HomeMy WebLinkAbout2024-12-06 Request for BOA Hearing Transcript (PL-BOA-2024-000104 & 105) DeVera, Ashley
From: Derek B. Simon <dsimon@carlsmith.com>
Sent: Friday, December 6, 2024 3:38 PM
To: Wan, Sylvia A
Cc: Bailey, Elizabeth B.; Kenneth R. Kupchak; Toren K. Yamamoto; Patrick K. Wong; Ian R.
Wesley-Smith; Cynthia Y. Arashiro; Hirayama, Emily; Campbell, Jean K; 'Mark M.
Murakami'; Planning Board of Appeals
Subject: RE: 1250 Oceanside LLC (PL-BOA-2024-000104 & 105)
Attachments: FW: 3CCV-23-0000231 88-129 Kai LLC v. Board of Appeal, County of Hawaii et al.
Hi Ms. Wan:
Thank you very much for the quick response on Tuesday.
We understand BOA's position and agree that BOA Rule 1-5(h) does not require transcripts for BOA meetings"unless
otherwise required by law." However, because this was a contested case hearing that will be appealed to the Circuit
Court, we do believe that an official transcript should be prepared and included with the record on appeal. Note that
HRS§91-9 provides that "[i]t shall not be necessary to transcribe the record unless requested for purposes of rehearing
or court review."
Based on our direct experience, we also believe that Judge DeWeese, who is presiding over the underlying lawsuit and
will presumably preside over any appeals from the contested case hearing, will expect an official written transcript. I am
attaching an email exchange between Deputy Corporation Counsel Steven Idemoto and Judge DeWeese's clerk from
another case handled by our firm, which also involved an appeal from a decision by the BOA. Mr. Idemoto had written
to Judge DeWeese's chambers to request additional time for the parties' briefing schedule so that a written transcript
could be prepared to supplement the record on appeal (which already included the BOA's minutes and the YouTube
video of the hearing). Judge DeWeese's clerk responded by noting that the court had already planned on issuing a sua
sponte order directing the County/BOA to have a transcript prepared to comply with the court's order for transmission
of the record. Judge DeWeese apparently reads HRCP Rule 72 to require the BOA to prepare an official written
transcript as part of the record on appeal. The clerk also noted that the court does not have time to review hours of
YouTube videos.
Given this, we respectfully renew our client's request that an official transcript be prepared and included in the record
on appeal. A written transcript will be to the benefit of all parties, and it would be better to do it now than to have it
ordered after-the-fact when were are before the Circuit Court.
Thank you again,
Derek
From: Wan, Sylvia A [mailto:SylviaA.Wan@hawaiicounty.gov]
Sent: Tuesday, December 03, 2024 4:56 PM
To: Derek B. Simon
Cc: Bailey, Elizabeth B.; Kenneth R. Kupchak; Toren K. Yamamoto; Patrick K. Wong; Ian R. Wesley-Smith; Cynthia Y.
Arashiro; Hirayama, Emily; Campbell, Jean K; 'Mark M. Murakami'; Planning Board of Appeals
Subject: RE: 1250 Oceanside LLC (PL-BOA-2024-000104 & 105)
CAUTION:This email originated from outside of the organization. Do not click links or open attachments unless you
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Hello Mr. Simon,
The Board can provide you with a copy of the minutes for the October 11, 2024 hearing once the minutes are
approved. The Board does not transcribe their meetings. Please note pursuant to Board of Appeals Rule 1-5(h)
and HRS § 92-9, the Board is not required to provide a 'full transcript.' Rule 1-5(h)reads in full:
(h) Minutes. The Board shall keep written minutes of all meetings. Unless otherwise
required by law, neither a full transcript nor a recording of the meeting is required,
but the written minutes shall give a true reflection of the matters discussed and the
views of the participants. The minutes shall include, but need not be limited to:
(1) The date, time, and place of the meeting;
(2) The members of the Board recorded as either present or absent;
(3) The substance of all matters proposed, discussed, or decided; and a record, by
individual member, of any votes taken; and
(4) Any other information that any member of the Board requests be included or
reflected in the minutes.
