Loading...
HomeMy WebLinkAboutCOM 0998.000 2006-2008 +tt OF Harry Kim} Dixie Kaetsu Mayor ; • Managing Director r • Barbara Kossow h'U00 Deputy Managing Director County of Hawaii 25 Aupuni Street, Room 215 • Hilo, Hawai'i 96720-0252 • (808) 961-8211 Fax (808) 9616553 KONA: 75-5706 Kuakini Highway, Suite 103 • Kailua-Kona, Hawai'i 96740 _ (808) 329-5226 • Fax (808) 326-5663 January 29, 2008 i~ CC 0 Z Z(-_- W ,T,, Honorable Pete Hoffmann, Chairman and Members of the County Council ''r 3 County of Hawaii x 333 Kilauea Avenue Hilo, HI 96720 - Dear Chairman Hoffmann and Members: Planning Director Initiated Amendment to Ordinance No. 96-7 (REZ 812) Amendment to Ordinance No. 96-8 (REZ 765) Vanning Director Initiated Change of Zone (REZ 07-000067) Request: RS-15 to RA-5a Repeal of Ordinance No. 97-102 (REZ 866) Tax Map Key: 5-9-1:8 As required by Chapter 4, Sec. 6-4.3(C), Hawaii County Charter, transmitted herewith for the County Council's consideration and action are the Planning Commission's letters and enclosures regarding the above-referenced requests. Sincerely, arry 'm Mayor Enclosures cc: Planning Department BMA a3~ Comm. No. q R $ Ref. To- Ref. Dote B 0 5 2008 vor M I~ ••i•Oi Mr County of Hawaii PLANNING COMMISSION Aupuni Center • 101 Pauahi Street, Suite 3 • Hilo, Hawaii 96720 Phone (808) 961-8288 • Fax (808) 961-8742 January 29, 2008 Pete Hoffmann, Chairman and Members of the County Council County of Hawaii 333 Kilauea Avenue, 2nd Floor Hilo, HI 96720 Dear Chairman Hoffmann and Council Members: Planning Director Initiated Change of Zone (REZ 07-000067) Request: RS-15 to RA-5a Repeal of Ordinance No. 97-102 (REZ 866) Tax Map Key: 5-9-1:8 The Planning Commission at its duly held public hearing on January 11, 2008, considered the Planning Director's initiation of a Change of Zone for 37.88 acres of land from Single Family Residential - 15,000 square feet (RS-15) to a Residential and Agricultural - 5 acre (RA-5a) district and the repeal of Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural - 5 acre (A-5a) to a Single Family Residential - 15,000 square foot (RS-15) district. The property involved, owned by Kohala LLC, is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua I", North Kohala, Hawaii. A motion was made to send an unfavorable recommendation to the County Council on both requests. There were four votes in favor of the motion and two against. Because five votes are needed for the Planning Commission to take action, the four to two vote constitutes a "no action" by the Planning Commission. The "no action" itself constitutes an unfavorable recommendation. Therefore, the Planning Director's request is being forwarded to you with an unfavorable recommendation because of the time limits on the Planning Commission's review of such amendments. Hawaii County is an Equal Opportunity Provider and Employer Pete Hoffmann, Chairman and Members of the County Council Page 2 Previously, on July 20, 2007, the Planning Commission had voted 3-3 on a motion to send a favorable recommendation on the proposed rezoning. Accordingly, we are hereby transmitting this letter that explains the unfavorable recommendation of the Planning Commission along with the favorable recommendation of the Planning Director and the Background Report, and Additions to the Background and Recommendation Reports. Enclosed for your consideration is the proposed bill initiating the repeal of Ordinance No. 97 102 and the amending of Section 25-8-7 (North and South Kohala Districts Zone Map) and the hearing transcripts. Please note that the landowner, Kohala LLC, had subsequently filed an amendment to Condition C (time to secure final subdivision approval) of Change of Zone Ordinance No. 97-102 asking to extend time to fulfill that condition, and the Commission at its January 11, 2008 meeting, continued that hearing to the March 201h Commission meeting in West Hawaii, with the consent of the landowner. Should you have any questions, please feel free to contact Norman Hayashi of the Planning Department at 961-8288, x205. Sincerely, / p 7atanabe, Rodney Chairman Planning Commission Enclosures cc: Steven S. C. Lim, Esq. Planning Department-Kona Lincoln Ashida, Esq. Ivan Torigoe, Esq. Department of Public Works Department of Water Supply BRPDInitiatedREZ866.jwd 07-10-07 COUNTY OF HAWAII PLANNING DEPARTMENT BACKGROUND AND RECOMMENDATION INITIATOR: PLANNING DIRECTOR CHANGE OF ZONE APPLICATION FROM RS-15 TO RA-5A THE PLANNING DIRECTOR is initiating procedures to change the zoning from the previously approved Single-Family Residential 15,000-Square Feet (RS-15) to Residential and Agricultural 5-Acre (RA-5a). The property is located on the makai side of Akoni Pule Highway directly across the entrance to Kohala Ranch at Kahua 1 st, North Kohala, Hawaii, TMK: 5-9-1:8. LANDOWNER 1. Landowner: The applicant, Kohala LLC, is the landowner and the successor-in- interest to the original applicant, Gentry-Pacific, Ltd. BACKGROUND INFORMATION 2. July 14,1997: Effective date for Change of Zone Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5a) to a Single-Family Residential (RS-15) zoned district. (Planning Department Exhibit 1 - Change of Zone Ordinance No. 97-102) 3. August 8, 1997: Effective date of Special Management Area Use Permit No. 379, which was approved to allow the development of a 50-lot single family residential subdivision and related improvements. (Planning Department Exhibit 2 - Special Management Area Use Permit No. 379 with Additional Approval Letters Dated August 26, 1997 and September 8, 1997. 4. February 22, 2007: Date of adoption of Resolution 44 07, which resolved to temporarily delay Council action on rezoning applications in the District of North Kohala which permit transient lodging accommodations or which re-designate agricultural land into zoning districts with a minimum land area less than twenty (20) acres in size, until the North Kohala Community Development Plan is adopted by ordinance, or until February 22, 2008, whichever shall occur first. (Planning Department Exhibit 3 - Resolution No. 44 07) 5. May 31, 2007: Date of letter sent by the Planning Director informing the ATTACH: Cortm. 998 Bill 237 applicant that based on inaction by the previous and current landowner for Ordinance 97-102 and SMA 379 for almost a 10-year period, including no requests for administrative time extensions, the Planning Director will be initiating the rezoning of the property from a RS-15 to a Residential and Agricultural 5-Acre (RA-5a) district and initiating the revocation of SMA Use Permit No. 379. (Planning Department Exhibit 4 - Letter Dated May 31, 2007) SENATE CONCURRENT RESOLUTIONS 6. S.C.R. NO. 179: Senate Concurrent Resolution No. 179, H.D. 1, adopted in 1988, urges the retention of view and open space makai of Kawaihae-Mahukona- Hawi Road from Kawaihae to Upolu Point, Hawaii. (Planning Department Exhibit 5 - Senate Concurrent Resolution No. 179) 7. S.C.R. NO. 146: Senate Concurrent Resolution No. 146, S.D. 1, adopted in 2001, urges the retention and preservation of open space and view planes, historic sites, and traditional access along the coastline of the North Kohala District, Hawaii. (Planning Department Exhibit 6 - Senate Concurrent Resolution No. 146) STATE AND COUNTY PLANS 8. General Plan Land Use Pattern Allocation Guide (LUPAG) Map: Low Density Urban, Extensive Agricultural and Open along the shoreline. 9. SLUC: Urban. 10. County Zoning: RS-15. 11. North Kohala Community Development Plan: Adopted by the Hawaii County Council as Resolution No. 219 86 on November 3, 1986, the North Kohala Community Development Plan encourages the retention of view planes from major highways, through comprehensive site design review of developments which may affect the vistas along Akoni Pule Highway from Kawaihae to Hawi. 12. Coastal Zone Management, HRS Chapter 205A: The entire State of Hawaii lies within the Coastal Zone Management area. The intent of the Coastal Zone Management Program is to guide and regulate public and private uses in the coastal zone management area with respect to recreational resources, historic resources, public access to the shoreline, scenic and open space resources, coastal -2- ecosystems, marine resources, economic uses, coastal hazards, managing development, public participation, and beach protection. 13. SMA: The property is situated within the Special Management Area. Special Management Area Use Permit No. 379 was approved to allow the development of a 50-lot single family residential subdivision and related improvements on the subject property. DESCRIPTION OF SUBJECT PROPERTY AND SURROUNDING AREA 14. Property: The property is 37.88 acres in size and is roughly rectangular in shape. It is located along a rocky coast of North Kohala approximately 3 miles northwest of Kawaihae directly across of the Kohala Ranch entrance and fronting Waiakailio Bay. 15. Surrounding Zoning/Land Uses: The property borders the ocean to the southwest. Surrounding properties are zoned Agricultural 5-acre (A-5a). The property to the northwest is owned by the State of Hawaii and is currently vacant, which is zoned A-5a. Kohala Ranch is located directly across the Akoni Pule Highway with lots along the highway zoned A-5a. Lots further mauka within the subdivision are zoned A-3a. The properties to the southeast, mauai of the highway, are zoned A-5a. Special Management Area Use Permit No. 2006- 000010 was approved to allow a 5-lot subdivision and related uses, and to make landscaping and other infrastructure improvements to two cul-de-sacs associated with the prior subdivision on the properties bordering to the southeast. 16. U.S.D.A. Soil Type: Kawaihae very rocky, very fine sandy loam, 6 to 12 percent slopes (KOC). 17. ALISH: Unclassified. 18. Land Study Bureau's Detailed Land Classification System: "E" or "Very Poor" for agricultural productivity by the Land Study Bureau. 