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HomeMy WebLinkAbout2003-01-17 TBLASMAN PLANNING COMMISSION CONTESTED CASE HEARING TRANSCRIPT WAYNE BLASMAN (SMA 02-03) JANUARY 17, 2003 A regularly advertised public hearing on WAYNE BLASMAN (SMA 02-03) was called to order at 9:40 a.m. in the County Building, Councilroom-Room 201, 25 Aupuni Street, Hilo, Hawai`i, with Chairperson Fred Galdones presiding. PRESENT:Fred Galdones ABSENT & EXCUSED: Aurelio C. Mina, Jr. Earl Fujikawa Hannah Springer Geraldine Giffin Florence Kubota Jeffrey McCall Francis Smith Grant Togashi Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Alice Kawaha, Staff Planner Susan Gagorik, Staff Planner Esther Imamura, Staff Planner Larry Brown, Staff Planner And approximately 10 people from the public in attendance. APPLICANT: Review of the status of appointed Hearing Officers in light of expiration of terms as Planning Commissioners, relating to WAYNE BLASMAN'S (SMA 02-03) application for a Special Management Area Use Permit to allow the development of a 13-unit condominium project and related improvements. The ` property is located on the east side (mauka) of Alii Drive in the vicinity of Hlualoa Bay and across of the Keolonhihi State Historical Park at Kamoa Point, Hlualoa 4, ` North Kona, Hawaii, TMK: 7-7-4:26. GALDONES:Commissioners, we are under Item No. 2 under Unfinished Business. This is a review of the status of appointed Hearing Officers in light of expiration of terms as Planning Commissioners, relating to Wayne Blasman's (SMA 02-03) application for a Special Management Area Use Permit to allow the development of a 13-unit condominium project and related improvements. Staff? KAWAHA:Thank you, Mr. Chairman. This particular SMA application was brought up at the August 2 nd, 2002 meeting, and there were several contested case 1 EXHIBIT B petitions that were filed. I believe there were four Intervenors. And at that meeting, three of the Commissioners volunteered to be Hearings Officers; and they were, they are Commissioner Geri Giffin, Commissioner Grant Togashi, and Commissioner Hannah Springer. And due to the CommissinmdqFheehmlr`mcBnllhrrhnmdqSnf`rgh&r term ending as of December 31, however, they are being held over, this matter has come up as to whether they would still be continued as a Hearing Officer, and this is what the Commissioners will have to discuss. GALDONES:In terms of the hold-over of Commissioner Togashi and Commissioner Giffin, are they still qualified to serve as the Hearings Officer? KAWAHA:The hold-over is for no more than 90 days, and I'm aware that there is a nominee to replace Commissioner Togashi that will be taken up by the County Council next week, Wednesday, I believe. GALDONES:There were four Commissioners who had signed up as the Hearings Officers for this case? KAWAHA:There were three. GALDONES:Three. Could we continue to proceed with those three? KAWAHA:Maybe if I can defer to the Counsel to say a few words on it. GALDONES:Counsel? TORIGOE:Thank you, Mr. Chair. I think if you would like to have these three Commissioners continue on, even though a couple of them will be going off, what you could do, I think, is simply have a motion to authorize that they continue as a panel even though they may, some of them may be terminating their terms. I'd also recommend that, for clarity, you authorize them to make a recommendation by a majority vote because, you know, it can get kind of confusing if you don't make clear the way they're supposed to make their decision. GALDONES:Commissioner Giffin and Commissioner Togashi, Commissioner Giffin first, do you wish to continue to serve as one of the Hearings Officers on this case of Wayne Blasman? GIFFIN:You know, it has always been my pleasure to serve the County, and this is no exception. However, I do have some questions of Counsel regarding his -. How long do you think this contested case is going to take, Mr. Torigoe? TORIGOE:I really couldn't give you an educated guess on that. 2 GIFFIN:Do you think it might extend beyond 90 days? TORIGOE:I suspect it might. Mr. Vitousek is here, he represents the Applicant, I don't know if he might have any, you know, suggestion