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HomeMy WebLinkAbout2021-11-04 Windward Exh E ConnectionsCBESS SPP12-138 WINDWARD PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT NOVEMBER 4, 2021 A regularly advertised hearing on the application of CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL/ COMMUNITY BASED EDUCATION SUPPORT SERVICES (CBESS) (SPP 12-000138) was called to order at 11:32 a.m. via live-stream online meeting, with Chairman John Replogle presiding. COMMISSIONERS IN ATTENDANCE: Gilbert Aguinaldo, Joseph Clarkson, Michelle Galimba, Dennis Lin, and John Replogle EXCUSED: Dean Au RECUSED: Thomas Raffipiy ALSO IN ATTENDANCE: Malia Kekai, Esq. (Counsel for the Commission), Jeffrey Darrow, (Deputy Planning Director), Jean Campbell, Esq. (Counsel for the Planning Department), Christian Kay (Planner), and Melissa Dacayanan-Salvador (Windward Planning Commission Secretary) APPLICANT: CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL/ COMMUNITY BASED EDUCATION SUPPORT SERVICES (CBESS) (SPP 12-000138) Consideration and Adoption of Proposed Findings of Fact, Conclusions of Law and Decision and Order for approval and favorable recommendation to the State Land Use Commission of Special Permit No. 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. 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. Secretary's Note: "—" indicates that there were technical and/or internet difficulties, which made the conversation inaudible. REPLOGLE: We're taking up our unfinished business at this point. The applicant Connections New Century Public Charter School Community Based Education Support Services, SPP 12- 000138. Consideration and Adoption of Proposed Findings of Fact, Conclusions of Law and Decision and Order for approval and favorable recommendation to the State Land Use Commission of Special Permit No.12-000138 to develop a K to 12 charter school campus with dorm facilities related — KEKAL Chair, we can't hear you if you're, I don't know. It doesn't seem that you're muted, but we just can't hear you. 1 EXHIBIT E KAY: Malia, I can hear him fine. LIN: I can hear him as well. CLARKSON: Now you are muted John. REPLOGLE: We're going to continue with unfinished business, stop me if you can hear me. Applicant Connections New Century Public Charter School Community Based Education Support Services (CBESS), SPP-12-000138, consideration and adoption of proposed Findings of Fact, Conclusions of Law, and Decision and Order for approval and favorable recommendations to the State Land Use Commission of Special Permit No. 12-000138 to develop a K to 12 charter school campus with dorm facilities and related use 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 applicants Kevin Richardson, Deputy Attorney General (Attorney for applicant Connections New Century Public School), Ted Hong, Esq., (Attorney for the applicant Community Based Education Support Services)— KEKAL Chair, sorry. REPLOGLE: Yes. KEKAL Point of order. REPLOGLE: Please. KEKAL You don't have to do introductions, please have the parties introduce themselves for the record. REPLOGLE: Okay, thank you. Parties, would you please introduce yourself for the record. RICHARDSON: I'll go first, good morning commissions, excuse me, Commissioners and Chair. Deputy Attorney General Kevin Richardson on behalf of applicant Connections Public Charter School. Also present is Romeo Garcia, Director of Connections Public Charter School. GARCIA: Aloha Kakahiaka, this is Romeo Garcia, Connections Charter School Director. HONG: Good morning, my name is Ted Hong. I represent CBESS with me this morning is Heather McDaniels. Heather, you want to give us a wave and John Thatcher. John? Thank you. MATSUKAWA: My name is Michael Matsukawa. I represent the Intervenor Jeffrey Gomes, who might be on the regular YouTube. He was earlier present to give his oral testimony. REPLOGLE: Yes, thank you and the Planning Department? 2 EXHIBIT E CAMPBELL: Good afternoon, everybody Jean Campbell Deputy Planning Director, I'm sorry Deputy Corporation Counsel and with me is Deputy Planning Director Jeffrey Darrow. REPLOGLE: Okay, thank you. I'm going to swear you all in together,please raise your right hand. Do you swear or affirm to tell the truth, on this matter now before the Windward Planning Commission? PARTIES: Yes, I do. REPLOGLE: Okay. Applicants, we have received your proposed amendments to the draft Findings, do you have anything further to add? HONG: Yes, Mr. Chairman, two more things. REPLOGLE: Mr. Hong? HONG: Thank you, on behalf of CBESS I just note that on the draft proposed Findings at Page 16, paragraph F, F as in Frank on