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HomeMy WebLinkAbout2007-01-19 tibbetson PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT January 19, 2007 DANIEL IBBETSON (SPP 05-000015) A regularly advertised hearing on the application of was called to order at 11:30 a.m. at the King Kamehameha's Kona Beach Hotel, 75-5660 Palani Road, Kailua-Kona, Hawaii, with Chairman William Graham presiding. PRESENT: C. Kimo Alameda ABSENT & EXCUSED: Fred Galdones William Graham Alvin Rho Andrew Iwashita Rene’ Siracusa Jeffrey McCall Rodney Watanabe Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Planning Program Manager Jeff Darrow, Staff Planner And approximately one person from the public in attendance. Discussion and review of the Third CircuitCourt’s Order Reversing Decision of the Planning Commission and Remanding Case to Agency for Further Proceedings dated December 22, 2006, in Civil No. 06-01-037K, and further proceedings and consideration consistent with that Order, on the application of Daniel Ibbetson for a Special Permit (SPP 05-000015) to operate a 2-unit bed and breakfast establishment on 0.722 acre of land situated within the State Land Use Agricultural District. The property is located along the west (makai) side of Mamalahoa Highway (Highway 11), approximately 120 feet south of the Kaohe Road-Mamalahoa Highway th intersection, Kaohe 5, South Kona, Hawaii, TMK: 8-7-9:14. GRAHAM: We have an additional item which on our addendum to the agenda is listed as Unfinished Business, Item No. 6. Commissioner Alameda? ALAMEDA: Yes, Mr. Chair. I’m just wondering, I’m looking at the time right now, it’s 11:30. I don’t know if the Fellow Commissioners wanted to maybe break for lunch now or -. Cause I believe this is the final agenda item, is it not? GRAHAM: Yes, it is. ALAMEDA: So I’m just wondering where the Fellow Commissioners are at, and you as well, Mr. Chair. GRAHAM: Thank you. Any commentary? HAYASHI: Mr. Chair. Perhaps Mr. Torigoe has some information that may speed up this process. EXHIBIT D 1 GRAHAM: All right. Mr. Torigoe? TORIGOE: Thank you, Mr. Chairman. This is something that I suppose we really ought to bring the parties up to confirm, but my understanding is that the parties are going into a court-ordered mediation of a related declaratory ruling case that was filed in the Third Circuit Court. And because of the impending mediation, I believe they have been discussing an agreement to continue further matters before the Planning Commission pending the mediation. So I don’t know if you want to get that information at this point. GRAHAM: Thank you. It seems like maybe we want to proceed and -. ALAMEDA: Mr. Chair? GRAHAM: Yes, Commissioner Alameda? ALAMEDA: Thank you. I feel comfortable proceeding in light of the new information. GRAHAM: Thank you. All right. Norman, do you folks have any presentation you would want to make on this decision on the Third Circuit Court relating to this prior action by the Planning Commission just as far as the general description to the public here today, as well as the Commissioners, of what’s involved? HAYASHI: If the Commission would like to have the brief orientation, then we can do that. GRAHAM: What would the Commissioners like? No need? ALAMEDA: I prefer not. GRAHAM: Okay, no need. Thank you. All right. Mr. Torigoe, how should I proceed at this time? TORIGOE: I think at this point you are just going under the Court’s remand, which is basically to have further consideration of the matter, taking into account the Court’s rulings. So there is a couple of items: One is again just to talk to the parties, see where they are and see what your further consideration should consist of at this point; the second consideration is whether you would like to have any appeal taken from the Third Circuit Court’s decision, and that’s something we should probably discuss in the executive session. GRAHAM: Thank you. With that as a lead, maybethe parties to this matter could come forward now. Again, we always welcome public testimony on any of our agenda items, so if there is someone else here in the public that want to give testimony, you can leave your name over at the table with the Planning Department staff. Could I swear the four of you in at this point, and if you would raise your right hand? Do you affirm to tell the truth on this matter before the Hawaii County Planning Commission today? PARTIES: I do. EXHIBIT D 2 GRAHAM: Thank you. I don’t know of any particular order that I need to follow as far as taking your comments, but -. Okay. Mr. Krueger, could you identify yourself and give your address for the record, and then go ahead and speak to the matter that’s before us today, if you would? KRUEGER: Certainly, Mr. Chairman. My name is Dennis Krueger. I’m representing Daniel Ibbetson, the applicant. My address is 75-5722 Kuakini Highway, Suite 208, Kailua- Kona. Mr. Chairman, I heard the comments by Mr. Torigoe earlier, and that is my understanding as well with regard to this matter. Mr. Matsukawa and I have spoken, and believe we spoke to Mr. Torigoe as well. Because we are proceeding with mediation on another related matter, we’d like to try and see if we can do a global resolution of all issues, which would also include the matters before the Commission. In that light, I believe, we would like to ask the Commission to put off any further action on this pending the outcome of the mediation. At this point we don’t have a date for the mediation, but I would recommend, and Mr. Matsukawa can speak to this as well, that it be put off probably for at least sixty days. That would be my recommendation. GRAHAM: Thank you, Mr. Krueger. Any questions from the Commissioners? Commissioner Iwashita? IWASHITA: Good Morning, Mr. Krueger. KRUEGER: Good morning. IWASHITA: The concern I have is -. You know, I love mediation; I think that’s the best way to go about trying to resolve disputes. And personally I would like to help foster that process. My concern is -, that I see from the Commission side is that there is this Order, there is a potential for an appeal to the Intermediate Court of Appeals