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HomeMy WebLinkAbout2005-09-02 TMALASEKO2 PLANNING COMMISSION COUNTY OF HAWAI€I HEARING TRANSCRIPT SEPTEMBER 2, 2005 A regularly advertised hearing on the application of JAN MALASEK (GEOTHERMAL ASSET FUND CLAIM)was called to order at 9:20 a.m. and again at 10:10 a.m. in the County Building, Councilroom - Room 201, 25 Aupuni Street, Hilo, Hawai€i, with Chairman Fred Galdones presiding: PRESENT:Fred Galdones ABSENT & EXCUSED: William Graham C. Kimo AlamedaJeffrey McCall Andrew Iwashita Rodney Watanabe AllenSalavea Hannah Springer ABSTENTION: Rene Siracusa Ivan Torigoe, Deputy Corporation Counsel Christopher Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And one person from the public in attendance. CLAIMANT: JAN MALASEK Geothermal Asset Fund Claim in the amount of $27,494.00 to compensate for a loss of income from a orchard and nursery operation due to geothermal activity in the area. The property is located at 13-683 Leilani Avenue, approximately 1600 feet south of the Leilani Avenue „ Pohoiki Road intersection, Leilani Estates Subdivision, Keahialaka, Puna, Hawai€i, TMK: 1-3- 28:18. GALDONES:Commissioners, on Agenda Item No. 1, Unfinished Business, Claimant is Jan Malasek. Unfortunately, Mr. Malasek is not here. He has been informed of todays meeting however. And being that he is not here present, wed still like to give him an opportunity to be able to make a presentation in case something has detained him that we are not aware of. So my recommendation is to address that subject matter, take it out of order, and lets take that after Agenda Item No. 4; and if he is still not here then at that time we shall decide how we will proceed in his absence. At 9:22 a.m., the Commission proceeded with taking up the remaining agenda items. At 10:20 a.m., the Commission agenda took up the subject application. GALDONES:Commissioners, I note that there is a representative for application No. 1, so were going to take it out of order and bring it up at this point in time. 1 Commissioners, AgendaItem No. 1, claimant is Jan Malasek. This is a continued hearing on the Geothermal Asset Fund Claim in the amount of $27,494 to compensate for loss of income from an orchard and nurseryoperation due to geothermal activity in that area. Norman. HAYASHI: Thank you, Mr. Chair. As the Commissioners will recall, at the last meeting there was a motion to approve a claim of approximately $27,000. That motion did not pass, the vote was two to four. As a result, the Commission voted to continue this application or this request to this meeting. You just received this morning a copy of a letter from the Planning Director explaining further the rationale for his position on recommending denial of the claim. Are there any questions? GALDONES: Commissioners, any questions of Norman? HAYASHI:Justfortherecord,theapplicantwasproperlynotifiedofthishearing. There was a letter dated August 9th, sent to Mr. Malasek informing him of the Commissions action as well as the hearing, and attached was an agenda. GALDONES:Thank you. ALAMEDA:Chair? GALDONES:Commissioner Alameda. ALAMEDA:Thank you. I have a question. I remember Commissioner Siracusa recused herself and became a testifier in this particular -. No? SIRACUSA:My recusing still holds. ALAMEDA:Okay. SIRACUSA:Im keeping my mouth shut. ALAMEDA:Okay, thats all. Thank you. GALDONES:Commissioners, any further questions of Norman? Otherwise, sir, could you please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? OLSON:Yes, I do. GALDONES:Could you please state your name and residence address. OLSON:My name is Jon Olson, and I reside at 13-631 Leilani Boulevard, Pahoa, Hawaii 96778. 2 GALDONES:Mr. Olson, are you representing Mr. Malasek? OLSON:Yes, I am. GALDONES:Have you received a copy of the background report and the recommendations? OLSON:Yes, I did. GALDONES:Do you have any comments to those documents? OLSON:Yes. Actually I have a number of comments. IWASHITA:Mr. Chair, Im sorry to interrupt but I have a procedural question. GALDONES:Proceed. IWASHITA:Atthe last hearing or at the last time this matter came up before this body, ahearingwasconducted.Thetestifiertodaytestified,aswellasacitizennamedReneSiracusa. And it was my understanding that at the conclusion of that last testimony that the hearing on this matter was concluded; and we had the motion and so forth, the procedural things that we went through to address this issue. So my procedural question is do we need a motion to reopen? If the intent is to take further evidence in this case, do we need to reopen the matter, the hearing? Because it was my understanding that the hearing was closed at the conclusion of the proceedings at the last meeting. GALDONES:Mr. Torigoe, if you could assist us in this matter, please. TORIGOE:Thank you, Mr. Chairman. Im trying to check the record to see if we had formally closed the hearing. But, in any case, it seems that the Planning Director wanted to present further testimony in writing and it seems that the representative of the applicant wants to respond to that. So, basically, at this point, if no one objects to the reopening of the hearing for the purposes of that discussion, I think you can do that, and if theres no objection from the Commission. GALDONES:Mr. Iwashita? IWASHITA:I just want it clear on the record, you know, that there was either -. I dont understand, you know, Im not familiar with the exact requirements of the rule. So as far as the hearing, I just want it clear on the record whether it was closed at the last proceeding, at the last meeting; and if it needs to be formally reopened or not. OLSON:I believe, as a point of order, Mr. Chairman? GALDONES:Could you hold on -. 3 OLSON:A point of order. GALDONES:Whats your point, sir? OLSON:If it would simplify the thing, I could always testify as a member of the public. I could fill out a form and give my testimony as a member of the public, because I have that right to do that because it is on the agenda. So if that would simplify things, Id be happy to do that. TORIGOE:Probably, I was trying to look at the transcript to see if there was a specific closing of the hearing. I think Mr. Alameda was chairing at that time. Do you recall that, Commissioner Alameda? ALAMEDA:I think we did close the meeting, the hearing. TORIGOE:At this point if the parties do not object, you know, to reopening the hearingforthepurposesoffinishingthisdiscussion,thiswouldprobablybetheeasiestwayto deal with this. GALDONES:So, Mr. Torigoe, is it the purview of the Commissioners to decide? TORIGOE:Yeah, you have the power to reopen the hearing and, you know, finish up taking evidence and making a decision. GALDONES:Okay. Mr. Yuen? YUEN:The Department does not object to Mr. Olson making an additional statement. TORIGOE:And, Mr. Olson, are you in agreement with that, that basically well consider what the Planning Department has -? OLSON:I have no objection. TORIGOE:Okay. If thats the case and if the Commissioners are okay with that, then by unanimous consent I think you can consider the hearing reopened and go ahead and conduct this discussion based on the letter that the Planning Director has put in and Mr. Olsons response. Any objections from the Commissioners? Hearing none, Mr. Olson, you may proceed with your testimony. OLSON:Thank you. I think, just as a couple of minor issues here. When I went in last week to review the minutes of the last meeting, I think it was Tuesday or Wednesday of last week, they were not available, so I cant really address some of the issues that were brought up after I left. What I can address is some of the discussion that went on after the meeting was closed in the body. I suppose the first issue was that of the assessment of the crops as a separate entity. And in agricultural law it is quite common, in fact, FEMA and Department of Agriculture 4 bothdeal with crop insurance