HomeMy WebLinkAbout2024-10-28 DPW Response to Appellants Subpoenas DeVera, Ashley
From: SalasFerguson, Sinclair
Sent: Monday, October 28, 2024 4:16 PM
To: Planning Board of Appeals
Cc: Wan, Sylvia A; Patrick K. Wong; Ian R. Wesley-Smith
Subject: Public Works' Response to 1'O Processing's Subpoena Requests
Attachments: DPW's response to 1'O's Processing's Subpoena Requests, PL-BOA-2023-000065.pdf
Hi BOA,
Attached is Public Works' response to 1'O Processing's request for subpoenas.
Thank you.
Sinclair
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ELIZABETH A. STRANCE 4715
Corporation Counsel
SINCLAIR SALAS-FERGUSON 9398
Deputy Corporation Counsel
Office of the Corporation Counsel
County of Hawai`i
101 Aupuni Street, Suite 325
Hilo, Hawai`i 96720
Telephone: (808) 961-8251
Facsimile: (808) 961-8622
E-mail: sinclair.salasferguson@hawaiicounty.gov
Attorneys for Appellee,
STEPHEN M. PAUSE, P.E., DIRECTOR,
DEPARTMENT OF PUBLIC WORKS,
COUNTY OF HAWAI`I
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAII
STATE OF HAWAII
I`O PROCESSING COMPANY INC., CASE NO.: PL-BOA-2023-000065
Appellant,
vs. PUBLIC WORKS' RESPONSE TO I`O
PROCESSING'S REQUESTS FOR
STEPHEN M. PAUSE, P.E., DIRECTOR, WITNESS AND DOCUMENT SUBPOENAS;
DEPARTMENT OF PUBLIC WORKS, CERTIFICATE OF SERVICE
COUNTY OF HAWAI`I,
Appellee. Hearing:
Date: November 15, 2024
Time: 9:30 a.m. in Hilo
PUBLIC WORKS' RESPONSE TO I`O PROCESSING'S
REQUESTS FOR WITNESS AND DOCUMENT SUBPOENAS
Appellee STEPHEN M. PAUSE, P.E., DIRECTOR, DEPARTMENT OF PUBLIC
WORKS, COUNTY OF HAWAII("Public Works"), by and through its attorney, Sinclair Salas-
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Ferguson, Deputy Corporation Counsel, hereby submits Public Works' Response to I`o
Processing's Requests for Witness and Document Subpoenas.
A. INTRODUCTION
On or about February 10, 2023, I'O Processing ("Appellant")filed an appeal with the
County of Hawai`i's Board of Appeals ("BOA"). Appellant appealed "the determinations made
by the [the Director of Public Works] by and through Kelly Wilson, in his capacity as the Deputy
Building Chief[for Public Works], dated January 13, 2023, denying the approval of Declarations
of Compliance for agricultural buildings . . . and requiring the processing of building permits . .
." (See Appellant's Petition, page 1). Shortly after Appellant filed its appeal, Public Works
engaged in settlement negotiations with Appellant. Public Works was under the impression that
the subsequent settlement negotiations would not be used as evidence in this contested case
proceeding.
Public Works provided the record on appeal, which consists of the public records "that
are directly related to the" decision on appeal. See BOA Rule 1-3(21) (defining the record on
appeal ("ROA") as the "public records from the department that are directly related to the
Director's decision for the appeal in question."). The decision on appeal is the January 13, 2023
decision by Kelly Wilson. The ROA contains "Document 1," which are Appellants'
Declarations of Compliance for manufactured pre-engineered structures that it believes are
exempt from building permit and building code requirements under Hawaii Revised Statutes
("HRS"), Section 46-88. "Document 2" contains the decision that Appellant is appealing, which
denies Appellants' request for exemptions under FIRS 46-88. "Document 3" shows that the
January 13, 2023 decision by Kelly Wilson was not the"final decision of the Director regarding
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matters within [his]jurisdiction . . ." See BOA Rule 8-2 (The BOA can only hear appeals filed
by a person "aggrieved by the final decision of the Director . . .")
This appeal raises a host of technical and novel legal issues; however, the issue for the
BOA to consider is whether Public Works' January 13, 2023 decision to deny Appellants'
Declarations of Compliance violated a law or was clearly erroneous, arbitrary, capricious, an
abuse of discretion, or a clearly unwarranted exercise of discretion.