one, two, third line on the right-hand side, the word come, c-o- m-e appears that's a typo should be "some"with a"s". Other than that, you have our proposals and certainly, the first amendment that we submitted is to reflect the current status of the school, and the second regarding the Kauai Springs case. We're certainly not married to that, I appreciate the Commission's language and so we're not pushing that particular issue. Then the second thing I wanted to bring up was, I believe that Mr. Thatcher wanted to make a comment as well. REPLOGLE: Mr. Thatcher is this true? THATCHER: Yes, if I could, thank you. REPLOGLE: Please go ahead. THATCHER: I just want to request that I not be questioned about the personal attacks by Mr. Gomes on my family before I can consult with an attorney. REPLOGLE: Of course. HONG: And so, I want to thank the Commission and certainly Corporation Counsel putting this very comprehensive proposed Findings. We'd be happy to answer any questions that the Commission may have in that, thank you. REPLOGLE: Thank you. Is there anyone else for the applicant? Okay, and the Intervenor Mr. Matsukawa, do you have, do you wish to speak on anything? MATSUKAWA: Yes, I'll be brief. We filed exceptions and I trust that the Commission members read the exceptions, as well as the record on appeal. What I think it's important to note is that by State law when Commission members have not heard the original testimony or 3 EXHIBIT E reviewed the original exhibits back in 2012 and 2014 and I think none of the Commissioners in this instance we're present then. Section 91-11 gives parties like the Intervenor the opportunity to direct the Commission members to points that they may have overlooked and to provide written exceptions to the Commission's proposed findings. And so that's why we prepared exceptions to the proposed findings. What I think we need to understand here is and I imagine your county attorney will give you advice. The record as we believe the board, excuse me, the Commission should be aware of was not altogether vacated by the Intermediate Court of Appeals. In this decision it didn't vacate certain findings has been unsupported by the evidence but did not vacate other findings which is what we point out in are exceptions. Those findings that were not specifically vacated by the Intermediate Court of Appeals dealt with three decision criteria. The first one was the effect on surrounding properties and Mr. John Turner believe that was his name this morning adequately and very clearly explained his understanding on this point. I refer you to the original 2014 findings that we're not vacated that's Number twenty-two (22) excuse me Number forty-seven (47) that has to do with adverse effect on surrounding properties. And Number 47 states 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. That finding was never vacated and remains binding on everyone including the Commission. The second provision that was not vacated the 2014 decision is Number 22, which is the second sentence that reads in regard to potable water. However, Connections has not produced any evidence to demonstrate that it has or can develop sufficient water for the development. Again, this finding was not vacated, and it remains binding on all parties and the Commission. The third finding that was not vacated is Number 57. The development of a school will change the essential character of the forested land and its undeveloped views. This again is binding on everyone, including the Commission. The proposed findings that are before you today don't really address these questions or these unvacated points that remain binding. They seem to overlook them and to meld them into some overall balancing of the interest by both argument which the ICA criticize the Commission for doing the first time. With that I can answer any questions I don't want to repeat what's been written. Thank you. REPLOGLE: Thank you Mr. Matsukawa. HONG: Mr. Chair, may I be heard of that? REPLOGLE: Heard of who? HONG: This is Ted Hong, on behalf of CBESS, can I respond to Mr. Matsukawa? REPLOGLE: Yes, you may. HONG: Alright, thank you. 4 EXHIBIT E REPLOGLE: I believe you may. HONG: Thank you. In terms of what Mr. Matsukawa was saying, this is not a second bite of the apple, this is actually their fourth bite of the apple. This is a reconsideration motion or an attempt to do an end around reconsideration motion which is not permissible under the Commission rules. I would point out we had a hearing; you had asked both parties to submit their positions regarding what the scope of the remand instructions were by the Intermediate Court of Appeals. We