19. FIRM: Portions of the property along the coastline are located within Flood Zone "VE", which is the Special Flood Hazard Area inundated by the 100-year flood with coastal flood with velocity hazard where base flood elevations are determined (nine feet). Other portions of the property along the highway are within Zone X, outside of the 500-year flood plain. The project site is located -3- within the Tsunami Evacuation Zone. RECOMMENDATION Change of Zone Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5a) to a Single-Family Residential (RS-15) zoned district, was adopted by the Hawaii County Council on July 14, 1997 to allow for a 50-lot residential subdivision with related improvements. Additionally, Special Management Area Use Permit No. 379 was approved by the Planning Commission on August 8, 1997, to allow the development of a 50-lot single family residential subdivision and related improvements on approximately 37.88 acres of land. Condition V in Change of Zone Ordinance No. 97-102 states that should any of the conditions not be met or substantially complied with in a timely fashion, the Director may initiate rezoning of the subject property to its original or more appropriate designation. As a result of the non-compliance of Condition C and the reasons stated below, the Planning Director is initiating the rezoning of the property from Single-Family Residential (RS-15) to a Residential and Agricultural 5-acre (RA-5a) zoned district, which would result in a more appropriate zoning for this area. The applicant at the time of the change of zone approval (July 14, 1997) was Gentry Pacific, Ltd. The property was purchased by Kohala LLC on June 30, 1999. Condition C of Change of Zone Ordinance No. 97-102 required that the applicant secure Final Subdivision Approval within five (5) years from the effective date of the ordinance (July 14, 2002). There has been no subdivision application filed with the Planning Department in compliance with Condition C as of the date of this writing. Condition U of Change of Zone Ordinance No. 97-102 allowed for an initial administrative time extension for the performance of conditions for a period not to exceed the period originally granted for performance. The previous or present applicant did not request for an administrative time extension to comply with Condition C until almost ten (10) years after the approval of Change of Zone Ordinance No. 97-102. More important than non-compliance, this revocation action is being initiated in response to the resolutions from the State of Hawaii Senate of the Fourteenth Legislature and the Senate of the Twenty-First Legislature, the goals and policies of the Natural -4- Beauty element of the General Plan, and the North Kohala community's desire for preservation along the coastline. Resolutions from the State of Hawaii Senate of the Fourteenth Legislature (S.C.R. No. 179, H.D. 1) and the Senate of the Twenty-First Legislature (S.C.R. No. 146, S.D. 1) were passed urging for the retention of view and open space makai of Kawaihae- Mahukona-Hawi Road from Kawaihae to Upolu Point and for the retention and preservation of open space and view planes, historic sites, and traditional access along the coastline of the North Kohala District. Additionally, these resolutions urge the State and County to work collaboratively with the community and residents of Kohala to ensure that the public view and open space currently existing makai of the Kawaihae-Mahukona- Hawi Road be preserved and to develop and implement a plan to protect the open nature of the Kohala coast, preserve its valuable historic sites, and provide greater awareness and appreciation of history and cultural significance of the area for residents and visitors alike. In response to the request for the County to work collaboratively with the community and residents of Kohala to achieve the above referenced goals, the County has begun the process of implementing a community development plan for North Kohala. The previous community development plan for North Kohala was adopted by the Hawaii County Council as Resolution No. 219 86 on November 3, 1986, which designated the area as Unplanned and encouraged the retention of view planes from major highways, through comprehensive site design review of developments which may affect the vistas along Akoni Pule Highway from Kawaihae to Hawi. More recently, the Council passed Resolution 44-07, which called for a temporary delay in rezoning of agricultural land to lot sizes of less than 20 acres, pending the adoption of the North Kohala Community Development Plan, or February 22, 2008, whichever comes first (A copy of Resolution 44-07 is attached as Planning Department Exhibit 3). The resolution does not directly affect this property because it refers to agricultural land, while this property is in the State Land Use Urban district. The resolution is, however, further evidence of the interest in protecting open space in North Kohala. -5- In the Natural Beauty section of the General Plan, areas of natural beauty in North Kohala include the coastline viewplane from Akoni Pule Highway, and Waiakailio Bay. This property is situated along the makai side of Akoni Pule Highway across from the entrance to Kohala Ranch and fronting Waiakailio Bay. As the population increases in this area, the desire to experience natural beauty will continue and may increase. If uncontrolled, the development necessary to accommodate an increasing population as well as resort development could have detrimental effects on the natural beauty of the island. Areas with special amenities of natural beauty have been and will continue to be the focus of pressure for resort development. Present regulatory process provide an assessment of impacts of development projects in order to protect, preserve and restore natural and scenic resources. Through the Zoning and Subdivision codes, and the Special Management Area and shoreline setback regulations, the County of Hawaii has the means to protect the island's natural and scenic beauty as an integral part of the living environment of the island. Safeguards of this valuable asset are a major consideration for any construction or development that may alter, eliminate, or intrude upon it. They are also important so that man-made elements are kept in an aesthetic perspective with the physical surroundings. Hawaii's natural beauty is both an irreplaceable asset and a part of the public trust. It is fragile and although often enhanced by man can easily be adversely affected. Measures must be taken to insure its protection, both now and in the future, for the enjoyment of Hawaii's residents and visitors. The importance of natural and scenic beauty and its true evaluation as an asset of public trust to be protected for future generations remain with the people of this island. While public planning and regulation are instrumental in achieving the goals set forth for this element, it is public awareness and interest that will maintain the natural beauty of the island of Hawaii. The goals of the Natural Beauty element of the General Plan are to 1) protect, preserve and enhance the quality of areas endowed with natural beauty, including the quality of coastal scenic resources, 2) to protect scenic vistas and view planes from becoming obstructed and 3) to maximize opportunities for present and future generations to appreciate and enjoy natural and scenic beauty. To do this, we must protect the views -6- of areas endowed with natural beauty by carefully considering the effects of proposed construction during all land use reviews and not to allow incompatible construction in areas of natural beauty, such as this area along Akoni Pule Highway fronting Waiakailio Bay. Lastly, this action to rezone the property from Single-Family Residential (RS-15) to Residential and Agricultural (RA-5a) would result in a more appropriate zoning for this area. The surrounding properties in this area are zoned Agricultural (A-5a), which includes a 500+ acre property owned by the State of Hawaii to the northwest, seven (7) properties to the southeast, makai of the highway, and the properties in the Kohala Ranch Subdivision across the Akoni Pule Highway. By down-zoning the property to RA-5a, it will be easier to preserve the natural beauty of this area and protect the scenic vistas and view planes from becoming obstructed in this area, than it would be with a zoning that allowed a higher density. More specific viewplane controls could be established if an Special Management Area permit is applied for (Subdivision of the property to 5-acre lots would still need an SMA permit). The RA-5a zoning is being recommended, rather than A-5a, because the property is not within the State Land Use Agricultural district. Along with this change of zone request, the Planning Director is also initiating the revocation of Special Management Area Use Permit No. 379, which was approved to allow a 50-lot residential subdivision and related improvements on the property. Based on the reasons stated above, the Planning Director is recommending that the Planning Commission send a favorable recommendation to the Hawaii County Council to change the zone from RS-15 to RA-5a for this property. The accompanying draft bill is provided for your favorable consideration. -7- COUNTY OF HAWAII STATE OF HAWAII BILL NO. ORDINANCE NO. AN ORDINANCE REPEALING ORDINANCE NO. 97 102 AND AMENDING SECTION 25-8-7 (NORTH AND SOUTH KOHALA DISTRICTS ZONE MAP), ARTICLE 8, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE 1983 (2005 EDITION), BY CHANGING THE DISTRICT CLASSIFICATION FROM SINGLE FAMILY RESIDENTIAL - 15,000 SQUARE FEET (RS-15) TO RESIDENTIAL AND AGRICULTURAL - 5 ACRE (RA-5a) AT KAHUA 1ST, NORTH KOHALA, HAWAII, COVERED BY TAX MAP KEY 5-9-001:008. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Section 25-8-7, Article 8, Chapter 25 (Zoning Code) of the Hawaii County Code 1983 (2005 Edition), is amended to change the district classification of property described hereinafter as follows: The district classification of the following area situated at Kahua 1 st, North Kohala, Hawaii, shall be Residential and Agricultural - 5 acre (RA-5 a): Beginning at a point at the North corner of this piece of land, being also the East comer of portion of Government land of Pahinahina and on the Southwesterly side of Kawaihae Mahukona Road, Section 11, Project No. A-270-01-62, the coordinates of which referred to Hawaii State Plane Coordinate System, Zone 1 being 453,109.73 feet North and 375,771.74 feet East, and running by true azimuths referred to the Meridian of Government Survey Triangulation Station "PUU PILI" and measured clockwise from South: I. 322° 00' 30.5" 24.31 feet along the Southwesterly side of Kawaihae Mahukona Road; 2. 52° 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; -1- 3. 322° 00' 30.5" 550.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 4. 52° 00' 30.5" 10.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 5. 322° 00' 30.5" 100.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 6. 2320 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 7. 322° 00' 30.5" 400.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 8. 232° 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 9. 322° 00' 30.5" 500.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 10. 52° 00' 30.5 40.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 11. 3220 00' 30.5" 400.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 12. 232° 00' 30.5" 40.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 13. 322° 00' 30.5" 151.70 feet along the Southwesterly side of Kawaihae Mahukona Road; -2- 14. 26° 03' 889.95 feet along Lot 9, as shown on Map 4 of Ld. Ct. Cons. 129; Thence along highwater mark (vegetation line) as of January 7, 1993 for the next thirteen (13) courses, the direct azimuths and distances between points on said highwater mark being: 15. 136° 21' 40" 516.93 feet; 16. 1550 00' 250.00 feet; 17. 128° 30' 95.00 feet; 18. 180° 20' 142.80 feet; 19. 93° 00' 104.00 feet; 20. 1540 05' 253.40 feet; 21. 157° 15' 225.20 feet; 22. 57° 40' 106.30 feet; 23. 176° 35' 213.10 feet; 24. 98° 00' 172.85 feet; 25. 105° 20' 83.55 feet; 26. 89° 00' 181.00 feet; 27. 150° 20' 77.35 feet; 28. 206° 50' 35" 1,075.00 feet along portion of the Government land of Pahinahina to the point of beginning and containing an area of 37.880 acres, more or less. -3- All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof. SECTION 2. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 3. This ordinance shall take effect upon its approval. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAII Hilo, Hawaii Date of Introduction: Date of 1st Reading: Date of 2nd Reading: Effective Date: -4- A-5a A-5, A-3m A.3a A-3a A-3a Aga ~ A-30 A-5® A-5a A-So A-5a 453,109.73 N 374771.74E SINGLE FAMILY RESIDENTIAL 15,600-SQUARE FEET (RS-15) Aba HAWAII STATE PLANE TO RESIDENTIAL AND AGRICULTURAL 5-ACRE (RA-5a) COORDINATE SYSTEM, 37.580 ACRES ZONE 1" A-5a ,a 5 725 352.5 0 _ - - 725 1A50 2.175 29M 3.825~t AMENDMENT TO THE ZONING CODE AN ORDINANCE REPEALING ORDINANCE 97-102 AND AMENDING SECTION 25-8-7 (NORTH AND SOUTH KOHALA DISTRICT ZONE MAP) ARTICLE 8, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE 1983 (2005 EDITION), WHICH RECLASSIFIED THE DISTRICT CLASSIFICATION FROM SINGLE FAMILY RESIDENTIAL 15,000-SQUARE FEET (RS-15) TO RESIDENTIAL AND AGRICULTURAL 5-ACRE (RA-5a) AT KAHUA 1st, NORTH KOHALA, HAWAII PREPARED BY: PLANNING DEPARTMENT COUNTY OF HAWAII ITIVI. K: 59-001:008 Data: May 23; 2007 EXHIBIT "A" (Planning Director Intiated:1233) 4 COUNTY OF HAWAII STATE OF HAWAII BILL NO. - 96 (Draft ORDINANCE NO. 97 102 AN ORDINANCE AMENDING SECTION 25-8-7 (NORTH AND SOUTH KOHALA DISTRICTS ZONE MAP), ARTICLE 8, CHAPTER 25 (ZONING COI)E) OF THE HAWAII COUNTY CODE, BY CHANGING THE DISTRICT CLASSIFICATION FROM AGRICULTURAL (A-5a) TO SINGLE FAMILY RESIDENTIAL (RS-15) AT KAHUA 1 ST, NORTH KOHALA, HAWAII, COVERED BY TAX MAP KEY 5-9-01:08. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Section 25-8-7, Article 8, Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of property described hereinafter as follows: The district classification of the following area situated at Kahua Ist, North Kohala, Hawaii, shall be Single Family Residential (RS-15): Beginning at a point at the North comer of this piece of land, being also the East corner of portion of Government land of Pa inahina and on the Southwesterly side of Kawaihae Mahukona Road, Section II, Project No. A-270-01-62, the coordinates of which referred to Hawaii State Plane Coordinate System, Zone 1 being 453,1003 feet North and 375,771.74 feet East, and running by true azimuths referred to the Meridian of Government Survey Triangulation Station "PUU PILI" and measured clockwise from South: 1. 322° 00' 30.5" 24.31 feet along the Southwesterly side of Kawaihae Mahukona Road; 2. 520 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 3. 322° 00' 30.5" 550.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 4. 520 00' 30.5" 10.00 feet along the Southwesterly side of Kawaihae Mahukona Road; Planning Dept. Exhibit _i.__._. 5. 3220 00' 30.5" 100.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 6. 2320 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 7. 3220 00' 30.5" 400.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 8. 232° 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 9. 322° 00' 30.5" 500.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 10. 520 00' 30.5" 40.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 11. 322° 00' 30.5" 400.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 12. 232° 00' 30.5" 40.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 13. 3220 00' 30.5" 151.70 feet along the Southwesterly side of Kawaihae Mahukona Road; 14. 260 03' 889.95 feet along Lot 9, as shown on Map 4 of Ld. Ct. Cons. 129; Thence along highwater mark (vegetation line) as of January 7, 1993 for the next thirteen (13) courses, the direct azimuths and distances between points on said highwater mark being: 15. 1360 21' 40" 516.93 feet; i 16. 1550 00' 250.00 feet; 17. 128° 30' 95.00 feet; 18. 1800 20' 142.80 feet; 19. 93° 00' 104.00 feet; 20. 154° 05' 253.40 feet; 21. 1570 15' 225.20 feet; 22. 570 40' 106.30 feet; 23. 1760 35' 213.10 feet; 24. 98° 00' 172.85 feet; 25. 1050 , 20' 83.55 feet; 26. 890 00' 181.00 feet; 27. 150° 20' 77.35 feet; 28. 2060 50' 35" 1,075.00 feet along portion of the Government land of Pahinahina to the point of beginning and containing an area of 37.880 acres, more or less. All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof. SECTION 2. This change in district classification is conditioned upon the following: A. The applicant, its successors or assigns shall be responsible for complying with all of the stated conditions of approval. -3- B. The applicant, its successors or assigns shall be responsible for complying with all of the conditions of approval of the Special Management Area Use Permit for the subject property. C. The proposed development within the subject property shall consist of a maximum of fifty residential lots (not including roadway or other such common area lots). Final Subdivision Approval of the proposed residential subdivision within the subject property shall be secured from the Planning Director within five (5) years from the effective date of this ordinance. D. Restrictive covenants in the deeds of all proposed residential lots within the subject property shall prohibit the construction of a second dwelling unit on each lot. A copy of the proposed covenants to be recorded with the Bureau of Conveyances shall be submitted with the plans for subdivision to the Planning Director for review and approval. A copy of the approved covenant(s) shall be recited in an instrument executed by the applicant and the County and recorded with the Bureau of Conveyances in conjunction with the issuance of Final Subdivision Approval. E. In conjunction with Final Subdivision approval, the applicant shall construct the necessary distribution pipeline, service laterals, and fire hydrants, meeting with the requirements of the Department of Water Supply. No building permit for any of the residential structures shall be issued until units of water are available and committed to the subject property, as represented in the applicant's agreement with the Kohala Ranch Water Company (formerly Kohala Joint Venture). F. Access to the subject property from Akoni Pule Highway and any improvements within the Akoni Pule Highway shall be constructed prior to Final Subdivision Approval meeting with the requirements and approval of the State Department of Transportation. _4_ i i G. Roadway connections to the adjoining parCLI of the subject property's southeastern boundary shall be provided meeting with the approval of the Department of Public Works and shall be delineated on the final subdivision plat map for the subject property. H. All interior roadways within the subject property shall be constructed meeting with the requirements of Chapter 23 of the Subdivision Code and with the approval of the Department of Public Works. 1. All electrical and communication lines within the subject property shall be placed underground. J. A drainage study of the subject property, if required, shall be prepared for review and approval by the Department of Public Works, prior to submittal of plans for subdivision review. Drainage improvements, if required, shall be constructed or bonded meeting with the approval of the Department of Public ,works prior to the issuance of Final Subdivision Approval. K. The applicant, its successors or assigns shall prepare a Solid Waste Management Plan prior to securing Final Subdivision Approval for the proposed development within the subject property meeting with the approval of the Department of Public Works. A copy of the approved Plan shall be submitted to the Planning Director. L. To ensure that the goals and policies of the Housing Element of the General Plan are implemented, the applicant shall secure the concurrence of the Office of Housing and Community Development that the applicant's affordable housing requirements, if any, have been mutually agreed to prior to Final Subdivision Approval. -5- M. A Data Recovery Plan and Preservation Plan shall be prepared for the review and approval by the Planning Director in consultation with the Department of Land and Natural Resources-Historic Preservation Division (DLNR-HPD). Proposed mitigation treatment (preservation in place or disintemment/reintemmeni) for burial sites within the subject property shall be approved by the Historic Preservation Division's Hawaii Island Burial Council before detailed mitigation plans are finalized for these sites. A copy of the approved Final Data Recovery Plan and Preservation Plan shall be submitted to the Planning Director prior to submitting plans for subdivision review and prior to any approval for any land alteration permits. N. Should any remains of historic sites, such as rock walls, terraces, platforms, marine shell concentrations or human burials, be encountered, work in the immediate area shall cease and the Department of Land and Natural Resources-Historic Preservation Division (DLNR-HPD) shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the DLNR-HPD when it finds that sufficient mitigative measures have been taken. 0. The applicant shall develop and submit a comprehensive public access plan for the subject property for review and approval to the Planning Director, in consultation with the Department of Land and Natural Resources in conjunction with Final Subdivision Approval. The public access plan shall provide for mauka-makai and lateral shoreline pedestrian accessways, public parking stalls for users of the shoreline area, signage, and restrictions on use (if any). Such public access improvements shall be completed prior to Final Subdivision Approval for any portion of the subject property. P. The applicant shall make its fair share contribution to mitigate the potential regional impacts of the subject property with respect to parks and recreation, fire, police, solid waste disposal facilities, and roads. The amount of the fair share -6- ' i contribution shall be the sum which is the product of multiplying the number of residential lots proposed to be subdivided by the amounts allocated hereinbelow for each such lot, and shall become due and payable prior to final subdivision. approval for any portion of the subject property or its increments. If the subject property is subdivided in two or more increments, the amount of the fair share contribution due and payable prior to final subdivision approval of each increment shall be a sum calculated in the same manner according to the number of additional proposed residential lots in each such increment. The fair share contribution may be in a form of cash, land, facilities, or any combination thereof acceptable to the director in consultation with the affected agencies. The fair share contribution shall have a maximum combined value of $7,239.16 per lot. Based upon the applicant's representation of intent to subdivide and develop up to fifty. (50) residential lots, the indicated total fair share contribution is $361,958.00, however, the total amount shall be increased or reduced in proportion with the actual number of subdivided lots according to the calculation and payment provisions set forth in this Condition P. The fair share contribution shall be allocated as follows: 1. $3,490.85 per lot, for an indicated total of $174,542.50 to the County to support park and recreational improvements and facilities; 2. $168.40 per lot, for an indicated total of $8,420.00 to the County to support police facilities; 3. $332.61 per lot, for an indicated total of $16,630.50 to the County to support fur facilities; 4. $145.62 per lot, for an indicated total of $7,281.00 to the County to support solid waste facilities; -7- 5. $3,101.68 per lot, for an indicated total of $155,084.00 to the State or County to support road and traffic improvements. The fair share contributions described above shall be adjusted annually' beginning three years after the effective date of the change of zone, based on the percentage change in the Honolulu Consumer Price Index (HCPI). In lieu of paying the fair share contribution, the applicant may construct and contribute improvements/facilities related to parks and recreation, fine, police, solid waste disposal facilities, and roads within the region impacted by the proposed development, subject to the approval of the director. The cost of providing and constructing the improvements required in Condition F shall be credited against the sum specified in Condition P(5) for road and traffic improvements and Condition O shall be credited against the sum specified in Condition P(I) for parks and recreation. For purposes of administering Condition P, the fair market value of land contributed or the cost of any improvements required or made in lieu of the fair share contribution shall be subject to the review and approval of the director, upon consultation with the appropriate agencies. Q. In lieu of actual construction of infrastructural improvements as required under Conditions E, F, H, J, and O, the applicant may enter into an agreement with the County to assure the County that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable by the Planning Director or appropriate agencies and approved by the Corporation Counsel. Upon execution of such agreement and/or filing of the security with the County, final subdivision approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements. -8- R. