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HomeMy WebLinkAbout2016-01-07 Hearing Transcript - Arrow SPP 09-076 & Rodrigues SPP 15-178 WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT JANUARY 7, 2016 A regularly advertised hearing on the continued consolidated hearing for the applications of ARROW OF OREGON/HAWAIʽI, LLC (Amend SPP 09-076) and DAVID & LAURA RODRIGUES (SPP 15-178) was called to order at 9:30 a.m. in the County of Hawai‘i Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i with Vice Chairman Gregory Henkel presiding. COMMISSIONERS PRESENT: Gregory Henkel, Donald Ikeda, Myles Miyasato, and Raylene Moses. ABSENT & EXCUSED: Donn Dela Cruz and Charles Heaukulani. ALSO PRESENT: Danny Patel (Deputy Corporation Counsel for the Windward Planning Commission), Kelly Gomes (representing the Department of Public Works from 9:30 a.m. to 9:52 a.m.), Daryn Arai (Planning Program Manager), Jeff Darrow (Staff Planner), Christian Kay (Staff Planner), and Sarah Hata-Finley (Commission Secretary). PARTIES PRESENT: Roy Vitousek, III (Attorney for Applicant Arrow of Oregon/Hawaiʽi), David and Laura Rodrigues (Applicants for SPP 15-178), Thomas L. H. Yeh and Jill D. Raznov (Attorneys for Intervenor HOVE RMC); Amy Self (Deputy Corporation Counsel for the Planning Director), and Duane Kanuha (Planning Director). And approximately 14 people from the public in attendance. APPLICANT: ARROW OF OREGON/HAWAII, LLC (Amend SPP 09-076) Continued hearing on the application for an amendment to Special Permit No. 09-076, which was approved to allow a cinder and rock quarry operation on 5.003 acres of land situated within the State Land Use Agricultural District. The amendment will add 8.009 acres for a total of 13.012 acres of land. The properties are located northwest of Mahimahi Drive, between Lurline Lane and Liliana Lane within the Hawaiian Ocean View Estates Subdivision, Kahuku, Ka‘ū, Hawai‘i, TMK: 9-2-148:005, 006-010, 015, 016 & 036. APPLICANTS: DAVID AND LAURA RODRIGUES (SPP 15-178) Continued hearing regarding the application for a Special Permit to allow a cinder and rock quarry operation on 5.003 acres of land situated within the State Land Use Agricultural District. The properties are located on the northeast and southeast corners of Kailua Boulevard and Lurline Lane, Hawaiian Ocean View Estates Subdivision, Kahuku, Ka‘ū, Hawai‘i, TMKs: 9- 2-142:020, 021, 022 & 9-2-145:047, 048. 1 EXHIBIT C HENKEL: Okay, will this meeting of the Windward Planning Commission come back in session. The next items on the agenda, number 3 which is Arrow of Oregon/Hawaiʽi LLC, SPP 09-076 and Laura and David Rodrigues, SP 15-178 have been consolidated. So, will the staff make their presentation now—when you’re ready? ARAI: Mr. Chairman, if you could just give us a moment and— HENKEL: Sure. ARAI: Thank you. Mr. Chairman, I apologize for the delay. We are currently making copies of material that we just received. We want to present that to you before the hearing commences so if you just give us a few moments, we should have the material shortly. HENKEL: Okay, we’ll be patient and wait a few minutes. ARAI: Thank you. HENKEL: We’ll recess until the copies get here. Chairman Pro Tem Henkel called a recess at 9:31 a.m., and the meeting was reconvened at 9:34 a.m. HENKEL: Okay the meeting is back in session. Would the staff, Jeffrey, give your presentation, please? DARROW: Thank you, Mr. Chairman. Good morning, Members of the Planning Commission, and Happy New Year. MOSES: Good morning. MIYASATO: Happy New Year. DARROW: Our next item on the agenda are continued—this is a continued hearing for two applicants, Arrow of Oregon/Hawaiʽi, LLC as well as David and Laura Rodrigues. The location—this is just for a brief update on, on the applications—the area of the subject, the subject applications are within the Kaʽū District of Hawaiʽi. More specifically, we’re looking in the Ocean View Subdivision area. Just for reference, we have the Hawaiʽi Belt Road that runs through the middle of the map. The ocean is in white down on the lower portion of the map. Other references—the Hawaiian Ranchos Subdivision which is identified in light blue. The subject properties are up in the upper right hand portion of the subdivision. 