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HomeMy WebLinkAbout2024-06-01 Letter from Michael Matsukawa, Attorney MICHAEL J. MATSUKAWA ATTORNEY AT LAW TERRITORIAL CENTRE. SUITE 201 75-5751 KUAKINI HIGHWAY KAILUA-KONA. HI 96740 TELEPHONE NO. 18081 329-1385 FAX NO. 18081 329-0512 E-MAIL kapuluOmsn.com June 1, 2024 Chairperson and Members of the Comm'n Windward Planning Comm'n c/o Planning Department County of Hawaii 101 Pauahi Street Hilo, Hawaii 96720 Re: PL-SMA-2023-000046 Black Sand Beach, LLC Petition for Intervention by AOAO Colony 1 at Sea Mountain May 6, 2024 Commission Vote to Deny Petition Greetings: I am representing the Association of Apartment Owners of Colony 1 at Sea Mountain which submitted a petition to intervene in this matter. I have not seen a video recording of the May 6, 2024 commission meeting or minutes of the May 6, 2024 commission meeting and am assuming facts that were relayed to me by the Association's officers. The Association submitted its Petition for Standing in a Contested Case Hearing on the form provided by the Planning Director. The form that is published on the Planning Department's website does not require proof of the Association's resolution to demonstrate that the signatory for the Petition is authorized to sign and to submit the Petition on behalf of the Association. However, the Association's representative at the May 6, 2024 meeting informed the Commission, by oral testimony, that the Association had authorized the submission of the Petition. Windward Planning Comm'n Page Two June 1, 2024 There being only five members of the Commission present, by State statute 1 and County Charter provision, 2 the vote of four Commission members is required to validate any action. 3 On motion to approve the Association's Petition, the vote was three-two (3 to 2) to approve the Petition. There being less than four votes, no action occurred to grant the Association's Petition. No one can conclude that the Commission had denied the Association's Petition. In fact, the Commission did not entertain a follow-up motion to deny the Association's Petition, which would have expressed official action on the part of the Commission to deny the Association's Petition. Nevertheless, the ruling of the Commission's chairperson was that the Commission had denied the Association's Petition. 4 That fact is published on the Planning Department's website. However, the status of the Association's Petition is that it is still pending action before the Commission. The Commission's Rule 4-6(b) requires the Commission to "grant or deny" the Association's Petition at its first meeting and prior to any action on the landowner's application. The same rule prevents the 1 Section 92-15, HRS. 2 Section 13-4(i), Hawaii County Charter. 3 "The affirmative vote of a majority of the entire membership to which a board or commission is entitled shall be necessary to make any action valid; " (Section 13-4(i), Hawaii County Charter) "Mhe concurrence of a majority of all the members to which the board or commission is entitled shall be necessary to make any action of the bord or commission valid ...." (Section 92- 15, HRS) See also Hawaii Electric Light Company v. DLNR, 102 Haw. 257, 267- 268 (2003); Cariaga v. Del Monte Corp., 65 Haw. 404, 409 (1982). 4 The assumption is that since there was an insufficient number of votes to grant the Association's Petition, the Association's Petition must be deemed to have been denied. However, such a conclusion is contrary to the state statute and charter provision quoted above. Compare with Hawaii Electric Light Company, Inc. v. DLNR, supra, 102 Haw. at 264 (voting on an application several times without a four-vote majority either to grant or to deny an application resulted in no action being taken). Windward Planning Commission Page Three June 1, 2024 Commission on taking any further action on the application until the Association's Petition is either granted or denied. 5 I am submitting this letter for the purpose of addressing the Commission's vote and am not appearing for the Association as its general counsel. You can, however, contact me or the Association's representative on any future proceeding that the Commission may take on the Association's Petition. Please note that I have been trying to find a link to the subject SMA application file on EPIC. Meanwhile, I am sending this letter by USPS mail and as testimony on your June 6, 2024 agenda. Thank you very much. V ry truly yours, Michael J. Matsukawa 5 If the Commission sent a formal letter of its "decision" or "action" to deny the Association's Petition, I have not been able to find that letter on the Planning Department's website.