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the easements of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance. S. Comply with applicable laws, rules, regulations and requirements of other affected agencies for approval of the proposed development within the subject property, including the Department of Health. T. An annual progress report shall be submitted to the Planning Director prior to the anniversary date of the approval of the ordinance. The report shall include, but not be limited to, the status of the development and to what extent the conditions of approval are being complied with. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required. U. An initial extension of time for the performance of conditions within the ordinance may be granted by the Planning Director upon the following circumstances: 1. The non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicants, its successors or assigns, and that are not the result of their fault or negligence. 2. Granting of the time extension would not be contrary to the General Plan or Zoning Code. 3. Granting of the time extension would not be contrary to the original reasons for the granting of the change of zone. -9- 4. The time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year). V. Should any of the conditions not be met or substantially complied with in a timely fashion, the Director may initiate rezoning of the subject property to its original or more appropriate designation. SECTION 3. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 4. This ordinance shall take effect upon its approval. INTRODUCED BY: CIL MEMBER, COUNTY OF HAWAII Hilo, Hawaii Date of Introduction: June 18, 1997 Date of Ist Reading: June 18, 1997 Date of 2nd Reading: July 2, 1997 Effective Date: July 14, 1997 APPROVED AS TO FORM AND LEGALITY *fUTY CORPORATION COUNSEL DATED: -10- A 7• A-20. A-20. A•>• A-5. cN T,pG~ A • 5. A-20. A I's A 5. A A•20. f 5. A • S. 5 N A. 4. y6 5 - } A A 5. A A•5. A 5 y •5. y A-5. A-5. A • A-5. A5. } A-5. J5N A - S. A •S. p A - 5 A-1. A• S• A-.. A - S • A - 5 . A•S. A V. A.I. AKONI PULE HIGHWAY ~Z To Nowt Kewe.1 453,109.73 N R" 375,771.74 E A-5. HAWAII STATE PLANE COORDINATE SYSTEM. ZONE 1" A-S. A•5. AGRICULTURAL (A-5a) TO SINGLE FAMILY RESIDENTIAL (RS-15) AREA: 37.880 ACRES AMENDMENT TO THE ZONING CODE AMENDING SECTION 25-8-7' (NORTH AND SOUTH KOHALA DISTRICTS ZONE MAP) ARTICLE 8, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE, BY CHANGING THE DISTRICT CLASSIFICATION FROM AGRICULTURAL (A-5a) TO SINGLE FAMILY RESIDENTIAL (RS-15) AT KAHUA IST, NORTH KAHALA, HAWAII. PREPARED BY : PLANNING DEPARTMENT COUNTY OF HAWAII TMK : 5-9-01: 8 APRIL 24, 1997 EXHIBIT "A" (QENTm-PAMC.LTD.) OFFICE OF THE COUNTY CLERK County of Hawaii ^ 7" Hilo - . Hawaii 7 JUL 15 stn d 0 DRAFT 2 VOTE IntroducedBv: Bobby Jean Leithead-Todd fS/Rl AYES NOES CABS EX Date Introduced: June 18, 1997 Arakaki X First Reading: .7une I R. 1997 Chun X Published: Junta 2y, 1997 L.eithead-Todd X Ray REMARKS: Reynolds Santangelo X Smith X Tyler Ya on x 9 0 0 0 Second Reading: July 2. 1997 ROLL CALL VOTE To Mayor: July 7, 1997 AYES NOES ABS EX Returned: July 15, 1997 Arakaki X Effective: July 14. 1997 Chung Published: July 22, 1997 Leithead-Todd Ray R REMARKS. Reynolds X Santangelo X Smith X Tyler X Yagong X I DO HEREBY CEjFfd6batllrefQr~Qing BILL was adopted by the County Council and published as indicated above. UUVEeUJ AnJJ CC77 FC ND L ALITY: CEPUTY CORPORATION COUNSEL COUNTY Of HAWAII Dote f7 UNCIL CHAIRMAN Appra ed/DiseRRarved this A/ day A I9 `/7 ~ COUNTY CLERK ?f.41; xNn' OF HAIVAII Bill No.: 96 (Draft 3) Reference: C-330.01/PC-61 Ord. No., 97 102 i ~v Stephen r, Yanmhiro Mayor f9aunr lz futtti cl- PLANNING COWAISSION 25 Aupuui strce, Room log • Hilo, Haw.ii %720.4252 (808) %1.5288 F" (US) %1-%15 CERTIFIED MAIL Z 095 323 973 %G 2 0 1997 Mr. Sidney M. Fuke 100 Pauahi Street, Suite 212 Hilo, HI 96720 Dear Mr. Fuke: Special Management Area Use Permit Application (SMA 97-1) Request: Establish a 50-Lot Single Family Residential Subdivision and Related Improvements Applicant: Gentry-Pacific, Ltd. Tax Map Key: 5-9-1:8 The Planning Commission at its duly held public hearing on August 8, 1997, voted to approve the above-referenced application. Special Management Area Use (SMA) Permit No. 379 is hereby issued to develop a 50-lot single family residential subdivision and related improvements on approximately 37.88 acres of land. The property is located on the makai side of Akoni Pule Highway directly across the entrance to Kohala Ranch at Kahua 1st, North Kohala, Hawaii. Approval of this request is based on the following: The purpose of Chapter 205A, Hawaii Revised Statutes (HRS) and Special Management Area Rules and Regulations of the County of Hawaii, is to preserve, protect, and where possible, to restore the natural resources of the coastal zone areas. Therefore, special controls on development within an area along the shoreline are necessary to avoid permanent loss of valuable resources and the foreclosure of management options. The development will not have any significant adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interest. Such adverse effect shall include, but not be limited to, the potential cumulative impact of individual developments, each one of which taken in itself might not have a substantial adverse effect and elimination of planning options. The proposed development is located makai of Akoni-Pule Highway. The proposed plan calls for a 50-lot residential subdivision. The lots would vary in size between 15,000 square feet to 1 t acre. Each lot would be configured in a manner so as to take advantage of the natural terrain of the, site. Rather than grading the entire site and reshaping the existing terrain, every reasonable construction effort would be made to make the project conform to the Planning Dapt`.Rs5o Exhibit 2 .:A'_'. 2 1~i 1997 Mr. Sidney M. Fake Page 2 natural environment. That design principle accounts for the lot size variation. There will be design guidelines to restrict structures to certain sizes, building pads, envelopes, colors, materials and to minimize the mauka/makai viewplane impacts from the highway. There would also be restrictive covenants, including a "no ohana" provision. All interior roads would be constructed in a manner meeting with the requirements of the County of Hawaii. The roads will be designed and constructed in a manner to address drainage concerns. The roads are not intended to be dedicated to the County. Provisions for a 10-foot wide public access to and along the shoreline will also be made. Tentative plans call fora 4-stall public parking area at the south end of the property. There will also be lateral access along the length of the subject parcel. Therefore, although there will be a diminution of open space and alteration of the existing coastal viewplane, the project as proposed would have no adverse impact to recreational and visual resources, access to and along the shoreline nor coastal ecosystems. The property is presently overgrown. Fauna consists of. introduced species of birds and mammal,pests. No endemic birds were recorded on the property, although short-eared owl or Pueo and the endangered Hawaiian Hawk or 'Io may on rare occasions be seen in this area. Three Pacific Golden Plover were recorded during the survey. Although none were observed during the survey, the Ruddy Turnstone and the Wandering Tattler may also occur along the shoreline. Feral mammal observed on the project site include Indian mongoose. Cat tracks were also found. A botanical survey was conducted by Char and Associates. The excessively drained, extremely stony soils support thick mats of buffel grass and scattered trees of kiawe. A total of only 29 plant species were found during the field studies. Of the plant species, 24 are introduced or alien species and 5 are native. Of the natives, 4 are indigenous and 1 is endemic. The native plants are: pili grass, pau o Hi'iaka, 'ilima, alena, and 'uhaloa. None of the plants which were inventoried are listed as threatened and endangered species. The proposed development would not impact the immediate adjacent properties as the subject property is surrounded by Kohala Estates, Kohala Ranch and Kohala By The Sea which are situated mauka of the property and the Akoni Pule Highway. These large agricultural lot subdivisions range in size from 1 and 3 acres to 20+ acres and were developed over the past 20 years. Kohala Waterfront Joint Venture is located southeast of the subject property. Kohala Waterfront Joint Venture was granted an amendment to SMA Use Permit No. 212 for the construction of a 50-lot single family residential subdivision, zoned Multiple Family Residential-4,000 square foot (RM-4). Property to the northwest is owned by the State of Hawaii. It is currently vacant. The proposed development is consistent with the objectives and policies as provided by Chapter 205A, HRS, and Special Management Area guidelines contained in Rule No. 9 of the Planning Commission Rules of Practice and Procedure. Portions of the property along the coastline are located within Zone VE-9, a coastal hazard area with a flood elevation of nine feet. Other portions of the property along the highway are within Zone X, outside of the 500-year flood plain. The hydrological features and Mr. Sidney M. Fuke Page 3 characteristics of the site are typical of the West Hawaii and North Kohala Region.