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HomeMy WebLinkAbout2013-03-07 Windward Transcript Connections WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT MARCH 7, 2013 CONNECTIONS NEW CENTURY A regularly advertised hearing on the application of PUBLIC CHARTER SCHOOL /CBESS (SPP 12-138) was called to order at 9:51 a.m. in the County of Hawai‘i, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i, with Chairman Dean Au presiding. COMMISSIONERS PRESENT: Dean Au, Ronald Gonzales, Wallace Ishibashi, and Raylene Moses STAFF PRESENT: Ivan Torigoe (Deputy Corporation Counsel), B. J. Leithead Todd (Planning Director), Daryn Arai (Planning Program Manager), Phyllis Fujimoto (Staff Planner), Maija Cottle (Staff Planner), Jeff Darrow (Staff Planner), and Sharon Nomura (Secretary) And approximately 35 people from the public in attendance. ABSENT AND EXCUSED: Stephen Ono APPLICANT: CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL /CBESS (SPP 12-138) Continued hearing on an application for a Special Permit to develop a K to 12 charter school campus with dorm facilities and related uses on approximately 70 acres of land situated in the State Land Use Agricultural District. The property is located on both the southwest and northeast sides of Edita Street near its intersection with Kaūmana Drive and adjoining the Pacific Plantation Subdivision in Kaūmana, South Hilo, Hawai‘i, TMK: 2-5-006:141. AU: Okay, applicant number three CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL/CBESS, Special Permit No. 12-138. We are going to do something different here. Before you guys get seated, we are going to go, I'd like to entertain a motion, oh, Commissioner Gonzales is not here yet. I thought he was here. There is Commissioner Gonzales. I'm sorry, I thought you were here. GONZALES: Sorry. I was outside. AU: What I'd like to do is I'd like to entertain a motion for an executive session prior to getting started, just to get our Commissioners up to speed. Certain things have transpired since the last meeting; and, maybe, Corporation Counsel can explain. TORIGOE: Yes. So, Mr. Chairman, the purpose of this executive session would be to consult with me and to get legal counsel regarding this application. Is that correct? AU: Yes, that’s correct. So ready to entertain a motion? 1 GONZALES: I’d like to propose a motion to go into executive session. ISHIBASHI: Second. AU: Okay. All in favor, aye? COMMISSIONERS: Aye. AU: Opposed? Thank you guys very much. You guys have to leave the room. And we’ll call you guys right back in. Thank you very much. Thank you, guys. EXECUTIVE SESSION – The Commission went into executive session at 9:51 a.m. The Commission came out of executive session at 10:18 a.m. by a motion made by Commissioner Ishibashi, seconded by Commissioner Gonzales, and unanimously carried by a voice vote of all Commissioners in attendance. AU: The Windward Planning Commission meeting will come back to order from Executive Session. Staff, can you please give us a quick update, status report, on where we’re at. Is Mr. Arai here? DARROW: I’ll give the update. Thank you, Mr. Chairman. Again, this is the, in reference to the application for Connections New Century Public Charter School and CBESS for a special th permit application. At our last hearing, I believe it was January 10 the Commission made and seconded a motion to deny the special permit application. At that time Corporation Counsel advised that before voting the Planning Commission needs to follow Planning Commission Rule 4-22, which applies when not all members were present at all the hearings. No. 1, Proposed Findings of Fact, Conclusions of Law, Decisions and Order must be served on the parties. No. 2, adversely affected parties have an opportunity to file exceptions and have arguments. No. 3, the Planning Commission is to consider the whole record before making a decision. The Planning Commission Chairman asked Corporation Counsel to prepare Findings of Fact, Conclusions of Law and Decision and Order and to arrange filing a schedule with the parties. And, lastly, the parties had concerns about the proper use of contested case procedures. So Corporation Counsel reviewed the long-standing Planning Commission practice. With that, I’ll direct it to our Corporation Counsel. AU: Thank you. TORIGOE: Okay. Mr. Chair? AU: Yes. TORIGOE: Yeah. Let me just pick it up from there, just to update you on what I did when I realized that there were some concerns about the contested case procedures. As you know, I guess, the practice of the Planning Commission has been not to allow for application for intervention or for contested cases in these kinds of special permits where it could be denied 2 here, or if it’s approved here it goes up to the LUC. There was an assumption that at the LUC contested case procedures would be available. So I reviewed that practiced and looked at the LUC rules and talked to the LUC staff. And basically what I found were two things: One is that, you have to keep in mind that at any time there is an application like a special permit where the Planning Commission’s decision is the final one before somebody can take an appeal, that is considered a contested case for legal purposes. And that means that even if there isn’t any opposition, even if there isn’t an intervenor, the applicant himself is a party to a contested case; and that’s automatic in your rules as well. Okay. And that means that an applicant can avail him/herself of contested case procedures that are spelled out in the rules, such as calling witnesses, subpoenaeing evidence, and things like that. When I looked at the procedure that the Planning Commission had been following basically telling the public and the applicant that there will be no contested case procedure here, then that’s problematic. Because if an applicant for a special permit is voted down here, then their next step is to appeal to Circuit Court. But in order to do that, they should have been given the opportunity to use contested case procedures to make a record so that they could, you know, file an appeal with a good record. Okay? So in this case, that’s something to keep in mind. The other thing I found is that when I looked at the LUC rules, they did not make provision for intervention and for contested cases at the LUC level, although they do specifically make provision for intervention and contested case for things like State Land Use Boundary Amendments and anything else other than special permits. And when I talked to the staff there, they basically said that it is not their normal procedure to conduct contested case hearings and have intervention at the LUC level. So basically we cannot rely on the LUC to take care of the intervention and contested case procedures. In fact, they also have the power to remand the case back down to the Planning Commission if they feel that the record is not complete. So with all that in mind, then the, I spoke with the parties’s attorneys and with the Chairperson, and the parties had agreed that the Findings of Fact and Conclusions of Law should be put on hold pending further discussion regarding what the next step should be, you know, in view of the fact that an applicant ought to have some contested case procedure rights, and that the LUC cannot be relied on to do that. So that’s basically where we are today. And you also have, as was mentioned, a motion to deny on the floor. So that also needs to be dealt with. Okay, so that’s where we are right now. AU: Okay, thank you, Mr. Torigoe. Can I have the applicant and their representatives please come forward. Can we pull up another chair. Okay, I have a question before we get started, but I’m going to swear everybody in. So please raise your right hand. Do you affirm and swear to tell the truth on this matter now before the Hawai‘i County Planning Commission? REPRESENTATIVES: Yes. AU: Okay. When it is your turn to speak, please state your name clearly and where you reside. Before we get started, question though, who represents who? And maybe if we can just, if 3 someone can clarify that, or maybe two people clarify that. But please state your name and where you reside first. MORRIS: Monica Morris, Deputy Attorney General, Department of the State Attorney General. I reside in Honolulu, Hawai‘i. I’m here to represent Connections Public Charter School. HONG: Good Morning, Mr. Chairman and Members of the Planning Commission. My name is Ted Hong. I reside in Hilo. I represent CBESS; and with me this morning to my left is Joyce Derbyshire who is the president. DERBYSHIRE: Joan. HONG: Joan. I’m sorry, Joan Derbyshire who is the president of CBESS. DERBYSHIRE: Joan Derbyshire, president of Community Based Educational Support Services which is a 501(c)(3) nonprofit. I live at 27 Elm Drive in Hilo. THATCHER: You want us to keep going? AU: Yeah, I’ll just go ahead and -. Just to get it on record, everybody. THATCHER: Okay. John Thatcher, I’m the principal of Connections Public Charter School. I live in Kaūmana. S. LEE LOY: Aloha, Chairman and Commissioners. My name is Sue Lee Loy. I live in Pana‘ewa. I’m currently doing work for