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Home My WebLink Aboutpcmin05-11-10 KAUAI PLANNING COMMISSION REGULAR MEETING May 11, 2010 The regular meeting of the Planning Commission of the County of Kauai was called to order by Vice Chair, Herman Texeira, at 10:15 a.m. at the Lihu`e Civic Center, Mo`ikeha Building, in meeting room 2A-2B. The following Commissioners were present: Mr. Herman Texeira Ms. Paula Morikami Mr. James Nishida Mr. Jan Kimura Mr. Hartwell Blake Ms. Camilla Matsumoto Absent and excused: Mr. Caven Raco Discussion of the meeting, in effect, ensued: APROVAL OF THE AGENDA Chair: Before I call for the approval of the agenda I would like to announce that we have two items that we are planning to change the order of, one is the Special Order of the Day, it is normally at the beginning of the meeting but we are going to change that to 1:00. It is shown in your packet, I believe. And the second one is the executive session and we will be holding that at the end of the agenda and that is item A.1. Is there anyone in the public wishing to comment on the changes, if not... Ms. Morikami: Mr. Chair, move to approve the agenda as amended. Ms. Matsumoto: Second. Chair: Any questions on that item, if there are none all those in favor say aye, those opposed, motion carried. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to approve the agenda as amended, motion carried unanimously by voice vote. Ms. Morikami: Mr. Chair, I would like to move to approve the agenda as amended and receive for the record all submittals, applications, staff reports, testimony, and addendums presented to the Commission relating to the posted agenda. Ms. Matsumoto: Second. Chair: I would just like to clarify this is just for the receipt, the agenda has already bee n approved and this is just for the receipt... Ms. Morikami: Receipt of all submittals. Chair: We have a first and second, any questions in regards to this matter, if there are none, all those in favor say aye, those opposed, motion carried. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to receive for the record all submittals, applications, staff reports, testimony, and addendums presented to the Commission, motion carried unanimously by voice vote. Chair: The next item is the minutes, what is your preference? Planning Commission Minutes May 11, 2010 Page 1 JUN 2 2 201Q Mr. Blake: I have a question about the minutes. These are the minutes of April 13tH specifically the...you know we went around and around on what is an art shop and at the end of our discussion there still wasn't any agreement on what exactly an art shop was except that there was general agreement by the Commissioners that the type of art shop that is in existence at the present time was acceptable when applied for and is acceptable and permissible today. So my suggestion for future reference is that if someone wants a Use Permit we should probably have them define specifically not just generally, welding shop or art shop or wrapping golf clubs. They should tell us specifically what their business plan is so that we have something, a basis, for determining whether some other activity which they may well consider to be within the parameters of the general permit, whether that activity is appropriate or not under the permit that was granted. Chair: So you want a clear definition. Mr. Blake: Like I say, we were having a hard time defining art. In the future I think instead of just having generic titles for what the special use would be that we have the applicant define in writing what exactly they want to do so that the permit, if it is issued, so states and gives the... and I think that that would give the inspectors, facilitate their inspections. And it would give the Commission more of a basis to determine whether an applicant continues to be in compliance or not. Let them define it. That is my suggestion with regard to the last meeting's minutes. Chair: How do you suggest we treat that? Mr. Blake: I don't know, you may want to ask Ian that. Mr. Costa: I guess we would just take your recommendations to consideration. The applications are case by case but I think just on what you are saying we can... Mr. Blake: And that was I don't think, you know if you had an art shop in one block in a residential area and an art shop right up the road, because of the nature of the Use Permit and how that special use has to comport with the residential requirements and not be opposed, I guess. We don't have to say just because we let this one happen we have to let this one happen too. Under the circumstances this is fine, this one is not and I believe that if the applicants themselves defines what exactly he wants his Use Permit to cover then we can yeah or nay. And precedent, I don't believe and the Attorney can correct me if I am wrong, doesn't carry as much weight in Use Permits as they do in other types of decisions that we make. Mr. Jung: I think it may be prudent to do a workshop on the standard for the Use Permit what you can and cannot look at but we are on the approval of the minutes so I don't know if there is anything you want to amend... Mr. Blake: That doesn't have anything with the approval. That was just for discussion purposes. Mr. Jung: We will look into it and see if we can maybe set up some kind of workshop and have the planners prepare something. Chair: I just wanted to comment. I just don't want to create an undue level of work for the Planning staff. Your question as it relates only to the special use permits, not to other permits, right? Mr. Blake: The Special Permits are special, that is why one would be different from another whereas you come in for a Class IV, there is a definition of what a Class IV requires and if the applicant stays within the four corners of the Class IV then we have nothing to say except to approve or disapprove. Chair: Can I get back to the motion, are you through? Mr. Blake: Yes. Planning Commission Minutes May I1 2010 Page 2 Ms. Morikami: Mr. Chair, move to approve the regular meeting minutes of April 13, 2010. Ms. Matsumoto: Second. Chair: Questions? None, all those in favor say aye, opposed, motion carried. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to approve regular meeting minutes for 4/13/10, motion carried unanimously by voice vote. Ms. Morikami: Mr. Chair, move to receive and accept the executive session minutes of March 23, 2010. Ms. Matsumoto: Second. Chair: Questions, all those in favor say aye, opposed, motion carried. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to approve executive meeting minutes of 4/23/10, motion carried unanimously by voice vote. COMMUNICATION Recommendation (5/4/10) from Planning Director Ian Costa that the Planning Commission reschedule the previously postponed public hearing for the following permits to June 22, 2010, 9:00 a.m. or shortly thereafter, at the Lihu`e Civic Center, Moikeha Building, Meeting room 2A-213, 4444 Rice Street, Llhu`e, Kauai, Hawaii [Class IV Zoning Permit Z-IV- 2010-15, Use Permit U-2010-14 and Special Permit SP-2010-3 to construct and operate a pavilion consisting of an indoor auditorium, conference center, certified kitchen, and an outdoor amphitheater on a property located along Kuhi`o Highway, approx. 1,500 ft. northwest from the Hi hway's intersection with Kolo Road, Kilauea, Kauai, further identified as Tax Map Key 5-2- 017:028, and affecting a 6.55 acres portion of a 15.17 acre property, postponed 4/27/10.1= Anaina Hou LLC. Staff Planner Kaaina Hull: Good morning Chair and members of the Commission. The public hearing for the subject permits, applicant Anaina Hou, was scheduled for April 27, 2010 however the applicant failed to meet the notification requirements set under section 8-19.6 of the Kauai County Code. Pursuant to the same section in the event that the applicant fails to meet the notification requirements the Planning Commission is to re-schedule the public hearing within 60 days. And given other time constraints and news paper publications and whatnot the department is recommending that the Commission re-schedule the public hearing for June 22, 22, 2010. Chair: Have you spoken to the applicant concerning this in terms of them not doing this on a timely basis? Staff: The applicant was made a way that they had failed to meet the requirements of the Kauai County Code and as such the public hearing was, the notification was at fault, and the agenda'd public hearing couldn't be held because the notification requirements couldn't be met. So the department as well as the applicant has to go through with one, re-publishing the news paper and then notifying the abutting property owners. And so they are aware that because they failed to meet the requirements it would have to be re-scheduled. Chair: Do any of the Commissioners have any comments for our planner? Mr. Nishida: What was the nature of the failure? Staff: The actual failure was the public hearing was published in the news paper by the department, the applicant had notified the abutting property owners however they failed to deliver as required under section 8-19.6, they failed to deliver an affidavit to the Planning Department within 7 days of the public hearing. That was the specific failure that caused the re- scheduling. Planning Commission Minutes May 11, 2010 Page 3 Mr. Nishida: How do these extended dates affect the timelines for the Use Permit? Staff. As set in the code, in the event that the applicant fails to meet the notification requirements it states specifically that the Commission will re-schedule within 60 days and so June 22nd is within that renewed 60 day time period. Chair: Anyone else wishing to ask any questions? Mr. Blake: So that doesn't put any more pressure on the department does it? Staff: No. We do have to re-publish in the news paper however the applicant does pay for that. Our Director's report has already been transmitted to the Commission. Mr. Blake: So assuming for the sake of argument there continued to be two or three more of these procedural errors because the applicant has failed to do something. We just keep re- scheduling? Staff: I might direct that to the County Attorney. Mr. June: In the event that they do not follow the code then it would just get postponed again because it is their own failure so the timelines that we are bound by would also be re- scheduled. Chair: Any other comments? What is your pleasure? Ms. Morikami: Mr. Chair, move to approve the department's recommendation and schedule the public hearing for June 22, 2010. Ms. Matsumoto: Second. Chair: Call for the question, all those in favor say aye, those opposed, motion carried. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to approve staff recommendation, motion carried unanimously by voice vote. SUBDIVISION Mr. Nishida: Subdivision Committee meeting report for May 11, 2010. There was no general business, communications or unfinished business. New business, final subdivision action S-2010-25, County of Kauai, Department of Water, Kukuiolona Park Trust Estate, TMK: 2-3-005::002 and 006, approved 3-0. Tentative extension request for S-20005-41, Visionary LLC, TMK: 3-7-002: portion of 001, approved 3-0, tentative subdivision extension request for S- 2009-21, Grove Farm Properties Inc., TMK: 3-3-003: 041, approved 3-0, motion to approve the subdivision report. Mr. Kimura: Second. Chair: Questions? Mr. Blake: I have one. The Visionary parcel is right next to the airport? Mr. Kimura: By the helicopter service. Mr. Blake: We were looking at the buyers are precluded from filing noise complaints because of the airport or generated by the airport? Mr. Nishida: It's an industrial subdivision. Mr. Blake: This is an industrial subdivision, okay. Mr. Jung: But there are avigation agreements that are entered into between people near and around the airport with the State of Hawaii that reflect noise concerns. Planning Commission Minutes May 11, 2010 Page 4 Mr. Nishida: Is that a standard with like is there a limit and then they just do that automatically? Mr. June: I don't know where the bounds are in terms of how far from the airport but the State of Hawaii does require on these types of easements so they can't go after the State for noise nuisance. Chair: Any other comments? All those in favor say aye, opposed, motion carried. On motion made by James Nishida and seconded by Jan Kimura, to approve Subdivision Committee Report, motion carried unanimously by voice vote. UNFINISHED BUSINESS There was no unfinished business. PUBLIC HEARING There were no public hearings. NEW BUSINESS For Acceptance into Record - Director's Reports for Proiects Scheduled for Public Hearing for 5/25/10 Public Hearing. Variance Permit V-2010-4 and Class IV Zoning Permit Z-IV-2010-16 to construct and operate an 85 ft. high wind turbine at a farm in Kapa`a, located on Kaapuni Road, approx..75 miles from the Kaapuni Road, Olohena Road, and Kaehulua Road intersection; further identified as Tax May Key 4-6-011:024, and affecting a portion of 5 acres = Honua Home Aina Organics, LLC. Director's Report pertaining to this matter. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to schedule a public hearing for 5/25/10, motion carried unanimously by voice vote. Use Permit U-2010-15, Class IV Zoning Permit Z-IV-2010-17 and Special Permit SP- 2010-4 to permit the construction and operation of a wastewater reclamation facility associated wastewater collection system in K61oa, located at the former Koloa Mill site on Mahaulepu Road, approx..65 miles east of the Mahaulepu Road and Ala Kinoiki Road intersection, further identified as Tax Map Keys 2-9-002:001 and 2-9-001:001, affecting an area of approx. 2.7 acres; and to permit the construction and operation of a wastewater pump station in Koloa, located on Weliweli Road, approx. 100 ft. east of the Weliweli Road and Waikomo road intersection, further identified as Tax Map Key 2-8-011:001, and affecting an area of approx. 640 sq. ft. = HOH Utilities, LLC. Director's Report pertaining to this matter. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to schedule a public hearing for 5/25/10, motion carried unanimously by voice vote. For Acceptance and Finalization - Director's Report for Shoreline Activity Determination. There were no Director's Reports for Shoreline Determination. Commission recessed for lunch at 10:36 a.m. Meeting was called back to order at 1:01 p.m. SPECIAL ORDER OF THE DAY Planning Commission Minutes May 11, 2010 Page 5 Contested Case Proceeding (This matter is conducted pursuant to HRS Sections 91-9 and 92-6. Therefore, no public comment will be accepted on this item): In the matter of the Planning Department of the County of Kauai, Petitioner, vs. Patricia W. and Michael G. Sheehan, Permittees, Petition to Revoke, Amend or Modify Special Management Area Use Permit SMA(U)-87-8; Use Permit U-87-32; Special Permit SP-87-9; and Class IV Zoniniz Permit Z-IV-87-40. Receive for the record: 1. Hearing Officer's [Proposed] Findings of Fact; Conclusions of Law; Recommended Decision and Order; Certificate of Service dated April 14, 2010. 2. Permittees' Objections [Exceptions] to Hearing Officer's [Proposed] Findings o Fact. Conclusions of Law; Recommended Decision and Order, Certificate of Service filed April 26, 2010. 3. Petitioner's Memorandum in Support of Hearing Officer's [Proposed] Findings of Fact Conclusions of Law; Recommended Decision and Order. Certificate of Service filed May 3, 2010. 4. Interveners' Memorandum in Support of [Proposed] Findings of Fact; Conclusions of Law• Recommended Decision and Order; Certificate of Service filed May 4, 2010. 5. Relevant transcripts from all hearings before the Planning Commission and/or the Hearings Officer. (On file at the Planning Department) 6. All evidence introduced at hearing either by stipulation or order. (On file at the Planning Department) 7. All other pleadings filed by the parties and received by the Planning Commission and/or Hearings Officer. (On file at the Planning Department) Consideration whether to accept with or without modifications, reject or defer action on the Hearing Officer's [Proposed] Findings of Fact. Conclusions of Law: Certificate of Service dated April 14, 2010. Mr. Blake: Mr. Chairman, I would like to recuse myself because back in the 80s when the boating situation first, when we gave birth to the boating, I represented two boating companies. After that with the County Attorney's office we were involved in the boating situation again, prior to that I was on the Planning Commission during the boating hearings. So because of my prior contact with the industry I feel it is best if I recuse myself from this proceeding. Chair: This matter is being conducted pursuant to HRS section 91-9 and 92-6 therefore no public comment will be accepted on this item. Commissioners, before we begin discussion may I have a motion to receive for the record and order the secretary of the Commission to file the following: (Items listed above). Ms. Morikami: Mr. Chair, move to receive. Ms. Matsumoto: Second. Chair: Any discussion, all those in favor say aye, opposed, motion carried. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to receive items 1 thru 7, motion carried unanimously by voice vote. Chair: We are now in consideration on the Hearings Officer's proposed Findings of Fact, Conclusions of Law and recommended Decision and Order dated April 14, 2010. As part of the received documentation the permittee has made a request for oral arguments. Is there a motion on this matter? Ms. Morikami: Mr. Chair, move to approve the request for oral arguments. Planning Commission Minutes May 11, 2010 Page 6 Ms. Matsumoto: Second. Chair: Any discussion, all those in favor say aye, opposed, motion carried. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to approve request for oral arguments, motion carried unanimously by voice vote. Chair: This is the procedure for oral arguments, each part will be allowed 30 minutes before the Planning Commission for oral arguments. Each part will then be allowed an extra 5 minutes for rebuttal with the petitioner going last. Mr. Minkin, your argument. Mr. David Minkin: Thank you Chair, other Commissioners. What we have before us is a 64 page document that has been submitted by the Hearings Officer and the Hearings Officer was properly delegated by this Commission to hear the matter in a contested case matter. At the end of the day what we have is his proposed Findings of Fact, Decision and Order which has been objected to with exceptions by the permittee, Mr. Sheehan, through his counsel. At the end of the day it is the Commission's authority, not what the Planning Director says, that holds sway. What we have before you is a well thought out, well reasoned decision by Mr. Kosaka that basically started as a 3 day hearing in March of 2009. And at the request of the permittee as well as the other parties agreeing, it basically morphed into 14 days of contested case hearings with direct examination, cross examination, re-examination, and questions by the Hearing's Officer. There were more than 130 exhibits that were submitted via stipulation. There were 6 witnesses that were called for live testimony and live testimony is important because that allows the Hearings Officer to make a determination as to credibility of witnesses. It is one thing to read testimony on paper, it is another thing to see the witness and hear the witness testify subject not only to direct but to cross examination, credibility. In addition, prior to the actual hearing commencing in March at the request of the permittee who had indicated that he did not know what we were going to do with the OSC, depositions, limited depositions were allowed of Mr. Les Milnes, Mr. Mike Laureta, and Planning Director Ian Costa. Those depositions took place, the intervener through counsel was not present and there was no cross examination. A good deal of what is being challenged with the Hearings Officer's decision and recommendation to you folks is that the Hearing Officer somehow should have relied upon Ian Costa's testimony in his deposition. But as we pointed out in our memorandum in support of the Hearings Officer that testimony is heresy, that testimony could have been used to impeach Mr. Costa when he was called as a live witness. And what is even of more significance is that it was not myself as the petitioner that called Mr. Costa, it was the permittee. The permittee called Mr. Costa as its first witness and Mr. Costa testified over the portion of 5 full days. That was direct examination. That was cross examination by myself and the intervener as well as questions by the Hearings Officer and an opportunity for the permittee to re-question or clarify anything that was testified to by Mr. Costa not only in the hearing but anything that he may have said earlier to point that out to him. And I won't go into the case law that is cited in our memorandum as to why that was something that should have been done if that was so important to the permittee but it just wasn't done. What is significant and why you should adopt the Hearings Officer's Findings, recommendation and decision, the Hearing Officer in two places held that Mr. Sheehan was not credible. The Hearings Officer has that ability in your place to make that determination because he got to listen to all of the witnesses, review all of the documents, and assess the demeanor and basically held, based on the substantial evidence to the contrary certain statements of Mr. Sheehan and positions that he put forth were not credible. The exceptions or the objections, all that can be focused on are only the ones that were cited. And what we pointed out is there are significant Findings of Facts, Conclusions of Law that were not objected to and those should not be challenged or be allowed to challenge at this late point because the opportunity was there. The rules require that it be done by a certain time frame and only those that were specifically challenged and the document was filed on May 26, which was a Monday, but it was actually delivered to everyone on May 23rd so it comported with the rules. What you have are permits that this Commission granted in 1987 and there is history there. What you have before you is also notice of violations that were issued in July of 2007. You have a Director's report that was issued in October of 2007. An OSC arising out of that Director's report also issued later in October of 2007. You then had a hearing; a contested case Planning Commission Minutes May 11, 2010 Page 7 hearing that commenced of March of 2009 and was concluded in June of 2009. At the time that the violation notice went out in July of 2007 those violations existed, those violations have existed for a very long, some of them a very long time going back to 1987. At the time that the OSC was issued in October of 2007 by this Commission those violations still persisted. There were some attempts though I characterize them as half-hearted attempts to try to remedy some of those violations but those violations to this day have not been remedied fully and satisfactorily. They still exist as we sit here today. And what are the violations and without going over everything that is before you I will just highlight that the initial violation notice dealt with condition No. 2, condition 4, condition 5, and condition 8 of the permits. The easiest one to deal with and look at is condition 8, it required 100 parking stalls. Not that there be sufficient space for 100 cars but actual delineation, demarcation of 100 parking stalls. And yes there was testimony that there was an architectural plan submitted that delineated stalls in that architectural plan but the testimony by Mr. Milnes was, on a site inspection there was other, some of those stalls were not usable or feasible as stalls because there were other things such as plant and rock structures that basically needed to be moved or removed from that area. So to this day that requirement from 1987 has never been complied with. But is that it alone and the answer is no. There are other conditions that were mandated to this day that have not been complied with. No. 2, compliance with the flood control ordinance and obtain building permits. The overwhelming testimony was that there were a number of structures on this site or these sites that building permits may have been pulled for at some point in time but never actually received, never signed off on by every department that is required to sign off. But even then, for those structures that were on wheels that were moveable, they still needed to comply with the flood control ordinance and there has been no showing that they did so. So now we have two conditions that have not been complied with over time, condition 2 and condition 8. But that is not it alone, we have condition No. 5. Condition No. 5 required annual reports, basically before any new boats or any new owners were allowed to utilize the facility it mandated and required that that request basically come before the Commission and that has never taken place. So we have now not just two but we have three conditions that overtime have not been complied with. We then have condition No. 6 that talks about no landing or launching unless permitted by DOT and there is an issue as to what DOT permits or doesn't permit. But the reality is if that particular issue was of such concern or the permittee believed that it was no longer valid the permittee had options and had an ability to come before the Commission at any point in time to try to eliminate, modify, or amend any of the conditions and as you well know from the record that has never happened. And finally, condition 4, basically saying that these permits are on a temporary basis unless there is a long range facility or solution. And you have to go back as to what was the intent in granting these permits at the outset, the intent at granting these permits at the outset was to deal with an issue in Hanalei Bay and try to find something, grandfather those boaters in over time. And what have we learned? All of the other boaters over time went to other boat yards. It doesn't whether they were new facilities or existing facilities they either went to those facilities or they went out of business and that was the whole purpose of granting the permits at the outset. So what option or opportunities do you have given the overwhelming evidence? Condition 12 allows you to modify or revoke and that probably was the toughest decision before the Hearings Officer, what to do because it was a tough decision for me as an advocate on behalf of the petitioner. What if it was just the 100 parking stalls? Would there be a request and you have to think this out, would there be a request to revoke the permits in their entirety? And I would submit to you, probably not. But what do we have, we have a long history of violations, half hearted attempts to sort of claim that those violations are being fixed or corrected or remedied but at the end of the day not really true. We have multiple conditions, significant conditions that fly in the face of why the permits were issued at the outset. And given the history, given what is out there, given the lack of serious attempt by the permittee to remedy these situations, and not just remedy them only when called to his attention but they could have been remedied or there was ongoing history, they should have been remedied years ago or they should have been brought back before the Commission if there was any misunderstanding as to what was required or not required. Given the totality of the number of violations, the ongoing nature of the violations and literally the lack of a need for a boat yard in Hanalei at this point in time, these permits should be revoked. Planning Commission Minutes May 11, 2010 Page 8 And what is significant is that while the permittee talks about a number of boats under quote the same names or the same companies, what