separately from infrastructure. And, in fact, if you were to file a, for instance, under whats happening like now in the hurricane impact area, you would file separate claims for both your crop loss and your infrastructure loss. That is the standard process for doing that. I think the claims adjuster recognized that. The issue of the claims adjuster, why is there a claims adjuster involved in this process? Well, because it is what the then Director of the Planning Department recommended to the Planning Commission; and the Planning Commission agreed. The reason that they stated at the time for doing that was to basically depoliticize the process. So now I find it somewhat of a breach of faith with the community that that has changed, that someone supposedly with the expertise -. At the time, they said the Planning Department didnt have the expertise to make the assessment; and thats why a claims adjuster was brought in. Well, you have the document from the claims adjuster, you know what the claims adjuster said about it. TheotherissueIwanttotakeupwithyouthatgotalotofdiscussionsiswhetherMr.Malasek departed from his property willingly. I dont know how many of you were reading in the newspaper in 91 during the time of the blowout and all of the incidents that preceded it and followed it. But I was going to circulate a copy of the front of the newspaper there where it said, the headlines read, LETHAL LEVELS EMITTED FROM PGV. That was the headline of the newspaper. And then it went on to state what had happened, the fact that the workers had been knocked unconscious and they had been removed by other workers and safety equipment. That erupted into a whole discussion of whether those lethal levels were actually capable of impacting the surrounding community or not. My assessment of that to give you kind of a visual on it, lets say that someone is standing down the street and he tells you that he has a loaded weapon. So you get to assess whether that weapon is capable of reaching you or not. Is it a high-powered weapon? Can you actually shoot me and kill me, or is it the bullet wont reach me? Its, you know, this is what we face out there now. Wehadanotherincidentwiththewellventingjustlastweek.NumerouscallstotheHealth Department, it goes on, you know. So just to be clear about this, the distance from that well pad towhereMr.Malaseklivesiswithin1500feetofthewellpad.Thatswithin1500feetofthe well pad. Thats why they notified him. So thats how close he is. Im 1200 feet away, so I know. And that brings us to the issue of susceptibility to primarily hydrogen sulfide and caustic soda. Those are the two major emitters coming out of the plant when they have an incident. Well, Dr. Legator from the University of Texas at Galveston who is an epidemiologist, came out here and did a study. It was part of a four-part study. He studied the surrounding community of PGV and three other sites on the mainland, and oil and gas plant, a slaughter house facility, and the sewage plant; and the subject was hydrogen sulfide and how people are impacted by that. And he found that there is a certain portion of the population, about 20 percent, that are impacted at what are really incredibly low levels, 10 parts per billion. So you want to gamble? You want to find out whether youre one of that 20 percent or not? I dont see that Mr. Malasek, given the amount of time and energy that he put into his farming, departed from there willingly. 5 So just in passing just toaddressthisissue here of the bananas and taro, 12 to 18 months for bananas, well, I mean, yeah, you can stick a plant in the ground and 12 to 18 months you might get a bunch of bananas; but that does not put you into commercial production. And its considerably longer if you were going through the process of getting yourself to where you can actually state with some reputation that what youre growing is organic; because theres land preparation involved there, too. And I dont recall whether Mr. Malasek was actually certified by the Hawaii Organic, HOFA, Hawaii Organic Farmers Association, or not. But I know you can see that his sales receipts were all to the health food stores. So theres a lengthy process there for whatever it is that youre growing, it certainly exceeds 12 to18 months. Again, Im sure that, you know, the Planning Department did their research and they came up with what they came up from whoever it was they talked to. So Ill let it go with that and well carry on from here. Thank you. GALDONES:Commissioners, any questions of Mr. Olson? Commissioner Springer? SPRINGER:In your discussion of adverse reaction to the emissions -? OLSON:Yes. SPRINGER:Is that part of the claim here? OLSON: Well, its the reason that he sold the property. I mean, he was forced out of there because he could not deal with the impacts. His health, you know, just didnt allow it. SPRINGER:Okay, thank you. Mr. Director, under Section 4 of the eligibility of geothermal asset fund claims, theres that discussion about adverse impacts being supported by documents such as doctors affidavits. Was that submitted as part of the claim? I didnt see it but Im just wondering if that was part of the record of this claim. YUEN:Well, I dont think it was submitted in support of this claim. He had some other claims and I dont know what went with those. Theres a chronology of what happened with the other claims. SPRINGER:Thank you. OLSON:Point of information, I know that he did have a letter from the Pahoa Health Clinic stating that he was, that theyve, I dont remember the doctors name, but the doctor that saw him believed that he was being impacted. So -. SPRINGER:Thank you, Mr. Olson. GALDONES:Commissioners? SPRINGER:Mr. -? GALDONES:Commissioner Springer. 6 SPRINGER:Im just wondering if, I wasnt at the last meeting but in my reading of the record of it I see that Commissioner Iwashita had a number of concerns about the completeness of the record. And Im wondering if those concerns remain or if you could help bring me up to speed on the discussion of your concerns. IWASHITA:I can tell you what I presently think. Well, I guess Ill answer you this way „ that in reviewing this matter again before todays proceeding it appears to me the way Rule 14 is written, the rule that controls our actions on this, is theres great or much of the language -. Sections 14-9, portions of 14-8, 14-6, all make reference to this matter, you know, initially being handle by the adjuster, in this case Wood & Tait, and recommendations being presented, and the fact that if this body does not take action within 90 days of receipt of, if this body does not take action within 90 days from the closing of the hearing that the adjusters recommendation becomes final. I did express some questions about the completeness of the recommendationandthereportwereceivedasitdoesntappeartocomplywithsomeofthe requirements of 14-9. But, in any event, the suggestion at the time was, well, thats okay, you know, they did the best they could. So thats how I would respond to your question at this time. SPRINGER:Thank you. GALDONES:Further discussion, further questions? Commissioner Salavea. SALAVEA:To your knowledge was there any impact to the fruit trees on the property from the blowout that you referred to, I think you said in 91, in terms of their fruit-bearing ability? OLSON:The impact from the H2S, no. There was earlier impact from the caustic soda. They had a system, a scrubber system. They used caustic soda to neutralize the H2S that was leaking from the plant and from the wells; and they had a vacuum system set up. It sucked all of this into a central location, and then they poured caustic soda on it; and this was all done in an open air tank. So if they didnt get the mix right, in other words at some point youd have not enough caustic soda, you get the H2S. If you didnt, sometimes thered be too much caustic soda, it would go airborne and it formed this white powder on everything around the plant. It was reported in the newspaper, samples were taken. The Health Department knows about it. You know, they were very ambiguous about it; but samples were sent out and it was analyzed and -. So the short answer to the process, yes, it did affect his crops and it, you know, ate roofs on houses and things like that around the plant. SALAVEA:And currently are his plants still surviving now or have they all withered? OLSON:Well, whoever purchased the place, it doesnt appear that theyre making any effort to continue the farming operation there, so I really cant say. SALAVEA:And to what point did he continue to farm his crops, up to the point that he sold the property? 