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Home My WebLink About2024-07-22 Email Daryn Arai Black Sand Beach Response Letter From: Daryn Arai To: Plannina Internet Mail Cc: Jackson,Maiia; Roy.Alex;Norman Ouon;Ashida.Lincoln S. Subject: Applicant Black Sand Beach LLC Letter to Windward Planning Commission regarding Petition for Standing in a Contested Case Hearing for AOAO of Colony 1 at Sea Mountain (PL-CCH-2024-000022) Date: Monday,July 22,2024 11:26:07 AM Attachments: 3336026 1 2024.07.22 Letter to WPC re Colony 1.PDF Aloha Director Kern, Please see attached letter from Black Sand Beach LLC in response to the above-described matter that will be heard by the Windward Planning Commission on Thursday, August 1, 2024. We are unable to upload this letter into EPIC. We would appreciate your assistance in uploading this letter into EPIC and distributing it to the Windward Planning Commission in advance of its August 1, 2024 meeting. Thank you very much! Daryn Daryn Arai Land Use Planning Consultant Mobile: (808) 895-3218 TORKILDSON KATZ A LAW CORPORATION 120 PAUAHI STREET,SUITE 312 HILO,HAWAI'I 96720-3048 TELEPHONE(808)961-0406•FACSIMILE(808)961-3815 LINCOLN S.T.ASHIDA DIRECT DIAL: (808)747-8317 E-MAIL:LSAO.TORKILDSON.COM July 22, 2024 Filed via EPIC Honorable Dennis Lin Chair, Windward Planning Commission Aupum Center 101 Pauahi St., Ste. 3 Hilo, HI 96720 RE: Special Management Area Use Permit Application (PL-SMA-2023-000046) Applicant: Black Sand Beach LLC Request: Development of a Residential and Commercial Community Consisting of Approximately 225 Residential and Short Stay Units,Village and Wellness Center, Retail Uses,Rehabilitation of Golf Courses, and Dedication of a Portion of Coastline as a Conservation Area TMKs: (3) 9-5-019:011, 015, 024, 026, 030, 031, 033,035; 9-6-001:001-003, 006, 011-013; 9-6-002:008, 037, 038, 041, and 053,Ka u,Hawai i Case No. PL-CCH-2024-000023 Dear Chairman Lin and Commission Members: As you know, our office represents Applicant Black Sand Beach LLC ("Applicant"or "Black Sand Beach") in proceedings currently pending before the Windward Planning Commission ("WPC"or"Commission"). At the onset,we thank the Commission for its service and due consideration of this project that is destined to restore needed infrastructure and repair to the Punalu'u area of our Hawaii Island. We received a copy of the letter dated July 5, 2024,to the Association of Apartment Owners of Colony I at Sea Mountain ("Colony P'),representing that the Commission will"consider and take action on the Petition for Standing in a Contested Case Hearing" at the August 1, 2024, meeting of the WPC. The letter goes on to say that the Commission"failed to act"on the Colony I petition at the WPC meeting held on May 6, 2024. Black Sand Beach disagrees the WPC failed to take appropriate action at its May 6 meeting. The May 6,2024 minutes correctly reflect the WPC took action A review of the minutes from the May 6,2024, WPC meeting reveals the Commission in fact took action by virtue of its failure to affirmatively grant standing to Colony L The minutes provide in pertinent part as follows (emphasis supplied): HONOLULU OFFICE•700 BISHOP STREET,15TH FLOOR HONOLULU•HAWAI'196813-4187•TELEPHONE(808)523-6000•FACSIMILE(808)523-6001 3335914vl Honorable Dennis Lin July 22, 2024 Page 2 It was moved by Vice Chair Daniele to grant standing to Association of Apartment Owners of Colony 1 at Sea Mountain as their interest is clearly distinguishable from that of the general public, and that even though they do not have an interest different from the public, that the proposed action will cause them actual or threatened injury. Commissioner Perrin seconded the motion. [SEE YOUTUBE TIMESTAMP 5:54:04] In discussion, Commissioner De Luz recommended that Mr. Silva, the representative, be noted for the record to have valid authority to represent the Board and the owners of the complex. Chair Lin clarified that the issue is that the petition for standing in a contested case hearing was not filed by the Board but by a Managing Agent, Anthony Gand. Chair Lin asked if Mr. Gand had any position on the Board. Mr. Silva responded that Mr. Gand does not have a position on the Board and that he is the property manager. Chair Lin then asked if there was Board authorization for Mr. Gand to file the petition. Mr. Silva responded that there was such authorization. It was confirmed the Board authorized the petition be filed by Mr. Gand and the authorization was not provided with the petition. [SEE YOUTUBE TIMESTAMP 5:57:14]A roll call vote was taken on the motion to grant standing for Association of Apartment Owners of Colony I at Sea Mountain, but it did not carry with three ayes (Daniele, Perrin, and Balog) and two noes (De Luz and Lin) and one excused(Kusch). [SEE YOUTUBE TIMESTAMP 6:00:03]No subsequent motion was made by the Commission and Chair Lin stated standing is denied and the Commission's decision may be appealed pursuant to Hawai`i Revised Statutes Chapter 91-14. I appreciate the WPC and Planning Department's trepidation may be the result of a belief that an affirmative vote to deny Colony I's petition was necessary. Such a