The minutes shall be public records and shall be available within forty (40) days after
the meeting. Exceptions include where such disclosure would be inconsistent with
Section 92-5 of Hawaii Revised Statutes; Section 13-20 of the County Charter; or
minutes of executive meetings for as long as their publication would defeat the
lawful purpose of the executive meeting, but no longer.
There is a video recording of the entire meeting available on YouTube. You are free to otherwise record or
transcribe from the video. For your convenience, you can access the video recording from the following link:
https://www.youtube.com/watch?v=ihTR95thScE.
Thank you,
Sylvia Wan
Deputy Corporation Counsel
Office of the Corporation Counsel
County of Hawai'i
101 Aupuni Street, Suite 325
Hilo,Hawaii 96720
Phone: (808)961-8251
Fax: (808)961-8622
Email: sylviaa.wan@hawaiicounty.gov
CONFIDENTIALITY: The information contained in this message is intended for the sole designated recipient(s) and may
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document. Please notify this office immediately if you have received this message in error and please delete this e-mail
and destroy any hard copy that may have been inadvertently printed. THANK YOU.
From: Derek B. Simon <dsimon@carlsmith.com>
Sent:Tuesday, December 3, 2024 4:22 PM
To:Wan, Sylvia A<SylviaA.Wan@hawaiicounty.gov>; Campbell,Jean K<JeanK.Campbell@hawaiicounty.gov>; 'Mark M.
2
Murakami' <mmm@hawaiilawyer.com>; Planning Board of Appeals<boardofappeals@hawaiicounty.gov>
Cc: Bailey, Elizabeth B. <ElizabethB.Bailey@hawaiicounty.gov>; Kenneth R. Kupchak<krk@hawaiilawyer.com>;Toren K.
Yamamoto<tky@hawaiilawyer.com>; Patrick K. Wong<pwong@carlsmith.com>; Ian R. Wesley-Smith <iwesley-
smith@carlsmith.com>; Cynthia Y. Arashiro<carashiro@carlsmith.com>; Hirayama, Emily
<Emily.Hirayama@hawaiicounty.gov>
Subject: RE: 1250 Oceanside LLC (PL-BOA-2024-000104& 105)
All:
The attached were both filed via EPIC in their respective dockets.
At this time, I would also like to request a copy of the official transcript from the October 11th hearing. If one has not
been prepared, I ask that it be ordered to ensure it can timely be included in the record on appeal that will be
transmitted to the Circuit Court.
Thank you,
Derek
From: Wan, Sylvia A [mailto:SylviaA.Wan@hawaiicounty.gov]
Sent: Monday, November 25, 2024 11:45 AM
To: Derek B. Simon; Campbell, Jean K; 'Mark M. Murakami'; Planning Board of Appeals
Cc: Bailey, Elizabeth B.; Kenneth R. Kupchak; Toren K. Yamamoto; Patrick K. Wong; Ian R. Wesley-Smith; Cynthia Y.
Arashiro; Hirayama, Emily
Subject: RE: 1250 Oceanside LLC (PL-BOA-2024-000104 & 105)
CAUTION:This email originated from outside of the organization. Do not click links or open attachments unless you
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Hello Mr. Simon,
The deadline remains same. Please provide your written objections, suggested additional language, and/or
alternate form of the order by December 3, 2024. The Board will consider your submissions on December 13,
2024.
Thank you,
Sylvia Wan
Deputy Corporation Counsel
Office of the Corporation Counsel
County of Hawai'i
101 Aupuni Street, Suite 325
Hilo, Hawai'i 96720
Phone: (808) 961-8251
Fax: (808) 961-8622
Email: sylviaa.wan@hawaiicounty.gov
CONFIDENTIALITY: The information contained in this message is intended for the sole designated recipient(s) and may
contain privileged and confidential attorney-client communication(s). If you are not the person named above NOTICE IS
HEREBY GIVEN that you are STRICTLY PROHIBITED from reading,reviewing, disseminating and/or copying this
document. Please notify this office immediately if you have received this message in error and please delete this e-mail
and destroy any hard copy that may have been inadvertently printed. THANK YOU.
3
From: Derek B. Simon <dsimon@carlsmith.com>
Sent: Monday, November 25, 2024 10:49 AM
To: Wan, Sylvia A<SylviaA.Wan@hawaiicounty.gov>; Campbell,Jean K<JeanK.Campbell@hawaiicounty.gov>; 'Mark M.
