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HomeMy WebLinkAbout2023-11-07 Request for Subpoena Duces Tecum DeVera, Ashley From: Ian R. Wesley-Smith <iwesley-smith@carlsmith.com> Sent: Tuesday, November 7, 2023 6:22 PM To: Planning Board of Appeals Cc: Patrick K. Wong; Pause, Stephen (Steve); Braman, Eva; Kekai, Malia; Agustin, Noah; SalasFerguson, Sinclair; Lactaoen, Kawehilani S Subject: 1'O PROCESSING COMPANY INC (PL-BOA-2023-000065) Request for Issuance of Subpoena Duces Tecum Attachments: Appellant's Request for Issuance of Subpoena Duces Tecum to DPW.pdf Dear Board of Appeals, Please find attached Appellant's Request for Issuance of Subpoena Duces Tecum to DPW. A copy has been filed in EPIC. If the BOA or any party would like hard copies, please let me know and we can arrange for delivery tomorrow. Thank you very much for the consideration. Best Regards, Ian Wesley-Smith CC: County of Hawaii, Department of Public Works IAN R.WESLEY-SMITH Partner I Carlsmith Ball LLP Carlsmith Bali A LIMFTEb LIAIILiTY LAW PkRTleEpi MP 121 Waianuenue Avenue Hilo, HI 96720 Tel: 808.969.8416 Fax: 808.935.7975 Honolulu • Hilo • Kona • Maui IMPORTANT/CONFIDENTIAL: This message from the law firm of Carlsmith Ball LLP, A Limited Liability Law Partnership, contains information which may be confidential, privileged, and/or exempt from disclosure under applicable law. If you are not the addressee (or authorized to receive for the addressee), you are hereby notified that the copying, use or distribution of any information or materials transmitted in or with this message is strictly prohibited. If you received this message in error, please immediately notify me (the sender) by replying to this email, then promptly destroy the original message. Thank you. 1 CARLSMITH BALL LLP STEVEN S.C. LIM #2505 IAN R. WESLEY-SMITH#10626 121 Waianuenue Avenue Hilo, Hawai`i 96720 Tel No. 808.935.6644 Fax No. 808.935.7975 slim@carlsmith.com iwesley-smith@carlsmith.com Attorneys for Appellant I`O PROCESSING COMPANY INC. BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI`I I'O PROCESSING COMPANY INC., dba PO PL-BOA-2023-000065 PROCESSING COMPANY, APPELLANT I`O PROCESSING Appellant, COMPANY INC.'S REQUEST FOR SUBPOENA DUCES TECUM; EXHIBIT 1; vs. EXHIBIT 2; CERTIFICATE OF SERVICE STEPHEN M. PAUSE, DIRECTOR, (Custodian of Records of County of Hawai`i DEPARTMENT OF PUBLIC WORKS Department of Public Works) Appellee. Hearing: Date: December 8, 2023 Time: 9:30 a.m. Place: West Hawaii Civic Center, Council Chambers, Building A at 74-5044 Ane Keohokalole Highway, Kailua-Kona, Hawaii APPELLANT I`O PROCESSING COMPANY INC.'S REQUEST FOR SUBPOENA DUCES TECUM I. INTRODUCTION AND BACKGROUND. Appellant I`o Processing Company Inc.'s ("Appellant" or"I`o Processing") filed this appeal before the Board of Appeals of the County of Hawaii ("Board") concerning the County of Hawai`i Department of Public Works ("DPW's") denial of I`o Processing's request 4871-5206-8494.1.071717-00001 for an agricultural exemption under HRS § 46-88 ("Denial"). Specifically, DPW refused to assess the applicability of the agricultural exemptions in HRS § 46-88. See Ex. 1 (Denial). I`o Processing respectfully submits that DPW's Denial violated HRS § 46-88 and was clearly erroneous in light of the evidence. Big picture, HRS § 46-88 expressly exempts "agricultural buildings"from the HCC, for the purpose of"eas[ing] the financial and administrative burden on farmers and ranchers and encourage agricultural diversification and self-sufficiency." Therefore, DPW should not have denied I`o Processing's request simply because