both CBESS and Connections as it relates to land use requirements through the special permit, special permit process. AU: Okay. Does any Commissioners have any questions regarding who represents who at this point? Okay, well, you guys have the floor. You can go ahead, Monica. MORRIS: Thank you. I’m going to start. Thank you, Chair. Thank you, Members of the Commission. I’d like to set out a couple of things; and I thank you for your patience and forbearance. At the outset what I’d like to state for the record is that if the Planning Commission is inclined to deny the special permit application, the applicant hereby requests, and is entitled to, a contested case pursuant to Rule 4-1, and Hawai‘i Revised Statutes Section 205-6. Now with respect to the Commission’s rules on contested case, Rule 4-1 says that, the final sentence says, with respect to this contested case procedure, “It shall therefore be followed in all cases where State statutes provide for direct appeal from the Commission to the Circuit Court.” Now there is such a statute that provides for direct appeal to the Circuit Court. That is found in Hawai‘i Revised Statutes Section 205-6 which speaks to, specifically to special permits. In particular subsection (e), says this, “A denial either by the county planning commission or by the land use commission, or modification by the land use commission, as the case may be, of the desired use shall be appealable to the circuit court of the circuit in which the land is situated and shall be made pursuant to the Hawai‘i rules of civil procedure.” So this statute triggers the contested case process. 4 Now the Commission’s own rules make it clear that a petition for a special permit is different from a contested case. Therefore, the argument that the hearing on the special permit is the contested case absolutely fails. The definition itself of contested case is found in your Rule 1, which provides this, “’Contested case’ means 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.” That is a description and definition of contested case in your own rule, Rule 1-3. So if the Commission is of the mind that the hearing on the special permit was the contested case proceeding itself, that is flawed by your own, your very own rules. As I go on, Rule 4 of the Commission’s rules speak specifically to contested case proceedings. Rule 6 of the Commission’s own rules speak to special permit applications. Those rules are completely different. They are not one and the same. I think what happened in the last hearing that the Commission had in January was that there was an attempt to collapse both the special permit hearing and the contested case procedures into one ball of wax. That is absolutely flawed reasoning. Again, clearly, the rules for contested case are different from the rules for a special permit. Different notice requirements apply, and the procedures are very different. Now the rules, you do have rules. The rules are silent, however. Your rules are silent, however, as to what someone has to do to request a contested case. In this regard I’d like to speak to the petition for standing that was recently submitted. The Connections and CBESS in an abundance of caution not knowing exactly where the Commission was going to go with the special permit, in an abundance of caution, a petition for standing was submitted. The record reflects that Connections financed the filing fee for that. I want to state for the record that that was done in an abundance of caution because the applicant didn’t know what procedures were going to be followed, notwithstanding that your own rules clearly identified the procedures relating to contested case and special permit applications. Based on the actions that were taken at the last Commission hearing, that is why that petition for standing was submitted - and I wanted to address that now - again, in the abundance of caution to preserve its due process rights. I’ve already made an oral request for a contested case on behalf of my client. I wanted to address several more issues just so that the Commission is properly briefed. Now, as I said earlier, your rules are silent as to what someone has to do to request a contested case. In this regard, case law has established precedence, clear, as precedents - if there is no rule, due process notions of fairness absolutely apply. Perry versus Planning Commission sets precedence on this. This is a Hawai‘i Supreme Court Case decided in 1980. The citation is 52 Hawai‘i, 666; and this is what the Hawai‘i Supreme Court ruled – even if there is not a property, a clear property right that is present, nevertheless an application for a special permit constitutes at least, at minimum, a privilege. Therefore, there are still due process rights that apply. These are the due process rights that apply. One, everyone has to understand what procedures will be followed. Secondly, the parties, and in particular the applicant in this case, needs the full opportunity and is entitled by law to a full opportunity to present its case. Thirdly, the notion of fairness of procedures. Those three anchors are what is at minimum required to be provided. Now the public, commission, the Planning Commission, not the applicant, carries the burden of notifying interested parties with respect to due process cases or contested cases. The authority for that can be found in Hawai‘i Revised Statutes Section 205-6 and Rule 4 of your own rules with respect to contested case procedures. I think I’ve addressed everything that I needed to. And so I thank you for your patience. Thank you. 5 AU: I have a quick question. MORRIS: Yes. AU: So you said a petition for standing is, that’s the one you’re talking about, the one that we th just received on March 4, we received it on March 7? Is that the one you’re referring to by a Jonelle Fukushima? th MORRIS: I think the date stamped there is March 4. I think the understanding with respect to th that was, the understanding there was the, as long as it was postmarked by February 28 that would be sufficient. I can’t speak to where that understanding came from, but that was the understanding. AU: Do you know this Jonelle Fukushima? Is she here? MORRIS: Yes. AU: Okay, thank you. You want to add to that? MORRIS: If I could add to that. The school and CBESS, again, in an abundance of caution, just to preserve their contested case rights, they have filled out a petition for standing in a contested case. I don’t believe that’s necessary, because as the applicant they have perfect standing to request a contested case. But if that’s what the Commission wants to solidify the record, they are prepared to submit that. However, I would ask that the $200 filing fee be waived. But, so, again, in an abundance of caution that petition for standing was submitted. We also have other petitions for standing ready to submit. Again, I don’t feel it’s necessary, but to preserve, to preserve the due process and contested case rights. TORIGOE: Mr. Chairman? AU: Ivan. TORIGOE: Yeah. Can I address just real quick – Rule 4-6 of the Planning Commission rules, it says, “In all proceedings where the Commission's action is directly appealable to Circuit Court,” which would include if there’s a denial, the applicant here, and then, “the applicant and the Planning Director will be designated parties to the action.” So I would agree that the applicant is basically an automatic contested case party here and does not need to file any request for a contested case standing. AU: Mr. Hong? HONG: Thank you, Mr. Chairman. Good morning, again. We are here this morning because of a procedural error. And that error has risen to a level where now it affects my client’s constitutional due process rights. And the error was that because we and the Planning Department agreed that if there was going to be a contested case, and we’ve said it too on numerous occasions in these proceedings, the contested was going to occur at the State level. It 6 was in the notices that we set to the community and surrounding property owners. We said it on the record a number of times. Everybody had assumed that. Now it turns out that that notice that was sent to the community, that notice that was sent to the surrounding property owners, that representation that was made at the Planning Commission meetings was wrong. And, you know, we’re not trying to point fingers or say it’s anybody’s fault. It’s just that this is kind of a relatively unusual process, and we’re still kind of finding our way. But we now know what the right way is; and the problem is everybody who is here up to this point was given the wrong information. So what’s the remedy? The remedy is to withdraw the motion, and second, to deny the special permit application, approve Ms. Fukushima’s and the applicant’s request for a contested case, appoint an independent third party hearings officer, and allow us to proceed with the contested case according to the Planning Commission’s procedures. Then when the hearings officer completes the contested case proceedings, puts together his findings or her findings of fact, conclusions of law, they’ll submit it to