7 OLSON:When the Planning Department notified him that he would be eligible, you know, for relocation; and, of course, at that point he just, he gave up. SALAVEA:Okay. All right, thank you very much. OLSON:Sure. GALDONES:Commissioner Iwashita. IWASHITA:Thank you, Mr. Chair. Mr. Olson, I have couple of questions that I hope you can help clarify. In the report from Wood & Tait dated December 30, 2004, the adjuster references a letter from a Patrick Tomlinson, quoting from the letter, ‚For Jan to begin again would mean planting immature trees that would take from seven to ten years to be at the point that the trees on his land are today.ƒ Youre personally familiar with Mr. Malaseks property? OLSON:Yeah, sure. Ive gone down there and bought produce from him, and products,yes. IWASHITA:Okay.Doyouhaveanyinformationthatwouldcontradictthestatement quoted from Mr. Tomlinsons letter? OLSON:Well, that it would take -? IWASHITA:That it would take seven to ten years to -. OLSON:To get his citrus trees into the same condition that they are, I think thats probably optimistic considering that he planted those trees, what, 14 years ago, €80 something. IWASHITA:Okay. The next question I have is the next statement in the Wood & Tait report states, ‚Based on our knowledge and experience, we believe a 7-year period to replace the orchard is reasonable and fair.ƒ Do you have any comment or testimony related to that? OLSON:Again, that would seem, from what I know of it, I mean, that seems to be very optimistic. I mean, you go and look at a tree that has been in production, he planted 14 years ago thats in production, was in production then, how are you going to get a tee to that same state in 7 years? I mean, considering, again, that he was an organic farmer. He did not use, you know, pesticides, herbicides, commercial fertilizers and all of those things to get those trees to the condition they were in when they were in production. So, yeah, thats a pretty conservative approach. IWASHITA:Thank you. Thank you, Mr. Olson. GALDONES:Further discussion? Commissioner Springer? 8 SPRINGER:Following up on Commissioner Iwashitas discussion, in our letter from the Planning Director dated September 1, 2005, on the second page theres a discussion regarding bananas which may be in full production 12 to 18 months after planting, and papayas and taro can also be harvested within a year. Im wondering what this statement is based on and if the Director has taken into consideration that there were also citrus and avocado crops grown by the applicant. YUEN:The statement is based on personal experience with bananas as a commercial banana farmer; and with papayas and taro as a person who has grown them. The bananas can be in full production in 12 to 18 months. The Schedule F forms that we received do not itemize between various crops. But in, and Ive just listed what the claimant himself listed as the principal products in those tax forms. We are not, certainly avocados and citrus take longer to bear. And we dont know of, we dont know the proportion of income earned from the various crops, but clearly by his own report some of it was earned from relatively short-term crops. GALDONES:CommissionerSpringer? SPRINGERMr.Director,wouldyouconsiderthenacompensationofthe$3,623for two years of time a reasonable compensation? YUEN:I oppose any compensation on the grounds that he is not entitled to any compensation after selling the property. If the Commission disagrees then I would hope the Commission takes into account the points made about that some of the crops were relatively short-term crops and that theres labor involved. SPRINGER:Mr. Director, in Rule 14 when, lets see, on the sheet thats part of our background packet, adverse impacts will include physical injury, medical or health conditions, business or economic loss. How should we consider this business or economic loss? Then, it seems to me in your letter youre suggesting that the sale of the property was indeed the compensation due the applicant. YUEN:Thats right. It terminates a persons right to income from the property when you sell the property. Certainly a person who had crops or fruit trees affected by a geothermal event could make a claim against the Geothermal Asset Fund for that loss of crops. If hydrogen sulfide or caustic soda destroys your crops, you can make a claim; and it would go through this adjustment process of reviewing the claim. And if youve made your burden of proof, then thats a legitimate claim that we would respect. Similarly, if you are, you have to move, youre dispossessed from your house and you move back, then you have a claim for temporary relocation, youve a claim for temporary accommodations. Our position on the basic claim is that, as I said, that once you sell your property youre not entitled to earn any income from it. SPRINGER:So, Mr. Director, just so that Im clear on what your guidance to us is is either the applicant could have sold the property, or if he had retained the property then we might be taking into account this loss of business due to the condition of the land? 9 YUEN:If he were making a claim for that. My understanding is he has not ever claimed that the geothermal conditions hurt his crop. At least he has never made that claim against the Fund. Theres a list of 30 claims that have been made over time by Mr. Malasek, and none of them is for damage to his crops per se. And this claim here is not for damage to his crops per se. Its actually that he could have continued his farm but having sold his property to the Fund he is no longer going to earn money from his farm, and he wants income for the interim work he establishes for an equivalent kind of farm. OLSON:Point of information if I may. GALDONES:Yes, Mr. Olson. OLSON:The fact of the matter is that during the incident that we talked about earlierwiththecausticsoda,Mr.Malasekdidtrytofileaclaimfordamagetohiscrops.The Planning Department at the time rejected it because these rules did not exist at the time. The rule-making had not been completed; and, in fact, if you will look to see when the rule-making came into effect, youll find out that a lot of the people attempted to make claims to a process that while it was in the permit had not been formulated by the Planning Department for the Planning Commission to do. So you cant submit a claim for a process that doesnt exist. And thats the way they left a lot of people hanging. GALDONES:Mr. Iwashita. IWASHITA:I have a question. In this proceeding I note that Wood & Tait or representative of Wood & Tait, Mr. Wood, is not present to, you know, for us to be able to ask questions based on the report. And I was wondering why the adjuster is not here. Is there a reason why the adjuster is not here? HAYASHI:As far as the adjuster, we did not inform him of the meeting. However, if the Commission wanted Mr. Wood here then if you had indicated that to us then we would have asked him to be in attendance today. IWASHITA:Thank you. The reason I had brought that up is, you know, in going through the rule again, Rule 14, again, to me there is emphasis on this process, initiating and focusing on; and ultimately if this body does nothing, everything the