the testimony proved and conclusively is that those entities have changed hands, the boats have changed hands and there has been zero compliance with the terms and conditions of these permits at least in the past 3 or 4 years, zero compliance. Based on that revocation is not only appropriate it is proper, it is based on substantial evidence, it is based on credibility of the witnesses. The burden on the petitioner who I represented was preponderance of the evidence, and what is preponderance of the evidence, it is not something 100 percent, preponderance you start out 50150 and if the scales tip, that is preponderance of the evidence. Based upon the overwhelming testimony of the witnesses including the witnesses put forth by the permittee, revocation is warranted and I believe you should accept the Findings of Fact, Conclusions of Law, and Decision and Order by the Hearings Officer, thank you. Chair: You don't need any more time? Mr. Minkin: I am fine, thank you. Chair: Mr. Wilson, your argument please. Mr. Richard Wilson: Thank you Mr. Chair. I have to start out by saying wow from hearing what Mr. Minkin said because do you know what that is Commissioners? That is called argument. He didn't cite to a single fact. You guys have been on the Commission for a significant amount of time, you folks know that what a lawyer tells you is not evidence or testimony, lawyers are advocates, it is the facts that control, it is the testimonies of the parties. And aside from a gloss over of what Mr. Minkin thinks is in the Findings of Fact and Mr. Minkin thinks the facts are, he didn't identify a single fact. It was just a quick "well we think that Sheehan did this and he didn't do this and the half hearted response." Well that is not evidence, not at all. He can't testify to that fact. One of the things he says, in fact let me go to what the County's position statement was. This is their memo in support of the Hearings Officer's findings. On page 34, and this is the way they attempt to characterize Mr. Sheehan in front of you, "Revocation of permits is warranted especially given permittee's continuous repeated and long standing pattern of violating the permits conditions. Permittee's half hearted attempts to seek after-the-fact approvals for some but not all of the conditions violated, only after he is caught must not be allowed without sanctions. Permittee has shown a continuous and continues to show a flagrant disregard for the authority of the County agencies and the Commission in general and for the conditions in the permits in particular." I mean if it were a novel and if you wanted to write something really sexy to get everybody's ears up, my God, Sheehan must be the worst person ever. He must be holed up in Hanalei, doesn't respond to the County, doesn't respond to the Planning Department. In fact Commissioners, you would expect that there would be a file a foot high of all these violation notices, complaints, notices to him in any way, shape or form, and a stack of return receipt request that he hasn't signed. That is not the truth. And let me tell you I just said counsel's argument. I am not going to argue. I am going to tell you what Ian Costa testified to under oath. Question: "Is there anything that you can think of that Mr. Sheehan hasn't done that he should have done in terms of trying to comply with the allegations in the OSC that he is somehow in violation of his permits?" Answer: "I can't think of anything specific, no." "What about in general? Is there anything that comes to mind that Sheehan didn't do that he should have done?" "I can't say." Now we have heard this depo testimony, Mr. Costa's deposition is not heresy. He was represented by counsel, the fact that the interveners decided not to attend, the fact that his counsel decided not to ask him any questions doesn't under value or devalue his testimony. That is testimony under oath in his capacity as the Planning Director. And in fact it is evidence in this proceeding. If it were heresy they would have objected, they would have come up with some evidentiary basis to exclude it. They didn't, it is testimony, it is probative, it gets the same weight as his testimony at the contested case proceeding. And in fact Mr. Costa's testimony doesn't change. Here is from the contested case proceeding on April 3`d, three months later. Question: "As you sit here today, and this is on page 1305, as you sit here today is there anything more that you can think of that Mr. Sheehan should have done in terms of trying to comply with the allegations in the OSC that he is somehow in violation with his permits?" And then there are some objections, objections are overruled. "I would just respond by saying I can't think of anything at this moment specifically that he could have done." Planning Commission Minutes May 11, 2010 Page 9 Question: "Anything you can think of7" Answer: "Other than what has been highlighted as him attempting to do," question, "Can you think of anything in general, does anything come to mind?" Answer: "No." Now we have heard from the interveners, they say Ian Costa's testimony is irrelevant, he is the Planning Director and it doesn't bind you. The Planning Department, that doesn't bind you either. Bind, you have an obligation as Commissioners to make an independent decision based on the facts. This is not a perfunctory proceeding where your job is to rubber stamp what Mr. Kosaka says. And what the lawyers at Planning for the County, the outside lawyer is hired to represent the Planning Department tell you is, your job is to independently look at what the facts of this case are and come to your own conclusion. Otherwise we are all going to end up in the Fifth Circuit again. That is your obligation and responsibility. Now when they keep saying Ian Costa, well that is irrelevant, don't listen to his depo testimony, he doesn't bind you. Members of the Commission, you weren't here in 2007, the way this came up was the Planning Department filed a motion. They submitted the Director's report. And I am sure you folks have seen, I would assume you have seen them and gone through the process in the past. The Planning Department via Mr. Costa and the Director's report said here Commissioners, this is what we think Sheehan is doing and we want an OSC. The Commission, and when I say the Commission I know you folks weren't on the Commission at the time, did not independently under condition 12 say gee, I wonder what Sheehan is doing, lets independently under our guidance, under our direction go an investigate Sheehan. And we are going to get the facts and we are going to go forward with an OSC. No, in fact you folks, the Commission, relied on what the department said. The Commission wholeheartedly relied on the Director's report which is signed by Mr. Costa. So really to tell you folks today hey you know, Ian Costa, I wouldn't listen to him that is specious. That is the facts in evidence and testimony. And it is fascinating to me that the lawyers now say well, Wilson and Sheehan called Costa first. Right, because he speaks for the department. He signed off on the Director's report, he is the one that requested the OSC, he is supposed to be the spokesman. Decisions and positions stop with Mr. Costa. Who else do you do to, if you not going to listen to Mr. Costa and the Planning Department, then what? Where is the non-arbitrary? Where is the objective review of what the facts are? Of course it is with the Planning Department. I am sorry because in my own mind hearing what the County's attorneys have told you, it just grinds me because again, they do this nice broad swath of...let me tell you what it is. Let me tell you again what the facts are, if you look at page 4 of the Director's report that was the basis for the OSC being issued. Now we have heard from Mr. Minkin Sheehan has been in violation for years, years. Go back, look at this guy; he is probably the worst permittee ever. What do they say on page 4? I will tell you what they say, quote, "no unauthorized activity on the boatyard side occurred between the period of 1997 and approximately July of 2007. However in September of 2006 the department received concerns and complaints of commercial boats poised to commence operations from the boat yard." Now I am sure you are thinking, Mr. Wilson, hang on a second, activity, isn't that going to be a little bit different than what is a violation? Does Mr. Sheehan have to engage in an activity to be in violation? That would be a good question. No. You look at one of the permits, the conditions that Mr. Sheehan has purportedly violated that is 2. That is the building permit issue. Well to have... and what it is, is there are containers that have been there since the hurricane, he moves them around, there are two mobile living units that have been on the property, have been off the property. Those containers, those mobile units were on the property in 2007. That is an activity of bringing containers and placing them there. So when the Planning Department tells you folks no unauthorized activity you can't separate that out. They are saying between 1997 and 2006 before the boaters were poised to start operating all those activities, having the containers there, no violation. He is not is violation of his permits, having a mobile living unit there, not in violation of his permits. And it is interesting in what the other part the County ...just going back to what they say, "His half hearted attempts and he only does this after he is caught." I don't know if you folks have been to the boat yard, it's not surrounded by a 15 foot tall steel fence enclosure with razor wire and gun emplacements, it is wide open. Mr. Milnes had an open invitation ongoing from Mr. Sheehan, go ahead, inspect any time you want. So it's not like all of a sudden gee, we got you Sheehan. It has always been there. How can they say on the one hand out of one side of their mouth no unauthorized activity for that 10 Planning Commission Minutes May 11, 2010 Page 10 year period and then turn around just because now boaters are going to be poised to operate, on no Sheehan, you need building permits for that. You are in violation. Oh no Sheehan, your parking. Because people have parked there since day one since 1987 irrespective of whether they were commercial tour boats operating. How come all of a sudden now you need to show us exactly where those parking stalls are. I will get to exactly what the language of his permit says because we all read English; it is supposed to be the common every day usage. And remember this is a permit, these permits were written by the Commission, not by Mr. Sheehan. And in fact Mr. Costa testified under oath that the purpose for this proceeding was to seek clarification of his permits. Now members of the Commission, I find it highly suspect and quite frankly belies common sense that the lawyers tell you revoke, revoke, revoke, yet the Commissioner, I mean I am sorry the Planning Director says well, yes we are kind of seeking clarification because I am not really sure what this means. Those are two diametrically opposed positions to take, you can't have both. You can't have both. But in any event, how does that square with what we hear from the County's attorney saying Mr. Sheehan has all these violations? If there are violations where are they? There are none. Mr. Sheehan has constantly attempted to discuss matters, has always been essentially at the Planning Department's beckon call for information. Again I have said you know, don't listen to Wilson, lets listen to what the facts are. Okay, here is Mr. Costa's testimony again, this is on page 1042, during the proceedings this is not his deposition: "You have been Planning Director since February, 2003." Answer: "Yes.". "When you became Planning Director prior, from the time you were Planning Director, prior to the fall of 2006 when Mr. Milnes testified that he began investigating Mr. Sheehan's operation," answer, "okay," "due to community complaints had you had the issue of Mr. Sheehan's operations ever come to you as Planning Director of any concern or complaint?" Answer: "I recall only via Mr. Sheehan." Far from Mr. Sheehan thumbing his nose at this Commission, at the County, at the Planning Department, here is the Planning Director in the prior 3 years, who brought up the issues, Sheehan did. Sheehan came to the Planning Department. Question: "Between 03 and the fall of 2006 how many times did Mr. Sheehan come to you to discuss his operations in Hanalei at the boat yard, more than 10?" Answer: "I can't say with certainty but it would sure seem like more than 10." More than 10 times, here is the permittee coming to the Planning Director. "And when he would come to you, I believe your testimony and deposition was that he would constantly provide you with documentation and information, is that correct?" "Yes." Now again you have the lawyers saying no, no, Sheehan, no, bad guy, thumbs his nose at you folks, he never responds and his response after the fact is half hearted. That is just not what the facts are. Again with Mr. Costa at the proceeding and this is on page 1046, "Was there ever any request that you made to Mr. Sheehan between the time you became Planning Director and the fall of 2006 in which Mr. Sheehan did not respond?" Answer: "I don't recall any instance." It is one thing to be an advocate but it is another thing to wholeheartedly misrepresent the record to you folks. You guys are the decision makers relying on what the record is. I mean that is what Mr. Costa says and I guess the way the Planning Department attempts to get around it is to say yes, he is just the Planning Director. Right, he is the Planning Director. He speaks on behalf of the Planning Department. You guys have been given information by the Planning Department and now by its lawyers, get rid of Sheehan's permits. That is not what the Planning Director says. That is not what he testified to under oath. In the Planning