on that; but I suspect it may last beyond the termination of your term. GIFFIN:Then what? What do we do? TORIGOE:Well, that's why I'm suggesting that the Commission authorize you and Mr. Togashi to continue on in that capacity as Hearings Officers past the termination of your term, should that occur. It's -, there is ample precedent for former Commissioners, especially Chairpersons, continuing on as Hearings Officers or functioning as Hearings Officers. GIFFIN:Excuse me, one more time? TORIGOE:There are other instances of other -. GIFFIN:Oh. TORIGOE:Former Commissioners -. GIFFIN:Oh. TORIGOE:Functioning as Hearings Officers. GIFFIN:Oh. There is a history of that? TORIGOE:There is some, yes, especially Chairpersons. GIFFIN:I'm going to acquiesce to Mr. Togashi because I know he has some thoughts on this issue. GALDONES:Mr. -. TOGASHI:I was wondering if this contested case hearing does extend beyond the 90-day layover period, and if Commissioners, or if Commissioner Giffin and I, let's say, agree to serve as Hearings Officers, wouldn't we be serving in a capacity as a, kind of like a un -, non-paid, non-Commissioner? We wouldn't be Commissioners at that time, we would be basically volun -. GALDONES:Volunteers. TOGASHI:Unpaid -. 3 TORIGOE:That's correct. GALDONES:Volunteer Hearing Officer. TORIGOE:Unless you want to talk to Mr. Yuen about -. TOGASHI:That's weird, right? Isn't that weird to be -? GALDONES:If it's -. TORIGOE:I don't think there's any -. YUEN:Well, that would be the status, you would be volunteers serving as Hearing Officers. You would no longer -. TOGASHI:Be Commissioners. YUEN:Once the new Planning Commissioners have been confirmed, you would no longer be Commissioners. It does not fall under the procurement code because you would not be paid. TOGASHI:Right. Oh, we won't be paid? YUEN:I'm sorry about that but -. TOGASHI:Let me say, would it be further clouding the issue to have a one Commissioner who is, one of the Hearings Officers who is a Commissioner and two Hearings Officers who are not Commissioners? I mean you have a mixed panel, yeah. Doesn't it somewhat maybe cloud the issue in a way? YUEN:I don't think it clouds it from any kind of -. TOGASHI:Decision making? YUEN:Legal procedural means. One of the three is a Commissioner and the other two are not, but you will be presenting a recommendati Commission to vote on. Only one of the Commissioners would then vote, would essentially vote twice; the others would, the other two would not. FUJIKAWA:Mr. Chairman? GALDONES:Commissioner Fujikawa. 4 FUJIKAWA:Yeah, this is for the Corp. Counsel. On this particular one, it would be considered as one case, so they would be protected by the law, right? TORIGOE:When you say one case, what do you mean by that? FUJIKAWA:In other words this hearing, the hearing that they're going to be doing is one case, it's not a new case coming about? TORIGOE:That's correct. FUJIKAWA:It's a continuous? TORIGOE:It's a continuing case, right. FUJIKAWA:So the law would protect them on that as far as a non- Commission position? TORIGOE:Well, they would be, I think what we're looking at today is actually authorizing them to continue on. FUJIKAWA:Okay. TORIGOE:As Hearings Officers, official Hearings Officers. FUJIKAWA:Okay. TORIGOE:So they would be functioning under the legal authority of the Commission. FUJIKAWA:Great. TORIGOE:And they would be making a recommendation to this Commission, which then the Commission can take it up to make its final decision. And we can also make sure that the parties have no objections to this if the Commission wants to do this. Mr. Vitousek is here, and we can also check with the other parties who are not here just to make sure that there's no objection to that. GALDONES:Commissioner Kubota. KUBOTA:I have a question about the procurement process. It's my understanding that when non-Commissioners serve as Hearings Officers or in a panel, they get compensated. Is that correct, first of all? 5 YUEN:Well, if there's going to be compensation, then we have to go through the procurement process and we have to go through our list. We have a list of people that have applied. I do think as far as, there is