Loading...
HomeMy WebLinkAbout2004-01-30 TDoutor Coffee PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT JANUARY 30, 2004 A regularly advertised hearing on the application of DOUTOR COFFEE HAWAII CO., INC. (SPP No. 1215) was called to order at 9:36 a.m. in the King Kamehameha's Kona Beach Hotel, Kamakahonu Ballroom, 75-5660 Palani Road, Kailua-Kona, Hawaii, with Vice Chair ` Earl Fujikawa presiding. PRESENT:Earl FujikawaABSENT AND EXCUSED:Fred Galdones Bill Graham Florence Kubota Jeffrey McCall Aurelio C. Mina, Jr. Francis Smith Hannah Springer Bill Thibadeau Patricia O'Toole, Esq., Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Kiran Emler representing Department of Public Works And approximately 20 people from the public in attendance. DOUTOR COFFEE HAWAII CO., INC. (SPP No. 1215) Motion to Amend Something Previously Adopted with regard to Special Permit No. 1215, which allowed public tours of the existing coffee farm, proposed retail sales of non-agricultural products, and related parking area on approximately 12 acres of a 28.47-acre lot situated within the State Land Use Agricultural District. The request is to delete Condition 5.c. of the permit that prohibits use of large tour buses. Condition 5.c. currently states that "Passenger vehicles used to transport visitors to the project site shall be limited to a capacity not to exceed 15 passengers." The property is located on the west (makai) side of Mmalahoa Highway, nd approximately 300 feet south of the Kep Cemetery, Hienaloli 2, North Kona, Hawai`i, TMK: 7-5-11:portion of 24. FUJIKAWA:Commissioners, we have the next Applicant is the Doutor Coffee application. This is the motion to amend something previously adopted with regards to Special 1 Permit No. 1215, which allows public tours of the existing coffee farm, proposed retail sales of non-agricultural products, and related parking area on approximately 12 acres of a 28.47 (sic) lot situated within the State Land Use Agricultural District. Are you ready, Staff? HAYASHI:Thank you, Mr. Chair. At the Planning Commission meeting on th December 4, the Commission moved to place this matter on the agenda. Basically, it would be to -, the request would be to delete Condition 5.c. of the permit that prohibited the use of large tour buses. Specifically, Condition 5.c. currently states that, and I quote, "Passenger vehicles used to transport visitors to the project site shall be limited to a capacity not to exceed 15 passengers." Since -, we received, first of all, a letter from Mark Van Pernis objecting to this request, or this motion, and all of you have a copy of that and it's made part of your packet. We also have a letter from the Planning Director addressed to Chair Galdones basically reiterating the Director's position that large tour buses be prohibited to transport visitors to the Doutor Coffee Hawaii facility, and he is recommending that the Commission deny the request to amend Condition 5.c. Also, along with that application, the Planning Director had enclosed a copy of a memorandum from the Kona zoning inspector to the Director regarding the continued use of large tour buses to transport visitors to the subject property. Are there any questions at this time? FUJIKAWA:Commissioners, any questions for the Staff? Go ahead, Commissioner Springer. SPRINGER:With regard to the information that's been forwarded to us, I'm th wondering if Deputy Corporation Counsel can comment on the January 29 letter from Ben Tsukazaki. FUJIKAWA:Corp. Counsel Pat O'Toole. SPRINGER:I'm looking in particular at the last paragraph of that letter that indicates th Doutor respectfully requests that the January 27, 2004, letter of the Planning Director be disregarded and stricken from the formal contested case record relating to Special Permit 1215, and I'm wondering if that -, how we need to treat that, or if at all. O'TOOLE:Well, I think the portion of the Director's letter where he states his objection, I think perhaps whether they have violated subsequently is not relevant, but I wouldn't strike the whole letter. I would like to discuss this matter in Executive Session at some point in time. I think at this point, we need to understand that this is on the agenda, but the motion needs to be made by a Commission member if any motion is to be made. And at that point, there will be discussion among the Commissioners, but if you wish to make a motion or not. Since it is an agenda item, though, I guess in an excess of caution we would 2 that the parties address the agenda item, but I would like to discuss the procedural matters and the issues, legal issues in Executive Session at some point. FUJIKAWA:Thank you. Springer, go ahead. SPRINGER:I'm wondering at what point we should request this Executive Session. It would seem to me that sooner than later might be good so that we could have the full benefit of any insight that the Deputy Corporation Counsel might impart to us before we begin discussion. FUJIKAWA:Well, I think that what I want to do is have the Applicant's representatives and the -, I have two people who want to do a testimony, and after that, it's up to you people what you want to do. SPRINGER:Okay. FUJIKAWA:Any other questions? KUBOTA:Mr. Chair? FUJIKAWA:Commissioner Kubota, go ahead. KUBOTA:Just for clarification on the response by Corp. Counsel to Commissioner Springer, was it my understanding that you said that Mr. Yuen's letter, that portion of which made a recommendation to deny based on the violation is irrelevant? O'TOOLE:Well, I think if there is a violation, that's a separate matter. What we might consider today is whether or not that condition should be there. But, you know, a -. KUBOTA:Of course. O'TOOLE:Motion to strike a letter is, you know, this is not the kind of proceeding I think where we generally deal with that kind of thing. It's here. You can give it the weight and consideration you want to. KUBOTA:I see. I see. But you are clearly bifurcating the violation and the Director's recommendation to deny; you are saying they're not relevant to each other, is my understanding of your response to her. O'TOOLE:In my mind, the question is whether that condition is valid. KUBOTA:Okay. The condition is valid or invalid is the consideration before us today, and whether we want to go up or down with the Applicant's request is our mission today. O'TOOLE:Well -. 