B. LEGAL FRAMEWORK AND APPLICABLE LAW
I. Contested case hearings.
The BOA does not have jurisdiction to hear issues that arise under Hawaii's Uniform
Information Practices Act. HRS, "Chapter 92F," entitled "Uniform Information Practices Act,"
("UIPA") allows the public to ask its government for a copy of a government record. However,
the public is not entitled to all government records. There are exceptions to disclosure, e.g., an
agency is not required to "grant an individual access to personal records, or information in such
records . . . including reports and materials, related to an upcoming, ongoing, or pending civil or
criminal action or administrative proceeding against the individual." HRS § 92F-22(4); e.g., HRS
§ 92F-13. "Government records; exceptions to general rule" has other exceptions to the general
rule of disclosure. When an agency denies a person access to a government record, that person
can file an appeal with the State of Hawaii's Office of Information Practice or file an action to
compel disclosure in Circuit Court. See HRS §§ 92-15, 92-15.5. The BOA does not have
jurisdiction over and does not decide questions or appeals under the UIPA.
Additionally, the BOA is not subject to the Hawaii Rules of Civil Procedure ("HRCP").
See HRCP Rule 1(a) ("These Rules govern the procedure in the circuit courts of the State in all
suits of a civil nature whether cognizable as cases at law or in equity . . ."). However, the BOA
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is subject to FIRS "Chapter 91. Administrative Procedure" which governs contested cases, and
the BOA's Rules of Practice and Procedures. Chapter 91 provides the general framework for
agencies such as the BOA that are authorized by law to adjudicate contested cases:
1. Mediation is encouraged and no"mediation statements or settlement offers shall be
admitted into any subsequent proceedings involving the case, including the contested
hearing of a court proceeding." FIRS § 91-8.5(a), (d).
2. "Opportunities shall be afforded all parties to present evidence and argument on all
issues involved . . ." FIRS § 91-9(d).
3. "Any procedure in a contested case may be modified or waived by stipulation of the
parties and informal disposition may be made of any contested case by stipulation,
agreed settlement, consent order, or default." FIRS 91-9(e).
4. "No matters outside the record shall be considered by the [BOA] in making its
decision except as provided herein." FIRS § 91-9(h).
5. "[Except for mediation statements or settlement offers under FIRS § 91-8.5], any oral
or documentary evidence may be received, but every agency shall as a matter of
policy provide for the exclusion of irrelevant, immaterial, or unduly repetitious
evidence and no sanction shall be imposed or rule or order be issued except upon
consideration of the whole record or such portions thereof as may be cited by any
party and as supported by and in accordance with the reliable, probative, and
substantial evidence. The agencies shall give effect to the rules of privilege
recognized by law[.]" HRS § 91-10(1).
6. "Every party shall have the right to conduct such cross-examination as may be
required for a full and true disclosure of the facts, and shall have the right to submit
rebuttal evidence[.]" HRS § 91-10(3).
7. "Except as otherwise provided by law, the party initiating the proceeding shall have
the burden of proof, including the burden of producing evidence as well as the burden
of persuasion. The degree or quantum of proof shall be a preponderance of the
evidence." HRS § 91-10(5).
8. "No official of an agency who renders a decision in a contested case shall consult any
person on any issue of fact except upon notice and opportunity for all parties to
participate, save to the extent required for the disposition of ex parte matters." FIRS §
91-13.
Chapter 91 also requires that each"county board" that is "authorized by law . . . to adjudicated
contested cases" "shall . . . [a]dopt rules of practice, setting forth the nature and requirements of
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all formal and informal procedures available, and including a description of all forms and
instructions used by the agency." HRS §§ 91-1, 91-2(a)(1). The BOA satisfied this requirement
by enacting its Rules of Practice and Procedures.
BOA Rule 3-9 allows for the subpoena of witnesses and documents if certain criteria are
met. The BOA can issue a subpoena for a"particular document or record, or part thereof' if it is
"material and relevant to the issues involved." BOA Rule 3-9(b). The BOA can issue a
subpoena for a witness if it determines that the proposed testimony is "material and relevant to
the issues involved." BOA Rule 3-9(a).
Appellant appears to cite Mauna Kea Anaina Hou v. Bd. of Land &Nat. Res., 136 Haw.
376, 391, 363 P.3d 224, 239 (2015)in support of its position that that BOA should apply HRCP
Rule 26's discovery principles to contested cases before the BOA. Contested cases are not civil
trials governed by the HRCP. There is no discovery in a contested case. In a contested case, the
appellant has "the burden of proof, including the burden of producing evidence as well as the
burden of persuasion." HRS § 91-10(5). Appellants can ask for a subpoena for a specific record
but there is no provision that allows for broad or narrow discovery requests.
A contested case is a"proceeding in which the legal rights, duties, or privileges of
specific parties are required by law to be determined after an opportunity for agency hearing."
HRS § 91-1. "Once a contested case hearing is mandated, due process requires that the parties
be given a meaningful opportunity to be heard." Mauna Kea Anaina Hou, 136 Haw. at 391, 363
P.3d at 239 (citation omitted). In Mauna Kea Anaina Hou, the Hawai`i Supreme Court held that
the "[Board of Land and Natural Resources'] decision to vote on the permit prior to the contested
case hearing denied Appellants a meaningful opportunity to be heard in both reality and
appearance." Id. 136 Haw. at 391, 363 P.3d at 239.
