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Supreme Court remands Bolton rock-crushing case: Court cites ‘abuse of discretion’ by 2016 planning director

The Hawaii Supreme Court has sent a 2016 permit controversy over a North Kona rock-crushing operation back to the Leeward Planning Commission, saying the county erred when it didn’t allow an intervenor to participate in the process.

The 49-page opinion issued Thursday said the commission and then-Planning Director Duane Kanuha shouldn’t have allowed applicant Bolton Inc. to withdraw its special permit application without holding a public meeting.

The case is of special interest as the Leeward Planning Commission mulls another case on the same property, an after-the-fact application by Kona Aerials Gymnastics for a special use permit to legitimize its operation on agricultural land while it continues to hold classes. That case has been postponed several times.

The Bolton application sought to produce 10 to 20 daily truckloads of commercial rock crushing, a baseyard, equipment storage and security area on nine acres of agricultural land off Hualalai Road above Queen Kaahumanu Highway. Neighbors objected to the operation, saying noise, dust, traffic and vibrations caused by Bolton’s proposed activity would negatively affect their health, quality of life and property values.

The court was acting on an appeal by the Community Associations of Hualalai, a non-profit association of four community associations representing owners of residences and residential lots in four neighboring subdivisions.

“The Planning Director’s decision to withdraw Special Permit Application No. SPP-16-188 and to end the contested case proceeding without the LPC first issuing a decision on Hualalai’s petition to intervene relied upon ‘unlawful procedure’ and constituted an ‘abuse of discretion,’ which may have prejudiced Hualalai’s substantial rights,” the court said in its opinion.

The county had countered that the case was moot as the application had been withdrawn, thus ending Hualalai’s adverse interest in the case and removing the court’s ability to order an effective remedy. The planning director had made a final determination that the evidence showed Bolton’s construction activity was covered by its existing permits.

The court, however, opined that the case is still live because either the original conduct that prompted Bolton to apply for the special permit is still ongoing, or “if Bolton’s development project is completed without review, similar withdrawal of permit applications subsequent to unpermitted construction is capable of repetition.”

The association said in court filings by Kona attorney Michael Matsukawa that Bolton exceeded the scope of the grading and stockpiling permits that it had previously been issued. When Kanuha and company executives met outside the public eye to arrive at an agreement to withdraw the permit application, it deprived the association its legal right to present a case as an intervenor in the matter, the association maintained.

The court agreed, saying the county “wrongfully denied Hualalai a hearing and decision on its petition to intervene as a party to contest the special permit application.”

Neither Matsukawa nor county corporation counsel could be reached for comment by press-time Monday.
Source: Hawaii Tribune Herald

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