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HomeMy WebLinkAbout2016-09-15 Leeward Exh B (SMA 16-063) LEEWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT SEPTEMBER 15, 2016 A regularly advertised hearing on the contested case of OCEAN VILLAS AT KAHALU‘U BAY, LLC (SMA 16-063) regarding the designation and appointment of a hearings officer, was called to order at 9:47 a.m. in the West Hawai‘i Civic Center, Community Center, Building G, 74-5044 Ane Keohokālole Highway, Kailua-Kona, Hawai‘i, with Chairman Keith F. Unger presiding. COMMISSIONERS PRESENT: Keith F. Unger, Nancy Carr Smith, Scott Church, Collin Kaholo, Barbara Nobriga and Sonny Shimaoka ABSENT AND EXCUSED: Perry Kealoha ALSO PRESENT: Amy Self (Counsel for the Commission), Malia Ho (Deputy Corporation Counsel), Duane Kanuha (Planning Director), Daryn Arai (Planning Program Manager) and Noriko Sauer (Commission Secretary) And eight people from the public in attendance. APPLICANT: OCEAN VILLAS AT KAHALU‘U BAY, LLC (SMA 16-063) Discussion and action regarding the designation and appointment of a hearing officer to preside over a contested case proceeding regarding a Special Management Area (SMA) Use Permit application to allow for the development of a 306-unit multiple family residential project and its related improvements including, but not limited to, internal utilities and driveways, landscaping, recreational amenities such as swimming pools, and off-site infrastructural improvements such as sewer system improvements within Ali‘i Drive and an emergency access/driveway improvements within the proposed Kahului-Keauhou Parkway right-of-way. The affected properties, consisting of approximately 42.551 acres, is located along the mauka (east) side of Ali‘i Drive and Kahalu‘u Bay, approximately 1,375 feet north of the Ali‘i Drive-Makolea Street intersection in Kahalu‘u, North Kona, Hawai‘i, TMK: 7-8-010:004 and 7-8-014:013. UNGER: The third agenda item, Applicant Ocean Villas at Kahalu‘u Bay, LLC, SMA 16-063, discussion and action regarding the designation and appointment of a hearing officer to preside over a contested case proceeding regarding an SMA Use Permit application to allow for the development of a 306-unit multi-family residential project and its related improvements including, but not limited to, internal utilities and driveways, landscaping, recreational amenities such as swimming pools, and off-site infrastructural improvements such as sewer system improvements within Ali‘i Drive and an emergency access/driveway improvements within the proposed Kahului-Keauhou right-of-way. The affected properties, consisting of approximately 42.5 acres, is located along the mauka side of Ali‘i Drive and Kahalu‘u Bay, approximately 1,375 feet north of the Ali‘i Drive-Makolea Street intersection in Kahalu‘u, North Kona, Hawai‘i, TMK 7-8-10:4 and 7-8-14:13. Staff, did you have comments at this time? 1 EXHIBIT B ARAI: Very briefly. We do not have a PowerPoint presentation for you today, but at the same time I’m not going to speak extensively by chapter over us regarding the particular process; that has been outlined to you in the background report that was provided by the Planning Director. st As you may recall, back in your meeting of April 21 of this year where the applicant, the request by the applicant, Ocean Villas at Kahalu‘u Bay LLC, was heard by the Commission, and at that meeting standing for intervention was granted to Paula McMichael. The Commission at the particular meeting also, in addition to granting standing to Paula McMichael, also assigned the matter to a hearing officer to conduct the proceedings. And at your direction we have done so by going through the process of selecting a hearing officer in accordance with the Hawai‘i Public Procurement Code, Section 103D, Hawai‘i Revised Statutes. As noted in the background report, there were three particular companies on the County’s professional services list, and in accordance with the procurement process the law firm of Crudele & De Lima was selected to conduct the proceedings as directed by the Planning Commission. So with that, I just wanted to briefly bring you up to date. And again, this matter is scheduled today before you because of