structures met the definition of a"building"in the Hawaii County Code. Instead, DPW should have looked to the exemptions for agricultural buildings in HRS § 46-88, which supersede the permitting obligations for normal buildings in the HCC. To make matters worse, the manner in which DPW denied I`o Processing's agricultural exemption request appears to have been arbitrary. Beginning in February 2022, I`o Processing began working closely with DPW to make sure that the agricultural structures were legal and compliant; this involved multiple meetings, the submission of construction plans to DPW, an application for an electrical permit to DPW, and submission of agricultural declaration forms to DPW. In response, DPW repeatedly assured I`o Processing that everything was compliant and approved multiple rounds of inspection and approval for the electrical permit. It was not until many months later that DPW abruptly reversed its position and demanded that I`o Processing obtain traditional permits under the Hawaii County Code. Troublingly, the Denial came just several days after I`o Processing was informed that DPW was "revising policies and procedures regarding the [agricultural] declarations" -- apparently in response to I`o Processing's request, specifically. See Ex. 1 at p. 4. This sequence of events suggests that DPW may have arbitrarily created new policies to deny I`o Processing's request, or, alternatively, arbitrarily denied I`o Processing's request without having any policies or procedures in place supporting that denial. To have a fair opportunity to challenge the Denial in the hearing before the Board, I`o Processing needs access to basic documents and communications in DPW's possession concerning the Denial. The internal files generated by DPW in connection with the Denial, including emails, will allow I`o Processing and the Board to assess the grounds for the Denial. In addition, an analysis of DPW's policies, any proposed amendments to those policies, and any contemporaneous decisions on other agricultural exemptions will allow I`o Processing and the Board to determine whether and to what extent the Denial was arbitrary. 2 4871-5206-8494.1.071717-00001 Accordingly, I`o Processing respectfully requests that the Board issue a subpoena duces tecum to DPW for the following three categories of documents/communications: • Documents and communications (including emails)relating or referring to I`o Processing, I`o Processing's applications, or the Denial, including, without limitation, emails (internal and external) authored by Kelly Wilson, Joel Fitzgerald, Kehau Dumaguin, Pomai Pokipala, and any other DPW employee involved with the file. • Copies of past and present policies,procedures, memorandums, guidelines, criterion, or other materials used by DPW to assess and apply agricultural exemptions under HRS § 46-88, including drafts. • Copies of decisions on agricultural exemptions under HRS § 46-88 issued by DPW (both approvals and denials) from January 2022 through present. The form of the requested subpoena duces tecum is attached hereto as Exhibit"2." This request is based on Board of Appeals Rule 3-9(b) and on the records and files in this appeal. We sincerely appreciate your review and assistance in this matter. DATED: Hilo, Hawai`i, November 7, 2023. /s/Ian R. Wesley-Smith STEVEN S.C. LIM PATRICK K. WONG IAN R. WESLEY-SMITH Attorneys for Appellant 110 PROCESSING COMPANY INC. 3 4871-5206-8494.1.071717-00001 Katherine Y. Luga From: Wilson, Kelly <Kelly.Wilson@hawaiicounty.gov> Sent: Friday,January 13, 2023 4:41 PM To: Steven S.C. Lim Cc: Katherine Y. Luga; Fitzgerald, Joel; ioprocessinginc@gmail.com; SalasFerguson, Sinclair; Pause, Stephen (Steve); Kekai, Malia; Ian R. Wesley-Smith Subject: RE: l'o Processing - declaration of compliance for ag structures 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. Yes,the definition is per HCC section 5-1-5 . Application for building Permit is required. ALOHA, KELLY WILSON — DEPUTY BUILDING CHIEF COUNTY OF DEPARTMENT OF PUBLIC WORKS HAWAII BUILDING DIVISION From: Steven S.C. Lim <slim@carlsmith.com> Sent: Friday, January 13, 2023 2:16 PM To: Wilson, Kelly<Kelly.Wilson@hawaiicounty.gov> Cc: Katherine Y. Luga <kluga@carlsmith.com>; Fitzgerald,Joel <Joel.Fitzgerald@hawaiicounty.gov>; ioprocessinginc@gmail.com; SalasFerguson, Sinclair<Sinclair.SalasFerguson@hawaiicounty.gov>; Pause, Stephen (Steve) <Steve.Pause@hawaiicounty.gov>; Kekai, Malia <malia.kekai@hawaiicounty.gov>; Ian R. Wesley-Smith <iwesley- smith@carlsmith.com> Subject: Re: l'o Processing- declaration of compliance for ag structures Kelly: Should we consider your response below the DPW's "final decision and order" for purposes of our client's appeal? Sent from my iPhone On Jan 13, 2023, at 12:25, Wilson, Kelly<Kelly.Wilson@hawaiicounty.gov>wrote: 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. "Building" means any structure used or intended for supporting or sheltering any use or occupancy.The term shall include but not be limited to, any structure mounted on wheels such as a trailer, wagon, or 1 EXHIBIT 1 vehicle which is parked and stationary for any 24- hour period, and is used for business or living purposes; provided, however, that the term shall not include a push cart or push wagon which is readily movable and which does not exceed 25 square feet in area, nor shall the term include a trailer or vehicle, used exclusively for the purpose of selling any commercial product therefrom, which hold a vehicle license and actually travels on public or private streets. They meet the definition of a Building. ALOHA, KELLY WILSON-DEPUTY BUILDING CHIEF COUNTY OF DEPARTMENT OF PUBLIC WORKS HAWAII BUILDING DIVISION From: Katherine Y. Luga <kluga@carlsmith.com> Sent: Friday, January 13, 2023 12:04 PM To: Fitzgerald,Joel <Joel.Fitzgerald@hawaiicounty.gov>; ioprocessinginc@gmail.com Cc: Steven S.C. Lim <slim@carlsmith.com>; SalasFerguson, Sinclair <Sinclair.SalasFerguson@hawaiicounty.gov>; Pause, Stephen (Steve) <Steve.Pause@hawaiicounty.gov>; Kekai, Malia <malia.kekai@hawaiicounty.gov>; Wilson, Kelly<Kelly.Wilson@hawaiicounty.gov>; Ian R. Wesley-Smith <iwesley-smith@carlsmith.com> Subject: RE: I'o Processing- declaration of compliance for ag structures Hi Joel, Please send us a formal denial letter or letters for all 6 Declarations,to include an explanation of the Director's rationale for denial for each Declaration. From: Fitzgerald, Joel [mailto:Joel.Fitzgerald@hawaiicounty.gov] Sent: Friday, January 13, 2023 10:43 AM To: ioprocessinginc@gmail.com; Katherine Y. Luga Cc: Steven S.C. Lim; SalasFerguson, Sinclair; Pause, Stephen (Steve); Kekai, Malia; Wilson, Kelly Subject: RE: I'o Processing - declaration of compliance for ag structures 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. Aloha Ms. Kanda & Ms. Luga: I was able to have a discussion with my supervisors and unfortunately these structures do not qualify to utilize the HRS 46-88 exemption. You will need to pursue traditional permitting (Building/Electrical/Plumbing)for these Non-Residential structure(s), all structures identified. At this time I would also like to inform you that we do not currently permit mobile structures; I was unable to determine from the provided Declaration applications if these modules in fact do have permanent/fixed foundations as would be required for permitting. 