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HomeMy WebLinkAbout2005-09-30 TPARKERSCH PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT SEPTEMBER 30, 2005 PARKER SCHOOL BOARD OF A regularly advertised hearing on the application DIRECTORS (USE 05-001) was called to order at 9:07 a.m. in the Hapuna Beach Prince Hotel, Hau/Lehua Room, 62-100 Kaunaoa Drive, Kohala Coast, Hawaii, with Vice- Chairperson Hannah Springer presiding. PRESENT:C. Kimo AlamedaABSENT & EXCUSED: Fred Galdones Hannah SpringerRene€ Siracusa Rodney H. WatanabeJeffrey McCall AllenSalaveaAndrewIwashita William R. Graham Chris Yuen, Deputy Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Ivan Torigoe, Deputy Corporation Counsel And approximately 10 people from the public in attendance. APPLICANT: PARKER SCHOOL BOARD OF DIRECTORS (USE 05-001) Discussion and action on the Hearing Officer€s report on a Use Permit to allow the establishment of an elementary school on 2.635 acres of land zoned Agricultural 1-acre (A- 1a) and situated within the State Land Use Urban district. The property is located along the southeast side of Kapiolani Road, approximately 550 feet east of the Kapiolani Road-Lindsey Road intersection, Waimea, South Kohala, Hawaii, TMK: 6-5-4:portion of 25. SPRINGER:At this time we€ll begin discussion of agenda item number 1, which is the applicant Parker School Board of Directors. A discussion and action on the Hearing Officer€s report of a Use Permit 05-001 to allow the establishment of an elementary school on 2.635 acres of land zoned Agricultural 1-acre (A-1a) and situated within the State Land Use Urban district. The property is located along the southeast side of Kapiolani Road, approximately 550 feet east of the Kapiolani Road-Lindsey Road intersection, Waimea, South Kohala, Hawaii, tax map key 6-5-4:portion of 25. Norman? HAYASHI:Thank you Madam Chair. This particular matter was brought before th you today. However, we received the Hearings Officer€s report on September 20 and based onyourrulesitstatesthatthereisa15-daycommentperiodwherethepartiesmayprovide th day comments to the Planning Commission on the Hearings Officer€s report. And that 15 wouldbeonOctober5sothatwouldbeaftertoday.Subsequenttothattherewouldbea7- day response period on the comments by any party that had submitted comments on the EXHIBIT A 1 Hearings Officer€s report. Deputy Corporation Counsel Ivan Torigoe had contacted the partiesto see if they would waive the time requirement. The Applicant€s representative did indicate that they had no objections to waivingthe requirement and the planning department also had no objections. However the Intervenor€s attorney indicated that they would not be willing to waive the time requirement. So on that basis we would have to-, we would recommend that the hearing be continued to-. Or actions on the Hearings Officer€s report be st continued until the next meeting which is scheduled for October 21. And we apologize for not following the proper procedure. SPRINGER:Thank you for that back ground Norman. Commissioners do you have any questions of Norman? I see the Applicant€s representative at the table. May I swear you in at this time? 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? GAROVOY:I do. SPRINGER:Thank you. Could you please provide your name and your address before proceeding with your testimony? GAROVOY:Jocelyn Garovoy. I€m with Cades Schutte. We€re located at 75-170 Hualalai Road, Suite B303 in Kona. SPRINGER:Thankyou.Mr.TorigoewondersifthereisanIntervenor€s representative here? WOODDELL:I am here. Allen Wooddell. I€m the representative for the Intervenor. SPRINGER:Mr. Wooddell if you could please take a seat and I€ll swear you in at this time also. If you could raise your right hand? Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? WOODDELL:I do. SPRINGER:Thank you sir could you please give your name and address for the record? WOODDELL:Allen W. Wooddell. P.O. Box 1119, Kamuela, Hawaii 96743 SPRINGER:Thank you sir. Ma€am if you could please enter your testimony at this time. GAROVOY:Thank you. I just wanted to point out to the Commission that the Contested Case Hearing was held on July 11, 2005 and if I could just read to you from the statements that day, the hearing transcript I don€t know if you have a copy but it€s page 166. And essentially what happened there was the parties agreed to a specific hearing schedule. The Hearings Officer states, The parties have waived oral argument in terms of closing and EXHIBIT A 2 we€ve set the following schedule. We have simultaneous exchange for proposed Findings of th Fact and Conclusions of Law on August 26. The Hearings Officer will complete her th recommendation by September 20. And we€re going to pause, the Planning Department is going to check with the Planning Commission and to see if we can be on the agenda for th September 30 and that€s a Kona meeting so that would be very appropriate‚. And, so the point I wanted to make was that Rule 4.1, 4-1 of the Planning Commission Rules of Practice and Procedure states that, provided that any procedure in a contested case may be modified or waived by stipulation of the parties‚. It is the Applicant€s position that we waived this procedure because we all sat around and specifically agreed. Now part of that conversation was held off the record unfortunately and when we all agreed on dates and went back and forth on the calendar. But I just wanted to raise this for the record because essentially Parker School just wants to request that the Planning Commission move forward and complete the application process in a timely manner so that it can get back to its primary mission which is educating its students. SPRINGER:Thank you ma€am. Commissioners any questions for the Applicant€s representative. SALAVEA:I€m sorry. SPRINGER:Commissioner Salavea? SALAVEA:Could you clarify where that€s stated? We€re trying to figure out where that€s said in the-. GAROVOY:The transcript? SALAVEA:-the transcript. GAROVOY:Sure. It€s on page 166 which is towards the very, very back. It€s about 4pagesfromtheend. SALAVEA:Thankyou. SPRINGER:Other Commissioners questions for the testifier? Thank you. Mr. Wooddell do you have any comments to make? WOODDELL:Actually I guess I was surprised when they made such a tight schedule and I assume that maybe the Commission-, uh the Hearings Officer was going to try and get the record in earlier so they would meet the rules. But I-, you know, if it€s their position that I waive the rules and the procedure well I guess that€s something that you€re going to have to decide on your own but I don€t feel I did. So, we certainly have no-. I mean I would like the opportunity to file my objections to the Hearings Officer€s decision, which is obviously very adverse to the neighbors. And so I always thought rules were rules but it€s obviously up to the Commission. Thank you. EXHIBIT A 3 GAROVOY:If I could just add one more thing, I don€t want to confuse the Commission. But you guys also have a rule 4-24 that requires you to make a decision within th 90 days of the Contested Case hearing. The Contested Case Hearing was held on July 11. th So 90 days from there puts us at October 11 I believe. So it€s a little bit problematic to hold st the next meeting on October 21 unless we get something clear on the record cause we don€t want to violatethe ruleson that also. Okay. SPRINGER:Thank you ma€am. I€d like toask our Deputy Corporation Counsel Mr. Torigoe to comment on the discussion that€s presently before us. Also thePlanning Commissioners only received the Hearings Officer€s report this morning. I have not had a chance to read it. It€s lengthy. I€m not comfortable acting on it having only received it this morning. TORIGOE:Thank you Madam Chair. If there is going to be a waiver of the rules I think it would be best to, you know to do it clearly on the record. And so I€d like to just get clear what exactly on the record constitutes the waiver of the 15-day requirement or was it basically off record discussions that were kind of acquiescent in that little conference that you mentioned on the record? GAROVOY:Well just to be clear the off the record discussion I mean I don€t really knowifit€swhatweweretalkingaboutitwasjustvacationschedulesandthatsortofthing. We had initially set a date of August 15 for the Findings of Fact but that didn€t go on the th record. What went on the record was the August 26 date. But that was-, the position I€m taking is that the waiver is in the agreement to the schedule itself. That the waiver is (inaudible) in that and we all agreed to that schedule. TORIGOE:Well let€s see if we look at page 166 of the agenda it says, The th Hearings Officer will complete her recommendation by September 20 and we€re going to the Planning Department is going to check with the Planning Commission and see if we can be on th the agenda for September 30 and that€s a Kona meeting so that would be very appropriate.