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When the Court said that"[a] contested case hearing affords parties extensive procedural
protections similar to those afforded parties in a civil bench trial before a judge," it was referring
to the Board of Land and Natural Resources' ["BLNR"] rules related to contested case hearings.
Id., ("These protections include the opportunity to issue subpoenas for witnesses to testify under
oath or produce documents, to cross-examine witnesses under oath, and to present evidence by
submitting documents and testimony under oath in support of their positions. See HAR §§ 13-1-
32(c), (g); 13-1-33(a), (b); 13-1-35").
The Court was not saying that the HRCP should apply to contested cases. The Court was
describing the BLNR's contested case rules, including the following, which mimic the BOA's
rules: HAR § 13-1-32(c) states that the presiding officer has the power to "compel attendance of
witnesses and the production of documentary evidence . . ." HAR § 13-1-32(g) states that each
party "shall have the right to conduct such cross-examinations of witnesses as may be required to
a full and true disclosure of the relevant facts and shall have the right to submit rebuttal evidence
. . ." HAR §13-1-33(a) states that parties can request subpoenas for witnesses or documents;
however, the requestor must specify why the testimony is "material and relevant to the issues
involved" and why the "particular document or record, or part thereof' is "material and relevant
to the issues involved."
IL FIRS § 46-88 Agricultural buildings and structures; exemptions from
building and building code requirements.
In 2012, HRS § 46-88 was enacted and the purpose was:
SECTION 1. The legislature finds that existing building codes and permitting
processes are overly burdensome to the State's commercial agriculture and
aquaculture industries and add substantial time and costs to establishing or
expanding farming and ranching enterprises in the State.
The purpose of this Act is to encourage and support diversified agriculture and
agricultural self-sufficiency in the State by providing an exemption from building
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permit requirements for nonresidential buildings or structures on commercial
farms and ranches located outside of the urban district under certain conditions.
Senate Bill No. 2646, Act 114. Act 114 allowed an exemption for certain "manufactured pre-
engineered commercial buildings[] or structure[s]" if the building's or structure's specifications
comply with appropriate county codes and received pre-approval by a county or building official.
Id. However, no electrical or plumbing systems could be connected to the building without first
obtaining an electrical or plumbing permit. Finally, disposal of wastewater from any building or
structure was required to comply with FIRS Chapter 342D. "Water Pollution," which is
administered by the State of Hawaii's Department of Health. FIRS § 46-88 was amended again
in 2013, 2017, 2020, and 2021.
In relevant part, HRS § 46-88 currently states:
the following buildings, structures, and appurtenances thereto shall be exempt
from building permit requirements when compliant with relevant building codes
or county, national, or international prescriptive construction standards:
(1)Nonresidential manufactured pre-engineered and county pre-approved
commercial buildings and structures consisting of a total square footage greater
than one thousand square feet but no more than eight thousand square feet;
(8)No electrical power and no plumbing systems shall be connected to the
building or structure without first obtaining the appropriate county electrical or
plumbing permit, and all such installations shall be installed under the supervision
of a licensed electrician or plumber, as appropriate, and inspected and approved
by an appropriate county or licensed inspector or, if a county building agency is
unable to issue an electrical permit because the building or structure is permit-
exempt, an electrical permit shall be issued for an electrical connection to a meter
on a pole beyond the permit-exempt structure in accordance with the installation,
inspection, and approval requirements in this paragraph;
9)Disposal of wastewater from any building or structure constructed or installed
pursuant to this section shall comply with chapter 342D;
"Agricultural building" means a development, including a nonresidential building
or structure, built for agricultural or aquacultural purposes, located on a
commercial farm or ranch constructed or installed to house farm or ranch
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implements, agricultural or aquacultural feeds or supplies, livestock, poultry, or
other agricultural or aquacultural products, used in or necessary for the operation
of the farm or ranch, or for the processing and selling of farm or ranch products.
"Manufactured pre-engineered commercial building or structure" means a
building or structure whose specifications comply with appropriate county codes,
and have been pre-approved by a county or building official.