Department's supplemental memo in support of the decision and I believe Mr. Minkin just touched on it briefly, there is nothing that stops Sheehan from coming forward and seeking clarification. I agree. Mr. Sheehan will tell you he has never misunderstood what his permits say. He knows what they say and he has complied with them to the best of his understanding. But he actually went to Mr. Costa. "To your knowledge," and this is on page 1369, "has Mr. Sheehan ever sought clarification or modification or amendments to any of the conditions of his permits?" Answer: "I am not aware or cognizant of any formal attempt to get clarification from the Planning Commission however I just say that numerous inquiries either to myself or the office and providing of information to Mr. Sheehan over a number of years, I would have to characterize that as seeking clarification, yes." Again, absolutely contrary to the Findings of Fact that have been presented to you by the Hearings Officer as well as the County and the argument we heard from counsel today. It has been Mr. Sheehan's position and it remains our position especially in light of the Findings of Planning Commission Minutes May 11, 2010 Page 11 Fact that this is really a political, it is pure politics. And you know I read in the paper and every time I hear it, it turns me off because it seems that everybody always just says that, that is their excuse, it's just politics. Let me read to you from Mr. Laureta. Mr. Laureta was the CZM Planner at the time that all this was going on in 200612007. This is from his deposition which is in the record of this proceeding. "Do you know what Mr. Milnes's response to either the July 23`d, and that was Mr. Sheehan's first response to the violation notice which is exhibit 10, or the August 16th which is exhibit I IT' And that was a follow up that Mr. Sheehan had actually requested Mr. Milnes to come to the property and walk it with him to identify specifically what the problems were. Mr. Milnes not only didn't respond to it but he never walked the property with Mr. Sheehan. Answer: "Specially no but I will tell you that there was at some point you had submitted a lot of stuff, a lot of responses and the department hadn't responded to you." Question: "That is correct." Answer: "And at my insistence and this was another thing that really bothered me, that based on any other violation that Les," Les Milnes, the CZM Inspector, "had processed any time some responded with something you would get acknowledged, okay. What I saw was and I think the most recent letter to you from us did acknowledge receipt of a whole bunch of stuff on one letter." Question: "A year later?" Answer: "Yes and that was the part that really troubled me because what was being done is it was being complied and thrown into the file for the OSC process for the Hearings Officer and I said that ain't right. You don't do that to any other notice of violation person. When they submit something to you, you acknowledge, you always acknowledge it. Why are you not acknowledging everything he is sending you and we had a screaming match at Planning in the whole office." Question: "Do you know why it was just Mr. Sheehan that nobody was responding to?" Answer: "No, well it was just we did have a very loud discussion in my office about the lack of responses or acknowledgement to your submittal of stuff and I think this was part of it and that is why I reiterated, I want out. Because if you guys are going to shaft him like this just politically," and excuse my language ladies but this is the transcript, "fuck, I want out." It is either we are going to respond to him, we are going to acknowledge what you submitted and we are going to tell him what he is short of and if we don't do this, I am out. I don't want to do this because this isn't the way you do it." And he acknowledged that meaning Mr. Milnes. He tried defending it but then when he realized we should do it because his akole was flapping in the breeze, this is not the way you handle violation notices. You have to respond to this stuff. This is not me saying let me objectively kind of look and massage the facts. This is from the CZM Planner. Mr. Laureta is no longer at office. Political, we are going to shaft him politically. That is a fact and that is testimony and that is not something I could even create. So when you hear the County's presentation now of these broad brush strokes with not an iota of testimony or fact, I hope it causes you folks to sit back for a second and pause, wait a minute, are we being really told what the facts are? Or are we just being what the lawyers think we ought to know meaning just their argument. The other thing, the testimony here and actually this is from Mr. Milnes, again I don't want to testify, I will say what Mr. Milnes who is the inspector says. This is a question, this is page 441, question, "I am just saying, I am not saying all cases but sometimes violation notices." "You testified yesterday, a violation notice was to put the permittee on notice of violation to identify remedies and to allow the permittee to address those remedies, do you remember that testimony?" Answer: "Yes, so you are not given a moving target, here is what you need to do and you do it." This is what Mr. Costa says, question, "And were you as Planning Director the one who initiated the decision to have the Director's report and OSC prepared at the time?" Answer: "Yes." "You don't know presently as you sit here today what the reason for that time was?" "No." "And you don't know, there was no specific reason other than to try and get this (inaudible) or move forward as soon as possible. Were you aware that Mr. Sheehan was in the process of providing a certified plan and a map that was requested of him in the violation notice at that time?" "Not specifically, no." Question: "Would it be fair to say that," and this is on page 1258 of the proceedings, it is not his deposition, "would it be fair to say that it really wouldn't have mattered what information Mr. Sheehan was providing in response to the violation notice, the OSC was going to go forward and this matter was going to be brought to the Commission as quickly as possible? Would that be fair?" Repeat my last question, record is read back, question, "I don't mean the OSC but the Director's report and the request for the OSC, it really didn't matter what Mr. Sheehan was responding to, that was going to be prepared and the OSC was going to be requested of the Commission, would that be fair?" Answer, "Yes." I mean it is as though there is a separate bank of rules that only apply to Mr. Sheehan. Everybody else is allowed or is told what the violation Planning Commission Minutes May 11, 2010 Page 12 is, they are given an opportunity to respond and they go forward and fix it and if they don't they come to Commission. We already know from Mr. Costa, is there anything that Mr. Sheehan didn't do, no. Think about that from a common sense perspective. There are two ways to violate a permit, either you do something you are not supposed to do or you don't do something that you should do. Now if the Planning Department through its Director says there is nothing more you can do, I can't think of anything general or specific, then if the claim was you should have done something but you didn't you must have done it or the Planning Director would say no, hang on a second Sheehan, you have to do x, y, and z. Or if there is something he did that he was not supposed to have done and he is attempting to cure and he still hasn't cured it the Planning Director would say wait, you still have to do this. You can't say no, there is nothing more for him to do, those are mutually exclusive positions. Again, all we hear is argument from counsel but none of the facts. I don't mean to be speaking so quickly but I know I don't have a lot of time Mr. Chair. I am going to try to stay within the 30 minutes. I may request a little additional time but I am really going to try to move quickly. You folks have all seen in the record the violation notice, I hope, and the Director's report and the Order to Show Cause. The violation notice prepared my Mr. Milnes at the end said you had these five purported violations and then you are being directed to do three things. And that was incorporated in the Director's report and actually that was part of the OSC because if you look at the October 7th OSC on the last page, page 5, it says `By preponderance of the evidence condition's 2, 5, 6, and 8 have clearly been violated. By violation notice dated July 18, 2007, Michael G. Sheehan was directed to do and there are 1, 2, 3 bullet points. It says "The applicant has responded in writing to the allegations though has not complied with all requirements of the violation notice in a timely fashion." (Inaudible) has not complied with all the requirements. It is interesting because you know those three directives and the first one is two orders, the Planning Department doesn't have the authority to order Mr. Sheehan to do any of that. There is nothing of that in his permit. In fact again, don't listen to counsel let's listen to what the Planning Director says because he speaks on behalf of the Planning Department. This is on page 1138, "Can you cite me any legal authority that you are aware of in your capacity as Planning Director that would authorize the Planning Department to issue a cease and desist in this instance to Mr. Sheehan?" "I am not sure I can." Question: "So the cease and desist is more voluntary?" "Yes for the purposes we use it as." Question: "And you see how it says pursuant to condition 47 Answer: "Which question?" "It is on No. 1, the cease and desist language. It says pursuant to condition 4, cease and desist." Answer: "Okay, I am sorry." "Take a look at Mr. Sheehan's permits under condition 4." Answer: "Okay." "Can you direct me to any language in that condition 4 which you believe is related to a cease and desist?" Answer: "I don't think so." Again the cease and desist was used as a means to ask the violator to, alleged violator to voluntarily cease and desist. And in fact if you look at the Morgan case which is cited throughout all the briefs under Morgan vs. Planning Department, County of Kauai, neither the Planning Department, the CZM Inspector, nor actually with all due respect to you Commissioners, can issue a cease and desist. That is like an injunction. Only the circuit court can do that. Then you go to the second part of the first directive, and this is on page 139, question, "Then the second part of No. 1 says to provide the department with a current list of occupants using the facility for presentation to the Planning Commission for review and approval as required by condition 5. Take a look condition 5." Answer: "Okay." "In condition 5 of Mr. Sheehan's permit is there any language indicating that the Planning Commission has to also approve a list of occupants using the facility?" Answer: "Well I believe condition 5 is a provision that in the case of a substitution or transfer of permits that that be reviewed by the Planning Commission. And I believe that is the basis for stating that." "It doesn't say review and approve like Mr. Milnes says in the violation notice. Mr. Sheehan's permits are specific, it just says review, correct?" "Yes it does say that." "Does Mr. Milnes have the authority to modify or amend the terms or conditions of Mr. Sheehan's permits?" "No." The second part, question, "Mr. Milnes demands Mr. Sheehan submit a certified survey of all current development and he says including the current meets and the bounds to ensure compliance with the CZO required setbacks and required setbacks from the vegetation and debris lines of the Hanalei River. Do you see that?" Answer: "Yes." "Where does he get the authority to require Mr. Sheehan to do that?" Answer: "I can't say that. I can't say that he has that Planning Commission Minutes May 11, 2010 Page 13 authority but I think it is, let's see, it is a way to well, in this case it served as a way to get requested accurate drawings of what exists." Question: "Essentially it forced Mr. Sheehan to spend, I believe he spent close to 20 thousand dollars, force him to spend money to get an accurate drawing of his boat yard area, survey his boat yard, correct?" "It does make that requirement, yes." "In which he in fact did even though Mr. Milnes doesn't have the authority to request him to do it, right?" "Yes, I can't specifically state where or what provides him with that authority." Again, this is from the Planning Director. This is in the violation notice that was waved in front of the Planning Commission saying hey, go to an OSC, Sheehan is not complying with what we tell him to do. They don't tell you folks and they didn't tell the prior Planning Commission oh, actually by the way, we don't have any authority to ask him to do that. And in fact he has responded but anyway we want you to go forward. Here is the last condition, No. 3, and in No. 3 it says "Submit certified architectural plans along with proper permit applications for the noted alterations along with any other changes which may occur or may be proposed. The plans and permits approved today for review and approval by the Planning Department and/or Planning Commission within 30 days of receipt of this notice." "Where does Mr. Milnes have the authority to demand Mr. Sheehan submit certified architectural plans?" Answer: "I am not aware that we have specific authorization to any law to that affect. I am assuming that is a result of having received plans in the past that didn't appear to be accurate but I couldn't say that we have that authority." And you know I think I have mentioned it before and I am sure you folks are aware of the consequences of being arbitrary and capricious. You have to treat permitees equal. You have to give everybody a level playing field. Question: "And then it says in the last full paragraph, it basically gives him 7 days