2 EXHIBIT C The applicant, Arrow of Oregon/Hawaiʽi, LLC, is located on Mahimahi and Liliana as well as Lurline. The different colors represent the area. Red represents the area of the original application which was five acres in size. The black identifies the portion for the amendment which is approximately eight acres. Applicants’, David and Laura Rodrigues, area is identified in red. They’re on the corner of Kailua Boulevard and Lurline Lane. Just for reference, this is the area of our previous applicant, Arrow, and they’re in the near vicinity. Their application is a new Special Permit, and it consists of approximately five acres. This is an area, aerial overlay of the area. Just for reference, we have Kailua Boulevard, Mahimahi, and Lurline Lane as well as Liliana. The blue in the upper portion of the map represents the area for Arrow of Oregon, and the yellow portion represents the area for Rodrigues. Applicant Arrow is requesting an amendment to Special Permit No. 09-76, which was originally approved to allow a cinder and quarry, rock quarry, on 5.003 acres of land situated within the State Land Use Ag, Agricultural District. The amendment will add an additional 8.009 acres for a total of 13.012 acres of land. The expanded quarry operation would consist of an office building, water catchment tank, a one-kilowatt wind generator, a weigh scale, and equipment storage area. Equipment will consist of two CAT D8 bulldozers, one CAT D6 bulldozer, two front load, front end loaders, two six-yard dump trucks, and a large excavator and rock crusher. Applicant Rodrigues is requesting a Special Permit to allow a cinder and rock quarry operation on 5.003 acres situated within the State Land Use Agricultural District. The applicants propose to remove approximately one to two truckloads of cinder from the project site on a daily basis. The operation will include an area to park dump trucks, trailers, and heavy equipment which consists of two loaders, two dump trucks, one Case dozer, backhoe, excavator, two trailers, a utility trailer, and spare parts. This is a chronology identifying the timeline of what has occurred with these applications. The th initial Planning Commission, Windward Planning Commission, hearing was on June 4, 2015 for both applications. At that time, HOVE Road Maintenance Corporation was granted standing in both cases. The Hearings Officers were—had a, which had accepted to preside over the contested case—consisted of Myles Miyasato, the Presiding Officer, Charles Heaukulani, Greg, Gregory Henkel, and Donald Ikeda. thst Contested case proceedings occurred on September 30 and October 1, 2015. The Hearings Officers have issued their recommendation which has been distributed to the entire Windward Planning Commission. Exceptions to the Hearings Officers’ recommendation has also been submitted and distributed to the entire Windward Planning Commission. And, lastly, or I’m sorry, additionally, we’ve received public testimony that’s been coming in. Those have been distributed and submitted to the Commission. 3 EXHIBIT C And, lastly, the entire record that has been built during the contested case hearing, has been distributed to all Commissioners in advance of today’s hearing. Lastly, we did receive several correspondence. One of them was something that we had received and submitted to the app—to the Commission this morning from Deborah Shelton \[sic\]. And, additionally, we’ve received another letter from Jon Dancel and Debbie Shelton \[sic\]. With that, that concludes our presentation. Thank you. HENKEL: Commissioners, do you have any questions of staff? DARROW: Thank you. HENKEL: We’ll do some public testimony now. I’ve got two people signed up. So, would Jon Dancel and Debbie Sheldon please come forward? And we’ll let Jon go first because he’s first on the list here. So, Jon would you raise your right hand, and do you swear or affirm to tell the truth on this matter now before the Planning Commission? DANCEL: Under God. HENKEL: Please state your name and area you reside in, and speak clearly into the microphone, and please limit your testimony to three minutes. DANCEL: Yes, my name is Jon Dancel. We live right directly across the quarry of Mr. Rodrigues and that whole area where they are mining right now, right directly closest to everything. For the record, I wanna let you guys know that I know you people are, are, you people know law. So, I’m just going to remind you folks something that I’ve learned from my sister, and her name was Stephanie Tabbada. She once was sitting on the table like you folks— but I just want to say something so you guys hear this, to remind you folks of who we all are and who, where we come from, through law. Deprivation of Rights USC 18 Section 242. Whoever, under color