Hawaii County Code ("HCC"), Chapter 5, the Construction Administrative Code states
that the Director of Public Works is the authority having jurisdiction and that, amongst other
duties, he shall "[a]dminister and enforce the provisions of the construction code" and "[r]ender
interpretations of the construction code and adopt policies and procedures that are consistent
with the intent and purpose of this code." HCC §§ 5-1-5, 5-2-2(1), (2). A building permit is not
"required" for agricultural buildings, structures, and appurtenances exempt from building permit
and building code requirements pursuant to FIRS § 46-88; provided no electrical work or
plumbing work is proposed. HCC § 5-3-22(a)(6). HCC Chapter 5 does not apply to:
Agricultural buildings, structures, and appurtenances without electrical power and
plumbing systems are exempt from permit and construction code requirements
pursuant to section 46-88, Hawai`i Revised Statutes, except as otherwise provided
for in this construction code. No electrical power and no plumbing systems shall
be connected to a building or structure without first obtaining a permit for
electrical or plumbing work.
HCC § 5-1-3(8).
FIRS § 46-88 was enacted to cut costs for farmers and ranchers to construct simple
structures such as greenhouses, storage sheds, and fish tanks that pose little safety risk to the
public.
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C. ANAYLSIS
I. Witness Subpoenas
The decision being appealed from is the January 13, 2023 decision issued by Kelly
Wilson; therefore, Public Works does not object to Appellant's request for a subpoena for Kelly
Wilson. From Public Works' perspective, the only relevant Public Works' employee is the
Director, Stephen Pause, because he is the authority having jurisdiction, i.e., the person that
administers the construction code and its exemptions, including HRS § 46-88. Public Works
objects to the subpoena requests for Julann Sonomura, Chris Domino, Kehau Dumuguin, and
Joel Fitzgerald because none of them made the decision that is being appealed or is the authority
having jurisdiction.
II. Subpoena Duces Tecum
Appellant's request for a subpoena duces tecum should be denied because Appellant is
not requesting a"particular document or record, or part thereof," as required by BOA Rule 3-
9(b). Appellant's request is discovery request, which is not allowed under FIRS Chapter 91 or
the BOA's Rules. Furthermore, all post January 13, 2023 settlement negotiations should not be
used as evidence in this proceeding. As persuasive authority: See Hawaii Rules of Evidence,
Rule 408 ("Evidence of conduct or statements made in compromise negotiations or mediation
proceedings is likewise not admissible."); FIRS § 91-8.5(a), (d) (mediation is encouraged in
contested cases and no"mediation statements or settlement offers shall be admitted into any
subsequent proceedings involving the case, including the contested hearing of a court
proceeding.").
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D. CONCLUSION
Contested case hearings provide appellants with procedural due process, which consists
of"notice and an opportunity to be heard at a meaningful time and in a meaningful manner."
Mauna Kea Anaina Hou, 136 Haw. at 389, 363 P.3d at 237 (citation omitted). Appellant will
have an opportunity to present evidence and argument at the hearing on November 15, 2024.
Contested cases are not circuit court or federal court cases, where the parties engage is
substantial discovery, motions, and lengthy trials. In this case, Appellant is appealing a decision
issued on January 13, 2023, which denied their requests for exemptions under FIRS § 46-88;
therefore, all evidence put before the BOA should be relevant and material as to whether Public
Works' denial violated a certain law or was clearly erroneous, arbitrary, capricious, an abuse of
discretion, or a clearly unwarranted exercise of discretion. Based on the above, Public Works
requests that the subpoena for documents be denied in full and that the subpoena request for
witness testimony be denied as it pertains to Julann Sonomura, Chris Domino, Kehau Dumuguin,
and Joel Fitzgerald.
Dated: Hilo, Hawai`i, October 28, 2024 STEPHEN M. PAUSE, P.E.
Director, Department of Public Works,
County of Hawai`i, Appellee
By: /s/ Sinclair Salas-Ferguson
SINCLAIR SALAS-FERGUSON
Deputy Corporation Counsel
Attorney for Public Works
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BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAII
STATE OF HAWAII
I'O PROCESSING COMPANY INC., CASE NO.: PL-BOA-2023-000065
Appellant,
vs. CERTIFICATE OF SERVICE
STEPHEN M. PAUSE, P.E., DIRECTOR,
DEPARTMENT OF PUBLIC WORKS, Hearing:
COUNTY OF HAWAI`I, Date: November 15, 2024
Time: 9:30 a.m. in Hilo
Appellee.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing document
was served upon the parties below by electronic mail service on October 28, 2024:
1. I'o Processing Company Inc., Appellant pwong@carlsmith.com
c/o its Attorneys Patrick K. Wong& iwesley-smith@carlsmith.com
Ian R.Wesley-Smith
2. Sylvia Wan, Deputy Corporation Counsel SylviaA.Wan@hawaiicounty.gov
Attorney for the Board of Appeals
Dated: Hilo, Hawai`i, October 28, 2024. STEPHEN M. PAUSE, P.E.,
Director, Department of Public Works,
County of Hawai`i, Appellee
By: /s/ Sinclair Salas-Ferguson
SINCLAIR SALAS-FERGUSON
Deputy Corporation Counsel
Attorney for Public Works
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