVENOR- Applicants-Appellants ) APPELLEE JEFFREY K. GOMES' MOTION(1) TO STRIKE NOTICE OF VS. ) APPEAL AND JOINDER FILED BY } CONNECTIONS NEW CENTURY PUBLIC WINDWARD PLANNING COMMISSION, ) CHARTER SCHOOL (FILED JUNE 19, COUNTY OF HAWAII; ) 2014) (2)TO DISMISS SAID NOTICE OF } APPEAL AND (3)FOR SUMMARY Appellee, } JUDGMENT AGAINST CONNECTIONS NEW CENTURY PUBLIC CHARTER And ) SCHOOL ON ITS NOTICE OF APPEAL (FILED JUNE 19, 2014),FILED JEFFREY GOMES, Intervenor, ) DECEMBER 1, 2014, AND TO AMEND CAPTION Intervenor-Appellee ) HEARING Date: January 6, 2015 Time: 10:00 a.m. } Judge: The Honorable Ronald lbarra ORDER DENYING INTERVENOR-APPELLEE JEFFREY K. GOMES' MOTION (1) TO STRIKE NOTICE OF APPEAL AND JOINDER FILED BY CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL (FILED JUNE 19, 2014) (2) TO DISNIISS SAID NOTICE OF APPEAL AND (3) FOR SUMMARY JUDGMENT AGAINST CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL ON ITS NOTICE OF APPEAL (FILED JUNE 19,2014), FILED DECEMBER 1, 2014,AND TO AMEND CAPTION Intervenor-Appellee JEFFREY K. GOMES' Motion (1) To Strike Notice of Appeal and Joinder Filed by Connections New Century Public Charter School (Filed June 19, 2014) (2) To Dismiss Said Notice of Appeal and (3)For Summary Judgment Against Connections New Century Public Charter School on its Notice of Appeal (Filed June 19, 2014), filed December 1, 2014, came on for hearing on January 6,2015, at 10:00 a.m. before the Honorable Ronald Ibarra, Judge of the above-entitled Court, with Michael J. Matsukawa, Esq. appearing on behalf of intervenor-Appellee Jeffrey K. Gomes, Danny B. Patel, Esq., appearing on behalf of Appellee Windward Planning Commission, County of Hawaii, Ted H.S. Hong, Esq. appearing telephonically on behalf of Applicant-Appellant Community Based Education Support Services, and Deputy Attorney General Carter K. Siu, Esq. appearing on behalf of Applicant-Appellant Connections New Century Public Charter School. Having considered the Motion, all memoranda and exhibits submitted by the parties in connection therewith, along with the arguments of counsel at the hearing, and being otherwise fully advised in the premises, and good cause appearing therefore, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the Motion is DENIED. 1 1 1 1 1 1 IT IS HEREBY FURTHER ORDERED that the case caption be amended to add Connections New Century Public Charter School as an Applicant-Appellant and to remove Sandra Song, Esq., the Department of Planning, County of Hawaii, Sidney Fuke, and Terence Yoshioka as Appellees. DATED: Kona, Hawai'i, f C I JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: MICHAEL J. MATSUKAWA, ESQ. Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES DANNY B. PAqKL,2AQ. Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII ED H. HONG, 9ST. Attorney for Applicant-Appel Vant COMMUNITY BASED EDUCATION SUPPORT SERVICES Community Based Education Suqpport Services,et a1.v.Windward Planning Commission,County of Hawaii,et al., Civil No. 14-1-0223 (Agency Appeal),Third Circuit Court,ORDER DENYING INTERVENOR-APPELLEE JEFFREY K.GOMES'MOTION(1)TO STRIKE NOTICE OF APPEAL AND JOINDER FILED BY CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL(FILED JUNE 19,2014)(2)TO DISMISS SAID NOTICE OF APPEAL AND(3)FOR SUMMARY JUDGMENT AGAINST CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL ON ITS NOTICE OF APPEAL(FILED JUNE 19,20I4),FILED DECEMBER 1,2014,AND TO AMEND CAPTION l� MICHAEL J. MATSUKAWA, 1885-0 Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Telephone No. : (808) 329-1385 Attorney for Intervenor-Appellee JEFFREY K. GOMES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO . 14-1-0223 SUPPORT SERVICES (CBESS) and ) (Agency Appeal) CONNECTIONS NEW CENTURY PUBLIC ) CHARTER SCHOOL, ) INTERVENOR-APPELLEE JEFFREY K. Applicants-Appellants, ) GOMES' REPLY TO APPELLANT COMMUNITY BASED EDUCATION VS . ) SUPPORT SERVICES' MEMORANDUM IN OPPOSITION TO INTERVENOR- WINDWARD PLANNING COMMISSION, ) APPELLEE JEFFREY K. GOMES' COUNTY OF HAWAII ; DEPARTMENT OF ) MOTION (1) TO DISMISS NOTICE PLANNING, COUNTY OF HAWAII, ) OF APPEAL TAKEN BY APPLICANT- } APPELLANT COMMUNITY BASED Appellees, } EDUCATION SUPPORT SERVICES (FILED JUNE 9, 2014) AND (2) and ) FOR SUMMARY JUDGMENT ON SAID NOTICE OF APPEAL, FILED ON JEFFREY GOMES, ) DECEMBER 11, 2014 , FILED JANUARY 30, 2015 ; APPENDICES Intervenor-Appellee. ) "6" TO 1110" ; CERTIFICATE OF SERVICE ) } HEARING: DATE: FEBRUARY 10, 2015 } TIME : 8 : 00 A.M. o } JUDGE : HON. RONALD4 I BARRZ 020515.5\]-gomes\rep1y.cbe LP=r- 'm INTERVENOR-APPELLEE JEFFREY K. GOMES' REPL�5�' O� s� TO APPELLANT COMMUNITY BASED EDUCATION SUPPO-SE?' SERVICES' MEMORANDUM IN OPPOSITION TO INTERVE n Z APPELLEE JEFFREY K. GOMES' MOTION (1) TO DISH gQ �• NOTICE OF APPEAL TAKEN BY APPLICANT-APPELLA91!�m COMMUNITY BASED EDUCATION SUPPORT SERVICES (FILED EC JUNE 9, 2014) AND (2) FOR SUMMARY JUDGMENT ON SAID NOTICE OF APPEAL, FILED ON DECEMBER 11, 2014 , FILED JANUARY 30, 2015 The Intervenor-Appellee Jeffrey K. Gomes replies to the opposition of the Applicant-Appellant Community Based Education Support Services ( "CBESS" ) . It is important for this Court to note that the Applicant-Appellant CBESS is NOT the charter school . The school, not CBESS, is the entity that is chartered by the State of Hawaii and is known as Connections New Century Public Charter School or "CONNECTIONS . " The school , not CBESS, holds General Lease No. 5-6209 that is the subject of the Special Permit application. The school is currently a party-appellant in this agency appeal . In its objections, the Applicant-Appellant CBESS overlooks some basic legal principles . First, the Rules of Civil Procedure apply in an agency appeal . Rule 81 (e) , HRCP. This includes Rule 56 for summary judgment . ' Second, this Court may review the official administrative record that the Applicant- Appellant CBESS created below in ruling on the motion for summary judgment . Third, in deciding the question of judicial standing, this Court is confined to reviewing the facts contained in the administrative record. AlohaCare v. Ito, 126 Haw. 326, 343 , 271 P. 3d 621, 628 (2012) . Fourth, the Applicant-Appellant CBESS has attempted to submit two non-record documents (Exhibits "A" and "B" attached to its opposition memorandum) that are not contained in 1 See Opposition Memorandum, Pages 4-5 . This Court already applied Rule 56 in this agency appeal on the motion filed by Appellees Terrence Yoshioka and Sidney Fuke on July 28 , 2014 and this Court entered summary judgment in their favor on September 22, 2014 . 2 the administrative record' and should therefore be stricken. Fifth, just because the Applicant-Appellant CBESS filed an agency appeal pursuant to Section 91-14 (a) , HRS, does not mean that it is per se automatically "aggrieved" and has judicial standing to pursue this agency appeal .' AlohaCare v. Ito, supra, 126 Haw. at 342 , 271 P. 3d at 627 . Sixth, the Applicant-Appellant CBESS' membership is unknown and its relationship to the charter school CONNECTIONS and the Special Permit application is not clear except for the testimony of the school' s principal (John Thatcher) and a board member (Joan Derbyshire) .' What is known from the agency record is that : 1 . Community Based Education Support Services (CBESS) is named as a co-applicant for the Special Permit together with Connections New Century Public Charter School . (Record on Appeal 15, Appendix "8" attached) 2 . According to CONNECTIONS' principal, the Applicant- Appellant CBESS is "affiliated" with the charter school, CONNEC- TIONS, in that CBESS helps the charter school with fund raising. (Record on Appeal 2635, Appendix 116" attached) However, ' Further, the papers contained in Exhibit "A" are not properly authenticated or certified by its custodian, the United States Department of Agriculture . 3 See opposition Memorandum, Pages 6 and 11 . Their testimony appears in the agency record at Record on Appeal 2625, 2635, 2712 to 2715, attached as Appendices "6" and l,7 „ 3 CONNECTIONS will own and operate the charter school, not CRESS . 3 . The State of Hawaii leased the subject property to CONNECTIONS under General Lease No. 5-6209, not to CBESS . (Record on Appeal 930 and 1937, Appendices 11911 and 1110" attached) 4 . According to CBESS' board member Joan Derbyshire, "CBESS is the nonprofit arm of - pretty much CBESS was created to assist and help for the school itself" (Record on Appeal 2713-2714, Appendix 11711 attached) (emphasis added) and that CBESS acquired a loan through the United States Department of Agriculture (USDA) for $8 million. (Id. ) 5 . The terms of the USDA loan are unknown. 6 . Without the Special Permit, CONNECTIONS cannot build the proposed school facilities . 7 . There is no evidence in the agency record as to the effect that the Special Permit denial will have, if any, on the USDA loan. A. SIMPLY BECAUSE THE APPLICANT-APPELLANT CBESS FILED AN AGENCY APPEAL DOES NOT MEAN THAT IT HAS JUDICIAL STANDING. The Intervenor Gomes thoroughly briefed this point in his Memorandum previously filed on December 11, 2014 , Pages 7 to 12 . Agencies and courts have different standards for determining who may participate in their respective forums and to obtain relief therein. For example, under Section 91-1 (3) , HRS (Appendix 11111 filed December 11, 2014) and Planning Commission Rule 1-3 (m) (Appendix 112" filed December 11, 2014) , a person who is "NAMED" in the subject application is treated as an "agency party" in the 4 Appellee windward Planning Commission' s agency proceeding_ In addition, others may seek to intervene and be a party if he, she or it has a proper interest in the subject matter of the agency proceeding that is distinguishable from that of the general public . Planning Commission Rule 4-6 (b) . (Appendix "2" filed December 11, 2014) In a judicial forum, however, the test is much more stringent _ See AlohaCare v. Ito, supra; Kilakila to Haleakala v. Board of Land and Natural Resources, 131 Haw. 193 , 204 , 317 P . 3d 27, 38 (2013 ) . A person who was an "agency party" in the agency proceeding does not automatically gain judicial standing. For example, in Ka Pa 'akai o Ka'aina v. Land Use Commission, 94 Haw. 31, 42-44, 7 P . 3d 1068 , 1079-1080 (2000) , the court still required the appealing "agency parties" to prove their standing in the circuit court, even though the agency had allowed the "agency parties" to participate in the contested case . In other words, one might be an "agency party" with a sufficient interest to partici- pate in the agency proceeding, but may lack a sufficient interest to bring a civil action in the circuit court . ' Thus, simply because it was an "agency party" below and now disagrees with the 5 In Sierra Club v. office of Planning, 109 Haw. 411, 414, n.2, 126 P. 3d 1098 , 2001, n.2 (2006) , the court did not provide an extensive discussion of an "agency party' s" standing to pursue an agency appeal in the circuit court under Section 91-14, HRS . In that case, however, the state Office of Planning was by statute, Section 205-4 (e) (1) , HRS, a mandatory party to every district boundary amendment proceeding and "every case . " " [T] he office of state planning . . . shall in every case appear as [a] part [y] (Appendix "411 ) 5 Appellee Windward Planning Commission' s denial decision does not mean that the Applicant-Appellant CBESS has judicial standing to invoke this Court ' s jurisdiction in this agency appeal . Cf. Keahole Defense Coalition v. Department: of Land and Natural Resources, 110 Haw. 419, 422-423 , 134 P. 3d 585 , 588-589 (2006) (person with economic interest in permit application lacks standing to pursue agency appeal) . B. OTHER JURISDICTIONS HAVE DENIED STANDING TO PERSONS WHO DO NOT OWN THE LAND IN QUES'T'ION. In Concerned Citizens v. Watertown Planning and Zoning Commission, 2007 Conn. Super. LEXIS 2946 (2007) , aff1d 118 Conn. App. 337 (2009) , a nonprofit incorporated citizens group appealed the denial of its application to amend the local zoning code' s provisions relating to special permits . The appeal was an administrative appeal to the superior court . The superior court held that the group had no standing even though it was an unsuccessful applicant . The plaintiff first attempts to counter this argument with the following statement: nit is well established that an unsuccessful applicant before a zoning board qualifies as a classically aggrieved party, " because it has a personal and legal interest in the decision that is distinguishable from the general interest of the public . The only case cited in support of that proposition is Winchester Woods Assoc. v. Planning and Zoning Comm1n, 219 Conn. 303 , 308 , 592 A.2d 953 (1991) . It is true that in Winchester Woods the plaintiff was the unsuccessful applicant for resubdivision approval . But, the plaintiff was also the owner of the property who had been denied resubdivision approval . Therefore, the plaintiff had a personal and legal interest in the decision by virtue of its ownership of the property which was the subject of the application. It is the ownership of an interest in a specific piece of land affected by the decision which 6 is distinguishable from the general interest of the public . The plaintiff has not cited any cases in which a non- landowning unsuccessful petitioner for a town-wide amendment to the regulations has been able to demonstrate aggrievement based simply upon fact that it filed a petition to amend the regulations . In fact, in a case involving strikingly similar facts, the Supreme Court has held the opposite. Fletcher v. Planning & Zoning Commission, 158 Conn. 497, 264 A. 2d 566 (1969) . (emphasis added) There is also no evidence that CBESS has "derivative standing" through its members or as a representative of the charter school CONNECTIONS . See Friends of Tilden Park, Inc. v. District of Columbia, 806 A. 2d 1201, 1207-1210 (2002 .6 Further, the Applicant-Appellant CBESS is trying to vindicate its "value preference, " i .e . , the preference for educating the public by way of charter schools rather than by way of traditional public schools . This fact, a value preference, does not give one judicial standing. See Sierra Club v. Morton, 405 U. S . 727, 740, 92 S . Ct . 1361 (1972) , cited with approval in Hawaii -Is Thousand Friends v. Anderson, 70 Haw. 276, 283, 768 P. 2d 1293, 1299 (1989) (injury must be shown) . C. THE APPLICANT-APPELLANT CBESS HAS NOT SATISFIED THE TEST FOR JUDICIAL STANDING. AlohaCare v. Ito, supra, 126 Haw. at 342-343 , 271 P. 3d at 637, restates the test for judicial standing. Under this three- prong test, as shown by the agency record, the complaining party 6 Compare with Ka Palakai o Kalaina v. Land Use Commission, 94 Haw. 31, 43 , 7 P. 3d 1068 , 1080 (2000) (representative standing) 7 must prove that : (1) it has suffered an actual or a threatened injury as a result of the Appellee Windward Planning Commission' s denial decision; (2) the injury is fairly traceable to the Commission' s denial decision; (3) a favorable ruling by this Court will likely give the complaining party relief for the injury sustained. As to the first part of the three-prong test, the Applicant-Appellant CRESS contends that the agency record, mainly the testimony of Joan Derbyshire (Exhibit 117" ) , demonstrates that CRESS has a "vested interest" that the Appellee Windward Planning Commission injured by its decision to deny the Special Permit application. However, the agency record does not show the exact "injury" that has occurred, actual or threatened. On the other hand, the "injury" arising out of the Commission' s denial decision has obviously been sustained by the charter school, CONNECTIONS, and by the lessee of General Lease No. 5-6209, CONNECTIONS . The Applicant-Appellant CBESS states at Page 11 of its Opposition Memorandum that the Commission' s denial decision puts its loan with the U. S . Department of Agriculture "at risk, " but there is no evidence in the agency record to support that assertion. The loan terms and other relevant facts are not set forth in the agency record and this Court has no way of determining whether such a "risk" or potential "loss" exists or how CBESS has 8 been "injured. " C. THE CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL IS AN APPELLANT WHO CAN VINDICATE THE SCHOOL' S INTEREST IN GENERAL LEASE S-6209 AND THE SPECIAL PERMIT IN QUESTION AND WHO CAN ALSO ADVOCATE FOR CBESS' PREFERENCE FOR NON-TRADITIONAL PUBLIC EDUCATION AVENUES AT THE SAME TIME. This Court has previously ruled that CONNECTIONS had properly filed its own agency appeal from the Appellee Windward Planning Commission' s denial decision and is currently a party- appellant in this agency appeal . As one of the two co-applicants below, CONNECTIONS will thus be able to pursue its own agency appeal and can vindicate its own interest as the "injured" landowner and disappointed Special Permit applicant . The charter school CONNECTIONS does not need the Applicant-Appellant CBESS to argue the school' s cause before this Court as the Appellant . As for the Applicant-Appellant CBESS' preference for charter schools , that fact is already known. D. THE APPLICANT-APPELLANT CBESS HAD EVERY OPPORTUNITY TO MAKE ITS CASE FOR STANDING BELOW, BUT FAILED TO DO SO. The Applicant-Appellant CBESS has no interest in the publicly owned land covered by General Lease No . S-6029 and the Applicant-Appellant CBESS is not the charter school in question. It did not submit evidence into the agency record below, as it could have, to establish its judicial standing in the event the case ended up in the circuit court as an agency appeal pursuant to Section 91-14 (a) , HRS . Agency appeals are determined on the face of the record. Section 91-14 (f) , HRS (review "confined to the 9 record" ) and CBESS should have established a proper foundation below. CONCLUSION The necessity for a charter school to obtain a Special Permit to build and operate a school in the Agriculture District was discussed in County of Hawaii V. Ala Loop Homeowners, 123 Haw. 391, 394-402 , 235 P. 3d 1103 , 1106-1107 (2010) . Because of that case, the charter school CONNECTIONS applied for a Special Permit for a school to be put on land covered by its lease. The charter school sustained an injury arising out of the Appellee windward Planning Commission' s denial decision. However, there is no evidence in the agency record that the Applicant-Appellant CBESS has suffered an "injury" as a result of the Commission' s denial decision. Therefore, this Court should find that the Applicant-Appellant CBESS lacks judicial standing to pursue this agency appeal and should grant Intervenor-Appellee Jeffrey K. Gomes' motion. DATED: Kailua-Kona, Hawaii, February 6, 2015 JEFFREY K. GOMES, Intervenor- Appellee By: MICHAEL J. MATSUKAWA His Attorney 10 SPP No. 12-000138 Page No. 002625 30 1 Commission rules, begin first . So would you like to 2 call your first witness? 3 MR. HONG: Yes . Our first witness this 4 morning is John Thatcher. 5 6 JOHN THATCHER, 7 having been first duly sworn to tell the truth, the 8 whole truth and nothing but the truth, was examined and 9 testified as follows : la 11 THE HEARINGS OFFICER: Go ahead. 12 MR. HONG: Thank you . 13 14 DIRECT EXAMINATION 15 BY MR. HONG: 16 Q Sir, would you state your name, please, and 17 your address . 18 A My name is John Lamar Thatcher II, and I live 19 at 1188 Kaumana Drive in Hilo. 20 Q And would you spell your last name for us, 21 please . 22 A T--h-a-t-c-h-e-r. 23 Q This morning I would like to begin by talking 24 about your background. If you could highlight your 25 educational background for us, please. APPFNDIX "6" SPP No. 12-000138 Page No. 002635 40 1 did submit our plan to the Board of Education, and 2 because of our strong connection with the university 3 and the Curriculum Research/Development Group, we had 4 very few questions about our curriculum. 5 Q And you talked about the governing board. 6 Could you explain the organizational structure of 7 Connections? g A The governing board is a group of about seven 9 individuals from the school and the community. I think 10 by law, only one-third of them can work for the school . 11 And the governing board makes the -- those kinds of 12 decisions about the school and is the board that is 13 entrusted with maintaining the integrity of the 14 charter. 15 Q And then who is CBESS in relation to that? 16 A CBESS is an associated nonprofit that works 17 with the school for fundraising, particularly. 18 Q Okay. The school has received criticism that 19 since a number of students are from Puna, the school 20 should be in Puna. As a charter school, are you 21 limited to students from a geographic area on this 22 island? 23 A No. In our contract, we say where our 24 students will come from, and we have basically noted 25 that our students come from any area on the eastern SPP No. 12-000138 Page No. 002712 17 1 THE HEARINGS OFFICER: Mr . Gomes? 2 MR. GOMES : No further questions . 3 THE HEARINGS OFFICER: Thank you very much, 4 Mr . Thatcher. You are excused. 5 MR. HONG: Our next witness is Joan 6 Derbyshire . 7 THE HEARINGS OFFICER: Mr. Hong, how long do 8 you think she is going to be? 9 MR. HONG: Approximately 15 minutes . 10 THE HEARINGS OFFICER: So we can take her 11 before our break? 12 MR. HONG: Right. 13 THE WITNESS : Good morning. My name is Joan 14 Derbyshire . 15 THE HEARINGS OFFICER: Raise your right hand. 16 17 JOAN DERBYSHIRE, 18 having been first duly sworn to tell the truth, the 19 whole truth and nothing but the truth, was examined and 20 testified as follows : 21 THE HEARINGS OFFICER: Can you please state 22 your name and give us your address . 23 THE WITNESS : My name is Joan Derbyshire, and 24 I am at 27 Elm Drive in Hilo. 25 . . . APPENDIX 17„ SPP No. 12-000138 Page No. 002713 18 1 DIRECT EXAMINATION 2 BY MR. HONG: 3 Q Would you tell us briefly about your 4 educational and professional background, please. 5 A I am currently a teacher at Connections 6 Public Charter School . I graduated from college in 7 1973 . I got a Master ' s in 2003 . I am certified in 8 primary, elementary, Montessori, middle school math, 9 and special ed. 10 Q How did you come to be involved with 11 Connections School? 12 A Actually, I called the school to apply for my 13 children to go to the school, and the woman on the 14 other end said, "Oh, you' re a teacher?" And I didn' t 15 know how she could know that . She thought I was 16 applying for a job; so I did it . 17 Q Okay. How has your involvement with the 18 school grown? 19 A I had been involved on the board level for 20 the school itself when we first started back in 2001 in 21 the Kress building, and I have been on the board of 22 CBESS for five years . 23 Q And describe the role of CBESS in terms of 24 school operations . 25 C4 A CBESS is the nonprofit arm of -- pretty much SPP No. 12-000138 Page No. 002714 19 1 CBESS was created to assist and help for the school 2 itself . 3 Q Okay. In terms of the new Connections 4 property up in Kaumana, you are familiar with the 5 proposal to develop that property? 6 A Yes . We started that process in 2007 . 7 Q Okay. And did CBESS approve that proposal? 8 A Yes . 9 Q And what is CBESS ' s role in the special 10 permit application? 11 A We are actually co-applicants with the school 12 in the special needs application. 13 Q And in terms of CBESS, what role does it play 14 in the process, the special permit application process? 15 A Well, we are one of the co-applicants. Once 16 we end up with -- once we were -- would get a special 17 use -- or special permit, we would be the 18 administrators of the project . 19 Q Okay. Let ' s talk about the project itself . 20 This is a phased project; it is supposed to 21 be constructed in phases, right? 22 A Yes . 23 Q And in terms of funding for the phases, could 24 you tell us about that? 25 A Well, the funding is coming through many SPP No. 12-000138 Page No. 002715 2 0 1 different sources : Donations, grants, loans, new market tax credits . Initially, we have applied and received a U. S . D.A. loan for 8 million, and that will 4 get us started on the first phase . 5 Q Could you describe for us the level of 6 CBESS ' s commitment to the new campus in total? 7 A Well, from the very beginning, we have always 8 envisioned one campus . Right now, we are on two 9 campuses, and we are all pretty committed to trying to 10 put together a one-campus school . 11 Q After the 8 million that you had talked about 12 earlier to fund the first phase, how do you intend to 13 pursue funding for the remainder of the phases? 14 A Well, donations, grants . Whatever comes up, 15 we apply for. We don ' t get the same level of support 16 from the State that other schools do, so we have to go 17 out and fundraise and Zook for other sources of 18 funding. 19 Q And is the board unified on its commitment to 20 the entire project in securing funding for the future 21 phases? 22 A Yes . 23 MR. HONG: All right . Thank you. No further 24 questions . 25 THE HEARINGS OFFICER: Ms . Self, cross SPECIAL PERMIT APPLICATION COUNTY OF HAWAII PLANNING DEPARTMENT (TYW or Print the requested infornution) Connections New Century Public Charter School APPLICANT CommunitvBa ad-EducatJon_,Support Services (CBESS) Friends of Connections APPLICANT'S SIGN^.rWW 1_(see attached) DATE: ADDRESS: 175 Kamehameha Avenue, Hilo, Hawaii 96720 LIST APPLICANT'S INTEREST EF NOT OWNER, Lessee TELEPHONE: (Bus.) (Home) (Fax) REQUEST: _)Develop a K to 12 Charter School. Campug with dorms favi 7 i ti as intergenerational programs, a sustainable agriculture program and TAX MAP KEY: _(.3)2^5-0 0 6. 14 l ZONING: AA-I as _ AREA OF PROPERTY/AREA OF REQUESTED USE 70. 15 acres _ LANDOWNER: State of Hawaii LANDOWNER'S SIGNATURE: (see attached) DATE: (May be by letter) LANDOWNER'S ADDRESS: Gtnkp of Hawa_i i— Attn; [Z'nrdnn Hai t 75 Aupuni Street, Hilo, Hawaii 96720 AGENT: Ted H.S. Hong, Esq., ADDRESS: Post Office Sox_ 4217, Hilo, Hawaii-96720 TELEPHONE: (Bus.)9 3 3-1 919 (Inmc} (Fax) Please indicate to whom original correspondence and copies should be sent to: ORIGINAL Ted H.S. Hong, Esq. COPIES: Connection PCS CRESS Friends of Connections State of Hawaii APPENDIX 15 f � STATE OF HAWAII DEPARTMENT OF LAND AND NATURAL RESOURCES Land Division Honolulu, Hawaii 96813 March 28, 2008 Board of Land and Natural Resources PSS' N0. :08HD-07.8 State of Hawaii Honolulu, Hawaii ar 1I Approval in Principle of Direct Lease to Connections New Century Public Charter School for School Purposes, Kaumans, Hawaii, Tax Map Key: (3) 2-5-6:141. ApPLI C�I�rT . Connections New Century Public Charter school, whose hueiness and mailing address is 174 Kameharreha Avenue, Hilo, Hawaii 96720. L,�,SGAF, REFERENCFs Section 171-95 (a) (2) and 95.5, Hawaii Revised Statutes, as amended. LQ TI N GorvernrrAnt lands situated at Ponahawai, Nauman, "Kukuau 2nd, South Hilo, Hawaii, identified by Tax Map Key: (3) 2-5-6:141, as shorm on the attached map labeled Exhibit A. AB$�= 72.43 acres, mora or less. State Land Use District: Agriculture County of Hawaii CZO: A-3A T&U§l LtM_STATUS Section 5(b) lands of the Hawaii Admission Act DHHL 30t entitlement lands pursuant to Eche Hawaii State Constitution: YE3 NO x QMANT USE STATUS: Vacant. D--5 APPENDIX 41 9" 93 13LNR - Approva3 in principal Page 2 March 2e, 2006 For Direct Leave to connections SCFCS Encumbered by Grant of Non-Exclusive Easement bearing Land office Deed No. 5-28322, GTE Hawaiian Telepbone Co. Inc., for telephone circuit facilities purposes. Encumbered by Grant of Hon-Exclusive Easement bearing Land Office Deed No. 5-28353, GTE Hawaiian Telephone Co. Inc., for telephone transmission purposes. CHAR&CTBR DF__U85: School purposes. LEASE TERM: Sixty-five (65) years MMMENCEMW DAT3: The first day of the month to be determined by the Chairperson. ANNUA-L RENT: To be determined upon final submittal to the Land Board upon satisfactory compliance with Chapter 343, Hawaii Revised statutes, as amended. ME'17iOD OF PAY EN t: Sema.-annual payments, in advance. RENTAL REOPENINGS: To be determined upon finial submittal to the Land Board upon satisfactory compliance with Chapter 343, Hawaii Revised Statutes, as amended. PERFORMANCE BON!] Twice the annual rental amount. PROPERTY CHARACTERISTICS: Utilities - utilities are available. Slope - 41 to 6* Elevation - 725-900 ft. Rainfall -- 193.2 inches per year. SCS Soil Series -- Lava flows, pahoehoe. Land Study Bureau -- D300 has a productivity rating of "c" for g=azing, °du for sugarcane and orchard and "e" for vegetables and forage. Legal access to property - Staff has verified that there is legal access to the property off of Kaumana Drive and 3dita Street. subdivision - Staff has verified that the subject property is a 0. 931 BLUR - Approval in principal page 3 Marob 26, 2006 ror bixect L,eaBe to Connections NCPC9 legally subdivided lot. Encumbrances - Staff has verified that the following encumbrances exist on the property: Grant of loon-Exclusive Raserent bearing Land Office Deed No. S-26322, GTS Hawaiian Telephone Co. Inc. , for telephone circuit facilities purposes and Grant of Non-Exclusive Basement bearing Land Office Deed Mo. 8-29353, GTR Hawaiian Telephone Co, Inc., for telephone transmission purposes. CHAPTER 343 - ENYIROMMENTIAL ASSESSMENT% This is a request for the Land Board's approval in principle of a lease to connections New Century public Charter School and for Connections New Century Public Charter School to comply with Chapter 343, Hawaii Revised statutes, as amended. RCCA VS12I$ICATIOId: Place of business registration confirwe-d: YES 3c NO Registered business name confirmed: YES � NO Applicant in good standing confirmed: YES NO . APPLI CANS'...REQUIREMENTS: Applicant shall he required to-. 1) prepare and process, at its own cost, all necessary studies and documentation, for compliance with Chapter 343, Hawaii Revised Statutes, as amended. REMARKS; The subject property is currently vacant. Besides 2 easements, we have no records of any past dispositions. The current zoning is agriculture. The proposed use is allowed. Applicant qualifies for a direct lease pursuant to Section 7171- 95(a) (2) and 95.5, Hawaii Revised statutes, as amended. Charter signed by Governor, Chairperson of the Board of Education and Superintendent of Education on May 5, 2000. The school, is in the process of hiring a consultant to prepare the environmental assessment, and if necessary, any other approvals. The site plan for the property is still in the early stages of development. The educational facility that the school envisions requires learning environments that support curiosity, as well as literacy. Tt_e future campus is to be built with a focus on creating an environment that is personalized, learning- focused, collaborative, connected to the community and adaptable and flexible. The authors of Architecture for Achievement. Building Patterns for Small School Learning define 26 design "patterns" in creating buildings that are "in hazmoriy with geography, climate, context, and the culture of place." The 932 9T3�R Approval in principal Page 4 March 28, 2009 For Direct Leaae to Connections NCPCs patterns, listed below, are grouped according to their primary focusr Personalised Learning-Focused Yuman scale signature Greeting and Gatekeeping Display Wayfinding and Streetscapes Transparency Distributed Resources Varied Spaces Safety Studios and Specialty Labs Lifelong Fitness Presentation Integrated 'Technology Collaborative Indoor/Outdoor Connections Clusters of Learning optimal Light Gathering Spaces Acoustic Balance Professional Work Areas Adaptable and Flexible Community-Connected Multi-Use Classrooms Siting in Context Learning supports Conounity Resources (Furniture and Storage) Flexible Boundaries Adaptable Utilities Living Buildings Applicant has not had a lease, permit, easement or other disposition of State lands terminated within the last five years due to non-compliance with sunh terms and conditions. if hand Board approval in principal is obtained, the Connections New Century Public Charter School will pursue compliance with Chapter 343, Hawaii Revised Statutes, as amended and incorporate agencies and comm=ity comments. That the Board. 1. Approve in principle, a new direct lease to connections New Century Public Charter School, subject to the following: A, At its own cost Connections Now Century Public Charter School shall pursue satisfactory compliance with Chapter 343, Hawaii Revised Statutes, as amended, and obtain a finding of no significant impact WONST) within twenty- four (24) months of the Land Hoard's approval; B. Should Connections New Century Public Charter school fail to obtain satisfactory compliance with Chapter 343, Hawaii Revised Statutes, as amended, within twenty-Four (24) months, the hand Board's approval shall be considered rescinded; C. Connections New Century Public Charter School acknowledges the following: i) All costs associated with the necessary compliance 933 BLNR.- Approval in principal Page 5 !Much 28, 2008 AshFor Direct Lease to Connections NCPCS with Chapter 343, Hawaii Revised Statutes, as amended, shall be borne by Connections New Century r•. Public Charter school; ii) That this action is an approval in principle and does not provide any assurance of a direct lease and such approval of a direct lease shall be subject to consideration by the Land Board -under a separate action after satisfactorily ccmply3.ng with chapter 343, Hawaii Revised Statutes, as amendedl iii) That there has been no representations or assurance made regarding the annual rent to be paid under a direct lease. Connections New century Public Charter School agrees to provide a proposal for rent and justification for such rent in connection 47iGh the Land Board's final consideration of a direct lease after satisfactorily compliance with Chapter 343, Hawaii Revised Statutes, as amended. D. Such other terms and conditions as may be prescribed by the Chairperson to best serve the interests of the State. Respectfully Submitted, r AahAtc� 0/44 Charlene S. Unoki Assistant Adminiatrator APPRGVRD FOR SUBMITTAL-. ®ra 'KIh len, Chairperson I 934 STATE OF HAWF PLEASE DO NOT DEPARTMENT OF LAND AND NA DATE DOCUMENT GENERAL LEASE NO. THIS LEASE, made this day of , 20 by and between the STATE OF HAWAII, hereinafter referred to as the "Lessor, " by its Board of Land and Natural Resources, called the "Board, " and CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL, a public charter school under the State of Hawaii, whose address is 174 Kamehameha Avenue, Hilo, Hawaii 96720, hereinafter referred to as the "Lessee. " WITNESSETH: The Lessor, pursuant to Section 171-95 (a) (2) and Section 171-95. 5, Hawaii Revised Statutes, and Charter signed by the Governor of the State of Hawaii, the Chairperson of the Board of Education, and the Superintendent of Education on May 5, 2000, for and in consideration of the terms, covenants and conditions herein contained, all on the part of the Lessee to be kept, observed and performed, does lease unto the Lessee, and the Lessee does lease from the Lessor the premises situate at Ponahawai, South Hilo, Island of Hawaii, Hawaii, identified as "Connections New Century Public Charter School , Mauna Parcel" more particularly described in Exhibit "A" and delineated on Exhibit "B, " both attached hereto and made parts hereof, and "Connections New Century Public Charter School, Makai Parcel" more particularly described in Exhibit "C" and delineated on Exhibit "D, both attached hereto and made parts hereof. TO HAVE AND TO HOLD the leased premises unto the Lessee for the term of sixty-five (65) , commencing on the day of 20 up to and including the day of r unless sooner terminated as hereinafter provided, the Lessor reserving and the Lessee yielding and paying to the Lessor at the Office of the Department of Land and Natural Resources, Honolulu, Oahu, State of Hawaii, an annual rental as provided hereinbelow, payable in advance, without notice or demand, in equal semi-annual installments on and of each and every year during the term as follows : A. For the first ten (10) years, the sum of FOUR HUNDRED EIGHTY AND NO1100 DOLLARS ($480. 00) per annum. 477794 1.Doc APPENDIX "10" 19: B . The annual rental reserved small be reopened and redetermined on tenth (10th) , twentieth (20th) , thirtieth (30th) , fortieth (40th) , fiftieth (50th) and sixtieth (60th) years . C. Determin-ation of rent mon reopening The rental for any ensuing period shall be the fair market rental at the time of reopening. At least six months prior to the time of reopening, the fair market rental shall be determined by: (1) An employee of the Department of Land and Natural Resources qualified to appraise lands; or (2) A disinterested appraiser whose services shall be contracted for by the Board. Lessee shall be notified of the determination by certified mail,' return receipt requested. Lessee must notify Lessor in writing within thirty (30) days after receipt of the determination that Lessee disagrees with the fair market rental as determined by the Board' s appraiser and that Lessee has appointed its own appraiser, whose name and address shall be stated in the notice. The determination shall be deemed received by Lessee on the date the Lessee signs the return receipt or three (3) days after mailing, whichever occurs first . Within sixty (60) days o; Lessor' s receipt of Lessee's notification, Lessee' s appraiser and -the Board' s appraiser shall appoint a third appraiser, unless Lessee ' s appraiser and the Board's appraiser have agreed upon the fair market rental , and the fair market rental shall be determined by arbitration as provided in chapter 659A, Hawaii Revised Statutes . The Lessee shall pay for the Lessee' s own appraiser, the Board shall pay for its appraiser, and the cost of the third appraiser shall be borne equally by the Lessee and the Board. In the event that the fair market rental is ndt finally determined before the reopening date, the Lessee shall pay the rental as determined by the Board' s appraiser until the new rent is determined, and the rental paid by Lessee shall then be subject to retroactive adjustments as appropriate . Should the Lessee fail to notify Lessor in writing, within thirty (30) days after receipt of the determination that Lessee disagrees with the fair market rental as determined by the Board' s appraiser and that Lessee has appointed its own appraiser, then the fair market rental as determined by the Board' s appraiser shall be deemed to have been accepted by Lessee and shall be the fair market rental as of the date of reopening. D. The interest rate on any and all unpaid or delinquent rentals shall beat one percent (1t) per month, plus a 477744_I.Doc 2 1938 service charge of FIFTY AND NO/100 DOLLARS ($50 . 00) a month for each delinquent payment . RESERVING UNTO THE LESSOR THE FOLLOWING: I . Minerals and waters . (a) All minerals as hereinafter defined, in, on or under the premises and the right, on its own behalf or through persons authorized by it, to prospect for, mine and remove the minerals and to occupy and use so much of the surface of the ground as may be required for all purpobes reasonably extending to the mining and removal of the minerals by any means whatsoever, including strip mining. "Mineral's, " as used herein, shall mean any or all oil , gas, coal, phosphate, sodium, sulphur, iron, titanium, gold, silver, bauxite, bauxitic clay, di4spore, boehmite, laterite, gibbsite, alumina, all ores of aluminum and, without limitation thereon, all other mineral substances and ore deposits, whether solid, gaseous or liquid, including all geothermal resources, in, on, or under the land, fast or submerged; provided, that "minerals" shall not include sand, gravel, rock or other material suitable for use and used in .general construction in furtherance of the Lessee 's permitted activities on the premises and not for sale to others . (b) All surface and ground waters appurtenant to the premiees and the right on its own behalf or through persons authorized by it, to capture, divert or impound the same and to occupy and use so much of the premises required in the exercise of this right reserved; provided, however, that as a condition precedent to the exercise by the Lessor of the rights reserved in this paragraph, just compensation shall be paid to the Lessee for any of Lessee ' s improvements taken. 2 . Ownership of improvements. The ownership of all improvements of whatever kind or nature, including but not limited to fences and stockwater system(s) located on the land prior to or on the commencement date of this lease, excluding those improvements constructed duping the term of this lease unless provided otherwise. SUBJECT TO the rights of native tenants and to regulatory rights and ownership rights (if any) of the State of Hawaii established pursuant to state law including Chapter 6E, Hawaii Revised Statutes , over prehistoric or historic remains found in, on, or under the land. 477744_1.DOC 3 1939 THE LESSEE CCVE14ANTS AND AGREES WITH THE LESSOR AS FOLLOWS: 1 . Taxes, assessments, etc. The Lessee shall pay or cause to be paid, when due, the amount of all taxes, rates, and assessments of every description as to which the premises or any part, or any improvements, or the Lessor or Lessee, are now or may be assessed or become liable by authority of law during the term of this lease; provided, however, that with respect to any assessment made under any betterment or improvement law which may be payable in installments, Lessee shall be required to pay only those installments, together with interest, which becomes due and payable during the term of this lease . 2 . Utility services . The Lessee shall be responsible for obtaining any utility services and shall pay when due all charges , duties and- rates of every description, including water, sewer, gas, refuse collection or any other charges, as to which the premises or any part, or any improvements, or the Le9s6r or Lessee may become liable for during the term, whether assessed to or payable by the Lessor or Lessee . 3 . Covenant against discrimination. The use and enjoyment of the premises shall not be in support of any policy which discriminates against anyone based upon race, creed, sex, color, national origin, religion, marital status, familial status, ancestry, physical handicap, disability, age or HIV (human immunodeficiency virus) infection. 4 . Sanitation. The Lessee shall keep the premises and improvements in a strictly clean, sanitary and orderly condition. S . Waste .and unlawful , improper or offensive use of premises . The Lessee shall not commit , suffer or permit to be committed any waste, nuisance, strip or unlawful, improper or offensive use of the premises or any part., nor, without the prior written consent of the Lessor, cut down, remove or destroy, or suffer to be cut duwn, removed or destroyed, any trees now growing on the premises . 6 . Compliance with laws . The Lessee shall comply with all of the requirements of all municipal , state, and federal authorities and observe all municipal , state and federal laws applicable to the premises, now in force or which may be in torce . 7 . Inspection of premises . The Lessee shall permit the Lessor and its agents, at all reasonable tifries during the 477744_1.DOC 4 1940 n 1 lease term, to enter the premises and examine the state of its repair and condition. 8 . Improvements . The Lessee shall not at any time during the term construct, place, maintain and install on the premises any building, structure or improvement of any kind and description except with the prior written approval of the Board and upon those conditions the Board may impose, unless otherwise provided in this lease . The Lessee shall own these improvements until the expiration or other termination of the lease, at which time the ownership shall at the option of the Lessor, remain and become the property of the Lessor or shall be removed by Lessee at Lessee' s sole cost and expense . Upon termination and/or expiration of the lease and if desired by the Lessor, the Lessee at its expense, shall remote any and all improvements installed or constructed upon the premises and restore said premises to a condition satisfactory to the Lessor. 9 . Repairs to improvements . The Lessee shall , at its own expense, keep, repair, and maintain all buildings and improvements now existing or hereafter constructed or installed on the premises in good order, condition and repair, reasonable wear and tear excepted. 10 . Liens. The Lessee shall not commit or suffer any act or neglect which results in the premises, any improvement, or the leasehold estate of the Lessee becoming subject to any attachment, lien, charge, or encumbrance, except as provided in this lease, and shall indemnify, defend, and hold the Lessor harmless from and against all att-achments, liens, charges, and encumbrances and all resulting expenses. 11 . Character of use. The Lessee shall use or allow the premises leased to be used solely for school purposes . 12 . Assignments, etc_ The Lessee shall not sublease, subrent, transfer, assign, or permit any other person to occupy or use the premises or any portion or transfer or assign this lease or any interest therein, either voluntarily or by operation of law, without the prior written approval of the Board. 13 . Indemnity. The Lessee shall indemnify, defend, and hold the Lessor harmless from and against any claim or demand for loss, liability, or damage, including claims for bodily injury, wrongful death, or property damage, arising out of or resulting from: 1) any act or omission on the part of Lessee 477744_1.DOC Jr. 194 n f C relating to Lessee ' s use, occupancy, maintenance, or enjoyment of the premises ; 2) any failure on the part of the Lessee to maintain the premises and sidewalks, roadways and parking areas adjacent thereto in Lessee' s use and control , and including any accident, fixe or nuisance, growing out of or caused by any failure on the part of the Lessee to maintain the premises in a safe condition; and 3) from and against all actions, suits, damages, and claims by whomsoever brought or made by reason of the Lessee ' s non-observance or non-performance of any of the terms, covenants, and conditions of this lease or the rules, regulations, ordinances, and laws of the federal , state, municipal or county governments . 14 . Costs of litigation. In case the Lessor shall, without any fault on Lessor' s part, be made a party to any litigation commenced by or against the Lessee (other than condemnation proceedings) , the Lessee shall pay all costs, including reasonable attorney' s fees, and expenses incurred by or imposed on the Lessor; furthermore, the Lessee shall pay all costs, including reasonable attorney' s fees, and expenses which may be incurred by or paid by the Lessor in enforcing the covenants and agreements of this lease, in recovering possession of the premises , or in the collection of delinquent rental, taxe^, and any and all other charges . 15 . Breach. Time is of the essence in this agreement and if the Lessee shall become bankrupt, or shall abandon the premises, or if this lease and premises shall be attached or taken by operation of law, or if Lessee shall tail to observe and perform any of the covenants, terms, and conditions contained in this lease and on its part to be observed and performed, and this failure shall continue for a period of more than sixty (60) days atter delivery by the Lessor of a written notice of breach or default and demand for cure, by personal service, registered mail or certified mail to the Lessee at its last known address and to each holder of record having a security interest in the premises, the Lessor may, subject to the provisions of Section 171.-21 , Hawaii Revised Statutes, at once re-enter the premises, or any part, and upon or without the entry, at its option, terminate this lease without prejudice to any other remedy or right of action for arrears of ren; or for any preceding or other breach of contract; and in the event of termination, at the option of the Lessor-, all buildings and improvements scall remain and become the property of the Lessor or shall be removed by Lessee; furthermore, Lessor shall retain all rent paid in advance to be applied to any damages _ 16 . Condemnation. If at any time, during the term of 477749_1.DOC 6 194 �. this lease, any portion of the premises should be condemned, or required for public purposes by any county or city and county, the rental shall be reduced in proportion to the value of the portion of the premises condemned, The Lessee shall be entitled to receive from the condemning authority (a) the value of growing crops, if any, which Lessee is not permitted to harvest and (b) the proportionate value of the Lessee ' s permanent improvements so taken in the proportion that it bears to the unexpired term of the lease; provided, that the Lessee may, in the alternative, remove and relocate its improvements to the remainder of the lands occupied by the Lessee. The Lessee shall not by reason of the condemnation be entitled to any claim against the Lessor for condemnation or indemnity for leasehold interest and all compensation payable or to be paid for or on account of the leasehold interest by reason of the condemnation shall be payable to and be the sole property of the Lessor. The foregoing rights of the Lessee shall not be exclusive of any other to which Lessee may be entitled by law. Where the portion taken renders the remainder unsuitable for the use on uses for which the premises was leased, the Lessee shall have the option to surrender this lease and be dischargers and relieved from any further liability; provided, that Lessee may remove the permanent improvements constructed, erected and placed by it within any reasonable period allowed by the Lessor. 17 . Right to enter. The Lessor or the County and their agents or representatives shall have the right to enter and cross any portion of the premises for the purpose of performing any public or official duties; provided, however, in the exercise of these rights , the Lessor or the County shall not interfere unreasonably with the Lessee or Lessee ' s use and enjoyment of the premises. 18 . Bond, performance . The Lessee shall, at its own cost and expense, within fifteen (15) days from the effective date of this lease, procure and deposit with the Lessor and thereafter keep in full force and effect during the term of this lease a good and sufficient surety bond, conditioned upon the full and faithful observance and performance by Lessee of all the terms, conditions, and covenants of this lease, in an amount equal to two times the annual rental then payable. This bond shall provide that in case of a breach or default of any of the lease terms, covenants, conditions, and agreements, the full amount of the bond shall be paid to the Lessor as liquidated and ascertained damages and not as a penalty. 19 . Extension of time . Notwithstanding any provision contained in this lease, when applicable, the Board may for good 47714n_1.noc 7 1943 \_' C cause shown, allow additional time beyond the time or times specified in this lease for the Lessee to comply, observe, and perform any of the lease terms, conditions, and covenants, 20 . Quiet enjoyment . The Lessor covenants and agrees with the Lessee that upon payment of the rent at the times and in the manner provided and the observance and performance of these covenants, terms, and conditions on the part of the Lessee to be observed and performed, the Lessee shall and may have, hold, possess, and enjoy the premises for the term of the lease, without hindrance or interruption by the Lessor or any other person or persons lawfully claiming by, through, or under it . 21 . Surrender or termination. The Lessee shall , at the end of the term or other sooner termination of this lease, peaceably deliver unto the Lessor possession of the premises in a clean and orderly condition, together with all improvements existing or constructed thereon or Lessee shall remove such improvements , at the option of the Lessor. Furthermore, upon the expiration, termination, and/or revocation of this lease, should the Lessee fail to remove any and all of Lessee ' s personal property from the premises, after notice thereof, the Board may remove any and all personal property from the premises and either deem the property abandoned and dispose of the property or place the property in storage at the cost and expense of Lessee, and the Lessee does agree to pay all costs and expenses for disposal, removal , or storage of the personal property. This provision shall survive the termination of the lease . 22 . Ton--warranty. The Lessor does not warrant the conditions of the premises, as the same are being leased as is . 23 . Hazardous materials. Lessee shall not cause or permit the escape, disposal or release of any hazardous materials except as permitted by law. Lessee shall not allow the storage or use of such materials in any manner not sanctioned by law or by the highest standards prevailing in the industry for the storage and use of such materials, nor allow to be brought onto the premises any such materials except to use in the ordinary course of Lessee' s business, and then only after written notice is given. to Lessor of the identity of such materials and upon Lessor' s consent which consent may be withheld at Lessor ' s sole and absolute discretion. If any lender or governmental agency shall ever require testing to ascertain whether or not there has been any release of hazardous materials by Lessee, then the Lessee shall be responsible for the reasonable costs thereof . in addition, Lessee shall. execute affidavits, representations and the like from time to time at Lessor' s request concerning 477744_1.DDC 8 19. . 11 r II Lessee ' s best knowledge and belief regarding the presence of hazardous materials on the premises placed or released by Lessee . Lessee agrees to indemnify, defend, and hold Lessor harmless, from any damages and claims resulting from the release of hazardous materials on the premises occurring while Lessee is in possession, or elsewhere if caused by Lessee or persons acting under Lessee . These covenants shall survive the expiration or earlier termination of the lease . For the purpose of this lease "hazardous material" shall mean any pollutant, toxic substance, hazardous waste , hazardous material , hazardous substance, or oil as defined in or pursuant to the Resource Conservation and Recovery Act, as amender', the Comprehensive Environmental Response, Compensation, and Liability Act, as amended., the Federal Clean Water Act , or any other federal, state, or local environmental law, regulation, ordinance, rule, or by-law, whether existing as of the date hereof, previously enforced, or subsequently enacted. 24 . Hawaii, law. This lease shall be construed, interpreted, and governed by the laws of the State of Hawaii . 25 . Exhibits - Incorporation in lease . All exhibits referred to are attached to this lease and hereby are deemed incorporated by reference. 26 . Headings . The article and paragraph headings herein are inserted only for convenience and reference and shall in no way define, describe or limit the scope or intent of any provision of this lease . 27 . Partial invalidity. If any term, provision, covenant or condition of this lease should be held to be invalid, void or unenforceable, the remainder of this leave shall continue in full force and effect and shall in no way be affected, impaired or invalidated thereby. 28 . Withdrawal . The Lessor shall have the right to withdraw the premises, or any portion, at any time during the term of this lease upon giving reasonable notice and without compensation, except as otherwise provided in the lease, for public uses or purposes , including residential , commercial , industrial , or resort developments, for constructing neer roads or extensions , or changes in line or grade of existing roads, for rights of way and easements of all kinds, and shall be subject to the right of the Board to remove soil , rock or gravel as may be necessary for the construction of roads and rights of way within 477744_1.DOC 9 1945 ,I or without the premises; provided, that upon the withdrawal : or upon the taking which causes any portion of the land originally leased to become unusable for the specific use or uses for which it was leased, the rent shall be reduced in proportion to the value of the land withdrawn or made unusable , and if any permanent improvement constructed upon the land by the Lessee is destroyed or made unusable in the process of the withdrawal or taking, the proportionate value shall be paid based upon the unexpired term of the lease . 29 . Termination by either party, The Lessor and Lessee, by mutual agreement, may terminate this lease at any time without cause, provided that the Lessor and the Lessee are not in breach of any condition herein at the time of the mutual agreement to terminate . This provision can be utaived by the parties provided such waiver is in writing and signed by both parties . 30 . Non-use and abandonment . If the Lessee shall., at any time for a continuous period of one (1) year, fail or cease to use, or abandon all or any portion of said premises, this lease shall cease and terminate. 31 . Building construction. All building construction shall be in full compliance with all laws, rules and regulations of the federal, state, and county governmencs and in accordance with plans and specifications submitted to an approved by the Chairperson .prior to commencement of construction. 32 . Clearances . The Lessee shall be responsible for obtaining all necessary federal , state or county clearances . 33 . Time of essence Time is of the essence in all provisions of this lease. 34 . Historic preservation. In the event any historic properties or burial sites, as defined in section 6H-2 , Hawaii Revised Statutes, are found on the premises, the Lessee and the Lessee's agents, employees and representatives shall immediately stop all land utilization and/or work and contact the Historic Preservation Office in compliance with Chapter 5S, Hawaii Revised Statutes . 35 . Removal of trash. The Lessee shall be responsible for Lhe removal of all illegally dumped trash upon the premises within ninety (90) days from the date of execution of the lease and shall so notify the Lessor in writing at the end of ninety (90) days . 477744-1.DOC 10 1946 35. phase I environmental site assessment . Prior to termination or revocation of the subject lease, Lessee shall conduct a Phase I environmental site assessment and conduct a complete abatement and disposal, if necessary, satisfactory to the standards required by the Federal Environmental Protection Agency, the Department of Health, and the Department of Land and Natural Resources . Failure to comply with the provisions of this paragraph shall not extend the term of this lease or automatically prevent termination or revocation of the lease. The Board, at its sole option, may refuse to approve termination or revocation, unless this evaluation and abatement provision has been performed. In addition or in the alternative, the Board may, at its sole option if Lessee does not do so, arrange for performance of the provisions of this paragraph, all costs and expenses of such performance to be charged to and paid by Lessee . 37 . Survey and boundary stakeout . The Lessee shall be solely responsible for any survey and boundary stakeout of the leased premises . �__., _�-._..... -.. , .,.`,ti:_..' r._ __.a.'. ., mss i? cY^.~-+gf ..72:r�.`ti•!^r.7i�y...']a-_i4 nya�: l4y,'yrra.•C,-,rer SS. W' , ..r+ - ...-.. mow.... _ .-. hr..Y'��'.v+C.'�=rti'A'w.•.".L'- 1 i�r7_ .. aR•'i_ N . `s•i' ^ `lti._.ti'•:.._ .a.Pr}+!! `7.545'+' Z^F.3r5, • �5.._17"� 477799_1.DOC 1 1 194 C Definitions . 1 . The use of any gender shall include all genders, and if there is more than one lessee, then all words used in the singular shall extend to and include the plural . 2 . As used in this lease, unless clearly repugnant to the context : (a) "Chairperson" means the Chairperson of the Board of Land and Natural Resources of the State of Hawaii or his successor . (b) "Lessee" means and includes the Lessee, its officers, employees, invitees, successors or permitted assigns . (c) "Holder of record of a security interest" :Weans a person who is the owner or possessor of a security interest in the land leased and who has filed with the Department of Land and Natural Resources and with the Bureau of Conveyances of the State of Hawaii a copy of this interest . (d) "Premises" means the land leased and all buildings and improvements now or hereinafter constructed and installed on the land leased. (e) "Waste" includes, but is not limited to, (1) permitting the premises, or any portion, to become up-duly eroded or failure to take proper precautions or make reasonable effort to prevent or correct the erosion; (2) permitting a substantial increase in noxious weeds in uncultivated portions of the premises; and (3) failure to employ all of the usable portions of the premises . (f) "Days" shall mean calendar days unless otherwise specified. 477749_1.DOC 12 1948 • • ` C. IN WITIJESS WHEREOF, the STATE OF HAWAII, by its Board of Land and Natural Resources, has caused the seal of the Department of Land and Natural Resources to be hereunto affixed aid the parties hereto have caused these presents to be executed the day, month and year first above written. STATE OF HAWAII Approved by the Board By of Land and Natural WILLIAM J . AILA, JR. Resources at its Chairperson meeting held on Board of Land and January 13 , 2011 . Natural Resources LESSOR CONNECTIONS NEW CENTURY PUBLIC CHARTER SCH00L, a public charter school under the State of Hawaii U,Awe L THA CH LESSEE APPROVED AS TO FORM: Amal�-- IE . C ,INA Dep • ttorney General Dated-tk 1 bte- 20 4???44_1.noc 13 1949 C I �' • 1 t r 1 STATE OF HAWAII j j SS. COUNTY OF �'- } On this day of 1 w- '- , 201 before me personally appeared JOHN L. THATCHER, to me personally known, who, being by me duly sworn or affirmed, did say that such person executed the foregoing instrument as the free act and deed of such person, and if applicable in the capacity shown, having been duly authorized to execute such instrument in such capacity. s A. tV NOTARY ar Public, State of Hawaii PUBLIC c� PAMPLA,J A MARTIN No. s�• �G�;'' My commission expires: o" NOTARY PuBtic Undated at time of Natarizatia'.0 Arn - "[M-Vk Circuit .......•�4,�� Doc. Dass OF�,, �{��pil .1,,1,151` Notary sign re a 377744_1.00C 14 1950 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS) and } (Agency Appeal) CONNECTIONS NEW CENTURY PUBLIC ) SCHOOL, ) CERTIFICATE OF SERVICE Applicants-Appellants, ) } vs . } } WINDWARD PLANNING COMMISSION, } COUNTY OF HAWAII; DEPARTMENT OF } PLANNING, COUNTY OF HAWAII, } } Appellees , } } and } } JEFFREY GOMES, ) } Intervenor-Appellee . ) CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a copy of the foregoing document (s) was duly served upon the following parties via the U.S . Post Office, Kailua-Kona, Hawaii, postage prepaid, addressed as follows : TED H. S . HONG, ESQ. P.O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General 235 So. Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AMY SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAII PLANNING DIRECTOR LAUREEN T. MARTIN, ESQ. Assistant Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII DATED: Kailua-Kona, Hawaii, February 6, 2015 . JEFFREY K. GOMES, Intervenor- Appellee By: MICHAEL J. MATS KAWA His Attorney _ a 2 Pf �-1 ORIGINAL , e RUSSELL A. SUZUKI 2084 Attorney General State of Hawaiirn n HOLLY T. SHIKADA 4017 '' CARTER K. SIU 7313 Deputy Attorney General 1� r 235 South Beretania Street, Room 304 o Honolulu, Hawaii 96813 Telephone No. 808.586.1255 Carter.K.Siu @ hawaii.pov Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES; CONNECTIONS ) (AGENCY APPEAL) NEW CENTURY PUBLIC CHARTER ) SCHOOL; ) CONNECTIONS NEW CENTURY PUBLIC Applicants-Appellants ) CHARTER SCHOOL'S OPENING BRIEF; CERTIFICATE OF SERVICE vs. ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; ) Appellee, ) And ) JEFFREY COMES, Intervenor, ) Intervenor-Appellee ) Judge: The Honorable Ronald Ibarra } } CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S OPENING BRIEF Applicant-Appellant, Connections New Century Public Charter School ("Connections"), by and through its undersigned counsel Carter K. Siu, Deputy Attorney General, and pursuant to Rule 72(f), Hawaii Rules of Civil Procedure, hereby submits its Opening Brief for this Court's review and consideration. Connections substantively joins and incorporates by reference herein Appellant Community Based Education Support Services' Opening Brief, filed December 24, 2014. The following Opening Brief is intended to expand upon and supplement those arguments advanced by Community Based Education Support Services. I. INTRODUCTION This agency appeal concerns whether it was appropriate for the Windward Planning Commission (Commission) to place more weight on subjective lay testimony submitted by the area residents, speculation, and innuendo rather than the objective evidence submitted by the applicants. Connections and Community Based Education Support Services (CBESS) spent a considerable amount of time and expense in obtaining the appropriate approvals, surveys, architectural designs, traffic reports, environmental impact statements, and other relevant evidence to support their application for a special permit. While there was community opposition at the contested case hearing, the community did not present any credible evidence directly challenging the validity of applicants' reports. Despite this, the Commission denied Connections' request to engage in a use specifically permitted by the Hawaii County Code simply because the agricultural district is now littered with non-agricultural uses, to wit, residential housing. 2 II. STATEMENT OF QUESTIONS PRESENTED FOR DECISION The question before this Court is whether the Commission erred when it denied Connections and CBESS's application for a special permit to construct a school campus on land deemed unsuitable to support any type of agriculture. To that end, Connections, in addition to those areas alleged as error in CBESS's Opening Brief, cites that the analysis and findings of fact sections VI and VII and the Conclusions of Law Nos. 4-5 are flawed and constitute reversible error pursuant to HRS § 91-14(g). III. STANDARD OF REVIEW The Commission's decision may be overturned and/or reversed "if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are: (I) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedure; or (4) Affected by other error of law; or (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion." HRS § 91-14(g). The Commission's findings of fact are reviewed under a clearly erroneous standard as stated in HRS §91-14(8)(5). Kauai Springs, Inc. v. Planning Com'n of County of Kauai, 133 Hawaii 141, 164; 324 P.3d 951, 974 (Sup.Ct. 2014)(citations omitted). Conclusions of law, however, are reviewed under HRS §91-14(g)(1), (2), and (4). Id. Procedural defects are 3 reviewed under HRS §91-14(8)(3) while the "agency's exercise of discretion is reviewed under the arbitrary and capricious standard" pursuant to HRS §91-14(g)(6). Id. Any mixed questions of law and fact are reviewed under a clearly erroneous standard because it is fact-based. Id. The Commission's findings must be "reasonably clear" as the "parties and the court should not be left to guess the precise finding of the agency." Id. These findings must also be "sufficient to allow the reviewing court to track the steps by which the agency reached its decision." Id. IV. DISCUSSION A county planning commission can issue a special use permit for "certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified." HRS §205-6(a). In order to establish that a proposed use is "unusual" yet "reasonable," the applicant must satisfy the following criteria established by the County of Hawaii Planning Commission: A. Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations; B. The desired use shall not adversely affect surrounding properties; C. Such use shall not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and fire protection; D. Unusual conditions, trends, and needs have arisen since the district boundaries and regulations were established; E. The land upon which the proposed use is sought is unsuited for the uses permitted within the district; F. The proposed use will not substantially alter or change the essential character of the land and the present use; and 4 G. The request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design Plans. Rule 6-3(b)(5)(A)-(G), County of Hawaii Planning Commission, Rules of Practice and Procedure. In granting a special permit, a county planning commission must consider whether the requested use would "'promote the effectiveness and objectives' of HRS Chapter 205, which provides that its `overarching purpose' is to `protect and conserve natural resources and foster intelligent, effective, and orderly land allocation and development"' Kauai Springs, Inc. v. Planning Comm'n of Cnty. of Kauai, 133 Haw. 141, 169, 324 P.3d 951, 979 (2014)(internal citations omitted). The purpose of a special permit was explained by the Hawaii Supreme Court as follows: The special use or exception evolved as a land use control device from a recognition of the hardship frequently visited upon landowners due to the inherent rigidity of the Euclidean zoning system, and of the inapplicability of variance or boundary amendment procedures to all land use problems. 3 A. Rathkopf, supra s 41.03 at 41-8 to 41 A 0; 3 R. Anderson, American Law of Zoning s 19.01 at 358-59 (2d ed. 1977). Unlike a district boundary amendment, which is analogous to a rezoning in its effect of reclassifying land, and unlike a variance, which permits a landowner to use his property in a manner forbidden by ordinance or statute, a special permit allows the owner to put his land to a use expressly permitted by ordinance or statute on proof that certain facts and conditions exist, without altering the underlying zoning classification. Its essential purpose, as explained by the state Attorney General, is to provide landowners relief in exceptional situations where the use desired would not change the essential character of the district nor be inconsistent therewith. 1963 Op. Att'y Gen. 63-37. `By the use of the special use permits, the broad division of uses in terms of residential, commercial, and industrial, and subdivisions of each, can be supplemented by requiring a use which falls conveniently within a class assigned to a particular district, but which has singular characteristics which may be incompatible with some uses of such class, to submit the (sic ) administrative scrutiny, to meet certain standards, and to comply with conditions." 3 R. Anderson, supra s 19.01 at 359. 5 Neighborhood Bd. No. 24 (Waianae Coast) v. State Land Use Comm'n, 64 Haw. 265, 270-7 1, 639 P.2d 1097, 1101-02 (1982)(emphasis added). A special use permit also permits "the property owner to put his property to a use expressly permitted by the ordinance ... subject only to `conditions' attached to its use to minimize its impact on the surrounding area." Kabro Associates, LLC v. Town of Islip Zoning Bd. of Appeals, 95 A.D.3d 1118, 1120, 944 N.Y.S.2d 277, 280 (2012). The requirement to obtain a special permit for a permitted use is, as a matter of law, a determination that the proposed use is appropriate for the community. As stated by the Illinois Supreme Court: the inclusion of a special use within a zoning ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood. A special exception use is a `permitted use' when allowed under a special permit. Thus, there has been a local legislative determination that the use, as such, is neither inconsistent with the public's health, safety, morals or general welfare, nor out of harmony with the town's general zoning plan. City of Chicago Heights v. Living Word Outreach Full Gospel Church & Ministries, Inc., 196 Ill. 2d 1, 17-18, 749 N.E.2d 916, 927 (2001)(internal citations omitted); Pilato v. ZoningBd. of Appeals of Town of Mendon, 155 A.D.2d 864, 548 N.Y.S.2d 950, 951 (1989)( "[T]he rule is well settled `that the inclusion of a use in the ordinance is a per se finding that it is in harmony with the neighborhood"'). Thus, "it is generally held that an application for a special use permit may not be denied on the ground that the use is not in harmony with the surrounding neighborhood." Id., 196 Ill. 2d at 21-22, 749 N.E.2d at 929. In this case, the Commission denied Connections' special use application based on its erroneous interpretation and application of Section B, C, D, E, and G. As detailed below, the Commission erred in denying Connections' special permit application because the Commission's 6 decision ignored the competent and relevant evidence and was instead based on subjective lay community testimony. 1. There Are No Adverse Affects on Surroundine Properties The Commission determined that, based on testimony from community members, there would be an adverse effect on surrounding properties by "creating noise, traffic, and impacting the quality of life of the adjoining residents" and that the proposed building setbacks and roadway improvements "do not appear to be sufficient to mitigate the overwhelming concerns raised by surrounding property owners." The Commission's decision to deny the special permit, however, was impermissibly broad and non-specific, because it failed to discuss and provide particular "facts and circumstances that show that the particular use proposed at the particular location proposed would have any adverse effects above and beyond those inherently associated with such a special exception use irrespective of its location within the zone." City of Chicago Heights v. Living Word Outreach Full Gospel Church & Ministries, Inc., 196 111. 2d 1, 22, 749 N.E.2d 916, 929 (2001)(italics in original).' Here, the Commission made no such finding; nor was there evidence that the proposed school would have any adverse affects if placed at any location within the community. Moreover, none of the community members who testified presented any credible evidence that Connections would fail to mitigate the traffic or other community concerns. Connections and CBESS, on the other hand, presented unchallenged expert testimony, based on credible scientific methodology, on the traffic conditions and proposed recommendations to mitigate any adverse traffic impacts. See CBESS' Opening Brief at pgs. 35-40. Despite there being no testimony that refuted the traffic experts, the Commission nevertheless stated that it ' It must be noted that the Commission approved a special permit for the construction of a 100- bed nursing home off of Kaumana Drive. 7 "appeared" insufficient. There was no firm determination that it was indeed insufficient; nor was there a detailed explanation by the Commission on why it rejected the expert testimony and/or explaining why it appeared that the mitigation efforts were insufficient. As noted by the New York Court of Appeals: "[a]lthough scientific or expert testimony is surely not in every case required to support a zoning board determination, the board may not base its decision on generalized community objections." Twin Cnty, Recycling Corp. v. Yevoli, 90 N.Y.2d 1000, 1002, 688 N.E.2d 501, 502 (1997); see Westchester Day Sch. v. Vill. of Mamaroneck, 417 F. Supp. 2d 477, 566 (S.D.N.Y. 2006) affil, 504 F.3d 338 (2d Cir. 2007)("Under New York law... the results of empirical traffic analyses cannot be disregarded based upon community objections"); Sunderland Family Treatment Servs. v. City of Pasco, 127 Wash. 2d 782, 797, 903 P.2d 986, 994 (1995)(en bane)( "While the opposition of the community may be given substantial weight, it cannot alone justify a local land use decision."). Thus, without citation to any adverse evidence, the Commission's decision to deny the permit based on the community's subject traffic concerns is not supported by the record. Also, the Commission's determination that there would be an adverse effect "impacting the quality of life of the adjoining residents" lacks any factual support. Other than fear-based testimony and baseless assumptions, there was no credible evidence to support the indefinitely vague finding regarding "quality of life." Based on the foregoing, Connections submits that the Commission's conclusion that the proposed development would have an adverse affect on the surrounding properties is not supported by the evidence and testimony presented at the contested case hearing. 8 2. Burden on Public Astencies The Commission's rules state that there shall not be an unreasonable burden on public agencies to provide certain amenities and services, such as "roads, streets, sewers, water, drainage, school improvements, and police and fire protection." Commission Rule 6-3(b)(5)(C). In this case, the Commission determined that a limitation on the amount of water made available to the proposed school would pose a burden on the County to provide water. This interpretation, however, is misguided, as there is already a commitment by the County to provide a maximum of 4,200 gallons a day. There is no evidence that this allotment poses any burden upon the County. There is also uncontroverted evidence that if Connections requires additional water, Connections -- and not the County—bears the burden to obtain the water via alternative methods, such as the creation of a water catchment system or by the creation of a well. Thus, the Commission's determination that the County would be unreasonably burdened to provide water to the project is not supported by the weight of the evidence. Thus, the Commission's decision to deny the special permit on these grounds cannot be sustained. 3. Unusual Conditions,Trends and Needs The Commission interpreted Commission Rule 6-3(b)(5)(D) to deny the special permit because "there was no evidence presented to demonstrate that location of a school that is not intended to specifically service the needs of the immediate community is such an unusual condition, trends, or need that_justifies location of the Development at this location." Although the Commission correctly recognized the unusual conditions, trends and needs that has basically changed an area zoned agricultural into a residential community, it impermissibly created a requirement that Connections establish a need for a school at that particular location within the 9 community. A plain reading of the rule does not require Connections to justify a need for a school at a particular location; nor does it require that any permissible use within the applicable zoning be required to service the immediate community. This determination was made in excess of the Commission's authority and is plain error. A reasonable interpretation of the rule would have led to the conclusion that a special permit should issue as the proposed school development fits into the unusual conditions and trends that led to the County allowing low density urban use within this agricultural district per the Hawaii County General Plan. The Commission's application of the incorrect standard is in clear error. 4. The Property Is Not Suitable for Traditional Agriculture The Commission's determination that Connections' proposed use of hydroponics, aquaponics, and green houses meant that the property is suitable for agriculture ignores not only the "poor soil" designation assigned to the property,but also the fact that Connections is not using the property's soil to grow and cultivate crops. This is a significant distinction that the Commission failed to recognize. Viewed differently, Connections intent to use portions of the property to grow plants in pots instead of in the soil is an unusual yet reasonable use of non- prime agricultural land. The land, being poorly suited for agriculture, is apparently suitable for low density urban use, as the community has already transformed the agricultural area into a residential community. The Hawaii County Code has specifically permitted use of this land for schools and, among other things. day care centers, churches, and major outdoor amusement and 10 recreation facilities.2 Connections hired experts and submitted detailed studies and plans in support of its special permit application, which is a clear indication that this particular parcel is suitable for a school. Significantly, there was no testimony that this particular parcel of land would be "unsuitable" for use as a school. 5. The Proposed Development is Not Contrary to the General Plan The Commission's determination that the proposed development is contrary to the General Plan is arbitrary, clearly erroneous and against the weight of the evidence. The Commission concluded, without any analysis, that a school "that is not specifically intended to service the immediate community surrounding the school, is not consistent with the uses permitted in areas of low density urban use." It was apparent, however, that the Commission placed more emphasis on community concerns rather than determining, objectively, whether the proposed development is actually contrary to the general plan. As a threshold matter, the Commission should have engaged in an analysis of whether a school is an allowable use within its designated land use district. AIthough the subject property is zoned A-1(a) by the Hawaii County,' the County General Plan classifies the property as "low- density urban." The low-density Urban designation means that the area allows "residential, with ancillary community and public uses, and neighborhood and convenience-type commercial uses." Hawaii County General Plan at §14-1.1. While there is no specific provision for the construction of a school within a Iow-density urban district, none of the other urban designations 2 The Hawaii County General Plan even allows "ancillary community and public uses, and neighborhood and convenience type-commercial uses" on this type of property. 'Hawai'i County Code, §25-5-72(d)(7) allows the property to be used for a school only if a special permit is granted. 11 specifically allow for schools.4 Id. For instance, high density allows "[g]eneral commercial, multiple family residential and related services" while medium density allows for "[v]illage and neighborhood commercial and single family and multiple family residential and related functions." 5 The Hawaii County General Plan, however, was meant to be interpreted broadly as "land use pattern is a broad, flexible design intended to guide the direction and quality of future developments in a coordinated and rational manner." Under a broad and flexible interpretation of the land use designations, a school easily meets the requirements of a Iow density urban designation. Schools are "public facilities" and are considered to benefit the public and the community. See Hawaii County General Plan under §10.1.1, The proposed school also fulfills all of the "goals" identified by the Commission in its decision. For instance, it fulfills the "economic goal" of"full employment" by providing an influx of jobs into the community, as the school will require teachers, administrators, and custodians. §2.2(g). The economic benefits, however, should not be viewed as limited to the surrounding Kaumana community, as one of the economic goals states that "[d]evelopment should be reviewed on the basis of total impact on the residents of the County, not only in terms of immediate short run economic benefits." §2.2(h). Thus, the Commission's limited consideration of the economic impacts on the Kaumana community vis-a-vis Hawaii County was and is in error. It should also be noted that the development of a school fits squarely into Hawaii County's economic policy to "[s]upport all levels of education, employment and training opportunities and institutions." §2.3(t). a Other urban designations include high density, medium density, resort node, resort area, urban expansion, and industrial area. 5 Although there is a university designation, there is no specific allowance for an elementary or high school in the rural, agricultural, open and conservation area designations. Id. 12 Moreover, §10.2.4.2.1 sets forth's the County's educational policies for South Hilo, which services approximately 10,339 students from elementary through high school. 6 The Hawaii County General Plan identifies a course of action for South Hilo, which, as the Commission acknowledges, includes the encouragement to establish additional schools as the need arises. §10.2.4.2.2 (emphasis added). Instead of attacking the application based on the lack of need, the Commission simply stated that the proposed school, "at the subject location, is contrary to the general plan." Itis significant to note that the Commission's decision does not state that the proposed school, within the Kaumana community as a whole, is contrary to the general plan; rather, the Commission was very specific when it decided that it was not appropriate based solely on what appears to be "not in my backyard" backlash from the neighboring property owners. Connections is a public charter school that is already located within the Hilo area, with its current facilities located at the Kress Building in downtown Hilo and at the Nani Mau Gardens facility. Its proposed development not only tits within the parameters of a low-density urban designation, but also aligns with the Hawaii County General Plan, The Commission's hasty decision to reject the special permit was based on an erroneous application of the law and was arbitrarily made based on a vocal community outcry. Based on an objective application of the facts to the parameters set forth by the Hawaii County General Plan, the Commission should have approved the special permit. 'Kaumana Elementary School is located within the Hilo High School Complex. 13 V. CONCLUSION Based on the foregoing, Connections submits that the Commission's Findings of Fact, Conclusions of Law and Decision and Order should be reversed, and that the matter be remanded with instructions that the special permit application be granted. DATED: Honolulu, Hawaii, February 17, 2015 CAMT ER r. S TV Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 14 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO. 14-1-0223 SUPPORT SERVICES; CONNECTIONS } (AGENCY APPEAL) NEW CENTURY PUBLIC CHARTER } SCHOOL; ) CERTIFICATE OF SERVICE Applicants-Appellants ) vs. ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; ) Appellee, ) And ) JEFFREY GOMES, Intervenor, ) Intervenor-Appellee ) Judge: The Honorable Ronald Ibarra } } } CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 17, 2015, the undersigned caused a true and correct copy of the foregoing document to be served on the following persons by U.S. Mail, postage prepaid: Ted H.S. Hong, Esq. Attorney at Law P. O. Box 4217 Hilo, HI 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES Danny B. Patel, Esq. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII Michael J. Matsukawa, Esq. 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, Hawaii 96740 Attorney for intervenor-Appellee JEFFREY K. GOMES DATED: Honolulu, Hawaii, February 17, 2015. Acasli— Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 2 MICHAEL J. MATSUKAWA, 1885-0 Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Telephone No. : (808) 329-1385 Attorney for Appellee-Intervenor o JEFFREY K. GOMES N�3 er rte,-.nom � N IN THE CIRCUIT COURT OF THE THIRD CIRCUITo n s STATE OF HAWAII --nn = 0 COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223�1- SUPPORT SERVICES and CONNEC- (Agency Appeal) CD TIONS NEW CENTURY PUBLIC ) CHARTER SCHOOL, ) INTERVENOR-APPELLEE JEFFREY K. Applicants-Appellants, ) GOMES' ANSWERING BRIEF TO OPENING BRIEF OF APPLICANT- vs . ) APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES WINDWARD PLANNING COMMISSION, ) FILED DECEMBER 24 , 2014 ; COUNTY OF HAWAII; DEPARTMENT OF ) APPENDICES 111" TO "6" ; PLANNING, COUNTY OF HAWAII, ) CERTIFICATE OF SERVICE } Appellees, ) } and ) } JEFFREY GOMES, ) Intervenor-Appellee . } } 112614.15\j-gomes\answer.brf INTERVENOR-APPELLEE JEFFREY K. GOMES' ANSWERING BRIEF TO OPENING BRIEF OF APPLICANT- APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES FILED DECEMBER 24 . 2014 SUBJECT INDEX Page Table of Authorities A. COUNTERSTATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 C. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1 . Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2 . Nature and Scope of Agency Discretion . . . . . . . . . . . . . . 8 3 . Constitutional Public Trust Standards . . . . . . . . . . . . . 10 D. CRESS' LACK OF STANDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 E . ARGUMENT 1 . The Public Natural Resources Trust a. THE APPLICANT-APPELLANT CBESS DID NOT ASSIGN ERROR TO THE APPELLEE WINDWARD PLANNING COMMISSION' S DECISION THAT THE PROPOSED USE IS INCONSISTENT WITH THE PUBLIC NATURAL RESOURCES TRUST AND IS BOUND THEREBY . . . . . . . . . . . . . . . . . . . . . . . . . 11 b . THE APPELLEE WINDWARD PLANNING COMMISSION MADE A THOROUGH ANALYSIS OF THE PUBLIC NATURAL RESOURCES TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 C. THE APPELLEE WINDWARD PLANNING COMMISSION' S DECISION ON THE PUBLIC NATURAL RESOURCES TRUST IS FREE OF ERROR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 2 . Regarding Agency Discretion THE "KOREAN BUDDHIST TEMPLE" INVOLVED MANY PRINCIPLES THAT ARE WORTHY OF CONSIDERA- TION IN THIS AGENCY APPEAL . . . . . . . . . . . . . . . . . . . . . . . . 16 i Subject Index, continued Page 3 . Regarding the General Plan THE APPLICANT-APPELLANT CBESS MISSTATES THE LAW REGARDING THE HAWAII COUNTY PLANNING COMMISSION' S RELIANCE ON THE HAWAII COUNTY GENERAL PLAN IN THEIR REVIEW OF A DEVELOPMENT PERMIT . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 4 . As to the Appelle Windward Planning Commission' s Other Specific Findings a . THERE IS SUBSTANTIAL EVIDENCE IN THE AGENCY RECORD TO SUPPORT THE APPELLEE WINDWARD PLANNING COMMISSION' S FINDING THAT THE PRESENT LACK OF POTABLE WATER MAKES THE PROPOSED CHARTER SCHOOL AN "UNREASONABLE" USE 21 b. THE APPELLEE WINDWARD PLANNING COMMISSION WAS REQUIRED TO CONSIDER THE IMPACTS OF THE PROPOSED CHARTER SCHOOL ON THE ENTIRE COMMUNITY, INCLUDING IMMEDIATELY SURROUNDING NEIGHBORHOODS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 C . THE APPELLEE WINDWARD PLANNING COMMISSION PROPERLY EVALUATED THE IMPACTS OF TRAFFIC 27 d. THE APPELLEE WINDWARD PLANNING COMMISSION PROPERLY DETERMINED THAT OWNERS OF SURROUNDING PROPERTIES WOULD BE ADVERSELY AFFECTED BY THE USE OF PUBLICLY OWNED LAND FOR A MULTI-PHASED CHARTER SCHOOL . . . . . . . . . . . . . . . . . . 30 e . THE APPELLEE WINDWARD PLANNING COMMISSION IS CORRECT THAT THE LAND IS STILL SUITABLE FOR AGRICULTURE . . . . . . . . . . . . 30 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 ii TABLE OF AUTHORITIES Page Primary Sources Association of Apartment Owners v. venture I5, Inc. , 115 Haw. 232 , 167 P .3d 225 (2007) . . . . . . . . . . . . 13 Farmer V. Administrative Director of Court, 94 Haw. 232 , 11 P . 3d 457 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . 9 Fratinardo v. Employees, Retirement System, 129 Haw. 107, 295 P. 3d 977 (Haw. App. 2013) . . . . . . . . . . . . . . . . . . . . . . . I . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Hui Ala Loa v. Planning Commission, 68 Haw. 135, 705 P .2d 1305 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 33 In Re 'Tao Ground Water Management High-Level source Water use Permit Applications, 128 Haw. 228 , 287 P. 3d 129 (2012) . . . . . . . . . . . . . . . . . . . . . 7-8 Kauai Springs v. Planning Commission, 133 Haw. 141, 324 P. 3d 951 (2015) . . . . . . 3 , 4, 10 , 11, 12, 13 , 14, 15, 19, 23 Kelly v. 1250 Oceanside Partners, 111 Haw. 205 , 140 P . 3d 985 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Korean Buddhist Dae Won Sa Temple v. Sullivan, 87 Haw. 217, 953 P. 2d 1315 (1998) . . . . . . . . . . . . . . . . . . 16, 17 Molokai Homesteaders Cooperative v. Cobb, 63 Haw. 453 , 692 P. 2d 1113 (1981) . . . . . . . . . . . . . . . . . . . . . . 25 Save Sunset Beach Coalition v. City and County of Honolulu, 102 Haw. 465 , 78 P. 3d 1 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Southern Foods Group L.P. v. State, 89 Haw. 443 , 974 P. 3d 1033 (1999) . . . . . . . . . . . . . . . . . . . . . . . 9 iii Table of Authorities, continued Page State v. Moses, 102 Haw. 449, 77 P . 3d 940 (2003 ) . . . . . . . . . . . . 18 Ueoka v. Szymanski, 107 Haw. 386, 114 P. 3d 892 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Waikiki Resort Hotel v. City and County, 63 Haw. 222 , 624 P .2d 1353 (1981) . . . . . . . . . . . . . . . . . . . . . . 13 Other Cases Cambodian Buddhist Society v. Planning & Zoning Commission, 285 Conn. 381, 941 A. 2d 868 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 , 27, 30 City of Colorado Springs v. Securcare Self Storage, Inc. , 2000 Colo. J.C.A.R. 5356 , 10 P . 3d 1244 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Deffenbaugh Industries, Inc. v. Potts, 802 S .W. 2d 520 (Mo . App. 1990) 29, 30 Legislative Sources State Admission Act, Section 5 (f) (1959) . . . . . . . . . . . . . . . . . 4 , 31 Hawaii State Constitution Article XI, Section 1 . . . . . . . . . . . . . . . . . . 2, 4 , 5 , 6, 12, 13 iv Table of Authorities, continued Page Hawaii Revised Statutes Section 91-2 (a) (3) . . . . . . . . . . . . . . . . . . . . . . . . I . . . . . . . . . . . . 19 Section 91-1 (4) . . . . . . . . . . . I . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Section 91-10 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Section 91-14 (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Section 205-6 . . . . . . . . . . . . . . . . . . . 2 , 3 , 4 , 6, 8 , 12 , 15, 16 Section 205-6 (d) & (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Section 226-7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Section 226-11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Section 226-19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Sections 226-21 & 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Section 226-58 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Section 302D-25 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Chapter 343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Hawaii Administrative Rules Rules 11-200-9 (a) (1) & (b) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Rule 15-15-95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Hawaii Rules of Civil Procedure Rule 72 (f) (2) (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Hawaii Rules of Appellate Procedure Rule 28 (b) (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 v Table of Authorities, continued Page Hawaii County Charter Section 3-15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Section 6 . 7 . 2 (b) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Section 6-7 . 5 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Section 13-29 . . . . . . . . . . . . . . . . . . . 2, 3 , 4 , 5 , 6, 11, 12, 13 Hawaii County General Plan Ordinance 05-25 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9, 17, 32, 33 Part 1 . 1 . . . . . . . . . . . . . . . . . . I . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Part 8 .2 to 8 .4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Part14 . 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Part 10 . 2 . 2 . . . . . . . . . . . . . . I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Hawaii County Code Chapter 25 (Zoning Code) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Hawaii County Planning Commission Rules Rule6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Rule 6 (b) (5) D & F . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Rule 6-3 (b) (5) (G) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Rule 6-7 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 vi INTERVENOR-APPELLEE JEFFREY K. GOMES' ANSWERING BRIEF TO OPENING BRIEF OF APPLICANT- APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES FILED DECEMBER 24 , 2014 This agency appeal arises out of the Appellee Windward Planning Commission' s May 19, 2014 decision to deny the Applicant- Appellant Community Based Education Support Services' petition, or application, for a Special Permit to build and operate a charter school on publicly owned land located in South Hilo, Hawaii . The Connections New Century Public Charter School (also called "CONNECTIONS" hereafter) , who is a co-applicant for the Special Permit, filed its own and separate notice of appeal herein on June 19 , 2014 . The Intervenor-Appellee Jeffrey K. Gomes files this Answering Brief to the Applicant-Appellant Community Based Education Support Services, Opening Brief filed on December 24, 2014 . Summary of Answer The Applicant-Appellant Community Based Education Support Services ( "CBESS") does not challenge the Appellee Windward Planning Commission' s denial of its special Permit application under the public natural resources trust and, therefore, is bound by the Commission' s final decision. Furthermore, The Applicant- Appellant CBESS lacks judicial standing to pursue this agency appeal . As to the errors that the Applicant-Appellant CRESS assigns on its appeal, CBESS waived many of its objections below. Finally, the agency record supports the Appellee Windward Planning Commission' s decision and the Applicant-Appellant CBESS' allega- tions of agency "favoritism" or "bias" is unfounded. This Court should affirm the Commission' s decision and should dismiss this agency appeal . A. COUNTERSTATEMENT OF THE FACTS' When the Applicant-Appellant Community Based Education Services (also called "CRESS'" ) asked the Appellee windward Planning Commission to review its proposal to use publicly owned land' pursuant to a Special Permit application under Section 205-6, HRS (the Special Permit law) , 3 its request automatically triggered an independent review of the proposed use under the public natural resources trust as required by Article XI, Section 1 of the Hawaii State Constitution4 and Section 13-29 of the Hawaii County Charter 1 Citations are made to the page number of the agency' s written record on appeal and to the specific document by its name. Z The land is a 70-acre parcel of land in South Hilo, Hawaii lying near Kaumana Drive. See Appendix "15 . " The State Department of Land and Natural Resources issued General Lease No. 5-6029 to the Connections New Century Public Charter School of Hilo, Hawaii for "education purposes . " (Record on Appeal 1934- 1959, Document 322 filed January 10 , 2013) 3 "" [T] he county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified. " (Appendix '"1) The County Planning Commission may impose "protective conditions" and issue a permit "only when the use would promote the effectiveness and objectives of this chapter [205] . " 4 "For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii' s natural beauty and all natural resources, includingland, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self- sufficiency of the State . All public natural resources are held in 2 (effective November 2010) . 5 The Special Permit application triggered the public natural resources trust review process because the land on which the charter school is proposed to be built is publicly owned and is a public resource . As the Hawaii Supreme Court has stated in the past, the County, as a political subdivision of the State, must exercise its public natural resources trust duties whenever a county agency reviews a development permit that affects a publicly owned resource like land and water. See Kelly v. 1250 Oceanside Partners, 111 Haw. 205, 226 , 140 P. 3d 985, 1006 (2006) (review of county grading permits for effect on off-shore water) ; Kauai Springs v. Planning Commission, 133 Haw. 141, 173 , 324 P. 3d 951, 983 (2014) (review of special permit and other county land use approvals affecting water) . Thus , in this instance, the Appellee Windward Planning Commission, as the permitting agency for a development permit, was obligated to not only consider the appropriateness of the Applicant-Appellant CBESS' Special Permit application under Section 205-6 , HRS (the Special Permit law) , but to also consider the trust by the State for the benefit of the people. " (emphasis added) 5 "For the benefit of present and future generations, the county shall conserve and protect Hawaii' s natural beauty and all natural resources, including land, water, air, minerals and energy sources, wahi pana, surf spots, historic sites, and historic structures, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State . All public natural resources are held in trust by the county for the benefit of the people. " (emphasis added) 3 appropriateness of the proposed use from a constitutional stand- point under the Hawaii State Constitution (Article XI, Section 1) and the Hawaii County Charter (Section 13-29) . Id. , 133 Haw. 172 , 177, 324 P. 3d at 982 , 987 (public trust duty is independent of agency' s other statutory duties) . The Appellee windward Planning Commission had to review and did review the relevant facts in light of many federal, state and county policies such as : (1) the 1959 Admission Act' s ceded land trust provision in Section 5 (f) governing the competing use of ceded (public) land' for the support of public schools, ' the betterment of conditions for native Hawaiians, the widespread development of farms and homes, public improvements and public uses; _L21 the Hawaii Environmental Protection Act governing an environmental assessment where the use of state lands is involved, Chapter 343 , HRS ; _C31 the Special Permit provisions of Section 205- 6, HRS governing "unusual and reasonable" uses in the Agriculture District and agency rules HAR 15-15-95 and Planning Commission Rule 6 ; (4) the State Planning Act' s policies relating to land based resources, Section 226-11, agriculture, Section 226-7, housing, Section 226-19, education, Sections 226-21 & 107, and county general plans, Section 226-58 ; _� the Hawaii County General Plan Ordinance 05-25' s provisions relating to public land, Part 14 . 9, 6 According to the Department of Land and Natural Resources, the land in question is ceded land. (Record on Appeal 938, DLNR Staff Report) ' A charter school is deemed to be a "public school . " See Section 302D-25 (e) , HRS . 4 education, Part 10 . 2 . 2 , $ natural resources, Parts 8 . 2 to 8 .4, and open space, Part 14 . 8 ; J_6__ the Hawaii State Constitution' s public natural resources trust provisions in Article XI, Section 1 and the parallel Hawaii County Charter provision, Section 13-29, and (7) county land use policies reflected in the county Zoning Code, Chapter 25 . As the record indicates, the Appellee Windward Planning Commission received substantial evidence as well as competing arguments on the question of whether the Commission should or should not allow the charter school to be constructed and operated on publicly owned land. After giving due consideration to the voluminous record, the Appellee Windward Planning Commission voted on May 1, 2014 to deny the Applicant-Appellant CRESS' Special Permit application. ' on appeal, the Applicant-Appellant CBESS argues that the Appellee Windward Planning Commission had but one option based on the record, which was to approve the Special Permit application. However, the Appellee Windward Planning Commission' s decision also constitutes an independent determination that the proposed use of publicly owned land for a charter school is inconsistent with the public natural resources trust (and Section 13-29 of the Hawaii 6 The text of Part 10 . 2 .2 acknowledges that charter schools are to be treated as "Public schools . " ' The Appellee Windward Planning Commission had actually voted previously, on January 10, 2013 , to deny the application. (Record on Appeal 2001, Document 325) (See also finding No. 5 , Record on Appeal 4301, Decision, Finding No . 4 , Appendix "16 . "" ) 5 County Charter) and the Applicant-Appellant CBESS DOES NOT assign error to this aspect of the Appellee Windward Planning Commission' s decision. B. QUESTIONS PRESENTED 1 . Did the Appellee Windward Planning Commission err when it denied the special Permit application on grounds that the proposed use does not constitute a "reasonable and beneficial" use of publicly owned land under the public natural resources trust in Article XI, section 1 of the Hawaii State Constitution and Section 13-29 of the Hawaii County Charter? 2 . Did the Applicant-Appellant CBESS waive any error to the Appellee Windward Planning Commission' s decision described in Question 1? 3 . Did the Appellee Windward Planning Commission err in denying the Special Permit application on grounds that the proposed use does not constitute an "unusual and reasonable" use of publicly owned land under section 205-6, HRS and the applicable agency rules? 4 . If the Appellee Windward Planning Commission' s decision is binding on the Applicant-Appellant CBESS under the public natural resources trust (Question 1, above) , is it necessary for this Court to consider Question 3 , above? C. STANDARD OF REVIEW The standard of Review is very important in this agency 6 appeal because the land on which the charter school is proposed to be built and operated is publicly owned land (a public resource) and because the Appellee Windward Planning Commission has very broad and substantial discretion in this instance . 1 . Generally The grounds for review in an agency appeal are set forth in Section 91-14 (g) , HRS . Further, in In Re �Iao Ground Watez Management Area High-Level Source Water Use Permit Applications, 128 Haw, 228, 238 , 287 P. 3d 129, 139 (2012) , a case in which the water commission adopted its hearings officer' s recommended findings and conclusions, the Hawaii Supreme Court added the following as to the judicial standard of review: "This court' s review is . . . qualified by the principle that the agency' s decision carries a 1presumiption of validit , and appellant has the heavy burden of making a convincing showing that the decision is invalid because it is unjust and unreasonable in its consequences . " In re Wailola O Molokali, Inc. , 103 Hawaii 401, 420, 83 P. 3d 664, 683 (2004) (citations, brackets omitted) . "FOFs are reviewable under the clearly erroneous standard to determine if the agency decision was clearly erroneous in view of reliable, probative, and substantial evidence on the whole record. " Id. at 421, 83 P. 3d at 684 (citations, brackets omitted) . "COLS are freely reviewable to determine if the agency' s decision was in violation of constitutional or statutory provisions, in excess of statutory authority or jurisdiction of agency, or affected by other error of law. " Id. (citations, brackets omitted) . 7 A COL that presents mixed questions of fact and law is reviewed under the clearly erroneous standard because the conclusion is dependent upon the facts and circum- stances of the particular case. When mixed questions of law and fact are presented, an appellate court must give deference to the agency' s expertise and experience in the particular field. The court should not substitute its own judgment for that of the agency. Waiahole I, 94 Hawaii at 119, 9 P. 3d at 431 (citations, brackets omitted) . An FOP or a mixed determination of law and fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding or determination, or (2) despite substantial evidence to support the finding or determination, the appellate court is left with the definite and firm conviction that a mistake has been made . "We have defined ' substantial evidence' as credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion. " Id. (citation omitted) . (emphasis added) See also Fratinardo v. Employees) Retirement System, 1.29 Haw. 107, 1.10-111, 295 P. 3d 977, 980-981 (Haw. App. 2013) (a case where the agency also adopted its hearings officer' s recommendations) that held: " [1] n deference to the administrative agency' s expertise and experience in its particular field, the courts should not substitute their own judgment for that of the administrative agency where mixed questions of fact and law are presented. This is particularly true where the law to be applied is not a statute but an administrative rule promulgated by the same agency interpreting it. Camara v. Agsalud, 67 Haw. 212 , 216, 685 P .2d 794 , 797 (1984) . 2 . Nature and Scope of Agency Discretion Section 205-6, HRS gives the Appellee Windward Planning Commission substantial discretion to issue or to deny a Special 6 Permit . " In Save Sunset Beach Coalition v. City and County of Honolulu, 102 Haw. 465, 479, 78 P. 3d 1, 15 (2003) , the Hawaii Supreme Court explained that an agency may consider "guidelines, " but ultimately is guided by its own discretion: We conclude that [the agency' s] "use" or considera- tion of the four guidelines expressed in ROH § 21-5 . 30 (c) are mandatory, but that the ultimate designation decision arising out of that mandatory consideration must, of necessity, involve the exercise of discretio_a. . . . Such consideration, however, involves the application of "guidelines. " Hence, "guidelines [, ] " as defined in ROH § 21-5 . 30 denote individual factors that are not mandatory in themselves, but instead provide direction or guidance with respect to the ultimate decision to rezone. . . . (citations omitted) (emphasis added) In other words, the decision to approve or to deny a Special Permit always remains within the Planning Commission' s discretion. As to what constitutes "discretion, " see Farmer v. Administrative Director of Court, 94 Haw. 232, 237, 11 P. 3d 457, 462 (2000) ; Southern Foods Group L.P. v. State, 89 Haw. 443 , 452 , 974 P. 2d 1033 , 1042 (1999) ( "discretion denotes the absence of a hard and fast rule; " "discretion" is action done with regard to "what is right and equitable under the circumstances and the law" ) . The reason for the court' s deference to an agency' s exercise of discretion is to "Preserve the function of administrative agencies in discharging their delegated duties and function. "" Southern Foods Groun� L.P. V. State, supra, 89 Haw. at 453 , 974 P. 2d at 1043 . 10 "" [T] he county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified. " (Appendix ""4"1 ) 9 3 . Constitutional Public Trust Standards As stated above, the affected land on which the proposed charter school is to be constructed and operated is publicly owned land and the public natural resources trust therefore comes into play. In this regard, courts apply a heightened standard of review when the public natural resources trust is relevant . Kauai Springs v. Planning Commission, supra, 133 Haw. at 154-155, 324 P. 3d at 974-975 : Review of an agency decision under the constitu- tional public trust doctrine requires additional rigor. "Clarity in the agency' s decision is all the more essen- tial ' in a case such as this where the agency performs as a public trustee and is duty bound to demonstrate that it has properly exercised the discretion vested in it by the constitution and the statute. " (citation omitted) ITl he special public interests in trust resources demand that this court observe certain qualifications of its standard of review. As in other cases, agency decisions affecting public trust resources carry a presumption of validity. The presumption is particularly significant where the appellant challenges a substantive decision with the agency' s expertise as "clearly erroneous, " "arbitrary, " "capricious, " or an "abuse of discretion. " In light of the duty imposed on the state under the public trust doctrine, we have stated we must take a "close look" at agency decisions that involve the public trust . (citations omitted) Questions of constitutional law require the court to "exercis [e] its own independent judgment based on the facts of the case" under the right or wrong standard. (citations omitted) "Under the right or wrong" standard, this court examines the facts and answers the question without being required to give any weight to the trial court' s answer to it . " (citations omitted) (emphasis added) 10 The same standard should be applied to the County' s parallel public natural resources doctrine in Section 13-29 of the Hawaii County Charter. As for the interaction between the public natural resources trust and the Special Permit law, Kauai Springs v. Planning Commission, supra, 133 Haw. at 177, 324 P . 