The URL can be used to link to this page

Home My WebLink About11-03-2021 Applicant Opposition to Intervenor's Exceptions to Proposed FOF, COL, DO 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 COMMUNITY BASED EDUCATION SUPPORT SERVICES BEFORE THE COUNTY OF HAWAII WINDWARD PLANNPN'G COMMISSION In the Matter of ) SPP No. 12-000138 CONNECTIONS NEW CENTURY ) APPLICANT COMMUNITY BASED PUBLIC CHARTER SCHOOL and ) SUPPORT SERVICES' MEMORANDUM COMMUNITY BASED EDUCATION ) IN OPPOSITION TO INTERVENOR SUPPORT SERVICES, ) JEFFREY GOMES' EXCEPTIONS TO COUNTY OF HAWAII WINDWARD Application for Special Permit Application ) PLANNING COMMISSION'S PROPOSED No. 12-000138, ) FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER ON TMK: (3) 2-5-006-141; Kaumana, South ) REMAND, DATED NOVEMBER 1, 2021; Hilo, Hawaii. ) CERTIFICATE OF SERVICE HEARING: DATE: November 4, 2021 TIME: 9:00 a.m. APPLICANT COMMUNITY BASED SUPPORT SERVICES' MEMORANDUM IN OPPOSITION TO INTERVENOR JEFFRFY GOMES' EXCEPTIONS TO COUNTY OF HAWAII WINDWARI) PLANNING COMMISSION'S PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION and ORDER DATED NOVEMBER 1, 2021 Comes Now, Applicant, COMMUNITY BASED EDUCATION SUPPORT SERVICES, (hereinafter referred to as "CBESS"), by and through its undersigned counsel and hereby submits its Memorandum in Opposition to Intervenor Jeffrey Gomes' Exceptions to County of Hawaii Windward Planning Commission's Proposed Findings of Fact, Conclusions of Law, Decision and Order Dated November 1, 2021, as follows: A. OBJECTION Intervenor Jeffrey Gomes' Exceptions to County of Hawaii Windward Planning Commission's Proposed Findings of Fact, Conclusions of Law, Decision and Order Dated November 1, 2021, were only served on counsel for Applicant CBESS on November 2, 2021. Counsel for Intervenor continues to play games by having emailed the document to the Windward Planning Commission but only mailed his motion and memorandum on November 1, 2021 and did not have the professional courtesy to email the document to Applicant CBESS' counsel. Intervenor Jeffrey Gomes and his counsel's actions violate Applicant CBESS' right to due process. Applicant CBESS does not have time to process, analyze and submit an opposition memorandum to challenge and disprove the flawed analysis and argument proffered by Intervenor Gomes and his counsel. Applicant CBESS is deprived of adequate "notice and and opportunity to be heard at a meaningful time and in a meaningful manner[,]" on the issues raised by Intervenor Gomes and his counsel. Mauna Kea Anaina Hoar v. Bd. of Land and Natural Res., 136 Hawaii 376, 389, 363 P.3d 224, 237 (2015). Taking any official action based on the intentionally, late submission, would violate Applicant CBESS' right to due process. B. RECONSIDERATION NOT "EXCEPTIONS." Intervenor Jeffrey Gomes' Exceptions to County of Hawaii Windward Planning Commission's Proposed Findings of Fact, Conclusions of Law, Decision and Order Dated November 1, 2021, are not exceptions but another attempt to argue the scope of the rehearing on 2 remand and the merits of the Special Permit. The Commission previously allowed all parties to submit briefs and argue their positions on the scope of the Intermediate Court of Appeals remand in this case. The Commission held a public meeting on it on August 5, 2021, during which it took testimony from the public and argument from the parties in this matter. The Commission then took action and set the hearing on the Special Permit for October 17, 2021. Even a cursory review of Intervenor Gomes' and Mr. Matsukawa's "exceptions" clearly demonstrates that their submission reargues, rehashes and repeats their prior argument and positions. Intervenor Gomes and Mr. Matsukawa fraudulently label their extensive filing as "Exceptions" because under the County of Hawaii, Planning Commission Rules of Practice and Procedure (amended 8-9-2021), they are prohibited from filing a motion for reconsideration. Rule 4-31, of the County of Hawaii, Planning Commission Rules of Practice and Procedure (amended 8-9-2021) clearly states: 4-31 Reconsideration of Decision and Order. The Commission shall not reconsider its action in any contested case hearing after the effective date of its decision. (Emphasis added) Intervenor Gomes and Mr. Matsukawa are deliberately and intentionally trying to circumvent the Commission's rules of procedure by disguising their argument to have the Commission impermissibly reconsider its decision from the October 7, 2021 hearing. Mr. %11atsukawa, as former Corporation Counsel for the County of Hawaii should know better. He also has a professional obligation to follow the rules of procedure for all commissions, boards and administrative agencies. Rules 3.3(a)(1) and 3.9, Hawaii Rules of Professional Conduct, a lawyer shall not make a false statement of law to the Commission. In this case, the false statement is stating that their submission is an"exception"when in reality, it is a motion for reconsideration of the