Murakami' <mmm@hawaiilawyer.com>; Planning Board of Appeals<boardofappeals@hawaiicounty.gov>
Cc: Bailey, Elizabeth B. <ElizabethB.Bailey@hawaiicounty.gov>; Kenneth R. Kupchak<krk@hawaiilawyer.com>;Toren K.
Yamamoto<tky@hawaiilawyer.com>; Patrick K. Wong<pwong@carlsmith.com>; Ian R. Wesley-Smith <iwesley-
smith@carlsmith.com>; Cynthia Y. Arashiro<carashiro@carlsmith.com>; Hirayama, Emily
<Emily.Hirayama@hawaiicounty.gov>
Subject: RE: 1250 Oceanside LLC (PL-BOA-2024-000104& 105)
Dear Chair Lewis:
Thank you for the quick consideration and for granting a short extension. We also appreciate the Planning Director's
and Corporation Counsel's work on the Proposed Orders.
We do however request reconsideration in order to close the loop on Mr. Campbell's last email (at 9:34) (which we did
not have a chance to respond to before your ruling). The law is clear on what is required in a Proposed Order/FOF/COL
for a Chapter 91 contested case hearings. There should be enough specificity for our client to be able to appeal specific
factual findings and legal conclusions, and for the Circuit Court to understand the basis for the BOA's decisions on the
same. I am attaching one of the cases cited in my prior email, which explains the purpose, requirements, and
importance of findings of fact and conclusions of law in contested case hearings (pertinent discussion highlighted).
The BOA set a deadline of one month for the Planning Director to prepare his Proposed Orders and two weeks for
objections. This was presumably based on the assumption that the Planning Director would prepare Orders that contain
the detailed findings and specificity required by the Hawai`i Supreme Court. In that instance, two weeks would have
been enough time for other parties to submit necessary supplements and objections. However, the Planning Director
submitted simple form orders that do not contain any specificity, much less enough detail to satisfy the Hawai`i Supreme
Court's standard. This requires significant unanticipated work to address. Therefore, we are requesting the same
amount of time that the Planning Director received—one month—to prepare objections and proposed/supplemental
findings that contain the information required to be in the Orders.
We will of course defer to the Chair's decision, but respectfully request reconsideration and a continuance of the
Board's hearing from December 13th to its next available meeting, with respective filing deadlines reset accordingly. We
appreciate the consideration.
Thank you again,
Derek
From: Wan, Sylvia A [mailto:SylviaA.Wan@hawaiicounty.gov]
Sent: Monday, November 25, 2024 9:41 AM
To: Campbell, Jean K; Derek B. Simon; 'Mark M. Murakami'; Planning Board of Appeals
Cc: Bailey, Elizabeth B.; Kenneth R. Kupchak; Toren K. Yamamoto; Patrick K. Wong; Ian R. Wesley-Smith; Cynthia Y.
Arashiro; Hirayama, Emily
Subject: RE: 1250 Oceanside LLC (PL-BOA-2024-000104 & 105)
CAUTION:This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
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Hello Parties,
Chair Lewis is granting a short continuance of the FOFCOLD&O Objection deadline to Tuesday December 3,
2024. Chair is providing this short continuance in light of the Thanksgiving holiday.
The hearing on the Board's decision relating to the form of the Findings of Fact, Conclusion of Law and Order
will remain December 13, 2024.
Thank you,
Sylvia Wan
Deputy Corporation Counsel
Office of the Corporation Counsel
County of Hawai'i
101 Aupuni Street, Suite 325
Hilo, Hawai'i 96720
Phone: (808) 961-8251
Fax: (808) 961-8622
Email: sylviaa.wan(abawaiicounty.gov
CONFIDENTIALITY: The information contained in this message is intended for the sole designated recipient(s) and may
contain privileged and confidential attorney-client communication(s). If you are not the person named above NOTICE IS
HEREBY GIVEN that you are STRICTLY PROHIBITED from reading,reviewing, disseminating and/or copying this
document. Please notify this office immediately if you have received this message in error and please delete this e-mail
and destroy any hard copy that may have been inadvertently printed. THANK YOU.
