37898 - dms.puc.hawaii.gov
TRANSCRIPT
BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF HAWAII
In the Matter of the Application of
PETER and ANN BOSTED DOCKET NO. 2016-0224
Complainants,
vs.
Respondents.
37898ORDER NO.
))))
HAWAIIAN ELECTRIC COMPANY,HAWAII ELECTRIC LIGHT COMPANY,
(1) GRANTING IN PART AND DENYING IN PART INTERVENORS' MOTION TO DISMISS FORMAL COMPLAINT; (2) GRANTING IN PART AND
DENYING IN PART COMPLAINANTS' MOTION TO TAKE NOTICE OR OTHERWISE AUGMENT THE RECORD; AND (3) ADDRESSING PROCEDURAL STEPS
) ) ) ) ) ) ))
INC., and ) INC.
BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF HAWAII
In the Matter of the Application of
PETER and ANN BOSTED DOCKET NO. 2016-0224
ORDER NO. 37898Complainants,
vs.
Respondents.
this Order, the Public Utilities CommissionByt 1("Commission") : (1) grants in part and denies in part Intervenors
DIVISIONex
LLC,LLC,LLC,
LLC,LLC,LLC,
KONAKONA
))) ) )))))))))
KONA 50-2 3 KONA 50-27KONA 50-31SOUTH POINT FIT
KONA 50-26 LLC, KONA 50-30 LLC, KONA 50-35 LLC,
(collectively theThe Solar Project Owners were granted
Hawaiian Electric Company,(collectively
thean
("HRS")
(1) GRANTING IN PART AND DENYING IN PART INTERVENORS' MOTION TO DISMISS FORMAL COMPLAINT; (2) GRANTING IN PART AND
DENYING IN PART COMPLAINANTS' MOTION TO TAKE NOTICE OR OTHERWISE AUGMENT THE RECORD; AND (3) ADDRESSING PROCEDURAL STEPS
ADVOCACYto
Inc.the
OFofficio pa r ty, § 269-51 and
Hawaii Administrative Rules ("HAR") § 16-601-62(a); and KONA 50-18LLC, KONA 50-19 LLC, KONA 50-20 LLC, KONA 50-21 LLC, KONA 50-22 LLC,
KONA 50-25 LLC,50-29 LLC,50-34 LLC,
FIT TWELVE LLC
^The Parties to this proceeding are: Peter Bosted and ANN BOSTED ("Complainants" or the "Bosteds");and Hawaii Electric Light"Hawaiian Electric" orCONSUMER ADVOCACY ("Consumerpursuant to Hawaii Revised
Company, Inc."Respondents");Advocate") , Statutes
KONA 50-24KONA 50-28 KONA 50-33LLC, and HAWAII
"Solar Project Owners").intervenor status in this proceeding. See Order No. 34520"Addressing Motions to Intervene and Adopting a Procedural Schedule,"
HAWAIIAN ELECTRIC COMPANY, INC., and HAWAII ELECTRIC LIGHT COMPANY, INC.
Motion to Dismiss Formal Complaint^; (2) grants in part and denies
the Record; and (3) addresses the proceduralnext steps,
including a prehearing conference on the Bosted's remaining count.
4, and 6 of
the formal complaint and 5 for hearing beforesets Count
the Commission.
I.
RELEVANT BACKGROUND
A.
The Bosteds' Complaint and Respondents' Answer
3On August 29, 2016, the Bosteds filed a formal complaint
with the Commission against Respondents regarding
27 Feed-in-Tariff ("FIT") solar projects
2z No.
2 ''on
3"
and
2016-0224 2
("OrderProcedural
347082017
IntervenorsFormal Complaint,November 12,
Orderfiled July 25,
Kona 50-18,Memorandum in
2019 ("Motion to Dismiss").
to Dismissfiled
In so doing, the Commission dismisses Counts 1,
Chronology of Events Relating to the Ocean View Project and FIT Program; Statement of Remedial Action Desired; Schedule of Supporting Documents; Certificate of Service; Complaint Verification," filed August 29, 2016 ("Complaint").
LLC et al. MotionSupport of Motion,"
filed May 2, 2017"Adopting a Modified ("Order No. 34708") .
2, 3,
No. 34520");Schedule,"
in part the Bosteds' Motion to Take Notice or Otherwise Augmsent
("FIT Projects") that slated for construction in theare
Ocean View subdivision on the island of Hawaii."^
Briefly, the Bosteds assert that certain FIT permits
should not have been issued for the FIT Projects. The Bosteds
request that the Commission remove the FIT Projects from the FIT
More specifically, the Complaint asserts
the following alleged misconduct:
1. Misuse of Zoning Laws ("Count 1");
2 . Insufficient Site Control ("Count 2");
3. Project Not Shovel Ready ("Count 3");
4 . The FIT Permits Were Improperly Traded ("Count 4");
5. the Competitive Bidding Process
No Benefit to People and Ratepayers ("Count 6")6.
The Complaint's primary focus is that that the
FIT Projects should be considered together as a single project.
rather than individual proj ects, and, when considered inas
^See Complaint at 2-5.
^Complaint at 31.
Tee generally Complaint.
2016-0224 3
^Complaint at 3-5. In what appears to be a typographical error, the Complaint repeats the number "5" for Count 6.
Circumvention of("Count 5"); and
FIT permits.^
the aggregate, the FIT Projects exceed the threshold allowed tor
program's active queue.
B.
Hawaiian Electric's Answer
On October 7, 2016, the Hawaiian Electric filed an answer
to the Complaint,® which asserts that all applicable rules, orders.
at the time of its respective application. and that clustering
separate projects by different developers is not prohibited by the
C.
Solar Project Owners' Motion to Dismiss
The Solar Project Owners sought, and granted.were
and filed their Motion to Dismiss
November 12, The Motion Dismiss, brought undertoon
HAR §§ 16-601-41, 42, and 69, asserts the Complaint fails to state a
claim upon which relief can be granted and fails to meet the pleading
Despite being styled as
®See Answer at 15-18.
^®0rder No. 34520.
^^See Motion to Dismiss.
2016-0224 4
2019.
intervention in this proceeding,!®
standards established by HAR § 16-601-67.12
FIT Program?
and laws were followed, that each of the FIT Projects was viable
i^Motion to Dismiss at 1-2, 39.
^"Hawaiian Electric Company, Inc. and Hawaii Electric Light Company, Inc.'s Answer to Complaint; Exhibits 1-2; and Certificate of Service," filed October 7, 2016 ("Answer").
to consider the evidentiary record, which they claim establishes
•i\ 3"that there has been no violation of law whatsoever.