adjuster does is what controls. There is a great emphasis in my opinion under the rule, you know, in reliance upon the adjuster and the work the adjuster does in terms of whether or not a claim is made; and therefore, I would suggest there is a deference under the rule to the work that the adjuster does. One of the problems I have with where we are in this process, this body, is that suggestions are being made by staff that certain information is incomplete or incorrect, and those kinds of suggestions are being made. If those concerns were there, you know, I would see those concerns arose after the report was submitted. In my view of how the rule is written, because the adjuster is empowered to make the report and the recommendations, that any concerns such as this should be addressed back to the adjuster, so that the adjuster can take them into consideration and do 10 further investigation or whatever needs to be done in order to address those concerns. That was not done as far as I can see in this case. And so the bottom line to me is that, you know, having the public hearing to hear this matter is part of our process, but it really, the way this has developed doesnt provide us any significant additional information. Essentially all Im hearing is, for lack of a better term right now, speculation really about what if this, what if that, how come, why not this, why not that. And thats really all it is; and its not really, if you look at the way the rule is written, those things really dont come up in this procedure. Im focusing now on, this is Rule 14-8(e), which says, ‚Compensation shall be granted or denied by an affirmative vote of the majority of the entire voting membership of the Planning Commission (five of the nine members)ƒ, and this is the language that is of interest to me now, or by default, ‚or by default by the Planning Commission choosing not to consider the claims adjusters recommendation.ƒ In other words, we can today choose not to consider the claims adjusters recommendation. And the net effect of that would be basically this body saying we defer to the adjuster and what the adjuster did. Because, you know, frankly, the adjuster knows more than anybodyheretoday.Theadjusterdidallthework,staffdidnotdothework.Theadjustertalked to all the people the adjuster felt was necessary as required under the rules. The adjuster came up with the report and the recommendation. And were being asked to question or disagree with the adjusters recommendation based upon frankly I dont know what, other than suggestions that the adjuster is wrong and the adjuster should not have decided that this is a compensable claim under Rule 14-6(c). You know, and thats an argument. I understand the concern because Mr. Malasek did sell the property and that is, you know, obviously raised a question, well, how can you still have a claim if you sold the property. You know, but, as I stated at the last hearing this rule is not clearly written, shall we say, to put it in a, as positive a light as I can say. So there is room for argument here. And the adjuster, knowing the rule, having followed the rule, you know, basically says there is an adverse impact, has defined what that is, and put a range of numbers on it. And I find it difficult on the record that has been presented to us to try and challenge what the adjuster has come up with. So my deference is, right now, to follow 14-8(e) and have this body chose not, to consider the claims adjusters recommendation, make it clear on the record deference is being given to the adjuster and let it stand that way. GALDONES:Commissioners, any further discussions? Commissioner Springer. SPRINGER:Could you clarify for me if I heard the Commissioner correctly, and I dont have the rule in front of me, if we do not have a vote of five today, if the vote is split similarly to the way that it was previously, what happens? Does automatically the adjusters, is the adjusters report accepted or do we hear it again? GALDONES:We should yield to Mr. Torigoe. SPRINGER:Thank you. TORIGOE:Thank you, Mr. Chairman. Under your Rule 14-10(a), end of that says that , ‚If the Planning Commission does not make a decision on the claims adjusters 11 recommendation within ninety (90) days from the close of the hearing, the claims adjusters recommendation becomes final.ƒ You know, we reopened the hearing today and so I think the clock would start running again. The other interesting wrinkle is that the adjusters recommendation here does not have a solid number on it. It has a range in it, so that becomes a problem. GALDONES:Commissioner Springer. SPRINGER:Could that problem be properly addressed by having the adjuster appear before us and have a deeper discussion of the range? TORIGOE:Thats a possibility. But I think also you should consider that, looking at your Rule 14-8(c) which talks about how you deal with the claims adjusters recommendation, it says,‚ThePlanningCommissionmayvotetopaytheclaimant(s)afterreviewingthesupporting documents and the recommendation made by the claims adjuster if it finds,ƒ you know, that there should be an impact and theres, an appropriate amount of damage can be compensated for. But, basically, its saying that you look at whatever supporting documents and the recommendation, and I think we also have to read in at this point testimony because these rules are kind of outdated. These rules, the way theyre written, allow an appeal to the Board of Appeals; and as we know, you know, thats no longer the case under the Charter amendments. And, so, basically, I think we have to consider this to be the contested case; and if there is relevant testimony such as whatever testimony from personal knowledge Mr. Olson is bringing, as well as testimony from the Planning Director upon his review of the record and his experience as a farmer, I think those are relevant things that you can use to fill in the gaps here. So, again, going back to what the rule says, you can vote on a claim if you have substantial evidence based on the documents, I think the testimony also, along with the recommendation of the claims adjuster. So, for instance, if you felt like there was a basis for saying that there was adverse impact and you believe that a certain amount of compensation should be paid and if you feel the evidence is clear enough for you to make a reasonable determination, then you could make, you know, take the claims adjusters recommendation and put a number on it where he has a range. I think thats within your discretion to do. Or if you feel that the evidence is really not sufficient to make those kinds of findings, that you can make a rejection. GALDONES:Commissioner Springer. SPRINGER:As Commissioners were, often were admonished not to take our personal, we need to base our discussion and decisions on the merits of the evidence before us, setting aside our personal opinions and experiences. And Im wondering if the Planning Director may, how we should treat his opinion as a farmer in his letter to us as the Planning Director, if his basis for the statement that 12 to 18 months after planting papayas and taro can be harvested within a year is based on his experience as a commercial farmer, is that valid? IWASHITA:Mr. Chair, I have a related comment on the question. GALDONES:I would like to have Mr. Torigoe respond to her question first. 