3d at 987 , states : Relevant to the Special Permit, HRS § 205-6 provides that the Planning Commission may only grant the special permit for "certain unusual and reasonable uses" within the agricultural district "when the use would promote the effectiveness and objectives" of HRS Chapter 205 . The express purpose of HRS Chapter 205 is to conserve "water resources and land. " Curtis v. Bd. of Appeals, Cnty, of Haw. , 90 Hawaii 384, 396, 978 P.2d 822 , 834 (1999) (citing Hse . Stand. Comm. Rep. No. 395 , in 1961 House Journal, at 855-56) . Therefore, the Planning Commission was required to deny the Special Permit if issuance was contrary to the protection of natural resources . (emphasis added) D. CBESS' LACK QF STANDING The Intervenor-Appellee Gomes previously questioned the standing of the Applicant-Appellant CBESS to bring this agency appeal . This Court denied Intervenor-Appellee Gomes' motion thereon (argument held on February 10 , 2015) and the Intervenor- Appellee Gomes reasserts his objections to the Applicant-appellant CBESS' standing. E. ARGUMENT 1 . The Public Natural Resources Trust a. THE APPLICANT-APPELLANT CBESS DID NOT ASSIGN ERROR TO THE APPELLEE WINDWARD PLANNING COMMISSION' S DECISION THAT THE PROPOSED USE IS INCONSISTENT WITH THE PUBLIC NATURAL RESOURCES TRUST AND IS BOUND THEREBY. 11 The Hawaii Supreme Court decided the case of Kauai Springs v. Planning Commission, supra, on February 28 , 2014, two months before the Appellee Windward Planning Commission voted to deny the Special Permit application on May 1 2014 . Although the Appellee Windward Planning Commission did not specifically use the words "public natural resources trust" or refer to the Kauai Spring case in its written decision (Appendix "6" ) , the agency record shows that the Commission weighed the public policies referred to in Part A, Pages 4-5, above, against the facts that were before the Commission." In substance, the Appellee Windward Planning Commission' s decision rests on two separate and independent theories, or sets of decision criteria -- (1) the Special Permit provisions in Section 205-6 and Planning Commission Rule 6 -and- (2) the public natural resources trust provisions in Article XI, Section 1 of the Hawaii State Constitution (and Section 13-29 of the Hawaii County Charter) . Kauai Springs v. Planning Commission, supra. It is clear from the Appellee windward Planning Commission' s decision and the agency record that the Commission' s decision is based on BOTH theories and BOTH sets of decision criteria. As stated above, the Applicant-Appellant CBESS only assigns error to the Appellee Windward Planning Commission' s 11 The facts are not labelled as "Special Permit-facts" or as "Public Trust-facts . " The facts are the facts and the Appellee windward Planning Commission had to consider their relevance to the Special Permit decision criteria as well as to the public natural resources trust decision criteria. Some of the facts were applicable to both subjects . See Kauai Springs v. Planning Commission, supra, 133 Haw. at 169, 324 P. 3d at 977 (common facts) 12 decision based on the Special Permit decision criteria and DOES NOT challenge the Appellee Windward Planning Commission' s decision based on the public natural resources trust . Errors not assigned are deemed to be waived. Waikiki Resort Hotel v. City and County, 63 Haw. 222 , 250 , 624 P. 2d 1353 , 1372 (1981) ; Association of Apartment Owners v, Venture 15, Inc. , 115 Haw. 232 , 257, 167 P. 3d 225, 240 (2007) ; see also Rule 28 (b) (7) , HRAP (points not raised are waived) ; Rule 72 (f) (2) (A) (opening brief in agency appeal to circuit court to include questions raised for decision) . b . THE APPELLEE WINDWARD PLANNING COMMISSION MADE A THOROUGH ANALYSIS OF THE PUBLIC NATURAL RESOURCES TRUST. Although the Appellee Windward Planning Commission' s decision does not cite Article XI, Section 1 of the Hawaii State Constitution or Section 13-29 of the Hawaii County Charter, the points set forth in its decision give this Court a sufficient "road map" by which this Court can "track" the Commission' s decision- making process and the reasons offered in support therefor. See Kauai Springs v. Plannixla Commission, supra. The agency record also furnishes this Court with the requisite "facts"" upon which this Court can make its "own independent judgment" on the proposed use' s consistency with the public natural resources trust and whether the Commission acted properly in denying the Special Permit application on that basis . Under Kauai Springs v. Planning Commission, supra, the Hawaii Supreme Court required the Appellee Windward Planning Commission to do the following in context of the public natural 13 resources trust and the record demonstrates that the Commission acted accordingly. An agency must take the initiative in considering, protection, and advancing public rights in the resources at every stage of the planning and decision-making process . * * * The agency measures the proposed use under a "reasonable and beneficial use" standard, which requires examination of the proposed use in relation to other public and private uses . * * * The agency must apply a presumption in favor of public use, access, enjoyment, and resource protection. * * * Additionally, the applicant must demonstrate the absence of a practical alternative . * * * Lastly, if the impact is found to be reasonable and beneficial, then in light of the cumulative impact of existing and proposed diversions on trust purposes, the applicant must implement reasonable measures to mitigate this impact . * * * (emphasis added) The Office of Planning offered its view that a Special Permit might be appropriate in this instance (Record on Appeal 401- 404, Document 27 , filed October 3 , 2012) and the Department of Land and Natural Resources issued General Lease No. 5-6029 for 70 acres of publicly owned land for the proposed charter school (Record on Appeal 1934-1959, Document 322 , filed January 10 , 2013 ) , 12 but neither agency conducted its own public trust analysis . In any event, the final decision-making authority and responsibility fell on the Appellee Windward Planning Commission. Obviously, the 12 Under Paragraph 6 of the lease, the lessee must comply with all laws applicable to the use of the publicly owned land under lease such as Section 205-6 , HRS dealing with a Special Permit . 14 Commission did not agree with the Office of Planning and the Department of Land and Natural Resources that the construction of a charter school on publicly owned land is a "reasonable and beneficial" use of the land, but the Commission was the assigned decision-maker in this instance . 13 Contrary to the Applicant- Appellant CBESS' argument (opening Brief, Pages 46-49) , the Office of Planning is not the "paramount" decider. 14 C . THE APPELLEE WINDWARD PLANNING COMMISSION' S DECISION ON THE PUBLIC NATURAL RESOURCES TRUST I5 FREE OF ERROR. The Appellee Windward Planning Commission' s decision as to the public natural resources trust (and Section 13-29 of the Hawaii County Charter) is presumptively valid, Kauai Springs V. Planning Commission, supra, 133 Haw. at 164-165 , 177 , 234 P. 3d at 974-975 , 967 , 15 and is not challenged by the Applicant-Appellant CBESS . �3 Under Section 205-6 (d) & (e) , HRS, the State Land Use Commission reviews the planning commission' s decision to approve a Special Permit affecting more than 15 acres of land, but not a decision to deny an application for a Special Permit . 19 The Applicant-Appellant CBESS also argues the County planning commissions cannot "interpret State law. " (Opening Brief, Page 49) On the same page, however, CBESS states "Section 205-6, HRS, allows the Commission to determinr [sic] whether the application is consistent with state law. " 15 Finding of Fact No . 63 states, "The construction of a school on the Property is an unusual use of the land . . . . However, the evidence presented does not demonstrate that the Development is a reasonable use of the Property (Appendix 11611 ) 15 2 . Regarding Agency Discretion THE "KOREAN BUDDHIST TEMPLE" CASE INVOLVED MANY PRINCIPLES THAT ARE WORTHY OF CONSIDERATION IN THIS AGENCY APPEAL. In Korean Buddhist Dae Won Sa Temple v. Sullivan, 87 Haw. 217, 953 P. 2d 1315 (1998) , the Hawaii Supreme Court affirmed the City' s decision to deny the applicant' s request for a variance from the City' s building code' s height limitation. Although a variance is not equivalent to a Special Permit, it is still one form of a discretionary land use approval and the court' s discussion is help- ful to understand the function and depth of an agency' s discre- tion.16 In affirming the City' s decision to deny the variance application, the court noted that a " ' reasonable use' of the land . . . is not necessarily the use most desired by the owner. 11 Id. , 87 Haw. at 234, 953 P . 2d at 1332 . The court observed further that the applicant had knowingly selected the parcel with all of its known attributes and that the problem (building the roof beyond height limits) was a "self created" problem. Id. , 87 Haw. at 235 , 953 P. 2d at 1333 . Also, the court held that the complaints raised by neighbors who felt "oppressed" and "resentful" demonstrated that the proposed variance would result in the alteration of the essen- tial character of the neighborhood. Id. , 87 Haw. at 235-236, 953 16 These points are similar to the criteria in Rule 6 (b) (5) D F, Rule 6-7 (a) and Section 205-6, HRS (Appendix 11211 ) . 16 P. 2d at 1333-1334 . " The agency record in this instance has many parallels to the Palolo Valley Buddhist Temple case. Here, the Applicant- Appellant CBESS selected the parcel for its proposed school site, knowing that the land was publicly owned, was surrounded by residential neighborhoods, had a limited supply of potable water and had limited street access by way of Kaumana Drive and Edita Street and, more importantly, knowing that a major discretionary land use permit was required. The neighbors in this instance complained of the development' s off-site impacts on their "quality of life, " not just traffic. 3 . Regarding the General Plan THE APPLICANT-APPELLANT CBESS MISSTATES THE LAW REGARDING THE HAWAII COUNTY PLANNING COMMISSIONS' RELIANCE ON THE HAWAII COUNTY GENERAL PLAN IN THEIR REVIEW OF A DEVELOPMENT PERMIT. At Pages 16 to 24 of its Opening Brief, the Applicant- Appellant CBESS engages in an extensive discussion of the Hawaii County General Plan Ordinance 05-25 and the authority of the Hawaii County Planning Commissions (Leeward and windward) to consider the General Plan' s policies when they review development permit applications . " Notwithstanding the Applicant-Appellant CBESS' " Neighbors had complained of "damage, noise, pollution, and other interference with their property, " the "effects of the imposing size of the Hall" and "a sense of being overshadowed in their homes and yards . " Td. , 87 Haw. at 225, 953 P . 2d at 1323 . 1B In the Appellee Windward Planning Commission' s Finding No. 62 , the Commission found that the proposed use "at the subject location is contrary to the general plan" and in Finding No. 59 that a school "is not consistent with the uses permitted in the 17 extended arguments, this Court should note that CRESS, in its application and arguments below, DID NOT QUESTION the Appellee Windward Planning Commission' s authority to consider and to apply the General Plan' s policies to its petition, or application, for a Special Permit . To the contrary, the Applicant-Appellant CBESS went to great lengths below to refer the Appellee Windward Planning Commission to specific portions of the General Plan that CBESS felt the Commission was "compelled" to follow in its decision-making. See Petition (Record on Appeal 35, 49-52, 151-152) ; Joint Proposed Findings of Fact (Record on Appeal 2494-2495) ; Prehearing Brief (Record on Appeal 2798 , 3811-3812) ; Joint Proposed Findings of Fact (Record on Appeal 4029-4030) ; Exceptions (Record on Appeal 4163- 4164) . Having argued below that the Appellee Windward Planning Commission had the authority and the obligation to consider and to apply the General Plan' s policies to the Special Permit applica- tion, the Applicant-Appellant cannot now take a different position on appeal . Ueoka v. Szymanski, 107 Haw. 386, 397, 114 P. 3d 892, 903 (2005) (judicial estoppel prevents a party from "blowing hot and cold") ; State v. Moses, 102 Haw. 449, 456, 77 P. 3d 940, 947 (2003) (objections waived if not presented below) . In any event, this Court can summarily dispose of the Applicant-Appellant CRESS' assignments of error regarding the General Plan (Commission Finding Nos . 36, 59, 62 and Conclusion No. area. " (Record on Appeal 4311, Decision, Appendix 11611 ) 18 5, Appendix 11611 ) as follows . (a) First, CBESS argues that the two Hawaii County Planning Commissions (Windward and Leeward) cannot look to the Hawaii County General Plan Ordinance 05-25 for guidance in their land use decision-making (Opening Brief, Pages 17-24) , but the purpose of a general plan is to guide development, see Section 3- 15, Hawaii County Charter, 19 and permitting agencies may consider the policies therein in their decision-making, see Kauai Springs v. Planning Commission, supra, 133 Haw. at 169, n. 19, 177, 324 P. 3d at 979, n. 19, 98720. (b) Second, the Applicant-Appellant CBESS continues that the two Hawaii County Planning Commissions (Windward and Leeward) had no authority to publish Planning Commission Rule 6-3 (b) (5) (G) (Appendix 112" ) that makes General Plan conformance a Special Permit "guideline" for decision-making. (Opening Brief, Pages 20-23) However, Section 6-7 . 5 (b) of the Hawaii County Charter states that county planning commissions are charged to "perform such other related duties and functions as may be necessary or required pursuant to law. " Sections 91-1 (4) and 2 (a) (3) , HRS and Section 6- 7 . 5 (b) of the Hawaii County Charter, which are "laws, " require county planning commissions to publish their "rule (s] of practice" 19 "The county council shall adopt by ordinance a general plan which shall set forth the council' s policy for long-range comprehensive physical development of the county. " 20 The opening text of the Hawaii County General Plan Ordinance 05-25 (Part 1 . 1) states that the General Plan "Provide [s] the framework for [land use and development] regulatory decisions . " 19 and "agency statement [s] " and the county planning commissions did SO . (c) Third, the Applicant-Appellant CRESS argues that county planning commissions cannot "penalize" applicants if their development proposals must or do not conform to (or as CRESS states, "violates") the General Plan' s policies . (Opening Brief, Pages 17-23) However, the actions of the county planning commissions cannot be construed as being penal in nature if the commissions simply disagree with an applicant as to whether a specific development proposal must or does not conform to the General Plan' s policies . (See footnote 18 , supra. ) (d) Fourth, the Applicant-Appellant CBESS further argues that county planning commissions cannot "interpret the General Plan" or "determine compliance with the General Plan" (Opening Brief, Pages 22-23) and that county planning commissions must follow the directions of the Planning Director because the Planning Director is the "administrative leader concerning the General Plan, " i .e. , county planning commissions have no discretion of their own. Under Section 6-7 .2 (b) (1) of the Hawaii County Charter, the Planning Director "advises" the county planning commission, but cannot dictate decision-making outcomes . 4 . As to the Agpellee Windward Planning Commission' s Other Specific Findings (Water) Opening Brief, Pages 25-31 20 a. THERE I5 SUBSTANTIAL EVIDENCE IN THE AGENCY RECORD TO SUPPORT THE APPELLEE WINDWARD PLANNING COMMISSION' S FINDING THAT THE PRESENT LACK OF POTABLE WATER MAKES THE PROPOSED CHARTER SCHOOL AN "UNREASONABLE" USE. The charter school' s plans are still in their "concep- tual" stage . Design details and calculations for the school are not available . School officials intend to obtain such details and calculations only if and after CONNECTIONS first obtains a Special Permit for the proposed charter school .21 The charter school is planned to accommodate about 381 students in the Kindergarten to 12th grades and 30 students in a non-traditional grade for a total of 411 students at a minimum. The school facilities will include classrooms and related buildings as well as a cafeteria, recreational and dormitory buildings . It is undisputed that the Applicant-Appellant CBESS has access to only 4, 200 gallons per day ("gpd" ) of potable water from the county water system (7 units at 600 gallons per unit per day) . At full build out, 22 the required volume is dependent upon which set of calculations one employs, ranging from 6, 858 gpd to 10 , 828 gpd (Record on Appeal 1680-1684 , Appendix "4" ; Record on Appeal 2745 , 21 The "uncertainty" that is created by "conceptual" planning is that many important subjects, not just water, are also "conceptual" in nature, making it difficult for all interested persons to make a reasoned response to a development that will continue to evolve long after the Special Permit is issued. This situation is made worse when the permitting agency is not asked to hold further hearings or to reserve jurisdiction over the development as the development "evolves . " 22 The phased development may take 16 to 25 years to build out . (Record on Appeal 33 , Petition) 21 6 a Transcript, Mr. Louma, Page 150) or up to 26 , 100 or 30 , 000 gallons per day (Record on Appeal 124, Environmental Assessment) . To address this issue, school officials propose to employ water efficient technologies, rainfall water catchment tanks and other strategies, including a well (Record on Appeal 125, Environ- mental Assessment) , and are willing to limit the charter school' s initial enrollment to 70 students (the number of students that 4, 200 gpd can support) lolus teachers and support staff, while postponing future enrollment and other activities until more potable water resources become available. This limitation is based on the Planning Department' s recommendation. (Record on Appeal 1227-1228 , Recommendation, Condition No. 3) However, the Appellee windward Planning Commission did not accept the Planning Department' s recommendation or the Applicant-Appellant CBESS' offer because, as stated in its Finding No. 22, "Connections has not produced any evidence to demonstrate that it has or can develop sufficient crater for the Development . " This fact was critical, in the Commission' s opinion, because the proposal was still "conceptual" in nature, without any 'hard evidence" on how and what water sources would actually be available over the life of the project . The Commission was not asked to reserve jurisdiction over the application so that it could review the school' s development over time (16 to 25 years) . Nor did the Planning Department request such a condition and the Commission refused to give a "blank check" for a project that was surrounded by this major "uncertainty. " More importantly, the Applicant- Appellant CRESS DID NOT assign error to Finding No. 22 . (See 22 Opening Brief, Page 3 . ) 23 The record demonstrates the willingness on the part of CONNECTIONS to accept a "conditional permit" that would limit its initial enrollment to 70 students (the maximum enrollment that 4, 200 gallons of water per day can support) , but still wanted an open-ended permit without further review by the Commission. However, an applicant for a discretionary development permit has the burden of proof and the burden of producing evidence. Section 91-10 (5) , HRS; see also Kauai Springs v. Planning Commission, supra. Knowing that it carried this burden, CONNECTIONS never- theless went before the Appellee Windward Planning Commission armed only with a "conceptual" plan that is dependent on yet-to-be designs, management strategies and more . It is no surprise that the Appellee Windward Planning Commission expected more and was not willing to give CONNECTIONS a "blank check" in this regard. In its Finding No. 63 , the Commis- sion held that "without sufficient potable water resources, " the use is not a "reasonable use" of the land. (Appendix 11611 ) The Applicant-Appellant CBESS then insinuates that the Appellee Windward Planning Commission would have, in the ordinary course, approved the Special Permit application but for the opposition of "well heeled" neighbors and that the Commission applied "different" standards in comparison to other Special Permit cases (Opening Brief, Pages 24 and 25) , but the record does not 23 CBESS did assign error to related Finding Nos . 48 , 49 , 50 , 51, 63 (Appendix 11611 ) . (Opening Brief , Pages 4 and 6) 23 support such assertions . As for the "conditional permit" that CONNECTIONS was willing to accept, in Hui Ala Loa v. Planning Commission, 68 Haw. 135, 137, 705 P. 2d 1042 (1985) , the court questioned the validity of a "conditioned permit" where an agency issues a permit based on facts that are known to be insufficient at the time of permit issuance, but that is conditioned on future actions being taken to cure the present insufficiency without further hearings . In Hui Ala Loa, the court was concerned with an agency' s practice of using "conditions" as a substitute for critical factual findings in public hearings . Compare with Cambodian Buddhist Society v. Planning & Zoning Commission, 285 Conn. 381, 445-446 , 941 A. 2d 868, 907 (2008) (agency could have issued conditional permit as to water and septic systems, but agency "was not required to do so" ) . It is curious that CONNECTIONS did not amend its application and simply ask for a special Permit to accommodate 70 students (the maximum enrollment in light of potable water resources) with the right to amend the Special Permit in the future, which amendment would then invite further public participa- tion and Planning Commission review as the "hard facts" regarding potable water became available . (The Community) Opening Brief, Pages 31-35 b. THE APPELLEE WINDWARD PLANNING COMMISSION WAS REQUIRED TO CONSIDER THE IMPACTS OF THE PROPOSED CHARTER SCHOOL ON THE ENTIRE COMMUNITY, INCLUDING IMMEDIATELY SURROUNDING NEIGHBORHOODS . CONNECTIONS prepared a Draft Environmental Assessment in 24 2009 as a condition to obtaining a lease of publicly awned land from the Department of Land and Natural Resources and then revised the same in 2010 as its Final Environmental Assessment . (Record on Appeal 26) The assessment document shows that CONNECTIONS confined its early pre-assessment consultation in 2009-2010 to public agencies on1Y.24 (Record on Appeal 165 to 257 , Exhibits A, B and C to Final Environmental Assessment) The OEQC rules require early pre-assessment consultation with "individuals, " not just with public agencies, and "at the earliest practicable time. " HAR 11-200-9 (a) (1) & (b) (1) . The purpose of these rules is obvious -- to "scope" out the concerns and potential impacts , real or perceived, held by those who live in the immediate vicinity of the proposed activity being assessed. In Molokai Hozuesteaders Cooperative v. Cobb, 63 Haw. 453 , 466, 692 P.2d 1134 , 1144 (1981) , the Hawaii Supreme Court explained more than 30 years ago that an assessment must also address the "secondary and non-physical effects of a proposal" and should also "include the socio-economic consequences of a proposed action, as well as its direct physical impact . " In Section 3 . 3 of the 2010 Final Environmental Assessment dealing with social impacts (Record on Appeal 135-136) , no mention is given to CONNECTIONS' neighbors or to the immediate surrounding community. Thus, when the Special Permit application went before the Appellee Windward Planning Commission, it is not surprising 24 Public informational meetings were held after the environmental document was completed. (Record on Appeal 946-981) 25 that numerous residents from surrounding neighborhoods, who had not been consulted during the environmental assessment process, stepped forth to express their opposition to the proposed charter school, not because of their enmity toward the students and teachers, but because of the many "uncertainties" of the proposal and the pro- ject' s unstudied off-site impacts on traffic as well as on their "quality of life, " i .e . , the non-physical impacts on their neigh- borhood that were never 11scoped out" or addressed early on. The Appellee Windward Planning Commission observed that community relations had broken down between CONNECTIONS' represen- tatives and surrounding residents, even though the Commission had asked CONNECTIONS' representatives to meet with the residents of neighboring communities . (Record on Appeal 1640) (See public testimony at Record on Appeal, Record Pages 405-411, 788-793 , 819- 822, 829-836, 841-844 , 846-848, 873-880, 897-911, 1072-1226, 1232- 1276, 1289-1700 , 1702-1707, 1710-1826, 1886-1933 , 1960-1999 , 2072- 2073 , 2097-2121, 2596-3196, 3916a-3329, 3050-3911, 3960-4001, 4224- 4242 . 224-4242 . ) The Applicant-Appellant CBESS now complains to this Court that the Appellee Windward Planning Commission placed too much emphasis on the concerns of the surrounding community, particularly on the fact that at the start, students will be commuting from places (such as Puna) to attend the new school . (Record on Appeal 4303 , 4310, 4311, Decision, Finding Nos . 13 , 14 , 52, 62 , Appendix 11611) In other words, at the start, the charter school would not be a "neighborhood school" that serves primarily "neighborhood children. " CBESS adopted the Planning Director' s argument that the 26 charter school will ultimately "mature" and "evolve" to serve "neighborhood children" (Record on Appeal 883-884) and argues that the Appellee Windward Planning Commission' s focus should have been on the land itself, not on the students' residences , not on the school' s location and not on the school' s character as a "non- neighborhood school . " Again, the Appellee Windward Planning Commission gave weight to these factors and used its discretion to determine whether these factors produce a "reasonable" outcome and whether the proposed use is therefore a "reasonable" use of publicly owned land. It is unfair for CBESS to characterize the Commission' s action as being "discriminatory" or "biased" (Opening Brief, Page 34) when the Commission simply stated the obvious . The Appellee Windward Planning Commission could not ignore these secondary, non- physical impacts that have socio-economic consequences on the neighboring communities . Compare with City of Colorado Springs v. Securcare Self Storage. Inc. , 2000 Colo. J.C.A.R. 5356 , 10 P. 3d 1244 , 1248 (2000) (proper for agency to deny permit based on "compatibility" requirement as to location of use) ; Cambodian Buddhist Societ v. Planning & Zoning Commission, supra (noise and disruption of the neighborhood not in harmony with the general character of the neighborhood) . (Traffic) Opening Brief, Pages 35-43 C. THE APPELLEE WINDWARD PLANNING COMMISSION PROPERLY EVALUATED THE IMPACTS OF TRAFFIC. This subject is one that is capable of being measured and 27 there was evidence from the Applicant-Appellant CBESS' engineer (Phillip Rowell) , the Hawaii County traffic division chief (Ron Thiel) and others regarding traffic impacts . The physical location of the proposed school site (outlined in red) and surrounding lands are set forth in Appendix 115 . " The proposed development is to be phased over a period of 16 to 25 years . Although the development will "evolve" over time, the Appellee Windward Planning Commission was only given estimated traffic impacts that depended upon many assumptions relating to the phased project . No reliable evidence was provided to the Commission for the most probable traffic impacts over the next 16 to 25 years, including the future con- struction of a road to and from Puainako Street as an alternate access, future Levels of Service (LOS) and other future impacts brought on by traffic . Further, the Commission was not asked to reserve jurisdiction to review future traffic impacts at the end of each phase with the ability of imposing additional mitigation conditions if original traffic estimates and mitigation proposals are proven to have been erroneous or insufficient .25 The first traffic study (or TIAR) was prepared in 2010 . (Record on Appeal 288-308 , Exhibit I) The study' s author (Phillip Rowell) acknowledged that his study did NOT consider the contribu- tion of proposed residential developments in the surrounding area 25 In Condition No. 7 to the Planning Department' s recommen- dation, the traffic study would be reviewed by the Department of Public Works (not the Commission) as part of the plan approval process for the future intermediate and elementary school phases and the Department of Public Works would determine if additional traffic mitigation measures will be mandated without further hearings or review by the Commission. (Record on Appeal 1228) 28 and did NOT contain adjustments for the comparable study area (the schools in the comparable study area were on holiday during the study) . Record on Appeal 3064-3065, 3072-3074, Transcript , Pages 469-470, 475-477) The author did NOT consult with residents of surrounding neighborhoods . (Record on Appeal 3054, 3058 , Tran- script, Pages 459, 463) He further acknowledged that his study must be updated (1) because the traffic counts that he used were then four years "old, "" (2) because background forecasts and the effects of related projects in the area had to be re-evaluated (Id. ) , (3) because intersection connections to Edita Street had to be investigated further (Record on Appeal 3074, 3081-3082 , 3083 , Transcript, Pages 479, 486-487, 488) and (4) because of the vagaries presented by the project' s phased development . His focus was mainly on "Levels of Service'" (LOS) as of the date of his study (2010) . The Hawaii County Traffic engineer (Ron Thiel) testified that an updated study "actually could make it (TIAR) even worse. " (Record on Appeal 2769-2770 , Transcript, Pages 174-175) . Again, the Appellee Windward Planning Commission was presented with many "uncertainties . " (Record on Appeal 4309, Decision, Finding No. 47, Appendix ''6" ) The Commission wanted more recent and reliable information and was not willing to give CONNECTIONS a "blank check" and cannot be said to have abused its discretion. The Applicant-Appellant CBESS misunderstands the nature and scope of the Commission' s discretion. Compare with De,ffenbaugh Industries, Inc. v. Potts, 802 S .W. 2d 520 , 529 (Mo. App. 1990) ( "It is not the applicant who defines the conditions of a special use . . . but the nature, location and incidents of the 29 particular use under the ordinance standards" ) . (Adverse Effects) opening Brief, Pages 41-43 d. THE APPELLEE WINDWARD PLANNING COMMISSION PROPERLY DETERMINED THAT OWNERS OF SURROUNDING PROPERTIES WOULD BE ADVERSELY AFFECTED BY THE USE OF PUBLICLY OWNED LAND FOR A MULTI-PHASED CHARTER SCHOOL. The Appellee Windward Planning Commission did not err in finding that traffic and other off-site impacts of the multi-phased development (with a 16-25 year build out schedule) were real and supported by the voluminous agency record. Yet, the Applicant- Appellant CBESS argues that the Commission could not deny the application based on traffic consideration alone . However, the Commission did not base its decision on traffic impacts alone. It cited "noise, traffic and impacting the quality of life of the adjoining residents . ' (Finding No. 48, Record on Appeal 4309, Appendix 11611 ) Undesired traffic burdens and the erosion of the "quality of life" give rise to an adverse effect . Similarly, the unknown and uncertain consequences that might arise as the development is phased over 16 to 25 years (the characteristics and impacts of which are not presently known) will be unanticipated events and are, therefore, adverse effects . Compare with Cambodian Buddhist Society v. Planning & Zoning Commission, supra; Deffenbaugh Industries, Inc. y. Potts, supra. (Agricultural Use) Opening Brief, Pages 43-46 e . THE APPELLEE WINDWARD PLANNING COMMISSION IS CORRECT THAT THE LAND IS STILL SUITABLE FOR AGRICULTURE. 30 Whether a particular parcel of land is suitable or not suitable for agriculture depends on one' s perspective and time. Seventy years ago, "agriculture" usually meant active production activities like sugar and pineapple cultivation, pasturage or the raising of crops, but not passive activities like the maintenance open space, forests, habitat and watersheds .26 Further, since the land is publicly owned, the ceded land provisions of section 5 (f) of the 1959 Admission Act and the public natural resource trust add other factors for consideration related to timing -- i . e. , when should publicly owned land in the Agriculture District be diverted to the use for a charter school? Again, the Legislature gave county planning commissions substantial discretion over this subject . County planning commis- sions are charged with the duty of protecting and promoting the public' s interest and the Appellee Windward Planning Commission did so in this instance . Curiously, CONNECTIONS' Final Environmental Assessment does NOT contain any evidence of its consultation with the State Department of Agriculture as to the diversion of the land to a school use . The Planning Department did circulate a general request for comments to the Department of Agriculture (Record on Appeal 330) , but none were provided. There is only anecdotal 26 According to the Petition, the soil productivity rating for the land is D. Record on Appeal 48 . See also Final Environ- mental Assessment, Record on Appeal 103-104 . The Appellee Windward Planning Commission found that the "D" soil class rating suggest that the land "may be unsuited for agricultural uses, " but con- cluded otherwise . (Record on Appeal, Decisions, Finding Nos . 53 and 55, Appendix 116" ) 31 evidence in the record on this important point .' Given the state of the record, the Appellee Windward Planning Commission determined that the land may still be suited for agricultural purposes (Record on Appeal 4310, Decision, Finding No. 55, Appendix 11611 ) and, moreover, could assume that the diversion of the land to a non- agricultural use was not timely. CONCLUSION 1 . The Applicant-Appellant CRESS is obviously dis- appointed by the Appellee Windward Planning Commission' s adverse decision. However, a Special Permit is a discretionary permit that in this instance triggered the public natural resources trust analysis . CRESS does not assign error to that aspect of the Commission' s decision that is based on the public natural resources trust and, therefore, CRESS is bound by the adverse decision. 2 . The Applicant-Appellant CRESS did not object to the Appellee Windward Planning Commission' s reliance on the Hawaii County General Plan Ordinance 05-25 below and cannot raise such objections for the first time on appeal . Further, the Commission did not err in its General Plan consistency determination. 3 . As for the Applicant-Appellant CRESS' arguments relating to the Appellee Windward Planning Commission' s findings on potable water sources , the concerns of residents in surrounding neighborhoods, traffic impacts and the land' s suitability for 27 The Department of Land and Natural Resources offered a comment on the forestry and habitat value of the land. (Record on Appeal 377 , 384) 32 agriculture, there is substantial evidence in the agency record to support the Commission' s findings . 4 . The agency record also shows that the Appellee Windward Planning Commission' s ultimate conclusion that the proposed use of the publicly owned land is not "reasonable" is based on substantial evidence and does not constitute an abuse of discretion. S . The Applicant-Appellant CBESS' argument that the Appellee Windward Planning Commission had to follow the dictates of the Office of Planning, Department of Land and Natural Resources and the Planning Director, none of whom conducted a public natural resources analysis of their own on the proposed use, is misplaced because the Legislature gave the decision-making authority and responsibility for a Special Permit to the Appellee Windward Planning Commission. 6 . The Applicant-Appellant CBESS may have mistakenly assumed that the presentation of "conceptual plan" was sufficient to obtain a Special Permit, especially since other agencies were apparently satisfied with the "conceptual plan. " However, the Appellee Windward Planning Commission was not willing to give CONNECTIONS a "blank check" for a project that has a 16-25 year build out without further details, without further Commission review and without opportunity for further public participation and hearings . The Commission felt, in its discretion and in light of Hui Ala Loa v. Planning Commission, supra, that it could not make a present finding that the proposal was "reasonable" given the state of the record and the project' s "uncertainties" as to potable 33 water sources, traffic impacts, effects on surrounding neighborhoods and the timeliness of any plan to divert the use of publicly owned land in the Agriculture District to a non- agriculture use . This Court should affirm the Appellee Windward Planning Commission' s decision for reasons stated. DATED: Kailua-Kona, Hawaii, February 25, 2015 JEFFREY K. COMES, Appellee- Intervenor By: MICHAEL J. MATSUKAWA His Attorney 34 APPENDICES No . Description 1 Section 205-6 , HRS 2 Planning Commission Rule 6 3 Petition for Special Permit (Portion) 4 Will Chee Letter with Tables on Water Consumption 5 Map of Petition Area 6 Windward Planning Commission May 19, 2014 Decision §205-6 Special permit . (a) Subject to this section, the county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified. Any person who desires to use the person ' s land within an agricultural or rural district other than for an agricultural or rural use, as the case may be, may petition the planning commission of the county within which the person ' s land is located for permission to use the person ' s land in the manner desired . Each county may establish the appropriate fee for processing the special permit petition . Copies of the special permit petition shall be forwarded to the land use commission, the office of planning, and the department of agriculture for their review and comment . (b) The planning commission, upon consultation with the central coordinating agency, except in counties where the planning commission is advisory only in which case the central coordinating agency, shall establish by rule or regulation, the time within which the hearing and action on petition for special permit shall occur . The county planning commission shall notify the land use commission and such persons and agencies that may have an interest in the subject matter of the time and place of the hearing . (c) The county planning commission may, under such protective restrictions as may be deemed necessary, permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter; provided that a use proposed for designated important agricultural lands shall not conflict with any part of this chapter. A decision in favor of the applicant shall require a majority vote of the total membership of the county planning commission. (d) Special permits for land the area of which is greater than fifteen acres or for lands designated as important agricultural lands shall be subject to approval by the land use commission . The land use commission may impose additional restrictions as may be necessary or appropriate in granting the approval, including the adherence to representations made by the applicant. (e) A copy of the decision, together with the complete record of the proceeding before the county planning commission on all special permit requests involving a land area greater than fifteen acres or for lands designated as important agricultural lands, shall be transmitted to the land use commission within sixty days after the decision is rendered. Within forty-five days after receipt of the complete record from the county planning commission, the land use commission shall act to approve, approve with modification, or deny the petition . A denial either by the county planning commission or by the land use commission, or a modification by the land use commission, as the case may be, of the desired use shall be appealable to the circuit court of the circuit in which the land is situated and shall be made pursuant to the Hawaii rules of civil procedure . APPENDIX "]." (f) Land uses substantially involving or supporting educational ecotourism, related to the preservation of native Hawaiian endangered, threatened, proposed, and candidate species, that are allowed in an approved habitat conservation plan under section 195D-21 or safe harbor agreement under section 195D-22, which are not identified as permissible uses within the agricultural district under sections 205-2 and 205-4 . 5, may be permitted in the agricultural district by special permit under this section, on lands with soils classified by the land study bureau ' s detailed land classification as overall (master) productivity rating class C, D, E, or U . [L 1963, c 2.05, pt of §2 ; Supp, §98H-6; HRS §205-6; am L 1970, c 136, §1; am L 1976, c 4 , §2 ; am L 1978 , c 166, §1; am L 1979, c 221, §l; gen ch 1985; am L 1998 , c 237 , §6 ; am L 2005, c 183, §5] RULE 6. SPECIAL PERMITS 6-1 Authority This rule governs special permit procedures pursuant to authority conferred by Chapter 205-6, Hawaii Revised Statutes, as amended. 6-2 Standing to Submit a Petition for a Special Permit Any person who desires to use its land within a State Land Use agricultural or rural district other than for an agricultural or rural use may petition the Commission for permission to use its land in the manner desired. 6-3 Petition and Content A petition for a Special Permit shall be filed with the Commission's office and shall include the following: (a) Non-refundable filing and processing fee of five hundred dollars. (b) Original and twenty copies of: (1) Application form; (2) Description of the property in sufficient detail to determine its precise location; (3) A plot or site plan of the property, drawn to scale, with all existing and proposed uses and/or structures shown thereon; (4) Building elevations, if required, of the proposed structures; (5) A statement of the reasons for the granting of the Special Permit citing how the proposed use would promote the effectiveness and objectives of Chapter 205, HRS, and why the proposal is an unusual and reasonable use of the land. The following criteria shall also be addressed: (A) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations; (B) The desired use shall not adversely affect surrounding properties; (C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and fire protection; (D) Unusual conditions, trends, and needs have arisen since the district boundaries and regulations were established; 6-1 APPENDIX "211 (E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district; (F) The proposed use will not substantially alter or change the essential character of the land and the present use; and (G) The request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design Plans. (c) A copy of full-size site plant and/or elevations of the proposed structure(s), a minimum of 2 feet by 3 feet in dimension, drawn to scale. The site plan should include property lines, reference points (roadways, shoreline, etc.), and existing and proposed structures and uses. (d) A certificate of clearance from the County Director of Finance stating that the real property taxes and all other fees relating to the subject parcel(s)have been paid, and that there are no outstanding delinquencies. 6-4 Incomplete Application The Commission, through the Planning Department, shall neither accept nor process an application which is incomplete as to form and content. 6-5 Posting of Signs for Public Notification (a) Within ten days of being notified of the acceptance of an application, the applicant shall post a sign on the subject property notifying the public of the following: (1) The nature of the application; (2) The proposed use of the property; (3) The size of the property; (4) The tax map key(s) of the property; (5) That the public may contact the planning department for additional information; and (6) The address and telephone number of the planning department. (b) The sign shall remain posted until the application has been granted, denied, or withdrawn. The applicant shall remove the sign promptly after such action. (c) Notwithstanding any other provisions of law, the sign shall not be less than nine square feet and not more than twelve square feet in area, with letters not less than 6-2 one inch high. No pictures, drawings, or promotional materials shall be permitted on the sign. The sign shall be posted at or near the property boundary adjacent to a public road bordering the property and shall be readable from said public road. If more than one public road borders the property, the applicant shall post the sign to be visible from the more heavily traveled public road. The sign shall, in all other respects, be in compliance with Chapter 3 (signs)Hawaii County Code 1983 (2005 edition). (d) The applicant shall file an affidavit with the planning department not more than five days after posting the sign stating that a sign has been posted in compliance with this section, and that the applicant and its agents will not remove the sign until the application has been granted, denied, or withdrawn. A photograph of the sign in place shall accompany the affidavit. 6-6 Public Hearing (a) The Commission shall conduct a public hearing within a period of ninety days from the date of acceptance of a complete application. (b) Promptly after the Commission's fixing a date for the public hearing, the applicant shall mail a notice of the application and hearing to owners of interests in properties within five hundred feet of the perimeter boundary of the affected property and to owners of interests in other properties which the Planning Commission may find to be directly affected by the proposed request. Such notice shall state: (1) Name of the applicant; (2) Precise location of the property involved; (3) Nature of the proposed use; and (4) Date, time, and place of the hearing. (c) Prior to the date of the hearing, the applicant shall file with the Commission, an affidavit or other similar proof of mailing of said notice. The Commission shall not conduct a hearing if this requirement has not been complied with. (d) In addition to said notice and at least ten days prior to the date of the hearing, the Commission shall publish notice of the hearing in a newspaper of general circulation in the County which includes the information provided under Section 6-6(b)(1-4) of this rule. (e) For each hearing continued at the request of the applicant, the applicant shall serve notice of the hearing on surrounding property owners and lessees of record as provided by Section 6-6(b). An additional two hundred fifty dollar processing fee shall be submitted by the applicant for each hearing continued at the request of the applicant. 6-3 6-7 Grounds for Special Permit The Commission shall not approve a Special Permit unless it is found that the proposed use: (a) is an unusual and reasonable use of land situated within the Agricultural or Rural District, whichever the case may be; and (b) Would promote the effectiveness and objectives of Chapter 205, Hawaii Revised Statutes, as amended. The Commission shall also consider the criteria listed under Section 6.3(b)(5)(A) through(G). 6-8 Action Within thirty days after the close of the hearing or within a longer period as may be agreed to by the applicant, the Commission shall: (a) For a Special Permit involving fifteen acres of land or less, approve it by stating the reasons and attaching appropriate performance conditions; or (b) For a Special Permit involving greater than fifteen acres of land, recommend approval to the State Land Use Commission by stating the reasons and attaching appropriate performance conditions; or (c) Deny it by stating the reasons. An application recommended for approval to the State Land Use Commission shall be forwarded within sixty days after the decision is rendered by the Commission. 6-9 Amendments of Permit or Conditions (a) The applicant may apply to the Commission through the Planning Department for an amendment to the permit or condition(s) imposed. (b) In the case of time extensions, the applicant shall file the request not less than ninety days prior to the expiration date of the time conditions, setting forth: (1) The affected condition; (2) The length of time requested; and (3) The reasons for the request. If the Commission is not able to act on a properly filed time extension request prior to the expiration date, the use granted under the Special Permit may be 6-4 continued, unless the Commission specifically disallows the activity during the interim period. (c) In the case of additions, modifications, and/or deletions of conditions; or the original permit granted, the applicant shall set forth in writing: (1) The affected condition; (2) The specific amendment requested; and (3) The reasons for the request. (d) The applicant shall also file a two hundred fifty dollar processing fee, along with the original and twenty copies of the request. (e) The hearing and notice procedures and action shall be the same as under Sections 6-6 and 6-8 of this rule, provided further that the Commission shall conduct a hearing within a period of ninety days from the date of receipt of a properly filed request, or within a longer period as may be agreed to by the Commission. 6-10 Appeals The Commission's decision is appealable to the Third Circuit Court. 6-5 APPLICATION AND QUALIFICATION QUESTION A r: - (Non-Profit) Write answers in the spaces provided. Attach additional sheets as nqapgry,3*ary Voting the applicable section number. Part k General Infooaiion I. Applicants legal name. C nnectfons New CenjUry Public Cha er S 2. Applicant's full mailing address: 174 Kameharneha Ave. l�lla�Hl-9§72a 3. Name of contact persons:John Lhgtcher Contact person Phone No.: 809.935.2395 Fax No.: 808-961-2665 4. Applicant is interested in the following parcel: Tax Map Key No.: (3)2-5-6:141 Location: Kaurnana in Hilo If Applicant is current lessee:General Lease No.: 5. When was Applicant incorporated? chartered in 2000 6. Attach the following: A. Articles of Incorporation B. Bylaws C. List of the non-profit agency's Board of Directors D. IRS 501(c)(3)or(c)(1)status determination + E. Tax clearances trorn State of Hawaii and respective county Real Property Tax Office, F. Audited financW stetements for the last three years. Knot audited,explain why. . S If Applicant is a new start-up, attach projected capital and operating budgets. G. Any program material which describes eligibility requirements or other requirements to receive services PaL II:!2uaiiffcatfon 7. Is Applicant registered to do business In Hawaii: Yes I Pay,0$130105 Nfon-Prollt ApptimUo EXHIffirifP_9 APPENDIX "T' • - 9 8. Has Applicant received tax exempt status from the Internal Revenue Service? Yes 9. Is Applicant licensed or accredited in accordance with federal,State or county Yes statutes,rules, ordinances,to conduct the proposed activities? List all such licenses and accreditations required: Charter_sisrned by Governor,Chairoersfln oL the Board of S u iQn acrd Su erintende o i=ducatia 10. Is Applicant in default or otherwise not in good standing with any State No (e.g.POS agency, DCCA, DLNR,etc.)? If yes,explain: 11. Has Applicant had a State of Hawall lease,permlt,license,easement or No sale in fee cancelled within the last rive years? If yes, list: Doe.No. Type of Aareemel) Term of Aoreement 12. Does Applicant have any policies which discriminate against anyone on the No _ basis of race,creed,color,national origin, sex or physical handlcap? If yes, explain: 13. Has Applicant received funding from a federal.State,or county government Yes agency,the Aloha United Way, and/or a major private foundation within the last three years? Please list all such contracts below; Agency Contract Term gontr ct Amount Ute of J,-lawait ger,ou2il allocation 2005;2006 school Lear $1.t3t36,046M Federal Tltie f 2o05-2006 school Y2 $83,447.00 Federal impact Aid 2005-2.006 school year $92,475.00 Slate of Hawaii per pupil allocation 2006-2007 school year X2.435,290.00 Federal Title 1 2006-2007 school year $73,673.00 Rev.08/30105 Rion-Profit AppAoeion Form,page 2 t 938 Men Contract Term Contract Amount Federal Impact Aid 2006-20x7 school ear 5 24 .00 ,State of_Hawait per pupil allocation 2007-2008 school year $2,925,789.00 Federal Title 1 2007-2008 school year $15.000 (to 1/25/061 Federal Impact Aid 2007-2008 school veer $97.558-00 14. If Applicant has not received funding from a federal, State or county government agency, the Aloha United Way and/or Q major private foundation during the past three years, describe Applicant's qualifications to effectively perform the proposed services, including but not limited to,grants or subsidies received from non-major, private fundors andlor staff or Board members who possess significant experience In AppiicanVs service field. Part lll:Program Acttvttles and persons to be Served 15. What acdvitles will be conducted on the premises to be leased? K-12 ad l promm as defmad in charterina document 16. What are the specific objectives of these activities? Vlsiorl: To establish and sustain a go,•,lnrnunity, business, and learning 'ohana (family). Within this framework, inaulry and Pro'ec-lased_cunicula will stte_s_s independent thinking. development of the Individual's mind and talents,cooperative leaminp, sense of self within the neiehborhood and the world-wide communl rN with particular attention to the precious and unique environment of Hawall, both as an Wad ecology and a place where ethnic diversity is the norm. Mission: Our mission to create an '.ohana which Is conducive to Ule rec ghlo and development of indivWal talents. Thematic and exnedentlal leamr nci experiences are provided which focus on how students construct knowledge using creative and critical thinking. A forum Rev.08/30105 Non-Profit Application Form.page 3 93' for the development of the ability to regognize and differentiate arc aality result or product Is offered. Classroom experiences are con oled to real life experiences so that students can grow in the understanding of themselves In relation to their community and the world. OutcompLgosts: Instructlon is guided by ffve powerful stunt-centered coals, Students demonstrate mastery through exhlbWons, successful protects. and demonsladgns of content mastery. The focus Is on fully informing and pregarin4 students for their future, Particularly In losterbpg careers thatsustain the economy on this island. Goal 1 — CMn_a, ftponsble Community Members: Students shall develop_Lhalr abilities to ' become responsible members of a family, work group, or lo4jglobal community within the framework of democracy. l Goal 2 -Creative, CriNeW Thinkers: Students will think creatively, critically,and strategically to make effective decisions, solve problems, and achieve goals in their academic, uersonal and sacral Eves,in and out of school. Pal 3-Effective Qqmmunfcators:Students will write k and lislen eff ecffvelv in a variety of ' situatlons for a varie!y_of audiences and purposes. Goal_A - Users and Producers of TechnalOav: Student will understand, use, and evaluaje technolpaies as well as produce new Innovative uses and applications in a varl�of r{ontexts for a variety of audiences and purposes Includina acaderrifc.Personal and socigi, Gal 5 .Stewards of Hawaii's Unique Environment: StudeA vAl understand a vadety_of eco- Mtems, natural en@My flows and the na raal environment in order to preserve and design systems to renew natural-resources and habitats, i 17. Describe the community need for and the public benefit derived from these actfvftles. Charter schools are nonsectarlan public schools of choice that operate with freedom from many of the rectulatlons that ap"v to tradi Iona[ pubile schools.The."charter" estabfishina each such school is a performance contract detailing_ the school's mission, proaram_wals, students Rev.08/30/05 Non-Profit Application Form,page 4 i 940 served method _of assessment, and =a to measure success. Charter schools are accountable to their sponsor to Produce positeve acaderr results and adhere to the charter contract, The basic con t of charter schools Is that they 2X@Tclse Increased autonomy, i return for this accountabilky. They are accauntabte for both acade is results and fiscal Practices to several groups: the sponsor that grants them, the parents who choose them, and the public that funds them. 18. Describe the targeted population for these activities by: 1) age group, 2) gender, 3) ethnle background, 4) income level, 5) geographic location of residence, 6) special needsldisabitity, and 7)other applicable characterlstfe(s). The school serves families cornInci from a range of,geographical locations on the Hin Island.. Th2 coMMunitles presently served include Hllo extending northward to the Hamakua dstrict and Waimea; upper Puna district to Volcano Village: and the lower F.Una„dlstrict to_Pooa. There are currently 359 students enrolled. The school serves an ethnicatly_and economically diverse opulatlon. Ethnically-Ahe 2007-2D08 student popu!aton, is as follows In descending order- 359Mo White, 280k Hawaiian or PamHanrahan, 151% - Mixed ULerj, 4�v Portupuese,4% Hisoanle.411/6 Japanese.3%Native American,3% Filloino, 2% Black, 1%Samoan, 1% Korean, and 1%Chinese. Fiftvffive Percent of the students receive free or reduced lunches. Connections has a significant population of studerits__with special needs (129'6 of total popula'oo)._SPeaal education students are Integrated Into the classrooms using an inclusion madel. A little over 196 of the students within the school have section 504 accommodations, The school also s a growing ELL lash Langugge Learner) ul 'on. 19. Describe all eligibility requirements of clients to participate In the activities, e.g. age, income level, ethnic background,income level,disability,etc. None Rev.08/30/05 Nan-Prollt Application Form,page 5 941 I20. Do you require membership to participate in these activities? Yes If yes,list the requirements of becoming and remaining a member: I Enrollment In the school l _ 21 Now many unduplicated persons will engage In the aettvtties annually? r , Activity Persons Per Year The noculallon of the school is curr+�Y,359 students The school currently has 52 employees. [ 22. is State funding made available for the activities to be conducted Yes on the leased premises? `• If yes,by which Stale agency: The Hawaii State Charter Schools Administrative Office 23. List all activities to be conducted on the leased premises which requlre payment of excise taxes, e.g. subleasing, sale of products or services. Include an estimate of annual gross revenues from each activity. None i 1 Development of the Land 24. Describe the proposed site development plan for the property, Indicating the location and size of buildings, parking areas, landscaped areas and related uses. Attach sketch of plan if available. The slte lan for the propertyIs still in the aarly s!Ms of development. The vision has been hiahly influenced by Randall i=ieldlna an award-winning educational Willygfanner who specializes in holistic, vision-driven desfans for tomorrow's learners. The educational faciliiy ha a-school envisions reguires learnln environments that su cus' . as well as literacy. The school will integrate a new understanding of learning for the 21st century that Rev.08/90105 Non-Profit Application f=orm,page 6 942 f-+ extends beyond traditional WHIM sofutlons. Fortunately, a substanliip!,�readily accessed atabase of educatio al ar hilectura over the last decade has resulted In a Midly Midemer In Language of best pracdcas for planrina_and designing 21st ceh#ury schools., the emerairttt languaoe of educational desfan sumorts both the foundational al s of literacy with the demands of a global economy, which reoulre that learners are curious, self-directed, and able to work across platforms. Six esoects of best practice offer essential m.ents that suQpork the reguirements of the school's education l�_framework- 1.Supoortinci leaching and lAgfdn 2,Maximizing Physical comfort and well belncl 3. Dernonstratina environmental responslbility 4.Serylnq the community S. Estabilshiag desi rt 2rindl3tes that make buildings work bettef. last longer, cost less to renovate and mafnW..and fns ire and adept to changing needs S.Applying open,transoarent_g9d collaborative pracgEses that allow tate school and community to assume ownership ol-Nannina and din 25. What improvements to the land do you intend to make and at what cost? We are in the process of hiring a consultant prepare the EA eenyIMnMRntal assessment That Information will be included in the EA. 26. How will the improvements be funded? Same as 425. 27. Describe all environmental, land use and other permitting requirements which must be met to develop the land as proposed. AML Rev M30105 kion-Profit Application Form,page 7 943 f I EA is needed for thq u e of State lands. Our consultant durin a ors u tion Rrocess wilb 91ber ggyarnment agencies, ill inco orate any permitstapprovals reguired. 26. Will you be subleasing any portion of the property? If yes,describe the sublease uses: No Part V:NotadzedQertificadon VWe hereby certify that the slatemenls and information contalned In this Application and Questionrtalre, including all attachments, are true and accurate to the best of mylour knowledge and understand that if any statements are shown to be false or misrepresented, Vwe may be dsqualifled from(freceiving a lease or mylour lease may be canceled. 1 AL I John -T&/C e r COnnzc7 ',aHS P fa ,� C��' EC-4cof Applloml Nw" AppSmt Name By, fly: 61 Its, t�/ f _,.....� Its: Date:. Subscribed and swom to before me this —1�1 A.v AY of :20��. 4A pE O Notary?J%I EL;LA PPRRIRA lz 0 (TA Y * PUBLIC County of: State of; OF I My uomr4ssion expires;40 Aev.48/30/05 Non-Profit Appllcatlon Form,page 0 i 944 WIL GHEE-PLANNING&ENVIRONMENTAL ,n ,?';'+ r1; y, 'Y';f l November 21,2012 2 K94 26 Ali 8, 32 Quirino Antonio, Jr.,Manager-Chief Engineer Department of Water Supply County of Hawaii 345 Kekuanaoa Street, Suite 20 Hilo,Hawaii 96720 Subject: Special Permit Application SPP 12-000138 Connection Public Charter School TAM(3) 2-5-006:141 Attn: Mr. Finn McCall Mr. McCall, In response to a request made at the November 9,2012 Planning Commission hearing, Wil Chee— Planning&Environmental hereby submits the attached report containing preliminary estimates of potable water consumption for the proposed project. It is important to note that the project is stili in the planning stage. Use of nos-potable water or waterless fixtures is being considered for the project, and these preliminary estimates do not account for these usage options. During the project's design phase when additional engineering evaluations and analysis are to be undertaken,.a determination will made as to which fixtures would be using the allotted 4,200 gpd of potable water and which fixtures might be served by non-potable water or be waterless. Subsequent to this future analysis, a refined estimate of potable water consumption can be derived. These detailed calculations, which are required prior to effecting a water commitment for the project,will be submitted to DWS-within 180 days of the effective date of the permit. These calculations will include the estimated maximum daily potable water demand for the project,including estimated peak flow in gallons per minute. If you have any quesfions,please feel free to contact me at(808) 596-4688 or cshen@wcphawaii.com. Sincerely, /* /Jv`---- Celia Shen Planner c, County of Hawaii Planning.Department Ted H.S.Hong,Esq. CRESS-Friends of Connections APPENDIX "4" Prostiding SerPices Since 1976 . 082320 Land Use Planners and Environmental Consultants 1018 Palm Drive • Honolulu, Hawaii 96814 • Phone 808-596-4688 • Fax 808-597-1851 0 E-Mail wcR(@wcohawail.c 1671 Special Permit Application (SPP 12-00013 8) Connections Public Charter School TMY,(3) 2-5-006:141 Preliminary Estimate of Potable Water Consumption The campus plan shown in the Special Permit application is conceptual in nature and represents the ultimate vision for the proposed campus. There currently are no plans to grow the school beyond what is represented in the application. Refined architectural design and detailed engineering studies and analyses are to be undertaken when the necessary land use entitlements are obtained. The Applicant is aware and understands that the DWS-allocation of potable water available to the subject property is limited to a maximum daily usage of 4,200 gpd,which . ultimately may constrain the scope of the proposed proj ect; however,this cannot be determined until further engineering analyses have been conducted. The school envisions this proposed campus to be a model and laboratory of sustainability for instructional curriculum purposes, and will seek all opportunities to reduce water consumption. Due to the limited allocation, one of the objectives of this project is to,use DWS-supplied water for those uses that truly require potable water. Non-potable water (e.g., catchment water and recycled wastewater) will be used wherever feasible in lieu of potable water. As part of the engineering analyses, an evaluation and estimate of the project's potable and non-potable water demands will be made. The proposed campus is planned to be LEED Silver or higher. Water conservation strategies, such as selection of low-flow fixtures and use of non-potable water, will help attain the necessary points for LEED certification. Water closets and urinals comprise a substantial portion of potable water usage that could be replaced by non potable water. The decision whether to use potable or non-potable water for water closets and urinals (or waterless) will be made during the engineering analysis and design phase. Subsequent to the engineering analysis,the Applicant intends to submit to DWS, as stipulated in DWS's comment letter dated August 29, 2012, detailed calculations showing the estimated maximum daily potable water demand for the project, which will include the estimated peak flow in gallons per minute and the total estimated maximum daily potable water demand in gallons per day. However, in response to the request made at the November 9, 2012 Planning Commission hearing, the Applicant is providing preliminary consumption estimates for DWS review. Attachment 1 provides preliminary estimates of anticipated potable water usage prepared by WSP Group, Urban Works' (project architect)mechanical engineer for this project.Based on the typical water usage rates for boarding schools and days schools with a cafeteria,,as provided in the American Water Works Association's (AWWA)Water Distribution Systems Handbook, average potable water usage for the entire campus could be expected to range from a low of Connections Public Charter School Preliminary Estimate of Potable water Consumption November 21,2012 Page 2 approximately 6,858 gpd to a high of 10,828 gpd. With the use of low flow fixtures,it is expected that water usage would be closer to the lower end of the range. Note that these are preliminary estimates as it has not yet been determined which fixtures would be using the allotted 4,200 gpd of potable water. As stated, use of waterless fixtures or non- potable water for urinals and water closets will be evaluated during the design phase. if waterless fixtures or non potable water are used, it can be reasonably expected that total potable water usage could be lower than shown in the preliminary estimate. A revised estimation of potable water usage will be developed during the design phase when the additional engineering analysis is undertaken. Attachment 2 provides an alternate estimation of water usage for a school without a cafeteria—a facility and use with a high potable water demand. This methodology assumes use of low-flow fixtures and potable water usage for water closets, urinals,lavatories and classroom sinks. Based on this estimation, campus water usage can be estimated to range from 3,625 gpd to 5,215 gpd. Again,note that this preliminary estimate assumes potable water use for urinals and water closets. if non-potable water is used or waterless fixtures are selected, total potable water usage could be lower than shown in the preliminary estimates. Based on these preliminary estimates the 4,200-gpd of potable water,while possibly not sufficient to support the entire campus (although this will not be known definitively until the additional engineering analysis is undertaken during the project's design phase), can sustain development of several campus components. (For reference,Attachment 3 shows a breakdown of approximate water usage by program. This breakdown is derived fmm the usage estimates for a day school without a cafeteria a provided in Attachment 2). The project implementation phasing presented in the Special Permit application places the high school program on the subject property first, followed by the intermediate school program,the elementary school program and cafeteria, and lastly the dormitory and intergenerational facilities. Using the estimates provided in Attachments 1, 2, and 3 it can be reasonably expected that the 4,200-gpd-allocation would be reached during Phase 7 when the elementary school program and cafeteria are placed on the site. Therefore,it could take anywhere from 10 to 16 years to reach the point when additional potable water is needed. During the design phase when additional evaluation and analysis of the project's potable water demands are conducted,the Applicant may choose to reprioritize project phasing to ensure that the more critical components of the project are constructed first to ensure provision of potable water by the DWS allocation. The Applicant understands that if the engineering analysis shows that the entire campus cannot be sustained by the 4,200-gpd allocation, an additional source of potable water would be needed to realize full build-out of the campus. At this time, a definitive solution is not immediately evident. Additional studies and cost analysis would be needed to determine the most feasible option for sourcing additional potable water. Additional sources of potable water could include using rain catchment to supply an on-site potable water system(this would have to meet DOH standards for a regulated public water system), or developing, or contributing to development of a potable water well. Development of a potable water well could be accomplished through a 1680 Connections Public Charter School Preliminary Estimate of Potable Water Consumption November 21,2012 page 3 - development agreement with DWS, which could include, among.other things, contributing to the cost of system improvements and/or developing a well with dedication to DWS, in exchange for additional water credits. As growth in the Hilo area continues, there may also be opportunity to enter into a joint-development agreement with another developer and DWS to gain,additional water credits. Considering that it could reasonably take between one to two decades before the 4,240-gpd allotment is reached,there is ample time for the Applicant to identify and assess the feasibility of other potential sources of potable water. During this period,the Applicant can engage with DWS and/or others parties to identify potential potable water sources and secure the necessary permits and/or agreements to procure the additional water needed to complete build-out of the campus. If additional potable water cannot be procured, campus development will not exceed that which can be sustained by the 4,200-gpd allotment. To address the Planning Commission, the Department of Water Supply, and community concerns related to the limited water allotment available to the subject property,the Applicant proposes that the following Condition of Approval be added to the recommended conditions contained in the Planning Department Director's favorable recommendation. "The number ofpersons and facilities at the new campus shall be determined by a reasonable and sustainable combination of the DWS-supplied maximum daily potable water allocation of 4,200 gallons, in conjunction with other alternative water resources (e.g., rainwater catchment, recycled water, etc) and water conservation methods and technology to be proposed. A plan for potable water usage, which shall indicate the number of persons and what facilities are to be supported by the DWS-supplied wafer, shall be submitted to the.Planning Department and DWS for concurrence. This water usage plana shall be submitted prior to or concurrently with the required maximum daily water usage calculations to be submitted to DWS within 180 days from the effective date of this permit. Applicant shall be allowed to enter into a water commitment with DWS to implement partial development of the campus in accordance with the approved water usage plan. No increase in persons or additional facilities requiringpotable water, beyond that covered by the water usage plan and water commitment with DWS, shall be approved until the Applicant can demonstrate how additional potable water demand shall be met.Applicant shall demonstrate through its established record of usage and patterns of use, how additional water usage can be met through securing additional sources of potable water or alternative water resources, and how such additional water resources will make potable water available for use by the student population and facilities. " 1681 Attachment i Water Usage - Hilo School (with cafeteria) Occupancy Minimum Usage Maximum Establishment Type GPD Usage (People) (Gallons/day) (Gallons/day) School-boarding Students: 30 53 to 106 1,590 3,180 School-day w/cafeteria Elementary: 167 11 to 16 1,837 2,672 Intermediate: 107 11 to 16 1,1.77 1,712 High School: 107 11 to 16 1,177 1,712 Teachers/staff(full-time): 50 11 to 16 550 800 Teachers/staff(part-time): 17 11 to 16 187 272 Intergenerational prograrra clients: 25 11 to 16 275 400 Intergenerational program staff: 5 11 to 16 55 80 Total Campus Water Usage(gallons/day): 6,848 10,828 Campus water usage(gallons/day)is estimated to be within the range of 6,848 to 10,828. It Is assumed that water usage will be closer to the lower end of this range due to the use of lava flow fixtures on campus. Notes: 1.Gallons per person per day obtained from the American water works Assoclatlon's Water Distribution Systems Handbook,Table 3.3,Typical Rates of Water Use for Various Establishments(Mays,2000). &WSP 1 682 • I i- Attachment 2 Water Usage - Hilo School (without cafeteria) Day Enrollment Campus Water Usage Students: T 381 Full-Time Staff: 50 Part-Time Staff: 17 Intergenerational Program Clients: 25 Intergenerational Program Staff: 5 Uses/Person/Day Fixture Type Gallons/ Male Male Female Female Gallons/ Use (full time) (parttime) (full time) (parttime) Day Low flow water closet 1.28 1 0.5 3 1.5 1,202 Urinal 0.5 2 1 0 0 235 Conventional lavatory(15 sec.) 0.125 3 1.5 3 1.5 176 Classroom sink(15 sec.) 0.45 2 1 2 1 423 Total: 2,035 Boarding Student Water Usage Occupancy Minimum Usage Maximum Usage Establishment Type GPD Gallons/da Gallons/da (People) ( y) { y) School-boarding Students; 30 53 to 106 1,590 3,180 Total: 1,590 3,180 Minimum Usage Maximum Usage (Gallons/Clay) (Gallons/day) Total Campus Water Usage: 3,625 5,215 Campus water usage(gallons/day)is estimated to be within the range of 3,625 to 5,215.it is assumed that water usage will be closer to the lower-end of this range due to the use of low flow fixtures on campus. Notes; 1.Day enrollment campus water usage calculated under the assumption that there is no cafeteria at the school,and the only- plumbing nlyplumbing fixtures used are water closets,urinals,lavatories and classroom sinks.All fixtures are low flow.Part-time occupants assumed to consume water at a rate equivalent to half that of full-time occupants.(Adapted from LEED"WE Prerequisite 1:Water Use Reduction"calculations.) 2.Boarding student water usage calctilated using GPD obtained from the American Water Works Assoclatloh's Water Distribution Systems Handbook,Table 3.3,Typical Rates of Water Use for Various Establishments(Mays,2000). WSP 1CR3 Day Enrollment Campus Preliminary Estimated Water Usage:Breakdown by IsmScurn Anashment 3 High School students 107 Full,trme staff 13.32 170.32 my 120 Port-time staff 4.52 say S FT Male FT Male PT Male PT Male FT Female FF Female PT Female PT Female FGcture T d use gal/per 60 persom td a 2.5 persiorts al 60 persors go[/per 25 persara god Low-flow water doses 1.28 1.28 76.80 0.64 1.60 3.84 230x60 1.92 4.80 313.60 Urinal 0.5 1.00 60.00 0.30 1.25 0.00 0.00 0.00 0.00 61.25 Conventional lava) 13 secj 0.125 0.38 22.50 0.19 0.47 0.38 2250 0.19 OA7 45.94 Classroom sink I 15 sec.) 0.45 0.90 54.00 OAS 1.13 0.90 54.00 0.45 1.13 110.25 T*IvJI I I I 1 1 531.04 Inlermedrate School w deah 107 Fill-time staff 13.32 120.32 say 120 Part-time staff 4.52 say 4 FT Male FT Mak PT Hate PT Male FC Female FT Fetnate PT Female PT FamWo MIUM Type a1 use gal/per 60 pamm UCI&er 2 persoru gal/per 60 persom gal/per 2 ersons pod I Low-flow water Closet 1.28 1.28 76.80 0.64 1.28 3.84 230110 1.92 3.84 312.32 Urinal 0.5 1.00 60.00 0.50 1.00 0.00 0.00 0A0 0.00 61.00 Comrentlonal lavas 13 sea 0.125 0.38 22.50 0.19 0.38 0.38 22.50 M19 0.38 45.75 Classroom sink 1S sea 0.4S 0.90 54.00 0.45 0.90 0.90 54.00 0.45 0.90 109.80 Tafall 3211.87 9ernemary School sludenls 167 Full-time staff 23.31 190.31 say 191 Pan-fte staff 7.91 say 8 FT Mole FT Male PT Male PT Male FT Female R Female PT Female PT Female Future Type al usegalleer 95.5 persom goligtr 4 permms gollver 95.5 Persons al 4 persons QPd LOW-flow water Closet 1.28 1.28 12224 0.64 2.66 3.84 366.72 1.92 7.68 499.20 Urinal 0.5 1.00 95.50 QSO 200 0.00 0.00 0.00 0.00 9730 CameNronal 15 sec 0.125 0.38 35.81 0.19 0.75 0.38 35.81 M19 0.75 73.13 Closuocee sU& 1 S sac OAS 0.90 85.95 DAA 1.80 0.90 85.95 OAS 1.80 175.50 Total U5.33 Imergerteratlanaf c11ews 25 Staff 5 30 FT Male Fr Malo FT Female FT Female Fbcture Type 901/um gallm 15 perwas acl&ar 15 persons gad Low-flow water at 1.28 1.28 19.20 3.84 $7.60 76 80 Urbwl 0.5 1.00 15.00 0.00 0.00 15.00 Cacmentlanaf toVakry I 15 0.125 0.38 S.63 0.38 5.63 11.25 CJassroam"(15 sea) OAS 0.90 13.50 0.90 13.50 27.00 Tofu!, 130.05 Mgh Sdwol S31.04 Irdenraftle Sdtoal 320.67 Elementary Sdwot 845.33 Intergenerational Program 130.05 2035.28 1684 p Q o 0 itOMC)HMA 51 wee�S es,���M S� 4J �O� L eoo a L v Ln .� o x w a�tr�-io>ro ApPEN X 1 308 County of Hawai'i Planning Commission 101 Pauahi Street, Suite 3 Hilo, Hawai'i 96720-4224 Telephone: (808) 961-8288 Facsimile: (808) 961-8742 BEFORE THE COUNTY OF HAWAII PLANNING COMMISSION In the Matter of SPP No. 12-000138 CONNECTIONS NEW CENTURY PUBLIC COUNTY OF HAWA1'1 WINDWARD CHARTER SCHOOL AND COMMUNITY PLANNING COMMISSION'S BASED EDUCATION SUPPORT FINDINGS OF FACT, CONCLUSIONS OF SERVICES LAW AND DECISION AND ORDER; CERTIFICATE OF SERVICE Application for Special Permit Application No. 12-000138 Argument and Decision: Date: 511114 TMK: (3)2-5-006-141; Kaumana, South Location: Aupuni Center, Hilo, Hawaii Hilo, Hawai'i COUNTY OF HAWAI`l WINDWARD PLANNING COMMISSION'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER The County of Hawaii, Planning Commission submits its Findings of Fact, Conclusions of Law and Decision and Order pursuant to the request of the Windward Planning Commission of the County of Hawai'i at its May 1, 2014,meeting in Hilo, Hawaii. Present before the Commission were Ted H. S. Hong, counsel for Applicant Community Based Education Support Services; Carter K. Siu, Deputy Attorney General, for Applicant Connections New Century Public Charter School (hereinafter collectively referred to herein as "Connections"); Amy G. Self, Deputy Corporation Counsel, for County of Hawaii Planning Director(herein as "Director"); Jeffery K. Gomes (herein as "Gomes'), Intervenor, Pro Se; and Sandra Pechter Song, the Hearing Officer(herein as "Hearing Officer"), The contested case hearings by the 1 APPENDIX 116" Hearing Officer were held on October 21, and 22, 2013, November 12, 2013, January 8 and 22, 2014. FINDINGS OF FACT 1, Procedural Background 1. This matter involves an application filed by Connections on July 25, 20I2, for a special permit,pursuant to Section 205-6,Hawaii Revised Statutes ("HRS") and Rule 6 of the County of Hawaii Planning Commission Rules of Practice and Procedure (hereinafter "Commission Rules") to allow the development of a charter school campus with dorm facilities and related improvements for students in kindergarten through twelfth grade(hereinafter, the "Development"), on 70.15 acres of land situated within the State Land Use Agricultural District, at Ponahawai,Kukuau 2nd, South Hilo, Hawaii, commonly ref.:rred to as the Kaumana area of Hilo, designated by State of Hawaii Tax Map Key("TMK") (3)2-5-006:141 (hereinafter, the "Property"). 2. Connections has leased the Property on which the Development is proposed from the State of Hawaii under General Lease No. S-6029. 3. Notices of the Windward Planning Commission of the County of Hawaii (hereinafter "Commission") hearings on the proposed Development were provided to property owners surrounding the proposed Development. 4. The Commission held public hearings on the Connections application on November 9, 2012 [sic],December 6, 2012 and January 10, 2013. At the hearing held on January 10, 2013, the Commission moved [sic] to deny the Connections application and instructed the Commission staff to prepare proposed findings of fact, conclusions of law and order, which would be considered for adoption by the Commission at its meeting of March 7, 2013. 5. At the Commission meeting of March 7,2013, the Commission suspended the preparation of the findings of fact, conclusions of law and order, and granted a request by Connections for a contested case on the subject application, Gomes submitted a petition to intervene in this matter on March 7, 2013, and the Commission admitted him as a party to the proceeding. 2 6. A petition to intervene in this proceeding was filed by Terrence Yoshioka on November 4, 2013, after the contested case hearing in this proceeding had already commenced. On November 8, 2013, the Hearing Officer denied this petition in accordance with Rule 4-6 of the Commission Rules, on the ground that the subject petition was untimely filed. 7. The Director is a party to this proceeding pursuant to Rule 4-7(a) of the Commission Rules, The Director initially recornmended approval of the Connections application, subject to specific conditions,but took no position on the application at the contested case hearing. 8. The subject application involves a parcel of land greater than fifteen acres in area. Therefore, any permit approved by the Commission is subject to final approval by the State Land Use Commission. I1. Proposed Development A. General Description 9. The Connections application proposes the development of a K to 12 charter school campus with dorm facilities, and an intergenerational program that would provide childcare and elder care at a single facility on the Development, together with related uses on the 70-acre parcel of land. As the site is bisected by Edita Street, the lower portion of the Development would consist of the major school or campus facilities, while the upper portion would be used for outdoor type of educational programs, including a forestry preservation program. 10. The lower campus would support a projected 167 elementary students, 107 intermediate students, 107 high school students (381 K through 12 students) and 25 intergenerational clients. Also included would be a dormitory capable of supporting 30 students, a gymnasium, kitchen/dining facility, library/resource center, caretaker's residence and other related facilities. Two parking lots capable of supporting 140 parking stalls would be provided. 11. The Development would relocate and expand the existing charter school which is presently operating from two separate campuses. The elementary and middle schools are located in the Kress Building on Kamehameha Avenue, in downtown Hilo, and the high school is located in leased facilities at the Nani Mau Gardens,just outside of Hilo town. 12. Connections proposes having 50 full-time and 17 part-time employees at full build- out of the Development, which is the same number presently employed for this charter school. 3 13. Connections anticipates that 50% of the student population will come from the Hilo area and 50% from the Puna area miles away from the Development. The present student population for this charter school is composed primarily of students from these two geographic areas. 14. The Development does not propose to establish a charter school on the Property to serve the needs of the immediate vicinity in the Kaumana area of Hilo, although some students from the area may attend this school. 15. The Development is intended to be constructed in 9 phases and completed within 16 to 25 years. The first phase would include the caretaker's residence, high school and administration building, with the projected opening to be within 2.5 to 3.5 years. B. Public Utilities ar d Services Access/Traffic 16. Access to the Development is proposed from Edita Street which connects with Kaumana Drive, a major Hilo artery. Both roads are owned and maintained by the County of Hawai`i.. Edita Street has a 60-foot right-of-way width, with a 48-foot wide pavement width fronting the Development. The paved area accommodates two 20-foot wide travel lanes, a 20-foot wide shoulder on the northeast side of the road, and an 8-foot wide shoulder on the southwest side. Edita Street is in good condition; however, the Hawaii County Police Department recommended that the unpaved shoulder along Edita Street extending from Kadmana Drive to the Development should be paved so that pedestrians could safely walk along the shoulder. 17. A Traffic Impact Analysis Report("TIAR") dated June 28, 2010, was prepared in conjunction with the Connections application for the purpose of evaluating the Development's impact at the Development's entrance at Edita Street and at the Edita and Kaflnana Drive intersection. Based upon traffic counts taken on May 28, 2009,the TZAR found that the current level of service or LOS operates as LOS "A" or"B", meaning that the traffic service is uncongested. The TIAR also concluded that upon full build-out of the Development, the LOS wilt continue to operate at levels "A"or"B". Although the TIAR concludes that traffic will not be adversely affected by reason of the Development, the County Department of Public Works 4 recommended that a separate left turn lane onto the Development from Edita Street should be constructed to alleviate congestion, and that Connections should prepare a comprehensive traffic management plan for the Development. 18. Notwithstanding the findings of the TIAR and the recommendations of the Police Department and Department of Public Works, the area residents uniformly expressed concerns about the adverse traffic impact of the Development along Edita Street and Kadmana Drive. Also, residents objected that the TZAR was four years old and the traffic counts contained in the TIAR were taken when certain schools were not in session. Water 14. A maximum of 4,200 gallons per day(hereinafter"gpd") of water or seven (7) water units from an existing 8-inch waterline on Kadmana Drive for the upper campus and `Orn an existing 8-inch waterline on Edita Street for the lower campus, is available from the County of Hawaii municipal water system to service the entire Development. Based on a 60 gpd per student standard, 4,200 gallons of County water could only support 70 students. At full build-out the entire Development would require 26,I00 gpd. 20. Notwithstanding the unavailability of potable water from the County system for the Development, the existing 8-inch waterline within Edita Street is adequate to provide the required 2,000 gallons of water per minute for fire protection of the proposed Development. 21. The available water from the County of Hawaii municipal water system is insufficient to support the first phase of the Development. 22. Connections has proposed using water efficient fixtures and supplementing the available County water with either a catchment system for non-potable water or developing an additional water source. However, Connections has not produced any evidence to demonstrate that it has or can develop sufficient water for the Development. Wastewater 23. Connections is proposing to provide its own wastewater system meeting the requirements of the State of Hawaii Department of Health(hereinafter"DOH"). Connections prefers installing an ecological/biological wastewater system called the "Living Machine." 5 However, should such a system prove to be unfeasible, Connections would install a traditional septic system with leach fields or any other system required by DOH. Drainage 24_ The Property is located within Zone"X" on the U,S. Department of Army Corps of Engineers Flood Insurance Rate Map, which means that the Property is outside the 500-year flood plain. Notwithstanding this flood designation,during severe storms water has been known to overtop the concrete channel and flow across Edita Street, resulting in flooding of adjacent properties. Connections proposes to prepare detailed engineering studies for the purpose of developing appropriate drainage plans to address the potential flood hazard posed by the present condition of Edita Street. Utilities 25. Electrical and telephone services are available to the Property through overhead lines along Edita Street and Kaumana Drive. Public Safetv 26. The Hawai`i County Police Department expressed concern that the Development would increase noise, crime and traffic. However, there was no evidence that the Police Department lacks the ability to provide police protection for the Development. III. PHYSICAL CHARACTERISTICS OF THE PROPERTY AND SURROUNDING AREAS 27, The Property is presently vacant and undeveloped. 29. Surrounding lands to the south and west of the Property are zoned A-la,with properties further south being zoned A-20a and A-10a [sic]. Lands to the north of the Property are zoned RS-10 and RS-15, with some lands zoned A-3a further north across Kaumana Drive. One parcel is also zoned Open adjoining the northeast corner of the lower portion of the Property. Surrounding uses consist mainly of single-family residences with some vacant lands, and a small percentage of agricultural activity. 29. The soils on the Property are primarily composed of pahoehoe lava flow. The State Department of Agriculture's map showing agricultural lands of importance to the State of Hawai`i shows the Property as being unclassified. Also, the Land Study Bureau classifies the 6 soil on the Property under its detailed land classification system, as "D"or"Poor" for agricultural activity. 30. No archaeological sites have been found on the Property, and it is surmised that any pre-existing sites would have been destroyed by the lava flow of 1880-1881. Although Connections submitted a request to the State Historic Preservation Division ("SHPD"), by letter dated August 17, 2010, requesting a"no-effect"determination from that agency, SHPD has not responded to the request. 31. A portion of the Kaumana Cave is accessible from the upper portion of the Property. Connections is proposing to refrain from constructing any major school facilities on the upper portion of the Property and to maintain a minimum 100-foot buffer on either side of the cave alignment to alleviate concerns about impact from the Devel..pment on the cave ecosystem. 32. A botanical survey of the Property identified 11 native plant species, but none of those species are considered protected species. 33. Invertebrate, mammalian and field surveys were conducted on the Property. No protected species were documented to be present on the Property. 34. No traditional or customary native Hawaiian rights have been identified as being exercised on the Property. Likewise, there is no known public access to the mountains or the shoreline that runs through the Property. IV. STATE AND COUNTY PLANS 35. The Property is within the State Land Use Agricultural District. A school is not a permitted use within the Agricultural district;however, a school may be permitted in this district if a special permit is obtained for such use pursuant to Section 205-6,HRS and Rule 6 of the Commission Rules. 36. The County of Hawaii General Plan Land Use Pattern Allocation Guide("LUPAG") Map designates the Property for low density urban uses. The LUPAG designation of Low Density urban use, allows for residential uses,with ancillary community and public uses, and neighborhood and convenience-type commercial uses. The Development is not proposed to be a community or public use for the Kafimana area of Hilo. 7 37. The County of Hawaii zoning for the Property is Agricultural with a minimum lot size of one acre(A-1 a). Under Section 25-5-72(d) of the Hawaii County Code, a school is permitted in an Agricultural zoned district provided that a special permit is issued for the use if the land is within the State Land Use Agricultural District. 38. The Development, which is proposed to be located on State land, is subject to the Hawaii State Environmental Impact Statement law, Chapter 343, HRS. Connections prepared an environment assessment in accordance with Chapter 343, and declaration with a finding of no significant impact was issued for the Development by the State of Hawaii Department of Land and Natural Resources, A The Property is not situated within the Special Management Area C"SMA"), since it is located over three miles from the nearest shoreline. Thus, the coastal environmental considerations relating to the SMA are not applicable to the subject Property. V. SPECIAL PERMIT RE UIREMENTS 40, HRS Section 205-6, which governs special permits, provides in pertinent as follows: "(a) The county planning commission may permit certain unusual and reasonable uses within agricultural . . . districts other than those for which the district is classified. Any person who desires to use the person's land within an agricultural . . .district other than for an agricultural . . .use. . .may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired. "(c) The county planning commission may, under such protective restrictions as may be necessary,permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter... "(d) Special permits for land the area of which is greater than fifteen acres. . . shall be subject to approval by the land use commission. The land use commission may impose additional restrictions as may be necessary or appropriate in granting the approval including the adherence to representations made by the applicant." 8 41. Planning Commission Rule 6-7, provides, in pertinent part, that: "Whe Commission shall not approve a Special Permit unless it is found that the proposed use "(a) Is an unusual and reasonable use of land situated within the Agricultural. . .District. . .; and "(b) 'Would promote the effectiveness and objectives of Chapter 245, Hawaii Revised Statutes, as amended. "The Commission shall also consider the criteria listed under Section 6.3(b)(5)(A)through(G)." 42. The seven criteria under Planning Commission Rule 6.3(b)(5)(A) through(G)are: "(A) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations; "(B) The desired use shall not adversely affect surrounding properties; "(C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and fire protection; "(D) Unusual conditions, trends and needs have arisen since the district boundaries and regulations were established; "(E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district; "(F) The proposed use will not substantially alter or change the essential character of the land and the present use; and "(G) The request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design plans." 43. Although Gomes asserts that the criteria for a use permit should be considered in the subject application, that criteria is not relevant to a special permit determination. 9 Vi. APPLICATION OF SPECIAL PERMIT CRITERIA TO THE DEVELOPMENT A. Land Use Law Objectives 44. The purpose of the State Land Use Law is to preserve the lands of high agricultural potential for agricultural use. The Property consists of land that is not considered highly valuable for agricultural uses. Thus, the use of the Property for a school is not contrary to the objectives sought to be accomplished by the State Land Use Law. 45. Likewise, the Development, which proposes the construction of a school for 381 students and related facilities is not akin to a major recreational theme park attracting 1.5 million people each year to the area. Therefore, such a development would not frustrate the objectives and effectiveness of the Hawai`i's land use scheme and would not require a State Iand use boundary amendment in lieu of a special permit. Neighborhood Board No. 24 vs. State Land Use Commission, 64 Haw. 265, 272, 639, P.2d 1097, 1 103 (1982). B. Affect on Surrounding Properties 46. Based upon the testimony from surrounding and neighboring property owners,the Development will have an adverse effect on surrounding properties by creating noise, traffic, and impacting the quality of life of the adjoining residents. 47. Measures proposed by Connections,regarding the establishment of building setbacks and roadway improvements to Edita Street do not appear to be sufficient to mitigate the overwhelming concerns raised by surrounding property owners. C. Burden on Public Agencies to Provide Services 48. There is insufficient water available from the County system to service the Development. Therefore, to allow the Development would unreasonably burden the Department of Water Supply to provide water for its facilities. 49. There is no evidence that Connections has the ability to develop a potable water source as a mitigating measure, previously proposed by the Director. 50. A mitigating measure previously proposed by the Director of limiting the number of students to the amount of potable water available to the project is not reasonable because Connections is proposing to construct a high school for 107 students its first phase, when the potable water available would only allow for 70 students. 10 51. As such, the proposed use may unreasonably burden the County Department of Water Supply to provide water to the Development. D. Unusual Conditions Trends and Needs 52. Unusual conditions and needs have arisen since the establishment of this land use district in the 1970s, because the area in which the Property is located has essentially become residential in character. Also, the County General Plan LUPAG map recognizes this trend by designating the area for low density urban use. However, there was no evidence presented to demonstrate that location of a school that is not intended to specifically service the needs of the immediate community is such an unusual condition, trend or need that justifies location of the Development at this location. E. Suitability of Land for Agricultural Uses 53. The Land Study Bureau soil classification rating for the Property is"D" or"Poor," which suggests that the land may be unsuited for agricultural uses. 54. Connections is proposing to maintain the upper portion or nearly one-half of the Property for forestry use. In addition, Connections is proposing to construct greenhouses on the Property and conduct an agricultural program in conjunction with its curriculum. 55. Based upon the repres4ntations of Connections, it cannot be found that the Property is unsuited for agricultural uses. F. Alteration or Chante of the Essential Character of the Land and Present Use 56. The Property is presently a forest and is vacant of any structures. The lower half of the Property will be converted into a school with classrooms, dormitories, a gymnasium cafeteria and parking lots. 57. The Development of a school will change the essential character of the forested land and its undeveloped use. G. Consistency with the General Plan 58. The County General Plan LUPAG map designates the Property for low density urban use. "Low density uses"under the General Plan include residential, with ancillary community and public uses, and neighborhood and convenience-type commercial uses. II 59. The Development, which proposes a charter school that is not specifically intended to service the immediate community surrounding the school, is not consistent with the uses permitted in areas of low density urban use. 60. The Economic, Public Facilities and Land Use elements of the County General Plan all require consideration of social and community concerns as follows: Economic Element-Goal "Provide an economic environment that allows new, expanded, or improved economic opportunities that are compatible with the County's cultural, natural and social environment." Public Facilities Element- Goal "Encourage the Provision of public facilities that effectively service the community and visitor needs and seek ways of improving public service through better and more functional facilities in keeping with the environmental and aesthetic concerns of the community." Land Use Element - Pglicy "Encourage the development and maintenance of communities meeting the needs of its residents in balance with the physical and social environments." 61. The evidence has established significant concerns from the community regarding the compatibility of the Development with the surrounding community. 62. Although the County General Plan Public Facilities-Education course of action for South Hilo encourages the establishment of additional schools as the need arises, the proposed Development, at the subject location,is contrary to the General Plan. VII. UNUSUAL AND REASONABLE USE OF LAND 63. The construction of a school on the Property is an unusual use of the land because a school is not a permitted use in the State Land Use Agricultural District. However, the evidence presented does not demonstrate that the Development is a reasonable use of the Property. Specifically, Connections has not demonstrated how this school can be built without sufficient potable water resources. Nor, has Connections demonstrated how the development of a regional 12 3 charter school on the Property that does not specifically service the needs of the immediate community and that is overwhelmingly objected to by the immediate community is a reasonable site for this facility. In addition, Connections has not demonstrated that the Development meets most of the criteria to be considered by the Commission in the subject application. CONCLUSIONU OF LAW Based upon the foregoing Findings of Fact, the Commission makes the following Conclusions of Law: 1. To the extent that any of the Findings of Fact constitute Conclusions of Law, or Conclusions of Law constitute Findings of Fact, they shall be considered and construed as such. 2. The Commission has jurisdiction over the subject special permit application, including the ability to deny or recommend its approval to the State Land Use Commission,pursuant to Section 205-6, HRS and Rule 6 of the Commission Rules. 3. Connections had the burden of proof on this matter before the Commission, including the burden of producing evidence as well as the burden of persuasion, by a preponderance of evidence, to demonstrate how its request is consistent with the guidelines for a special permit as outlined by Section 205-6, HRS and Rule 6 of the Commission Rules. Connections has failed to meet this burden. 4. The Development does not adequately meet the requirements or guidelines for a special permit as required by Section 205-6, HRS and Rule 6 of the Commission Rules. 5. The Development is not consistent with the County General Plan, particularly as to the impacts on the immediate community. ORDER Based upon the preceding Findings of Fact and Conclusions of Law, Special Permit Application SPP No. 12-000138 of Connections New Century Public Charter School and Community Based Education Support Services to develop a K to 12 charter school campus with 13 dorm facilities and related uses on 70.15 acres situated within the State Land Use Agricultural District is hereby denied. Dated: Hilo, Hawai`i, MAY 2014 B Y RONALD GONZALES, Chairman Windward Planning Commission 14 BEFORE THE COUNTY OF HAWAPI PLANNING COMMISSION In the Matter of SPP No. 12-000138 CONNECTIONS NEW CENTURY PUBLIC CERTIFICATE OF SERVICE CHARTER SCHOOL AND COMMUNITY BASED EDUCATION SUPPORT SERVICES Application for Special Permit Application No. 12-000138 TMK: (3) 2-5-006-141; Kaumana, South Hilo, Hawaii CERTIFICATE OF SERVICE 1 hereby certi fy that on this date, a copy of the foregoing was duly served upon the following parties by depositing the same.in the U. S, mail, postage prepaid, and by e-mailing a copy, addressed to: Ted H. S. Hong, Esq. (ted_Aedhonglaw.com) P. O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant Community Based Education Support Services Carter K. Siu, Esq. (Carter.K.Siu awaii. ov) Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant Connections New Century Charter School Amy G. Self, Esq. (aself@co.hawaii.hi.us) Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for County of Hawai`i Plarming Director Mr. Jeffrey K. Gomes (kaiani gomesghawaiiantel.net) 281 Edita Street Hilo, Hawaii 96720 Intervenor pro se Mr. Duane Kanuha, Planning Director(plannin co.hawaii.hi.us) County of Hawaii Planning Department 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720 Margaret Masunaga, Esq. (mkmasuna a(a)co.hawaii.hi.us) Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway Kailua-Kona, HI 96740 Attorney for County of Hawaii Planning Commission Dated: Hilo, Hawaii, MAY 7 2 2D14 R NALD GO ZALE , Chairman Windward PIanning Commission 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES and CONNEC- ) (Agency Appeal) TIONS NEW CENTURY PUBLIC ) CHARTER SCHOOL, } } CERTIFICATE OF SERVICE Applicants-Appellants, } ) vs . } WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; DEPARTMENT OF ) PLANNING, COUNTY OF HAWAII, ) Appellees, ) and } JEFFREY GOMES, ) } Intervenor-Appellee. ) CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a copy of the foregoing document (s) was duly served upon the following parties via the U.S . Post Office, Kailua-Kona, Hawaii, postage prepaid, addressed as follows : TED H.S . HONG, ESQ. P .O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General 235 So. Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AMY SELF, ESQ, Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAII PLANNING DIRECTOR LAUREEN L . MARTIN, ESQ. DANNY B. PATEL, ESQ. 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII DATED: Kailua-Kona, Hawaii, February 25, 2015 JEFFREY K. GOMES, Appellee- Intervenor _�R t � By MICHAYL J. MATSUKAWA His Attorney 2 FILED TED H. S. HONG 3569 Attorney at Law 1015 MAR —3 PM 3: 04 P. O. Box 4217 Hilo, HI 96720 �— TeIephone No. 808.933.I919 L. FLOCK CHEW,CLERK Facsimile No. 808.938.8281 THIRD CIRCUIT COURT ted@tedhonglaw.com STATE OF Hft,�II Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO, 14-1-0223 RI SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, } ORDER DENYING INTERVENOR- ) APPELLEE JEFFREY K. GOMES' vs. ) MOTION (1) TO DISMISS NOTICE OF APPEAL TAKEN BY APPLICANT- WINDWARD PLANNING COMMISSION,) APPELLANT COMMUNITY COUNTY OF HAWAII; DEPARTMENT ) BASED EDUCATION SUPPORT OF PLANNING, COUNTY OF HAWAII, ) SERVICES (FILED JUNE 9, 2014) AND (2) FOR SUMMARY JUDGMENT ON AppeIIees, ) SAID NOTICE OF APPEAL, FILED ON DECEMBER 11, 20I4 and ) HEARING: JEFFREY COMES, ) DATE: February 10, 2015 TIME: 8:00 a.m. Intervenor-Appellee. ) JUDGE: The Hon. Ronald Ibarra ORDER DENYING INTERVENOR-APPELLEE JEFFREY K. GOMES' MOTION (1) TO DISMISS NOTICE OF APPEAL TAKEN BY APPLICANT-APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES (FILED JUNE 9, 2014) AND (2) FOR SUMMARY JUDGMENT ON SAID NOTICE OF APPEAL, FILED ON DECEMBER 11-2014 INTERVENOR-APPELLEE JEFFREY K. COMES' Motion (1) to Dismiss Notice of Appeal Taken by Applicant-Appellant Community Based Education Support Services (Filed June 9, 2014) and (2) for Summary Judgment on Said Notice of Appeal, Filed on December 11, 2014 having come on for hearing before the Honorable Ronald lbarra on February 10, 2015 at 8:00 a.m, with Ted H. S. Hong, Esq. appearing on behalf of Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES; Michael J. Matsukawa, Esq., appearing on behalf of INTERVENOR-APPELLEE JEFFREY K. COMES: Carter K. Siu, Esq., appearing by telephone for Applicant-Appellant, Connections New Century Public Charter School; and Danny B. Patel, Esq., Deputy Corporation Counsel, Esq., appearing by telephone on behalf of Appellee, Windward Planning Commission, and no other parties appearing. Applicant-Appellant, Connections New Century Public Charter School, through Mr. Siu, having made an oral Statement of No Position on the INTERVENOR-APPELLEE JEFFREY K. GOMES' motion was excused from the proceeding. Appellee, Windward Planning Commission filed its Statement of No Position on January 1&, 2015. The Court having reviewed the Motion, Memoranda, having heard oral arguments and being fully apprised in the premises, and good cause appearing, therefor, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that INTERVENOR- APPELLEE JEFFREY K. COMES' Motion (1) to Dismiss Notice of Appeal Taken by Applicant-Appellant Community Based Education Support Services (Filed June 9, 2014) and(2) for Summary Judgment on Said Notice of Appeal, Filed on December 11, 2014 is hereby DENIED for the following reasons: 1. INTERVENOR-APPELLEE JEFFREY K. COMES' Motion (1) to Dismiss Notice of Appeal Taken by Applicant-Appellant Community Based Education Support Services (Filed 2 June 9, 2014) was based, in part, on Rule 12(b)(1) and 12(b)(6), Hawaii Rules of Civil Procedure (hereinafer referred to as "HRCivP"). In deciding on a Rule 12(b), HRCivP, motion to dismiss, the Court's consideration is strictly limited to the allegations of the complaint, and the Court must construe those allegations liberally and taken as true. Paysek, et al., v. Sandvold, et al., 127 Hawai'i 390, 402-403, 279 P.3d 55, 67-68 (2012). Generally, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle him or her to relief. Id.. In the present case, it does appear the Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES can prove a set of facts in support of its claim that would entitle it to relief. 2. In the alternative, INTERVENOR-APPELLEE JEFFREY K. GOMES moves for Summary Judgment on Said Notice of Appeal, Filed on December 11, 2014, under Rule 56, HRCivP. In ruling on a motion for summary judgment, the Court is required to view the evidence "in the light most favorable to the non-moving party" and "view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion." Oahu Transit Services, Inc., v. Northfield Insurance Company, 107 Hawaii 231, at 234, 1 l 2 P.3d 717, at 720 (2005). In the present case, genuine issues of material fact exist whether Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES is a "person aggrieved" and suffered an "actual or threatened" injury that would allow it standing to bring the present agency appeal. 3. Applicant-Appellant, Connections New Century Public Charter School, through Mr. 3 Siu, having made an oral Statement of No Position on the INTERVENOR-APPELLEE JEFFREY K. GOMES' motion and being excused from the proceeding, will not review or approve the Order Denying INTERVENOR-APPELLEE JEFFREY K. GOMES' Motion (1) to Dismiss Notice of Appeal Taken by Applicant-Appellant Community Based Education Support Services (Filed June 9, 2014) and(2) for Summary Judgment on Said Notice of Appeal, Filed on December 11, 2014, pursuant to Rule 23, Rules of Circuit Courts, State of Hawaii. 