Specifically, the Solar Project raise theOwners
following challenges to the counts alleged in the Complaint:
1.
2 .
3.
4 . Count 4
17
5. 5 of
i^Motion to Dismiss at 40.
i^Motion to Dismiss at 44-48 .
^^Motion to Dismiss at 49-56.
^^Motion to Dismiss at 56-76.
^^Motion to Dismiss at 76-82.
2016-0224 5
The FIT Permits Were Traded: Count 4 must be dismissed because it does not articulate any violation of law or regulation and because the Solar Project Owners abided by all laws and regulations governing transfers and/or assignments of FIT permits.
Count 2 - Lack of Site Control: Count 2 msust be dismissed because the Bosteds misunderstand the FIT Program^s site control requirements and the Solar Project Owners fully complied with all site control requirements.^^
Count 1 - Misuse of Zoning Laws: Count 1 fails because the Bosteds do not allege which zoning laws in particular were violated and because the evidence establishes that no zoning laws were violated.
Count 5 - Circumvention of the Competitive BiddingProcess: Count 5 fails because, by virtue of beingtwenty-six (26) individual projects each with a net output of no more than one percent (1%) of a utility's
Count 3 - Project Not Shovel Ready: Count 3 fails because the Bosteds do not articulate what law or regulation was violated and because the Solar Project Owners complied with all relevant laws and regulations.^®
a motion to dismiss, the Solar Project Owners ask the Commission
the competitive bidding rules at
6. Count
D.
the Motion to DismissResponses to
On November 15, 2 018, Hawaiian Electric submitted a
response indicating "that they do not oppose the Motion to Dismiss
"20
On November 18, 2019, the Bosteds filed an opposition to
The Bosteds' Opposition reiterated their
position that the primary issue in this Docket is the Solar Project
^^Motion to Dismiss at 82-90.
i^Motion to Dismiss at 92-100.
2016-0224 6
totalissue
actionhave
15
HARforin
firm capacity,do not apply.
6 - No Benefitdismissed becausecause ofratepayersFIT program.
the Motion to Dismiss.-^
20Letter From: K. Katsura To: Commission Re: Docket No. 2016-0224 Bosted Formal Complaint; Hawaiian Electric Company, Inc. and Hawai’i Electric Light Company, Inc.; Response to Intervenors' Motion to Dismiss Formal Complaint, filed on November 15, 2019("Companies' Letter").
and becausefrom the
to Ratepayers: Count 6 must be § 16-601-67 does not provide a such a grievancefact benefitted
-^"Complaint against Hawai'i Electric Company (HECO) as Administrator of the Feed-in-Tarif f (FIT) Program and Its Subsidiary Company, Hawai'i Electric Light Company (HELCO) for not Holding the Developers of a 6.5 Megawatt Solar Project in Ocean View in Compliance with the FIT Program; Complainants' Statement of Reasons in Opposition to Intervenors' Motion to Dismiss Formal Complaint," filed on November 18, 2019 (the "Opposition").
Owners' attempts "to game the FIT Program" and circumvent the
The Bosteds did not raise any
additional legal arguments, but stated that equitable principles
required Hawaiian Electric to stop the FIT process when they
suspected the Solar Project Owners were attempting to circumvent
On November 19, 2019, the Consumer Advocate indicated it
E.
Order No. 36888
While the Motion to Dismiss was pending, the Commission
instructed the Parties to submit briefing "addressing whether the
[FIT Projects] should be considered individually or in the
aggregate for purposes of determining whether they comply with the
[C]ommission's directives concerning both the [FIT] Program and
the Competitive Bidding Framework [,]" well ofsetas as a
2 -Opposition at 3.
24 " of to
LLC,
2016-0224 7
50-2350-2750-31
IntervenorsKona 50-21Kona 50-25Kona 50-29Kona 50-34
LLC,LLC,LLC,LLC,LLC,
LLC,LLC,LLC,
DivisionKona 58-18,Kona 50-22Kona 50-26Kona 50-30Kona 50-35Motion to Dismiss Formal Complaint," filed on November 19,
Consumer Advocacy's ResponseKona 50-19 LLC,KonaKonaKonaSouth Point FIT
LLC,LLC,LLC,LLC,
Kona 50-20 LLC,Kona 50-24 LLC,Kona 50-28 LLC,Kona 50-33 LLC,
and Hawaii FIT Twelve LLC's2019.
Commission requirements.^3
Competitive Bidding Process.
was not taking a position on the Motion to Dismiss.
doing so, the Cornrnission observed thatIn
"[h]aving reviewed the materials previously submitted in this
docket. including the prefiled testimony of the Parties,
the [C]ommission observes that the to make a
"26determination on these issues do not appear to be in dispute.
In particular. the Commission ordered the Parties addressto
how previous Commission decision referred heretoa as
The Parties were unable to agree upon a joint statement
of facts,
also,
s^Order No. 36888 at 21-22. The 2011 Monet Order is discussed, infra.
2016-0224 8
'Cpy Order No. 37033, "Establishing Furter Procedural Deadlines," filed on March 9, 2020 at 4 ("Order No. 37033").
2019," filed January 10,37033, "Establishing Further2020 ("Order No. 37033").
stipulated facts.
"Complai n ts Test imony; 2017; Letter From:- Formal Complaint
Direct Testimonies,of Kevin
LLC,
Order No. 3 6888 at 2. Sepand Certificate of Service," filed September 1,B. Hiyane To: Commission Re: Docket No. 2016-0224of Peter Bosted and Ann Bosted;filed September 15, 2017; "Testimony of Kevin White,Authorized Representative of Intervenors Kona 50-18 LLC, et al.; Intervenors Exhibit 1-4," filed September 19, 2017; and "RebuttalTestimony of Peter and Ann Bosted," filed December 1, 2017.
^^Order No. 36888, "Instructing the Parties to Submit Statements of Position and a Joint Statement of Facts," filed December 17, 2019 ("Order No. 36888"). The procedural deadline by which to submit briefing set forth in Order No. 36888 was subsequently modified by Order No. 36944, "Granting the Complaints' Motion for Enlargement of Time, Filed On December 27, 2019," filed January 10, 2020("Order No. 36994"), and Order No.Procedural Deadlines," filed March 9,
the "2011 Monet Order" affected the analysis in this case.^^
and the Bosteds and Hawaiian Electric filed letters
facts necessary
indicating they would not be filing a joint statement of facts.