of any law, statutes, ordinance, regulations, or customs, willfully subjects any person in any state the deprivation of, of any rights, shall be fined under this title, imprisoned not more than one year or both. Deprivations of Rights USC 42, 1983. Every person under color of any statutes, ordinance, regulation, custom, or usage, usage of any state subjects or causes to be subject, any person within the jurisdiction therefore \[sic\] to the deprivations of the rights, privileges, and/or immunities secured by the Constitutions and laws shall be liable to the party injured in an action at law. Conspiracy to Interest \[sic\], excuse me, Conspiracy to Interfere USC 42, 1985. Two or more persons in any state or territory conspire for the purpose of depriving, either directly or indirectly, any person’s rights, the party so injured or deprived may be, may have actions for the recovery of damages against any one or more of conspirators. 4 EXHIBIT C Neglect to Prevent USC 42, 1986. Everyone who having knowledge that any of the wrong conspired to be done or are about to be committed and having powers to prevent, the aid preventing the commissions of the same, neglect to refuse to do, if such wrongful act be committed, shall be liable to the party’s injury. For me, I’m a—under article 12, section 7 that I’ve seen in the brief that was given to us and—I have vested rights under the Constitution. I have vested rights, interests to the land, whether mineral rights or what have you. And, all men decide whether they want to participate in institutions of man or not. The United States Supreme Court confirmed this when they said every man is independent of all laws except those prescribed by nature. All those except nature. So, we—we’re disrupting nature here. It’s not just in commerce and corporations. We are disrupting nature here. We live there. I don’t know how many people came up there and see all the, all the destruction was, was done on our place. And all the dust and crap that we breath every day. My grandchildren are sick from that. They have asthma problems. There’s no dust control. There’s no—I tell you, you guys don’t live there. My house is dirty every single day. My son has his house below us. And— SHELDON: —Time is up— DANCEL: —well, just try to bear in mind, if you folks were living in my house, how would you folks feel? It’s right directly across the street. It’s not far from—it’s like from here to that building right across the street. It’s not that far. Mahalo. Mahalo for your folks’ time and God bless you all and may the Lord have mercy on our souls and our decisions that you folks are gonna make. Thank you. HENKEL: Thank you, Mr. Dancel. Now, Debbie Sheldon, will you please raise your right hand, and do you affirm to tell the truth on this matter now before the Planning Commission? SHELDON: I do. HENKEL: Please state your name and the area you reside in. Limit your testimony to three minutes and speak into the microphone. SHELDON: Thank you. Aloha Raylene, Gregory, Danny, Myles, and Donald. It’s very nice to be in front of you today. Unfortunately, for this reason, but Mr. Rodrigues there is my friend. We worked together many years. He’s been very good, but unfortunately, this issue, I no longer want to see the mountains destroyed. But, you have my letter. My letter’s very clear. I did not submit with the letter, the pictures did not go through so I would like to share these pictures with you. This is what it looked like before. \[Secretary’s note: Photos were circulated among Commissioners.\] I grew up there in Ocean View. It was a wonderful mountain. I could run over it. There was lots of dirt, gardens, beautiful trees—ʽŌhiʽa trees. Lots of macadamia nut trees. Unfortunately, people come in for profit and gain. They destroy all that. 5 EXHIBIT C DANCEL: Cultural sites. SHELDON: Cultural sites that they say aren’t there. There were cultural sites there, but again, they went in, destroyed it all, before anyone could get up there and see it. I’ve called Clear Air many times complaining. No one shows up. But, of course, they call me back, but they are very thin. You know, everyone’s spread thin within the State departments, unfortunately. They’re not spending money in departments where they should be. So, what I ask you is to please take a look at the pictures. See the destruction, and put a stop to it. The roads in front my place, they’ve dug so deep on one side, and the cinder is very, very soft. I’m afraid that road is going to cave in at some