3 KUBOTA:But you're saying also -. O'TOOLE:Well, you know, the Applicant -. KUBOTA:Yeah. Okay. O'TOOLE:If he wants to make a motion, there are certain motions he can make. He cannot make a motion to this effect, that's why I'm saying it has to be a Commission member to make a motion to amend, if you can, but it's not the Applicant who can make this motion. FUJIKAWA:There would be -. O'TOOLE:So right now there is no motion on the table. KUBOTA:Right. O'TOOLE:It's just an agenda item. KUBOTA:I understand that. I understand that. But see, I guess the clarity that I want from you is that the violation and all of these pictures that come with it are not part of our consideration for the decision making today. It's a separate item or is it connected to one another is, I guess, my question? O'TOOLE:Well, I don't see the connection, but when we let the parties make their presentations, I'm sure Mr. Yuen will argue why it is. KUBOTA:Okay. Well, I wanted to hear your opinion, and that's my understanding of it, and you're saying they're not connected. O'TOOLE:I don't see it at this point. KUBOTA:Thank you. FUJIKAWA:Commissioner Graham, go ahead. GRAHAM:To our Legal Counsel, again. Pat, I wasn't here for the last meeting which is the meeting where this became an agenda item, but when I read motion from Commissioner Fujikawa, where he says, "Can I make a motion to amend on the conditions on this Doutor Coffee application of Special Permit No. 1215?" And then there was a second. And subsequently, Commissioner Galdones asked Commissioner Fujikawa to amend that motion to incorporate that this be placed on the next agenda, but not to have the -. He didn't ask that this be placed on the next agenda replace what his original motion was, just that the motion be amended to incorporate that. So I'm wondering whether Commissioner Fujikawa made is not the motion that, in fact, is still in play for us. Now that motion was approved. So you say there's no motion on the table motion. Do you understand what my confusion is there, whether - 4 O'TOOLE:Well, I guess I'm confused because my discussion, I thought, was that it was just to be placed on the agenda, because -, well, that's what I thought. GRAHAM:Okay. The way I read in the transcript, the exact words are, "Can I make a motion to amend the -, on the conditions on this Doutor Coffee application of Special Permit No. 1215, referred to as SPP 02-010?" And I realize that even when I speak, it doesn't come out really good on paper, so I think I understand that part but -. FUJIKAWA:Any other questions? If not, I have the Applicant's representative. Can you all raise your right hand. Do you swear to tell the truth on this matter now before the Hawai`i County Planning Commission? TSUKAZAKI:I do. DAHLEN:I do. KRUEGER:I do. FUJIKAWA:Yeah, let's start off with Ben. State your full name and your address, please. TSUKAZAKI:Ben Tsukazaki, one -. NOMURA:Microphone, please. TSUKAZAKI:Thank you. I'm sorry. Ben Tsukazaki, 142 Kapaa Street, Hilo, ` Hawaii. ` FUJIKAWA:You represent the Applicant. TSUKAZAKI:Yeah, I'm sorry, representing the permit holder in this matter. With me here today also is Wally Dahlen, who is the operations manager for the coffee farm. KRUEGER:Good morning, Mr. Chairman, ladies and Members of the Commission, my name is Dennis Krueger. My address is 75-349 Nani Kailua Drive, Kailua-Kona, and I am here today representing Dean Yokoyama. FUJIKAWA:Okay, Chris. YUEN:Good morning, Members -, Mr. Chairman and Members of the Commission, I'm Chris Yuen; I'm the Planning Director for the County of Hawaii. ` FUJIKAWA:Okay. Let's start off with Ben. Go ahead with your testimony. 5 TSUKAZAKI:Well, again, I think Staff did a good job of providing some background on this again. My understanding, hopefully, it's not wrong, too, is that the matter on the agenda today really relates to a request that we made some time ago asking this body to consider whether it should review its decision in this case, and that was the decision that granted the special permit on August 1of last year to -, because we felt that there was some misunderstanding at that meeting. And the subject of that really is whether or not there should be, whether my client should be allowed one large bus, a maximum of one large bus per day. And currently the permit says no large buses. So we were asking you to review whether there was, in fact, a misunderstanding, and if there was a misunderstanding, then whether you would entertain a motion to go back and amend that provision so as to allow a maximum of one large bus. So that's what I -, what my understanding is this particular meeting is about. And I do agree. And as I have indicated in my letter which responded to the Planning Department's letter earlier this week, I tried to clarify that -, in the Planning Director's letter, I'm sorry, he indicates that this is our motion and it's really not. We -, it's a Planning Commission motion that was adopted at your last meeting to put this on the agenda, and I agree with Corp. Counsel that, you know, that for action to be taken today to amend or not to amend, it would require a motion of some kind from this body, not from me. So I want to make that clear that I -, that's my understanding of what the process involves. I think my letter -. I've said in the past at previous