Even though no joint statement of facts was filed, the Bosteds still
filed a Statement of Position on February 18,
In response, the Commission issued Order No. 37033, which instructed
the Parties that. to the extent they could not agree about a joint
stipulated statement of facts. each fileto a separatewas or
partial of f ac t s, and established otherseparate statement
procedural deadlines.
simplify the Commission orderedTo matters,
Hawaiian Electric and the Solar Project Owners to
writing whether they agree or disagree with each paragraph and
First SOP.31exhibit of the Bosteds' The Commission then again
ordered the Parties to file a complete or partial Joint Stipulated
of Facts by March 27, 2020, and file all replyStatement to
of position and reply of position bystateiTients statements
2020.32April 20,
39see Order No. 37033 at 5.
320rder No. 37033 6-9.at
3i0rder No. 37033 7.at
Order No. 37033 7-8.at
2016-0224 9
2020 ("First SOP")
indicate in
32.
F.
On January 26, 2021, the Bosteds submitted a letter which
included a request for the Cornrnission to take judicial notice of
33what they asserted was newly discovered evidence. Specifically,
they seek official notice of a federal district court opinion for
the Southern District of New York, and of four cancelled checks.
The Solar Project Owners opposed the motion for judicial notice on
2021.34February 3,
II.
RELATED COMMISSION PROCEEDINGS
A.
Docket No. 03-0372 ("The Competitive Bidding Framework'')
Decision and Order 23121, filedBy No. on
December 8, 2006 in Docket No. 03-0372, the Commission adopted the
Framework for Competitive Bidding to govern competitive bidding
Motion Take Otherwise Augmentto
2016-0224 10
The Bosteds' Motion to Take Notice or Otherwise Augment the Record
3^ See Bosteds'the Record.
33 Letter From: P. Bosted and A. Bosted To: Commission Re: Docket Numsber 2016-0224 - Conplaint against HECO as administrator of the FIT Program; Complainants' reeguest for judicial notice or inclusion in the record of additional, newly discovered documentation of the SPI project, filed on January 26, 2021 (Bosteds' "Motion toTake Notice or Otherwise Augment the Record").
Notice or
for acquiring new energy generation in Hawaii (the "Competitive
Pursuant to the Framework,
competitive bidding is the required mechanism for acquiring future
generation resource or block of generation resources, subject to
36certain conditions and exceptions.
As provided by the Framework, competitive bidding is not
required for "generating units with output availablenet to
of 1% less total firm capacity.or
including that of independent power producers, or with a net output
"37
B.
Docket No. 2008-0273 ("The FIT Tier 2 Program^
The FIT program has evolved over number of years and was
designed facilitate the acquisition and development ofto
renewable energy in Hawaii. As relevant here, for renewable energy
has approved "Tier 2" The tariffs for theProgram.a
2^See generally. Framework.
2016-0224 11
^^Docket No.2003-0372, Decision and Order No. 23121, Exhibit B, "Framework for Competitive Bidding," filed on December 8, 2006.
Bidding Framework" or "Framework").
Tier 2 Program include applicable pricing, terms and conditions,
^^Fraraework at 5, Part II.A.3.f.
of 5 megawatts ("MW") or less, whichever is lower
size, the Commissiongenerators of up to 500 kilowatts ("kW") in
standard form of and queuing and interconnectioncontract,
C.
Docket No. 2011-0053 (The 2011 Monet Order")
The Commission has described Docket No. 2011-0053 in detail
in prior orders in this proceeding. and that description is
a developer named Sam Monet sought a declaratory ruling from the
Commission regarding his plan to subdivide one big lot into 25 smaller
lots and put an individual project each meeting the FIT Tier 2
requi rement s The Commission determined
that Mr. Monet's proposal was improper.
The Commission explained that "Petitioner cannot avoid
the competitive bidding requirements by simsply subdividing
"41his proposed project into separate 500 kW generating units.
the proposed proj ect closer inBecause concept towas
2 00 9
290rder No. 36888 at 1-4.
^^2011 Monet Order at 18.
2016-0224 12
see alsoFiled September 25,
^'^Docket No. 2011-0053, Decision and Order, filed April 28, 2011 at 15-20 (the "2011 Monet Order").
38see Schedule Fit Tier and Tier 2, Sheet Nos. 78-78; Docket No. 2008-0273, Decision and Order,at 1-5.
incorporated here by reference.^^
on each contiguous lot.‘^®
procedures for the FIT program.
Briefly, in Docket No. 2011-0053,
single 25 proj ect opposed smallerMW toas many
individual proj ects f the Commission found that the
Competitive Bidding Framework applied.
111.
STATEMENTS OF POSITION
While the Parties did submit a joint partial stipulated
statement of facts. the extent ot the material stipulations was
limited, and the Parties primarily recited the posture of other
dockets.
which are summarized below.
A.
The Bosteds argue that the record establishes that the
predecessors as two aggregated projects by two different entities.
with each project exceeding the threshold wattage allowed under
^22011 Monet Order at 22.
2016-0224 13
^^See "Joint Letter From: B. Hiyane, B. Nakamura, and A. Bosted To: Commission Re: Bosted vs. Hawaiian Electric Company, Inc. et al.. Docket No. 2016-0224; Submission of Partial Joint Stipulated Statement of Facts pursuant to Order No. 37033 by Respondents, Intervenors, and Complainants"; filed March 27, 2020.
The Bosteds' Statement of Position
FIT Projects were originally conceived by the Solar Project Owners’
The Parties also submitted respective statements of
44the FIT Tier 2 Prograrn. Therefore, they assert, the projects should
not be allowed under the FIT Tier 2 Program using the same reasoning
45the project in the 2011 Monet Order was excluded. The Bosteds argue
that the Competitive Bidding Framework must be used to acquire a
"future generation resource or block or generation resources" that
The Bosteds claim the
reasoning from the 2011 Monet Order, that the projects were so similar
to a single 25 MW project that they should be treated as such.
B.
Hawaiian Electric's Statement of Position
Hawaiian Electric asserts that the 2011 Monet Order is
inapplicable the Proj ects, and therefore that theto FIT
48FIT Projects must be considered as individual distinct projects.
^-Bosteds' 26.SOP at
^^Bosteds' 26-27.SOP at
^^Bosteds' 26-27.SOP at
48"
2016-0224 14
Respondents Hawaiian Electric Company, Inc. and Hawai’i Electric Light Company, Inc.’s Statement of Position," filed on April 13, 2020 at 21-22 ("Conpanies' SOP").
Statement of Position in Response to the 36888 with Exhibits," filed on April 13, 2020
SOP").
one single project.
exceed the FIT Tier 2 wattage threshold.^®
applies here, and the FIT Projects should similarly be treated as
"Complainants'Commission's Order No. at 26 ("Bosteds'
Hawaiian Electric claims that the facts yielding the
2011 Monet Order are distinguishable from the facts of this Docket
such that the
The Companies point to the following factual differences
to support their position:
C.