- The mean annual rainfall is approximately 10 inches per year. Twenty percent of the annual rainfall occurs during the month of January. The evaporation rate for the area is one of the highest in the State. Although there are no perennial streams or surface water features on the site, seven major drainageways carry a large volume of water from the mauka watershed to the ocean during rare prolonged rainy periods. The shoreline is rocky and exposed to the surf and wave action from the open ocean. The project area is within the Kohala Hydrographic area (Hawaii Resources Regional Study Team, 1979). A study conducted by Charles L. Murdoch and Richard E. Green assesses the potential impact of fertilizes and pesticides on the proposed project. The study concluded that there is no reason to expect any significant adverse impact of chemicals on the quality of the shoreline water. The study also added that "Given the likely brackish condition of the groundwater at the project location, there will be no significant negative impact on the groundwater aquifer even if small quantities of chemicals are leached to the water table. The ground water discharges into the ocean and will be subsequently mixed with seawater, as is the case with runoff. " Therefore, as a condition of approval the Department of Public Works recommends a drainage system be performed to ensure adequate drainage easements through the proposed subdivision. The Department of Health requires that if there is any type of process wastewater discharge from the project into State waters the applicant may be required to apply for an individual NPDES permit. The applicant has stated that they will file a Notice of Intent for a NPDES permit. Any potential. runoff or discharge which could reach ocean waters can be handled by on-site improvements. Any impacts from soil erosion and runoff during site preparation and construction phases can be adequately mitigated through compliance with existing regulations. With these precautionary measures in place, the proposed development is not anticipated to have any substantial adverse effects on the coastal resources or environment. An archaeological inventory survey was conducted on the.subject property by Paul H. Rosendahl Inc. The original survey report was revised pursuant to comments received from the State Department of Land and Natural Resources, State Historic Preservation Division (DLNR-SHPD).dated June 16, 1993, January 11, 1994 and January 20, 1995. The survey identified 68 sites consisting of 177 discrete features within the two parcels. It appears that there are at least 40 sites on the subject parcel. Fifty two (52) of the 68 sites identified were assessed as significant solely for information content. Of the 52 sites, 8 sites were deemed "no further work required" while the other 44 required further data collection. Five (5) of the remaining 16 sites were assessed as "significant for information content and as provisionally significant for cultural value, pending further data collection." Further data collection and provisional preservation "as is" are recommended and will be conducted. Four sites were assessed as significant for information content and as excellent examples of site types and for cultural value. These sites are recommended for further data collection followed by preservation within interpretive development. The remaining site is assessed as significant for information and content and cultural value (Site 15261, trail). Normally trails require preservation, however, the integrity of site 15261 is poor, as the trail is discontinuous and heavily eroded. No further work was recommended for the trail. Four sites have been identified as containing human burials Mr. Sidney M. Fuke Page 4 (site 2491, 4004, 4013, 16130). Five sites (2493, 16126, 16127, 16136, 16162) - require further data collection. The preparation of a historic preservation plan and the establishment of buffer zones, interim protection measures and remaining archaeological data recovery still needs to be completed. Therefore, a condition of approval will be included stating that the applicant fully implement the approved historic preservation plan prior to securing Final Subdivision Approval of the proposed development. The implementation of this mitigation plan will satisfy the SMA objective to "Protect, preserve and where desirable restore significant historic and cultural resources." The proposed development is consistent with the County General Plan and Zoning Code. The proposed project does conform to the General Plan Land Use Pattern Allocation Guide (LUPAG) Map, which designates this area for Low Density Urban. Low Density designation refers to single family residential in character, ancillary community and public uses and convenience type commercial uses. This designation does not refer to density limitations however, this designation generally has been at a density of 4 units per acre. The average density relating to the proposed request (50 lots over 38+ acres) would amount to 1.5 units per acre. Therefore, it is determined that the request is consistent with the urban form depicted on the LUPAG Map for this area of North Kohala. The applicant's proposal is a single family residential subdivision. It is in close proximity to a 50-lot subdivision called Kohala Waterfront Joint Venture zoned Multiple Family. Residential-4,000 square foot (RM-4). The proposed reclassification is for a single family residential land use designation. The visual impacts along the coastal view plane and open space of the development will be somewhat diminished as the site is located makai of the Akoni-Pule Highway. To mitigate these concerns there will be design guidelines to ensure that the project, when fully developed will only minimally affect coastal viewplanes. Covenants will be developed to restrict structures to certain sizes, building pads, envelopes, colors, materials. etc. to minimize mauka\makai viewplane impacts from the highway, as well as to minimize excessive alteration of the area's natural terrain. The potential for retaining the regional vistas will still exist. Mindful of the type of service the applicant will provide to the residents of North Kohala, the proposed use will compliment the following goals, policies and standards of the Land Use and Residential Elements of the General Plan: o Designate and allocate land uses in appropriate proportions and mix and in keeping with the social, cultural and physical environments of the County. o The county shall encourage the development and maintenance of communities meeting the needs of its residents in balance with the physical and social environment. o To maximize choices of single-family residential lots and/or housing for residents of the County. Mr. Sidney M. Fuke Page 5 o To ensure compatible uses within and adjacent to single-family residential zoned areas. o To provide single-family residential areas conveniently located to public and private services, shopping, other community activities and convenient access to employment centers. o Areas shall have basic improvements and amenities necessary for immediate use. The proposed request would also complement the following Housing Element goals and policies by creating a mix of residential housing opportunities, maintaining a housing supply that allows a variety of choice and by providing housing units geared toward the middle income bracket. o Attain safe, sanitary and livable housing for the residents of the County of . Hawaii. o Attain a diversity of socio-economic housing mix throughout the different parts of the County. o Maintain a housing supply which allows a variety of choice. o Develop better places to live in Hawaii County by creating viable communities with decent housing and suitable living environments for our people. o Improve and maintain the quality and affordability of the existing housing stock. o Seek sufficient production of new affordable rental and fee-simple housing in the County in a variety of sizes to satisfactorily accommodate the needs and desires of families and individuals. o Ensure that housing is available to all persons regardless of age, sex, marital status, ethnic background and income The proposed use would also conform to the following goals and policies of the Economic Element: o Provide residents with opportunities to improve their quality of life. o Economic development and improvement shall be in balance with the physical and social environments of the island of Hawaii. o The County of Hawaii shall strive for diversification of its economy by strengthening existing industries and attracting new endeavors. Based on the above findings, it is determined that the proposed development will not have any substantial adverse impacts on the surrounding area, nor will its approval be contrary to the. objectives and policies of Chapter 205A, HRS, relating to Mr. Sidney M. Fuke Page 6 Coastal Zone Management and Rule No. 9 of the Planning Commission relating to the Special Management Area. Approval of this request is subject to the following conditions. Should any of the foregoing conditions not be met or substantially complied with in a timely fashion, the Planning Director may initiate procedures to revoke the Special Management Area Major Use Permit. 1. The applicant, its successors or assigns shall be responsible for complying with all of the stated conditions of approval. 2. The effective date of this Special Management Area Use Permit shall be the effective date of the Change of Zone ordinance. 3. The applicant, its successors or assigns shall be responsible for complying with all of the conditions of approval of the Change of Zone ordinance. 4. Final Subdivision Approval of the proposed residential subdivision shall be secured from the Planning Director within five (5) years from the effective date of this permit. 5. All above ground structures shall be set back a minimum of 50 feet from the front property line along Akoni Pule Highway. 6. A preliminary site plan shall be redesigned in order to create mauka-makai view corridors from Akoni Pule Highway and shall be submitted in conjunction with the subdivision plans. Such plan shall meet with the approval of the Planning Department. 7. A mauka-makai road access of sufficient width to accommodate vehicle access 24 hours a day for drop off and pick up shall be provided, along with the minimum 10-foot wide lateral public access walkway along the shoreline. The type of improvements and specific location of the walkway shall be determined at the time of subdivision approval review. Further, a minimum of four on-site public parking stalls to serve the walkway shall be provided and clearly identified. A shoreline setback variance shall be secured for any improvements to the public access which will be within the 40-foot shoreline setback area. Construction of the public walkway and parking stalls shall be completed prior to issuance of any building permit for any structures. 8. The applicant shall develop and submit a comprehensive public access plan for the subject property for review and approval to the Planning Director, in consultation with the Department of Land and Natural Resources (Na Ala Hele Trails Program), in conjunction with Final Subdivision Approval. The public. access plan shall provide for mauka-makai and lateral shoreline pedestrian accessways, public parking stalls for users of the shoreline area, signage and restrictions on use (if any). Such public access improvements shall be completed prior to Final Subdivision Approval for any portion of the subject property. Mr. Sidney M. Fuke Page 7 9. A drainage study of the project site shall be prepared for review and approval by the Department of Public Works, in conjunction with submittal of plans for subdivision review. Drainage improvements shall be constructed or bonded in a manner meeting with the approval of the Department bf Public Works prior to the issuance of Final Subdivision Approval. 10. " A Data Recovery Plan and Preservation Plan shall be prepared for the review and approval by the Planning Director in consultation with the Department of Land and Natural Resources-Historic Preservation Division (DLNR-HPD). Proposed mitigation treatment (preservation in place or disinternment/reinternment) for burial sites must be approved by the Historic Preservation Division's Hawaii Island Burial Council before detailed mitigation plans are finalized for these sites.. A copy of the approved Final Data Recovery Plan and Preservation Plan shall be submitted to the Planning Director for its files prior to submitting plans for subdivision review and prior to any approval for any land alteration permits. 