‚ There€s certain lack of precision there that you know to me it€s a little, I feel a little uncomfortable saying that there€s a clear waiver of the 15 day rule on that. I think it€s something that, Commissioner€s if you feel that it€s clear enough and you really want to go ahead you could but then there€s also the practical problem if you€re having just received the recommendation this morning and you have not gotten input from the intervenor regarding that recommendation. Also when I spoke to the parties earlier this week I spoke to Mr. Vitousekandhedidnotmentionthewaivertomeatthattime.Sothatkindofconcernsme also. WOODDELL:Could I just say something? SPRINGER:Mr. Wooddell we have a Commissioner who has a query may I take himfirst?CommissionerWatanabe? WATANABE:MyquestionwouldbeforCounsel.TheApplicantbroughtupapoint of the 90-days and it€s my understanding that with the 90-day rule if we don€t respond within EXHIBIT A 4 that time then it€s an automatic denial. But aren€t there ways around that and could you clarify that for us? Because I think that would help us to decide whether you know we absolutely need to hear it today or not. SPRINGER:Thank you Commissioner Watanabe. Mr. Torigoe? TORIGOE:At this point, the rule 4-24 is a more general rule that is outside of the part 2 of the contested case procedure which talks about what you do when you have recommendations of the Hearings Officer. It seems to me that if you€re going to, basically that the hearings not really entirely completed at this point because allyou have is a recommendation from the Hearings Officer and you still have the option of reopening the hearing and taking inmore evidence if you want to do that. So, at this point I would have to say that I don€t think you€re bound to have to make a decision. WATANABE:Sothe90-dayruleisnotapplicable? TORIGOE:YeahatthispointyouknowifIhavetomakearecommendationatthis point I€d say that you could still have time to go and take the exceptions to the Hearings Officer€s report and reopen the hearing if you feel that€s necessary as well. WATANABE:Thank you. SPRINGER:Mr. Torigoe may I just clear then, be clear then has the hearing been closed? TORIGOE:The Hearings Officer has held some evidentiary hearings but I don€t think that the entire hearing on the application is closed because you still have to act on the Hearings Officer€s recommendation. SPRINGER:And that€s the hearing that is referred to in 4-24? The Planning Commission Hearing? TORIGOE:Yeah I have a hard time at this point. I haven€t parsed this you know to the letter at this point but I just have a hard time saying that you are bound to act without had an opportunity yourselves to really take a good look at the Hearings Officer€s report and responses. And to see if you need to take further evidence yourself. SPRINGER:Thank you. Commissioner Salavea? TORIGOE:Let me just say another thing you could do is to say that you feel like at this point you want to reopen the hearing. I mean if you really want to you know start playing games with the rules you could say that we feel that we haven€t had a chance to look at all of the comments of the Hearings Officer as well as any responses and you feel like you need to reopen the hearing at this point to make sure that that€s done. You know you could do that. EXHIBIT A 5 SPRINGER:Before I go to Commissioner Salavea, Mr. Torigoe we have not had a chance to review the records so I for one do not know if I do or do not feel that the record is complete. Could we move for the hearing to be reopened to receive evidence at our next meeting? TORIGOE:Well I think you certainly could do that. The technical timing question we€re talking about is whether-, if the 90 days has already been triggered by the end of the Hearings Officer€s hearing whether that next hearing would be within that 90 days or not. SPRINGER:And is it? TORIGOE:I don€t know can you-? SPRINGER:Hang on Commissioner Watanabe, we have Commissioner Salavea and Mr.WooddellIknowthatyou€restandingbyalso.Norman? th HAYASHI:ThehearingwasonJuly11 so that would take us to around October th 11, the 90-day. st SPRINGER:Andthe day that we€ve discussed