hearings to you that the large bus issue is a critical one for my client, it's a survival issue. So we wouldn't be going through these lengths if it were not a critical issue. And we believe there is, there are ways to accommodate a large bus every now and then in a safe way, and -. In regard to the letter dated yesterday that I filed in reply to Mr. Yuen's letter, I think the main thing there I point out what I think is improper, I would like to touch upon the question that came up earlier as to whether allegations found in the zoning inspector's memo have any relevancy to the hearing this morning. And my argument is that such information is irrelevant because it really pertains to an enforcement issue, whether or not my client is or is not complying with some kind of legal requirement. That brings up a host of new information, and really there, as you are well aware, there are enforcement procedures that are available to deal with that and, in fact, you know, we are involved with the Planning Department in some of those issues. So I have -, I make an objection to trying to incorporate the enforcement st issues into the issue of whether this Commission, looking back at what it did on August 1, based upon that record at the time, feels that there should be an amendment to allow us to have one large bus or not. So I try to make that argument. And then lastly, because I don't want to leave you, you know, with no comment, I will just say this. On the zoning inspector's report and his information about a couple of dates when he observed a large bus which he thought, you know, was bringing visitors to the property, there are explanations for those instances, and so -. But I'm afraid that, you know, if we start getting into that today, that's basically what this hearing is going to turn into, it's going to turn 6 into an enforcement action. I don't think that's proper based upon what the agenda item is and what I believe your intent was when you voted on this at your last meeting. So I'm not going to go there because I believe it would be improper to do that today. I guess that's about it. I don't have anything else to say right now, but if you have any questions, I'll be happy to answer them. FUJIKAWA:Okay. Thank you, Mr. Tsukazaki. Commissioners, any questions with Mr. Tsukazaki? If not, Dennis Krueger, proceed. KRUEGER:Thank you, Mr. Chairman. First of all, Mr. Chairman, I'd just like to respond to Commissioner Graham's question with respect to the prior motion. I believe under Qnadqs&rQtkdrneNqcdq that in order for somebody to bring a motion to amend, they have to announce at the prior meeting that they intend to bring the motion at a subsequent meeting and exactly what the motion is that they intend to bring at that subsequent meeting, and then that motion has to be added to the agenda at the subsequent meeting. So under Qnadqs&rQtkdrne Nqcdq, the motion to amend couldn't have been made at the last meeting, it would need to be made today. But there could be an announcement that the Commissioner intended to make it today, at today's meeting. My -, I guess my foremost objection to the Commission's entertainment of a motion to amend is that, in my opinion, the Commission lacks jurisdiction to do anything on this case at the present time. After the Commission ruled on the request for a special permit, the Commission's ruling and findings of fact in that case were appealed to the Third Circuit Court and to Judge Ibarra. Once that appeal took place, this Commission lacks jurisdiction to do anything further on this case unless the Commission, through its legal counsel or through its representative, goes to the Third Circuit Court and asks the court to allow it to do something further in this case while it's still on appeal. If you look at Section 91-14 of the Hawaii Revised Statutes dealing with judicial rule of ` contested cases, there's a provision in there that discusses how an applicant may go and get additional evidence admitted before the Commission so that it can be considered by the Third Circuit Court in the appeal. I would submit to this body that in order for this Commission to change its opinion that is on appeal, it first needs to go to the court and get the court's permission to allow you to conduct a hearing to discuss that change. And nothing of that nature has been done. And, again, just for further reference, there's a case called McPherson versus the Zoning Board of Appeals of the City and County of Honolulu, the citation is 67 Hawaii 603; it's a 1985 case. One of the conditions that the court, this is the Supreme Court of Hawaii, ` addressed in that case was whether or not a motion for reconsideration that was brought by one of the parties after the planning, or after the Zoning Commission's hearing could be heard if somebody appealed prior to the motion for reconsideration being heard. And what the court said was where an administrative agency's regulations permit the filing of a petition or motion 7 for reconsideration from a decision and order in what is a contested case under Hawaii ` Revised Statutes Chapter 91, and such a motion is timely filed, it is our express holding that for the purposes of an appeal under HRS Section 91-14(b), the denial of the petition or motion for reconsideration is the final decision and order of the agency. The service of a certified copy of the denial starts the 30-day appeal period running. It says any other holding would lead to administrative chaos since if an appeal had to be filed prior to the disposition of a timely motion for reconsideration, the Board would lose jurisdiction and could determine whether or not to grant the reconsideration only after an express remand from the appellate tribunal, whether it by the Circuit Court, as in this case, or the Supreme Court of Hawaii, as ` in certain other cases. The