12 IWASHITA:Sure. TORIGOE:Well, again, treating this as a contested case basically any relevant testimony you can consider. And so if you want to further probe into the extent to which the Planning Director has actual experience that relate to that, well, you can do that. I think it probably goes to the weight of the evidence rather than to its admissibility. And in a matter like this, I think the Planning Director basically, again, would be a party; and so you can treat him as such. GALDONES:Commissioner -. YUEN:If I could just say one thing on that. The role of the Department in providing factual information, or even opinion, is different than the role of the Commissioners. We,ineveryapplicationwewillprovidefactualinformationthatsometimesmaynotberight. But thats what we do. And so when we talk about the Commissioners not interjecting information that is not broadly known into the proceedings, theres a difference between the role of the Department as staff or as party to a contested case and the Commissioners as the decision makers. GALDONES:Commissioner Iwashita? IWASHITA:Thank you, Mr. Chair. Im going to venture into, maybe, quicksand because now Im going to put on my sort of lawyer training here. The rule we have to follow is Rule 14. And I have some concerns about the rule with regard to how staff and the Director are factored into the implementation of the rule. And Ive gone through the eight pages that constitute my copy of the rule provided to me and I find nothing in these eight pages on staffs or the Directors participation in this process, nothing. All references are to the Commission and to the adjuster. Okay? So if, and I agree with counsel that this is a contested case type of matter that, the result of which may be appealed by the applicant. And so we if want to dot our ‚isƒ and cross our ‚tsƒ and make sure we peel only the right bananas, if the Director, or staff, or otherwise wants to make a record, a proper record, in this contested case matter then it should be done the way its usually done, by sworn testimony before the body. Otherwise it doesnt appear to me that we as a Commission under Rule 14 can take anything other than the report of the adjuster and whatever is actually placed on the record before us under oath into consideration in reaching whatever decision we come to reach in this matter. GALDONES:Mr. Yuen. YUEN:Two things: first on the authority of the Director to make recommendations on this matter comes from the County Charter which says that the Director advises the Planning Commission on matters within their responsibility. Second, on the point of whether matters should be submitted, matters like a background report, we would be happy to be under oath for such matters. That has not been the general practice for the Departments 13 background report to be accompanied by an oath or other affirmation, nor we -. In typical contested cases involving intervenors with formal contested cases, documents are routinely accepted, written documents are routinely accepted without being sworn to. IWASHITA:I dont have any problem accepting advice from staff and the Director. Its just in the contested case process that were involved in, my point is that thats all it is, its advice. And its not something that the Commission can rely on as evidence as part of the record in reaching its decision. Because, for example, in the Directors last letter, the Director says the sale ended his rights to the property, including the right to earn income from fruit trees. Thats advice. If we, lets say thats advice. But thats not something that the Commission can rely on, you know, as a matter of fact in this case that thats how the rule is to be read. The decision on how the rule is to be read is to be made by the Commission. The decision on how the rule is to be applied is to be made by the Commission. The advice of the Director is welcomed and can be looked at it that way, but its advice. And its not controlling and cannot be controlling of this body. And,youknow,lookingatRule14and,again,theDirectorandthestaffreallyhavenorolein the rule directly to this bodys consideration and approval of, or deference to the adjusters recommendation. You know, that whole process, its adjuster makes recommendations, the Commission either accepts it, denies it or defers. Thats the process. There is nothing in the rule itself that says, you know, basically staff or the Director has input. And I acknowledge that under the Charter the Director is required to provide advice to the Commission. But, again, you know, were working under Rule 14 and, to me, we should, thats primarily what should control our process. GALDONES:Im going to have Mr. Torigoe make a statement and Im going to call for a short recess thereafter. TORIGOE:Okay. Thank you, Mr. Chairman. Just with respect to the Directors role, you know, everybody acknowledges that the Charter says that the Director advises the Commission. We also acknowledge that this should be considered a contested case. And under your Contested Case Rule 4-7 it says that, ‚In all proceedings where the Commissions action is directly appealable to Circuit Court,ƒ including this one, ‚the applicant and the Planning Director will be designated parties to the action.ƒ So that is, you know, the Director is a party, the Director can participate as such and can testify as such. Now Commissioner Iwashita raises a good point in that if were going to be taking testimony then at some point it would be good to swear the people who are giving that testimony if its factual. And when we have formal contested case procedures, that certainly has been the practice to swear everybody in, and also to make sure that whatever documents are properly recognized as being in evidence. In times when you dont have a real formal adversarial contested procedure going weve tended not to be that formal. But it doesnt hurt at the end, you know, when you have all the evidence in to make sure that all the parties are satisfied, that whatever they want to present is in the record, and have that designated and, if you also want to, at some point, say, you know, we have been treating this as a fairly informal proceeding by apparent consensus of the Commission and parties. But if the parties want at the end to affirm 14 that all that they have presented is to the best of their knowledge true and accurate, you know, in a form of oath, then I think that couldnt hurt either. So we can we deal with these things in a fairly informal fashion but try and preserve some of the attention to truthfulness and to the sworn accuracy of the testimony that Commissioner Iwashita has raised. IWASHITA:I have a lawyerly kind of question. GALDONES:Commissioner Iwashita, is it going to take a while? Weve been -. IWASHITA:I hope, I dont think so, €cause I just, theres a dynamic here between the contested case rule and Rule 14. GALDONES:No, I understand that. But the Commissioners have been here sitting here for a while now and Im prepared to call for a short recess, and continue the dialogue thereafter. Thatsthepurposeofmyask-. IWASHITA:Justforoneortwominutes,Mr.Chair?Isthatokay? GALDONES:Ifyoucouldexpediteit. IWASHITA:Yeah,justoneortwominutes. GALDONES: Im sure the Commissioners would appreciate if you could expedite it. IWASHITA:Thank you. So Im not, because Rule 14 doesnt you know, directly reference the Director, Directors role in implementing the rule, can you explain to me -. I understand youre saying, you know, this is a, youre defining it as a contested case type of matter because it is appealable; and I agree with that. But how does that, I dont understand exactly then the role of the Director as a party when Rule 14 doesnt, you know, specify that and the Commission as a body is the one empowered to make the decision. GALDONES:Mr. Torigoe, would you like to research that? TORIGOE:No, let me just really briefly address it. I think as in, basically, the Rule 14 sets out what the Commissions duties are and what the standards basically are. And under Rule 4, the contested case rules, you know, the Director can come in as a party and present witnesses and cross-examine and everything, if thats what he wants to do. So I think you can harmonize those two and say the Director comes in, Mr. Olson or the party comes in, and they can place whatever evidence on the record, and then the Commission has to apply Rule 14 to that evidence and make a decision. Thats basically it. GALDONES:Okay. Im