the Planning Commission. Similar to what happened in the Hu Honua case, the Pepe‘ekeō Point case, they’ll submit it to the Planning Commission. You guys could take a look at it and either adopt it, reject it or, you know, do what you want to do. But my point is given the procedural errors, given the notice requirements under the law, there is a mistake. And that’s the way I see how to correct the mistake. If you choose to proceed along the lines where we’re going today and vote on the motion to deny the permit application, I think any reasonable attorney would come in and say that you just made our day, because that’s going to be an easy appeal. And what the Third Circuit Court is going to say, the remedy on the appeal is you go back to the Planning Commission. They have to appoint a hearings officer and then, you know, the whole thing again. So instead of wasting everybody’s time, I would hope that the Planning Commission takes that into consideration. And I just want to place on the record that in the event that we are required to go to a Third Circuit appeal to request a contested case or say that this was a procedural error that was made and the Planning Commission should have withdrawn the denial motion and appointed an independent hearings officer, in the event that that does occur, you know, we will be asking for our attorney’s fees and cost, because we think that’s unnecessarily delaying the process. If the Chairman, or the Planning Commissioners, has any questions, I’d be happy to answer them. AU: Any questions for Mr. Hong? Anybody else would like to say something? Ms. Lee Loy? S. LEE LOY: Chairman, Commissioners, I was tasked with doing one other thing. You’ve heard enough legal posturing and positioning about what’s before you folks. What I was tasked to do was provide you folks with a quick status report of other items related to this property. What I wanted to do is give you folks a very comprehensive look at other moving pieces related to this piece of property. So what I submitted to the Commission is just a quick update. First and foremost, the general lease with the State Department of Land and Natural Resources st has now been fully executed. Connections now has the general lease as of February 1. As part of that lease, it includes 37 different agreements and covenants that the lessee, Connections, will have to comply with. There are two particular conditions that I want to point out before the 7 Commission and Members of the Planning Department. One is Condition 35. It requires the lessee to remove all trash on the property within 90 days. The clock is now ticking on that component of the condition. As a professional courtesy I’ve been asked by Connections to notify the Planning Department when they commence with that work. Another one is Condition 37. They are required to prepare a boundary survey. I was just notified this morning that they have completed that, although in the report I’ve provided you folks it was supposed to be done by the end of this month. They are now complete. The information has now been transmitted to the Department of Land and Natural Resources. Another component, back in October the property was issued a violation for the fencing and perimeter work that was done. Part of the remedies and the cures for that violation was for them to submit a reforestation or restoration plan. The applicants have done that. And they now have to commence with that work for the reforestation and restoration plan. Since that time, there have been no other violations or concerns from the State’s side. In conjunction with the fencing, there was a grading violation. The applicants have prepared a grading permit. They have received preliminary approval from the Department of Public Works. The plans are currently before the State Historic Preservation Division. Unfortunately that agency is seriously understaffed. We check probably every week, every other week; and we’re just waiting for those approvals. So, you know, I just wanted to kind of show you folks the effort that the applicants go through to comply with other things related to this property. So thank you. AU: Mr. Hong? HONG: I’m sorry, just for the record, on behalf of CBESS we also request a contested case hearing. AU: Ivan? TORIGOE: Yeah, thank you, Mr. Chairman. And I think CBESS was also on the initial application, was it not? HONG: Yes. TORIGOE: Okay, so they would be considered applicants also and automatically parties to the contested case. AU: Okay. Would you, would anybody like to add to that? Okay, well, thank you guys very much. I’d like to call, before I call up our testifiers, I’d like to call up Ms. Amy Self and our Planning Director, BJ. So we do have 18 people signed up to testify; and they’re all going to give their time to Mr. Sidney Fuke. So he has 54 minutes, when we get into that. Can you guys raise you right hand, please. Do you swear and affirm to tell the truth today in front of the Windward Planning Commission? TESTIFIERS: I do. Yes. 8 AU: Please state your name and where you reside before you start. LEITHEAD TODD: Bobbie Leithead Todd, Planning Director. I reside in Hilo. SELF: Deputy Corporation Counsel Amy Self. I represent the Planning Director and the Planning Department. I reside in Hilo. AU: Okay, has our Planning Director’s position changed on this application? LEITHEAD TODD: No, it has not. AU: Okay. Do you guys have any comments on what the applicant is saying or any procedures as we move forward? SELF: The way the Planning Director is viewing the process is that if it’s going to go to contested case hearing then, of course, notice has to go out to the neighbors within the surrounding properties to give them an opportunity to intervene, because I don’t believe that has been addressed. I don’t think they’ve been given an opportunity to intervene. TORIGOE: Mr. Chairman? AU: Go ahead, Ivan. TORIGOE: Yeah, staff indicates that Planning Department did notify everyone who was on the original list of people within the necessary permit, radius distance from the property, as well as additional people. Everyone was given, you know, notice of today’s meeting that included the opportunity for intervention. And this was mailed February 15, 2013. SELF: But the decision for a contested case hasn’t even been made yet. So we don’t, how were they notified since the decision hasn’t even been made as to whether or not -? Is today the contested case hearing or -? TORIGOE: Well, I understand that the notice, they basically informed people that they had the right to file for a contested case and included the usual form. Maybe staff can confirm that. SELF: Well, you know, they would be intervenors, yes, okay. They would be -. AU: Mr. Arai? ARAI: Because of the concerns, regarding procedural concerns that were raised, as part of our normal notification to surrounding property owners regarding the upcoming, today’s meeting, we included in that notice an opportunity for everyone, for the public to file for intervention in a contested case proceeding. Along with that notice was the actual petition that was included in the meeting notice. So as part of advertising today’s meeting, we did include the opportunity for th intervention; and that letter was mailed out of the Planning Department on February 15. 9 SELF: Okay. And in that notice, were they given a deadline for when they had to submit the application by? ARAI: Pursuant to Rule 4, seven days prior to today’s meeting. SELF: Okay. Then the Planning Director will not take a position on what’s before you at this point. AU: Okay. Any questions for the Planning Director and Ms. Self? Okay, thank you, guys. We have 18 testifiers. And just for the record I’m going to say their names and they’re going to give it all to Sidney. So Allen Novak, Layne Novak, David Camacho, Jan Yokota, June Sakamoto, Les Sakamoto, Glenn Tada, Ming Peng, Aileen Fuke, Jeff Gomes, Sidney Fuke, Jeff Gomes, Lorrin Araujo, Margaret Araujo, Fay Sakata, Wayne Kanemoto, Jan Yokoyama, Norine Okuhara, and Bishop. And so, Mr. Sidney Fuke, please come forward. And I need to swear you in before you get started. Do you swear and affirm to tell the truth in front of the Windward Planning Commission today? FUKE: I do. AU: Okay, thank you. Please state your name and where you reside, and get started. FUKE: Morning, Mr. Chairman. My name is Sidney Fuke, and I’m here kind of like reflecting a lot of the community’s feelings at this point in time. I wouldn’t necessarily say it’s unanimous, but it seems to be like a consensus of their position at this point in time. What we’d like to share through a power point is not so much talking about the legalese aspect, you know, of what you’ve just heard over the last 10 or 15 minutes, you know, regarding contested case hearing, so on and so forth, but more just to give, share with the Commission from a lay’s perspective or from the community’s perspective where we are today and where we would hope that the Commission could take this application. Essentially what the community is saying is that “We’ve had enough.” We’ve had like, and what our specific request is, is we’re