waste of time and effort by the parties, their counsel, the agency, and the judiciary in such a situation would simply be intolerable. In this case, you don't have a rule for the Hawaii County Planning Commission that allows an ` applicant to file a motion for reconsideration, so that would be different from the issue that was before the court in this case. But there has been no timely motion for reconsideration brought by any of the members of the Commission prior to the matter being appealed, so there's no motion for reconsideration or no motion to amend something previously approved that was filed or requested by a member of this Commission before this appeal was taken. And under the holding in this case, the Board would lose jurisdiction once that appeal was taken. And if the you read the statute, the only way I believe that the Board could regain jurisdiction to consider a motion to amend something previously approved would be first to go to the Circuit Court and obtain that permission. So first and foremost, that's the argument I would make today is that you simply don't have jurisdiction to consider what the Applicant is asking the Commission to do. Secondly, I understand Mr. Tsukazaki's position regarding, you know, discussion today of enforcement and violations, but you all have received, I believe, and if you haven't, I have a copy of it that I can provide to the Commissioners, a copy of a letter, a notice of violation that th was sent out by certified mail on December 18 to Mr. Wally Dahlen, the director of Doutor Mauka Meadows. And in that notice of violation, the enforcement officer for the County of Hawaii and Mr. Yuen, as the Planning Director, have noted that since this Planning ` Commission approved this special use permit, that the Applicant has complied with none of the conditions of approval that he was supposed to comply with prior to continuing with tour operations. And I suggest to you that for them to come forward today to this Commission and ask you to consider an amendment to one of those conditions is simply bad faith. They have not shown any good faith on their part in shutting down the tour operation and in complying with the conditions of approval that this Planning Commission imposed on them as a condition to receiving this permit. And I realize that those issues are subject to interpretation and to appeal, if necessary, if the Applicant feels so, but I think based upon the face of it, it's bad faith for the Applicant to be coming here today asking the Commission to do something when it hasn't complied with any of those conditions. That's all I have. FUJIKAWA:Thank you. Commissioners, any questions? Commissioner Kubota. 8 KUBOTA:I have a question of Mr. Krueger. Thank you for enlightening me about legal procedures. Very explicit. I wasn't aware of that. If all of this information about lack of jurisdiction on our part was known to you at our last meeting, why didn't you save us the time by bringing that up? I mean we spent an inordinate amount of time arguing and debating seriously, I mean, you know, wholeheartedly trying to do well for everybody, and it appalls me that you sit there now and you tell us we don't have jurisdiction, when you knew all along and it's on the agenda again. I mean, we have how many lawyers over here. We're lay people, and if you know all of those intricacies, why wasn't it told us so we could have saved ourselves some time and energy? KRUEGER:With all due respect, Commissioner Kubota, I think we tried to. Myself, Corp. Counsel, as well as Mr. Yuen tried to indicate to the Commission at the last meeting that you could not do what it was that the Commission intended to do. KUBOTA:Excuse me? I understand the American language quite well, and I did not get that information from you nor our Planning Director nor from our Corp. Counsel, and I wouldn't expect it from Ben, of course, you know, but I mean come on, I understand the language and that's not the message I got. KRUEGER:Well, I apologize if that was not the message. But with respect to the issue of jurisdiction, I think Mr. Tsukazaki, as well as Mr. Yuen, would agree, as well as Corp. Counsel, it's not something that you lose, it can be raised at any time, and it can be brought up with respect to the ability of the Commission to go forward with the hearing. So if I didn't raise it last time or if I didn't specify it clearly enough, I apologize, but I think it can still be raised today and it's still valid as a position today, so I apologize if I didn't raise it clearly enough. FUJIKAWA:Any questions, Commissioners? If not, Mr. Yuen. YUEN:Yes, good morning, Members of the Commission. This is, I believe, the third time we sit here wrangling over procedures, how this should be, how this matter should be handled. A point of advice for the Planning Commission. You will, in a contested case, you'll have attorneys sit before you arguing about the legal procedures that should be followed. As Commissioner Kubota said, you aren't attorneys, you're not judges, you're not trained in legality. You're chosen for your community good sense in and judgment in making these, the final decisions on these permits that come before you as a cross-section of hopefully the better part of the community. I will, as the Planning Director, always try to give you what I take as the straight interpretation of the rules, the way the rules ought to be followed, regardless of the effect on the outcome, up or down, regardless of the effect. Regardless of whether the Planning Department is recommending approval or disapproval, we will always say, interpret the rules and follow the procedural rules in the same way. In this respect, we are different from the attorneys who 9 appear before you, who will argue for interpretations of the rules depending on whether they benefit the positions