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HomeMy WebLinkAbout2017-01-05 Hearing Transcript - Jan Malasek GAF ClaimWINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JANUARY 5, 2017 A regularly advertised hearing on the request by Jan Malasek to review a previous claim against the Geothermal Asset Fund was called to order at 11:15 a.m. in the County of Hawaii Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii with Chairman Gregory Henkel presiding. COMMISSIONERS PRESENT: Joseph Clarkson, Donn Dela Cruz, Gregory Henkel, Donald Ikeda, and Myles Miyasato. ABSENT & EXCUSED: Raylene Moses. ALSO PRESENT: Daryn Arai (Deputy Planning Director), Malia Ho (Deputy Corporation Counsel for the Windward Planning Commission), Jeff Darrow (Planning Program Manager), Maija Jackson (Staff Planner), Christian Kay (Staff Planner), and Sarah Hata-Finley (Commission Secretary). And 3 members from the public in attendance. REQUESTOR: JAN MALASEK Discussion and action regarding a request by Jan Malasek to review a previous claim against the Geothermal Asset Fund that was filed with the Planning Commission on June 4, 2004, seeking compensation for the loss of income from orchard and nursery operations over a 7 -year period due to PGV activity in the amount of $27,494. The Planning Commission, at its September 2, 2005 meeting and pursuant to its rules, awarded compensation in the amount of $7,246. The property is located at 13-683 Leilani Avenue, approximately 1,600 feet south of the Leilani Avenue-Pohoiki Road intersection, Leilani Estates Subdivision, Keahialaka, Puna, Hawaii, TMK: 1-3-028:018. HENKEL: With that, we'll move onto Number 4 on the agenda, Jan Malasek He's requesting discussion and action regarding a request by Jan Malasek to review a previous claim against the Geothermal Asset Fund from June 4, 2004. Now, first of all, we'll do our presentation, I think, right? DARROW: Hold on for a second. HENKEL: Hang on just a second. And, it looks like Jeff DARROW: No, no. HENKEL: No, Christian will present. I0V1111.11 11 KAY: Good morning members of the Commission. Happy New Year to you. All right, as was stated before, this is a review of a previous claim against the Geothermal Asset Fund. Requestor being Jan Malasek. I just wanted to give you kind of a brief overall idea of where the property is located. On the left hand side image here kind of zoomed out, identifies here toward the bottom is Leilani Estates. And, we've got Pahoa Town here. This area in the red batching in the middle is the Puna Geothermal Venture permit area, and the subject parcel is located in Leilani Estates as indicated by the red star. On the right hand side, we're zoomed in a little bit more, subject parcel being highlighted here in red. For reference, Leilani Estates is running generally north pardon me. Leilani Avenue is running generally north -south through the slide and Pohoiki Road is generally running east -west. So, just a brief chronology of and background as was provided in the Background Report. June 4th of 2004, Mr. Malasek filed a claim with the Planning Commission seeking $27,494 in compensation for the loss of income from orchard and farming operations over a 7 -year period due to Puna Geothermal Venture activities. On December 30th of 2004, a claims adjuster recommended that the Claimant's claim be accepted and to consider compensation within the $19,000 and $26,000 range. On July 28th of 2005, the Planning Director in his Recommendation report recommended denial of the claim for lack of evidence or documentation to support the claim and because compensation for future earnings was not a compensable claim under the Geothermal Asset Fund rules. August 5th of 2005, the Planning Commission voted on a motion to award the Claimant compensation in the amount of $25,361. The motion failed with two votes to four, and the Commission continued the matter to its September 2, 2005, meeting. On September 2nd, 2005, pursuant to its rules, the Planning Commission awarded the Claimant compensation in the amount of $7,246. It should be noted that no appeal of the Commission's decision was sought by the Claimant. In 2014, the Claimant wrote a letter to the Planning Department requesting that we revisit the claim and that's why we're here today. So, in terms of your discussion and action, the request involves a review of a claim made in 2004, which was assessed against rules in place at that time. At that time, it was Rule No. 14 regarding the Geothermal Asset Fund which allows the Commission to authorize the payment of money for the Geothermal