one former Commissioner who is on our list, and he does get compensated. I think that there -. And I would ask Ivan to check this, and I don't know if he knows it off the top of the head, I think that there would be a problem with a Commissioner who had been involved in a matter while they were a Commissioner then becoming a compenr`sdcGd`qhmfNeehbdqnmsg`s-Sg`s&ri- KUBOTA:So for the two of them, it's a no-win situation as far as time is concerned and expenditure of energy is concerned. They'll just be giving it a pro bono kind of thing. YUEN:For love and aloha and -. KUBOTA:Aloha. YUEN:Community service. KUBOTA:With lots of love. YUEN:That's -. KUBOTA:Okay, guys, it's up to you. YUEN:That's true. And so the first, I think the first question is their willingness to do so. And then if they are willing to do so, then I think the Commission has to ratify that they can continue to do so after their term of service is pau. Because I think it is quite likely that there will be new Commissioners on board by the time the contested case is ready, by the time it certainly goes to full hearing with the Hearings Officers. KUBOTA:Mr. Chair? GALDONES:Commissioner Kubota. KUBOTA:Just to continue on that point. What's the flip side of that? What if they refuse -? What are the alternatives if not them? YUEN:Then I think the Commission needs to decide -. I can't remember when the vote was taken, the Commission voted to go to Hearings Officers. Then there was a call for volunteers, and there were three volunteers. And the Commission -. Or am I wrong, or did -? I think there were -, I think you guys, the three of you volunteered or were your arms twisted somehow? Am I mistaken here? And the 6 Commission voted to have the three. I think the Commission would, if you're only going to have one, I would guess the Commission should vote again to have one -. KUBOTA:That's -. YUEN:If there's only one willing to serve instead of three, or maybe there's more Commissioners willing to do it now, I don't know. GALDONES:I think the first order is to ask Commissioner Giffin and Commissioner Togashi if they want to continue to volunteer as Hearings Officer in this case. Then that, from there, we shall decide whether we need to have a replacement or just proceed with the one. So may I direct the question to Commissioner Giffin -. GIFFIN:Yes. GALDONES:If she does want to continue. GIFFIN:Mr. Chairman, I think that before I make a decision on record, I would like to hear from Mr. Vitousek and to get his perspective regarding the length of this contested case. That makes a big difference to me. GALDONES:Okay. GIFFIN:I have shades of Kohala Woodvale -. GALDONES:Okay. GIFFIN:In which case my answer would be no. However, if it's not and it's something manageable, then I think that that's something that I would consider favorably. But I'd like to hear from Mr. Vitousek first. GALDONES:Before I call on Mr. Vitousek, Mr. Togashi. TOGASHI:No, you can defer to Mr. Vitousek. GALDONES:Okay. May I call Mr. Vitousek to the mike, please. I need to swear you in. Mr. Vitousek, please raise your right hand. Do you swear or affirm to ` tell the truth on this matter now before the Hawaii County Planning Commission? VITOUSEK:Yes. GALDONES:Thank you. Could you state your name, resident address, and you may proceed. VITOUSEK:Randy Vitousek, P.O. Box 2650, Kamuela. 7 I guess I'd start off by reminding Ms. Giffin that I represented the Intervenor in Kohala Woodvale, not the Applicant. And the Applicant in this case is very anxious to proceed with the contested case hearing. I think it should be, you know, relatively straight forward. I guess the difficulty we've been having is in getting it scheduled, and that I think that has resulted in the Corporation Counsel just setting a scheduling conference so that the parties don't have the option of not returning phone calls and not coming, or whatever. So it is the intention of the Applicant to have the matter set for contested case hearing and go to hearing. I think the issues are pretty much out on the table, and they're just, we'd just like to get it done. You know, I certainly agree with Mr. Torigoe to the effect that, if the