4. Appellee, Windward Planning Commission having filed its Statement of No Position on January 16, 2015 will not review or approve the Order Denying INTERVENOR-APPELLEE JEFFREY K. GOMES' Motion (1) to Dismiss Notice of Appeal Taken by Applicant-Appellant Community Based Education Support Services (Filed June 9, 2014) and (2) for Summary Judgment on Said Notice of Appeal, Filed on December 11, 2014, pursuant to Rule 23, Rules of Circuit Courts, State of Hawaii. Accordingly, it is ORDERED, ADJUDGED, AND DECREED that INTERVENOR- APPELLEE JEFFREY K. GOMES' Motion (1) to Dismiss Notice of Appeal Taken by Applicant-Appellant Community Based Education Support Services (Filed June 9, 2014) and (2) for Summary Judgment on Said Notice of Appeal, Filed on December 11, 2014. is denied. DATED: Kealakekua, Hawaii, 2 l RONALD IBA RA JUDGE OF THE ABOVE-ENTITLED COURT 4 APPROVED AS TO FORM: VV�A, MICHAEL . ATSUKA A, ESQ. Attorney for INTERVENOR-APPELLEE JEFFREY K. GOMES Community Based Education Support Services, et ah, v. Windward Planning Commission, et al., Civil No. 14-1-0223 (Agency Appeal), Order Denying INTERVENOR-APPELLEE JEFFREY K. GOMES' Motion (1) to Dismiss Notice of Appeal Taken by Applicant-Appellant Community Based Education Support Services (Filed June 9, 2014) and (2) for Summary Judgment on Said Notice of Appeal, Filed on December 11, 2014. 5 MICHAEL J. MATSUKAWA, 1865-0 Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Telephone No. : (808) 329-1385 Attorney for Intervenor-Appellee JEFFREY K. GOMES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS) and ) (Agency Appeal) CONNECTIONS NEW CENTURY PUBLIC ) CHARTER SCHOOL, ) INTERVENOR-APPELLEE JEFFREY K. Applicants-Appellants, ) GOMES' ANSWERING BRIEF TO CONNECTIONS NEW CENTURY PUBLIC vs , ) CHARTER SCHOOL' S OPENING BRIEF FILED FEBRUARY 17 , 2015; WINDWARD PLANNING COMMISSION, ) APPENDICES 111, "2, " 114" AND COUNTY OF HAWAII; DEPARTMENT OF ) 116" ; CERTIFICATE OF SERVICE PLANNING, COUNTY OF HAWAII, ) ) Appellees, ) and ) � -,o�+ JEFFREY GOMES, ) _y' -�•� Intervenor-Appellee . ) =" Lnrn 022415.6\j-4omes\ans-brf con r T 4 /ll bwe SUBJECT INDEX Page Table of Authorities I . INTRODUCTION TO SPECIAL PERMITS . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Nature and Characteristics of a Special Permit 2 B. Decision Standard for a State-Based Special Permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 C. CONNECTIONS' Misstatement of the Law . . . . . . . . . . . . . . . 8 II . PUBLIC NATURAL RESOURCES TRUST . . . . . . . . . . . . . . . . . . . . . . . . . 11 III . ARGUMENT A. THE APPELLEE WINDWARD PLANNING COMMISSION' S DECISION IS SUFFICIENTLY SPECIFIC AS TO THE ADVERSE EFFECTS THAT THE PROPOSED SCHOOL WOULD HAVE ON SURROUNDING PROPERTIES . . . . . . . . . . . . . . 12 B. CONNECTIONS MISUNDERSTANDS THE APPELLEE WINDWARD PLANNING COMMISSION' S TWO-PART FINDINGS RELATING TO THE LIMITED SUPPLY OF POTABLE WATER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 C. THE APPELLEE WINDWARD PLANNING COMMISSION DID NOT ERR IN ITS INTERPRETATION AND APPLICATION OF ITS AGENCY RULE RELATING TO LAND USE TRENDS AND NEEDS . . . . . . . . . . . . . . . . . . . . . . . . . 18 D. THE APPELLEE WINDWARD PLANNING COMMISSION DID NOT ERR IN ITS FINDING ON THE LAND' S CONTINUED SUITABILITY FOR AGRICULTURE . . . . . . . . . . . . . 19 E. IF THE GENERAL PLAN IS RELEVANT TO EVALUATE THE COMMUNITY'S DESIRED LONG-TERM LAND USE PATTERNS, THE APPELLEE WINDWARD PLANNING COMMISSION DID NOT ERR IN ITS EVALUATION AND FINDINGS ON GENERAL PLAN CONFORMANCE . . . . . . . . . . . . . . 21 F. THIS AGENCY APPEAL MUST BE DETERMINED ON THE GOVERNING STATE LAW IN HAWAII AND THE FACTS IN THE AGENCY RECORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 i Subject Index, continued Page SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 CONCLUSION AND REQUEST FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 ii Table of Authorities Page Hawaii Cases Camara v. Agsalud, 67 Haw. 212, 685 P. 2d 794 (1984 . . . . . . . . . . 19 County of Hawaii v. Ala Loop Homeowners, 123 Haw. 391, 235 P. 3d 1103 (2010) . . . . . . . . . . . . . . . . . . . . . 26 Dupree v. Hiraga, 121 Haw. 297, 219 P. 3d 1084 (2009) . . . . . . . . 15 Fratinardo v. Employees ' Retirement System, 129 Haw. 107, 295 P. 3d 977 (Haw. App. 2013) . . . . . . . . . . . . 19 Hui Ala Loa v. Planning Commission, 66 Haw. 135, 705 P. 2d 1042 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 In Re Hawaii Electric Light Co. , Inc. , 60 Haw. 625, 594 P . 2d 612 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 15 Kauai Springs v. Planning Commission, 133 Haw. 141, 324 P. 3d 951 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12 Kilauea Neighborhood Association v. Land Use Commission, 7 Haw. App. 227, 751 P. 2d 1031 (1988) . . . . . . 12 Korean Buddhist Dae Won Sa Temple v. Sullivan, 87 Haw. 217, 953 P .2d 1315 (1998) . . . . . . . . . . . . . . . . . . . . . . 28 Lanai Company, Inc. v. Land Use Commission, 105 Haw. 296, 97 P . 3d 372 (2004) . . . . . . . I . . . . . . . . . . . . . . . . . . . . . . . . 10 Neighborhood Board No. 24 V. State Land Use Commission, 64 Haw. 265, 639 P.2d 1097 (1962) . . . . . 6-7, 24 Save Sunset Beach Coalition v. City & County, 102 Haw. 465, 78 P . 3d 1 (2003) . . . . . 10, 16, 20 , 21, 22, 23 iii Table of Authorities, continued Page Other cases City of Colorado Springs v. Securcare Self Storage, Inc. , 2000 Colo. J.C.A.R. 5356, 10 P. 3d 1244 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 , 25, 26 City of Chicago Heights v. Living Word Outreach Full Gospel Church & Ministries, Inc. , 196 Ill . 2d 1, 749 N.E. 2d 916 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 15 xabro Associates LLC v. Town of Islip Zoning Board of Appeals, 95 A.D.3d 1118, 944 N.Y. S . 2d 277 (2012) . . . . . . . . . . . . . . . I . . . . . . . . . . . . . . . . . . . . . 8 Sunderland Family Treatment Center Services v. City of Pasco, 127 Wash. 2d 762, 903 P.2d 986 (1995) . . . . . 13-14 Twin County Recycling Corp. v. Yevoli, 90 N.Y.S .2d 1000, 688 N.E. 2d 501 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Westchester Day School v. Village of Mamaroneck, 417 F. Supp. 2d 477 (S.D.N.Y. 2006) . . . . . . . . . . . . . . . . . . . . . 13 Legislative Sources Hawaii State Constitution Article XI, Section 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Hawaii Revised Statutes Section 46-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 , 21 Section 91-10 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 Section 91-10 (S) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Chapter 205 . . . . . . . . . . . . . . . 7, 8, 9, 10, 14 , 21, 22 , 25, 26 iv Table of Authorities, continued Page Hawaii Revised Statutes, continued Section 205-6 . . . . 3 , 5, 6, 7, 8, 9, 10, 11, 14 , 22 , 24, 27 Section 205-2 (d) . . . . . . . . . . . . . . . . . . • • . . . . . . . . . . . • • 4 , 6, 24 Section 205-4 . 5 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 , 6 Section 205-4 . 5 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Section 205-4 . 5 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 , 4, 24 Section 205-5 (b) . . . . . . . . . . . . . . . . . . . . . . . 3 , 4 , 5, 6, 10, 24 Section 205-12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10 Hawaii Administrative Rules HAR 11-200-9 (a) (1) & 9 (b) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 HAR 15-15-25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6 , 24 Hawaii County Charter Section 13-29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Hawaii County Code Section 25-4-7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Section 25-4-13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 SECTION 25-5-76 (D) (7) 5, 10 Hawaii County Planning Commission Rule 6 Rule 6-3 (b) (5) (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Rule 6-3 (b) (5) (D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 v Table of Authorities, continued Pace Secondary Sources 83 Am.Jur. 2d, Zoning & Planning § 129 . . . . . . . . . . . . . . . . . . . . 3 , 9 P. Salkins, American Law of Zoning (5th ed. ) § 14 . 1 & 14 . 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9 vi INTERVENOR-APPELLEE JEFFREY K. GOMES' ANSWERING BRIEF TO CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL' S OPENING BRIEF FILED FEBRUARY 17 , 2015 The Applicant-Appellant CONNECTIONS does not assign error to any of the Appellee Windward Planning Commission' s findings and conclusions . Instead, CONNECTIONS "incorporates" by reference the errors that its co-applicant, the Applicant-Appellant Community Based Education Support Services ( "CBESS' ) , assigns in CBESS' Opening Brief and seeks to "expand upon and supplement th[e] arguments advanced by" CBESS in CBESS' Opening Brief . CONNECTIONS makes no independent assignment of error of its own and simply argues in support of its co-applicant' s case-in-chief . Even if CONNECTIONS sees its role in this agency appeal as being a supportive role (to assist its co-applicant) , CONNECTIONS filed its own Notice of Appeal and sought to be an appellant, even when the Intervenor-Appellee Jeffrey K. Gomes moved to dismiss CONNECTIONS as an appellant . Nevertheless, CONNECTIONS, though an appellant herein, has not taken steps that are usually required of an appellant to present points of error, to state the questions raised on appeal, to direct this Court to the agency record and to explain how the Appellee Windward Planning Commission' s findings adversely prejudice CONNECTIONS' rights . For this reason, this Court should disregard or strike CONNECTIONS' "Opening Brief . " CONNECTIONS' pleading also poses a dilemma for the Intervenor-Appellee Jeffrey K. Gomes . Since CONNECTIONS makes no independent assignment of error to the Appellee Windward Planning Commission' s decision, what is the Intervenor-Appellee Gomes supposed to do in response to CONNECTIONS' "Opening Brief, ' especially when the Intervenor-Appellee Gomes has already filed his answer to the Applicant-Appellant CBESS' Opening Brief on February 26, 2015? If this Court intends to accept CONNECTIONS' "Opening Brief" as a proper pleading, then the Intervenor-Appellee Gomes responds thereto by making his own "expanded" and "supplemental,, arguments to the issues raised.' I . INTRODUCTION TO SPECIAL PERMITS The Appellee-Intervenor Jeffrey K. Gomes first directs this Court to the governing law in this agency appeal in order to avoid misunderstandings and to clarify the subjects that this Court is being asked to review. A. Nature and Characteristics of a Special Permit The terms "special permit, " "special use permit, " "use permit, " "conditional use" and the like appear in State statutes and municipal codes across the country. See P . Salkins, American Law of Zoning (5th ed. 2014) §§ 14 . 1 and 14 . 2 . The terms all embrace the general land use concept that a landowner should be entitled to relief in certain described instances from rigid land ' This Court can note that while CONNECTIONS is the charter school and is the lessee of the 70-acre parcel under General Lease No . 5-6209, CONNECTIONS has taken a passive role in the Special Permit proceeding and in this agency appeal and has left the burden of producing evidence and advocacy to others, viz . its co-applicant Community Based Education Support Services . 2 use regulations that prohibit activities that are often desired and that do not pose harm to a community. These activities usually include hospitals, airports, schools, churches, service stations, mortuaries and recreation centers _ Each statute and municipal ordinance has its own permit standards and decision-making pro- cedures . Every statute and ordinance differs . See 83 Am.Jur. 2d, Zoning and Planning § 129 . It is important for this Court to keep this point in mind because CONNECTIONS does not distinguish laws and permits of other jurisdictions from the State-based Special Permit described in Hawaii State law, Section 205-6, HRS, that is the subject of this appeal. The State-based Special Permit in this instance is a very unique land use device that some might say is "one of a kind. " (State Land Use Law) In Hawaii, the Legislature established a special regula- tory system for lands that lie in the State Agriculture District . First, the Legislature divided all lands in the State Agriculture District into two categories based on soil class : (1) lands with soil class A or B, the so-called "prime" lands, and (2) lands with soil class C, D, E or U, all other lands . The Legislature then established a list of permitted uses for lands that have soil class A or B in Section 205-4 . 5 (a) , HRS and as to lands with soil class C, D, E or U, delegated to the State Land Use Commission the duty and authority to determine the activities that can be put thereon as permitted uses pursuant to Section 205-4 . 5 (c) , HRS and Section 205-5 (b) , HRS . 3 Subsection (c) of Section 205-4 . 5, HRS states : Within the agricultural district, all lands with soil classified by the land study bureau' s detailed land classification as overall (master) productivity rating class C, D, E, or U shall be restricted to the uses permitted for agricultural districts as set forth in section 205-5 (b) . (emphasis added) Section 205-5 (b) , HRS in turn delegates to the State Land Use Commission the duty to establish a list of activities that should be permitted on lands with soil class C, D, E or U because such activities are deemed to be "compatible to the activities described in section 205-2 . 11 The State Land Use Commission has since published HAR 15- 15-25 (amended in 2013) as its agency rule on point, but HAR 15-15- 25 does not include the exhaustive list of activities that the Legislature contemplated. Instead, the State Land Use Commission' s agency rule simply refers the reader back to Section 205-2 , HRS, subsectionI of which contains a list of various activities that the Legislature itself had established.2 (County Zoning) It is important for this Court to note that the County has NO authority to determine what activities can be put on lands in the State Agriculture District except to define an "accessor 2 These activities include farms, aquaculture, solar energy facilities, wind machines and agricultural tourism, but do not include schools . 4 use" (as opposed to a direct or primary use) .' However, some may believe that Section 25-5-72 (d) (7) of the County Zoning Code makes a school a direct permitted use in the State Agriculture District . See, e.g. , CONNECTIONS' "Opening Brief, " Page 11. This ordinance states that if a use is allowed under a State-based Special Permit pursuant to Section 205-6, HRS, that use will be deemed to be a permitted use in the county zoning district as well . However, it is important to note that this ordinance does NOT establish a school as a direct permitted use in the State Agriculture District_ It merely acknowledges that the County, which is the enforcing agency pursuant to Section 205-12, HRS, ' will recognize a use that is allowed under a State-based Special Permit as a permitted use, i-e . , the County will not prohibit what State law allows in the State Agriculture District . (See further discussion in Part I .C, below. ) (State-Based Special Permit) Because there may be instances when a particular activity is a desired use, but is not defined as a permitted use for the State Agriculture District under State statutes or the State Land Use Commission' s agency rule, the Legislature provided statutory 3 " [A] ccessory agricultural uses and services described in sections 205-2 and 205-4 . 5 may be further defined by each county by zoning ordinance. " Section 205-5 (b) , HRS . ' "The appropriate officer or agency charged with the administration of county zoning laws shall enforce within each county the use classification district adopted by the land use commission and the restriction on use and the condition relating to agriculture districts under section 205-4 . 5 . . . . " 5 relief by way of a "Special Permit" under which a landowner may place a desired use on its land in the State Agriculture District . Section 205-6 , HRS is a unique statute due to its breadth and the amount of discretion that it delegates to agencies . It states : (a) Subject to this section, the county planning commission may permit certain unusual and reasonable uses within agricultural . . . districts other than those [uses] for which the district is classified (c) The county planning commission may, under such protective restrictions as may be deemed necessary, permit the desire use, but only when the use would promote the effectiveness and objectives of this chapter In contrast to the more typical special use permit ordinance like that enacted by municipalities cited in CONNECTIONS, "Opening Brief, " Section 205-6 , HRS does not expressly define the class of activities that qualifies for a State-based Special Permit (e .g. , airport, service station, church or school) . Instead, Section 205-6 , HRS describes the class of activities that qualifies for a Special Permit as everything that is prohibited under Sections 205-2 (d) , 205-4 . 5 (a) , 205-4 . 5 (b) and 205-5 (b) , HRS and HAR 15-15-25 . The Hawaii Supreme Court called this unique land use device under Hawaii law an "exception" : The special use exception evolved as a land use control device from a recognition of the hardship frequently visited upon landowners due to the inherent rigidity of the Euclidean zoning system [on which most zoning codes are based] , and the inapplicability of variance or boundary amendment procedures to [resolve] all land use problems . (citing cases) . . . . [A] special permit allows the owner to put his land to a use expressly permitted by . . . statute [in this case Section 205-6, HRS) on proof that certain facts and conditions 6 exist 5 Its essential purpose is to provide landowners relief in exceptional situations where the use desired would not change the essential character of the district or be inconsistent therewith. (emphasis added) Neighborhood Board No. 24 v. State Land Use Commission, 64 Haw. 265, 270-271, 639 P. 2d 1097, 1101-1102 (1982) . In other words, under Hawaii' s State-based Special Permit system (Section 205-6, HRS) , even though a desired use is prohibited by the express provisions of an applicable State statute or agency rule, it can still be exc?pted from that prohibition as long as (1) the desired use is "unusual" and "reasonable, " (2) its impacts can be mitigated through the imposition of specially designed conditions of approval, and (3) it will, if allowed, promote the effectiveness and objectives of the State Land Use Law (Chapter 205 , HRS) . 6 Thus the decision-maker is given broad discretion to determine whether an application for any particular use should or should not be allowed. 5 The use is "unusual" yet "reasonable" in the State Agriculture District . 6 " [T] he legislature intended . . . to ' [s] tage the alloca- tion of land for development in an orderly plan' and to redress the problem of [i] nadequate controls [which] have caused many of Hawaii' s limited and valuable lands to be used for purposes that have a short-term gain to a few but result in a long-term loss to the income and growth of our economy. "' The State' s planning objectives are "the avoidance of scattered urban development" and the promotion of urban development "in existing urban uses . Neighborhood Board No. 24 v. State Land Use Commission, supra, 64 Haw. at 272-273 , 639 P. 2d at 1102 . 7 B. Decision Standard for a State-Based Special Permit All courts agree that the beginning point of any analysis is the statute or ordinance which gives rise to the specific form of development approval at hand. Here, the Legislature gave the Appellee Windward Planning Commission very broad discretion to determine whether a desired use, prohibited by law, is nevertheless "unusual" enough to be put in the State Agriculture District, is a "reasonable" use of land in the State Agriculture District and will "Promote the effectiveness and objectives" of Chapter 205 , HRS.' C. CONNECTIONS' Misstatement of the Law At Page 6 of its "Opening Brief, 11 CONNECTIONS states that a use that is allowed under a special use permit is one that is already permitted by the applicable zoning ordinance, citing Kabro Associates LLC v. Town of Islip Zoning Board of Appeals, 95 A.D.3d 1118, 1120, 944 N.Y.S .2d 277, 289 (2012) . As stated above, this type of permit exists in situations where the municipal legislative body has already determined that a specific use should be allowed as a direct use, but should also be subject to a special review process to identify and to mitigate any negative impacts that are 7 No one has argued that this language is overly broad or too indefinite so as to be incapable of being enforced. The parties in this case have not challenged Section 205-6 , HRS on grounds of overbreadth or vagueness . This Court should note that other jurisdictions use similarly broad provisions with little else to guide the decision-maker. See e.g. , City of Colorado Springs v. Securcare Self Storage, Inc. , 2000 Colo . J.C.A.R. 5356 , 10 P . 3d 1244 (2000) (conditional use must be "compatible" to the area) . 8 associated with that use . Compare with "conditional uses" de- scribed in County Zoning Code Sections 25-4-7 (bed and breakfast facilities) and 25-4-13 (home occupations) . ' In this context, when courts deal with such a permit, they remind agencies that if the municipal legislative body has already determined that the use in question is allowed (but subject to various conditions to ensure neighborhood compatibility and to mitigate negative impacts) , agencies cannot use the review process to deny what the municipal legislative body has expressly allowed. However, as discussed above, the State-based Special Permit that this Court is reviewing in this instance is of a very different character. In Section 205-6, HRS, the Legislature does not declare that a school, or any other particular activity, should be allowed in the State Agriculture District as a conditional use . In fact, in Section 205-6, HRS, as drafted, the Legislature does not declare any specific activity to be a conditional use in the State Agriculture District . All that Section 205-6, HRS says is that any activity that is prohibited by the terms of Chapter 205, HRS can be permitted an exception to the prohibition but only if the Planning Commission finds the activity to be "unusual" and "reasonable" and if allowed will "promote the effectiveness and objective" of Chapter 205, HRS . B This kind of use is generally described to be a "conditional use" because while expressly permitted, it is subject to specific conditions that the landowner must satisfy. See Kauai Springs v. Planning Commission, 133 Haw. 141, 168-169, 324 P. 3d 951, 978-979 (2014) ; P. Salkins, American Law of Zoning, supra; 83 Am.Jur. 2d, Zoning and Planning, supra. 9 CONNECTIONS' misunderstanding of the law is also reflected at Page 11, footnote 3 of its "Opening Brief, " when it cites the County Zoning Code, Section 25-5-72 (d) (7) , as evidence that a school is a "permitted use" in the State Agriculture Dis- trict by virtue of a county ordinance. First, as stated above, the power to establish a direct permitted use in the State Agriculture District rests in the Legislature (not in the county) and in the State Land Use Commission that is authorized to determine the "activities" that are "compatible" to the activities listed in Section 205-2 (d) , HRS and, therefore, may be put on land with soil class C, D, E or U. Save Sunset Beach Coalition v. City & Counter, 102 Haw. 465, 480-482 , 78 P. 3d 1, 16-18 (2003) . Second, the county has no power to establish a direct use in the State Agriculture District (such as a school) by county ordinance. Third, the county may only "'define" an "accessory" use, but not a direct permitted use in the State Agriculture District . Section 205-5 (b) , HRS . Fourth, under Section 205-12 , HRS, the county is required to enforce (not to avoid) the provisions of Chapter 205 that involve the State Agriculture District . Lanai Company, Inc. v. Land Use Commission, 105 Haw. 296, 318 , 97 P.3d 372, 394 (2004) ; see footnote 4, supra. Fifth, if the planning commission issues a Special Permit pursuant to Section 205-6, HRS, the county has no choice but to honor and enforce the Special Permit so issued. Zoning Code Section 25-5-72 (d) (7) simply acknowledges these points of law. Finally, CONNECTIONS, at Page 6 of its "Opening Brief, " cites several mainland cases for the proposition that an agency 10 exceeds its authority if it denies an application for a conditional use even though the record demonstrates that the applicant has satisfied the relevant conditions . However, these cases do not involve the same kind of land use device that is before this Court . As stated above, Section 205-6, HRS does not pre-determine the kind of activity that may be allowed by way of a Special Permit . The Legislature left that decision entirely up to the Appellee Windward Planning Commission. Further, the facts of every case are rarely the same. II . PUBLIC NATURAL RESOURCES TRUST In his answer to the Applicant-Appellant CBESS, the Intervenor-Appellee Gomes directs this Court to the fact that the Special Permit application in this case triggered the mandatory, constitutional review of the proposed use of publicly owned land under the public natural resources trust, Hawaii State Constitution, Article XI, Section 1 (and Section 13-29 of the Hawaii County Charter) . (See Gomes' Answering Brief filed February 26, 2015, Pages 2 to 6, 10 to 15 . ) The Intervenor-Appellee Gomes also noted that when the Department of Land and Natural Resources issued General Lease No. 5-6209 to CONNECTIONS and when the Office of Planning made its comments on CONNECTIONS' Environmental Assess- ment, neither agency made a public natural resources trust analysis of the proposed use . (Id. , Page 14) Since CONNECTIONS does not assign error to the Appellee Windward Planning Commission' s decision to deny the Special Permit application on the basis of the public natural resources trust (and 11 Section 13-29 of the Hawaii County Charter) , this Court must conclude that CONNECTIONS waived any objections thereto and is bound thereby. Ix2 . ARGUMENT CONNECTIONS uses its "Opening Brief" as an editorial page and also asks this Court to hunt through the agency record to locate facts of record that apply to CONNECTIONS' arguments . This Court should not feel obligated to engage in "fact hunting" and should therefore ignore CONNECTIONS' expanded and supplemental arguments that seem to be arguments that its co-applicant CBESS either overlooked or failed to make in its brief filed on December 24, 2014 due to page limits . A. THE APPELLEE WINDWARD PLANNING COMMISSION' S DECISION IS SUFFICIENTLY SPECIFIC A5 TO THE ADVERSE EFFECTS THAT THE PROPOSED SCHOOL WOULD HAVE ON SURROUNDING PROPERTIES. Hawaii judicial precedent requires an agency to set forth its findings in such a manner that a reviewing court can "track" the agency' s decision. Kauai S rin s v. Planning Commission, supra, 133 Haw. at 173 -174, 324 P. 3d at 983-964; In Re Hawaii Electric Light Co. , Inc. , 60 Haw. 625, 641-642, 594 P . 2d 612, 623- 624 (1979) ; Kilauea Neighborhood Association v. Land Use Commission, 7 Haw. App. 227, 232-233 , 751 P.2d 1031, 1035 (1968) . In this instance, the Appellee Windward Planning Commission acted in accordance with these decisions and made the following findings of fact : 12 B. Affect [sic] on Surrounding Properties 46 . Based on the testimony from surrounding and neighboring property owners, the Development will have an adverse effect on surrounding properties by creating noise, traffic, and impacting the quality of life of the adjoining residents . 47 . Measures proposed by Connections regarding the establishment of building setbacks and roadway improvements to Edita Street do not appear to be suffi- cient to mitigate the overwhelming concerns raised by surrounding property owners . (emphasis added) These findings are rather specific and clear and CONNEC- TIONS acknowledges that the subjects covered by Finding Nos . 46 and 47 are relevant to the "unusual and reasonable" decision standard. However, CONNECTIONS argues that the agency record does not support these findings because residents, who were never consulted during the pre-assessment period "at the earliest practicable time, U9 did not present "any credible evidence" of their own relating to the effectiveness of CONNECTIONS' mitigation measures or their own experts to rebut CONNECTIONS' experts . ( "Opening Brief, " Page 7) CONNECTIONS contends that "generalized community objections" and "opposition of the community" alone are insufficient reasons to deny an application, citing Turin County Recycling Corp. v. Yevoli, 90 N.Y.S . 2d 1000, 1002, 688 N.E.2d 501, 502 (1997) and Westchester Day School v. Village of Mamaroneck, 417 F.Supp . 2d 477, 566 (S .D.N.Y. 2006) and Sunderland Family Treatment Center Services v. 9 As stated in the Intervenor-Appellee Gomes' Answering Brief filed February 26, 2015, at Page 25, CONNECTIONS was required to consult with "individuals" who may be affected by the proposed use at the "earliest practicable time . " This is a requirement of the Environmental Quality Control Commission' s rules governing environmental assessments . HAR 11-200-9 (a) (1) & 9 (b) (1) . 13 City of Pasco, 127 Wash_ 2d 782 , 797, 903 P. 2d 986, 994 (1995) . ( ""Opening Brief, " Page 8) CONNECTIONS then concludes that the Appellee Windward Planning Commission relied on assertions that were based on "fear,, and "baseless assumptions" and that there is no credible support for the threats posed to the opposing resi- dents, "quality of life . " As stated before, CONNECTIONS relies on cases that involve "conditional uses" that are substantially different in character from the State-based Special Permit (Section 205-6, HRS) that is before this Court . Those cases all involve activity that the municipality recognized to be permitted uses in the first instance, but that had to be subjected to a review process, i .e . , "conditional uses" -- (1) an asphalt plant, (2) an existing school and (3) a group living facility. As stated above, nothing in Section 46-4, HRS or Chapter 205, HRS makes a school a permitted use in the State Agriculture District . Nor does Section 205-6 , HRS refer to any particular class of activities (no less a school) that is deemed to be permissible but subject to a conditional review process . Under Section 91-10 (1) , HRS and Section 205-6, HRS, the Appellee Windward Planning Commission must consider ALL evidence (lay, expert, documentary and judicially noticed) that pertain to the decision guidelines and the ultimate "unusual and reasonable" standard. The Commission, like any trier-of-fact, is not bound to the applicants, expert reports, assuming they are complete and reliable. Nor may the Commission disregard lay testimony of affected neighborhood residents or other evidence that the 14 Commission deems to be relevant under Section 91-10 (1) , HRS .io Finally, CONNECTIONS argues, at Page 7 of its "Opening Brief, " that the Appellee Windward Planning Commission' s Finding Nos . 46 and 47 are "impermissibly broad and non-specific" and do not discuss or provide particular "facts and circumstances that show that the particular use proposed at the particular location proposed would have any adverse effects above and beyond those inherently associated with such a special exception use irrespec- tive of its location, " citing City of Chicago Heights V. Living Word Outreach Full Gospel Church & Ministries, Inc. , 196 Ill . 2d 1, 22 , 749 N.E . 2d 916, 929 (2001) . Again, CONNECTIONS' argument is misplaced. That case involved a municipal regulation that recognized a church to be a permitted use in the area, but subject to conditional review. In other words, the zoning body had already recognized that a church use at the location in question was proper. As to the sufficiency or completeness of an agency' s findings, i .e . , the amount of detail required, the Hawaii Supreme Court stated in Dupree v._ Hiraga, 121 Haw. 297, 306, n. 14, 219 P. 3d 1084 , 1096, n. 14 (2009) , that an agency must make its findings sufficiently specific to enable meaningful review. In in Re Hawaii Electric Licht Co. , supra, the court referred to ultimate facts and the supporting basic facts. Here, the ultimate fact is the proposed school' s "unusual 10 " [A] ny oral or documentary evidence may be received . . . . 15 and reasonable" character vis-a-vis its effect on surrounding properties . The Appellee Windward Planning Commission relied on the supporting basic facts on noise, traffic, quality of life degradation and mitigation measures . This Court is now being asked if those basic facts are supported by the record (which they are) and if such basic facts are true, whether they support the ultimate fact (which they do) . B. CONNECTIONS MISUNDERSTANDS THE APPELLEE WINDWARD PLANNING COMMISSION' S TWO-PART FINDINGS RELATING TO THE LIMITED SUPPLY OF POTABLE WATER. In Save Sunset Beach Coalition v. City & County, supra, 102 Haw. at 479, 78 P. 3d at 15, the Hawaii Supreme Court discussed land use permitting "guidelines" and their role in an agency' s ultimate decision to grant or to deny an application for a discre- tionary permit . Planning Commission Rule 6-3 (b) (5) (C) is one of several "guidelines" that the Appellee Windward Planning Commission uses to determine when a use might be deemed to be "unusual and reasonable" and, if allowed, will "promote the effectiveness and objectives" of Chapter 205, HRS . It is undisputed that only 7 units of potable water are available to CONNECTIONS . ( "Opening Brief, " Page 9) At 600 gallons per unit, the total volume of potable available water is 4 , 200 gallons per day. The parties agree that this volume of potable water can support no more than 70 students . The Intervenor-Appellee Gomes discussed this subject in his Answering Brief filed February 26, 2015, Pages 21 to 24 , and explained that the Appellee Windward Planning Commission was justified in not 16 giving CONNECTIONS and its co-applicant a "blank check" without having more information on potable water. CONNECTIONS argues that it was willing to work within the 4, 200 gallons per day limitation and did not intend to rely on the expansion of the county water system." CONNECTIONS also contends that since it agreed to bear the burden of finding, developing and paying for additional sources of potable water in the future, and by whatever means that may be available, the Commission' s Finding No. 48 ( "that the Development would unreasonably burden the Depart- ment of Water Supply to provide water" ) is clearly erroneous . (Id. , Page 9) However, CONNECTIONS' suggestion that it might consider a "development agreement" with the County Department of Water Supply will necessarily be a burden on the Department of Water Supply. 12 Furthermore, the Appellee Windward Planning Commission also found that the lack of potable water in a volume sufficient to serve the entire school, as planned, makes the proposed use "unreasonable . " (Finding No. 63 , "specifically, Connections has not demonstrated how the school can be built without sufficient potable water resources . " ) 11 CONNEC'T'IONS could have submitted an application for a 70- student school, with the right to amend the same in the future (subject to further hearings) . It rejected this option. lz In Appendix "4, " Record on Appeal 1.680, CONNECTIONS' expert stated, "At this time, a definitive solution is not imme- diately evident . " CONNECTIONS also stated it could enter into a "development agreement" with the Department of Water Supply. Appendix 114, " Record an Appeal 1680-1581 . 17 C. THE APPELLEE WINDWARD PLANNING COMMISSION DID NOT ERR IN ITS INTERPRETATION AND APPLICATION OF ITS AGENCY RULE RELATING TO LAND USE TRENDS AND NEEDS . CONNECTIONS does not dispute the Appellee Windward Planning Commission' s Finding No. 52 that the land covered by General Lease No. 5-6209 lies in an area "that has essentially become residential in character. " ( "Opening Brief, " Page 9) However, CONNECTIONS disputes the Commission' s subsequent statement in Finding No. 52 that CONNECTIONS must still prove its case, i .e. , "justif [y] [the] location of the Development at this location. " (Id. , Page 10) CONNECTIONS argues that this finding " impermissibly created a requirement that Connections establish a need for a school at that particular location. " ( "Opening Brief, " Page 9) A plain reading of Planning Commission Rule 6-3 (b) (5) (D) , 13 it argues, does not require connections to prove or justify the need for a school at any particular location or that the school must serve the needs of the immediate community in which the school is located ( "Opening Brief, " Page 10) Again, the question of whether an application for a State-based Special Permit is appropriate to any specific parcel of land is a discretionary matter. The "guidelines" to which CONNEC- TIONS refer assist the Appellee Windward Planning Commission in the exercise of its discretion. Under Planning Commission Rule 6- 3 (b) (5) (D) , the Commission had to identify and evaluate the "needs" 13 "Unusual conditions, trends, and needs have arisen since the [agriculture] district boundaries and regulations were established. "" (emphasis added) 18 for educational facilities in the subject area . CONNECTIONS states that it had a "need" to relocate and integrate its existing facili- ties to a single place and at the subject site . The location or place where such "needed" facilities should be placed was obviously a relevant factor for consideration and the Commission was interpreting and applying its own agency rule, which act is entitled to deference on appeal . Fratinardo v. Em Io ees' Retirement System, 129 Haw. 107, 110-111, 295 P.3d 977, 960-981 (Haw_ App. 2013) , citing Camara v. Agsalud, 67 Haw. 212 , 216, 685 P. 2d 794, 797 (1984) . It goes without saying that CONNECTIONS had an obligation to explain (to "justify" ) the growing "need" for school facilities, public or private or chartered, in the area that it had selected and to explain (to "justify" ) why, in light of the trending land use patterns (actual and proposed) , the selected site was appro- priate and needed for a school . The reason for choosing the site is obvious .1' However, the question is whether in light of the trending land use patterns, there is a "need" for new school facilities in the Kaumana area in question. D. THE APPELLEE WINDWARD PLANNING COMMISSION DID NOT ERR IN ITS FINDING ON THE LAND' S CONTINUED SUIT- ABILITY FOR AGRICULTURE. CONNECTIONS next argues that it proposed to use a portion of the land in question for hydroponics, aquaponics and green houses, i .e. , activity that will occur above the ground, and that 14 The lease rent for the 65-year lease is $480 . 00 per year. (Record on Appeal 1934-1959, General Lease No. 5-6209, Paragraph A) 19 soil class is not relevant to such activity. ( "Opening Brief, " Page 10) This use, it argues, is no different from the low density residential uses already taking place in the general area. As the Intervenor-Appellee Gomes pointed out in his Answering Brief filed February 26, 2015, Pages 30-32, CONNECTIONS did not consult with the Department of Agriculture. Nor did any departmental official testify on the suitability of the land for agriculture activity. CONNECTIONS also argues that the General Plan and County Zoning Code "specifically permit [] use of this land" for low density urban use, including "schools day care centers, churches, and major outdoor amusement and recreational facilities . " However, the land has not been reclassified to the Urban District and until then, County regulations have no effect in the State Agriculture District . Save Sunset Beach Coalition v. City & County, supra ( "any conflict between State provisions and County Zoning Ordinances is resolved in favor of the State statutes; " county zoning powers are "subject to the limitations within HRS Chapter 20511 ) . (See discussion in Part I .C, above . ) The land is still in the State Agriculture District and the activities de- scribed by CONNECTIONS are NOT presently allowed in the State Agriculture District under State law. What CONNECTIONS forgets is that this particular "guideline" asks whether, in light of the development trends in the area, the timing is proper to release publicly owned land in the State Agriculture District for uses like a school . The Appellee Windward Planning Commission said "No" and its decision is supported by the record. 20 E. IF THE GENERAL PLAN IS RELEVANT TO EVALUATE THE COMMUNITY' S DESIRED LONG-TERM LAND USE PATTERNS, THE APPELLEE WINDWARD PLANNING COMMISSION DID NOT ERR IN ITS EVALUATION AND FINDINGS ON GENERAL PLAN CONFORMANCE. In its Opening Brief filed December 24 , 2014, CONNEC- TIONS' co-applicant (the Applicant-Appellant CBESS) argues that General Plan conformance is not a valid decision criterion for a State-based Special Permit . (CBESS' Opening Brief filed December 24, 2014 , Pages 16 to 24 . ) On the other hand, CONNECTIONS acknowl- edges that General Plan conformance is a valid decision criterion for such a permit . (CONNECTIONS' "Opening Brief , " Pages 4-5 , 11- 13) The two co-applicants obviously disagree on this point . The General Plan and Zoning Code are both county ordinances . They express the Hawaii County Council' s long-term vision for the community. However, as stated in Part I . C, above, the County' s ordinances only apply to land over which the County Council has the power to regulate through its zoning powers under Section 46-4 , HRS and Chapter 205, HRS . At present, the land is still in the State Agriculture District and County ordinances do not apply in the State Agriculture District . Save Sunset Beach Coalition v. City & County, supra, 102 Haw. at 460-4B2 , 78 P . 3d at 16-18 . As such, the General Plan and County Zoning Code cannot and do not operate to regulate the present use of the land in question because the land is currently still in the State Agriculture District . '-5 15 " [C] ounties are authorized to zone only according to the dictates of HRS § 46-4 subject to limitations within HRS chapter 205 . . . . Thus, any conflict between the State provisions and the county zoning ordinances is resolved in favor of the State statutes 21 If and when the land in the State Agriculture District becomes subject to the County' s zoning powers (when the land is reclassified to the Urban District) , the County' s General Plan and Zoning ordinances will no longer be hortatory expressions of what the County envisions for the land. Until then, however, the ordinances are hortatory. This is the impact of Chapter 205, HRS on counties under which non-elected planning commissioners have the final say on what uses might be placed on land in the State Agri- culture District via a State-based Special Permit under Section 205-6, HRS . These commissioners may still look at and consider the future plans that the County has for a particular area (if and when the land therein becomes subject to the County' s regulatory authority in the future) , but the commissioners are actually not required to do so. This is the nature and scope of the agency discretion that exists under Section 205-6, HRS, which statute has been on the books for 50 years without change . Thus, in the case at hand, the General Plan and related county zoning ordinances must be viewed "with a grain of salt" because the land in question still lies in the State Agriculture District and its use is still governed by State law at this time. The Appellee Windward Planning Commission nevertheless examined and evaluated the County' s desired land use patterns set forth in the General Plan and related zoning ordinances and the Appellee Windward Planning Commission found that : " Id. , 102 Haw. at 482, 78 P. 3d at 18 . 22 58 . The county General Plan LUPAG map designates the Property for low density urban use. "Low density uses" under the General Plan include residential, with ancillary community and public uses, and neighborhood and convenience-type commercial uses . 59 . The Development, which proposes a charter school that is not specifically intended to service the immediate community surround the school, is not consistent with the uses permitted in areas of low density urban use . 60 . The Economic, Public Facilities and Land Use elements of the County General Plan all require consideration of social and community concerns as follows : 61. The evidence has established significant concerns from the community regarding the compatibility of the Development with the surrounding community. 62 . Although the County General Plan Public Facilities-Education course of action for South Hilo encourages the establishment of additional schools as the need arises, the proposed Development, at the subject location, is contrary to the General Plan_ (emphasis added) CONNECTIONS argues that the Commission placed too much emphasis on "community concerns" and, instead, should have limited its focus on the land itself and whether a school is "an allowable use" pursuant to the County Zoning Code. ( "Opening Brief, " Page 11) However, the County Zoning Code is not the appropriate standard or frame of reference. Save Sunset Beach Coalition v. City & Counter, supra, 102 Haw. at 482 , 78 P. 3d at 18 ( "counties are authorized to zone only according to the dictates of HRS § 45-4 subject to limitations within HRS chapter 205 . . . . [A] ny conflict between the State provisions and the county zoning ordinances is resolved in favor of the State statute") . Under State law, a 23 T r� school is not "an allowable use" in the State Agriculture District . Nothing in Sections 205-2 (d) , 205-4 . 5 (c) , 205-5 (b) and HAR 15-15-25 states that a school is a permitted use in the State Agriculture District . CONNECTIONS continues that the proposed school will help fulfill the General Plan' s economic goals for full employment and for quality educational opportunities ( "Opening Brief, " Pages 12- 13) and that the Appellee windward Planning Commission wilted under the political pressure brought on by the "not in my back yard" sentiments raised by neighboring residents and their "vocal community outcry" against the Special Permit application. (Id. , Page 13) Finally, CONNECTIONS repeats its arguments covered in Part III . C, above, and the Appellee-Intervenor Gomes relies on his responses thereto set forth in Part III . C, above. This discussion brings the Court back to the Legisla- ture' s decision to give broad discretion to planning commissions statewide under Section 205-6, HRS. The discretion that planning commissions wield under Section 205-6, HRS is almost limitless and planning commissions exercise that discretion to protect land in the State Agriculture District by " ' [s] tag [ing] . . . development, ' ', i .e. , looking at the timing of development . Neighborhood Board No. 24 v. State Land Use Commission, supra. CONNECTIONS and its co- applicant did not complain below that the decision standards for Section 205-6, HRS, facially or as applied, are overly broad and unenforceable . Having now felt the full impact of the Commission' s exercise of the discretion in response to a poorly presented case below, CONNECTIONS and its co-applicant now complain of "bias, " 24 "favoritism" and "result oriented" decision-making. CONNECTIONS should bring these complaints to the Legislature for resolution, not the courts . The record supports the Appellee Windward Planning Commission' s findings . F. THIS AGENCY APPEAL MUST BE DETERMINED ON THE GOVERNING STATE LAW IN HAWAII AND THE FACTS IN THE AGENCY RECORD. Every case turns on its own facts and the enabling statute, ordinance or regulation. In contrast to the cases cited by CONNECTIONS, this Court can find an equal number of opposing cases . For example, in CItY of Colorado Springs v. Securcare Self Storage, Inc. , supra, the court addressed a "conditional use, " i .e. , activity that is allowed in a particular zone, but which must undergo a special conditional review due to its potential impacts on neighbors . In that case, the landowner had to submit a develop- ment plan as a condition to receiving a building permit for its project . One criterion for plan approval was the activity' s "compatibility" with surrounding properties . The activity in question was a service station complex and mini-warehouses . The court ruled that the landowner did not have "an absolute right" and that the reviewing body had "the authority to deny a development plan for a permitted use. " 10 P. 3d at 1249 . Although the activity was conditionally permitted for the industrial zoned parcel, the court held that the reviewing body still "retain [ed] some discretion over permitted uses . " As stated above, the governing law in the case at hand is Chapter 205, HRS, not the municipal ordinances of towns and cities 25 in New York, Illinois or Washington. Under Chapter 205, HRS, a school is not a permitted use in the State Agriculture District . Hawaii State law prohibits a school from being operated in the State Agriculture District . See County of Hawaii v. Ala Loop Homeowners, 123 Haw. 391, 396, 401, 235 P. 3d 1103, 1108 , 1113 (2010) . Even though Hawaii administrative precedent may exist for schools being allowed on land in the State Agriculture District by way of a State-based Special Permit (Record on Appeal 3108) , plan- ning commission review is still required and nothing is guaranteed. City of Colorado Springs v. Securcare Self Storage, Inc. , supra,- cf. , upra;cf. , County of Hawaii V. Ala Loop Homeowners, supra. Every case turns on its own facts . At Page 7 of its "Opening Brief, " CONNECTIONS states without citation to the record that "administrative precedent exists for a 100-bed resident nursing home off of Kaumana Drive. " No details are offered (if any are available in the record) or how that fact, if true and supported by the record, is pertinent to the operation of a "commuter" school on the 70-acre parcel of publicly owned land in question. SUMMARY No two parcels of land are the same . No two projects are the same . What is constant is that a State-based Special Permit is an exception from the statutory prohibitions of Chapter 205, HRS and that the Legislature gave planning commissions broad discretion over State-based Special Permit applications . 26 e � r Every applicant bears the burden of proof, Section 91- 10 (5) , HRS, and every applicant must be mindful of the Hawaii Supreme Court' s warning in Hui Ala Loa v. Planning Commission, 66 Haw. 135, 137, 705 P . 2d 1042 , 1044 (1985) , that conditions of permit approval cannot be used to mask a present insufficiency in the critical infrastructure necessary for a proposed use. If an applicant fails to make a proper showing in support of its applica- tion, it risks the denial of its application. This Court should affirm the Appellee Windward Planning Commission' s decision since the Commission did not err or act in an arbitrary manner. Its basic and ultimate findings are supported by the agency record. The Appellee Windward Planning Commission was correct in its decision to deny CONNECTIONS' application for a State-based Special Permit on grounds that the proposed school is not a "reasonable and beneficial" use of publicly owned land under the public natural resources trust (and Section 13-29 of the Hawaii County Charter) and is not an "unusual and reasonable" use under Section 205-6, HRS _ As noted above (footnote 11) , CONNECTIONS knew that a major project obstacle was the limited supply of potable water. Rather than apply for a smaller 70-student project to start, CONNECTIONS applied for a 381-student project . In other words, rather than work with the facts at hand, CONNECTIONS wanted more . As a result, CONNECTIONS offered "conceptual designs" that necessarily rested on assumptions, which presented "uncertainties" on subjects like water supply and traffic. CONNECTIONS in this respect wanted a "blank check" to proceed without further 27 Commission review and hearings and the Appellee Windward Planning Commission refused that request . CONNECTIONS now cries "foul, " accuses the Commission for being biased and castigates its neighbors as being "not in my back yard" alarmists and people who live in "fear. " Although a variance differs from a state-based special Permit, Korean Buddhist Dae Won Sa Temple v. Sullivan, 87 Haw. 217, 953 P. 2d 1315 (1998) offers guidance . First, the " ' reasonable use, of the land . . . is not necessarily the use most desired by the owner. " Id. , 87 Haw. at 234 , 953 P. 2d at 1332 . Second, a "self created" problem is not the basis to ask for relief . Id. , 87 Haw. at 235, 953 P. 2d at 1333 . Third, damage, noise, pollution and other interference to or with neighbors can affect their "quality of life" and can alter the essential character of their residential neighborhood. Id. , 87 Haw. at 225, 953 P .2d at 1323 . CONCLUSION AND REQUEST FOR RELIEF This Court should affirm the Appellee Windward Planning Commission' s decision and should dismiss CONNECTIONS agency appeal . DATED: Kailua-Kona, Hawaii, March 5, 2015 JEFFREY K. GOMES, Intervenor- Appellee _)4)By: cle I MICHAEL J. MATSUKAWA His Attorney 28 r'n APPENDICES No. Description 1 Section 205-6, HRS 2 Planning commission. Rule 6 4 Will Chee Letter with Tables on Water Consumption 6 Windward Planning Commission' s May 19, 2014 Decision §2CS-6 Special permit . (a) Subject to this section, the county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified. Any person who desires to use the person ' s land within an agricultural or rural district other than for an agricultural or rural use, as the case may be, may petition the planning commission of the county within which the person ' s land is located for permission to use the person ' s land in the manner desired. Each county may establish the appropriate fee for processing the special permit petition . Copies of the special permit petition shall be forwarded to the land use commission, the office of planning, and the department of agriculture for their review and comment . (b) The planning commission, upon consultation with the central coordinating agency, except in counties where the planning commission is advisory only in which case the central coordinating agency, shall establish by rule or regulation, the time within which the hearing and action on petition for special permit shall occur. The county planning commission shall notify the land use commission and such persons and agencies that may have an interest in the subject matter of the time and place of the nearing . (c) The county planning commission may, under such protective restrictions as may be deemed necessary, permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter; provided that a use proposed for designated important agricultural lands shall not conflict with any part of this chapter . A decision in favor of the applicant shall require a majority vote of the total membership of the county planning commission . (d) Special permits for land the area of which is greater than fifteen acres or for lands designated as important agricultural lands shall be subject to approval by the land use commission. The land use commission may impose additional restrictions as may be necessary or appropriate in granting the approval, including the adherence to representations made by the applicant. (e) A copy of the decision, together with the complete record of the proceeding before the county planning commission on all special permit requests involving a land area greater than fifteen acres or for lands designated as important agricultural lands, shall be transmitted to the land use commission within sixty days after the decision is rendered. within forty-five days after receipt of the complete record from the county planning commission, the land use commission shall act to approve, approve with modification, or deny the petition . A denial either by the county planning commission or by the land use commission, or a modification by the land use commission, as the case may be, of the desired use shall be appealable to the circuit court of the circuit in which the land is situated and shall be made pursuant to the Hawaii rules of civil procedure . APPENDIX "1" (f) Land uses substantially involving or supporting educational ecotourism, related to the preservation of native Hawaiian endangered, threatened, proposed, and candidate species, that are allowed in an approved habitat conservation plan under section 195D-21 or safe harbor agreement under section 195D-22, which are not identified as permissible uses within the agricultural district under sections 205-2 and 205-4 . 5, may be permitted in the agricultural district by special permit under this section, on lands with soils classified by the land study bureau ' s detailed land classification as overall (master) productivity rating class C, D, E, or U. [L 1963, c 205, pt of §2; Supp, §98H-6; HRS §205-6; am L 1970, c 136, §1; am L 1976, c 4 , §2; am L 1978 , c 166, §I ; am L 1979 , c 221 , §1 ; gen ch 1985; am L 1998 , c 237, §6; am L 2005, c 183, §5] RULE 6. SPECIAL PERMITS 6-1 Authority This rule governs special permit procedures pursuant to authority conferred by Chapter 205-6, Hawaii Revised Statutes, as amended. 6-2 Standing to Submit a Petition for a Special Permit Any person who desires to use its land within a State Land Use agricultural or rural district other than for an agricultural or rural use may petition the Commission for permission to use its land in the manner desired. 6-3 Petition and Content A petition for a Special Permit shall be filed with the Commission's office and shall include the following: (a) Non-refundable filing and processing fee of five hundred dollars. (b) Original and twenty copies of: (1) Application form; (2) Description of the property in sufficient detail to deter-nine its precise location; (3) A plot or site plan of the property, drawn to scale, with all existing and proposed uses and/or structures shown thereon; (4) Building elevations, if required, of the proposed structures; (5) A statement of the reasons for the granting of the Special Permit citing how the proposed use would promote the effectiveness and objectives of Chapter 205, HRS, and why the proposal is an unusual and reasonable use of the land. The following criteria shall also be addressed: (A) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations; (B) The desired use shall not adversely affect surrounding properties; (C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and fire protection; (D) Unusual conditions, trends, and needs have arisen since the district boundaries and regulations were established; 6-1 APPENDIX 12" (E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district; (F) The proposed use will not substantially alter or change the essential character of the land and the present use; and (G) The request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design Plans. (c) A copy of full-size site plan and/or elevations of the proposed structure(s), a minimum of 2 feet by 3 feet in dimension, drawn to scale. The site plan should include property lines,reference points (roadways, shoreline, etc.), and existing and proposed structures and uses. (d) A certificate of clearance from the County Director of Finance stating that the real property taxes and all other fees relating to the subject parcel(s)have been paid, and that there are no outstanding delinquencies. 6-4 Incomplete Application The Commission, through the Planning Department, shall neither accept nor process an application which is incomplete as to form and content. 6-5 Posting of Signs for Public Notification (a) Within ten days of being notified of the acceptance of an application, the applicant shall post a sign on the subject property notifying the public of the following: (1) The nature of the application; (2) The proposed use of the property; (3) The size of the property; (4) The tax map key(s) of the property; (5) That the public may contact the planning department for additional information;and (6) The address and telephone number of the planning department. (b) The sign shall remain posted until the application has been granted, denied, or withdrawn. The applicant shall remove the sign promptly after such action. (c) Notwithstanding any other provisions of law, the sign shall not be less than nine square feet and not more than twelve square feet in area, with Ietters not less than 6-2 one inch high. No pictures, drawings, or promotional materials shall be permitted on the sign. The sign shall be posted at or near the property boundary adjacent to a public road bordering the property and shall be readable from said public road. If more than one public road borders the property, the applicant shall post the sign to be visible from the more heavily traveled public road. The sign shall, in all other respects, be in compliance with Chapter 3 (signs) Hawaii County Code 1983 (2005 edition). (d) The applicant shall file an affidavit with the planning department not more than five days after posting the sign stating that a sign has been posted in compliance with this section, and that the applicant and its agents will not remove the sign until the application has been granted, denied, or withdrawn. A photograph of the sign in place shall accompany the affidavit. 6-6 Public Hearing (a) The Conunission shall conduct a public hearing within a period of ninety days from the date of acceptance of a complete application. (b) Promptly after the Commission's fixing a date for the public hearing, the applicant shall mail a notice of the application and hearing to owners of interests in properties within five hundred feet of the perimeter boundary of the affected property and to owners of interests in other properties which the Planning Commission may find to be directly affected by the proposed request. Such notice shall state: (l) Name of the applicant; (2) Precise location of the property involved; (3) Nature of the proposed use; and (4) Date, time, and place of the hearing. (c) Prior to the date of the hearing,the applicant shall file with the Commission,an affidavit or other similar proof of mailing of said notice. The Commission shall not conduct a hearing if this requirement has not been complied with. (d) In addition to said notice and at least ten days prior to the date of the hearing, the Commission shall publish notice of the hearing in a newspaper of general circulation in the County which includes the information provided under Section 6-6(b)(I-4)of this rule. (e) For each hearing continued at the request of the applicant,the applicant shall serve notice of the hearing on surrounding property owners and lessees of record as provided by Section 6-6(b). An additional two hundred fifty dollar processing fee shall be submitted by the applicant for each hearing continued at the request of the applicant. 6-3 6-7 Grounds for Special Permit The Commission shall not approve a Special Permit unless it is found that the proposed use: (a) is an unusual and reasonable use of land situated within the Agricultural or Rural District, whichever the case may be; and (b) Would promote the effectiveness and objectives of Chapter 205, Hawaii Revised Statutes, as amended. The Conunission shall also consider the criteria listed under Section 6.3(b)(5)(A) through(G). 6-8 Action Within thirty days after the close of the hearing or within a longer period as may be agreed to by the applicant, the Commission shall: (a) For a Special Permit involving fifteen acres of land or less, approve it by stating the reasons and attaching appropriate performance conditions; or (b) For a Special Permit involving greater than fifteen acres of land,recommend approval to the State Land Use Commission by stating the reasons and attaching appropriate performance conditions; or (c) Deny it by stating the reasons. An application recommended for approval to the State Land Use Commission shall be forwarded within sixty days after the decision is rendered by the Commission. 6-9 Amendments of Permit or Conditions (a) The applicant may apply to the Commission through the Planning Department for an amendment to the permit or condition(s) imposed. (b) In the case of time extensions, the applicant shall file the request not less than ninety days prior to the expiration date of the time conditions, setting forth: (1) The affected condition; (2) The Iength of time requested; and (3) The reasons for the request_ If the Commission is not able to act on a properly filed time extension request prior to the expiration date, the use granted under the Special Permit may be 6-4 continued,unless the Commission specifically disallows the activity during the interim period. (c) In the case of additions, modifications, and/or deletions of conditions; or the original permit granted, the applicant shall set forth in writing: (1) The affected condition; (2) The specific amendment requested; and (3) The reasons for the request. (d) The applicant shall also file a two hundred fifty dollar processing fee, along with the original and twenty copies of the request. (e) The hearing and notice procedures and action shall be the same as under Sections 6-6 and 6-8 of this rule, provided further that the Commission shall conduct a hearing within a period of ninety days from the date of receipt of a properly filed request, or within a longer period as may be agreed to by the Commission. 6-10 Appeals The Commission's decision is appealable to the Third Circuit Court. 6-5 WIL CHEF-PLANNING&ENVIRONMENTAL �`�t�� November 21•,2012 ?g? %!N 26 h" 8' Quirino Antonio, Jr.,Manager-Chief Engineer Department of Water Supply County of Hawaii 345 Kekuanaoa Street, Suite 20 Hilo, Hawaii 96720 Subject: Special Permit Application SPP 12-000138 Connection Public Charter School TM1K(3) 2-5-006:141 Attn: Mr. Finn McCall Mr. McCall, In response to a request made at the November 9, 2012 Planning Commission hearing, Wil Chee— Planning&Environmental hereby submits the attached report containing preliminary estimates of potable water consumption for the proposed project. It is important to note that the project is still in the planning stage. Use of non-potable water or waterless Mures is being considered for the project, and these preliminary estimates do not account for these usage options. During the project's design phase when additional engineering evaluations and analysis are to be undertaken,.a determination will made as to which fixtures would be using the allotted 4,200 gpd of potable water and which fixtures might be served by non-potable water or be waterless. Subsequent to this future analysis, a refined estimate of potable water consumption can be derived. These detailed calculations, which are required prior to effecting a water commitment for the project,will be submitted to DWS-within 180 days of the effective date of the pemait. These calculations will include the estimated maximum daily potable water demand for the project, including estimated peak flow in gallons per minute. If you have any questions,please feel free to contact me at(808) 596-4688 or cshep@wcphawaii.com. Sincerely, ( .,;A . Celia Shen Planner c. County of Hawaii Planning,Department Ted H.S.Hong,Esq. CBESS--Friends of Connections APPENDIX `4" Providing Services Since 1976 082320 Rand Use Planners and Environmental Consultants ,„.... ��_ __� .__. - -- _, 1070 Special Permit Application (SPP 12-000138) Connections Public Charter School TNdX (3) 2-5-006:141 Preliminary Estimate of Potable Water Consumption The campus plan shown in the Special Permit application is conceptual in nature and represents the ultimate vision for the proposed campus.There currently are no plans to grow the school beyond what is represented in the application. Refined architectural design and detailed engineering studies and analyses are to be undertaken when the necessary land use entitlements are obtained. The Applicant is aware and understands that the DWS-allocation of potable water available to the subject property is limited to a maximum daily usage of 4,200 gpd, which . ultimately may constrain the scope of the proposed project;however,this cannot be determined until further engineering analyses have been conducted. The school envisions this proposed campus to be a model and Iaboratory of sustainability for instructional curriculum purposes, and will seek all opportunities to reduce water consumption. Due to the limited allocation, one of the objectives of this project is to.use DWS-supplied water for those uses that truly require potable water. Non-potable water(e.g., catchment water and recycled wastewater) will be used wherever feasible in lieu of potable water. As part of the engineering analyses, an evaluation and estimate of the project's potable and non-potable water l"' demands will be made. The proposed campus is planned to be LEED Silver or higher. Water conservation strategies, such as selection of low-flow fixtures and use of non-potable water, will help attain the necessary points for LEED certification. Water closets and urinals comprise a substantial portion of potable water usage that could be replaced by non-potable water. The decision whether to use potable or non-potable water for water closets and urinals (or waterless) will be made during the engineering analysis and design phase. Subsequent to the engineering analysis,the Applicant intends to submit to DWS, as stipulated in DWS's comment letter dated August 29,2012,detailed calculations showing the estimated maximum daily potable water demand for the project,which will include the estimated peak flow in gallons per minute and the total estimated maximum daily potable water demand in gallons per day. However,in response to the request made at the November 9, 2012 Planning Commission hearing, the Applicant is providing preliminary consumption estimates for DWS review. Attachment 1 provides preliminary estimates of anticipated potable water usage prepared by WSP Group, Urban Works' (project architect)mechanical engineer for this project. Based on the typical water usage rates for boarding schools and days schools with a cafeteria,.as provided in the American Water Works Association's (AWWA) Water Distribution Systems Handbook, average potable water usage for the entire campus could be expected to range from a low of 11C7n Connections Public Charter School Preliminary F.sdMRte of Potable Water Consumption November 21,2012 Page 2 approximately 6,858 gpd to a high of 10,828 gpd. With the use of low-flow Mures, it is expected that water usage would be closer to the lower end of the range. Note that these are preliminary estimates as it has not yet been determined which fixtures would be using the allotted 4,200 gpd of potable water. As stated, use of waterless fixtures or non- potable water for urinals and water closets will be evaluated during the design.phase. If waterless fixtures or non-potable water are used, it can be reasonably expected that total potable water usage could be lower than shown in the preliminary estimate. A revised estimation of potable water usage will be developed during the design phase when the additional engineering analysis is undertaken. Attachment 2 provides an alternate estimation of water usage for a school without a cafeteria--a facility and use with a high potable water demand. This methodology assumes use of 16w-flow fixtures and potable water usage for water closets,urinals,lavatories and classroom sinks. Based on this estimation, campus water usage can be estimated to range from 3,625 gpd to 5,215 gpd. Again,note that this preliminary estimate assumes potable water use for urinals and water closets. If non-potable water is used or waterless fixtures are selected,total potable water usage could be lower than shown in the preliminary estimates. Based on these preliminary estimates the 4,200-gpd of potable water, while possibly not sufficient to support the entire campus(although this will not be known definitively until the additional engineering analysis is undertaken during the project's design phase), can sustain development of several campus components. (For reference,Attachment 3 shows a breakdown of approximate water usage by program. This breakdown is derived from the usage estimates for a day school without a cafeteria provided in Attachment 2). The project implementation phasing presented in the Special Permit application places the high school program on the subject property first, followed by the intermediate school program, the elementary school program and cafeteria, and lastly the dormitory and intergenerational facilities. Using the estimates provided in Attachments 1,2, and 3 it can be reasonably expected that the 4,200-gpd-allocation would be reached during Phase 7 when the elementary school program and cafeteria are placed on the site. Therefore, it could take anywhere from 10 to 16 years to reach the point when additional potable water is needed. During the design phase when additional evaluation and analysis of the project's potable water demands are conducted, the Applicant may choose to reprioritize project phasing to ensure that the more critical components of the project are constructed first to ensure provision of potable water by the DWS allocation. The Applicant understands that if the engineering analysis shows that the entire campus cannot be sustained by the 4;200-gpd allocation, an additional source of potable water would be needed to realize full build-out of the campus. At this time, a definitive solution is not immediately evident. Additional studies and cost analysis would be needed to determine the most feasible option for sourcing additional potable water. Additional sources of potable water could include using rain catchment to supply an on-site potable water system(this would have to meet DOH standards for a regulated public water system), or developing,or contributing to development of a potable water well. Development of a potable water well could be accomplished through a 4 tort Connections Public Charter 5cbool Preliminary Estimate of Potable Water Consumption November 21,2012 pie 3 development agreement with DWS, which could include, among other things, contributing to the cost of system improvements and/or developing a well with dedication to DWS, in exchange for additional water credits. As growth in the Hilo area continues, there may also be opportunity to enter into a joint-development agreement with another developer and DWS to gain additional water credits. Considering that it could reasonably take between one to two decades before the 4,204-gpd allotment is reached, there is ample time for the Applicant to identify and assess the feasibility of other potential sources of potable water, During this period,the Applicant can engage with DWS and/or others parities to identify potential potable water sources and secure the necessary permits and/or agreements to procure the additional water needed to complete build-out of the campus. If additional potable water cannot be procured, campus development will not exceed that which can be sustained by the 4,200-gpd allotment. To address the Planning Commission,the Department of Water Supply, and community concerns related to the limited water allotment available to the subject property,the Applicant proposes that the following Condition of Approval be added to the recommended conditions contained in the Planning Department Director's favorable recommendation. "The number ofpersons and facilities at the new campus shall be determined by a reasonable and sustainable combination of the DWS supplied maximum daily potable water allocation of 4,200 gallons, in conjunction with other alternative water resources (ag., rainwater catchment, recycled water, etc.) and water conservation methods and technology to be proposed. A plan for potable water usage, which shall indicate the number ofpersons and what facilities are to be supported by the DWS supplied water, shall be submitted to the Planning Department and DWS for concurrence. This water usage plan shall be submitted prior to or concurrently with the required maximum daily water usage calculations to be submitted to DWS within 180 days from the effective date of this permit Applicant shall be allowed to enter into a water commitment with DWS to implementpartial development of the campus in accordance with the approved water usage plan. No increase in persons or additional facilities requiring potable water, beyond that covered by the water usage plan and water commitment with DWS, shall be approved until the Applicant can demonstrate how additional potable water demand shall be met.Applicant shall demonstrate through its established record of usage and patterns of use, how additional water usage can be met through securing additional sources ofpotable water or alternative water resources, and how such additional water resources will make potable water available for use by the student population and facilities. " 'I C S 1 Attachment 1 Water Usage - Hilo School (with cafeteria) Occupancy Minimum Usage Maximum Establishment Type GPD Usage (People) (Gallons/day) (Gallons/day) School-boarding Students: 30 53 to 106 1,590 3,280 School-day w/cafeteria Elementary: 167 11 to 16 1,837 2,672 Intermediate: 107 11 to 16 1,177 1,712 High School: 107 11 to 16 1,177 1,712 Teachers/staff(full-time): 50 11 to 16 550 800 Teachers/staff(part-time): 17 11 to 16 187 272 Intergenerational program clients: 25 11 to 16 275 400 Intergenerational program staff: 5 11 to 16 55 80 Total Campus Water Usage(gallons/day): 6,848 10,828 Campus water usage(gallons/day)is estimated to be within the range of 6,848 to 10,828. It Is assumed that water usage will be closer to the lower end of this range due to the use of low flow fixtures on campus. Notes: 1.Gallons per person per day obtained from the American Water Works Association's Water Distribution Systems Handbook,Table 3.3,Typical Rates of Water Use for Various Establishments(Mays,2000), Attachment 2 Water Usage- Hilo School (without cafeteria) Day Enrollment Campus Water Usage Students: 381 Full-Time Staff: 50 Part-Time Staff: 17 Intergenerational Program Clients: 25 Intergenerational Program Staff: 5 Uses/Person/Day Fixture Type Gallons/ Male Male Female Female Gallons/ Use (full time) (parttime] (full time} (part time) Day Low flow water closet 1.28 1 0.5 3 1.5 1,202 Urinal 0.5 2 1 0 0 235 Conventional lavatory(15 sec.) 0.125 3 1.5 3 1.5 176 Classroom sink(15 sec.) 0.45 Z 1 2 1 4Z3 Total: 2,035 Boarding Student Water Usage Establishment Type Occupancy GPD Minimum Usage Maximum Usage (People) (Gallons/day) (Gallons/day) School-boarding Students: 30 53 to 106 1,590 3,180 Total: 1,590 3,180 Minimum Usage Maximum Usage (Gallons/day) (Gallons/day) Total Campus Water Usage: 3,625 5,215 Campus water usage(gallons/day)is estimated to be within the range of 3,625 to 5,215.It Is assumed that water usage will be closer to the lower pend of this range due to the use of low flow fixtures on campus. tes . 1.Day enrollment campus water usage calculated under the assumption that there is no cafeteria at the school,and the only- plumbing fixtures used are water closets,urinals,lavatories and classroom sinks.All fixtures are low flow.Part-time occupants assumed to consume water at a rate equivalent to half that of full-time occupants.(Adapted from LEED"WE Prerequisite 1:Water Use Reduction"calculations.) 2.Boarding student water usage calculated using GPD obtained from the American Water Works Assoclatloh's Water Distribution Systems Handbook,Table 3.3,Typical Rates of Water Use for Various Establishments(Mays,2000). ApWSP 1 Day Enrollment Campus Preliminary 9slimated Waler Usages Breakdown by Program Attachment 3 High School students 107 Full-time staff 13.32 120.32 say 120 Port-time staff 442 say 5 FT Mde FT Maio PT Mole Pr Male FT Female FT Female PT Famole PT Female Fixture Two SolLL96 gal/per 60 venom gullper 2.5 persons gollper 60 ocrsom gui/par 2 5gpd Low-flow woW dosel 1.28 1.28 76.80 0.64 1.60 3.84 230110 1.92 4.80 313.60 Urinal 0.5 1.00 60.00 0.50 1.25 0.00 0.00 DAO 0.00 61.23 CmwnNonal lavas 1 S sea 0.125 0.38 2250 0.19 OA7 0.38 22.50 0.19 0117 .15.94 Closuoaa"115 ser.) 0.45 '0.90 5400 OAS 1-13 0.90 54.00 OAS 1.13 110.23 TOW 531.04 Insermediate School students 107 RA-tine staff 13.32 120.32 say 120 Part-elme Staff 4.52 say 4 FT Male FT Mole PT Mole PT Male FT Female FT Female PT Female PT Female Rxture Two galluse, ga!Leer 60 erwns gal/per 2 persons gallpar 60 persons Sal_lpw 2 persons Low-flow water Closet 1.28 1.28 76.80 0.64 1.28 3.84 230110 1.92 3.84 31.2.32 Urinal 0.5 1.00 60.00 0.50 1.00 0.00 0.00 DAO a.00 61.00 CamOhtlonal lavas 15 sec.1 0.125 0.38 22.50 0.19 0.38 0.301 22.50 0.19 0.38 4575 Classroom sink 1S saml 045 0.90 54.00 OAS 0.90 0.90 54.00 0.45 0.90 109.80 Totni 52f.i7 Elementary Srhaol students 167 Full-rima staff 23.31 190.31 say 191 Part-time staff 7.91 say 8 Fr Made FT Male PT Male FT Male FT Female FT Female PT Female PT Female Fixture Type oollArse gal/per 95.5 persons gal/per 4 persons gal/per 95.5 persons al 4 Low-flow water doses 1.28 1.28 122.24 0.64 2.36 3.84 366.72 1.92 7.68 499.20 Urkwl O.S 1.00 95.50 O.SO 2.00 0,00 OAO 0.00 0.00 97.30 Convenitanal larialory 115 smi 0.125 0.38 35.81 0.19 0.75 0.38 35.81 0.19 075 73-13 Classroom sink 115 u 0.45 0.90 85.95 OAS 1.80 090 85.95 OAS 1.60 17550 Twat 845.33 hlergeneraBonal CROW, 23 _ Staff 5 30 F1 Male FT Mole FT Female FT Female Flxfure Type gol/use al 15 persons 0611per 15 persons Spd Low-flaw,waw dosat 1.28 1.28 19.20 3.64 $7.60 76.80 Urinal 0.5 1.00 13.00 (=I U101 15.00 C=nWMemol far i S WC4 0.125 0.38 S.63 0.38 5.63 11.2S Classroom sHr 15 sec OAS 0.90 1350 0.90 13.50 27.00 Toted 130.OS High School 531.04 In!*, dam School 528.87 Elementary School 845.33 lntergentrI01knal PTogram 130-05 203S.26 1COA County of Hawaii Planning Commission 101 Pauahi Street, Suite 3 Hilo, Hawai'i 96720-4224 Telephone: (808) 961-8288 Facsimile: (808) 961-8742 BEFORE THE COUNTY OF HAWAII PLANNING COMMISSION In the Matter of SPP No. 12-000138 CONNECTIONS NEW CENTURY PUBLIC COUNTY OF HAWAI`l WINDWARD CHARTER SCHOOL AND COMMUNITY PLANNING COMMISSION'S BASED EDUCA'T'ION SUPPORT FINDINGS OF FACT, CONCLUSIONS OF SERVICES LAW AND DECISION AND ORDER; CERTIFICATE OF SERVICE Application for Special Permit Application No, 12-00013 8 Argument and Decision: Date: 511114 TMK: (3)2-5-006-141; Kadmana, South Location: Aupuni Center, Hilo, Hawaii Hilo,Hawai'i COUNTY OF HAWAI'l WINDWARD PLANNING COMMISSION'S FINDINGS OF FACT CONCLUSIONS OF LAW AND DECISION AND ORDER The County of Hawai'i, Planning Comrnission submits its Findings of Fact, Conclusions of Law and Decision and Order pursuant to the request of the Windward Planning Commission of the County of Hawai'i at its May 1, 2014,meeting in Hilo, Hawaii. Present before the Commission were Ted H. S. Hong, counsel for Applicant Community Based Education Support Services; Carter K. Siu, Deputy Attorney General, for Applicant Connections New Century Public Charter School (hereinafter collectively referred to herein as "Connections"); Amy G. Self, Deputy Corporation Counsel, for County of Hawai'i Planning Director (herein as "Director"); Jeffery K. Gomes (herein as "Gornes"), Intervenor, Pro Se; and Sandra Pechter Song, the Hearing Officer(herein as "Hearing Officer"). The contested case hearings by the 1 APPENDIX "6" Hearing Officer were held on October 21, and 22, 2013, November 12, 2013, January 8 and 22, 2014. FINDINGS OF FACT 1. Procedural Backs oar and 1. This matter involves an application filed by Connections on July 25, 2012, for a special permit,pursuant to Section 205-6, Hawaii Revised Statutes("HRS") and Rule 6 of the County of Hawaii Planning Commission Rules of Practice and Procedure (hereinafter "Commission Rules") to allow the development of a charter school campus with dorm facilities and related improvements for students in kindergarten through twelfth grade (hereinafter, the "Development"), on 70.15 acres of land situated within the State Land Use Agricultural District, at Ponahawai,Kukuau 2nd, South Hilo, Hawai'i, commonly ref.;rred to as the Kaumana area of Hilo, designated by State of Hawai'i Tax Map Key("TMK") (3) 2-5-006:141 (hereinafter, the "Property"). 2. Connections has leased the Property on which the Development is proposed from the State of Hawaii under GeaeraJ Lease No, S-6029. 3. Notices of the Windward Planning Commission of the County of Hawaii(hereinafter "Commission")hearings on the proposed Development were provided to property owners surrounding the proposed Development. 4. The Commission held public hearings on the Connections application on November 9, 2012 [sic], December 6, 2012 and January 10, 2013. At the hearing held on January 10, 2013, the Commission moved [sic] to deny the Connections application and instructed the Commission staff to prepare proposed findings of fact, conclusions of law and order, which would be considered for adoption by the Commission at its meeting of March 7, 2013. 5. At the Commission meeting of March 7, 2013,the Commission suspended the preparation of the findings of fact, conclusions of law and order, and granted a request by Connections for a contested case on the subject application. Gomes submitted a petition to intervene in this matter on March 7, 2013, and the Commission admitted him as a party to the proceeding. 2 6. A petition to intervene in this proceeding was filed by Terrence Yoshioka on November 4, 2013, after the contested case hearing in this proceeding had already commenced. On November 8, 2013, the Hearing Officer denied this petition in accordance with Rule 4-6 of the Commission Rules, on the ground that the subject petition was untimely filed. 7. The Director is a party to this proceeding pursuant to Rule 4-7(a) of the Commission Rules. The Director initially recommended approval of the Connections application, subject to specific conditions, but took no position on the application at the contested case hearing. 8. The subject application involves a parcel of land greater than fifteen acres in area. Therefore, any permit approved by the Commission is subject to final approval by the State Land Use Commission, 11. Proposed Development A. General Descri tion 9. The Connections application proposes the development of a K to 12 charter school campus with dorm facilities, and an intergenerational program that would provide childcare and elder care at a single facility on the Development, together with related uses on the 70-acre parcel of land. As the site is bisected by Edita Street, the lower portion of the Development would consist of the major school or campus facilities, while the upper portion would be used for outdoor type of educational programs, including a forestry preservation program. 10. The lower campus would support a projected 167 elementary students, 107 intermediate students, 107 high school students (381 K through 12 students) and 25 intergenerational clients. Also included would be a dormitory capable of supporting 30 students, a gymnasium, kitchen/dining facility, librarytresource center, caretaker's residence and other related facilities. Two parking lots capable of supporting 140 parking stalls would be provided. 11. The Development would relocate and expand the existing charter school which is presently operating from two separate campuses. The elementary and middle schools are located in the Kress Building on Kamehameha Avenue, in downtown Hilo, and the high school is located in leased facilities at the Nani Mau Gardens,just outside of Hilo town. 12. Connections proposes having 50 full-tune and 17 part-time employees at full build- out of the Development, which is the same number presently employed for this charter school. 3 13. Connections anticipates that 50% of the student population will come from the Hilo area and 50% from the Puna area miles away from the Development. The present student population for this charter school is composed primarily of students from these two geographic areas. 14. The Development does not propose to establish a charter school on the Property to serve the needs of the immediate vicinity in the Kaurnana area of Hilo, although some students from the area may attend this school. 15. The Development is intended to be constructed in 9 phases and completed within 16 to 25 years. The first phase would include the caretaker's residence, high school and administration building, with the projected opening to be within 2.5 to 3.5 years. B. Public Utilities a►id Services Access/Traffic 16. Access to the Development is proposed from Edita Street which connects with Kaumana Drive, a major Hilo artery. Both roads are owned and maintained by the County of Hawai`i., Edita Street has a 60-foot right-of-way width, with a 48-foot wide pavement width fronting the Development. The paved area accommodates two 20-foot wide travel lanes, a 20-foot wide shoulder on the northeast side of the road, and an 8-foot wide shoulder on the southwest side. Edita Street is in good condition; however, the Hawaii County Police Department recommended that the unpaved shoulder along Edita Street extending from Kaumana Drive to the Development should be paved so that pedestrians could safely walk along the shoulder. 17. A Traffic Impact Analysis Report("TZAR") dated June 28, 2010, was prepared in conjunction with the Connections application for the purpose of evaluating the Development's impact at the Development's entrance at Edita Street and at the Edita and Kaumana Drive intersection. Based upon traffic counts taken on May 28, 2009, the TIAR found that the current level of service or LOS operates as LOS "A"or"B", meaning that the traffic service is uncongested. The TIAR also concluded that upon full build-out of the Development, the LOS will continue to operate at levels "A"or"B". Although the TIAR concludes that traffic will not be adversely affected by reason of the Development, the County Department of Public Works 4 recommended that a separate left turn lane onto the Development from Edita Street should be constructed to alleviate congestion, and that Connections should prepare a comprehensive traffic management plan for the Development. 18. Notwithstanding the findings of the TIAR and the recommendations of the Police Department and Department of Public Works, the area residents uniformly expressed concerns about the adverse traffic impact of the Development along Edita Street and Kaumana Drive. Also, residents objected that the TZAR was four years old and the traffic counts contained in the TIAR were taken when certain schools were not in session. Water 19. A maximum of 4,200 gallons per day(hereinafter"gpd") of water or seven(7) water units from an existing 8-inch waterline on Kaumana Drive for the upper campus and tom an existing 8-inch waterline on Edita Street for the lower campus, is available from the County of Hawaii municipal water system to service the entire Development. Based on a 60 gpd per student standard, 4,200 gallons of County water could only support 70 students. At full build-out the entire Development would require 26,100 gpd. 20. Notwithstanding the unavailability of potable water from the County system for the Development, the existing 8-inch waterline within Edita Street is adequate to provide the required 2,000 gallons of water per minute for fire protection of the proposed Development. 21. The available water from the County of Hawai`i municipal water system is insufficient to support the first phase of the Development. 22. Connections has proposed using water efficient fixtures and supplementing the available County water with either a catchment system for non-potable water or developing an additional water source. However, Connections has not produced any evidence to demonstrate that it has or can develop sufficient water for the Development. Wastewater 23. Connections is proposing to provide its own wastewater system meeting the requirements of the State of Hawaii Department of Health(hereinafter "DOH"). Connections prefers installing an ecological/biological wastewater system called the"Living Machine." 5 However, should such a system prove to be unfeasible, Connections would install a traditional septic system with leach fields or any other system required by DOH. Drains&e 24. The Property is located within Zone"X" on the U.S. Department of Army Corps of Engineers Flood Insurance Rate Map, which means that the Property is outside the 500-year flood plain. Notwithstanding this flood designation,during severe storms water has been known to overtop the concrete channel and flow across Edita Street,resulting in flooding of adjacent properties. Connections proposes to prepare detailed engineering studies for the purpose of developing appropriate drainage plans to address the potential flood hazard posed by the present condition of Edita Street. Utilities 25, Electrical and telephone services are available to the Property through overhead lines along Edita Street and Kaumana Drive. Public Safety 26. The Hawaii County Police Department expressed concert that the Development would increase noise, crime and traffic. However, there was no evidence that the Police Department lacks the ability to provide police protection for the Development, III. PHYSICAL CHARACTERISTICS OF THE PROPERTY AND SURROUNDING AREAS 27. The Property is presently vacant and undeveloped. 28. Surrounding lands to the south and west of the Property are zoned A-1 a, with properties further south being zoned A-20a and A-I Oa [sic]. Lands to the north of the Property are zoned RS-10 and RS-15, with some lands zoned A-3a further north across Kaurnana Drive. One parcel is also zoned Open adjoining the northeast corner of the lower portion of the Property. Surrounding uses consist mainly of single-family residences with some vacant lands, and a small percentage of agricultural activity. 29, The soils on the Property are primarily composed of pahoehoe lava flow, The State Department of Agriculture's map showing agricultural lands of importance to the State of Hawaii shows the Property as being unclassified. Also, the Land Study Bureau classifies the 6 soil on the Property under its detailed land classification system, as "D"or"Poor" for agricultural activity. 30. No archaeological sites have been found on the Property, and it is surmised that any pre-existing sites would have been destroyed by the lava flow of 1880-1881. Although Connections submitted a request to the State Historic Preservation Division ("SHPD"), by letter dated August 17, 2010, requesting a"no-effect" determination from that agency, SHPD has not responded to the request. 31. A portion of the Kaumana Cave is accessible from the upper portion of the Property. Connections is proposing to refrain from constructing any major school facilities on the upper portion of the Property and to maintain a minimum 100-foot buffer on either side of the cave alignment to alleviate concerns about impact from the Devel;-pment on the cave ecosystem. 32. A botanical survey of the Property identified 11 native plant species, but none of those species are considered protected species. 33. Invertebrate,mammalian and field surveys were conducted on the Property. No protected species were docwnented to be present on the Property. 34. No traditional or customary native Hawaiian rights have been identified as being exercised on the Property. Likewise, there is no known public access to the mountains or the shoreline that nuns through the Property. IV. STATE AND COUNTY PLANS 35. The Property is within the State Land Use Agricultural District. A school is not a permitted use within the Agricultural district;however, a school may be permitted in this district if a special permit is obtained for such use pursuant to Section 205-6, HRS and Rule 6 of the Commission Rules. 36. The County of Hawaii General Plan Land Use Pattern Allocation Guide("LUPAG") Map designates the Property for low density urban uses. The LUPAG designation of Low Density urban use, allows for residential uses,with ancillary community and public uses, and neighborhood and convenience-type commercial uses. The Development is not proposed to be a community or public use for the Kaurnana area of Hilo. 7 I 37. The County of Hawaii zoning for the Property is Agricultural with a minimum lot size of one acre (A-I a). Under Section 25-5-72(d)of the Hawai`i County Code, a school is permitted in an Agricultural zoned district provided that a special permit is issued for the use if the land is within the State Land Use Agricultural District. 38. The Development, which is proposed to be located on State land, is subject to the Hawaii State Environmental Impact Statement law, Chapter 343, HRS. Connections prepared an environment assessment in accordance with Chapter 343, and declaration with a finding of no significant impact was issued for the Development by the State of Hawaii Department of Land and Natural Resources. 34. The Property is not situated within the Special Management Area ("SMA"), since it is located over three miles from the nearest shoreline. Thus, the coastal environmental considerations relating to the SMA are not applicable to the subject Property. V. SPECIAL PERMIT REQUIREMENTS 40_ HRS Section 205-6, which governs special permits, provides in pertinent as follows. "(a) The county planning commission may permit certain unusual and reasonable uses within agricultural . . . districts other than those for which the district is classified. Any person who desires to use the person's land within an agricultural . . .district other than for an agricultural . . .use. . .may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired. "(c)The county planning commission may, under such protective restrictions as may be necessary, permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter... "(d) Special permits for land the area of which is greater than fifteen acres. . . shall be subject to approval by the land use commission. The land use commission may impose additional restrictions as may be necessary or appropriate in granting the approval including the adherence to representations made by the applicant." 8 41, Planning Commission Rule 6-7, provides, in pertinent part, that: Itjhe Commission shall not approve a Special Permit unless it is found that the proposed use "(a) Is an unusual and reasonable use of land situated within the Agricultural. . .District. . .; and "(b) 'Would promote the effectiveness and objectives of Chapter 205, Hawaii Revised Statutes, as amended. "The Commission shall also consider the criteria listed under Section 6.3(b)(5)(A) through (G)." 42. The seven criteria under Planning Commission Rule 6.3(b)(5)(A) through (G) are: "(A) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations; "(B) The desired use shall not adversely affect surrounding properties; "(C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and fire protection; "(D) Unusual conditions, trends and needs have arisen since the district boundaries and regulations were established; "(E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district; "(F) The proposed use will not substantially alter or change the essential character of the land and the present use; and "(G) The request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design plans." 43. Although Gomes asserts that the criteria for a use permit should be considered in the subject application, that criteria is not relevant to a special permit determination. 9 VI. APPLICATION OF SPECIAL PERMIT CRITERIA TO THE DEVELOPMENT A. Land Use Law Objectives 44. The purpose of the State Land Use Law is to preserve the lands of high agricultural potential for agricultural use. The Property consists of land that is not considered highly valuable for agricultural uses. Titus, the use of the Property for a school is not contrary to the objectives sought to be accomplished by the State Land Use Law, 45. Likewise, the Development, which proposes the construction of a school for 381 students and related facilities is not akin to a major recreational theme park attracting 1.5 million people each year to the area. Therefore, such a development would not frustrate the objectives and effectiveness of the Hawai`i's land use scheme and would not require a State land use boundary amendment in lieu of a special permit. Neighborhood Board No. 24 vs. State Land Use Commission, 64 Haw. 265, 272, 639, P.2d 1097, 1 103 (1982). 8. Affect on Surrounding Properties 46. Based upon the testimony from surrounding and neighboring property owners, the Development will have an adverse effect on surrounding properties by creating noise, traffic, and impacting the quality of life of the adjoining residents. 47. Measures proposed by Connections, regarding the establishment of building setbacks and roadway improvernents to Edita Street do not appear to be sufficient to mitigate the overwhelming concerns raised by surroupding property owners. C. Burden on Public Agencies to Provide Services 48. There is insufficient water available from the County system to service the Development. Therefore, to allow the Development would unreasonably burden the Department of Water Supply to provide water for its facilities. 49. There is no evidence that Connections has the ability to develop a potable water source as a mitigating measure, previously proposed by the Director. 50. A mitigating measure previously proposed by the Director of limiting the number of students to the amount of potable water available to the prosect is not reasonable because Connections is proposing to construct a high school for 107 students its first phase, when the potable water available would only allow for 70 students. 10 51. As such, the proposed use may unreasonably burden the County Department of Water Supply to provide water to the Development. D. Unusual Conditions, Trends and Needs 52. Unusual conditions and needs have arisen since the establishment of this land use district in the 1970s,because the area in which the Property is located has essentially become residential in character. Also, the County General Plan LUPAG map recognizes this trend by designating the area for low density urban use. However, there was no evidence presented to demonstrate that location of a school that is not intended to specifically service the needs of the immediate community is such an unusual condition, trend or need that justifies location of the Development at this location. E. Suitability of Land for Agricultural Uses 53. The Land Study Bureau soil classification rating for the Property is"D"or"Poor," which suggests that the land may be unsuited for agricultural uses. 54. Connections is proposing to maintain the upper portion or nearly one-half of the Property for forestry use. In addition, Connections is proposing to construct greenhouses on the Property and conduct an agricultural program in conjunction with its curriculum. 55. Based upon the repres4ntations of Connections, it cannot be found that the Property is unsuited for agricultural uses. F. Alteration or Change of the Essential Character of the Land and Present Use 56. The Property is presently a forest and is vacant of any structures. The lower half of the Property will be converted into a school with classrooms, dormitories, a gymnasium cafeteria and parking lots. 57. The Development of a school will change the essential character of the forested land and its undeveloped use. G. Consistency with the General Plan 58. The County General Plan LUPAG map designates the Property for low density urban use. "Low density uses"under the General Plan include residential, with ancillary community and public uses, and neighborhood and convenience-type commercial uses. 11 59. The Development, which proposes a charter school that is not specifically intended to service the immediate community surrounding the school, is not consistent with the uses permitted in areas of low density urban use. 60. The Economic, Public Facilities and Land Use elements of the County General Plan all require consideration of social and community concerns as follows: Economic Element- Goal "Provide an economic environment that allows new, expanded, or improved economic opportunities that are compatible with the County's cultural, natural and social environment." Public Facilities Element- Goal "Encourage the Provision of public facilities that effectively service the community and visitor needs and seek ways of improving public service through better and more functional facilities in keeping with the environmental and aesthetic concerns of the community." Land Use Element- Policy "Encourage the development and maintenance of communities meeting the needs of its residents in balance with the physical and social environments." 61. The evidence has established significant concerns from the community regarding the compatibility of the Development with the surrounding community. 62. Although the County General Plan Public Facilities-Education course of action for South Hilo encourages the establishment of additional schools as the need arises, the proposed Development, at the subject location, is contrary to the General Plan. VTI. UNUSUAL AND REASONABLE USE OF LAND 63. The construction of a school on the Property is an unusual use of the land because a school is not a permitted use in the State Land Use Agricultural District. However, the evidence presented does not demonstrate that the Development is a reasonable use of the Property. Specifically, Connections has not demonstrated how this school can be built without sufficient potable water resources. Nor, has Connections demonstrated how the development of a regional I2 charter school on the Property that does not specifically service the needs of the immediate community and that is overwhelmingly objected to by the immediate community is a reasonable site for this facility. In addition, Connections has not demonstrated that the Development meets most of the criteria to be considered by the Commission in the subject application. CONCLUSIONS OF LAW Based upon the foregoing Findings of Fact, the Commission makes the following Conclusions of Law: 1. To the extent that any of the Findings of Fact constitute Conclusions of Law, or Conclusions of Law constitute Findings of Fact, they shall be considered and construed as such. 2. The Commission has jurisdiction over the subject special permit application, including the ability to deny or recommend its approval to the State Land Use Commission, pursuant to Section 205-6, HRS and Rule 6 of the Commission Rules, 3. Connections had the burden of proof on this matter before the Commission, including the burden of producing evidence as well as the burden of persuasion, by a preponderance of evidence, to demonstrate how its request is consistent with the guidelines for a special permit as outlined by Section 205-6, HRS and Rule 6 of the Commission Rules. Connections has failed to meet this burden. 4. The Development does not adequately meet the requirements or guidelines for a special permit as required by Section 205-6, HRS and Rule 6 of the Commission Rules. 5. The Development is not consistent with the County General Plan, particularly as to the impacts on the immediate community. ORDER Based upon the preceding Findings of Fact and Conclusions of Law, Special Permit Application SPP No. 12-000138 of Cormections New Century Public Charter School and Community Based Education Support Services to develop a K to 12 charter school campus with 13 dorm facilities and related rises on 70.15 acres situated within the State Land Use Agricultural District is hereby denied. Dated: Hilo, Hawai`i, MAY 2014 Y RONALD GONZALES, Chairman Windward Planning Commission 14 BEFORE THE COUNTY OF HAWAII PLANNING COMMISSION In the Matter of SPP No. 12-000138 CONNECTIONS NEW CENTURY PUBLIC CERTIFICATE OF SERVICE CHARTER SCHOOL AND COMMUNITY BASED EDUCATION SUPPORT SERVICES Application for Special Permit Application No. 12-000138 TMK: (3) 2-5-006-141; Kaumana, South Hilo, Hawai'i CERTIFICATE OF SERVICE 1 hereby certify that on this date, a copy of the foregoing was duly served upon the following parties by depositing the same,in the U. S, mail, postage prepaid, and by e-mailing a copy, addressed to: Ted H. S. Hong, Esq. (ted@edhon�law.com) P. O. Box 4217 Hilo, Hawai'i 96720 Attorney for Applicant Community Based Education Support Services Carter K. Siu, Esq. (Carter.K.Siu@awaiii. ov) Deputy Attorney General State of Hawai'i 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant Connections New Century Charter School Amy G. Self, Esq. (aselfAco.hawaii.hi.us) Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for County of Hawai'i Planning Director Mr. Jeffrey K. Gomes (kalani o�mesa—hawaiiantel.net) 281 1✓dita Street Hilo,Hawaii 96720 Intervenor pro se Mr. Duane Kanuha, Planning Director(plannin�}a co.hawaii.hi.us} County of Hawai`i Planning Department 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720 Margaret Masunaga, Esq. (mkmasunaga@co.ha aii.hi.us) Deputy Corporation Counsel 74-5044 Ane Keohokalole Highway Kailua-Kona, HI 96740 Attorney for County of Hawaii Planning Commission Dated: Hilo, Hawaii, MAY 1 2 R NALD GO ZALE , Chairman Windward Planning Commission 2 ti IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS) and ) (Agency Appeal) CONNECTIONS NEW CENTURY PUBLIC ) SCHOOL, ) } CERTIFICATE OF SERVICE Applicants-Appellants, } ) VS . } WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII ; DEPARTMENT OF ) PLANNING, COUNTY OF HAWAII, ) } Appellees, ) } and ) } JEFFREY GOMES, ) Intervenor-Appellee . ) CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a copy of the foregoing document (s) was duly served upon the following parties via the U.S . Post Office, Kailua-Kona, Hawaii, postage prepaid, addressed as follows : TED H.S . HONG, ESQ. P.D. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General 235 So. Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL AMY SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAII PLANNING DIRECTOR LAUREEN L. MARTIN, ESQ. DANNY B. PATEL, ESQ. 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII DATED: Kailua-Kona, Hawaii, March 5, 2015 JEFFREY K. DOMES, Intervenor- Appellee By: "> MICHAE J. MATSUKAWA His Attorney 2 FILED CIRCUIT COURT OF Tiic THIRD CIRCUIT TED H. S. HONG 3569 STATE OF fiAWA[I Attorney at Law 1z?!S MAR !0 P. O. Box 4217 PM 12: 0? Hilo, HI 96720 Telephone No. 808.933.1919 Facsimile No. 808938.8281 CLERK L. C,IL`dEN ted@tedhonglaw.com Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO. I4-I-0223 RI SUPPORT SERVICES } (Agency Appeal) } Applicant-Appellant, ) APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' vs. } REPLY BRIEF; CERTIFICATE } OF SERVICE WINDWARD PLANNING COMMISSION,} COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING, COUNTY OF HAWAII, ) AppeIIees, } } and } } JEFFREY GOMES, Intervenor; } } JUDGE: Hon. Ronald Ibarra Intervenor-Appellee. } } APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' REPLY BRIEF TABLE OF CONTENTS TABLE OF AUTHORITIES 4 f� TABLE OF CONTENTS I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Statutory Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. The "Public Trust Doctrine" must be narrowly applied. . . . . . . . . . . . . . . . . . . . . . . . 2 C. Agency discretion is limited. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 (1) General Plan violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 (2) Abuse of discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S D. Substantial Evidence Commission acted arbitrarily, capriciously and/or abused its discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 (1) Reasonableness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 (2) Water Availability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 (3) Service the Immediate Surrounding Community as a School . . . . . . . . . . . . (4) Traffic Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 (5) General Adverse Impacts to Surrounding Property Owners. . . . . . . . . . . . . . 