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Home My WebLink About2024-09-20 Appellant's Objection to Record on Appeal DeVera, Ashley From: Ian R. Wesley-Smith <iwesley-smith@carlsmith.com> Sent: Friday, September 20, 2024 3:59 PM To: Wan, Sylvia A; Agustin, Noah Cc: Patrick K. Wong; Lactaoen, Kawehilani 5; SalasFerguson, Sinclair; Planning Board of Appeals Subject: RE: lo Processing BOA Prehearing Conference Attachments: Appellant lo Processing's Objection to Record on Appeal 4894-5780-8783 v....pdf All, Attached is a copy of Appellant's objection to the record on appeal. I have tried to file on EPIC multiple times over the last 20 minutes but the system does not seem to be accepting the upload. Is someone able to upload to EPIC? Or, alternatively, can we arrange a time so we can troubleshoot how I can upload? Thank you very much and I hope that everyone has a good weekend. Best, Ian From: Ian R. Wesley-Smith Sent: Tuesday, September 17, 2024 5:38 PM To: 'Wan, Sylvia A'; Agustin, Noah Cc: Patrick K. Wong; Lactaoen, Kawehilani S; SalasFerguson, Sinclair; Planning Board of Appeals Subject: RE: Io Processing BOA Prehearing Conference Sylvia, That approach is fair and makes sense to us. Thanks to both you and the Chair for the consideration and quick response. Best Regards, Ian From: Wan, Sylvia A [mailto:SylviaA.Wan@hawaiicounty.gov] Sent: Tuesday, September 17, 2024 3:46 PM To: Ian R. Wesley-Smith; Agustin, Noah Cc: Patrick K. Wong; Lactaoen, Kawehilani S; SalasFerguson, Sinclair; Planning Board of Appeals Subject: RE: Io Processing BOA Prehearing Conference 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. Hello Ian, I spoke with the Chair. Chair suggests that Io Processing go ahead and fill out the BOA Request for Subpoena form with a requested return prior to 09/27. Attached for your convenience. Please note the requirements of BOA Rule 3-9(b): (b) Subpoena of Documents. Any request for the issuance of a subpoena for the production of documents or records shall be in writing; shall specify the particular document or record, or part thereof, desired to be produced; and shall state the reasons why the production thereof is believed to be material and relevant to the issues involved. The name and address of the person or agency with requested documents shall be inserted in the subpoena, and it shall show at whose request the subpoena is issued. (emphasis added). The Chair will then review your request and decide whether or not to authorize the issuance of the subpoena. In the meantime, please let the Board know if the Department responds to your UIPA request and thus renders the issuance of a subpoena moot. Please include the Planning Board of Appeals boardofappeals@hawaiicounty.gov email in the cc for your email communications. Added presently. 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 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: Ian R. Wesley-Smith<iwesley-smith@carlsmith.com> Sent:Tuesday, September 17, 2024 2:44 PM To:Agustin, Noah<Noah.Agustin@hawaiicounty.gov>;Wan, Sylvia A<SylviaA.Wan@hawaiicounty.gov> Cc: Patrick K. Wong<pwong@carlsmith.com>;Tavares, Sherilyn K. <Sherilyn.Tavares@hawaiicounty.gov>; Lactaoen, Kawehilani S<KawehilaniS.Lactaoen@hawaiicounty.gov>; SalasFerguson, Sinclair <Sinclair.SalasFerguson@hawaiicounty.gov> Subject: RE: to Processing BOA Prehearing Conference Hi Sylvia, 2 I hope that all is well. We would like to request a quick status conference in the above-captioned matter, if the Chair is available either tomorrow 9/18 or Thursday 9/19. We are requesting a status conference to request assistance in obtaining relevant evidence for the October 11 hearing. As was discussed at the pre-hearing conference, DPW did not provide the Record on Appeal until September 13. Although DPW has now provided the Record, we believe that it is unfortunately incomplete. We will be filing objections on the deadline this Friday. In the meantime, we served a public record request(UIPA) on August 30, but DPW has not responded with a production of records within 10 business days, as required under HRS Chapter 91 and the Office of Information Practice's administrative rules. See https://oip.hawaii.gov/laws-rules-opinions/rules/quick-guide-to-oips-administrative-rules/. In