really asking for the Commission to vote on the pending motion to deny, which is what you have before you now, instead of going through a contested case hearing. If you understand like, you know, very, in a very elementary way, what is the purpose of the contested case hearing? It’s basically to provide the decision-makers, in this case here the Commissioners, you know, with the most complete and relevant information needed so that you can make a decision. And it’s also designed to give the parties, the applicant and the others, the opportunity to provide you with that relevant information. The Commission’s rules itself provide an ability for the parties to waive or modifythe contested case hearing process. And the question is like why? You know, it’s like basically saying you can modify it, you can waive it, as long as, you know, you basically keep -. The essence or the spirit of the contested case can still be achieved through a less intimidating process. Now the process is like first you’ve got to have the prehearing where the parties are all identified, which is what you’re trying to, what is being requested today, and the scope of the 10 hearing has to be identified. Obviously, as pointed out earlier, the applicant and the Planning Department are automatic parties. Then others would be subject to the Commission’s approval. And the second phase, of course, is the evidentiary portion. Then the burden of proof, as you know, like whether you’re going through a contested case or even like a noncontested case situation, or rezoning application where it’s a noncontested case situation, the burden of proof always rests with the applicant to make its case. Because it’s the applicant who’s requesting the special use, not the community. It’s the applicant’s burden. And the evidentiary portion is that the applicant makes his case, all other parties got to make their case too, the community in this case here. And there’s an opportunity to provide written or oral testimonies to justify one’s positions, including rebuttal information. There’s an opportunity to cross-examine witness. The third phase is decision-making. Then if you do a contested case hearing, you need to have a Findings of Fact and Conclusions of Law based on the record and then, of course, the abilities of the parties to comment on the Findings of Fact and Conclusions of Law. And then, obviously then the Commission makes a final decision. Now the question is like why is the community saying it’s enough already? You know, it feels like the spirit of the contested case hearing has been met. There was ample opportunity given by, you know, by the Commission, there was ample opportunity by the Applicant and the Community to present its case. There was sufficient information on the record to fulfill the spirit of the contested case hearing. The possible worst case scenario of a judicial appeal is probably, as was indicated earlier, a remand with instructions for a contested case hearing. And the third reason why the community is saying is enough is that, you know, we don’t want, there’s a festering sore, and we don’t want to prolong it any more. And it provides, a decision provides an opportunity for the healing process to begin. So why enough again? You know, as I mentioned earlier, the burden to demonstrate how its application meets the test for a special permit rests with the applicant. So the question is - was the applicant given sufficient opportunity to present its case? And the community obviously says yes. Now during this hearing, and why we say yes is because during these hearings the applicant was given the ample opportunity; and I think the operative term here is opportunity, opportunity to provide opening and closing arguments. They were given ample opportunity to provide written and oral testimony to support its case. Sure, they weren’t able to cross-examine any of the public witnesses. But, nevertheless, to supplement its case to build a record, they had the opportunity to provide written and oral testimony, and also opportunity to provide rebuttal witnesses or testimony. Okay? The other thing is like the applicant had been represented by two attorneys, including one from the State, who are or should be well aware of the process and the need to build a strong evidentiary record for their client’s application, regardless of whether a formal contested case hearing is held or not. So if the applicant’s witnesses were unable to fully testify because of their plane schedules or other schedules, it’s still the applicant’s responsibility to ask for a continuance and/or provide written testimonies to support its case or rebut any testimony. 11 So is there sufficient information on the record for the Commission to make an informed decision? The community believes yes! And this is supported by the very fact that you already have a pending motion. So on the judicial thing, which is the second reason, if it’s appealed, as you know, true the outcome sure at this point in time is unknown. But if it is denied, if the Commission denies the c application thease is closed, unless it goes further on appeal, and it probably would be appealed if it’s a denial. And if it’s appealed and the appeal is sustained, as was mentioned earlier, probably the Court would say, Commission, you’ve got to hold a formal contested case hearing. So given all that that has happened to date, now I guess the community is saying why assume that the applicant’s due process would be violated or compromised because of the absence of a formal contested case hearing, perhaps that direction should come from the court. The third item is like what the community is saying is enough, it’s the festering sore. Everybody knows that there’s a great divide between the community and the applicant. There are accusations of bullying and intimidation. There’s negative publicity hurled at each other. There was actually a TRO request, which was subsequently dismissed, being made, was made against one of the residents. The community also feels that it has been yanked back and forth with all kinds of maneuvers ranging from the tag-team of attorneys and now this contested case hearing request. The sore has festered too long and some kind of closure, even temporary, is needed If appealed - during the interim, there will be a needed time for some healing, you know, we all know that time can help heal the wounds - possible opportunity to see if the parties can work together, whether it’s for this site or another location of the school. Going with the contested case hearing now provides the applicant with another bite of the proverbial “apple”, resulting in this sore to continue to fester. The community would be subjected to more stress and the need to give up more of their time, like many of us have had. So, in summary, the essence of a contested case hearing has been met. There was an opportunity, again, the operative term is opportunity, for the applicant and all other interested parties, persons to participate in the hearing process and build their respective records. There is sufficient information on the record for the Commission to render a decision. Theonly missing component is the draft proposed Findings of Fact and Conclusion of Law, and responses or exceptions to this draft by the applicant and others. So, in summary, what the community is really requesting of the Commission, notwithstanding the advice that you’ve been receiving from your legal counsel, is a call for the question, and vote on the motion to deny,and hopefully deny the application without a formal contested case hearing. And then you formally adopt the Findings of Fact and Conclusions of Law after comments or exceptions have been received by the applicant and any other interested persons at a subsequent meeting. And this is a practice that’s common with the Land Use Commission or the Board of Appeals. They make a decision and then there’s the official Findings of Fact and Conclusions of Law. And that’s accepted at the, adopted rather, at the subsequent meeting. Essentially the community is just saying IT’S ENOUGH. So, thank you very much. 12 AU: Any questions for Mr. Fuke? Okay, thank you, Mr. Fuke. Okay, Fellow Commissioners, you guys want to -? HONG: Mr. Chair -? AU: Okay, Mr. Hong, you can come forward. HONG: I just wanted to respond to Mr. Fuke’s statements. And, you know, let me just be very clear. The ends do not justify the means. I don’t care what the context is. Okay, the ends do not justify the means, if that’s what Mr. Fuke is telling you. The Alegadel case (ALEGADEL) basically says that where a government commission establishes rules, you have to follow the rules. And people have an expectation, the public has an expectation, a right, to have those commissions, boards, and agencies follow the rules. We are asking you for nothing less than to follow the rules. Let me clarify, we have not been able to call witnesses. People testified voluntarily. A number of our witnesses had to leave. We had not had the opportunity, and Mr. Fuke agrees, to cross- examine witnesses. And why is that important? Because then we can test the