19 (6) Suitability of Property for Agriculture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 ii TABLE OF AUTHORITIES HAWAII CASES: Dejetley v. Kaho'ohalahala, 122 Haw. 251, 226 P.3d 421 (2010) . . . . . . . . . . . . . . . . . . . . . . . . 2 Honbo v. Hawaiian Ins. & Guar. Co., Ltd., 86 Hawaii 373, 949 P.2d 213 (App.1997) . . . . . . . 2 Kauai Springs, Inc. v. Planning Comm'n of'Cnty. of Kauai, 130 Hawaii 407, 312 P.3d 283 (Ct. App. 2013) cert, granted sub nom. Kauai Springs, Inc. v. Planning Comm'n of Cnty. of'Kaua'i, No. SCWC 29440, 2013 WL 4779589 (Haw. Sept. 4, 2013) and affd, 133 Hawaii 141, 324 P.3d 951 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2-3, 1 1-12, 14, 20 Korean Buddhist Dae Won Sa Temple v. Sullivan, 87 Hawai'i 217, 953 P.2d 1315 (1998) . . . . 9 Nuuanu Valley Assn v. City and Cnty. Of Honolulu, 119 Hawai'i 90, 194 P.3d 531 (2008) . . . 7 Paul's Electrical Service, Inc., v. Befitel, 104 Hawai'i 412, 91 P.3d 494 (2004) . . . . . . . 3, 4, 8-9 HAWAII REVISED STATUTES: See. 91-14(g)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Sec. 205-6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 HAWAII COUNTY CHARTER: Sec, 6-7.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 See. 6-7.5(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 See, 6-7.2(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 HAWAII COUNTY PLANNING COMMISSION RULES OF PROCEDURE: Rule 6-3 Petition and Content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6 Rule 6-4 Incomplete Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Rule 6-7 Grounds for Special Permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ill APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' REPLY BRIEF COMES NOW Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES (hereinafter referred to as "CBESS"), by and through its undersigned counsel and hereby submits its Reply Brief as follows: I. INTRODUCTION Intervenor-Appellee Jeffrey K. Gomes' (hereinafter referred to as "Gomes") Answering Brief filed on February 26, 2015, asks this Court to set a dangerous precedent. Gomes' asks the Court to expand the application of the "Public Trust Doctrine" articulated in Kauai Springs, Inc. v. Planning Comm'n of'Cnty. of Kauai, 130 Hawaii 407, 312 P.3d 283 (Ct. App. 2013) cert. granted sub nom. Kauai Springs, Inc. v. Planning Comm'n of Cnty. of Kaua'i, No. SCWC 29440, 2013 WL 4779589 (Haw. Sept. 4, 2013) and affd, 133 Hawaii 141, 324 P.3d 951 (2014), without any legal basis. He asks the Court to judicially expand the scope of the authority of the Planning Commission to now include adjudicating violations of the General Plan. Finally, he asks this Court to ratify the Appellee Commission's decision requiring a Special Permit applicant to submit final, not projected, development plans. Gomes' is asking this Court to judicially legislate in order to mask the errors and unlawful actions taken by the Appellee, COMMISSION. II. ARGUMENT A. Statutory Interrpretation. Generally, when interpreting state law or a county's charter and ordinances, the Court is obliged to follow: 1 w First, the fundamental starting point for statutory interpretation is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Third, implicit in the task of statutory construction is our foremost obligation to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. Fourth, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists. Rees v. Carlisle, 113 Hawaii 446, 452, 153 P.3d 1131, 1137 (2007). "The interpretation of the charter is similar to the interpretation of a statute." Thompson, 84 Hawaii at 106, 929 P.2d at 1356. (Emphasis added) Dejetley v. Kaho'ohalahala, 122 Haw. 251, 262, 226 P.3d 421, 432 (2010); See also, Honbo v. Hawaiian Ins. & Guar. Co., Ltd., 86 Hawaii 373, 376, 949 P.2d 213, 216 (App.1997) ("If there is any inequality or any situation that was overlooked in the law, it is up to the legislature to make the correction. For this court to do so under the guise of statutory construction is to indulge in judicial legislation which we are prohibited from doing under the doctrine of separation of powers."). (Emphasis added) B. The "Public Trust Doctrine_' must be narrowly applied. The application of the "Public Trust Doctrine" in the Kauai Springs, Inc. v. Planning Comm`n of Cnty. of Kauai, 130 Hawaii 407, 312 P.3d 283 (Ct. App. 2013) cert. granted sub nom. Kauai Springs, Inc. v. Planning Comm'n ofCnty. ofKaua'i, No. SCWC 29440, 2013 WL 4779589 (Haw. Sept. 4, 2013) and affd, 133 Hawaii 141, 324 P.3d 951 (2014), is clear and narrow. The "Public Trust Doctrine" is limited to the "preservation of forests, water resources and prime agricultural lands from unnecessary urbanization:" In 1978, amendments to the Hawaii Constitution, including the promulgation of article XI, section 1, "elevated the public trust doctrine to the level of a constitutional mandate." Waidhole I, 94 Hawaii at 131, 9 P.3d at 443; Kelly, 11 I Hawaii at 222, 140 P.3d at 1002. "[TJhe public trust doctrine applies to all water resources without exception or distinction." Waidhole I, 94 2 Hawaii at 133, 9 P.3d at 445; see also Kelly, 111 Hawaii at 222, 140 P.3d at 1002. Second, in determining whether the Planning Commission's scope of public trust duties required it to consider and protect water resources in this case, we are guided by Kelly. In Kelly, to determine whether the County of Hawaii had a public trust duty to protect ocean waters involved in that case, the Hawaii Supreme Court based its ruling on a combined analysis of article XI, section I and the "general laws" that delegated duties and responsibilities to the county. 111 Hawaii at 224-25, 140 P.3d at 1004-05. (Emphasis added and included) Kauai Springs, Inc. v. Planning Comm'n of Cnty. gfKauai, 130 Haw. 407, 423, 312 P.3d 283, 299 (Ct. App. 2013) cert, granted sub nom. Kauai Springs, Inc. v. Planning Comm'n of'Cnty. of'Kaua"i, No. SCWC 29440, 2013 WL 4779589 (Haw. Sept. 4, 2013) and affd, 133 Haw. 141, 324 P.3d 951 (2014). Gomes' asks the Court to expand the application of the "Public Trust Doctrine"to apply to all Planning Commission decisions. There is no legal basis to support Gomes' unprecedented expansion of the "Public Trust Doctrine" in the Special Permit process to other Planning Commission decisions. See, Gomes' Answering Brief, at 13-15. Kauai Springs, Inc., supra, 130 Haw. 407, 426, 312 P.3d 283, 302 (Conserve forests, water resources and land, particularly to preserve the prime agbcultural lands from unnecessary urbanization). Despite Gomes' expansion of the "Public Trust Doctrine,"there is no evidence that the Appellee Commission even considered or utilized the doctrine in its denial of the Special Permit Application. Answering Brief, at 15. C. Agency discretion is limited. The "discretion" delegated to agencies and deference to that discretion is limited. Recently in Paul's Electrical Service, Inc., v. Befitel, 104 Hawai'i 412, 91 P.3d 494 (2004),the Hawaii State Supreme Court restated the applicable standard for agency appeals: 3 Administrative agencies are created by the legislature, and the legislature determines the bounds of the agency's authority. See Morgan v. Planning Dept., County of Kauai, 104 Hawai'i 173, 184, 86 P.3d 982, 993 (2004) ("'An administrative agency can only wield powers expressly or implicitly granted to it by statute."' (Quoting TIG Ins. Co. v. Kauhane, 101 Hawai'i 311, 327, 67 P.3d 810, 826 (App.2003).)). Thus, before we can determine whether an agency abused its discretion pursuant to HRS § 91-14(g)(6), we must determine whether the agency determination under review was the type of agency action within the boundaries of the agency's delegated authority. To the extent that the legislature has authorized an administrative agency to define the parameters of a particular statute, that agency's interpretation should be accorded deference. See, e.g., In re Gray Line Hawaii Ltd., 93 Hawai'i 45, 53, 995 P.2d 776, 784 (2000) (discussing deference to Public Utilities Commission's determination of"just and reasonable" rates); Hyatt Corp. v. Honolulu Liquor Comm'n, 69 Haw. 238, 239, 738 P.2d 1205, 1206 (1987) ("Because of the exceptionally broad authority granted to the Commission by statute [and] the substantial deference to which the Commission's interpretation of the statute is entitled ..., we affirm."). However, if a statute does not grant an agency discretion with which to interpret or implement that statute, then that agency's legal conclusions will be reviewed de novo. See, e.g., Allstate Ins. Co. v. Schmidt, 104 Hawai'i 261, 88 P.3d 196 (2004). The standard of review for decisions of administrative agencies therefore consists of two parts: first, an analysis of whether the legislature empowered the agency with discretion to make a particular determination; and second, if the agency's determination was within its realm of discretion, an analysis of whether the agency abused that discretion (or whether the agency's action was otherwise "arbitrary, or capricious, or characterized by ... [a] clearly unwarranted exercise of discretion," HRS § 91-14(8)(6)). If an agency determination is not within its realm of discretion (as defined by the legislature), then the agency's determination is not entitled to the deferential "abuse of discretion" standard of review. See, e.g.,Allstate, 104 Hawai'i at 265- 66, 88 P.3d at 200-01. If, however, the agency acts within its realm of discretion, then its determination will not be overturned unless the agency has abused its discretion. (Emphasis added) Pauls Electrical Service, Inc., v. Befatel, sul2ra, 91 P.3d at 499-500. In the present case, the Appellant contends that the Appellee Commission abused its discretion on two (2) separate grounds. First, the Appellee Commission was not authorized to adjudicate or make findings based on alleged violations of the County's General Plan. Second, 4 the Appellant challenges the discretion exercised by the Appellee Commission in denying its Special Permit application. (1) General Plan violations. Appellee Commission found as a matter of law, that the Appellant's proposed use was "contrary to" and "not consistent with" the County's General Plan, CROA: 4311; CROA: 4312. The Appellee Commission does not have the delegated authority to adjudicate alleged violations of the General Plan. All petitions for a Special Permit must initially conform to the certain minimal requirements, including: 6-3 Petition and Content A petition for a Special Permit shall be filed with the Commission's office and shall include the following: (a) Non-refundable filing and processing fee of five hundred dollars. (b) Original and twenty copies of: (1) Application form; (2) Description of the property in sufficient detail to determine its precise location; (3) A plot or site plan of the property, drawn to scale, with all existing and proposed uses and/or structures shown thereon; (4) Building elevations, if required, of the proposed structures, (5) A statement of the reasons for the granting of the Special Permit citing how the proposed use would promote the effectiveness and objectives of Chapter 205, HRS, and why the proposal is an unusual and reasonable use of the land. The following criteria shall also be addressed: (A) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations; (B) The desired use shall not adversely affect surrounding properties; ( C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and fire protection; (D) Unusual conditions, trends, and needs have arisen since the district boundaries and regulations were established; (E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district; 5 (F) The proposed use will not substantially alter or change the essential character of the land and the present use; and (G) The request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design Plans. (Emphasis added) See, Rule 6, County of Hawaii Planing Commission, Rules of Practice and Procedure, at 6-1 through 6-2, attached the Appellant's Opening Brief as Appendix -4.- Under 4."Under the Appellee Commission's Rules, the Appellee Planning Department and Planning Director perform the ministerial function of screening petitions to determine if those initial requirements are met. See, Rule 6-4 Incomplete Application, "The Commission, through the Planning Department, shall neither accept nor process an application which is incomplete as to form and content. (Emphasis added)" Once the Appellee Planning Department accepts the petition for a Special Permit, that ministerial act triggers a posting requirement (Rule 6-5) and setting of a public hearing (Rule 6-6). In the public hearing, the Appellee Commission's review of Special Permit applications is limited to: Rule 6-7 Grounds for Special Permit The Commission shall not approve a Special Permit unless it is found that the proposed use: (a) Is an unusual and reasonable use of land situated within the Agricultural or Rural District, whichever the case may be; and (b) Would promote the effectiveness and objectives of Chapter 205, Hawaii Revised Statutes, as amended. The Commission shall also consider the criteria listed under Section 6.3(b)(5)(A) through (G). (Emphasis added) See, Rule 6-7, County of Hawaii Planing Commission, Rules of Practice and Procedure. 6 The Appellee Commission cannot confer upon itself the power to adjudicate violations of the County General Plan. The enabling legislation in the Hawaii County Charter and Hawaii County Code says nothing about delegating to the Appellee Commission the authority to adjudicate alleged violations of the General Plan. The County Charter specially authorizes the Planning Director to be the administrative leader concerning the General Plan and amendments. See, Sec. 6-7.2(b)(2), Hawaii County Charter (2012), at 18. The Appellee Commission is limited to reviewing the General Plan and transmitting any"recommendations thereon through the mayor to the council for consideration and action. (Emphasis added)" Sec. 6-7.5(a)(2), Hawaii County Charter (2012). Appellee Gomes' fails to address the specific limitation in the County Charter which defines what authority is delegated to the Appellee Commission concerning the General Plan in any land use change application: ( c) Each planning commission shall review and take action upon applications for land use changes and community development plans involving only property within their respective jurisdictions, other than those involving the general plan. . . . (Emphasis added) See, Article VI, Chapter 7, Sec. 6-7.5, Hawaii County Charter (2012), at 20. Appellee Gomes would have the Court believe that in spite of the specific limiting language in the Hawaii County Charter concerning the role of the Appellee Commission and the General Plan, the phrase "other related duties" in Sec. 6-7.5( c), Hawaii County Charter, authorized the Appellee Commission to adjudicate General Plan violations. See, Nuuanu Valley Assn v. City and Cnty. Of Honolulu, 119 Hawai'i 90, 103-04, 194 P.3d 531, 544-45 (2008) (statutory construction should be limited where literal interpretation was inconsistent with the statute's purpose.). The Appellee Commission exceeded its authority by acting as the adjudicator 7 M of perceived violations of the General Plan. The Appellee Commission's denial of the Appellant's petition was wrong, because it found as a matter of law that the General Plan was violated. The Appellee Commission's decision is not entitled to "deference" because it exceeded the scope of its authority. 2 Abuse of discretion. Assuming that Appellee Commission was acting within the scope of its delegated authority, it abused that discretion by being "arbitrary, or capricious, or characterized by ... [a] clearly unwarranted exercise of discretion." See, Sec. 91-14(8)(6), HRS. Generally, an "abuse of discretion" has been defined as including: The abuse of discretion standard applies to all discretionary decisions of lower tribunals. Discretion is a flexible concept: [w]hen invoked as a guide to judicial action it means a sound discretion, that is to say, a discretion exercised not arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result. [Booker v. Midpac Lumber Co., 65 Haw. 166, 172, 649 P,2d 376, 380 (1982) (quoting Langnes v. Green, 282 U.S. 531, 541 [51 S.Ct. 243, 75 L.Ed. 520] (1931)).] A strong showing is required to establish an abuse, and each case must be decided on its own facts.... The most commonly repeated definition was first articulated in State v. Sacoco [, 45 Haw. 288, 292, 367 P.2d 11, 13 (1961)]: "[G]enerally, to constitute an abuse it must appear that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant." This definition is appropriate because it highlights the great deference appellate courts generally give to discretionary decisions, and conveys the high burden of arbitrariness or caprice which an appellant must meet to overcome that deference. 8 Michael I Yoshii, Appellate Standards of Review in Hawaii, 7 U. Haw. L.Rev. 273, 292-93 (1985) (footnotes omitted) (some alterations in original and some added). Thus, an appellant seeking to overturn an agency's determination made within the agency's sphere of expertise has a high burden to demonstrate that the agency abused its discretion. A "high burden," a "heavy burden," and "deference" are all ways of expressing this same concept: that a determination made by an administrative agency acting within the boundaries of its delegated authority will not be overturned unless "arbitrary, or capricious, or characterized by... [a] clearly unwarranted exercise of discretion." (HRS § 91-14(8)(6)). Paul's Electrical Service, Inc., v. Beftel, 104 Hawai'i 412, 91 P.3d 494, 501-502 (2004). The Appellee Commission's decision to deny the Appellant's Special Permit Application "exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of the Appellant. (Emphasis added)Paul's Electrical Service, Inc., v. Befitel, 104 Hawai'i 412, 91 P.3d 494, at 501. D. Substantial Evidence Commission acted arbitrarily, capriciously and/or abused its discretion. The Appellee Commission, was required to approve a Special Permit petition if the proposed use was: (1) an unusual and reasonable use of land situated within an agricultural district; and (2) promote the effectiveness and objectives of Chapter 205, HRS. (Emphasis added) See, Rule 6-7, County of Hawaii Planing Commission, Rules of Practice and Procedure. (1) Reasonableness. Appellee Gomes' argues that the dicta in Korean Buddhist Dae Won Sa Temple v. Sullivan, 87 Hawai'i 217, 953 P.2d 1315 (1998) should be determinative regarding the issue of "reasonableness"by including the negative opinions of neighbors. See, Answering Brief at 16- 17. The Dae Won Sa Temple,supra, case is not applicable. The Dae Won Sa Temple, supra, involved the appeal of a ministerial function denying an after the fact variance by the City's 9 Director of Land Utilization of the City and County of Honolulu. Dae Won Sa Temple, supra, 87 Hawai'i at 222, 953 P.2d 1320. It also involved intentional violations of a building permit. Id.. Moreover, the definition of"reasonable use"relied on by Appellee Gomes was a term used and defined by the City and County's Charter. Dae Won Sa Temple, supra 87 Hawai'i at 234-235, 953 P.2d 1332-1333. The term "reasonable use" in the present case is a statutory requirement, not considered in the decision of Dae Won Sa Temple, su ra, and set out in Sec. 205-6, HRS: §205-6 Special permit. (a) Subject to this section, the county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified. Any person who desires to use the person's land within an agricultural or rural district other than for an agricultural or rural use, as the case may be, may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired. (Emphasis added) The unchallenged evidence concerning the issue of"reasonable use" of the subject property was submitted by the State Office of Planning (hereafter referred to as "OSP"). Pursuant to its statutory authority, OSP reviewed, assessed and confirmed that the Appellant's petition met all statutory requirements under Sec. 205-6, HRS. CROA: 401-404; see also, Sec. 225M-2, HRS; Sec. 226-53, HRS. On or about October 3, 2012, the State Office of Planning, found: Assessment The Office believes the proposal meets the guidelines in HAR Sec. 15-15- 95, for determining an"unusual and reasonable use" for the purpose of granting a special permit pursuant to HRS Sec. 205-6: 1. The proposed use would not be contrary to HRS Chapters 205 and 205A, and the rules of the LUC in that: 10 (a) the pahoehoe soils of the 1880-1881 lava flow overlying the property are unsuitable for conventional agriculture; (b) there is and has been no agricultural use of the property; and ( c) the applicant proposes to incorporate a sustainable agriculture program into the school curriculum; 2. The proposed use would not adversely affect the surrounding low density residential properties provided that: (a) roadway improvements and traffic management measures are adopted to minimize the impact of increased traffic on local roads and residences in the vicinity of the school; and (b) the project's drainage system improvements are designed, constructed, and maintained to ensure the runoff generated by the project is retained onsite and stormwater overflow from Kaumana Cave does not adversely impact downstream receiving streams and properties; 3. The proposed use would not unreasonably burden public agencies to provide or expand public facilities and services as the applicant will be responsible for any infrastructure and utility improvements required by the project; (Emphasis included and added) CROA: 402-403. The State Office of Planning is mandated to interpret Chapter 205, and Chapter 205A, HRS and found that the Appellant's Special Permit application met all "reasonable use" and statutory requirements. The purpose of the statutory land use process is to have administrative agencies take a broader analysis to reach a conclusion about whether a proposed use is "reasonable:" The Hawaii Supreme Court has ruled that the "overarching purpose" of HRS Chapter 205 is to "protect and conserve natural resources and foster intelligent, effective, and orderly land allocation and development." Curtis v. Bd. of Appeals, Cnty. of Hawaii, 90 Hawaii 384, 396, 978 P.2d 822, 834 (1999) (internal quotation marks omitted); see also Cnty. of Hawaii v. Ala Loop Homeowners, 123 Hawaii 391, 409, 235 P.3d 1103, 1121 (2010) (11HRS chapter 205 is a law relating to the conservation protection and enhancement of 11 natural resources[.]"). As noted in Curtis, The stated purpose of the law is, inter glia: to protect and conserve through zoning the urban, agricultural and conservation lands within all the counties. A coordinated, balanced approach not only within each county but an overall balance of statewide land needs for economic growth is essential to: (1) Utilize the land resources in an intelligent, effective manner based upon the capabilities and characteristics of the soil and the needs of the economy; (2) Conserve forests, water resources and land, particularly to preserve the prime agricultural lands from unnecessary urbanization; (3) State the allocation of land for development in an orderly plan to meet actual needs and minimize costs of providing utilities and other public services.... 90 Hawaii at 396, 978 P.2d at 834 (underline emphases added, italics and footnote omitted) (quoting H. Stand. Comm. Rep. No. 395, in 1961 House Journal, at 855-56). HRS § 205-6 thus confers authority to the Planning Commission to grant special permits for uses not otherwise permitted in state agricultural districts, but only when the use would promote the effectiveness and objectives of HRS Chapter 205. (Emphasis added) Kauai Springs, Inc. v. Planning Comm'n of Cnty. of Kauai, 130 Haw. 407, 426, 312 P.3d 283, 302 (Ct. App. 2013) cert. granted sub nom. Kauai Springs, Inc. v. Planning Comm'n of Cnty. of Kaua'i, No. SCWC 29440, 2013 WL 4779589 (Haw. Sept. 4, 2013) and affd, 133 Haw. 141, 324 P.3d 951 (2014). The Appellant's unchallenged and overwhelming evidence contradicts the Appellee Commission's findings and conclusions of law on reasonableness and must be overturned. Every administrative agency, tasked with different perspectives, supported the Appellant's proposed, incremental project. (2) Water Availability. 12 The fundamental mistake made by Appellee Commission and in Gomes' Answering Brief is that, at no time did the Appellant ask for, request or indicate that it would use or seek to use more County water than had been approved by the County Water Department. However, the Appellee Commission found as fact and mixed question of fact and law that there was insufficient County water to support the fully built out project in the last phases of development. CROA: 4304 (FOF #21); CROA: 4309-4310 (FOF #48-51); CROA: 4311-4312 (Mixed: #63). The Appellee Commission denied a Special Permit application, not based on the amount of water proposed to be used or based on a request to go beyond the amount allocated by the Water Department or on a conditional basis with reservation of the future right to request or use more than originally approved by the County Water Department. Appellee Commission fundamentally erred because it denied the Appellant's Special Permit, based on speculation. The Appellant, County Water Department and County Planning Department agreed to limit the amount of County Water that could be supplied to the project. CROA: 32; CROA: 1678-1684. The head of the County of Hawaii, Department of Water Supply, Mr. Kurt Inaba, testified before the Hearings Officer and agreed the standards and guidelines that the Appellant used in developing its usage estimates were the same standards used by the County and accurate. CROA: 2778, lines 1-13. Mr. Inaba, the Appellant and its engineer, agreed that the Water Department's limit of 4,200 gallons per day was for the entire project when fully built (CROA: 2778: lines 18-21), and even when used to that limit, Appellant's water usage would have no effect on surrounding property owners. CROA: 2778-2779: lines 22-5; CROA: 1680-1681; see also CROA: 2732-2737, testimony of Kevin Louma, Licensed Professional Engineer regarding water calculations; 3339-3340. 13 The Appellant expressly agreed to the water limit informing Appellee Commission that: Should the applicant utilize more than the maximum average daily usage of potable water(4,200 gpd)from the existing County 8-inch water line, the applicant will be required to secure or construct an additional source of potable water or limit the amount of students to the amount of potable water available. (Emphasis added) CROA: 1227. In Kauai Springs, Inc., the applicant sought to increase its water usage. Kauai Springs, Inc., supra, 130 Hawai'i at 427, 321 P.3d at 427. In reversing the commission, the Intermediate Court of Appeals noted that there was nothing in the record concerning the amount of water the company sought to use, what the similar use was in the area, whether the projected use would be detrimental to the surrounding people or property or have any harmful environmental effects to the land or water. Kauai Springs, Inc., supra, 130 Hawai'i at 306, 321 P.3d at 430. In this case, the Appellant simply asked the Appellee Commission to approve the agreement between the Appellant, the County Water Department and the County Planning Department concerning the total amount of water that could be supplied by the County. There is nothing in the Record to indicate that the Appellant was asking to use more than was agreed to. CROA: 1227. The Appellant even offered, uncontradicted evidence that other tools could be utilized to actually reduce the total amount of water usage if the total project was completely built. CROA: 1679-1680. The suggestion by Appellee Commission, Hearing Officer and Gomes' that Appellant would need or request more water from the County is speculative, had no factual foundation, and significantly something that was unsupported in the Record. It is one thing to be denied a permit because an applicant's request is too broad and undetermined in terms of County resources. It is quite another when an applicant actually agrees to a limit and informs 14 the County that if more resources are needed, it will he responsible for developing more resources without County involvement. In this case, the Appellee Commission's disapproval was a clear abuse of discretion because it was NOT based on what County water resources it would use, or what it wanted to use, or what it agreed to limit itself to use, but on what the Commissioners FELT would be used despite the uncontradicted evidence. (3) Service the Immediate Surrounding Community as a School. Appellee Commission found as fact and mixed fact and conclusion of law, that the proposed school would not serve the immediate community's children. CROA: 4303 (FOF #14); 4306 (FOF#36); 4310 (FOF #52); 4311 (Mixed#62); 4311-4312 (Mixed#63). Appellee Gomes concedes that by law, Charter Schools cannot limit its student population to specific geographical locations or communities under Sec. 302D-13, HRS. Appellee Gomes further concedes the Appellee Commission erred because it required the Appellant's student body to be limited to the surrounding community. CROA: 4303 (FOF #14); 4306 (FOF#36); 4310 (FOF #52); 4311 (Mixed#62); 4311-4312 (Mixed #63); see also, CROA: 2635-2636: lines 18-6 and CROA: 2700: lines 10-13 (Testimony of John Thatcher that a number of students live and come from the Kaumana geographical area.); CROA: 3121-3122, (Testimony of former Planning Director), "So it became that we needed to look at the permit in terms of its land use and whether it was an appropriate use of this land as opposed to what percentage of students lived in Puna and what percentage of students lived in Hilo."; CROA: 2792-2793: lines 16-1; CROA: 2793: lines 18-25; see also 2794: lines 1-16 (Testimony of current Planning Director). Instead, Appellee Gomes, attempts to confuse the issues by changing the discussion into community conflict. Answering Brief at 24-27. Gomes' attempt at misdirection is addressed 15 infra at 19-20, "General Adverse Impacts to Surrounding Property Owners." (4) Traffic Impact The Appellee Commission ignored the substantial evidence provided by the Appellant and the County that the proposed development would have little or no impact on traffic. CROA: 4304 (FOF #18); 4309 (FOF #46-47). Games' cites an unknown requirement of projecting traffic patterns sixteen to twenty(16-20) years ahead and argues the Traffic Impact Analysis Report (hereinafter referred to as "TZAR") was dated. Answering Brief at 28-29. He does not challenge, refer to or produce any evidence in the Record that would substantiate or support the Commission's intentional ignorance. On Thursday, May 28, 2009, the Appellant's expert Traffic Engineer, took traffic counts in the neighborhood. CROA: 290. The Draft Environmental Assessment (EA) was prepared and distributed for agency and public comment in August 2009. CROA: 63. On June 28, 2010, the Appellant's expert witness submitted his TIAR. CROA: 289-295. The Revised Draft EA was distributed for public and agency comment in August 2010. CROA: 63. After the environmental assessment process and comment period, on July 26, 2012, the Appellant submitted its Special Permit application. CROA: 001. The application stated in relevant part: Note that the findings of the TIAR are conservative and likely overestimates total trip generation for the project. The TIAR does not specifically take into account that approximately 30 percent of Connections' students are bussed to school from outside Hilo and the Iikelihood that multiple students may be dropped off or picked up by one vehicle (i.e., families with more than one student at the school and carpooling). CROA: 41. On September 18, 2012, the County's Department of Public Works, Traffic Division, 16 submitted its comments and review based on the TIAR submitted by the Appellant. CROA: 393. The department did not find any fault or flaw in the data collection, the data or the analysis. ld see also, CROA: 2756: The department made suggestions that were incorporated by the Planning Department in its Revised Conditions of Approval. Id.. On October 31, 2012, the Planning Department submitted its Revised Recommendations, which analyzed any"adverse impacts" on the surrounding area. In relevant part, the Planning Department noted: (B) The desired use would not adversely affect surrounding properties. AIthough there are anticipated adverse impacts that would be created by this new use, these impacts can be mitigated to minimize their effects to surrounding_property owners. Conditions of approval will be added to address traffic and noise that will mitigate and minimize these impacts. (Emphasis added) CROA: 886-887. The Planning Department submitted its revised Conditions of Approval to the Appellant on November 9, 2012. CROA. 1227-1231; 2804 (Mr. Kanuha's testimony). On November 9, 2012, at the regularly scheduled hearing on the Appellant's petition, SPP No. 12-000138, after hearing presentations by the Appellant and the Appellant's experts and testimony from surrounding property owners, the Windward Planning Commission voted to defer SPP No. 12-000138 to allow the Appellant an opportunity to submit: (1) water calculations to address water concerns and (2) meet with an adjacent property owner to explore an alternative access through the Puainako Extension. CROA: 1640. On December 6, 2012, at a further hearing on SPP No. 12-000138, the Windward 17 Planning Commission voted to defer SPP No. 12-000138 to allow a Deputy Attorney General to represent Connections in SPP No. 12-000138 application process. CROA: 1853. On January 10, 2013, at a further hearing on SPP No. 12-000138, the Windward Planning Commission moved to deny SPP No. 12-000138 and allow for the preparation of Findings of Fact, Conclusions of Law and Decision and Order. CROA: 2052. On March 7, 2013, at a further hearing on SPP No. 12-000138, the Windward Planning Commission voted to withdraw its motion to deny SPP No. 12-000138 and retain a hearings officer to conduct a contested case hearing. CROA: 2143-2144; 2155. The Contested Case was heard on October 21, 2013, October 22, 2013, November 12, 2013, January 8, 2014 and January 22, 2014. CROA: 2596; 2851; 3002; 3043; 3186. On March 13, 2013, the Appellant, provided an extension of time to allow the Hearing Officer and additional 30-days to prepare Findings of Fact, Conclusions of Law and a Decision and Order. CROA: 4086. On April 7, 2013, the Hearing Officer submitted her Report to the parties and Planning Commission. CROA: 4098-4112. On May 1, 2014, the Windward Planning Commission voted to uphold the Hearings Officer's report and recommendation and denied SPP No. 12-000138. CROA: 4293. On May 19, 2014, the Windward Planning Commission submitted its Findings of Fact, Conclusions of Land and Decision and Order. CROA: 4300-4315. On June 9, 2014, the Appellant, timely submitted its Notice of Appeal. The record shows that the Appellee Commission deliberately delayed the proceedings in this case for nearly two (2) years. At the time the TIAR was submitted, June 28, 2010, for the 18 Environmental Assessment review and comment period, the Appellant's expert witness' traffic counts were only a year old. CROA: 290. After the procedural requirements within two (2) years, on July 26, 2012, the Appellant submitted its Special Permit application. CROA: 001. Gomes' argument that the TIAR was outdated is farcical. There are inherent delays in the land use process. From the submission of the Draft EA to the issuance of the Department of Land and Natural Resources' Finding of No Significant Impact for Connections school master plan for the Property on October 22, 2010, a significant period of time was lost. CROA: 893. Additionally, the Appellee Commission was directly responsible for unnecessarily delaying the process and extending the time line another two (2) years. Any delay cited by Gomes' and the Appellee Commission was due to the Commissions's lack of diligence and the Appellant should not be prejudiced by the Commission's inaction. (5) General Adverse Impacts to Surrounding Property Owners. The Appellee Commission found as fact that despite all the mitigating factors, questionable adverse impacts required the Commission to deny the Appellant's Special Permit Application. CROA: 4309 (FOF #46); 4312 (COL#4-5). Gomes' perpetuates the myth that the Appellant failed to communicate with the surrounding property owners. Answering Brief at 25- 27. The Record shows the direct opposite. The Appellant held publicized, community informational meetings on the following dates: April 16, 2009 (CROA: 1787-1792); June 3, 2011 (CROA: 1770-1786); September 2, 2011 (CROA: 1755-1769); April 27, 2012 (CROA: 1730-1754); December 17, 2012 (CROA: 1716-1724). The Appellant's students and faculty walked the entire community, door to door, on April 19 28, 2012, to personally provide information to community members. CROA: 1725-1729. The Appellant mailed out the required Notice to Surrounding Property Owners on the following dates: August 6, 2012 (CROA: 334-349); October 19, 2012 (CROA: 800-818) and October 29, 2012 (CROA: 948-867). Despite the evidence of the numerous attempts to communicate with and meet the demands of the neighboring community, Gomes' and other neighbors would accept nothing less than the complete denial of the Appellant's Special Permit Application, regardless of its merits, which Appellee Commission was all too happy to accommodate. 6 Suitability of Property for Aghculture. Neither Appellee Gomes nor any of the other"neighbors"opposing Appellant's project mentioned or provided any evidence that they conducted any sort of"agriculture" on any of their property in the area. Yet, Gomes' suggests that agriculture can occur. Answering Brief at 31-32. This fanciful argument was addressed by the State Office of Planning who submitted evidence dated October 3, 2012, without challenge, that "the property are unsuitable for conventional agriculture; (b) there is and has been no agricultural use of the propert ; . . ." CROA: 402-403. Gomes' counsel also conveniently overlooks that even Appellee Commission agreed that the soil classification rating for the Property is "D" or"Poor," and "unsuited for agricultural uses." CROA: 4310. The "Public Trust Doctrine" and analysis applies to "prime agricultural" land, not the present property. See, Kauai Springs, Inc., supra, 130 Haw. 407, 426, 312 P.3d 283, 302. See also, CROA: 3398-99; 3396-97; 3394-95; Special Permit approval for Kamehameha Schools, Keaau Campus, 236 acres set out in State Land Use Agricultural District and 64 acres in State Land Use Urban District. 20 III. CONCLUSION The Appellee Commission should be reversed because: A. The Commission lacked any authority to adjudicate violations of the Hawaii County General Plan, B. The Commission abused its discretion, based on the substantial and reliable evidence that the Appellant's project was an "unusual and reasonable use of the land;" C. The Commission abused its discretion, based on the substantial and reliable evidence that the Appellant's project would promote the effectiveness and objectives of Chapter 205, HRS; D. Award the Appellant the following remedy, including but not limited to: 1. Reverse the Findings of Fact, Conclusions of Law and Decision and Order adopted by the Windward Planning Commission on May 1, 2014 and May 19, 2014, respectively. CROA 4293; 4300-4315. 2. Grant in whole, CBESS' application of July 25, 2012, filed with the County of Hawaii Planning Department, for a Special Permit, pursuant to Section 205-6, Hawaii Revised Statutes ("HRS") and Rule 6 of the County of Hawaii Planning Commission Rules of Practice and Procedure to allow the development of a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres situated in the State Land Use Agricultural District, at Ponahawai, Kuhuau 2"d, South Hilo, Hawaii, and further identified by Tax May Key("TMK")(3)2-5-006:141 (CROA: 1-404); or, 3. Remand the matter to the Appellee Windward Planning Commission 21 with the specific instruction to grant in whole, CBESS' application of July 25, 2012; 4. The Court order the Appellee Gomes to pay the Appellant's attorney's fees and costs in the present case. DATED: Hilo, Hawaii, March 10, 2015. Respectfully submitted, t D H. S. HON Attorney at Law Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 22 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO. 14-1-0223 RI SUPPORT SERVICES ) {Agency Appeal} } Applicant-Appellant, } CERTIFICATE OF SERVICE } vs. } ) WINDWARD PLANNING COMMISSION,} COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING, COUNTY OF HAWAII, ) Appellees, ) } and } SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY K. GOMES, ) Intervenor; SIDNEY FUKE, Intervenor's } Representative; and TERENCE } YOSHIOKA, Intervenor's Representative, ) Intervenor-Appellees. ) JUDGE: Hon. RONALD IBARRA CERTIFICATE OF SERVICE I hereby certify that the foregoing document was duly served via U.S. Mail, postage prepaid, on the date indicated below, to the foIIowing, CARTER K. SIU, ESQ. Deputy Attorney General State of Hawai'i 235 S. Beretania Street, Rm, 304 Honolulu, Hawaii 96813 Attorney for Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL I AMY G. SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee COUNTY OF HAWAI'I PLANNING DIRECTOR MOLLY A. STEBBINS, ESQ. Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I MICHAEL J. MATSUKAWA, ESQ. 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, HI 96740 Attorney for Appellee JEFFREY K. GOMES DATED: Hilo, Hawaii, March 10, 2015. —2'1�) ,Tfd1ff . HON Attorney at Law Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 MOLLY A. STEBBINS 8639 Corporation Counsel DANNY B. PATEL 9578 Deputy Corporation Counsel County of Hawaii 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 r Telephone. (808) 961-8251 q Facsimile: (808) 961-8622 E-mail: danny.pate I ghawaiicounty.gov r.. a�- Attorneys for Appelleer -+ WINDWARD PLANNING COMMISSION, co COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, ANSWERING BRIEF OF APPELLEE Applicants-Appellants, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII: APPENDICES vs. "A"—"F CERTIFICATE OF SERVICE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, Appellee, and JEFFREY GOMES, Intervenor, Judge: The Honorable Ronald Ibarra Intervenor-Appellee. TABLE OF CONTENTS TABLE OF AUTHORITIES i I. INTRODUCTION .............................................................................. 1 II. COUNTER-STATEMENT OF QUESTIONS PRESENTED FOR DECISION...... 2 III. STATEMENT OF FACTS ....................................................•.............. 2 IV. STANDARD OF REVIEW ................................................................... 6 V. ARGUMENT ..................................•................................................... 7 A. The Commission Acted Within Its Authority When It Considered The General Plan, As The Charter Authorizes It To Do So ........................... 8 B. The Commission Acted Within Its Authority When It Determined The Application Did Not Meet Special Permit Requirements ........................... 11 C. The Commission Correctly Denied The Application Because Applicants Did Not Meet the Criteria Required For A Special Permit....................... 14 1. The Commission's Findings Of Fact Were Not Clearly Erroneous, As There Was Substantial Evidence To Support The Same.................... 16 a. The Applicants' Desired Use Would Adversely Affect Surrounding Properties And Unreasonably Burden County Agencies.•.................................................................... 17 Quality of Life Concerns ........................................... ..... 17 Traffic Concerns ........................................................... 19 Water Concerns ............................................................ 23 b. The Land Upon Which The Proposed Use Is Sought Is Suited For Agriculture................................................................. 25 c. Applicants' Proposed Use Would Substantially Alter Or Change The Essential Character Of The Land And The Present Use ....... 28 d. Applicants' Request Is Contrary To The General Plan................. 29 2. Denying The Application Was A Proper Exercise Of The Commission's Discretion....................................................... 30 VI. CONCLUSION ................................................................................. 32 TABLE OF AUTHORITIES CASES Aio v. Hamada 66 Haw. 401, 406, 664 P.2d 727, 731 (1983)..............................................................................7, 16 Ariyoshi v. Hawaii Pub. Employment Relations Bd. 5 Haw. App. 533, 541-42, 704 P.2d 917,924-25 (1985)................................................................. 31 Contra Topliss v. Planning Comm'n, 9 Haw. App. 377, 392, 842 P.2d 648, 657 (1993)........................................................................... 15 Government Employees Ins. Co. v. Hyman, 90 Haw. 1, 5, 975 P.2d 211, 215 (1999).................................. ................. 30 ..................................... Hawai`i Pub. Employment Relations Bd. v. United Pub. Workers, Local 646, AFSCME, AFL- CIO 66 Haw. 461, 472, 667 R2d 783, 791 (1983)................................................................................. 17 Hua v. Bd. Of Trustees of Employees'Ret. Sys. 112 Haw. 292, 298, 145 P.3d 835, 841 (Ct. App. 2006).................................................................. 16 In re Application of Hawaiian Elec. Co., Inc. 81 Haw. 459,465, 918 P.2d 561, 567(1996).1.,......................I.................I.............................. 16, 31 In re Chow 3 Haw.App. 577, 586, 656 P.2d 105, 112 (1982)............................................................................ 31 In re Contested Case Hearing On the Water Use Permit Application Filed By Kukui (Molok-ai) Inc. 116 Haw, 481, 489, 174 P.3d 320, 328 (2007)................................................................................. 7 In re Gray Line Hawai`i Ltd. 93 Haw. 45, 53, 995 P.2d 776, 784 (2000)............................................................................... 16, 31 In re Kauai Electric division of'citizens Utility Co. 60 Haw. 166, 184, 590 P.2d 524, 537(1978)............................................. ................................... 17 Outdoor Circle v. Harold KL. Castle Trust Estate 4 Haw. App. 633, 639, 675 P.2d 784, 789(1983)............................................................................. 7 Paul v. Dep't of Transportation 115 Haw. 416, 426, 168 P.3d 546, 556 (2007)..."...................................1.11..............1,............... 6 Richard v. Metcalf 82 Haw. 249,252, 921 P.2d 169, 172 (1996)................................................................................. 30 ii Save Sunset Beach Coal. v. City & Cnty. Of Honolulu 102 Haw. 465, 479, 78 P.3d 1, 15 (2003) ...................................................................................... 30 State v. Tominaga 45 Haw. 604, 614, 3 72 P.2d 356, 3 62 (1962)........................................................ .. 31 Takahashi v. Tanaka 10 Haw. App. 322, 329, 871 P.2d 796, 799(1994)........................................................................... 8 Troyer v. Adams 102 Haw, 399, 410, 77 P.3d 83, 94(2003)..................................................................................... 16 Waikiki Resort Hotel, Inc. v. City & Cnty. Of Honolulu 63 Haw- 222, 250, 624 P.2d 1353, 1372 (1981)...................................................... STATUTES Hawaii Revised Statutes Section91-14.......................................................................................... Section91-14(g) ............................................................................................... Section91-14(g)(6) ................................................................................................................... 30 Section 92-1 .................................................................................. .................. 17 ........................... Section 92-3..................................................................... ................. 18 ......................................... Section205....................................................................................... ...... 3. 8, 13, 14 Section205A .................................................................................... ....... 3, 8, 13 Section205A-26(2)................................................................................................................I... 15 Section205-2(d)......................................................................................................................... 26 Section205-4.5(a)...................................................................................................................... 26 Section 205-6................................................................................ .1-3, 7, I1-14, 30 Section205-6(a)......................................................................................................................... I 1 Section205-6(c)......................................................................................................................... 12 Section205-6(e)......................................................................................................................... 13 Section225M-2.......................................................................................................................... 12 Section226-53 ................................... ....................................................................................... 12 iii RULES Hawai`i Administrative Rules Section 15-15-23.................................................................................................... .... 14 ................ Section15-15-95...................................................................................................... 1, 2, 7, 14, 15 Section15-15-95(a)........................................................................................ ........... 12, 22 Section15-15-95(b)........................................................I...................•........................... 12, 13, 20 Section15-15-95(c).............................................................................................................. 11 13 Section15-15-95(e).................................................................................................................... 14 Section15-15-95(1) ................................................................................................................... 24 County of Hawaii Planning Commission Rules of Practice and Procedure Rule6.......................................................................................................................................... 3 Rule6-3(b)(5) ........................................................................................................................ 3, 14 Rule6-3(b)(5)(A—G)................................................................................................................... 3 Rule6-3(b)(5)(E) ............................................................................... ...25 Rule6-3(b)(5)(F).................................................... ................................................................... 29 Rule6-7 .........................................•............................................... 3, 14, 15, 24 CHARTER Hawai`i County Charter Section2-2......................................................................................................................... ...... 10 Section3.1 ............................................................................................................... Section3-15.................•..................................................................................... ... 8 Section3-15(a)....................................................................................................... ... 10 Section3-15(b)........................................................................................................................... 10 Section 6-7.3.................................................................................................... .. 9 .......................... Section 6-7.5......................................................................................... ..... 1, 8-10 ......................... Section 6-7.5(a)(2) ...................................................................................... ............................... 10 Section6-7.5(a)(4)........................................................................................... Section6-7.5(a)(5)............................................................................................. Section6-7.5(c).................................................................................................................. HAWAII COUNTY CODE Hawaii County Code 1983 (2005 Edition, as amended) Section25-5-72(a) ................................................................................................. ..27 iv ANSWERING BRIEF OF APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII COMES NOW, Appellee Windward Planning Commission ("Commission"), County of Hawaii ("County"), by and through its undersigned counsel, pursuant to Hawaii Revised Statutes ("HRS") § 91-14 and Rule 72 of the Hawaii Rules of Civil Procedure, and hereby respectfully submits its Answering Brief to Appellant Community Based Education Support Services' Opening Brief filed December 24, 2014 ("OB"), as follows: I. INTRODUCTION Applicant-Appellant Community Based Education Support Services ("CBESS" or "Appellant") appeals from the Commission's denial of its, and co-applicant Connections New Century Public Charter School's ("Connections"), Special Permit Application, SPP 12-000138 ("Application"), "to develop a K to 12 charter school campus with dorm facilities, intergenerational programs, a sustainable agriculture program and a fore stry/conservation program." Record on Appeal ("ROA "), page ("p. -) 1, 15. Appellant's contrary arguments notwithstanding, the Commission is not merely a"rubberstamp," approving what other government agencies may or may not opine is a proper use of a Special Permit. Appellant is merely unhappy it will not see the development of a large school campus in a residential community. The authority explicitly delegated to the Commission under HRS § 205-6 (relating to Special Permits), HAR § 15-15-95 (regulations related to Special Permits), and Hawaii County Charter ("Charter") § 6-7.5 (relating to the duties and function of the Commission), is more than merely ministerial. The Commission is specifically tasked with determining whether Special Permit applications meet the required criteria. In the instant case, the record supports the Commission's denial of the Application. Accordingly,the Commission's decision should be affirmed. II. COUNTER-STATEMENT OFQUESTIONS PRESENTED FOR DECISION 1. Whether the Commission acted on proper authority when it considered the Application's consistency with the General Plan, where Charter § 6-7.5(a)(5) requires the Commission"[p]erform such other related duties and functions as may be necessary or required pursuant to law and this charter." 2. Whether the Commission acted on proper authority when it determined the Application did not meet Special Permit requirements, where HRS § 205-6 and HAR § 15-15-95 explicitly grant county planning commissions the authority to approve or deny Special Permit applications. 3. Whether the Commission correctly denied the Application when, in its discretion, there was substantial evidence on the record as a whole, weighing in favor of denial. III. STATEMENT OF FACTS CBESS and Connections (collectively. "Applicants") applied for a Special Permit to develop land leased from the State of Hawaii, and identified as TMK (3) 2-5-006,141 ("Property"), which covers 70.15 acres. ROA, pp. 1, 15. Applicants sought "to develop a K to 12 charter school campus with dorm facilities, intergenerational programs, a sustainable agriculture program and a forestry/conservation program." Id. The proposed [i]ntergenerational programs [would] provide childcare and elder care.'' ROA, p. 28. The Applicants were allowed no less than five public hearings and five days of contested case proceedings, within which to meet their burden to establish the Application met the criteria required for a Special Permit. ROA,pp. 1547, 1828, 2003, 2130, 2596, 2851, 3002, 3043, 3186, & 4261. The Hearings Officer determined the Applicants did not meet their burden. ROA, p. 4300. The Commission agreed and denied the Application. ROA,pp. 4300-15. 2 Applicants identified State and County plans affecting the Application as: HRS §§ 205 and 205A, the County of Hawaii ("County") General Plan, and County zoning ordinances. ROA, pp. 35, 43-52. The land is zoned Agricultural l-acre (A-la) with Land Study Bureau soil classification "D,"ROA, p. 25, and is located in Kaumana, South Hilo, ROA, p. 27. A Special Permit may be granted if the criteria required under HRS § 205-6 and Rule 6 of the Commission Rules are met. RDA, p. 4306, paragraph ("para. ') 35. Specifically, those criteria are: The Commission shall not approve a Special Permit unless it is found that the proposed use: (a) Is an unusual and reasonable use of land situated within the Agricultural or Rural District, whichever the case may be; and (b) Would promote the effectiveness and objectives of Chapter 205, Hawaii Revised Statutes, as amended. The Commission shall also consider the criteria listed under Section 6-3(b)(5)(A) through(G). Rule 6-7 of the Commission Rules.' Under Rule 6-3(b)(5) of the Commission Rules, "the following criteria shall also be addressed:" (A) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations; (B) The desired use shall not adversely affect surrounding properties; (C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and fire protection; (D) Unusual conditions, trends, and needs have arisen since the district boundaries and regulations were established; See Appendix A (Rule 6 of the Commission Rules). 3 (E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district; (F) The proposed use will not substantially alter or change the essential character of the land and the present use; and (G) The request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design Plans. At the time of the Application, Applicants acknowledged unresolved issues concerning their planned development ("Development"), "particularly with regards to infrastructure and engineering." ROA, p. 27. The Property "is bounded along much of its perimeter by residences on Kaumana Drive, Edita Street and Melemanu Street." ROA,p. 68. A concern consistently expressed is "increased traffic in the area and the use of Edita Street to access the campus." ROA, p. 42. There was considerable testimony and petitions were signed by surrounding residents, opposing the development. ROA,pp. 405-I1, 788-93, 819-22, 829-35, 841-42, 875- 76, 879-80, 1203, 1253, 1263-71, 1290, 1315-1417, and 1420-32. Among others, primary concerns related to traffic and quality of life of surrounding property owners. Id Despite its location within the 1880-1881 lava flow and resultant thinning of soils, "Much of the land surrounding the project site historically was used for intensive agricultural cultivation. Over time, some of these lands have been converted to residential use, although some agricultural uses remain." ROA, p. 121. Approximately 20 acres would be '-allocated for the agricultural/cultivation area." ROA,p. 74. Applicants envisioned their project to include cultivated crops such as "vegetables, taro, fruit trees, native plants, and ornamental plants." ROA, p. 72. When asked what would happen if the Application was denied, Applicants indicated, "Agriculture, Forestry Conservation, green houses, Hydroponics, etc, [sic]." ROA, pp. 970, 950. Applicants elaborated, 4 Well, we're not planning a traditional agricultural curriculum. What we're talking about is hydroponics, greenhouses, future, future-oriented agriculture. So while the land is not great land for traditional agriculture, the land is very similar to a lot of areas on this island where it is possible to develop sustainable agriculture using systems like hydroponic systems. ROA, p. 1.560. Applicants further explained that their plans to include a horse stable on the Property was part of the concept of sustainable agriculture stating, "horse manure is some of the best fertilizer that you can get for using in Hawaiian soils." ROA, p. 1.561. The Property would also house chickens, other fowl, and maybe goats. ROA, p. 1562. The former County Planning Director ("Former Director") acknowledged that the Application did not meet all the criteria for approval of Special Permit. ROA, p. 883. The Former Director noted the current character and present use of the subject property is undeveloped, vacant of structures and uses. The current character of the surrounding area is residential to the north and residential/agricultural to the south. The present use of the surrounding area is mainly residential with some agricultural activity and vacant land, The proposed school will alter or change the essential character of the land and its present use from its current undeveloped character. . . . ROA,p. 890 (emphasis added). On May 19, 2014, the Commission entered the County of Hawaii Windward Planning Commission's Findings of Fact, Conclusions of Law and Decision and Order ("D&O"), concluding that the Application did not meet the requirements for granting a Special Permit. ROA,pp. 4300-15. 5 IV. STANDARD OF REVIEW In reviewing an agency appeal, the Circuit Court applies the standards set forth in HRS § 91-14(g): Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are: (1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedure; or (4) Affected by other error of law; or (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. "Under HRS § 91-14(g), conclusions of law are reviewable under subsections (1), (2), and (4); questions regarding procedural defects are reviewable under subsection (3); [FOFs] are reviewable under subsection (5); and an agency's exercise of discretion is reviewable under subsection (6)." Paul v. Dep't of Transp., State of Hawai`r, 115 Haw. 416, 426, 168 P.3d 546, 556 (2007) (alteration in original, citations and internal quotation marks omitted). Therefore, an agency decision may be reversed only for very narrow and specific reasons. A conclusion of law is not binding upon an appellate court and is freely reviewable for its correctness under the right/wrong standard. Id. In reviewing findings of fact, under the clearly erroneous standard, "a reviewing court will not disturb agency findings and conclusions unless it is left, after examining the record, with a `definite and firm conviction that a mistake has been 6 made."'Aio v. Hamada, 66 Haw. 401, 406, 664 P.2d 727, 731 (1983) (citations omitted). "When mixed questions of law and fact are presented, an appellate court must give deference to the agency's expertise and experience in the particular field. `[T]he court should not substitute its own judgment for that of the agency."' In re Contested Case Hearing On the Water Use Permit Application Filed By Kukui (Molokai) Inc., 116 Haw. 481, 489, 174 P.3d 320, 328 (2007) (alteration in original, citations omitted). Furthermore, "a review of an agency's decision is always tempered by the precept that [i]n order to preserve the function of administrative agencies in discharging their delegated duties and the function of this court in reviewing agency determinations, a presumption of validity is accorded to decisions of administrative bodies acting within their sphere of expertise." Outdoor Circle v. Harold K.L. Castle Trust Estate, 4 Haw.App. 633, 639, 675 P.2d 784, 789 (1983) (citations omitted). "[O]ne seeking to upset the order bears `the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences."' Id (emphasis added and citations omitted). V. ARGUMENT The Commission acted within its authority when it considered the Application's consistency with the General Plan because the Charter requires the Commission to do so. Similarly, the Commission acted within its authority when it determined the Application did not meet Special Permit requirements because HRS § 205-6 and HAR § 15-15-95 explicitly grant the Commission the authority to approve or deny Special Permit applications. Ultimately, the Commission correctly exercised its discretion in denying the Application, as there was substantial evidence on the record as a whole, weighing in favor of such denial. 7 A. The Commission Acted Within Its Authority When It Considered The General Plan, As The Charter Authorizes It To Do So. Appellant argues that the Commission exceeded its authority when it considered the Application's consistency with the General Plan as a criterion for granting a Special Permit. OB, pp. 16-24. However, the Applicant is wrong. The General Plan is required by the Charter and passed by ordinance. Charter § 3-15.z If Appellant's argument were to stand, the Commission would be vested with authority to permit something contrary to the Charter and County Code; regardless of the Application's consistency with the General Plan. Clearly, Appellant's argument is untenable. Charter § 6-7.5 (relating to the duties and function of the Commission)3 affirmatively authorizes the Commission to consider the General Plan. Applicants conceded as much when it identified the General Plan as affecting the Application. ROA, pp. 35, 49-52, 1833.4 Appellant also argues that the Commission does not have the authority to interpret or enforce the General Plan. As with Appellant's argument regarding the Commission's interpretation of Special Permit criteria (discussed infra), Appellant does not elaborate upon just what constituted an impermissible interpretation by the Commission. 2 See Appendix B (Charter § 3-15 (General Plan)). 3 See Appendix C (Charter §§ 6-7.3 6-7.5). 4 Note, Applicants identified state and county plans affecting the Application as: HRS §§ 205 and 205A, the County's General Plan, and County zoning ordinances. ROA,pp. 35, 43-52. Accordingly, Applicants conceded that the Commission was authorized to consider the General Plan in its review of the Application. "`[T]he general rule that an appellate court will consider only such questions as were raised and reserved in the lower court applies on review by courts of administrative determinations so as to preclude from consideration questions or issues which were not raised in administrative proceedings."' Takahashi v. Tanaka, 10 Haw. App. 322, 329, 871 P.2d 796, 799 (1994) (quoting Waikiki Resort Hotel, Inc. v. City & Cnty. of Honolulu, 63 Haw. 222, 250, 624 P.2d 1353, 1372 (1981)). Thus Applicants have waived any argument that the Commission was not authorized to consider the General Plan. 8 The Commission is established under Charter § 6-7.3. The duties and functions of the Commission are governed by Charter § 6-7.5. Under § 6-7.5(c), the Commission, shall review and take action upon applications for land use changes and community development plans involving only property within their respective jurisdictions, other than those involving the general plan. If an application for a land use change or a community development plan includes land within the jurisdiction of both the windward planning commission and the leeward planning commission, the application shall be considered by both commissions meeting jointly and action shall require the affirmative vote of a majority of the combined membership of the two commissions. All amendments to the general plan or the adoption of a new general plan shall be considered by each planning commission, meeting separately, and each commission shall make its own recommendation to the council. Each planning commission, meeting separately, shall make its own recommendations to the council on changes to the subdivision and zoning codes and any other planning or land use matters which apply generally and not to a specific area. The planning director shall determine which commission shall take jurisdiction over any matters when not fully established by the charter. (Emphases added). Under the foregoing Charter section, the limitation on the Commission's ability to "take action" on applications "involving only property within their respective jurisdictions, other than those involving the general plan," is informed by the clause, "[a]ll amendments to the general plan or the adoption of a new general plan shall be considered by each planning commission, meeting separately, and each commission shall make its own recommendation to the council." Taken together, those clauses expand, not limit, the Commission's authority. The Commission has authority to act on"applications for land use changes . . . involving only property within their respective jurisdictions, other than those involving the general plan," because each County planning commission is authorized to consider "[a]ll amendments to the general plan or the adoption of a new general plan,"regardless of whether those amendments or new general plan involve property not "within their respective jurisdictions." (Emphases added). Each planning commission is tasked with "mak[ing] its own recommendation to the council." In 9 accord, § 6-7.5(a)(2) states that "[b]oth commissions shall . . . [r]eview the general plan, its amendments and other plans and modifications thereof and transmit such plans with recommendations thereon through the mayor to the council for consideration and action." There is no restriction on the Commission's ability to consider the General Plan when it considers an application for a Special Permit. To the contrary, other subsections of§ 6-7.5 affirmatively require the Commission to consider the General Plan in exercising its authority. Under § 6-7.5(x)(5), the Commission shall, "[p]erform such other related duties and functions as may be necessary or required pursuant to law and this charter." (Emphasis added). As required by the Charter, the General Plan was enacted by ordinance and therefore, is law. The primary function of the Hawaii County Council ("Council") is legislation and formulation of public policy. Charter § 3-1.' The Council may exercise its powers by ordinance. Charter § 2-2.6 The General Plan, ``which shall set forth the council's policy for long-range comprehensive physical development of the county," is adopted by ordinance. Charter § 3-15. "[Z]oning, subdivision, and such other ordinances . . . shall contain the necessary provision to carry out the purpose of the general plan." Charter § 3-15(a). Accordingly, "[n]o public improvement or project, or subdivision or zoning ordinance, shall be initiated or adopted unless the same conforms to and implements the general plan." Charter § 3-15(b). Simply put, the Commission cannot permit a development contrary to the General Plan. The Commission was clearly tasked with determining whether the Application was consistent with the General Plan. In the instant case, the Commission found that the Application was See Appendix D (Charter § 3-1 (Powers and Functions of the County Council)). 6 See Appendix E (Charter § 2-2 (Exercise of Powers)). 10 inconsistent with the General Plan.' Accordingly, the Commission correctly denied the Application as not having met the criteria required for granting a Special Permit. As such, the Commission's denial of the Application should be affirmed. B. The Commission Acted Within Its Authority When It Determined The Application Did Not Meet Special Permit Requirements. Appellant argues that the Commission does not have the authority to interpret HRS § 205-6, but that it could only "determinr [sic] whether the application is consistent with state law." OB, p. 49. Appellant confuses the Commission's action.8 The Commission merely did what it was required to do under HRS § 205-6 (specifically relating to Special Permits); that is, determine whether the Application met the § 205-6 criteria and was consistent with the enumerated "guidelines" for granting a Special Permit established under HAR § 15-15-95(c). Appellant wrongly asserts that "[b]y law, the State Office of Planning [("SOP")] is charged with determining whether Special Permit applications meet all State land use requirements . . . ." OB, p. 46. Such assertion is flatly inaccurate. HRS § 245-6(a) states. Subject to this section, the county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified. Any person who desires to use the person's land within an agricultural or rural district other than for an agricultural or rural use, as the case may be, may petition the planning commission of the ' As noted supra. Appellant does not specify what constituted impermissible interpretation by the Commission. Notwithstanding, to the extent the Commission can be said to have "interpreted"the General Plan, the Commission submits that it cannot determine consistency with the General Plan without understanding (i.e. interpreting) its provisions. As such, the Commission must be authorized to engage in interpretation thereof. 8 Nor does Appellant clearly allege just what constituted impermissible interpretation by the Commission. Alternatively, however, to the extent the Commission can be said to have "interpreted" HRS § 205-6, Appellant's argument reaches an absurd result-that the Commission can determine consistency with HRS § 205-6 without interpreting the broad statute and related regulations, which merely provide "guidelines." See HAR § 15-15-95(c) ("Certain `unusual and reasonable' uses within agricultural and rural districts other than those for which the district is classified may be permitted. The following guidelines are established in determining an `unusual and reasonable use' . . . ." (Emphasis added)). 11 county within which the person's land is located for permission to use the person's land in the manner desired. . . . (Emphases added). In addition, HRS § 205-6(c) states, "[t]he county planning commission may, under such protective restrictions as may be deemed necessary, permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter . . . ." (Emphases added). Correspondingly, the Land Use Commission Rules ("LUC Rules") identify the Commission as the body tasked with determining Special Permit applications. HAR § 15-15- 95(a) states, "[a]ny person who desires to use land within an agricultural or rural district for other than a permissible agricultural or rural use may petition the county planning commission of the county within which the land is located for a special permit to use the land in the manner desired . . . ." (Emphasis added). Concerning such petitions, involvement of the SOP relates to reviewing and commenting thereupon. See HAR § 15-15-95(b) ("The county shall assure that prior to the county hearing on the petition for special permit, copies of the special permit petition are forwarded to the land use commission, the state office of planning, and the department of agriculture for their review and comment."). Accordingly, it is incontrovertible that the Commission, not the SOP, is charged with determining whether Special Permit applications meet applicable criteria, which includes State land use requirements.9 In implementing HRS § 205-6, the LUC Rules reiterate that"[c]ertain `unusual and reasonable' uses within agricultural and rural districts other than those for which the district is 9 Appellant cites to HRS §§ 225M-2 and 226-53 as evidencing the SOP's authority to "determining whether Special Permit applications meet all State land use requirements." OB,p. 46-47. However, a review of the authorities cited does not establish the SOP's authority over individual Special Permit applications. 12 classified may be permitted," and provides "guidelines" for"determining an `unusual and reasonable use."' HAR § 15-15-95(c). The established guidelines are: (1) The use shall not be contrary to the objectives sought to be accomplished by chapters 205 and 205A, HRS, and the rules of the commission; (2) The proposed use would not adversely affect surrounding property; (3) The proposed use would not unreasonably burden public agencies to provide roads and streets, sewers, water drainage and school improvements, and police and fire protection; (4) Unusual conditions, trends, and needs have arisen since the district boundaries and rules were established; and (5) The land upon which the proposed use is sought is unsuited for the uses permitted within the district. HAR § 15-15-95(c). Appellant cites the SOP's letter dated October 3, 2012 ("SOP Comment Letter"), ROA, pp. 401-404, as interpreting HRS § 205-6 with regard to the Application, OB, pp. 46-50. However, the SOP Comment Letter is merely the result of the SOP's review of the Application, providing its comments pursuant to HAR § 15-15-95(b). In other words, the SOP Comment Letter provides the SOP's opinion of the Application under HAR § 15-15-95(c) guidelines. However, as discussed supra, the Commission alone is authorized to determine whether Special Permit applications meet guidelines.10 If the Commission were bound by the SOP's opinion, it would be relegated to the role of"rubberstamp" and the SOP would effectively usurp the authority explicitly granted to the Commission. Accordingly, the Commission acted within its to This is vis-a-vis the SOP or County Planning Director. As HAR § 15-15-95(b) indicates, "[s]pecial permits for areas greater than fifteen acres require approval of both the county planning commission and the commission." However, Land Use Commission ("LUC") approval is required only where the Special Permit is first approved by the county planning commission. See HRS § 205-6(e). Where a county planning commission determines that an application for Special Permit meets the required criteria, it will recommend approval by the LUC. Id. 13 authority when it determined the Application did not meet the requirements for granting a Special Permit pursuant to HRS § 245-6 and HAR § 15-15-95. Thus, the Commission's denial of the Application should be affirmed. C. The Commission Correctly Denied The Application Because Applicants Did Not Meet The Criteria Required For A Special Permit. Appellant asserts the Commission's findings of fact were clearly erroneous and its decision arbitrary and capricious. OB, pp. 24-46. However, the Commission considered the record as a whole. Determining whether the Application met the applicable criteria was a matter left to the Commission's sound discretion. Ultimately, the Commission correctly denied the Application in exercise of that discretion. Although certain land uses may be permitted under State Land Use law, county ordinances and regulations can be more restrictive. HAR § 15-15-23. In submitting its Application, Applicants were required to "comply with all of the rules of practice and procedure" of the Commission. HAR § 15-15-95(e). The criteria for granting a Special Permit are: The Commission shall not approve a Special Permit unless it is found that the proposed use: (a) Is an unusual and reasonable use of land situated within the Agricultural or Rural District, whichever the case may be; and (b) Would promote the effectiveness and objectives of Chapter 205, Hawaii Revised Statutes, as amended. The Commission shall also consider the criteria listed under Section 6-3(b)(5)(A) through (G). Rule 6-7 of the Commission Rules. Under Rule 6-3(b)(5) of the Commission Rules, "the following criteria shall also be addressed": 14 (A) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations; (B) The desired use shall not adversely affect surrounding properties; (C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and fire protection; (D) Unusual conditions, trends, and needs have arisen since the district boundaries and regulations were established; (E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district; (F) The proposed use will not substantially alter or change the essential character of the land and the present use; and (G) The request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design Plans. A plain reading of the foregoing criteria evinces the Commission's duty to consider the Application, and the consequences of its approval, as a whole. That is, no single criterion can be considered in a vacuum nor be the controlling factor in the Commission's decision to approve or deny the Application. Furthermore, Rule 6-7's incorporation of HAR § 15-15-95s broad guidelines and reference to, inter alfa, land use law objectives, adverse effects, consistency with the General Plan, and the burdening of infrastructure, highlights that the Commission must use its discretion in balancing the competing interests that inevitably accompany Special Permit applications. Ultimately, if the Application does not meet the required criteria, the Commission would exceed its authority if it approved it." 11 Contra Topliss v. Planning Comm'n, 9 Haw. App. 377, 392, 842 P.2d 648, 657 (1993) (On appeal from a denial of a Special Management Area Permit, the Intermediate Court of Appeals determined: Pursuant to HRS § 205A-26(2) (1985), development cannot be approved within an SMA unless findings are made that the development (A) will not have any substantial adverse environmental or ecological effect except, however, where the 15 1 1. The Commission's Findings Of Fact Were Not Clearly Erroneous, As There Was Substantial Evidence To Sunuort The Same. The record contains substantial evidence to support the Commission's findings, and the Commission's D&O unambiguously states its findings of basic facts, from which the Special Permit criteria were determined. "Substantial evidence' is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Hua v. Bd of Trustees of Employees'Ret. Sys., State of Hawai`i, 112 Haw. 292, 298, 145 P.3d 835, 841 (Ct. App. 2006) (quoting Troyer v. Adams, 102 Haw. 399, 410, 77 P.3d 83, 94 (2003)). In reviewing findings of fact under the clearly erroneous standard, "a reviewing court will not disturb agency findings and conclusions unless it is left, after examining the record, with a 'definite and firm conviction that a mistake has been made." 'Aio v. Hamada. 66 Haw. 401, 406, 664 P.2d 727, 731 (1983) (citations omitted). Importantly, courts decline to consider the weight of the evidence to ascertain whether it weighs in favor of the administrative findings, or to review the agency's findings of fact by passing upon the credibility of witnesses or conflicts in testimony, especially the findings of an expert agency dealing with a specialized field. In re Gray Line Hawaii Ltd., 93 Haw. 45, 53, 995 P.2d 776, 784 (2000) (internal citation omitted) (quoting In re Application of Hawaiian Elec. Co., Inc., 81 Haw. 459, 465, 918 P.2d 561, 567 (1996)). To be sufficient to support an order, findings of fact must include . . . the basic facts" from which the ultimate facts in terms of the statutory criterion are inferred. It is not necessary for the Commission to recite the evidence, and it is not necessary that it set out its findings in the formal style substantial adverse effect is practicably minimized and "clearly outweighed by public health, safety, or compelling public interests"; (B) is consistent with the objectives, policies, and SMA guidelines of the CZMA; and (C) is consistent with the county general plan and zoning. In our view, where a proposed development meets those statutory requisites, the Commission's denial of an SMAP would be in excess of its authority. (Emphasis added).). 16 and manner customary in trial courts. It is enough if the findings be unambiguously stated, whether in narrative or numbered form, so that it appears definitely upon what basic facts the Commission reached the ultimate facts and came to its decision. Hawaii Pub. Employment Relations Bd. v. United Pub. Workers, Local 646, AFSCME, AFL- CIO, 66 Haw. 461, 472, 667 P.2d 783, 791 (1983) (emphasis added, ellipsis in original) (quoting In Re Kauai Electric Division of Citizens Utility Co., 60 Haw. 166, 184, 590 P.2d 524, 537 (1978))- a. The Applicants' Desired Use Would Adversely Affect Surrounding Properties And Unreasonably Burden County Agencies. The Commission found that "Nased upon the testimony from surrounding and neighboring property owners, the Development will have an adverse effect on surrounding properties by creating noise, traffic, and impacting the quality of life of the adjoining residents. ROA, p. 4309, para. 46, D&O, p. 10, para. 46. In addition, Jm]easures proposed by Connections, regarding the establishment of building setbacks and roadway improvements to Edita Street do not appear to be sufficient to mitigate the overwhelming concerns raised by surrounding property owners. ROA,p. 4309,para. 47, D&O, p. 10,para. 47. Furthermore, there was "no evidence that Connections has the ability to develop a potable water source as a mitigating measure, previously proposed by the Director," and "the proposed use may unreasonably burden the County Department of Water Supply to provide water to the Development." ROA, p. 4309-10, para. 49 and 51, respectively, D&O, p. 10-11, para. 49 and 51. Quality of Life Concerns. Public input on land use decisions is essential and should be taken seriously. "Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest." HRS § 92-1. 17 Accordingly, one of the primary functions of the Commission is to "[c]onduct public hearings in every case prior to action on any matter upon which the commission is required by law or this charter to act." Charter § 6-7.5(a)(4). The public shall be allowed to present testimony in any public meeting. HRS § 92-3. In response to the Planning Department's request for comments, the Hawaii Police Department noted, Although the section fronting the proposed site is wide with a paved shoulder, the section of Edita Street from Kaumana Drive leading to this site has no pavement off of the travel portion of the roadway. The shoulder in this area is grass/muddy and not desirable for pedestrian traffic. This causes pedestrian traffic to walk on the roadway. If approved there will be an [sic] substantial increase in pedestrian traffic as a result of this project. That, combined with the lack of sidewalks in this area, will make it unsafe for pedestrian traffic. This proposed school is being placed in a residential area that will likely effect [sic] the quality of life for residents that border this proposed site. There will be an increase in noise, crime and traffic. RDA, p. 363. Importantly, there was considerable testimony and petitions were signed by surrounding residents, opposing the development. ROA,pp. 405-11, 788-93, 819-22, 829-35, 841-42, 875- 76, 879-80, 1203, 1253, 1263-71, 1290, 1315-1417, and 1420-32. Among others, primary concerns related to traffic and quality of life of surrounding residents. Id. Surrounding residents are best suited to providing substantial evidence as to negative or positive impacts. The record supports the overwhelming concern of surrounding property owners that the Development would negatively impact their quality of life. Id. The Commission's due consideration of such public 18 input should not be disregarded lightly as an effort to protect "a small, well-heeled community." See OB, p. 25 ("The Appellee Commission ignored the competent and probative evidence and denied the Special Permit request based on factors that were unsubstantiated and erroneous, such as water availability, traffic and the protection of a small, well-heeled community."). Here, impacts to quality of life would be "unwanted and unanticipated,"" as the record indicates such impacts were not specifically investigated. Traffic Concerns. Despite the TIAR, a concern consistently expressed was "increased traffic in the area and the use of Edita Street to access the campus." ROA, p. 42. Traffic safety was also concern. See e.g ROA,pp. 2610-11. The Former Director noted, [W]ithout the possibility of an access off of Puainako [Street] that it's very difficult to proceed with the project, even if you're talking about a, you know, 16 to 25 years buildout [sic]. And the reason is that you also have to assume over that 16 to 25 years that you have additional infill, that you have additional houses that come up off of Kaumana Drive. And so you've got to address, you know some of that. ROA. p. 1622-23. Additionally, despite recommending the Application be approved, the Former Director had substantial concerns about traffic impact of the Development, stating, I admit that I have significant concerns over traffic, and not the traffic at the intersection of Edita and Kaumana Drive. What the traffic study did not address is the traffic at the intersection of Ainako, Mohouli Extension and Kaumana Drive. And this is both from testimony of the public and the fact that I drive that road every morning to take my two children to, my two youngest to Hilo High. The traffic in fact does back up to Terrace. And if you were to add an additional 20, 30, 40, 50, 60 cars going up Kaumana Drive, dropping students off at the school, and then turning back around and going back down Kaumana Drive, what does that do to the timing of that intersection? And I don't know cause I don't have that information. 12 Appellee Commission notes that the definition of"adverse affect"has been referred to as "an unwanted and unanticipated result of taking a particular action." See e.g. OB, p. 41. Appellee Commission objects to such definition to the extent that no authority has been cited therefore, apart from the Planning Department proffering said definition. 19 And so I would probably want an additional condition of traffic impact analysis work to be done before any final determination by the Land Use Commission were done on this here. Based on the information that was provided and the way that we analyzed this, my recommendation is in favor, but it is not without reservations, it is not without grave concern. And it's the traffic on Kaumana Drive, not the traffic on Edita that I'm concerned with; and it's the lower down because we do have additional subdivisions and additional development coming up along Kaumana Drive. And the study does not really address the cumulative impact of all of that. It did what typically traffic studies do, is you look at the impact of the specific spot. But the problem is, is that it all funnels down to that intersection. And I don't have information on what kind of level of service it does, and whether you then have to widen Kaumana Drive at that intersection, whether you've got to adjust the traffic lights. And that becomes a significant cost. And who would do that? And I can't tell that from the TIAR. But at this moment I am not changing my recommendation. ROA, pp. 2039-40. More importantly, based in part on a traffic count conducted almost five years prior to the Commission's D&O entered on May 19, 2014, the Traffic Impact Analysis Report ("TIAR") was outdated. LUC Rule 15-15-95(b) requires. Special permits for areas greater than fifteen acres require approval of both the county planning commission and the commission. Special permits approved by the county planning commission and which require commission approval must be forwarded to the commission within sixty days following the county planning commission's decision. The county shall assure that prior to the county hearing on the petition for special permit, copies of the special permit petition are forwarded to the land use commission, the state office of planning, and the department of agriculture for their review and comment. The decision of the county planning commission recommending approval of the special permit, together with the complete record, including maps, charts, other exhibits and other evidence, and the complete transcript of the proceeding before the county planning commission must be transmitted to the commission. . . . Only if the Commission approved the Application, would it be forwarded to the LUC for approval. Id. In the instant case, it was within the Commission's discretion to weight the TIAR evidence accordingly, understanding that it may be too outdated for even the LUC. 20 Applicants' witness, Phillip Rowell, traffic engineer, completed the TIAR pertaining to the Development. ROA, p. 3055. The traffic count supporting the TIAR was conducted on only one day, Thursday, May 2$, 2009. ROA,p. 3063. "[T]he spring 2009 term for both University of Hawaii at Hilo and Hawaii Community College ended May 15, 2009, two weeks before [the] traffic count was done[.]'' ROA,p. 3064. "[T]he spring 2009 term for Kamehameha Schools Hawaii campus ended May 22nd, one week before [the] traffic count was done[.]" ROA,p. 3064. The TIAR concluded that "all traffic control movements at the intersection of Edita and Kaumana operated at level service A or B, point out that the minimum acceptable standard for an urban area is level service D." ROA,p. 3055. In responding to the concern that the TIAR was outdated, Rowell responded, A. First of all, it's not outdated. Right now it is the most current document we have. If we go — move forward with this project to the State Land Use Commission, it's been my experience that the Land Use Commission will require an updated traffic study because one, it's been four years since we did the traffic counts; and, two, the list of the related projects that we would use and the background forecasts needs to be updated. Q. And you had talked about four years going by since you did the traffic count. Based on your experience, is the length of time, in terms of the project from the submission of the final EA to the present, taken unusually Iong? A. Yes, Usually, we finalize the report within six months and move on to the Planning Commission hearing. That did not happen in this case for a number of reasons. ROA, pp. 30.57-58(emphases added). Rowell further testified that "typically, if the traffic counts and the data collections are two-years old, the State Land Use Commission will require us to update our traffic study." ROA, pp. 3058-59. In response to questioning from Intervenor-Appellee, Jeffrey Gomes, regarding other developments in the Kaumana area, Rowell noted, 21 And I think a traffic engineer transportation planner reviewing this report [(the TIAR)] would realize that the traffic study was done in 2009, would realize that the conclusions are not going to change, and that at some point, yes, the traffic study should be updated. And T think the appropriate and most likely place wbere that will occur is the State Land Use Commission will require an updated traffic study because of the time we did the study; and, thus, that simple. ROA, p. 3083. Notwithstanding that Applicants were agreeable to conditions to mitigate traffic concerns, the fact remains that the TIAR was outdated. Through no fault of their own, county agencies based their recommendations on the dated TIAR, because it was the most current document available. Regardless of Rowell's opinion as to the most appropriate body to consider an updated TIAR, there was no dispute that an updated TIAR would likely be required. If the LUC requires an updated TIAR, it should also be a concern for the Commission, as the threshold gatekeeper for Special Permit applications for areas greater than fifteen acres. Simply taking the current TIAR at face value and deferring review of an updated TIAR to the LUC would be unreasonable in view of the substantial public testimony concerning the Development's negative traffic impacts. Furthermore, the LUC could refuse to hear evidence not before the Commission.13 The result would likely he a remand to the Commission to consider an updated TIAR. Accordingly, the Commission properly considered that, Notwithstanding the findings of the TIAR and the recommendations of the Police Department and Department of Public Works, the area residents uniformly expressed concerns about the adverse traffic impact of the Development along Edita Street and Kaumana Drive. Also, residents objected that the TIAR was four years old and the traffic counts contained in the TIAR were taken when certain schools were not in session. ROA, p. 4304,para. 18, D&O,p. 5, para. 18. 13 "Upon determination by the [land use] commission, the petition may be remanded to the county planning commission for further proceedings." HAR § 15-15-96(a). 22 Ultimately, there remained significant questions regarding the Development's traffic effect on surrounding properties and the burden on public agencies. Applicants did not meet their burden to prove the Application met the criteria for Special Permits with regard to these considerations. Water Concerns. Applicants' witness, Kurt Inaba ("Inaba"), Engineering Division Head, Department of Water Supply ("DWS"), testified that if Connections used what it was allotted,14 diminished water pressure and availability to surrounding neighborhood homes shouldn't be a concern. RDA, pp. 2778-79. Applicants' witness, Dennis Hirota("Hirota"), Ph.D., president of Sam Hirota, Inc. (an engineering, surveying, and imaging firm), testified that the DWS "has the responsibility to continue to provide domestic potable water to the area."15 RDA,p. 2726. Applicants acknowledged, The campus plan shown in the Special Permit Application is conceptual in nature and represents the ultimate vision for the proposed campus. There currently are no plans to grow the school beyond what is represented in the application. Refined architectural design and detailed engineering studies and analyses are to be undertaken when the necessary land use entitlements are obtained. The Applicant is aware and understands that the DWS-allocation of potable water available to the subject property is limited to a maximum daily usage of 4,200 gpd, which ultimately may constrain the scope of the proposed project; however, this cannot be determined until further engineering analyses have been conducted. ROA,p. 1679 (emphases added). Clearly, Applicants were asking the Commission to decide whether to grant a Special Permit based on a conceptual plan. There is nothing unusual about such a request. However, the 14 Applicants' project, when fully built, is limited by DWS to 4,200 gallons per day. 15 In response to questioning, Hirota also acknowledged that he couldn't say how much rainfall would be required at the proposed Development site for a catchment system because more information was needed. ROA, p. 2 72 7. 23 precise issue is whether Applicants' conceptual plan, as submitted, complied with Rule 6-7 of the Commission Rules. Applicants also proposed, inter alfa, water efficient fixtures and water catchment systems to supplement DWS supplied water. ROA, pp. 1678-84. However, they conceded an additional source of potable water may be needed to realize full build-out of the school, but "a definitive solution is not immediately evident." ROA,p. 1680. They also recognized the possibility that they might not ultimately be able to procure additional potable water. ROA, p. 1861. "The county planning commission may impose such protective conditions as it deems necessary in the issuance of a special permit." HAR § 15-15-95(f) (emphasis added). In the instant case, Applicants argue that proposed conditions would have taken care of any concerns raised. The Commission was clearly concerned with the Applicants' ability to sufficiently supply potable water. The proposed Development would be completed in stages and conditions could be imposed. However, it was the Commission's responsibility to determine adverse impact to surrounding properties and any unreasonable burden on county agencies to provide water, based on the Application actually presented to it. Otherwise, any application for a Special Permit could feasibly be granted, as long as conditions were imposed, despite no clarity as to how requirements would actually be met, at the time the Commission rendered its decision.16 This would improperly reduce the Special Permit process to a mere formality. 16 Furthermore, Applicants suggest, "[i]f additional potable water cannot be procured, campus development will not exceed that which can be sustained by the 4,200-gpd allotment." ROA, p. 1681. Such an if-then justification only highlights the flaw in the Application. Applicants effectively asked the Commission to grant the Application partially based on a hypothetical scenario. However, such a scenario would necessarily be accompanied by attendant facts and circumstances not before the Commission at the time it rendered its decision on the Application actually before it. 24 Accordingly, the Commission found, "Connections has proposed using water efficient fixtures and supplementing the available County water with either a catchment system for non- potable water or developing an additional water source. However, Connections has not produced any evidence to demonstrate that it has or can develop sufficient water for the Development." ROA, p. 4304, para. 22, D&O, p. 5, para. 22 (emphasis added). in light of this finding, it is clear the Applicants did not sufficiently meet the Commission's concerns. It was Applicants' burden to prove that it could develop sufficient water for the Development, regardless of any proposed conditions. Applicants did not meet their burden. b. The Land Upon Which The Proposed Use Is Sought Is Suited For Agriculture. The Commission found that "JAhe Land Study Bureau soil classification rating for the Property is D' or 'Poor,' which suggests that the land may be unsuited for agricultural uses." ROA, p. -1310, para. 53, D&O. p. 11, para. 53. Also, "Connections is proposing to maintain the upper portion or nearly one-half of the Property for forestry use. in addition, Connections is proposing to construct greenhouses on the Property and conduct an agricultural program in conjunction with its curriculum." ROA, p. 4310, para. 54, D&O, p. 11, para. 54. The Commission concluded, "[b]ased upon the representations of Connections, it cannot be found that the Property is unsuited for agricultural uses." ROA, p. 4310, para. 55, D&O, p. 11, para. 55. As noted supra, one of the criteria for granting a Special Permit is, "the land upon which the proposed use is sought is unsuited for the uses permitted within the district." Rule 6- 3(b)(5)(E) of the Commission Rules. Examples of permitted uses within the agricultural district include: 25 (1) Cultivation of crops, including crops for bioenergy, flowers, vegetables, foliage, fruits, forage, and timber; (2) Game and fish propagation; (3) Raising of livestock, including poultry, bees, fish, or other animal or aquatic life that are propagated for economic or personal use; HRS § 205-4.5(a). Additionally, agricultural districts shall include: (1) Activities or uses as characterized by the cultivation of crops, crops for bioenergy, orchards, forage, and forestry; (2) Farming activities or uses related to animal husbandry and game and fish propagation; (3) Aquaculture, which means the production of aquatic plant and animal life within ponds and other bodies of water; HRS § 205-2(d). Finally, permitted uses in agricultural districts under Hawaii County Code 1983 (2005 Edition, as amended) ('-HCC'') include: (5) Aquaculture. (6) Botanical gardens, nurseries and greenhouses, seed farms, plant experimental stations, arboretums, floriculture, and similar uses dealing with the growing of plants. (9) Crop production. (13) Forestry. (14) Game and fish propagation. 26 HCC § 25-5-72(a)." The record is clear that Connections intended using the Property for, at least, some of the aforementioned purposes. Agriculture is "a big component" of Connections' curriculum. ROA, p. 2650. There would also be a forestry conservation program. ROA, P. 2652. Approximately 20 acres would be "allocated for the agricultural/cultivation area" RDA, p. 74. Applicants envisioned their project to include cultivated crops such as "vegetables, taro, fruit trees, native plants, and ornamental plants." ROA,p. 72. When asked what would happen if the Application was denied, Applicants indicated, "Agriculture, Forestry Conservation, green houses, Hydroponics etc, [sic]."ROA, pp. 970, 950. Applicants elaborated, Well, we're not planning a traditional agricultural curriculum. What we're talking about is hydroponics, greenhouses, future, future-oriented agriculture. So while the land is not great land for traditional agriculture, the land is very similar to a lot of areas on this island where it is possible to develop sustainable agriculture using systems like hydroponic systems. ROA, p. 1560. Connections' principal, John Thatcher, testified Well, I think what we are finding over the years is that agriculture is evolving away from the old model of everything goes in the ground plantation-style, and there is a lot more use of hydroponics, aquaponics, greenhouses, shadehouses. Most of the area, except for towards the bottom where the river is, is pretty solid pahoehoe foundation; and so the agriculture that would go on there would be similar to many of the areas where our kids come from, especially in Puna, where there is a limited soil. And people that are farming in that area need to use alternative methods, and the alternative methods are proving to be way more productive than the old methods with. you know, problems with contamination of soil and things like that. It's a more futuristic way of doing agriculture. ROA,pp. 26.50-51. Applicants further explained that their plans to include a horse stable on the Property was part of the concept of sustainable agriculture stating, "horse manure is some of the best fertilizer 17 See Appendix F (HCC § 25-5-72). 27 that you can get for using in Hawaiian soils." ROA, p. 1561. The Property would also house chickens, other fowl, and maybe goats. ROA, p. 1562. Whether Connections' intended agricultural uses were part and parcel of an agricultural educational program is immaterial. Connections' determined the Property was suited for its agricultural program. Whether the intended agriculture would be "traditional" or"future- oriented," is also immaterial. At a minimum, the program intended agricultural activity. Accordingly, the Commission correctly determined by Connections' own admissions, "it cannot be found that the Property is unsuited for agricultural uses." RDA, p. 4310, para. 55, D&O, p. 11, para. 55. C. Applicants' Proposed Use Would Substantially Alter Or Change The Essential Character Of The Land And The Present Use. The Commission found, "[t]he Property is presently a forest and is vacant of any structures. The lower half of the Property will be converted into a school with classrooms. dormitories, a gymnasium cafeteria and parking lots." ROA. p. 4310, para. 56, D&O, p. 11, para. 56. In addition, "[tjhe Development of a school will change the essential character of the forested land and its undeveloped use." ROA, p. 4310, para. 57, D&O, p. 11, para 57. The Planning Department noted, current character and present use of the subject property is undeveloped, vacant of structures and uses. The current character of the surrounding area is residential to the north and residential/agricultural to the south. The present use of the surrounding area is mainly residential with some agricultural activity and vacant land. The proposed school will alter or change the essential character of the land and its present use from its current undeveloped character. The applicant has proposed to construct the buildings as single story structures, similar to the surrounding residential community, to help minimize the change to the essential character of the land. The applicant is encouraged to design the campus to match the surrounding rural character rather than having an institutional character typical of a public school campus. 28 ROA, p. 890 (emphasis added). The Application clearly did not meet the Special Permit criterion- '"[t]he proposed use will not substantially alter or change the essential character of the land and the present use." Rule 6-3(b)(5)(F) of the Commission Rules. Accordingly, the Commission correctly found, It]he Development of a school will change the essential character of the forested land and its undeveloped use,"regardless of any mitigative measures that may be imposed. ROA, p, 4310, para. S7, D&O,p. 11,para. S7. d. Applicants' Request Is Contrary To The General Plan. As discussed supra, the Commission alone is tasked with determining an application for Special Permit's consistency with the General Plan. In the instant case, the Commission found: 60. The Economic, Public Facilities and Land Use elements of the County General Plan all require consideration of social and community concerns as follows: Economic Element - Goal "Provide an economic environment that allows new, expanded, or improved economic opportunities that are compatible with the County's cultural, natural and social environment." Public Facilities Element - Goal "Encourage the Provision of public facilities that effectively service the community and visitor needs and seek ways of improving public service through better and more functional facilities in keeping with the environmental and aesthetic concerns of the community." Land Use Element - Policy "Encourage the development and maintenance of communities meeting the needs of its residents in balance with the physical and social environments." 29 61. The evidence has established significant concerns from the community regarding the compatibility of the Development with the surrounding community. ROA,pp. 4310-11, D&O,pp. 11-12. The Commission concluded, "[t]he Development is not consistent with the County General Plan, particularly as to the impacts on the immediate community." ROA, p. 4312,para. 5, D&O,p. 13,para. 5. In Iight of the concerns discussed supra, it was within the Commission's authority and discretion to conclude the Application was inconsistent with the General plan. Accordingly, the Commission correctly denied the Application. 2. Denying The Application Was A Proper Exercise Of The Commission's Discretion. An agency's exercise of discretion is reviewable pursuant to HRS § 91-14(g)(6).'8 In the instant case, the criteria for granting Special Permits under HRS § 205-6 requires the Commission's application of broad statutory language and "guidelines." "[G]uidelines presuppose the exercise of discretion . . . ." Save Sunset Beach Coal. v. City & C'nty. of Honolulu, 102 Haw. 465, 479, 78 P.3d 1, 15 (2003). Importantly, "judicial deference to agency expertise is a guiding precept where the interpretation and application of broad or ambiguous statutory language by an administrative tribunal are the subject of review." Government Employees Ins. Co. v. Hyman, 90 Haw, 1, 5, 975 P.2d 211, 215 (1999) (quotation marks omitted) (quoting Richard v. Metcalf, 82 Haw. 249, 252, 921 P.2d 169, 172 (1996)(overruled on other grounds)). Moreover, [d]iscretion denotes the absence of a hard and fast rule. When invoked as a guide to judicial action it means a sound discretion, exercised not arbitrarily or wilfully, 18 A reviewing court may affirm, remand, reverse, or modify an agency's decision if it is "[a]rbitrary, or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." 