going to call for a short recess. RECESSEDThe Chair called for a short recess at 11:10 a.m. RECONVENEDThe meeting reconvened at 11:22 a.m. 15 GALDONES:Will the Hawaii County Planning Commission be back in order. Further discussion on this application? ALAMEDA:Question. GALDONES:Commissioner Alameda. ALAMEDA:Sure, I might as well get in the mix. I remember as I was chairing this last meeting on this subject, the relocation program from the County, I think I heard correctly it doesnt offer 100 percent. Its 130 percent, is that correct? YUEN:Yes. Its up to 130 percent of assessed, thats the taxed assessed valuation. ALAMEDA:Okay. Thats what I remember. Thank you. SALAVEA:Chair? GALDONES:Commissioner Salavea. SALAVEA:Just, I guess, point of clarification from counsel. Our role as Commissioners on this particular agenda item is to identify whether or not, and you can correct me if Im wrong, whether or not, or to establish if there was adverse impact upon the application to the GAF, is that correct? TORIGOE:Thats the first criterion under Rule 14-8(c)(1), Adverse Impact from the geothermal activities. SALAVEA:And that would help govern our decision whether, or whatever action we did take? TORIGOE:Right. If you think the evidence does not support a finding of adverse impact by the geothermal activities, then, you know, thats the end. You shouldnt go any further. If you think that the evidence shows that there was adverse impact from the geothermal activity, then you can consider if there was, you can award an amount of compensation appropriate for the damage caused by the adverse impact. SALAVEA:All right. That answers my question. Thank you. SPRINGER:Mr. Chair? GALDONES:Commissioner Springer. SPRINGER:To the Director, I think I understood correctly from Mr. Olson that a grievance process did not exist at the time that the grievance occurred, that were being asked to 16 consider that a claim would have been filed by the applicant of this complaint if the process had existed. Did I misunderstand? YUEN:What I think he was, Mr. Olson was responding to my comment that of the many complaints filed by Mr. Malasek none of them claimed damage to his trees. Mr. Olson then, and he can correct me if Im wrong, said that he would have filed such a claim earlier but that the claim process didnt exist at the time. The major blowout occurred in 1991 and Im not sure when this rule came in as far as compensation. And Im not sure what the timeframe was for the rule as to, you know, the time period before the enactment of the rule. All that Im not sure of. So I think thats the gist of what has been said here. And, I dont know, this particular, I dont know that he, whether or not he did have damage to his plants before the rule was in effect. All I can say is that he did not claim, that he began, there are a number of claims starting with, I believe, 1997 from Malasek, and none of those involved damage to the plants. SPRINGER:Thankyou. GALDONES:Seeingnofurtherdiscussion,Mr.Olson,doyouhaveaclosingstatement youd like to make before we go into decision making? OLSON:Certainly. Just to answer your question, that the reference to the blowout of course is not particularly relevant. That is the big impact that everybody got to see. You know, it sent everybody scurrying from here to Honolulu, right? That was the biggey. The surrounding community actually suffered far more impact from all those little events, the little leaks here, the caustic soda. You know, if, I dont know how this is going to go but certainly at some point if it goes against him well certainly supply all of these documents. Theyre all well reported. You know, there are stacks. Ive got boxes, and boxes, and boxes of this stuff. So yes, there -. And while the permit required that the rules be adopted, somehow or another the Planning Department just never got around to it. And so there was a stack of people who filed for loses or attempted to and were simply told that, you know, the rules hadnt been adopted and they could come back whenever the Planning Department got around to it. So thats what happened there. As far as the closing statement, I dont really know what more I can tell you that I havent already told you, except that youre hearing it from somebody who lived through it. I was right there. I saw this man suffer. And this has cost him a great deal. And in terms of what he does and the way he perceives himself, this has been very humiliating for him. Hes just a little farmer guy and hes just trying to make a living. And it is interesting that the only guy in this whole process of geothermal who stepped up to the plate and said Im sorry its governments fault that this has happened to you happens to be the Mayor of this County today. I mean hes the only one left with any credibility; and much of it revolves around the fact that he took responsibility for his part in a failure to prevent what has happened, and whats still happening on a lesser scale. So you can throw that into the mix. I do have one other question, Mr. Chairman. Is it your understanding that the Planning Department hired the claims adjuster because they believed that they had the expertise to do the 17 job? And its a rhetorical question. I mean either the Planning Department hired these people because they felt that they were competent and qualified to make the call or not. Thank you. GALDONES:Commissioners, any further discussion or any further questions? Seeing that theres no further questions and I dont see anyone else from the public here to testify, the Chair is going to declare the public testimony part of this hearing closed. Were going into decision making. Commissioners, the Planning Director recommends that the claim be denied by the Planning Commission. IWASHITA:Mr. Chair? GALDONES:Commissioner Iwashita. IWASHITA:Thank you, Mr. Chair. Im prepared to make a motion. GALDONES:Motion is in order. IWASHITA:Thank you, Mr. Chair. I move that the Planning Commission choose not toconsidertheclaimsadjusters,Idontknowifthis,itssortofawkwardlanguage.Ichoose that the Planning Commission, I choose, I move that the Planning Commission pursuant to Rule 14-8(e) defer to the Claim Adjusters recommendation. GALDONES:Seeing that theres no second, is it because there is no clarity to his motion or there will be no second to his motion? SPRINGER:Could I have the motion repeated? IWASHITA:Certainly. I move that the Planning Commission pursuant to Rule 14-8(e) defer to the recommendation of the claims adjuster. SPRINGER:May I have a further clarification -? IWASHITA:Sure. SPRINGER:Of what the motion is? Does that include, he gives a range for payment. IWASHITA:Yeah, I understand the concern expressed about that. But, you know, thats the way the report came in; and the reason for my motion is that I think thats, given everything that has happened in these proceedings, I think thats the best way to go. But thats why I make it. If nobody wants to second, thats up to you guys. SPRINGER:Second, for the purposes of discussion and then discussion. IWASHITA:Thank you. 18 GALDONES:It has been moved by Commissioner Iwashita and seconded by Commissioner Springer that we defer to the recommendation of the claims adjuster. IWASHITA:Mr. Chair, as the maker of the motion, can I ask for the opportunity to present the first discussion? GALDONES:Yes, you may. IWASHITA:Thank you. Thank you, Mr. Chair. The reason I made the motion, fellow Commissioners, is that the way this matter has come before this body, to me, emphasizes the reliance of Rule 14 upon the claims adjusters hiring, the claims adjusters work and investigation, and the claims adjusters preparation of the report and recommendation. And theres a lot that the claims adjuster did obviously thats not even in the paper record that weve had. I know its in the complete file or in a more complete file with the Department. But