of their clients or in the particular matter that's in front of you. Finally, you have you own legal counsel. In this case, where the Planning Director is a party to the contested case, Corporation Counsel for the Planning Commission is not Corporation Counsel for the Department. In a question of a dispute over the interpretation of the rules, over the rules to be followed, I need to advise you to listen and follow the direction of the Corporation Counsel. If you're not sure what that direction is, please inquire until you are sure. In this matter, at the last meeting at the Hapuna Prince, both myself and I believe Corporation Counsel advised that what Mr. Tsukazaki was trying to do is completely contrary to the rules. The rules -, what he is trying to do is to amend a condition of a permit that's already been granted. Rule 6-8 of the Planning Commission rules says that when you want to do that, it's like a new application. You serve notice on the members of the -, serve notice on the surrounding property owners, and you have a time frame, and it's like a new application. We do this all the time in the Planning Department. We have lots of amendments to permits granted. We're going to have one later this afternoon, we're going to have one later this morning. They follow that procedure. They give notice to the surrounding property owners and go ahead and do that. That's the Planning -. The Commission needs to follow the legal advice that you receive and not be torn by the arguments of private counsel, or you are going to get into these kinds of loops where we spend hours arguing over these things. Let remind you -, let me remind you perhaps of the Kohala Woodvale hearings, where you have attorneys arguing legal and procedural points for hours and hours, giving what to someone in -, to anyone really would be plausible seeming arguments one way or the other. Turning now to the point that Mr. Krueger made on the question of losing jurisdiction, I don't have a position on that. I haven't researched that myself. It's a legal question. I would suggest that you find out what Corporation Counsel thinks about it, I -, and follow whatever advice Corporation Counsel gives you. I share your frustration at the timing of it, if it is correct that had this been raised as a -. If this is, in fact, fatal to what is, what Mr. Tsukazaki is requesting that you do on behalf of the Applicant, then it should have and could have been brought up prior to the first time that we argued about this several months ago. I want to turn briefly to the letter that I wrote and our ultimate, the County's, the Planning Director's ultimate objection to changing the condition on the big buses, the use of the big buses. Our objection is that the loading and -, when you have -, when we allow a commercial operation by special permit, they should have a loading and unloading area off the main road. They shouldn't utilize a main highway as a loading and unloading area for people to get on and off. If we had a -, if we were zoning, if you have a zoned commercial business, a store, you can't open a store where you load and unload off the main highway. You'll see stores that are like this, some of them are -, most of them are grandfathered in from prezoning days. They're operating the way they were operating back in the '40s and the '50s, and when we do have, 10 when we do allow an operation by special permit, we should have some basic safety considerations here. On the question of the letter that we sent and the photographs, I'd like to make this point, that despite a long history, frankly, of violations and actions taken in bad faith by this particular Applicant, the Planning Department recommended the approval of this permit with protective conditions. The point in showing that they are using the public highway is not to show that they are in violation of the permit but to show that they do park buses on the other side of the highway. The one thing that I would ask the Commission, and say to the Commission on this point is that it's not that I'm trying to penalize them for their violations. The violations are done separately. The Commission is not involved up until the point at least where we might bring an action to ask you to revoke the permit, which would be only up to this Commission to do. The point is that we should not make a decision that's based on the good faith of this Applicant in voluntarily complying with conditions. Do not pass something that would be impossible to enforce that we expect them to simply follow because they are like the ordinary person that we deal with where there is an element of trust and good faith. FUJIKAWA:Any questions, Commissioners, to Mr. Yuen? You have something? Springer, go ahead. SPRINGER:Just following up on the Director's recommendation to us, Deputy Corporation Counsel O'Toole, do you have any comments for us on the citation of HRS that Mr. Krueger made? O'TOOLE:Can we -? FUJIKAWA:Corporation Counsel. O'TOOLE:Address that when we go into Executive Session? SPRINGER:Thank you. FUJIKAWA:Okay. Any other questions, Commissioner Kubota? KUBOTA:What was the answer to that? FUJIKAWA:I'm sorry? KUBOTA:What was -? O'TOOLE:Can we discuss it in Executive Session? And I don't know exactly what he's quoting from, so I want to see what he, you know, what exactly he's quoting from. KUBOTA:Thank you. 11 FUJIKAWA:Okay. Any other questions of Mr. Yuen? Commissioner Graham, go ahead. GRAHAM:Mr. Yuen, in respect to whether the procedure that seems to be in effect here with the Commission right now of reconsidering based on our own motion as opposed to the Applicant following 6-8 for a reconsideration, it would seem to me to turn in this way. If we had a hearing and granted a permit with certain conditions but there was some procedural misunderstanding like maybe a Commissioner