The Solar Project Owners' Statement of Position
The Solar Project Owners join with Hawaiian Electric in
arguing that the 2011 Order does apply to theMonet not
The Solar Project Owners begin their analysis by
noting that the 2011 Monet Order predates the approval of the
52FIT Tier 2 Program by about eight months. They then point out
^^Companies' SOP at 23.
^^Companies' SOP at 22-24.
51"
Owners' SOP at 2.
2016-0224 15
The 2011 Monet Order involved one single site that was to be subdivided into distinct but contiguous parcels, whereas the FIT Projects are spread out in three separate subdivisions and not entirely contiguous.
The individual projects involved in the 2011 Monet Case were all owned by the same entity, whereas the FIT Projects have distinct owners; and
Intervenors Kona 50-18,and Hawaii FIT Twelve LLC'sApril 13, 2020 at 2 ("Owners' SOP") .
FIT Projects.
LLC, et al., Statemsent of
apply.
reasoning behind the 2011 Monet Order does not
52,
South Point FIT LLC, Position," filed on
factual differences,
"backdoor attempt to squeeze into compliance with thecase as a
FIT Tier 2 Tariff. The primary distinction. according to the
Solar Project is that Monet' s projectsOwners, Mr. were on
contiguous parcels and therefore the definition ofmet 3.
all involve "separately
>> 55acquired site control for individual parcels of land[.]
This distinction, according the Solar Proj ectto Owners,
demonstrates that the intents were different in the case resulting
in the 2011 Monet Order and this Docket Mr. Monet's project was
improper because he sought to exploit a loophole and knew he was
in noncompliance with the FIT Tier 2 requiremsents. while the
FIT Projects are proper because the Solar Project Owners never
intended to violate the FIT Tier 2 requirements and complied with
the literal text thereof.
The Solar Project Owners also note that Mr. Monet had
amount of money. whereas the
^^Owners' SOP at 6.
"^Owners' SOP at 7 .
s^Owners' SOP at 7 .
^‘'Owners' SOP at 5-8.
2016-0224 16
consolidated proj ect.
The FIT Projects, by contrast.
not yet invested any substantial
characterizing the situation in the Monet
51Solar Project Owners have invested millions. This investment,
the Solar Project Owners say, is another distinguishing factor
between the Monet Case and this one, because the Owners' property
They argue that an agency
decision cannot be applied retroactively if applying the new rule
59to past conduct would effect a manifest injustice. In fact.
the Solar Project Owners believe that treating the FIT Projects as
one aggregate project "would effectively destroy all economically
beneficial use" of the land proposed for the
would constitute a regulatory taking in violation
of the Takings Clause of the U.S. Constitution.
The Solar Proj ect also that,Owners argue
unlike Mr. Monet, considering the FIT Projects individually would
62not result in a windfall for the Solar Project Owners.
^’Owners' SOP at 8.
^^Owners' SOP at 8-10.
5^0wners' SOP at 10.
®^0wners' SOP at 25.
^^Owners' SOP at 26-29.
®^0wners' SOP at 13-14.
2016-0224 17
FIT Projects
That, in turn.
and financial rights are at stake.
D.
The Consumer Advocate's Statement of Position
The Consumer Advocate asserts that the Commission should
"apply significant weight to [the 2011 Monet Order] when evaluating
"63the complaint in this proceeding. The Consumer Advocate notes
that, while there are differences between this case and the Monet
case, the underlying premise of there being multiple FIT projects
on the same circuit is not in the public interest and should be
64required to proceed under the Competitive Bidding Framework.
Thus, the Consumer Advocate concludes, applying the reasoning of
the 2011 Monet Order i.e., not allowing the FIT Projects to be
individually eligible for FIT Tier 2 "would be well supported
•I 65and in the public interest.
of Position,"Statement
s^CA'' s SOP at 9.
^-CAM s SOP at 10-11.
2016-0224 18
"Divisionfiled on April 13,
of Consumer Advocacy's2020 ("CA's SOP") at 9.
IV.
DISCUSSION
A.
Legal Standards
HAR § 16-601-69(a) allows a respondent to "file a motion
to dismiss a complaint because the complaint fails to state a claim
upon which relief can be granted or for other valid reasons."
Notably, that silent to whether parties grantedas
intervenor status like the Solar Project Owners -- may file a
motion to dismiss.
Under these unique circumstances, the Commission will look
6Sto the Hawaii Rules of Civil Procedure (the "HRCP"), for guidance
in order "to secure the just, speedy. and inexpensive determination"
67of this proceeding. Turning to the HRCP, the Commission observes
that the expressly contemplates msotions dismsiss byHRCP to
In support of the above, the Commission finds that under
these circumstances. does to prohibit thesense
Solar Project Owners -- who, by virtue of intervention, have been
granted full party status in this matter from raising genuine
^^See HAR § 16-601-1.
6'HAR § 16-601-1.
■'o/'HRCP 12 (b) (6) .
2016-0224 19
third parties, such as the Solar Project Owners.^®
section is
not make
legal and factual issues, particularly where their resolution may
and facilitate the expeditious and
While the Solar Project Owners styled their motion as
Motion to Dismiss under HAR § 16-601-69, they present substantial
factual analysis based on the evidentiary record developed in this
docket. Further, as noted by the Solar Project Owners themselves.
presented
"7ij udgment.
will treat the Motion to Dismiss as a motion for summary judgment and
apply the standards governing summary judgment, again turning to the
Summary judgment will be granted where the pleadings and
evidence show that there is no genuine issue of msaterial fact and
issues
^^tee generally Motion to Dismiss at 45-100.
■^^Motion to Dismiss at 35, n. 29 (quoting HRCP 12(b) .
7 See HRCP 56.
2016-0224 20
HRCP for guidance.
orderly resolution of this proceeding.
if, during a motion to dismiss, "matters outside the pleadings are
°®The Commission notes that it may bring a motion to dismiss formal complaints on its own motion. Docket No. 2015-0324, Decision and Order No. 33945, filed on Apr. 19, 2016 at 27 (available at 2016 WL 5630676); see also HAR § 16-601-67. Accordingly, even if the circumstances did not support turning to the HRCP and allowing the Solar Project Owners to file their Motion to Dismiss, the Commission could alternatively raise these issues under its own motion.
narrow the scope of issues
Under these particular circumstances, the Commission
the motion shall be treated as one for summary
When the non-movant bears the burden of proof at trial (or hearing.
as is the case with the Bosteds, the non-movants here), the moving
party must affirmatively "show the absence of any genuine issue as
facts. which. under applicable principles ofto
substantive law, entitles the moving party to judgment as a matter
of law. "^4
Therefore, be entitled j udgment,to to summary
element of the Bosteds' claim through evidence; or (2) demonstrate
75the Bosteds will be unable to carry their burden at the hearing.