to this Order. And so I guess as I view it, you know, that Judge Strance has issued an Order with Findings of Fact and Conclusions of Law, I don’t -. If I’m correct and if in fact this does not comply with Rule 54(b), and the Jenkins v. Cades Schutte decision for a separate judgment, which would be the final appealable order, then I don’t think the Commission has a concern with the thirty days clock running in terms of filing the Notice of Appeal. If that’s not correct and the thirty days have started, then that is a concern that I have. So the reason I bring it up is, you know, I guess I’d like your input and if it’s not -. If we agree that, you know, obviously nobody can bind the Court on how it applies its rules and decision, but if we agree that there is no separate Rule 54(b) Final Judgment, as required by the Jenkins v. Cades Schutte decision, then I would feel comfortable with going ahead with the continuance for the sixty days that you are suggesting. GRAHAM: Thank you. Mr. Krueger? KRUEGER: Commissioner Iwashita, I have in front of me the -, I don’t know if you have the same document, this one is the Order Reversing Decision of the Planning Commission and Remanding Case to Agency for Further Proceedings. There is in fact another document, which was signed by the Court, which would amount to a Final Judgment, and that was entered by the Judge approximately I would say a week or so ago. So there is a separate document that I believe would constitute a Final Judgment under Jenkins. So I think that 30-day timeframe is running, and obviously the Commission would need to talk to Counsel about whether or not they EXHIBIT D 3 choose to appeal the decision or not. But I do believe it is a Final Judgment. Mr. Matsukawa can speak to that as well. IWASHITA: Thank you. GRAHAM: Thank you, Mr. Krueger. Any other questions for Mr. Krueger? Mr. Matsukawa, would you give your name and your address, and you may speak to the Commission? MATSUKAWA: Yes. My name is Michael Matsukawa. My address is 75-5751 Kuakini Highway, Room 201, Kailua-Kona. I represent Dean Kaiawe who is seating next to me. I agree with what Mr. Krueger and Mr. Torigoe said in terms of an agreement to stay further proceedings. In reference to Mr. Iwashita’s question, if the Commission chooses to appeal, that’s a separate issue; I don’t think it affects whether you stay or not stay further proceedings. I would just add that there is a series of cases that perhaps is no longer good law, but this was back in the 70s when you had cases going up and down between court and the agency; and the question was raised as to when do you have a Final Judgment. Because, you know, when you have a Final Judgment that’s appealable, there is nothing left to be decided. So the court says, this is it, I reverse you and this is the ruling. But what this one here does is it sends the case back and it says go do some more work, when you finish, come back. We had the same thing with the Honul’s Beach case with Judge Ibarra where the Commission granted an SMA, an appeal was taken to the Judge, the Judge sent it back down to the agency, we had some more hearings and it went back up to the Judge again. Eventually the case settled, but we all briefed the question of when is there a Final Judgment to go up to the higher court. And that’s something your Counsel needs to deal with you because there is this body of law that says when there is a remand, there is no Jenkins cause all issues have not yet been decided. But other than that, I agree with Mr. Krueger, and we would like to address this matter, if we can, globally in mediation. Thank you. GRAHAM: Thank you, Mr. Matsukawa. Any questions from the Commissioners? Does Mr. Kaiawe intend to speak today or -? No. Now we have an attorney for the County. Could you give your name and address, please? LEITHEAD-TODD: Deputy Corporation Counsel, Bobby Jean Leithead-Todd, 101 Aupuni, Suite 325. GRAHAM: Do you have any comments for the Commission at this time, Ms. Leithead-Todd? LEITHEAD-TODD: No comments. If the parties want to continue this, we have no objection. GRAHAM: Thank you. Any questions from the Commissioners? Mr. Torigoe, is it correct that we can deal with the issue of continuing this hearing independent from our own deliberations on whether we want to appeal what the Court did? TORIGOE: Thank you, Mr. Chairman. That would be my impression, is that, you know, if the parties want to continue matters before the Commission that that’s something that’s independent of whether the Commission wants to take any appeal. In fact, if you took an appeal, EXHIBIT D 4 one of the things we look at is trying to get things stay. It will probably be pending the appeal if there was a serious matter that might affect the outcome. GRAHAM: Thank you. Do you have any other comments from the Commissioners or we can have a motion thereafter? WATANABE: I was going to make a motion that we continue. GRAHAM: Commissioner Watanabe, go ahead. WATANABE: Yeah. I move that we continue this hearing on Special Permit Application SPP 05-000015. ALAMEDA: Second. GRAHAM: We have a motion and second. Seconded by Commissioner Alameda. IWASHITA: You want to put sixty days in, the two months? WATANABE: Oh, excuse me. We continue based on testimony for an additional sixty days without -, I’m not sure when it’s going to put it, March something, the March meeting in Kona. GRAHAM: Maybe the parties could advise the Planning Department when they are ready to have it resubmitted to the agenda? Is that okay? KRUEGER: That’s fine, Mr. Chair. GRAHAM: Thank you. Is that all right? WATANABE: So till they reagendize. GRAHAM: Yes, thank you. Any discussion on the motion? Jeff? DARROW: Thank you, Mr. Chairman. Commissioner Watanabe? WATANABE: Aye. DARROW: Commissioner Alameda? ALAMEDA: Aye. DARROW: Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner McCall? EXHIBIT D 5 MCCALL: Aye. DARROW: And Mr. Chairman? GRAHAM: Aye. DARROW: The motion passes to continue, five to zero. GRAHAM: Thank you. The discussion ended at 11:42 a.m. Respectfully submitted, Noriko Sauer West Hawaii Secretary EXHIBIT D 6