A previously rejected special permit application for a Hilo charter school to build a campus on state land in Kaumana is once again before the Windward Planning Commission — and a letter by the commission’s chairman to four attorneys involved in the case has drawn a testy response from one of the lawyers.
The letter by Chairman John Replogle dated July 6 requests a brief of 10 pages or fewer to answer the question: Whether the commission should make a decision on the record as presented, or open the record and consider new evidence?
The permit request by Connections New Century Public Charter School will be considered by the commission at 9 a.m. Thursday via Zoom, and according to the hearing’s agenda, the school’s portion of the commission’s meeting will be restricted to consideration of that question.
The state Intermediate Court of Appeals in February 2020 overturned the commission’s denial in 2014 of Connections’ permit application to build a school on about 70 acres of leased, state-owned agricultural-zoned land on Edita Street off Kaumana Drive and remanded the matter back to the commission.
Ted Hong, attorney for Community Based Education Support Services, the school’s board, submitted an eight-page brief, in which he said he and his client “appreciate the opportunity of addressing the issue” but added he objects to “giving legal advice to the commission,” noting it and the Planning Department have “their own, separate, legal counsel from the Office of Corporation Counsel.”
“I am having to invoice my client for the time it takes to submit this letter-brief on an issue that the commission thoroughly discussed and decided with its legal counsel,” Hong wrote. “From my perspective, it appears that the commission is asking CBESS what it should do to foreclose CBESS from raising other grounds for appeal from what could be the next denial of my client’s permit application.”
The appellate court’s decision also overturned a 2015 ruling by since-retired Kona Circuit Judge Melvin Fujino which upheld the commission’s denial of the permit.
Those named as “intervenor-appellees” in the case include Jeffrey Gomes, owner of Hawaii Bookmark; Sidney Fuke, a private planner and former county planning director; and Terence Yoshioka, a retired judge.
The school’s appeal also named the planning commission, the county Planning Department and Sandra Song — a retired judge and the contested-case hearings officer hired by the commission who issued a report recommending the permit’s denial.
Song died in 2015 and, according to Hong, Fuke and Yoshioka were dropped by Fujino as intervenors in the case, but their names remained on the appeals court’s decision.
Hong argued against opening the record for new evidence or holding another contested-case hearing, saying the school, as planned “can be built in a low density urban area, under the county’s General Plan.”
“The court clearly rejected (not in my backyard) type of objections and testimony and ruled it was impermissible,” he said. “Clearly, the skewing or slanting of factors in favor of a few influential friends and neighbors was unequivocally revoked on appeal.
“No further fact finding is needed, as a matter of law.”
In a Friday email, Romeo Garcia, Connections’ principal, noted the land’s agricultural zoning and a recent $48,253 U.S. Department of Agriculture Farm-to-School grant, saying the school “will do the work outlined in the grant” on the Kaumana property, pending approval of the school’s development plans.
“Having a school on the site will provide us the opportunity to deepen the learning experiences, still related to agriculture, preparing our students for meaningful jobs on Hawaii Island and throughout the state,” Garcia said. “As we move forward in stages, our students will be learning about sustainable agriculture, forestry, carpentry and land development.”
Fuke told the Tribune-Herald the issues neighbors of the proposed project were concerned about in 2014 remain the same today, including traffic, water sufficiency and negative impacts to the neighborhood’s lifestyle. He added he is neither for nor against the project and spoke on behalf of neighbors who requested he do so in 2014 because of his planning background.
Michael Matsukawa, attorney for Gomes, said in his brief the commission can consider those issues “within the limits established by the court’s ruling, and the commission also has the discretion to address points that the court did not address, based on the existing record and without having to reopen the evidentiary portion of the hearing to receive additional evidence.”
Matsukawa said the only evidentiary matter the commission might want to take additional evidence on would be whether the development of a 381-student campus would put an undue strain on the county’s water system.
Deputy Attorney General Carter K. Siu, who specializes in educational issues and is the school’s attorney, said “Connections joins and supports CBESS’s position.” He added “the need for additional evidence is unwarranted in this case” and asks the commission to make its decision “based on the direction and mandate provided by the Intermediate Court of Appeals.”
Deputy Corporation Counsel Jean K. Campbell said the Planning Department “takes no position” on Replogle’s request.
County Planning Director Zendo Kern submitted a favorable recommendation for the project, with numerous conditions to be met, including an 8-foot paved shoulder on the makai side of Edita Street from Kaumana Drive to the southern end of the property, a traffic-management plan subject to approval by the Public Works Traffic Division in consultation with police, water usage calculations by a licensed engineer, and a 10-year deadline on construction once a permit is approved.
Failure to meet conditions and deadlines could result in revocation of the permit, according to Kern’s document.
A link to the livestream, as well as instructions for submitting public input, can be found at https://bit.ly/3zUZpoQ.
Email John Burnett at jburnett@hawaiitribune-herald.com.