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Home My WebLink About2021-09-16 Leeward Exh C (Item 2 Clarification of Intervenor Capacity in SMA 21-078 Contested Case) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII DISCUSSION TRANSCRIPT SEPTEMBER 16, 2021 A regularly advertised discussion on the CLARIFICATION OF INTERVENOR CAPACITY GRANTED ON JUNE 16, 2021 (SMA 21-000078 CONTESTED CASE) was called to order at 12:38 p.m. via live stream online meeting, with Chairman Michael Vitousek presiding. COMMISSIONERS PRESENT: Michael Vitousek, Shani Armbruster, Barbara DeFranco, Clement"CJ" Kanuha III, and Faith"Faye" Yates ALSO IN ATTENDANCE: Dalilah Schlueter, Esq. (Counsel for the Commission), Jean Campbell, Esq. (Counsel for the Planning Department), Jeffrey Darrow (Deputy Planning Director), Maija Jackson (Planning Program Manager), Alex Roy (Planner), Jessica Andrews (Planner), and Noriko Sauer(Commission Secretary) APPLICANT: JEKATERINA MYSIN (SMA 21-000078) REGARDING CONTESTED CASE PROCEEDING: CLARIFICATION OF INTERVENOR CAPACITY GRANTED ON JUNE 16, 2021 Discussion and Clarification of the capacity in which standing was granted by the Commission to George Smith, as intervenor in the contested case proceeding. Specifically, whether George Smith was granted standing as an individual, or on behalf of the Ala Ka La Association of Apartment Owners. VITOUSEK: Item number 2 is unfinished business, the applicant, application Jekaterina Mysin, SMA 21-000078, regarding contested case proceedings, clarification of intervenor capacity grounded on June 16, 2021. Discussion and clarification of the capacity in which standing was granted by the Commission to George Smith, as intervenor in the contested case proceeding. Specifically, whether Mr. Smith was granted standing as an individual, or on behalf of the Ala Ka La Association of Apartment Owners. The sole issue that needs to be addressed today is whether Mr. Smith has standing as an individual or on behalf of the Ala Ka La Association of Apartment Owners. Mr. Smith initially submitted his petition for standing under his name on February 22, 2021, which was deemed incomplete without payment. His subsequent petition filed on March 23, 2021, was complete and accepted, and that petition was by "George Smith, President Ala Ka La AOAO," Association of Apartment Owners. The Commission voted to grant Mr. Smith standing in the June 16, 2021, hearing; however, neither the discussion nor motion clearly recognized his intended capacity. Therefore, it's necessary to determine and clarify the record as to the capacity in which the Commission granted his standing. This was brought up by our corporation counsel, and we issued a letter on August 17, 2021, requesting clarification of this issue. Mr. Smith has had the other Association of Apartment 1 EXHIBIT C Owners members submit emails authorizing Mr. Smith to represent the Association of Apartment Owners, which has been distributed by the commission. Parties in attendance, we have Mr. George Smith, and John Pipan on behalf of the applicant, as well as Deputy Director Darrow. If you all raise your right hands, I'll swear you in together. Do you swear or affirm to tell the truth on the matter before the Planning Commission? SMITH: I do. PIPAN: (Inaudible—nods in affirmation) VITOUSEK: Thank you. Our staff Planner Alex Roy, Alex, do you have anything that you want to add at this point? ROY: I do not. I'm just here in case there needed to be any, if there was any questions from the commission. VITOUSEK: Okay, mahalo. Mr. Smith SMITH: Yes, sir. VITOUSEK: Is there anything that you would like to present to the commission in addition to what you've submitted in writing? SMITH: Well, I guess, the only thing I would say is that, had I known the intricacies of the application the first time through, I would have clearly stated that I was authorized by all persons. On my resubmittal where I did clarify that I was the president of the association, I and all of the rest of the owners just assumed that that was enough verification that I was representing our association. VITOUSEK: No worries, learning process for all of us, I think. I just, I have a question. Do you have a formal board structure that issues decisions for the president to act on its behalf, or is this just everybody is in agreement we are good to go? SMITH: Well, we, we are spread out, of course; our vice president is in Utah, our treasurer is in Colorado, and I'm here. And we have aI won't say loose but—not highly structured board. We work together. We