to reply in writing or the Planning Department is going to proceed criminally or civilly against him, do you see that?" Answer: "Yes." "How did Mr. Milnes come up with 7 days if you know, is there an objective standard rule?" Answer: "There is no written standard or rule." Question: "So Mr. Milnes could have told him to come up with a response in 30 days if he wanted to, is that correct?" "Yes, I believe so." I mean this is selected, the shortest period of time and as Mr. Costa testified it is to get it in front of the Planning Commission. He didn't even know what Mr. Sheehan was doing. Now I am going to skip and jump just a second because we have heard from the County Attorney that Mr. Sheehan has violated 8, 2, 5, 6 and 4, that is essentially been triggered. Question to Mr. Costa, "I just want to make sure the record is clear because we talked about condition 8 and you testified as you sit here today you can't, in looking at exhibit 5, the certified plans, it is not your belief he is in violation of condition 8 as you sit here today, correct?" "It does appear that way." You notice Mr. Costa doesn't say no, he is in violation because having space for 100 stalls is different than having 100 stalls. I mean how much more of a semantic game can you have? And we will specifically talk about that permit in a second or that condition. "And then condition 6, we have talked about that, launching and retrieving and it is your belief that as long as the company is one of the original permittees, I think that is exhibit 6 that we looked at, that Mr. Sheehan would not be in violation of condition No. 6, correct?" Answer: "I would just have to say that he has appeared to have provided evidence to show that he has complied." Question: "And then condition No. 5 about identifying who the occupants are, the boat owners. I believe your testimony was based on the letters that had been submitted, he has complied with condition No. 5, correct?" "Again, he has provided documents and evidence to show that he has complied." Question: "And condition No. 4, if there was a long range solution or alternative spaces or alternative sites. You are not aware of DOT identifying any alternative sites to Mr. Sheehan's property, correct?" Answer: "Correct." "And it is your belief today that the trigger or that the condition hasn't been triggered thus far, correct?" "That is my understanding." That is four of the five conditions. And what does Mr. Costa say, looks like he has complied. Tie that into his testimony at the proceeding, at the contested case hearing. "Is there anything more Mr. Sheehan has to do, needs to do?" "Not that I know o£" How can the County now, how can the lawyers, how can they come to you folks now and say no, Sheehan is in violation. Mr. Costa says no, it looks like he has complied. You know they haven't cited a single line of testimony where Costa says Mr. Sheehan is in violation of this condition and hasn't done x. Not a single time because you know if they did I bet you they would have led off with that and they wouldn't be trying to undercut Mr. Costa. Think about that, the moveaunt in this case is the Planning Department. How is it that the Planning Department now is trying to have you folks distance yourselves from Planning Commission Minutes May 11, 2010 Page 14 their own Director? That ought to cause you folks alarm that wait a minute, that doesn't make any sense. Chair: Mr. Wilson, we will give you another 10 minutes. Mr. Wilson: Let's go to the permits themselves. One thing I do want to say with respect to the interveners. They agree with the Planning Department, don't listen to Mr. Costa, he is irrelevant. Again that just belies common sense but they also say that somehow the Decision and Order of Mr. Sheehan's master permits from 87, that is incomplete, you can go outside of it. They do that because there were certain proposed findings, there were certain representations made by Mr. Sheehan's prior counsel. You guys have issued permits. If it is not in our Decision and Order you have either ...you do three things with findings, you accept, you reject, you come up with your own based on the facts. If it is not in the order, it is not in the order. And in fact if you look at page 13 of the master permits from 87, on the top in (c), the Commission rejected a ton of proposed findings. The Commission knew exactly what it was doing, it was issuing the permits. Let's start with condition No. 8 since I agree, it is probably the easiest one to do. What exactly does his permit say? "The Commission further reserves the right to require additional parking stalls if the site is deemed unnecessary." That is not at play here. That has never been an issue. "At a minimum 100 parking stalls shall be provided initially and need not be paved unless required by the Planning Commission after the annual review," notice the annual review, not annual reviews, plural, "or sooner if traffic hazards result." Now what the lawyers for the Planning Department tell you know is no, Sheehan has to come and give you certified architectural drawings, point out to where you are, if they move them point out here. I beg you Commissioners, where does it say that that is a requirement of his permit? It says have 100 parking stalls. And their other semantic game is, well, having space for 100 parking stalls is not 10 parking stalls. Would they have Mr. Sheehan go with diesel oil and mark the lines, or put lime, or lye, in the SMA? There is no requirement that they be identified in any way, shape or form, space. And you note, never a complaint that Sheehan did not have sufficient space for 100 stalls. This is all subjective nonsense. This boat facility, it is 8.4 acres, it is not a parking lot. I guess this is argument, in 8.4 acres you can't park 100 cars? The facility has been there for 23 years. And remember, according to the Director's report no violation in the last 10 years. How could all of a sudden he be in violation of not having sufficient parking? He was either in violation in 87 and continued to be in violation or he is not in violation now based on the language of the permit. And it is not for Mr. Sheehan to interpret and guess other than what the permit says and that is all the permit says. And here, Mr. Costa, page 1247, question, "You visited Mr. Sheehan's property on several occasions haven't you?" Answer: "Sure." "Do you have an opinion as you sit here, your belief that there is sufficient space for Mr. Sheehan to park 100 cars in a boat yard?" Answer: "Sorry, ask me the question again?" Question: "Is it your belief that Mr. Sheehan has insufficient space to park 100 cars?" Answer: "I believe there should be enough space to accommodate 100 cars." Let's move on to condition 6, launching and retrieving. All the permit says is this, "No launching landing of commercial tour boats, commercial boats from the river side of the project site shall be allowed unless permitted by the State Department of Transportation." Now it doesn't say Sheehan go get a permit because frankly there is no launching/landing permit to get from DOT or DLNR. Permitted is a verb, it is the same as authorization; it is the same as permission. He got permission. The Kouche letter from 1988, 1989, May of 89, we have no objections. Now they make a big deal, that is not sufficient. Okay, we have his deposition testimony. He said yes, I meant launching, retrieving, landing and loading, that is not a problem. We have Mr. Gerring's letter from 1998, you are authorized to launch and retrieve, load and unload, land and take off. Now the Planning Department, the lawyers tell you that is not sufficient. If not then what, is it a moving target we can just tell Sheehan you don't do it enough then I am sorry? No, if he is not sufficient then explain it. And by the way that is one of the conditions that Mr. Costa testified about seeking clarification. The whole point of this, let me go back to Mr. Costa real quickly, this is 1228. Question: "Why did the department request that the Commission issue an OSC as to whether or not Mr. Sheehan's permits should be revoked, modified or amended?" Answer, and this is an eye opener members of the Commission, "I believe I know why you are asking but it was technically to document the permit and the alleged violations that may have been occurring but ultimately to provide documentation to take to the Planning Commission to Planning Commission Minutes May 11, 2010 Page 15 allow the Commission, to this forum, I guess to bring some clarity to this permit and alleged violations ongoing for the past 20 years or so." It is clarity. How can now the lawyers for the Planning Department tell you he is in violation, he is in violation, they don't cite any testimony, it is pure argument. And then what the basis for bringing the OSC, because the OSC was at the request of the Director's report, we are seeking clarity. Those are mutually exclusive positions. You can't on the one hand say I really don't know what it means. I want clarity and on the other hand say Sheehan you are in violation. You can't do that. Condition No. 5 and I know I am running out of time Mr. Chairperson but look at condition No. 5. What does that say? "No new commercial tour boat operations other than those with existing DLNR/DOT revocable permits shall be allowed to use this facility." It doesn't require Sheehan to do anything. "A listing of occupants of the proposed baseyard shall be submitted to the Planning Department for verification on a yearly basis." Okay, I understand that. It doesn't say when by the way and in fact in 1988/1989 Mr. Sheehan submitted it after the season was over and the Planning Department said that was fine. And then it goes on to say "Any requests for boater vessel substitution, additional boats, transfer or revocable permits, increase in passenger capacity of commercial tour boat operations shall be subject to the review of the Planning Commission." Even Mr. Kosaka in his Findings of Facts said wait a minute that is review and approval. No, members of the Commission, it is review. Mr. Sheehan is bound by the language of the permit it says specifically "review." If you look at page 5 of the Director's report, this is in connection with violation of condition 5, the Planning Department comment which was relied upon by this Commission when the OSC was issued, "Applicant satisfied this condition for the years 1987, 88, and 89. Applicant has not submitted a current commercial tour boat operator and vessels or occupants of the boat yard for Commission review and approval." There is no such thing as approval in his permit. And look at all that Mr. Sheehan did. This is exhibit 7(b) to the Director's report. He basically says, he writes a letter to Ms. Matsumura, "Enclosed find a list of the existing permittees. Exactly how many of these companies or persons may wish to use my facility of course up to them as no one can force them to use my facility at this time as it is under construction as long as it takes to get approval from the various agencies. Enclosed for your information is the original list for commercial boat companies in my possession that I believe was submitted to the (inaudible) boating committee. I cannot verify the accuracy at the time but I am sure the Planning staff will be able to do this and advise me from the beginning and working together we can figure it out." That was sufficient. Mr. Sheehan didn't sit back and say well I think there was a transfer of a permit to here, somebody has gotten new engines, I am worried about that. No, the Planning Department considered that even in 2007 to be sufficient. In 1988 it is a summary two paragraphs, "Enclosed please find the listing of those commercial boating companies presently using the boat yard. I can only assume until either the County or Department of Transportation tells me to the contrary that all commercial boaters are in good standing with everyone they are supposed to be, whoever that really is." That is sufficient according to the Planning Department in 1988. And in 1989 all he did was submit a list. Now the Planning Department through its counsel says wait a minute, the list that Sheehan did, those aren't the original boaters. Mr. Sheehan has never been required to verify that they are original boaters and in fact Mr. Costa testified there is no procedure by the Planning Commission or Planning Department to deal with when there is going to be a transfer of those permits. And again I don't want to just be argument... This is on page 1197, okay, "And just a little more follow up on this condition 5, was there or are you aware of the procedure by which your request for boat and vessel substitution is to be made? Was there a written procedure or some sort of format that you are aware of when you became Planning Director?" "No, not specific to this permit, no." So now that the lawyers again and the administration is saying wait a minute, even though there is no format, there is no formula, he is in violation and even though we are saying what he did in the past was sufficient which is in fact less than he is doing today. May I have another 5 minutes? Chair: Mr. Wilson, unless the parties stipulate to giving you more time I will ask that you conclude in your rebuttal please. Mr. Wilson: Thank you very much Mr. Chair. I take it there will be no stipulation counsel? I didn't think so, thank you members of the Commission. Planning Commission Minutes May 11, 2010 Page 16 Chair: We will take a recess at this time. Commission recessed at 2:01 p.m. Meeting called back to order at 2:15 p.m. Chair: Mr. Bronstein, your argument please. Mr. Harold Bronstein: Thank you Mr. Chairperson, members of the Commission. My name is Harold Bronstein, I am an attorney and I am representing the Hui Ho`omauulu I Ka Aina. Jeff Chandler, the President, is present, so is the Vice President, Maka`ala. I did participate in these 14 days or whatever of this hearing based on an intervention on behalf