becauseofthebackandforthonhowtheruleistobeappliedandallofthat,Ibelievethat because Rule 14 in total gives deference to the claims adjuster, and the claims adjusters work and the claims adjusters recommendation, that given all of the circumstances and what weve heard thus far in this proceeding that deference to the claims adjuster is the best way to proceed, and dare I say the fairest way to proceed. GALDONES:Commissioner Springer. SPRINGER:Im just wondering if there are any other, if there have been any other cases of this sort that have been considered and decided upon. GALDONES:Norman, would you know? HAYASHI:Examples in terms of -? SPRINGER:Just this process that were going through where a consultant firm is retained and then a report presented to the Planning Commission, and the decision rendered from that. HAYASHI:Normally, we, well, this would be the only occasion where we would hire a consultant or hearings officer. So I guess I can say this would be the first time. SPRINGER:Well, as Commissioner Iwashita has articulated, I feel most comfortable relying upon the expertise of the Wood & Tait consultant firm which was hired by the County for the purpose of providing a report to the Planning Commission on this matter. GALDONES:Further discussion? ALAMEDA:I -. GALDONES:Commissioner Alameda. 19 ALAMEDA:I just want to make a comment. I think its important to note that the claims adjusters report is a recommendation; and, you know, to me thats a big difference from it being a mandate. Its a recommendationfor us to consider. Thats all. Thank you. SALAVEA:Mr. Chair? GALDONES:Commissioner Salavea. SALAVEA:Thank you. I agree with Commissioner Alameda that its a recommendation and I still, I feel that our responsibility is to establish whether or not theres any adverse impact to the business itself, because thats what is applicable in this instance. Not adverse impact to the individual which caused the person to sell the property because he couldnt live in that area but adverse impact. Thats the way Im reading into this, is that adverse impact to the business. And I dont think through testimony adverse impact to the business has been established.Iftherewasdocumentationsayingpriortothe€91blowoutsalesoffruitswereata certain level and after the event the sales dropped or the production of fruit by these trees were lessened because of the impact I would feel comfortable compensating Mr. Malasek for that. But in my mind that hasnt been established in any shape or form. The fact that he submitted documentation to the asset or the claims person kind of showed that the business continued to produce at a certain level. So thats why I asked for clarification from counsel, is if its to establish adverse impact on the business; and thats where Im going with my discussion. IWASHITA:Mr. Chair? GALDONES:Are there any other first-time speakers? Otherwise, I will call upon Commissioner Iwashita. Commissioner Iwashita. IWASHITA:Thank you, Mr. Chair. I view this claim not as the business or economic loss, not necessarily that, but as the any other claim of adverse impact which is able to be substantiated by evidence. And as I understand the claim, Commissioner Salavea is correct in saying that there is no evidence that the actual, theres a decrease in his production and all of that. And my understanding is that that is not the claim. And so the claim is not that his, he was making $10,000 a year before the blowout and then now hes making $3,000 so he should be compensated. The claim is that because of the geothermal conditions he essentially was forced to sell his property. If, you know, if it was a perfect world he would not have sold the property, he would still be there today, you know, selling his fruit and other things for $3,000 to $4,000 a year net. But because of the conditions he had to sell the property. And the claim is that when he got paid for that, that 130 percent of the taxed assessed value, part of what was not included in that payment was any consideration for his income. And the record is clear in what Wood & Tait has submitted that the Tax Office made it expressly clear that the 130 percent that Mr. Malasek received from the separate relocation program did not include any compensation for that, none at all. It was not even considered as part of the compensation. Thats what our record is clear. So that this claim is for, Mr. Malaseks claim as I understand it is that because that was not considered that constitutes any other claim of adverse impact for which he should be 20 compensated. So its clear that the claim hes making was never considered in the other rule program so that, again, thats clear to me that he has not been compensated for what he is being asked to be compensated for in this proceeding. And then the question is whether or not, you know, the fact that, -. So its a claim that, hey, I lost out on this money because I had to sell, and Im not able to get it at the, you know, at the place I have and its going to take me all the seven years to get back to where I was making this money so I should be compensated over that period of time. And hes not saying that -. You know, thats essentially as how I see it. Thats the question that was put to the adjuster, the adjuster went and did his work and made the recommendation. And so thats why I think that its best to defer to the adjusters recommendation. We dont have any new evidence that the adjuster didnt have in making the recommendation for compensation. We dont have anything new. We have some different arguments that maybe the adjuster, I dont know what the adjuster considered, whatever the dynamic was in doing the investigation or if there was any interaction with the Department on, or the Director on coming up with how this should be done. But, you know, and I dont know if thatsevenappropriatetoconsider. But,again,becausethisisanyotherclaimanditsnotaclaimforanactualeconomicloss,thats how I view that, that we need to view it as a claim under 14-6(c), the very last provision that says that compensation can be made for any other claim of adverse impact which is able to be substantiated by the evidence. And Wood & Taits Report basically summarizes that, that this claim was substantiated by its investigation, the evidence it saw. And thats why I think its best for us to defer to that, because we dont have all of that. SPRINGER:Mr. Chair? GALDONES:Commissioner Springer. SPRINGER:While the adjuster submitted that range, I believe that we need to put a dollar value to it. I see from the previous record, the record of the previous discussion on this th matter on August 5 , that just for clarification the approval recommendation is to award the claimant compensation totaling the amount of $25,361, which is an amount represented in the adjusters report. Is that the nature of this motion? IWASHITA:No. That motion failed last time and so I dont like to fail twice doing the same thing. I know Im crazy but I dont want to be declared insane. So the reason Im making this motion in this manner is, I understand the concern about this range and if it actually goes through what Mr. Malasek would actually get paid. Okay, I understand that thats a concern because the recommendation will become the decision. You know, and its going to be this range, right? I understand that concern. But, you know, I think that administratively or however that works out, thatll get dealt with by the Fund, whoever has to cut the check. And I guess the worstthingthatcanhappenifyouwanttoputavaluejudgmentonitisthatthehighestamount is the amount that will be paid. And I dont have a problem with that, if thats actually the result ofthemotion. SPRINGER:Mr.Chair? 