30 but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result. Ariyoshi v. Hawaii Pub. Employment Relations Bd., 5 Haw. App. 533, 541-42, 704 P.2d 917, 924-25 (1985) (quoting In re Chow, 3 Haw.App. 577, 586, 656 P.2d 105, 112 (1982)). Additionally, [t]he essence of judicial discretion is the exercise of judgment directed by conscience and reason, as opposed to capricious or arbitrary action; . . . the question is not whether the reviewing court agrees with the court below, but rather whether it believes that the judicial mind in view of the relevant rules of law and upon due consideration of the facts of the case could reasonably have reached the conclusion of which complaint is made. In a legal sense discretion is abused whenever in the exercise of its discretion the court exceeds the bounds of reason, all of the circumstances before it being considered. Id. at 542, 704 P.2d 917, 925 (ellipsis in original, emphasis added, and internal citations omitted) (quoting State v. Tominaga, 45 Haw. 604, 614, 372 P.2d 356, 362 (1962)). Accordingly, the Commission is afforded deference in the exercise of its discretion. The record reflects competing evidence as to the Appellant's challenged findings of fact. Importantly, courts decline to consider the weight of the evidence to ascertain whether it weighs in favor of the administrative findings, or to review the agency's findings of fact by passing upon the credibility of witnesses or conflicts in testimony, especially the findings of an expert agency dealing with a specialized field. In re Gray Line Hawaii Ltd., 93 Haw. 45, 53, 995 P.2d 776, 784 (2000) (internal citation omitted) (quoting In re Application of'Hawaiian Elec. Co., Inc., 81 Haw. 459, 465, 918 P.2d 561, 567 (1996)). Simply because the D&O does not recite competing evidence, does not mean the Commission disregarded it. The Commission is not required to recite the evidence. The issue is whether the record reflects substantial evidence that support the Commission's findings. As 31 discussed supra-it does. It was squarely within the Commission's discretion to weigh competing evidence in determining whether Special Permit criteria were met, all circumstances before it being considered. The Commission determined the evidence on record weighed in favor of denying the Application. Ultimately, the Commission's findings of fact support its discretionary decision to deny the Application. VI. CONCLUSION Appellant has not met its heavy burden to prove the presumptively valid agency decision appealed from should be overturned or remanded for further proceedings. The Commission objects to Appellant's assignments of error. But assuming, arguendo, some findings were clearly erroneous, the record nevertheless supports denial of the Application since the denial was a proper exercise of the Commission's discretion. Accordingly, the Commission's denial of the Application should be affirmed and the Appellant's claims denied in full. Dated: Hilo, Hawaii, m(oak 13, M6 Respectfully submitted, By --- DANNY Kr. PA L Deputy Cbrjxdation Counsel County of Hawaii 32 APPENDICES A. Appendix A (Rule 6 of the Commission Rules). B. Appendix B (Charter § 3-15 (General Plan)). C. Appendix C (Charter §§ 6-7.3 —6-7.5). D. Appendix D (Charter § 3-1 (Powers and Functions of the County Council)). E. Appendix E (Charter § 2-2 (Exercise of Powers)). F. Appendix F (HCC § 25-5-72). RULE 6. SPECIAL PERMITS 6-1 Authori This rule governs special permit procedures pursuant to authority conferred by Chapter 245-6, Hawaii Revised Statutes, as amended. 6-2 Standing to Submit a Petition for a Special Permit Any person who desires to use its land within a State Land Use agricultural or rural district other than for an agricultural or rural use may petition the Commission for permission to use its land in the manner desired. 6-3 Petition and Content A petition for a Special Permit shall be filed with the Commission's office and shall include the following: (a) Non-refundable filing and processing fee of five hundred dollars. (b) Original and twenty copies of: (1) Application form; (2) Description of the property in sufficient detail to determine its precise location; (3) A plot or site plan of the property, drawn to scale, with all existing and proposed uses and/or structures shown thereon; (4) Building elevations, if required, of the proposed structures; (5) A statement of the reasons for the granting of the Special Permit citing how the proposed use would promote the effectiveness and objectives of Chapter 245,HRS, and why the proposal is an unusual and reasonable use of the land. The following criteria shall also be addressed: (A) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations; (B) The desired use shall not adversely affect surrounding properties; (C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and fire protection; (D) Unusual conditions, trends, and needs have arisen since the district boundaries and regulations were established; 6-1 Appendix A (E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district; (F) The proposed use will not substantially alter or change the essential character of the land and the present use; and (G) The request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design Plans. (c) A copy of full-size site plan and/or elevations of the proposed structure(s), a minimum of 2 feet by 3 feet in dimension, drawn to scale. The site plan should include property lines,reference points (roadways, shoreline, etc.), and existing and proposed structures and uses. (d) A certificate of clearance from the County Director of Finance stating that the real property taxes and all other fees relating to the subject parcels) have been paid, and that there are no outstanding delinquencies. 6-4 Incomplete Application The Commission, through the Planning Department, shall neither accept nor process an application which is incomplete as to form and content. 6-5 Posting of Signs for Public Notification (a) Within ten days of being notified of the acceptance of an application, the applicant shall post a sign on the subject property notifying the public of the following: (1) The nature of the application; (2) The proposed use of the property; (3) The size of the property; (4) The tax map key(s)of the property; (5) That the public may contact the planning department for additional information; and (6) The address and telephone number of the planning department. (b) The sign shall remain posted until the application has been granted, denied, or withdrawn. The applicant shall remove the sign promptly after such action. (c) Notwithstanding any other provisions of law,the sign shall not be less than nine square feet and not more than twelve square feet in area, with letters not less than 6-2 Appendix A con't one inch high. No pictures, drawings, or promotional materials shall be permitted on the sign. The sign shall be posted at or near the property boundary adjacent to a public road bordering the property and shall be readable from said public road. If more than one public road borders the property, the applicant shall post the sign to be visible from the more heavily traveled public road. The sign shall, in all other respects, be in compliance with Chapter 3 (signs) Hawaii County Code 1983 (2005 edition). (d) The applicant shall file an affidavit with the planning department not more than five days after posting the sign stating that a sign has been posted in compliance with this section, and that the applicant and its agents will not remove the sign until the application has been granted, denied, or withdrawn. A photograph of the sign in place shall accompany the affidavit. 6-6 Public Hearing (a) The Commission shall conduct a public hearing within a period of ninety days from the date of acceptance of a complete application. (b) Promptly after the Commission's fixing a date for the public hearing,the applicant shall mail a notice of the application and hearing to owners of interests in properties within five hundred feet of the perimeter boundary of the affected property and to owners of interests in other properties which the Planning Commission may find to be directly affected by the proposed request. Such notice shall state: (1) Name of the applicant; (2) Precise location of the property involved; (3) Nature of the proposed use; and (4) Date, time, and place of the hearing. (c) Prior to the date of the hearing,the applicant shall file with the Commission, an affidavit or other similar proof of mailing of said notice. The Commission shall not conduct a hearing if this requirement has not been complied with. (d) In addition to said notice and at least ten days prior to the date of the hearing, the Commission shall publish notice of the hearing in a newspaper of general circulation in the County which includes the information provided under Section 6-6(b)(1-4) of this rule. (e) For each hearing continued at the request of the applicant, the applicant shall serve notice of the hearing on surrounding property owners and lessees of record as provided by Section 6-6(b). An additional two hundred fifty dollar processing fee shall be submitted by the applicant for each hearing continued at the request of the applicant. 6-3 Appendix A can't 6-7 Grounds for Special Permit The Commission shall not approve a Special Permit unless it is found that the proposed use: (a) Is an unusual and reasonable use of land situated within the Agricultural or Rural District, whichever the case may be; and (b) Would promote the effectiveness and objectives of Chapter 245, Hawaii Revised Statutes, as amended. The Commission shall also consider the criteria listed under Section 6.3(b)(5)(A) through (G). 6-8 Action Within thirty days after the close of the hearing or within a longer period as may be agreed to by the applicant, the Commission shall: (a) For a Special Permit involving fifteen acres of land or less, approve it by stating the reasons and attaching appropriate performance conditions; or (b) For a Special Permit involving greater than fifteen acres of land, recommend approval to the State Land Use Commission by stating the reasons and attaching appropriate performance conditions; or (c) Deny it by stating the reasons. An application recommended for approval to the State Land Use Commission shall be forwarded within sixty days after the decision is rendered by the Commission. 6-9 Amendments of Permit or Conditions (a) The applicant may apply to the Commission through the Planning Department for an amendment to the permit or condition(s) imposed. (b) In the case of time extensions,the applicant shall file the request not less than ninety days prior to the expiration date of the time conditions, setting forth: (1) The affected condition; (2) The length of time requested; and (3) The reasons for the request. If the Commission is not able to act on a properly filed time extension request prior to the expiration date, the use granted under the Special Permit may be 6-4 Appendix A con't continued, unless the Commission specifically disallows the activity during the interim period. (c) In the case of additions, modifications, and/or deletions of conditions; or the original permit granted, the applicant shall set forth in writing: (1) The affected condition; (2) The specific amendment requested; and (3) The reasons for the request. (d) The applicant shall also file a two hundred fifty dollar processing fee, along with the original and twenty copies of the request. (e) The hearing and notice procedures and action shall be the same as under Sections 6-6 and 6-8 of this rule, provided further that the Commission shall conduct a hearing within a period of ninety days from the date of receipt of a properly filed request, or within a longer period as may be agreed to by the Commission. 6-10 Appeals The Commission's decision is appealable to the Third Circuit Court. 6-5 Appendix A con't council and the council may, after five and within thirty days after the bill has been so returned, reconsider the vote upon the bill. If the bill, upon such reconsideration, is again passed by the affirmative vote of two-thirds of the entire membership the presiding officer shall verify that fact on the face of the bill and such bill shall become effective as an ordinance with like effect as if approved by the mayor. A bill failing to pass upon such reconsideration shall be deemed lost. If any appropriation bill is presented to the mayor, the mayor may veto any item or portion thereof by striking out or reducing the same. The mayor shall append any objections and the reasons therefor to the bill at the time of signing, and the item or portion thereof so vetoed shall not take effect unless the council shall reconsider the vote on the bill and, upon such reconsideration, the bill is again passed by the affirmative vote of two-thirds of the entire membership. (1990, Prop. 14, sec. 1) Section 3-13. Adoption of Pay Plan. All persons employed by the county or any of its boards or commissions, whether as officers or otherwise, except those whose pay is otherwise provided for shall be paid in accordance with a pay plan enacted by ordinance. The pay plan for persons holding positions in the position-classification plan shall be in accordance with Section 7-1.5 of this charter. Interim amendments to the ordinance establishing the pay plan for the county may be by resolution of the council provided a revised salary ordinance is enacted at least once annually. Section 3-14. County Code. There shall be a county code containing all county ordinances, as may be amended from time to time, and copies thereof shall be available for inspection at the office of the county clerk. (1979, Prop. 13.) Section 3-15. General Plan. The county council shall adopt by ordinance a general plan which shall set forth the council's policy for long-range comprehensive physical development of the county. It shall contain a statement of development objectives, standards and principles with respect to the most desirable use of land within the county for residential, recreational, agricultural, commercial, industrial and other purposes which shall be consistent with proper conservation of natural resources and the preservation of our natural beauty and historical sites; the most desirable density of population in the several parts of the county; a system of principal thoroughfares, highways, streets, public access to the shorelines, and other open spaces; the general locations, relocations and improvement of public buildings, the general location and extent of public utilities and terminals, whether publicly or privately owned, for water, sewers, light, power, transit, and other purposes; the extent and location of public housing projects; adequate drainage facilities and control; air pollution; and such other matter as may, in the council's judgment, be beneficial to the social, economic, and governmental conditions and trends and shall be designed to assure the coordinated development of the county and to promote the general welfare and prosperity of its people. (a) The council shall enact zoning, subdivision, and such other ordinances which shall contain the necessary provisions to carry out the purpose of the general plan. (b) No public improvement or project, or subdivision or zoning ordinance, shall be initiated or adopted Unless the same conforms to and implements the general plan. 6 Appendix B (c) Amendments to the general plan may be initiated by the council or the planning director. (1979, Prop. 3.) Section 3-16. Mandatory Program Review. At least once every four years, the council shall critically review every program supported wholly or partially by county funds, and unless the council shall favorably authorize its continuation at current or modified levels, the program shall be terminated. The council shall adopt procedures and details to implement this section. (1979, Prop. 4,) Section 3-17. County Redistricting Commission. (a) There shall be a county redistricting commission which shall establish the boundaries of the council districts. (b) The initial redistricting commission shall consist of seven members, two of whom shall be residents of the combined judicial districts of North and South Hilo, one from the judicial district of Puna, one from the judicial district of Ka`u, one from the combined judicial districts of North and South Kona, one from the combined judicial districts of North and South Kohala, and one from the judicial district of Hamakua. The members shall be appointed by the mayor and confirmed by the council in the manner prescribed in Section 13-4. (c) Each subsequent redistricting commission shall consist of nine members. One member shall be a resident of each council district as established by the previous redistricting commission. The members shall be appointed by the mayor and confirmed by the council in the manner prescribed in Section 13-4. (d) The year 1991 and every tenth year thereafter shall be redistricting years. The redistricting commission shall be appointed and confirmed by July 1 of the year immediately preceding the redistricting year, and shall file a redistricting plan with the county clerk by December 31 of the redistricting year. A report shall be filed with the redistricting plan providing an explanation of the commission's reasoning for the plan and how the plan complies with the criteria provided in subsection (g). The redistricting commission shall be dissolved after the filing of the redistricting plan. (e) Prior to completing a draft of the redistricting plan, the commission shall hold at least one public hearing in each of the nine council districts. Upon completion of a draft redistricting plan, the commission shall hold at least one public hearing in east Hawaii and one in west Hawaii. (f) The county clerk shall furnish all necessary technical and secretarial services for the redistricting commission. The council shall appropriate necessary funds to enable the commission to carry out its duties. (g) The redistricting commission shall adhere to the following criteria in establishing the boundaries of the council districts: (1) No district shall be drawn to unduly favor or penalize a person or political faction; (2) Insofar as possible, districts should be contiguous and compact; (3) District lines shall, where possible, follow permanent and easily recognizable features; (4) Districts shall have approximately equal resident populations as required by applicable constitutional provisions. 7 Appendix B con't (8) Render decisions on proposed variances pursuant to law, except that, if any written objections are made to the planning director's actions under this section, said actions shall be subject to review by the board of appeals in accordance with Section 6-9.2, unless otherwise provided by law or this charter. (9) Perform such other related duties and functions as may be necessary or required pursuant to law and this charter. (1979, Prop. 5; 1979, Prop. 12; 1979, Prop. 13; 1998; Ord. No. 98-83, sec. 2; 2000, Prop. 2, sec, l; 2000, Prop. 7, sec. 2;2008, Ord.No. 08-01,sec. 3; 2010, Prop. 7, sec. 18.) Section 6-7.3. Windward Planning Commission. (a) There is established a windward planning commission that shall have jurisdiction over the area consisting of the judicial districts of Puna, South Hilo, North Hilo, Hamakua, and Ka`u. (b) There shall be seven members on this commission. The commission shall include one member from each of the judicial districts of Puna, South Hilo, North HilolHamakua combined, and Ka`u and three "at-large" members selected from these districts. Not more than two members, appointed from any one judicial district, shall serve on the windward planning commission. (c) The members shall be appointed by the mayor and confirmed by the council in the manner prescribed in Section 13-4. Each member representing a district shall be a legal resident and registered voter of that district. In addition, the director of public works and the manager of the department of water supply, or their designated representatives, shall serve as ex-officio members of the windward planning commission, without power to vote. (2008, Ord.No. 08-01, sec. 5; 2010, Prop. 7,sec. 19) Section 6-7.4. Leeward Planning Commission. (a) There is established a leeward planning commission that shall have jurisdiction over the area consisting of the judicial districts of North Kohala, South Kohala, North Kona, and South Kona. (b) There shall be seven members on this commission. The commission shall include one member from each of the judicial districts of North Kohala, South Kohala, North Kona and South Kona and three "at-large" members selected from these districts. Not more than two members, appointed from any one judicial district, shall serve on the leeward planning commission. (c) The members shall be appointed by the mayor and confirmed by the council in the manner prescribed in Section 13-4. Each member representing a district shall be a legal resident and registered voter of that district. In addition, the director of public works and the manager of the department of water supply, or their designated representatives, shall serve as ex-officio members of the leeward planning commission, without power to vote. (2008,Ord. No. 08-01, sec. 5; 2010, Prop. 7, sec. 20.) Section 6-7.5. Duties and Functions of the Windward and Leeward Planning Commissions. (a) Both commissions shall: (1) Advise the mayor, council and the planning director on planning and land use matters pursuant to law and this charter. 19 Appendix C (2) Review the general plan, its amendments and other plans and modifications thereof and transmit such plans with recommendations thereon through the mayor to the council for consideration and action. (3) Review proposed subdivision and zoning ordinances and amendments thereto and transmit such ordinances with recommendations thereon through the mayor to the council for consideration and action. (4) Conduct public hearings in every case prior to action on any matter upon which the commission is required by law or this charter to act. Notice of the time and place of the hearing shall be published at least ten days prior to such gearing in at least two daily newspapers of general circulation in the county and shall also be distributed via an electronic medium, such as the Internet. (5) Perform such other related duties and functions as may be necessary or required pursuant to law and this charter. (b) A uniform body of rules of practice and procedure, except for meeting places and times, shall apply to both commissions. Uniform rules of practice and procedure shall be adopted by a majority vote of the combined membership of the windward planning commission and the leeward planning commission, meeting jointly. The existing rules of practice and procedure of the Hawaii county planning commission, except for meeting places, shall apply to both commissions until the new uniform rules of practice and procedure are adopted. (c) Each planning commission shall review and take action upon applications for land use changes and community development plans involving only property within their respective jurisdictions, other than those involving the general plan. If an application for a land use change or a community development plan includes land within the jurisdiction of both the windward planning commission and the leeward planning commission, the application shall be considered by both commissions meeting jointly and action shall require the affirmative vote of a majority of the combined membership of the two commissions. All amendments to the general plan or the adoption of a new general plan shall be considered by each planning commission, meeting separately, and each commission shall make its own recommendation to the council. Each planning commission, meeting separately, shall make its own recommendations to the council on changes to the subdivision and zoning codes and any other planning or land use matters which apply generally and not to a specific area. The planning director shall determine which commission shall take jurisdiction over any matters when not fully established by the charter. (2008, Ord. No. 08-01, sec. 5; 2010, prop. 7, sec. 21;2010, Prop. 19, sec. 3.) Section 6-7.6. Transitional Provisions. (a) The existing planning commission shall remain in effect and continue to hear and decide matters pursuant to Section 6-7.3, Hawaii County Charter (2000), until April 1, 2009, the date upon which the windward planning commission and the leeward planning commission becomes effective. Matters pending before the existing planning commission that are not finally decided by April 1, 2009, will be transferred to the windward or leeward planning commissions, as appropriate to be finalized. 20 Appendix C con't I ARTICLE I INCORPORATION AND GEOGRAPHICAL LIMITS Section 1-1. Incorporation. The people of the county of Hawaii shall be and continue as a body politic and corporate by the name of"County of Hawai`i," hereinafter in this charter called "county." By that name it shall have perpetual succession. (2010, Prop. 7, sec. 2.) Section 1-2. Geographical Limits. The island of Hawaii and all other islands within the shores thereof and the waters adjacent thereto shall be the county of Hawai`i. (2010, Prop. 7, sec. 2.) ARTICLE 11 POWERS OF THE COUNTY Section 2-1. Powers of the County. The county shall have all powers possible under the constitution and laws of the State of Hawaii, including all powers now or hereafter given by such constitution or laws, and all other powers not prohibited by such constitution or by this charter. The county shall have such powers as fully and completely as though specifically enumerated in this charter, and no enumeration of powers in this charter shall be deemed exclusive or restrictive. (2010, Prop. 7, sec. 3.) Section 2-2. Exercise of Powers. All powers of the county shall be carried into execution as provided by this charter or, if the charter makes no provision, by ordinance or resolution of the county council. ARTICLE III LEGISLATIVE BRANCH COUNTY COUNCIL Section 3-1. Powers and Functions. The legislative powers of the county shall be vested in the county council. Its primary function shall be legislation and public policy formulation, as distinct and separate from the executive administration of county government. Section 3-2. Composition and Terms. There shall be a county council composed of nine members. One member shall be elected from each of nine districts. The terms of the council members shall be two years and shall begin at twelve o'clock meridian on the first Monday of December after their election. The terms of the council members shall not exceed four consecutive two year terms. Candidates shall be elected in accordance with the election laws of the state, insofar as applicable. (1990, Prop. 1, sec. 1; 1996, Ord. No. 95-20, sec. 2; 2000, Prop. 1,sec. 2.) 2 Appendix D ARTICLE I INCORPORATION AND GEOGRAPHICAL LIMITS Section 1-1. Incorporation. The people of the county of Hawaii shall be and continue as a body politic and corporate by the name of"County of Hawai`i," hereinafter in this charter called "county." By that name it shall have perpetual succession. (2010, Prop. 7, sec. 2.) Section 1-2. Geographical Limits. The island of Hawaii and all other islands within the shores thereof and the waters adjacent thereto shall be the county of Hawaii. (2010, prop, 7, sec. 2,) ARTICLE II POWERS OF THE COUNTY Section 2-1. Powers of the County. The county shall have all powers possible under the constitution and laws of the State of Hawaii, including all powers now or hereafter given by such constitution or laws, and all other powers not prohibited by such constitution or by this charter. The county shall have such powers as fully and completely as though specifically enumerated in this charter, and no enumeration of powers in this charter shall be deemed exclusive or restrictive. (2010, Prop. 7,sec. 3.) Section 2-2. Exercise of Powers. All powers of the county shall be carried into execution as provided by this charter or, if the charter makes no provision, by ordinance or resolution of the county council. ARTICLE III LEGISLATIVE BRANCH COUNTY COUNCIL Section 3-1. Powers and Functions. The legislative powers of the county shall be vested in the county council. Its primary function shall be legislation and public policy formulation, as distinct and separate from the executive administration of county government. Section 3-2. Composition and Terms. There shall be a county council composed of nine members. One member shall be elected from each of nine districts. The terms of the council members shall be two years and shall begin at twelve o'clock meridian on the first Monday of December after their election. The terms of the council members shall not exceed four consecutive two year terms. Candidates shall be elected in accordance with the election laws of the state, insofar as applicable. (1990,Prop. 1, sec. 1; 1996,Ord.No. 95-20, sec. 2;2000, Prop. 1,sec. 2.) 2 Appendix E I ZONING § 25-5-67, (d) An ohana dwelling may be located on any building site in the FA district, as permitted under article 6, division 3 of this chapter. (e) Exceptions to the regulations for the FA district regarding heights, building site areas, building site average widths and yards, may be approved by the director within a planned unit development. (f) Plan approval shall be required prior to the construction or installation of any new structure or development, or of any addition to an existing structure or development which is used for minor agricultural products processing. (1996,Ord.No. 96-160, sec. 2; ratified April 6, 1999.) Division 7.A,Agricultural Districts. Section 25-5-70. Purpose and applicability. The A (agricultural) district provides for agricultural and very low density agriculturally-based residential use, encompassing rural areas of good to marginal agricultural and grazing land, forest land, game habitats, and areas where urbanization is not found to be appropriate. (1996,Ord.No. 96-160, sec. 2; ratified April 6, 1999.) Section 25-5-71. Designation of A districts. Each A (agricultural) district shall be designated on the zoning map by the symbol "A" followed by a number together with the lower case letter "a" which indicates the required or minimum number of acres for each building site. For example, A-IOa means an agricultural district with a minimum building site area of ten acres. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Section 25-5-72. Permitted uses. (a) The following uses shall be permitted in the A district: (1) Agricultural parks. (2) Agricultural products processing, major and minor. (3) Agricultural tourism as permitted under section 25-4-15. (4) Animal hospitals. (5) Aquaculture. (6) Botanical gardens, nurseries and greenhouses, seed farms, plant experimental stations, arboretums, floriculture, and similar uses dealing with the growing of plants. (7) Campgrounds, parks, playgrounds, tennis courts, swimming pools, and other similar open area recreational facilities,where none of the recreational features are entirely enclosed in a building. (8) Cemeteries and mausoleums, as permitted under chapter 6, article 1 of this Code. (9) Crop production. (10) Dwelling, single-family, as permitted under chapter 205, Hawaii Revised Statutes and as permitted under section 25-5-77(b). (11) Farm dwellings, as permitted under section 25-5-77(b) and (c). (12) Fertilizer yards utilizing only manure and soil,for commercial use. (13) Forestry. (14) Game and fish propagation. (15) Group living facilities. (16) Kennels. (17) Livestock production, provided that piggeries, apiaries, and pen feeding of livestock shall only be located on sites approved by the State department of health and the director, and must be located no closer than one thousand feet away from any major public street or from any other zoning district. 25-61 SUPP. 7 (1-2009) Appendix F § 25-5-72 HAWAT'l COUNTY CODE (18) Public uses and structures which are necessary for agricultural practices. (19) Retention, restoration, rehabilitation, or improvement of building or sites of historic or scenic interest. (20) Riding academies, and rental or boarding stables. (21) Roadside stands for the sale of agricultural products grown on the premises. (22) Utility substations, as permitted under section 25-4-11. (23) Vehicle and equipment storage areas that are directly accessory to aquaculture, crop production, game and fish propagation, livestock grazing and livestock production. (24) Veterinary establishments. (25) Wind energy facilities. (b) The following uses may be permitted in the A district, provided that a use permit is issued for each use; (1) Golf courses and related golf course uses, including golf course driving ranges, golf maintenance buildings and golf club houses, provided that the property is within the state Iand use urban or rural district. Golf courses and golf driving ranges shall not be permitted within the state land use agricultural district unless approved by the County before July 1,2005. (2) Telecommunication antennas and towers. (c) The following uses may be permitted in the A district, provided that a special permit is obtained for such use if the building site is located within the State land use agricultural district: (1) Adult day care homes. (2) Airfields, heliports,and private landing strips. (3) Bed and breakfast establishments, as permitted under section 25-4-7. (4) Community buildings, as permitted under section 25-4-11. (5) Excavation or removal of natural building material or minerals, for commercial use. (6) Family child care homes. (7) Guest ranches. (8) Home occupations, as permitted under section 25-4-13. (9) Lodges. (10) Meeting facilities. (1 l) Model homes, as permitted under section 25-4-8. (12) Public dumps. (13) Public uses and structures, other than those necessary for agricultural practices, as provided under section 25-4-11. (14) Temporary real estate offices, as permitted under section 25-4-8. (15) Trailer parks with density of three thousand five hundred square feet of land area per trailer, provided that plan approval is secured prior to commencing such use. (16) Uses, other than those specifically listed in this section, which meet the standards for a special permit under chapter 205, Hawaii Revised Statutes. (d) The following uses may be permitted in the A district, provided that a use permit is issued for each use if the building site is outside of the State land use agricultural district or a special permit is issued for each use if the building site is within the State land use agricultural district: (1) Bed and breakfast establishments, as permitted under section 25-4-7. (2) Crematoriums, funeral homes, funeral services, and mortuaries. (3) Churches, temples and synagogues. (4) Day care centers. (5) Hospitals,sanitariums,old age,convalescent,nursing and rest homes. (6) Major outdoor amusement and recreation facilities. (7) Schools. SUPP. 18 (7-2014) 25-62 Appendix F con't ZONING § 25-5-72. (e) Buildings and uses accessory to the uses permitted in this section shall also be permitted in the A district. (f) No building site shall be established after December 1, 1996 which shall in any way restrict or limit aquaculture, horticulture, production of crops, keeping of livestock, game and fish propagation, or the processing, sale or other commercial use of the products of such uses. (1996, Ord. No. 96-160, sec. 2; ratified and amended April 6, 1999; Am. 2008, Ord. No. 08-155, sec. 13; Am. 2010, Ord. No. 10-17,sec. 6; Am, 2012, Ord. No. 12-28, sec. 9; Ord. No. 12-124, sec. 8; Am. 2014, Ord. No 14-86, sec. 9.) Section 25-5-73. Height limit. The height limit in the A district shall be thirty-five feet for any residential structure, including any single-family dwelling, or farm dwelling, and forty-five feet for all other structures. The director may, however, permit by plan approval, any nonresidential agricultural structures to be constructed to a height of one hundred feet, if the director determines that the additional height above the forty-five foot height limit is necessary. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Section 25-5-74. Minimum building site area. The minimum building site area in the A district shall be five acres. (1996,Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Section 25-5-75. Minimum building site average width. Each building site in the A district shall have a minimum average width of two hundred feet for the first five acres of required area plus twenty feet for each additional acre of required area. Provided that no building site shall be required to have an average width greater than one thousand feet. (1996,Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Section 25-5-76. Minimum yards. (a) Except as otherwise provided in this section, the minimum yards in the A district shall be thirty feet for front and rear yards, and twenty feet for side yards. (b) For accessory uses such as shade cloth structures used in controlling the amount of sunlight in the raising of plants and flowers, rear, side and front yards in the A district shall be at least ten feet, except where the A district shares common boundaries with urban zones and main government roads. (c) For accessory uses such as plastic roofed and shade cloth wooden or metal framed structures used in controlling the amount of sunlight, rainfall, wind and other elements of nature in the raising of fruits, vegetables and similar agricultural products, rear, side and front yards shall be at least ten feet except where: (1) Exterior walls of any type other than shade cloth are added to the wooden or metal framed structure; (2) The specific use allowed is abandoned;and (3) The A district shares common boundaries with urban zones and main government roads. (1996, Ord.No. 96-160, sec. 2; ratified April 6, 1999;Am. 1999, Ord. No. 99-110, sec. 1.) Section 25-5-77. Other regulations. (a) If any legal building site in the A district has an area of less than five acres, then the yard, minimum building site average width and height requirements for the building site shall be the same as the yard and height requirements in the FA district. (b) One single-family dwelling or one farm dwelling shall be permitted on any building site in the A district. A farm dwelling is a single-family dwelling that is located on or used in connection with a farm or if the agricultural activity provides income to the family occupying the dwelling. 25-63 SUPP. 18 (7-2014) Appendix F con't IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, CERTIFICATE OF SERVICE Applicants-Appellants, vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAW AI`I, Appellee, and JEFFREY GOMES, Intervenor, Judge: The Honorable Ronald Ibarra Intervenor-Appellee. CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing document was served on the party below at their respective address by depositing the same in the United States mail, postage prepaid on 7-o � TED H.S. HONG, ESQ. Hilo Lagoon Centre 101 Aupuni Street, PH 1002A Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General State of Hawai`i 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MICHAEL J. MATSUKAWA, ESQ. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREYIG�OMES Dated: Hilo, Hawaii, 13 m�S. DA Y L Deputy Cbrpontion Counsel y 2 ORIGINAL DOUGLAS S. CHIN 6465 Attorney General, State of Hawaii HOLLY T. SHIKADA 4017 CARTER K. SIU 7313 _ Deputy Attorney General _ 235 South Beretania Street, Room 304 - Honolulu, Hawaii 96813 Telephone No. 808.586.1255 Carter.K.Siu @ hawaii.gov- Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES; CONNECTIONS ) (AGENCY APPEAL) NEW CENTURY PUBLIC CHARTER ) SCHOOL; ) CONNECTIONS NEW CENTURY PUBLIC Applicants-Appellants ) CHARTER SCHOOL'S REPLY BRIEF; } CERTIFICATE OF SERVICE vs. } WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; ) Appellee, } } And } } JEFFREY GOMES, Intervenor, ) Intervenor-Appellee } Judge: The Honorable Ronald Ibarra CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S REPLY BRIEF Applicant-Appellant, Connections New Century Public Charter School ("Connections"), by and through its undersigned counsel Carter K. Siu, Deputy Attorney General., and pursuant to Rule 72(f), Hawaii Rules of Civil Procedure, hereby submits its Reply Brief for this Court's review and consideration. The Reply Brief is submitted in response to both Intervenor-Appellee Jeffrey K. Gomes' and Appellee Windward Planning Commission, County of Hawaii's Answering Briefs. I. DISCUSSION A. Reply to Jeffrey K. Gomes' Answerin2 Brief 1. A School is a Permitted Use of Agricultural Land Intervenor-Appellee Jeffrey Gomes' (GOMES) argument against the issuance of a special permit is intended to confuse and detract from the facts of this case. The argument advanced is that Connections has misinterpreted the law and cites to cases involving "conditional uses" when this case involves an exception to the zoning ordinance. GOMES would like this Court to believe that a school is a prohibited use, but the fact is that a school is a permitted use in an agricultural district under Hawaii County zoning ordinances. Special permits are defined in HRS §205-6(a) and allow a"county planning commission [to] permit certain unusual and reasonable uses within agricultural districts other than those for which the district is classified." Section 205-4.5(c), HRS, states that within agricultural districts with ratings "C, D, E, or U" a landholder "shal I be restricted to the uses permitted for agricultural districts as set forth in section 205-5(b)." HRS §205-5(b), entitled Zoning, states that certain uses compatible with activities enumerated in HRS §205-2 are permitted, as well as those "accessory agricultural uses and 2 services" that"may be further defined by each county zoning ordinance." This is also contained in Hawaii Administrative Rule §15-15-25(b), entitled "Permissible uses within the `A' agricultural district": (b) Permissible uses within the agricultural district on land with soil classified by the land study bureau's detailed land classification as overall (master) productivity rated class of C,D,E, and U shall be those uses as set forth in sections 205-2, 20545, and 205-5 HRS, and also uses compatible to the activities described in 205-2(d). By legislative enactment, the State empowered the counties, including Hawaii County, to define what an acceptable use within an agricultural district may be and to"adopt ordinances setting forth procedures and requirements." See HRS §§46-4, 205-5(b). As noted by the Hawaii Supreme Court: "it is fundamental that authority to zone is conferred by the legislature to the counties." Save Sunset Beach Coalition v. City and County of Honolulu, 102 Hawaii 465, 450, 75 P.3d 1, 16 (2003). In exercising its zoning authority, the Hawaii County created zoning ordinances. See Hawaii County Code, Chapter 25. With regard to permitted uses within agricultural zones, §25-5-72 of the Hawaii County Code, entitled "Permitted Uses," specifically lists a "school" as a permitted use upon issuance of a special permit: "[t]he following uses may be permitted in the A district, provided that...a special permit is issued for each use if the building site is within the State land use agricultural district." §25-5-72(d)(7). It is therefore incongruent to argue that a school is not a permitted use when a school is found under the section entitled "Permitted Uses." The case law cited by Connections is on point as "a special permit allows the owner to put his land to a use expressIy permitted by ordinance or statute on proof that certain facts and conditions exist, without altering the underlying zoning classification." Neighborhood Bd. No. 24 (Waianae Coast) v. State Land Use Comm'n, 64 Haw. 265, 270-71, 639 P.2d 1097, 1101-02 3 (1982)(emphasis added). Although COMES and the County of Hawaii Windward Planning Commission (Commission) would like this Court to believe that a school is a prohibited use, the statutes, rules, and ordinances state otherwise.' The fact that a school is not an expressly permitted use in HRS §205-2 does not mean that it is a prohibited use. COMES ignores the fact that the State empowered Hawaii County to define what is and what is not a permitted use on certain agricultural lands, and, more importantly, that a school is a permitted use under the Hawaii County Code. It is also believed that COMES is claiming that Hawaii County does not have the authority to legislate what is or is not permitted use vis-a-vis a "accessory use" within an agricultural district. In other words, COMES claims that the entire zoning ordinance must be invalidated as in conflict with State law. Even though COMES raises the issue, he does not provide any argument supporting this claim. Regardless, as stated above, the State legislature granted the various counties the authority to determine what are permitted uses on poorly rated agricultural lands. 2. The County's Special Permit Factors COMES' argument that Connections has not satisfied Rule 6-3(b)(5)(A)-(G) lacks any case citations or facts. There is a consistent claim that somehow this case is different because it involves a "conditional use" permit or that it is a"state-based special permit." GOMES, however, fails to develop this argument and instead states, without sufficient explanation, that it is indeed a determining factor in denying the special permit application. There is no discussion of an expert report that refutes Connections' evidence; nor is there any legal support for a claim that community opposition trumps expert evidence. 1 To the extent that the Commission's decision was based on this misinterpretation of law, it must be reversed. 4 GOMES' tactic to cite to evidence relied upon by the Commission and claim that there is no error does not contradict the arguments advanced in Connections' Opening Brief. Of particular importance is the Commission's decision to deny the special permit because there is an apparent lack of need for a school within the Kaumana district. While GOMES maintains that this is correct, there are no citations to any law or case that say as such. In fact, the rule itself does limit itself to a particular neighborhood. What GOMES does not realize is the trend in the creation of charter schools, and its place within the community as a whole. If this was a traditional DOE school intended to service the immediate community, then the inquiry regarding need within the particular community may be relevant. But that is not the situation as a start-up charter school like Connections is not a district school that is required to service only those children living within a defined geographic district; they accept all who apply and serves an even larger community. HRS §302D-34(b). GOMES' arguments in support of the Commissions' decision are contrary to the law and facts. Thus, Connections' appeal and request for reversal of the Commissions' decision should be granted. B. Reply Arguments to the Windward Plannine Commission's Answering Brief The Commission's arguments in support of its own decision are also flawed. On the one hand, it states that it need not consider the opinions of the State Office of Planning when deciding whether a school meets the special permit criteria (see Commissions' Answering Brief at pgs. 1 ]-14), but on the other hand, it relied upon the lay testimony of the Hawaii Police Department that the school would "likely effect [sic] the quality of life for residents that border 2 Charter schools are unique in that its curriculum and focus are often different than traditional DOE schools. 5 this proposed site." Id. at pg. 18. This is a text-book example of an arbitrary and capricious decision making process. The Commission's position places definitive weight on lay testimony from outspoken community members rather than on expert testimony and opinions from State and County officials, including the opinion of current County of Hawaii Planning Department director Duane Kanuha. This type of decision-making by the Commission establishes an uncomfortable and untenable precedent, that the process does not require objective and scientific evidence. Rather, if there is enough public support, then the guidelines set forth in §15-15-95, Hawaii Administrative Rules, and Planning Commission Rule 6-3(b)(5) can be ignored and need not be satisfied. While public participation and input is an invaluable resource, there must be more than just lay opinion to support a denial of a special permit. That is why the Commission could only Say that expert traffic studies "do not appear to be sufficient" to satisfy the community members. The Commission's decision must be based on reliable, probative, and substantial evidence rather than whether the community is satisfied. If the only criteria in Rule 6-3(b)(5) was community satisfaction, then there would no appeal. Fortunately, the rules and regulations have objective criteria to meet, and HRS §91-14(g) makes clear that the Commission's decision must be based on proper procedure, law, and a fair decision making process in order to be affirmed. In this case, the Commission failed to remain objective and allowed the community to influence the decision making process. As a result, the Commission's decision must be reversed. In addition, the Commission fails to justify its denial of the special permit based on the alleged insufficient potable water supply. While it is admitted that potable water is limited, there has been no discussion or evidence that this adversely affects surrounding property owners or 6 would unreasonably burden county agencies. Merely stating that it will impact others or burden the County does not establish that it will. The Commission also advances an argument justifying its conclusion that the land is suitable for agricultural use because Connections is leaving one portion of its land in its current form (e.g., forest) while proposing to build a greenhouse as part of its school curriculum and programs. This is clearly an erroneous conclusion as this would mean that all agricultural lands, regardless of its soil classification, are suitable for agriculture. In other words, there would be no need to distinguish prime agricultural land from poorly rated land because both would be equally suitable for agriculture. Taken to its logical extreme, any store with a garden section that sells plants can be considered to be using its land for agricultural purposes and that the land is therefore suitable for agricultural purposes. However, to the extent that the Commission believes that Connections will engage in agricultural practices, it cannot therefore be said that the proposed development will substantially alter or change the essential character of the land and the present use. As stated previously, the intention is to have one portion of the land remain as is; this means that the essential character will not change. The other portion will be used for school facilities, including what the Commission has determined to be agricultural. Thus, it cannot be said that there is a substantial alteration or change in the character of the land. Nor has the Commission attempted to support its conclusion that the proposed school is contrary to the general plan. All they argue is that the decision speaks for itself and should therefore be affirmed. The Commission's decision, however, appears to be based primarily on community input and on its own assumption that the General Plan was meant to be narrowly construed to prohibit a "charter school that is not specifically intended to service the immediate 7 community surrounding the school." Instead, the General Plan specifically states that the "land use pattern is a broad, flexible design intended to guide the direction and quality of future developments in a coordinated and rational manner." Hawaii County General Plan §14.1.1. Moreover, "low density" use not only services the surrounding community, but the general public as well, which is why the definition states that it includes "[r]esidential, with ancillary community and public uses." The Commission's failure to address Connection's arguments must be viewed as a concession that a school is consistent with the General Plan, III. CONCLUSION Based on the foregoing, Connections submits that the Commission's Findings of Fact, Conclusions of Law and Decision and Order should be reversed, and that the matter be remanded with instructions that the special permit application be granted. DATED: Honolulu,U, March2015 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 8 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES; CONNECTIONS ) (AGENCY APPEAL) NEW CENTURY PUBLIC CHARTER ) SCHOOL; ) CERTIFICATE OF SERVICE Applicants-Appellants ) vs. ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; ) Appellee, ) And ) } JEFFREY GOMES, Intervenor, ) Intervenor-Appellee ) Judge: The Honorable Ronald Ibarra CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March I9, 2015, the undersigned caused a true and correct copy of the foregoing document to be served on the following persons by U.S. Mail, postage prepaid: Ted H.S. Hong, Esq. Attorney at Law P. O. Box 4217 Hilo, HI 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES Danny B. Patel, Esq. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII Michael J. Matsukawa, Esq. 75-5751 Kuakini Hwy., Ste, 201 Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY K. GOMES DATED: Honolulu, Hawaii, March 19, 2015. r C TER S U Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 2 L ILD, } CIRCIt!T 0 ,P,T OF TED H. S. HONG 3569 1'''>` T� .� Ci"'7=SIT ST T-E Cr= NHN,11i Attorney at Law P. O. Box 4217 7015MA° 27 ACJ «; 03 Hilo, Hl 96720 Telephone No. 808.933.I919 Facsimile No. 808938.8281 ted@tedhonglaw.com C�ERit - • - -- -• Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO. 14-1-0223 RI SUPPORT SERVICES } (Agency Appeal) } Applicant-Appellant, } APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' vs. ) REPLY BRIEF TO APPELLEE WINDWARD PLANNING WINDWARD PLANNING COMMISSION,) COMMISSION'S ANSWERING BRIEF COUNTY OF HAWAII; DEPARTMENT ) FILED ON MARCH I3, 2015; OF PLANNING, COUNTY OF HAWAII, ) CERTIFICATE OF SERVICE Appellees, ) and ) JEFFREY COMES, Intervenor; ) JUDGE_ Hon_ Ronald Ibarra Intervenor-Appellee. ) APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' REPLY BRIEF TO APPELLEE WINDWARD PLANNING COMMISSION'S ANSWERING BRIEF FILED ON MARCH 13. 2015 TABLE OF CONTENTS TABLE OF AUTHORITIES D TABLE OF CONTENTS I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. LAW and ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Administrative Agency Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 (1) Scope of Administrative Agency authority . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Commission Lacked the Implied Authority to Adjudicate General Plan Violations . . 4 C. The Commission Abused its Discretionary Authority . . . . . . . . . . . . . . . . . . . . . . . . . 7 (1) No Adverse Impact to Surrounding Property Owners . . . . . . . . . . . . . . . . . . . 9 (2) Traffic Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 (3) Water Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 (4) Not Suited for Agriculture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 II1. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 ii TABLE OF AUTHORITIES HAWAII CASES: Cnty. ofHawai'i v. Ala Loop Homeowners, 123 Hawaii 391, 235 P.3d 1103 (2010) . . . . . . . . 20 Dejetley v. Kaho'ohalahala, 122 Haw. 251, 226 P.3d 421 (2010) . . . . . . . . . . . . . . . . . . . . . . . . 6 Honbo v. Hawaiian Ins. & Guar. Co., Ltd., 86 Hawaii 373, 949 P.2d 213 (App.1997) . . . . . . . 6 In re United Pub. Workers, AFSCME, Local 646, AFL-CIO, Union, 131 Hawai'i 142, 315 P.3d 768 (Ct. App. 2013), as corrected (Feb. 21, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Ka Pa'akai O Ka Aina v. Land Use Comm'n, State of Hawaii, 94 Haw. 31, 7 P.3d 1068 (2000), as amended (Jan. 18, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Kauai Springs, Inc. v. Planning Comm'n of Cnty. of Kauai, 130 Haw. 407, 426, 312 P.3d 283, 302 (Ct. App. 2013) cert. granted sub nom. Kauai Springs, Inc. v. Planning Comm'n of Cnty. of Kaua'i, No. SCWC 29440, 2013 WL 4779589 (Haw. Sept. 4, 2013) and affd, 133 Haw. 141, 324 P.3d 951 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 20 Kealoha v. Cnty. gfHawaii, 74 Hawai'i 308, 844 P.2d 670 (1993) . . . . . . . . . . . . . . . . . . . . 7, 20 Life of the Land v. Ariyoshi, 59 Hawai'i 156, 577 P.2d 1116 (1978) . . . . . . . . . . . . . . . . . . . . . . 2 Nuuanu Valley Ass'n v. City and Cnty. Of Honolulu, 119 Hawai'i 90, 194 P.3d 531 (2008) . . . 6 Paul's Electrical Service v. BOO, 104 Hawai'i 412, 91 P.3d 494 (2004) . . . . . . . . . . 1-2, 2-3, 7 Unite Here!Local 5 v. City & Cnty. of Honolulu, 123 Hawai'i 150, 231 P.3d 423 (2010) . . 3, 4, 13 Roxas v. Marcos, 89 Hawai'i 91, 969 P.2d 1209 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 20 Williams v. Aona, 121 Hawai'i 1, 210 P.3d 501 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 20 HAWAII REVISED STATUTES; Sec. 91-14(g)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Sec. 205-6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347-8 iii HAWAII COUNTY CHARTER: Sec. 6-7.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5 Sec. 7-2.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1V APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' REPLY BRIEF TO APPELLEE WINDWARD PLANNING COMMISSION'S ANSWERING BRIEF FILED ON MARCH 13, 2015 COMES NOW Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES (hereinafter referred to as "CBESS"), by and through its undersigned counsel and hereby submits its Reply Brief to Appellee Windward Planning Commission's Answering Brief Filed on March 13, 2015, as follows: I. INTRODUCTION The Appellee Windward Planning Commission's (hereinafter referred to as "Commission") Findings of Fact, Conclusions of Land and Decision and Order dated May 19, 2014 is not entitled to "deference" because it acted beyond the scope of its statutory authorization. C ROA: 4300-4315. For the matters it has authority to act upon, the Commission abused its discretion by rejecting the Appellant's application, in spite of the substantial evidence. II. LAW and ANALYSIS A. Administrative AUncA1212eals. In Paul's Electrical Service v. Bef tel, 104 Hawaii 412, 91 P.3d 494 (2004), the Hawaii State Supreme Court clarified the legal standard and scope of an appeal of an administrative agency decision: The standard of review for decisions of administrative agencies therefore consists of two parts: first, an analysis of whether the legislature empowered the agency with discretion to make a particular determination; and second, if the agency's determination was within its realm of discretion, an analysis of whether the agency abused that discretion (or whether the agency's action was otherwise "arbitrary, or capricious, or characterized by ... [aJ clearly unwarranted exercise of discretion," HRS § 91-14(g)(6)). If an agency determination is not within its realm of discretion as defined by the legislature), then theagency's determination is not entitled to the deferential 1 "abuse of discretion" standard of review. See, e.g., Allstate, 104 Hawaii at 265 66, 88 P.3d at 200-01. If, however, the agency acts within its realm of discretion, then its determination will not be overturned unless the agency has abused its discretion. (Emphasis added) Paul's Elec, Serv., Inc. v. BOO, 104 Hawai'i 412, 417, 91 RM 494, 499 (2004), as corrected (July 14, 2004). Generally, in an appeal of a denial of an administrative application, the Hawaii State Supreme Court noted: The administrative action which is under review here involves a negative determination of that issue. We must be given some reason, supported by the record, to enable us to disagree with that determination. (Citation omitted) (Emphasis added) Life of the Land v. Ariyoushi, 59 Hawai'i 156, 164,-65, 577 P.2d 1116, 1121-22 (1978). (1) Scope of Administrative Agency authority. The Hawaii State Supreme Court reaffirmed that: Administrative agencies are created by the legislature, and the legislature determines the bounds of the agency's authority. See Morgan v. Planning Dept., County of Kauai, 104 Hawaii 173, 184, 86 P.3d 982, 993 (2004) (" `An administrative agency can only wield powers expressly or implicitly granted to it by statute.' " (Quoting TIG Ins. Co. v. Kauhane, 101 Hawaii 311, 327, 67 P.3d 810, 826 (App.2003).)). Thus, before we can determine whether an agency abused its discretion pursuant to HRS § 91-14(8)(6), we must determine whether the agency determination under review was the type of agency action within the boundaries of the agency's delegated authority. To the extent that the legislature has authorized an administrative agency to define the parameters of a particular statute, that agency's interpretation should be accorded deference. See, e.g., In re Gray Line Hawaii Ltd., 93 Hawaii 45, 53, 995 P.2d 776, 784 (2000) (discussing deference to Public Utilities Commission's determination of"just and reasonable"rates); Hyatt Corp. v. Honolulu Liquor Comm'n, 69 Haw. 238, 239, 738 P.2d 1205, 1206 (1987) ("Because of the exceptionally broad authority granted to the Commission by statute [and] the substantial deference to which the Commission's interpretation of the statute is entitled ..., we affirm."). However, if a statute does not grant an agency discretion with which to interpret or implement that statute, then that 2 agency's legal conclusions will be reviewed de novo. See, e.g., Allstate Ins. Co. v. Schmidt, 104 Hawaii 261, 88 P.3d 196 (2004). (Emphasis added) Pauls Elec. Serv., Inc. v. Befitel, 104 Hawai'i 412, 417, 91 P.3d 494, 499 (2004), as corrected (July 14, 2004). Similarly, in Unite Here!Local 5 v. City & Cnty. of Honolulu, 123 Hawai'i 150, 231 P.3d 423 (2010), the appeals court noted that; However, it is well established that an administrative agency's authority includes those implied powers that are reasonably necessary to carry out the powers expressly granted. The reason for implied powers is that, as a practical matter, the legislature cannot foresee all the problems incidental to carrying out the duties and responsibilities of the agency. (Emphasis added and included) Unite Here! Local 5 v. City & Cnty. of Honolulu, 123 Hawai'i 150, 176, 231 P.3d 423, 449 (2010). In Kauai Springs, Inc. v. Planning Comm`n of Cnty. of Kauai, 130 Haw. 407, 426, 312 P.3d 283, 302 (Ct. App. 2013) cert. granted sub nom. Kauai Springs, Inc. v. Planning Contm'n of Cntv. ofKaua'i, No. SCWC 29440, 2013 WL 4779589 (Haw. Sept. 4, 2013) and affd, 133 Haw. 141, 324 P.3d 951 (2014), the appeals court held that in a Special Permit application: HRS § 205-6 thus confers authority to the Planning Commission to grant special permits for uses not otherwise permitted in state agricultural districts, but only when the use would promote the effectiveness and objectives of HRS Chapter 205. (Emphasis added) The enabling statute says nothing about the Commission adding other factors which it unilaterally decides are important or should be considered. The only factors it can consider are found in Chapter 205, HRS: §205-6 Special permit. 3 (c) The county planning commission may, under such protective restrictions as may be deemed necessary, permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter; provided that a use proposed for designated important agricultural lands shall not conflict with any part of this chapter. A decision in favor of the applicant shall require a majority vote of the total membership of the county planning commission. (Emphasis added) In the present case, the Commission lacked express or implied authority to adjudicate whether the Appellant's application violated the County General Plan. The Commission concedes it lacked the express authority under the Hawaii Revised Statutes, Hawaii County Charter and the Hawaii County Code to find violations of the County General Plan. See, Appellee Windward Planning Commission's Answering Brief Filed on March 13, 2015, at pages 9-10 (hereinafter referred to as "AB"). B. Commission Lacked the Implied Authority to Adjudicate General Plan Violations. The only issue is whether the Commission had the "implied powers" which were "reasonably necessary to carry out the powers expressly granted. (Emphasis added and included)" Unite Here! Local S v. City & Cnty. of'Honolulu, 123 Hawai'i 150, 176, 231 P.3d 423, 449 (2010). The Commission's implied powers are also limited under the Hawaii County Charter concerning the General Plan: Section 6-7.5. Duties and Functions of the Windward and Leeward Planning Commissions. (a) Both commissions shall: (2) Review the general plan, its amendments and other plans and modifications thereof and transmit such plans 4 with recommendations thereon through the mayor to the council for consideration and action. (5) Perform such other related duties and functions as may be necessary or required pursuant to law and this charter. ( c) Each planning commission shall review and take action upon applications for land use changes and community development plans involving only property within their respective jurisdictions, other than those involving the gencral plan. If an application for a land use change or a community development plan includes land within the jurisdiction of both the windward planning commission and the leeward planning commission, the application shall be considered by both commissions meeting jointly and action shall require the affirmative vote of a majority of the combined membership of the two commissions. All amendments to the general plan or the adoption of a new general plan shall be considered by each planning commission, meeting separately, and each commission shall make its own recommendation to the council. Each planning commission, meeting separately, shall make its own recommendations to the council on changes to the subdivision and zoning codes and any other planning or land use matters which apply generally and not to a specific area. The planning director shall determine which commission shall take jurisdiction over any matters when not fully established by the charter. (Emphasis added and included) The express and implied authority delegated to the Commission under the Charter is limited to amendments and modifications to the General Plan and sending recommendations to the Council and Mayor. The plain and ordinary meaning of the Charter is that the Commission is expressly prohibited from considering land use changes involving the General Plan. See, Section 6-7.7( c), Hawaii County Charter(2012) at 20. The Commission argues that this phrase, coupled with Sec. 6-7(a)(5), actually expands the scope of the Commission's authority in its Answering Brief. See, AB at 9. 5 The language of Sec. 6-7.7( c), Hawaii County Charter(2012) is plain and unambiguous. The Court's duty is to give effect to its plain and obvious meaning. Dejetley v. Kaho'ohalahala, 122 Haw. 251, 262, 226 P.3d 421, 432 (2010); See also, Honbo v. Hawaiian Ins. & Guar. Co., Ltd., 86 Hawaii 373, 376, 949 P.2d 213, 216 (App.1997) There no doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in the language of that section which gives rise to any ambiguity. When read in pari materia, Sec. 6-7.5(a)(2), Hawaii County Charter(2012) reiterates the limited focus of the Commission concerning the General Plan. Adopting the Commission's argument actually creates an internal contradiction and conflict in terms of the express limitations between Sec. 6-7.5(a)(2), Hawaii County Charter(2012), Sec. 6- 7.7( c), Hawaii County Charter(2012) and Sec. 6-7(a)(5), Hawaii County Charter(2012). See, Nuuanu Valley Assn v. City and Cnty. Of'Honolulu, 119 Hawaii 90, 103-04, 194 P.3d 531, 544- 45 (2008) (statutory construction should be limited where literal interpretation was inconsistent with the statute's purpose.); see also,Ka Pa'akai O Ka'Aina v. Land Use Comm'n, State of Hawaii, 94 Haw. 31, 41, 7 P.3d 1068, 1078 (2000), as amended (Jan. 18, 2001), "`Although J udicial deference to agency expertise is generally accorded where the interpretation and application of broad or ambiguous statutory language by an administrative tribunal are subject to review, "this deference is constrained by [our] obligation to honor the clear meaning of a statute, as revealed by its language, purpose, and history."' The language of Section 6-7.7, Hawaii County Charter(2012) is unambiguous and clear. In the present case, the Commission's Findings of Fact, Conclusions of Land and Decision and Order dated May 19, 2014 (CROA: 4300-4315) is not entitled to deference and should be reviewed de novo because the Commission did not act "within the boundaries of the 6 agency's delegated authority." Paul's Elec. Serv., Inc. v. Befitel, 104 Hawai'i 412, 417, 91 P.3d 494, 499 (2004), as corrected (July 14, 2004);In re United Pub. Workers, AFSCME, Local 646, AFL-CID, Union, 131 Hawai'i 142, 150, 315 P.3d 768, 776 (Ct. App. 2013), as corrected (Feb. 21, 2014). C. The Commission Abused its Discretionary Authority. Assuming that Appellee Commission was acting within the scope of its delegated authority, it abused that discretion because its denial of CBESS' application (CROA: 4300-4315) was "arbitrary, or capricious, or characterized by... [a] clearly unwarranted exercise of discretion." See, Sec. 91-14(g)(6), HRS. Generally, an "abuse of discretion" occurs where the Commission "clearly exceeded the bounds of reason or has disregarded rules or principles of law or practice to the substantial detriment of a party litigant." Williams v. Aona, 121 Hawai'i 1, 7, 210 P.3d 501, 507 (2009); Roxas v. Marcos, 89 Hawai'i 91, 115, 969 P.2d 1209, 1233 (1998); Kealoha v. Cnty. of Hawaii, 74 Hawai'i 308, 318-19, 844 P.2d 670, 675 (1993), The Commission was required to approve a Special Permit application if the proposed use was: (1) an unusual and reasonable use of land situated within an agricultural district; and (2) promote the effectiveness and objectives of Chapter 205, HRS. (Emphasis added) See, Rule 6-7, County of Hawaii Planing Commission, Rules of Practice and Procedure. The term "reasonable use" is defined in Sec. 205-6, HRS: §205-6 Special permit. (a) Subject to this section, the county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified. Any person who desires to use the person's land within an agricultural or rural district other than for an agricultural or rural use, as the case may be, may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the 7 manner desired. (Emphasis added) The State Office of Planning (hereafter referred to as "OSP") reviewed, assessed and confirmed that the Appellant's petition met all statutory"reasonable use"requirements under Sec. 205-6, HRS. CROA: 401-404; see also, Sec. 225M-2, HRS; Sec. 226-53, HRS. On or about October 3, 2012, the State Office of Planning, found: Assessment 1. The proposed use would not be contrary to HRS Chapters 205 and 205A, and the rules of the LUC in that: (a) the pahoehoe soils of the 1880-1881 lava flow overlying the property are unsuitable for conventional agriculture; (b) there is and has been no agricultural use of the property; and ( c) the applicant proposes to incorporate a sustainable agriculture program into the school curriculum; 2. The proposed use would not adversely affect the surrounding low density residential properties provided that: (a) roadway improvements and traffic management measures are adopted to minimize the impact of increased traffic on local roads and residences in the vicinity of the school; and (b) the project's drainage system improvements are designed, constructed, and maintained to ensure the runoff generated by the project is retained onsite and stormwater overflow from Kaumana Cave does not adversely impact downstream receiving streams and properties; 3. The proposed use would not unreasonably burden public agencies to provide or expand public facilities and services as the applicant will be responsible for any infrastructure and utility improvements required by the project; (Emphasis included and added) CROA: 402-403. The "substantial evidence" supported the Appellant's Special Permit Application. 8 Appellant relied on qualified experts from various disciplines that proved from an objective standpoint that the Application met all statutory and regulatory requirements. Instead, the Commission relied on unsubstantiated, subjective and out of context statements to support its denial. (1) No Adverse Impact to Surrounding Property Owners, The Commission relies on a partial statement from the Hawaii County Police Department concerning "Quality of Life Concerns." AB at 17-18. The Hawaii County Policy Department is unqualified to render such an opinion, as a matter of law. Section 7-2.4(a), Hawaii County Charter(2012) states in relevant part: Section 7-2.4. Powers, Duties, and Functions of the Chief of Police. The chief of police shall be the administrative head of the police department and shall: (a) Be responsible for the preservation of the public peace, prevention of crime, detection and arrest of offenders against the law, protection of the rights of persons and property, and enforcement and prevention of violations of all laws of the state and ordinances of the county and all regulations made in accordance therewith. (Emphasis added) The Police Department has no role in submitting an opinion about proposed land use changes and their effects. The unusual language in that Police Department letter begs the question if one or more of the residents who opposed the Application also worked within the Hawaii County Police Department and intentionally misused his/her authority for a private purpose. The reliance on a petition opposed to the Appellant's Application was counter-balanced by a petition signed by 266 residents supporting the application. CROA: 1294-1314; see also, CROA 1072-1202; 1204-1226; 1232-1243; 1245-1252; 1254-1255, 131 support letters. 9 Additionally, neighborhood representatives who opposed the project testified that they were only opposed to the "total," fully built out project not the individual phases. See, CROA: 2669-2670: 22-4 (Glenn Tada); 2918: 17-22 (Melvin Yokota); 2928: 9-19 (Ming Peng). The overwhelming objective evidence supported the Application. (2) Traffic Concerns. Commission's counsel misstates and misrepresents the evidence in this case. The substantial and credible evidence proved that the proposed development would have little or no impact on traffic. CROA: 4304 (FOF #18); 4309 (FOF #46-47). On Thursday, May 28, 2009, the Appellant's expert Traffic Engineer, took traffic counts in the neighborhood. CROA: 290. The Draft Environmental Assessment (EA) was prepared and distributed for agency and public comment in August of 2009. CROA: 63. On June 28, 2010, the Appellant's expert witness submitted his TZAR. CROA: 289-295. The Revised Draft EA was distributed for public and agency comment in August 2010. CROA: 63. After the environmental assessment process and comment period, on July 26, 2012, the Appellant submitted its Special Permit application. CROA: 001. The application stated in relevant part: Note that the findings of the TIAR are conservative and likely overestimates total trip generation for the project. The TIAR does not specifically take into account that approximately 30 percent of Connections' students are bussed to school from outside Hilo and the likelihood that multiple students may be dropped off or picked up by one vehicle (i.e., families with more than one student at the school and carpooling). (Emphasis added) CROA: 41. On September 18, 2012, the County's Department of Public Works, Traffic Division, submitted its comments and made suggestions that were incorporated by the Planning 10 Department in its Revised Conditions of Approval. CROA: 393; 2756 On October 31, 2012, the Planning Department submitted its Revised Recommendations, which analyzed any"adverse impacts" on the surrounding area. In relevant part, the Planning Department recommended: (B) The desired use would not adversely affect surrounding properties. Although there are anticipated adverse impacts that would be created by this new use, these impacts can be mitigated to minimize their effects to surrounding_property owners. Conditions of approval will be added to address traffic and noise that will mitigate and minimize these impacts. (Emphasis added) CROA: 886-887, The Planning Department submitted its revised Conditions of Approval to the Appellant on November 9, 2012, CROA: 1227-1231; 2804 (Mr. Kanuha's testimony). On November 9, 2012, at the regularly scheduled hearing on the Appellant's petition, SPP No. 12-000138, after presentations by the Appellant and the Appellant's experts and testimony from surrounding property owners, the Commission voted to defer SPP No. 12-000138 to allow the Appellant an opportunity to submit: (1) water calculations to address water concerns and (2) meet with an adjacent property owner to explore an alternative access through the Puainako Extension. CROA: 1640. On December 6, 2012, at a further hearing on SPP No. 12-000138, the Commission again voted to defer SPP No. 12-000138 to allow a Deputy Attorney General to represent Connections in SPP No. 12-000138 application process. CROA: 1853. On January 10, 2013, at a further hearing on SPP No. 12-000138, the Commission moved 11 to deny SPP No. 12-000138 and allow for the preparation of Findings of Fact, Conclusions of Law and Decision and Order. CROA: 2052. On March 7, 2013, at a further hearing on SPP No. 12-000138, the Commission voted to withdraw its motion to deny SPP No. 12-000138 and retain a hearings officer to conduct a contested case hearing. CROA: 2143-2144; 2155. The Contested Case was heard on October 21, 2013, October 22, 2013, November 12, 2013, January 8, 2014 and January 22, 2014, CROA: 2596; 2851; 3002; 3043; 3186, On March 13, 2013, the Appellant, provided an extension of time to allow the Hearing Officer and additional 30-days to prepare Findings of Fact, Conclusions of Law and a Decision and Order. CROA: 4086, On April 7, 2013, the Hearing Officer submitted her Report to the parties and Planning Commission. CROA: 4098-4112. On May 1, 2014, the Commission voted to uphold the Hearings Officer's report and recommendation and denied SPF No. 12-000138. CROA: 4293. On May 19, 2014, the Commission submitted its Findings of Fact, Conclusions of Land and Decision and Order. CROA: 4300-4315. On June 9, 2014, the Appellant, timely submitted its Notice of Appeal. The record shows that the Appellee Commission delayed the proceedings for nearly two (2) years. At the time the TIAR was submitted on June 28, 2010, as part of the Environmental Assessment (EA) review process, the Appellant's expert witness' traffic counts were only a year old. CROA: 290. After the EA's procedural requirements were fulfilled, within two (2) years (July 26, 2012), the Appellant submitted its Special Permit application. CROA: 001. 12 Delays are inherent in the land use process. See, Unite Here!Local 5 v. City & Cnty. Qf Honolulu, 123 Hawai'i 150, 177, 231 P.3d 423, 450 (2010), twenty-four(24) years from EIS approval to request for project approval. A significant period of time was lost from the submission of the Draft EA to the issuance of the Department of Land and Natural Resources' Finding of No Significant Impact for Connections school master plan for the Property on October 22, 2010. CROA: 893. Appellee Commission was also responsible for unnecessarily delaying the process and extending the time line another two (2) years. Any delay cited by the Commission was the result of its own lack of diligence and the Appellant should not be prejudiced by the Commission's inaction. Appellee Commission should be estopped from raising the issue that the TIAR was outdated after causing a nearly two (2) year delay in the process. The Planning Department's revised Conditions of Approval to the Appellant on November 9, 2012, specifically addressed and incorporated in its recommendations to the Commission, cures for the alleged deficiencies raised in the Commission's Answering Brief(AB at 20). CROA: 1227-1231; 2804 (Mr. Kanuha's testimony); CROA: 1547, 1551 (presented to the Commission). The revised conditions included but not limited to: • Conduct an updated TIAR before plan approval for the intermediate and elementary school phases and construct any improvements required (CROAT 1228: #7); • Construct separate turn left turn lanes from the street into the Appellant's property (CROA: 1228: #9); • Construct an 8 foot paved shoulder (CROA: 1228: #10) • Submit a "Traffic Management Plan" subject to review and approval of the Department of Public Works-Traffic Division and Police Department before any Plan Approval. (CROA: 1229: #11) • The "Traffic Management Plan" would identify "traffic management strategies that reduce traffic congestion on surrounding County roads" 13 during special events and activities, in addition to dedicated drop off and pick up areas in the property and carpool, bus and van services and staggering drop off and pick up times (ld.: see also, 3088-3089: lines 6-7); • Required all driveways, roads and parking to be within the Appellant's property and not go out onto the County Roads (CROA: 1229: #12); • Required Appellant to work with neighboring property owner to open alternative access to a different County Road (Puainako extension) and avoid Edita Street(Id..). (Emphasis added) Commission's counsel misrepresents the evidence in this case. AB at 21. Appellant's traffic engineer, Mr. Rowell testified that his traffic study was conducted when public schools were in session. CROA: 3056: line 6-15. He testified that the length of the application process in this case was the reason the TIAR was four (4) years old. CROA: 3058: lines 1-16. He noted that in normal circumstances, when he was involved in a TIAR, the special permit applications were submitted to the Planning Commission within six (6) months. CROA: 3058: lines 9-16. He testified however, that the delay was not unique and that an updated report should be submitted if the permit application went to the State Land Use Commission. CROA: 3058-3059: lines 19-1. The County's own expert witness, representing the Department of Public Works, Mr. Ron Thiel, also a professional traffic engineer, testified that he reviewed over one hundred T1ARs in the course of his career. CROA: 2750-2751: lines 7-2 (professional credentials); 2757: lines 2- 10. As the County's representative, he agreed with the Appellant's TIAR findings and described them as "a little overconservative." CROA: 2756: lines 11-24. In addressing the issue of whether public schools were in session during the TIAR data collection, he noted: Q. (Gomes) Okay. He also states that because the study was done on one day, May 28th, that University of Hawaii-Hilo, Hawaii Community College, and Kamehameha Schools Hawaii campus were out and so over 7,000 students were not in school that day. Would that make a difference in the TIAR? 14 A (Thiel) It could make a difference. It actually could make it even worse. They might have even been on this street instead of at school. Let me give you just a little bit of history on TIARs. We generally look at what is called average daily traffic -- average annual daily traffic. We try to determine the annual traffic over the entire year. And counts were taken on individual days, but we have permanent traffic records that tell us what the traffic -- how the traffic varies from one day to the next, whether it's Monday or Friday, what time of the year,what month, what week, what activities. And we can adjust all that information. And, generally, the information you will see in these are adjusted to the AADT, the average annual daily traffic. So it doesn't make any difference what ,year, what day, what week the traffic counts are taken, it should all be adjusted. (Emphasis added) CROA 2770-2771: lines 10-1. In terms of the when the TIAR was conducted, Mr. Thiel also testified: Q. (Gomes) Mr. Thiel, Dr. Henry Lee Loy turned in written testimony stating that the TIAR was done in May of 2009. Does that make it outdated since it has been so long ago and different communities have popped up along Kaumana Drive? A. (Thiel) Well, normally I would say yes, but you know, we had an economic turndown from 2009. The traffic volumes went up to about 2009, and then they started plummeting, and we are just getting back to about where they were, and maybe just a little bit higher now; so I would say, given any unforeseen conditions, it would be pretty close to the way it is now. I just did a review on another project of this very nature to determine what the volumes were along the Hamakua Coast, and I didn't see too much of a change in volumes. (Emphasis added) CROA 2769-2770: lines 18-3. The substantial, probative and unchallenged evidence before the Commission was that despite any impacts to the traffic the Appellant's project may have in the future, there were reasonable and viable mitigating conditions, which the County Planning Department imposed upon the Appellant, that would have resolved any of the issues raised by people living in the area and the Commission's. Any reasonable person, discharging their duties fairly and impartially, 15 would have seen the efforts made by the Appellant to accommodate the neighborhood and found that the County's conditions were acceptable. 3 Water Concerns. Commission's counsel again, deliberately misleads the Court. At no time did the Appellant ask for, request or indicate that it would use or seek to use more County water than had been approved by the County Water Department. Yet, the Commission found as fact and mixed question of fact and law that there was insufficient County water to support the fully built out project in the last phases of development. CROA: 4304 (FOF #21); CROA: 4309-4310 (FOF #48-51); CROA: 4311-4312 (Mixed: #63). The Appellee Commission denied the Special Permit application, not based on the amount of water the Appellant proposed to use or what the County Water Department limited the Appellant's use to or based on a request to go beyond the amount allocated by the Water Department or even a reservation of the future right to request or use more than originally approved by the County Water Department. Appellee Commission fundamentally erred because it denied the Appellant's Special Permit, based on speculation. The Appellant, County Water Department and County Planning Department agreed to limit the amount of County Water that could be supplied to the project. CROA: 32; CROA: 1678-1684. The head of the County of Hawaii, Department of Water Supply, Mr. Kurt Inaba, testified that the standards and guidelines relied upon by Appellant's experts in calculating the project's future water usage were the same industry standards used by the County and accurate. CROA: 2778, lines 1-13. Mr. Inaba, the Appellant and its engineer, agreed that the Water Department's limit of 4,200 gallons per day was for the entire project when fully built(CROA: 2778: lines 18-21). The evidence was unchallenged that even when used to that limit, 16 Appellant's water usage would have no effect on surrounding property owners. CROA: 2778- 2779: lines 22-5; CROA: 1680-1681; see also CROA: 2732-2737, testimony of Kevin Louma, Licensed Professional Engineer regarding water calculations, CROA: 3339-3340. The Appellant agreed to the water limit and reassured the Commission that: Should the applicant utilize more than the maximum average daily usage of potable water(4,200 gpd) from the existing County 8-inch water line, the applicant will be required to secure or construct an additional source of potable water or limit the amount of students to the amount of potable water available, (Emphasis added) CROA: 1227. There is nothing in the Record to indicate that the Appellant was asking to use more than was agreed to. CROA: 1227. The Appellant simply asked the Commission to approve the agreement between the Appellant, the County Water Department and the County Planning Department concerning the total amount of water that could be supplied by the County. The Appellant even presented uncontradicted evidence, that other tools would be utilized to reduce the total amount of water usage if the total project was completely built. CROA: 1679-1680. The argument by Commission's counsel that Appellant would need or request more water from the County is wildly speculative, without factual foundation, and significantly something that was unsupported in the Record. It is one thing to be denied a permit because an applicant's request is too ambiguous regarding future utilization of County resources. It is quite another when an applicant unequivocally agrees to a limit and the County agrees that if more resources are needed, the applicant is responsible for developing more resources, without County involvement. The Commission's disapproval was a clear abuse of discretion because it was NOT based on what County water resources Appellant's project would use, or what it wanted to 17 use, or what it agreed to limit itself to use, but on what the Commissioners FELT would be used despite the uncontradicted evidence. (4) Not Suited for Agriculture. The Record shows that none of the neighbors opposed to Appellant's project provided any evidence that they conducted any sort of"agriculture" on their property. Yet, the Commission makes the farcical claim that agriculture can occur. AB at 25-28. This argument was rejected by the State Office of Planning who submitted evidence dated October 3, 2012, without challenge, that "the property are unsuitable for conventional agriculture; (b) there is and has been no agricultural use of the property; . . ." CROA: 402-403. The Commission cited no evidence to support the claim that agriculture could be conducted in an area for which the soil classification rating is "D" or "Poor," and "unsuited for agricultural uses." CROA: 4310; see also, CROA: 3398-99; 3396-97; 3394-95; Special Permit approval for Kamehameha Schools, Keaau Campus, 236 acres set out in State Land Use Agricultural District and 64 acres in State Land Use Urban District. Commission's counsel misleads the Court by mischaracterizing the Appellant's commitment to use a separate portion of the subject property for "forestry" as evidence agriculture could be conducted. On October 15, 2012, the Appellant committed to use the separate parcel for "forestry:" The Project Site is separate into two parcels by Edita Street; the lower or"Makai" parcel, which is approximately 37 acres and the upper or "Mauka"parcel, which is approximately 33 acres. As discussed in the Special Permit, no major school facilities are being proposed for the Mauka parcel, the Applicant intends to use this land area to support a future forestry/conservation program. The Applicant is in the preliminary stages of identifying individuals to assist in the development of a forestry/conservation program and have identified key 18 components of forestry conservation such as planting trees, removal of invasive species and protecting native plants. To support the forestry conservation on the Mauka parcel the Applicant is proposing the development of a walkway to provide access and viewing opportunities within the ohia forest. The walkway would not be constructed at grade, but elevated on post roughly 4 to 5 feet above grade. The walkway would be a lightweight structure with shallow footings or pier foundations. The Applicant plans to fence off the Project Site and will control access to the walkway and the Mauka Parcel. Development of the walkway, viewing platforms or modest gazebo areas along the walkways and fencing would occur following the completion of the major school facilities on the Makai parcel and when resources area available, A development timeline for the Mauka parcel is unknown at this time, however, based on the development timeline for Makai parcels and the resources available the Applicant anticipates activity for the Mauka parcel or occur sometime after 2020. The Applicant does not anticipate the development of any parking for the Mauka parcel and parking would occur on the Makai parcel. The Applicant also anticipates the need to develop a foot bridge or a similar type of link to access the Mauka Parcel from Edita Street, however this connectivity would be done within the appropriate access right-of-way for the Mauka parcel. (Emphasis added) CROA: 417-418. Any other"agriculture"would have to be created by the Appellant's faculty and students. AB: 27. The argument that the properties could support any agricultural activity contradicts the substantial evidence from the State, County, Appellant, Appellant's experts and even the neighbors to the subject property. The Commission clearly abused is agency discretion because the denial of CBESS' application(CROA: 4300-4315) was "arbitrary, or capricious, or characterized by ... [a] clearly unwarranted exercise of discretion." See, Sec. 91-14(g)(6), HRS. The Commission's rejection "clearly exceeded the bounds of reason or has disregarded rules or principles of law or practice to the substantial detriment of a party litigant," because it ignored all the substantial and competent evidence presented in this application. Williams v. Aona, 121 Hawai'i 1, 7, 210 P.3d 501, 507 19 (2009); Roxas v. Marcos, 89 Hawai'i 91, 115, 969 P.2d 1209, 1233 (1998); Kealoha v. Cnty. of Hawaii, 74 Hawaii 308, 318-19, 844 P.2d 670, 675 (1993). The Commission didn't "weigh" any competing evidence, it simply chose to ignore all of the Appellant's evidence and made up it's own to support its rejection. III. CONCLUSION The "Special Permit"process pursuant to Chapter 205, HRS, is intended to "protect and conserve natural resources and foster intelligent, effective, and orderly land allocation and development."Kauai Springs, Inc. v. Planning Comm'n of Cnty. of Kauai, 130 Haw. 407, 426, 312 P.3d 283, 302 (Ct. App. 2013)cert granted sub nom. Kauai Springs, Inc. v. Planning Comm'n of Cnty. ofKaua'i, No. SCWC 29440, 2013 WL 4779589 (Haw. Sept. 4, 2013) and affd, 133 Haw. 141, 324 P.3d 951 (2014); see also Cnty. of Hawaii v. Ala Loop Homeowners, 123 Hawaii 391, 409, 235 P.3d 1103, 1121 (2010). No. 395, in 1961 House Journal, at 85556). Section 205-6, HRS gives the Commission the authority to approve projects in state agricultural districts "when the use would promote the effectiveness and objectives of HRS Chapter 205. (Emphasis added)." Kauai Springs, Inc. v. Planning Comm`n of Cnty. of Kauai, 130 Haw. 407, 426, 312 P.3d 283, 302 (Ct. App. 2013) cert. granted sub nom. Kauai Springs, Inc. v. Planning Comm`n of Cnty. ofKaua'i,No. SCWC 29440, 2013 WL 4779589 (Haw. Sept. 4, 2013) and affd, 133 Haw. 141, 324 P.3d 951 (2014). The process does not give the Commission the opportunity to create its own standards and hurdles, not present in state law, solely to deny a special permit application in a state agriculture district. The Commission's rejection was the antithesis to fostering "intelligent, effective, and orderly land allocation and development." The Commission's rejection was arbitrary and 20 capricious because it had to conjure up reasons to reject the Application. The Commission actually increased the arbitrariness of the process and made it more prone to influence and special interests than objective, intelligent, effective, or orderly land development. The question for this Court is will it allow the Commission to disregard the law, disregard their duty to uphold the law, and corrupt the law to protect their privileged friends? When public servants, like the Commissioners who voted to reject the Application, intentionally and deliberately violate their duty to the detriment of others, it falls upon the Court to protect those who have been harmed and admonish those public servants who serve themselves and their friends first, before serving the purposes and intent of the law. The Appellee Commission should be reversed because: A. The Commission lacked any authority to adjudicate violations of the Hawaii County General Plan; B. The Commission abused its discretion, based on the substantial and reliable evidence that the Appellant's project was an "unusual and reasonable use of the land;" C. The Commission abused its discretion, based on the substantial and reliable evidence that the Appellant's project would promote the effectiveness and objectives of Chapter 205, HRS; D. Award the Appellant the following remedy, including but not limited to: 1. Reverse the Findings of Fact, Conclusions of Law and Decision and Order adopted by the Windward Planning Commission on May 1, 2014 and May 19, 2014, respectively. CROA 4293; 4300-4315. 2. Grant in whole, CBESS' application of July 25, 2012, filed with the 21 County of Hawaii Planning Department, for a Special Permit, pursuant to Section 205-6, Hawaii Revised Statutes ("HRS") and Rule 6 of the County of Hawaii Planning Commission Rules of Practice and Procedure to allow the development of a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres situated in the State Land Use Agricultural District, at Ponahawai, Kukuau 2"d, South Hilo, Hawaii, and further identified by Tax May Key ("TMK") (3)2-5-006:141 (CROA: 1-404); or, 3. Remand the matter to the Appellee Windward Planning Commission with the specific instruction to grant in whole, CBESS' application of July 25, 2012; 4. The Court order the Appellees to pay the Appellant's attorney's fees and costs in the present case; and 5. Admonish and recommend the County remove the Commissioners who voted against the Appellant's Application as unfit to serve on public commissions and boards because they violated their legal duty. DATED: Hilo, Hawaii, March 26, 2015. Respectfully submitted, D H. S. HON Attorney at Law Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 22 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 RI SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) CERTIFICATE OF SERVICE vs. ) ) WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING, COUNTY OF HAWAII, ) Appellees, ) and ) JEFFREY K. GOMES, ) Intervenor-Appellee. ) JUDGE: Hon. RONALD IBARRA CERTIFICATE OF SERVICE I hereby certify that the foregoing document was duly served via U.S. Mail, postage prepaid, on the date indicated below, to the following: CARTER K. SIU, ESQ. Deputy Attorney General State of Hawai'i 235 S. Beretania Street, Rm. 304 HonoIuIu, Hawaii 96813 Attorney for Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL I AMY G. SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee COUNTY OF HAWAI'I PLANNING DIRECTOR DANNY B. PATEL, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'l MICHAEL J. MATSUKAWA, ESQ. 75-575I Kuakini Hwy., Ste. 20I Kailua-Kona, Hi 96740 Attorney for Appellee JEFFREY K. GOMES DATED: Hilo, Hawaii, March 27, 2015. 2, )/-) �2 E H. S. HON Attorney at Law Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES • 2 L`L' CInCL'I� -OuRT Ole MOLLY A. STEBBINS 8639 7F'F '"`'' IZ''��IT STA; or II; W►ill Corporation Counsel 201u MAR 23 PM l: 17 DANNY B. PATEL 9578 Deputy Corporation Counsel County of Hawaii 101 Aupuni Street, Suite 325 LER14.�= Hilo, Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: danny.patel@hawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, WINDWARD PLANNING COMMISSION, Applicants-Appellants, COUNTY OF HAWAI`I'S ANSWERING BRIEF TO CONNECTIONS NEW CENTURY vs. PUBLIC CHARTER SCHOOL'S OPENING BRIEF FILED FEBRUARY 17, 2015; WINDWARD PLANNING COMMISSION, CERTIFICATE OF SERVICE COUNTY OF HAWAII, Appellee, and .JEFFREY GOMES, Intervenor, Intervenor-Appellee. Judge: The Honorable Ronald lbarra TABLE OF CONTENTS TABLE OF AUTHORITIES H 1. INTRODUCTION ....................................................................................................... t 11. COUNTER-STATEMENT OF QUESTION PRESENTED FOR DECISION .......... 2 11I. STATEMENT OF FACTS ........................................................................................... 2 1V. STANDARD OF REVIEW........................... ............................................................ V. ARGUMENT ................................................................................................................ 7 1. The Record Supports the Commission Finding Surrounding Properties Wou1d be Adversely Affected If It Granted The Special Permit. . ................... 7 2. The Record Supports The Commission Finding The Applicants' Desired Use Would Unreasonably Burden County Agencies. ...................................... t 0 3. The Commission Correctly considered Whether There Was A Need Justifying Connections' School Being Built On State Agricultural Land. ....... 10 4. The Record Supports The Commission Finding The Property is Suited For The Uses (i.e. Agriculture) Permitted Thereon. . .............................................. 11 5. The Record Supports The Commission Finding Applicants' Request is Contrary To The General Plan. . ....................................................................... 12 V1. CONCLUSION 2 TABLE OF AUTHORITIES CASES Aio v. Hamada 66 Haw. 401, 664 P.2d 727 (1983).................................................................................................. 6 City of Chicago Heights v. Living Word Outreach Full Gospel Church & Ministries Inc. 196 I11. 2d 1, 749 N.E.2d 916 (2001)............................................ In re Contested Case Hearing On the Water Use Permit Application Filed By Kukui (Molokai) Inc. 1 ]6 Haw. 481, 174 P.3d 320 (2007)...................•...........................................-----.------..................... 6 Outdoor Circle v. Harold K.L. Castle Trust Estate 4 Haw. App. 633, 675 P.2d 784 (1983)-•....................................................................... ... ......... 6 Paul v. Dep't of-Transportation, State of'Hawai`i 115 Haw. 416, 168 P.3d 546 (2007)................................................................................................ 6 STATUTES Hawaii Revised Statutes Section91-10(5) .........................................................••------.-•--........................................ .--.. 9 Section 91-14............................................... ..--- I Section91-14(g) ................................................................... Section 91-14(g)(1-5).............................................................................. Section 205 ............................................................................ ....... 2, 3, 11 .................................... Section205A.................................................•---...............................................--•------.................. 2 Section205-2.................................•-------.---•--.............................................--. Section205-2(d).........................................•--................................................. Section205-4.5 ......................................................................................................................... 1 1 Section205-4.5(a)..................................................................................................................... 11 Section205-5 ............................................................................................................................ 11 Section205-6............................................................................................... RULES Hawaii Administrative Rules Section15-15-25(b).............................................. ................................................................... 11 ii County of Hawaii Planning Commission Rules of Practice and Procedure Rule6........................................................................................................................................ 3 Rule6-3(b)(5) ........................................................................... ............. 3 Rule6-3(b)(5)(A-G).............................•.................................................................................... 3 Rule 6-3(b)(5)(B)....................................................................... ................... 7, 9 ........................ Rule6-3(b)(5)(C).................................................................................................................... 10 Rule6-3(b)(5)(E) ........................................................................................ Rule6-3(b)(5)(G).................................................................................................................... 12 Rule6-7..................................................................................................................................... 3 HAWAII COUNTY CODES Hawaii County Code 1983 (2005 edition) Section25-5-72(a) ....................................................................... ....................................... l 1 Section25-5-72(d)..................................................................I........I............. ••... ......... 8 Section25-5-72(d)(7).................................................................................................................. 9 iii WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`I'S ANSWERING BRIEF TO CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S OPENING BRIEF FILED FEBRUARY 17, 2015 COMES NOW, Appellee Windward Planning Commission ("Commission"), County of Hawaii ("County"), by and through its undersigned counsel, pursuant to Hawai'i Revised Statutes ("HRS") § 41-14 and Rule 72 of the Hawaii Rules of Civil Procedure, and hereby respectfully submits its Answering Brief to Connections New Century Public Charter School's Opening Brief filed February 17, 2015 ("OB"). Applicant-Appellant Connections New Century Public Charter School ("Connections") purports to substantively join and incorporate by reference Appellant Community Based Education Support Services' ("CBESS") Opening Brief filed December 24, 2014 ("CBESS' OB").1 Accordingly, the Commission directs the Court to the Answering Brief Of Appellee Windward Planning Commission, County Of Hawaii, filed in response to CBESS' OB ("Commission's AB to CBESS' OB") on March 13, 2015. Additionally, the Commission responds as follows: I. INTRODUCTION Connections' OB is misleading with respect to State and County land use law. Schools are permitted under the Hawaii County Code ("HCC") only ira Special Permit is obtained. In addition, Connections places the shoe on the wrong foot— it is not an intervenor or community's burden to prove an application for a Special Permit must be denied. Rather, it is an applicant's burden to prove its application should be granted. Connections did not meet its burden. The record on appeal supports the Commission's denial of the Special Permit Application, SPP 12- 000138 ("Application"). Accordingly, the Commission's decision should be affirmed. OB,p. 2. II. COUNTER-STATEMENT OF QUESTION PRESENTED FOR DECISION The ultimate question presented for decision is whether the Commission correctly denied the Application when, in its discretion, there was substantial evidence on the record as a whole, weighing in favor of denial. For the reasons discussed in the Commission's AB to CBESS' OB and herein, the Application was correctly denied. III. STATEMENT OF FACTS Connections and CBESS (collectively, "Applicants") applied for a Special Permit to develop land leased from the State of Hawaii, and identified as TMK (3) 2-5-006:141 ("Property"), which covers 70.15 acres. ROA, pp. 1, 15. Applicants sought "to develop a K to 12 charter school campus with dorm facilities, intergenerational programs, a sustainable agriculture program and a forestry/conservation program." Id. The proposed [i]ntergenerational programs [would] provide childcare and elder care." RDA, p. 28. The Applicants were allowed no less than five public hearings and five days of contested case proceedings, within which to meet their burden to establish the Application met the criteria required for a Special Permit. RDA, pp. 1547, 1828, 2003, 2130, 2596, 2851, 3002, 3043, 3186, & 4261. The Hearings Officer determined the Applicants did not meet their burden. ROA, p. 4300. The Commission agreed and denied the Application. ROA, pp. 4300-15. Applicants identified State and County plans affecting the Application as: HRS §§ 205 and 205A, the County of Hawaii ("County") General Plan, and County zoning ordinances. ROA,pp. 35, 43-52. The land is zoned Agricultural L-acre (A-1 a) with Land Study Bureau soil classification "D," ROA, P. 25, and is located in Kaumana, South Hilo, ROA, p. 27. 2 A Special Permit may be granted if the criteria required under HRS § 205-6 and Rule 6 of the Commission Rules are met. ROA, p. 4306,paragraph ("para. ') 35. Specifically, those criteria are: The Commission shall not approve a Special Permit unless it is found that the proposed use: (a) Is an unusual and reasonable use of land situated within the Agricultural or Rural District, whichever the case may be; and (b) Would promote the effectiveness and objectives of Chapter 205, Hawaii Revised Statutes, as amended. The Commission shall also consider the criteria listed under Section 6-3(b)(5)(A) through (G). Rule 6-7 of the Commission Rules. Under Rule 6-3(b)(5) of the Commission Rules, "the following criteria shall also be addressed:" (A) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations; (B) The desired use shall not adversely affect surrounding properties; (C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and fire protection; (D) Unusual conditions, trends, and needs have arisen since the district boundaries and regulations were established, (E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district; (F) The proposed use will not substantially alter or change the essential character of the land and the present use; and (G) The request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design Plans. At the time of the Application, Applicants acknowledged unresolved issues concerning their planned development ("Development"), "particularly with regards to infrastructure and 3 engineering." ROA, p. 27. The Property "is bounded along much of its perimeter by residences on Kaumana Drive, Edita Street and Melemanu Street." ROA,p. 68. A concern consistently expressed is "Increased traffic in the area and the use of Edita Street to access the campus." ROA, p. 42. There was considerable testimony and petitions were signed by surrounding residents, opposing the development. ROA, pp. 405-11, 788-93, 819-22, 829-35, 841-42, 875- 76 879-80, 1203, 1253, 1263-71, 1290, 1313-1417, and 1420-32. Among others, primary concerns related to traffic and quality of life of surrounding property owners. Id. Despite its location within the 1880-1881 lava flow and resultant thinning of soils, "[m]uch of the land surrounding the project site historically was used for intensive agricultural cultivation. Over time, some of these lands have been converted to residential use, although some agricultural uses remain." ROA, p. 121. Approximately 20 acres would be "allocated for the agricultural/cultivation area" ROA, p. 74. Applicants envisioned their project to include cultivated crops such as "vegetables, taro, fruit trees, native plants, and ornamental plants." ROA,p, 72. When asked what would happen if the Application was denied, Applicants indicated, "Agriculture, Forestry Conservation, green houses, Hydroponics, etc, [sic]." ROA,pp. 970, 950. Applicants elaborated, Well, we're not planning a traditional agricultural curriculum. What we're talking about is hydroponics, greenhouses, future, future-oriented agriculture. So while the land is not great land for traditional agriculture, the land is very similar to a lot of areas on this island where it is possible to develop sustainable agriculture using systems like hydroponic systems. ROA, p, 1560. Applicants further explained that their plans to include a horse stable on the Property was part of the concept of sustainable agriculture stating, "horse manure is some of the best fertilizer that you can get for using in Hawaiian soils." ROA, p. 1561. The Property would also house chickens, other fowl, and maybe goats. ROA, p. 1562. 