had a hearing on that in August, and then we had the hearing on the substance merits later on in October. So, my concern is, this is not just going back one step, Mr. Matsukawa wants to take these proceedings back two steps, there was nothing to prevent him from raising this back in August. There was nothing to prevent them from raising this in October and yet after the fact, he now tries to get his fourth bite of apple. It is impermissible, the Commission should ignore it just on the procedural issues or grounds and then adopt its proposed findings. Thank you. REPLOGLE: Mr. Matsukawa, please. MATSUKAWA: I object to what Mr. Hong said. I'm looking at your question that was presented to the parties about the scope of the hearing that we briefed. The question presented was whether the Commission should make a new, excuse me whether the Commission should make a decision on the record as presented or open the record and consider new evidence. That was the only question that was there. Some said, open up the hearing take new evidence. Some said no,just leave the record as it is. So, I think Mr. Hong is mischaracterizing what the Commission was asked to do. This is not a second or third bite. Section 91-11 of State law says when none of the Commission members heard the original evidence but intend to make a decision it must make a proposed decision to which we by statute, State law have a right to file exceptions, thank you. REPLOGLE: Thank you, Mr. Matsukawa. Commissioners, do you have any questions or— LIN: Yes, I do Chair Replogle. REPLOGLE: Yes, Mr. Lin? LIN: I'd like to ask our Planning Commission attorney, Ms. Kekai to address Mr. Matsukawa's comment that we as Commissioners need to make exceptions based off of that section of code or law. Is that correct or incorrect? KEKAL I will say this. On his statement about the Findings of Fact in the memorandum from the Court they basically said, even though they didn't vacate all the findings that the Planning Commission make reconsider any weight it is assigned to this finding and these findings. So, I would disagree that I think that you are locked into these findings, if you guys want to add them back in, we can do that. But at that same token, I will say that the Court gave clear instruction that you guys can weight them how you want to. So, for instance, this one basically refers to Finding of Fact 49 which was, that there was no evidence that Connections had the ability to develop a portable water source. You could put that back in if you so choose, I don't think that 5 EXHIBIT E would change the outcome of your decision. But at the same time, I guess I'll leave it at that. I don't think that you're locked into to these findings or making the same determination that the original Commission did. LIN: Thank you and I think based on my understanding and you may correct me if I'm incorrect. But the ICA's decision was to allow the Planning Commission to make a decision on this case no matter what they said right? Although they said we vacate this, we don't vacate this. Those results is up for us as the Commission to interpret, to understand and used to make our decision. Whether or not we do agree if it was vacated or not that is up to us, and it does not mean that we have to make exceptions? KEKAL I don't know if I would go so far as exceptions, but I will say that once when a Court vacates a decision and remands it back to a Commission. You are basically ordered to follow the Court's orders and therefore you couldn't go back and rely again on a Finding of Fact that was vacated for being arbitrary or clearly erroneous or anything like that. You couldn't do that so that's basically the parameters which in the Commission has to play. You can't go and basically directly contradict something that was already stated. Outside of that the Court gives the agency discretion to make their ruling based on the record. If you had made the same decision as you made initially that would be allowable, but you would have to create more findings to line that up. Now in this situation, where you guys have changed your decision to an approval, you just have to make sure that you have the requisite findings to show that your decision is supported by substantial evidence. REPLOGLE Thank you. Mr. Hong? HONG: I have advised Boards and Commissions before; I've sat on Boards and Commissions before on the State and County level The section that Mr. Matsukawa is referring to, basically says that in the normal course of a Board or Commission when people are cycled through because of terms if somebody comes on midway in a contestant case hearing or something else, what