Kahaluu hearing could reopen

KAILUA-KONA — The hearings officer overseeing a contested case challenging the proposed development of a 306-unit timeshare will consider on Friday the county planning director’s request to reopen the public hearing on the issue.

Last week, the developer of the proposed condominium filed its opposition to planning director Michael Yee’s motion, saying his arguments don’t justify prolonging the contested case hearing any longer.

Public hearings came to a close in May after three days of testimony in a two-month period. During those hearings, Kahaluu resident Simmy McMichael questioned several experts whose research is cited in an environmental assessment for the project.

McMichael is among those opposed to the development, arguing that it could adversely impact historical sites as well as infrastructure and resources.

The final environmental assessment concluded that the project “will not have significant environmental effects.”

Yee, according to his filings, has previously recommended that the commission let development of the 306-unit condominium move forward, while reserving the right to modify that position in the event new information came forward.

In his motion filed June 2, Yee argued that public testimony presented at those hearings was “newly discovered evidence,” and that as a result he “may revise his recommendation and provide additional testimony in this contested case,” according to his filing.

But the attorney for Ocean Villas at Kahaluu Bay LLC argued that Yee’s motion doesn’t identify what exactly could be introduced in the reopened hearing.

“Nowhere in the (director’s filings) are we told what ‘newly discovered evidence’ Director Yee wants to testify to and introduce into evidence,” wrote the attorney.

In order to reopen a hearing, the hearings officer has to consider why the evidence wasn’t introduced sooner, its importance, the impact to other parties in the case and the potential for delaying the proceedings.

And without knowing exactly what evidence Yee plans to introduce, the developer argued, it’s tough to apply any of those considerations to the request at hand.

The filing also argues that the historical sites in Kahaluu and their cultural significance are already “generally known,” saying that additional evidence could have been presented during the hearings.

In the motion to reopen the hearing, Yee’s attorney wrote that the director “asserts that he exercised due diligence in reviewing the record and preparing for the hearing.” The motion went on to state that information from public testimony couldn’t have been obtained before the hearings at which they were presented.

In their response opposing the motion, the developer also argued that the hearing — originally scheduled to end on April 21 — was already prolonged into May to give McMichael a chance to cross-examine two witnesses.

“Reopening the hearing to take additional evidence would only further delay and prolong the hearing process,” stated the developer’s filing.

Jeff Darrow, planning program manager, said a conference on the motion is currently slated for 5 p.m. Friday.

The conference is not a hearing open to the public, Darrow said.

Unlike the public hearings, in which the presiding officer must give members of the public a chance to speak, a conference is only held among the parties involved in the case.

The planning commission’s rules give the hearings officer the authority to hold conferences at any time for reasons related to evidence, subpoenas and other matters.