of the Hui. And essentially we were very concerned about the permit expiration and the fact that it was a temporary permit and it was a main issue that the Hui proceeded on. I will adopt some of the arguments that Mr. Minkin made and try not to repeat them. I will adopt all of his arguments and try not to repeat them. Mr. Wilson talked about facts. I would be glad to talk about the facts. And he also said that if it is not in the order, it is not in the order. I believe that is what he said. And he also sort of said what the permit says, the permit says. And I say that the Hearings Officer, when he found as a factual matter that the permit is temporary and it was not modified, revoked, or amended at any time since June 24, 1987, especially at the annual review in February of 1989 and the annual review of 1991 which led to an OSC by the County against Mr. Sheehan, that that is true, correct, and any statement by Mr. Sheehan that his permit is permanent or became permanent after the annual review is just that, statements by Mr. Sheehan, unsupported in fact and unsupported in law. And we will start with the permits. I apologize, I have so much paper. I tried to condense it for today. And what we want to look at is the original permit at page 13 which is the Decision and Order, which says it is subject to the following conditions. And paragraph 4 says "Approval of these permits shall," didn't say may, "shall mandatorily be on a temporary basis and shall be reviewed after a one year period by the Planning Commission. Should the DOT develop a long range solution/facility to accommodate the commercial tour boat operations at another location the Planning Commission reserves the right to modify conditions or revoke the permits." Paragraph 12 of the permit, "The Planning Commission reserves the right to modify or revoke these permits should unforeseen problems arise or should the applicant violate conditions of this approval." When looking at this permit, if it is not ambiguous, if the words are not ambiguous, the meaning of the permits within the four corners is what the permit says. If you find it is ambiguous at some point or some phrase in it you can go outside of the permit for testimony as to what it means. I did write that Mr. Costa's testimony is irrelevant and I stand by that. Mr. Costa's testimony is irrelevant. He doesn't understand this permit and he testified to that. He testified that he never talked to any of the prior Planning Directors who enforced this permit before him. He didn't talk to Mr. Youn who was the Planning Director when this was written so he has no idea what the intent is for Mr. Youn. He didn't talk to Mr. Shigemoto who enforced this permit right after Mr. Youn and told Mr. Sheehan about the SMA and the boating in the area and help get an injunction for the County of Kauai and the Planning Department against the boaters. He didn't talk to Mr. Lacey, no I missed one, I believe Nakamura was next, he didn't talk to Mr. Nakamura. And Mr. Nakamura wrote the letter that said you need an environmental impact statement, boaters, if you are going to operate in this area. And he didn't talk to Mr. Lacey. And if you want to check that all out I will give you verse and page. Mr. Costa testified for a few days, I had a chance on April 20th to examine him and you will find that examination on volume 8, April 20, 09, of the transcript and it begins around page 1385 and goes to 1442. And that is my examination of Mr. Costa and will go through some more of what he said in response to my questioning. And right after that you will find questioning by Mr. Kosaka, the Hearings Officer of Mr. Costa. With respect to temporary Mr. Costa acknowledged that as far as he knew, Mr. Costa danced around the subject as best he could, okay, let's put it that way. At 1433 of the transcript though I think we pinned him down finally. If we are interested in what Mr. Costa says and the permittee seems very interested in what he says, "Is it your opinion today that this permit is still temporary or not, yes or no, simple answer." "I guess I would say that based on the condition," and we are talking about condition 4, "it appears that it was meant to be temporary." And he Planning Commission Minutes May 11, 2010 Page 17 qualifies that because it has been around so long he wouldn't call it temporary. "Well what would you call it?" "Well I guess I don't have any other term so maybe I would have to concur then that the permit was issued temporarily because the only alternative to me is permanent and I don't see anything that says it was intended to be a permanent permit or any terminology." That is Mr. Costa's testimony. With respect to Mr. Sheehan who says after the first year or 1991 it becomes permanent, that is total fiction. And his testimony is that his attorney Dennis Yamada told him that. Mr. Yamada represented him at the original permitting proceedings in 1987 and was there in 1989 and 1991, I believe. Two exhibits that the Hui submitted on this issue I believe are (qq) and (rr) and they are the minutes of the Planning Commission meetings on those days. Now at the end of the hearing on, and you can read it for yourself, there was no vote taken, there was no amendment to this, there were no modifications to the permit, there was nothing done in 1989. Everyone said we are just here for a review. And Mr. Yamada said that it keeps on as a temporary permit. In 1991 when now Mr. Sheehan would say today he has already got a permanent permit somehow although the permit has never been changed, modified, amended, revoked, whatever you want to say, he has a permanent permit. Yet Mr. Yamada in 1991 is still talking about temporary permits. He says "I actually represented him when we got the temporary permits." Mr. Yamada later, "It seemed that when you are reviewing it is whether there is an alternative to the Sheehan boat yard and if there is no alternative then the temporary permits continue." And then he goes on to say that the wording of paragraph 4 is written opposite to the way the Planning Commission interprets it and that the temporary permits continue unless there is an alternative. So in 1991 Mr. Yamada who supposedly is the basis for why this is a permanent permit after one year or the first annual review and which is absolutely unsupported in any fact. Yet Mr. Yamada who represented him is still talking that it is a temporary permit unless there is an alternative. And he goes on to say temporary permits continue. If in fact there is an alternative site of a marina was built in the last year in the area then it would make these temporary permits mute. You can read the minutes yourself and see how many times Mr. Yamada in 1991 referred to temporary permits. That permit was temporary. The intent was to solve a very bad situation that occurred in the early 1980's and it was a temporary. You can also read in those minutes, not those minutes, in exhibit's (b) and (c), you will read the Planning Commission minutes of April 8, 1987 and May 27, 1987 which led up to it in which Mr. Sheehan essentially says this is an interim solution, we are not trying to do anything special here, the boats go away, my permit goes away. And if you want me to quote it I think it is written in my memo, if not I believe the Hearings Officer's Findings of Fact talked about that because that is exactly what Mr. Sheehan said. So those are the facts. It is a temporary permit. The other fact is a matter of law that under the SMA Rules and Regulations a permit is only good for two years unless otherwise stated I believe is the way it is stated in the SMA Rules. And I will find it for you and read it for you, it is section 10.0 of the SMA Rules, it is called Action Special Management Area Rules and Regulations, "The duration of any validly issued minor or Special Management Area Use Permit shall be two years unless otherwise specified." So this was a temporary permit. So at the end of two years you can argue that the meaning means that it continues as a temporary permit but you cannot tell me it is a permanent permit because if it is a permanent permit it expired because the only condition is about a temporary permit and an alternative site. As to the alternative site there is no question that the boating industry towards the end of the 1990's reluctantly, grunting, however you want to say it, moved to the West Side because the State finally flexed its muscles and said you belong in a real harbor. You belong in a small boat harbor and we are going to fix it because we have been doing wrong by you and we have been doing wrong by the community. Everyone is getting wronged. And they moved them around to Nawiliwili, Port Allen, Kikiaola, and I missed one and I can't remember right now. Chair: Kukui`ula. Mr. Bronstein: Thank you Mr. Chairman. With respect to Mr. Sheehan, yes it is true he probably didn't have much business during that time of year from that period of time and he acknowledged that he was basically closed. And Mr. Costa said it was his opinion that he was basically closed. That is the fact. That is what he testified to. The exhibits you want to look at about moving to the West Side, our Hui exhibits (m), (n), (o), (p), and (q), no, not (q), (q) is Mr. Planning Commission Minutes May 11, 2010 Page 18 Sheehan's news release where he says I reopened my facility even though he has never closed it he reopened it. Mr. Costa, so we get clear again and you know I am not picking on Mr. Costa. I am analyzing to what he said in response to what the permittee is alleging. As a matter of law there is no question you are the authority. Under HRS 205A, you are the authority, it is your decision. As a matter of law it is my understanding you appointed a Hearings Officer to hear this matter, to recommend a decision to you. And you certainly can make other changes or do whatever you want to some degree. But as a matter of law the Hearings Officer's proposal to you to which of 205, approximately, paragraphs of Findings of Fact, the permittee only took exception to 15, I believe, if I remember. I can count them again. The other 190 are binding. They are absolutely binding on this permittee. He took no exception to them. And to the extent that he tries to draft 91-14(g), that is HRS 91-14(g), which is the standard for appellet review, onto this proceeding, he cannot. He can argue that in the Fifth Circuit court but no here, that is not the applicable standard. The gentleman who was the Hearings Officer, Mr. Kosaka, he heard all the testimony. It is his decision as to what weight and what credibility he will give the evidence. And I will tell you that an appellant court will not disturb that, that they will always, well I won't say always but 99.99.9 of the times will say the Hearings Officer observed the testimony or the judge observed the testimony, observed the demeanor of the witness, heard all the testimony and it is for him to make a decision on the weight and credibility as the tryer of fact. And that is what the Hearings Officer did. The permittee doesn't like the decision, they want to castigate him and take shots at him that he cherry picked. That is exactly what Mr. Wilson did for the half hour in front of me, he cherry picked. If you look at page 1416 of the transcript that is the April 20th where I examined Mr. Costa, he also talked about an exhibit that is either 462 or 662 in the permit file and which were some notes made about a meeting, one of these meetings that Mr. Sheehan had with the Planning Department or Mr. Costa at times. I don't know how I lose things so quick in front of you but I can do that. And if you look, I think I referenced it in my memo at one point because the document at the bottom talks about the goal, and I am not sure I am quoting it completely right but it says the goal is to re-open or put the Sheehan boat yard back in use. And Mr. Costa testified that was not the Planning Department's goal that was Mr. Sheehan's goal. He also testified that he believed from 2000 to 2005 or 2006, I am talking about Mr. Costa, that the boat yard was closed and you can find that testimony on page 1416. He also told me on 1423 that he never read the entire permit file. At page 1426 Mr. Costa was unaware there had been an injunction against the boating industry. And at 1428 he thought the Hanalei Bay was a Federal Harbor. I believe on examination from the Hearings Officer on page 1466, as the Hearings Officer found in his Findings of Fact, that Mr. Costa was of the opinion that as a long range solution to accommodate the commercial tour boat operators in another location, in other words Hanalei Bay or Harbor, that he agreed that that was and can be considered a solution meaning moving the boats to the West Side under condition No. 4 but that the State had never really said that that was their solution. I think that is a misnomer saying that the State never said because if you really look at the exhibits that is exactly what the State says. We believe we need to house you people, we need believe we need to give you the proper infrastructure. You need to be in a permanent small boat harbor and we are going to help you move. And in fact over the years the infrastructure was increased and monies were generated from the legislature. To the extent that you find that condition No. 4 is in any way ambiguous, I think that testimony that I have laid out for you will convince you or should convince you, it convinced the Hearings Officer, this temporary permit should be revoked. It cannot be temporary forever. And it is certainly greater than two years and it certainly has not become permanent. And it doesn't have to be a new facility. I believe somewhere along the line Mr. Sheehan argues that there must be a new facility. Actually I believe he argues it has to be a new facility on the North Shore. There are no marinas or harbors to my knowledge on the North Shore of any island and that is simple because of the weather in the