4 The former County Planning Director ("Former Director") acknowledged that the Application did not meet all the criteria for approval of Special Permit. ROA, p. 883. The Former Director noted the current character and present use of the subject property is undeveloped, vacant of structures and uses. The current character of the surrounding area is residential to the north and residential/agricultural to the south. The present use of the surrounding area is mainly residential with some agricultural activity and vacant land. The proposed school will alter or change the essential character of the land and its present use from its current undeveloped character. . . . ROA, p. 890 (emphasis added). On May 19, 2014, the Commission entered the County of Hawaii Windward Planning Commission's Findings of Fact, Conclusions of Law and Decision and Order ("D&O"), concluding that the Application did not meet the requirements for granting a Special Permit. ROA, pp. 4300-15. IV. STANDARD OF REVIEW In reviewing an agency appeal, the Circuit Court applies the standards set forth in HRS § 91-14(g): Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are: (1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedure; or (4) Affected by other error of law; or (5) Clearly erroneous in view of the reliable, probative, and substantial 5 evidence on the whole record; or (6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. "Under HRS § 91-14(g), conclusions of law are reviewable under subsections (1), (2), and (4); questions regarding procedural defects are reviewable under subsection(3); [FOFs] are reviewable under subsection (5); and an agency's exercise of discretion is reviewable under subsection(6)." Paul v. Dep't of Transp., State of Hawai`i, 115 Haw. 416, 426, 168 P.3d 546, 556 (2007) (alteration in original, citations and internal quotation marks omitted). Therefore, an agency decision may be reversed only for very narrow and specific reasons. A conclusion of law is not binding upon an appellate court and is freely reviewable for its correctness under the right/wrong standard. Id. In reviewing findings of fact, under the clearly erroneous standard, "a reviewing court will not disturb agency findings and conclusions unless it is left, after examining the record, with a `definite and firm conviction that a mistake has been made."'Aio v. Hamada, 66 Haw, 401, 406, 664 P.2d 727, 731 (1983) (citations omitted). "When mixed questions of law and fact are presented, an appellate court must give deference to the agency's expertise and experience in the particular field. `[T]he court should not substitute its own judgment for that of the agency."' In re Contested Case Hearing On the Water Use Permit Application Filed By Kukui (Molokai) Inc., 116 Haw. 481, 489, 174 P.3d 320, 328 (2007) (alteration in original, citations omitted). Furthermore, "a review of an agency's decision is always tempered by the precept that [i]n order to preserve the function of administrative agencies in discharging their delegated duties and the function of this court in reviewing agency determinations, a presumption of validity is accorded to decisions of administrative bodies acting within their sphere of expertise." Outdoor Circle v. Harold KL. Castle Trust Estate, 4 Haw.App. 633, 639, 675 P.2d 784, 789 6 (1983) (citations omitted). "[O]ne seeking to upset the order bears 'the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences."' Id. (emphasis added and citations omitted). V. ARGUMENT Schools are permitted under HCC only if a Special Permit is obtained. It was Applicants' burden to prove the Application should be granted. Applicants did not meet their burden. Ultimately, the Commission correctly exercised its discretion in denying the Application, as there was substantial evidence on the record as a whole, weighing in favor of such denial. Accordingly, because no Special Permit was granted, the proposed school was not a permitted use of the Property under HCC. The following addresses the arguments in Connections' OB in the same order made. 1. The Record Supports The Commission Finding Surrounding Properties Would Be Adversely Affected If It Granted The Special Permit. Before a Special Permit may be granted, Rule 6-3(b)(5)(B) requires the Commission to consider, "[t]he desired use shall not adversely affect surrounding properties." As discussed in the Commission's AB to CBESS' OB, pp. 17-25, the record supports the Commission finding surrounding properties would be adversely affected if it granted the Special Permit. However, citing to inapposite case law, Connections argues: The Commission's decision to deny the special permit, however, was impermissibly broad and non-specific, because it failed to discuss and provide particular "facts and circumstances that show that the particular use proposed at the particular location proposed would have any adverse effects above and beyond those inherently associated with such a special exception use irrespective of its location within the zone." City of Chicalzo Heights v. Living Word Outreach Full Gospel Church & Ministries Inc., 196 111. 2d 1, 22, 749 N.E.2d 916, 929 (2001)(italics in original). Here, the Commission made no such finding; nor was there evidence that the proposed school would have any adverse affects if placed at any location within the community. 7 UB, p. 7. Connections argues, "[t]he requirement to obtain a special permit for a permitted use is, as a matter of law, a determination that the proposed use is appropriate for the community. UB, P. 6. Living Word is inapposite because it was decided based upon the Chicago Heights Municipal Code. That Code is substantively different than the applicable law in the instant case. See id. at 4-5, 749 N.E.2d 916, 920. In that case, Church's special use permit was denied by the City Council "because it believed that all noncommercial uses were incompatible uses" for the area involved. Id. at 18, 749 N.E.2d 916, 927. The Church was a noncommercial use. Id. The court found the City Council's rationale for denying the permit amounted to a finding that churches are per se incompatible uses in the area involved. Id. at 19, 749 N.E.2d 916, 928. Such a per se finding was in error because "[a] special exception use" has been legislatively determined to be "neither inconsistent with the public's health, safety, morals or general welfare, nor out of harmony with the town's general zoning plan." Id. at 17, 749 N.E.2d 916, 927. The court noted, [fJor example, the number of parking spaces needed by a church may vary considerably depending upon the availability of parking spaces in the neighborhood at the time the church holds services. Thus, although a church might be considered a desirable and appropriate use within a zoning district, the municipality may classify it as a special use and may require, for example, that parking problems be resolved before granting a special use permit to a property owner that would allow the owner to use the property as a church. Id. at 16, 749 N.E.2d 916, 926 (citations omitted). Unlike in Living Word, the Commission did not find schools to be a per se incompatible use in agricultural districts. Importantly, the Hawaii County Council determined schools would be allowed in agricultural districts only if"a special permit is issued for each use if the building site is within the State land use agricultural district." HCC § 25-5-72(d). It is undisputed 8 Connections' proposed school is within the State land use agricultural district. As a threshold matter, HRS § 205-6 and related regulations control whether a Special Permit may be granted. Accordingly, inclusion of"schools" in HCC § 25-5-72(d)(7), has no bearing on whether Applicants' proposed use would `'adversely affect surrounding properties" for purposes of first considering whether the requirements for a Special Permit are met. Even if the Living Word standard applied in the instant case, it would be Applicants' burden to prove "the proposed school would [not] have any adverse affects if placed at any location within the community." There was no evidence presented to that effect. The suggestion that it would be intervenors' or surrounding property owners' burden to prove the opposite is untenable.3 As discussed in the Commission's AB to CBESS' OB, pp. 11-14, the Commission alone is empowered to determine whether an application meets the criteria required for granting Special Permits. One criterion is "[t]he desired use shall not adversely affect surrounding properties." Rule 6-3(b)(5)(B) of the Commission Rules. Only if the Commission determined any concerns about granting the Special Permit were sufficiently resolved, could Applicants have been granted a Special Permit. For example, the Commission properly considered the concerns raised by the surrounding community regarding traffic. In addition, Applicants' own expert witness indicated the Traffic Impact Analysis Report may be too outdated for the State Land Use Commission. See Commission's AB, p. 19-23. Notwithstanding, Applicants repeatedly attempt to convince the Court that the Commission denied the Application based on nothing more than community 2 HRS § 91-10(5). 3 OB, p. 7{". . . nor was there evidence that the proposed school would have any 9 opposition. However, the record is clear the Application, together with Applicants' own admissions throughout the administrative proceedings, simply did not meet the criteria required for a Special Permit. In properly exercising the discretion afforded it, the Commission correctly denied the Application. 2. The Record Supports The Commission Finding The Applicants' Desired Use Would Unreasonably Burden County Agencies. Before a Special Permit may be granted, Rule 6-3(b)(5)(C) requires the Commission to consider whether such use will "unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and fire protection." As discussed in the Commission's AB to CBESS' OB, pp. 19-25, the record supports the Commission finding the Applicants' desired use would unreasonably burden County agencies. In sum, there remained significant questions regarding the Development's traffic effect on surrounding properties and the burden on public agencies. Nor did Applicants establish they could develop sufficient water for the Development, regardless of any proposed conditions. 3. The Commission Correctly Considered Whether There Was A Need Justifying Connections' School Being Built On State Agricultural Land. Before a Special Permit may be granted, Rule 6-3(b)(5)(D) requires the Commission to consider whether "[u]nusual conditions, trends, and needs have arisen since the district boundaries and regulations were established." Connections argues, "[a] plain reading of. . . rule [6-3(b)(5)(D) of the Commission Rules] does not require Connections to justify a need for a school at a particular location." OB,p. 10. Contrary to Connections' argument, a plain reading of the foregoing rule requires the Commission to consider whether the proposed school is an adverse affects if placed at any location within the community.). 10 appropriate use of the Property, in light of any needs that may have arisen since the Property was classified in the agricultural district. In other words, if Connections' school is not an expressly permitted use of State agricultural land (which it is not), what need, arising after the Property was classified agricultural,justifies permitting the school to be built on the Property within the agricultural district? Accordingly, the Commission correctly considered whether there was evidence presented to justify location of Connections' school on the agricultural Property. It was within the Commission's discretion to determine the Applicants did not meet their burden with respect to this consideration. 4. The Record Supports The Commission Finding The Property Is Suited For The Uses (i.e. Aericulture) Permitted Thereon. Before a Special Permit may be granted, Rule 6-3(b)(5)(E) requires the Commission to consider whether "[t]he land upon which the proposed use is sought is unsuited for the uses permitted within the district." As discussed in the Commission's AB to CBESS' OB, pp. 25-28, the record supports the Commission finding the Property is suited for agriculture. The Property is located within the State agricultural district. ROA, p. 2342. Due to its soil class (i.e. D), the Property may not be suited for all types of agriculture as prime agricultural lands. However, in sum, the expressly permitted uses under HRS §§ 205-4.5(a)4 and 205-2(d) include agricultural activity that Connections itself stated it would perform on approximately 20 acres of the 4 Note that Hawai'i Administrative Rule § 15-15-25(b) states, "[p]ermissible uses within the agricultural district on land with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class of C, D, E, and U shall be those uses as set forth in sections 205-2, 205-4.5, and 205-5, HRS, and also uses compatible to the activities described in 205-2(d), HRS." Accordingly, the expressly permitted uses under HRS § 205-4.5(a) for lands with soil class A and B also apply to lands with soil class D. Additionally, HCC § 25-5-72(a) recognizes/lists the permitted uses under in HRS § 205. 11 Property. ROA, pp. 20, 72, 74, 950, 970, 1560-62, and 2650-52. Thus, it cannot be said the Property is unsuited for the agricultural uses permitted thereon. 5. The Record Supports The Commission Finding Applicants' Request Is Contrary To The General Plan. Before a Special Permit may be granted, Rule 6-3(b)(5)(G) requires the Commission to consider whether "[t]he request will not be contrary to the General Plan . . . ." Connections apparently argues the Commission is afforded no discretion in making its determination. Yet, it readily concedes the General Plan "was meant to be interpreted broadly as =land use pattern is a broad, flexible design intended to guide the direction and quality of future developments in a coordinated and rational manner."' OB, p. 12. Attempting to find support for its argument, Connections cites to certain sections of the General Plan, with which it argues the Application was consistent. The Commission is afforded discretion in determining Special Permit applications. By Connections' own admissions, there are no hard-and-fast rules dictating that the Commission must have found the Application to be consistent with the General Plan,' As discussed in the Commission's AB to CBESS' OB, pp. 5-11, 17-25, and 29-30, the Commission properly found the Application to be inconsistent with certain parts of the General Plan. Accordingly, and only after considering the record as a whole, the Commission properly exercised its discretion when it denied the Application. VI. CONCLUSION The Commission objects to Connections' arguments. As stated supra, the ultimate question presented for decision is whether the Commission correctly denied the Application when, in its discretion, there was substantial evidence on the record as a whole, weighing in 12 favor of denial. Connections' disagreement with the Commission's decision is immaterial. The Commission alone is authorized to make the decision. At a minimum, Connections has not met its heavy burden to prove the presumptively valid agency decision appealed from should be reversed or remanded for further proceedings. As a whole, the record supports the Commission's discretionary decision to deny the Application. Accordingly, the Commission's decision should be affirmed and Connections' claims denied in full. Dated: Hilo, Hawaii, Respectfully submitted, By - DANNY B. P EL Deputy oration Counsel County of Hawaii 5 See paragraph immediately supra. 13 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, CERTIFICATE OF SERVICE Applicants-Appellants, vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, AppeIIee, and JEFFREY GOMES, Intervenor, Judge: The Honorable Ronald Ibarra Intervenor-Appellee. CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing document was served upon the parties below at their respective addresses by depositing the same in the U.S maiI, postage prepaid on 2015 TED H.S. HONG, ESQ. Hilo Lagoon Centre 101 Aupuni Street, PH 1002A Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SN, ESQ. Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MICHAEL J. MATSUKAWA, ESQ. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES Dated. Hilo, Hawaii, MAR 2 7 DAI B AT Deputy Co on Counsel 2 r cc: Carter K.Siu,Esq. Ted Hong,Esq, 2015 APR — PN 2P 0 Michael Matsukawa, Esq. Amy Self,Esq. Molly Stebbins,Esq. IN THE CIRCUIT COURT OF THE THIRD CIRt�I TTA C '�� �C ARK SRI) CIRCUIT COU T STATE OF HAWAI'I STS ` c� N3= wA'I COMMUNITY BASED EDUCATION ) Civil No. 14-1-223 SUPPORT SERVICES, ) NOTICE OF STATUS CONFERECE ) Applicant-Appellant, ) ) vs. ) } WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAI'I, ) DATE: Apirl 22, 2015 Appellee, ) TIME: 4:00 p.m. ) and ) ) JEFFREY GOMES, ) Intervenor-Appellee. ) } NOTICE OF STATUS CONFERENCE YOU ARE HEREBY NOTIFIED that a Status Conference shall come on for hearing before the presiding Judge of theThird Circuit, Division 3 in his courtroom located at 81-940 Haleki'i Street, Keakakekua, Hawai'i 96750, on April 22, 2015 at 4:00 p.m. or as soon thereafter as counsel can be heard. This Status Conference is called to discuss the setting of the Oral Arguments. Counsel are instructed to call in five minutes before the hearing to (808) 443-2210. DATED: Kealakekua, Hawaii -512�1��� CLERK O ABOV TITLED COURT 1 r CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Notice of Rescheduled Hearing was duly served by depositing the same in the United States mail, postage prepaid, on March 31, 2015, addressed to: Ted H.S. Hong, Esq. P.O. Box 4217 Hilo, HI 96720 Michael J. Matsukawa, Esq. 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, HI 96740 Molly A. Stebbins, Esq. Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Amy G. Self, Esq. Deputy corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Carter K. Siu, Esq. Deputy Attorney General State of Hawai'i 235 S. Beretania Street, Rm. 304 Honolulu, Hawaii 96813 2 1t ORIGINAL DOUGLAS S. CHIN 6465 Attorney General, State of Hawaii HOLLY T. SHIKADA 4017 CARTER K. SIU 7313 Deputy Attorney General es i 23.5 South Beretania Street. Room 304 0 0 Honolulu, Hawaii 96813 ca Telephone No. 808.586.12.5.5 Carter.K.S iu @ haw aii.&ov = �r7 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES; CONNECTIONS ) (AGENCY APPEAL) NEW CENTURY PUBLIC CHARTER ) SCHOOL; ) CONNECTIONS NEW CENTURY PUBLIC Applicants-Appellants ) CHARTER SCHOOL'S REPLY BRIEF TO WINDWARD PLANNING COMMISSION, vs. ) COUNTY OF HAWAII'S ANSWERING BRIEF; CERTIFICATE OF SERVICE WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; ) Appellee, ) And ) JEFFREY GOMES, Intervenor, ) Intervenor-Appel lee ) Judge: The Honorable Ronald Ibarra CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S REPLY BRIEF TO WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`I'S ANSWERING BRIEF Applicant-Appellant, Connections New Century Public Charter School ("Connections"), by and through its undersigned counsel Carter K. Siu, Deputy Attorney General, and pursuant to Rule 72(f), Hawaii Rules of Civil Procedure, hereby submits its Reply Brief to Windward Planning Commission, County of Hawai`i's Answering Brief for this Court's review and consideration. It was initially believed that the Appellee Windward Planning Commission, County of Hawaii's (Commission) prior Answering Brief filed on March 13, 2015 addressed both Opening Briefs, it is apparent that it did not as the Commission filed yet another Answering Brief on March 27, 2015. I. DISCUSSION A. A School is a Permitted Use of Agricultural Land The Commission's answering brief suggests that the proposed use of agricultural land for a school is not a permitted use under Hawaii County zoning ordinances. That is not the case. With regard to permitted uses within agricultural zones, §25-5-72 of the Hawaii County Code, entitled "Permitted Uses," specifically lists a "school" as a permitted use upon issuance of a special permit: "[L]he following uses may be permitted in the A district, provided that...a special permit is issued for each use if the building site is within the State land use agricultural district." §25-5-72(d)(7). It is therefore incongruent to argue that a school is not a permitted use when a school is found under the section entitled "Permitted Uses." See also Neighborhood Bd. No. 24 (Waianae Coast) v. State Land Use Comm'n, 64 Haw. 265, 270-71, 639 P.2d 1097, 1101-02 (1982)(emphasis added). Although the Commission would like this Court to believe that a school is a prohibited use, the statutes, rules, and ordinances state otherwise. 2 B. Hawaii County Special Permit Factors 1. Adverse Effects on Surrounding Property Owners The Commission's initial argument is that the case law cited by Connections is "inapposite" because the decision was based on Chicago's municipal code and that it is substantively different that the Hawaii County Code. Other than saying that they are different, the Commission does not expend the time or energy to explain the differences and why it makes a significant difference in analyzing whether a school is a permitted use under county ordinances. The Commission makes no attempt to distinguish or refute the following statement of law: Because special uses, as such, are considered compatible with other uses in the zoning district in which they are included, it is generally held that an application for a special use permit may not be denied on the ground that the use is not in harmony with the surrounding neighborhood. 3 K. Young, Anderson's American Law of Zoning § 21.13, at 743 (4th ed. 1996). Instead, a special use permit " `must be denied when it is determined from the facts and circumstances that the grant of the requested special exception use would result in an adverse effect upon adjoining and surrounding properties unique and different from the adverse effect that would otherwise result from the development of such a special exception use located anywhere within the zone. Thus, * * * the appropriate standard to be used in determining whether a requested special exception use would have an adverse effect and, therefore, should be denied is whether there are facts and circumstances that show that the particular use proposed at the particular location proposed would have any adverse effects above and beyond those inherently associated with such a special exception use irrespective of its location within the zone.' " (Emphasis in original.) 3 E. Ziegler, Rathkopf's Law of Zoning & Planning § 41.08, at 41-36 (4th ed. 1992), quoting People's Counsel v. Mangione, 85 Md.App. 735, 749-50, 584 A.2d 131.8, 1323 (1991). City of Chicago Heights v. Living Word Outreach Full Gospel Church & Ministries, Inc., 196 I11.2d 1, 21-22, 749 KE.2d 916, 929 (2001). 3 Additionally, although the Commission believes that it does not have the burden to establish that the proposed use does not adversely affect surrounding property owners, its decision must set forth the reasons why Connections failed to establish its burden. In its opposition, the Commission raised an issue regarding an alleged "outdated traffic impact analysis report." However, that was not the basis stated in the decision at paragraphs 46 and 47 of the decision. What was stated in paragraphs 46 and 47 had everything to do with the "testimony from surrounding and neighboring property owners" and that the evidence did "not appear to be sufficient to mitigate the overwhelming concerns raised by surrounding property owners." The Commission needs to address its own decision, which was clearly based solely on community concerns. As stated in Connections' opening brief, the Commission's decision cannot be based on a community's concerns. Because it was— despite the Commission's last minute argument— the Commission's decision must be overturned. 2. Burden.on Public AlZencies to Provide Services The Commission also fails to justify its denial of the special permit based on the alleged insufficient potable water supply. While it is admitted that potable water is limited, there has been no discussion or evidence that this would unreasonably burden county agencies. Merely stating that it will burden the County does not establish that it will. Also, the question to be answered is not whether other community members will be impacted, but whether public agencies will be burdened. Thus, impact on surrounding property owners is not a factor. In addition, the Commission attempts to insert a "finding of fact" that traffic concerns were also a basis to support the Commission's decision. Much like the previous section, the Commission's decision on whether public agencies will be burdened is devoid of any discussion 4 of traffic concerns. See Decision at Paragraphs 48-51. It was and is therefore improper to try and amend or alter the Commission's decision in order to avoid an adverse decision on appeal. The Commission's failure to support its decision to deny a special permit because of a limited supply of potable water is grounds for reversal of its decision. 3. Unusual Conditions, Trends, and Needs The Commission once again would like this Court to look at this piece of property singularly, rather than the zoning district as a whole. That is why it has advanced an argument that any special use must be "needed" in that particular location in the community. The regulation, however is not that narrow, and states "[u]nusual conditions, trends, and needs have arisen since the district boundaries and regulations were established." Despite this, the Commission fails to explain why a more narrow interpretation is required and instead blames Connections for failing to justify the location of its school on agricultural property. In other words, the Commission's argument is that although a school is a permitted use within an agricultural zone (if Connections obtains a special permit), Connections cannot get a special permit unless it establishes that it is a "justified" use within an agricultural district. Therein lies the problem, as the Commission's only justification is circular in nature. It would seem logical that an unusual condition or trend to allow for the special permit is that most, if not all of the Kaumana properties are not being put to agricultural use despite being on agricultural lands. That is why the property can be used for purposes of a school. It was expected that the Commission would attempt to justify its not-in-my-backyard argument with something more concrete than "[i]t was within the Commission's discretion to determine the Applicants did not meet their burden with respect to this consideration." Its failure to explain why Connections was required to prove that its school serviced the particular 5 Kaumana community highlights the fallacy and inadequacies of the decision. As a result, the decision must be reversed. 4. Agricultural Uses The Commission's argument justifying its conclusion that the land is suitable for agricultural use because Connections is leaving one portion of its land in its current form (e.g., forest) while proposing to build a greenhouse as part of its school curriculum and programs is clearly erroneous. This would mean that all agricultural lands, regardless of its soil classification, must be classified as suitable for agriculture because of advances in technology and farming practices. In other words, there would be no need to distinguish prime agricultural land from poorly rated land because both would be equally suitable for agriculture. Taken to its logical extreme, any store with a garden section that sells plants can be considered to be using its land for agricultural purposes and that the land is therefore suitable for agricultural purposes. However, to the extent that the Commission believes that Connections will engage in agricultural practices, it cannot therefore be said that the proposed development will substantially alter or change the essential character of the land and the present use. As stated previously, the intention is to have one portion of the land remain as is; this means that the essential character will not change. The other portion will be used for school facilities, including what the Commission has determined to be agricultural. Thus, it cannot be said that there is a substantial alteration or change in the character of the land. 5. The General Plan The Commission misconstrues its own General Plan as it does not want it to be broadly construed to allow for a school within the Kaumana area. Instead, it is clear that the Commission wants a more narrow interpretation in order to exclude items for which the law (i.e., the County 6 Zoning Ordinances) have clearly determined to be an appropriate use within an agricultural zone. There is no justification for interpreting the General Plan to require the proposed school to service the immediate community of Kaumana as Kaumana is one of several communities included within the South Hilo district. The General Plan clearly envisioned "low density" use to include services that not only benefitted the surrounding community, but the general public as well, which is why the definition states that it includes "[r]esidential, with ancillary community and public uses."t Hawaii County General Plan §14.1.1. The Commission's failure to address Connection's arguments must be viewed as a concession that a school is consistent with the General Plan. It must also be noted that the General Plan clearly states that the County Zoning ordinances control; The Zoning Code for the County of Hawaii is the legal instrument that regulates the use of land. The Zoning Code implements the General Plan and is a document dealing with existing conditions and shorter range needs. The Zoning Code is the County's primary land use control. The Zoning Code sets out the various types of zoning districts and the allowable uses for each. Zoning maps, established by ordinance, set out the zoning for the island on a parcel-by-parcel basis. Hawaii County General Plan §14.1.1 at 14-3. Thus, because Hawaii County ordinances are deemed to implement the General Plan, the fact that a school is a permitted use within an agricultural zone (subject to obtaining a special permit), it must be considered to be consistent with the General Plan. ' It is hard to argue that a charter school does not service the entire South Hilo district as Connections public charter school accepts applications from students regardless of residence on a first-come, first-served basis. If there are more applicants than slots available, then a lottery is required to select the students. 7 The Commission fails to address these arguments and thus, fails to properly support its decision to deny a special permit because a school was not compatible within the Kaumana residential community. M. CONCLUSION Based on the foregoing, Connections submits that the Commission's Findings of Fact, Conclusions of Law and Decision and Order should be reversed, and that the matter be remanded with instructions that the special permit application be granted. DATED: Honolulu, Hawaii, April 9, 2015 60r&�k. SIU Attorney for Applicant Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 8 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES; CONNECTIONS ) (AGENCY APPEAL) NEW CENTURY PUBLIC CHARTER ) SCHOOL; ) CERTIFICATE OF SERVICE Applicants-Appellants ) vs. ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; ) Appellee, ) And ) JEFFREY GOMES, Intervenor, ) Intervenor-Appellee ) Judge: The Honorable Ronald Ibarra CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 9, 2015, the undersigned caused a true and correct copy of the foregoing document to be served on the following persons by U.S. Mail, postage prepaid: Ted H.S. Hong, Esq. Attorney at Law P. O. Box 4217 Hilo, HI 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES Danny B. Patel, Esq. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII Michael J. Matsukawa, Esq. 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY K. GOMES DATED: Honolulu, Hawai'i, April 9, 2015. 47L:2 TER K. IU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 2 FILED CC: Carter K.Siu, Esq, Ted Hong,Esq.Michael Matsuawa, g Danny B. Patel,Esq,E54 2015 APR 24 PH it i9 X PW CA, IN THE CIRCUIT COURT OF THE THIRD CIRCUIT 1..MOCKCHEW-CLERK THIRD CIRCUIT COURT STATE OF HAWAH STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. C 14-1-223 SUPPORT SERVICES, CONNECTIONS ) NEW CENTURY PUBLIC CHARTER ) SCHOOLS ) ORDER SETTING ORAL ARGUMENT Applicant-Appellant, ) vs. ) Hearing Date: May 29, 2015 WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII, ) Hearing Time: 9:00 a.m. Appellees, ) and ) JEFFREY GOMES, ) Intervenor-Appellee. ) } } ORDER SETTING ORAL ARGUMENT A Status Conference was held before the Court on April 22, 2015 at 4:00 P.M. to discuss the setting of Oral Argument. Appearing telephonically were Carter Siu, Esq. for Connections New Century Public Charter School's; Danny B. Patel, Esq. for Windward Planning Commission County of Hawaii; and Michael Matsukawa, Esq. for Jeffery Gomes. Ted Hong, Esq. for Community Based Education Support Services did not appear telephonically. By agreement of all parties present, a date was set which did not conflict with an attorney's schedule. IT IS HEREBY ORDERED as follows: Oral argument shall be heard May 29, 2015 at 9:00 a.m. before the presiding Judge of the Circuit Court of the Third Circuit in his courtroom at 81-940 Haleki'i Street, Kealakekua, Hawaii, 96750. Each party shall be given a maximum of thirty minutes for its oral argument. y, DATED: Kealakekua, Hawaii: JUDGE OF THE ABOVE-ENTITLED COURT Ly� IRC UI 1 L�ii:t;1 UC MOI.,LY A, STEBBINS 8639A WPA Corporation Counsel 22 DANNY B. PATEL 9578 Deputy Corporation Counsel County of liawai'i `-.` J " 101 Aupuni Street, Suite 325 CI.ERK.�--- Hilo, Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: danny.patel@hawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, NOTICE OF SUBMISSION OF DECISION Applicants-Appel[ants, AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF VS. HAWAI`I'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION WINDWARD PLANNING COMMISSION, AND ORDER DENYING SPECIAL PERMIT COUNTY OF HAWA['I, APPLICATION NO. 12-138 and FINAL JUDGMENT; EXHIBIT "A"; CERTIFICATE Appellee, OF SERVICE and JEFFREY GOMES, Intervenor, Intervenor-Appellee" NOTICE OF SUBMISSION OF DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION COUNTY OF HAWAI`I'S FINDINGS OF FACT CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO. 12-138 and FINAL JUDGMENT TO: TED H.S. HONG, ESQ. Hilo Lagoon Centre 101 Aupuni Street, PH 1002A Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MICHAEL J. MATSUKAWA, ESQ. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY DOMES Pursuant to the provisions of Rule 23 of the Rules of the Circuit Courts of the State of Hawai'i, YOU ARE HEREBY NOTIFIED that the undersigned has prepared and submitted to the Court a proposed DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`I'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL, PERMIT APPLICATION NO. 12-138 and FINAL JUDGMENT, copies of which are attached hereto as Exhibit "A." Pursuant to the provisions of said Rule, you have five (5) days from your receipt of this Notice to serve upon all parties and to mail or deliver to the Court a statement of your 2 objections thereto and the reasons therefore, and a draft of said order and judgment which you propose to substitute for that which are attached. Dated: Hilo, Hawaii, ,,, S, zor S WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I By DA—NN-Y4. PAT Deputy on Counsel Attorney for Appellee MOLLY A. STEBBINS 8639 Corporation Counsel DANNY B. PATEL 9578 Deputy Corporation Counsel County of Hawai`i 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: danny.patel@hawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, DECISION AND ORDER Applicants-Appellants, AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY vs. OF HAWAII'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND WINDWARD PLANNING COMMISSION, DECISION AND ORDER DENYING COUNTY OF HAWAII. SPECIAL PERMIT APPLICATION NO. SPP 12-138 Appellee, and JEFFREY GOMES, Intervenor, Hearing: Intervenor-Appellee. Date: May 29, 2015 Time: 9:00 a.m. Judge: The Honorable Melvin H. Fujino Exhibit A DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAPI'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO. SPP 12-138 Applicants-Appellants Community Based Education Support Services ("CBESS") and Connections New Century Public Charter School ("Connections") (collectively, "Appellants") appeal from the Windward Planning Commission, County of Hawai`i's ("Commission") decision denying Appellant's Special Permit Application No. SPP 12-138 entered May 1, 2014 ("Decision") and Findings of Fact, Conclusions of Law and Decision and Order entered May 19, 2014 ("D&O"), carne on for oral argument on May 29, 2015 at 9:00 a.m. before the Honorable Melvin H. Fujino. Ted H.S. Hong, Esq., appeared on behalf of CBESS, Carter K. Siu, Esq., appeared on behalf of Connections, Danny B. Patel, Esq., appeared on behalf of Commission, and Michael J. Matsukawa, Esq., appeared on behalf of the Intervenor-Appellee, Jeffrey Gomes ("Gomes"). The Court, having reviewed the briefs and appendices submitted by the parties, the record on appeal, and having considered the arguments of the parties' counsel, enters the following Decision and Order: DECISION 1. The Court finds the Applicants were allowed five public hearings and five days of contested case proceedings, within which to meet their burden to establish the Application met the criteria required for a Special Permit. The Commission denied the Application. 2. The Court's review of the Commission's Decision and D&O is qualified by the principle that an agency's decision carries a presumption of validity and appellants have the heavy burden of making a convincing showing that the decision is invalid because it is unjust and unreasonable in its consequences. 2 3. In reviewing an agency appeal, the Court applies the standards set forth in Hawaii Revised Statutes ("HRS") § 91-14(g). 4. Conclusions of law are reviewable under HRS § 91-14(g), subsections (1), (2), and(4). The Commission's Decision and D&O do not violate relevant constitutional or statutory provisions, are not in excess of statutory authority or jurisdiction, and are not affected by other error of law. 5. Findings of fact are reviewable under HRS § 91-14(g), subsection (5). In view of the reliable, probative, and substantial evidence on the whole of the record, the Commission's Decision and D&O are not clearly erroneous. 6. Mixed questions of law and fact are reviewable under HRS § 91-14(g), subsection (6). The Commission's Decision and D&O are not arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. 7. The County Charter, County of Hawaii, explicitly authorizes the Commission to consider the County of Hawaii General Plan when determining special permit applications. ORDER Pursuant to the above Decision, it is hereby ORDERED,ADJUDGED, and DECREED: 1. The Commission's Decision and D&O are AFFIRMED and the appeals taken by CBESS and Connections are dismissed; 2. CBESS' request for attorney's fees and costs are DENIED; 3. CBESS' request that the Court admonish and recommend the County to remove the Commissioners who voted against the Appellant's application as unfit to serve on public commissions and boards because they violated their legal duty is DENUD; and 3 4. FINAL, JUDGMENT shall be entered in favor of the Appellee Commission and Intervenor-Appellee Gomes, and against Applicants-Appellants CBESS and Connections, on all claims in this action. DATED: Kealakekua, Hawaii, JUDGE OF THE ABOVE-ENTITLED COURT PPROVED AS TO FORM: TED . .HON , SQ. A rney forApplica pellant OMMUNITY BASED CATION SUPPORT SERVICES CARTER K. SIU, EI,Q. Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL Community Based j:ducation Support Services, et al. v. Windward Planning Commission, County of Hawaii, et al., Civ.No. 14-1-0223 (Agency Appeal); DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT ,APPLICATION NO. SPP 12-138 4 MICHAEL J. MATSUKAWA, ESQ. Attorney for Intervenor-Appellee JEFFREY GOMES Community Based Education Support Services, et al. v. Windward Planning Commission, County of Hawaii, et al., Civ. No. 14-1-0223 (Agency Appeal); DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`I'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO. SPP I2-138 5 MOLLY A. STEBBINS 8639 Corporation Counsel DANNY B. PATEL 9578 Deputy Corporation Counsel County of Hawaii 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: danny.patel@hawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, FINAL JUDGMENT Applicants-Appellants, vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, Appellee, Judge: The Honorable Melvin H. Fujino and JEFFREY GOMES, Intervenor, Intervenor-Appellee. FINAL JUDGMENT Pursuant to Rule 58 of the Hawaii Rules of Civil Procedure and the Decision and Order Affirming Windward Planning Commission, County of Hawai`i's Findings of Fact, Conclusions of Law and Decision and Order Denying Special Permit Application No. SPP 12-138 entered herein, FINAL JUDGMENT IS HEREBY ENTERED in FAVOR of Appellee Windward Planning Commission, County of Hawaii, and Intervenor-Appellee Jeffrey Gomes, and AGAINST Applicants-Appellants Community Based Education Support Services and Connections New Century Public Charter School on all claims in this action. There are no remaining claims against any parties in this action. DATED: Kealakekua, Hawai`i, JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: TED H.S Att y for Applicant-Ap nt MMUNITY BASED EDUCA SUPPORT SERVICES CARTER K. SIU, ESQ. Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MICHAEL J. MATSUKAWA, ESQ. Attorney for Intervenor-Appellee JEFFREY GOMES Community Based Education Support Services, et at. v. Windward Planning Commission, County of Hawaii, et al., Civ. No. 14-1-0223 (Agency Appeal); FINAL JUDGMENT 2 of Law and Decision and Order Denying Special Permit Application No. SPP 12-138 entered herein, FINAL JUDGMENT IS HEREBY ENTERED in FAVOR of Appellee Windward Planning Commission, County of Hawaii, and Intervenor-Appellee Jeffrey Gomes, and AGAINST Applicants-Appellants Community Based Education Support Services and Connections New Century Public Charter School on all claims in this action. There are no retraining claims against any parties in this action. DATED: Kealakekua, Hawaii, JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: TED H.S.HONG, ESQ. Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SFU, ESQ. Attorney for Applicant-Appellant CONNECTIONS NEWMNTURY PUBLIC CHARTER SCHOOL MICHAEL J. MATSUKAWA, ESQ. Attorney for Intervenor-Appellee JEFFREY GOMES Community Based Education Support Services, et al, v. Windward Planning Commission, County of Hawaii, et al., Civ. No. 14-1-0223 (Agency Appeal); FINAL JUDGMENT 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. I4-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, CERTIFICATE OF SERVICE Applicants-Appellants, vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWA11, Appellee, and JEFFREY GOMES, Intervenor, Intervenor-Appellee. CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document was served upon the parties below at their respective addresses in the manner indicated on June 15, 2015. Hand deliver TED H.S. HONG, ESQ. Milo Lagoon Centre 101 Aupuni Street, PH 1002A Hilo, Hawaii 46720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES U.S. Mail, poslaQe prepaid CARTER K. SIU, ESQ. Deputy Attorney General, State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 46813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL U.S. Mail,postage prepaid MICHAEL J. MATSUKAWA, ESQ. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kana, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES Dated: Hilo, Hawaii, z ut DANNY . ATEL Deputy Cbrpefation Counsel 2 UEGEIAE0 MOLLY A. STEBBINS 8639 Corporation Counsel 2015 ���� z AM s: o 1 DANNY B. PATEL 9578 Deputy Corporation Counsel County of Hawaii 101 Aupuni Street, Suite 325 CLERK Hilo, Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: danny.patel@hawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAPI COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, FIRST AMENDED CERTIFICATE OF Applicants-Appellants, SERVICE vs. [re Notice of Submission of Decision and Order Affirming Windward Planning Commission, WINDWARD PLANNING COMMISSION, County of Hawai`i's Findings of Fact, COUNTY OF HAWAII, Conclusions of Law and Decision and Order Denying Special Permit Application No. 12-138 Appellee, and Final Judgment filed .lune 22, 2015] and JEFFREY GOMES, Intervenor, Intervenor-Appellee. FIRST AMENDED CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct filed copy of the Notice of Submission of Decision and Order Affirming Windward Planning Commission, County of flawai'i's Findings of Fact, Conclusions of Law and Decision and Order Denying Special Permit Q Application No. 12-138 and Final Judgment filed June 22, 2015, was served upon the parties below at their respective addresses in the manner indicated on June 24, 2015. Hand-delivery TED H.S. HONG, ESQ. Hilo Lagoon Centre 101 Aupuni Street, PH 1002A Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES U.S. Mail, postage prepaid CARTER K. SIU, ESQ. Deputy Attorney General, State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL U.S. Mail,postage prepaid MICHAEL J. MATSUKAWA, ESQ. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES Dated: Hilo, Hawaii, June 24, 2015. DANNY PATE Deputy ion Counsel 2 FILED MOLLY A. STEBBINS 8639 2015 JUI. b PM 2234 Corporation Counsel HENRI TTA tHC!VC. LER DANNY B. PATEL 9578 THIRD CURCUIT COURT Deputy Corporation Counsel County of Hawaii 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: danny.patel@hawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, DECISION AND ORDER Applicants-Appellants, AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY vs. OF HAWAI`I'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND WINDWARD PLANNING COMMISSION, DECISION AND ORDER DENYING COUNTY OF HAWAII, SPECIAL PERMIT APPLICATION NO. SPP 12-138 Appellee, and JEFFREY GOMES, Intervenor, Hearing: Intervenor-Appellee. Date: May 29, 2015 Time: 9:00 a.m. .fudge: The Honorable Melvin H. Fujino DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`VS FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO. SPP 12438 Applicants-Appellants Community Based Education Support Services ("CBESS") and Connections New Century Public Charter School ("Connections") (collectively, "Appel]ants") appeal from the Windward Planning Commission, County of Hawai`i's ("Commission") decision denying Appellant's Special Permit Application No. SPP 12-138 entered May I, 2014 ("Decision") and Findings of Fact, Conclusions of Law and Decision and Order entered May 19, 2014 ("D&O"), carne on for oral argument on May 29, 2015 at 9:00 a.m. before the Honorable Melvin H. Fujino. Ted H.S. Hong, Esq., appeared on behalf of CBESS, Carter K. Stu, Esq., appeared on behalf of Connections, Danny B. Patel, Esq., appeared on behalf of Commission, and Michael J. Matsukawa, Esq., appeared on behalf of the Intervenor-Appellee, Jeffrey Gomes ("Gomes"). The Court, having reviewed the briefs and appendices submitted by the parties, the record on appeal, and having considered the arguments of the parties' counsel, enters the following Decision and Order: DECISION 1. The Court finds the Applicants were allowed five public hearings and live days of contested case proceedings, within which to meet their burden to establish the Application met the criteria required for a Special Permit. The Cominission denied the Application. 2. The Court's review of the Commission's Decision and D&O is qualified by the principle that an agency's decision carries a presumption of validity and appellants have the heavy burden of rnaking a convincing showing that the decision is invalid because it is unjust and unreasonable in its consequences. 2 3. In reviewing an agency appeal, the Court applies the standards set forth in Hawaii Revised Statutes ("HRS") § 91-14(g). 4. Conclusions of law are reviewable under HRS § 91-14(g), subsections (1), (2), and (4). The Commission's Decision and D&O do not violate relevant constitutional or statutory provisions, are not in excess of statutory authority or jurisdiction, and are not affected by other error of law. 5. Findings of fact are reviewable under HRS § 91-14(g), subsection (5). 1n view of the reliable, probative, and substantial evidence on the whole of the record, the Commission's Decision and D&O are not clearly erroneous. 6. Mixed questions of law and fact are reviewable under HRS § 91-14(g), subsection (6). The Commission's Decision and D&O are not arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. 7. "rhe County Charter, County of Hawaii, explicitly authorizes the Commission to consider the County of Hawaii General Plan when determining special permit applications. ORDER Pursuant to the above Decision, it is hereby ORDERED, ADJUDGED, and DECREED: 1. The Commission's Decision and D&O are AFFIRMED and the appeals taken by CBESS and Connections are dismissed; 2. CBESS' request for attorney's fees and costs are DENIED; 3. CBESS' request that the Court admonish and recommend the County to remove the Commissioners who voted against the Appellant's application as unfit to serve on public commissions and boards because they violated their legal duty is DENIED; and 3 4. FINAL ,JUDGMENT shall be entered in favor of the Appellee Commission and Intervenor-Appellee Gomes, and against Applicants-Appellants CBESS and Connections, on all claims in this action. DATED: Kealakekua, Hawaii, /VV---- JUDGE OF THE ABOVE-ENTITLED COURT PPROVF;D AS TO DORM: TLD . .HON , 'SQ. At rney for Applican pellant OMMUNITY BASED ( CATION SUPPORT SERVICES CARTER K. SIU, ESQ. Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL Community Based Echrcation Support Services, el ol. v. Windward Planning Commission, County qfHuwaii. el al., Civ. No. 14-1-0223 (Agency Appeal); DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO. SPP 12-138 4 MICHAEL J. MA�TSUKAWA, ESQ. Attorney for Intervenor-Appellee JEFFREY GOMES Community Based Education Support Services, et al. v. Windward Planning Commission. County of Hawaii, et al., Civ. No. 14-1-0223 (Agency AppeaI); DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`I'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO, SPP 12-138 5 FILED MOLLY A. STEBBINS 8639 2015 A 14 FM 2' 35 Corporation Counsel DANNY B. PATEL 9578 HEN 41ETTA CHC ,CL RK THIRD CIRMIT COi7RT Deputy Corporation Counsel S ;s7s' rj County of Hawaii i 1 101 Aupum Street, Suite 325 Hilo, Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-snail: danny.pate I C&hawaii eou nty.go v Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAI`l COMMUNITY BASED EDUCATION Civil No, 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, FINAL JUDGMENT Applicants-Appellants, vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'l, Appellee, Judge: The Honorable Melvin Il. Fujino and JEFFREY GOMES, Intervenor, Intervenor-Appellee. FINAL JUDGMENT Pursuant to Rule 58 of the Hawaii Rules of Civil Procedure and the Decision and Order Affirming Windward Planning Commission, County of Hawai`i's Findings of Fact, Conclusions of Law and Decision and Order Denying Special Permit Application No. SPP 12-138 entered herein, FINAL JUDGMENT IS HEREBY ENTERED in FAVOR of Appellee Windward Planning Commission, County of Hawaii, and Intervenor-Appellee Jeffrey Gomes, and AGAINST Applicants-Appellants Community Based Education Support Services and Connections New Century Public Charter School on all claims in this action. There are no remaining claims against any parties in this action. / DATED: Kealakckua, Hawaii, JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: >Attey pplicant-Ap nt BASED EDUCA N SUPPORT SERVICES CARTER K. SIU. ESQ. Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MICHAEL J. MATSUKAWA. ESQ. Attorney for Intervenor-Appellee JEFFREY DOMES Community Based Education Support Services, et al. v. Windward Planning Commission, County of'Hawaii, et al., Civ. No. 14-1-0223 (Agency Appeal); FINAL JUDGMENT 2 of Law and Decision and Order Denying Special Permit Application No. SPP 12-138 entered herein, FINAL JUDGMENT IS HEREBY ENTERED in FAVOR of Appellee Windward Planning Commission, County of Hawaii, and Intervenor-Appellee Jeffrey Gomes, and AGAINST Applicants-Appellants Community Based Education Support Services and Connections New Century Public Charter School on all claims in this action. There are no remaining claims against any parties in this action. DATED: Kealakekua, Hawaii, JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: TED H.S.HONG, ESQ. Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Attorney for Applicant-Appellant CONNECTIONS NEW TURY PUBLIC CHARTER SCHOOL MICHAEL J. MATSUKAWA, ESQ. Attorney for Intervenor-Appellee JEFFREY GOMES Community Based Education Support Services, et al. v. Windward Planning Commission, County of Hawaii, et al., Civ. No. I4-1-0223 (Agency Appeal); FINAL JUDGMENT 2 FWAS MOLLY A. STEBBINS 8639 Corporation Counsel :,U,29 IN off DANNY B. PATEL 9578 Deputy Corporation Counsel County of Hawaii C.IKf TlHRD C1R 101 Aupum Street, Suite 325 STATE OF HAWAII T Hilo, Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: danny.patel@hawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, NOTICE OF ENTRY OF FINAL Applicants-Appellants, JUDGMENT vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, Appellee, and Judge: The Honorable Melvin H. Fujino JEFFREY GOMES, Intervenor, Intervenor-Appellee. NOTICE OF ENTRY OF FINAL JUDGMENT Pursuant to the provisions of the Hawaii Rules of civil Procedure, Rule 77(d), NOTICE IS HEREBY GIVEN of the entry of a FINAL JUDGMENT in the above-entitled case. -JUL 2 8 2015 DATED: Kealakekua, Hawaii, 2015. ()'k(f W CLERK F THE ABOVE—ENTITLED COURT Copy mailed to last-known address of: TED H.S. HONG, ESQ. Hilo Lagoon Centre 101 Aupuni Street, PH 1002A Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MICHAEL J. MATSUKAWA, ESQ. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES Community Based Education Support Services, et al. v. Windward Planning Commission. County of Hawaii, et al., Civ. No. 14-1-0223 (Agency Appeal), NOTICE OF ENTRY OF FINAL JUDGMENT 2 1' TED H. S. HONG 3569 Attorney at Law P. O. Box 4217 Electronically Filed Hilo, HI 96720 Intermediate Court of Appeals Telephone No. 808.933.1919 CAAP-15-0000556 Facsimile No. 808.935.828I 04-AUG-2015 ted@tedhonglaw.com 12:28 PM Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES ) (Agency Appeal) } Applicant-Appellant, ) NOTICE OF APPEAL AND EXHIBITS "A," - -B;- CERTIFICATE OF SERVICE; vs. } PROOF OF SERVICE } WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT } OF PLANNING, COUNTY OF HAWAII, Appellees, ) cn' and } t c: b r' JEFFREY COMES, Intervenor, ) `' •• } JUDGE. Han. Melvin H. Fujino Intervenor-Appellee. ) NOTICE OF APPEAL AND EXHIBITS "A" - "B" COMES NOW Attorney for Applicant-Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES (hereinafter referred to as `'Appellant"), by and through its undersigned counsel, and hereby notices this appeal, pursuant to Sections 9I-I4, 91-15, 602-57(l), 641-1(a), and 64I-2, of the Hawaii Revised Statutes and Rules 3 and 4(a), Hawaii Rules of Appellate Procedure from: (1) Decision and Order Affirming Windward Planning Commission, County of Hawaii's Findings of Fact, Conclusions of Law and Decision and Order Denying Special Permit Application No. SPP 12-138, a copy of which is attached as Exhibit"A;" and (2) Final Judgment filed on July 14, 2015, a copy of which is attached as Exhibit "B. DATED: Hilo, Hawai'i, August 7, 2015. Respectfully submitted, H. S. HON Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES FILED MOLLY A. STEBBINS 8639 Electro �I1�r d Corporation Counsel Interme2l'df'M cfpf�Ip:p Is GAAP-15-0000556 DANNY B.PATEL 9578 ry04-AKr3• ,.C,L} ER K Deputy Corporation Counsel 12:28 Pd l:R1 C .c- UIT COURT - County of Hawaii 101 Aupuni Street, Suite 325 Hilo,Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: danny.patel@hawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OFHAWAPI IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, DECISION AND ORDER Applicants-Appellants, AFFIRMING WINDWARD PLANNING COMAHSSION, COUNTY VS. OF HAWAI`I'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND WINDWARD PLANNING COMMISSION, DECISION AND ORDER DENYING COUNTY OF HAWAII, SPECLAL PERMIT APPLICATION NO. SPP I2-138 Appellee, and JEFFREY GOMES, Intervenor, Hearing::: Intervenor-Appellee. Date, May 29, 2015 Time: 9:00 a.m. Judge: The Honorable Melvin H. Fujino I herebycertify that thiG is efull,true andcorrecl copyoftheorf tnalor+fife in(nlsathce. � 11 Exhibit ._'A clerk, irdclrcuMCaud, retaofSwe» DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMSSION, COUNTY OF HAWAFFS FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO. SPP 12-138 Applicants-Appellants Community Based Education Support Services ("CBESS") and Connections New Century Public Charter School ("Connections") (collectively, "Appellants") appeal from the Windward Planning Commission, County of Hawai`i's ("Commission") decision denying Appellant's Special Permit Application No. SPP 12-138 entered May 1, 2014 ("Decision") and Findings of Fact, Conclusions of Law and Decision and Order entered May 19, 2014 ("D&O'), came on for oral argument on May 29, 2015 at 9:00 a.m, before the Honorable Melvin H. Fujin. Ted H.S. Hong, Esq., appeared on behalf of CBESS, Carter K. Siu, Esq., appeared on behalf of Connections, Danny B. Patel, Esq., appeared on behalf of Commission, and Michael J. Matsukawa, Esq., appeared on behalf of the Intervenor-Appellee, Jeffrey Gomes ("Gomes"). The Court, having reviewed the briefs and appendices submitted by the parties, the record on appeal, and having considered the arguments of the parties' counsel, enters the following Decision and Order: DECISION 1. The Court finds the Applicants were allowed five public hearings and five days of contested case proceedings, within which to meet their burden to establish the Application met the criteria required for a Special Permit. The Commission denied the Application. 2, The Court's review of the Commission's Decision and D&O is qualified by the principle that an agency's decision carries a presumption of validity and appellants have the heavy burden of making a convincing showing that the decision is invalid because it is unjust and unreasonable in its consequences. 2 3. In reviewing an agency appeal, the Court applies the standards set forth in Hawaii Revised Statutes ("HRS") § 91-14(g). 4. Conclusions of law are reviewable under HRS § 91-14(g), subsections (1), (2), and(4). The Commission's Decision and D&0 do not violate relevant constitutional or statutory provisions, are not in excess of statutory authority or jurisdiction, and are not affected by other error of law. 5. Findings of fact are reviewable under HRS § 91-14(g), subsection(5). In view of the reliable,probative, and substantial evidence on the whole of the record, the Commission's Decision and D&0 are not clearly erroneous. b. Mixed questions of law and fact are reviewable under HRS § 91-14(g), subsection (b). The Commission's Decision and D&O are not arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. 7. The County Charter, County of Hawai'i, explicitly authorizes the Commission to consider the County of Hawaii General Plan when determining special permit applications. ORDER Pursuant to the above Decision, it is hereby ORDERED, ADJUDGED, and DECREED: 1. The Commission's Decision and D&O are AFFIRMED and the appeals taken by CBESS and Connections are dismissed; 2. CRESS' request for attorney's fees and costs are DENIED; 3. CRESS' request that the Court admonish and recommend the County to remove the Commissioners who voted against the Appellant's application as unfit to serve on public commissions and boards because they violated their legal duty is DENIED; and 3 4. FINAL. JUDGMENT shall be entered in favor of the Appellee Commission and Intervenor-Appellee Gomes, and against Applicants-Appellants CRESS and Connections, on all claims in this action. DATED: Kealakekua, Hawaii, I�'IZIV1r7 H. i'Uf in{1 (SQai] JUDGE OF THE ABOVE-ENTITLED COURT PPROVED AS TO FORM: TED . .HON , SQ. A rney for Applicat pellant OMMUNITY BAS - CATION SUPPORT SERVICES CARTER K. SIU, ESQ. Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL Community Based Education Support Services, el al. v. Windward Planning Commission, County of Hawaii, et al., Civ.No. 14-1-0223 (Agency Appeal); DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`I'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO. SPP 12-138 4 MICHAEL J. MATSUKAWA, ESQ. Attorney for Intervenor-Appellee JEFFREY GOMES Community Based Education Support Services, el at. v. Windward Planning Commission, County of Hawaii, et al., Civ.No. 14-1-0223 (Agency Appeal); DECISION AND ORDER AFFIRMING WINDWARD .PLANNING COMMISSION, COUNTY OF HAWAI`I'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO. SPP 12-138 5 FILED MOLLY A. STEBBINS 8639 ElectronicM MeA PIS 2: 35 Corporation Counsel Intermediate Court of Appeals CAAP-15qNAqfff2 Cy.^tiG.CLEh;K DANNY B. PATEL 9578 04-AUG-201151RD CI?CIJIT COUP i Deputy Corporation Counsel 12:28 PM { 17 77 County of Hawai i 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: (808)961-8251 Facsimile: (808) 961-8622 E-mail: danny.patel@hawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`l IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, FINAL JUDGMENT Applicants-Appellants, vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, Appellee, Judge: The Honorable Melvin H. Fujino and JEFFREY GOMES,Intervenor, Intervenor-Appellee. FINAL JUDGMENT Pursuant to Rule 58 of the Hawai`i Rules of Civil Procedure and the Decision and Order Affirming Windward Planning Commission, County of Hawai`i's Findings of Fact, Conclusions 1 hereby raeM4 cher this is a hill +rrie BnoCorfeC, ExlrIbi M11 1 SPY of coburrgrirar url rile rn cr?*Jthce. cm.r of Law and Decision and Order Denying Special Permit Application No. SPP 12-138 entered herein, FINAL JUDGMENT IS HEREBY ENTERED in FAVOR of Appellee Windward Planning Commission, County of Hawaii, and Intervenor-Appellee Jeffrey Gomes, and AGAINST Applicants-Appellants Community Based Education Support Services and Connections New Century Public Charter School on all claims in this action. There are no remaining claims against any parties in this action. DATED: Kealakekua, Hawaii, JUL ~ 8 JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: >Atty pplicant-Ap nt BASED EDUCA SUPPORT SERVICES CARTER K. SIU, ESQ. Attorney for Applicant-Appel Iant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MICHAEL J.MATSUKA wA, Esg. Attorney for Intervenor-Appellee JEFFREY GOMES Community Based Education Support Services, et al. v. Windward planning Commission, County of Hawod, ei ol., Civ. No. 14-1-0223 (Agency Appeal); FINAL JUDGMENT 2 of Law and Decision and Order Denying Special Permit Application No. SPP 12-138 entered herein, FINAL JUDGMENT IS HEREBY ENTERED in FAVOR of Appellee Windward Planning Commission, County of Hawaii, and Intervenor-Appellee Jeffrey Gomes, and AGAINST Applicants-Appellants Community Based Education Support Services and Connections New Century Public Charter School on all claims in this action. There are no remaining claims against any parties in this action. DATED. Kealakekua, Hawaii, JUDGE OF THE ABOVE-ENTITLED COURT APPROVED A5 TO FORM: TED H.S.HONG, ESQ. Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. ~i Attorney for Applicant-Appellant CONNECTIONS NEWgMqTMY PUBLIC CHARTER SCHOOL �tl�(_� co� MICHAEL J.MATSUKAWA, ESQ. Attorney for Intervenor-Appellee JEFFREY GOMES Community Based Education Support Services, et al. v. Windward Planning Commission, County of Hawaii, et al.,Civ.No. 14-1-0223 (Agency Appeal); FINAL JUDGMENT 2 fir Y TED H. S. HONG 3569 Attorney at Law P. O. Box 4217 Electronically t=iled Hilo, 11196720 Intermediate Court of Appeals Telephone No. 808.933.1919 GAAP-15-0000556 Facsimile No. 808.935.8281 04-AUG-2015 ted@tedhonglaw.com 01.30 PM Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES TN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) FIRST AMENDED NOTICE OF APPEAL AND EXHIBITS"A,"- "B;" CERTIFICATE vs. ) OF SERVICE; PROOF OF SERVICE WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT ) r o OF PLANNING, COUNTY OF HAWAII, ) Awa a v C �hx � Appellees, and ) ?� � O JEFFREY DOMES, Intervenor, ) o JUDGE: Hon. Melvin H. Fujino Intervenor-Appellee. ) ) FIRST AMENDED NOTICE OF APPEAL AND EXHIBITS "A" - "Bl' COMES NOW Attorney for Applicant-Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES (hereinafter referred to as "Appellant'), by and through its undersigned counsel, and hereby notices this First Amended Notice of Appeal to correct the typographical error of the date of Notice of Appeal, Certificate of Service, Proof of Service filed on August 4, 2015, which indicated the date of August 7, 2015, and should be designated as August 4, 2015. This First Amended Notice of Appeal is brought pursuant to Sections 91-14, 91-15, 602- 57(l), 02-57(l), 64 1-I(a), and 641-2, of the Hawaii Revised Statutes and Rules 3 and 4(a), Hawaii Rules of Appeilate Procedure from: (1) Decision and Order Affirming Windward Planning Commission, County of Hawaii's Findings of Fact, Conclusions of Law and Decision and Order Denying Special Permit Application No. SPP 12-138, a copy of which is attached as Exhibit "A;" and (2) Final Judgment filed on July 14, 2015, a copy of which is attached as Exhibit "B. DATED: Hilo, Hawai'i, August 4, 2015. Respectfully submitted, 2x,,O)4A_ 14r_�, 1✓D H. S. HON Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 FILLED MOLLY A. STEBBINS 8639 ElectroMtp)��UN dppCorporation Counsel Interrndf� p is CAAP-15-0000556 DANNY B. PATEL 9578 04-AUd TTA, GHrN-J,CLERK Deputy Corporation Counsel "Iris C '�'UIT COURT County ofHawai`i 01.30 PM -` r 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: (808)961-8251 Facsimile: (808) 961-8622 E-mail: danny.patel@hawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, DECISION AND ORDER Applicants-Appellants, AFFIRMING VVMWARD PLANNING COMMISSION,COUN'T'Y vs. OF HAWAI`I'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND WINDWARD PLANNING COMMISSION, DECISION AND ORDER DENYING COUNTY OF HAWAII, SPECIAL PERMIT APPLICATION NO. SPP 12-138 Appellee, and JEFFREY GOMES, Intervenor, Hearin Intervenor-Appellee. Date: May 29, 2015 Time: 9:00 a.m. Judge: The Honorable Melvin H. Fujino I hereby certify that ftQ is a full,true andcarrect copy ofthe01)(A 0150fte. tr t1 Exhibit- cwr Irdarcuft0�Ofaweii DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAPI'S FINDINGS OF FACT,CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERART APPLICATION NO. SPP 12-138 Applicants-Appellants Community Based Education Support Services ("CHESS") and Connections New Century Public Charter School ("Connections") (collectively, "Appellants") appeal from the Windward Planning Commission, County of Hawai`i's ("Commission") decision denying Appellant's Special Permit Application No. SPP 12-138 entered May 1, 2014 ("Decision") and Findings of Fact, Conclusions of Law and Decision and Order entered May 19, 2014 ("D&O"), came on for oral argument on May 29, 2015 at 9:00 a.m, before the Honorable Melvin H. Fujin. Ted H.S. Hong, Esq., appeared on behalf of CBESS, Carter K. Siu, Esq., appeared on behalf of Connections, Danny B. Patel, Esq., appeared on behalf of Commission, and Michael J. Matsukawa, Esq., appeared on behalf of the Intervenor-Appellee, Jeffrey Gomes ("Gomes"). The Court, having reviewed the briefs and appendices submitted by the parties, the record on appeal, and having considered the arguments of the parties' counsel, enters the following Decision and Order: DECISION 1. The Court finds the Applicants were allowed five public hearings and five days of contested case proceedings, within which to meet their burden to establish the Application met the criteria required for a Special Permit. The Commission denied the Application. 2. The Court's review of the Commission's Decision and D&O is qualified by the principle that an agency's decision carries a presumption of validity and appellants have the heavy burden of matting a convincing showing that the decision is invalid because it is unjust and unreasonable in its consequences. 2 3. In reviewing an agency appeal, the Court applies the standards set forth in Hawaii Revised Statutes ("HRS") § 91-14(g). 4. Conclusions of law are reviewable under HRS § 91-14(g),subsections (1), (2), and(4). The Commission's Decision and D&O do not violate relevant constitutional or statutory provisions, are not in excess of statutory authority or jurisdiction,and are not affected by other error of law. 5. Findings of fact are reviewable under HRS § 91-14(g), subsection(5). In view of the reliable,probative, and substantial evidence on the whole of the record, the Commission's Decision and D&O are not clearly erroneous. 6. Mixed questions of law and fact are reviewable under HRS § 91-14(g), subsection (6). The Commission's Decision and D&O are not arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. 7. The County Charter, County of Hawaii, explicitly authorizes the Commission to consider the County of Hawaii General Plan when determining special permit applications. ORDER Pursuant to the above Decision, it is hereby ORDERED, ADJUDGED, and DECREED: 1. The Commission's Decision and D&O are AFFIRMED and the appeals taken by CBESS and Connections are dismissed; 2. CBESS' request for attorney's fees and costs are DENIED; 3. CBESS' request that the Court admonish and recommend the County to remove the Commissioners who voted against the Appellant's application as unfit to serve on public commissions and boards because they violated their legal duty is DENIED; and 3 4. FINAL JUDGMENT shall be entered in favor of the Appellee Commission and Intervenor-Appellee (lames, and against Applicants-Appellants CBESS and Connections, on all claims in this action. -r g3E.)en - DATED: Kealakekua, Hawaii, mei4in H. Fujino (Seal) JUDGE OF THE ABOVE-ENTITLED COURT OVEDTO FOM: TED . .HON , -SQ. A rney for Applicun pellant OMMUNITY BASED CATION SUPPORT SERVICES CARTER K. SIU. ESQ. Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL Community Based Education Support Services, et al. v.'Windward Planning Commission, County ofHawoii, et of., Civ. No. 14-1-0223 (Agency Appeal); DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAPPS FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO. SPP 12-138 4 MICHAEL J.MATSUKAWA, ESQ. Attorney for Intervenor-Appellee JEFFREY GOMES Community Based Education Support .Services, et at. v. Windward Planning Commission, County of Hawaii, et al., Civ.No. 14-1-0223 (Agency Appeal); DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`I'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO. SPP I2-138 5 FILE D MOLLY A. STEBBINS 8639 Electronicift IUM4 PM 2: 35 Corporation Counsel Intermediate Court of Appeals CAAP-154gAgft Ci'"►�G,CLE K DANNY B.PATEL 9578 04-AUG-201151RO C1 ,CiJIT- COMP i Deputy Corporation Counsel 01:30 PM County of Hawaii 101 Aupuni Street, Suite 325 Hilo, Hawai`i 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: danny.patel@hawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAF I IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAPI COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, FINAL JUDGMENT Applicants-Appellants, VS. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, Appellee, Judge: The Honorable Melvin H. Fujino and JEFFREY GOMES,Intervenor, Intervenor-Appellee. FINAL JUDGMENT Pursuant to Rule 58 of the Hawaii Rules of Civil Procedure and the Decision and Order Affirming Windward Planning Commission, County of Hawai`i's Findings of Fact, Conclusions I Oereby cert:Thal this.is a hili ►rt►E aRtl COfr+tiCl f copy of rltt orly"fai ui m 6"trile r omce. Exhib��[';�. 61,= r_ of Law and Decision and Order Denying Special Permit Application No. SPP 12-138 entered herein, FINAL JUDGMENT IS HEREBY ENTERED in FAVOR of Appellee Windward Planning Commission, County of Hawaii, and Intervenor-Appellee Jeffrey Gomes, and AGAINST Applicants-Appellants Community Based Education Support Services and Connections New Century Public Charter School on all claims in this action. There are no remaining claims against any parties in this action. DATED: Kealakekua, Hawaii, walyin JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TCS FORM: >tt ,y pplic;�nt-Ap nt BASED EDUCA SUPPORT SERVICES CARTER K. SIU, ESQ. Attorney for Applicant-Appel lant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MICHAEL J. MATSUKAWA, ESQ, Attorney for Intervenor-Appellee JEFFREY GOMES Community Based Education Support Services, et al. v. Windward Planning Commission. County of Hawaii, et aL, Civ. No. 14-1-0223 (Agency Appeal); FINAL JUDGMENT 2 of Law and Decision and Order Denying Special Permit Application No. SPP 12-138 entered herein, FINAL JUDGMENT IS HEREBY ENTERED in FAVOR of Appellee Windward Planning Commission, County of Hawaii, and Intervenor-Appellee Jeffrey Gomes, and AGAINST Applicants-Appellants Community Based Education Support Services and Connections New Century Public Charter School on all claims in this action. There are no remaining claims against any parties in this action. DATED: Kealakekua, Hawaii, JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: TED H.S_HONG, ESQ. Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Attorney for Applicant-Appellant CONNECTIONS NEW KMMMY PUBLIC CHARTER SCHOOL MICHAEL J.MATSUKAWA, ESQ. Attorney for Intervenor-Appellee JEFFREY GOMES Community Based Education Support Services, et al. v_ Windward Planning Commission, County of Hawaii, et al.,Civ.No. I4-1-0223 (Agency Appeal); FINAL JUDGMENT 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII Electronically Filed Intermediate Court of Appeals COMMUNITY BASED EDUCATION ) CIVIL NOG F131530000556 SUPPORT SERVICES ) (Agcncy Ap1PG-2015 01.30 PM Applicant-Appellant, ) CERTIFICATE OF SERVICE } vs. ) } WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING, COUNTY OF HAWAII, ) } Appellees, ) and } } JEFFREY GOMES, Intervenor, } JUDGE; Hon. Melvin H. Fujino Intervenor-Appellee. ) CERTIFICATE OF SERVICE The undersigned hereby certifies that the above-entitled document will be served on August 4, 2015, on the opposing parties in this action, by electronic service through the JEFS E- Filing System on their counseL• CARTER K. SIU, ESQ. Deputy Attorney General State of Hawai'i 235 S. Beretania Street, Rrn. 304 Honolulu, Hawaii 96813 caTter.k.siu@hawaii.gov Attorney for Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL I AMY G. SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 aself@co.hawaii.hi.us Attorney for Appellee COUNTY OF HAWAI'I PLANNING DIRECTOR DANNY B. PATEL, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 danny.patel.hawaiicounty.gov Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I MICHAEL J. MATSUKAWA, ESQ. 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, HI 96740 kapulu@msn.com Attorney for Intervenor- Appellee JEFFREY K. GOMES DATED: Hilo, Hawai'i, August 2015 TE6H. S. HONG Attorney at.Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 ORIGINIL f".fo DOUGLAS S. CHIN 6465 Attorney General, State of Hawaii -2 PM 3: 26 HOLLY T. SHIKADA 40I7 1iENR1 TTA C NG ER CARTER K. SIU 7313 THIRD CIRUIT CO RT Deputy Attorney General 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Telephone No. 808.586.1255 Cat-ter. 51Uff(�lia�'�lll. TC)\ Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWA1`1 COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES; CONNECTIONS ) (AGENCY APPEAL) NEW CENTURY PUBLIC CHARTER ) SCHOOL; ) CONNECTIONS NEW CENTURY Applicants-Appellants ) PUBLIC CHARTER SCHOOL'S EX PARTE MOTION TO EXTEND TIME IN vs. ) WHICH TO FILE NOTICE OF APPEAL; DECLARATION OF CARTER K. SIU; WINDWARD PLANNING COMMISSION, ) EXHIBITS "A"—"B;" ORDER COUNTY OF HAWAII; ) GRANTING CONNECTIONS NEW CENTURY PUBLIC CHARTER Appellee, ) SCHOOL'S EX PARTE MOTION TO EXTEND TIME IN WHICH TO FILE And ) NOTICE OF APPEAL; CERTIFICATE OF SERVICE JEFFREY GOMES, Intervenor, ) Intervenor-Appellee } } [NON-HEARING MOTION] } Judge: The Honorable Melvin H. Fujino 611326 1.DOC CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S EX PARTE MOTION TO EXTEND TIME IN WHICH TO FILE NOTICE OF APPEAL COMES NOW Applicant-Appellant, Connections New Century Public Charter School ("Connections"), by and through its undersigned counsel Carter K. Siu, Deputy Attorney General, hereby requests this Honorable Court for an Order approving Connections Ex Parte Motion to Extend Time in Which to File Notice of Appeal. Connections respectfully requests that the deadline to file its Notice of Appeal be extended 30 days, to September 11, 2015. This ex-parte motion is brought pursuant to Rule 7, Hawaii Rules of Civil Procedure, Rule 7, Rules of the Circuit Courts, and Rule 4(a)(4)(B) of the Hawaii Rules of Appellate Procedure, and is based on the attached declaration of counsel. DATED: Honolulu, Hawaii, August 25, 2015. 4RCR . SIU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES; CONNECTIONS ) (AGENCY APPEAL) NEW CENTURY PUBLIC CHARTER } SCHOOL; } DECLARATION OF CARTER K. SIU Applicants-Appellants } } vs. } } WINDWARD PLANNING COMMISSION, } COUNTY OF HAWAI'I; } } Appellee, } } And ) } JEFFREY GOMES, Intervenor, } } Intervenor-Appellee } } [NON-HEARING MOTION] Judge: The Honorable Melvin H. Fujino DECARLATION OF CARTER K. SIU CARTER K. SIU , duly declares: 1. I am the attorney of record for Connections New Century Public Charter School (Connections) in this case. 2. I am seeking an extension of time in which to submit Connections' Notice of Appeal in this case from August 13, 2015 to September 11, 2014. 3. This Court, pursuant to Hawaii Rules of Appellate Procedure, Rule 4(a)(4)(B), has the discretion to grant the request for an extension of time upon a showing of excusable neglect. 4. Pursuant to Enos v. Pacific Transfer& Warehouse, Inc., 80 Hawaii 345, 910 P.2d 116 (1996), "good cause" can also support the extension of time to file a notice of appeal when the circumstances for the late filing are beyond the control of the applicant. 5. In this case, the Final Judgment was filed on July 14, 2015. 6. The Judgment was transmitted via U.S. mail by the County of Hawaii, Office of the Corporation Counsel on July 22, 2015. A true and correct copy of the transmittal is attached as Exhibit"A." 7. The Final Judgment was received and processed by my office on July 28, 2015 at 4:09 p.m. as indicated by the date and time stamp shown in Exhibit "B." 8. I do not know the date when the Final Judgment was placed in my in-tray. 9. The Notice of Entry of Final Judgment was filed on July 28, 2015, and was placed in the mail by the County of Hawaii, Office of the Corporation Counsel on July 29, 2015. 10. 1 do not know the date when the Notice of Entry of Final Judgment was placed in my in-tray. 11. I was not in the office from the morning of July 31, 2015 through August 13, 2015; 1 did not return to the office until August 14, 2015. 12. By the time that I returned to the office, the 30 day deadline to appeal had expired on August 13, 2015. 13. Before leaving for my vacation, I do not recall seeing either the Judgment or the Notice of Entry of Final Judgment. 14. The first time I recall seeing either the Judgment or the Notice of Entry of Final Judgment was on August 17, 2015, the Monday following my return from vacation. 15. In preparing this affidavit, I searched my e-mail in-box and was unable to locate any e-mail sent from the County of Hawaii, Office of the Corporation Counsel transmitting either the Final Judgment and the Notice of Entry of Final Judgment. 16. The spirit of the rules is to allow parties 30 days in which to appeal; here, because of the delay in delivery, I had half the amount of time. 17. Based on the facts described above, if there was any neglect on my part, it is respectfully submitted that it was excusable neglect because I was not alerted to the July 14, 2015 filing of the Final Judgment until after the 30 day deadline had expired. 18. Moreover, there is also good cause to permit the extension because there were events that were out of my control that led me to miss the appeal deadline, namely the 2-week delay in delivery of the Final Judgment and my subsequent 2 week family vacation. 14. This request for an extension is made in good faith and not for purposes of delay. 20. This extension of time requested herein will not prejudice any parties herein or delay the proceedings as there have been no deadlines set in this case. 1, CARTER K. SIU, declare under penalty of perjury under the laws of the State of Hawai'i that the foregoing is true and correct. DATED: Honolulu, Hawaii, August 25, 2015. t C R . S V William P.Kenoi Molly A. Stebbins Mayor � Corporation Counsel William V, Brilhante,Jr, Assistant Corporation Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupunl Street,S0e325 • F{ib,Hawafi 98720-4252 • (808)961-Ml • Fax i.809)961-8622 TRANSMITTAL DATE: July 22,2015 TO: Ted H.S.Hong,Esq. Carter IL Siu,Esq, Hilo Lagoon Centre Deputy Attorney General 101 Aupuni Street,PH 1002A State of Hawaii Hilo,Hawal`i 96720 235 South Beretania Street, Room 304 Honolulu,Hawaii 96813 Michael J. Matsukawa,Esq. Territorial Centre,Suite 201 75-5751 Kuakini Highway Kailus-Kona,Hawaii 96740 FROM: Emily HirayamAlerk III for Danny B.Patel, Deputy Corporation Counsel RE: Community Based Education Support Services(Connections)v. Windward Planning Commission, et al.; Civil No. 14-1-0223 (Agency Appeal) ITEMS DATE DESCRIPTION 1-Filed Copy 07-14-15 DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION,COUNTY OF HAWAI`I'S FINDINGS OF FACT,CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO. 12-136 1-Filed Copy 07-14-15 FINAL JUDGMENT TRANSMITTED FOR: ®Your information and files ❑ Your approval ❑ Signature and return ❑ Your review and comments ❑ Your signature and forwarding ❑ See-remarks below as noted below ❑ Filing and return (envelope enclosed) ❑ Per your request REMARKS: Should you have any questions regarding the enclosed,please contact our o[rice. Enclosures Hawaii County is an Equal Opportunity Provider and Employer EXHIBIT._A "F•`!!,� Molly A. Stebbins Llr; Corporation Counsel William V. Brilhante, Jr. Assistant Corporation Counsel iF HAWUA `I : ORATION COUNSEL 15 JIJL 28 P n :09 1-4262 • (808)961-8251 • Fax(808)961-8622 HTTAL Carter K Siu, Esq. Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona,Hawaii 96740 FROM: Emily HirayamAlerk III for Danny B. Patel, Deputy Corporation Counsel RE: Community Based Education Support Services (Connections) v. Windward Planning Commission, et al.; Civil No. 14-1-0223 (Agency Appeal) ITEMS DATE DESCRIPTION 1-Filed Copy 07-14-15 DECISION AND ORDER AFFIRMING WINDWARD PLANNINGCOMMISStON, COUNTY OF HAWAI`I'S FINDINGS OF FACT,CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO. 12-138 1-Filed Copy 07-14-15 FINAL JUDGMENT TRANSMITTED FOR: ®Your information and files ❑ Your approval ❑ Signature and return ❑ Your review and comments ❑ Your signature and forwarding ❑ See remarks below as noted below ❑ Filing and return (envelope enclosed) ❑ Per your request REMARKS: Should you have any questions regarding the encinsed, please contact our office. Enclosures Hawaii County is an Equal Opportunity Provider and Employer EXHIBIT 0 o D 4 c c) C^ m o c o n 7 r C() o CD p ; D n (D _ m m 0 O C 43 CD N O CP N W Ul O o CD @ E � yCD (D � co 0 cr CD � CD � o � » CO o CD - W — >oa 0 aoN -nOKO� k -- - N Tj L Q r 0 C3 a N} C R d [_31 d tll IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO. 14-1-0223 SUPPORT SERVICES; CONNECTIONS ) (AGENCY APPEAL) NEW CENTURY PUBLIC CHARTER } SCHOOL; ) ORDER GRANTING CONNECTIONS Applicants-Appellants ) NEW CENTURY PUBLIC CHARTER SCHOOL'S EX PARTE MOTION TO VS. ) EXTEND TIME IN WHICH TO FILE NOTICE OF APPEAL WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; ) } Appellee, } } And ) } JEFFREY GOMES, Intervenor, } Intervenor-Appellee ) [NON-HEARING MOTION] } Judge: The Honorable Melvin H. Fujin } ORDER GRANTING CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S EX PARTE MOTION TO EXTEND TIME IN WHICH TO FILE NOTICE OF APPEAL The Court, having reviewed CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S EX PARTE MOTION TO EXTEND TIME IN WHICH TO FILE NOTICE OF APPEAL, the records and files herein, finds that there appears to be good cause for granting the Motion; Now, therefore, IT IS HEREBY ORDERED, AJUDGED, AND DECREED that Connections New Century Public Charter School's Ex Parte Motion To Extend Time In Which 611326 l.DOC to File Notice of Appeal be and is GRANTED. Connections New Century Public Charter School's deadline to file its Notice of Appeal is now September 11, 2015. DATED: Kealakekua, Hawaii, �/V V Judge for the Above-Entitled Court ORDER GRANTING CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S EX PARTE MOTION TO EXTEND TIME IN WHICH TO FILE NOTICE OF APPEAL;Community Based Education Support Services, et al.vs. Windward Planning Commission, et al.; Civil No. 14-1-0223 (Agency Appeal),Circuit Court of the Third Circuit 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES; CONNECTIONS ) (AGENCY APPEAL) NEW CENTURY PUBLIC CHARTER ) SCHOOL; ) CERTIFICATE OF SERVICE Applicants-Appellants ) vs. ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII: ) Appellee, ) And ) JEFFREY GOMES, Intervenor, ) Intervenor-Appellee ) CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 25, 2015, the undersigned caused a true and correct copy of the foregoing document to be served on the following persons by U.S. Mail, postage prepaid: Ted H.S. Hong, Esq. Attorney at Law P. O. Box 4217 Hilo, HI 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 3 Danny B. Patel, Esq. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII Michael J. Matsukawa, Esq. 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY K. GOMES DATED: Honolulu, Hawaii, August 25, 2015. *CR kE K. SIU Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 4 e DOUGLAS S. CHIN 6465 Attorney General, State of Hawaii Electronically Filed HOLLY T. SHIKADA 4017 Intermediate Court of Appeals CARTER K. S1U 7313 CARP-15-0000556 Deputy Attorney General 11-SEP-2015 235 South Beretania Street, Room 304 10:13 AM Honolulu, Hawaii 96813 Telephone No, 808.5 86.1255 Carter.K.Siu@bgwaii.gov �� rn Attorney for Applicant-Appellant oQ;'t T -0 _q CONNECTIONS NEW CENTURY ? t" PUBLIC CHARTER SCHOOL � 3 rq Y U r m IN THE CIRCUIT COURT OF THE THIRD CIRCUIT r+a STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES; CONNECTIONS ) (AGENCY APPEAL) NEW CENTURY PUBLIC CHARTER ) SCHOOL; ) NOTICE OF APPEAL; EXHIBITS "A"- Applicants-Appellants ) "B;"CERTIFICATE OF SERVICE ) VS. } } WINDWARD PLANNING COMMISSION, } COUNTY OF HAWAI`l; ) Appellee, } } And } } JEFFREY GOMES, Intervenor, } Intervenor-Appellee ) } } Judge: The Honorable Melvin H. Fujino } 1 + NOTICE OF APPEAL NOTICE IS HEREBY GIVEN that Applicant-Appellant, Connections New Century Public Charter School ("Connections"), by and through its undersigned counsel Carter K. Siu, Deputy Attorney General,pursuant to Sections 91-14, 91-15, 602-57, 641-1(a) of the Hawaii Revised Statutes and Rules 3 and 4, Hawaii Rules of Appellate Procedure, appeals to the Intermediate Court of Appeals of the State of Hawaii from the: (1) Decision and Order Affirming Windward Planning Commission, County of Hawai`i's Findings of Fact, Conclusions of Law and Decision and Order Denying Special Permit Application No. SPP 12-138, a copy of which is attached as Exhibit"A;"and(2) Final Judgment filed on July 14, 2015,a copy of which is attached as Exhibit `B." DATED: Honolulu, Haw "i, September 11, 2015 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO. 14-1-0223 SUPPORT SERVICES; CONNECTIONS } (AGENCY APPEAL) NEW CENTURY PUBLIC CHARTER } SCHOOL; ) CERTIFICATE OF SERVICE Applicants-Appellants ) VS. ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; ) Appellee, } } And } JEFFREY GOMES, Intervenor, ) Intervenor-Appellee ) } } } } CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 11, 2015,pursuant to Rule 25(c)of the Hawaii Rules of Appellate Procedure, copies of the Notice of Appeal were served upon the following, either pursuant to Rule 6.1 of the Hawaii Electronic Filing and Service Rules through the Judiciary Electronic Filing System (JEFS) or by conventional mail, by depositing the same in the Unidted States mail,postage prepaid: 3 Ted H.S. Hong, Esq. Attorney at Law P. O. Box 4217 Hilo, HI 96720 E-Mail: ted@tedhonglaw.com Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES Danny B. Patel, Esq. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 E-Mail: darn .nom atel@hawaiicounty.gov Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII Michael J. Matsukawa, Esq. 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, Hawaii 96740 E-Mail: kapulu@msn.com Attorney for Intervenor-Appellee JEFFREY K. GOMES DATED: Honolulu, Hawaii, September 11,2015. Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 4 C a 0 p o� a � C 0. [D rL n O O 'S 3' A cL n A C9 n to o a m M mCD kW CD a fb fD CD v G CL a Le a CA a Z x Cr w 3'� p `ad o � a ^` r- m C, C17 aro CL CLco ao Nva o 0 w 'M C4 v, w90 cr n p -- ° ° M o 99 w W tJi O FrI O p /V '--h < 0. a V° JrCpi, O y .w7 a r' ^ CD y.�'",+n a � a Q CD w �. a CL CD M CD 33n m aR z cainD � �, 'D °CL 0 o o D j 14 a a j O rt QI C7 CDo CD CD CD�o w U7 p 21 CL a D� w � w � b � C � f1� O FILED Electronically Filed MOLLY A. STEBBINS 8639 Interm�a�� ',u peals Corporation Counsel CARP-15-00 055 11-SE414 Cc 0,ki(; CLERK DANNY B.PATEL 9578 10:13 ATARa r.1RGlf1? COURT Deputy Corporation Counsel County of Hawai'i 101 Aup;mi Street,Suite 325 Hilo,Hawaii 96720 Telephone:(808)961-8251 Facsimile:(808)961-8622 E-mail: damypatei@bawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII IN THE CIRCUIT COURT OF'THE TH MD CIRCUM' STATE OF HAWAII COMl4IUNM'Y BASED EDUCATION Civil No. 141-0223 SUPPORT SERVICES;CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, DECISION AND ORDER Applicants-Appellants, AFF MING WINDWARD PLANNING COMMSSION,COUNTY vs. OF HAWAI-I'S F DINGS OF FACT, CONCLUSIONS OF LAW AND WINDWARD PLANNING COMMISSION, DECISION AND ORDER DENYING COUNTY OF 13AWAI'L SPECIAL PERMIT APPLICATION NO. 3 SPP 12-138 Appellee, and JEFFREY GOMES,Intervenor, Intervenor-Appellee. Date: May 29,2015 Time: 9:00 am. ,fudge: The Honorable Melvin H.Fujin �hBr�y ae�fy+mal th4�is�h�ll7us�i�COTf2Cl Capt'01 rliEangilla 01 rile w,Nig ame. Cleric, irdCf�CallCppfl, of aw��EXHIBM DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION,COUNTY OF HAWAH'S FINDINGS OF FACT,CONCLUSIONS OF LAW AND DECISION AND QNER DENYMG SPECIAL PERMIT APPLICATION NO.SPP -138 Applicants-Appellants Community Based Education Support Services ("CBESS") and Connections New Century Public Charter School ("Connections'l (collectively, "Appellants") appeal from the Windward Planning Commission, County of Hawai`i's ("Commission'l decision denying Appellant's Special Permit Application No. SPP 12-138 entered May 1, 2014 ("Decision")and Findings of Fact,Conclusions of Law and Decision and Order entered May 19, 2014('T&O'), came on for oral argument on May 29, 2015 at 9:00 am. before the Honorable Melvin H. Fujino. Ted H.S. Hong, Esq., appeared on behalf of CBESS, Carter K. Siu, Esq., appeared on behalf of Connections, Danny B. Patel, Esq., appeared on behalf of Commission, and Michael J. Matsuk wa, Esq., appeared on behalf of the Intervenor-Appellee, Jeffrey Gomes ("Gomes"). The Court, having reviewed the briefs and appendices submitted by the parties, the record on appeal, and having considered the arguments of the parties' counsel, enters the following Decision and Order. DECISION 1. The Court finds the Applicants were allowed five public hearings and five days of contested case proceedings, within which to meet their burden to establish the Application met the criteria required for a Special Permit. The Commission denied the Application. 2. The Court's review of the Commission's Decision and D&O is qualified by the principle that an agency's decision carries a presumption of validity and appellants have the heavy burden of making a convincing showing that the decision is invalid because it is unjust and unreasonable in its consequences. 2 3. In reviewing an agency appeal,the Court applies the standards set forth in Hawaii Revised Statutes("HRS"}§91-14(g). 4. Conclusions of law are reviewable under HRS§ 91-14(g),subsections(1),(2), and(4). The Commission's Decision and D&O do not violate relevant constitut'ioaal or statutory provisions,are not in excess of statutory authority or jurisdiction,and are not affected by other error of law. S. Findings of fact are reviewable under HRS §91-14(g),subsection(S). In view of the reliable,probative,and substantial evidence on the whole of the record, the Commission's Decision and D&O are not clearly erroneous. 6. Mixed questions of law and fact are reviewable under HRS §91-14(g),subsection (6). The Commission's Decision and D&O are not arbitrary,or capricious,or characterized by abuse of discretion or clearly unwarranted exercise of discretion. 7, The County Charter,County of Hawaii,explicitly authorizes the Commission to consider the County of Hawaii General Plan when determining special permit applications. ORDER Pursuant to the above Decision,it is hereby ORDERED,AD]UDGED,and DECREED: 1. The Commission's Decision and D&O are ASD and the appeals taken by CBESS and Connections are dismissed; 2. CBESS' request for attorney's fees and costs are DENIED; 3. CBESS' request that the Court admonish and recommend the County to remove the Commissioners who voted against the Appellant's application as unfit to serve on public commissions and boards because they violated their legal duty is DENIED;and 3 4. FINAL, JUDGMENT shall be entered in favor of the Appellee Commission and Intervenor-Appellee Gomes, and against Applicants-Appellants CBESS and Connections,on all claims in this action. DATED: Kealakckua,Hawaii, JUDGE OF THE ABOVE-ENTITLED COURT PPROVED AS "I'G I'Of4M: T£D HON SQ. A may ForApplic pellant OMMUNITY BASCD CATION SUPPORT SERVICES CARTER K.SIU, ESQ. Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL Community Based F_ducation Support Services, et al v Windward Planning Commission, County e1 al.,Civ.No. 14--1-0223 (Agency Appeal); DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAN'S FINDfNGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO. SPP 12-139 4 MICHAEL J.MATSUKAWA,ES¢. Attorney for Intervenor-Appellee JEFFREY COMES Community Bused Education Support Servicer, et al. Y. Windward Planning Commission, County of Hawaii, el al.,Civ.No. 14.1-0223 (Agency Appeal);DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAPPS FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO. SPP 12-138 5 0 Y � o n Cc o� n_ w m cr a a m CL ['o n o 0 C f7 � `° of 7r P5- n � Ot m e y y CD CD CD T � z � A �• n � C .� C: 'b CCD R `z n "p O G m a cr t o �0 _. cn is7 0 CL 4. �, -� '< cin b7 �[n o �y w - CL Z R Cn m C Lh l J ZF c ( N 'C3 V] CA 00 < `C f-D ! 0 00C Co > cc R O Y�ly O R'O Co Ob w w 5- UQ CD � w CL rt 3 3 o w p C a D .�+ db La d m k 3 > IDCL .+ u, CL o 2. bG o U' CD fA 0 c�a cn O 21 c ro r n c 0 7 T M �`C fo CD C SIl 70 '`FILED MOLLY A. STEBBINS 8639 E l ea�y F ii I ed Corporation Counsel Inter lt 4�b� ppeals CA '0556 9 NG'NG.CLFRKDANNY B.PATEL 9578 - , JIT UlURT Deputy Corporation Counsel 10:13 AM County ofHawai'i 101 Aupuni Street,Suite 325 Hilo,Hawaii 96720 Telephone:(808)961-8251 Facsimile:(808)961-8622 E-mail: danny.patel@hawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, FINAL JUDGMENT Applicants-Appellants, vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, Appellee, i Judge: The Honorable Melvin H,Fujino I and JEFFREY GOMES,Intervenor, Intervenor-Appellee. 3 ]FINAL 0M Pursuant to Rule 58 of the Hawaii Rules of Civil Procedure and the Decision and Order Affirming Windward Planning Commission,County of Hawai'i's Findings of Fact, Conclusions I kgebyoerWbal thisis a fall,anre andcomacl copyotrtre rraY" �or,rhErc,urr�otlece. EXHIBIT—L. r .�1� s��1 �, of Law and Decision and Order Denying Special Permit Application No. SPP 12-138 entered herein, FNAL JUDGMENT IS HEREBY ENTERED in FAVOR of Appellee Windward Planning Commission, County of Hawaii, and Intervenor-Appellee Jeffrey Gomes, and AGAINST Applicants-Appellants Community Based Education Support Services and Connections New Century Public Charter School on all claims in this action. There are no remaining claims against any parties in this action, DATED: Kealakekua,Hawaii, JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM.- TED ORM:TED H. At5prAy for Applitant-X%OPeknt MMUNITY BASED EDUCA SUPPORT SERVICES CARTER K.SIU, ESQ. Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MICHAEL J. MATSUKAWA,ESQ. Attorney for Intervenor-Appellee JEFFREY COMES Community Based Cducation Support Services, et al. v. Windward Planning Commissiam County of Hawaii. e!al., Civ.No. 14-1-0223 (Agency Appeal); FINAL JUDGMENT 2 of Lew and Decision and Order Denying Special Permit Application No. SPP 12-138 entered herein, FINAL JUDGMENT IS HEREBY ENTERED in FAVOR of Appellee Windward Planning Commission, County of Hawaii, and Intervenor-Appellee Jeffrey Gomes, and AGAINST Applicants-Appellants Community Based Education Support Services and Connections New Century Public Charter School on all claims in this action. There are no remaining claims against any parties in this action. DATED: Kealakekun,Hawaii, JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: TED H.S.HONG,ESQ. Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER IC SIU,ESQ. . Attorney for Applicant-Appellant CONNECTIONS NEW Y PUBLIC CHARTER SCHOOL �tl( MICHAEL I MATSUKAWA,ESQ Attorney for Intervener-Appellee JEFFREY GOMIES Community Based Education Support Services, et at v. Windward Planning Commission, County of Hawaii,et at,Civ.No. 141-0223(Agency Appeal);FINAL JUDGMENT 2 r� y 0 � o �• n � o• m to m CL CD C1 0 0 � x r} rb C9 0. ev O n o v ft m C] d H t j H m R z LA CL w > n x UN CL Z) q b Ln P b LA o o m -0 � a C9 47D 0. v, O �C O 9 X CD CD C O� 9 N � n � m C 0. 11 � � rn C .i >La o w >e P? Cl) D 47D o T P+] U1 C=. �C o O fly n C Ck Lu C Ln a -1 LM E O. DC r. CD C C' OG n� DOUGLAS S. CHIN 6465 Attorney General, State of Hawaii Electronically Filed HOLLY T. SHIKADA 4017 Intermediate Court of Appeals CARTER K. SIU 7313 CAAP-15-0000665 Deputy Attorney General 11-SEP-2015 235 South Beretania Street, Room 304 11:19 AM Honolulu, Hawaii 96813 Telephone No. 808.586.1255 Carter.K.Siu hawaii. ov cn�3 Attorney for Applicant-Appellant m CONNECTIONS NEW CENTURY r PUBLIC CHARTER SCHOOL a`tx'-n rn IN THE CIRCUIT COURT OF THE THIRD CIRCUIT o ;; o STATE OF HAWAII to COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES; CONNECTIONS } (AGENCY APPEAL) NEW CENTURY PUBLIC CHARTER } SCHOOL; } NOTICE OF APPEAL; EXHIBITS "A"— Applicants-Appellants } "B;" CERTIFICATE OF SERVICE } vs. ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; } } Appellee, ) And ) JEFFREY GOMES, Intervenor, ) Intervenor-Appellee ) } Judge: The Honorable Melvin H. Fujino J NOTICE OF APPEAL NOTICE IS HEREBY GIVEN that Applicant-Appellant, Connections New Century Public Charter School ("Connections"), by and through its undersigned counsel Carter K. Siu, Deputy Attorney General, pursuant to Seetions 91-14,91-15, 602-57, 641-1(a) of the Hawaii Revised Statutes and Rules 3 and 4,Hawaii Rules of Appellate Procedure, appeals to the Intermediate Court of Appeals of the State of Hawaii from the: (1) Decision and Order Affirming Windward Planning Commission, County of Hawai`i's Findings of Fact, Conclusions of Law and Decision and Order Denying Special Permit Application No. SPP 12-138, a copy of which is attached as Exhibit "A;"and (2) Final Judgment filed on July 14, 2015, a copy of which is attached as Exhibit"B." DATED: Honolulu, Haw '`i, September 11, 2015 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES; CONNECTIONS ) (AGENCY APPEAL) NEW CENTURY PUBLIC CHARTER ) SCHOOL; ) CERTIFICATE OF SERVICE Applicants-Appellants ) VS. ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; ) Appellee, ) And ) JEFFREY GOMES, Intervenor, ) Intervenor-Appellee ) CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 11, 2015, pursuant to Rule 25(c) of the Hawaii Rules of Appellate Procedure, copies of the Notice of Appeal were served upon the following, either pursuant to Rule 6.1 of the Hawaii Electronic Filing and Service Rules through the Judiciary Electronic Filing System (JEFS) or by conventional mail,by depositing the same in the Unidted States mail,postage prepaid: 3 Ted H.S. Hong, Esq. Attorney at Law P. O. Box 4217 Hilo, HI 96720 E-Mail: ted@tedhonglaw.com Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES Danny B. Patel, Esq. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 E-Mail: danny. ap telahawaiicounty.gov Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII Michael J. Matsukawa, Esq. 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, Hawaii 96740 E-Mail: kapulu@msn.com Attorney for Intervenor-Appellee JEFFREY K. GOMES DATED: Honolulu, Hawaii, September 11, 2015. Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 4 FILED Electronically Filed MOLLY A. STEBBINS 8639 Interm $qu j peals Corporation Counsel GAAP-15-000066 11-SEfFEqW' C ,G,,iG.CLERK DANNY B.PATEL 9578 11:19 AURD f 1R'r1'Ui? COURT Deputy Corporation Counsel •` n` , '1 i County of Hawaii 101 Aupuni Street,Suite 325 Hilo,Hawaii 96720 Telephone:(808)961-8251 Facsimile:(808)961-8622 E-mail: danny.patL4@hawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII CONMRJNITY BASED EDUCATION Civil No, 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, DECISION AND ORDER Applicants-AppelIaats, AFFIKIIMG WINDWARD PLANNING COMMSSION,COUNTY VS. [ OF HAWAIII'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND WINDWARD PLANNING COMMISSION, DECISION AND ORDER DENYING COUNTY OF HAWAI-1, SPECIAL PERMIT APPLICATION NO. SPP 12-138 Appellee, and JEFFREY GON ES,Intervenor, Hearing: Intervenor-Appellee. Date: May 29,2015 Time: 9:00 a.m. Judge: The Honorable Melvin H.Fujino �hE21}Y certify ghat th<<,t�rhU flee ars COiTeCI copy 01(1i60(( ma Jl jjL-jr(nL"'j11ee. Clesk, itdCirculiCau�t, of mwali EXH1B1z--A--... DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION,COUNTY OF HAWAII'S FINDINGS OF FACT,CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICAMON NO.SPP 913 j3 Applicants-Appellants Community Based Education Support Services ("CBESS") and Connections New Century Public Charter School ("Connections'l (collectively, "Appellants") appeal from the Windward Planning Commission, County of Hawai'i's ("Commission'l decision denying Appellant's Special Permit Application No. SPP 12-138 entered May 1, 2014 ("Decision's and Findings of Fact, Conclusions of law and Decision and Order entered May 19. 2014 ("D&O'), came on for oral argument on May 29, 2015 at 9:00 am. before the Honorable Melvin H. Fujino. Ted H.S. Hoag, Esq., appeared on behalf of CRESS, Carter K. Siu, Esq., appeared on behalf of Connections, Danny B. Patel, Esq., appeared on behalf of Commission, and Michael J.Matsukawe, Esq., appeared on behalf of the Intervenor-Appellee, Jeffrey Gomes ("Gomes"). The Court, having reviewed the briefs and appendices submitted by the parties, the record on appeal, and having considered the arguments of the parties' counsel, enters the following Decision and Order: DECISION I. The Court finds the Applicants were allowed five public hearings azd five days of contested case proceedings, within which to meet their burden to establish the Application met the criteria required for a Special Permit. The Commission denied the Application. 2. The Court's review of the Commission's Decision and D&O is qualified by the principle that an agency's decision carries a presumption of validity and appellants have the heavy burden of making a convincing showing that the decision is invalid because it is unjust and unreasonable in its consequences. 2 3. In reviewing an agency appeal,the Court applies the standards set forth in Hawaii Revised Statutes("HRS")§91-14(g). 4. Conclusions of law are reviewable under HRS § 91-14(g),subsections(1),(2), and(4). The Commission's Decision and D&O do not violate relevant constitutional or statutory provisions,are not in excess of statutory authority or jurisdiction,and arc not affected by other error of law. 5. Findings of fact are reviewable under HRS §91-14(g),subsection(S). In view of the reliable,probative,and substantial evidence on the whole of the record, the Commission's Decision and D&O are not clearly erroneous. 6. Mixed questions of law and fact are reviewable under HRS § 91-14(g),subsection K (6). The Commission's Decision and D&O are not arbitrary,or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. 7. The County Charter,County of Hawai'i,explicitly authorizes the Commission to consider the County of Hawaii Genera[Plan when determining special permit applications, ORDER Pursuant to the above Decision,it is hereby ORDERED,ADJUDGED,and DECREED: 1. The Commission's Decision and D&O are AFFERMFD and the appeals taken by CBESS and Connections are dismissed; 2. CBESS'request for attorney's fees and costs m DENIED; 3. CBESS' request that the Court admonish and recommend the County to remove the Commissioners wino voted against the Appellant's application as unfit to serve on public commissions and boards because they violated their legal duty is DENIED,- and 3 4. FINAL, JUDGMENT shall be entered in favor of the Appellee Commission and Intervcnor-Appellee Gomes, and against Applicants-Appellants CBESS and Connections,on all claims in this action, e E i w e DATED: Keslakckua, Hawaii, JUDGE OF THE ABOVE-ENTITLED COURT PPROVED AS TO FORM: Y.HON SQ, for Applic pedantNITY BASED CATION SUPPORT SERVICES CARTER K.SIU, ESQ. Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL Community Based Education Support Services, et at v. Windward Planning Commission, County of Hawaii, et at_Civ.No. 141-0223 (Agency Appeal); DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAH'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT.APPLICATION NO.SPP 12-138 4 MICHAEL J.MATSUKAWA,ESQ. Attomey for Intervenor-Appellee JEFFREY GOMES Community Based Education Support Services, el al. v. Windward Planning Commission, County of Hawaii, er al.,Civ.No. 14-1-0223(Agency Appeal);DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`1'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO. SPP 12-138 5 '`FILED MOLLY A. STEBBINS 8639 EleWAIallyFailed Corporation Counsel Intet bMbAppeals CARP-1 -_O4, 1JIT 0665 11_If H0.4G.CLERK DANNY B.PATEL 9578 R COURT Deputy Corporation Counsel 11:19 AM County of Hawaii 101 Aupuni Street,Suite 325 Hilo,Hawaii 96720 Telephone:(808)961-8251 Facsimile:(808)961-8622 E-mail: dannypatel@hawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNTTY BASED EDUCATION Civil No. 141-0223 SUPPORT SERVICES;CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, FINAL JUDGMENT Applicants-Appellants, VS. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I, Appellee, Judge: The Honorable Melvin H.Fujin and JEFFREY GOMES,Intervenor, E Intervenor-Appellee. MAL JUDGMENT Pursuant to Rule 58 of the Hawaii Rules of Civil Procedure and the Decision and Order Affirming Windward Planaing Commission, County of Hawai'i's Findings of Fact, Conclusions I he*ycerti[ %w Ihtsis a full,mie and cared m of Me ' riaioi,nlesi Nuc ortrce. EXHIBIT.� Cter ,Thlydc`,pa,IsCourt< aIy of Law and Decision and Order Denying Special Permit Application No. SPP 12-138 entered herein, FINAL JUDGMENT IS HEREBY ENTERED in FAVOR of Appellee Windward Planning Commission, County of Hawaii, and Intervenor-Appellee Jeffrey Gomes, and AGAINST Applicants-Appellants Community Based Education Support Services and Connections New Century Public Charter School on all claims in this action. There are no remaining claims against any parties in this action. DATED: Kealakekua, Hawaii, mL' JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: TED H. , A y for Applicant-A nt MMUNITY BASED EDUCA SUPPORT SERVICES CARTER K.SIU, ESQ. Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MICHAEL J.MATSUKAWA,ESQ. Attorney for Intervenor-Appellee JEFFREY GOMES Community Based Cducation Support Services, et al. v. Windward Planning Commission, County of Hawaii, et al.,Civ. No. 14-1-0223 (Agency Appeal). F NAL JUDGMEENT 2 of Law and Decision and Order Denying Special Permit Application No. SPP 12-I38 entered herein, FINAL JUDGMENT IS HEREBY ENTERED in FAVOR of Appellee Windward Planning Commission, County of Hswai`i, and Intervenor-Appellee Jeffrey Gomes, and AGAINST Applicants-Appellants Community Based Education Support Services and Connections New Century Public Charter School on all claims in this action There are no remaining clam against any parties in this action. DATED: Kealakektia, Ha+waN, JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: TED H.S.HONG, ESQ. Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER IC SIU,ESQ. . Attorney for Applicant-Appellant CONNECTIONS 1gyjn5fTURY PUBLIC CHARTER SCHOOL MICHAEL J.MATSUKAWA,ESQ. Attorney for Intervenor-Appellee JEFFREY GOMES Community Based Edtcadon Support Services, et al. v. Windward Planning Commission, County of Hawaii, et al.,Civ.No. 141-0223(Agency Appeal);FINAL JUDGMENT 2 Electronically Filed Intermediate Court of Appeals CAAP-15-0000555 04-NQ11-2015 11:14 AM NO. CAAP-15-0000556 IN THE INTERMEDIATE COURT OF APPEALS - x OF THE STATE OF HAWAI`I 4W Q COMMUNITY BASED EDUCATION SUPPORT SERVICES,= Applicant-Appellant, v. CONNECTIONS NEW CENTURY PUBLIC CHARTER SCH00 WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII,.+ 40 DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees-Appellees, and JEFFREY GOMES, Intervenor-Appellee APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL NO. 14-1-223) ORDER GRANTING IN PART THE OCTOBER 14, 2015 MOTION (By: Reifurth, J. ) Upon consideration of "Appellee Windward Planning Commission, County of Hawai`i ` s Motion to Remove Confidential, Attorney-Client Privileged Documents from the Record on Appeal, " filed on October 14, 2015, the papers in support, and the record, and .noting no opposition, it appears: (1) A document beginning on page 26 and ending on page 36 in the record on appeal, Docket 39, was designated in-camera by the Third Circuit Court in the proceedings below; (2) Hawaii Court Record Rules Rule 10 . 5 provides that "only the judge and the judge ' s staff, and the appellate courts and the appellate courts ' staff, shall have access to documents or evidence submitted for in camera review. " (3) Hawaii Electronic Filing and Service Rules Rule 8. 2 provides that " [d] ocuments submitted for in camera review shall be maintained in DIMS under electronic security and made accessible to only the court, the appellate courts, and court staff until a court of competent jurisdiction orders otherwise. " (4) The appellate clerk may seal any document for in- camera review pending review and a determination of accessibility by this court . See Court Record Rules Rule 3 . 3 . (5) Appellee moves this court to redact the aforementioned pages from the record on appeal. The following IS HEREBY ORDERED: (1) The motion is granted in part. (2) Within three (3) days from the date of this order, the appellate clerk shall designate Docket 39 in--camera. (3) Within ten (10) days from the date of this order, the Third Circuit Court Clerk shall file an amended record on appeal, redacting the in-camera documents that were filed in Docket 39 on pages 26-36. DATED: Honolulu, Hawaii► November 4, 2015 . TE N EFAIL Associate Judge �F Qr ►`P _ .,cfi-onically Filed nnediate Court of Appeals -2015 l' i 0 A M1 NO. CAAP-15--0000556 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI`I COMMUNITY BASED EDUCATION SUPPORT SERVICES, Applicant-Appellant, v. CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL,,-!+- dn WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI!a,2z MR DEPARTMENT OF PLANNING, COUNTY OF HAWAII, VG8 Appellees-Appellees, ter, and rr) co JEFFREY COMES, Intervenor-Appellee APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRC[� I (CIVIL NO. 14--1--223) 497 ORDER OF CORRECTION (By: Nakamura, C.J. ) The "Order Granting November 11, 2015 Motion to Supplement the Record on Appeal" (pocket 80) tiled on December 15, 2015, is hereby corrected as follows: On page 1, paragraph 2, in line 3, the reference to "Second Circuit" is corrected to read "Third Circuit". The Clerk of the Court is directed to take all necessary steps to notify the parties of these changes . DATED: Honolulu, Hawaii, December 16 ,. 