accuracy of what they’re saying, we can challenge their credibility of the individual who is providing testimony. One of the hallmarks of due process is allowing the other party to ask questions, to test the credibility, to challenge the allegations made. And we were denied that opportunity, we never had that opportunity. We were not able to present tests, excuse me, evidence with respect to -. We submitted documents, but we did not have to, submit evidence that was taken into the record regarding any of the allegations made or the counter allegations made. And the hearings that we went through by definition to this point don't meet the definition of a contested case. And there is no case that Mr. Fuke, or Judge Yoshioka, or anybody can cite that would say that close is good enough. That is not the case when it comes to government boards, agencies and commissions. Regardless of where I sit and who I represent every citizen has a right to the process; and that’s all we’re asking for. And that is not what we have gotten to this point. So in terms of the remedy that we’re suggesting we feel it’s appropriate. And Mr. Fuke agrees that if we carry along the line that you guys are on, most likely the court is going to say, you know, , chutes and ladder you guys got to come back and there’s got to be a contested case hearing. Months will have gone by, time is going to be, has gone by, the expense to my client is going to increase in amount. So instead of doing that, let’s take care of this issue now. The Commission can decide and make its own recommendations based on the hearings officer’s decision, like in the Pepe‘ekeō Point case, and then we move on from there. Thank you. AU: Thank you, Mr. Hong. Okay, Fellow Commissioners, so what we have is we have a motion on the floor, and the motion is to deny by Commissioner Gonzales and Commissioner Ishibashi. So we, so, you know, technically we are in the discussion portion of this hearing. So if we move, as we move forward, you know, I just want to make a comment from a land use standpoint. Okay, I sympathize with the community. And, you know, they feel bullied and, you know, they feel that they were treated unfairly. And, you know, the whole situation, we’ve heard it for the last four hearings already. But from a land use standpoint, you know, we have the State that approves this special permit, cause the State leased them the land, we have our Planning Department approving it. So from a land use standpoint it’s appropriate. But we need to do our job as Commissioners to also listen to the community. And, you know, that’s why we’re chosen as Commissioners, and that’s our job here. So, you know, I just want to say that as we move 13 forward. And what I’d like to do right now is I’d like to entertain a motion to go into executive session. GONZALES: Second. AU: You’ve got to make a motion first. GONZALES: I’d like to make a motion to go into executive session. TORIGOE: For the purposes of -? AU: For the purposes, to consult with our attorney? GONZALES: For the purpose of consulting with our attorney. AU: Can I get a second, please. MOSES: Second. AU: Okay, all in favor aye? COMMISSIONERS: Aye. AU: Thank you, you guys. You guys are going to have to leave really quick. And we’re going to have to discuss a few things. EXECUTIVE SESSION – The Commission went into executive session at 9:51 a.m. The Commission came out of executive session at 10:22 a.m. by a motion made by Commissioner Gonzales, seconded by Commissioner Moses, and unanimously carried by a voice vote of all Commissioners in attendance. AU: Okay. Windward Planning Commission come back to order. Okay, we have a pending motion to deny. The motion was made by Commissioner Gonzales and it was seconded by Commissioner Ishibashi. So what do you guys want to do? GONZALES: Are you going to call people up? You want to go first? Comments? Anybody else? Raylene, comments before -? MOSES: No. GONZALES: No? Wally, you want to say anything? ISHIBASHI: No. GONZALES: Well, great. I think we’re all in agreement if we vote on this today we’re going to end up in court, we’re going to end up having an appeal, we’re going to end up back here doing this again. I’m personally not real thrilled with the way it’s going. I mean this has been, what, four months already, four or five months? A lot of time, a lot of effort, a lot of feelings, you know, not good feelings. You know, I kind of feel intimidated, you know, so I know how you 14 guys feel. I know what some of you folks are saying, but this is a rat. And with that, Mr. Chairman, I would like to withdraw my motion to deny it. AU: Okay, and my second, the Commissioner that seconded it, are you okay with that? Do you agree with that? ISHIBASHI: Yeah, I would like to withdraw my second to that motion. And, again, we’re trying to give everybody a fair shot at the whole, the whole process. We’re not trying to take away anybody’s rights or privileges under the process. And I think we need the right information and the right questions to be asked and answered, and then we come back and make the right decision at that time. So we, I remove the second to the motion. AU: Okay, thank you very much. So the motion has been withdrawn. Are there any objections from any of the Commissioners? No objection from me. Okay, so now what we’re going into is, we’re going to go into a petition for standing in contested case. Can I please call up Jonelle Fukushima, please. Okay. And can I have Ms. Monica Morris, please come up. And question for Mr. Darrow. What is the procedure, process of filing for the petition for standing? What are the dates, is it postmarked, is it when you received it, when you filed it? And did this petition make it? TORIGOE: Can address it -? AU: Ivan, please go ahead. TORIGOE: Yeah, Mr. Chairman, just going back to Rule 4-6 again. It says that, again, it says, “In all proceedings where the Commission's action is directly appealable to Circuit Court, the applicant and the Planning Director will be designated parties to the action. Any other person seeking to intervene as a party shall file a written request on a form approved by the Planning Director and accompanied by a filing fee of two hundred dollars no later than seven calendar days prior to the Commission's first meeting on the matter.” So basically it said any person seeking to intervene, besides the applicant and the Director, needs to file this form no later than seven calendar days before the meeting. AU: Okay. Mr. Arai, or Mr. Darrow, maybe if you can answer my question. Just, you know, what is the process, times, dates, whether it’s postmarked, or whether you received it from the hearing that we’re in now, cause we did start our hearing. Maybe you can just go over that first before I ask questions to the people here. DARROW: Thank you, Mr. Chairman. The question is whether or not the application was filed within seven days prior to this Planning Commission meeting, based on the fact that this was the meeting that they were instructed to send out a request for a petition for standing, because of the fact that there was information given before that was incorrect. This particular, we now have two petitions before us. This one from Jonelle Fukushima was received in the Planning thth Department March 4, although it’s postdated on the envelope as January 28, I’m sorry, th February 28. So to this is going to be given to legal interpretation, which I would have to defer to our Corporation Counsel in terms of whether or not we’re going to consider the postmark as being filed within seven days. If we consider that then it would be timely. If we do not and we look at the date it was received, then it would not be timely. 15 AU: So the record states from when it was received, that’s what it states. Right? DARROW: It says filed. AU: Filed. DARROW: Yeah. AU: Received and filed? DARROW: Well, it just says filed. That’s why it’s a matter of interpretation whether or not filed means received at the Planning Department or postmarked. AU: Okay, thank you. Ivan, would you like to interject or -? You know, what Ms. Morris mentioned was, you know, her interpretation was postmarked. Is that correct, Ms. Morris? Please talk into the microphone MORRIS: I live on Oahu, yeah? AU: Right. MORRIS: So, yeah, my understanding in talking with my client, the school, was that their understanding, and they probably would need to, I guess, clarify this, was that so long as it was th postmarked by February 28, it would meet the filing requirement. S. LEE LOY: If I might, too -. Part of the requirement for the petition for standing requires that a notary assign on it, and that would confirm the date of the notary was seven days prior to the hearing. The other component here is I believe the following day was a furlough for the County. So it would have been received the next day, but because it was a furlough day, they didn’t receive it till that Monday. AU: Ms. Fukushima, I need to swear you in. Can you please raise your right hand. Do you affirm and swear to tell the truth in front of the Hawai‘i County Planning Commission today? FUKUSHIMA: I do. AU: Okay. Question