the law requires is that Commissioner has to go back into the record and read the record. That's all it says, it doesn't say anything about making a decision or having had that Commissioner or Board member bound by prior decision. All it says is look, if you're coming in midway into this game, you just got to make sure you know what happened before you came into the game. That's all that section is applies, that is how that section is applied and I submit that Mr. Matsukawa's extension of this argument, or this particular section of the law is inappropriate similar to his extension of the Kauai Springs's case. But anyway, that's another issue. Thank you. REPLOGLE: Anyone else? Planning department anything? CAMPBELL: Nope nothing from us. The Planning Department is satisfied with the draft findings, conclusions, and order as they're drafted. Thank you. CLARKSON: So, I have procedural question. So— REPLOGLE: Yes, please. 6 EXHIBIT E CLARKSON: If a commissioner has a problem with a particular finding, do we pick that up as part of the discussion after a motion or do we discuss it now? KEKAL We should have a motion first before discussion. REPLOGLE: Okay. So. GALIMBA: Can I make a motion.? REPLOGLE: Yes. GALIMBA: I move that the Proposed Findings of Fact, Conclusions of Law, Decision and Order to be approved and adopted. LIN: I second. REPLOGLE: It's been moved by Ms. Galimba and seconded by Dennis Lin that we accept the proposed Findings of Fact, Conclusions of Law, and Decision and Order to be approved as adopted. Any discussion? Mr. Clarkson? CLARKSON: Yes, the main finding I don't have the number in front of me relates to the issue of public trust. Wherein the findings states that the Commission considered public trust and based on the use of the property felt that the public trust interest was protected. Whereas in fact the Commission did not consider the public trust. I want there to be a finding about public trust in the findings, but I feel that it must be either that the Commission did not consider public trust because, as Mr. Hong states it's not relevant to this issue. Or that the Commission did not discuss public trust because it's relying on the Land Use Commission to do so, but not that we actually did consider it and found that it was protected. So, I strongly object, I made a motion at our last meeting to actively consider the public trust and that motion was defeated I think three to two. And so, to say now that the Commission found that the public trust was protected is completely inaccurate. It's either relevant and we didn't consider it or it's completely irrelevant and we should just so say in our findings. REPLOGLE: So, is that something you would have wanted to put as an amendment to the Findings of Fact and Decision or, what are you saying? CLARKSON: Well, I'll ask our Counsel. Applicant's Counsel has claimed that public trust does not apply in this situation. I find that implausible but if the rest of the Commission agrees, then we should adopt the applicant's language for that finding rather than have a finding that in fact the Commission did not even discuss. So, that would be my suggestion, if I need to make a motion for an amendment, I would do that. I would say that we should adopt the applicant's proposed language that public trust is not relevant to this case because this is not prime agricultural land. And we'll let this be decided by another other court on appeal. 7 EXHIBIT E GALIMBA: Could I say something? REPLOGLE: Yes, Ms. Galimba? GALIMBA: Thank you. So, I would say that from my understanding of public trust doctrine. It would be relevant, and I would say that I considered it, even though we didn't have an active discussion or an extended active discussion about it. At the time that we were discussing the motion that Commissioner Clarkson was speaking about the intervenor's attorney declined to argue that point which did go into my decision. So, there was some discussion around that so to sum up, I guess I believe that the public trust doctrine was considered albeit in a brief form. And so, I don't think there needs to be that sort of dichotomy that Commissioner Clarkson is suggesting. REPLOGLE: Thank you. GALIMBA: If you understand that I will give you a gold star. REPLOGLE: Anybody else Commissioners? LIN: I'm inclined to go with Mr. Clarkson's latter argument that if we are going to either put in the public trust doctrine language in there, based on what my understanding of it. If the area is unsuitable for agriculture, but the school is working towards conserving it and utilizing it for, what is it called here, preserving its natural beauty