2 Due to the nature of the work,there are a number of County and State departments, such as Planning, Wastewater and Sanitation/Food Safety among others,that are only available to us for review purposes through the traditional permitting path. For those structures with permanent/fixed foundations, the permit type you will need through our EPIC application system: <image001.jpg> Link: https://hawaiicountyhi- energovpub.tylerhost.net/Apps/SelfService#/applicationAssistant?sectionName=All&moduleld=2&categ oryName=Building%20(Non-Residential)&showTemplates=false Mahalo! Joel Fitzgerald Building Plans Examiner County of Hawaii Department of Public Works-Building Ph: (808)961-8488 ATTN APPLICANTS AND DESIGN PROFESSIONALS:WHILE EXCHANGING EMAIL COMMUNICATIONS WITH REVIEWERS,PLEASE DO NOT ATTACH PLAN SHEETS OR SETS TO EMAILS;ALL REVIEWS ARE TO BE PERFORMED EXCLUSIVELY THROUGH THE ONLINE EPIC APPLICATION/PERMITTING SYSTEM. <I MAG EOO2.J PG> From: Katherine Y. Luga <kluga@carlsmith.com> Sent: Thursday,January 12, 2023 9:42 AM To: Fitzgerald, Joel <Joel.Fitzgerald@Jhawaiicounty.gov> Cc: Steven S.C. Lim <slim@carlsmith.com>; SalasFerguson, Sinclair <Sinclair.SalasFerguson@hawaiicounty.gov>; Pause, Stephen (Steve) <Steve.Pause@hawaiicounty.gov>; Kekai, Malia <malia.kekai@hawaiicounty.gov> Subject: RE: l'o Processing- declaration of compliance for ag structures Hi Joel, We are following up on our request below. Thank you. From: Katherine Y. Luga Sent: Wednesday, January 11, 2023 1:20 PM To: 'joel.fitzgerald@hawaiicounty.gov' Cc: Steven S.C. Lim; SalasFerguson, Sinclair; Pause, Stephen (Steve); Kekai, Malia Subject: FW: I'o Processing - declaration of compliance for ag structures Hi Joel, We filed the attached 5 Declarations on 12/30/22, which DPW Engineering signed-off on the same day (12/30/22) and transmitted to you for DPW Building review/approval. In addition, DPW Engineering signed off on 12/22/22, the attached Declaration for the mobile modular cut and wrap unit. We understand that Declarations are reviewed and approved by DPW Engineering and Building within a one-day turn-around. Therefore, we do not understand why the 6 pending Declarations for l'o Processing are not afforded the same one-day review period. Please explain the reason why l'o Processing is waiting 20 days and 12 days, respectively, when other Declarations (as were the case with the attached Kona Kai and Horn 3 Declarations) have been approved after l'o Processing submitted its Declarations on 12/22/22 and 12/30/22. In addition, we do not see how DPW's current "revising policies and procedures regarding the declarations and I have a few issues I require department acknowledgement/clarification", is halting DPW's review of the l'o Processing 6 Declarations when HRS Section 46-88 has not been amended. This will respectfully request that DPW Building review and act on the attached 6 pending Declarations by the close of business today. Thank you for your assistance. From: Fitzgerald, Joel [mailto:Joel.Fitzgerald@hawaiicounty.gov] Sent: Monday, January 9, 2023 1:18 PM To: Katherine Y. Luga Cc: Steven S.C. Lim; DeMello, Melanie; Harada, Bryce Subject: RE: I'o Processing - declaration of compliance for ag structures 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. Aloha Ms. Luga: Please allow 1 to 2 months for response. We are currently revising policies and procedures regarding the declarations and I have