that I have for you is what is your relationship with Connections, cause you do reside on Waianuenue Avenue, right? FUKUSHIMA: Correct. AU: So what is your relationship with Connections? FUKUSHIMA: Okay, I am a, first of all, Ī am a Kaūmana resident. But currently, as of one month ago, I joined the board of Connections Public Charter School. So that's my relationship with this point. I am a new member. AU: Okay, so this petition for standing was submitted by you. But Ms. Morris has mentioned in her testimony earlier at that, you know -. She's helping you submit it? 16 FUKUSHIMA: There was not clear, it wasn't very clear guidance about whether I should do it on behalf of myself or for the fact that I am now currently a board member. And so it would depend on the outcome about which way I would choose to go individually or to choose to elect to be part of the -. AU: Okay. Okay, well, you know, we just received another petition by Mr. Gomes, Mr. Jeff Gomes. And before we get into that one we need to take care of this one. Mr. Ishibashi, Commissioner Ishibashi? ISHIBASHI: I got one question. Would it be necessary to have you as a, stand, grant you standing in this contested case? FUKUSHIMA: As, like I said in, you know, for the fact that we wanted to make sure that all bases were covered and in doing the right thing and following the rules, we really didn't have the proper guidance at the time or people to really ask which way we should go, so I filed that to ensure that we would have timely ability to continue. ISHIBASHI: Okay, cause we already have two already automatic. Right? So –. MORRIS: Okay. And if I can just clarify, with respect to my representation of Connections, my interest is in representing the school, not any individual but the school. With respect to the petition filed by Ms. Fukushima that was sponsored by my client. Again, as I said earlier, that was just to ensure that the school’s interests in contested case procedures were insured, because there was confusion with respect to that. But what I want to state unequivocably is that my interest is in representing the school. So long as they have automatic standing, which has been confirmed today, that is my interest with respect to that. AU: Okay, thank you. Ivan, you want to add to that? TORIGOE: Okay. So I guess, Ms. Morris, I don’t know if this is something that you want to discuss with Ms. Fukushima or not, but we’re just wondering if it’s necessary for the Commission to even take up her standing if the school is already automatically a party. MORRIS: As far as the interest of the school, as long as they’re an automatic party, then that’s my concern. TORIGOE: So I guess the question then for Ms. Fukushima is if the school’s interests are protected in that way that they’re an automatic party, do you still feel that you need to be admitted as a party? And would you be representing yourself, would you be hiring an attorney or -? FUKUSHIMA: No, I think that as long as it’s covered then, yes, it’s fine. AU: Okay, so you would like to withdraw -? FUKUSHIMA: Yes. AU: Your petition for standing in a contested case? 17 FUKUSHIMA: Yes. AU: Okay. MORRIS: Can the school get its $200 back? It’s on a, it’s on a real bare bones budget. I just make that request. AU: That’s for our - . MORRIS: Okay, thank you. AU: Planning Department to decide. MORRIS: Thank you very much. TORIGOE: Actually the rule says that, “If the request for intervention is withdrawn in writing before the commencement of the hearing, the filing fee shall be refunded to the person seeking standing to intervene.” FUKUSHIMA: May I say that I did not at the time, like I said, know that I would be withdrawing it; and the rules are still ambiguous, so to speak. So whether an individual or having just the school, I feel like I could still put that in writing. I just didn’t have that available, the rules. I didn’t understand that that would be the process. MORRIS: Does the school get its money back? Is that what I heard you just say? TORIGOE: Actually the rule says you have to, the rule says, this is just what the rule says, “If the request for i0ntervention is withdrawn in writing before the commencement of the hearing, the filing fee shall be refunded….” So -. MORRIS: Is that the contested case hearing? TORIGOE: Contested case hearing. Well, technically the whole hearing is a contested case hearing, you know, in the sense that it is the final hearing before a decision is made that can be appealed to court. So, well, I guess at this point we’d have to leave that with the Planning Director and, if necessary, then we can consult with them. MORRIS: Thank you very much. Thank you. AU: Okay. Any more questions for -? Okay, thank you guys. You guys may be seated. Okay, we just also received another petition. And, staff, have you received a $200 check? DARROW: We have. There is one deficiency with the submittal. If you look on page 2, you’ll notice that the notary public put tomorrow’s date, unfortunately. And so at that point, and then it was also received today, as of today’s hearing. So if you’re considering this petition, it might be more appropriate to have this redone and have a correct date placed on the notary. But, again, we do, this was received today; and it did come with the $200 filing fee. 18 AU: Okay with that said, our rules state, Mr. Gomes, that it needs to be in prior. It just didn’t make it. It was submitted today. And because of the, also, the other deficiency on the application we will not be able to accept it. And, Mr. Fuke, please come forward. You want to say something? FUKE: Yes. AU: And then after that I’d like Ms. Amy Self and BJ to also come up too. FUKE: Mr. Chairman, again, for the record, Sidney Fuke. From the get-go, I guess, this application from a processing standpoint has been so topsy turvy. I mean if you’re going to just look at the rules themselves, I mean, I can just cite you, for example, it’s like the applicant shall serve notice to surrounding property owners regarding the contested case hearing. Who sent that letter? The Planning Department. The other thing too, is like it says like, well, shall file a written request, inform seven days prior to the Commission’s first meeting. You can debate whether this is the first meeting, the third or the fourth, or whatever. I mean like bottom line is that there’s like so much interpretations and misinterpretations as far as what the process is. So I guess all Mr. Gomes is asking is that, fine, if it’s going to be denied then I guess his only recourse is that after you go through all this contested case hearing, then he’ll just file an appeal that he was denied a due process. I think for the most part if you look at due process issues, the concern is more as it relates to the intervening parties, or at least the parties that have, the parties that are not the applicant. In all of the court cases, not all, but many of the court cases that, for example, was cited today, you know, they deal like with not the applicant, they deal with other parties. So if you deny Mr. Gomes an opportunity to be a part of the proceedings, then I guess the community and everybody else would have to resign and just provide their testimony through the public hearing portion all over again, unless the record is already there that he can, for the Commissioners or the hearings officer, just accept whatever is already provided as being the record. And so having said that -. AU: Okay. Mr. Gomes, can you raise your right hand. Do you swear and affirm to tell the truth in front of the Planning Commission today? J. GOMES: Yes. AU: Okay. So, microphone please. Please state your name and where you reside and, you know, will you just explain to us the reasoning for your petition. J. GOMES: Jeff Gomes. I live in Kaūmana. My reasoning is I’m not sure of what the procedures are. And, you know, I don’t have an attorney. So I’m still not exactly sure what my rights are to, I feel like I’m defending my home and my family. And I’m just asking you for the opportunity to let me be a part of this process. That’s my understanding of what a contested case hearing is. And I’ve asked Sidney to try and explain it to me. I kind of have an idea of what it is but I’m not sure. Up until today I thought a contested case hearing was going to be in front of a court. I didn’t know it was going to be in front of you, until Sidney explained it to me again. So I want to be a part of the process. I want to be able to ask questions about what was done, what should have been done. Because I followed the process, I’m part of it. I’m physically, mentally, and emotionally affected by everything that has been going on, myself, my family and my neighbors. And I just, I’m asking you to let me be a part of the process, please. 