2015 . TE Co Chief Judge (�� SEAL Electronically Filed lnterrnediate Court of Appeals CAAP-15-0000556 15-DEC-2015 09p25 AM NO. CAAP-15-0000556 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII n COMMUNITY BASED EDUCATION SUPPORT SERVICE, a Applicant-Appellant, v. CONNECTIONS NEW CENTURY PUBLIC CHARTER SCH OL, M - WINDWARD PLANNING COMMISSION, COUNTY 0�' HAW II, �- , , DEPARTMENT OF PLANNING, COUNTY OF HAWAII Appellees--Appellees, i and . =� JEFFREY COMES, Intervenor-Appellee r APPEAL FROM THE CIRCUIT COURT OF THE THIRD CI CUIT r (CIVIL NO. 14-1-223) ORDER GRANTING NOVEMBER 11, 2015 MOTION TO SUPPLEMENT THE RECORD ON APPEAL (By: Nakamura, C.J. ) Upon consideration of the Motion to Supplement the Record on Appeal, filed on November 11, 2015 by Applicant- Appellant Community Based Education Support Services, and the records and files herein, IT IS HEREBY ORDERED that the Motion is granted. Within twenty (20) days from the date of this order, the clerk of the Circuit Court of the Second Circuit shall supplement the record on appeal with all documents listed in the "Index to Record on Appeal, " CAAP-15-0000556 JIMS docket # 37 at pages 533 through 556 . The supplemental record shall contain an electronic bookmark for each document . DATED: Honolulu, Hawaii, December 15 , 2015 . 4 1�r_",0�1� Chief Judge CrV - Electronically Filed Intermediate Court of Appeals ✓CAAP-15-0000665 15-DEC-2015 01:08 PM NOS . CAAP-15-0000556 AND CAAP-15-0000665 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII CAAP-15-0000556 COMMUNITY BASED EDUCATION SUPPORT SERVICES, Applicant-Appellant, v. CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOJL, WINDWARD PLANNING COMMISSION, COUNTY OF HA II, o _ DEPARTMENT OF PLANNING, COUNTY OF HAWAI rn Appellees-Appellees, and rn . JEFFREY GOMES, Intervenor--Appellee i M. :k AND X_ CAAP-15-0000665 CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL, Applicant-Appellant, v COMMUNITY BASED EDUCATION SUPPORT SERVICES, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees-Appellees, and JEFFREY GOMES, Intervenor-Appellee APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL NO. 14-1-223) ORDER GRANTING THE OCTOBER 6, 2015 MOTION FOR CONSOLIDATION OF CAAP-15-0000556 AND CAAP-15-0000665 UNDER CAAP-15-0000556 (By: Nakamura, C. J. ) Upon consideration of the; Motion to Consolidate Appeals, filed in CAAP-15-0000665 on October 6, 2015 by Applicant-Appellant Connections New Century Public Charter School, the records in appeals Nos . CAAP-15-0000556 and CARP-15- 0000665, it appears that the appeals involve the same parties and underlying case. IT IS HEREBY ORDERED that appeal Nos. CARP-15-0000556 and CARP-15--0000665 are consolidated under CARP-15-0000556, pursuant to Hawaii Rules of Appellate Procedure Rule 3 (b) . After the date of this order, all filings shall be made in CAAP- 15-0000556 and all parties shall follow the deadlines set forth in CARP-15-0000556 unless otherwise granted an extension in either appeal prior to the date of this order. DATED: ' Honolulu, Hawaii, December 15 , 2015 . Chief Judge - 2 - 9OZ8 1 030a (Sol) C� 14-1--223 } Electronically Filed .)ntermediate Court of Appeals CAA P-9 5-0000556 15-DEC-2015 09:96 PM NOS. CAAP-15-0000556 AND CAAP-15-0000665 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII CRAP-15-0000556 COMMUNITY BASED EDUCATION SUPPORT SERVICES, Applicant-Appellant, v. CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL, WINDWARD PLANNING COMMISSION, COUNTY OF HAWP�1I, DEPARTMENT OF PLANNING, COUNTY OF HAWAII,r" � Appellees-Appellees, and JEFFREY GOMES, i Mp _ y Intervenor-Appellee CO AND CAAP-15-0000665 v r CONNECTIONS NEW CENTURY PUBLIC CHARTER SCH L, -- Applicant-Appellant, v COMMUNITY BASED EDUCATION SUPPORT SERVICES, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees-Appellees, and JEFFREY COMES, Intervenor-Appellee APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL NO. 14-1-223) ORDER GRANTING THE OCTOBER 6 2015 MOTION FOR CONSOLIDATION OF CAAP-15-Q000556 AND CAAP-15-0000665 UNDER CAAP-15-0000556 (By: Nakamura, C. J. ) Upon consideration of the Motion to Consolidate Appeals, filed in CAAP-15--0000665 on October 6, 2015 by Applicant-Appellant Connections New Century Public Charter School, the records in appeals Nos . CAAP-15-0000556 and CAAP-15- 4000665, it appears that the appeals involve the same parties and underlying case. IT IS HEREBY ORDERED that appeal Hos. CAAP-15-0000556 and CARP-15-0000665 are consolidated under CARP-15-0000556, pursuant to Hawai'i Rules of Appellate Procedure Rule 3 (b) . After the date of this order, all filings shall be made in CAAP- 15-0000556 and all parties shall follow the deadlines set forth in CAAP-15-0000556 unless otherwise granted an extension in either appeal prior to the date of this order. DATED: ' Honolulu, Hawaii, December 15 , 2015. Chief Judge - 2 - 91aZ 8 030 ®3nSOMI NOT FOR PUBLICATION IN WEST'S RAWAI`I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-15-0000556 19-APR-2016 08:06 AM D'4 o NO. CAAP-15-0000556 IN THE INTERMEDIATE COURT OF APPEALS OF TRE STATE OF HAWAII COMMUNITY BASED EDUCATION SUPPORT SERVICES, Applicant-Appellant, v. CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees-Appellees, and JEFFREY GOMES, Intervenor-Appellee APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL NO. 14-1--223) ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTI� (By: Nakamura, C. J. , Foley and Leonard, JJ. ) Upon review of (1) the record and (2) the December 15, 2015 order consolidating appellate court case numbers CAAP-15-- 0000556 and CAAP-15-0000665 under appellate court case number CARP-15-0000556, it appears that we lack appellate jurisdiction NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER over the appeals that Applicants/Appellants/Appellants Community Based Education Support Services and Connections New Century Public Charter School (the Appellants) have asserted from the Honorable Melvin H. Fujino' s July 14, 2015 judgment in favor of Appellee-Appellee Windward Planning Commission, County of Hawaii (Appellee Windward Planning Commission) and Intervenor/Appellee/ Appellee Jeffrey Gomes, because the July 14 , 2015 judgment does not s1V-isfy--stJae requirements for an appealable final judgment underaaiawaic -gevised Statutes (HRS) § 641-1 (a) (1993 & Supp. 2015);' RuleAx=-!5'8 and 72 (k) of the Hawaii Rules of Civil Procedure (HRCPT', and=-;tie holding in Jenkins v. Cades Schutt c--, -Fl eming & WrighOU 76 Rawai`i 115, 119, 869 P. 2d 1334, 1338 (1994) . HRS § 91- 15 (2012 & Supp. , 2015) provides that " [r] eview of any final judgment of the circuit court or, if applicable, the environmental court, under this chapter shall be governed by chapter 602 . " The Hawaii Intermediate Court of Appeals has jurisdiction " [t] o hear and determine appeals from any court or agency when appeals are allowed by law [ . ] " HRS § 602-57 (1) (Supp. 2015) . The applicable law for this appeal provides that " [a]ppeals shall be allowed in civil matters from all final judgments, orders, or decrees of circuit . . . courts [ . ] " HRS § 641--1 (a) . Appeals under HRS § 641-1 "shall be taken in the manner . . . provided by the rules of court . " HRS § 641-1 (c) . HRCP Rule 58 requires that " [e] very judgment shall be set forth on a separate document . " '"An appeal may be taken from circuit court orders resolving claims against parties only after the orders have been reduced to a judgment and the judgment has been entered in favor of and against the aRDro-oriate tparties pursuant -2- NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER to HRCP [Rule] 58 [ . ] " Jenkins, 76 Hawaii 115, 119, 869 P. 2d 1334, 1338 (1994 ) (emphasis added) . "Thus, based on Jenkins and HRCP Rule 58, an order is not appealable, even if it resolves all claims against the parties, until it has been reduced to a separate judgment. " Carlisle v. One (1) Boat, 119 Hawaii 245, 254 , 195 P. 3d 1177, 1186 (2008) ; Bailey v. DuVauchelle, 135 Hawaii 482, 489, 353 P. 3d 1024, 1031 (2015) . "An appeal from an order that is not reduced to a judgment in favor or against the party by the time the record is filed in the supreme court will be dismissed. " Jenkins, 76 Hawaii at 120, 869 P. 2d at 1339 (footnote omitted) . Although the instant case involves an administrative appeal, HRC? Rule 72 (k) 1 similarly requires that, upon a circuit court ' s adjudication of an administrative appeal, "the court having jurisdiction shall enter judgment . " HRCP Rule 72 (k) . Therefore, the separate judgment document rule under the holding in Jenkins applies to a secondary appeal from a circuit court order that adjudicates an administrative appeal. See, eTa. , Raquinio v. Nakanelua, 77 Hawaii 499, 500, 889 P. 2d 76, 77 (App. 1995) ("We conclude . . . that the requirements for appealability set forth in Jenkins apply to appeals from circuit court orders deciding appeals from orders entered by the Director of Labor and Industrial Relations . ") . When interpreting the requirements for a judgment under HRCP Rule 58, the Supreme Court of Hawaii 1 Rule 81 (e) of the Hawaii Rules of Civil Procedure requires that the Hawaii Rules of Civil Procedure "shall apply to any proceedings in a circuit court pursuant to appeal to the circuit court from a governmental official or body (other than a court) , except as otherwise provided in Rule 72. '" -3- NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER explained that its reason for strictly enforcing the separate document rule was that [i]f we do not require a judgment that resolves on its face all of the issues in the case, the burden of search-'ng the often voluminous circuit court record to verify assertions of jurisdiction is cast upon this court. Neither the parties nor counsel have a right to cast upon this court the burden of searching a voluminous record for evidence of finality, . . . and we should not make such searches necessary by allowing the parties the option of waiving the requirements of HRCP [Rule] 58. Jenkins, 75 Hawaii at 119, 859 2. 2d at 1338 (citation omitted) . Consequently, "an appeal from any judgment will be dismissed as premature if the judgment does not, on its face, either resolve all claims against all parties or contain the finding necessary for certification under HRCP [Rule] 54 (b) . " Yd. In the instant case, the circuit court has attempted to resolve all claims, in this appellate case by way of two judgments : (1) a September 22, 2014 HRCP Rule 54 (b) -certified judgment in favor of lntervernors/Appellees/ Appellees Sidney Fuke (Appellee Fuke) and Terence T. Yoshioka (Appellee Yoshioka) and against the Appellants; and (2) the July 14, 2015 judgment in favor of Appellee Windward Planning Commission and Appellee Gomes and against the Appellants . A final judgment in this case must adjudicate the Appellants ' respective appeals in Civil NO. 14-1-0223 as to all of the remaining parties whom the Appellants specifically named as parties in the two notices of appeal that they filed in Civil No. 14-1-0223, namely, Appellee Windward Planning Commission, Respondent/Appellee/Appellee Department of Planning, County of Hawaii (Appellee County Department of Planning) , Appellee Gomes, -4- NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER and Intervenor/Appellee/Appellee Sandra Song (Appellee Song) . While the July 14, 2015 judgment adjudicates the Appellants ' respective appeals as to the Appellee Windward Planning Commission and Appellee Gomes, the July 14, 2015 judgment does not adjudicate the Appellants ' appeals as to the Appellee County Planning Department and Appellee Song. Although the July 14, 2015 judgment does not adjudicate the Appellants ' appeals as to all of the remaining parties, the July 14 , 2015 judgment does not contain the finding necessary under HRCP Rule 54 (b) for the certification of a judgment as to one or more but fewer than all claims or parties . Although the July 14, 2015 judgment concludes with a statement that " [t] here are not remaining claims against any parties in this action [ , ] " the Supreme Court of Hawaii has explained that fal statement that declares "there are no other outstanding claims" is not a judgment. If the circuit court intends !' that claims other than those listed in the iudgment language should be dismissed, it must say so: for example, "Defendant Y's counterclaim is dismissed, " or "Judgment upon. Defendant Y's counterclaim is entered in favor of Plaintiff/Counter-Defendant Z, " or "all other claims, counterclaims, and cross-claims are dismissed. " Jenkins, 76 Hawaii at 119-20 n. 4, 869 P. 2d at 1338-39 n. 4 (emphases added) . Because the July 14, 2015 judgment does not resolve this administrative appeal as to all the remaining named parties in Civil No. 14-1-0223, the July 14, 2015 judgment does not satisfy the requirements for an appealable final judgment under HRS § 641-1 (a) , HRCP Rule 58, HRCP Rule 72 (k) , and the holding in Jenkins. Absent an appealable final judgment, this appeal is premature and we lack jurisdiction. -5- NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER Accordingly, IT IS HEREBY ORDERED AND DECREED that appellate court case number CAAP-15--0000556 is dismissed for lack of appellate jurisdiction. DATED: Honolulu, Hawaii, April 19 , 2016. Chief Judge G\ Associate Judge ?As ciate udge -6- w _f ILED M()l.l,Y A. S'I I.I3I3[NS 863{) SAGFHAMAII Corporation Counsel 316 MAY 20 M 1119 DANNY 13. PATEL 9578 I)eptax Corporation Counsel County of'I lawai'i KN 101 Aupuni Street. Suite 325 L. CI Iilo, IIawai'i 96720 Telephone: (808) 961-8251 Facsimile: (808) 961 -8622 1;-mail: dannv.pater"c%haw-aiicoLuitv.,ov Attorneys for Appellee WIND%VARD PLANNING COMMISSION, COUNTY O1, 11A%VAI'I IN TI H". CIRCUITCOURT OF T1-IF THIRD CIRCUIT STATI-' 0 V I[ANVAI'I COMMUNITY BASFD 1DUCATION Civil No. 14-1-0223 SUPPORT SFRVICES: CONNECTIONS (Agency Appeal) NI.W C1.NTURY PUBIJC CI [AR`I'I R SCI 1001., NOTICE OF SUBMISSION OF AM FN UI?D Applicants-Appellants, FINAL JUDGMENT; EXI IJBIT "A' CI:RTIFICATF. O1,' SI:RVICI: vs. i WINDWARD PLANNING COMMISSION, COLINTY OF 11A WAI'I, !Appellee. and I .11'H.RI;y GOMIIntervenor, s Intervenor-Appellee. NOTICE OF SUBMISSION OF AMENDED FINAL ,IUDCMENI' 1'O: TED I I.S. I IONG, ESQ. Ililo Lagoon Centre 101 Aupuni Street. PI 11002A Ili lo- Ilawai'i 96720 Attorney for Applicant-Appellant COMMUNITY I3ASFID EDUCATION SUPPORT SERVICES CARTER K. SIU. I-.SQ. Deputy Attorney General State of IIawai'i 235 South I3eretania Street. Room 304 1lonolulu, Ilawai'i 96813 Attorney tar Applicant-Appellant CONNI;CI'IONS NEW CFNI'URY PUBLIC CHARTER SCIIOOI. MICI IAFI. .i. MATSUKAWA, I;SQ. TcrriLori al Centre, Suite 201 75-5751 Kuakini I lighwav Kailua-Kona, Ilawai'i 96740 Attornev for Intervenor-Appellee .II 1 1'RFY GOMIS Pursuant to the provisions of Rule 23 of-the Rules of the Circuit Courts of the Statc of [awai'i. YOU AW' I IFRFBY NO'CIFIFD that the undersigned has prepared and submitted to the Court a proposed AMENDED FINAI. .IUDGMENT. a copy of which is attached hereto a5 FAhibit "A." Pursuant to the provisions of said Ilule. you have five (5) days from your receipt of this Notice to serve upon all parties and to mail or deliver to the Court a statement of your 2 objections to the ANIFND1:D FINAL JUDGME,N'F and the reasons therel'ore. and a draft ol'said judgment which you propose to substitute Icer that which is attached. Dated: I filo_ f lax&ai-i, ` 10�� ZUr2Ul WINDWARD PLANNING COMMISSION, COUNTY OF IIA WA['I I � - i_1) TEL 1) uty Corpo ation Counsel A r Appellee MOLLY A. STEBBINS 8639 Corporation Counsel DANNY B. PATEL 9578 Deputy Corporation Counsel County of Ilawai'i 101 Aupuni Street, Suite 325 Milo. 11awai'i 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: danny.patel4hawaiicounty.gov Attorneys Ibr Appellee WINDWARD PLANNING COMMISSION, COUNTY OF IIAWAI'I IN TILL CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF IIAWAI'I COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SU11PORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCI IOOL, AMENDED FINAL JUDGMENT Applicants-Appellants, VS. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, Appellee, Judge: The Honorable Melvin II. Fujino and JEF RF.Y DOMES, Intervenor, Intervenor-Appel lee. Exhibit "A" AMENDED FINAL JUDGMENT Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SFRVIC "S ("CBESS") filed its Notice of Appeal to Circuit Court on June 9, 2014. On .lune 19. 2014. Applicant-Appellant CONNECfIONS NEW CE,NI'URY PUBI.AC CHARTER SCHOOL ("Connections") filed Applicant-Appellant Connections New Century Public Charter .School',ti Notice Of Appeal To Circuit Court And .Joinder To Applicant-Appellant Community Based Education Support ,Services' Notice Of'Appeal To Circuit Court, Filed June 9, 2014. The WINDWARD PLANNING COMMISSION ("Commission''), COUNTY OV HAWAII, and the DEPARTMENTOF PLANNING ("Department"), COUNTY OF IIAWAH, were named Appellees. SANDRA SONG, in her capacity as Hearing Ofliccr; H:I 1 MI Y GOMIS, Intervenor; SIDNEY FUKE, Intervenor's Representative; and TERI?NCI. T. YOSI IIOKA, Intervenor's Representative, were named Intervenor-Appellees. On September 22, 2014, the Order Granting Appellees Sidney Fuke And Terrence 7. I'o,shioka's Motion For Summary Judgment was entered, dismissing as parties to the appeal Sidney puke and Terrence T. Yoshioka, all claims against them, and ordering their names be removed irons the case caption. On the same date, the Judgment Pursuant To Order (wanting Appellees Sidney Fuke And Terrence 7: Yoshioka's Motion For Summary Judgment was entered pursuant to Rule 54(b) of the I-Iawai'i Rules of Civil Procedure in favor of Appellees Sidney Fuke And 7 errence T, Yoshioka and against CBESS and Connections on all claims. On September 22, 2014. the Order Granting Appellee Windward Planning Commission, County Of]]anti ai`i, And Intervenor-appellee ,Sandra Song's Motion To Dismiss I'iled On July 2014 ("Song Order") was entered, dismissing all claims against Sandra Song. No separate judgment on said order was entered. 2 On September 22, 2014, the Order Granting Appellee Department Of'Planning, County Of'Ilamvcai'i's Uotion To Dismiss Filed On dune 27, 2014 ("Department Order") was entered. dismissing all claims against the Department. No scparatc judgment on said order was entered. On February 5, 2015, the Order Denying Intervenor-Appellee Jeffrey K. Gomes' Alotion (1) To Strike Notice Of'Aplval And Joinder Filed By, Connections Nem, Century Public Charter School (Filed June 19, 2014) (2) To Dismiss Said Notice Of'Appeal And (3) For Summary .lodgment Against Conneelions Nem, Century Public Charter School On Its Notice Of Appeal (Filed,lame 19, 2014), Filed December 1, 2014, And To Amend Caption was entered, ordering the case caption be amended to add Connections as an Applicant-Appellant, and to remove Sandra Song, the Department, Sidney Puke, and Terrence T. Yoshioka as Appellees. On July 14, 2015, the Decision And Order Affirming Windward Planning Commission, County Of 11awai'i's Findings Of Fuel. Conclusions Of Law And Decision And Order Dc raving Special Permit Application 1Vo ,SPP I2-138 ("Order Affirming") was entered, affirming the decision of the Commission and dismissing; the appeals taken by CRESS and Connections. On The same date, the Finul.ludgmeni was entered in favor of Appellee Commission and Intervenor- Appellee Jeffrey Gomes, and against Applicants-Appellants CBESS and Connections on all claims. ,Yherei'ore, pursuant to Rule 58 of the Ilawai`i Rules of Civil Procedure, 11' IS I I]:R.1?IIY ORDF,RE'D, ADJUDGED AND DECREED: 1. Pursuant to the Song Order, FINAL, JUDGMENT is entered in FAVOR of Intervenor-Appellee Sandra Song, and AGAINST Applicants-Appellants CBESS and Conneetions on all claims. 3 2. Pursuant to the Department Order, FINAL. JUDGMENT is entered in FAVOR of' Appellee Department, and AGAINST Applicants-Appellants CBESS and Connections on all claims. 3. Pursuant to the Order Affirming, FINAL JUDGMENT is entered in FAVOR of Appel.icc Commission and Intervenor-Appcllee Jeffrey Gomes. and AGAINST Applicants- Appellants CBESS and Connections on all claims. 4. All other claims. counterclaims, and cross-claims are dismissed. DATED: Kealakckua, Ilawai`i, JUDGE OF THE ABOVE-ENTITLED COURT APPROVI".I) AS TO FORM: TED ILS.IIONG, ESQ. Attorney for Applicant-Appellant COMMUNITY 13ASED EDUCATION SUPPORTSFRVICES CARTER K. SIU. ESQ. Attorney for Appiicant-Appellant CONNI`01ONS NEV C FNTURY PUBLIC CHARTER SCI TOOL MICHAEL .). MATSUKAWA, ESQ. Attorney for Intervenor-Appcllee JEFFREY GOMES Community Rased Education Support Services, el al. v. Windward Planning Commission, County of Hawaii. e! al., Civ. No. 14-1-0223 (Agency Appeal): AMENDED FINAI, IlUDGME.Ni' 4 IN '['III: CIRCUIT LOUR"f Ol '1'iil. `fIIIRI) CIRCUIT STATE OF I]AWAi'I COMMUINITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SFRVICL,S, CONNECTIONS (Agency Appeal) NI'W CI.N'hURY PUI3LIC CIIARTI1:R SCI [OOI.. CERTIFICATE OF SERVICE Applicants-Appel lasts. vs. WINDWARD PLANNING COMMISSION, COUNTY 01" HAW'AI'I, Appellee, and .[LFFIZFY GOM1:S, Intervenor, Intervenor-Appe].lee. CERTIFICATE OF SERVICE The undersigned llerebv certifies that a true and correct copy of the foregoing document "as served upon the parties below at their respective addresses in the manner indicated on May 20- 2016. Hand delivers, TED II.S. IIONG, FSQ. I Iilo lagoon Centre 101 Aupuni Strect. Pl I 1002A IIilo, I lawai'i 96720 Attorney for Applicant-Appellant COMMUNITY RASED EDUCATION SUPPORT SFRVICI,,S U.S. Mail, postage prepaid CAWlTR K. SIU. F,SQ. Deputy Attorney General. State of Iiawai'i 235 South 11cretania Street, Room 304 Ilonolulu. Ilawai'i 96813 Attorney for Applicant-Appellant CONNECTIONS NFIW CENTURY PUBLIC CIIARTER SCI 1001. U.S. Mid PONtage prepaid MICIIAF J. MATSUKAWA, ESQ. Territorial Centre. Suite 201 75-5751 Kuakini I Iighway Kailua-Kana, I lawai'i 96740 Attorney for Intervenor-Appellee JEFFREY GUMI:S Dated: IIiIo. IIawai'i, EL_ _ De it orporation Counsel 2 0 QRIGINK ^1�1CU1T_Ca/1�: f STATE CF HA*,.11 TED H. S. HONG 3569 Attorney at Law 2016 MAY 24 AM I I: 43 P. O. Box 4217 Hilo, HI 96720 Telephone No. 808.933.1919 Facsimile No. 808.935.8281 CLtit K.. ted(aDtedhonglaw.com Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION j CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES ) (Agency Appeal) } Applicant-Appellant, ) APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' vs. ) NOTICE OF SUBMISSION OF } FIRST AMENDED FINAL JUDGMENT; WINDWARD PLANNING COMMISSION,) EXHIBIT "I- CERTIFICATE OF COUNTY OF HAWAII; DEPARTMENT ) SERVICE OF PLANNING, COUNTY OF HAWAII, ) } Appellees, } and ) } JEFFREY GOMES, Intervenor; } } JUDGE: Hon. MELVIN H. FUJINO Intervenor-Appellee. } } APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' NOTICE OF SUBMISSION OF FIRST AMENDED FINAL JUDGMENT Comes Now, Applicant-Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES, (hereinafter referred to as "Appellant CBESS"), by and through its undersigned counsel and pursuant to Rule 23 of the Rules of Circuit Court, hereby submits its First Amended Final Judgment attached hereto as Exhibit DATED: Hilo, Hawaii, May 24, 2016. Respectfully submitted, 1 T H. S. HONG Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 TED H. S. HONG 3569 Attorney at Law P. O. Box 4217 Hilo, HI 96720 Telephone No. 808.933.1919 Facsimile No. 808.935.8281 ted@tedhonglaw.com Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES } (Agency Appeal) Applicant-Appellant, ) FIRST AMENDED FINAL JUDGMENT } vs. ) } WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT } OF PLANNING, COUNTY OF HAWAII, } } Appellees, ) } and } } JEFFREY GOMES, Intervenor; ) JUDGE: Hon. MELVIN H. FUJINO Intervenor-Appellee. ) FIRST AMENDED FINAL JUDGMENT On or about May 19, 2014, the Appellee Windward PIanning Commission submitted its Findings of Fact, Conclusions of Land and Decision and Order. CROA: 4300-4315. On or about June 9, 2014, Applicant-Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES, (hereinafter referred to as "Appellant CBESS"), timely filed its Notice Exitibra1 of Appeal to the Third Circuit Court, State of Hawaii, pursuant to Rule 72 of the Hawaii Rules of Civil Procedure (hereinafter referred to as `'HRCivP"), and Sections 91-14 and 91-15, Hawaii Revised Statutes, (hereinafter referred to as "HRS"). In its Notice of Appeal, Appellant CBESS named as appellees the following interested individuals: SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA, Intervenor's Respresentative; who each actively participated in the administrative agency hearings, pursuant to Rule 19(a) and (b), HRCivP, and were indispensable parties to the administrative agency appeal. On or about June 9, 2014, Applicant-Appellant, CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL (hereinafter referred to as "Appellant Connections") filed its Notice of Appeal to the Circuit Court and Joinder to Applicant-Appellant, Community Based Education Support Services' Notice of Appeal to the Circuit Court, filed on June 9, 2014. On or about September 22, 2014, the Third Circuit Court dismissed SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA, Intervenor's Respresentative as appellees in the present case, including any and all claims against them and ordered that the caption be amended to have their names removed. There are no remaining claims against SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA, Intervenor's Respresentative. Jenkins v. Cades Schutte Fleming & Wright, 76 Hawaii 115, 869 P.2d 1334 (1994). On or about September 22, 2014, pursuant to Rule 54(b), HRCivP, the Third Circuit Court entered judgment in favor of SIDNEY FUKE, Intervenor's Representative; and 2 t , TERRANCE YOSHIOKA, Intervenor"s Respresentative against Appellant CBESS and Appellant Connections. There are no remaining claims against SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA, Intervenor's Representative. Jenkins v. Codes Schutte Fleming& Wright, 76 Hawaii 115, 869 P.2d I334 (1994). On or about September 22, 20I4, the Third Circuit Court dismissed SANDRA SONG, in her capacity as Hearing Officer, as an appellee to the present case. There are no remaining claims against SANDRA SONG, in her capacity as Hearing Officer. Jenkins v. Codes Schutte Fleming & Wright, 76 Hawaii 115, 869 P.2d 1334 (1994). The Appellee, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, failed to submit a judgment for the Third Circuit Court's approval and filing concerning the dismissal of SANDRA SONG, in her capacity as Hearing Officer. On or about September 22, 2014, the Third Circuit Court dismissed Appellee, DEPARTMENT OF PLANNING, COUNTY OF HAWAII, as an appellee in the present case. The Appellee, DEPARTMENT OF PLANNING, COUNTY OF HAWAII, failed to submit a _judgment for the Third Circuit Court's approval and filing concerning the dismissal of Appellee, DEPARTMENT OF PLANNING, COUNTY OF HAWAII from the present case. On or about July 14, 2015, the Third Circuit Court issued its Decision and Order Affirming Windward Planning Commission, County of Hawaii's Findings of Fact, Conclusions of Law and Decision and Order Denying Special Permit Application No. SPP 12-138 (ARA: Part 1, 1463-1467). IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, pursuant to Rule 72(k) of the Hawai'i Rules of Civil Procedure: 3 4 t Final Judgment is hereby entered in favor of Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, in the above entitled administrative agency appeal. That there being no further claims by or on behalf of the parties in this administrative agency appeal and there being no just reasons for delay, this shall be a Final Judgment as to Applicant-Appellants, CBESS and Connections and Appellee, Windward Planning Commission, County of Hawaii, pursuant to Rule 72(k), HRCivP, and Sec. 91-15, HRS. There are no other remaining claims or parties in this matter and all other remaining claims are hereby dismissed with prejudice. ,Jenkins v. Codes Schutte Fleming& Wright, 76 Hawaii 115, 869 P.2d 1334 (1994). DATED: Kealakekua, Hawaii, JUDGE OF THE ABOVE-ENTITLED COURT Community Based Education Support Services and Connections New Century Public Charter School v. Windward Planning Commission, County of Hawaii, and Jeffrey Gomes, Intervenor- Appellee, CIVIL NO. 14-1-0223 MHF (Agency Appeal), FIRST AMENDED FINAL JUDGMENT. 4 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. I4-1-0223 MHF SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) CERTIFICATE OF SERVICE } vs. } } WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING, COUNTY OF HAWAII. ) Appellees, } and } JEFFREY K. GOMES, ) Intervenor-Appellee. ) JUDGE: Hon. MELVIN H. FUJINO } CERTIFICATE OF SERVICE I hereby certify that the foregoing document was duly served via U.S. Mail, postage prepaid, on the date indicated below, to the following: CARTER K. SIU, ESQ. Deputy Attorney General State of Hawai'i 235 S. Beretania Street, Rm. 304 Honolulu, Hawaii 96813 Attorney for Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL 1g - AMY G. SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee COUNTY OF HAWAII PLANNING DIRECTOR DANNY B. PATEL, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION. COUNTY OF HAWAI'I MICHAEL J. MATSUKAWA, ESQ. 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, Hl 96740 Attorney for Appellee JEFFREY K. GOMES DATED: Hilo, Hawaii, May 24, 2016. D aHS. HONG Attorney at Law Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 FILED MICHAEL J. MATSUKAWA, 1885-0 Territorial Centre, Suite 201 KAY I PM 3% 05 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Telephone No . : (808) 329-1385 HES ,ETTA CHONG, K w� c.�.s,ut i raURf Attorney for Intervenor-Appellee JEFFREY K. DOMES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO . 14-1-0223 SUPPORT SERVICES (CBESS) and } (Agency Appeal) CONNECTIONS NEW CENTURY PUBLIC ) CHARTER SCHOOL, ) INTERVENOR-APPELLEE JEFFREY K. Applicants-Appellants, ) GOMES' OBJECTIONS TO FORM OF JUDGMENT FILED BY APPLICANT- vs . ) APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES WINDWARD PLANNING COMMISSION, ) (CBESS) ON MAY 24 , 2016 ; COUNTY OF HAWAII; DEPARTMENT OF ) CERTIFICATE OF SERVICE PLANNING, COUNTY OF HAWAII, ) Appellees, } ) and } } JEFFREY COMES , } JUDGE : HON. M. FUJINO Intervenor-Appellee . } oS3116.1�j-gomes\judgment.obj -� INTERVENOR-APPELLEE JEFFREY K. GOMES' OBJECTIONS TO FORM OF JUDGMENT FILED BY APPLICANT-APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES (CBESS) ON MAY 24 , 2016 The Court should deny the form of Judgment presented by Applicant-Appellant Community Based Education Support Services (CBESS) because : 1 - It contains unnecessary references to the pleadings (e .g. , Pages 1 to 2 , first four paragraphs) ; r; IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCA'T'ION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS) and } (Agency Appeal) CONNECTIONS NEW CENTURY PUBLIC } SCHOOL, } CERTIFICATE OF SERVICE Applicants-Appellants, } } vs . ) WINDWARD PLANNING COMMISSION, } COUNTY OF HAWAII, DEPARTMENT OF } PLANNING, COUNTY OF HAWAII, ) ) Appellees, ) ) and ) JEFFREY COMES, ) ) Intervenor-Appellee. ) CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a copy of the foregoing document (s) was duly served upon the following parties via the U. S . Post Office, Kailua-Kana, Hawaii, postage prepaid, addressed as follows : TED H. S . HONG, ESQ. P.O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General 23S So. Beretania Street, Room 344 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL j AMY SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAII PLANNING DIRECTOR LAUREEN L. MARTIN, ESQ. DANNY B . PATEL, ESQ. 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII DATED : Kailua-Kona, Hawaii , May 31, 2016 . JEFFREY K. GOMES, Intervenor- Appellee By: MICHAEL J. MATSUKAWA His Attorney 2 i l Electronically Filed Intermediate Court of Appeals CAAP-I 5-0000665 27-JUL-2016 02:49 PM NO . CAAP- 15-0000665 CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL, Applicant-Appellant, a 05�VS. Z CCOMMUNITY BASED EDUCATION SUI 6R Q N SERVICES, et al., Appellees-Appellees, and JEFFREY COMES, Intervenor-Appellee. *ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION *ODSU filed in CAAP-15-0000556 on April 19, 2016, was inadvertently not filed in consolidated case number CAAP-15-0000665. (See attached) NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals GAAP-15-0000555 19-APR-2016 08:06 AM NO. CAAP-15-0000556 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII COMMUNITY BASED EDUCATION SUPPORT SERVICES, Applicant-Appellant, v. CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees-Appellees, and JEFFREY GOMES, Intervenor-Appellee APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL NO. 14-1-223) ORDER DISMISSING APPEAL FOR LACK OF APPELLATEJURISDICTION (By: Nakamura, C. J. , Foley and Leonard, JJ. ) Upon review of (1) the record and (2) the December 15, 2015 order consolidating appellate court case numbers CAAP-15- 0000556 and CRAP-15-0000665 under appellate court case number CAAP-15-0000556, it appears that we lack appellate jurisdiction NOT FOR PUBLICATION IN WEST'S HA.WAVI REPORTS AND PACIFIC REPORTER over the appeals that Applicants/Appellants/Appellants Community $ased Education Support Services and Connections New Century Public Charter School (the Appellants) have asserted from the Honorable Melvin H. Fujino' s July 14, 2015 judgment in favor of Appellee-Appellee Windward Planning Commission, County of Hawaii (Appellee Windward Planning Commission) and Intervenor/Appellee/ Appellee Jeffrey Gomes, because the July 14, 2015 judgment does not satisfy the requirements for an appealable final judgment under Hawaii Revised Statutes (HRS) § 641-1 (a) (1993 & Supp. 2015) , Rules 58 and 72 (k) of the Hawaii Rules of Civil Procedure (HRCP) , and the holding in Jenkins v. Cades Schutte Fleming & Wright, 76 Hawaii 115, 119, 869 P. 2d 1334, 1338 (1994) . HRS § 91-15 (2012 & Supp. , 2015) provides that " [r] eview of any final judgment of the circuit court or, if applicable, the environmental court, under this chapter shall be governed by chapter 602 . " The Hawaii Intermediate Court of Appeals has jurisdiction " [t] o hear and determine appeals from any court or agency when appeals are allowed by law [ . ] " HRS § 602-57 (1) (Supp. 2015) . The applicable law for this appeal provides that " [a]ppeals shall be allowed in civil matters from all final judgments, orders, or decrees of circuit . . . courts [ . ] " HRS § 641-1 (a) . Appeals under HRS § 641-1 "shall be taken in the manner . . . provided by the rules of court . " HRS § 641-1 (c) . HRCP Rule 58 requires that " [e] very judgment shall be set forth on a separate document. " "An appeal may be taken from circuit court orders resolving claims against parties only after the orders have been reduced to a judgment and the judgment has been entered in favor of and against the appropriate parties pursuant -2- NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER to HRCP (Rule] 58 [ . 3 " Jenkins, 76 Hawaii 115, 119, 869 P. 2d 1334, 1338 (1994 ) (emphasis added) . "Thus, based on Jenkins and HRCP Rule 58, an order is not appealable, even if it resolves all claims against the parties, until it has been reduced to a separate judgment. " Carlisle v. One (1) Boat, 119 Hawaii 245, 254, 195 P. 3d 1177, 1186 (2008) ; Bailey v. DuVauchelle, 135 Hawaii 482, 489, 353 P.3d 1024, 1031 (2015) . "An appeal from an order that is not reduced to a judgment in favor or against the party by the time the •record is filed in the supreme court will be dismissed. " Jenkins, 76 Hawaii at 120, 869 P. 2d at 1339 (footnote omitted) . Although the instant case involves an administrative appeal, HRCP Rule 72 (k) l similarly requires that, upon a circuit court ' s adjudication of an administrative appeal, "the court having jurisdiction shall enter judgment . " HRCP Rule 72 (k) . Therefore, the separate judgment document rule under the holding in Jenkins applies to a secondary appeal from a circuit court order that adjudicates an administrative appeal. See, e. g. ,. Raquinio v. Nakanelua, 77 Hawaii 499, 500, 889 P. 2d 76, 77 (App. 1995) ("We conclude . . . that the requirements for appealability set forth in Jenkins apply to appeals from circuit court orders deciding appeals from orders entered by the Director of Labor and Industrial Relations . ") . When interpretinq the requirements for a judgment under HRCP Rule 58, the Supreme Court of Hawaii 1 Rule 81 (e) of the Hawaii Rules of Civil Procedure requires that the Hawaii Rules of Civil Procedure "shall apply to any proceedings in a circuit court pursuant to appeal to the circuit court from a governmental official or body (other than a court) , except as otherwise provided in Rule 72. " -3- NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER explained that its reason for strictly enforcing the separate document rule was that [i] f we do not require a judgment that resolves on its face all of the issues in the case, the burden of searching the often voluminous circuit court record to verify assertions of jurisdiction is cast upon this court. Neither the parties nor counsel have a right to cast upon this court the burden of searching a voluminous record for evidence of finality, . . . and we should not make such searches necessary by allowing the parties the option of waiving the requirements of HRCP [Rule] 58. Jenkins, 76 Hawaii at 119, 869 P. 2d at 1338 (citation omitted) . Consequently, "an appeal from any judgment will be dismissed as premature if the judgment does not, on its face, either resolve all claims against all parties or contain the finding necessary for certification under HRCP [Rule] 54 (b) . " Id. In the instant case, the circuit court has attempted to resolve all claims_ in this appellate case by way of two judgments : (1) a September 22, 2014 HRCP Rule 54 (b) -certified judgment in favor of Intervernors/Appellees/ Appellees Sidney Fuke (Appellee Fuke) and Terence T. Yoshioka (Appellee Yoshioka) and against the Appellants; and (2) the July 14, 2015 judgment in favor of Appellee Windward Planning Commission. and Appellee Gomes and against the Appellants . A final judgment in this case must adjudicate the Appellants ' respective appeals in Civil N0. 14-1-0223 as to all of the remaining parties whom the Appellants specifically named as parties in the two notices of appeal that they filed in Civil N0. 14-1-0223, namely, Appellee Windward Planning Commission, Respondent/Appellee/Appellee Department of Planning, County of Hawaii (Appellee County Department of Planning) , Appellee Gomes, -4- NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER and Intervenor/Appellee/Appellee Sandra Song (Appellee Song) . While the July 14, 2015 judgment adjudicates the Appellants ' respective appeals as to the Appellee Windward Planning Commission and Appellee Gomes, the July 14, 2015 judgment does not adjudicate the Appellants ' appeals as to the Appellee County Planning Department and Appellee Song. Although the July 14, 2015 judgment does not adjudicate the Appellants ' appeals as to all of the remaining parties, the July 14 , 2015 judgment does not contain the finding necessary under HRCP Rule 54 (b) for the certification of a judgment as to one or more but fewer than all claims or parties. Although the July 14, 2015 judgment concludes with a statement that " [t] here are not remaining claims against any parties in this action [, ] " the Supreme Court of Hawaii has explained that fal statement that declares "there are no other outstanding claims" is not a iud-ument. If the circuit court intends that claims other than those listed in the iudament lanauaae should a dismissed, it must say so: for exam le, "Defendant Y's counterclaim is dismissed, " or "Judgment upor. Defendant Y's counterclaim is entered in favor of Plaintiff/Counter-Defendant Z, " or "all other claims, counterclaims and cross-claims are dismissed. " Jenkins, 76 Hawaii at 119-20 n. 4 , 869 P.2d at 1338-39 n. 4 (emphases added) . Because the July 14 , 2015 judgment does not resolve this administrative appeal as to all the remaining named parties in Civil No. 14 -1-0223, the July 14 , 2015 judgment does not satisfy the requirements for an appealable final judgment under HRS § 641-1 (a) , HRCP Rule 58, HRCP Rule 72 (k) , and the holding in Jenkins . Absent an appealable final judgment, this appeal is premature and we lack jurisdiction. -5- NOT FOR PUBLICATION IN WEST'S HAWAY`Y REPORTS AND PACIFIC REPORTER Accordingly, IT IS HEREBY ORDERED AND DECREED that appellate court case number CAAP-15-0000556 is dismissed for lack of appellate jurisdiction. DATED: Honolulu, Hawaii, April 19, 2016. Chief Judge Associate Judge A Isociate edge -6- ORIGINAL TED H. S. HONG 3569 1!s!.;(] 'vIAnJIi� Attorney at Law P. O. Box 4217 2016 SEP 12 PM 1: 34 Hilo, HI 96720 Telephone No. 808.933.1919 Facsimile No. 808.935.8281 ted@tedhonglaw.com Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) APPELLANT COMMUNITY BASED } EDUCATION SUPPORT SERVICES' vs. ) NOTICE OF SUBMISSION OF FIRST AMENDED FINAL JUDGMENT, WINDWARD PLANNING COMMISSION,) EXHIBIT "l;'' CERTIFICATE OF COUNTY OF HAWAII; DEPARTMENT ) SERVICE OF PLANNING, COUNTY OF HAWAII, ) Appellees, ) and ) JEFFREY GOMES, Intervenor; ) JUDGE: Hon. MELVIN H. FUJINO Intervenor-Appellee. ) APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' NOTICE OF SUBMISSION OF FIRST AMENDED FINAL JUDGMENT Comes Now, Applicant-Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES, (hereinafter referred to as "Appellant CBESS"), by and through its undersigned counsel and pursuant to Rule 23 of the Rules of Circuit Court, hereby submits its 0 First Amended Final Judgment attached hereto as Exhibit "l." DATED: Hilo, Hawaii, September 12, 2016 Respectfully submitted, ED H. S. HONG Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 TED H. S. HONG 3569 Attorney at Law P. O. Box 4217 Hilo, HI 96720 Telephone No. 808.933.1919 Facsimile No. 808.935.8281 ted@tedhonglaw.com Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES ) (Agency Appeal) } Applicant-Appellant, } FIRST AMENDED FINAL JUDGMENT } vs. } } WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT } OF PLANNING, COUNTY OF HAWAII, } Appellees. ) and ) JEFFREY COMES, Intervenor; ) JUDGE: Hon. MELVIN H. FUJINO Intervenor-Appellee. ) FIRST AMENDED FINAL JUDGMENT On or about May 19, 20I4, the Appellee Windward Planning Commission submitted its Findings of Fact, Conclusions of Land and Decision and Order. CROA: 4300-4315. On or about June 9, 2014, Applicant-Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES, (hereinafter referred to as "Appellant CBESS"), timely filed its Notice Exhibit y a of Appeal to the Third Circuit Court, State of Hawaii, pursuant to Rule 72 of the Hawaii Rules of Civil Procedure (hereinafter referred to as "HRCivP"), and Sections 91-14 and 91-15, Hawaii Revised Statutes, (hereinafter referred to as "LIRS"). In its Notice of Appeal, Appellant CBESS named as appellees the following interested individuals: SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA, Intervenor's Respresentative; who each actively participated in the administrative agency hearings, pursuant to Rule 19(a) and (b), HRCivP, and were indispensable parties to the administrative agency appeal. On or about June 9, 2014, Applicant-Appellant, CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL (hereinafter referred to as "Appellant Connections") filed its Notice of Appeal to the Circuit Court and Joinder to Applicant-Appellant, Community Based Education Support Services' Notice of Appeal to the Circuit Court, filed on June 9, 2014. On or about September 22, 2014, the Third Circuit Court dismissed SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA, Intervenor's Respresentative as appel lees in the present case, including any and all claims against them and ordered that the caption be amended to have their names removed. There are no remaining claims against SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA, Intervenor"s Respresentative. Jenkins v. Cades Schutte Fleming& Wright, 76 Hawaii 115, 869 P.2d 1334 (1994). On or about September 22, 2014, pursuant to Rule 54(b), HRCivP, the Third Circuit Court entered judgment in favor of SIDNEY FUKE, Intervenor's Representative; and 2 TERRANCE YOSHIOKA, Intervenor's Respresentative against Appellant CBESS and Appellant Connections. There are no remaining claims against SIDNEY FUKE. Intervenor's Representative, and TERRANCE YOSHIOKA, Intervenor's Representative. Jenkins v. Cades Schutte Fleming& Wright, 76 Hawaii 115, 869 P.2d 1334 (1994). On or about September 22, 2014, the Third Circuit Court dismissed SANDRA SONG, in her capacity as Hearing Officer, as an appellee to the present case. There are no remaining claims against SANDRA SONG, in her capacity as Hearing Officer. Jenkins v. Codes Schutte Fleming & Wright, 76 Hawaii 115, 869 P.2d 1334 (1994). The Appellee, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, failed to submit a judgment for the Third Circuit Court's approval and filing concerning the dismissal of SANDRA SONG, in her capacity as Hearing Officer. On or about September 22, 2014, the Third Circuit Court dismissed Appellee, DEPARTMENT OF PLANNING, COUNTY OF HAWAII, as an appeIlee in the present case. The Appellee, DEPARTMENT OF PLANNING, COUNTY OF HAWAII, failed to submit a judgment for the Third Circuit Court's approval and filing concerning the dismissal of Appellee.. DEPARTMENT OF PLANNING, COUNTY OF HAWAII from the present case. On or about July 14, 2015, the Third Circuit Court issued its Decision and Order Affirming Windward Planning Commission, County of Hawaii's Findings of Fact, Conclusions of Law and Decision and Order Denying Special Permit Application No. SPP 12-138 (ARA: Part 1, 1463-1467). IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, pursuant to Rule 72{k) of the Hawaii Rules of Civil Procedure: 3 � 1 Final Judgment is hereby entered in favor of Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, in the above entitled administrative agency appeal. That there being no further claims by or on behalf of the parties in this administrative agency appeal and there being no just reasons for delay, this shall be a Final Judgment as to Applicant-Appellants, CBESS and Connections and Appellee, Windward Planning Commission, County of Hawaii, pursuant to Rule 72(k), HRCivP, and Sec. 91-15, HRS. There are no other remaining claims or parties in this matter and all other remaining claims are hereby dismissed with prejudice. Jenkins v. C'ades Schutte Fleming & Wright, 76 Hawaii 115, 869 P.2d 1334 (1994). DATED: Kealakekua, Hawaii, JU DGE OF THE ABOVE-ENTITLED COURT Community Based Education Support Services and Connections New Century Public Charter School v. Windward Planning Commission, County of Hawaii, and Jeffrey Gomes, Intervenor- Appellee, CIVIL NO. 14-1-0223 MHF (Agency Appeal), FIRST AMENDED FINAL JUDGMENT. 4 w IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES ) (Agency Appeal) } Applicant-Appellant, } CERTIFICATE OF SERVICE } vs. } } WINDWARD PLANNING COMMISSION.) COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING, COUNTY OF HAWAII, } Appellees, ) and } JEFFREY K. GOMES, ) } Intervenor-Appellee. ) JUDGE: Hon. MELVIN H. FUJINO CERTIFICATE OF SERVICE I hereby certifv that the foregoing document was duly served via U.S. Mail, postage prepaid, on the date indicated below, to the following: CARTER K. SIU. ESQ. Deputy Attorney General State of Hawai'i 235 S. Beretania Street, Rm. 304 Honolulu, Hawaii 968I3 Attorney for Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL AMY G. SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee COUNTY OF HAWAI'I PLANNING DIRECTOR DANNY B. PATEL, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appeilee WINDWARD PLANNING COMMISSION. COUNTY OF HAWAII MICHAEL J. MATSUKAWA. ESQ. 75-575I Kuakini Hwy., Ste. 201 KaiIua-Kona, HI 96740 Attorney for Appellee JEFFREY K. GOMES DATED: Hilo. Hawaii, September 9, 2016. ' /4T ED ftS. O Attorney at Law Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 Gtii�ltll CO'4��.T Cr= ORIGINAL 14tF i I '.D int,Uj TED H. S. HONG 3569 '1A1E GF 11AW11I1 Attorney at Law P. O. Box 4217 2016 SEP 15 PH 1* 3 3 Hilo, HI 96720 Telephone No. 808.933.1919 Facsimile No. 808.93 5.8281 Eylt��N ted@tedhonglaw.com CLERK Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' vs. ) NOTICE OF SUBMISSION OF SECOND AMENDED FINAL WINDWARD PLANNING COMMISSION,) JUDGMENT; EXHIBIT "1;" COUNTY OF HAWAII; DEPARTMENT ) CERTIFICATE OF SERVICE OF PLANNING, COUNTY OF HAWAII, ) Appel lees, ) and ) JEFFREY GOMES, Intervenor; ) JUDGE: Hon. MELVIN H. FUJINO Intervenor-Appellee. } } APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' NOTICE OF SUBMISSION OF SECOND AMENDED FINAL JUDGMENT Comes Now, Applicant-Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES, (hereinafter referred to as "Appellant CBESS''), by and through its undersigned counsel and pursuant to Rule 23 of the Rules of Circuit Court, hereby submits its SECOND Amended final Judgment attached hereto as Exhibit "1." DATED: Hilo, Hawaii, September 15, 2016 Respectfully submitted, ED H. S. HO G Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 TED H. S. HONG 3569 Attorney at Law P. O. Box 4217 Hilo, HI 96720 Telephone No. 808.933.1919 Facsimile No. 808.935.8281 ted@tedhonglaw.com Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) SECOND AMENDED FINAL JUDGMENT vs. ) WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING, COUNTY OF HAWAII, ) Appellees, ) and ) JEFFREY GOMES, Intervenor; ) JUDGE: Hon. MELVIN H. FUJINO Intervenor-Appellee. ) SECOND AMENDED FINAL JUDGMENT On or about May 19, 2014, the Appellee Windward Planning Commission submitted its Findings of Fact, Conclusions of Land and Decision and Order. CROA: 4300-4315. On or about June 9, 2014, Applicant-Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES, (hereinafter referred to as "Appellant CBESS"), timely filed its Notice ExJoibi� of Appeal to the Third Circuit Court, State of Hawaii, pursuant to Rule 72 of the Hawaii Rules of Civil Procedure (hereinafter referred to as "HRCivP"), and Sections 91-14 and 91-15, Hawaii Revised Statutes, (hereinafter referred to as "HRS"). In its Notice of Appeal, Appellant CBESS named as appellees the following interested individuals: SANDRA SONG, in her capacity,as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA, Intervenor's Respresentative; who each actively participated in the administrative agency hearings, pursuant to Rule 19(a) and (b), HRCivP, and were indispensable parties to the administrative agency appeal. On or about June 9, 2014, Applicant-Appellant, CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL (hereinafter referred to as "Appellant Connections") filed its Notice of Appeal to the Circuit Court and Joinder to Applicant-Appel[ant, Community Based Education Support Services' Notice of Appeal to the Circuit Court, filed on June 9, 2014. On or about September 22, 2014, the Third Circuit Court dismissed SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA, Intervenor's Respresentative as appellees in the present case, including any and all claims against them and ordered that the caption be amended to have their names removed. There are no remaining claims against SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA, Intervenor's Respresentative. Jenkins v. Cades Schutte Fleming& Wright, 76 Hawaii 115, 869 P.2d 1334 (1994). On or about September 22, 2014, pursuant to Rule 54(b), HRCivP, the Third Circuit Court entered judgment in favor of SIDNEY FUKE, Intervenor's Representative; and 2 TERRANCE YOSHIOKA, Intervenor's Respresentative against Appellant CBESS and Appellant Connections. There are no remaining claims against SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA, Intervenor's Representative. Jenkins v. Cades Schutte Fleming& Wright, 76 Hawaii 115, 869 P.2d 1334 (1994). On or about September 22, 2014, the Third Circuit Court dismissed SANDRA SONG, in her capacity as Hearing Officer, as an appellee to the present case. There are no remaining claims against SANDRA SONG, in her capacity as Hearing Officer. Jenkins v. Cades Schutte Fleming& Wright, 76 Hawaii 115, 869 P.2d 1334 (1994). The Appellee. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, failed to submit a judgment for the Third Circuit Court's approval and filing concerning the dismissal of SANDRA SONG, in her capacity as Hearing Officer. On or about September 22, 2014, the Third Circuit Court dismissed Appellee, DEPARTMENT OF PLANNING, COUNTY OF HAWAII, as an appellee in the present case. The Appellee, DEPARTMENT OF PLANNING, COUNTY OF HAWAII, failed to submit a judgment for the Third Circuit Court's approval and filing concerning the dismissal of Appellee, DEPARTMENT OF PLANNING, COUNTY OF HAWAII from the present case. On or about July 14, 2015, the Third Circuit Court issued its Decision and Order Affirming Windward Planning Commission, County of Hawaii's Findings of Fact, Conclusions of Law and Decision and Order Denying Special Permit Application No. SPP 12-138 (ARA: Part 1, 1463-1467). IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, pursuant to Rule 72(k) of the Hawai'i Rules of Civil Procedure: 3 Final Judgment is hereby entered in favor of Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, in the above entitled administrative agency appeal. That there being no further claims by or on behalf of the parties in this administrative agency appeal and there being no just reasons for delay, this shall be a Final Judgment as to Applicant-Appellants, CBESS and Connections and Appellee, Windward Planning Commission, County of Hawaii, pursuant to Rule 72(k), HRCivP, and Sec. 91-15, HRS. There are no other remaining claims or parties in this matter and all other remaining claims are hereby dismissed with prejudice. ,Jenkins v. Cades Schutte Fleming& Wright, 76 Hawaii 115, 869 P.2d 1334 (1994). DATED: Kealakekua, Hawaii, JUDGE OF THE ABOVE-ENTITLED COURT Community Based Education Support Services and Connections New Century Public Charter School v. Windward Planning Commission, County of Hawaii, and Jeffrey Gomes, Intervenor- Appellee, CIVIL NO. 14-1-0223 MHF (Agency Appeal), SECOND AMENDED FINAL JUDGMENT. 4 r IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES } (Agency Appeal) ) Applicant-Appellant, ) CERTIFICATE OF SERVICE VS. } WINDWARD PLANNING COMMISSION,} COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING, COUNTY OF HAWAII, ) Appellees, ) and ) ) JEFFREY K. GOMES, } } Intervenor-Appellee. ) JUDGE: Hon, MELVIN H. FUJINO CERTIFICATE OF SERVICE I hereby certify that the foregoing document was duly served via U.S. Mail, postage prepaid, on the date indicated below, to the following: CARTER K. SIU, ESQ. Deputy Attorney General State of Hawai'i 235 S. Beretania Street, Rm. 304 Honolulu. Hawaii 96813 Attorney for Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL AMY G. SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee COUNTY OF HAWAII PLANNING DIRECTOR DANNY B. PATEL, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII MICHAEL J. MATSUKAWA, ESQ. 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, HI 96740 Attorney for Appellee JEFFREY K. GOMES DATED: Hilo, Hawaii, September 15, 2016 )v D H. S. HONG Attorney at Law Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 13 FILED ORIGINAL MOLLY A. STEBBINS 8639 Corporation Counsel 2816 SEP 26 AM 9149 AMY G. SELF 7628 ANGELIC M. HO 10550 Deputies Corporation Counsel ';1n 1 hrU�L _� Office of the Corporation Counsel Tll�rtl•! �,l`��,131 t�011" County of IIawai`i IIilo Lagoon Centre 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: 961-8251 Facsimile: 961-8622 E-mail: Amy.Self(&hawaiicol�nty. ov Malia.hoAhawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`1; and DEPARTMENT OF PLANNING, COUNTY OF HAWAII (dismissed) IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STA`I'I~ OF HAWAII COMMUNITY BASED EDUCATION Civil No. I4-1-0223 SUPPORT SERVICES, Applicant-Appellant, APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`I'S vs. WITHDRAWAL AND SUBSTITUTION OF COUNSEL; ORDER WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. Q / APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'1'S WITHDRAWAL AND SUBSTITUTION OF COUNSEL COMES NOW, Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII and states that Danny B, Patel, formerly a Deputy Corporation Counsel with the County of Hawaii Office of the Corporation Counsel, is no longer employed with the Office of Corporation Counsel and therefore, no longer represents the Windward Planning Commission, County of Hawaii; accordingly, Danny B. Patel hereby withdraws as counsel for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAW'AI'I, pursuant to Rule 10 of the Rule of the Circuit Courts of the State of Hawaii. The County of Hawaii Office of the Corporation Counsel and its attorneys remain counsel of record for the Windward Planning Commission, County of Hawaii. Deputy Corporation Counsel, Angelic M. Ho, is substituting as counsel for Appellee- Appellee Windward Planning Commission, County of Hawaii. Substituting counsel, Angelic M. IIo's information as follow: ANGELIC M. HO Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street. Suite 325 Hilo, Hawaii 96720 Malia.ho�u hawaiicounty. Toy (808) 961-8251 DATED: Hilo, Hawaii, DANK EL Withdrawin Attor for Appellee WINDWAR ANNING COMMISSION, COUNTY OF I-IAWAPI 2 SAF •� DATED: Hilo, Hawaii, AN ,ELIC M. HO � Deputy Corporation Counsel Appearing Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII APPROVED AND SO ORDERED: Judge Lof the Bove-Entitled Court Community Based Education Support Services v. Windward Planning Commission, County of Hawaii, et al.; Civil No. 14-1-0223: Appellee Windward Planning Commission, C'ounly cif Hawai'i's Withdrawal and Substitution of Counsel ; Order 3 ufflG"__ MAC- TILED DOUGLAS S. CHIN 6465 Attorney General State of Hawaii Wg SEP 2 PM 1; 4 HOLLY T. SHIKADA 4017 R •-01 R94,1- 4E GREGG M. USHIRODA 5868 TNI1 "'1 1T Deputy Attorney General IT 235 South Beretania Street, Room304 Honolulu, Hawaii 96813 Telephone No. 808.586.1255 �ICe T 7.M.1151111'OCI�{�(.l.'h�9A4'clll.`�O�' Attorneys for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 SUPPORT SERVICES ) (AGENCY APPEAL) Applicant-Appellant ) } NOTICE OF SUBSTITUTION OF vs. ) COUNSEL FOR APPLICANT-APPELLANT CONNECTIONS NEW CENTURY PUBLIC WINDWARD PLANNING COMMISSION, ) CHARTER SCHOOL; CERTIFICATE OF COUNTY OF HAWAII; DEPARTMENT OF ) SERVICE PLANNING, COUNTY OF HAWAII, } } Appellees, } and ) JEFFREY GOMES, Intervenor; ) Intervenor-Appellee } } } ) } 6637491 DOC d NOTICE OF SUBSTITUTION OF COUNSEL FOR APPLICANT- APPELLE CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL Pursuant to Rule 10.1 of the Hawaii Rules of the Circuit Court and Rule 1.16 of the Hawaii Rules of Professional Conduct, Carter K. Siu hereby withdraws as counsel for Applicant- Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL. Mr. Siu is no longer employed by the Department of the Attorney General, State of Hawaii. Gregg M. Ushiroda, Deputy Attorney General, hereby enters his appearance as counsel of record for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL. DATED: Honolulu, Hawaii, September 23, 2016. 1 g /// GREGG M. USHIRODA Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 6637491 DOC IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-I-0223 SUPPORT SERVICES, ) (AGENCY APPEAL) Applicant-Appellant } CERTIFICATE OF SERVICE vs. ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; DEPARTMENT OF ) PLANNING, COUNTY OF HAWAII, } Appellees, ) And ) JEFFREY GOMES, Intervenor, ) Intervenor-Appellee } ) CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 23, 2016, the undersigned caused a true and correct copy of the foregoing document to be served on the following persons by U.S. Mail, postage prepaid: Ted H.S. Hong, Esq. Attorney at Law P. O. Box 4217 Hilo, Hawaii 96720 Telephone No. 808933.1919 Attorney for AppIicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 663749 1.DOC Amy G. Self, Esq. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee COUNTY OF HAWA1`I PLANNING DIRECTOR Angelic M. Ho, Esq. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII Michael .I, Matsukawa, Esq. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY K. GOMES DATED: Honolulu, Hawaii, September 23, 2016, GREGG M. USHIRODA Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 6637491 DOC ORIGINAL L-' MOLLY A. STEBBINS 8639 ins f vl' �Fl �rt Corporation Counsel AMY G. SELF 7628 2016 SEP 29 PM 1: 21 ANGELIC M. HO 10550 Deputies Corporation Counsel Office of the Corporation Counsel ��; Countv of Hawaii CLERK Hilo Lagoon Centre 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: 961-8251 Facsimile: 961-8622 F-mail: Amv.Self( hawaiicoiunty,�,,qv Mal ia.hori4hawaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; and DEPARTMENT OF PLANNING, COUNTY OF HAWAII (dismissed) IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAI`1 COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES, Applicant-Appellant, CERTIFICATE OF SERVICE vs. [RE: APPELLEE WINDWARD PLANNING; COMMISSION, COUNTY OF HAWAII-S WINDWARD PLANNING COMMISSION, WITHDRAWAL AND SUBSTITUTION OF COUNTY OF HAWAII; DEPARTMENT OF COUNSEL; ORDER, FILED SEPTEMBER PLANNING, COUNTY OF HAWAII, 26, 2016] Appellees, and SANDRA SONG, in her capacity as Hearing Officer, JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; TERENCE YOSHIOKA, Intervenor's Representative, Intervenor-Appellees. CERTIFICATE OF SERVICE The undersigned hereby certifies that a certified true and correct file-stamped copy of Appellee Windward Planning Commission, County of Hawai'i's Withdrawal and Su6stitrrtion of Counsel; Order,filed September 26, 2016 was served on the parties below at their respective last known address(es) by depositing the same in the United States mail, postage prepaid, on September 29, 20I6 TED H.S. HONG, ESQ. GREGG M. USHIRODA, FSQ. P.O. Box 4217 Deputy Attorney General Hilo, Hawaii 96720 State of Hawaii Attorney for Applicant-Appellant 235 South Beretania Street, Room 304 COMMUNITY BASED EDUCATION Honolulu, Hawaii 96813 SUPPORT SERVICES Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL MICHAEL J. MATSUKAWA, ESQ. ALAN M. OKAMOTO, ESQ . Territorial Centre, Suite 201 Nakamoto. Okamoto & Yamamoto 75-5751 Kuakini Highway 187 Kapi`olani Street Kailua-Kona, Hawaii 96740 Hilo, Hawaii 96720 Attorney for Intervenor-Appellee Attorney for Intervenors-Appellees .JEFFREY GOMES SIDNEY FUKE AND TERENCE YOSHIOKA DATED: Hilo, Hawaii, September 29, 2016 Respectfully submitted, /' � By X A GELIC M. HO Deputy Corporation Counsel County of Hawaii Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII 2 ORIGINAL iIL.. D CIRCUIT OF TFE THlrt`D TED H. S. HONG 3569 STAlr-;; Or 1i fill Attorney at Law P. O. Box 4217 ���' —� P ' �� Hilo, HI 96720 Telephone No. 808-93 3.1919 Facsimile No. 808.935.8281 L. ted@tedhonglaw.com Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) APPELLANT COMMUNITY BASED } EDUCATION SUPPORT SERVICES' vs. } THIRD NOTICE OF SUBMISSION OF FIRST AMENDED FINAL WINDWARD PLANNING COMMISSION,) JUDGMENT; EXHIBIT "1;" COUNTY OF HAWAII; DEPARTMENT ) CERTIFICATE OF SERVICE OF PLANNING, COUNTY OF HAWAII, } } Appellees, } and ) JEFFREY GOMES, Intervenor; ) JUDGE: Hon. MELVIN H. FUHNO Intervenor-Appellee. } APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES' THIRD NOTICE OF SUBMISSION OF FIRST AMENDED FINAL JUDGMENT Comes Now, Applicant-Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES, (hereinafter referred to as "Appellant CBESS"), by and through its F undersigned counsel and pursuant to Rule 23 of the Rules of Circuit Court, hereby submits its THIRD Notice of Submission of its First Amended Final Judgment attached hereto as Exhibit «1 „ DATED: Hilo, Hawaii, October 7, 2016. Respectfully submitted, �W/J_j) �Z� TED H. S. HONG Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 a e ' TED H. S. HONG 3569 Attorney at Law P. O. Box 4217 Hilo, HI 96720 Telephone No. 808.933.1919 Facsimile No. 808.935.8281 ted@tedhonglaw.com Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) FIRST AMENDED FINAL JUDGMENT vs. ) ) WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING, COUNTY OF HAWAII, ) } Appellees, ) and ) JEFFREY GOMES, Intervenor; } JUDGE: Hon. MELVIN H. FUJINO Intervenor-Appellee. ) FIRST AMENDED FINAL JUDGMENT On or about May 19, 2014,the Appellee Windward Planning Commission submitted its Findings of Fact, Conclusions of Land and Decision and Order. CROA: 4300-4315. On or about June 9, 2014, Applicant-Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES, (hereinafter referred to as "Appellant CBESS"), timely filed its Notice r I a Ex* U of Appeal to the Third Circuit Court, State of Hawaii, pursuant to Rule 72 of the Hawaii Rules of Civil Procedure (hereinafter referred to as "HRCivP"), and Sections 91-14 and 91-15, Hawaii Revised Statutes, (hereinafter referred to as "HRS"). In its Notice of Appeal, Appellant CBESS named as appellees the following interested individuals: SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA, Intervenor's Respresentative; who each actively participated in the administrative agency hearings, pursuant to Rule 19(a) and (b), HRCivP, and were indispensable parties to the administrative agency appeal. On or about June 9, 2014, Applicant-Appellant, CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL (hereinafter referred to as "Appellant Connections") filed its Notice of Appeal to the Circuit Court and Joinder to Applicant-Appellant, Community Based Education Support Services' Notice of Appeal to the Circuit Court, filed on June 9, 2014. On or about September 22, 2014, the Third Circuit Court dismissed SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA, Intervenor's Respresentative as appellees in the present case, including any and all claims against them and ordered that the caption be amended to have their names removed. There are no remaining claims against SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA, Intervenor's Respresentative. Jenkins v. Cades Schutte Fleming& Wright, 76 Hawaii 115, 869 P.2d 1334 (1994). On or about September 22, 2014, pursuant to Rale 54(b), HRCivP, the Third Circuit Court entered judgment in favor of SIDNEY FUKE, Intervenor's Representative; and 2 ry q 4 TERRANCE YOSHIOKA, Intervenor's Respresentative against Appellant CBESS and Appellant Connections. There are no remaining claims against SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA, Intervenor's Representative. Jenkins v. Cades Schutte Fleming& Wright, 76 Hawaii 115, 869 P.2d 1334 (1994). On or about September 22, 2014, the Third Circuit Court dismissed SANDRA SONG, in her capacity as Hearing Officer, as an appellee to the present case. There are no remaining claims against SANDRA SONG, in her capacity as Hearing Officer. Jenkins v. Cades Schutte Fleming& Wright, 76 Hawaii 115, 869 P.2d 1334 (1994). The Appellee, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, failed to submit a judgment for the Third Circuit Court's approval and filing concerning the dismissal of SANDRA SONG, in her capacity as Hearing Officer. On or about September 22, 2014, the Third Circuit Court dismissed Appellee, DEPARTMENT OF PLANNING, COUNTY OF HAWAII, as an appellee in the present case. The Appellee, DEPARTMENT OF PLANNING, COUNTY OF HAWAII, failed to submit a judgment for the Third Circuit Court's approval and filing concerning the dismissal of Appellee, DEPARTMENT OF PLANNING, COUNTY OF HAWAII from the present case. On or about July 14, 2015, the Third Circuit Court issued its Decision and Order Affirming Windward Planning Commission, County of Hawaii's Findings of Fact, Conclusions of Law and Decision and Order Denying Special Permit Application No. SPP 12-138 (ARA: Part 1, 1463-1467). 1T IS HEREBY ORDERED, ADJUDGED, AND DECREED, pursuant to Rule 72(k) of the Hawai'i Rules of Civil Procedure: 3 Final Judgment is hereby entered in favor of Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, in the above entitled administrative agency appeal. That there being no further claims by or on behalf of the parties in this administrative agency appeal and there being no just reasons for delay, this shall be a Final Judgment as to Applicant-Appellants, CBESS and Connections and Appellee, Windward Planning Commission, County of Hawaii, pursuant to Rule 72(k), HRCivP, and Sec. 91-15, HRS. There are no other remaining claims or parties in this matter and all other remaining claims are hereby dismissed with prejudice. Jenkins v. Cades Schutte Fleming& Wright, 76 Hawaii 115, 869 P.2d 1334 (1994). DATED: Kealakekua, Hawaii, JUDGE OF THE ABOVE-ENTITLED COURT Community Based Education Support Services and Connections New Century Public Charter School v. Windward Planning Commission, County of Hawaii, and Jeffrey Gomes, Intervenor- Appellee, CIVIL NO. 14-1-0223 MHF (Agency Appeal), FIRST AMENDED FINAL JUDGMENT. 4 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) CERTIFICATE OF SERVICE vs. ) WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT ) OF PLANNING. COUNTY OF HAWAII, ) Appellees, ) and ) JEFFREY K. GOMES, ) Intervenor-Appellee. ) JUDGE: Hon. MELVIN H. FUJINO CERTIFICATE OF SERVICE I hereby certify that the foregoing document was duly served via U.S. Mail, postage prepaid, on the date indicated below, to the following: Gregg M. Ushiroda, Esq. Deputy Attorney General State of Hawai'i 235 S. Beretania Street, Rm. 304 Honolulu, Hawaii 96813 Attorney for Appellant CONNECTIONS NEW CENTURY CHARTER SCHOOL AMY G. SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellee COUNTY OF HAWAI'I PLANNING DIRECTOR MOLLY A. STEBBINS, ESQ. Corporation Counsel 101 Aupuni Street. Suite 325 Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII MICHAEL J. MATSUKAWA, ESQ. 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, HI 96740 Attorney for Appellee .JEFFREY K. GOMES DATED: Hilo, Hawaii, October 7, 2016. D H. S. HONG Attorney at Law Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 ORIGINAL y FILED TED H. S. HONG 369 Attorney at Law 2016 OCT 6 aM 8. 32 P. O. Box 4217 Hilo, Hi 96720 111NR TTA C ONG, LE K Telephone No. 808.933.1919 THIRD CIRCUIT COURT Facsimile No. 808.935.8281 STAT S HANAll ted.c tedhonglaw.com Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO, I4-I-0223 MHF SUPPORT SERVICES ) (Agcncy Appeal) Applicant-Appellant. } FIRST AMENDED FINAL JUDGMENT } vs. } WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMENT } OF PLANNING, COUNTY OF HAWAII. } } Appellees, ) and } } JEFFREY DOMES, Intervenor; ) JUDGE: Hon. MELVIN H. FUJINO Intervenor-Appellee. ) } FIRST AMENDED FINAL JUDGMENT On or about May 19, 2014, the Appellee Windward Planning Commission submitted its Findings of Fact, Conclusions of Land and Decision and Order. CROA: 4300-4315. On or about June 9, 2014, Applicant-Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES, (hereinafter referred to as "Appellant CBESS"), timely filed its Notice .a of Appeal to the Third Circuit Court_ State of Hawaii, pursuant to Rule 72 of the Hawaii Rules of Civil Procedure (hereinafter referred to as "IIRCivP"), and Sections 91-14 and 91-15, Hawaii Revised Statutes, (hereinafter referred to as "HRS"). In its Notice of Appeal, Appellant CBESS named as appellees the following interested individuals: SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative: and TERRANCE YOSHIOKA, Intervenor's Respresentative; who each actively participated in the administrative agency hearings, pursuant to Rule 19(a) and (b), I IRCivP, and were indispensable parties to the administrative agency appeal. On or about .lune 9, 2014, Applicant-Appellant, CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL (hereinafter referred to as "Appellant Connections") filed its Notice of Appeal to the Circuit Court and Joinder to Applicant-Appellant, Community Based Education Support Services' Notice of Appeal to the Circuit Court, filed on .lune 9, 2014. On or about September 22, 2014, the Third Circuit Court dismissed SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA. Intervenor's Resprescrntative as appellees in the present case. including any and all claims against them and ordered that the caption be amended to have their names removed. There are no remaining claims against SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSIIIOKA, Intervenor's Respresentative. Jenkins r. Cudes &hutte Fleming& Wright, 76 Hawaii 115, 869 P.2d 1334 (1994). On or about September 22, 2014, pursuant to Rule 54(b), HRCivP, the Third Circuit Court entered judgment in favor of SIDNEY FUKE, Intervenor's Representative; and 2 TERRANCE YOSHIOKA, Intervenor's Respresentative against Appellant CBESS and Appellant Connections. There are no remaining claims against SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA. Intervenor's Representative. Jenkins v. C"ades Schulte Fleming& fVright, 76 Hawaii 115, 869 P.2d 1334 (1994). On or about September 22. 2014, the Third Circuit Court dismissed SANDRA SONG, in her capacity as I leaning Officer. as an appellee to the present case. There are no remaining claims against SANDRA SONG, in her capacity as Hearing Officer. Jenkins v. C'ades Schulte Fleming & 4'right, 76 HaNvai`i 115. 869 P.2d 1334 (1994). The Appellee. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, failed to submit a Judgment for the Third Circuit Court's approval and filing concerning the dismissal of SANDRA SONG, in her capacity as Hearing Officcr. On or about September 22. 2014, the Third Circuit Court dismissed Appellee, DEPARTMENT OF PLANNING. COUNTY OF HAWAII, as an appellee in the present case. The Appellee, DEPARTMENT OF PLANNING, COUNTY OF HAWAII, failed to submit a judgment l`or the Third Circuit Court's approval and filing concerning the dismissal of Appellee. DEPARTMENT OF PLANNING. COUNTY OF HAWAII from the present case. On or about July 14, 2015, the Third Circuit Court issued its Decision and Order Affirming Windward Planning Commission, County of Ilawaii's Findings of Fact. Conclusions of Law and Decision and Order Denying Special Permit Application No. SPP 12-1 18 (ARA: Part 1, 1463-1467). 1T IS IIEREBY ORDERED, ADJUDGED, AND DECREED, pursuant to Rule 72(k) of the Hawai'i Rules of Civil Procedure: Final Judgment is hereby entered in favor of Appellee VX'INDWARD PLANNING COMMISSION. COUNTY OF HAWAII, in the above entitled administrative agency appeal. That there being no further claims by or on behalf of the parties in this administrative agency appeal and there being no just reasons for delay, this shall be a Final Judgment as to Applicant-Appellants, CBESS and Connections and Appellee, Windward Planning Commission, County of Hawaii, pursuant to Rule 72(k). HRCivP, and Sec. 91-15, HRS. There are no other remaining claims or parties in this matter and all other remaining claims are hereby dismissed with prejudice. Jenkins 4,. Circles ,Schutte Fleming & Wright, 76 Hawaii 115, 869 P.2d 1334 (1994). DATED: Kealakekua, Hawaii, 19 2016 JUDGE OF THE ABOVE-ENTITLED COURT Community Based Education Support Services and Connections New Century Public Charter School v. Windward Planning Commission, County of Hawaii, and Jeffrey Gomes, Intervenor- Appellee, CIVIL NO. 14-1-0223 MHF (Agency Appeal), FIRST AMENDED FINAL .JUDGMENT. 4 t�a FILED TED H.S. HONG, #3569 Attorney At Law 2016 NO ^fi RN 3: 25 101 Aupuni Street, PH 1002A P.O. Box 4217 Hilo, Hawaii 96720 -M I I,OKA.CLr: K Telephone: 808-933-1919 Tli!"10 CmCUIT COURT Facsimile: 808-935-8281 ST'jr OF HAWAII Ted@Tedhonglaw.com Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES (CBESS), (Agency Appeal) Applicant-Appellant, NOTICE OF ENTRY OF JUDGMENT vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and JEFFREY GOMES, Intervenor; Judge: Honorable Melvin H. Fujino Intervenor-Appellee, NOTICE OF ENTRY OF JUDGMENT TO: AMY G. SELF, ESQ. By Hand Delivery Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, HI 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII MICHAEL J. MATSUKAWA, ESQ. By US First Class Mail 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, HI 96740 Attorney for Appellee JEFFREY GOMES GREGG M. USHIRODA, ESQ. By US First Class Mail Deputy Attorney General 235 South Beretania Street, Room 304 Honolulu, HI 96813 Attorney for Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL Pursuant to the provisions of the Hawaii Rules of Civil Procedure, Rule 77(d), please take notice that the First Amended Final Judgment filed with the Court on October 26, 2016, has been entered in this case by the Judge on October 19, 2016. KEALAKEKtNov 16 2016 DATED: o, Haww aii, BY ORDER OF THE COURT 1114,t, *IV&-- CL R OF THE ABOVE-ENTITLED COURT 2 TED H.S. HONG, #3569 Attorney At Law 101 Aupuni Street, PH 1002A Electronically Filed P.O. Box 4217 Intermediate Court of Appeals Hilo, Hawaii 96720 CAAP-16-0000813 Telephone: 808-933-1919 16-NOV-2016 Facsimile: 808-935-8281 11:14 AM Ted Tedhon law.com a x• Attorney for Appellant { COMMUNITY BASED EDUCATION SUPPORT SERVICES rn IN THE CIRCUIT COURT OF THE THIRD CIRCUIT �C-1 = O STATE OF HAWAII r COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, NOTICE OF APPEAL; EXHIBITS "A" - "B"; vs. CERTIFICATE OF SERVICE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and JEFFREY GOMES, Intervenor, Intervenor-Appellee. JUDGE: HON. MELVIN H. FUJINO NOTICE OF APPEAL COMES NOW Applicant-Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES (hereinafter referred to as "Appellant"),by and through its undersigned counsel, and hereby notices this appeal,pursuant to Sections 91-14, 91-15, 602-57(1), 6414(a), and 641-2, of the Hawaii Revised Statutes and Rules 3 and 4 (a),Hawaii Rules of Appellate Procedure from: �I ' 1 4 (1) Decision and Order Affirming Windward Planning Commission, County of Hawai'i's Findings of Fact, Conclusions of Law and Decision and Order Denying Special Permit Application No. SPP 12-138, entered on July 8, 2015, and filed on July 14, 2015, a copy of which is attached as Exhibit"A"; and (2) First Amended Final Judgment entered on October 19, 2016, and filed on October 26, 2016, a copy of which is attached as Exhibit `B." DATED: Hilo, Hawai'i, November 15, 2016. Respectfully submitted, /J/7'd fit( S; gong TED H. S. HONG, ESQ. Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 FILED Electronically Filed Intermediate Court of Appeals MOLLY A. STEBBINS 8639 cAAP-ls-av�,q$1@ 14 PM2. 34 Corporation Counsel 16-NOV-2016 11:14 AM DANNY B. PATEL 9578 HEHMETT' Ch",xi1 CLERK Deputy Corporation Counsel T K ,� C. �1 COURT :r County of Hawaii 101 Aupuni Street, Suite 325 Hilo,Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808)961-8622 E-mail: danny.patel&awaiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION E Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS ; (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, DECISION AND ORDER Applicants Appellants, AFFIRMING WINDWARD PLANNING COMMISSION, COi1NTY vs. OF HAWAI`I'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND WINDWARD PLANNING COMMISSION, DECISION AND ORDER DENYING COUNTY OF HAWAII, SPECIAL PERMIT APPLICATION NO. SPP 12-138 Appellee, and E JEFFREY GOMES, Intervenor, Hearing: Intervenor-Appellee. Date: May 29, 2015 Time. 9:00 a.m. Judge: The Honorable Melvin H.Fujino t hereby certify that ojF is a Full,true andcorrect copyofineon trralar,rite�n�p�somce EXHIBIT A Clerk, irdClrcuitCaun. at arreii f 4. DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMIVIISSION, COUNTY OF HAWAFFS FINDINGS OF FACT,CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO. SPP 12-138 Applicants-Appellants Community Based Education Support Services ("CBESS") and Connections New Century Public Charter School ("Connections") (collectively, "Appellants") appeal frorn the Windward Planning Commission, County of Hawai`i's ("Commission") decision denying Appellant's Special Permit Application No. SPP 12-138 entered May 1, 2014 ("Decision") and Findings of Fact, Conclusions of Law and Decision and Order entered May 19, 2014 ("D&O"), came on for oral argument on May 29, 2015 at 9:00 a.m. before the Honorable Melvin H. Fujino. Ted H.S. Hong, Esq., appeared on behalf of CBESS, Carter K. Siu, Esq., appeared on behalf of Connections, Danny B. Patel, Esq., appeared on behalf of Commission, and Micbael J. Matsukawa, Esq., appeared on behalf of the Intervenor-Appellee, Jeffrey Games ("Gomes"). The Court, having reviewed the briefs and appendices submitted by the parties, the record on appeal, and having considered the arguments of the parties' counsel, enters the following Decision and Order: DECISION 1. The Court finds the Applicants were allowed five public hearings and five days of contested case proceedings, within which to meet their burden to establish the Application met the criteria required for a Special Permit. The Commission denied the Application. 2. The Court's review of the Commission's Decision and D&O is qualified by the principle that an agency's decision carries a presumption of validity and appellants have the heavy burden of making a convincing showing that the decision is invalid because it is unjust and unreasonable in its consequences. 2 3. In reviewing an agency appeal,the Court applies the standards set forth in Hawaii Revised Statutes("HRS") § 91-14(g). 4. Conclusions of law are reviewable under HRS § 91-14(g), subsections (1), (2), and(4). The Commission's Decision and D&O do not violate relevant constitutional or statutory provisions, are not in excess of statutory authority or jurisdiction, and are not affected by other error of law. 5. Findings of fact are reviewable under HRS § 91-14(g), subsection(5). %view of the reliable, probative, and substantial evidence on the whole of the record, the Commission's Decision and D&O are not clearly erroneous. 6. Mixed questions of law and fact are reviewable under HRS § 91-14(g), subsection (6). The Commission's Decision and D&O are not arbitrary,or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. 7. The County Cbarter, County of Hawaii, explicitly authorizes the Commission to consider the County of Hawai`i General Plan when determining special permit applications. ORDER Pursuant to the above Decision, it is hereby ORDERED,ADJUDGED, and DECREED: 1. The Commission's Decision and D&O are AFFIrRIVIED and the appeals taken by CBESS and Connections are dismissed; 2. CBESS' request for attorney's fees and costs are DENIED; 3. CBESS' request that the Court admonish and recommend the County to remove the Commissioners who voted against the Appellant's application as unfit to serve on public commissions and boards because they violated their legal duty is DENIED; and 3 4. FINAL. JUDGMENT shall be entered in favor of the Appellee Commission and Intervenor-Appellee Gomes, and against Applicants-Appellants CBESS and Connections, on all claims in this action. DATED: Kealakekua, Hawaii, JUDGE OF THE ABOVE-ENTITLED COURT PPROVED AS TO FORM: XTED .HON SQ.for Applica pellantN ITY BASED CATION SUPPORT SERVICES CARTER K. SIU, ESQ. Attomey for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL Community Based Education Support Services, et al. v. Windward Planning Commission, County of Hawaii, et a/.,Civ.No. 14-1-0223 (Agency Appeal); DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`I'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT.'APPLICATION NO. SPP 12-138 4 MICHAEL J. MATSUKAWA,ESQ. Attorney for Intervenor-Appellee JEFFREY GOMES Community Based Education Support Services, et al. v. Windward Planning Commission, County of Hawaii, el al., Civ.No. 14-1-0223 (Agency Appeal), DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF NAWAI`I'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO. SPP 12-138 FILED TI:D 1-1. S. HONG 3569 Attorney at La%% Electronically4UTT 26 AN 8: 32 P. O. Box 4217 Intermediate Court of Appeals Hilo, HI 96720 CAAP-16-0011 TT Cli0NG'.CLERK Telephone No. 808.933.1919 16-NOV-2016 THIRD Clr?CUIT COURT Facsimile No. 808,935.8281 11:14 AM 5 TATE OF NAYJAIi ted,'u,tedhonglaw.com Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE-1 OF HAWAII COMMLNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant. } FIRST AMENDED FINAL JUDGMENT } VS. ) WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMEN'I" ) OF PLANNING.COUNTY OF HAWAII. } ) Appel lees, ) and } } JEFFREY GOMES, Intervenor; ) } JUDGE: Hon, MELVIN Ii. FUJINO Intervenor-Appellee. } FIRST AMENDED FINAL JUDGMENT On or about May 19, 2011, the Appellee Windward Planning Commission submitted its Findings of Fact, Conclusions of Land and Decision and Order. CROA: 4300-4315. On or about June 9, 2014, Applicant-Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES, (hereinafter referred to as "Appellant CBESS"), timeIyY filed its Notice Merebycer%that This is a full_IrueandCOrrWl cttpyofrn gittaicrinle,rimisothce. EXHIBIT B of Appeal to the Third Circuit Court. State of Hm,%aii. pursuant to Rule 72 of the I lam aii Rules of Ci,,it Procedure (hereinafter referred to as"I IRCivP"), and Sections 91.-14 and 91-15. Hawaii Revised Statutes. (hereinafter referred to as "HRS"). In its Notice of Appeal, Appellant CBESS named as appellees the following interested individuals: SANDRA SONG, in her capacity as Hearing Officer; JEFFREY GOMES, Intervenor; SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA, Intervenor's Respresentative; who each actively participated in the administrative agency hearings, pursuant to Rule 19(a)and (b), I IRC ivP, and were indispensable parties to the administrative agency appeal. On or about June 9. 2014, Applicant-Appellant.CONNECTIONS NEW CENTURY PUBLIC Cl IARTER SCHOOL. (hereinafter refcrred to as "Appellant Connections'") filed its Notice ol'Appeal to the Circuit Court and Joinder to Applicant-Appellant, Community Based Education Support Services' Notice of Appeal to the Circuit Court, filed on June 9, 2014. On or about September 27, 2014, the Third Circuit Court dismissed SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA, Intervenor's Respresentative as appellees in the present case, including an}, and all claims against them and ordered that the caption be amended to have their names removed. There are no remaining claims against SIDNEY L=UKE, Intervenor's Representative; and TERRANCE YOSHIOKA. Intervenor's Respresentative. .1enkins v, Cude.+Schrule Fleming car M-ighl, 76 Hawaii 115, 869 P.2d 1334 (1994). On or about September 22, 2014, pursuant to Rule 54(b), HRCivP, the Third Circuit Court entered judgment in favor of SIDNEY FUKE, Intervenor's Representative; and 2 e � TFRRANCI- YOSIIIOKA. InterlenoCs Respresentative against Appellant CBESS and Appellant Connections. There are no remaining claims against SIDNEY f=UKE. Intervenor's Representative; and TERRANCE YOSI IIOKA, Intervenor's Representative. ,lepikinv i-. Cader ,Schutte Fleming& Wright, 76 Ha%%,ai'i 115, 869 P.2d 13134 (1994). On or about September 22. 2014. the Third Circuit Court dismissed SANDRA SONG, in her capacity as I fearing Officer, as an appellee to the present case, There are no remaining claims against SANDRA SONG, in her capacity as Hearing Officer. ,kmkins r. Cadds Schlate Fleming& fl'righi, 76 Hawaii 115, 869 P.2d 1334 (1994). The Appellee, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, failed to submit a judgment for the Third Circuit Court's approval and filing conceming the dismissal of SANDRA SONG, in her capacity as Hearing Officer. On or about September 22. 2014, the Third Circuit Court dismissed Appellee. DEPART MLNT OF PLANNfNIG, COUNTY OF l IAWAII. as an appellee in the present case, The Appellee, DEPARTMENT 01= PLANNING, COUNTY OF I IAWAII, failed to submit a judgment for the Third Circuit Court's approval and filing concerning the dismissal of Appellee. DEPARTMENT OF PLANNING, COUN"T"Y OF HAWAII from the present case. On or about July 14, 2015, the Third Circuit Court issued its Decision and Order Affirming Windward Planning Commission. County of Hawaii's Findings of Fact, Conclusions of Law and Decision and Order Denying Special Permit Application No. SPP 12-138 (ARA: Part 1, 1463.1467). IT IS FIEREBY ORDERED,ADJUDGED, AND DECREED, pursuant to Rule 72(k)of the Hawai'i Rules of Civil Procedure: 3 x S v Final Judgment is hereby entered in favor of Appellee WINDWARD PLANN NO COMMISSION. COUNTY OF HAWAII. in the above entitled administrative agency appeal. That there being no further claims by or on behalf of the parties in this administrative agency appeal and there being no just reasons for delay, this shall be a Final Judgment as to Applicant-Appellants. CRESS and Connections and Appellee, Windward Planning Commission. County of Hawaii, pursuant to Rule 72(k). HRCivP. and Sec. 91-15, HRS. There are no other remaining claims or parties in this matter and all other remaining claims are hereby dismissed mdth prejudice. denkin5 i� Cades Schtfue Fleming& IVr•ight. 76 Hawaii 1 1 S, 869 P.2d 1334 (1494). DATED: Kealakekua, Hawaii, OCT 19 MELVIN H. FUJINO (SEAL) JUDG Ol• '1 HE ABOVE-ENTITLED COIJR'1 Community Eased Education Support Services and Connections riew Century Public Charter School v. Windward Planning Commission, County of Hawaii, and Jeffrey Games, Intervenor- Appellee,CIVIL NO. 14-1-0223 MHF (Agency Appeal), FIRST AMENDED FINAL JUDGMENT. 4 TED H.S. HONG, #3569 Attorney At Law 101 Aupuni Street, PH 1002A Electronically Filed P.O. Box 4217 Intermediate Court of Appeals Hilo, Hawaii 96720 CAAP-16-0000813 Telephone: 808-933-1919 16-NOV-2416 Facsimile: 808-935-8281 11:30 AM Ted Tedhon law.com Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, vs. CERTIFICATE OF SERVICE WINDWARD PLANNING COMMISSION, RE: NOTICE OF APPEAL; EXHIBITS "A" - COUNTY OF HAWAII; DEPARTMENT OF "B" PLANNING, COUNTY OF HAWAII, Appellees, and JEFFREY GOMES, Intervenor, Intervenor-Appellee. JUDGE: HON. MELVIN H. FUJINO CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the Notice of Appeal; Exhibits A and B, were duly served on the following parties in this action, by electronic means through the Judiciary Electronic Filing and Service System ("JEFS"): AMY G. SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Email: aself@co.hawaii.hi.us 1 Attorney for Appellee COUNTY OF HAWAII PLANNING DIRECTOR MOLLY A. STEBBINS, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Email: mlugo@co.hawaii.hi.us Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII MICHAEL J. MATSUKA W A, ESQ. 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, H196740 Email: kapulu@msn.com Attorney for Intervenor- Appellee JEFFREY K. GOMES GREGG M. USHIRODA, ESQ. Deputy Attorney General State of Hawai'i 235 S. Beretania Street, Rm. 304 Honolulu, Hawaii 96813 Email: Gregg,M.Ushiroda@hawaii.gov Attorney for Interested Party CONNECTIONS NEW CENTURY CHARTER SCHOOL DATED: Hilo, Hawaii, November 16, 2016. /s/7'd7-(. S'. lan9 TED H. S. HONG, ESQ. Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 ' I.A "NiGiNAL DOUGLAS S. CHIN 6465 Attorney General State of Hawai'i GREGG M. USHIRODA 5868 HOLLY T. SHIKADA 4017 Deputy Attorneys General 235 S. Beretania Street, Room 304 o Honolulu, Hawaii 96813 0 9 1 d Phone: (808) 586-I255 C 0 Facsimile: (808) 586-1488 `�' 1" �.p Attorneys for Applicant-Appellant j CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL — IN THE CIRCUIT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES; CONNECTIONS NEW CENTURY PUBLIC CHARTER APPLICANT-APPELLANT CONNECTIONS SCHOOL, NEW CENTURY PUBLIC CHARTER SCHOOL'S MOTION TO EXTEND Applicants-Appellants, DEADLINE TO FILE NOTICE OF APPEAL; MEMORANDUM IN SUPPORT OF VS. MOTION; DECLARATION OF GLADYS L. CROWDER; DECLARATION OF GREGG M. WINDWARD PLANNING USHIRODA; EXHIBITS 1 – 3; NOTICE OF COMMISSION, COUNTY OF HAWAII, HEARING OF MOTION AND CERTIFICATE OF SERVICE Appellee, HEARING: And Date: December 22, 2016 Time: 8:30 a.m. JEFFREY GOMES, Intervenor, Judge: Hon. Melvin H. Fujino Intervenor-Appellee. APPLICANT-APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S MOTION TO FILE EXTEND DEADLINE FILE NOTICE OF APPEAL 670585vl f , Applicant-Appellant Connections New Century Public Charter School ("Connections") respectfully moves this Honorabie Court for an order extending the deadline from November 25, 2016 to December 23, 2016 for Connections to file a notice of appeal as to (1) the Decision and Order Affirming Windward Planning Commission, County of Hawaii's Findings of Fact, Conclusions of Law and Decision and Order Denying Special Permit Application No. SPP 12- 138 filed on July 14, 2015; and (2) the First Amended Final Judgment filed on October 26, 2016. The basis for this motion is that there was excusable neglect that warrants an extension of the deadline to file a notice of appeal. This Motion is made pursuant to Rule 7 of the Hawaii Rules of Civil Procedure, Rule 7 of the Rules of the Circuit Courts of the State of Hawaii, Rule 4(a)(4)(B) of the Hawaii Rules of Appellate Procedure, and is based upon the attached memorandum in support of motion, declarations and exhibits, and the entire records and files of the case herein. DATED: Honolulu, Hawaii, December 7, 2016. r dKtG6'ft USHIRODA Deputy Attorney General Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 67D585vt 2 r IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES; CONNECTIONS NEW CENTURY PUBLIC CHARTER MEMORANDUM IN SUPPORT OF MOTION SCHOOL, Applicants-Appellants, vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I, Appellee, And JEFFREY GOMES, Intervenor, Intervenor-Appel lee. MEMORANDUM IN SUPPORT OF MOTION I. INTRODUCTION Due to circumstances described below, Connections' counsel mistakenly missed the 30- day time period in which to file a notice of appeal as to the First Amended Judgment prescribed by Rule 4(a)(1) of the Hawaii Rules of Appellate Procedure ("HRAP"). Connections' counsel was and is aware that when a civil appeal is permitted by law, HRAP Rule 4(a)(1) states that "the notice of appeal shall be filed within 30 days after the entry of the judgment or appealable order," and that a judgment or order is deemed "entered" when it is filed in the office of the clerk of the court under HRAP Rule 4(a)(5). 67o5s5v l � r The First Amended Judgment was entered on October 26, 2016. HRAP Rule 4(a)(5). The deadline to file a notice of appeal as to the First Amended Judgment was November 25, 2016, the day after Thanksgiving Day. HRAP Rule 4(a)(1). As will be shown, however, Connections' counsel's mistake in not filing a notice of appea[ by or before November 25, 2016 was due to excusable neglect that warrants an extension of the deadline to file a notice of appeal from November 25, 2016 to December 23, 2016 pursuant to HRAP Rule 4(a)(4)(B). IL BACKGROUND Connections is a public charter school that currently operates its elementary and middle school on Kamehameha Avenue in downtown Hilo and a high school located in leased facilities at the Nani Mau Gardens,just outside of Hilo town. Consolidation of campuses was a goal that would promote consolidated, management, operation, long-term planning and budgeting. Applicant-Appellant Community Based Education Support Services ("CBESS") is the non-profit associated with Connections. A. Underlying Administrative Agency Appeal In March 2008, the State of Hawaii Department of Land and Natural Resources, Board of Land and Natural Resources ("DLNR") issued its Approval in Principal of Direct Lease to Connections for school purposes. On January 13, 2011, the DLNR issued a Direct Lease to Connections for school purposes. On July 25, 2012, a Special Permit application was prepared and submitted to the County of Hawaii Planning Department ("Planning Department"), On July 31, 2012, the Planning Department acknowledged receipt of the Special Permit Application No. SPP 12-000138 ("SPP No. 12-000138"), Public hearings on SPP No. 12-000138 before Appellee Windward Planning Commission ("Commission") were held on November 9, 2012, December 6, 2012, January 10, 2013, and 67o585�i 4 l March 7, 2013. During the March 7, 2013 public hearing, Intervenor-Appellee, Jeffrey Gomes ("Gomes") was granted standing to particirate in a contested case hearing. The Commission also voted to retain a hearings officer to conduct a contested case hearing. The contested case hearing on SPP No. 12-000138 was held on October 21, 2013, October 22, 2013, November 12, 2013, January 8, 2014 and January 22, 2014. On April 7, 2014, the Hearing Officer submitted her report to the parties and the Commission. At the fifth public hearing held on May 1, 2014, the Commission voted to uphold the Hearings Officer's report and recommendation, and denied SPP No. 12-000138. On July 14, 2015, the Third Circuit Court filed its Decision and Order Affirming Windward Planning Commission, County of Hawai'i's Findings of Fact, Conclusions of Law and Decision and Order Denying Special Permit Application No. SPP 12-138 ("7/14/2015 Decision"), On July 14, 2015, the Final Judgment was filed ("7/14/2015 Final Judgment"), and the Notice of Final Judgment was subsequently filed on July 28, 2015, B. Appeal of 7/14/2015 Decision and 7/14/2015 Final judgment CBESS and Connections appealed the 7/14/2015 Decision and the 7/14/2015 Final Judgment, which were designated as CAAP 15-0000556 and CAAP 15-0000665, respectively. Both appeals were consolidated as they originated out of the same underlying agency appeal ("Consolidated Appeals"). Connections was represented by Deputy Attorney General Carter K. Siu in the Consolidated Appeals. At the time, Mr. Siu was the deputy attorney general assigned to all public charter schools in the State of Hawaii. 670585v] 5 On April 19, 2015, the Hawaii Intermediate Court of Appeals dismissed the Consolidated Appeals for lack of appellate jurisdiction because the 7/14/2015 Final Judgment did not satisfy the requirements for an appealable final judgment. C. Substitution of Counsel for Connections In late August 2016, Mr. Siu left the employment of the Department of the Attorney General's Education Division. See Declaration of Gregg M. Ushiroda at 15 ("Ushiroda Declaration"). In September 2016, Deputy Attorney General Gregg M. Ushiroda was assigned as the deputy attorney general for all 35 public charter schools, including Connections, in the State of Hawaii. Id. at 914. On September 28, 2016, Mr. Ushiroda entered his appearance as counsel for Connections in Civil No. 14-1-0223. Id. at 16. D. First Amended Final Judgment On October 26, 2016, the Third Circuit Court entered the First Amended Final Judgment. See Exhibit 1 and Ushiroda Declaration at 17. On November 16, 2016, the Third Circuit Court entered the Notice of Entry of Judgment. See Exhibit 1. Connections' counsel also received 2 emails from C11iirr,t:, com1,Ji,t ,<Iii.�!o% that day stating that electronic filings of a Notice of Appeal and Certificates of Service were submitted through JEFS in CAAP 16-0000813. See Exhibit 2 and Ushiroda Declaration at 8. Connections' counsel did not print out the emails and did not log into JEFS to print out copies of the electronically filed documents.' See Ushiroda Declaration at 18. Connections' counsel assumed that these emails were also going to the office assistants, who would then: (a) print out the electronically Filed documents; (b)scan and enter the documents into ProLaw, a case management software program;(c)place hard copies of the documents in the File; and (d)provide counsel with hard copies of the documents. See Ushiroda Declaration at 18. Counsel made this assumption based on his experience with CM/ECF, the electronic filing system used by the District Court. Id.Tbrough CM/ECF, the assigned attorneys and staff receive email notifications of electronic Filings. Id. When staff receives an mail notification, they follow the procedures in(a) to(d). In hindsight,counsel realizes that he should have either forwarded the email to a staff or logged into JEFS and printed out the documents. Id. 670585vl 6 On November 21, 2016, CBESS, through its counsel's office, mailed file-marked copies of First Amended Judgment and the Notice of Entry of Judgment to counsel for Connections. Id. On November 28, 2016, Connections' counsel's office received a file-marked copies of the First Amended Final Judgment and Notice of Entry of Judgment. See Exhibit 1; Declaration of Gladys L. Crowder at 1J 5 ("Crowder Declaration"); and Ushiroda Declaration at q[ 11. On November 29, 2016, Connections' counsel returned from a short vacation; he had been out since Thanksgiving Day, November 24, 2016. See Ushiroda Declaration at 9l 10. Upon his return, counsel saw the First Amended Final Judgment for the first time. Id. Counsel determined that Friday, November 25, 2016 was the deadline to file a notice of appeal within the 30-day time period under HRAP Rule 4(a)(1) and that he had missed the deadline.' Id. On November 30, 2016, Connections' counsel spoke with clerk at the Third Circuit Court (Kealakekua) to inform the clerk that he missed the filing deadline for the notice of appeal, that he intended to file a motion for extension of time, and asked if the motion should be a hearing or non-hearing motion. See Ushiroda Declaration at 111 The clerk informed counsel that the motion would be a hearing motion and gave him a hearing date of December 22, 2016 at 8:30 a.m. before the Honorable Melvin H. Fujino. Id. On December 2, 2016, Connections' counsel informed counsel for CBESS, the Commission, and Mr. Gomes via email that he would be filing a motion for extension of time to file a notice of appeal the following week and provided them with the hearing date and time. See Exhibit 3 and Ushiroda Declaration at 1 14. 2 Counsel confirmed with staff that they did not receive JEFS email notifications. See Ushiroda Declaration at 7 12. Counsel realized that his assumptions regarding JEFS email notifications to staff were incorrect. Id. 670585vl 7 III. STANDARD OF REVIEW The trial court's grant or denial of a motion for extension of time to file a notice of appeal is reviewed for abuse of discretion. Hall v. Hall, 95 Hawaii 318, 319, 22 P.3d 965, 965-66 (2001). "[A]buse of discretion occurs when the trial court has clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant." Ek v. Bow, 102 Hawaii 289, 294, 75 P.3d 1180, 1185 (2003). IV. ARGUMENT A motion for an extension of the time to file a notice of appeal after the expiration of the prescribed time is governed by HRAP Rule 4(a)(4)(B), which states: (B) Requests for extension oftime after expiration of the prescribed time. The court or agency appealed from, upon a showing of excusable neglect, may extend the time for filing the notice of appeal upon motion filed not later than 30 days after the expiration of the tirrie prescribed by subsections (a)(1) through (a)(3) of this rule. However, no such extension shall exceed 30 days past the prescribed time. Notice of an extension motion filed after the expiration of the prescribed time shall be given to the other parties in accordance with the rules of the court or agency appealed from. Id. (emphasis added). The prior version of HRAP Rule 4(a)(4)(B) - HRAP Rule 4(a)(5) - is patterned after Rule 4(a)(5) of the Federal Rules of Appellate Procedure ("FRAP").3 See Enos v. Pacific Transfer& Warehouse Inc., 80 Hawaii 345, 350, 910 P.2d 116, 121 (1996), Like its federal counterpart, HRAP Rule 4(a)(4)(B) (and its prior version) provides for a grace period of 30 days within which an attorney who misses the prescribed 30-day time period in which to file a notice of appeal "may ask the [court] for an extension of time, and the court, in the exercise of its discretion, may grant the extension if it determines that the neglect of the attorney was 3 FRAP Rule 4(a)(5)states, "[t]he district court may extend the time to file a notice of appeal if: (i) a party so moves no later than 30 days after the time period prescribed by this Rule 4(a)expires; and (ii)regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a)expires, that party shows excusable neglect or good cause." HRAP Rule 4(a)(5)states, in relevant part that, "[L]he court or agency appealed from, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal[.]" 6705851 8 `excusable."' Pincay v. Andrews, 389 F.3d 853, 854 (91" Cir. 2004) (en bane). See also Enos, 80 Hawaii at 352, 910 P.2d 123 ("[ilf the rause of the delay [in filing notice of appeal] k some mistake or inadvertence within the control of the movant, the motion may be granted only upon a showing of `excusable neglect"'). in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), the United States Supreme Court ("Supreme Court") affirmed the Sixth Circuit's decision that an attorney's inadvertent failure to file a proof of claim within the deadline set by the bankruptcy court can constitute "excusable neglect" within the meaning of Rule 9006(b)(1) of the Federal Rules of Bankruptcy Procedure ("FRBP").4 The Supreme Court held that excusable neglect "encompass[es] situations in which the failure to comply with a filing deadline is attributable to negligence," and includes "omissions caused by carelessness." Id. at 388, 394. The determination of whether neglect is excusable "is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Id. at 395. To determine when neglect is excusable, the Supreme Court in Pioneer conducted an equitable analysis by examining "at least four factors: (l) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith." Id. at 395. The Supreme Court found excusable neglect when "an experienced bankruptcy attorney" missed the deadline for filing pre-petition claims because he overlooked the filing date in the bankruptcy court's notice. Id. at 383-84, 398. Although the Supreme Court "consider[ed] significant" that the bankruptcy a FRBP Rule 9006(h)(1)states in relevant part, "[Ile court Im-Lmusc ,hLnNn may at any time in its discretion . . . on nwlioil made,filter the expiration of tIle specified period pu-mit the act to he LIone where the I'dilurc to 1C was the WSUIL of c.xcusahle neglect." 670585vt 9 court's notice of the bar date was outside the ordinary course in bankruptcy cases, it nonetheless clarified that even an attorney's neglect can be considered excusable. Id. at 398 The Ninth Circuit (and the Hawaii District Court) has adopted and applied the Pioneer test in other contexts, including FRAP 4(a)(5) and Federal Rules of Civil Procedure Rules 6(b) and 60(b). See, e.g., Reynolds v. Wagner, 55 F.3d 1426, 1429 (91h Cir. 1995) (Pioneer analysis applies to FRAP 4(a)(5)); Comm. for Idaho's High Desert, Inc. v. Yost, 92 F.3d 814, 825 n. 4 (9th Cir.1996) (concluding that the Pioneer test is applicable to Rule 6(b)); Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (91h Cir. 1997) (adopting the Pioneer test for consideration of Rule 60(b) motions); Newcomb v. Cambridge Home Loans, Inc., 2011 WL2518706, *5 (D. Hawaii June 23, 2011) (finding excusable neglect for 8-month delay in filing Rule 60(b)(6)). See also Enos, 80 Hawaii at 350, 910 P.2d at 121 (HRAP Rule 4(a)(4)(B) is patterned after FRAP Rule 4(a)(5)). The Ninth Circuit has found excusable neglect when experienced law firms and attorneys have missed filing deadlines. See, e.g., Lemoge v. United States, 587 F.3d 1 188, 1197 (9"' Cir. 2009) (finding that although the plaintiffs' attorney was "seriously" negligent in failing to identify the correct agency to serve, his medical problems, which began shortly thereafter and precluded him from correcting the situation, "provided adequate reasons for the delay"); Pincay, 389 F.3d at 859 (district court did not abuse its discretion by finding excusable neglect when a sophisticated law firm missed a filing deadline because of a paralegal's error); Bateman v. United States Postal Service, 231 P.3d 1220, 1222-25 (91h Cir. 2000) (finding excusable neglect when an attorney missed an opposition deadline while he was out of the country for a family emergency, but the attorney did not contact the district court until sixteen days after he returned, attributing his lapse to "jet lag and the time it took to sort through the mail"). Indeed, in Pioneer, 6705850 10 l the Supreme Court found excusable neglect when "an experienced bankruptcy attorney" missed the deadline for filing pre-petition claims because he overlooked the filing date in the bankruptcy court's notice. Pioneer, 507 U.S. at 383-84, 398. The Hawaii District Court observed that although the Ninth Circuit initially took a narrow approach to the Pioneer analysis, the clear trend since the Pincadecision is to afford the movant more lenience when applying the Pioneer factors. See In re Maui Indus. Loan & Finance, Co., 2012 WL 667759, *5 (D. Hawaii Feb. 27, 2012); Newcomb, 2011 WL2518706 at *5; In re Hawaiian Airlines, Inc., 2011 WL 1483923, *3 (D. Hawaii April 18, 2011). Although the Hawaii Supreme Court has cited to Pioneer, it has not gone so far as to adopt the Pioneer analysis to determine "excusable neglect." See Enos, 80 Hawaii at 352, 910 P.2d at 123; see also Cabral v. State, 126 Hawaii 92, 97, 267 P.3d 676, 681 (2011). In Enos, the Hawaii Supreme Court cited Pioneer because the Supreme Court rejected the majority view of federal appellate courts that the choice of standards — good cause or excusable neglect — was dependent on the timing of a FRAP Rule 4(a)(5) motion for extension. Enos, 80 Hawaii at 350-51, 910 P.2d at 121-22. Following the Supreme Court's reasoning, the Hawaii Supreme Court held if the cause of the delay in filing a notice of appeal "is some mistake or inadvertence within the control of the movant, the motion may only be granted that upon a showing of"excusable neglect." Id. at 352, 910 P.2d at 123. After determining the delay was due to a mistake within appellant's control, the Hawaii Supreme Court held that the trial court abused its discretion by granting the motion to extend time for filing a notice of appeal under HRAP Rule 4(a)(5)6 because "the failure to timely file the appeal was caused by counsel's failure to read and comply s On the other hand, the"good cause' standard would be applied if the cause of the delay "is beyond movant's control." Enos, 80 Hawaii at 352, 910 P.2d at 123. 6 The prior version of HRAP Rule 4(a)(4)(B). 670585vl 11 with the plain language of the applicable procedural rules, which cannot constitute `excusable neglect."" Id. at 35.5, 910 P.2d at 126 Connections is not aware of any Hawai'i case law that rejects Pioneer or the application of its "excusable neglect" analysis. That said, it should be pointed out that the Hawaii Supreme Court in Enos implicitly rejected the stricter version of the "excusable neglect" standard that required a showing that failure to timely file a notice of appeal was due to circumstances beyond appellant's control. Enos, 80 Hawaii at 3.50, 910 P.2d at 121 (citing State of Oregon v. Champion Int'l Cor., 680 F.2d 1300, 1301 (91h Cir. 1982) ("[The excusable neglect standard] was intended to apply only to `extraordinary cases where injustice would otherwise result' . . . Inadvertence or mistake of counsel does not constitute excusable neglect."). The implicit rejection of the stricter standard tends to indicate that the Hawaii Supreme Court would embrace the Supreme Court's view that excusable neglect "encompass[es] situations in which the failure to comply with a filing deadline is attributable to negligence" such as "omissions caused by carelessness," and that the determination of whether neglect is excusable is an equitable determination that takes into account all relevant circumstances. Pioneer, .507 U.S. at 388, 394-95. A. Reason For The Delay Was Due to Excusable Neelect Connections' counsel's error in not timely filing a notice of appeal was primarily due to (1) Connections not being served with First Amended Final Judgment until November 28, 2016; and (2) the fact that Connections' counsel assumed that the JEFS email notifications sent on November 16, 2016 were also going to the office assistants who would then follow established The Hawaii Supreme Court rejected appellant's argument that its "counsel believed that the time period for filing a notice of appeal was triggered by the filing of the notice of entry of judgment rather than the filing of the judgment itself," Enos, 80 Hawaii at 355, 910 P.2d at 125. 670585v] 12 office procedure in printing out, filing and distributing the electronic filings. See Ushiroda Declaration at 11! 