make sure we verify everything with each other either by email or by text, but we wouldn't have ever even thought that we would need a formal statement for something that's this simple from our perspective. VITOUSEK: And just for our records, on the emails we received where everybody is indicating that they authorize you to represent them, does that constitute everybody in the apartments? SMITH: Yes, that's all the — 2 EXHIBIT C VITOUSEK: All the, all of the owners of the apartment have consented to having you represent SMITH: Yes VITOUSEK: okay SMITH: that is correct. VITOUSEK: Thank you. Is there any other questions for Mr. Smith? [No response] Okay, Mr. Pipan, do you have anything to add at this point? PIPAN: Yes. Thank you, Chair[echo]—sorry, bit of an echo thank you, Chair Vitousek, for asking. My questions would basically echo yours. Was there any formal communications or determination ahead of the petition for standing that documented this decision, or is it an after-the-fact kind of piling on? And, you know, each of the members of the, or owners, at the Ala Ka La Condominium had the opportunity to submit their own petitions for standing as well, so if Mr. Smith is representing them each individually, I think they should have had their own petitions in the case or the AOAO should have had some more formal documentation of their request and representation in the matter. VITOUSEK: Deputy Director Darrow, do you have anything that you would like to add here? DARROW: I agree that this is, you know, especially with this situation that Mr. Smith is in, that this isn't a clear, you know, there isn't clear direction for somebody that's going through this process that might not be familiar with it. With that said, the Planning Department doesn't have any objection to allowing standing for the AOAO. In the past when we had contested cases where there were numerous intervenors, if the concerns and issues were the same by all the intervenors, we basically put them together as one intervention, as one contested case petition, because all the issues were the same. Even if all the other association owners submitted, we would probably do the same in this case, because the issues would be clearly the same. Thank you. VITOUSEK: Okay. Commissioners, are there any questions on the standing of Mr. Smith as representing the Association of Apartment Owners? [No response] Okay, is there, someone make a motion to clarify Mr. Smith's capacity in which standing was granted? Basically, seeking a motion to acknowledge that Mr. Smith was granted standing in the contested case to represent the Ala Ka La Association of Apartment Owners. KANUHA: I think, make a motion to grant Mr. Smith representation of the Ala Ka La's Association and for sending contested case hearing. VITOUSEK: Okay. Delilah, does that motion work for our purposes? 3 EXHIBIT C SCHLUETER: We are just clarifying what standing he was granted in, so we are just clarifying the action that was already taken. So we wouldn't be giving him standing again; we are just clarifying what capacity. VITOUSEK: So we change the motion, Commissioner Kanuha, to clarify Mr. is that okay? KANUHA: Yes. VITOUSEK: Okay. Okay, perfect. The motion on the floor is to clarify that Mr. Smith was granted standing to represent the Ala Ka La Association of Apartment Owners. Is there a second? YATES: [Raises hand to second the motion] VITOUSEK: Second by Commissioner Yates. Discussion? Personally, I thought that that's what we were doing at the time, but I think that the added clarification from the members saying that that's also what they had believed at the time is helpful, and there is no harm in providing the added layer of clarification. So I'll support the motion. Any other discussion? [No response] Seeing none, we'll proceed with the roll call vote. ROY: Commissioner Kanuha? KANUHA: Aye. ROY: Commissioner Yates? YATES: (Inaudible—raises hand and nods) VITOUSEK: That was an aye. ROY: Commissioner Armbruster? ARMBRUSTER: Aye. ROY: Commissioner DeFranco? DEFRANCO: Aye. ROY: And Chair Vitousek? VITOUSEK: Aye. ROY: It passes, five-zero, to clarify that George Smith can represent AOAO in the contested case for Jekaterina Mysin. VITOUSEK: Okay. Thank you very much. Will he be notified of this in writing? 4 EXHIBIT C ROY: Yes. VITOUSEK: Okay. You will be notified of this in writing. Terrific, thank you. SMITH: Thank you, appreciate it, everybody. VITOUSEK: Okay. Aloha. SMITH: Aloha. The discussion ended at 12:48 p.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 5 EXHIBIT C