point, and someone’s going to get hurt. So, it’s for safety and health, and wind—always windy in Ocean View. When they’re working, the crushers are going continuously all day long—the winds picking up that dust and blowing it directly to my home. It’s coming in through the thin cracks. It’s on my counters when I wake up in the morning. Thank you very much. Yeah, please consider this. Thank you. HENKEL: Thank you, Debbie. If, if you’re done, Commissioners, are there any questions for the testifiers? IKEDA: Yes. HENKEL: Mr. Ikeda. IKEDA: You know, looking at the map behind you, where is your house located? HENKEL: Here, we’ll give you a pointer. SHELDON: I own this corner lot and three acres in the middle of this— HATA-FINLEY: —Microphone— SHELDON: —directly across— ARAI: Microphone. HENKEL: Please use your microphone. SHELDON: Oh, okay. Okay, you see right, okay right here is the cinder pit. It’s very deep. That’s where the mountain once was. I’m right here. I own three acres there, and one on the corner here. So, this wind from here’s gonna blow straight to my house. It has blown for many years from here to my house. I’ve called many times ‘cause they come in with little motor bikes 6 EXHIBIT C and they have a track in there, and they go crazy. And, when the winds are up, it just blows into my house. It’s really been very, very disturbing. And, now my parents, my parents all died with lung issues. My grandchildren all have very bad lung issues, chronic. And so, I must be immune to it. I don’t know. But, yeah, thank you very much. HENKEL: Are there any other questions from the Commissioners? MOSES: I have a question. Debbie, how long have you lived there? SHELDON: I grew up there back in the sixties, ’67, so— HATA-FINLEY: Microphone, please. SHELDON: —I’ve been, I grew up there in the sixties, the late sixties, ’67. I grew up there, and I moved out for a while to go to school. I had my family. I went back home, and now I’m now employed, in order to make a living, I’m employed at Colony One Condominium as the resident manager there. So, my son is now in my home, but I grew up there. All my life. Okay, thank you. HENKEL: Thank you. Are there are other questions, Commissioners? Is there anyone else in the audience that would like to testify on this? Okay, then I’ll look for a motion to close the public testimony. MIYASATO: I make a motion to close public testimony. IKEDA: Second. HENKEL: It’s been moved by Commissioner Miyasato and seconded by Commissioner Ikeda to close public testimony. All in favor? COMMISSIONERS: Aye. HENKEL: Opposed? The motion carries. Will the parties please come to the table? MIYASATO: Chair? HENKEL: Yes. MIYASATO: I’d like to make a motion to move into executive session before you bring up the parties. I move that the Commission enter into executive session to consult with its attorney regarding questions and issues pertaining to the Commission’s powers, duties, privileges, immunities, and liabilities pursuant to HRS 92-5. IKEDA: Second. 7 EXHIBIT C HENKEL: There’s been a motion to enter executive session by Commissioner Miyasato and seconded by Commissioner Ikeda. All in favor? COMMISSIONERS: Aye. HENKEL: Opposed? So, we’ll be in executive session. If everyone would please leave the room. We’ll notify you when we’re, when we’re done. At 9:52 a.m., it was moved by Commissioner Miyasato and seconded by Commissioner Ikeda that the Commission go into executive session to consult with its attorney regarding questions and issues pertaining to the Commission’s powers, duties, privileges, immunities, and liabilities, pursuant to Hawai‘i Revised Statutes Sections 92-5(a)(4). A voice vote was taken of all Commissioners present, and motion carried with four aye votes. The room was cleared and the executive session started at 9:54 a.m. At 10:10 a.m., it was moved by Commissioner Miyasato and seconded by Commissioner Ikeda that the Commission go out of executive session. A voice vote was taken of all Commissioners present, and motion carried with four aye votes. The hearing reconvened for regular session at 10:11 a.m. HENKEL: We’re back in regular session. Will the parties please come to the table, please? Okay, thank you, and now will you raise your right hand? Do you swear to affirm, swear or affirm to tell the truth on this matter now before the Planning Commission? PARTIES: I do/yes. HENKEL: Okay, before we begin, for the record, I want to ask the Commissioners if they reviewed the entire record up to this point. Commissioner