B.
The Solar Project Owners' Motion to Dismiss
Because the Solar Project Owners have converted their
Motion to Dismiss to one for summary judgment, as discussed above,
Thronas, 107 Hawaii 48, 56, 689,V .
■^"^Ralston v. Yim, 129 Hawaii 46, 56, 292 P.3d 1276, 1286 (2013) .
'^Ralston, 129 Hawaii at 56, 292 P.3d at 1286.
2016-0224 21
■^■^Querubin697 (2005).
the moving party is entitled to judgment as a matter of law."^^
109 P.3d
the Solar Project Owners must either: (1) affirmatively negate an
all material
the Cornrnission does address their regardingnot arguments
75insufficient pleading.
The Solar Project Owners assert that each of the Bosteds'
six causes of action fail."^^ The Commission therefore addresses
the Bosteds' six under the summary judgmentcauses
standard with the Solar Project Owners bearing the burden of
showing the absence of any genuine issues of material fact as to
each. Each count is addressed in turn, below.
1.
Count 1 Misuse of Zoning Laws
The Bosteds complain that the Proj ects takeFIT
advantage of what they characterize as a "loophole" in the zoning
78laws on the Big Island. The Bosteds note that a bill to close
the loophole was introduced before the legislature (HB 2636),
79but that the bill was never passed.
'^Motion to Dismiss at 43-100.
^^Coraplaint at 3.
2016-0224 22
'^^Stee Andrade v. Cnty. of Hawaii, 145 Hawaii 265, 270, 451 P.3d 1, 6 (Ct. App. 2019) (requiring a tribunal faced with a motion to dismiss converted to a motion for summary judgment to consider not just the pleadings, but instead to "view the facts presented in the pleadings and the evidence submitted by the plaintiff" (emphasis in original)).
of action
The Solar Project Owners assert the Bosteds have failed
to "allege specific violations of established zoning laws[,]" and,
"[m]oreoever, [that] the undisputed facts of this case establish
"SOthat there has been no violation of zoning laws.
The Commission agrees. Aside from referencing a bill.
that was not passed, the Bosteds have not pointed to a specific
violation of existing zoning regulation.statuteany or
Accordingly, the Commission finds that thi£> count tails as a matter
of law. Based on the above, the Commission grants the Motion to
Dismiss as to Count 1.
2 .
Count 2 Insufficient Site Control
The Bosteds assert that the FIT Projects should not be
lots"
"81"neither owned nor leased land when the permits were applied for.
They claim that the developer was merely in escrow to own the lots
in question. which is insufficient to meet what they assert is a
"fundamental requirement tor entering the FIT Queue" of having
the site of the proposed project.control over
^^Motion to Dismiss at 45.
siComplaint at 3.
^^Complaint at 3.
2016-0224 23
in the FIT queue because "the developer of the Ranchos
Both the Solar Project Owners Electric
provide evidence that each of the FIT Projects have a letter of
intent and/or leasehold agreement sufficient to comply with the
The only evidence the Bosteds present
in response are assertions regarding their speculations about the
intent^^ (earlierletters of in their testimony. the Bosteds
indicated that they believe the site control requirement is "not
"85[an] effective means to ensure" project completion. Indeed,
while the Bosteds that the FIT Tier 2 procedures
require applicants demonstrate site ownership or control at the
8€time of application, they, themselves, acknowledge that a leasehold
Furthermore,
2017 at 36
^^Bosteds' Testimony at 32.
2016-0224 24
^^See Complaint at Attachment 2 (reflecting that site control docrunentation for FIT Tier 2 applicants can be established in one of three ways: ownership; leasehold interest; or a letter of intent comprising "an agreement in place with the Landowner to utilize the site for the purpose of installing generating equipment eligible for the Schedule FIT Agreement.").
s^Docket No. 2008-0273, Order No. 30457, "Clarifying certain FIT Administration Issues," filed June 22, 2012 at 4.
site control requirement.®^
^^Intervenors' Testimony at 4-5; Letter Froms: B. Hiyane To: Commission Re: Docket No. 2016-0224 - Formal Complaint of Peter Bosted and Ann Bosted; Direct Testimonies, filed on September 15, 2017 atTestimony of Amanda Lee 2-3 ("Respondents' Testimony").
are correct
and Hawaiian
agreement is not required to establish site control.
^^"Complainants' Testimony," filed on September 1, ("Bosteds' Testimony").
the Bosteds do not claim that allowing the use of a letter of intent
to establish site control is in any way improper.
Accordingly, even accepting the Bosteds' allegations
they have provided evidence rebuttrue, not toas
the Solar Project Owners' argument that site control requirements
were properly met by letters of intent. While the Bosteds may
disagree with the Tier Two procedural requirementsFIT as
they stand. this does constitute evidence thatnot any
site control requirements violated or circumvented. Thus,were
considering all evidence in light most favorable toeven a
the Bosteds, there is no dispute regarding any material fact as to
this Count.
Thus, upon careful review of the record, and having given
due consideration to the arguments advanced. the Commission finds
that the Solar Project Owners have affirmsatively negated an element
and demonstrated that the
Bosteds
hearing. Accordingly, the Commission grants the Motion to Dismiss
as to Count 2.
2016-0224 25
of this Count, lack of site control.
will be unable to carry their evidentiary burden at
3.
Count 3 The Project Is Not Shovel Ready
The Bosteds claim that the FIT Projects should be removed
/'8 8from the queue because they were and are "not shovel ready [. ]
But other than a reference to other dockets alleging the Commission
ordered Hawaiian Electric to remove projects from the FIT queue
that are not shovel ready, the Bosteds do not explain or reference
89the basis or components of a "shovel ready" requirement .
Hawaiian Electric and the Solar Project Owners explain
they believe this "shovel ready" language was shorthand for the
FIT Tier 2 applicants having to meet the requirements set forth in
Order No. 30457.-^
The Bosteds discuss "shovel ready" requirements in depth
in their Complaint and in their testimony, but they present no
credible evidence which meaningfully rebuts Hawaiian Electric's
and the Solar Project Owners' evidence that the prerequisites to
91a FIT Tier 2 application were met for all the FIT Projects.
sscoraplaint at 3.
^^See generally Complaint.