8 and 10. Had Connections' counsel's office been served with the First Amended Final Judgment earlier, the deadlines to follow (e.g., deadline to file a notice of appeal) would have been calendared and met in a timely manner. See Ushiroda Declaration at T 10. That said, Connections' counsel's mistaken assumption regarding the JEFS email notification was a mistake that was within his control. This mistake, however, was not due to ignoring the JEFS email notifications nor was it based on any ignorance or misinterpretation of HRAP Rule 4(a)(1). Id. at 11 15-16. Rather, Connections' counsel's mistake was based on honest belief and assumption at the time that the JEFS email notification system distributed emails like the federal court CM/ECF system, i.e., to assigned attorneys and staff. Id. at 118. Under these circumstances and based on the foregoing case law, Connections' counsel's mistake in not filing the notice of appeal in a timely manner was due to excusable neglect. B. No Danger of Pre judice To Nan-Moving Parties Prejudice to the non-moving party `'requires greater harm than simply relief would delay resolution of the case." Lemoge, 587 F.3d at 1196. There does not appear to be any prejudice that the non-moving parties would suffer if the Court were to grant Connections an extension of until December 27, 2016 to file a notice of appeal. It should be pointed out that all briefing was completed in the Consolidated Appeals before the Intermediate Court of Appeals dismissed the Consolidated Appeals for lack of appellate jurisdiction. It is anticipated that the filings to be submitted in the current appeal proceeding will likely be identical to filings previously submitted in the Consolidated Appeals. 670585vl 13 a, C. Length of the Delay Was Short In this case, the length of the delay was very short. The deadline to f k. the notice of appeal was November 25, 2016. On December 7, 2016,just 12 days later, Connections will have filed its motion for extension of time. See In re Hawaiian Airlines, 2011 WL 1483923 at *4 (2 week delay in filing motion to set briefing schedule was a minor delay that weighed in favor of movant). Further, on December 2, 2016, Connections' counsel notified counsel for all of the non-moving parties that he would be filing such a motion the following week. See Exhibit 3. D. No Evidence of Bad Faith There is nothing to suggest that Connections has acted in bad faith in bringing this motion. The error in not filing a notice of appeal before the November 25, 2016 deadline resulted from a mistake, and not from any kind of intentional conduct or deliberate flouting of the rules. See In re Maui Indus. Loan & Finance Co., 2012 WL 667759 at *6 (citin Bateman, 231 P.3d at 1225 {concluding that movant acted in good faith because [h]is errors resulted from negligence and carelessness, not from deviousness or willfulness")). V. CONCLUSION Based on the foregoing arguments, reasons and undisputed facts, Connections respectfully submits that its motion should be granted. DATED: Honolulu, Hawaii, December 7, 2015. GREGG M. USHIRODA Deputy Attorney General Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 670585v1 14 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-I-0223 MHF SUPPORT SERVICES; CONNECTIONS NEW CENTURY PUBLIC CHARTER DECLARATION OF GLADYS L. CROWDER SCHOOL, Appl icants-Appe I I ants, VS. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, Appellee, And JEFFREY GOMES, Intervenor, Intervenor-Appellee. DECLARATION OF GLADYS L. CROWDER I, GLADYS L. CROWDER duly declare that: I. I arra employed by State of Hawaii as an Office Assistant with the Department of the Attorney General, State of Hawai'i's Education Division. 2. I have personal knowledge of the facts set forth herein and can testify to the same. 3. My duties and responsibilities as an Office Assistant include retrieving, receiving, sorting and distributing mail and legal documents such as court pleadings delivered to the Education Division, which is Iocated in the State Office Tower, 235 S. Beretania Street, Room 304, Honolulu, Hawaii 96813. 6722291 4. Correspondence and pleadings that is mailed through the United States Postal Service ("USPS") to the Education Division is not delivered to Room 304. Rather, such mail is delivered to our mail box located in the lobby of the State Office Tower. l retrieve the mail from the mail box on a daily basis, Monday through Friday. USPS mail is not delivered on the weekends. 5. Attached as Exhibit l are true and correct copies of a transmittal memorandum dated November 21, 2016 and the First Amended Final Judgment filed on October 26, 2016. The First Amended Final Judgment was attached to the transmittal memorandum along with the Notice of Entry of Judgment filed on November 16, 2016. On Monday,November 28, 2016, I retrieved these documents from the Education Division's mailbox. These documents were mailed through USPS in a large envelope that was addressed to Deputy Attorney General Gregg M. Ushiroda. After I opened the envelope, I scanned and entered the documents into ProLaw. then attached a square white sheet of paper with a date stamp of"November 28, 2016" to the documents with a paperclip and left it in Mr. Ushiroda's in-tray. To the best of my knowledge, Mr. Ushiroda did not come into the office on November 28, 2016. 1 declare under penalty of law that the foregoing is true and correct. DATED: Honolulu, Hawai'i, December 7, 2016. GLAD S L. CROWDER 67=()_i660030v1 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII . COMMUNITY BASED EDUCATION CIVIL NO, 14-1-0223 MHF SUPPORT SERVICES; CONNECTIONS NEW CENTURY PUBLIC CHARTER DECLARATION OF GREGG M. USHIRODA SCHOOL, Applicants-Appellants, vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I, Appellee, And JEFFREY GOMES, Intervenor, Intervenor-Appellee. DECLARATION OF GREGG M. USHIRODA I, GREGG M.USHIRODA duly declare that: 1. I am a Deputy Attorney General with the Education Division of the Department of the Attorney General, State of Hawaii. I am and have been duly licensed to practice law in all courts in the State of Hawaii since 1992, and I am one of the attorneys for Applicant-Appellant Connections New Century Public Charter School ("Connections") in the above-captioned matter. 2. I have personal knowledge of the facts set forth in this declaration and can testify to the same. 3. I have been a Deputy Attorney General in the Education Division since September 2013. In that capacity, I provide advice, counsel, and legal representation to the 672232_1 Department of Education, State of Hawaii ("DOE"). The majority of the cases in which 1 represent the DOE are administrative d>_le process matters hefore Department of Commerce and Consumer Affairs, State of Hawai'i ("DCCA") and appeals of DCCA hearings officer decisions before the United States District Court for the District of Hawaii ("District Court"). Since joining the Education Division, 1 have only had two appearances in the Circuit Courts of the State of Hawaii — one in First Circuit Court and the other in Second Circuit Court. 4. In addition to the foregoing duties and responsibilities, 1 became the assigned Deputy Attorney General for all 35 public charter schools in the State of Hawaii in September 2016. In that capacity, 1 provide advice, counsel and legal representation to the charter schools. 5. Former Deputy Attorney General Carter K. Siu was the prior assigned Deputy Attorney General for the charter schools until he left the employment of the Education Division in late August 2016. Prior to leaving, Mr. Siu represented Connections in SP No. 12-000138, the underlying agency appeal, and the Consolidated Appeals designated as CAAP 15-0000556 and CARP 15-0000665 respectively (which were dismissed on April 19, 2015 by the Intermediate Court of Appeals for lack of appellate jurisdiction). 6. On September 28, 2016, I entered my appearance as counsel for Connections in the above-captioned matter. 7. On October 26, 2016, the First Amended Final Judgment was filed in the Third Circuit Court, a true and correct copy of which is attached as Exhibit 1. 8. On November 16, 2016, 1 received 2 emails from A)IHi[,o court, informing me that electronic filings (a Notice of Appeal and Certificates of Service) were submitted through JEFS in CARP 16-0000813 CBESS vs. Windward Planning Commission, et al., true and correct copies of which are attached as Exhibit 2. 1 did not print out the emails nor 672232_1 2 did I log into JEFS to print out copies of the electronically filed documents. I incorrectly assumed that these emails were al,,o goinp, to our office assistants, who would then: (a) print out the electronically filed documents; (b) scan and enter the documents into ProLaw, a case management software program; (c) place hard copies of the documents in the file; and (d) provide me with hard copies of the documents. The reason that 1 made this assumption is that I am very familiar and experienced with CMIECF, the electronic filing system used by the District Court. Through CMIECF, the assigned attorneys and staff in our office receive email notifications of electronic filings. When our staff receives an ECF email notification, they follow the procedures described in (a) to (d) above. That said, in hindsight, I realize that 1 should have either forwarded the email to an office assistant or logged into JEFS and printed out the documents. 9. On November 21, 2016, file-marked copies of the First Amended Final Judgment and the Notice of Entry of Judgment filed on November 16, 2016 were mailed to me at the Education Division by Shaydlin Richards, receptionist for Ted H.S. Hong, Esq., counsel for Applicant-Appellant Community Based Education Support Services ("CBESS"), as evidenced by a transmittal memorandum dated November 21, 2016, a true and correct copy of which is attached as part of Exhibit 1. 10. 1 did not see the First Amended Final Judgment until I returned to the office from a short vacation on Tuesday, November 29, 2016. 1 had been out of the office since Thanksgiving Day, Thursday, November 24, 2016. 1 then determined that Friday, November 25, 2016 was the deadline to file a notice of appeal within the 30-day time period under Rule 4(a)(1) of the Hawaii Rules of Appellate Procedure ("HRAP") and that I had missed the deadline to file a notice of appeal on behalf of my client, Connections. I was somewhat shocked as I have never 672232_t 3 before missed a filing deadline during my 24 years of practice. Had our office been served with the First Amended Final Jud Jrnent earlier, the deadlines to follow (e.g., deadline to file a notice of appeal) would have been calendared and met in a timely manner. 11. When I saw the transmittal memorandum on Tuesday, November 29, 2016, along with the attached documents, there was a square piece of white paper clipped to the transmittal memorandum which bore a date received stamp mark of"November 28, 2016." I then spoke with Legal Secretary Gina Lum to see who received the First Amended Final Judgment and if it had been entered into ProLaw. After checking ProLaw, Ms. Lum informed me that Office Assistant Gladys L. Crowder received the First Amended Final Judgment on November 28, 2016 and scanned it into ProLaw that same day. 12. I also spoke with Ms. Lum and Legal Clerk Debora Morano on November 29, 2016 about the JEFS email notifications. Ms. Lum and Ms. Morano confirmed that they did not receive the JEFS emails. The JEFS emails also identify the recipients, none of whom were Education Division office staff. At that point, I realized my assumptions set forth above in paragraph 8 were incorrect. 13. The following day, November 30, 2016, I contacted the clerk at the Third Circuit Court to inform her that I had missed the filing deadline for the notice of appeal, that I intended to file a motion for extension of time to file a notice of appeal, and asked if the motion should be a hearing or non-hearing motion. The clerk informed me that such a motion would be a hearing motion and kindly provided me with a hearing date of December 22, 2016 at 8:30 a.m. before the Honorable Melvin H. Fujino. 14. On Friday, December 2, 2016, I sent an email to counsel for CBESS, Appellee Windward Planning Commission, and Intervenor-Appellee Jeffrey Gomes to inform them that I 672232_1 4 would be filing a motion for extension of time to file a notice of appeal the following week and that the motion would be heard on December 22, 2016 at 8:3() a.m. before Judge Fuiino. A true and correct copy of this email is attached as Exhibit 3. 15. Based on the foregoing, 1 respectfully submit that I missed the November 25, 2016 filing deadline to file a notice of appeal due to excusable neglect. 16. My failure to file a timely notice of appeal was not due to any misapprehension, misinterpretation, ignorance or disregard of the filing deadlines set forth in HRAP Rule 4(a)(1). I declare under penalty of law that the foregoing is true and correct. DATED: Honolulu, Hawai'i, December 7, 2016. EGG M. USHIRODA 672232_1 5 TED H. S. HONG, ESQ. _lttornev at Laic P. O. Boy 4217 Hilo, Hawaii 96720-0217 Telephone (808) 933-1919 FacsimilF� (808) 93.5-n IS TcdC(i1'ed hotaglan-.com TO: AMY G. SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite -3 25 Hilo, Hawaii 96720 MICHAEL J. MATSUKAWA, ESQ. 75-5751 Kuakini Highway, Suite 201 Kailua-Kona. Hawaii 96740 GREGG M. USHIRODA, ESQ. Deputy Attorney General State of Hawaii 235 S. Beretania Street. Room 304 Honolulu, Hawaii 96813 FROM: Shaydlin Richards, Receptionist DATE: November 21, 2016 RE: CBESS vs. Windward Planning Commission, et al; Civil No. 14-1-0223 (Agency Appeal) Enclosed, please find the following: 44tem: File Date: Description 1 11/16/2016 File-marked copy: Notice of Entry of Judgment 1 10/26/2016 File-marked copy: First Amended Final Judgment El Per your request ❑ Your approval. signature, and return ❑Your signature and return ❑ Your review and comments QYour information and files ❑ Your signature and forwarding as indicated ❑Please see remarks below ❑ Please rush Page 1 of 1 EXHIBIT � ""1 FILED II-.0 It. S. HONG 369 Ai.torne` at La« �3�6 j $ AM $� 32 P O. Bnx 4217 Hilo, 11196720 Telephone No. 808.933.1919 TrlrZ I Facsimile No. 808.935.8281 ted'(-1 tedhongla«.eom Attorney for Applicant-Appellant COMMUNITY BASED E''DUC'ATION! SUPPORT SERVICES IN 'I'i*, CIRCUIT C'01?RI OF TI IF TI IIRD CIRC"UIT STA l'E OF HAWAII COMMUNI l'Y LASED EDUCATION ) CIVIL NO. 14-1-0223 MI1F S1 WORT SERVICES ) (Agency Appeal) } Applicant-Appellant. ) FIRST A%II:NDI:D FINAL JUDGMENT } �5. ) WINDWARD PLANNING COMMISSION.) COUN"fY OF IIAWAII-, DI`PARTN4I:N I ) OF PLANNING. COI INTY Y OF HAWAII, ) Appellecs, ) and } JEFFRFY GOVILS. Intervenor. ) JUDGL: tion. MFLVIN It. FURNO Inter`enor-Appellee. ) ) FIRST AMENDED FINAL JUDGMENT On or about May 19, 2014, the Appellee Windward Planning Commission submitted its Findings of Fact, Conclusions of Land and Decision and Order. CROA: 4300-431 5. On or about June 9, 2014, Applicant-Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES, (hereinafter referred to as '-Appetlant CBESS'', tirt3el}} filed its Notice 4�`,'0,1'MOON`lc t'l 1$ie c!101 FfUt-31MOCOTreoj copyc�fmr 907�Iwvdlerk-ThirdClrwhCoUrt of Appeal to the I hied Circuit Court. State of flakkali. pursuant to Rule 72 of the Hawaii Rules of >. 1 > > � 1 r C 1ViI I I CCLIure ercrnattei r�it�r�,I Lo i� • I.1.0 vi 1, and Sections )l-14 .gin' 91-1 �. ' Ii.bili Revised Statutes, (hereinafter referred to as In its notice of Appeal, Appellant CBESS named as appellees the follo«ing interested individuals: SANDRA SONG. in her capacity as Hearing Officer; JFFFRFY GOMIS_ Intervenor: SIDNEY FUKE, Intervenor's Representati\e: and TFRRANCE YOSHIOKA, Intervenor's Respresentative: who each actively participated in the administrative agency hearings. pursuani to Rule I9(a) and (b)_ I IRC'ivP. and dere indispensable parties to the administrative agency appeal. On or about June 9, 2014. Applicant-Appellant. CONNI:C TIONS NLIW CF�N FURY PUBLIC CIIAR"I FR SCHOOL. (hereinafter referred to as 'Appellant Connections") filed its Notice of Appeal to the Circuit Court and Joinder to Applicant-Appellant, Communit,, Based Education Support Sery ices' Notice of Appeal to the Circuit Court, filed on June 9, 2014. On or about September 22. 2014, the Third Circuit Court dismissed SIDNI"Y FUKE, Imervenor's Representative: and TERRANCF YOSHIOKA. Intervenor's Respresentative as appellees in the present case_ including anN and all claims against them and ordered that the caption be amended to have their names removed. There are no remaining claims against S1DNFY F1)Kh'. Intervenor's Representative: and TERRANCE YOSHIOKA. Intervenor's Respresentative. Jenkins v. C"groes .S'chittte Fleeting & ;Fright, 76 Ila«ai'i 115, 869 P.2d 1334 (1994). On or about September 22, 2014, pursuant to Rule 54(b), HRCivP_ the Third Circuit Court entered judgment in favor of SIDNEY FUKE, Intervenor's Representative, and 2 fI:RRANCE YOS1110KA. Inter�enor"s Respresentati�e against Appellant CBI�SS and �p�'C,1rlll ('OhOCCtlu�1S. ]here art rio remaining claln"i-, %igd':'l-,i SiDNI:Y VI"KL. 113IerCe�lo]' � Repre;entati�e: and TF.RRANCF. YOSi IIOK%,\. Intery enor's Representative. knkbn v. Codes ,Schutte Flenzingc- Wright, 76 llawai-i 115. 869 P 2d 1334 (1990. On or about September 22. 2014, the Third Circuit Court dismissed SANDRA SON(T. in her capacity as I learing Officer. as an appellee to the present case. 'there are no remaining claims against SANDRA SONG, in her capacity as I tearing Officer. Jenkins 1, Codes S'chrrttc F'Icming c- Wright, 76 l Ia«%Lwi 1 15, 869 P.2d 1 334 ( 1904). The Appellee. WINDWARD PLANNING COMMISSION, COUNTY OF fWWAI1. failed to submit a judgment for the Third Circuit C'ourt's approval and tiling concerning the dismissal of'SANDRA SONG. in her capacity as hearing Officer. On or about September 22. 2014. the '1 bird Circuit Court dismissed Appellee, DFPARIMEN 1 0[' PLANNING. COUN 1 Y 01: 1IA\VAII. as an appellee in the present case. Che ;appellee, 1)1`11AR f!,vlFNT OF PLANNING. COUNTY OF I IAV,'AI1. failed to submit a judgment for the I'hird Circuit Courts approval and filing concerning the dismissal of Appellee. DETARTNIEN I- OF PLANNING. COUNTY OF IIA)�'All from the present case. On or about July 14. 2015, the Yhird Circuit Court issued its Decision and Order Affirming Windward Planning Commission. County of I lawaii's Findings of Fact. Conclusions of Law and Decision and Order Denying Special Permit Application No. SPP 12-138 (ARA: Part 1, 1463-1467), ITIS HEREBY ORDERED, ADJUDGED. AND DECREED, pursuant to Rule 72(k) of the Ha«ai'i Rules of Civil Procedure: Final Judgment is hereby entered in favor of Appellcc WE\'DWARD PLANNING C")NVMI1zSION. ('01 TN-IY OF I[AV,' H, ,a th- i'"-Jo`.- _nt'.Lc:d administrative age tic y appeal. That there being no further claims b� or on behalf of the parties in this administrative agency appeal and there being no just reasons for delay, this shall he a Final Judgment as to Applicant-Appellants. CRESS and Connections and Appellee. Windward Planning Commission, County of Hawaii. pursuant to Rule 72(k). HRCivP. and Sec. 91-15. IIRS. There are no other remaining claims or parties in this matter and all other remaining claims are hereby dismissed v ith prejudice. Jenkins v Cacles .Schutte f7eming & Ii righl, 76 HaNvai'i 115, 869 P.2d 1334 (1994). DA 1:U: Kealakekua, Ha»aii. QC3 19 261b MELVIN H, FUJINO (SEAL) R! OF THY ABOVI=-ENTfI'LED ('011RU Community Based Education Support Services and Connections New Century Public Charter School v. Windward Planning Commission, Count} of Hawaii, and Jeffrey Gomes, Intervenor- Appellee, CIVIL NO. 14-1-4223 MHF (Agency Appeal), FIRST AMENDED FINAL_ JUDGMENT. 4 FILED TED H.S. HONG, 43569 Attorney At Law 20.16 NaY 16 PH 3:25 101 Aupuni Street, PH 1002A P.O. Box 4217 CL tall Hilo, Hawaii 96720 ;;fi-?l CIRCUIT COURT Telephone: 808-933-1919 W.,I I Facsimile: 808-935-8281 Ted@Tedhonglaw.com Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES (CBESS), (Agency Appeal) Applicant-Appellant, NOTICE OF ENTRY OF JUDGMENT Vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and JEFFREY COMES, Intervenor; Judge: Honorable Melvin H. Fujino Intervenor-Appellee, NOTICE OF ENTRY OF JUDGMENT TO: .AMY G. SELF, F,SQ. By Hans i 0h,cly Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, HI 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII MICHAEL J. MATSUKAWA, ESQ. By US First Class Mail 75-5751 Kuakini Hwy., Ste. 201 Kailua-Kona, HI 96740 Attorney for Appellee JEFFREY GOMES GREGG M. USHIRODA, ESQ. By US First Class Mail Deputy Attorney General 235 South Beretania Street, Room 304 Honolulu, HI 96813 Attorney for Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL Pursuant to the provisions of the Hawaii Rules of Civil Procedure, Rule 77(d), please take notice that the First Amended Final Judgment filed with the Court on October 26, 2016, has been entered in this case by the Judge on October 19, 2016. KEALAKEKtlA Nov 16 2oi6 DATED: �Z, Hawaii, BY ORDER OF THE COURT amie TekimotP CLERK OF THE ABOVE-ENTITLED COURT 2 e Ushiroda, GreggM From: efiling@courts.hawaii.gov Sent: Wednesday, November 16, 2016 11:19 AM To: Ushiroda, Gregg M Subject: JEFS Notice in case:CAAP-16-0000813, CBESS vs. Windward Planning Commission, et al An electronic filing has been submitted on a case in which you are listed as an attorney or party of interest. You can view, print, or copy the filing by logging onto JEFS, selecting "Manage Cases," and selecting case number CAAP-16- 0000813. Case ID CAAP-16-0000813 Title Community Based Education Support Services (CRESS)vs. Windward Planning Commission, County of Hawaii Department of Planning, County of Hawaii and Jeffrey Gomes, Intervenor Filing Date/Time WEDNESDAY, NOVEMBER 16, 2016 11:14:32 AM Filing Parties Community Based Education Support Services Case Type Appeal Lead Document(s) Notice of Appeal Supporting Document(s) Exhibit, Exhibit, Civil Appeal Docketing Statement, Exhibit, Exhibit, Letter, Other If the filing noted above included a document,this Notice of Electronic Filing is service of the document under the Hawai'i Rules of Appellate Procedure and the Hawai'i Electronic Filing and Service Rules. This notification is being electronically mailed to: Gregg M. Ushiroda( Gregg.M.Ushiroda@hawaii.gov ) Michael J. Matsukawa( kapulu@msn.com ) Molly A Stebbins( mlugo@co.hawaii.hi.us ) Amy Gail Self( amy.self@hawaiicounty.gov ) Ted H.S. Hong(ted@tedhonglaw.com ) EXH I BIT �,Y Ushiroda, Gregg M From: efiIing@courts.hawaii.gov Sent: Wednesday, November 16, 2016 11:34 AM To: Ushiroda, Gregg M Subject: JEFS Notice in case:CAAP-16-0000813, CRESS vs.Windward Planning Commission, et al An electronic filing has been submitted on a case in which you are listed as an attorney or party of interest. You can view, print, or copy the filing by logging onto JEFS, selecting "Manage Cases," and selecting case number CAAP-16- 0000813. Case ID CAAP-16-0000813 Title Community Based Education Support Services(CRESS) vs.Windward Planning Commission, County of Hawaii Department of Planning, County of Hawaii and Jeffrey Gomes, Intervenor Filing Date/Time WEDNESDAY, NOVEMBER 16, 2016 11:30:53 AM Filing Parties Community Based Education Support Services Case Type Appeal Lead Document(s) Supporting Document(s) Certificate of Service, Certificate of Service, Certificate of Service, Other If the filing noted above included a document, this Notice of Electronic Filing is service of the document under the Hawaii Rules of Appellate Procedure and the Hawai'i Electronic Filing and Service Rules. This notification is being electronically mailed to: Gregg M. Ushiroda( Gregg.M.Ushiroda@hawaii.gov ) Michael J. Matsukawa( kapulu@msn.com ) Molly A Stebbins( mlugo@co.hawaii.hi.us ) Amy Gail Self( amy.self@hawaiicounty.gov ) Ted H.S. Hong( ted@tedhonglaw.com ] 1 Ushiroda, Gregg M From: Ushiroda, Gregg M Sent: Friday, December 02, 2016 4:16 PM To: 'Ted@T9dho^glaw.com'; 'Malia.Ho@hawaiicacnty.gov; 'kapulu@msn.com' Cc: Shikada, Holly T Subject: Community Based Education Support Services, et at. v. Windward Planning Commission, County of Hawaii Civ. No. 14-1-0223 Dear Counsel Our office represents Applicant-Appellant Connections New Century Public Charter School ("Connections"). On behalf of Connections, I will be filing a motion to extend deadline to file a notice of appeal next week. The motion will be heard on December 22, 2016 at 8:30 a.m. before Judge Melvin H. Fujino. Should you have any questions, please feel free to contact me. You rs, Gregg M. Ushiroda Deputy Attorney General Gregg M. Ushiroda Department of the Attorney General Education Division 235 S. Beretania Street, Room 304 Honolulu, Hawaii 96813 Tel: Confidentiality Notice: This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and/or privileged information. Any review, use, disclosure, or distribution by unintended recipients is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the message. EXHIBIT 3 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES; CONNECTIONS NEW CENTURY PUBLIC CHARTER NOTICE OF HEARING AND CERTIFICATE SCHOOL, OF SERVICE Applicants-Appellants, vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I, Appellee, And JEFFREY GOMES, Intervenor, Intervenor-Appellee. NOTICE OF HEARING OF MOTION TO: TED H.S. HONG, ESQ. P.O. Box 4217 Hilo, Hawai`i 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES ANGELIC M. HO, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appelle WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII 670585vl r p MICHAEL J. MATSUKAWA, ESQ. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES PLEASE TAKE NOTICE that the hearing on APPLICANT-APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S MOTION TO EXTEND DEADLINE TO FILE NOTICE OF APPEAL shall come on for hearing before the Honorable Melvin H. Fujino, Judge of the above-entitled court, in his courtroom at 81-940 Halekii Street, Kealakekua, Hawaii 96750 on December 22, 2016, at 8:30 a.m. DATED: Honolulu, Hawaii, December 7, 2016. GEGG M. USHIRODA Deputy Attorney General Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL CERTIFICATE OF SERVICE I HEREBY CERTIFY THAT a copy of the foregoing document was duly served upon the following at their last known address, via U.S. mail and email, on December 7, 2016: TED H.S. HONG, ESQ. P.O. Box 4217 Hilo, Hawai`i 96720 �l'i�tY l�Cdlt1111S� I« .Li7�11 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 670585vi 16 ANGELIC M. HO, ESQ. Deputy Corporation Counsel 101 Aupun' Street. Suite 325 Hilo, Hawai,i 96120 Attorney for AppeIIe WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII MICHAEL J. MATSUKAWA, ESQ. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 i._t���lln( i1i11_� ?I_tl Attorney for Intervenor-Appellee JEFFREY GOMES DATED: Honolulu, Hawai'i, December 7, 2016. GREGG M. USHIRODA Deputy Attorney General Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 670585v[ 17 n_ MICHAEL J. MATSUKAWA, 1885 75-5751 Kuakini Highway, Room 201 Kailua-Kona, Hawaii 96740 Telephone No . 808-329-1385 Attorney for Intervenor-Appellee JEFFREY K. COMES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION SUPPORT } CIVIL NO . 14-1-0223 SERVICES, ) (Agency Appeal ) Applicant-Appellant, ) VS . ) INTERVENOR-APPELLEE WINDWARD PLANNING COMMISSION, ) JEFFREY COMES` RESPONSE COUNTY OF HAWAII, ) TO APPLICANT-APPELLANT NEW CENTURY PUBLIC CHARTER Appellee, ) SCHOOL' S MOTION TO EXTEND } DEADLINE TO FILE NOTICE and ) OF APPEAL FILED DECEMBER 8 , 2016 ; EXHIBITS "A, " JEFFREY COMES, ) "B" and "C; " CERTIFICATE } OF SERVICE Intervenor-Appellee, ) HEARING DATE AND TIME: ) CONNECTIONS NEW CENTURY PUBLIC ) Date : December 22 , 2016 CHARTER SCHOOL, ) Time : 8 : 30 a.m. Judge: Hon. Melvin Fujino Applicant-Appellant, ) VS . rn WINDWARD PLANNNIG COMMISSION, ) COUNTY OF HAWAII , et al . , } v ) a Appellees . ) c�'' ** By prior order, Appellees SIDNEY FUKE and TERRENCE YOSHIOKA were dismissed from this action and their names were removed from the caption. i AA INTERVENOR-APPELLEE JEFFREY GOMES ' RESPONSE TO CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL' S MOTION TO EXTEND DEADLINE TO FILE NOTICE OF APPEAL FILED DECEMBER 8, 2016 The motion before this Court is unusual because the Movant (Connections New Century Public Charter School) seeks an extension of time to file an appeal from a "Judgment" that is not "final" because the "Judgment" form does not satisfy the requirements for a "final judgment" under Hawaii law. Jenkins v. Cades Schutte Fleming & Wright, 76 Haw. 115, 119 , 869 P. 2d 1334, 1338 (1994) requires the closing judgment form in a civil action to contain the following terms : * The identification of the parties for and against whom the judgment is entered; * Rule 54 (b) , HRCP language if fewer than all claims involving multiple parties are being determined. If an appeal is taken from a "judgment" that does not contain these terms, the "judgment" will be deemed insufficient for appellate jurisdiction purposes . " [A]n appeal from any judgment will be dismissed as premature if the judgment does not, on its face, either resolve all claims against all parties or contain the finding necessary for certification under HRCP 54 (b) . " 2 A. THE RECORD AFTER REMAND The following ensured after remand in this instance. 1 . On May 20 , 2016 , the Appellee Windward Planning Commission submitted its form of judgment for entry, containing the Jenkins , language. (Exhibit "A" ) . The Court did not act on this form. 2 . On May 24 , 2016, the Applicant-Appellant Commu- nity Based Education Support Services submitted its competing form of judgment for entry. The dispositive language of its form states : Final Judgment is hereby entered in favor of Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII in the above entitled administrative appeal. That there being no further claims by or on behalf of the parties in this administrative agency appeal and there being no just reasons for delay, this shall be a Final judgment as to Applicant-Applicants, CBESS and Connections and Appellee, Windward Planning Commission, County of Hawaii ... (emphasis added) (a) The name of the Intervenor-Appellee JEFFREY K. GOMES is not set forth in this form as being one of the prevailing parties in whose favor judgment is entered. Being aligned with the Appellee Windward Planning Commission, he is a prevailing party in the agency appeal and judgment must be entered in favor of Intervenor-Appellee Jeffrey K. Gomes as well as in favor of the Appellee Windward Planning Commission. 3 (b) Further, the form does not contain language that clearly states against whom judgment is entered, i . e. , against both of the Applicant-Appellees , Community Based Education Support Services and Connections New Century Public School . The language proposed is that a judgment will apply "as to" both Applicant-Appellees, but does not say that the judgment is in their "favor" or "against" them. All that is stated is that the judgment applies "as to" them in some undefined manner. 3 . On May 31 ,E 2016, Intervenor-Appellee Jeffrey K. Gomes objected to the form of judgment that the Applicant- Appellant Community Based Education Support Services had filed herein (Exhibit "B" ) , pointing out the foregoing deficiencies . 4 . The Applicant-Appellee Connections New Century Public Charter School did not submit a form of judgment of its own. 5 . On September 12 and 15, 2016 , the Applicant- Appellant Community Based Education Support Services submitted additional forms of judgment . The form of judgment submitted on September 12 , 2016 and again on September 15, 2016 is nearly identical to the form it had submitted earlier on May 24 , 2016 and contain the same deficiencies and omissions . 6 . On October 7 , 2016 , the Applicant-Appellee Commu- nity Based Education Support Services filed yet another form of 4 judgment . The form once again is nearly identical to that which it had submitted previously on May 24 , 2016 . 7 . On October 26 , 2016 , the Court entered its "First Amended Final Judgment" (Exhibit "C" ) that contains the follow- ing language : Final Judgment is hereby entered in favor of Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII in the above entitled administrative appeal. That there being no further claims by or on behalf of the parties in this administrative agency appeal and there being no just reasons for delay, this shall be a Final Judgment as to Applicant-Appellees CBESS and Connections and Appellee, Windward Planning Commission, County of Hawaii .... (emphasis added) 8 . In short, the "First Amended Final Judgment" in question does not satisfy the requirements of the Jenkins decision. 10 . The Intermediate Court of Appeals will therefore reject any appeal that might be taken from the "First Amended Final Judgment" in question. 11 . This "defect" must be addressed since it affects all parties should any one of them pursue an appeal (or cross- appeal) from the Court 's decision in this agency appeal . 12 . Most importantly, the 30-day time period in which the Movant and Applicant-Appellee CONNECTIONS NEW CNETURY PUBLIC SCHOOL must file an appeal HAS NOT STARTED TO RUN and will not start to run until an appropriate judge form that meets the Jenkins requirement has been settled and entered. 5 B. ARGUMENT The Applicant-Appellant Connections New Century Public School should not waste the courts ' time by seeking leave to pursue an appeal from a defective "judgment, " which appeal will be rejected for lack of appellate jurisdiction. Rather than obtain an extension of time in which to pursue an appeal from a defective "judgment, " the Applicant-Appellant Connections New Century Public School should instead submit its own, properly worded form of a judgment for the Court to file herein as soon as possible. The Intervenor-Appellee Jeffrey K. Gomes will not object to the Applicant-Appellant Connections New Century Public School ' s request to do so at the December 22 , 2016 hearing; provided that it present a proper form of judgment to the parties for their review prior to the December 222 ,, 2016 hearing. Dated at Kailua-Kona, HI : December 2016 . JEFFREY GOMES, Intervenor-Appellee By— Michael Y Michael J. Matsukawa His Attorney 6 SJRCUIT CQUR; OF MOLLY A. STEBI3INTS 86391 Igo CIRCUIT Corporation Counsel SfA w", HAWAII DANNY 13. PATEL 9578 $016 MAY 20 PA Deputy Corporation Counsel County of I-Iawai'i 101 Aupuni Street, Suite 325CLERK L. MMEN Ililo, Hawai'i 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail-- danny.patel�hawaiicounty.gov Attorneys for Appel[cc WINDWARD PLANNING COMMISSION. COUNTY OF HAWAI'1 IN THF CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF I-TAWAI`I COMMUNITY BASED EDUCATION Civil No. 14-1-0223 S[1PPORT SERVICES; CONNEC'T'IONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCI TOOL, NOTICE OF SUBMISSION OF AMENDED Applicants-Appellants. FINAL .IUDGMENT; EXHIBIT "A CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, Appellee, and . .Il FI`REY GOMES, Intervenor, Intervenor-Appel lee. EXHIBIT NOTICE OF SUBMISSION OF AMENDED FINAL JUDGMENT TO: TED II.S. IIONG, ESQ. IIilo Lagoon Centre 101 Aupuni Strcet, PH 1002A Hilo, IIawai`i 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorncy for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL, MICHAEL. J. MATSUKAWA, ESQ. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor-Appellee JEFFREY GOMES Pursuant to the provisions of Rule 23 of the Rules of the Circuit Courts of the State of I-Iawai'i, YOU ARE I IEREBY NOTIFIED that the undersigned has prepared and submitted to the Court a proposed AMENDED FINAL JUDGMENT, a copy of which is attached hereto as I?xhibit "A." Pursuant to the provisions of said Rule, you have five (5) days from your receipt of this Notice to serve upon all parties and to mail or deliver to the Court a statement of your 2 objections to the AMENDED FINAL JUDGMENT and the reasons therefore, and a draft of'said judgment which you propose to substitute for that which is attached. Dated: IIilo, Hawaii, I 20 ZUtt . WINDWARD PLANNING COMMISSION. COUNTY OF IIAWAI'I -D TEL D arty Corp o ation Counsel A r Appellee a MOLLY A. STEBBINS 8639 Corporation Counsel DANNY B, PATEL 9578 Deputy Corporation Counsel County of Hawai`i 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: danny.pate[@hawaiicounty.gov Attomeys for Appellee WINDWARD PLANNING COMMISSION, COiINTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMI.TNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC C[[ARTER SCHOOL, AMENDED FINAL JUDGMENT Applicants-Appellants, vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI`1, Appellee, Judge: The Honorable Melvin II. Fujino and JEFFREY COMES, Intervenor, Intervenor-Appellee. Exhibit "A" AMENDED FINAL JUDGMENT Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES (`CBESS") filed its Notice of Appeal to Circuit Courl on June 9, 2014. On .tune 19, 2014, Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL ("Connections") filed Applicant-Appellant Connections New Century Puhlic Charter School's Notice Of' Appeal To Circuit Court And Joinder To Applicant-Appellant Community Based Education Support Services'Notice Of Appeal To Circuit Court, Filed June 9, 2014. The WINDWARD PLANNING COMMISSION ("Commission"), COUNTY OF HAWAII, and the DEPARTMENT OF PLANNING ("Department"), COUNTY OF HAWAII. were named Appellees. SANDRA SONG, in her capacity as Hearing Officcr; JEFFREY GOMIS, Intervenor; SIDNEY FUKE, Intervenor's Representative; and TFRFNCE T. YOSI IIOKA, Intervenor's Representative, were named Intervenor-Appellees. On September 22, 2014, the Order Granting Appellees Sidney Fuke And Terrence T. Yoshioka's Motion For Summary Judgment was entered, dismissing as parties to the appeal Sidney Fuke and Terrence T. Yoshioka, all claims against them, and ordering their names be removed from the cast caption. On the same date, the Judgment Pursuant To Order Granting Appellees Sidney Fuke And Terrence T. Yoshioka's Motion For Summary Judgmenl was entered pursuant to Rule 54(b) of the Hawaii Rules of Civil Procedure in favor of Appellees Sidney Fuke And Terrence T. Yoshioka and against CBESS and Connections on all claims. On September 22, 2014, the Order Granting Appellee Windward Planning Commission, County Of Hawai'i, And Intervenor-Appellee Sandra Song's Motion To Dismiss Filed On July i. 2014 ("Song Order") was entered, dismissing all claims against Sandra Song. No separate judgment on said order was entered. 2 On September 22, 2014, the Order Granting Appellee Department Of Planning, County Of Llawai'i's Motion To Dismiss Filed On June 27, 2014 ("Department Order") was entered, dismissing all claims against the Department. No separate judgment on said order was entered. On February 5, 2015, the Order Denying Intervenor-Appellee Jeffrey K. Games' Motion (1) To Strike Notice Of Appeal And Joinder Filed By Connections New Century Public Charter School (Filed June 19, 2014) (2) To Dismiss Said Notice Of Appeal And (3) For Summary Judgment Against Connections New Century Public Charter School On Its Notice Of Appeal (Filed June 19, 2014), Filed December 1. 2014, And To Amend Caption was entered, ordering the case caption be amended to add Connections as an Applicant-Appellant, and to remove Sandra Song, the Department. Sidney Fuke, and Terrence T. Yoshioka as Appellees. On July 14, 2015, the Decision And Order Affirming Windward Planning Commission, County Of flaivai'i's Findings Of Fact, Conclusions Of Law And Decision And Order Deriving Special Permit Application No. SPP 12-138 ("Order Affirming") was entered, affirming the decision of the Commission and dismissing the appeals taken by CBESS and Connections. On the same date, the Final Judgment was entered in favor of Appellee Commission and Intervenor- Appellee Jeffrey Gomes, and against Applicants-Appellants CBESS and Connections on all claims. Therefore, pursuant to Rule 58 of the Hawaii Rules of Civil Procedure, IT IS HEREBY ORDERED, ADJUDGED AND DECREED: 1. Pursuant to the Song Order, FINAL JUDGMENT is entered in FAVOR of Intervenor-Appellee Sandra Song, and AGAINST Applicants-Appellants CBESS and Connections on all claims. 3 2. Pursuant to the Department Order, FINAL JUDGMENT is entered in FAVOR of' Appellee Department, and AGAINST Applicants-Appellants CBESS and Connections on all claims. 3. Pursuant to the Order Affirming, FINAL JUDGMENT is entered in FAVOR of Appellee Commission and Intervenor-Appellee Jeffrey Gomes, and AGAINST Applicants- Appellants CBESS and Connections on all claims. 4. All other claims, counterclaims, and cross-claims are dismissed. DATED: Kealakekua, Hawaii, JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: "IED H.S.IJONG, ESQ. Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SII], ESQ. Attorney for Applicant-Appellant CONNECTIONS NEW CENhURY PUBLIC CHARTER SCHOOL MICHAEL J. MATSUKAWA, ESQ. Attorney for Intervenor-Appellee JEFFREY DOMES Community Based Education Support Services, et al. v. Windward Planning Commission, County of Hawaii, et al., Civ. No. 1.4-1-0223 (Agency Appeal); AMENDED FINAL .IIIDGMENT 4 1 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF IIAWAI`I COMMUNITY BASED EDUCATION CiviI No. 14-I-0223 SUPPORT SERVICES; CONNECTIONS (Ageney Appeal) NEW CI-NTLIRY PUBLIC CHARTER SCI I001'. CERTIFICATE OF SERVICE Applieants-Appetlants, vs. WINDWARD PLANNING COMMISSION, COUNTY Oh' HAWAII, Appellee, and ,IIEFFRh,Y GOMES, Intervenor, Intervenor-Appel lcc. CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing doeurneni v,a.s served upon the parties below at their respective addresses in the rnanner indicated on May 20, 2016. Hand delivery TED H.S. HONG, ESQ. Hilo Lagoon Centre I01 Aupuni Street, PH I002A Ifilo, Ilawai`i 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES U.S. Mail,posfe. e prepaid CARTER K. SIU, ESQ. Deputy Attorney General, State of Hawaii 235 South Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOI, U.S. MaiJzpostaue prepaid M1Ci iAEL J. MATSUKAWA, ESQ. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for intervenor-Appellee JEFFREY DOMES Dated: Hilo, l lawai-i, EL Det rporation Counsel 2 FLED MICHAEL J. MATSUKAWA, 1885-0 1816 MAX 31 PM 3= 05 Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 H�i�+ �ETTA � Ok�G,CLRiS Telephone No . : (808) 329-1385 Attorney for Intervenor-Appellee JEFFREY K. GOMES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO . 14-1-0223 SUPPORT SERVICES (CBESS) and } (Agency Appeal) CONNECTIONS NEW CENTURY PUBLIC ) CHARTER SCHOOL, ) INTERVENOR-APPELLEE JEFFREY K. Applicants-Appellants, ) GOMES' OBJECTIONS TO FORM OF JUDGMENT FILED BY APPLICANT- vs . } APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES WINDWARD PLANNING COMMISSION, ) (CBESS) ON MAY 24 , 2016 ; COUNTY OF HAWAII; DEPARTMENT OF ) CERTIFICATE OF SERVICE PLANNING, COUNTY OF HAWAII, ) ) Appellees, ) ) and ) } JEFFREY GOMES, } JUDGE : HON. M. FUJINO Intervenor-Appellee . ) 053116.1\j-games�judgment.obj INTERVENOR-APPELLEE JEFFREY K. GOMES' OBJECTIONS TO FORM OF JUDGMENT FILED BY APPLICANT-APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES (CBESS) ON MAY 24 , 2016 The Court should deny the form of Judgment presented by Applicant-Appellant Community Based Education Support Services (CBESS) because : I . It contains unnecessary references to the pleadings (e .g. , Pages 1 to 2 , first four paragraphs) ; 11 1 Cm 0 4 2 . It contains editorial language not perti- nent to the adjudication (e .g. , Page 3 regarding the County' s failure to obtain judgment against Ms . Song and the Planning Department) ; and 3 . It fails to state at Page 4 the names of all persons in whose favor judgment is entered (e .g. , Ms . Song and the Planning Department are omitted) and acrainst whom judgment is entered (e .g. , the Appellants) . DATED : Kailua-Kona, Hawaii, May 31, 2016 . JEFFREY K. GOMES, Intervenor- Appellee By: MICHAEL J. MATSUKAWA His Attorney 2 r IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO . 14-1-0223 SUPPORT SERVICES (CBESS) and ) (Agency Appeal) CONNECTIONS NEW CENTURY PUBLIC ) SCHOOL, ) } CERTIFICATE OF SERVICE Applicants-Appellants, ) } vs . ) ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII; DEPARTMENT OF ) PLANNING, COUNTY OF HAWAII, } ) Appellees, ) and ) } JEFFREY GOMES, } Intervenor-Appellee . ) } CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a copy of the foregoing document (s) was duly served upon the following parties via the U. S . Post Office, Kailua-Kona, Hawaii, postage prepaid, addressed as follows : TED H.S . HONG, ESQ. P.O. Box 4217 Hilo, Hawaii 96720 Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES CARTER K. SIU, ESQ. Deputy Attorney General 235 So. Beretania Street, Room 304 Honolulu, Hawaii 96813 Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL y AMY SELF, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 32S Hilo, Hawaii 96720 Attorney for COUNTY OF HAWAII PLANNING DIRECTOR LAUREEN L. MARTIN, ESQ. DANNY B . PATEL, ESQ. 101 Aupuni Street, Suite 32S Hilo, Hawaii 96720 Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII DATED: Kailua-Kona, Hawaii, May 31, 2016 . JEFFREY K. GOMES, Intervenor- Appellee By: 7>4; MICHAEL J. MATSUKAWA His Attorney 2 FILED TF.0 H. S. HONG 3569 Attorney at I,a`� �15 OCT �� �h 8. 32 P. O. Box 4217 Hilo, HI 96720 Telephone No. 808.933.1919 rh�'"'QLGLr+nTrl Facsimile No. 808.935.8281 Sr ted'c tedhonglaw.com Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCt11T CO[IRT OF THE THIRD C'IRCIJIT STATE OF HAWAII COMMt LAITY BASED EDUCATION ) CIVIL NO. I4-1-0223 MHF SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant, ) FIRST AMENDIA) FINAL JUDGMENT vs. ) ) WINDWARD PLANNING COMMISSION,) COUNTY OF HAWAII; DEPARTMEN'l ) OF PLANNING, COUNTY OF HAWAII. ) Appellees, } and ) } JEFFREY DOMES, Intervenor, ) } JUDGE: Hon. MELVIN H. FUJ1NO Intervenor-Appellee. } FIRST AMENDED FINAL JUDGMENT On or about May 19, 2014, the Appellee Windward Planning Commission submitted its Findings of Fact, Conclusions of Land and Decision and Order. CROA: 4300-4315. On or about June 9, 2014, Applicant-Appellant, COMMUNITY BASED EDUCATION SUPPORT SERVICES, (hereinafter referred to as "Appellant CBESS"). timely filed its Notice 1 ^c{f'bV^.a�tifl`ha,Chic!c r,ful! true ana corfeCCl EXII1iSI4 1 V Opp ofil1E��)EI. Ic�i!}r ilelr<<nl�Ace CIO* of Appeal to the Third Circuit Court. State of Ha"aii, pursuant to Rule 72 of the Hawaii Rubs of Civil Procedure (hereinafter referred to as "1-IRC'1vP"), and Sections 91-14 and 91-15, Ha«aii Revised Statutes. (hereinafter referred to as 1IRS"). In its Notice of Appeal, Appellant C BESS named as appellees the following interested individuals: SANDRA SONG, in her capacity as Hearing Officer: JFFFREY DOMES. Intervenor-, SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA, Intervenor's Respresentative; who each actively participated in the administrative agency, hearings, pursuant to Rule 19(a) and (b), HRCivP, and were indispensable parties to the administrative agency appeal. On or about June 9, 2014, Applicant-Appellant, CONNI?CTIONS NFW CENTURY PUBLIC CHARTER SCHOOL (hereinafter referred to as "Appellant Connections") Filed its Notice of Appeal to the Circuit Court and Joinder to Applicant-Appellant. Community Based L;ducatiorn Support Services' Notice of Appeal to the Circuit Court, Filed on June 9, 2014. On or about September 22, 2014, the Third Circuit Court dismissed SIDNEY FUKE„ Intervenor's Representative; and TFRRANCE YOSHIOKA, Intervenor's Respresentative as appellees in the present case, including an}' and all claims against them and ordered that the caption be amended to have their names removed. There are no remaining claims against SIDNEY FUKE, Intervenor's Representative; and TF.RRANCL YOSHIOKA. Intervenor's Respresentative. Jenkins v. C'ades Schutte Fleming & U right, 76 1lawai`i 1 I 5, 869 P.2d 1334 (1994). On or about September 22, 2014, pursuant to Rule 54(b), HRCivP,the Third Circuit Court entered judgment in favor of SIDNEY FUKE, Intervenor's Representative-, and 2 TFIRP—i�NCF YOSHIOKA. Intervenor's Respresentative against Appellant ('BF-'SS and Appellant Connections. There are no remaining claims against SIDNI�Y FUKE, Intervenor's Representative, and TI,RRANC'I`. YOSIIIOKA, Intervenor's Representative. Jenkins 1'. C'ades Schutte Fleming & IT right, 76 Hassai'i 115, 869 P.2d 1334 (1994). On or about September 22, 2014, the Third Circuit Court dismissed SANDRA SONG, in her capacity as Hearing Officer, as an appellee to the present case. Thcre arc no remaining claims against SANDRA SONG, in her capacity as Hearing Officer. Jenkins v. Caines Schutle Fleming& Wright, 76 Hmkai'i l l 5, 869 P.2d 1334 (1994). The Appellee. WINDWARD PI.ANNIN(i COMMISSION, COUNTY OF HAWAII, failed to submit a judgment for the Third Circuit C'ourt's approval and filing concerning the dismissal of SANDRA SONG, in her capacity as Hearing Officer. On or about September 22, 2014, the Third Circuit Court dismissed Appellee, DF.PAR1 MFN I OF PLANNING, COUNTY OF HAWAII, as an appellee in the present case. The Appellee, DEPARTMENT OF PLANNING, COUNTY OI` HAWAII, failed to submit a judgment for the Third Circuit Court's approval and filing concerning the dismissal of Appellee. DEPARTMENT OF PLANNING, COUNTY OF HAWAII from the present case. On or about July 14, 2015. the Third Circuit Court issued its Decision and Order Affirming Windward Planning Commission, County of I lawaii's Findings of Fact, Conclusions of Law and Decision and Order Denying Special Permit Application No. SPP 12-1 i8 (ARA: Part 1, 1463-1467). IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, pursuant to Rule 72(k) of the Hawaii Rules of Civil Procedure: Final Judgment is hercby entered in fa`or of Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII. in the above entitled administrative agency appeal. Chat there being no further claims by or on behalf of the parties in this administrative agency appeal and there being no just reasons for delay, this shall be a Final Judgment as to Applicant-Appellants. CBESS and Connections and Appellee. Windward Planning Commission. County of Hawaii, pursuant to Rule 72(k), HR('ivP, and Sec. 91-15, IIRS. There are no other remaining claims or parties in this matter and all other remaining claims are hereby dismissed with prejudice. Jenkins v. Cades Schutte F7etninK & ii'right, 76 Hawaii 115, 869 P.2d 1334 (1994). DA 11:1): Kealakekua_ Hawaii, -,OCT IVIcLVIN H. FUJINO (SEAL) JUDGII, OF TIIF ABOVE-ENTITLED COUR"1- Community Based Education Support Services and Connections New Century Public Charter School v. Windward Planning Commission, County of Hawaii, and Jeffrey Gomes, Intervenor- Appellee, CIVIL NO. 14-1-0223 MHF (Agency Appeal), FIRST AMENDED FINAL JUDGMENT. 4 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION SUPPORT ) CIVIL NO, 14-1-0223 SERVICES, ) (Agency Appeal) ) Applicant-Appellant, ) VS . ) ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII , ) CERTIFICATE OF SERVICE ) Appellee, ) and ) ) JEFFREY GOMES, ) } Intervenor-Appellee, ) ) AND RELATED APPEAL } } CERTIFICATE OF SERVICE I CERTIFY that a copy of the foregoing Response and Exhibits were served upon the following persons by mail, postage prepaid, deposited with the United States Postal Service on December 9 , 2016 addressed as follows : GREGG M. USHIRODA TED H. S. HONG HOLLY K. SHIKADA P.O. Box 4217 Dept of Attorney General Hilo, Hawaii 96720 State of Hawaii Attorney for CBESS 235 South Beretania St . Room 304 Honolulu, Hawaii 96813 Attorney for CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL ANGELIC M. HO Deputy Corporation Counsel County of Hawaii 101 Aupuni Street, #325 Hilo, Hawaii 96720 Attorney for WINDWARD PLANNING COMMISSION Dated at Kailua-Kona, HI : December 9 , 2016 . MICHAEL J. MATSUKAWA I . ' 1 ORIGINAL TED H.S. HONG, #3569 Attorney At Law r 101 Aupuni Street, PH 1002A 21:11G G-EC 13 H �� 4 P.O. Box 4217 Hilo, Hawaii 96720 y C� Telephone: 808933.1919 l.• ^ '',� °,fir Facsimile: 808.935.8281 ,LE IRK _ — Ted@Tedhonglaw.com Attorney for Plaintiff COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 SUPPORT SERVICES (CBESS), (Agency Appeal) Appellant, APPLICANTS-APPELLANTS COMMUNITY vs. BASED EDUCATION SUPPORT SERVICES' STATEMENT OF NO POSITION AND NON- WINDWARD PLANNING COMMISSION, APPEARANCE TO APPLICANT- COUNTY OF HAWAII; DEPARTMENT OF APPELLANT CONNECTIONS NEW PLANNING, COUNTY OF HAWAII, CENTURY PUBLIC CHARTER SCHOOL'S MOTION TO EXTEND DEADLINE TO FILE Appellees, NOTICE OF APPEAL FILED ON DECEMBER And 8, 2016; CERTIFICATE OF SERVICE JEFFREY COMES, Intervenor, HEARING: Date: December 22, 2016 Intervenor-Appellee. Time: 8:30 a.m. Judge: Honorable Melvin H. Fujino APPLICANTS-APPELLANTS COMMUNITY BASED EDUCATION SUPPORT SERVICES' STATEMENT OF NO POSITION AND NON-APPEARANCE TO APPLICANTS- APPELLANTS CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S MOTION TO EXTEND DEADLINE TO FILE NOTICE OF APPEAL FILED ON DECEMBER 8, 2016 Applicants-Appellants Community Based Education Support Services, by and through its undersigned attorney, respectfully submits its Statement of No Position and i Non-Appearance to Applicants-Appellants Connections New Century Public Charter School's Motion to Extend Deadline to File Notice of Appeal filed on December 8, 2016. DATED: Hilo, Hawaii, December 13, 2016. ed H.S. Hong, Esq. Attorney for Applicants-Appellants COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 TED H.S. HONG, #3569 Attorney At Law 101 Aupuni Street, PH 1002A P.O. Box 4217 Hilo, Hawaii 96720 Telephone: 808-933-1919 Facsimile: 808-935-8281 Tedna Tedhonglaw.com Attorney for Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES (CBESS), Appellant, CERTIFICATE OF SERVICE vs. WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII; DEPARTMENT OF PLANNING, COUNTY OF HAWAII, Appellees, and JEFFREY GOMES, Intervenor, JUDGE: HON. MELVIN H. FUJINO Intervenor-Appellee. CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the Statement of No Position and Non-Appearance, was duly served on the following parties in this action, by US Mail on December I3, 20I6: AMY G. SELF, ESQ. Deputy Corporation Counsel 101 Aupum Street, Suite 325 Hilo, Hawaii 96720 Email: aself@co.hawaii.hi.us 1 Attorney for Appellee COUNTY OF HAWAII PLANNING DIRECTOR ANGELIC M. HO, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Email: malia.ho@hawaiicounty.gov Attorney for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII MICHAEL J. MATSUKAWA, ESQ. 75-575I Kuakini Hwy., Ste. 20I Kailua-Kona, HI 96740 Email: kapulu@msn.com Attorney for Intervenor- Appellee JEFFREY K. GOMES GREGG M. USHIRODA, ESQ. Deputy Attorney General State of Hawaii 235 S. Beretania Street, Rm, 304 Honolulu, Hawaii 96813 Email: Gregg.M.Ushiroda@hawaii.gov Attorney for Interested Party CONNECTIONS NEW CENTURY CHARTER SCHOOL DATED: Hilo, Hawaii, December 13, 2016. TED H. S. HON .,XSQ. Attorney at Law Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 2 ORIGINAL. a FIL`0 DOUGLAS S. CHIN 6465 Attorney General (; State of Hawai'i L GREGG M. USHIRODA 586$ HOLLY T. SHIKADA 4017 Deputy Attorneys General 235 S. Beretania Street, Room 304 Honolulu, Hawai'i 96$13 Phone: (808) 586-1255 Facsimile: (808) 586-1488 Attorneys for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL IN THE CIRCUIT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES; CONNECTIONS NEW CENTURY PUBLIC CHARTER ORDER GRANTING APPLICANT- SCHOOL, APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S Applicants-Appellants, MOTION TO EXTEND DEADLINE TO FILE NOTICE OF APPEAL FILED DECEMBER 8, vs. 2016 WINDWARD PLANNING HEARING: COMMISSION, COUNTY OF HAWAII, Date: December 22, 2016 Appellee, Time: 8:30 a.m. Judge: Hon. Melvin H. Fujino And JEFFREY GOMES, Intervenor, Intervenor-Appellee. ORDER GRANTING APPLICANT-APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S MOTION TO EXTEND DEADLINE TO FILE NOTICE OF APPEAL FILED DECEMBER S, 2016 Applicant-Appellant Connections New Century Public Charter School's Motion To Extend Deadline To File Notice of Appeal having been filed on December 8, 2016, and said Motion having come on for hearing on December 22, 2016 at 8:30 a.m. before the Honorable Melvin H. Fujino, with Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL being represented by Deputy Attorneys General Holly T. Shikada and Gregg M. Ushiroda, Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'1 being represented by Deputy Corporation Counsel Angelic M. Ho, and Intervenor- Appelle JEFFREY K. GOMES being represented by Michael J. Matsukawa, Esq., and no other counsel having appeared; and the Court having reviewed and considered said Motion, the memorandum, declarations and exhibits filed in connection therewith, and the entire records and files herein, and being fully advised in the premises; now therefore; IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Applicant-Appellant Connections New Century Public Charter School's Motion To Extend Deadline To File Notice of Appeal be and hereby is GRANTED, DATED: Kealakekua, Hawai'i, JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: Al— AKGELIC M. HO Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII i„ MICHAEL J. MATSUKAWA Attorney for Intervenor-Appellee JEFFREY K. GOMES Community Based Education Support Services and Connections New Century Public Charter School v. Windward Planning Commission, County of Hawaii, and Jeffrey Gomes. Intervenor- Appellee, CIVIL NO. 14-I-0223 MHF (Agency Appeal), ORDER GRANTING APPLICANT-APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S MOTION TO EXTEND DEADLINE TO FILE NOTICE OF APPEAL. DOUGLAS S. CHIN 6465 Attorney General State of Hawaii Electronically Filed Intermediate Court of Appeals GREGG M. USHIRODA 5868 CAAP-16-0000879 HOLLY T. SHIKADA 4017 23-DEC-2016 Deputy Attorneys General 01:33 PM 235 S. Beretania Street, Room 304 Honolulu, Hawai'i 96813 Phone: (808) 586-1255 --+r- Facsimile: (808) 586-1488 rri Attorneys for Applicant-Appellant 17, W r CONNECTIONS NEW CENTURY -v PUBLIC CHARTER SCHOOL =,x IN THE CIRCUIT COURT OF THE THIRD CIRCUIT m STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES; CONNECTIONS ) (Agency Appeal) NEW CENTURY PUBLIC CHARTER ) SCHOOL, ) NOTICE OF APPEAL; EXHIBITS "A" — "C"; Applicants-Appellants, ) CERTIFICATE OF SERVICE vs. ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII, ) Appellee, ) and ) JEFFREY COMES, Intervenor; } Intervenor-Appellee. ) NOTICE OF APPEAL NOTICE IS HEREBY GIVEN that Applicant-Appellant, Connections New Century Public Charter School ("Connections"), by and through its undersigned counsel Gregg M. 673865_1 _r Ushiroda, Deputy Attorney General, pursuant to Sections 91-14, 91-15, 602-57, 641-1(a) of the Hawai'i Revised Statutes and Rules 3 and 4, Hawai'i Rules of Appellate Procedure, appeals to the Intermediate Court of Appeals of the State of Hawaii from the: (1) Decision and Order Affirming Windward Planning Commission, County of HawaiTs Findings of Fact, Conclusions of Law and Decision and Order Denying Special Permit Application No. SPP 12-138, a copy of which is attached as Exhibit "A;" and (2) First Amended Final Judgment filed on October 26, 2016, a copy of which is attached as Exhibit "B." This appeal is timely pursuant to the Order Granting Applicant-Appellant Connections New Century Public Charter School's Motion To Extend Deadline To File Notice of Appeal Filed December 8, 2016, a copy of which is attached as Exhibit "C." DATED: Honolulu,Hawaii, December 23, 2016. a` GREGG M. USHIRODA Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 2 673865_1 1 FILLED Electronically Filed IMOLLY A. STEBBINS 8639 Intermediate Court of Appeals Corporation Counsel 16-NOV-2016 4 PM 2: 34 16-NOV-2016 11:14 AM DANNY B. PATEL 9578 Deputy Corporation Counsel County of flawai'i 101 Aupuni Sheet, Suite 325 Hilo, Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: danny.patel@ha.waiicounty.gov Attorneys for Appellee WINDWARD PLANNING COMMISSION, COINNTY OFITAWAI'I IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMNIUNITY BASED EDUCA11ON Civil No. 14-1-0223 SL-TPORT SF.,RVICES; CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER � SCHOOL, DECISION AND ORDER Applicants-Appellants, AFFTR.MING WINDWARD PLANNnN : COMMISSION, COUNTY ds. OF HAWAI`I'S 11-INDUNGS OF FACT, CONCLUSIONS OF LAW AND W I!NMWARD P1,,4NNTNC1 CO."ISSION, DECISION AND ORDER DENYING COUNTY OF HAWAII, SPECIAL PERMIT APPLICATION NO. SPP 12-138 Appellee, and JEFFREY GOMES, InLerGenor, Hearin Interrrenor-Appellee. Date: May 29, 2015 Time: 9:00 a.m. Judge: The Honorable Melvin If. Fujino hero copy Ot'!teOrrUjqa1�j� ,+;`-jr; EXHIBIT A 1,70 GtBrk'T Cirur4n.rhar DECISION AND ORDER AFFIR.1fflNG WL4DWA W PLANNING CONUMSSION, COUNT' OF TI.AWAI`I'S T41NDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DE14'MG SPECLLL PER RT APPLICATION NO. SPP 12-138 Applicants-Appellants Community Rased Education Support Services ("CRESS-) and Connections New Century Public Charter School ("Connections") (collectively, "Appellants") appeal from the Windward Planning Commission, County of Hawai`i's ("Commission") decision denying Appellant's Special Permit Application No. SPP 12-I38 entered May 1, 2014 ("Decision") and Findings of Fact, Conclusions of law and Decision and Order entered May 19, 20 14 ("D&0'�. came on for oral argument on May 29, 2015 at 9:00 a.m. before the 11onorablc 14clvin H. Fujino, Ted H.S. Hong, Esq,, appeared on behalf of CBESS, Carter K_ Sim, Esq., appeared on behalf of Connections, Danny B. Patel, Esq., appeared on behalf of Commission, and Michael 1. Matsukawa, Esq., appeared on behalf of the Intervenor-Appellee; Jeffrey Gomes ("Gornes") The Court, having reviewed the briefs and appendices submitted by the parties, the record on appeal, at-id Craving considered the arguments of the parties' counsel, enters the following Decision and Order: DECISION 1. The Court finds the Applicants were allowed five public hearings and five days of contcsted case proceedings, within which to meet their burden to establish the Application met the criteria required for a Special Permit, The Commission denied the Application_ 2. Tbe, CDurr'; seviCW of the Comrni sion's Decision and D&.O is qualified by the principle that an agency's decision curries a presumption of validity and appOian.ts have the hcavy burden of :Haling a convincing showing that the decision is invalid because it is u-ijust and unreasonable in its consequences. 2 3, In revi_wing an agency appeal, the Court applies the standards set forth in Hawaii Revistid Statutes ("HRS") § 91-14(g), 4, Conclusions of law are reviewable under HRS § 91.-14(g),subsections(1), (2), and(4). The Commission's Decision and D&O do not violate relevant constitutional or statutory provisions,are not in excess of statutory authority or jurisdiction, and are not affected by other error of law. 5. Findings of fact are reviewable twder HRS § 91-14(g), subsection (5). In view of the reliable, probative, and substantial evidence on the whole of the record, the Commission's I)ecisron and D&O are not clearly erroneous. G. Mixed questions of law and fact are reviewable under HRS § 91-14(g), subscction (6). The Commission's Decision and D&O are not arbitrary,or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. T The County Charter,County of Hawaii, explicitly authorizes the Commission to consider the County of Hawaii General Plan when determining special permit applications. ORDER Pursuant to the above Decision, it is hereby ORDF,RED,ADJUDGED, and DFCRFED: 1. The Commission's Decision and D&O are AFFIRMED and the appeals taken by CBFSS and Connections are dismissed; 2. CRESS' request for attorney's fees and costs are DENIED, 3. CRESS' request that the Court admonish and recommend the County to remove the Commissioners who voted against the Appellant's application as unfit to serve on public commissions and boards because thcy violated their legal duty is DENIED; and 3 4. FINAL, JUDGMENT shall be entered in favor of the Appellee Commission and intervenor-Appellee (-aaones, and against Applicants--Appellants CRESS and Connections, an all claims in this action. DATED.- Kealakckua, JUDGE OF THE;ABOVE-E.:NTITLED COURT >M1 TC.i DORM:�, -SQ, p{ica pellsnt E3ASED 1CATIUN SUPPORT SERVICES CAR I ERK. SIU, ESQ, - Attorney for Applicant-Appellant CONNECTIONS NL W CENTURY PUBLIC CHARTER SCHOOL. Community Base,.! l Lhicouon Supped Services el a1. v. Windward Planning Commrs,sion, County of Hawoii, et (d_Civ.No. 14-1-0223 (Agency Appeal); DECISION AND ORDER AFFIRMING WENDWARD PLANNING COMMISSION, COUNTY OF HAWAI`I'S FTNDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DE"iYING SPECIAL PER111T A PLICATION NO, SPP 12-138 ,E MICHAEL J. MATSUKAWA, ESQ. Attorney for Intervenor-Appellee JEFFREY GOME;S Community Based Education Support Services, et al, v. Windward Planning Commission, County of Hawaii, et al., Civ.No. 14-1-0223 (Agency Appeal);DECISIC}N AND ORDER AFFIRMING WINDWARD PLANN[NG COMMISSION, COUNTY OF HAWAVI`S FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER DFNY[TIG SPECIAL PERMIT APPLICATION NO. SPP 12-138 a r FILED I F.D 1I. S. HONG 3>69 Altame% at [.a%% ElectronicallyAW 26 AH 8: 32 P. O. Bos 4217 Intermediate Court of Appeals Hilo, H1 96720 CAAP-1$-00�VrCHDYr.OLERR Telephone No. 808.93-31,1919 16-NOV-201GHR� i'��tfT COURT Facsimile No. 808.935.8281 11:14 AM STATE PF R,iWAl1 ted u tedhonglaw.com Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES IN THE CIRCUIT COURT OF THE THIRD CIRCUIT SFAIT OF HAWAII COMMUNTfY BASED EDUCATION } CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES ) (Agency Appeal) Applicant-Appellant. ) FIRST AMENDED riNAL JUDGMENT vs. } } WINDWARD PLANNING COMMISSION.) COUNTY OF HAWAII-, DEPARTMEN I ) OF PLANNING.COUNTY OF HAWAII. ) Appellees, } and ) JEFFREY GOMES. Intervenor; ) JUDGE: Hon. MELVIN IJ. FUJINO Intervenor-Appellee. ) FIRST AMENDED FINAL JUDGMENT On or about May 19, 2014, the Appellee Windward Planning Commission submitted its Findings of Fact, Conclusions of Land and Decision and Order. CROA:4300-4315. On or about June 9, 2014, Applicant-Appellant,COMMUNITY BASED EDUCATION SUPPORT SERVICES, (hereinafter referred to as"Appellant CBESS"),timely Bled its Notice t Hereby~ r#i#y# �I this is a ala irate and corWt rppyofrn g�na��� rilE,r��tais alt . EXHIBIT B MAO 1�rr�,++rm� of Appeal to the -I hird Circuit Court. State of Hati%ait. pursuant to Rule 72 of the I la%%aii Rules of Ckil Procedure (hereinafter referred to as "I IRCivP"). and Sections 91-I 4 and 91-15. Hassaii Revised Statutes, (hereinafter referred to as "HRS"). In its Notice of Appeal, Appellant CBESS named as appellees the following interested individuals: SANDRA SONG, in her capacity as Hearing Officer;JEFFREY GOMES, Intervenor, SIDNEY FUKE, Intervenor's Representative, and TERRANCE YOSHIOKA, Intervenor's Respresentative; who each actively participated in the administrative agency hearings, pursuant to Rule 19(a)and (b), l IRCivP,and were indispensable parties to the administrative agency appeal. On or about June 9. 2014, Applicant-Appellant,CONNECTIONS NF.W CVNTURY PUBLIC CI TARTER SCHOOL (hereinafter referred to as "Appellant Connections") filed its Notice of Appeal to the Circuit Court and Joinder to Applicant-Appellant, Community Based Liducation Support Services' Notice of Appeal to the Circuit Court. filed on June 9. 2014. On or about September 22, 2014, the Third Circuit Court dismissed SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA, Intervenor's Respresentative as appellees in the present case, including any and all claims against them and ordered that the caption be amended to have their names removed. There are no remaining claims against SIDNEY FUKE, Intervenor's Representative; and TERRANCE YOSHIOKA. Intervenor"s Respresentalive. Ankins r. Ordes,Schune Fleming$ Wright, 76 Hawaii 115, 869 P.2d 1334 (199}). On or about September 22,2014, pursuant to Rule 54(b), HRCivP, the Third Circuit Court entered judgment in favor of SIDNEY FUKE, Intervenor's Representative; and 2 T1=KftANC1 YOSI IIOKA. fntervennr's RespresentatiNe a�:ainst Appellatiit CBE S and Appellant Connections. There are no remaining claims against SIDNEY FIJKL Intervenor's Representative; and TERRANCE YOSI IIOKA, IntervenoCs Representative. .1enkin.s v Cadev .Scl rmu Fleming &l Wright, 76 Hawaii 115. 869 P,2d 1334 (1994). On or about September 22, 7014. the Third Circuit Court dismissed SANDRA SONG, in her capacity as I searing Officer,as an appellee to the present case. There are no remaining claims against SANDRA SONG, in her capacity as Hearing Officer. Ankins v. C'adei 5chotic Fleming X Wright, 76 Hawaii 115, 969 P.2d 1334 (19941. The Appellee, WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII, failed to submit a judgment for the 1 bird Circuit Court's approval and filing conccming the dismissal of SANDRA SONG. in her capacity as Hearing Officer. On or abort September 22, 2014, the Third Circuit Court dismissed Appcllce. DF'PAR'l ML-NT OF PLANNING. COUNTY OFIAWAII. as an appellee in the present case The Appellee, DEPARTMENT OF PLANNING, COUNTY OF HAWAII, failed to submit a judgment for theThird Circuit CourCs approval and filing concerning the dismissal of Appellee. DEPARTMENT OF PLANNING, COUNTY OF HAWAII from the present case. On or about July 14, 2015, the Third Circuit Court issued its Decision and Order Affirming Windward Planning Commission,County of Hawaii's Findings of Fact, Conclusions of Law and Decision and Order Denying Special Permit Application No. SPP 17-138 (ARA: fart 1, 1463-1467), IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, pursuant to Rule 72(k)of the Hawai`i Rules of Civil Procedure: 3 1"final Judgment is hereby entered in favor of Appellee WrNDWARD PLANNING COMMISSION. COUNTY OF HAWAII. in the above entitled administratite agency appeal That there being no further claims by or on behalf of the parties in this administrative agency appeal and there being no Just reasons for delay, this shall be a Final Judgment as to Applicant-Appellants. CRESS and Connections and Appellee, Windward Planning Commission, County of Hawaii, pursuant to Rule 72(k). HRCivP, and Sec. 91-15, HRS. There arc no other remaining claims or parties in this matter and all other remaining claims are hereby dismissed %,61h prejudice. .1enkhts r. Catles,5chune Fleming & ff'right. 76 Hawaii 1 15, 869 P.2d 1334 (1994). DAI FD: Kcalakckua, Hawaii. OCT 19 2014 MELVIN H. FUJINO (SEAL) JUDCI- Ol= THF ABOVE-ENTITLED COUR'l Community Based Education Support Services and Connections New Century Public Charter School v. Windward Planning Commission, County of Hawaii, and Jeffrey Gomes, Intervenor- Appellee,CIVIL NO. 14-1-0223 MHF(Agency Appeal), FIRST AMENDED FINAL JUDGMENT. 4 FILED DOUGLAS S. CHIN 6465 Attorney General 2W DEC 22 AN 8: 56 State of Hawai'i GREGG M. USHIRODA 5868 ENJOLI BENNEIT,Ler HOLLY T. SHIKADA 4017 Deputy Attorneys General 235 S. Beretania Street, Room 304 Honolulu, Hawaii 96813 Phone: (808)586-1255 Facsimile: (808) 586-1488 Attorneys for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL IN THE CIRCUIT OF THE THIRD CIRCUIT STATE OF HAWAIA COMMUNITY BASED EDUCATION CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES;CONNECTIONS NEW CENTURY PUBLIC CHARTER ORDER GRANTING APPLICANT- SCHOOL, APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S Applicants-Appellants, MOTION TO EXTEND DEADLINE TO FILE NOTICE OF APPEAL FILED DECEMBER 8, VS. 2016 WINDWARD PLANNING HEARING: COMMISSION,COUNTY OF HAWAI'l, Date: December 22, 2016 Appellee, Time: 8:30 a.m. Judge: Hon. Melvin H. Fujino And JEFFREY GOMES, Intervenor, 0rjredy ccrtq inai this is a full,true and correct Intervenor-Appellee. copy of the original on file in tNs office. Mi.li w amm Court,stow of Ha+nw ORDER GRANTING APPLICANT-APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S MOTION TO EXTEND DEADLINE TO FILE NOTICE OF APPEAL FILED DECEMBER 8, 2016 EXHIBIT C Ai)plicant-Appellant Connections New Century Public Charter School's Motion To Extend Deadline To File Notice of Appeal having been Fled on December 8, 2016,and said Motion having come on for hearing on December 22, 2016 at 8:30 a-m. before the Honorable Melvin H. Fujino, with Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL being represented by Deputy Attorneys General Holly T. Shikada and Gregg M. Ushiroda, Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAM being represented by Deputy Corporation Counsel Angelic M. Ho, and Intervenor- Appelle JEFFREY K. GOMES being represented by Michael J. Matsukawa, Esq., and no other counsel having appeared; and the Court having reviewed and considered said Motion, the memorandum,declarations and exhibits Filed in connection therewith, and the entire records and tiles herein, and being fully advised in the premises; now therefore; IT 1S HEREBY ORDERED, ADJUDGED AND DECREED that Applicant-Appellant Connections New Century Public Charter School's Motion To Extend Deadline To File Notice of Appeal be and hereby is GRANTED. DATED: Kealakekua, Hawaii, MELVIN H. FLIBN4 (SEAL) JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: A GELIC M. HO Attorneys for Appellee WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII MICHAEL J. MATSUKAWA Attorney for Intervenor-Appellee JEFFREY K. GOMES Community Based Education Support Services and Connections New Century Public Charter School v. Windward Planning Commission, County of Hawaii, and Jeffrey Gomes, Intervenor- Appellee, CIVIL NO. 14»1-0223 MHF(Agency Appeal), ORDER GRANTING APPLICANT-APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL'S MOTION TO EXTEND DEADLINE TO FILE NOTICE OF APPEAL. IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION } CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES; CONNECTIONS } (Agency Appeal) NEW CENTURY PUBLIC CHARTER ) SCHOOL, } CERTIFICATE OF SERVICE } Applicants-Appellants, } } VS. } } WINDWARD PLANNING COMMISSION; } COUNTY OF HAWAII, ) } Appellees, ) } and ) JEFFREY GOMES, Intervenor; ) Intervenor-Appellee. ) } CERTIFICATE OF SERVICE I HEREBY CERTIFY that on December 23, 2016, pursuant to Rule 25(c) of the Hawaii Rules of Appellate Procedure, copies of the Notice of Appeal were served upon the following, either pursuant to Rule 6.1 of the Hawai'i Electronic Filing and Service Rules through the Judiciary Electronic Filing System (JEFS) or by conventional mail, by depositing the same in the United States mail, postage prepaid: TED H.S. HONG,ESQ. P.O. Box 4217 Hilo, Hawai 'i 96720 ted @�tedhonglaw,corn Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 673865_1 ANGELIC M. HO, ESQ. Deputy Corporation Counsd 101 Aupuni Street, Suite 325 Hilb, Hawai'i 96720 malia.ho @hawaiicounty.gov Attorney for Appelle WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII MICHAEL J. MATSUKAWA,ESQ. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawai 'i 96740 kapulu@msn.com Attorney for Intervenor-Appellee JEFFREY GOMES DATED: Honolulu, Hawaii, December 23, 2016. REG M. USHIRODA Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 4 673865_1 : FILED- - DOUGLAS S. CHIN 6465 Attorney General - S tate of Hawaii 2017 JAN I .1 P GREGG M. USHIRODA 5868 i !.. LE HOLLY T. SHIKADA 4017 T!!€, _-CIRCUI-TF:COURT ` Deputy Attorneys General Si�.TE:OF.HAWAtE i:. 235 S. Beretania Street, Room 304 Honolulu, Hawaii 96813 Phone: (808) 586.1255 Facsimile: (808) 586-1488 Attorneys for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-I-0223 MHF SUPPORT SERVICES; CONNECTIONS ) (Agency Appeal) NEW CENTURY PUBLIC CHARTER ) SCHOOL, ) SECOND AMENDED FINAL JUDGMENT Applicants-Appellants, ) VS. ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII, ) Appellee, ) and ) JEFFREY GOMES, Intervenor; ) Intervenor-Appellee. } SECOND AMENDED FINAL JUDGMENT Y_ On June 9, 2014, Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES ("CBESS") filed its Notice Of Appeal To Circuit Court_ On June 19, 2014, Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL ("CONNECTIONS"') filed Applicant-Appellant Connections Nety Century Public Charter School's Notice Of Appeal To Circuit Court And Joinder To Applicant-Appellant Conrmrrnity Based Education Support Seri ces' Notice Of Appeal To Circuit Court, Filed June 9, 2014. WINDWARD PLANNING COMMISSION,COUNTY OF HAWAII ("COMMISSION") and DEPARTMENT OF PLANNING, COUNTY OF HAWAII ("DEPARTMENT") were named Appellees in the Notices of Appeal filed by Applicants- Appellants CBESS and CONNECTIONS. SANDRA SONG ("SONG"), in her capacity as Hearings Officer; JEFFREY GOMES ("GOMES"), Intervenor; SIDNEY FUKE ("FUKE"), Intervenor's Representative; and TERENCE T. YOSHIOKA ("YOSHIOKA"), Intervenor's Representative, were named Intervenor-Appellees in the Notices of Appeal filed by Applicants-Appellants CBESS and CONNECTIONS. On September 22, 2014, the Order Granting Appellees Sidney Fuke And Terrence T. Yoshioka's Motion For Summary Judgment was entered by the Third Circuit Court, which dismissed Intervenors-Appellees FUKE and YOSHIOKA as appellees and all claims against them, and ordered that their names be removed from the case caption. On September 22, 2014, the Judgment Pursuant To Order Granting Appellees Sidney Fuke And Terrence T. Yoshioka's Motion For Sununmy Judgment was entered by the Third Circuit Court pursuant to Rule 54(b) of the Hawaii Rules of Civil Procedure in favor 2 Intervenors-Appellees FUKE and YOSHIOKA, and against Applicants-Appellees CBESS and CONNECTIONS on all claims. There are no remaining claims against Intervenors- Appellees FUKE and YOSHIOKA. On September 22, 2014, the Order- Granting Appellee Windward Planning Commission, County Of Havvai'i, And Intervenor-Appellee Sandra Song's Motion To Dismiss Filed On July 7, 2014 ("Song Order") was entered by the Third Circuit Court, which dismissed all claims against Intervenor-Appellee SONG. A separate judgment was not entered on the Song Order. There are no remaining claims against Intervenor-Appellee SONG. On September 22, 2014, the Order- Granting Appellee Department of Planning, County Of Hawaii's Motion To Dismiss Filed On June 27, 2014 ("Department Order") was entered by the Third Circuit Court, which dismissed all claims against the Appellee DEPARTMENT. A separate judgment was not entered on the Department Order. There are no remaining claims against Appellee DEPARTMENT. On February 15, 2015, the Order Denying Intervenor-Appellee Jeffrey K. Gomes' Motion (1) To Strike Notice of Appeal and Joinder Filed by Connections New Century Public Charter School (Filed June 19, 2014) (2) To Dismiss Said Notice Of'Appeal And(3) For Summary Judgment Against Connections New Century Public Charter School On Its Notice Of Appeal (Filed June 19, 2014), Filed December 1, 2014, And To Amend Caption was entered by the Third Circuit Court, which ordered that the case caption be amended to add Applicant-Appellee CONNECTIONS and to remove Intervenors-Appellees SONG, FUKE and YOSHIOKA, and Appellee DEPARTMENT from the case caption. 3 On July 14, 2015, the Decision and Order Affirming Windward Planning Commission, County Of Hawai'i's Findings Of Fact, Conclusions Of Law and Decision And Order Denying Special Permit Application No. SPP 12-138 ("Decision") was entered by the Third Circuit Court, which affirmed the decision of the Appellee COMMISSION and dismissed the appeals taken by Applicants-Appellants CBESS and CONNECTIONS. On July 14, 2015, the Final Judgment was entered by the Third Circuit Court.in favor of Appellee COMMISSION and Intervenor-Appellee GOMES, and against Applicants-Appellants CBESS and CONNECTIONS on all claims. Pursuant to Rules 58 and 72(k) of the Hawaii Rules of Civil Procedure, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED as follows: Pursuant to the Song Order, FINAL JUDGMENT is entered in FAVOR of Intervenor-Appellee SONG, and AGAINST Applicants-Appellants CBESS and CONNECTIONS on all claims. Pursuant to the Department Order, FINAL JUDGMENT is entered in FAVOR of Appellee DEPARTMENT and AGAINST Applicants-Appellants CBESS and CONNECTIONS on all claims. Pursuant to the Decision, FINAL JUDGMENT is entered in FAVOR of Appellee COMMISSION and Intervenor-Appellee GOMES and AGAINST Applicants-Appellants CBESS and CONNECTIONS on all claims. 4 i a 0 There are no other remaining claims or parties in this matter and all other remaining claims, counterclaims, and cross-claims are dismissed with prejudice. DATED: Kealakekua, Hawai i, JUDGE OF THE ABOVE-ENTITLED COUR17 Community Based Education Support Services and Connections New Century Public Charter School v. Windward Planning Commission, County of Hawaii, and Jeffrey Gomes, Intervenor- Appellee, CIVIL NO. 14-1-0223 MHF (Agency Appeal), SECOND AMENDED FINAL JUDGMENT. 5 DOUGLAS S. CHIN 6465 Attorney General State of Hawaii Electronically Filed GREGG M. USHIRODA 5868 Intermediate Court of Appeals HOLLY T. SHIKADA 4017 CAAP-17-0000050 Deputy Attorneys General 31-JAN-2017 235 S. Beretania Street, Room 304 10:42 AM Honolulu, Hawaii 96813 Phone: (808) 586-1255 Facsimile: (808) 586-1488 - N. O-� Attorneys for Applicant-Appellant CONNECTIONS NEW CENTURY =CD PUBLIC CHARTER SCHOOL o n c rn M IN THE CIRCUIT COURT OF THE THIRD CIRCUIT O mor _ =Cm STATE OF HAWAII -ix cn COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0223 MHF SUPPORT SERVICES; CONNECTIONS ) (Agency Appeal) NEW CENTURY PUBLIC CHARTER ) SCHOOL, ) NOTICE OF APPEAL; EXHIBITS "A"—"B"; Applicants-Appellants, ) CERTIFICATE OF SERVICE VS. ) WINDWARD PLANNING COMMISSION, } COUNTY OF HAWAII, ) } Appellee, } ) and } } JEFFREY GOMES, Intervenor; } ) Interverior-Appel Ice. } } NOTICE OF APPEAL NOTICE IS HEREBY GIVEN that Applicant-Appellant, Connections New Century Public Charter School ("Connections"), by and through its undersigned counsel Gregg M. 670029_1 'L L Ushiroda, Deputy Attorney General, pursuant to Sections 91-14, 91-15, 602-57, 641-1(a) of the Hawai'i Revised Statutes and Rules 3 and 4, Hawai'i Rules of Appellate Procedure, appeals to the Intermediate Court of Appeals of the State of Hawaii from the: (1) Decision and Order Affirming Windward Planning Commission, County of HawaiTs Findings of Fact, Conclusions of Law and Decision and Order Denying Special Permit Application No. SPP 12-138, a copy of which is attached as Exhibit "A;" and (2) Second Amended Final Judgment filed on January 13, 2017, a copy of which is attached as Exhibit "B." DATED: Honolulu, Hawaii,January 31, 2017. GREGG M. USHIRODA Attomey for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 678034_1 FILED Electronically Filed MOLLY A. SMBINS 8639 InterMWMej OoWt btappeals Corporation Counsel CAAP-17-0000050 31- 1T,7C'ii:;i13,CLERK DANNY B.PATEL 9578 10:42T) %IRCU1T C G U R T Deputy Corporation Counsel ' r "�` County of Hawaii 101 Aupuni Street,Suite 325 lido,Hawaii 96720 Telephone;(808)961-8251 Facsimile:(808)961-8622 E-mail: danny.patel a[�7 awaiicounty.gov Attomeys for Appellee WINDWARD DWARD PLANNING COMMISSION, COUNTY OF HAWAI'I IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION Civil No. 14-1-0223 SUPPORT SERVICES;CONNECTIONS (Agency Appeal) NEW CENTURY PUBLIC CHARTER SCHOOL, DECISION AND ORDER Applicants-Appellants, AFFIRIMWG WINDWARD PLANNING COMMISSION,COUNTY VS. OF HAWAI`I'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND WINDWARD PLANNING COMMISSION, DECISION AND ORDER DENYING COUNTY OF HAWAII, SPECIAL PERMIT APPLICATION NO. SPP 12-138 Appellee, and JEFFREY GOMES,Intervenor, Hearing: Intervcuor-Appellee. Date: May 29,2015 Time: 9.00 am. Judge: The Honorable Melvin H.Fujino he2t��cerhtlrhar thtR is.3 1ii4 rree aw correct CaAY�is�Ecrtgur��cnse�r<ccraamre. Cork, tcCirr�llCaua, tar awaar EXHIBIT "A" DECISION AND ORDER AFFMKlNG WINDWARD PLANNING C01VII4 MION,COUNTY OF HAWAPI'S FINDINGS OF FACT,CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO.SFP 12438 Applicants Appetlants Community Based Education Support Services ("CBESS') and Connections New Cennwy Public Charter School ("Connections') (collectively, "Appellants") appeal from the Windward Planning Commission, County of Hawai'i's ("Commission") decision denying Appellant's Special Permit Application No. SPP 12-136 entered May 1, 2014 (')ecision')and Findings of Fact,Conclusions of Law and Decision and Order entered May 19, 2414 CM&07,came on for ora] argument on May 29,2015 at 9:04 a.m. before the Honorable Melvin H. Fujimo. Ted H.S. Hong, Esq., appeared on behalf of CBESS, Carter K. Siu, Esq., appeared on behalf of Connections, Danny B. Patel, Esq., appeared on behalf of Commission, and Michael J.Matsukawa,Esq.;appeared on bebalf of the intervener-Appellee,Jeffrey Gorses ("Gomes'). 'Ihe Court,having reviewed the briefs and appendices submitted by the parties, the record on appeal, and having considered the arguments of the patties' counsel, enters the following Decision and Order. DECISION 1. The Court finds the Applicants were allowed five public hearings and five days of contested case proceedings, within which to meet their burden to establish the.Application met the criteria required for a Special Permit. The Commission denied the Application. 2. The Court's review of the Commission's Decision and D&O is qualified by the principle that an agency's decision carries a presumption of validity and appellants have the heavy burden of making a convincing showing that the decision is invalid because it is unjust and unreasonable in its consequences. 2 3. In reviewing an agency appeal,the Court applies the standards set forth in Hawaii Revised Statutes("HRS') § 91-14(g). 4. Conclusions of law are reviewable under HRS §91-14(g),subsections(1),(Z), and(4). The Commission's Decision and D&O do not violate relevant constitutional or statutory provisions,are not in excess of statutory authority orjurisdiction,and are not affected by other error of law. 5. Findings of fact are reviewable under HRS §91-14(g),subsection(5). In view of the reliable,probative,and substantial evidence on the whole of the record,the Commission's Decision and D&O are not clearly erroneous. 6. Mixed questions of law and fact are reviewable under HRS § 91-14(g),subsection (6), The Commission's Decision and D&O are not arbitrary,or capricious,or characterized by abuse of discretion or clearly unwarranted exercise of discretion. 7. The County Charter,County of Hawai'i,explicitly authorizes the Commission to consider the County of Hawaii General Plan when determining special permit applications. ORDER Pursuant to the above Decision,it is hereby ORDERED,ADRMGED,and DECREED: 1. The Commission's Decision and D&O are AFFIRMED and the appeals taken by CBESS and Connections are dismissed; 2. CBESS'request for attorney's fees and costs are DENIED, 3. CBESS' request that the Court admonish and recommend the County to remove the Commissioners who voted against the Appellant's application as unfit to serve on public commissions and boards because they violated their legal duty is DEN ED;and 3 4. FINAL JUDGMENT skull be entered in favor of the Appellee Commission and Intervenor-Appellee Gomes,and against Applicants-Appellants CRESS and Connections,on all ` claims in this action. Ju, €1 DATED: Kealakckua,Hawaii, .JUDGE OF THE ABOVE-ENTITLED COURT PPROVED AS TO FORM: TED . .HON , SQ. A meyforApplica pellant OMMUNITY BASED CATION SUPPORT SERVICES CARTER K.SIU,E.SQ. Attorney for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL Community Based Education Support Services, et al Y. Mndward Planning Commission, County of Hawaii, et al.,Civ.No. 14-1-0223 (Agency Appeal); DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAI'I'S FINDINGS OF FACT,CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT.APPLICATION NO.SPP 12-138 4 MICHAEL J.MATSUKAWA,ESQ. Attorney.for Intervenor-Appellee JEFFREY GOMES Community Based Education Support Services, et al. v Windward Planning Commission, County of Hawaii, et al.,Civ.No. 14-1-0223(Agency Appeal);DECISION AND ORDER AFFIRMING WINDWARD PLANNING COMMISSION, COUNTY OF HAWAPI'S MDINGS OF FACT,CONCLUSIONS OF LAW AND DECISION AND ORDER DENYING SPECIAL PERMIT APPLICATION NO.SPP 12-135 5 b FILED DOUGLAS S.CHIN 6465 Attorney General State of Kawai'i EIec1 Q I VJF i %f; Intermediate Court ofppeals GREGG M. USHIRODA 5868 CAAP-17-0000050 HOLLY T.SHIKADA 4017 31-JAN Nit tK:,,CLERK Deputy Attorneys General i:,f i: �Ii C itT 235 S.Beretania Street, Room 304 10:42 A Honolulu, Hawaii 96813 Phone: (808) 586-1255 Facsimile: (908) 586-1488 Attorneys for Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-0323 MHF SUPPORT SERVICES;CONNECTIONS ) (Agency Appeal) NEW CENTURY PUBLIC CHARTER ) SCHOOL, ) SECOND AMENDED FINAL JUDGMENT Applicants-Appellants, ) } vs. ) ) WINDWARD PLANNING COMMISSION, ) COUNTY OF HAWAII, ) Appellee, } and ) JEFFREY GOMES, Intervenor, ) } Intervenor-Appellee. ) ) SECOND AMENDED FINAL JUDGMENT I hemby CEFU y f e1Rt I&Es a tuft,true and correct copy of the o ra 010I. �off. C6ath,i'hltd t;ircuft Co[rri:fitstn aF EXHIBIT "B" On June 9, 2014, Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES ("CHESS")filed its Notice Qf Appeul To Circuit Court. On June 19, 2014, Applicant-Appellant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL ("CONNECTIONS"') thee]Appliccr►rt-Appellant Couueviinus New Ccnnu),Ptrblic Chawev Schned's Notice Qf Appeal To Crrcith Co►1rt And Joinder To Applicant-Alipellam Co►ruuunirN fiased rduccrtion Suppart Services' Notice Of Appeal To Circuit Court, Filed Jutrr 9, 2014. WINDWARD PLANNING COMMISSION,COUNTY OF HAW Al-I ("COMMISSION") and DEPARTMENT OF PLANNING, COUNTY OF I-IAWAI'I ("DEPARTMENT") were named Appellees in the Notice.,; of Appeal riled by Applicants- Appellants CRESS ;►nd CONNECTIONS. SANDRA SONG ("SONG"), in her capacity as Hearings Officer, JEFFREY GOMES ("GOMES"), Intervenor; SIDNEY FUKE("FUKE"), Inlcrvenor's Representative; and TERENCE T. YOSHIOKA ("YOSH IOKA"), intervenor's Representative, were named Intervenor-Appellees in the Notices of Appeul Bled by Applicants-Appellants CHESS and CONNECTIONS. On September 22, 2014,the Order Granting AI)IvIlees Sidney Fnke And 7'er•reuce'f. Yushink-a's Motion For Sr►►rrruarr)-Jrulgrnent was entered by the Third Circuit Courl, which dismissed intervenors-Appeifees FU KE and YOSHIOKA as appellees and all claims against them, and ordered that their names be removed from the case caption, On September 22,2014, ilia Jrrclqrrrr►rt Pursuant To Order Gr anihig Appelfees Sichre►• nuke And Terrence T. Yoshioka'.~Motion l-or-Sunnum-y Judgment was entered by the Third Circuit Court pursuant to Rule 54(b) of the Hawaii Rules of Civil Procedure in favor 2 i i Intervenors-Appellees FUKE and YOSHIOKA,and against Applicants-Appellee.~ CBESS and CONNECTIONS on all claims, There are no remaining claims against Intervenors- Appellees FUKE and YOSMIOKA. On September 22, 2014, the Order Granting Aplw lev Windward Planting{; Commission. Count%, Of Hmrai'i, And luterverun-tlppcllee Sandra Song's iWorion To Di hiss Filed Orr.lid). 7, 2014("Song Order') was entered by the Third Circuit Court, which dismissed all claims against Intervenor-Appellee SONG. A separate judgment was not entered on the Song Order. There are no remaining claim~againtit Intervenor-Appellee SDNG. On September 22,2014, the Order Grantiniq Appellee Depurturcnt of Planning. Count.)-Of'Hauvuii's Nlotion To Disinhys !riled On June 27, 20114("Department Order") wa_ti entercd by the Third Circuit Court, which dlsmisscd all claims against the Appellee DEPARTMENT. A separate judaiucnt was not entered on the Department Order. There are no remaining claims against Appellee DEPARTMENT. On February 15, 2015, the Order Den.ving Intervenor-Appellee Jejfrey K. Gong'-' Motion (1) Tu Strike Notive of Appeal and.lainder riled hs Connections New Ceutur.v Pifbliv Chu)-ter Sc•honl(Filed.lane 19, 201=1)(2) To Di+rr hyx Said Notice QJ'Appeal And(.3) Fnr•Suumran,Judgment Against Connections New Caultiry Public Charter School On Its Notice Of Appeal(Filed Jurre 19, 2014), Filed December 1, 2014.And To Amend Caption was entered by the Third Circuit Court, which ordered that the case caption be amended to add Applicant-Appellee CONNECTIONS and to remove Intervenors-Appellees SONG, FUKE and YOSHIOKA. and Appellee DEPARTMENT rrom flit case caption. 3 0 0 On July 14, 2015, the Decision curd Order Affirming Windward Planning commission. count). Omalvai'i a r-indings Of Facr. Cunchtaions OrLem-and Decision Aitel Order Den.rhig Special Pei-nW Aliplication Nri. SPP 12-138 ("Decision") was entered by the Third Circuit Court, which affirmed the decision of the Appellee COMMISSION and dismissed ilia appeals taken by Applicants-Appellants CBESS and CONNECTIONS. On July 14, 2015, the Final Judgment was entered by the Third Circuit Court in favor cif Appellee COMMISSION and Intervenor-Appellec GOMES, and against Applicants-Appelkinis CRESS and CONNECTIONS on all claims. Pursuant to Rules 59 and 72(k)or the I-iawai'i Rules or Civil Procedure, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED cis follows: Pursuant to the Sones Order. FINALJUDGMENT is entered in FAVOR of Intervenor-Appellee SONG, and AGAINST Applicants-Appellams CBESS and CONNECTIONS on all claims. Pursuant to the Department Order, FINAL JUDGMENT is entered in FAVOR of Appellee DEPARTMENT and AGAINST Applicants-Appellants CBESS and CONNECTIONS on all claims. Pursuant to the Decision, FINAL JUDGMENT is entered in FAVOR of Appellec COMMISSION and Intervenor-Appellee GOMES and AGAINST Applicants-Appellants CBESS and CONNECTIONS on all claims. 4 There are no other remaining claims or parties in this matter and sill other remaining claims, counterclaims, and cross-claims are dismissed with Prejudice. DATED: Kealakckun, Hawai'i, JAN 1 2 2017 MELVIN H.FUJINO (SEAL} JUDGE Of•THE ABOVE-ENTITLED COURT Community Based Education Support Services and Connections New Century Public Charter School v.Windward Planning Commission, County of Hawaii, and Jeffrey Gomes, Intervenor-Appellee, CIVIL NO. 14-1-0223 MHF(Agency Appeal),SECOND AMENDED FINAL JUDGMENT. 5 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT Electronically Filed STATE OF HAWAII Intermediate Court of Appeals P-17- pp COMMUNITY BASED EDUCATION ) CIVIL SUPPORT SERVICES; CONNECTIONS ) (Agencyl p NEW CENTURY PUBLIC CHARTER ) SCHOOL, ) CERTIFICATE OF SERVICE Applicants-Appellants, ) V5. ) ) WINDWARD PLANNING COMMISSION; ) COUNTY OF HAWAII, ) Appellees, ) and ) JEFFREY COMES, Intervenor; ) Intcrvenor-Appcllee. ) CERTIFICATE OF SERVICE I HEREBY CERTIFY that on January 31, 2017, pursuant to Rule 25(c) of the Hawai'i Rules of Appellate Procedure, copies of the Notice of Appeal were served upon the following, either pursuant to Rule 6.1 of the Hawai'i Electronic Filing and Service Rules through the Judiciary Electronic Filing System (JEFS) or by conventional mail, by depositing the same in the United States mail, postage prepaid: TED H.S.HONG,ESQ. P.O.Box 4217 Hilo, Hawai 'i 96720 ted@tedhon-law.corn Attorney for Applicant-Appellant COMMUNITY BASED EDUCATION SUPPORT SERVICES 678028_1 i ANGELIC M. HO, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilb, Hawai'i 46720 [nalia.110@11awaiicounly.cov Attorney for Appelle WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII MICHAEL J.MATSUKAWA, ESQ. Territorial Centre, Suite 201 755751 Kuakini Highway Kailua-Kona, Hawai 'i 96740 kapulu@msn.crnn Attorney for Intervenor-Appellee JEFFREY GOMES DATED: Honolulu, Hawaii,January 31, 2017. — a GREGG M. USHIRODA Attorney for Applicant-Appel Iant CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL 4 6780291 MINUTES Minutes entered by the clerks, Circuit Court of the Third Circuit, Fourth Division, are made part of the Record. CIVIL TRIAL CALENDAR THIRD CIRCUIT THIRD DIVISION DATE : TUESDAY, AUGUST 19 , 2014 JUDGE : HONORABLE RONALD IBARRA, JUDGE PRESIDING CLERK : REPORTER: BAILIFF/LAW CLERK : ----------------------------------------------------------------------PAGE 1 8 : 30 A.M. 3CC 14-1-000223 COMMUNITY BASED EDU TED H S HONG VS . FOR COMMUNITY BASED EDUC WINDWARD PLANNING ET AL CARTER K. K. S . SIU DAVID MARK LOUIE FOR CONNECTIONS NEW CENT MICHAEL JAMES MATSUKAWA FOR JEFFREY GOMES, INTER ALAN M OKAMOTO FOR SIDNEY FUKE, INTERVE 1) APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII AND INTERVENOR-APPELLEE SANDRA SONG ' S MOTION TO DISMISS 2 ) APPELLEE DEPARTMENT OF PLANNING, COUNTY OF HAWAII ' S MOTION TO DISMISS 3 ) APPELLEES SIDNEY FUKE AND TERENCE T . YOSHIOKA' S MOjIQN FSR_ENMMARY_JNDQMEN�______-_______-T_ DIGITAL RECORDING: 2014-8-19/8 : 55-9 : 18 CLERK - N. L00 LAW CLERK - S . FRYE APPEARANCES : T . HONG; A. SELF, M. MASUNAGA, A. OKAMOTO, M. MATSUKAWA APPEARANCE BY TELEPHONE : CARTER SIU -------------------------------------------------- -------------------------------------------------- ARGUMENT BY SELF FOR PLANNING DEPT ARGUMENT BY OKAMOTO FOR SIDNEY FUKE AND TERENCE YOSHIOKA ARGUMENT BY MASUNAGA FOR WINDWARD PLANNING COMMISSION AND INTERVENOR SANDRA SONG CIVIL TRIAL CALENDAR THIRD CIRCUIT THIRD DIVISION DATE : TUESDAY, AUGUST 19 , 2014 JUDGE : HONORABLE RONALD IBARRA, JUDGE PRESIDING CLERK : REPORTER : BAILIFF/LAW CLERK : --------- - ------------------------------------------------------------PAGE ARGUMENT BY MATSUKAWA FOR JEFFREY GOMES ATTORNEY GENERAL SIU FOR CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL; CONFIRMED HE DIDN' T FILE A RESPONSE; NO POSITION COLLOQUY BETWEEN COURT AND OKAMOTO ARGUMENT BY HONG FOR PLAINTIFF 1 ) MOTION IS GRANTED; SANDRA SONG DIDN ' T HAVE THE AUTHORITY TO GRANT OR DENY THE APPLICATION PURSUANT TO HRS 205-6 (A) , SHE WAS NOT A PARTY TO THE UNDERLYING ACTION AS DEFINED BY HAWAII ADMINISTRATIVE PROCEDURE ACT 91-1 (3 ) AND THEREFORE SHE IS NOT AN APPELLEE AS ESTABLISHED BY HRCP RULE 72 (A) ; HER RECOMMENDATION IS SOLELY A RECOMMENDATION, NOT A RULING 2 ) MOTION IS GRANTED AS THE WINDWARD PLANNING COMMISSION IS APPROPRIATE GOVERNMENT AGENCY TO ACT AS APPELLEE IN THIS CASE , AND THEREFORE THE PLANNING DEPARTMENT IS AN IMPROPER APPELLEE AS ESTABLISHED BY HRCP RULE 72 (A) 3 ) MOTION IS GRANTED; THERE IS NO GENUINE ISSUE OF MATERIAL FACT THAT TERENCE YOSHIOKA AND SIDNAY FUKE IS NOT A PARTY TO UNDERLYING ACTION AS DEFINED BY HAWAII ADMINISTRATIVE PROCEDURE ACT 91- (3 ) AND THEREFORE THEY ARE AN IMPROPER PARTY AS ESTABLISHED BY HRCP RULE 72 (A) PREVAILING PARTIES TO PREPARE THE ORDER COURT NOTED THERE ARE ISSUES FOR WHICH RELIEF CIVIL TRIAL CALENDAR THIRD CIRCUIT THIRD DIVISION DATE : TUESDAY, AUGUST 19 , 2014 JUDGE : HONORABLE RONALD IBARRA, JUDGE PRESIDING CLERK : REPORTER: BAILIFF/LAW CLERK: ----------------------------- ----------------------------------------- PAGE 8 : 30 A.M. 3CC 14-1-000223 COMMUNITY BASED EDU TED H S HONG VS . FOR COMMUNITY BASED EDUC WINDWARD PLANNING ET AL CARTER K . K. S . SIU DAVID MARK LOUIE FOR CONNECTIONS NEW CENT MICHAEL JAMES MATSUKAWA FOR JEFFREY GOMES, INTER ALAN M OKAMOTO FOR SIDNEY FUKE, INTERVE _;_CONTINUED_1SEE_ABOVEI---- -�����-------- ------ COULD BE SOUGHT BUT NOT IN THIS ACTION MATSUKAWA ASKED IF THE ORDER APPLIES AGAINST CHARTER SCHOOL COURT : ORDER APPLIES TO WHOEVER IS A PARTY TODAY AND MADE AN APPEARANCE DATE : 08-19-2014 BY ORDER OF THE COURT : CLERK i CIVIL TRIAL CALENDAR THIRD CIRCUIT THIRD DIVISION DATE : FRIDAY, SEPTEMBER 26 , 2014 JUDGE : HONORABLE RONALD IBARRA, JUDGE PRESIDING CLERK: REPORTER: BAILIFF/LAW CLERK: ----------------------------------------------------------------------PAGE 1 8 : 00 A.M. 3CC 14-1-000223 COMMUNITY BASED EDU TED H S HONG VS . FOR COMMUNITY BASED EDUC WINDWARD PLANNING ET AL CARTER K. K. S . SIU DAVID MARK LOUIE FOR CONNECTIONS NEW CENT MICHAEL JAMES MATSUKAWA FOR JEFFREY GOMES , INTER ALAN M OKAMOTO FOR SIDNEY FUKE, INTERVE APPELLEE WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII ' S MOTION TO QUASH OR CORRECT THE ORDER FOR CERTIFICATION AND TRANSMISSION OF RECORD OF APPEAL AS TO TAPE RECORDINGS AND TRANSCRIPTS OF ALL EXECUTIVE SESSION HEARING AND MEETINGS DATED DUNE 9�_2014------------------------- DIGITAL RECORDING: 2014-9-26/8 : 05-8 : 13 CLERK - J . TAKIMOTO BAILIFF - A. VANAVICHAI/S . FRYE APPEARANCES : PLTF COUNSEL - TED HONG FOR PTLF (BY TELEPHONE) DEFENSE COUNSEL -- MARGARET MASUNAGA FOR WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII ; MICHAEL MATSUKAWA FOR INTERVENOR JEFFREY GOSS (IN PERSON) ARGUMENTS PRESENTED BY HONG AND MATSUNAGA NO POSITION BY MATSUKAWA ***RULING*** COURT, TOOK MATTER UNDER SUBMISSION. CIVIL TRIAL CALENDAR THIRD CIRCUIT THIRD DIVISION DATE : FRIDAY, SEPTEMBER 26 , 2014 JUDGE : HONORABLE RONALD IBARRA, JUDGE PRESIDING CLERK: REPORTER: BAILIFF/LAW CLERK: ------------ ----------------------PAGE 2 DATE : 10-06-2014 BY ORDER OF THE COURT:_____ _____,___CLERK CIVIL TRIAL CALENDAR THIRD CIRCUIT THIRD DIVISION DATE: TUESDAY, JANUARY 6, 2015 JUDGE : HONORABLE RONALD IBARRA, JUDGE PRESIDING CLERK: REPORTER: BAILIFF/LAW CLERK : ----------------------------------------------------------------------PAGE 1 10 : 00 A.M. 3CC 14-1-000223 COMMUNITY BASED EDU TED H S HONG VS . FOR COMMUNITY BASED EDUC WINDWARD PLANNING ET AL CARTER K. K. S . SIU DAVID MARK LOUIE FOR CONNECTIONS NEW CENT DANNY PATEL FOR WINDWARD PLANNING CO MICHAEL JAMES MATSUKAWA FOR JEFFREY GOMES , INTER ALAN M OKAMOTO FOR SIDNEY FUKE, INTERVE INTERVENOR-APPELLEE JEFFREY K. GOMES ' MOTION ( 1) TO STRIKE NOTICE OF APPEAL AND JOINDER FILED BY CONNECTIONS NEW CENTURY PULIC CHARTER SCHOOL (FILED JUNE 19 , 2014 ) (2 ) TO DISMISS SAID NOTICE OF APPEAL AND (3 ) FOR SUMMARY JUDGMENT AGAINST CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL ON ITS_NQTICE_OF_APPEAL DIGITAL RECORDING : 2015-1-6/10 : 05-10 : 14 CLERK - N. L00 LAW CLERK - S . FRYE APPEARANCE BY TELEPHONE: T . HONG FOR PLAINTIFF APPEARANCES IN PERSON: M. MATSUKAWA FOR INTERVENOR /APPELLEE J . GOMES D. PATEL FOR WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII C . SIU (ATTORNEY GENERAL) FOR CONNECTIONS PUBLIC CHARTER SCHOOL CIVIL TRIAL CALENDAR THIRD CIRCUIT THIRD DIVISION DATE : TUESDAY, JANUARY 6 , 2015 JUDGE: HONORABLE RONALD IBARRA, JUDGE PRESIDING CLERK : REPORTER: BAILIFF/LAW CLERK: ----------------------------------------------------------------------PAGE SIU: CLIENT JOHN THATCHER IS PRESENT ARGUMENT BY MATSUKAWA, HONG, SIU PATEL : NO POSITION ***RULING*** COURT HEARD THE ARGUMENTS RAISED AND REVIEWED THE RECORD AND FILE OF THE CASE; MOTION IS DENIED SIU TO PREPARE THE ORDER PURSUANT TO RULE 23 MATSUKAWA THINKS IT IS IMPORTANT TO ORDER THAT THE CAPTION BE CHANGED TO ELIMINATE THE DISMISSED PARTIES AND ADD THE NEW PARTY TO THE CASE COURT : SIU TO INCLUDE IN THE ORDER THAT THE CAPTION SHALL BE AMENDED DATE : 01-07-2015 BY ORDER OF THE COURT: CLERK CIVIL TRIAL CALENDAR THIRD CIRCUIT THIRD DIVISION DATE : TUESDAY, FEBRUARY 10 , 2015 JUDGE : HONORABLE RONALD IBARRA, JUDGE PRESIDING CLERK: REPORTER: BAILIFF/LAW CLERK : ----------------------------------- -----------------------------------PAGE 1 8 : 00 A.M. 3CC 14-1-000223 COMMUNITY BASED EDU TED H S HONG VS . FOR COMMUNITY BASED EDUC WINDWARD PLANNING ET AL CARTER K. K. S . SIU DAVID MARK LOUIE FOR CONNECTIONS NEW CENT DANNY PATEL FOR WINDWARD PLANNING CO MICHAEL JAMES MATSUKAWA FOR JEFFREY GOMES, INTER ALAN M OKAMOTO FOR SIDNEY PUKE, INTERVE INTERVENOR-APPELLEE JEFERY K. GOMES ' MOTION (1) TO DISMISS NOTICE OF APPEAL TAKEN BY APPLICANT- APPELLANT COMMUNITY BASED EDUCATION SUPPORT SERVICES (FILED JUNE 9 , 2014) AND (2 ) FOR SUMMARY JUDGMENT ON SAID NOTICE OF APPEAL_______ DIGITAL RECORDING: 2015-2-10/8 : 02-8 : 22 CLERK - N. LOO LAW CLERK - S . FRYE APPEARANCE IN PERSON: T. HONG FOR PLAINTIFF M. MATSUKAWA FOR INTERVENOR/APPELLEE J. GOMES APPEARANCE BY TELEPHONE : D. PATEL FOR WINDWARD PLANNING COMMISSION, COH C. SIU FOR CONNECTIONS PUBLIC CHARTER SCHOOL SIU: DIDN' T SUBMIT ANY POSITION PATEL : SUBMITTED STATEMENT OF NO POSITION EXCEPT WITH REGARD TO EXH A AND B OF THE CBESS RESPONSE, ASKS IT BE STRICKEN CIVIL TRIAL CALENDAR THIRD CIRCUIT THIRD DIVISION DATE : TUESDAY, FEBRUARY 10 , 2015 JUDGE : HONORABLE RONALD IBARRA, JUDGE PRESIDING CLERK: REPORTER: BAILIFF/LAW CLERK: ----------------------------------------------------------------------PAGE HONG OBJECTS COURT QUESTIONED IF ANYONE RAISED ARGUMENT PRIOR TO TODAY PATEL : BELIEVES MATSUKAWA RAISED ISSUE IN REPLY TO HONG ' S RESPONSE COURT DOESN' T ALLOW THE PARTIES TO STATE AN OBJECTION AFTER STATING NO POSITION; COUNTY WILL NOT PARTICIPATE IN HEARING . SIU : CALLED EARLIER, REQUEST TO NOT PARTICIPATE IN THE HEARING COURT : PREVAILING PARTY NEED NOT CIRCULATE NOS TO SIU PATEL WISHES TO STAY ON LINE AND LISTEN COLLOQUY BETWEEN COURT AND HONG ARGUMENT BY HONG AND MATSUKAWA ***RULING*** MOTION IS DENIED HONG TO PREPARE THE ORDER PURSUANT TO RULE 23 DATE : 02-10-2015 BY ORDER OF THE COURT : CLERK CIVIL TRIAL CALENDAR THIRD CIRCUIT THIRD DIVISION DATE : WEDNESDAY, APRIL 22 , 2015 JUDGE : HONORABLE MELVIN H . FUJINO, JUDGE PRESIDING CLERK: NICOLE L00 REPORTER: BAILIFF/LAW CLERK : ----------------------------------------------------------------------PAGE 1 4 : 00 P.M. 3CC 14-1-000223 COMMUNITY BASED EDU TED H S HONG VS . FOR COMMUNITY BASED EDUC WINDWARD PLANNING ET AL CARTER K. K. S . SIU DAVID MARK LOUIE FOR CONNECTIONS NEW CENT DANNY PATEL FOR WINDWARD PLANNING CO MICHAEL JAMES MATSUKAWA FOR JEFFREY GAMES , INTER ALAN M OKAMOTO FOR SIDNEY FUKE, INTERVE STATUS_CQNFERENCE_RE :_SETTING .QF_ORAL_ARGUMENT____ DIGITAL RECORDING: 2015-4-22 /4 : 01-4 ; 05 CLERK - N. LOO LAW CLERK - L . KENNEDY APPEARANCES BY TELEPHONE : D. PATEL FOR WINDWARD PLANNING COMMISSION C . SIU FOR CONNECTIONS PUBLIC CHARTER SCHOOL M. MATSUKAWA FOR INTERVENOR/APPELLEE J . GOMES -------------------------------------------------- -------------------------------------------------- PATEL, MATSUKAWA AND PATEL IN AGREEMENT TO SET THE ORAL ARGUMENT FOR 5/29 /15 AT 9 : 00 AM COURT WILL SEND NOTICE OF THE ORAL ARGUMENT DATE : 04-22-2015 BY ORDER OF THE COURT : _ K ------------,------CLERK CIVIL TRIAL CALENDAR THIRD CIRCUIT THIRD DIVISION DATE : FRIDAY, MAY 29 , 2015 JUDGE : HONORABLE MELVIN H . FUJINO , JUDGE PRESIDING CLERK: NICOLE LOO REPORTER: BAILIFF/LAW CLERK : ---- ------------------------------------------------------------------PAGE 9 : 00 A.M. 3CC 14-1-000223 COMMUNITY BASED EDU TED H S HONG VS . FOR COMMUNITY BASED EDUC WINDWARD PLANNING ET AL CARTER K . K . S . SIU DAVID MARK LOUIE FOR CONNECTIONS NEW CENT DANNY PATEL FOR WINDWARD PLANNING CO MICHAEL JAMES MATSUKAWA FOR JEFFREY COMES , INTER ALAN M OKAMOTO FOR SIDNEY FUKE, INTERVE ORAL_ARGUMENT DIGITAL RECORDING : 2015-5-29/9 : 18-10 : 02 CLERK - N. L00 LAW CLERK - L . KENNEDY APPEARANCES : T . HONG FOR CBESS C . SIU CONNECTIONS CHARTER SCHOOL D. PATEL WINDWARD PLANNING M. MATSUKAWA FOR JEFFREY GOMES MATSUKAWA: AGREED TO DIVIDE TIME BETWEEN APPELLEES ARGUMENT BY HONG ARGUMENT BY PATEL ARGUMENT BY PATEL ARGUMENT BY MATSUKAWA ***RULING COURT HEARD ARGUMENTS OF THE PARTIES AND HAVING CIVIL TRIAL CALENDAR THIRD CIRCUIT THIRD DIVISION DATE : FRIDAY, MAY 29 , 2015 JUDGE : HONORABLE MELVIN H . FUJINO, JUDGE PRESIDING CLERK : NICOLE LOO REPORTER: BAILIFF/LAW CLERK : ----------------------- ---------------- --------------------------- ----PAGE 2 REVIEWED THE RECORD AND FILES OF THE CASE COURT NOTES THAT APPELLANT HAD 5 PUBLIC HEARINGS AND 5 DAYS OF HEARINGS IN WHICH THEY HAD THE BURDEN TO ESTABLISH CRITERIA REQUIRED FOR A SPECIAL PERMIT; PLANNING COMMISSION DENIED APPLICATION FOR A SPECIAL PERMIT; BASED ON THE FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER ON 5/1/14 AND 5/19/14 , UPON REVIEW OF RECORD AND FILE OF CASE COURT ' S REVIEW IS QUALIFIED BY THE PRINCIPLE THAT THE AGENCY ' S DECISION CARRIES A PRESUMPTION OF VALIDITY AND APPELLANTS HAVE A HEAVY BURDEN OF MAKING A CONVINCING SHOWING THAT THE DECISION IS INVALID BECAUSE IT IS UNJUST AND UNREASONABLE IN ITS CONSEQUENCES IN SECTION 91-14 OF HRS , WHICH IS THE GUIDELINE FOR COURT TO FOLLOW IN REVIEWING AN AGENCY APPEAL, COURT FINDS THAT AS TO THE CONCLUSIONS OF LAW, GUIDED BY 91-14G ( 1) , ( 2 ) AND (4 ) , THE COMMISSION DID NOT VIOLATE ANY CONSTITUTIONAL OR STATUTORY PROVISIONS AND DID NOT ACT IN EXCESS OF ANY STATUTORAL AUTHORITY OR JURISDICTION OF THE AGENCY; OR THAT THEY WERE AFFECTED BY ANY OTHER AREA OF LAW AS TO FINDINGS OF FACT SUBSECTION 5 , COURT DOESN ' T FIND THAT THE FINDINGS ARE CLEARLY CIVIL TRIAL CALENDAR THIRD CIRCUIT THIRD DIVISION DATE : FRIDAY, MAY 29 , 2015 JUDGE : HONORABLE RONALD IBARRA, JUDGE PRESIDING CLERK : REPORTER : BAILIFF/LAW CLERK : -------- ------------- ------------------------------------------------- PAGE 9 : 00 A.M. 3CC 14-1-000223 COMMUNITY BASED EDU TED H S HONG VS . FOR COMMUNITY BASED EDUC WINDWARD PLANNING ET AL CARTER K. K. S . SIU DAVID MARK LOUIE FOR CONNECTIONS NEW CENT DANNY PATEL FOR WINDWARD PLANNING CO MICHAEL JAMES MATSUKAWA FOR JEFFREY COMES , INTER ALAN M OKAMOTO FOR SIDNEY FUKE, INTERVE _OONTINUED_LSEE_ABOYE) -------------- ERRONEOUS IN VIEW OF THE RELIABLE, PROBATIVE , AND THERE IS SUBSTANTIAL EVIDENCE ON WHOLE OF THE RECORD AS TO MIXED QUESTIONS OF LAW AND FACT, AFFECTED BY SUBSECTION 6 , ARBITRARY, OR CPARICIOUS OR CHARACTERIZED BY AB USE OF DISCRETION OR CLEARLY UNWARRANTED EXERCISE OF DISCRETION, COURT FINDS THAT THE PLANNING COMMISSION DID NOT VIOLATE THAT SECTION WHILE THERE HAS BEEN DISCUSSION ON WHETHER OR NOT PLANNING COMMISSION SHOULD HAVE RELIED ON THE GENERAL PLAN, COURT FINDS THAT THEY DID HAVE AUTHORITY, IT IS EXPLICIT IN THE STATUTE RE THEIR ABILITY TO REFERENCE TO GENERAL PLAN COURT AFFIRMED DECISION AND ORDER FILED 5/1/14 AND 5/19 /14 CIVIL TRIAL CALENDAR THIRD CIRCUIT THIRD DIVISION DATE : FRIDAY, MAY 29 , 2015 JUDGE : HONORABLE RONALD IBARRA, JUDGE PRESIDING CLERK: REPORTER: BAILIFF/LAW CLERK: --------- - ------------ ------------------------------------------------ PAGE AS TO APPELLANTS REQUEST TO PAY FOR ATTY FEES AND COSTS - DENIED AS TO REQUEST TO ADMONISH AND RECOMMEND THE COUNTY REMOVE THE COMMISSIONERS WHO VOTED AGAINST THE APPELLANTS APPLICATION AS UNFIT TO SERVE ON THE PUBLIC COMMISSIONS AND BOARDS BECAUSE THE VIOLATED THEIR LEGAL DUTY - DENIED MATSUKAWA OR PATEL TO PREPARE THE ORDER Al's" k tit, DATE : 05-29-2015 BY ORDER OF THE COURT : CLERK --------------------------- CIVIL TRIAL CALENDAR THIRD CIRCUIT FOURTH DIVISION DATE : THURSDAY, DECEMBER 22, 2016 JUDGE : HONORABLE MELVIN H. FUJINO, JUDGE PRESIDING CLERK: REPORTER: BAILIFF/LAW CLERK: ------------------------------------------------- PAGE 8 : 30 A.M. 3CC 14-1-000223 COMMUNITY BASED EDU TED H S HONG VS . FOR COMMUNITY BASED EDUC WINDWARD PLANNING ET AL CARTER K. K. S . SIU DAVID MARK LOUIE GREGG MINORU USHIRODA FOR CONNECTIONS NEW CENT AMY GAIL SELF FOR WINDWARD PLANNING CO MICHAEL JAMES MATSUKAWA FOR JEFFREY GOMES, INTER ALAN M OKAMOTO FOR SIDNEY FUKE, INTERVE APPLICAN-APPELLANT CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL ' S MOTION TO EXTEND DEADLINE TO FILE NOTICE OF APPEAL -------------------------------------------------- DIGITAL RECORDING : 2016-12-22/8 : 42-8 : S2 AM CLERK - E . BENNETT BAILIFF - APPEARANCES : DEPUTY ATTORNEY GENERAL - GREGG USHIRODA; HOLLY SHIKADA DEFENSE COUNSEL - ANGELIC HO DEFENDANT - INTERVENOR - MICHAEL J . MATSUKAWA ARGUMENTS PRESENTED BY G. USHIRODA M. MATSUKAWA - NO FURTHER ARGUMENT OTHER THAN WHAT IS IN THE PLEADINGS . A. HO - NOTHING TO ADD. CIVIL TRIAL CALENDAR THIRD CIRCUIT FOURTH DIVISION DATE : THURSDAY, DECEMBER 22 , 2016 JUDGE : HONORABLE MELVIN H . FUJINO, JUDGE PRESIDING CLERK : REPORTER: BAILIFF/LAW CLERK : ---------------------------------- ------------------------------------PAGE 2 ***RULING*** COURT, HAVING REVIEWED THE RECORD AND FILE OF THE CASE, THE COURT WILL FIND THAT THERE IS EXCUSE AND NEGLECT . COUNSEL HAS UNTIL DECEMBER 23 , 2016 TO FILE NOTICE . MOTION IS GRANTED . G. USHIRODA TO PREPARE THE ORDER. DATE : 12-22-2016 BY ORDER OF THE COURT : CLERK IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COMMUNITY BASED EDUCATION ) CIVIL NO. 14-1-223 SUPPORT SERVICES; ) CONNECTIONS NEW CENTURY ) CERTIFICATE OF COURT CLERK PUBLIC CHARTER SCHOOL, ) Applicants, ) vs. ) WINDWARD PLANNING ) COMMISSION, COUNTY OF ) HAWAII; DEPARTMENT OF ) PLANNING, COUNTY OF HAWAII, ) Appellees, ) And ) SANDRA SONG, in her capacity as ) Hearing Officer; JEFFREY GOMES, ) Intervenor; SIDNEY FUKE, ) Intervenor's Representative; ) TERENCE YOSHIOKA, Intervenor's ) Representative, ) Intervenors. ) CERTIFICATE OF COURT CLERK I, SHELLEY MANDAGUIT, a Clerk of the Third Circuit, State of Hawaii, at Kona, Hawaii, do hereby certify that all images in this Record on Appeal, are true originals thereof filed and entered of record (except where noted) in the above-captioned proceeding, and that all documents and items as listed in said Record on Appeal are hereto attached and made a part hereof. IN WITNESS WHEREOF, I have hereunto set my hand and seal of this Court this 25th day of April, 2017. By: /s/ Shelley Mandaguit SHELLEY MANDAGUIT Clerk of the Court, Third Circuit Kona Division, State of Hawaii