a few issues I require department acknowledgement/clarification. Mahalo! Joel Fitzgerald Building Plans Examiner County of Hawaii Department of Public Works-Building Ph: (808)961-8488 ATTN APPLICANTS AND DESIGN PROFESSIONALS:WHILE EXCHANGING EMAIL COMMUNICATIONS WITH REVIEWERS,PLEASE DO NOT ATTACH PLAN SHEETS OR SETS TO EMAILS;ALL REVIEWS ARE TO BE PERFORMED EXCLUSIVELY THROUGH THE ONLINE EPIC APPLICATION/PERMITTING SYSTEM. <IMAGEO02.JPG> From: Katherine Y. Luga <kluga@carlsmith.com> Sent: Monday,January 09, 2023 12:16 PM To: Fitzgerald,Joel <Joel.Fitzgerald@hawaiicounty.gov> Cc: Steven S.C. Lim <slim@carlsmith.com>; DeMello, Melanie<Melanie.DeMello@hawaiicounty.gov>; Harada, Bryce <Bryce.Harada@hawaiicounty.gov> Subject: FW: l'o Processing- declaration of compliance for ag structures Hi Joel, I am following up on status of DPW Building's execution of the attached Declarations signed off by DPW Engineering. Please provide ETA on completion of review. Thank you. From: Harada, Bryce [mailto:Bryce.Harada©hawaiicounty.gov] Sent: Friday, December 30, 2022 1:13 PM To: Katherine Y. Luga; Fitzgerald, Joel 4 Cc: DeMello, Melanie Subject: RE: I'o Processing - declaration of compliance for ag structures 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. Hi Joel, Kat, Attached are copies of the ENG approved Declaration of Compliance for Ag Structures forms. Thank you, Bryce Bryce Harada, P.E. County of Hawaii-Department of Public Works Engineering Division, Regulatory Section Aupuni Center, 101 Pauahi Street, Suite 7 Hilo, HI 96720 Tel: (808) 961-8042 E-Mail: Bryce.Harada@hawaiicounty.gov From: Katherine Y. Luga <kluga@carlsmith.com> Sent: Friday, December 30, 2022 8:22 AM To: DeMello, Melanie <Melanie.DeMello@hawaiicounty.gov>; Harada, Bryce <Bryce.Harada@hawaiicounty.gov> Cc: Fitzgerald,Joel<Joel.Fitzgerald@hawaiicounty.gov> Subject: FW: I'o Processing- declaration of compliance for ag structures Resending for DPW engineering sign off. Thank you. From: Katherine Y. Luga Sent: Friday, December 30, 2022 7:27 AM To: 'Joel.fitzgerald@hawaiicounty.gov' Cc: Steven S.C. Lim; 'Nichole Kanda' Subject: I'o Processing - declaration of compliance for ag structures Hi Joel, I spoke to Erin who informed me that you review and approve the declarations. Please call me 808-938- 5962 should you have any questions. Please acknowledge receipt of the email communication. Thank you. KATHERINE Y. LUGA Paralegal I Carlsmith Ball LLP <Image003.jpg> 5 121 Waianuenue Avenue Hilo, HI 96720 Tel: 808.935.6644 Fax: 808.935.7975 Honolulu • Hilo • Kona • Maui www.carlsmith.com IMPORTANT/CONFIDENTIAL: This message from the law firm of Carlsmith Ball LLP,A Limited Liability Law Partnership, contains information which may be confidential, privileged, and/or exempt from disclosure under applicable law. If you are not the addressee(or authorized to receive for the addressee), you are hereby notified that the copying, use or distribution of any information or materials transmitted in or with this message is strictly prohibited. If you received this message in error, please immediately notify me(the sender) by replying to this email,then promptly destroy the original message. Thank you 6 CARLSMITH BALL LLP STEVEN S.C. LIM #2505 IAN R. WESLEY-SMITH #10626 121 Waianuenue Avenue Hilo, Hawai`i 96720 Tel No. 808.935.6644 Fax No. 808.935.7975 slim@carlsmith.com iwesley-smith@carlsmith.com Attorneys for Appellant I'O PROCESSING COMPANY INC. BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI`I I'O PROCESSING COMPANY INC., dba I'O PL-BOA-2023-000065 PROCESSING COMPANY, SUBPOENA DUCES