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HomeMy WebLinkAbout2003-11-07 TSOTO PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT NOVEMBER 7, 2003 A regularly advertised hearing on the application of ERIC SOTO (SMA 03-007) was called to order at 5:23 p.m. in the Ohana Keauhou Beach Resort, Kahaluu ` Ballroom, 78-6740 Alii Drive, North Kona, Hawai`i, with Second Vice-Chairman Hannah Springer presiding. PRESENT:Hannah SpringerABSENT AND EXCUSED:Earl Fujikawa Bill Graham Fred Galdones Florence KubotaAurelio C. Mina, Jr. Jeffrey McCall Francis Smith Bill Thibadeau Patricia O'Toole, Esq., Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Staff Planner Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately 26 people from the public in attendance. APPLICANT: ERIC SOTO (SMA 03-007) Continued hearing on a Special Management Area Use Permit application to allow the construction of a three and one-half story, 45-foot high, 12-unit multi-family residential development and related improvements on approximately 15,203 squ The property is located on the west (makai) side of Alii Drive, adjacent to and north of the Sea Village Condominium complex, Kahului, North Kona, Hawaii, TMK: 7-5-19:30. SPRINGER:Members, weÓre now moving on to the next agenda item wh Item No. 8, Eric Soto is the Applicant. ItÓs Special Management Area Use Permit 03-007. ItÓs a continued hearing on that SMA Use Permit, which is an application to allow the construction of a three and one-half story, 45-foot high, 12-unit multi-family residential development and related improvements on approximately 15,203 square feet of land. The property is located on the west (makai) side of Alii Drive, adjacent to and north of the Sea Village Condominium complex, Kahului, North Kona, Hawaii, Tax Map Key: 7-5-19:30. HAYASHI:Madam Chair, Members of the Commission? SPRINGER:Yes, Norman. Thank you. EXHIBIT F HAYASHI:There is an outstanding request, item that we need to deal with and that is the Petition for Standing. At the last meeting, there was not enough votes to, I believe, carry the, if I can find my notes here, to carry, to accept the Petition for Standing. So I think, at this point, perhaps it would be proper for the Commission to deal with the issue. SPRINGER:Thank you. I would ask for guidance from Counsel or th Director, because this is a continue agenda item, do we need to presentation again or may we move directly into hearing the contestants and why they should be granted standing? YUEN:Yes, we can move directly into that. And just for a little bit of clarification for the Commission, we did not achieve five votes on either granting or denying standing in the last instance. Corporation Counsel has essentially advised you that you have the discretion to waive the fact that the Applicant did not notarize the signature on the petition because itÓs not an essential part of the application. So itÓs within your discretion to vote to approve the request for standing or to deny it. SPRINGER:At this time, then, IÓd like to invite the ApplicantÓs representative as well as the representative of those individuals or entity which has applied for standing. Mr. Mooers, you have been sworn in. If the Intervenor and/or his representative are ready, could you please raise your right hands? Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? TESTIFIERS:I do. SPRINGER:Thank you. Our Corporation Counsel is directing the Applicant for standing in the contested case hearing to explain to us why they should be granted standing. KIM:Thank you, Madam Chairwoman. Robert Kim, attorney for Association of Apartment Owners of Sea Village, Inc. IÓm substi withdrawal and substitution which I submitted to the Commission for Ben Tsukazaki. IÓm now attorney of record. At my right is the president of the association whoÓs present. At the last hearing, according to the records, there was a Motion to Dismiss on the grounds of no notary. My client had met all other conditions. The president of the association, which is a corporation, was in Canada. There was no access to a notary, as you must go to the nearest consulate; and, so, thatÓs the issue before you. As far as our standing, if once the Commission deals with that, let me talk about standing. The Sea Village Condominium Association and the condominium itse to the project itself. They are next-door neighbors. The adverse impacts that they are concerned about include, but are not limited to, viewplanes, noise, traffic, wastewater treatment and its designed, cultural resources, recreational resources as this is an area known as Tikis for surfers in Kona, public access, marine resources and beach protection. I believe that all the elements, once the issue of the notary is resolved, are there for 2 standing for the Association. We are the only Intervenors in this case. If it is granted then I would request that a hearings officer be appointed and that the necessary time period, as far as scheduling, be allowed. SPRINGER:Thank you, Mr. Kim. Do you have any, does your client have anything to add? GILFDORF:I donÓt believe I have anything to add. SPRINGER:Thank you. Mr. Mooers, do you have a response? MOOERS:Yes, I do. I apologize as Mr. Vitousek is not able to join us today, heÓs on the mainland. But I will restate some of the statements hearing. IÓm not