Kahaluu case to reopen, scheduling set for next 195 days

KAILUA-KONA — A contested case hearing on whether to let a proposed 306-unit timeshare development in Kahaluu move forward is unlikely to get resolved this year.

While the parties involved in the case agreed on Friday to reopen the hearing, the hearings officer set a schedule for the next 195 days to give the parties enough time to establish the scope of the hearing, identify witnesses, prepare affidavits and otherwise get ready for the reopened hearing.

Counting from Monday, that puts the hearing no sooner than Dec. 31, which is a Sunday.

The controversy focuses on an application from Ocean Villas at Kahaluu Bay LLC to allow for the development of a 306-unit condominium on a 42-acre parcel of land mauka of Alii Drive in Kahaluu.

That property is owned by Kamehameha Investment Corp. and is zoned for resort, multi-family residential and single-family residential uses, according to the project’s final environmental assessment.

But many area residents, such as Simmy McMichael, have opposed development of the area, citing historical and culturally significant sites that they say could be put at risk by development.

The environmental assessment prepared for the project concluded that the project wouldn’t have significant environmental effects.

The Leeward Planning Commission granted McMichael’s petition for a contested case hearing in April 2016.

For three days during April and May, experts whose work is cited in the environmental assessment testified about their respective studies, also giving McMichael the opportunity to question them about their work.

The hearings also featured hours of public testimony from area residents giving their personal feelings on the proposed project.

On May 15, the last of the three days of testimony, hearings officer Robert J. Crudele closed the evidentiary portion of the hearing, instructed the parties to file their proposed orders and said he would file his own report including his own recommendation by June 29.

But on June 2, an attorney for county planning director Michael Yee filed a motion asking that the hearing be reopened “for the purpose of receiving further evidence and testimony from planning director Yee and any other witnesses determined to be necessary by the hearings officer.”

The Planning Department had already recommended that the Leeward Planning Commission allow the development to go forward.

And while the motion didn’t indicate that Yee or the department had changed their position on the development, the attorney wrote in filings attached to the motion that the planning director considered the public testimony presented at the hearing “to be newly discovered evidence and, as such, may revise his recommendation and provide additional testimony in this contested case.”

Ocean Villas originally opposed the motion to reopen the hearing, saying Yee’s request lacked specifics on what evidence he sought to introduce.

On Friday, however, Stephen J. Menezes, the attorney for Ocean Villas, said they were willing to withdraw their objection on the grounds that, should the hearing be reopened, it wouldn’t begin until all parties had time to identify witnesses, prepare testimony as well as prepare rebuttal witnesses and testimony.

Crudele said that, if there had been opposition to the planning director’s motion, he still wanted to clarify exactly what evidence would be introduced at a reopened hearing, “so we don’t rehash everything all over again.”

“So that was my concern; I don’t think it would be appropriate to do that,” the officer told the parties. “But we do need some guidance and guidelines.”

Attorney Stephen J. Menezes for Ocean Villas agreed that the scope needed to be well-defined.

“It wouldn’t seem right to have a whole parade of new witnesses, a whole volume of new written documents,” he said. “It would seem — if appropriate at all to re-open — it must be narrow.”

Jay Yoshimoto, deputy corporation counsel for the planning director, agreed with that, saying they would want to limit the scope of testimony and witnesses.

At this point, he said, the planning director wanted to get additional input from the State Historic Preservation Division of the Department of Land and Natural Resources.

Crudele said that his inclination toward reopening the hearing “rests upon our ability to clearly — as clear as reasonably can be done — limit the issues, so that we know what we’re talking about, so we’re not kind of chasing the shifting sands of ‘one day it’s here and one day it’s there,’ we gotta come to an understanding.”

“You know it ends here,” Crudele told the parties. “Otherwise it just keeps going and I’m not sure we’re gaining that much.”

McMichael said in the conference that she would want the kupuna and those connected to the property area to have an opportunity to offer testimony and present their concerns.

“Because they are the ones that know the land,” she said.

Crudele told her that as long as their testimony isn’t redundant to what’s already been presented, he’d be willing to consider letting her call “a few more witnesses.”

“But we’re not going to parade a bunch of witnesses down,” he said.

With the terms agreed to, Crudele set to establishing a schedule.

Within the next 30 days, the first order of business is for the county to “identify or delineate the issues” to be addressed in testimony at the reopened hearing.

From there, Crudele set a schedule to guide all of the parties in the time they have to identify witnesses and documents, prepare affidavits for those witnesses’ testimony and object, if they wish, to other parties’ filings.

The sum total: 195 days from June 19.

With such an extended schedule, Crudele brought up the possibility of negotiations among the parties.

“Well we can avoid all this if Simmy (McMichael), the county and the applicant get together and you folks look at what’s really important to you,” Crudele told the parties after setting the schedule during Friday’s conference. “And you see if you guys can come to some kind of concessions.”

Crudele said the issue could be resolved without him having to render a direct decision.

“If they (the Leeward Planning Commission) adopt my recommendation, then somebody is basically gonna get nay and somebody’s gonna get yea, and they’re gonna be happy and the other person’s gonna be sad,” he said. “Whereas, you know, if you guys work things out, everybody walks away with something.”

He closed off the conference saying that in previous cases, he “thought it was really unfortunate” that people didn’t seriously consider a compromise.

“For what it’s worth,” he added.

Menezes said the developer was “willing to talk with any of the parties that are willing to talk with the applicant.”

McMichael said afterward though that she isn’t giving up her fight to stop the development outright.

“I’m in it till the end,” she told West Hawaii Today. “I will not give up; I have hope.”