HomeMy WebLinkAbout2022-05-09 - Appellant08 - FOF-COL-Order - Kai Ala Partners draft1
BEFORE THE ENVIRONMENTAL MANAGEMENT COMMISSION
COUNTY OF HAWAI‘I
STATE OF HAWAI‘I
KAI ALA PARTNERS LLC,
Appellant.
vs.
RAMZI I. MANSOUR, DIRECTOR,
DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT, COUNTY OF HAWAI‘I
Appellee
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| CONTESTED CASE HEARING:
| Date: 4/27/2022
| Time: 10:15 am
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| FINDINGS OF FACT, CONCLUSIONS
| OF LAW AND ORDER
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| CERIFICATE OF SERVICE
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APPELANTS’ PROPOSED FINDING OF FACTS,
CONCLUSION OF LAW AND ORDER
I. INTRODUCTION
Appellant, Kai Ala Partners LLC appealed the Director’s
decision to uphold the 1998 Department of Public
Works (“DPW”) determination that the property located
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at 75-5944 Ali’i Drive, Kailua-Kona, Hawaii 96740, Tax
Map Key (3) 5-09:018 (“Property”), should be billed as
two (2) units. The facts show that the Director’s action
was in violation of the Hawaii County Code and clearly
erroneous.
II. FINDING OF FACTS
1. On May 6, 1998, the County of Hawaii DPW
completed the Sewer Account Update determining
that the Property should be connected to the County
sewer and billed for two units.
2. On May 7, 1998, DPW confirmed that the
Property was connected to sewer.
3. On July 31, 1998, Appellant paid their first DPW
Wastewater Division bill for $100.00. This bill showed
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only the amount of $100.00, nowhere on the bill did
it reflect that the assessment was for two sewer fees.
4. From July 31, 1998, to present, Appellant wrote
a check every other month for twenty-three (23)
years to pay the Wastewater Bills, a total of 14 checks
that totaled $16,304.00, which resulted in an over
payment of $8,152.
5. On April 15, 2021, Appellant received a “Notice
of Wastewater Service New Rate, which was included
with Appellant’s April 5, 2021, bill. The Notice
indicated that the new rate would be $44.00 per unit
effective April 1, 2021.
6. The bill showed a bi-monthly charge of $160.00
and a new monthly rate for a single-family residence
of $44.00 ($88 bimonthly for one unit), the resulting
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bi-monthly charge for two units was $176.00. This
when Appellant first became aware of the error in the
County Wastewater Division’s billing two sewer fees
for the Property.
7. On June 2, 2021, Appellant sent DEM
Wastewater Division’s Chief Dora Beck a letter
explaining that the Property had been incorrectly
charged for two (2) units since 1998 and requested a
refund of the over charged amount and asked that
the Property be charged for only one (1) unit going
forward.
8. On June 10, 2021, Director Mansour sent
Appellant a letter explaining that the “Accessory
Building” met the definition of an “Unoccupied unit”
under HCC Section 21-2 and based on that fact, billing
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Appellant for two units was both fair and appropriate.
Director Mansour informed Appellant that should Kai
Ala Partners want to avoid being charged for two (2)
units it would need to remove the plumbing fixtures
in the Accessory Building, which included the washing
machine, wash tub, hot water heater, toilet, basin,
and shower which are currently connected to the
County’s sewer line. Director Mansour’s letter was
addressed to the street address of the Property not
the billing address and as a result the Director’s letter
was returned and did not reach the Appellant until
August 2021.
9. On August 23, 2021, Appellant sent another
letter to Director Mansour where it was pointed out
that among other things, the Accessary Building did
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not receive a water bill and that under the definition
of an “unoccupied unit” the lack of a water bill means
that Section 21-2 could not be used to charge a sewer
fee.
10. During the cross examination of Director
Mansour, he was asked if he had seen a water bill for
the property at 75-5944 Alii Drive, Kailua-Kona, HI.,
and he replied that “where there is water, there is a
bill”. He was then shown that there was no water bill
for the property at 75-5944 Alii Drive (Exhibit 18).
III. CONCLUSIONS OF LAW
Section 21-2 of the Hawaii County Code states under
the definition:
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“Unoccupied unit” means a unit that is not occupied
but has accessibility to a sewer, plumbing fixtures
located on it, and currently receives a water bill.
The unoccupied unit that was charged a sewer fee
from 1998 to the present has never received a water
bill. Therefore, the Director’s charging a sewer fee for
this unit was in violation of the Code and was clearly
erroneous.
Following the hearing and after full consideration of the
evidence, and the review of briefs submitted by the parties, the
Environmental Management Commission makes the following
decision and order.
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IV. ORDER
At the Environmental Management Commission meeting on
April27, 2022, Commissioner Robinson made a motion to which
Commissioner Gaffney seconded, “to reverse the director’s
decision that the structure at issue in this appeal is an
unoccupied unit, on the grounds that the decision was
rendered in violation of the code and clearly erroneous”. After
a lengthy discussion the commissioners voted four (4) in favor
of the motion and two (2) opposed. The motion carried.
WHEREFORE, it is this ________ day of May 2022
ORDERED, that this commission’s findings of fact and
conclusions of law made at the conclusion of the hearing on
April 27, 2022, are hereby incorporated by reference; and it is
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FURTHER ORDERED, the Wastewater Division is directed to
change the double Sewer Service fee to one (1) service
effective immediately; and the billing for the sewer service at
75-5944 Alii Drive, Kailua-Kona, Hawaii shall be one unit.
COMMISSIONER GEORGJEAN ADAMS (CHAIR)
Copies to: APPELANT, APPELLEE