an attorney. IÓm a land use planner representing the Applicant. I prepared the application and processed that through the department. th The neighbors were notified on the first notice on June 16 that this project would take place. This is over six weeks prior to the deadline for which then to file an application. I requested at the initial hearing that they provide evidence that a meeting had occurred that authorized the Board to take the action requesting the contested case; and weÓve seen nothing to that date, although Mr. Tsukazaki at the last meeting said that that took place in July. ThereÓs no question that the application for standing, for contested case was defective. In fact, Mr. Moore at the first hearing admitted that it was defect going to try to remedy that within the next couple of days; and, in fact, they did. Now we hear today that the reason they could not provide a notarized application was because the president was in Canada, when, in fact, the notarized application that came in three days after the fact was signed by another individual. In fact, the Association could have authorized Mr. Tsukaza -, Mr. Tsukazaki, their attorney, to sign the application representing them. So they certainly had knowledge of the application process. They had professional representation and the application was defective. Now we have no question that AOAO has standing, absolutely, no question. But thereÓs absolutely no question that their application was defective. I was happy to hear that Ms. Kubota was talking about the fairness in the application of the Commission rules so that thereÓd be predictability by the developers and consultants on how to advise their clients, and that is that we have to obey the rules. Judge Ibarra in his recent Conclusions of Law in the case of Wayne Leslie versus the Board of Appeals of the County of Hawaii states, ÐWhere the language of the statute is plain and unambiguous and a specific requirement must be met, it is mandatory and not merely directory.Ñ We would propose that they did not comply with the CommissionÓs 3 rules, that the application for standing is defective and should not be granted on that basis. KIM:May I respond? SPRINGER:Thank you. Mr. Kim? KIM:It is clear that the government function of the Commission is to assist its citizens. The document requesting standing was timely filed with the requisite $100. This is not a poll tax where a technical violation keeps people from voting. We do not build barriers to keep people from addressing and redressing issues such as contested case hearings from our public citizens. It is clear that such a technical violation such as this will not stand on appeal. The practical ramifications are if the Commission denies based upon this purely technical defect, then there will be an appeal. And you can go forward, but I can tell you right now the case law in Hawaii will show that this kind of technical violation for standing will not keep people from the access to the government. The letter and the spirit of the rule were complied with. We have indicated our basis, the technical compliance clearly. And I want to focus on this Commission members, what prejudice has been levied on the Applicant by this technical violation? Nothing. Because the Association, as admitted by the ApplicantÓs representative, has standing. They are right next door to this proposed development. Hawaii law on standing is liberal. The courts in this jurisdiction will not support the denial of standing to satisfy a technical requirement. And, more important, the counsel for the County has already advised you that you have the discretion to waive these technical defaults or requirements. And, so, in the interest of substantial and fairness, as far as addressing matters on the merits, especially, and I would point out to you, especially when my client is only Intervenor of the public in this case, by denying the application and the petition for contested case hearing, you are, in effect, denying the public access to your forum. And, so, on that basis, I would strongly urge that you grant the Petition for Contested Case hearing. Thank you. SPRINGER:Thank you, Mr. Kim. Mr. Mooers, any follow-up? MOOERS:Yeah, I think there is a damage. My client has already waited four months to proceed with this hearing under the assumption that they could reach an agreement with the AOAO, which weÓve attempted to do on numerous contested case, denying a contested case does not mean that they cannot address issues related to this application. TheyÓve had every opportunity to provide testimony which they have, and they continue to have the opportunity to provide testimony. We did not deny them access to the contested case proceedings. They did th defective filing. As far as the Corporation Counsel advising that the Commission can overlook technical deficiencies, my question would simply be then, please provide us with the list of rules that we have to abide by and those that we donÓt. I mean, if theyÓre arbitrary and we 4 donÓt need to abide by them, then we ought to be providing a list to the applicants, to the consultants, and to the public on which ones apply and which ones donÓt. SPRINGER:Thank you, Mr. Mooers. Corporation Counsel OÓToole, was it you who gave us the guidance that we, the Planning Commission