11. Should any remains of historic sites, such as rock walls, terraces, platforms, marine shell concentrations or human burials, be encountered, work in the immediate area shall cease and the Department of Land and Natural Resources-Historic Preservation Division (DLNR-HPD) shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the DLNR-HPD when it finds that sufficient mitigative measures have been taken. 12. Comply with applicable laws, rules, regulations and requirements of other affected agencies for approval of the proposed development within the subject property, including the Department of Health. 13. An initial extension of time for the performance of conditions within the permit may be granted by the Planning Director upon the following circumstances: A. The non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicants, its successors or assigns, and that are not the result of their fault or negligence. B. Granting of the time extension would not be contrary to the General Plan or Zoning Code. C. Granting of the time extension would not be contrary to the original reasons for the granting of this permit. D. The time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year). 14. Restrictive covenants in the deeds of all proposed residential lots within the subject property shall prohibit Bed and Breakfasts on each lot. A copy of the proposed covenants to be recorded with the Bureau of Conveyances shall be submitted with the plans for subdivision to the Planning Director for review and d n. Mr. Sidney M. Fuke Page 8 approval. A copy. of the approved covenant(s) shall be recited in an instrument executed by the applicant and the County and recorded with the Bureau of Conveyances in conjunction with the issuance of Final Subdivision Approval. This approval does not, however, sanction the specific plans submitted with the application as they may be subject to change given specific code and regulatory requirements of the affected agencies. Should you have any questions, please feel free to contact Alice Kawaha or Susan Gagorik of the Planning Department at 961-8288. Sincerely, f Kevin M. Balog, Chairman Planning Commission Wenu01.PC cc: Department of Public Works Department of Water Supply County Real Property Tax Division West Hawaii Office Office of State Planning, CZM Program (w/Background) Department of Land and Natural Resources Kazu Hayashida, Director/DOT-Highways, Honolulu Department of Health Mr. Joseph Fadrowsky, III EFFECTIVE DATE: AUB 2 G 199% sphen K Yamashiro Mayor h OF NL•M~ PLANNING COMMISSION 25 Aupunl Street, Roam 109 • Hk Ha"ii %7204252 (SO8) 961.8288 F= (SOS) %1•%15 CERTIFIED MAIL Z 095 323 937 WS261997 Mr. Sidney M. Fuke 100 Pauahi Street, Suite 212 Hilo, HI 96720 Dear Mr. Fuke: Special Management Area Use Permit Application (SMA 97-1) Request: Establish a 50-Lot Single Family Residential Subdivision and Related Improvements Applicant: Gentry-Pacific, Ltd. Tax Man K"- 5-9-1:8 Please refer to the Planning Commission's October 21, 1997, letter to you informing you of the Commission's decision to approve the above application with conditions. Through an oversight, Condition 8 did not include the concern raised to address the American Disabilities Act. Therefore, Condition 8 is hereby amended to read as follows: "1. The applicant shall develop and submit a comprehensive public access plan for the subject property for review and approval to the Planning Director, in consultation with the Department of Land and Natural Resources (Na Ala Hele Trails Program), in conjunction with Final Subdivision Approval. The public access plan shall provide for mauka-makai and lateral shoreline pedestrian accessways, public parking stalls for users of the shoreline area, signage and restrictions on use (if any). At least one parking stall to accommodate persons with disabilities shall be placed within a reasonable distance to the 10-foot wide lateral shoreline access. Such public access improvements shall be completed prior to Final Subdivision Approval for any portion of the subject property." C 9.2015 . 2 6 1997 f Mr. Sidney M. Fuke Page 2 Should you have any questions, please feel free to contact Alice Kawaha or Susan Gagorik of the Planning Department at 961-8288. Sincerely, Y ` ?n-% Kevin M. Balog, Chairm Planning Commission Lgentr0 TC cc: Department of Public Works Department of Water Supply County Real Property Tax Division West Hawaii Office Office of State Planning, CZM Program . Department of Land and Natural Resources Kazu Hayashida, Director/DOT-Highways, Honolulu Department of Health Mr. Joseph Fadrowsky, III 71- Stephen L Yameshito Nt:' " ' NOW % PLANNING CO?aUSSION 25 Aupuni Sti . Rm 109 • Hib, Ha"H %720.425: - (808)961.8288 Fix (808) %1•%15 CERTIFIED MAIL Z 095 323 924 SEP 0 8 _i_92 Mr. Sidney M. Fuke 100 Pauahi Street, Suite 212 Hilo, HI 96720 Dear Mr. Fuke: Special Management Area Use Permit Application (SMA 97-1) Request: Establish a 50-Lot Single Family Residential Subdivision and Related Improvements Applicant: Gentry-Pacific, Ltd. Tax Map Kom 5-9-1:8 Please be informed that we are rescinding our August 26, 1997 letter to you as it was in error. We apologize for any inconvenience this may have caused you. Please refer to the Planning Commission's August 20, 1997, letter informing you of the Commission's decision to approve the above application with conditions. Condition 7 has been amended to include the concern raised to address the American Disabilities Act. Therefore, the following are the conditions to SMA Use Permit No. 379: 1. The applicant, its successors or assigns shall be responsible for complying with all of the stated conditions of approval. 2. The effective date of this Special Management Area Use Permit shall be the effective date of the Change of Zone ordinance. 3. The applicant, its successors or assigns shall be responsible for complying with all of the conditions of approval of the Change of Zone ordinance. 4. Final Subdivision Approval of the proposed residential subdivision shall be secured from the Planning Director within five (5) years from the-effective date of this permit. 5. All above ground structures shall beset back a minimum of 50 feet from the front property line along Akoni Pule Highway. 6. A preliminary site plan shall be redesigned in order to create mauka-makai view corridors from Akoni Pule Highway and shall be submitted in conjunction with (;~r:• Fj Mr. Sidney M. Fuke Page 2 the subdivision plans. Such plan shall meet with the approval of the Planning Department. 7. A mauka-makai road access of sufficient width to accommodate vehicle access 24 hours a day for drop off and pick up shall be provided, along with the minimum 10-foot wide lateral public access walkway along the shoreline. The type of improvements and specific location of the walkway shall be determined at the time of subdivision approval review. Further, a minimum of four on-site public parking stalls to serve the walkway, one of which shall be to accommodate persons with disabilities and located reasonably close to the lateral shoreline access, shall be provided and clearly identified. A shoreline setback variance shall be secured for any improvements to the public access which will be within the 40-foot shoreline setback area. Construction of the public walkway and parking stalls shall be completed prior to issuance of any building permit for any structures. 8. The applicant shall develop and submit a comprehensive public access plan for the subject property for review and approval to the Planning Director, in consultation with the Department of Land and Natural Resources (Na Ala Hele Trails Program), in conjunction with Final Subdivision Approval. The public access plan shall provide for mauka-makai and lateral shoreline pedestrian accessways, public parking stalls for users of the shoreline area, signage and restrictions on use (if any). 9. A drainage study of the project site shall be prepared for review and approval by the Department of Public Works, in conjunction with submittal of plans for subdivision review. Drainage improvements shall be constructed or bonded in a manner meeting with the approval of the Department of Public Works prior to the issuance of Final Subdivision Approval.. 10. A Data Recovery Plan and Preservation Plan shall be prepared for the review and approval by the Planning Director in consultation with the Department of Land and Natural Resources-Historic Preservation Division (DLNR-HPD). Proposed mitigation treatment (preservation in place or disinternmenttreinternmem) for burial sites must be approved by the Historic Preservation Division's Hawaii Island Burial Council before detailed mitigation plans are finalized for these sites. A copy of the approved Final Data Recovery Plan and Preservation Plan shall be submitted to the Planning Director for its files prior to submitting plans for subdivision review and prior to any approval for any land alteration permits. It. Should any remains of historic sites, such as rock walls, terraces, platforms, marine shell concentrations or human burials, be encountered, work in the immediate area shall cease and the Department of Land and Natural Resources-Historic Preservation Division (DLNR-HPD) shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the DLNR-HPD when it finds that sufficient mitigative measures have been taken. j Mr. Sidney M. Fuke Page 3 12. Comply with applicable laws, rules, regulations and requirements of other. affected agencies for approval of the proposed development within the subject property, including the Department of Health. 13. An initial extension of time for the performance of conditions within the permit may be granted by the Planning Director upon the following circumstances: A. The non-performance is the result of conditions that could not have been for-seen or are beyond the control of the applicants, its succe-mors or assigns, and that are not the result of their fault or negligence. B,. Granting of the time extension would not be contrary to the General Plan or Zoning Code. C. Granting of the time extension would not be contrary to the original reasons for the granting of this permit. D. The time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year). 