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HomeMy WebLinkAbout2013-42 Hong-AC Response to HVC SPP 1122 Comment LtrTed H.S. Hong Attorne y at Law Employment, Workplace Law & Litigation Sue Lee Loy Planner and Legal Assistant July 8, 2013 VIA F. -MAID. Patti Pinto, Chair Puna Community Development Plan Action Committee Aupuni Center 101 Pauahi Street, Suite 3 Hilo, HI 96720 Communication No. 2013 -42 Re: Amendment to Special Permit No. 1122 (Docket No. 01- 000013) Hawaii's Volcano Circus, Ltd. Dear Ms. Pinto, Please note that undersigned counsel represents S.P.A.C.E. and Hawaii's Volcano Circus, Ltd. in their amendment to Special Permit No. 1122. This letter is intended to express my concern with your committee's draft correspondence dated July 9, 2013 to Planning Director Duane Kanuha that is up for discussion at your meeting tomorrow. Firstly, the Puna Community Development Plan Action Committee ( "Action Committee ") failed to provide this office or my client with notice that your consideration of the Amendment to Special Permit No. 1 122 would be on your July 9, 2013 agenda. Similarly, we did not receive notice of your May 14, 2013 meeting, wherein you took public testimony regarding the application but not testimony from the applicant itself so that it could present its case or so that it could respond to questions or concerns from the Action Committee or members of the community. Nothing in the Hawaii County Code or Planning Department Rules and Regulations requires a special permit applicant to check CDP action committee agendas while its application is pending review by the Planning Commission. As such, it would seem that it was the Action Committee's responsibility and/or duty to inform my client that it intended to discuss the special permit amendment application and subsequently take and consider public testimony regarding same. The lack of proper notice to this office or my client (contact information was provided for in the application itself) raises an issue that our client was not provided with an opportunity to discuss the current version of its special permit amendment application and the work it is pursuing to address concerns from the County of Hawaii and surrounding property owners, despite the fact the Action Committee considered the testimony of others. Please note that we only heard of tomorrow's meeting from a local resident. Had it not been for this individual, your Action Committee would have ruled on this recommendation based upon an outdated application, a handful of public testimony from neighbors without the most current or accurate information regarding the Hawaii's Volcano Circus project, and without considering a single word from the applicant aside from the application itself. The Action Committee's failure to provide this office or the applicant with notice of this meeting or the previous meeting in advance is unreasonable and unfair at best and a potential violation of due process at worst. P.o. Sox 4217 Fula, Hawaii 96720 Phvne: (808) 960 -3156 email: tedOtedhvnglaw.cnm Patti Pinto, Chair, Puna CDP Action Committee July 8, 2013 email SUBJECT: Special Permit No. 1122 Page 2 Secondly, your draft letter dated July 9, 2013 exceeds your mandate as a CDP action committee as it sheds the applicant in a negative light and does not strictly provide counsel to the Planning Director or windward Planning Commission regarding the special permit amendment application's compliance within the guidelines set forth by the Puna CDP. As you know, the Hawaii County Council, through Ordinance 08 -98 (2008), established Community Development Plan ( "CDP ") action committees. Section 16 -6 of the Hawaii County Code lists the duties and responsibilities of a CDP action committee, among which are the following: (1) Provide ongoing guidance and advocacy to advance implementation of the CDP goals, objectives, policies, and actions; . . ■ (5) Receive briefings, as requested, from the planning department on pending and approved permit applications involving property located within the planning area, and on other issues related to the CDP; Section 16 -6(1) and (5) Hawaii County Code (2005, as amended). Your July 9, 2013 draft letter fails to strictly provide guidance to the Planning Director on how this application would or would not further the goals, objectives, policies and actions of the Puna CDP. Instead of sticking to the merits of the application itself in light of the Puna CDP, the letter resorts to subjective conclusions about the applicant. The most egregious of examples in the July 9, 2013 draft letter states that the Action Committee has "reason to doubt the Applicant's willingness to abide by whatever conditions of approval might be imposed, the scope of uses an[d] activities permitted, or agreements made with their neighbors . . . ." See, page 3 of the proposed July 9, 2013 letter. If my client was given notice and allowed to appear before the Action Committee at the last meeting, you would have been informed at how closely this office and my client are working with the Planning Department and the community to address any and all concerns brought up by the application. Not having the opportunity to do so, the Action Committee was left with a poor impression of the applicant, which is reflected in the tone of this draft letter. Finally, I would like to express my concern that Action Committee is acting prematurely without all of the most current information available to it. As mentioned above, the Action Committee apparently took testimony and comments from the public about the special permit amendment application; however, some of the comments made were based on old or outdated information. Since that initial submittal, my client has since conducted a community informational meeting where it gathered input on local concerns, coordinated a traffic impact analysis report, and is considering many alternatives to noise, traffic, and on -site activities. I believe that the Action Committee's apparent decision to make a negative recommendation on the amendment to Special Permit No. 1122 is premature and not based upon the latest and most accurate information. This office and my client are still working with the Planning Department during the special permit approval process. This item on your agenda should be postponed until all of the information is fully formed and available to the Action Committee to review and scrutinize. �y 9 I , I � r IPee' 1 r t Patti Pinto, Chair, Puna CDP Action Committee July 8, 2013 email SUBJECT: Special Permit No. 1122 Page 3 Should you have any questions, please feel free to contact this office at the number below. Thank you for attention to this matter. Very truly yours, WeH ng, std. Attorney for S.P.A.C.E. an Hawaii's Volcano Circus cc: Duane Kanuha, Planning Director Daryn Arai, Planning Department Larry Brown, Planning Department Zendo Kern, Hawaii County Council Gregor Illagan, Hawaii County Council