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Home My WebLink About06-14-2022 Applicant Statement of Non-Appearance at June 16, 2022 LPC Hearing Law Offices of Yeh & Kim RONALD N.W.KIM RKim(&yehandkim.com OF COUNSEL: 505 Kilauea Avenue, Suite B, Hilo, Hawaii 96720-3059 THOMAS L.H.YEH TLY@yehandkim.com Telephone: (808) 961-0055 JILLD.RAZNOV hamov@yehandkim.com Website: www.yehandkim.com JOHN MUKAI jmukai@yehandkim.com June 14, 2022 Michael Vitousek, as Chairman for the Leeward Planning Commission Aupuni Center 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720 Via email to LPCtestimony@hawaiicounty.gov Re: Bolton, Inc.'s Statement of Nonappearance for Leeward Planning Commission Hearing on June 16, 2022, Item No. 2, Remand of Special Permit Application of BOLTON INC. (REMAND SPP NO. 16-000188) Dear Mr. Vitousek, Please be advised that this firm represents Bolton, Inc. (`Bolton"),the former Applicant for SPP No. 16-000188, in presenting a statement of nonappearance to the Leeward Planning Commission on the matter which has been remanded. Bolton states that it does not intend to further appear before the Leeward Planning Commission regarding Special Permit SPP NO. 16- 000188, as Bolton withdrew its application for this Special Permit in 2016, and has no current interest in reviving this application or participating in a contested case with Petitioner the Community Associations of Hualalai, Inc. ("Petitioner"). The Leeward Planning Commission had jurisdiction over Bolton's application for Special Permit SPP NO. 16-000188, which Bolton is no longer pursuing. Bolton respectfully submits that the Leeward Planning Commission does not have the independent jurisdiction to adjudicate Petitioner's complaints or to review the prior decision of the Director of the Planning Department that Bolton's existing activities onsite did not require a Special Permit. Bolton understands the Hawaii Supreme Court's decision in The Community Associations of Hualalai, Inc. vs. Leeward Planning Commission, County ofHawai`i; and Zendo Kern, Planning Director, County ofHawai`i, SCOT-16-0000690, filed December 2, 2021 ("Community Associations of Hualalai")remanded based upon a finding of procedural error. In any event, Bolton unequivocally requested the withdrawal of its application for Special Permit SPP NO. 16-000188 in 2016 and will not presently pursue this application before the Leeward Planning Commission. From Bolton's perspective, after the Leeward Planning Commission rules on Petitioner's request to intervene there will be no further contested issues for the Leeward Planning Commission to decide. Mr. Michael Vitousek June 14, 2022 Page 2 On or about March 1, 2016, Bolton filed an application seeking a Special Permit from the Leeward Planning Commission to operate a baseyard and staging area for equipment, store materials, stockpile and crush natural materials for commercial use, and construct a security dwelling on TMK No. (3) 7-5-017:044 ("Property"). Members of the public opposed the application for Special Permit and Petitioner filed a petition to intervene. A public hearing for the application was continued on May 19, 2016, and the Leeward Planning Commission did not rule on the petition to intervene at that time. In a letter dated September 21, 2016, the Director of the Planning Department, who is not a decision-maker on the Leeward Planning Commission, determined that Bolton's existing activities of excavating and removing natural materials and keeping equipment onsite did not require a Special Permit because those activities were part of Bolton's required and duly permitted drainageway improvement project. At that time, the Director informed Bolton that its Special Permit application would be withdrawn from further processing. In a letter dated September 28, 2016, Bolton formally requested the withdrawal of its Special Permit application. In a separate letter dated September 28, 2016, Petitioner stated objections to the Leeward Planning Commission's disposition of the Special Permit application and noted that the petition for intervention had been pending before the Leeward Planning Commission. Petitioner did not file a notice of appeal with the Hawaii County Board of Appeals. In a letter dated October 4, 2016, the Planning Department acknowledged Bolton's request and confirmed the withdrawal of Bolton's application for the Special Permit. On October 13, 2016, Petitioner filed a petition with the Leeward Planning Commission objecting to the Planning Director's acceptance of the withdrawal of the Special Permit application, arguing that only the Leeward Planning Commission could dispose of the application after a public hearing, and requesting that the Commission place the matter on its agenda for a public hearing. The Commission did not take those requested actions and Petitioner directly appealed to the Hawaii Supreme Court. In Community Associations ofHualalai, the Court remanded the matter to the Leeward Planning Commission due to a violation of Planning Commission Rule 4-6, which required the Leeward Planning Commission to decide upon the petition to intervene at the first meeting after the filing of the petition, on May 19, 2016. At that hearing on May 19, 2016, the Leeward Planning Commission received oral testimony and continued the hearing at Bolton's request but did not decide upon the petition to intervene. The Court held that Petitioner was entitled to a decision on its petition before the Leeward Planning Commission or Planning Director took any further action such as withdrawing the application in the Planning Commission proceeding. The Court also found that the Planning Director's decision to withdraw from further processing of the Special Permit application before the Planning Commission decided on Petitioner's petition to intervene was an abuse of discretion'; however, it should be noted that the 'In dicta,the Court also found that the Planning Director"abused his discretion when he withdrew Bolton's Special Permit Application ... after extensive nonpublic communication and fact-finding with only one party,Bolton,in the contested case",mischaracterizing those communications as ex parte contacts. Contrary to any superfluous findings of improper ex parte contacts,the Planning Director is not a decision-maker or member of the Leeward Planning 2 Mr. Michael Vitousek June 14, 2022 Page 3 Court did not have jurisdiction to review the decision of the Planning Director that Bolton's existing activities on the Property did not require a Special Permit. The Planning Commission has the jurisdiction to grant or deny an application for a Special Permit, Hawaii Revised Statutes ("HRS") § 205-6, while the Planning Director is more broadly responsible for administering and enforcing County zoning laws. See County Charter § 6-7.2; HRS § 205-12; Hawaii County Code ("HCC") § 25-2-1. The Planning Director's decision that Bolton's activities do not require a Special Permit could only be reviewed by filing an appeal with the Hawaii County Board of Appeals within thirty days of September 21, 2016. See HCC § 25-2-20. Finally, if the Leeward Planning Commission decides to allow Petitioners to intervene, there is no subsequent contested case to be had, as Bolton has withdrawn its application for the Special Permit which would have been the basis for the contested case hearing. A contested case is a proceeding to determine the legal rights, duties, or privileges of specific parties. See HRS § 91-1. If Petitioners are allowed to intervene, there will be no further legal rights, duties, or privileges for the Leeward Planning Commission to determine due to Bolton having withdrawn its application. Furthermore, Bolton would not be a party to any contested case as it is no longer pursuing its application for Special Permit. The Leeward Planning Commission has the authority to informally dispose of a contested case for a number of reasons that include default. Planning Commission Rule 4-1. In the present case the Leeward Planning Commission may dispose of any potential contested case as Bolton is voluntarily no longer a party and will not appear. For the reasons stated herein, Bolton will not appear at the Leeward Planning Commission's hearing scheduled for June 16, 2022, and takes no position on Petitioner's petition to intervene other than stating that Bolton will not participate in any subsequent contested case regarding Special Permit SPP NO. 16-000188. Very truly yours, LAW OFFICES OF YEH & KIM RONALD N.W. KIM Cc: Michael J. Matsukawa, Esq. Jean Campbell, Esq. Malia A. Kekai, Esq. Commission and has no power to vote on Commission decisions. See County Charter for the County of Hawaii ("County Charter") § 6-7.4. 3