Asset, from the Geothermal Asset Fund to claimants whom the Commission finds has been adversely impacted by activities authorized or unauthorized by Geothermal Resource Permit No. 2. EXHIBIT D 2 It's just a very brief overview of what was in the Background Report. I'm happy to answer any general questions about the record or what was in this report, but any specific guidance or interpretation of the rules, I would defer to Corporation Counsel. With that, I'm happy to answer any general questions. HENKEL: Are there any questions? I have one. The slide you have up right now says that the previous action was assessed against the rules in place at the time, Rule 14? KAY: Correct. HENKEL: In what way? KAY: So, Rule 14 which at the time, Rule 14 had authority over the claims against the Geothermal Asset Fund. That rule has since been changed to Rule 12, but because this is a review of that claim back in 2004, my understanding is that you would be using Rule 14 to kind of guide your discussion and decision making. Does that answer your question? HENKEL: Yeah, it does. I just, you know, and we have Rule 14 here, and I just, I don't see how KAY: Right, so that— HENKEL: —their action is in violation of Rule 14 because, because Mr. Malasek was certainly impacted. KAY: Sure. It's not a, it's not a function of a violation. It's just that his claim at that time was assessed against Rule 14. HENKEL: I—okay, it's the language, it's semantics, I guess. Okay. KAY: Okay. HENKEL: Okay. Is there any other discussion? For clarification, this is a, an attempt to reconsider the request. KAY: That's my understanding. The language that is on the agenda and what, what was used is a review of that original request. HENKEL: And, I asked Corp. Counsel earlier, and I guess with that would be involved is Mr. Malasek would agendize a request or his past request to be reconsidered at a future date. KAY: I'm going to defer that back to Corporation Counsel in terms of what that guidance is. HO: We should go to executive session. EXHIBIT D 3 HENKEL: Could we have a motion? CLARKSON: So moved to go into executive session. 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. DELA CRUZ: Second. HENKEL: It's been moved by Commissioner Clarkson; seconded by Commissioner Dela Cruz to enter executive session. All in favor say aye? COMMISSIONERS: Aye. HENKEL: Opposed? Okay, could we clear the room? At 11:22 a.m., it was moved by Commissioner Clarkson and seconded by Commissioner Dela Cruz 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 Hawaii Revised Statutes, Section 92-5. A voice vote was taken of all Commissioners present, and the motion carried with five aye votes. At 11:23 a.m., the Commission went into executive session. At 11:35 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 the motion carried with five aye votes. The hearing reconvened for regular session at 11:36 a.m. HENKEL: Thank you. We're back in session. Would the applicant and their representative come forward now, please? Would you please raise your right hands? Do you swear or affirm to tell the truth in this matter before the Windward Planning Commission? MALASEK: Yes, I do. OLSON: I do. HENKEL: Okay, then, please state your name and proceed. MALASEK: My name is Jan Malasek representing myself. HENKEL: Okay, and let us know, let us know what you want to talk about. MALASEK: My compensation for the, for my garden. HENKEL: Okay. EXHIBIT D 4 OLSON: Jon Olson here. I represented him back before the Planning Commission. He was not available. He was on the mainland when the issue came up. So, the fact that we're back here is partly my fault. I'm here to take that responsibility. Just to be clear, I didn't receive all of the paperwork I probably should have had and didn't have full knowledge of some of the things that had happened. I had not seen Chris Yuen's letter overruling the adjuster's issue and the issue of the agriculture, and the issue of agricultural compensation for the crops and plantings that he lost on the property, so. HENKEL: Okay. Any comments from the Commission. You know, I'm, I live in an area impacted by geothermal, and I'm sympathetic to people that live even closer than I do. And, I'm also sympathetic to the, you know, the fact that if you—say if you're a furniture builder, and you feel forced to relocate, you can—you can move your tools and your materials and your equipment and so forth and continue working, so, you know, I understand when you, when you plant trees that it's difficult. But, I think the underlying factor here is the time between the last Commission's