short: (1)the Record on Appeal does not contain all records lo Processing needs; and (2) the UIPA request seeking additional records is pending/overdue and we have no idea if or when DPW may comply. Given the upcoming exhibit and witness list deadlines (on 9/27), we would like to discuss these matters with the Chair, including whether she or the Board would be amenable to issuing a document subpoena for evidence that lo Processing needs for the hearing. Our hope is that we can work with the BOA and DPW to get all relevant evidence and then proceed with the October 11 hearing. Thank you, Ian From: Agustin, Noah [mailto:Noah.Agustin@hawaiicounty.gov] Sent: Monday, September 9, 2024 3:55 PM To: Ian R. Wesley-Smith Cc: Patrick K. Wong; Tavares, Sherilyn K.; Lactaoen, Kawehilani S; Wan, Sylvia A; SalasFerguson, Sinclair Subject: RE: Io Processing BOA Prehearing Conference 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. Good Afternoon, Ian, Please find attached the Zoom link for tomorrow's pre-hearing conference. Let me know if you have any questions. The Office of the Corporation Counsel is inviting you to a scheduled ZoomGov meeting. Topic: SAW: Pre-Hearing Conference re: l'o Processing Company, BOA 23-065 Time: Sep 10, 2024 09:00 AM Hawaii Join ZoomGov Meeting https://www.zoomgov.com/j/1613581365?pwd=MnFnNFRpNU1 oZS9mM29veXhKTFJsUTO9 Meeting ID: 161 358 1365 Passcode: 691970 One tap mobile +16692545252„1613581365# US(San Jose) +16692161590„1613581365# US(San Jose) 3 Dial by your location • +1 669 254 5252 US(San Jose) • +1 669 216 1590 US(San Jose) • +1 415 449 4000 US(US Spanish Line) • +1 551 285 1373 US(New Jersey) • +1 646 828 7666 US(New York) • +1 646 964 1167 US(US Spanish Line) Meeting ID: 161 358 1365 Find your local number: https://www.zoomgov.com/u/ab9Zncu4c0 Thank you, Noah Agustin Legal Clerk III to Ryan K. Thomas, Deputy Corporation Counsel, Suzanna Tiapula, Deputy Corporation Counsel, & Sylvia A. Wan, Deputy Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 (808) 961-8251 Email: Noah.Agustin@hawaiicounty.gov From: Ian R. Wesley-Smith <iwesley-smith@carlsmith.com> Sent: Monday, September 9, 2024 3:51 PM To: SalasFerguson, Sinclair<Sinclair.SalasFerguson@hawaiicounty.gov> Cc: Patrick K. Wong<pwong@carlsmith.com>;Tavares, Sherilyn K. <Sherilyn.Tavares@hawaiicounty.gov>;Agustin, Noah <Noah.Agustin@hawaiicounty.gov>; Lactaoen, Kawehilani S<KawehilaniS.Lactaoen@hawaiicounty.gov>; Wan, Sylvia A <SylviaA.Wan@hawaiicounty.gov> Subject: to Processing BOA Prehearing Conference Importance: High Hi Sinclair and Everyone- Has a zoom link been circulated for the prehearing conference tomorrow? I apologize if I missed it. Thank you, Ian IAN R.WESLEY-SMITH Partner I Carlsmith Ball LLP a rls mith Ball P A LIMITED LIABILITYLAW PkRTP EPSHIP 121 Waianuenue Avenue 4 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. 5 CARLSMITH BALL LLP PATRICK WONG# 5878 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, APPELLANT I`O PROCESSING Appellant, COMPANY INC.'S OBJECTION TO RECORD ON APPEAL; CERTIFICATE vs. OF SERVICE STEPHEN M. PAUSE, DIRECTOR, Hearing: DEPARTMENT OF PUBLIC WORKS Date: October 11, 2024 Time: 9:30 a.m. Appellee. 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 OBJECTION TO RECORD ON APPEAL 4894-5780-8783.1.071717-00001 Comes now Appellant I`o Processing Company Inc.'s ("Appellant" or"I`o Processing") by and through their attorneys, Carlsmith Ball LLP, and objects to the Record on Appeal, filed by Appellee Department of Public Works ("DPW") on September 13, 2024. Board of Appeals Rules of Practice and Procedures Rule 3-13(h), titled Record on Appeal,provides: "In all appeals of Director decisions before the Board, the entire record or file from the Director shall be submitted to the Board and other parties." By its plain language, Rule 3-13 requires DPW to submit its "entire record or file" as the record on appeal. DPW indisputably has not submitted its "entire record or file" on I`o Processing's application for an agricultural exemption. DPW has submitted only three documents: (1) I`o Processing's Declarations of Compliance for an agricultural exemption under HRS § 46-88; (2) an email chain where the latest email