does have the discretion in this matter to accept or deny the application for standing? OÓTOOLE:Yes. And I think, just to clarify, IÓm working with the substantial compliance. In other words, has the essence of that rule been complied with and is the purpose of the rule defeated because there was no notary? And I think substantial compliance is a concept that is used in various contexts, and I think you can use it here if you so desire and analyze what does the notary add to the situation. The rule itself doesnÓt say you have to have notary. It just says you have to fill out this form. And, so, I think that timeliness is absolutely essential. I donÓt think that you can do away with that, the filing fees, so forth and so on. But, you know, the notary, especially in this case because what you had is a notary for an individual and the Applicant is a group, and a notary that said, you know, this group has authorized this person to sign for us would, might be more meaningful than the one thatÓs in our form, which apparently doesnÓt contemplate that there might be, you know, various situations of whoÓs going to sign or not. And I do agree with Mr. Mooers that apparently counsels have signed in the past, and perhaps they should have been informed that counsel could have signed on that form, you know. Then there would not have been this issue. SPRINGER:So, Ms. OÓToole, the matter of substantial compliance might come up on a case-by-case basis, as in the case that is before us tonight? OÓTOOLE:ThatÓs correct. SPRINGER:Thank you. Commissioners, we have heard presentations both by the Applicant and by the, Mr. Kim who represents the Association who desires standing in this contested case. Is there, are there any questions or comments? Do we have a motion? Mr. Graham? GRAHAM:Only comment I have is, you know, Mr. Kim was speaking of law. I sure remember closely first-hand of both the Mahukona case and the PASH case at Kohanaiki where the Planning Commission did not grant standing yet it was overturned by the courts, and it turned into a very lengthy process thereafter. So even though IÓm not particularly in favor of contested case hearings, my, the history I remember is the Planning Commission tends to err on the side of not granting. And I canÓt remember of any cases where the Planning Commission granted standing but then that got overturned in the courts. Maybe there has been some, but I canÓt recall any. So, consequently, I feel like probably we should grant it, from the history. 5 SPRINGER:Thank you, Commissioner Graham. Any other questions or comments? Commissioner McCall? MCCALL:Yeah, since IÓve been on the Commission, it seems to me l we have sort of bent over backwards if somebody asked for standing to give them standing. And I am in favor of giving them standing simply because I feel that they have, in essence, done what they need to do. And I think, granted, there will be some more pain on the case of the Applicant to go through this process; but, I think, hopefully, the end of it will be worth the efforts. If it goes into court, the we should go, we should grant them standing. SPRINGER:Thank you, Commissioner McCall. Are there any other questions or comments? Is there a motion then from the Commissioners regarding this Petition for Standing in a Contested Case hearing? KUBOTA:Do we need to take a motion to waive the procedure? YUEN:No. KUBOTA:No need? YUEN:Just go directly -. KUBOTA:Okay, then just go ahead with it. Okay, Madam Chairman, that the Association of Apartment Owners of Sea Village, Inc. be given standing in this contested case hearing on Special Management Area Use Permit, SM MCCALL:IÓll second. SPRINGER:Moved by Commissioner Kubota and seconded by Commissioner McCall to grant, to approve the application for standing on this SMA 03-007. Is there any discussion on the motion before us? Hearing none, Norman? HAYASHI:Commissioner Kubota? KUBOTA:Aye. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:Commissioner Thibadeau? 6 THIBADEAU:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:And Chair Springer? SPRINGER:Yes. HAYASHI:Motion carries. SPRINGER:Thank you. Commissioners, now we move into the matter of whether or not the Commission will take this matter up ourselves direct the Planning Director to hire a hearings officer. Is there any question or comment on this matter? KUBOTA:Madam Chair, I move that we instruct the Planning Director to procure a hearings officer for this particular contested case. MCCALL:Second. SPRINGER:Thank you. Moved by Commissioner Kubota and seconded by Commissioner McCall that the Planning Director hire a hearings officer for a contested case hearing on the matter of SMA 03-007, in accordance with Cou requirements. Discussion? Norman? HAYASHI:Commissioner Kubota? KUBOTA:Aye. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:Commissioner Thibadeau? THIBADEAU:Aye. HAYASHI:Commissioner Graham? 7 GRAHAM:Aye. HAYASHI:Chair? SPRINGER:Yes. HAYASHI:Madam Chair, motion carries. SPRINGER:Thank you. YouÓll be informed in writing in this decision and also contacted regarding scheduling and calendar dates for the contested case hearing to come. KIM:Thank you for your consideration. SPRINGER:YouÓre welcome. Good night. The discussion ended at 6:57 p.m. Respectfully submitted, Sharon M. Nomura, Secretary 8