Ikeda? IKEDA: Yes. HENKEL: Commissioner— MIYASATO: —Yes— HENKEL: —Miyasato? MIYASATO: Yes. MOSES: Yes. HENKEL: Yes, and I have also. Can I have a motion now to accept the record of the proceedings before the Hearings Officer as part of the record before the Commission? Yes. 8 EXHIBIT C MIYASATO: I make a motion so moved as stated by the Chair. HENKEL: Is there a second to— IKEDA: —I second. HENKEL: —accept the— IKEDA: —Second. HENKEL: —the Hearings Officer—. There’s been a motion and a second to accept, to accept the proceedings before the Hearings Officer as part of the Commission. All in favor? COMMISSIONERS: Aye. HENKEL: Opposed? Okay, that motion passes. Next, the Intervenor made a motion for oral argument and renewed motion for a site inspection. Regarding the motion for oral argument, have the two parties come to any agreement on this? YEH: Mr. Henkel, Mr. Chair, no, not yet. I did get a chance to review—apparently from the Arrow’s perspective, they don’t have a problem with oral argument. They requested a 15-minute limit. You know, I would just point out that from the Intervenor’s perspective, we’re dealing with two applications; Arrow’s dealing with one. So, we would ask for a bit more time than the 15 minutes that’s been requested. I don’t plan to go over, much over 15 or 20 minutes, but I do want to have a little bit of leeway. And, I think Mr. Rodrigues, the Rodrigues indicated they didn’t feel oral argument was necessary. I think it is because I believe that we can best crystalize the evidence that’s now on the on the record that you’ve had a chance to review and kind of get into some of the exceptions that the respective parties have submitted. HENKEL: Okay, thank you. Unless any Commissioner feels differently, I am, as Presiding Officer, am inclined to grant the motion but limit the arguments to 20 minutes each. Commissioners, are there any objections to this? Then—then, we can begin. So the motion is granted. YEH: Thank you. HENKEL: Okay, I was going to do the oral arguments first, but regarding the motion for a site inspection, have the parties come to an agreement? YEH: Mr. Chair, Tom Yeh again. As I understand from the Rodrigues position, they don’t have an objection to a site inspection. From Arrow’s perspective, they do. From our perspective, we feel that, yes, there’s been photographic evidence, but really to get a sense of the perspective, the extent to which activities have been occurring in the area, the actual damage to the roads, and the 9 EXHIBIT C kind of impacts that exist, we do believe that it really is, in this instance, going to be a much more effective way and better way for the Commission to take a look at the issues from that perspective. And, you know, we now have, you know, some addition public testimony from some surrounding property owners that’s been recently received that, again, also gives you some idea of the impacts that are occurring out there. And, some of it includes, you know, prevailing winds and those kinds of things. You don’t have a chance maybe to see how dust-creating activities affects these neighbors, but to get a sense when you’re out there, what is happening physically on the ground. I think that’s just something that is really difficult to replace sitting here in this room, so we would just state that position. Thank you. HENKEL: Regarding the site inspection, oh, do any of the other parties have any comment? VITOUSEK: Yeah, Chairman Henkel, you know, we submitted an opposition to the request for site visit. We felt that, you know, there’s been more than adequate opportunity for the Commissioners to familiarize themselves with the site. There have been aerial photographs. There’s been a series of photographs that were introduced into evidence. We’ve been through a contested case hearing where we’ve had two days of testimony about the site and about different components of the site. You know, we think that there’s been more than adequate information that’s been presented to the Commissioners. We point out that this is an area that’s been quarried for more than 50 years, and that there are several on-going quarries in this area. And, we just would—in balance, you know, at the time of the contested case hearing, we took the position that if the Commission, if the Hearings Officer wanted to do it, that was fine. We didn’t object to it. But, at this point, it would just result in an unnecessary delay and additional cost of the proceeding and so we are opposing the site visit at this time. Thank