vote to deny standing when an affirmative vote to grant standing fails, is neither required by Roberts Rules of Order, or the plain reading of Rule 4-6 of the Rules of Practice and Procedure of the County of Hawaii Planning Commission ("PC Rules"). Robert's Rules of Order Robert's Rules of Order provides that all motions must be disposed of in one of the following ways: 1. Passed 2. Defeated 3. Tabled 4. Referred to committee 5. Postponed indefinitely Clearly, the motion to grant Colony I standing was not tabled, and even if it was, it cannot be brought back since the May 6 meeting was adjourned (and not recessed), and tabled matters may only be "taken off the table" at the same meeting. Similarly, there was no action by the WPC to refer the matter to committee or to postpone indefinitely. This means the motion 3335914v1 Honorable Dennis Lin July 22, 2024 Page 3 either passed or failed. Since the requisite number of votes for standing were not present, the motion legally failed. What further supports finality of the motion being defeated is the WPC Chair's announcement that the motion failed, and the Commission's decision could be appealed pursuant to state law. Thus, Colony I was not without a remedy, and as I understand it, they have not filed any agency appeal within the required 30-day time period. Planning Commission Rule 4-6 Rule 4-6(b) of the PC Rules provides in pertinent part as follows (emphasis supplied): Prehearing Procedure (b) Upon receipt of a written request to intervene, the Commission, at the first meeting on the matter, shall hold a hearing on the written request. The commission will grant or deny such written request prior to any further action on the matter. Two matters are clear via a plain reading of the PC Rules. The WPC is required to act at the first meeting when petitions to intervene are heard. This makes sense, since resolution of standing issues should be determined promptly so as not to unduly delay proceedings. Second, the WPC must"grant or deny"the petition for standing. This disjunctive language (use of the word"or") makes clear that at least one of the statements must be true for the disjunction to be true.' Hence, since the vote to grant standing failed, that is all that is necessary for compliance with the PC Rules. If the purpose of agendizing this matter for the meeting on August 1 is for some administrative reason that will not involve the rehearing of Colony I's petition, that is fine. However, as the WPC's cover letter to the agenda reads, it suggests the Commission is free to"consider and take action" on Colony I's petition. Such action would violate Black Sand Beach's due process, violate Robert's Rules of Order, be contrary to PC Rule 4-6, and is inconsistent with the action already taken by the Commission on May 6, as announced by the Commission Chair. Black Sand Beach will be prejudiced and harmed if this matter is allowed to move forward(and the Commission does grant standing) since a mediation with two other intervenors has already taken place, and permitting another party into this case at this juncture (given what has already transpired and is well documented on the record)will lead to additional ' Compare this to phrases in the conjunctive which use the word"and." Such conjunctive phrases require both statements to be true for the conjunction to be true. 3335914v1 Honorable Dennis Lin July 22, 2024 Page 4 expense to Black Sand Beach (including but not limited to attorneys' costs and fees), as well as delay which will only prejudice this project. To summarize, Colony I was afforded a full hearing on their petition, and they did not receive the requisite number of votes for standing to be granted. There is no requirement there be an affirmative vote to deny standing, since the failure of the main motion made on May 6 necessarily means a majority of the Commission did not conclude that standing was appropriate. For the foregoing reasons and authorities, Black Sand Beach respectfully requests this agenda item be stricken since the WPC has already taken final action on the Colony I petition. In the alternative, if this matter remains on the WPC agenda, and the Commission proceeds to "consider and take action" on the petition contrary to the defeat of the motion on May 6, Black Sand Beach urges the Commission to make a factual and legal findings on the record as to: 1. The legal authority permitting a failed motion to essentially be reconsidered after the May 6 meeting had been adjourned, absent a motion for reconsideration by a commissioner who voted on the prevailing side. 2. That Black Sand Beach's due process was not violated, and they have suffered no prejudice. Thank you again for your kind attention to this matter. Very truly yours, TORKILDSON KATZ A Law Corporation Lincoln S. T. Ashida c: Suzanna L. Tiapula, Office of the Corporation Counsel 2 We note that one member of the WPC was absent at the May 6 meeting. This is of no legal consequence. Irrespective of the number of members who show up at a commission meeting, so long as there is a quorum present,the requisite number of affirmative votes will be necessary to legally pass any item. 3335914vl