objections raised by the intervenor, Paula McMichael, in her letter dated August 16, 2016, copies of which have been provided to you. UNGER: Commissioners, any questions to staff? I’d like to call the petitioner Ms. McMichael up at this time. Please raise your right hand. Do you swear or affirm to tell the truth before the Planning Commission? MCMICHAEL: Yes, I do. UNGER: Thank you. Please state your name and residence for the record. MCMICHAEL: Paula McMichael, Kailua-Kona. UNGER: Thank you. At this time this is your opportunity to comment on your objection. MCMICHAEL: First of all, mahalo to the Planning Department to acknowledge my objection regards to the process for the selection of the hearing officer, and now being able to address this matter with the Leeward Planning Commission. I received the attach yesterday, and also I added “9.21 Hearing Officer. The Commission may authorize a hearing officer to conduct a hearing.” And I would like to request if at all possible for the Leeward Planning Commission to select, and I hope the Planning Department won’t object. Number 2 is Sherry Broder; she is on the list of three, the County 2015-16 professional service listing for hearing officer. And the reason: She is independent, and I was able to look her up and her particular background, and she represented the Dana Ireland case, which was a longtime standing conflict of interest here on the Big Island; Sherry also worked with OHA; and on one site her rating was ten out of ten stars; she is from O‘ahu, and I feel that there would be no conflict of interest. And if she is not available, Number 3 is Rosehill & Associates of Honolulu. And I do not have any issues or objection whatsoever to the negotiation of the contract by the Deputy Planning Director. 2 EXHIBIT B UNGER: Thank you. Commissioners, are there any questions to the petitioner? Carr Smith. CARR SMITH: Good morning. MCMICHAEL: Good morning. CARR SMITH: So you stated that you like Number 2 better and Number 3 is your next choice. You have issue with Number 1 that was selected through the proper process? MCMICHAEL: Well, just because they are on the Big Island, and I read through the, I read through them and they’ve had a lot of workings with the County here. And I, being a party to this, I just feel that I just don’t want any conflict, that’s all. And I feel it’s fair. And I’m working by myself, so I know what I’m up against, so. CARR SMITH: And you also feel that there is some reason why the procedure that the County typically follows is not the right procedure to follow in this case? MCMICHAEL: Well, because when I asked who were the hearing officers, I wasn’t given an answer. And I just feel it wasn’t fair, and just that word saying “in this instance,” so I asked, well, how was the others handled, why is my instance different than others? So it made me feel kind of awkward, so then I looked it up, and it said that the Commission makes a decision, and that’s what red-flagged it. And I, you know, like I said, it’s a big file. CARR SMITH: One last thing. UNGER: Go ahead. CARR SMITH: Was the procurement delegation from 2015 shared with Ms. McMichael? Is she aware of that so that — MCMICHAEL: I just, I just got this — CARR SMITH: — she understands. MCMICHAEL: — yesterday, and I read through it, and I have no objection — CARR SMITH: Okay. Thank you. MCMICHAEL: — at all. UNGER: Commissioner Church. CHURCH: My only question here is that in her letter, this is maybe for Daryn, is that she cites that by designating the Deputy Planning Director, which is permitted under the Procurement Code, okay, but then down below, it says, “The County Planning Rules Contested Case Procedure Rule No. 4,” “’Hearing Officer’ means a person or persons duly designated and 3 EXHIBIT B authorized by the Commission.” What, is Rule 4, what’s our role in that? How do we get out of the way, or are we automatically out of the way? Because, we have not by this Rule approved the designation, have we? How does this apply? I seem, I’m just confused by this. UNGER: Daryn, what we are going to do is, this is a point of law basically, and so I’m going to ask for an executive session after we hear from the testifier. And what we need to be clear on