Commission so decides, it can appoint a former Commissioner or anyone else as a Hearings Officer, a non-compensated Hearings Officer, or if they are on the Planning Department's procurement list as a paid Hearings Officer. Now I, you know, on behalf of the Applicant, I would say that we would like to proceed to the panel as set. We think it's a good group of Hearings Officers, and we'd like to move forward. GALDONES:Commissioner Giffin, any further thoughts or questions that you would like to address? GIFFIN:I know that members, as a member of the Planning Commission, if we serve as Hearings Officers, then we are given the support of the Department, right, Mr. Yuen? But as volunteers, then what kind of support would we be receiving? For example, I could not see serving on this panel without the support services of Mr. Torigoe nor of Staff. YUEN:We'll give the same staff support. And we -, well, we'll give the same staff support. And I'm not sure, is it necessary for them to attend things like the pre-hearing conference? TORIGOE:All of the Commission? YUEN:The -. TORIGOE:All of the Hearing Officers? YUEN:The Hearing Officers? TORIGOE:No. YUEN:We were going to do that without the -. TORIGOE:Yeah, I think as long as -. 8 YUEN:Hearings Officers, right. TORIGOE:As long as we have the calendar, and we had assumed that Ms. Giffin was going to be the, basically the chairperson on the panel, as well. GIFFIN:She need not be though. TORIGOE:But may not be. GIFFIN:I mean, you know. TORIGOE:Yeah. GIFFIN:If it's -. YUEN:No, we would give the full logistics and staff support exactly the same as if you were still on the Commission. GIFFIN:Thank you. GALDONES:Commissioner Togashi, any thoughts or any questions that you'd like to share? TOGASHI:I guess my question would be directed to Commissioner Giffin. I mean, personally, I have, you know, when Commissioner Kubota mentioned that it would be a no-win situation for us, I'm thinking, well, given that, I had some hesitancy in serving. But at the same time, I mean, if you'd like to continue to serve as Hearings, as a Hearings Officer, I wouldn't want to, I guess by effectively removing myself, I wouldn't want to jeopardize your, I guess, feelings, as well. So I mean if you'd Mr. Vitousek is saying that, you know, it'll get off the ground fairly soon, it's probably not going to be another Kohala Woodvale, and you'll probably gain the support of the staff or get the support of the staff, and given that, if you'd like to hang on as a Commissioner -. I wouldn't want to, I guess, not give you that opportunity. For me, I mean, it's, I'm very flexible. But if you'd like, if your feeling is negative, then let's just remove ourselves. But if you'd like to hold-over, I'd be willing to provide some opportunity for you as well as myself. GALDONES:Commissioner Giffin. GIFFIN:Mr. Chairman, then in that regard, I would be willing to serve. And the reason is, as Mr. Togashi knows, I think that when a per commitment, that there is the person's word, and I think that that word is strong. And we made that commitment and I'm willing to follow up with it, knowing that the County will 9 be providing the support that we need and that we have Mr. Vitousek's word to try to move this on -. TOGASHI:So one year from now -. GIFFIN:In a timely manner. TOGASHI:Then it's still not going to be, we're still not going to be Commissioners. GIFFIN:Yeah. TOGASHI:Okay. So in that case then, if the Commission, overall Commission feels that we would be fine as Hearings Officers, serve on the hearings panel, I don't have any objection to serve in that capacity. GALDONES:As the Chair on the Commission, I would like to thank Commissioner Giffin and Commissioner Togashi. You have given your due service to the County and to the community serving as the Commissioners, and to carry it forward and continue as a Hearings Officer in this case, that is commendable as far as I am concerned; and I appreciate you folks continuing to serve as the Hearings Officer. Alice, that being the case, that we still have the three individuals serving as Hearings Officers, is there a possibility, this question is directed to Counsel, is there any, do we