and natural resources. I think there is an argument there that they are trying to preserve it but it's just not suitable for the optimal use of that land. So, I would be inclined to put in the applicant's language in that section. I agree with that we didn't discuss it in depth. We just kind of glanced over at our last discussion. REPLOGLE: Any other thing? I would like to say I definitely considered the public trust and I think considering that the land was graded as poor agricultural and the schools plan to teach agriculture in greenhouses or hydroponically is promoting agriculture on land unsuitable for agriculture something that is going to be important in Hawaii's future. Also, that the larger portion of the property their plan is to preserve the forest, have a trail or whatever for educational purposes teaching the children about what's going on in our native forest, replanting,producing native plants in their greenhouse for that matter. I think the public trust is considered well in here with what they're doing, and I agree we didn't have a big discussion on it, but I wouldn't let the public trust slide believe me. Anyway, I'm not 100% sure, we have a motion on the floor, and it sounds like we need to defeat that motion if we want to add what Mr. Clarkson and Mr. Lin are talking about or we should just have a vote and there you go. KAY: Mr. Chair the only— REPLOGLE: Yes, Mr. Darrow? KAY: Oh, sorry. 8 EXHIBIT E DARROW: Just quickly, were in discussions that this "—"you have the proposed Findings of Fact, Conclusions of Law and Decision and Order you're reviewing that at this time. There's a finding of that goes into detail on the public trust doctrine. That's' something you can review right now, if you agree with that finding of fact, you can vote to approve as part of the overall final Findings of Fact, Conclusions of Law and Decision and Order. Just a thought, thank you. REPLOGLE: Thank you, Mr. Kay? KAY: I was just going to say procedurally there's only one motion on the floor right now, and that is to adopt as drafted. Should there be a request to amend that motion than the Commission could consider that. REPLOGLE: Okay, thank you. CLARKSON: I'm sorry I made that motion, and although I don't think there was a formal second to amend. KAY: My apologies. So, we would need a second to— LIN: I can second Mr. Clarkson's amendment. REPLOGLE: Was that an official amendment Mr. Clarkson or were you talking hypothetically? CLARKSON: Oh no, I made after some discussion of the original motion to approve and after hearing Commissioner Galimba's comments I am moving to adopt the applicant's language to the effect that public trust doctrine does not apply in this case because it's not prime agricultural land. And rather than the finding that was I don't want to say conjured out of thin air, but I certainly don't remember any discussion of public trust issues that I think would comply with the Kauai Springs directive from the Supreme Court all the ABCDE things that we have to do. So, if we're not going to do that then let's just say outright that public trust does not apply and that's what the applicant's attorney has suggested and let's go with his language. KAY: And what is that particular finding again Mr. Clarkson? CLARKSON: I don't have it; it was the I don't have the number in front of me. LIN: I believe it was Number 66. KAY: Thank you. KEKAL Okay, point of order. REPLOGLE: Yes, please. KEKAL So, if there are going to be more amendments made then I don't want to piecemeal this and have an amendment, then another motion of amendment and then another motion for an 9 EXHIBIT E amendment. I think we have the initial motion on the floor, Commissioner Galimba you can either withdraw or you can keep your motion which has already been seconded. And then we can move on if you would like to do that, then we can move on to another motion, but unless we're going to switch the motion to approval with amendments, and then we can go through those amendments if you guys so choose. REPLOGLE: So, we should probably vote on this motion on the floor, and if it passes then it's done. If it doesn't, we could go to motions with amendments. Does that make sense? LIN: Or Commissioner Galimba could withdraw her original motion. REPLOGLE: Okay. I don't wish to pressure her. KEKAL It's her decision. GALIMBA: I don't, I'm not going to try it. REPLOGLE: Thank you okay. So, we have motion before, is there any other further discussion? We have a motion before the Commission moved the proposed Findings of Fact, Conclusions of Law and Decision and Order be approved and adopted. Oh, this should probably be a roll call