From: Campbell,Jean K<JeanK.Campbell@hawaiicounty.gov>
Sent: Monday, November 25, 2024 9:33 AM
To: Derek B. Simon <dsimon@carlsmith.com>; 'Mark M. Murakami' <mmm@hawaiilawyer.com>; Planning Board of
Appeals<boardofappeals@hawaiicounty.gov>
Cc: Bailey, Elizabeth B. <ElizabethB.Bailey@hawaiicounty.gov>; Kenneth R. Kupchak<krk@hawaiilawyer.com>;Toren K.
Yamamoto<tky@hawaiilawyer.com>; Patrick K. Wong<pwong@carlsmith.com>; Ian R. Wesley-Smith <iwesley-
smith@carlsmith.com>; Cynthia Y. Arashiro<carashiro@carlsmith.com>; Hirayama, Emily
<Emily.Hirayama@hawaiicounty.gov>
Subject: RE: 1250 Oceanside LLC (PL-BOA-2024-000104& 105)
Hi all,
I will offer one final observation and leave the decision to Chair Lewis. All the deadlines we are discussing were
set back on October 11th. There is nothing last minute about this process or the upcoming deadline. The Board
normally allows only one week for the review of FOFCOLD&Os but in this case allowed two. Had 1250 wanted to
provide their own draft,they have had 6 weeks to prepare and submit their alternative.
Aloha,
Jean
From: Derek B. Simon <dsimon@carlsmith.com>
Sent: Monday, November 25, 2024 9:10 AM
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To: 'Mark M. Murakami' <mmm@hawaiilawyer.com>; Campbell,Jean K<JeanK.Campbell@hawaiicounty.gov>; Planning
Board of Appeals<boardofappeals@hawaiicounty.gov>
Cc: Bailey, Elizabeth B. <ElizabethB.Bailey@hawaiicounty.gov>; Kenneth R. Kupchak<krk@hawaiilawyer.com>;Toren K.
Yamamoto<tky@hawaiilawyer.com>; Patrick K. Wong<pwong@carlsmith.com>; Ian R. Wesley-Smith <iwesley-
smith@carlsmith.com>; Cynthia Y. Arashiro<carashiro@carlsmith.com>
Subject: RE: 1250 Oceanside LLC (PL-BOA-2024-000104& 105)
Chair Lewis:
Oceanside respectfully disagrees with the Planning Director's (and apparently Intervenor's)view of the purpose and
requirements of Proposed Findings of Fact, Conclusions of Law, and Orders.
HRS§91-12 requires that"[e]very decision and order adverse to a party to the proceeding, rendered by an agency in a
contested case, shall be in writing or stated in the record and shall be accompanied by separate findings of fact and
conclusions of law." "The requirement that the [agency] set out findings of fact and conclusions of law is no mere
technical or perfunctory matter. The purpose of the statutory requirement that the agency set forth separately its
findings of fact and conclusions of law is to assure reasoned decision making by the agency and enable judicial review
of agency decisions." Application of Hawaii Elec. Light Co., Inc., 60 Haw. 625, 642-43, 594 P.2d 612, 623-24
(1979). Simply put, "[t]he parties and the court should not be left to guess,with respect to any material question of
fact,or to any group of minor matters that may have cumulative significance, the precise finding of the
agency." Application of Hawaiian Tel. Co., 54 Haw. 663, 668, 513 P.2d 1376, 1379 (1973).
The Planning Director's Proposed Orders provide no actual findings of fact other than an incomplete recitation of the
procedural history in these appeals, and its proposed conclusions of law just quote various statutory requirements. This
is clearly insufficient under the law and will leave the Circuit Court guessing as to the Board's actual findings. Oceanside
is simply requesting a short continuance—to the Board's next available meeting—to provide additional proposed
findings and conclusions for the Board to consider, and to which the Planning Director and Intervenor can object. Based
on all of that, the Board will then be able to take the action it deems necessary and sufficient under the law, before
these appeals are reviewed by the Circuit Court.
Thanks,
Derek
From: Mark M. Murakami [mailto:mmm@hawaiilawyer.com]
Sent: Monday, November 25, 2024 8:49 AM
To: Campbell, Jean K; Derek B. Simon; Planning Board of Appeals
Cc: Bailey, Elizabeth B.; Kenneth R. Kupchak; Toren K. Yamamoto; Patrick K. Wong; Ian R. Wesley-Smith; Cynthia Y.