2016-0224 26
®^Letter From: D. Brown To: Commission Re: Docket No. 2016-0224 - Formal Complaint of Peter Bosted and Ann Bosted; Responses to Complainants' Information Requests at 6-7, Respondents' Response to Bosted-IR-6.A.1; Motion to Dismiss at 56-58.
^^Intervenors' Testimony at 8-9, 22-23; Respondents' Testimonyat Testimony of Rosella Motoki at 5; Answer at Exhibit 1.
After a careful review of the pleadings, the record,
and Docket 2008-0273, the Commission withNo. agrees
Hawaiian Electric and the Solar Project Owners and finds that the
"shovel ready" requirement refers to the prerequisites imposed on
Consistent with the
FIT administration rules, the "shovel ready" requirements are met
if a FIT Tier 2 applicant demonstrates site ownership or control.
completed application for a building permit. and the
proposed project could be completed within eighteen months of the
93Schedule FIT Agreement.
Thus, based on the above, the Commission finds that the
Solar Project Owners have affirmatively negated an element of this
failure satisfy the applicable requirements underCount, to
Order No. 30457, and have demonstrated that the Bosteds will be
unable to carry their evidentiary burden at hearing. Accordingly,
the Commission grants the Motion to Dismiss as to Count 3.
--Order No. 30457 at 4-5, 8-9.
2016-0224 27
^^Order No. 30457 at 9 (indicating the "Tier 2 pre-requisites" were "designed to prioritize shovel-ready projects").
applicants for an FIT Tier 2 Application.
files a
4 .
Count 4 The FIT Permits Were Traded
The Bosteds allege that the FIT Permits "have been traded
by a number of companies" rendering SPI Solar the "current de Facto
" 94developer. the Bosteds do citeHowever, not statute.any
95regulation, or order that prohibits the transfer of FIT permits.
Instead of a specific prohibition on transferring FIT permits.
the Bosteds argue that such transfers "violate[] the intent ot the
"9€FIT Program[.] the Bosteds do not allege an actualHowever,
violation of the provisions of the FIT program, and similarly do
not explain how trading FIT permits is grounds for relief in a
formal complaint.
^^See generally Complaint; and Bosted Testimony at 12-16.
-^Bosted Testimony at 14.
2016-0224 28
50-1850-22
LLC,LLC,LLC,LLC,
LLC,LLC,LLC,
Representative ofKONA 50-20KONA 50-24KONA 50-28KONA 50-33 LLC,
isis
Testimony of Kevin White AuthorizedKONA 50-18 LLC, KONA 50-19
KONAKONAKONA
KONA 50-19 LLC, KONA 50-23 LLC, KONA 50-27 LLC, KONA 50-31 LLC,
South Point FIT LLC, and Hawaii FIT Twelve LLC, filed on September 19, 2017 ("Interveners' Testimony"), at 1. The precise ownership structure of the relevant projects and its history is more complicated and has already been observed by the Comrrsission. That analysis is incorporated here by reference. See Order No. 36888 at 8-11.
50-2650-30
^^Complaint at 4. The Commission has previously recognized in this proceeding that the Solar Project Owners assert that they all have common ownership whereby SPI Solar Inc. is "the 100% owner of Calwaii Power Holdings, LLC, which in-turn is the 100% owner of [the Solar Project Owners] ."
Interveners KONA 50-21 LLC, KONA 50-25 LLC, KONA 50-2 9 LLC,
KONA 50-34 LLC, KONA 50-35 LLC,
The Bosteds also allege that transfers ofsome97FIT permits were "made without [Hawaiian Electric's] consent [.]
However this assertion is unsupported by any evidence in the record
and is merely a conclusory statement by a witness with no firsthand
knowledge of the transactions at issue. Testimony "that state[s]
ultimate or conclusory facts cannot be used in support of or in
"98opposition motion for j udgment.to Moreover,a summary
contrary to the Bosteds' assertion, both Hawaiian Electric and the
Solar Project presented evidence that all relevantOwners
transfers were effected with the consent of Hawaiian Electric.-^
Thus, upon careful review of the record, and having given
due consideration to the arguments advanced, the Commission finds
that the Solar Project Owners have affirmsatively negated an element
of this that the Solar Project Owners' transfer of FITCount,
Bosteds will their evidentiary burdento atcarry
hearing. Accordingly, the Commission grants the Motion to Dismiss
as to Count 4.
®"Bosted testimony at 14.
23-24; Respondents' Testimony
2016-0224 2 9
^^Nozawa v. Operating Engineers Loc. Union No. 3, 142 Hawaii 331, 338, 418 P,3d 1187, 1194 (2018).
Intervenors' Testimony at (Rosella Motoki) at 6.
permits was illegal or improper, and have demonstrated that the
be unable
5.
Count 5 Circumvention of the Competitive Bidding Process
The Commission has already recognized that the question
of whether the Solar Project Owners improperly circumvented the
100Competitive Bidding Process is the primary issue in this Docket.
Despite alleging six separate counts, the Commission observes that
is focus of the Bosteds' analysis in
The Bosteds that the 26 Projects shouldFITargue
properly be aggregated to one single utility scale project of
significantly than allowed undergreater raegawattage 3.
Tier 2 Permit. The Commission recognizes that similar concerns
have been raised in prior proceedings. i . e . , the 2011 Monet Order,
where the Commission prohibited developers froms "avoid[ing] the
competitive bidding requirements by simply subdividing his
103proposed project" into smaller distinct projects.
The Consumer Advocate largely agrees with the Bosteds
regarding Count 5, indicating its belief that "multiple FIT
projects on the same circuit []
^’’’’See Order No. 36888 at 2.
^^-*-See generally Complaint; Bosteds' SOP.
^^^2011 Monet Order at 18-19.
2016-0224 30
^^^Complaint at 4.
their Complaint.
is not in the public interest
this Count the primary
and should be required proceed under theto
/<1C4Competitive Bidding Framework.
For their part, the Solar Project Owners assert that
the Bosteds'
They contend that the Competitive Bidding Framework does not apply
common corporate parent that are each under the threshold wattage
106because of the literal language of that Framework. However,
the Solar Project Owners do not discuss the 2011 Monet Order,
including its applicability in determining whether the
Proj ects closer in large projectFIT concept toare one
individual smaller projects how the facts here couldor or
107otherwise be distinguished.
The Commission looks the 2011 Order forto Monet
guidance, in light of the parallels in that case. After carefully
reviewing the record in the Monet case and the record in this case.
the Commission is aware of the factual differences between the
two cases noted by all the Parties, but finds the rationale and
reasoning in the 2011 Order instructive.present Monet
^^^CA SOP at 9.
•^^d'dotion to dismiss at 83-86.
^^^Motion to Dismiss at 84-87.