vote Mr. Kay? KAY: Yes, Mr. Chair, if I may, there are actually 2 active motions on the floor that have been moved and seconded. There's the main motion, which was as you just stated, and then a second motion, which is to amend the Findings of Fact with the amended finding. So, if you adopt as is then you don't have an opportunity to hear that secondary motion. REPLOGLE: Okay, but isn't it supposed to be, you have one motion at a time on the floor? And I admit another motion was made and seconded and maybe I should have stopped it right there but— KAY: Yeah, I will say this with the Leeward Planning Commission we've been advised that and this this happens with the County Council as well,when there is a main motion on the floor a secondary motion can be made to amend that main motion. You handle that secondary motion first and then you go to the original motion to deal with, and so, similar to what you talked about, we could hear the secondary motion, to see if we are going to amend the language within the Findings of Facts and then deal with the original and that would essentially amend the main motion. REPLOGLE: Okay, thank you. Mr. Clarkson?— CLARKSON: Yeah, I agree REPLOGLE: One moment, one moment please. You are going to have to state your motion again for the record but go ahead. 10 EXHIBIT E CLARKSON: Before I do it again, I would just like some clarity because there seems to be a procedural disagreement between Mr. Kay and our Counsel as to how this should be done. Counsel Kekai has said that the motion to amend has to be— KEKAL Mines is more a logistical thing Chair I mean Commissioner Clarkson. I'm saying, if you guys are going to make multiple amendments, I would like them to be all in one motion. Instead of continually making a motion to amend the original motion to amend the original so if there's other amendments that need to be made at this point like if you're going to adopt the applicant's suggestion to change the typo. Then put that in here or anything else, or if it's just including just Number 66 and the Commission is satisfied with that, then we can act on the second motion first. REPLOGLE: Okay. CLARKSON: I have no interest in making a motion regarding the typo. I only have an interest in the Finding of Fact 66 and will not be proposing or moving any further amendments. REPLOGLE: Okay, why don't you make your official amendment, and we'll get a second or at least state what you said earlier, so we can go on. Mr. Lin already seconded what you said but I want everybody to know what you said before we go on. CLARKSON: I want to amend the original motion that was made by Commissioner Galimba which was for approval of the Findings of Fact, Conclusion of Laws, and Decision and Order to substitute applicants proposed language which I don't want to have to repeat because I don't have it in front of me, but I know the gist of it for Finding of Fact 66 related to public trust. REPLOGLE: Okay. CLARKSON: That was my motion. REPLOGLE: Thank you and Mr. Lin seconded it. LIN: I stand with my second. REPLOGLE: Okay, thank you. Again,just to be safe is there any more discussion on that? Okay, Mr. Kay would you do a roll call on that amendment and then we go to Ms. Galimba's motion correct? KAY: That's correct. Okay, thank you. Commissioner Clarkson? CLARKSON: Aye. KAY: Commissioner Lin? LIN: Aye. ll EXHIBIT E KAY: Commissioner Aguinaldo? AGUINALDO: Aye. KAY: Commissioner, I'm sorry, Chair Replogle? Pardon me, Commissioner Galimba? GALIMBA: Sorry, I was on mute. Aye. KAY: And Chair Replogle? REPLOGLE: Aye. KAY: Thank you Mr. Chair, motion carries with five(5) ayes zero (0)noes. REPLOGLE: Okay and now we're going to the motion made by Commissioner Galimba that the proposed Findings of Fact, Conclusions of Law and Decision and Order be approved as adopted. Mr. Kay? KAY: Yes, thank you Mr. Chair. Commissioner Galimba? GALIMBA: Aye. KAY: Commissioner Lin? LIN: Aye. KAY: Commissioner Aguinaldo? AGUINALDO: Aye. KAY: Commissioner Clarkson? CLARKSON: No. KAY: And Chair Replogle? REPLOGLE: Aye. KAY: Thank you, Mr. Chair motion carries with four (4) aye votes and one (1) no vote. REPLOGLE: Alright, so, are there any agenda items for the next meeting. HONG: Mr. Chairman, thank you. REPLOGLE: Yes. 12 EXHIBIT E HONG: May we be excused? REPLOGLE: Yes, yes, you all may go we're going do our commissioner business. HONG: Okay. REPLOGLE: Thank you all for attending. Thank you for your kind way of speaking. HONG: Appreciate it. GARCIA: Thank you. THATCHER: Thank you. The item ended at 12:14 p.m. Respectfully submitted, Melissa Dacayanan-Salvador Secretary Windward Planning Commission 13 EXHIBIT E