as Commissioners is what our responsibility is, what our kuleana is. And so, Daryn, if you have anything to add to that, or, Amy, if you have anything to add to that, I’d like to wait until after the executive session so that we are clear on what our responsibilities are. SHIMAOKA: Mr. Chair, I was just about to make that move to go into executive session. UNGER: Well, let’s, okay, great, and I will call for that at that time. Ms. McMichael, do you have anything else to add at this time? MCMICHAEL: No. I just say thank you for letting me and allowing me to — UNGER: Great, wonderful, thank you. MCMICHAEL: Thank you. UNGER: Thank you. You may be seated. Again, this is a public hearing. If there is any members of the public that would like to testify on this issue, now is the time. Commissioners, I need a motion to close this portion of the public hearing. KAHOLO: So move. SHIMAOKA: Second. UNGER: We have a motion by Commissioner Kaholo, second by Shimaoka. All in favor? COMMISSIONERS: Aye. UNGER: Opposed? \[None.\] The public hearing portion is closed. I’d like to ask the Commissioners for a motion to go into executive motion. SHIMAOKA: Mr. Chair, I move to enter into executive session to consult with the Commission’s attorney on questions and issues pertaining to the Commission’s powers, duties, privileges, immunities and liabilities pursuant to Hawai‘i Revised Statutes Section 92-5. UNGER: Do we hear a second? CHURCH: Second. UNGER: Second? We have a motion from Commissioner Shimaoka, second by Commissioner Church. All in favor? 4 EXHIBIT B COMMISSIONERS: Aye. UNGER: Opposed? \[None.\] We now move to executive session. Members of the public, we’ll probably be five to ten minutes in executive session, and then we’ll be back to continue the public portion of the meeting. Thank you. EXECUTIVE SESSION – The Commission went into executive session at 10:00 a.m. by a motion made by Commissioner Shimaoka, seconded by Commissioner Church, and unanimously carried by a voice vote, for the purpose of consulting with the Commission’s attorney on questions and issues pertaining to the Commission’s powers, duties, privileges, immunities and liabilities pursuant to Hawai‘i Revised Statutes Section 92-5. The Commission came out of executive session at 10:08 a.m. by a motion made by Commissioner Shimaoka, seconded by Commissioner Nobriga, and unanimously carried by a voice vote. UNGER: The meeting is back in order. Commissioners, I need a motion on the agenda item. CHURCH: Mr. Chairman, I would move that we accept the advice of our attorney that there is no action for the Leeward Planning Commission to take in this matter. NOBRIGA: Second. UNGER: We have a motion by Commissioner Church, second by Commissioner Nobriga. At this time, Commissioners, the motion is open to discussion. Commissioner Carr Smith. CAR SMITH: Yes. I just wanted to mention that even though Ms. McMichael has standing in this case, I don’t believe it’s appropriate for her to interfere with the procurement process. UNGER: Thank you. Any other comments? Staff, you call for a roll — SELF: I could, I could state, just to let you know that the Commission has completed its, the authority that they have is to make a motion to send a case to a hearings officer. But they don’t have any authority to actually select a particular hearings officer, so that is done through the procurement process; it’s State Law. For your objection you can always raise that at the hearing, but the hearing has not begun yet. That will be heard by the hearings officer. But you as an intervenor, if you want to state your objection on the record at that time, that would be an appropriate avenue. UNGER: Any other comments? Staff, roll call. ARAI: Thank you, Mr. Chairman. Commissioner Church? CHURCH: Aye. ARAI: Commissioner Nobriga? 5 EXHIBIT B NOBRIGA: Aye. ARAI: Commissioner Carr Smith? CARR SMITH: Aye. ARAI: Commissioner Kaholo? KAHOLO: Aye. ARAI: Commissioner Shimaoka? SHIMAOKA: Aye. ARAI: And Mr. Chairman? UNGER: Aye. ARAI: Mr. Chairman, motion carries with six aye votes. UNGER: Thank you. You’ll be notified in writing of the Commission’s decision. The discussion ended at 10:13 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 6 EXHIBIT B