Arashiro
Subject: RE: 1250 Oceanside LLC (PL-BOA-2024-000104 & 105)
CAUTION:This email originated from outside of the organization. Do not click links or open attachments unless you
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Chair Lewis:
The Coupe Family joins the County's objection to the continuance.
Thankyou, Mark
Mark M. Murakami I Director, CRE®
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From: Campbell,Jean K<JeanK.Campbell@hawaiicounty.gov>
Sent: Monday, November 25, 2024 7:28 AM
To: Derek B. Simon <dsimon@carlsmith.com>; Planning Board of Appeals<boardofappeals@hawaiicounty.gov>
Cc: Bailey, Elizabeth B. <ElizabethB.Bailey@hawaiicounty.gov>; Mark M. Murakami <mmm@hawaiilawyer.com>;
Kenneth R. Kupchak<krk@hawaiilawyer.com>;Toren K. Yamamoto<tky@hawaiilawyer.com>; Patrick K. Wong
<pwong@carlsmith.com>; Ian R. Wesley-Smith <iwesley-smith@carlsmith.com>; Cynthia Y. Arashiro
<carashiro@carlsmith.com>
Subject: RE: 1250 Oceanside LLC (PL-BOA-2024-000104& 105)
Good morning Chair,
The Department objects to the requested continuance of this matter. The purpose of the FOFCOLD&O is not to
catalog all the arguments made by every party to the case. It reflects only the Board's decision. In both of these
cases, despite consideringvoluminous arguments by the parties,the Board's decisions were narrow and
concise. Thus, it is not appropriate to turn the FOFCOLD&O into a brief to set the stage for the parties' return to
court. Any further arguments by the parties may be appropriately made in their filings before the court.
Aloha,
Jean
From: Derek B. Simon <dsimon@carlsmith.com>
Sent: Friday, November 22, 2024 3:43 PM
To: Planning Board of Appeals<boardofappeals@hawaiicounty.gov>
Cc: Campbell,Jean K<JeanK.Campbell@hawaiicounty.gov>; Bailey, Elizabeth B. <ElizabethB.Bailey@hawaiicounty.gov>;
Mark M. Murakami <mmm@hawaiilawyer.com>; R. Kupchak<krk@hawaiilawyer.com>;Toren K. Yamamoto
<tky@hawaiilawyer.com>; Patrick K. Wong<pwong@carlsmith.com>; Ian R. Wesley-Smith <iwesley-
smith@carlsmith.com>; Cynthia Y. Arashiro<carashiro@carlsmith.com>
Subject: 1250 Oceanside LLC (PL-BOA-2024-000104 & 105)
Aloha Chair Lewis:
On behalf of 1250 Oceanside, LLC, I am writing to request a short continuance of the upcoming hearings in PL-BOA-
2024-000104 & 105 regarding the Planning Director's Proposed Findings of Fact, Conclusions of Law, and Orders
(Proposed Orders). The Board is tentatively scheduled to take up the Planning Director's Proposed Orders at its meeting
on December 13th
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The Planning Director served its Proposed Orders on Wednesday, November 13th, Oceanside's and Intervenor C&J Coupe
Family Limited Partnership's objections to the Proposed Orders are presently due next Friday, November 29th. However,
Oceanside strongly believes that both of the Planning Director's Proposed Orders are substantially incomplete and
insufficient, particularly given the context of these appeals and the fact these proceedings were initiated pursuant to an
order of the Circuit Court in the underlying lawsuit.
Therefore, Oceanside requests that(a) the December 13th hearing on the Proposed Orders being continued to the
Board's next available meeting, and (b)the deadlines for submitting proposed orders and objections thereto be reset
accordingly. This short continuance will provide all parties with an opportunity to thoroughly review the extensive
record and submit their owner proposed orders, supplemental findings and conclusions, and/or their objections.
I have copied counsel for both the Planning Director and Intervenor on this email.
Thank you,
Derek
DEREK B. SIMON
Partner I Carlsmith Ball LLP
Carlsmith Bali
A LIMFTEb LIAIItiTY LAW PkRTleEpi MP
1001 Bishop Street, Suite 2100
Honolulu, HI 96813
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