19 AU: Thank you. Any questions for the person, petitioner? The attorney for the County Planning Department and our Planning Director, would you guys like to add to Mr. Gomes’s request or petition? SELF: On to state that the Planning Director has no objections to the intervention of either of the applicants, either of the petitions to intervene. We have no problem with that. AU: Okay, well, from a procedure standpoint and our rules, as our Commission attorney has stated that, you know, it doesn’t make it, it doesn’t meet the criteria. So what I’m looking at is to deny, to not grant standing. TORIGOE: It would have to be a Commission decision. AU: Yeah, that’s what I recommend. And, you know, it would have to be a Commission decision. And, Planning Director, would you like add something? LEITHEAD TODD: I may not have an accurate memory, but I believe that, in the past, prior th Planning Commissions have allowed people to intervene, even at, you know, the 11 hour, so to speak, as opposed to enforcing the seven-day requirement. That’s entirely within your call. However, just as stated by the representatives for the applicant in an abundance of caution, I would hate to go through a contested case, deny standing, go through a contested case with Connections, then end up having an appeal, go to court, and have the court say that despite the rules we should have given standing, given the convoluted and confusing manner in which all of this has played out. And so it’s kind of like what harm does it have to the applicant if you allow Mr. Gomes to intervene. Because if you deny, given this strange procedural history that we have here, and we end up in Circuit Court and the Circuit, we go through this and one way or another we get a decision, cause we haven’t even addressed whether, I think, at least I haven’t heard conclusively whether you’re hearing it or whether it’s going to a hearings officer -. But you could go through this whole, deny standing, go through this whole process, and then go to Circuit Court; and then Circuit Court says, you know, because you’re dealing with pro se, somebody who’s not represented by counsel, because you’re dealing with something that got very confusing that we should have erred on the side of caution and allowed him. And I’d hate to go through all of this and then have a remand to then allow Mr. Gomes to have standing. And I’m just saying I don’t know what the Court would do; but I’d rather have him in and delete that as one possibility for appeal, than deny and then have that hanging over my head like a sword. Thank you. AU: Okay, Mr. Hong, where is your applicant’s position on Mr. Gomes’s petition? HONG: You know, I think the Planning Director’s perspective is entirely reasonable but here’s where I’m coming from. The notary page says, is defective; and it’s defective as a matter of law. And my suggestion is that maybe the Planning Department in the future take off the requirement for the notary. But right now, and this is actually a mistake that could affect this individual’s right to be a notary because this is completely wrong as a matter of law. I mean if the rule th requires a notarized petition, I’m sorry, but today is March 7. And this notary can be held legally responsible for this. But, you know, again I hear what Ms. Leithead Todd is saying. I think that’s reasonable. I’m just coming from, you know, the procedure and this is inherently defective. Thank you. 20 AU: Okay, Mr. Hong, if we were, if this Commission, this body, was to grant standing to Mr. Gomes, how will it affect -? Or maybe I should be asking Ms. Fukushima, how will it affect your stance on that? Because, you know, we want to err on the side of caution. And, you know, since we’re giving a break to somebody else, and this is the same special permit that we’re going into, how do you feel about Well, I mean, Connections, you represent Connections, no, you represent CBESS. Yeah, I’m just a little confused here on who’s -. TORIGOE: Mr. Chair, I think we need a discussion with the AG and Ms. Fukushima. It seemed like Ms. Fukushima’s petition was filed in an abundance of caution to make sure that, you know, both CBESS and the School were represented as parties. And since they both are, then they felt like it was okay for her not to get standing here. It’s a little different. So, you know, I think if you guys, you know, if it’s expressions of the need to be flexible and equitable in this kind of situation then, so you may want to consider that. If you need another executive session, we can do that too. AU: Commissioner Moses? MOSES: Yeah, Chair Au. Is it possible to have somebody explain for the benefit of Mr. Gomes what a contested case is, and what the procedures are, and what happens in a contested case? And is that possible – so that he has understanding of exactly what happens and what occurs? AU: Okay. Yeah, we have a room full of attorneys so if one of you can take it? TORIGOE: Let me just, real quick. AU: Okay, thank you, Mr. Torigoe. TORIGOE: Mr. Gomes, I assume that you have, you said that you talked to Mr. Fuke already; and Mr. Fuke is pretty well informed about this process. But real generally you understand that in a formal contested case then this can be as informal as the parties agree or it can be fairly trial like. And it allows for things like the parties calling witnesses, and asking any questions, just like in court to testify. And it allows us, for the other parties to cross-examine the witnesses, ask them questions, to test what they’re saying and their credibility. It also allows for the parties to ask for subpoena of other witnesses, or other witnesses, if necessary, and things of that nature. And so it allows for development of a relatively full, almost trial like record if that’s what the parties want to do. So, just so you understand that that’s the kind thing that a contested case is likely to entail with all these attorneys involved. And probably the main reason why people also request standing is so that they will have the right to pursue appeal to court, if necessary, from the final decision. So I guess the Chair, or Commissioner Moses just, I think, wanted to make sure you understood the kinds of demands that would be put upon you if you were a party to the contested case, and that often times people will have an attorney to help them with that kind of thing. AU: Thank you. Mr. Arai, where are we with a contested case, possibly having two, three, four contested cases with this applicant? I mean do we have enough money in our funds? Where are we? It’s all going to be one contested case? 21 ARAI: We do have the ability to hire a hearings officer. I cannot guess as to the length of the hearing itself. We’ve had recent hearings that have gone from as little as $20,000 for a particular session up to a 40, $40,000. All I can say at this point is if the Commission elects or refers this contested case proceeding to a hearings officer we will get a hearings officer for you. So don’t let that be, weigh on your judgment. AU: Ivan? TORIGOE: Yeah. One of the factors that may weigh into the kind of contested case that happens is the extent to which the parties might be agreeable to using some of the existing record, rather than, you know, doing everything all over again. So I wonder if we could ask the parties if they would be agreeable to doing that, to the extent that is practical. AU: Yes. If all parties are agreeable to use the existing record as a basis for the contested case proceedings. HONG: Speaking on behalf of CBESS, I mean, I don’t believe that I’m trying to extend or, I don’t want to overcharge my clients, obviously. And I’m not going to try and build, increase the bills on behalf of my client. To the extent that I can use part of the record, I obviously want to use part of the record. But I know that what is absent from the record is our ability to challenge the credibility of some of the allegations made, and what the accuracy of those allegations are that were made. So insofar as that is concerned, I’m not going to agree to anything that would, to have unsubstantiated testimony that was given at a public hearing used against my client without me having the opportunity to cross-examine that individual. So yes and no. And obviously I don’t want to have to spend any more time in a contested case than I have to. So I’m going to try and, on my client’s behalf, make it as efficient as possible. AU: Ms. Morris? MORRIS: Thank you. I would likewise want this to be acted upon in as efficient a manner as possible. Time means money for my client. There is an application that’s being prepared to the USDA for low interest loans so that facilities could be built should the special permit application be approved. So, so, a drawn out process would not be to the benefit of my client. So I would agree to the extent possible to move this along as quickly as possible, and without waiving my client’s rights and interests. Whatever can be used, provided on the record previously, would be to the advantage in moving this along as efficiently as possible. What I’d also kind of like to express a concern is that I know with respect to pro se persons who are not represented by counsel, courts are generally very liberal in allowing latitude to that because they’re not represented by counsel. What I would, however, urge that whoever is presiding over the contested case that there not be undue delay associated with a pro se party. So, again, if I could just ask that this matter be moved along as quickly as possible without compromising my client’s due process rights. ISHIBASHI: I have a question. AU: Commissioner Ishibashi. 