thought an aye vote meant this condition should go in but really he understood wrong, then it would seem perfectly appropriate that the Commission reconsider what it did. I feel like this, even though this action was suggested by Mr. Tsukazaki based on overhearing some words by the Planning Commissioners, still feels to me that thhrhri+sgdhrrtd`sgd`qs here is a factual issue, not a procedural issue. The factual issue of whether the implications of running the buses has been thoroughly understood and agreed upon by the Planning Commission members as to what's implied. So, to me, because it's a factual issue and not a procedural issue, 6-8 really would be the proper way to bring it about, but I can see that the procedure we're looking at right now might apply if there was some procedural misunderstanding by the Commission. YUEN:Can I respond to that? FUJIKAWA:Yes, go ahead. YUEN:The rules -, if somebody actually did misunderstand the effect of their vote, I think it would come out in the meeting immediately after the vote, to take an example. That if the gavel came down and the person said motion denied, and the Applicant frowned and got up with a long face and the Commissioners then, one of the Commissioners thought, realized, gee, I voted, I thought that yes meant approval and yes meant denial, okay, let's take that as an example. The rules say that a person, the rules allow the Commission to make a motion to reconsider at any time before the decision becomes effective. The decision becomes effective when it's mailed out. So in the example of you realizing that a mistake is made at your hearing, a member of the Commission can make a motion to reconsider. Now it has to be a person on the prevailing side, okay. The person that voted the majority realizes oh, something is wrong here, and they can -, that is a procedure, all right. Now once the decision has been mailed out, then the only way to change it is this motion -, the Applicant can bring a motion to amend, and that's the way this works here. GRAHAM:Thank you. FUJIKAWA:Any other questions? KUBOTA:Mr. Chairman? 12 FUJIKAWA:Go ahead, Kubota. KUBOTA:You know, going back to our December meeting, we went through much debate over Qnadqs&rQtkdr versus PC rules. And at that time, to be sure that what the Applicant was proposing had merit and was allowable, I remember putting on record a question to our Corp. Counsel about the hierarchy of the two procedures that we could follow, we had to follow. And, of course, if there was a hierarchy, I would have been pressed to go with the one of the higher authority, but I was told that there was no hierarchy, so I could go with either or. And because I believed what I believed, I went with the Qnadqs&rQtkdr. And you're insinuating that we were told we couldn't do it, but we did it anyway. We were told we could, we could choose the Qnadqs&rQtkdr over our PC rules, depending on what we believe, so some of us voted yea and some of us voted no. We feel, I feel at least that I listened to your arguments, I felt and I voted what I felt was the proper way to go. That's how I was advised. FUJIKAWA:Go ahead, Mr. Yuen. YUEN:I'm sure you feel that. KUBOTA:Okay. YUEN:I'm sure you feel that way. I'm -. KUBOTA:But just a minute. I have one more thing. One more thing. And nowhere in that day's discussion was I told that as a Planning Commissioner I had no jurisdiction to make that rule, okay. So now you are telling me after all these hours, compounded by all of these people, multiplied by all of these people, that we may not have jurisdiction, we didn't listen to your advice, which was the proper way to go. I wasn't told that. YUEN:On the question, on your last of no -, of not having jurisdiction, as I said, I don't have a position on that particular statement, and please find out what the advice is of your Corporation Counsel. And my recommendation would be to follow that advice. On the question of what you were advised by Corporation Counsel, as to whether it's proper in this case to proceed by this what we'll call Qnadqs&rQtkdrneNqcdq- KUBOTA:PC Rules. r Mr. -, the Doutor Applicant's -. YUEN:O KUBOTA:Interpretation. 13 YUEN:Interpretation of the rules, when there is a Planning Commission rule that tells one how a condition of a permit is amended after the permit has been granted. You did go into Executive Session, and I wasn't there. I understood your Counsel to be advising you that you had to follow Rule 6-8. You can ask your Counsel again about it. I would suggest that you, if you're -, that you ask your Counsel again about it, and if you're not sure what you are being advised, that you ask until you are sure what you are being advised. My final, you know, my final point on this is that the Commission can set this right. If it does take jurisdiction and consider it further, the right thing for the Commission to do is to refuse t amend the permit. FUJIKAWA:Thank you. Any other questions? O'TOOLE:Can I comment on something? FUJIKAWA:Go ahead, Corp. Counsel. O'TOOLE:And this was said in open session, and obviously, I didn't make myself clear but -, and hierarchy was used by Mrs. Kubota, and then I said, "Well, I don't know if I would put it that way, but your rules are specific to your proceedings and Qnadqs&rQtkdr are procedural rules, but they are referenced in your rules." And what I was trying to convey to you was that you should use your own rules that specifically apply to that situation. Qnadqs&r Qtkdr, although your rules have incorporated them, say that they are procedural. You would use Qnadqs&rQtkdr for procedural matters. And if you notice, your own rules don't have things like you make a motion, you get a second, you do this, you do that, and those are the types of things that you find in Robert's. But what I was saying is that this particular issue is slipping into substantial questions or substantive questions because it's not just a procedural matter but you are not affecting the rights of Mr. Krueger's clients and Mr. Tsukazaki's clients if you take up such a matter. You're changing what you've already decided on a sustentative matter, not just procedural, as Qnadqs&rQtkdr. I believe you state in your rule that you adopt that for procedure. FUJIKAWA:Okay. Any other questions? TSUKAZAKI:Excuse me, Mr. Chairman? FUJIKAWA:Mr. Tsukazaki, go ahead. TSUKAZAKI:You know, some of the arguments made here this morning, especially those by Mr. Krueger, this is the first time I'm hearing it. And the case that he described I have not read, but it sounds like, from the portion that he did read, that it's not the same facts as we have here, so I don't believe it -, from what I heard anyway, that it controls this situation. 