winter. And there is no where that it says that it has to be on the North Shore in this Decision and Order. In fact if you look at page 11 when it talks about the permit, of the Planning Department considerations, it says "It should be noted that this permit if approved will be on a temporary basis subject to annual reviews by the Planning Commission until the DOT develops a long term solution. And that the current launching/landing areas confined to the area specified by the DOT..." etc. That is the solution, has been the solution, will continue to be the solution. There is absolutely no need for the baseyard as it has attempted Planning Commission Minutes May 11, 2010 Page 19 to be used for commercial tour boats and you absolutely have the authority to revoke as recommended by the Hearings Officer. With respect to some of the specific facts that were challenged, Findings of Fact 20 and 21 of the Hearings Officer were challenged as being clearly erroneous. And that is the argument and you can check it out in the exceptions, I believe it is page, I'm sorry, I will get that for you in a moment. In the permittee's exceptions that after the 1989 annual review that the permits became permanent. As I state in my memo and I am going to state to you again that is argument and pure argument. There are absolutely no facts to support that, what is in the order is in the order, what the order says, it says and it says it is temporary. Nowhere does it say after one year you become permanent. There is simply no factual support for that argument. And if that was true, that it did become permanent then there must have been at some time that the Planning Commission amended or modified the permits from June of 1987, and that never happened. Both Mr. Sheehan and Mr. Costa testified that both, they both testified that it was neither amended, modified nor revoked as of the time of this hearing. As to Finding of Fact No. 29, the Hearings Officer (inaudible) has the absolute discretion to decide the credibility and weight of the testimony. He found Mr. Sheehan's testimony that he never closed the boat yard not credible. I think we talked about law or someone talked about that no one has argued the law. I don't think the permittee has suggested anywhere that I can remember that as a matter of law that credibility is something that you have just arbitrarily, that he canjust say is wrong. Finding of Fact 35 is not clear, (inaudible) taken directly from the press release (q) and exhibit (q) is a press release dated August 31, 2006 and it is entitled "Hanalei River Boat Yard to Resume Operations." You can read that exhibit for yourself. The Finding of Fact is absolutely correct. With respect to the rest of them... Chair: Mr. Bronstein would you need another 10 minutes? Mr. Bronstein: I will get away with 5 hopefully. With respect to the Conclusions of Law, though we are not in appellate court yet but the permittee wants to argue that they are clearly erroneous. I don't believe that is the correct standard but more importantly he has shown you no law in any of these Conclusions of Law that the conclusions by the Hearings Officer are wrong as a matter of law. Because that is what an appellate court does, it looks and reviews it freely on a right/wrong standard. Is it wrong as a matter of law, is it right as a matter of law. And I don't think can graft that onto this and I understand that an appellate will look at it that way. And he talks about deference and definitely misstates the law about deference. There is absolutely no deference to the testimony of Mr. Costa in this case, absolutely none. If there is any deference it goes to the Hearings Officer but it really goes to you decision and what the Planning Department decides. Because, when you talk about deference the Hawaii Supreme Court has talked quite clearly that you are talking about whether the decision maker abused their discretion. That is what you are talking about in deference. Mr. Costa is not the decision maker. He does not get deference but you in an appellate court, the Planning Commission, there is some degree of deference. But really not, because in the end the Supreme Court has said what you look at is what the statute says, has there been an abuse of discretion. I would hope you take the Hearings Officer's report seriously. He worked hard, in addition to the 14 days, I don't know if it said but there was a site visit. He has gone through a tremendous amount of material. I think there are over 2,000 pages at least. There is absolutely no need for this permit anymore both under the SMA statute as a Use Permit and as a Special Permit. All of which you have the authority to decide and which you should decide, thank you very much. Chair: Thank you Mr. Bronstein. Before we go into the rebuttal phase I would like to ask the parties if they want to increase the time from 5 minutes to 10 minutes. Mr. Wilson: I would prefer 10 minutes. Chair: We will go with the 10. I just want to reference that it has been stipulated to 10 minutes for the record. Mr. Wilson: Thank you Mr. Chair. Mr. Bronstein's first issue that he brings up has to do with condition No. 4 and about the permits being temporary. Let's just read what the condition Planning Commission Minutes May 11, 2010 Page 20 says and address it because I think you will understand, are the permits temporary just for anything? Can you in whatever discretion you have say gee Sheehan we are going to revoke your permits because we want to? The answer is no. And let me explain why. And again this is from the testimony, although I am still amazed the Mr. Bronstein would say no deference to Mr. Costa because then that is going to be chaos. If Mr. Costa, in his capacity as Planning Director, has no say, has no force and affect on any permittee, especially a permit such as this where the Planning Department is charged with enforcement and interpretation then who does? I mean somebody has to have some discretion. Somebody has to have some authority at the Planning Department. If the Planning Department is purely advisory then change the statute, change the ordinance, it is almost meaningless and that is not what the law is because that is not what the Planning Department does. You are either going to support the fact that Mr. Costa does speak on behalf of the Planning Department, does have discretion within matters within the scope of the Planning and if you don't there is going to be utter chaos. Let's start off with that. Condition 4, "Approval of these permits shall be on a temporary basis and shall be reviewed after a one, one year period by the Planning Commission. Should the DOT develop a long range solution/facility to accommodate the commercial tour boat operations at another location the Planning Commission reserves the right to modify conditions or revoke the permits." The second sentence modifies it, yes Mr. Sheehan's permits are temporary if the DOT comes forward with a long range solution facility. I wholeheartedly agree. It would be very simple if in fact the DOT has done that. For the County to come and say you see, here is the DOT's long term, long range solution facility therefore we are asking you to use your discretion under condition 4. What does Mr. Costa say? I still hold on to the thought that the man is the Planning Director and does speak for something. This is what he testifies to. Question, and this is on page 1238, "Your interpretation as Planning Director, did that condition 4 mean that Mr. Sheehan every year comes the Planning Commission for review of his permits or was that a one, one year review?" Answer: "As written it says a one year period not a yearly report." Question: "So it would be safe to conclude then that if Mr. Sheehan passed his one, one year review, then his permits were no longer considered temporary under condition No. 4. Is that how you understood it?" Answer: "I believe so, yes, it goes on to say unless the DOT develops a long range solution facility." Question: "But absent the DOT doing that Mr. Sheehan's permits are temporary, that is what I understood condition 4 to mean, correct?" "That is how I would interpret that." Question: "Are you aware of DOT coming forward with any long range solution facility to take the place of Mr. Sheehan's boat yard?" Answer: "Not Hanalei." Now why would he say not Hanalei if we are to believe the intervener and the County that Kikiaoloa, Kukui`ula, and Port Allen are alternatives. They were always there. If they were the alternatives and the Planning Commission considered them alternatives Mr. Sheehan would have never gotten his permit in the first place. Question: "It is not your belief as Planning Director that as of today condition 4 has been triggered with the evidence at hand." Answer: "Yes, I believe yes it hasn't been triggered." That is the evidence. That is the evidence before you and that was the evidence before the Hearings Officer who wholeheartedly disregarded it. Now the intervener says well wait a minute, the State flexed its muscles and helped the boaters move. Let's look at that one. The State illegally and unconstitutionally banned commercial tour boating at Hanalei. That is a lot different than asking boaters to voluntarily move to a different facility that is 30 miles away as the crow flies on the ocean from the North Shore as opposed to being at the North Shore. There was no voluntary request, they were illegally and unconstitutionally moved and in fact that ban was deemed to be unconstitutional by the Federal Court. And with respect to the injunction that was filed when there was a change in the administration back in 1989, the case 88-0917, which Mr. Sheehan tried to intervene in and which he was not allowed to, that preliminary injunction dissolved in 2003. Now I know what you are thinking, why Mr. Wilson, why would it do that? Because the case was dismissed with prejudice because the County failed to prosecute it and they were given an opportunity to come forward and to reinstate it and guess what, the County did nothing. That injunction was gone. So for the interveners to say hey, wait a minute, everything has been kosher here, it was all nice and we all worked together and the boaters have gone. No, there was a ban, an illegal State prohibition, those are the facts. So to sit back and say hey, look, this was just the State we all worked together, no that is not what the facts are. Mr. Costa is not confused. You can take and read that page he cited, in fact I have it here, it is Findings of Fact 142. Now this is April 20t", 19 days after Mr. Costa in black and white said it hasn't been triggered, one, one year review, he passed it, he is done. The only condition making it temporary was if Planning Commission Minutes May 11, 2010 Page 21 DOT comes up. And here is a question by the Hearings Officer, "My question was Mr. Costa, do you as Planning Director of the County of Kauai see the use by those boat operators on the list formerly among the DLNR/DOT revocable permit list (inaudible) is today a Port Allen, Kukui`ula, Kikiaola as a long range solution to accommodate commercial tour boat operations in another location, in other words, other than Hanalei Bay?" "I would say yes but with no acknowledgement from the State that that is their long range solution." Well isn't that what the permit says? Where is the DOT saying that that is it? He can sit back and say you know I would have to agree with him. If you are banned from being in Hanalei the only solution you have is on the West Side. That is it. Now Mr. Bronstein also said a matter about no need at Hanalei. I represented Lady Ann last year. I don't know if you folks followed it where the County attempted to enjoin Lady Ann from conducting tour boat operations on the beach in Hanalei. The injunction was denied. The County's case has been dismissed. The only thing that is pending right now is a counter claim against the County for interference with perspective economic advantage and malicious prosecution. You want to tell me about now isn't the time to have a boat yard out there? I know this wasn't presented at the time of the hearing because it occurred after but Mr. Bronstein seems to think gee, we are back to square one. You know in real negative ways we are and I want you folks to keep that in mind because anybody now can operate commercial tour boats off Hanalei. There is not anything that the County can do. The County tried and the County lost. That ought to stick in the back of your minds when you really look at the effect of following the Hearings Officer's proposals in this case would be and would result in. The other thing is condition 2. I didn't get to talk about that. I just want to hit that very briefly because it is important. Condition 2 had to do with building permits. This is Mr. Costa's testimony. If you look at condition 2 it says specifically and again the well spring for all the interpretation is this permit. This is what controls. "The following conditions be resolved with the Public Works Department, (a), (b), and (c)." I asked Mr. Costa, and note it doesn't say work this out with Planning, it doesn't say go get Planning's approval it says work it out with Public Works. The bootstrap argument the County tries to say now is well we enforce it so we can make a determination if Sheehan is not operating. Not the case. Question: "Wouldn't you agree with me that before the Planning Department can say Mr. Sheehan is in violation of 2(a) and 2(c) it would have to have confirmed that with the Department of Public Works that he is in violation with 2(a) and 2(c) because this condition is within the Department of Public Works sphere of authority. Would you agree with that?" Answer: "I guess I would, yes." Where is any document from Public Works saying Sheehan is in violation and in fact there isn't any because we requested to Public Works for an opinion. This is January 22, 2009, this is a letter from myself to Mr. Lutao of Public Works. "Dear