judgment or and—and, there's nobody on that Commission here now that it's, you know, I just think it's too late for us to do anything. OLSON: Well, again, this is probably my fault because we only recently had a discussion. You know, I've known Jan for 30 odd years. And, somehow or another we got back on the topic, and I was hearing things from him that I was not aware of, and I said, well, you know, you—maybe we can get this looked at again because clearly, the original rules of engagement, I mean, he, he had the land for almost, what, 20 years, and he was planting it before he built the house on it. It is, for Puna, it's—it's extremely interesting topography because it's a 1,500 -year old cinder cone, and it's now soil. And, you can grow literally anything on it, and you can grow things like, like he grew coconut trees, and they were easily extractable because they were cinder soil. So, they were a prime commodity, and you can't, you can't just go anywhere and do it. There's about, what, ten acres in all of lower Puna that I know of that is like that in terms of its, its characteristics to grow things, his fruit trees. So, it just, it's fallen through the cracks, and the fact that the reason that Yuen did what he did was not apparent to me at the time. So, like I say, this is in part my fault. HENKEL: You know, there are different factors that play here and that the Planning Director, you know, recommended not approving it. OLSON: Yeah. HENKEL: The claims adjuster recommended one amount. OLSON: Yeah. HENKEL: And, the Commission at the time awarded another amount. OLSON: Right. EXHIBIT D 5 HENKEL: And—and, I mean, I think what we're looking it is that it was so long ago, and that you, I mean, you got the check and cashed it, right, so it, I mean, I don't know that it would be legal for us to take further action at this point. OLSON: Yeah, well the question is recourse. What is the recourse? HENKEL: Yeah, use your microphone to talk please, Jon. OLSON: You know, what is the question is, you know, does he—does he have any recourse? mean to the point that the relocation process didn't, didn't even consider compensation for agricultural product off of agricultural land. I mean, it was, the property was, is in ag. It is agricultural land, yet the, their compensation program doesn't take any account to that. HENKEL: Yeah, my point is that the recourse probably should have been eight years ago. OLSON: Yeah, I'm not arguing that. HENKEL: And, I mean—yes, Jan? MALASEK: Well, I was not present when the last time when the Planning Commission dealt about this, and when I came back few months after that, it said I had ten days to appeal the ruling. It was already past ten days so it doesn't make any difference anymore, no? If I appeal half year or a year later or when? I just. HENKEL: Any other comments? Then, I guess we're ready for a motion to action. CLARKSON: We have to close testimony. HENKEL: I'm sorry, that, well is there any public testimony? You guys can return to your seats, and nobody's signed up for public testimony so I'll look for a motion to close public testimony. Thank you, Commissioner Clarkson. MIYASATO: I make a motion to close public testimony. CLARKSON: Second. HENKEL: It's been moved by Commissioner Miyasato; seconded by Commissioner Clarkson to close public testimony. All in favor, say aye. COMMISSIONERS: Aye. HENKEL: Opposed? Okay, public testimony is closed. Now, if there's any further discussion and/or a motion for action would be the time. CLARKSON: I'd like to make a motion. I move that the request for reconsideration be denied based on Rules 12-6(f), 12-10(b), and 12-13, and their corresponding rules at the time with the EXHIBIT D 6 header 14-6(f), 14-10(b), and 14-13, and based on the facts that Requestor, Mr. Jan Malasek, did not use his right of appeal or request reconsideration in a reasonable time and, thus, the Planning Commission's decision, evidenced by the October 3rd, 2005 letter sent to Mr. Malasek, is final. HENKEL: Is there a second? MIYASATO: Second. HENKEL: Discussion? Then, roll call vote. KAY: Thank you, Mr. Chair. Commissioner Clarkson? CLARKSON: Aye. KAY: Commissioner Miyasato? MIYASATO: Aye. KAY: Commissioner Dela Cruz? DELA CRUZ: Aye. KAY: Commissioner Ikeda? IKEDA: Aye. KAY: And, Chair Henkel. HENKEL: Unfortunately, aye. KAY: Thank you very much. Motion carries five, nothing. HENKEL: Thank you. You'll be notified by the Planning Director of our action. Thanks for coming forward. The discussion ended at 11:45 a.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission EXHIBIT D 7