14 You know, I disagree with Mr. Krueger's contention that once there's an appeal, the Commission loses jurisdiction to do anything. That's because clearly under your rules, Qnadqs&rQtkdr can be applied, at your discretion, of course, okay. If you were to carry out Mr. Krueger's argument to an extreme, that this Commission wouldn't have jurisdiction, then all of the counter arguments that have been made against Doutor, why don't you just go file an amendment? Does that mean you have jurisdiction to change the permit if I file for an amendment? Somehow I get jurisdiction, you get jurisdiction back then, even if the appeal is going? Okay. So if the answer to that is yes, then I think we need to break it down and understand, but clearly, there isn't anything that I know of under State law which says you cannot use your rules to revisit an issue, okay. Mr. Yuen's characterization of what we're doing is way off base. He's talking about reconsideration under Qnadqs&rQtkdr that is a separate motion that you could have made. And, st in fact, if you recall, after the permit was issued, the final decision was made on August 1, but it took some while to get it in writing and get it signed, we filed a request for you to reconsider, for you to consider a motion to reconsider, and this was back in August, I believe, of last year. Before you could take that up, the Chairman had already signed the written decision, so when we came to the hearing, your Corp. Counsel advised you you can't, you can't do a reconsideration because the decision is already signed and issued. And so when we came back to you, we were referring to another rule in Qnadqs&rQtkdr, and again, your rules say that your procedure, you know, is also governed by Qnadqs&rQtkdr, okay. So in here, there was a motion to rescind, that's another one, and a motion to amend something previously adopted, so that's what I believe we argued at the last meeting, and your motion that was carried last week, the last hearing, was based on that. Under Qnadqs&rQtkdr and, you know, I don't want to go too long here, but I can read it for you if you want, Qnadqs&rQtkdr says that motion can be made at any time, okay, not just within 30 days. The motion to rescind or alter something previously taken is a motion that any one of you can make at any time. And the only restriction or limitation is is that it can't be made if something is too late already, you know, where people have performed, for instance, you give me, you give someone a permit, okay. There are conditions. The person goes and performs, perhaps spends money. In that kind of a situation, the issues that -, if there's any issue relates to something that the guy's already done, you cannot, out of fairness, go and change that. You cannot, on your own, amend something, amend a condition that then doesn't allow this person to go ahead and do what he or she could have done under the permit. So there is that restriction. But again, under Qnadqs&rQtkdr, what you did at the last meeting is entirely allowable, it's specifically provided for, and there's no impropriety that I would see. You know, and I also take issue with this idea that somehow, you know, we're -, we want to lead you guys down a primrose path because we don't care about you or good government or the public interest or anything like that, we just care about our client. I ask you to think about that for a second. How much sense does it make for me to hoodwink you to do something 15 which is improper and have a smart guy like Dennis Krueger show the judge that it was wrong? Where does that get my client? So again, I will say for myself, I am not proposing things that I believe are improper because it affects my client as well as everybody else. I also disagree with Mr. Yuen's advice to you. He says follow your Corp. Counsel. And your Corp. Counsel, as smart a person as she is, I believe would also say that she is an advisor, okay, and you are the client. And for any attorney to give what he or she believes is the right opinion, and yet will recognize that the client does not have to agree if the client feels there's something that doesn't make sense or just feels there's something wrong. So, yes, I would hope that you would follow your Corp. Counsel as much as possible, but your role is not to just follow anything she says and give up your judgment and discretion on an issue, okay. I don't see that anywhere in the Charter, anywhere in the Code. There's nothing that says once your Corp. Counsel speaks, no matter how bright she is, you must follow like sheep. That is not the case. Lastly, it's wonderful, my voice -. Good faith. Non-compliance. And I am saying this stuff is really irrelevant, what the zoning inspector, what he said in the attachment to Mr. Yuen's letter. And I didn't want to go there, but since, you know, these allegations, I got to say this. You know, good faith -. Thanks, appreciate it. Thank you. Good faith, these kinds of allegations, bad faith, good faith, the