you. HENKEL: Okay, thank you. There has been extensive photographic evidence presented to us, and Mrs. Sheldon gave us some new photographs today. As the Presiding Officer, unless any Commissioner feels differently, I’m inclined to deny the motion for a site objection \[sic\], site inspection. If—if there’s any objections by the Commissioners, please speak up, and I would look for a motion. MOSES: I would prefer to have a site visit, Mr. Henkel. HENKEL: Okay, we’ve got one Commissioner who would like to have a site inspection so would you put that in the form of a motion, please? MOSES: I make a motion that we do a site visit based on the information that we have received and the—I’m inclined to agree with Tom Yeh there that opposition of surrounding neighbors have come to—more have been received today, and I, I think it makes a difference. HENKEL: Is there a second? MIYASATO: I’ll second. HENKEL: Okay, discussion? 10 EXHIBIT C MIYASATO: Chair, I do believe that we have a time clock for action, and if we are going to do a site visit, what, what happens with that? Do we start it again or? PATEL: Yeah, procedurally, you’d be effectively reopening the evidentiary portion of the proceedings taking new evidence, going—conducting the site inspection, so basically your time clock, it’d be reset. The time line for the Commission’s action starts from the time the hearing is closed, and so conducting the site inspection would be reopening basically—if that answers your question. MIYASATO: Okay, thank you. HENKEL: Any other discussion? YEH: Mr. Chair, if I may. From the, obviously from the Intervenor’s perspective, we feel that the issues that are being presented are important enough, and we don’t have an objection to extending the time period that’s currently established. I’m just thinking out loud, but from a procedural perspective also that the—if we’re gonna deal with arguments, closing arguments, which I believe have been scheduled today, then if we’re going to do a site inspection, we would probably have the site inspection, then come back and finish it up and that way before the deliberations occur. And, possibly, it may allow for a more full Commission to be sitting here as well, so it kind of dovetails into that issue, so that’s just something to consider. RODRIGUES D.: Excuse me, am I allowed to speak? HENKEL: Yes, would you respond? RODRIGUES D.: In my response to the motion for the site visit, in order for it to be fair for all parties and for the Planning Commission, being that the issue has a lot to do with safety, safety of the roads, you must have something to compare it to. That’s why I said, you know, I could show you other parts of the subdivision also and—and, you know, we’d like to be able to meet with you there on site so we can explain our side of the story, too, and not just get a one-sided story. I hope that’s something that can be done if you’re gonna come out to Ocean View. Thank you. HENKEL: And, the Planning Commission \[sic\], do you have any input on this? Planning Director? SELF: The Director has no objections at this time to having a site inspection. HENKEL: Commissioner Moses, would you be open to amending the motion to include other sites as Mr. Rodrigues suggested for a comparison? MOSES: You know, it’s a huge subdivision, Mr. Rodrigues, and so—and I’m somewhat familiar being that I live in Kaʽū. I would prefer to just look at the site itself and address the issues there and not have to, you know, go, go elsewhere. That—that is my feeling. 11 EXHIBIT C HENKEL: Thank you. Any other discussion? Mr. Ikeda. IKEDA: I would like to know that if we approve the site inspection, do we have a continuance on this and then we start all over again? PATEL: So, there would be a continuance. You wouldn’t start all over from the very beginning, but the site inspection would be taking additional evidence. But, you wouldn’t need to redo everything that’s happened up until this point. HENKEL: Yes, Mr. Rodrigues? RODRIGUES, D.: And would we be able to meet with you there at the site also and talk to you folks or is this you guys just drive up and look at it yourself? PATEL: I think we can address that later, you know, if the motion is granted. HENKEL: Okay, let’s a— SELF: —Could I? I’d just like to draw your attention to Planning Commission Rule 4-23. There is a time limit for decisions, so I’m not sure if this is not more than 90 days after the close of the hearing. So, when the—when we had the hearing before the Hearings Officers, that hearing