is October 21. HAYASHI:Our next meeting is in Hilo that€s next week Friday but we would not be able to meet the 6-calendar day requirement to publish that in. SPRINGER:Ma€am? GAROVOY:This might help. The Applicant is okay with continuing the hearing. We just, my reading of the rule 4-24 whichissues the, which sets forth the 90-day time limit is that the period of time if it goes over 90 days has to be agreed upon by all parties. And I just wanted to get the agreement on the record and then I think you guys can be pau with this for today. SPRINGER:Commissioner Salavea do you have anything? Commissioner Watanabe do you have anything? Mr. Wooddell? WOODDELL:No, I don€t have anything further ma€am. SPRINGER:Thank you. Mr. Yuen did I see your hand? TORIGOE:Well at this point it sounds like as far as the timing goes the parties are willingtostipulatethatthe90-dayperiodevenithasstartedcanbeextendeduntilthenext hearing. So, that would take care of that problem. YUEN:The County being a party also would stipulate to extending the time limit.I€mnotsurethatthatismeanttoapplytoamatterthathasbeenreferredtoaHearing Officer though. EXHIBIT A 6 TORIGOE:I don€t think so either. I agree with that as I said beforeI don€t think that the time limit has actually started yet but in an abundance of caution if the parties are in agreementthat the 90-day limit will not prevent your taking up this matter at the next Kona meeting with that agreement on the record there should not be a problem. SPRINGER:From the Applicant€s representative do you agree to these stipulations? GAROVOY:I do agree. If I may add one more thing. SPRINGER:Ma€am? GAROVOY:You started to open a can of worms with reopening the hearing and I do believe the hearing was formally closed if you turn to page 169 the very first line says, The hearing is closed‚. And it was specifically intended to address this issue that you know that there be a finding that the hearing was closed and then no more evidence be taken. That€s all. SPRINGER:And you do agree with the stipulation to continue. GAROVOY:And I do agree to the stipulation to continue. SPRINGER:Mr. Wooddell? WOODDELL:Well certainly my understanding was never that the hearing was closed. AsIunderstooditthehearingwasclosedbytheHearingsOfficerbutcertainlydidn€tprevent additional information or evidence to be introduced as any objections or answers to the exceptions or answer to the exceptions or any other information that the Planning Commission may want to take at another hearing. So other than that, I would just say I would certainly waive any objection to the 90-days. Thank you. SPRINGER:Thank you sir. Commissioner Salavea? SALAVEA:This is for Counsel. Is the-, is any additional information gathered during the waiting period considered to be part of the-? I guess I need clarification on which hearing we€re talking about the hearing on the Commission€s hearing this item or the hearing to gather evidence by the Hearings Officer? TORIGOE:The Hearings Officer is not going to be gathering anymore information at this point. SALAVEA:Okay. TORIGOE:The Hearings Officer€s job is done. So you have the recommendation before you and hopefully by the next meeting you will have a response from the intervenor and possibly a rebuttal from the applicant and so you€ll have all that in front of you hopefully. EXHIBIT A 7 And from that then you can decide whether you have enough information or if you need to reopen the hearing to gather more evidence as the Commission. SALAVEA:Okay. Thank you. SPRINGER:Commissioners you€ve heard the discussion. Do you have any further discussion on this matter? Seeing none we€ll take a motion to continue this item Parker st School Board of Directors Use Permit 05-001 to the October 21 meeting of the Hawaii County Planning Commission. Is there a motion? WATANABE:So moved. SPRINGER:Thank you Commissioner Watanabe. Is there a second? ALAMEDA:Second. SPRINGER:Thank you Commissioner Alameda. Is there any discussion onthe motion to continue this matter? Seeing none. Norman we€re ready for the roll call vote. HAYASHI:Commissioner Watanabe? WATANABE:Aye. HAYASHI:Commissioner Alameda? ALAMEDA:Yes. