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Home My WebLink About2004-09-16 TSPECTRASITE A regularly advertised hearing on the application of SPECTRASITE was called to order at 10:15 a.m. in the COMMUNICATIONS, INC. (SPP 03-018) County Building, Councilroom-Room 201, 25 Aupuni Street, Hilo, Hawai`i, with Chairman Fred Galdonespresiding. PRESENT:Fred Galdones ABSENT & EXCUSED:C. Kimo Alameda William GrahamEarl Fujikawa Jeffrey McCallFrancis Smith Ren° SiracusaBill Thibadeau Hannah Springer Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately 13 people from the public in attendance APPLICANT: SPECTRASITE COMMUNICATIONS, INC. (SPP 03-018) Request by the Planning Director that the Planning Commission conduct the contested case hearing on the application of Spectrasite Communications, Inc. rather than hire a hearing officer since the Intervenors informed the Planning Department that they will not be able to attend any scheduled hearing. The Special Permit application is to allow the retention of an existing 200-foot telecommunications tower and antenna, communication equipment building, four satellite dishes, generator and fuel tanks, and related improvements. The property is located approximately 2.5 miles north of Highway 11, at the corner of Kulani Road and South Road, Olaa Reservation Lots, Keaau, Puna, Hawaii, TMK: 1-7-17:portion of 153. GALDONES:Commissioners, we are now on Unfinished Business, Application No. 2. The Applicant is Spectrasite Communications, Inc. (SPP 03-018). This is a request by the Planning Director that the Planning Commission conduct the contested case hearing on the application of Spectrasite Communications, Inc. rather than hire a hearing officer since the Intervenors informed the Planning Department that they will not be able to attend any scheduled hearing. The Special Permit application is to allow the retention of an existing 200-foot telecommunications tower and antenna, communication equipment building, four satellite dishes, generator and fuel tanks, and related improvements. Jeff? EXHIBIT B DARROW:Thank you, Mr. Chairman. As mentioned, we had received the letter from the Petitioners in the contested case informing us that they will not be able to make the hearing. As discussed earlier on the previous application, this would be a good opportunity to be able to minimize costs and be able to have the Commission hear this particular contested case hearing and be able to take care of the issues in-house. GALDONES:Commissioners, what you will be acting upon today is the request that we hear this, put this on the agenda at the next Hilo meeting and the Planning Commission become the hearing officer for this because theres not going to be a hearing officer. So thats the action that you will be acting upon. Commissioner McCall? MCCALL:Just to be clear, the contested case hearing still needs to proceed, cause they have not withdrawn their contested case. Theyre just saying that theyre not going to participate in it. Is that correct? GALDONES:That is correct. MCCALL:Okay. Thank you. GALDONES:Further discussion? Commissioner Siracusa? SIRACUSA:Well, Im trying to understand how it can go on if theyre not participating. Because a contested case involves some give-and-take, you know, cross- examination of witnesses, isnt that correct? GALDONES:Mr. Yuen. SIRACUSA:Then its only one-sided and its not a contested case. YUEN:Well, we tend to use the word, the term contested case only when theres an Intervenor; but, actually, to be technical about it, all of these permit applications are contested cases. Its just that without an Intervenor, we do it informally; and the only parties are the, the County is actually a party, the Planning Director is a party, and the Applicant then is a party. And so the County, the Applicant has witnesses, the County has witnesses and exhibits, people from the public can come up and testify. The County, the Commissioners and the Applicant can cross-examine. The Applicant, for example, has a right to question our staff or myself about things that we may say. So thats cross-examination. And then when you come out with your decision, if its adverse to the Applicant, the Applicant actually has the right to appeal that to court because this is a contested case. If it wasnt, they wouldnt have a right to appeal. And if the Department was opposed to the permit and the Commission granted it, then the Department would have the right to appeal to court. So, in this case, you have a party that has requested intervention; and, so, normally, then we go into this more formal mode. We could actually, and weve talked about this, have the contested case hearing, formal contested case hearing, right there at the same day and 2 say, you know, put on your witnesses and lets go do it. But, normally, weve been either postponing that for a later