was closed, and in order to get a longer period of time, it has to be agreed by all the parties. So, I’m—I think procedurally, you’d have to get all parties to agree to continue or to—I mean, you can ask your attorney, but I’m just reading the rule. VITOUSEK: If I may, Chairman Henkel, in fact, there’s already been an extension. You know, the Corp. Counsel requested an extension of the deadline for 30 days in order to complete the Hearings Officers’ Report and recommendation so there’s been an agreement of the parties that th extended the 90-day deadline to January 29, 2016. So, I don’t—I mean, I don’t—I mean, I don’t see a motion to reopen the contested case hearing. All we’ve seen is a request for site visit by the Commission, and so I think the hearing, the contested case hearing record would still be closed and has been accepted by the Commission. But, I think that Ms. Self correctly points out that under 4-24 there’s a, there is a deadline to make a decision unless it is extended by agreement of the parties. HENKEL: Thank you. Any other statements from Commissioners or interested parties? PATEL: So, with all of that said, maybe as part of the motion, do we have a time frame for conducting the site inspection? Because, as Mr. Vitousek points out, the extension is to the end of January so, if it’s possible, we could potentially conduct the site inspection, come back here, and, you know, wrap this up before then. If all the parties are agreeable to that, then by agreement we could proceed that way, you know, and not necessarily have to reopen the docket. Absent the parties’ agreement, there should be an additional motion to reopen the docket to take further evidence, and that would restart the clock. 12 EXHIBIT C HENKEL: There’s a motion on the table then? PATEL: So, presently, the motion is to conduct a site inspection. With the discussion that just took place, is there a time frame, Commissioner Moses that you would like to conduct the site inspection within? MOSES: Yeah, I would like to conduct it as, as soon as possible, but if we do that and—are we able to come back? I’m a little confused. You’re saying that we would have to come back by the end of January. Correct? PATEL: Correct. MOSES: Or, if it doesn’t happen in that time frame, then we’re actually reopening the hearing? PATEL: There’d be a motion to reopen. MOSES: To reopen? PATEL: Yes. VITOUSEK: If I may, or the parties could agree— PATEL: —Correct, or the parties could agree otherwise. VITOUSEK: Or the parties could agree. So, and I don’t mean to intrude on the Planning Department, but if we could get an idea of possibly when we could come back, then that would make us, you know, give us concrete information on deciding whether to agree to the continuance. In other words, if we had an idea of when we could come back and get on the docket of the Commission again, that would make it easier to decide whether we can agree to that extension. HENKEL: And that would be up to the Planning Department. YEH: And while they’re checking that, one additional thought here which is, you know, really by implication or operation, when you have—and we had obviously requested the site inspection in the beginning prior to the close of the hearing—but when the Commission votes on doing a site inspection, which I think it has, or will do, by implication that actually reopens the hearing because now you’re taking new information anyway. So, whether you call it that or not, it has that effect of reopening it, so— PATEL: Yeah, for clarity, but, you know, we can still make the motion just so we’re all on the same page if that’s the case, right? So, Mr. Chair, I would suggest if we can take a short recess because we’ll need to figure out what’s going to be doable because we’re going to need to see if 13 EXHIBIT C the Commissioners would be able to first of all to return, you know, by the end of the month, if that’s what’s going to happen. We’ll need quorum. So, if we could take a short recess. HENKEL: Okay, and this is not to be confused with an executive session, right? We’re just going to recess for ten or fifteen minutes. PATEL: Just recess. HENKEL: Okay, let’s grant a recess while we work it out with the Planning Department. Chairman Pro Tem Henkel called a recess at 10:30 a.m., and the meeting was reconvened at 10:48 a.m. HENKEL: Could this meeting come back to order? Can I, can I remind you folks with microphones that we, you know, if one person’s talking, we need to kind of watch over the side