reason they belong in an enforcement action is that if we were in an enforcement action dealing with those, then we could present information to show that there was good faith, okay. There's an allegation we haven't complied with the water requirements. False, that's been done. Irrigation has been converted 100 percent. Since the time you adopted that decision in August, irrigation is no longer using County water. It's all the private source now. And that -, and the large buses, I really don't want to go into depth on sghradb`trdHjmnvHllitrsvnqjhmf`f`hmrslxrdlf here, but all I'm saying is that belongs in a certain proceeding. And out of fairness to my client, to throw that out here, two days before this hearing, and then argue it's bad faith, you know, my client has bad faith, we shouldn't even be here today, that's really unfair. There's a time and a place to deal with that, it is not today. It's not on this agenda item. Thank you. FUJIKAWA:Any questions, Commissioners, to Mr. Tsukazaki? Okay, if not, you three gentlemen, we do have two people that signed up for testimony, can you stand back? Julie Mortensen, and Lunakanawai Hauanio, please step forward. I guess just you, Julie, for ` now. Can you raise your right hand, please. Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? ` MORTENSEN:I do. FUJIKAWA:Do you want to state your full name and your address, please. MORTENSEN:My name is Julie Mortensen. I live at 75-5481B M malahoa Highway in Hlualoa, Hawai`i. FUJIKAWA:You may proceed. 16 MORTENSEN:I'm here representing Huallai Farm Association. We're a community of 56 homes directly across the street from the Doutor development. And just mostly wanted to let you know that we are opposed to having buses coming back up to that Doutor development. One of the problems I think is the buses are a hazard on Mmalahoa Highway. Obviously, that highway isn't meant to have such large buses on it. And I -, in the past, there has been more than one bus outside of our community. We have our mailboxes, stack of mailboxes are at the bottom of our community on Mmalahoa Highway, and in the past, there's been at one time three out there, which totally blocks our community, not that it's blocking our entrance in there, but it blocks the area in front of our mailboxes. Those buses are noisy. They have their fumes that come out polluting. And the drop-off area at Doutor, I do have to agree, isn't substantial for what they're bringing in here. There really isn't a drop-off area for people to get -, unload and load for that development, and I think that that's a safety issue that needs to be addressed. And we're just -, I mostly just wanted to let you know that in our community of Huallai Farms, we're a five-acre coffee farm, also, and we're oppose to the whole idea. I just wanted to let you know. FUJIKAWA:Okay. Any questions, Commissioners, to Julie? If not, thank you very much. You three gentlemen, you may step forward again. If you have any question with the -. No? You don't? Okay, so Commissioners, what do you want to do, call SPRINGER:Mr. Chair, if appropriate at this time, I'd like to move that we go into Executive Session to discuss with Deputy Corporation Counsel the legal aspects of this application, or this agenda item before us. FUJIKAWA:Okay. Who will second? THIBADEAU:Second. FUJIKAWA:Okay. The motion was made to go into Executive Session Commissioner Springer and was seconded by Bill. Okay, now we are in Executive Session right now. O'TOOLE:You have to vote. FUJIKAWA:Yeah, we're going to vote for it. Do you want to give a roll call? HAYASHI:Commissioner Springer? SPRINGER:Yes. HAYASHI:Commissioner Thibadeau? 17 THIBADEAU:Aye. HAYASHI:Commissioner Graham? Commissioner -. GRAHAM:Aye. HAYASHI:Commissioner Kubota? KUBOTA:Aye. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Mina? MINA:Aye. HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:Chair Fujikawa? FUJIKAWA:Aye. HAYASHI:Motion carries to go into -. FUJIKAWA:Okay. HAYASHI:Executive Session. FUJIKAWA:We're in Executive Session. HAYASHI:If we can clear the room. FUJIKAWA:Right now. HAYASHI:Thank you. FUJIKAWA:Staff, could you help the people out for a minute until we have this taken care of. The Planning Commission went into Executive Session at 10:45 a.m The meeting reconvened at 11:20 a.m. 18 FUJIKAWA:The meeting will come to order again. We are now back after the Executive Session meeting. Commissioners, you want to start off with anything that you would like to say? O'TOOLE:Ask is there any motion. FUJIKAWA:Is there any motion to be -? KUBOTA:Mr. Chairman, I'm not going to make a motion, but I would my position for the record. After much discussion and deliberation and soul searching, I cannot make a motion that I was intending to make, and I tend to agree with the advice, and that has to do with the agendized item which says the request is to delete Condition 5.c. of the permit that prohibits the use of the large tour buses, and that is our agendized item. And I was told that my motion is not appropriate, would not be appropriate, so although I think it is, I will not make a motion to the effect. FUJIKAWA:Other Commissioners? KUBOTA:Oh, excuse me, let me explain that a little bit more. I wanted to attach conditions to the deletion. I -, but because I'm bound by what is agendized, I was told that adding conditions to it would not be appropriate and perhaps legally if I were trained to read thusly, I might have to agree to that, so I will not be making a motion. FUJIKAWA:Any other Commissioners thinking of making a motion? If not, we have to close the case. O'TOOLE:There's no motion on the floor. FUJIKAWA:No motion on the floor, so the case is closed for now. Thank you. TSUKAZAKI:Thank you, Mr. Chairman. Thank you. The discussion ended at 11:04 a.m. Respectfully submitted, Janet L. Kama, Transcriber 19