22 ISHIBASHI: The intent is not to stymie or hold back any participation from the public though, right? HONG: Not at all. ISHIBASHI: Okay. So because they’re on the record they have the right to be cross-examined and testify? HONG: Right. ISHIBASHI: Okay, thank you. AU: Okay, so all parties, Ms. Self or BJ, where is your position on this? SELF: I think that everything that’s been on the record already is going to be a part of this because you have each of the testifiers were sworn under, testified under oath. It’s a public hearing. All of these are have been public hearings. So I think that that information that has come before you already would automatically be part of the record. I guess you could, I guess the parties could decide which parts they want to move into evidence during the hearing. But as far as, well, that’s the only thing we had to add. Did you want to say anything else? LEITHEAD TODD: That’s all. AU: Okay. Well, this Commission, this body needs to decide if Mr. Gomes’s petition stands, if we can give him standing. And what I’d like to add to it is because we’re doing, possibly doing that, then I want to offer it to Ms. Fukushima as well. We want to, just like our Planning Director said, to err on the side of caution; and I understand there’s no reason to because CBESS and Connections is already, you know, they already have the contested case. We’re offering it. So if this body chooses to -. MOSES: Are you requesting a motion? AU: No, no. We don’t need to request a motion for the petition. TORIGOE: You need a motion, a motion to grant standing. ISHIBASHI: If it’s necessary, I make a motion that we grant standing for Brother Gomes. MOSES: Second. ISHIBASHI: If it’s necessary. If it’s not because it’s part of the record already -. TORIGOE: You should have a motion. ISHIBASHI: Okay, I make a motion that we accept Jeffrey Gomes’s petition for standing in this contested case. AU: The motion by Commissioner Ishibashi is to grant standing to Mr. Gomes. 23 MOSES: Second. TORIGOE: Yeah, Mr. Chairman, staff suggests, and I think it’s a good idea, that if there’s going to be a motion like that that it be conditioned on Mr. Gomes getting that notary corrected. GOMES: I will. TORIGOE: And that should be done, what, you think that should be done today? Is that -? GOMES: Yes. AU: Okay. So the motion is by Commissioner Ishibashi and seconded by Commissioner Moses. Discussion? Yeah, guys, this has been going on, it has been pretty crazy. We have a lot of things that we’re looking at. And just like I said, I think we need to err on the side of caution. So we’ll take this motion first. And if there’s no other discussion, we’ll vote on it. DARROW: Thank you, Mr. Chairman. The motion before us is to grant standing in a contested case to Jeffrey Gomes. With that I’ll take the roll call. Commissioner Ishibashi? ISHIBASHI: Aye. DARROW: Commissioner Gonzales? GONZALES: Aye. DARROW: Commissioner Moses? MOSES: Aye. DARROW: I’m sorry, I was out of order. But, Mr. Chairman? AU: Aye. DARROW: With that, the motion passes four to zero. AU: Okay. You’ll be notified in writing. And now I’d like to entertain a motion to grant Ms. Fukushima’s petition for standing, if she chooses to, if she wants to. Maybe Ms. Fukushima can -? FUKUSHIMA: No. AU: Okay, but it is on the record that -. Can you just come up and speak into the microphone. You’re sworn in so you can go ahead. FUKUSHIMA: Thank you. No, I do not wish to have mine, I wish to withdraw it. I do have a comment though as a private citizen and kind of observing. Not only is it eye-opening but it’s very interesting to me how the rules may change. I understand in the nature of wanting to save time and all the projected, where it may end up and what the court might say, and whatever. This -. It’s disturbing to me, just as a person listening, not in connection, in relationship to 24 Connections. But I raised my children in this community. I think had the shoe been on the other foot, had maybe it been me, had I turned it in -. Because we were talking about the post mark, the notary of mine, which I read what you read. I had the opportunity, I took time off my job to go pay for the notary to do the best that I could with it. And you’re right, a lot of the information was not forthcoming or easy to understand. But I did the best that I could as a single mother of three kids and as a business owner to make the time and to try and find out the best information I could. And so for future reference, I’d like to say it isn’t fair to me as a private citizen. I’m fighting for the rights of my children as well, born and raised in Kaūmana. And so I would say to you, Mr. Gomes as well, that it saddens me that our community of Kaūmana and the way that you guys talk about community, you don’t represent the entire community of Kaūmana. There are a great many people in Kaūmana who have not come forward to speak out of fear of the backlash from the minority of those who are speaking here today, I being one. And I’m coming forward to, I just wanted to say for future reference, it just felt like a big waste of time that I had to go and do and jump through hoops to get my, you know -. Anyway, thank you very much. I appreciate it. Thank you. AU: Ivan? TORIGOE: Yeah, Mr. Chairman. I think I just wanted to confirm on the record and make sure that there’s no question with the Commissioners that the CBESS and the School, Connections itself, are automatic parties to the contested case. AU: Okay. TORIGOE: Okay, thank you. AU: So, Fellow Commissioners, we are well aware of that, right? GONZALES: Yes. AU: Okay. So next thing we need to do is we need to decide as a Commission if we want to be the hearings, if we want to hear this petition or if we want to hire a hearings officer. So, we’re ready to entertain a motion. MOSES: I make a motion that we have a hearings officer. AU: That we hire a hearings officer. MOSES: Yeah, hire a hearings officer. ISHIBASHI: Second. AU: Okay, discussion? Yeah, with what Mr. Arai said that we do have the resources that is limited, but we do have the resources, I think that would be the smartest thing to do considering how this whole applicant is going. Commissioner Moses? MOSES: I do have a question though. AU: Yes. 25 MOSES: And maybe you can clarify. We talked about the record. What is going to be given to the hearings officer in this contested case? And is it, you know, it was asked if, you know, what should be given as far as record. And I’d like to see the entirety of the record be given, in its entirety. AU: Well, we do have the entirety. I got a big box back here, they can take a look at it. But we do have our CDs. So the hearings officer, if we choose to hire a hearings officer, the hearings officer will get all that information. A CD was submitted to us, I believe it’s like 2000 pages, things that we’ve been receiving for the last four months. Even going into the first hearing we got all these binders. So I hope that answers your question. And maybe Ivan can interject. TORIGOE: Yeah. I’d just say that, yeah, the entire record is what it is. But in a contested case hearing there would probably be some discussion about what parts of it should be given formal status as exhibits or, and then what kind of cross-examination may occur. So there will be some discussion about the weight and importance and credibility of the evidence in the course of the contested case hearing. AU: Okay, thank you, Ivan. Good question, Commissioner Moses. TORIGOE: You can take the vote if there’s no other discussion -. AU: Yeah. If there’s no other discussion, we’ll go, we’ll take a vote. Mr. Darrow? DARROW: Thank you, Mr. Chairman. The motion before us is to hire a hearings officer. With that, I’ll take the motion, or the vote. Commissioner Moses? MOSES: Aye. DARROW: Commissioner Ishibashi? ISHIBASHI: Aye. DARROW: Commissioner Gonzales? GONZALES: Aye. DARROW: And Mr. Chairman? AU: Aye. DARROW: The motion passes four to zero. AU: Everybody will get notified in writing. Thank you. For all parties, CBESS, Connections, County of Hawai‘i Planning Department, petitioners, Mr. Gomes, Ivan, does anybody have anything to say? Put it on the record now. Any other issues? Mr. Hong? HONG: I’m sorry, I’m just being too fundamental, I mean elementary. But was there a motion to grant the contested case hearing? Is that necessary or -? 26 TORIGOE: I really don’t think that’s necessary -. HONG: Oh, good. TORIGOE: At this point. And if any of the Commissioners disagree then we should know now. But it is inherently a contested case. HONG: Okay, sorry, thank you. AU: Mr. Gomes? GOMES: May I retrieve my original petition and I’ll go get it corrected. AU: Yes. The original petition, I believe Mr. Darrow has it. And anybody else? Okay, well, thank you very much. We’ll see you guys later. Everybody will be notified in writing. Thank you. The discussion ended at 12:07 p.m. Respectfully submitted, Sharon M. Nomura, Secretary Windward Planning Commission 27