21 GALDONES:Commissioner Springer. SPRINGER:I do have aproblem with that. And Im just wondering if theres any, I have heard clearly what Commissioner Iwashita has said to us. Should this motion pass as it is, how would a dollar amount be arrived at, or is that even an option? Is it the responsibility of this body to set a dollar motion into place? GALDONES:I have an opinion to that, but Ill yield to our counsel. SPRINGER:Thanks. TORIGOE:Thank you, Mr. Chair. I think the amount of any award will be something that the Commission could set. Again, youre not bound by the recommendation. In fact, the recommendation opens the door to you basically saying that they recommend a range so they donthavea-,andWood&Taitdidnothaveaspecificamountinmind.ButIthinkthatyou can act based on what you believe the evidence would support. Id also add that since Commissioner Salavea had asked me for some advice regarding adverse impact, in short I think Commissioner Iwashita has properly stated what the nature of the claim is, basically that theyre saying that but for having to sell the property due to the geothermal impact, they would have continued or Mr. Malasek would have continued to have income from the farming that he was doing. And so because Mr. Malasek sold the property based on the geothermal impact, and it would have taken him a certain amount of time to get productive on another piece of property, he looses out on that ramp up period, right, before you get into production. And so Im not advocating for or against that position. I think thats basically the statement of what the claim is at this point. So you need to look at that question of adverse impact in that light. And as Commissioner Springer earlier noted, it may be that when you look at the evidence it may be if you give credence to the Planning Directors testimony about being able to get into production in two years or so, if you want to use banana and taro, you know, if you accept that testimony as credible and you think that thats true, then that might be one type of decision that you come to, as to say, well, we think that there was impact based on geothermal but we think that the loss period would only be a couple of years. Again, Im not advocating that. Im just giving that to you as an example of the kind of thing that you could do based on your view of the evidence. SPRINGER:Mr. Chair? GALDONES:Commissioner Springer. SPRINGER:Thank you, Mr. Torigoe. With that in mind, may I offer an amendment to the motion that sets a price specific for compensation? GALDONES:It is in order. SPRINGER:I move that the amount of compensation to be awarded to Mr. Malasek be $7,246, which is compensation for two years of production at the value of $3,623 per year. 22 SALAVEA:Second. GALDONES:Theres a motion to amend. Does the maker consider that to be a friendly amendment? IWASHITA:I dont know how to respond to that question. TORIGOE:Well, let me just say that if there is a proposed amendment and in a small board like this there is consensus that that is okay, the Chairperson can basically say if theres no objection to that proposed amendment, then the motion can be considered amended. But, or you can treat it as a formal motion to amend and go through all that -. GALDONES:Yeah, okay. IWASHITA:I see. Thats fine. I consider it a friendly amendment. ALAMEDA:Chair? TORIGOE:Okay, Commissioner Alameda. ALAMEDA:Sorry, could you restate that amended motion? SPRINGER:That an award in the amount of $7,246 be made to the claimant; and thats based on the yearly earnings of $3,623, which comes out of the Tait and Wood Report, and taking into consideration the Planning Directors letter to us that full production of bananas, papayas and taro can occur two years after planting. ALAMEDA:Thank you, Commissioner Springer. SPRINGER:Youre welcome. GALDONES:Is there any objection to the amendment? IWASHITA:Again, I consider it a friendly amendment. GALDONES:Okay. If theres no objection then the motion has been amended. ALAMEDA:Discussion? GALDONES:Yes, discussion. ALAMEDA:Okay. Just for a point of clarification, so if we dont have a majority vote on this, five, that being, then it goes back again to the claim adjusters range, which is a problem again. 23 TORIGOE:Right, thats correct. And, basically, I think if we consider the hearing as having been closed today, then it will be 90 days. ALAMEDA:And the 90 days, so two questions, one it does go back, thats answered. The next one is will it come back to this body again? Because the 90 days, well be meeting again within 90 days. TORIGOE:Well, you know, thats, I think its up to you guys if you feel like you want to just defer it until further acted upon and then it just sits for 90 days, and thats another option. But then youll end up with that range. ALAMEDA:And since were in discussion mode, for those reasons Im okay with the motion, if we were to move forward with it. Okay? Thank you. SPRINGER:Mr.Chair? GALDONES:CommissionerSpringer. SPRINGER:Partofmyreasoningformakingthemotionisthattheclaimsadjuster recommends compensation. Weve received testimony from a commercial farmer who indicates that two years time is sufficient to get a number of the crops into production; and in the consultants report we have a report from Patrick Tomilson with 20 years of nursery experience. So Im taking to heart the consultants recommendation that compensation is due. Im not sure that seven years is necessary. GALDONES:Any further discussions? Norman, whatever action we take on this, that would set the precedent for future claims that is brought before the Geothermal Asset Fund? HAYASHI:I guess so. TORIGOE:Well, its not a binding precedent. GALDONES:Its not binding? TORIGOE:Well, yeah, Mr. Chairman, basically, these are all taken on their own merits; but, obviously, you know, you want to be consistent. The other thing you could do is if you think there are some issues that need to be addressed, for instance, requiring that claims related to the sale of the property be brought within a certain time frame, you can try to make rule amendments to make that sort of thing clear. GALDONES:Well, the reason for my questioning is Im at a quandary at this point in time and, I guess, I was somewhat like Commissioner Alameda, Id like to bring this to a rest also. But Im also cautious what kind of impact its going to have in the future in moving forward. Based upon the statement by counsel, Im comfortable and prepared to more forward. SPRINGER:Mr. Chair? 24 GALDONES:Commissioner Springer. SPRINGER:I wonderif atthis time, if I heard Mr. Torigoe correctly, might this body have an opportunity to improve the process by virtue of our experience here in this case? TORIGOE:You mean by rule-making or -? SPRINGER:Yes. TORIGOE:Sure, you can. I mean not today, but you can go through that process. SPRINGER:Right. I guess I would just ask if the Planning Department by virtue of this experience sees any areas for refinement or improvement of this rule, to take advantage of it basedonthisexperiencesincethisisthefirstcasethatwerehearingunderthisrule,totake advantage of that opportunity? GALDONES:Mr. Yuen, can the Department consider that? YUEN:We, I have some thoughts about what should happen with this rule but Id rather not get involved while the Commissioners are in decision making. We can discuss that at a workshop at some time. YUEN:Thank you. Further discussion? Hearing none, Norman. HAYASHI:Thank you. Before I take the roll call, just to be clear, the motion is to defer to claims adjusters recommendation; but the award would be limited to $7,246. Is that correct? SPRINGER:Yes. HAYASHI:With that, Ill take the roll call. Commissioner Iwashita? IWASHITA:Aye. HAYASHI:Commissioner Springer? SPRINGER:Yes. HAYASHI:Commissioner Alameda? ALAMEDA:Aye. HAYASHI:Commissioner Salavea? SALAVEA:Aye. 25 HAYASHI:Chair Galdones? GALDONES:Aye. HAYASHI:Mr. Chair, a motion carries with five aye votes. GALDONES:Thank you, Norman. Mr. Olson, you can inform Mr. Malasek that the action today will be submitted to him in writing. OLSON:Thank you. GALDONES:Youre welcome. Thediscussionendedat11:55p.m. Respectfullysubmitted, Sharon M. Nomura, East Hawai€i Secretary 26