need to act upon it yet or reconfirm? TORIGOE:Yeah, I think that would be wise to have a motion to officially authorize them and appoint them, and continue their appointments as Hearings Officers, notwithstanding the termination of any of their terms as Commissioners. And as I said, you know -. KUBOTA:Mr. Chairman? GALDONES:Commissioner Kubota. KUBOTA:Hearing the Counsel, I would like to move that we authorize Geraldine Giffin and -. GALDONES:Grant Togashi. GIFFIN:Grant Togashi. KUBOTA:Grant Togashi to serve as Hearings Officers, notwithstanding their termination of terms. FUJIKAWA:I second that move. 10 GALDONES:Just clarification. Commissioner Kubota, I believe there was a third person serving there? KUBOTA:Well, Hannah Springer is -. FUJIKAWA:Hannah is already in. KUBOTA:Is still an ongoing -. FUJIKAWA:Right. KUBOTA:Commissioner, current. She's not retiring. These guys are retiring, so I authorized these two, right? TORIGOE:Right. Right. For the sake of the record though, that, you know, I think the record should reflect that your motion includes the continuation of Ms. Springer, correct? KUBOTA:Well, definitely. I mean I do, I have no intention of le out. I move that the Hearings Officers as appointed in August 2 Springer, Geraldine Giffin, and Grant Togashi, be authorized to continue as Hearings Officers for this particular permit, please put it in there because I don't have the number for it, and that -. Yeah, that's it. FUJIKAWA:I second that. GALDONES:Is there a second to that? FUJIKAWA:Second. GALDONES:It has been moved by Commissioner Kubota and seconded b Commissioner Fujikawa that Hannah Springer, Grant Togashi, and Geraldine Giffin will serve as Hearings Officers in the case relating to Wayne Blasman (SMA 02-03). Are there any discussions on that motion? Hearing none, Alice? KAWAHA:Commissioner Kubota? KUBOTA:Aye. KAWAHA:Commissioner Fujikawa? FUJIKAWA:Aye. KAWAHA:Commissioner McCall? 11 MCCALL:Aye. KAWAHA:Commissioner Smith? SMITH:Aye. KAWAHA:Do we also take a vote calling the Commissioners, the two Commissioners? Commissioner Giffin? GIFFIN:Aye. KAWAHA:Commissioner Togashi? TOGASHI:Aye. KAWAHA:And Chairman Galdones? GALDONES:Aye. KAWAHA:Chair, there are seven ayes; the motion has been carried. GALDONES:Thank you very much. Thank you very much, Mr. Vitousek VITOUSEK:Mr. Chair, may I make a statement? GALDONES:Yes. VITOUSEK:I just, you know, I spent a fair amount of time at this table during your term as Chairperson, Ms. Giffin, and I really want to thank you on behalf of myself and on behalf of my clients. I think you really, throughout your term, acted with fairness and firmness, and with aloha. We really appreciate it. Thank you. GIFFIN:Thank you. GALDONES:Thank you very much, Mr. Vitousek. Just for the record, being that we have three Hearings Officers, I would like to note that we will need a majority -. GIFFIN:Yes. GALDONES:Ruling from the Hearings Officers, being that there are three of you, at least a two-thirds majority, in making a presentation to the Commissioners for consideration. GIFFIN:I heard Mr. Torigoe say that earlier, and I agree. There was an example, however, Alice, and correct me if I'm wrong, when we did have a situation where although the majority voted in one regard, the opposing Commissioner, who 12 represented the other view, did present, in writing, reasons for, that opposed the majority. So I just wanted to make sure that that option, Mr. Chairman, was still available. GALDONES:Mr. Torigoe? GIFFIN:So, in other words, there was a recommendation, and then there was an opposing recommendation. TORIGOE:Well, in terms of the formal recommendation, that would have to reflect the decision, the formal decision -. GIFFIN:Right. TORIGOE:Of the panel. But I think if there is, if an officer would then like to present some public testimony regarding the matter, that may be something that can be entertained. But I would not like to have the record confused with, you know, two conflicting so-called official views on the matter. GIFFIN:Thank you, Mr. Torigoe. GALDONES:Thank you. The discussion ended at 10:03 a.m. Respectfully submitted, Sharon M. Nomura, Secretary Planning Commission 13