is dated January 13, 2023; and(3) an email chain where the latest email is dated February 10, 2023. I`o Processing appreciates DPW's efforts to get a record on appeal filed and has no doubt that DPW did its best to choose documents showing its position. However, I`o Processing objects to the record as incomplete and not consisting of DPW's "entire file", including, without limitation, as follows: • No Policies or Procedures: DPW submits an email, dated January 9, 2023, in which Mr. Joel Fitzgerald, on behalf of DPW, informs I`o Processing "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 acknowledgment/clarification." ROA, Doc. 2,p.4. However, DPW's record on appeal does not contain any policies and procedures regarding the declarations, nor any revised policies and procedures. DPW's policies and procedures are part of the file and should be included in the record on appeal. 4894-5780-8783.1.071717-00001 2 • No Internal Emails: DPW's record on appeal contains only two email chains, both of which consist of emails exchanged between DPW and I`o Processing or its attorneys. ROA, Doc 2; Doc. 3. The record on appeal does not contain a single email concerning DPW's internal discussions or decision-making. I`o Processing believes that all official (non-privileged) emails authored by DPW referring to I`o Processing's application are part of the file and should be included in the record on appeal. Even the two email chains included in the record on appeal make clear that DPW's decision-making is contained in additional emails that DPW did not include in the record on appeal: o An email from Mr. Fitzgerald, dated January 13, 2023, states that he"was able to have a discussion with my supervisors and unfortunately these structures do not qualify to utilize the HRS 46-88 exemption." See ROA Doc. 2,p.2. Any conversations with supervisors that are memorialized in emails or the file are part of the record of DPW's decision and should be included. 4894-5780-8783.1.071717-00001 3 o By email dated January 13, 2023, Mr. Kelly Wilson denied I`o Processing's application on the grounds that an "[a]pplication for building Permit is required." See ROA Doc. 2,p.1. In the same email, Mr. Wilson confirmed that this was DPW's "final decision." Id. However, a month later, in an email dated February 10, 2023, Ms. Julann Sonomura contradicted that and stated that"we are still in discussion and have not made a final decision." See ROA Doc. 3,p.1. Ms. Sonomura also offered a different position on behalf of DPW: That I`o Processing could qualify for an agricultural exemption, but would need "compliance with relevant building codes and must be a County pre-approved structure." Id. In short, DPW's record on appeal contains two different agency decisions (one in January 2023 and one in February 2023), which contradict one another. DPW's internal communications concerning the change in position are part of the file and should be included in the record on appeal. These internal communications should include all of Mr. Kelly Wilson's and Ms. Julann Sonomura's emails regarding I`o Processing and the application. • No Emails After February 10, 2023: On February 10, 2023, I`o Processing's attorney informed DPW that I`o Processing was filing an appeal, and proceeded to do so. See ROA Doc. 3,p.2. After the appeal was filed, Ms. Sonomura, on behalf of DPW, responded with an opinion on the requirements for pre-approval that was different from the original January 13, 2023 denial (discussed above). See ROA Doc. 2,p.1. DPW submitted the January 13 and February 10 decisions as the record on appeal. However, in the 18 months after that, DPW made 5 more decisions on what was required for an agricultural exemption, each of which differed from the last-- including on March 1, 2023, November 14, 2023, November 27, 2023, June 10, 2024, and July 22, 2024. The shifting nature of DPW's decision-making is a key part of the appeal, and DPW should include its entire file, including all decisions offered to I`o Processing over the years, in the record of appeal. DPW's internal communications concerning each decision are also part of the file and should be included in the record on appeal. 