Mr. Lutao, we would like to request confirmation from the Public Works Department that Mr. Sheehan has not been cited by your department for any permit violations relating to his boat yard in Hanalei. We would also like to confirm that we have submitted all necessary applications to secure any permits which fall under your department's jurisdiction. Please advise and confirm the foregoing." January 23, 2009 from Doug Haig, Chief of the Building Department, Public Works, Sheehan's Boat Yard, "Dear Mr. Wilson, we are aware of building at Mr. Sheehan's boat yard and his attempt to secure permits for the project. In response to your request regarding the issuance or citation of notice of violations or stop work orders to Mr. Sheehan, the Building Division, Department of Public Works, has not issued such due to the pending permit applications." We posted the file that was commenced without a building permit. Now these are the same structures which the Planning Department in its Director's Report said between 1997 and 2007 no violation. So at a minimum it gives Sheehan a moving target just because it is a boating issue. So that is the testimony of Mr. Costa. And again to continue to say that somehow Mr. Costa is confused? He didn't strike me as being confused. And Mr. Bronstein didn't, or the intervener didn't come with any evidence to say that any prior Planning Director disagreed with what Mr. Costa said. He didn't call any of them. So what they want to do is kind of throw out this haze and this question in your mind, well gee, does that mean that somehow Ian Costa is out there on a tangent? No, there is absolutely no evidence. Last couple of things, the County's position is just revoke. Last parting comments. The County's position is just go and revoke. If you look at the Findings of Fact, I think it is 42/43, no harm to the environment, no harm to the estuary, no violation of 205A. The last thing I would say that you folks do is we actually took the time in our proposed findings based on what Mr. Planning Commission Minutes May 11, 2010 Page 22 Costa said about clarification and suggested changes to the permit. We are not taking a position that we can do what we want. It has been 23 years since they were issued. A lot of water has come under the bridge. We actually suggested condition changes that were consistent with what Mr. Costa testified to and we urge you to look at those and we urge you to adopt them, thank you very much Commissioners. Commission recessed at 2:49 p.m. Meeting was called back to order at 3:09 p.m. Chair: Mr. Bronstein. Mr. Bronstein: Thank you Mr. Chairperson. With respect to the movement of the boats and that they have been operating out of the West Side and that the DOT should develop a long range solution/facility. The reality is DOT has been out of this for many, many years and I think in October of 1988 when they were required to get an SMA permit to manage the boat they said sayonara, we are not doing this. As a practical matter 10 years later in 1998 Governor Cayetano and this is what he said and this is exhibit, I am quoting from exhibit (m). "Commercial boating on the Napali Coast is a valuable visitor attraction and one the State shouldn't encourage. Whether we need to develop another one site or use recognized existing harbors the State should support commercial boating and ensure it is directed it to the appropriate areas." The Hanalei estuary is not that place. Again, exhibit (n), "Just as we would not allow boats in Hanama Bay on Oahu because of its unique environment we should not be launching commercial tour boats from the Hanalei estuary." There is an alternative, there has been an alternative. Not only has it been proposed, it has been in use. That the small boat harbors, existed in 1987 and that they couldn't accommodate the tour boat industry or they would not move is another issue. But the issue that since 1998 that they have operated out of the West Side, out of legitimate small boat harbors where they belonged and not in the Hanalei estuary is exactly the solution that was envisioned by many people and that is exactly the solution that you have. Under paragraph 4 of the Decision and Order it is absolutely clear that you have the authority to modify conditions or revoke the permits. As an SMA permit its life can be no more than 2 years. You cannot arbitrarily engraft the length on it now and it you want to somehow modify it you need to start over again. You cannot just arbitrarily say through this process we are modifying the SMA Use permit, thank you. Mr. Minkin: Thank you Chair and fellow Commissioners. What are your duties and responsibilities? You have clearly defined duties and responsibilities, they emanate from Chapter 205A, they carry through Chapter 91 and they are further reflected in your own rules of practice and procedures of the Planning Commission. That is what we are here for. That is what this is all about today. You delegated to Mr. Kosaka the ability to be the finder of fact and while permittee's counsel says what are the facts? Why isn't the County's attorney arguing the facts? The facts have been argued to Mr. Kosaka. That was the job and responsibility of the parties as advocates at that point in time. What are we here for today? Do not be misled or led astray, we are here today to consider those proposed Findings of Facts, Conclusions of Law, Decision and Order as prepared by Mr. Kosaka. That is it. And what do we have to focus on? Permittee's counsel and even the intervener's counsel cited you to testimony. Some of that testimony, yes it is in the record but if you didn't put it in your exceptions or objects, that is it, you don't get the opportunity to argue facts anew before this Commission. The entire record is before this Commission. But what we are dealing with are the proposed Findings of Fact, Conclusions of Law and Decision and Order, that is it. If you did not object to a particular Finding of Fact which the permittee did not, and Mr. Bronstein brought out that he thought there were 205 Findings of Fact and 15 objections to Findings of Fact, there were actually 204 Findings of Fact, 16 objects which means 188 of them automatically should be blessed by you, 188. Conclusions of Law, 83, only 42 objected to. What does that mean? The other 41 should automatically be blessed by you in consideration of the work that Mr. Kosaka did when you properly and appropriately delegated to him that task to be the fact finder, listen to the evidence and make his decision. But what about those 16 objections for the Findings of Fact, what about those 42 objects to the Conclusions of Law? In the written submissions on behalf of the petitioner we pointed out why the permittee Planning Commission Minutes May 11, 2010 Page 23 was wrong and why Mr. Kosaka was correct. We are not going to sit here today and argue chapter and verse of everything that took place because the entire record is much more voluminous than even the 14 days of transcript. But Mr. Kosaka had all of that information. He had the parties submit and Mr. Wilson alluded to proposed Findings of Facts, Conclusions of Law, the parties submitted them. And Mr. Kosaka had the opportunity not only to review the proposed Findings of Fact as submitted by the petitioner, County, the intervener, Hui, and Mr. Sheehan as the permittee but he also had the opportunity to review all of the transcripts of all of the testimony that he heard as a Hearings Officer. He also had the opportunity to review all of the exhibits, the 130 exhibits totally a couple of reams of paper to make his decision and determination. What has he done? He has reviewed it all based upon his duties and responsibilities and now it is before this body based upon their duties and responsibilities. Do not; do not succumb to scare tactics by the permittee or his counsel. In rebuttal he mentions another case and says maybe this is the time. Well that other case took place before the proposed Findings of Fact and Conclusions of Law were submitted to Mr. Kosaka in October of 2009 and before the decision came down this year. There has been attempt by the permittee to reopen the matter to say that somehow the landscape has changed. Do not succumb to scare tactics. Follow your obligations when you were sworn to office as Commissioners and follow the law. That is what you must do. What else is there? All of the Findings of Fact, even though challenged by the permittee, upon close review there is evidence to support them and the Findings as determined by Mr. Kosaka. That evidence is there. Reasonable evidence based upon the credibility of the witnesses. Mr. Kosaka went through it and did it and has made a determination. Permittee talks about well what was done when, where, why, and how. Was this proper, was this procedure proper. The permittee went through a contested case hearing, if there was an improper action by one of the Planners or the department earlier that has been rectified by the process that went through Mr. Kosaka. For example and I will analogize it to something that goes to my past as a former prosecutor, as a prosecutor cases come to the courts through either the Grand Jury or preliminary hearing process. Probable cause gets it there; that is all. Does that mean that it is the end all and be all? No because if you listen to the news everyone is presumed innocent. The allegations were leveled against the permittee, the hearing was held before Mr. Kosaka, that presumption no longer covers or cloaks Mr. Sheehan. Preponderance of the evidence, that has been the determination by Mr. Kosaka. That is the standard he said in his Findings of Fact and Conclusions of Law the County has proven by a preponderance of the evidence that there have been violations of those conditions. It doesn't matter what individual witnesses may have believed because that is not their responsibility, it is your responsibility, it is your duty, it is what you have sworn to uphold. Based on that the question now comes down to adopt the Findings which I suggest that you must and should, to adopt the Conclusions of Law which I suggest you must and you should. And now, what sanctions or judgment could be rendered by this body. Mr. Kosaka proposes revocation of the permits for a number of reasons. You should and you must revoke the permits based upon the Findings of Facts and Conclusions of Law. It has been laid out. Due process has been given every step of the way to Mr. Sheehan in the contested case hearing. To do otherwise would be almost as if you were buying into the scare tactics and would end up doing what is sometimes referred to as juror nullification. It doesn't matter what the law is we are going to decide something for some other reason. Don't do that, do not be misled, do not succumb to that type of pressure or tactic from the permittee. You folks have a duty and responsibility, it has been laid out, the violation notice was given properly. The Director's report was given. The prior Commission back in October of 07 ordered that the matter go to Order to Show Cause contested case hearing. That has taken place. The rights and procedures and protocol have been followed every step of the way. This case is bigger than one witness who testified for 10 minutes, 20 minutes, 1 day, or 5 days. It is the cumulative effect of all of the evidence that the petitioner. The Planning Department has proven its case by a preponderance of the evidence. Mr. Kosaka's report in its entirety and his recommendation should be adopted by this Commission, thank you. Chair: Thank you all. Mr. June: Commissioners, given that we are in the post-hearing procedures under rule 1- 6-19(e), what you can now look at doing is to either reverse, modify, or adopt the proposed Planning Commission Minutes May 11, 2010 Page 24 Hearing Officer's recommendation for a Decision and Order or you can also remand the matter back to the evidentiary portion of the hearing so the Hearings Officer can take additional evidence. Or, you can defer the matter to look at doing more deliberation. Chair: This is for the Commissioners; do any of you have any questions that you would like to ask any of the various parties involved as well as Mr. Kosaka? If not what is the pleasure of this Commission? Ms. Morikami: I move that the Planning Commission adopt the Hearings Officer's proposed Findings of Fact, Conclusions of Law, and recommended Decision and Order in it's entirety and that we revoke the subject permits. Mr. Nishida: Second. Chair: Call for the question, if not, any discussion on the matter, roll call. On motion made by Paula Morikami and seconded by James Nishida, to adopt Hearing Officer's proposed Finding of Fact, Conclusion of Law, and Decision and Order, motion carried by the following roll call vote: Ayes: Morikami, Matsumoto, Kimura, Nishida, Texeira -5 Noes: None -0 Absent: Raco -1 Not Voting: Blake -1 GENERAL BUSINESS MATTERS Executive Session: Pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(4), and Kauai County Charter Section 3.07(E), the Office of the County Attorney requests an executive session with the Planning Commission to request authority fpossible settlement proposal in the Case of Coconut Beach Development LLC vs. Bryan Baptiste et. Al. CV08- 00036 SMOK KSC (United States District Court for the District of Hawai`i.) This briefing and consultation involves the consideration of the powers, duties, privileges. immunities and/or liabilities of the County as they relate to this agenda item_ On motion made by James Nishida and seconded by Camilla Matsumoto, to go into executive session, motion carried unanimously voice vote. Commission went into executive session at 3:33 p.m. Meeting was called back to order at 4:06 p.m. Chair: Meeting adjourned. ADJOURNMENT Commission adjourned the meeting at 4:06 pm. Respectfully Submitted. Planning Commission Minutes May 11, 2010 Page 25 Lani Agoot Commission Support Clerk Planning Commission Minutes May 11, 2010 Page 26