^^■See Motion to Dismiss at 83-90.
2016-0224 31
to a group of individual projects whose distinct owners share a
requested relief is not available under the law.^'^^
Critically, in the 2011 Monet Order, the Cornrnission observed that
the primary issue was "the interplay between the FIT Program and
•t 108the [C] omspetitive [Bjidding [Framework], which reflect the sairie
considerations at issue here.
The 2011 Monet Order is a clear expression of the policy
that developers cannot avoid the intent of the Competitive Bidding
Framework through technical maneuvering and hyper-literal attempts
to parse the language of various regulatory decisions. Thus,
in the 2011 Money Order, the Commission found that subdividing
lots to create contiguous individual proj ects was
because the paradigm was "closer in concept" to one single large
109prop ect. true even though there
language expressly setting forth that contiguous smaller projects
would be deemsed one larger project.
The Commission recognizes the parallels to this docket
and rejects the Solar Project Owners'
argument that their compliance with the
regulatory decisions means they could not have circumvented the
Competitive Bidding Process. While the tacts are not identical.
for example. in addition putting the small projectsto on
^^^2011 Monet Order at 13.
^^®2011 Monet Order at 18.
2016-0224 32
individual lots, the Solar Project Owners made sure the lots were
This was was no regulatory
and Hawaiian Electric's
not allowed
literal words of the
not entirely contiguous and each had a distinct legal entity owning
there sufficient parallels furtherto warrantare
investigation, and the record is insufficient maketo a
determination at the summary judgment stage.
Thus, upon careful review of the record, and having given
due consideration to the arguments advanced, the Commission finds
that at this stage, it cannot determine as a matter of law whether
the Projects could be subject to the Competitive BiddingFIT
Framework. Accordingly, the Solar Project Owners have not met
their burden of demonstrating that the Bosteds will be unable to
carry their burden for this Count at hearing. and the Motion to
Dismiss is denied regarding Count 5.
6.
Count 6 No Benefit to People and Ratepayers
The Solar Project Owners that the Bosteds'assert
Count 6 fails to allege a violation of law. of any provision of
rulethe of Commission orderFIT Program, or any or
The Commission agrees. Upon reviewing Count 6, the basis for this
count are allegations that essentially repeat or rely upon the
Bosteds' other counts, such as the Solar Project Owners not having
^^'^Motion to Dismiss at 90-91, 94.
2016-0224 33
However, as these are premised on the outcome of the Bosteds' other
independent basis for relief.counts.
the Commission, by this Order, has dismissed msany of theMoreover,
pertinent that underlie 6, rendering itcounts Count even
more speculative.
Count 6 is subsumed by the Bosteds' other causesIn sum.
of action. Thus, upon careful review of the record, and having
given due consideration to the arguments advanced. the Commission
finds that Count 6 fails to sufficiently allege an independent
violation of law and is effectively duplicative of the Bosteds'
other counts. Count 6 is therefore dismissed.
C.
The Bosteds ask the Commission to take notice of two
First, they ask the Commission to
take notice of a decision from the U.S. District Court for the
Southern District of New York.-’-^-^ Second, they ask the Commission
ii^Bosteds' Request for Notice at 1-2.
^^^Bosteds' Request for Notice at 1-2.
2016-0224 34
The Bosteds' Motion to Take Notice or Otherwise Augment the Record
different pieces of evidence.
sufficient site control and the project not being shovel ready.
they cannot serve as an
The Commission
is empowered to take official notice of all matters that could be
The Bosteds' individual
requests are addressed in turn.
First, the Commission declines to take official notice of
facts contained in the District for theU. S. Courtany
Southern District of York cited by the Bosteds.New case
Factual allegations, conclusions, and findings . should not be
noticed to prove the truth of the matters asserted even though the
r " 1 i Smaterial happens to be contained in court records. Simply put.
the Commission may not take official notice of the truth of matters
set forth in judicial decisions.
Second, the Bosteds ask the Commission to take notice of
four cancelled checks or otherwise include them in the record.
There is basis which the Commission could take officialno on
notice of the checks they are not generally known within the
are not capable of accurate and ready
determination by whose beresort to cannotsources accuracy
reasonably questioned, and are not the type of information on which
ii^Bosteds' Request for Notice at 1-2.
§ 16-601-48 .
2016-0224 35
^i^Uyeda v. Schermer, 144 Hawaii 163, 172, 439 P.3d 115, 124(2019) (quoting Addison M. Bowman, Hawaii Rules of Evidence Manual 2-5 (2014-15 ed.)).
judicially noticed by Hawaii courts.
to take judicial notice of four cancelled checks.
the Commission could opine using its expertise. However,
the Commission observes that the Solar Project Owners do not appear
to dispute the authenticity or veracity of the checks, but instead
dispute their meaning.
Thus,
the record. without establishing their authenticity via official
notice. at this time. Any party disputing the authenticity or
veracity of the cancelled checks may submit information supporting
the dispute by one week from the date of entry of this Order.
Upon careful review of the record, and having given due
consideration to the arguments advanced, the Commission denies in
part and grants in part the Bosteds' Motion to Take Notice or
Otherwise Augmsent the Record in that: (1) the Commission will not
take official notice of cited by the Bosteds;S.D.N.Y. case
and (2) the Commission will take official notice of thenot
cancelled checks, but will allow their inclusion in the record of
this Docket subject to any challenge(s) to their authenticity or
veracity.
resolve this issue by separate order.
2016-0224 36
If any challenges are submitted, the Commission will
although the Commission does not take official
notice of the checks at issue, it will allow their inclusion in
V.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Based the foregoing, the Commission findson
and concludes:
1.Count
1. There is evidence of violation ofno any any
existing zoning statute or regulation.
2 . Therefore, the Solar Proj ect haveOwners
demonstrated that 1 fails of law, and theCount matteras 3.
Solar Project Owners are entitled to a determination in their favor
this count.as to
3. Based on the above, the Motion to Dismiss is granted
Count 1.as to
2 .Count 2
4 . The Solar Project Owners have established that they
have site control through their letter of intent and
leasehold agreements.
5. The Bosteds have not presented any evidence to
rebut this showing by the Solar Project Owners otherwiseor
demonstrated a failure to comply with site control requirements.
2016-0224 37
6. Accordingly, the Solar Pro j ect haveOwners
affirmatively negated an element of this lack of siteCount I
control, and have demonstrated that the Bosteds will be unable to
carry their evidentiary burden at hearing.
7. Based
as to Count 2 .
3.Count 3
8 . The "shovel ready" language refers to
the requirements for Tier 2 applicants forthFIT setas
in Order No. 30457.