time for the hearing or sending it off to a hearings officer. Now, if what happens, returning to this particular application, if what happens is we schedule it for the Commission to hear it and the Intervenor does not show up, then itll be two-sided in the sense that youll have the Applicant and youll have the Department, the same as what happened a few minutes ago. There wont be a report, the Department will have a recommendation and the Commission can just take a vote on it. GALDONES:Commissioner Springer? SPRINGER:In the previous action and this action before us now, even though theyre not present at the meeting or the hearing, do the Intervenors still have the right to appeal by which virtue of having filed for its, that status? YUEN:I believe they do. But they would have a tough time because they wouldhavetoshowthecourtthatwhatthey,thattheypresentedsomeobjectionherethat was not dealt with by the Commission. So if they went to court and they said, Gee, theres going to be toxic fumes coming out of this glass-blowing operation and the Commission didnt look at it, the court is not going to look at their evidence that they have, that they didnt come in here, for example. So I believe they still, once they file for the contested case, they file something in opposition, theyve been granted standing, they can appeal an adverse judgment. But theyre, and theyre not going to get immediately thrown out of court but they will have a really tough time on their appeal. SPRINGER:Thank you. GALDONES:Further questions? Commissioner McCall? MCCALL:Just a further clarification I get, like when Tom Yeh was the hearings officer on the previous application, I mean, he made a point of even though the Intervenors were not there, he made a point of looking at their information, bringing up the questions that they had questioned. I mean, we can, and as Commissioners, we can and should do that as we would with anybody else. Someone coming in to testify, we can bring in their comments and trying, you know, elucidate the responses and stuff, so -. GALDONES:Yes. Hearing no further comments, is the Applicant or the representative present here today? No? Is there anyone from the public, Sharon, signed up to testify on this matter? NOMURA:No one. GALDONES:Did someone want to testify that did not sign up? Hearing none, Commissioners, you have heard the motion that is before us, the request by the Planning Director. Do I -. I will entertain a motion at this time. Commissioner Springer? 3 SPRINGER:Mr. Chair, I move that the Hawaii County Planning Commission accept the Planning Directors request that the Planning Commission conduct a contested case hearing on this Spectrasite Communications, Inc. application (SPP 03-018) and that the Planning Department staff schedule it for an upcoming meeting in Hilo. GALDONES:Is there a second? MCCALL:Second. GALDONES:It has been moved by Commissioner Springer and seconded by Commissioner McCall that Applicant Spectrasite Communications, Inc. (SPP 03-018) have the Planning Commission conduct the contested case hearing. Commissioner Siracusa? SIRACUSA:Yes,someclarification.Werenotreferringtilltoday,though? GALDONES:Nottoday. SIRACUSA:Okay.Canwe,inthemeantime,asksomequestionstoclarify,you know, to have the staff look into so that they will have a report ready addressing those questions when the hearing comes up? GALDONES:Question is in order. SIRACUSA:Okay, cause I have a couple of questions about that. GALDONES:You may proceed. SIRACUSA:Thank you. One is, it says here that theres going to be a strobe on top of the tower. And I noticed in the letters that were sent out to the various agencies that the observatories on Mauna Kea were not asked to respond if that would be detract from their observations, or whatever, in any way. And, so, I think that really should be, I think, would be appropriate to do that. And then, also, there was nothing in here about how many years is the lease that the Changs have given Spectrasite and how long are we seeking to retain this application? Is there a timeline on this? GALDONES:Jeff, you have noted those questions, huh? DARROW:Yes. GALDONES:Okay. They would be included. Any further discussions? Hearing none, Jeff, on the motion? DARROW:Thank you, Mr. Chairman. Commissioner Springer? 4 SPRINGER:Yes. DARROW:Commissioner McCall? MCCALL:Aye. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner Siracusa? SIRACUSA:Aye. DARROW:And Mr. Chairman? GALDONES:Aye. DARROW:The motion passes. GALDONES:Thank you. Commissioner Springer? SPRINGER:Will we deal with scheduling now or look forward to seeing it on the agenda when theyre mailed out? GALDONES:Jeff, are we prepared to put that on the next Hilo agenda? DARROW:Yes, itll be on the next Hilo agenda. Thank you. The discussion ended at 10:26 a.m. Respectfully submitted, Sharon M. Nomura, Secretary 5