2023-11-09 Request for Reconsideration for Subpoena Duces Tecum

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DeVera, Ashley From: Ian R. Wesley-Smith <iwesley-smith@carlsmith.com> Sent: Thursday, November 9, 2023 8:16 AM To: Tavares, Sherilyn K.; Planning Board of Appeals Cc: Patrick K. Wong; Pause, Stephen (Steve); Braman, Eva; Kekai, Malia; Agustin, Noah; SalasFerguson, Sinclair; Lactaoen, Kawehilani S Subject: Re: 1'0 PROCESSING COMPANY INC (PL-BOA-2023-000065) Request for Issuance of Subpoena Duces Tecum Dear Board, Thank you for the prompt response and for the explanation. We appreciate the careful consideration of the filing. However, we respectfully request that the Board reconsider its denial. Our request for reconsideration is based on the following legal reasons (for ease of reference our responses are shown below in red, next to each of the numbered reasons for the denial): 1. If they are interpreting 3-9 of BOA rules of practice and procedure as this being of our duty or jurisdiction, they are misinterpreting the Rule. The Hawaii Supreme Court has made clear that "a contested case hearing affords parties extensive procedural protections similar to those afforded parties in a civil bench trial before a judge . . . [t]hese protections include the opportunity to issue subpoenas for witnesses to testify under oath or produce documents[.]". Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 136 Haw. 376, 391, 363 P.3d 224, 239 (2015). At the same time, Hawaii Revised Statutes §91-11 provides that a board "shall personally consider the whole record or such portions thereof as may be cited by the parties," and must "hear and examine all of the evidence." The power to issue subpoenas for the production of documents is important both to afford parties the rights recognized in Mauna Kea and to ensure that the Board considers all evidence. Section 3-9 of the BOA Rules expressly provides the Board of Appeals, and specifically the Chair of the Board, with the power and jurisdiction to issue subpoenas for the production of documents to a party (including DPW). a. Their request does not identify a specific document, or part thereof, and does not then specify what in that document is material or relevant to their case. Appellant is unable to identify specific documents, because DPW has not filed a record on appeal and no documents have been provided to Appellant. Therefore, Appellant has requested specific, narrow categories of documents: (1) communications and documents generated in response to the denial at issue (i.e. DPW's file); (2) any policies or procedures applicable to the denial at issue; and (3) other grants or denials of similar requests for a short two-year period. Those requests -- DPW's files on the denial, DPW's policies and procedures, and DPW's decisions on similarly situation applications for a 2-year period -- are narrowly-tailored and relevant to the legal issue in the appeal, which is whether the denial was made in clear error or was arbitrary. That is especially true here, where there is email evidence that DPW potentially revised their policies on agricultural exemptions specifically in response to Appellant's exemption request. See Request Ex. 1. b. Even if this applied, they did not request it in the appropriate manner/form per Rule 3-9(c). We believe that the proposed subpoena meets the requirements of Rule 3-9(c): Appellant provided the name and address of the proposed witness, inserted that information into the proposed subpoena, and filed a copy of the subpoena in the proceeding (as Exhibit 2). If there is another form that the Board prefers, Appellant is willing to resubmit as directed.