9. The Solar Project Owners have provided evidence
showing that they have met the applicable requirements set forth
in Order No. 30457.
10 . The Bosteds have not produced credible evidence
that rebuts the Solar Project Owners' evidence that their projects
meet the applicable requirements set forth in Order No. 30457.
11. Accordingly, the Solar Proj ect haveOwners
affirmatively negated an element of this Count, failure to satisfy
the applicable requirements under Order 30457, and haveNo.
demonstrated that the Bosteds will be unable theirto carry
evidentiary burden at hearing.
2016-0224 38
on the above, the Motion to Dismiss is granted
12 . Based on the above, the Motion to Dismiss is granted
as to Count 3.
4 .Count 4
13. The Bosteds have not presented any legal authority
that provides that transferring FIT permits violates any specific
violation of the FIT program rules.
14 . Regarding their specitic allegation that the
Solar Proj ect transferred permits withoutOwners FIT
Hawaiian Electric^ s the Solar Proj ect haveconsent, Owners
presented evidence rebutting this claim, and establishing that all
transfers were made with Hawaiian Electric's consent.
15. Accordingly, the Solar Proj ect haveOwners
af f irmsatively negated element of this that theCount,an
Solar Proj ect Owners' transfer of FIT permits illegalwas
or improper, and have demonstrated that the Bosteds will be unable
to carry their evidentiary burden at hearing.
16. Based on the above, the Motion to Dismiss is granted
as to Count 4.
2016-0224 3 9
5.Count 5
17 . In drawing all reasonable inferences in favor of
collective project.
The fact that each individual project is owned byA.
a distinct legal entity, as well as the geographic diversity of
the FIT Projects themselves, both weigh toward the FIT Projects
being considered individual; but
The cornrnon overall ownership of the Solar ProjectB.
FIT Projects both weigh toward the FIT Projects being considered
as a single project.
18 .
a matter of law whether the FIT Projects could be subject to the
Competitive Bidding Framework.
For example. the Solar Project Owners claim thatA.
the FIT Projects are exempt from the Framework because of the
Framework's exemption of "generating units with a net output
available to the utility of 1% or less of a utility's total firm
"117capacity[,] but they have not established that the FIT Projects
^-'-''Framework at 5.2016-0224 40
The Commission cannot, at this stage, determine as
could not be collectively considered a "generating unit" or that
are "closer in concept" to individual projects or to one larger
the Bosteds, the evidence is msixed as to whether the FIT Projects
Owners and the temporal proximity of the applications for the
their total is how that "net output"aggregate output not
would be calculated.
19. Accordingly, the Solar Project Owners have not met
their burden of demonstrating that the Bosteds will be unable to
carry their burden for this Count at hearing.
20 . Based on the above, the Motion to Dismiss is denied
regarding Count 5.
6.Count 6
21. The Bosteds have failed to identify any particular
violation of law,
Count 6.
22 . The specific allegations made in support of Count 6
are subsumed within other Counts and therefore redundant.
23. Based on the above, the Motion to Dismiss is granted
regarding Count 6.
7 .
24 . The Commission may not take official notice of the
truth of matters set forth in judicial decisions.
2016-0224 41
The Bosteds' Request For Judicial Notice or to Otherwise Augment the Record
rule, regulation, or Commission order in their
25.
notice of S.D.N.Y. case cited by the Bosteds, and the Request for
Judicial Notice is denied in this respect.
26. The Commission will not take official notice of the
cancelled checks at this time, but will allow their inclusion in
the record of this E)ocket and the opportunity for any Party or
Participant to challenge the checks' authenticity or veracity by
written submission brought within week of the date ofone
this Order.
VI.
PROCEDURES GOVERNING THE DOCKET MOVING FORWARD
In light of the above, the sole count remsaining in this
Docket is Count 5. The Commission intends to hold a hearing on
this remaining Count to take evidence and argument on this issue.
the hearing, the Commission will consider evidenceAt
whether the FIT Projects are "closer in
concept" to individual projects or to a larger consolidated project
and whether the Competitive Bidding Framework would allow the
FIT Projects to be considered in the aggregate.
facilitate this hearing, the Commission willTo
conduct a prehearing conference. In light of the restrictions
in place result of the COVID-19 pandemic.as 3.
and recognizing that the Bosteds' reside Hawaii island.on
2016-0224 42
As a result, the Commission will not take official
establishing, inter alia,
the Commission will host the prehearing conferen ce remotely
via Webex. Information about the prehearing conference,
including how to attend the meeting virtually, will be forthcomsing
in a notice of prehearing conference.
At the prehearing conference, the Parties are expected
to be prepared to discuss how long they expect the hearing to take.
their expected number of witnesses, the scope of the documentary
evidence expected to be presented, and whether additionalany
are possible. Following the prehearing
conference, the Commission will issue a prehearing conference
order, which will establish, inter alia, the hearing date and time
and other rules to govern conduct at the hearing.
2016-0224 43
VII .
ORDERS
THE COMMISSION ORDERS:
1 . The Solar Project Owners' Motion Dismiss isto
granted with respect to Counts 1, 2, 3, 4, and 6 of the Complaint,
as set forth above.
2 . The Solar Project Owners' Motion Dismiss isto
denied with 5 of the Complaint,respect to Count setas
forth above.
3. The Bosteds' Motion to Take Notice Otherwiseor
Augment the Record is granted in part and denied in part, as set
forth above.
4 . The cancelled checks proffered by the Bosteds are
included in the evidentiary record of this Docket subject to any
challenge(s) or veracity brought withinto
one week from the date of entry of this Order. If any challenges
submitted. the Commission will resolve this issue byare
separate order.
5. The Commission will hold a prehearing conference.
which all Parties required to attend. and who should beare
prepared to discuss the forth in Sectionmatters set III
above and any other matters that will aid the Commission in setting
2016-0224 44
a final hearing. The Commission will subsequently issue a notice
containing details about the prehearing conference.
AUGUST 5, 2021DONE at Honolulu, Hawaii
Commissioner
APPROVED AS TO FORM:
2016-0224.ljk
2016-0224 45
• !
PUBLIC UTILITIES COMMISSIONOF THE STATE OF HAWAII
Mark KaetsuCommission Counsel
CERTIFICATE OF SERVICE
Order No. 37043, the foregoing Order wasPursuant to
served the date uploaded the Public Utilitiestoon was
Commission's Management System and served through theDocument
Document Management System's electronic Distribution List.
FILED
2021 Aug 05 PM 15:06
The foregoing document was electronically filed with the State of Hawaii Public Utilities
Commission’s Document Management System (DMS).
PUBLIC UTILITIESCOMMISSION