4894-5780-8783.1.071717-00001 4 A complete record on appeal is important, because I`o Processing is appealing DPW's decision on the grounds that it was "arbitrary and capricious." "Arbitrary" is defined as "depending on individual discretion; of, relating to, or involving a determination made without consideration of or regard for facts, circumstances, fixed rules, or procedures." See Black's Law Dictionary (12th ed. 2024). "Capricious" is defined as "characterized by or guided by unpredictable or impulsive behavior" and"contrary to the evidence or established rules of law." Id. Relevant here, an administrative agency's decision is arbitrary or capricious where the standard applied by the agency is undefined and"unclear," and depends on incalculable subjective determinations. See Connections New Century Pub. Charter Sch. v. Windward Plan. Comm'n, 146 Haw. 155, 156, 456 P.3d 1002, 1003 (Ct. App. 2020) ("How much `community concern,' however calculated, is required before a special permit is found to be contrary to the general plan is unclear and is ripe for arbitrary and capricious abuse.") (emphasis added). DPW's complete file will help I`o Processing and the Board determine whether DPW acted arbitrarily and capriciously. First, DPW's policies/procedures, or lack thereof, is relevant to whether DPW made a "determination . . . without consideration of. . . fixed rules, or procedures." See Black's Law Dictionary (12th ed. 2024). In January 2023, DPW admitted that it"was currently revising policies and procedures regarding the declarations" and the inspector had"a few issues [he] require [sic] department acknowledgement/clarification." This either means that DPW did not have a policy or procedure applicable to agricultural exemptions, or that DPW was changing an existing policy/procedure specifically in response to I`o Processing's request for an exemption. The details on the policies/procedures, and any amendments to the same, will reveal whether DPW applied HRS § 46-88 using fixed, objective standards, or using never-before-applied, subjective standards developed specially for I`o Processing -- of the type that Hawai`i courts have recognized are "ripe for arbitrary and capricious abuse." See Connections New Century Pub. Charter Sch., 146 Haw. at 156, 456 P.3d at 1003. 4894-5780-8783.1.071717-00001 5 Second, DPW's internal (non-privileged) emails are relevant to whether its approval process was "characterized by or guided by unpredictable or impulsive" standards of review. See Black's Law Dictionary (12th ed. 2024). I`o Processing believes that DPW made shifting, inconsistent decisions -- from verbal assurances that an exemption would apply in February 2022, to an outright denial in January 2023, to at least six different sets of criterion for an agricultural exemption between February 2023 and July 2024. Put simply, DPW created a moving target that no applicant for an agricultural exemption, including I`o Processing, could realistically plan for or meet. If that allegation is borne out by evidence, then the Board would be empowered to conclude that DPW's pre-approval process relied on"unclear" and incalculable standards and was therefore arbitrary and capricious. See Connections New Century Pub. Charter Sch., 146 Haw. at 156, 456 P.3d at 1003. DPW's internal (non-privileged) emails will provide valuable information on its decision-making process, which will show whether it had a rational basis for its decisions. The foregoing is made under the Board of Appeals Rules and in accordance with the Scheduling Order. I`o Processing respectfully thanks the Board and the Chair for their consideration. DATED: Hilo, Hawai`i, September 20, 2024. /s/Ian R. Wesley-Smith PATRICK K. WONG IAN R. WESLEY-SMITH Attorneys for Appellant I'O PROCESSING COMPANY INC. 4894-5780-8783.1.071717-00001 6 CARLSMITH BALL LLP PATRICK WONG# 5878 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 I'O 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 8, 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 4894-5780-8783.1.071717-00001 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, September 20, 2024. /s/Ian R. Wesley-Smith PATRICK WONG IAN R. WESLEY-SMITH Attorneys for Appellant I'O PROCESSING COMPANY INC. 4894-5780-8783.1.071717-00001 2