14. Restrictive covenants in the deeds of all proposed residential lots within the subject property shall prohibit Bed and Breakfasts on each lot. A copy of the proposed covenants to be recorded with the Bureau of Conveyances shall be submitted with the plans for subdivision to the Planning Director for review and approval. A copy of the approved covenant(s) shall. be recited in an instrument executed by the applicant and the County and recorded with the Bureau of Conveyances in conjunction with the issuance of Final Subdivision Approval. This approval does not, however, sanction the specific plans submitted with the application as . they may be subject to change given specific code and regulatory requirements of the affected agencies. Should you have any questions, please feel free. to contact Alice Kawaha or Susan Gagorik of the Planning Department at 961-8288. Sincerely, Kevin Balog, Chair anV Planning Commission cc: Department of Public Works Department of Water Supply County Real Property Tax Division West Hawaii Office Office of State Planning, CZM Program Department of Land and Natural Resources Kazu Hayashida, Director/DOT-Highways, Honolulu Department of Health Mr. Joseph Fadrowsky, III w COUNTY OF HAWAII STATE OF HAWAII . hw~Md RESOLUTION NO. 44 07 Draft 2 RESOLUTION TO TEMPORARILY DELAY COUNCIL ACTION ON REZONING APPLICATIONS IN THE DISTRICT OF NORTH KOHALA WHICH PERMIT TRANSIENT LODGING ACCOMMODATIONS OR WHICH RE-DESIGNATE AGRICULTURAL LAND INTO ZONING DISTRICTS WITH A MINIMUM LAND AREA LESS THAN TWENTY (20) ACRES IN SIZE, UNTIL THE NORTH KOHALA COMMUNITY DEVELOPMENT PLAN IS ADOPTED BY ORDINANCE, OR UNTIL FEBRUARY 22, 2008, WHICHEVER SHALL OCCUR FIRST. WHEREAS, the Hawaii State Constitution, Article IX, Section 6, Management of State Population Growth, states: "The State and its political subdivisions, as provided by general law, shall plan and manage the growth of the population to protect and preserve the public health and welfare; except that each political subdivision, as provided by general law, may plan and manage the growth of its population in a more restrictive manner than the State."; and WHEREAS, the Hawaii County Charter Section 3-15, from which the General Plan emerged as a major policy document, states, in part: "The county council shall adopt by ordinance a general plan which shall set forth the council's policy for long-range comprehensive physical development of the county. It shall contain a statement of development objectives, standards and principles with respect to the most desirable use of land within the county for residential, recreational, agricultural, commercial, industrial and other purposes and such other matter as may, in the council's judgment, be beneficial to the social, economic, and governmental conditions and trends and shall be designed to assure the coordinated development of the county and to promote the general welfare and prosperity of its people.... (b) No public improvement or project, or subdivision or zoning ordinance, shall be initiated or adopted unless the same conforms to and implements the general plan...."; and WHEREAS, the Hawaii County General Plan, Section 15, 1, Community Development Plans, states, in part: "The Community Development Plans are intended to be the forum for community input into managing growth and coordinating the delivery of government Planning Dept. ExhibitJ services to the community. The Community Development Plans will translate the broad General Plan statements to specific actions as they apply to specific geographical areas and WHEREAS, pursuant to the provisions of the General Plan to ensure responsible growth and preserve the public health and welfare, the Planning Director has selected the district of North Kohala as most suitable and in need of a Community Development Plan; and WHEREAS, in compliance with the Hawaii County General Plan, selection of the North Kohala Community Development Plan Steering Committee is underway; and WHEREAS, the Community Development Plan process has created an effective outreach program to define community vision and gather public input through a series of facilitated community meetings in Kohala; and WHEREAS, according to data from the County Department of Research and Development, over 730 people have participated in small group meetings in North Kohala, which translates to roughly 12.1 % of the total population of 6,038 people (2000 U.S. Census data), compared to an estimated participation rate of 2.7% for North and South Kona and of 3.3% for Puna in their Community Development Planning meetings; and WHEREAS, the Planning Department, the County Council, and the North Kohala community have demonstrated their strong commitment to the Community Development Plan process as a guiding principle for well-planned and responsible future growth for the district of North Kohala; and WHEREAS, North Kohala residents have a 20-year documented history of support for preservation of open space, agriculture, and the numerous natural, scenic, historic, and cultural resources abounding in North Kohala and along its coast; and WHEREAS, the 1983 North Kohala Community Development Plan recommended that the entire length of the North Kohala Coast be reclassified as Open in the General Plan, and the 1992 Northwest Hawaii Open Space and Community Development Plan recommended a comprehensive effort to protect valuable North Kohala coastal areas as open space for public use and enjoyment; and WHEREAS, a temporary delay on new rezonings for transient lodging accommodations in the North Kohala district will allow the community, through a legitimate and deliberate Community 2 Development Planning process, to define how best to solve existing problems and allocate space for new growth; and WHEREAS, a temporary delay on new rezonings which re-designate agricultural land into zoning districts smaller than twenty (20) acres in size in the North Kohala district will allow the community, through its Community Development Planning process, to define how best to preserve existing agricultural land and allocate space for new growth; and WHEREAS, the North Kohala Community Development Planning process is expected to take 18 to 24 months to complete. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAFI, that Council action on rezoning applications occurring in the district of North Kohala which permit transient lodging accommodations or which re-designate agricultural land into zoning districts with a minimum land area less than twenty (20) acres in size be temporarily delayed until the North Kohala Community Development Plan is adopted by ordinance, or until February 22, 2008, whichever shall occur first. BE IT FURTHER RESOLVED, that temporary delay of Council action on rezoning applications shall not affect or apply to any and all federal, State and County community-based and/or self-help housing projects involving agencies and programs including, but not limited to, the following: • The State Department of Hawaiian Home Lands housing projects in accordance with its December 30, 2002 "Memorandum of Agreement Between the County of Hawaii and the Department of Hawaiian Home Lands; • The State Housing and Community Development Corporation of Hawai` i ("HCDCH") program; • Public projects involving schools, water and sewer systems, and any other projects that specifically benefit the public's health, safety and welfare; and • The Habitat for Humanities program, the Hawaii Island Community Development Corporation ("HICDC") program, elderly housing projects, and homeless shelters. BE IT FURTHER RESOLVED, that if on or before February 22, 2008, the North Kohala Community Development Plan has not been adopted by the Council by Ordinance, an extension of time in increments of not more than six (6) months each, shall be requested by Resolution. 3 BE IT FINALLY RESOLVED, that the County Clerk shall forward copies of this resolution to Mayor Harry Kim, the County Planning Department, the Planning Commission, the Department of Public Works, and the Department of Finance. Dated at Kona Hawaii, this 22nd day of February 1 2007. INTRODUCED BY: R, CO OF HA AI`I' *0' COUNTY COUNCIL ROLL CALL VOTE County of Hawaii jAYES NOES VABS EX Hilo, Hawaii FORD HIGA I hereby certify that the foregoing RESOLUTION was by HOFFMANN the vote indicated to the right hereof adopted by the COUNCIL of the IKEDA X County ofHawaNon February 22, 2007 JACOBSON X ATTEST: PILAGO X NAEOLE IX3 YAGONG X YOSHIMOTO 6 0 Reference: C-112.2/PC -12 6A Y CLERK CHAIRMAN ID FFICER RESOLUTION NO. 44 07 (DRUT 2) 4 ( 1 • ptY OI arty Kim Christopher J. Yuen Mayor Director rp p~ NP Brad )KUL°OICHWA, ASLA LEED® AP tgouittiv Of paftrattt Deputy Director . PLANNING DEPARTMENT 101 Pauahi Street, Suite 3 • Hilo, Hawaii 96720-3043' (808) 961-8288 • FAX(808)961-8742 May 31, 2007 Kohala LLC 1756 114`h Ave SE #110 Bellevue, WA 98004 Gentlemen: Change of Zone Ordinance No. 97-102 Special Management Area (SMA) Use Permit No. 379 TMK: 5-9-1:8 According to the County of Hawaii Real Property Tax Division records, Kohala LLC is listed as the owner of Tax Map Key: 5-9-1:8. As such, this letter is being sent to you. In 1997, Gentry-Pacific, Ltd. submitted a change of zone application for the above- captioned property from an Agricultural 5-acre (A-5a) to a Single-Family Residential - 15,000 square feet (RS-15) district. A Special Management Area (SMA) Use Permit application to allow the development of a 50-lot single-family residential subdivision and related improvements was also submitted. Change of Zone Ordinance No. 97-102 was adopted by the County Council with an effective date of July 14, 1997, subject to several conditions, including Condition C, which states in part that "...Final Subdivision Approval of the proposed residential subdivision within the subject property shall be secured from the Planning Director within five (5) years from the effective date of this ordinance." SMA Use Permit No. 379 was approved by the Planning Commission with the same effective date of July 14, 1997. Condition No. 4 of this permit also required that Final Subdivision Approval be secured within 5 years (July 14, 2002) from the effective date of the permit. Ordinance No. 97-102 and SMA Use Permit No. 379 allowed the landowner the opportunity to file a time extension to Condition C and Condition No. 4, respectively. It has been almost ten (10) years since Ordinance No. 97-102 and SMA Use Permit No. 379 were approved. No requests for time extension to the cited conditions were Planning Dept. Exhibit 1aa1 Hawaii County is an Equal Opportunity Provider and Emolover. Kohala LLC Page 2 May 31, 2007 submitted to the Planning Department. Based on this inaction by the previous and current landowner, the Planning Director will be initiating the rezoning of the property from a RS-15 to a Residential and Agricultural 5-acre (RA-5a) district. The Planning ° Director will also be initiating the revocation of SMA Use Permit No. 379. We will inform you as to when these matters will be brought before the Planning Commission. Should you have any questions, please feel free to contact me at (808) 961-8288 x200. Sincerely, CHRISTOPHER J. rN Planning Director P:wpwin60\pc\letten\2007\ord97-102 sma379 1111-. Sh.NA 1 I'. - 1 79 N l1.0. 