conversations because these pick up everything. So, there’s a motion on the table. Could you re- read the motion as it was originally stated? DARROW: The motion on the floor is to conduct a site inspection of the subject area. HENKEL: And, did you want to amend it or— MOSES: So, here’s the motion. I move that the motion for site inspection be granted reopening the evidentiary portion of these proceedings, and that the site inspection be conducted on th January 15. HENKEL: And does the second agree with those amendments? MIYASATO: I second. I agree. HENKEL: Would this be by roll call or just? DARROW: I’ll, I’ll take the vote on this. HENKEL: Okay. DARROW: Thank you, Mr. Chairman. We have the motion before us. With that, I’ll take the roll call. Commissioner Moses? MOSES: Aye. DARROW: Commissioner Miyasato? MIYASATO: Aye. 14 EXHIBIT C DARROW: Commissioner Ikeda? IKEDA: Aye. DARROW: And Mr. Chairman. HENKEL: Aye. DARROW: The motion passes four to zero. PATEL: Okay, so with all of that done, as Mr. Yeh raised earlier, you know, it probably wouldn’t be best to have oral arguments today, and I would advise against it, in fact. So, unless there’s any other issues the parties wish to address, we should probably have a motion to th continue this hearing to February 4, which is the next regularly scheduled meeting of the Windward Planning Commission. VITOUSEK: Yeah, Mr. Chairman, I just had a question. I—is the, is the site visit being conducted by the Hearings Officers or by the Commission? PATEL: The full Commission. VITOUSEK: Okay, thank you. PATEL: Right, so we’ll need, you know, the usual quorum and all of that. VITOUSEK: And, also I mean while I’m not clear how it works, but I think the rules require that if this is, if this is considered evidence that’s being added to the record of a contested case hearing, then don’t all Commissioners have to participate if they’re going to make a decision on that? PATEL: No, not all Commissioners, because as long as we have quorum. VITOUSEK: Okay, and then how, how will we come to an understanding as to the conditions of the site visit because the problem with site visits is, you know, if some things are gonna be on the record, then any presentations or discussions that occur in a site visit should also be on the record, and we should be careful to observe the ex parte contact rules during the site visit. In other words, the Commission should be—it should be conducted in a way that any communication that takes place or any explanations that take place should be kept as a record if this is actually added to the record or the decision, and that we shouldn’t have like sidebar conversations where one attorney or one party takes one Commissioner and talks to them. I mean, I’m not trying to, I’m not trying to suggest anything. I’m just saying that because it’s part of the record of a contested case hearing, it has to be conducted in a way that is controlled and where all, all communication that takes place at the site visit is recorded in the record. 15 EXHIBIT C PATEL: I agree, and, you know, I don’t imagine any of the parties not agreeing, but for the record, is everyone in agreement with that? VITOUSEK: Yes. RODRIGUES, D.: Yeah, I just wasn’t sure if we could be there or not. PATEL: And you should be there. HENKEL: And, you know, the Commission’s been on site visits before, and we’ve been briefed on, you know, Sunshine Law and proper conduct, and I’m sure we’ll be briefed before this one, too, so— VITOUSEK: Great, thank you. DANCEL (from audience): For the record, I’m the owner across the street, yeah? HENKEL: It will be published I believe, right? DANCEL (from audience): All public record, yeah? PATEL: The public is able to attend. DANCEL (from audience): Okay, thank you. YEH: Yeah, and we’re in full agreement. We agree with those ground rules, and I think obviously when we get there, one person speaks at a time so that whoever is recording the conversation can be very clear who it is, etc. So, that works. PATEL: So, if nothing else, I think we need a motion to continue. MIYASATO: I make a motion to continue. IKEDA: Second. HENKEL: There has been a motion to continue by Commissioner Miyasato and seconded by Commissioner Ikeda. Any discussion? If not, all in favor? COMMISSIONERS: Aye. HENKEL: Opposed? Then, this item will be continued— YEH: —Thank you— 16 EXHIBIT C th HENKEL: —until February 4, and you will be notified. The discussion ended at 10:54 a.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission 17 EXHIBIT C