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Commissioner Salavea? SALAVEA:Aye. HAYASHI:Chair Springer? SPRINGER:Yes. HAYASHI:Chair motion carries. st SPRINGER:Thank you. We€ll meet again in Hilo on October 21. I€m sorry Kona. st Thankyou.Kona,October21. HAYASHI:MadamChairIdohaveaquestionregardingthepresenceofthe Hearings Officer. Would you want her to be at the meeting, at that meeting to respond to any EXHIBIT A 8 questions that you may have regarding her report? I know there was a problem oncebefore where Ms. Song on another matter that she had objected to the Hearing Officer being there to respond to his report. So I just wanted to find out if you wanted me to have her, contact her to be present at the meeting. SPRINGER:In my time on the Planning Commission we have both had Hearings Officers present and not present. Mr. Yuen do you have any thoughts on the matter? YUEN:I€d just like to state my recommendation on this. The role of the Hearing Officer is to hear evidence, digest the evidence, present an objective summary of the evidence, and to make a recommended decision based on that evidence. And then the Planning Commission should take that and make its own decision. The Hearing Officer is not an advocate for any side or even an advocate for the Hearing Officer€s decision. The report should be complete in itself. The Commission has access to the exhibits and has access to the transcript.AtthehearingwheretheCommissionmakesadecisionwhentheseareall contested matters where there are representatives of each side to the extent that the representatives of the sides differ with the Hearing Officer they can make those arguments. They can point to items in the record like exhibits or testimony that they believe contradict the Hearing Officer. And then the other side can also make those same kinds of arguments and citations to the record. And the Planning Department can do so as well. That being the case there is a problem potentially with-. The Commission naturally wants to, may want to have the Hearing Officer clarify issues that are in the report. But you don€t want to have the Hearing Officer testify on anything that is actually not in the record. If it is I the record the Counsel for either side or the Planning Department can point out where it€s in the record. If it€s a matter of a-. And often times these things don€t boil down to disputes about what the facts are. They really end up with a value judgement, a balancing test that is in the hands of the Commission. Typically it involves a degree of annoyance, a degree of impact to people in the surrounding neighborhood versus what the Applicant wants to do. The Hearing Officer has stated the Hearing Officer€s idea of that balance. The Commissioners are appointed to vote on your idea of that balance and so I don€t see the Hearing Officer€s role as to come here and to argue where that, where that line should be drawn. So for these reasons it€s my recommendation that we not as a matter of course invite the Hearing Officer to come and present the report. The report has already been presented in writing. SPRINGER:Thank you Director Yuen. Commissioners having heard the Director€s comments do you have any discussion on the matter? Commissioner Graham? GRAHAM:I€m certainly willing to go along with the Planning Director€s recommendation but I also just like think of a parallel like in a normal application not a contested case application we have before us. We get a background report which has all the material on the white paper and then we get the Planning Director€s recommendation on the orange paper whatever and so I feel like the same situation kind of applies there. We could say well the Planning Director has only read the same material that you know and he€s decided this that and the other thing is the recommendation. Notwithstanding that I find it very useful and I think most of the Commission does to query the Planning Department about why they said this or that in the recommendation so I€m certain that those kinds of thoughts EXHIBIT A 9 will probably arise from me and others here but I think we have a very complete record I€m sure willing to do without the Planning, without the consultant in this case. SPRINGER:Thank you Mr. Graham. Other Commissioners? In that case Norman I think that we will not be inviting the Hearing Officer to be present with us. HAYASHI:Thank you. SPRINGER:You€re welcome. Commissioners are there any further discussion? This discussion ended at 9:34 a.m. Respectfully submitted, Lynette Marushige, West HawaiŸi Secretary EXHIBIT A 10