Commission's decisions on the scope of the remanded hearing made on August 5, 2021 and then on the merits of the Special Permit hearing on October 7, 2021. Their motion is emblematic of their lack of credibility in this case. They think it's entertaining to watch the Commission thrash about after raising these improper arguments. If the Commission's rules are to be applied equally to all parties, the Commission should not reward them for their underhanded tactics. C. STANDARD FOR RECONSIDERATION. Generally, the standard to consider a Motion for Reconsideration includes: [T]he purpose of a motion for reconsideration is to allow the parties to present new evidence and/or arguments that could not have been presented during the earlier adjudicated motion. Reconsideration is not a device to relitigate old matters or to raise arguments or evidence that could and should have been brought during the earlier proceeding. (Citations omitted) Tagupa v. Tagupa, 108 Haw. 459, 465, 121 P.3d 924, 930 (Ct. App. 2005). The "exceptions" submitted by Intervenor Gomes and Mr. Matsukawa are clearly argument about the scope of the Remand proceeding, that could have been presented at the August 5, 2021, by written submission before the hearing or at the hearing through argument. Mr. Matsukawa attached two excerpts of briefs that were submitted to the Intermediate Court of Appeals in the underlying appeal. He then goes on to list what he believes should have been narrowed in terms of the scope of the remanded hearing which was argued and decided on August 5, 2021. Intervenor Gomes and Mr. Matsukawa reargues the merits of the Commission's hearing and decision at its October 7, 2021 hearing, which granted the Special Permit Application. They are simply relitigating the same matters and raising arguments that they could 4 and should have made during the October 7, 2021 hearing. D. CONCLUSION. Applicant CBESS, has at all times, followed the rules and been mindful of the Commission's role and rules of procedure. Applicant CBESS has been respectful of the process, despite the criminal property damage to its facilities and equipment, trespasses and more recently a physical assault of an employee by surrounding property owners. Intervenor Gomes and Mr. Matsukawa mock the process by asking the Commission to reconsider the scope of the remanded hearing which was decided upon on August 5, 2021. Intervenor Gomes and Mr. Matsukawa show their contempt for the process, the facts, the evidence and truth by filing this frivolous motion for reconsideration as "exceptions." This is not a game of"Chutes and Ladders." Unlike a Court's rules and procedures, the Commission's rules and procedures do not allow the Applicant to ask the Commission for an award of attorney's fees and costs against Intervenor Gomes and Mr. Matsukawa for their frivolous filing. Accordingly, Applicant CBESS respectfully requests the Commission, reject Intervenor Gomes and Mr. Matsukawa's Exceptions to County of Hawaii Windward Planning Commission's Proposed Findings of Fact, Conclusions of Law, Decision and Order Dated November 1, 2021. DATED: Hilo, Hawaii, November 3, 2021. :D H. S. HONG Attorney at Law Attorney for Applicant COMMUNITY BASED EDUCATION SUPPORT SERVICES BEFORE: THE COUNTY OF HAWAII WINDWARD PLANNING COMMISSION In the Matter of ) SPP No. 12-000138 CONNECTIONS NEW CENTURY ) CERTIFICATE OF SERVICE PUBLIC CHARTER SCHOOL and ) COMMUNITY BASED EDUCATION ) SUPPORT SERVICES, ) Application for Special Permit Application ) No. 12-000138, ) HEARING: DATE: November 4, 2021 TMK: (3) 2-5-006-141; Kaumana, South ) TIME: 9:00 a.m. Hilo, Hawaii. ) } CERTIFICATE OF SERVICE The undersigned hereby certifies that the Applicant Community Based Support Services' Memorandum in Opposition to Intervenor Jeffrey Gomes' Exceptions to County of Hawaii Windward Planning Commission's Proposed Findings of Fact, Conclusions of Law, Decision and Order Dated November 1, 2021, was duly served on the following party in this action, by United States Postal Service, prepaid and by electronic means as indicated: Kevin M, Richardson, Esq. Kevin.m.richardson@hawaii.gov Deputy Attorney General State of Hawai'i 235 South Beretania Street, Room 304 Honolulu, Hawai'i 96813 Attorney for Applicant Connections New Century Charter School 1 Angelic Malia Hall, Esq. AngelicMalia.Hall@hawaiicounty.gov Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawai' I 96720 Attorney for County of Hawai 'I, Windward Planning Commission Michael J. Matsukawa, Esq. Territorial Centre, Suite 201 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Attorney for Intervenor Jeffrey K. Gomes Mr. Jeff Darrow Deputy Planning Director County ofHawai'i Planning Department 101 Pauahi Street, Suite 3 Hilo, Hawai'i 96720 The Hon. Elizabeth Strance Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Planning Director DATED: Hilo, Hawaii, November 3, 2021 ,'�T-EDT4. S. HONG Attorney at Law Attorney for Applicant COMMUNITY BASED EDUCATION SUPPORT SERVICES