TECUM; Appellant, EXHIBIT"A" vs. (Custodian of Records of County of Hawai`i Department of Public Works) STEPHEN M. PAUSE, DIRECTOR, DEPARTMENT OF PUBLIC WORKS Hearing: Date: December 8, 2023 Appellee. Time: 9:30 a.m. Place: West Hawaii Civic Center, Council Chambers, Building A at 74-5044 Ane Keohokalole Highway, Kailua-Kona, Hawaii SUBPOENA DUCES TECUM TO: CUSTODIAN OF RECORDS OF THE COUNTY OF HAWAII, DEPARTMENT OF PUBLIC WORKS ATTN: SINCLAIR SALAS FERGUSON, ESQ. Deputy Corporation Counsel for Department of Public Works 101 Aupuni Street, Suite 325 Hilo, Hawai`i 96720 E-Mail: Sinclair.SalasFerguson@hawaiicounty.gov Attorney for Appellee 4871-5206-8494.1.071717-00001 EXHIBIT 2 YOU ARE COMMANDED to appear at the offices of Carlsmith Ball LLP, 121 Waianuenue Avenue, Hilo, Hawai`i 96720 (telephone number: (808) 935-6644), on November 21, 2023, at 10 a.m., to produce the documents listed on the attached Exhibit"A" and to testify as to the contents of said documents. DATED: , Hawai`i, November , 2023. Chairperson, Board of Appeals 2 4871-5206-8494.1.071717-00001 EXHIBIT "A" DOCUMENTS TO BE PRODUCED 1. Documents, communications, and files relating or referring to I`o Processing, I`o Processing's submissions to DPW in 2022, or DPW's denial of I`o Processing's request for an agricultural exemption under HRS § 46-88, including, without limitation, emails (internal and external) authored by Kelly Wilson, Joel Fitzgerald, Kehau Dumaguin, Pomai Pokipala, and any other DPW employee involved with the file. 2. Copies of past and present policies,procedures, memorandums, guidelines, criterion, or other materials used by DPW to assess and apply agricultural exemptions under HRS § 46-88, including drafts. 3. Copies of decisions on agricultural exemptions under HRS § 46-88 issued by DPW (both approvals and denials) from January 2022 through present. 4871-5206-8494.1.071717-00001 RETURN OF SERVICE Received this Subpoena Duces Tecum at , Hawaii, on 2023, at a.m./p.m. I served it on by delivering a copy to him/her and tendering to him/her the fee for one day attendance and the mileage allowed by law. Date: Server: ACKNOWLEDGED: Signature Printed Name Date and Time 4871-5206-8494.1.071717-00001 CARLSMITH BALL LLP STEVEN S.C. LIM #2505 IAN R. WESLEY-SMITH#10626 121 Waianuenue Avenue Hilo, Hawai`i 96720 Tel No. 808.935.6644 Fax No. 808.935.7975 slim@carlsmith.com iwesley-smith@carlsmith.com Attorneys for Appellant I'O PROCESSING COMPANY INC. BEFORE THE BOARD OF APPEALS COUNTY OF HAWAII I'O PROCESSING COMPANY INC., dba PO PL-BOA-2023-000065 PROCESSING COMPANY, Appellant, APPELLANT'S CERTIFICATE OF SERVICE vs. STEPHEN M. PAUSE, DIRECTOR, DEPARTMENT OF PUBLIC WORKS Appellee. APPELLANT'S CERTIFICATE OF SERVICE The undersigned hereby certifies that on the date indicated below, a true and correct copy of the foregoing document was duly served upon the following parties via electronic mail (e-mail and EPIC) on November 7, 2023: SINCLAIR SALAS-FERGUSON, ESQ. Deputy Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawai`i 96720 E-Mail: Sinclair.SalasFerguson@hawaiicounty.gov Attorney for Appellee 4871-5206-8494.1.071717-00001 ELIZABETH A. STRANCE, ESQ. Corporation Counsel SHERILYN K. TAVARES, ESQ. Deputy Corporation Counsel Office of the Corporation Counsel County of Hawai`i 101 Aupuni Street, Suite 325 Hilo, Hawai`i 96720 E-Mail: Sherilyn.Tavares@a,hawaiicounty.gov Attorney for the Board of Appeals DATED: Hilo, Hawai`i, November 7, 2023. /s/Ian R. Wesley-Smith STEVEN S.C. LIM IAN R. WESLEY-SMITH Attorneys for Appellant I'O PROCESSING COMPANY INC. 2 4871-5206-8494.1.071717-00001