1 Ft1UK I1'LN 1 It LF.GIti1.A'IUKF., 1998 SIAII.M HAWAII M tl I M I Rt I ti URGING THE RETENTION OF VIEW AND OPEN SPACE MAKAI OF KAWAIHAE- MAHUKONA-HAWI ROAD FROM KAWAIHAE TO UPOLU POINT, HAWAII WHEREAS, lands makai of the Kawaihae-Mahukona-Hawi Road are currently in a relatively undeveloped state; and WHEREAS, the area contains Lapakahi State Historical Park, an ancient Hawaiian coastal settlement, and, Mookini Heiau State Monument, one of the most famous heiaus on the island; and WHEREAS, the State Department of Transportation has previously recognized the value of makai views by requiring the location of all utility poles on the mauka side of Oueen Kaahumanu Highway immediately south of the Kawaihae-Mahukona-Hawi Road; and WHEREAS, existing State zoning does not provide for urban development on the vast majority of these lands; and WHEREAS, the makai area lies in large measure within the coastal zone management area administered by the State; and WHEREAS; the makai area also lies within the Special Management Area administered by the County; now, therefore, BE IT RESOLVED by the Senate of the Fourteenth Legislature of the State of Hawaii, Regular Session of 1988, the House of Representatives concurring, that the State and the County governments are urged to work together in a collaborative effort to ensure that the public view and open space currently existing makai of the Kawaihae-Mahukona-Hawi Road be preserved; and BE IT FURTHER RESOLVED that the State and County governments work in close collaboration to discourage subdivision and building development makai of the Kawaihae-.Mahukona-Hawi Road; and Planning Dept. Exhibit RFS1217 SCR B0041 179 H. D. 1 2 BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Chairperson of the Board of Land and Natural Resources, the State Land Use Commission, the Chairperson of the Hawaii County Council, the Mayor of Hawaii County and the Director of the Hawaii County Planning Department. F SCR146 SDI Page 1 of 2 Report Title: Open View Planes; North Kohala THE SENATE 146 TWENTY-FIRST LEGISLATURE, S¦ C¦ R¦ NO. S.D. 1 2001 STATE OF HAWAII SENATE CONCURRENT RESOLUTION URGING THE RETENTION AND PRESERVATION OF OPEN SPACE AND VIEW PLANES, HISTORIC SITES, AND TRADITIONAL ACCESS ALONG THE COASTLINE OF THE NORTH KOHALA DISTRICT, HAWAII. WHEREAS, lands makai of the Kawaihae-Mahukona-Hawi Road to Pololu Valley and beyond, including the pristine valleys from Pololu to Waipio and the northern coast of the North Kohala District, are in a relatively undeveloped state; and WHEREAS, the area contains Lapakahi State Park, an ancient Hawaiian coastal settlement; Mookini Heiau State Monument, one of the islands most famous heiau; the birthplace of Kamehameha, and numerous other historical sites; and WHEREAS, the ethnically diverse character of this district embraces as well the history and artifacts of the missionary, paniolo, and plantation eras, which contributes to its significance; and WHEREAS, the beautiful rural and agricultural Kohala area is one of the few remaining places where the quality and character of our small rural communities has been maintained, encouraging and nurturing the tradition of cultural continuity; and WHEREAS, in 1988, the State Legislature recognized the importance of preserving this area by passing S.C.R. No. 179, H.D. 1, which urged the State and County governments to work together to preserve the public view and open space makai of the Kawaihae-Mahukona-Hawi Road and further called for collaboration to Planning Dept. httn•//xxnxnv rnnitnl haxvaii vnvkPQ6nn?001 /hills/SCR 146 Rl)l htm i_ 619.619007 SCR146 SDI Page 2 of 2 discourage subdivision and building development; and WHEREAS, at that time, a petition circulated on the island of Hawaii calling for the halt of all development along the North Kohala coastline until "a thorough study of the scenic, historic, recreational and biological values" of the coast can be studied was signed by 5,650 people 1,030 of them residents of North Kohala; and WHEREAS, in 1989, the Planning Committee of the County Council passed a resolution calling for the preservation of the North Kohala coastline; and WHEREAS, despite these actions, development in the area has continued and the region faces increasing pressure for more subdivision and other development; and WHEREAS, in October, 2000, community members collected well over six hundred signatures and submitted them as part of the community response to the Update of the Hawaii County Comprehensive Plan, urging the preservation and protection of the region from Kawaihae to Pololu Valley; and WHEREAS, in January 2001, community organizations again voiced their concerns at a Na Ala Hele meeting, and strongly supported the recommendation to remove Pololu Valley from commercial activity; now, therefore, BE IT RESOLVED by the Senate of the Twenty-First Legislature of the State of Hawaii, Regular Session of 2001, the House of Representatives concurring, that the State and County of Hawaii are again urged to work collaboratively with the community and residents of Kohala to develop and implement a plan to protect the open nature of the Kohala coast, preserve its valuable historic sites, and provide greater awareness and appreciation of the history and cultural significance of the area for residents and visitors alike; and BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be sent to the Mayor of the County of Hawaii, Hawaii County Council, Hawaii County Planning Department, State Land Use Commission, Office of Planning, and Kohala Historic and Cultural Preservation Group. htt., //esnxnw, ronitnl ho:,o;i rtn.,/eaec;nn7(1M /h;11./C('R ld(, QT11 htm rnF/?nm BKohalaLLC-AmendREZ866-SMA379 12-26-07 COUNTY OF HAWAII PLANNING DEPARTMENT ADDITIONS TO BACKGROUND AND RECOMMENDATION REPORTS INITIATOR: PLANNING DIRECTOR REVOCATION OF SPECIAL MANAGEMENT AREA USE PERMIT NO. 379 CHANGE OF ZONE APPLICATION FROM RS-15 TO RA-5A KOHALA LLC AMENDMENT TO SPECIAL MANAGEMENT AREA USE PERMIT NO. 379 AMENDMENT TO CHANGE OF ZONE ORDINANCE NO. 97-102 (REZ 866) Some issues have been raised by the applicant that warrant a response in a supplemental background and recommendation for the Planning Commission's consideration of the rezoning proposed by the Planning Director, and the applicant's request for a time extension. Legality. The applicant has challenged the legality of the Planning Director's proposed rezoning of the property from RS-15 to RA-5a. This involves general legal issues that are worth discussing because they can come up in Planning Commission deliberations. This can broken down into two related topics: "vested rights" and "takings". Both of these relate to how far the government can go in limiting the use of private property through land use controls. Vested rights. Generally, laws and regulations affecting land use can be changed. So, for example, an ordinance may reduce the height limit for buildings in a certain area, and if an owner applies to build on a vacant property, the owner must comply with the new height limit. And through rezoning, the government has the power to change a landowner's zoning to a less intensive use. The law recognizes, however, that land development proceeds in stages, and that after a certain point, the owner should be allowed to complete a project as planned, and be protected from changes. The term normally used is that the owner has "vested rights" to proceed with a development. 1 In Hawai'i land use law, the developer has "vested rights" when there is no further discretionary action required for the project to proceed, and the owner has expended substantial amounts in reliance upon that final discretionary action. Kauai County v. Pacific Standard Life Ins. Co., 65 Haw. 318 (1982). The "discretionary action" is a key concept. It means a permit or other approval that requires the decision maker to exercise judgment ("discretion") in deciding whether or not to issue the permit or approval. In a discretionary action, the decision maker must weigh a number of factors against broad standards given by the law. The other type of permit, in contrast to a discretionary permit, is a "ministerial" permit: one where the factors leading to a decision are described with such precision that nothing is left to discretion, where the duty to act is absolute, clear, and imperative, 63C Am.Jur. 2d Public Officers see. 325, and where the only requirement to proceed is that a public officer process an application for compliance with all applicable statutes, ordinances, rules, and regulations, and the conditions attached to such approvals. Life of the Land v. City and County of Honolulu, 61 Haw. 390 (1979). A ministerial action will have precise, fixed standards. A building permit is a typical example of a ministerial permit. The Building Code sets out minimum requirements for a building, such as the spacing of floor joists, the required window area, the width of doorways, and the like. If the building meets these minimum requirements, the building official reviewing the permit has no discretion to refuse to issue the permit. In land use law, the ministerial approvals, such as building permits and driveway permits, typically follow the discretionary approvals, such as a rezoning. A change of zone, or an amendment to an existing zoning is a legislative act, Save Sunset Beach Coalition v. City and County of Honolulu, 102 Haw. 465 (2003). It is discretionary (as are all legislative acts) because the decision maker-the County Council must use its judgment in deciding whether or not to approve the rezoning or the proposed amendment. 2 Turning to the Kohala LLC issue, on the question of a time extension, the rezoning ordinance, in Condition "V", says that if the time conditions are not met, the planning director may initiate a rezoning to the original or a "more appropriate" designation. The Zoning Code, in sec. 25-2-44(c), says the same thing, in sec. 25-2-44(c): "Failure to fulfill any conditions of the zone change within the specified time limitations, or any extensions thereto, may be grounds for the enactment of an ordinance making further zone changes or for rezoning the affected property back to its original zoning designation or a more appropriate zoning designation, upon initiation by either the director or the council in accordance with section 25-2-43." Clearly, the decision whether another zoning designation is "more appropriate" is discretionary, not ministerial. The Zoning Code and rezoning ordinance do not have special standards for considering a time extension as compared with other kinds of amendments to zoning ordinances or their conditions, so the only applicable standards are those that apply to the enactment of zoning ordinances and conditions generally: Section 25-2-40. When zoning code may be amended. This chapter may be amended by changing the boundaries of districts or by changing any other provision in this chapter whenever the public necessity and convenience and the general welfare require such amendment, and when such amendment would be consistent with the goals, policies and standards of the general plan. Section 25-2-44. Conditions on change of zone. (a) Within any ordinance for a change of zone, the council may impose conditions on the applicant's use of the property subject to the change of zone, provided that the council finds that the conditions are: (1) Necessary to prevent circumstances which may be adverse to the public health, safety and welfare; or 3 (2) Reasonably conceived to fulfill needs directly emanating from the land use proposed with respect to: (A) Protection of the public from the potentially deleterious effects of the proposed use, or (B) Fulfillment of the need for public service demands created by the proposed use. These are also discretionary standards, not ministerial ones. Even the standards for the Planning Director's power to grant an initial administrative time extension are discretionary, as stated in Condition "U" of Ord. 97-102: U. An initial extension of time for the performance of conditions within the ordinance may be granted by the Planning Director upon the following circumstances: 1. The non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicants, its successors or assigns, and that are not the result of their fault or negligence. 2. Granting of the time extension would not be contrary to the General Plan or Zoning Code. 3. Granting of the time extension would not be contrary to the original reasons for the granting of the change of zone. 4. The time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year.) With the exception of the limit in length of a time extension, these provisions require the exercise of judgment and discretion. 4 After Kohala LLC's five year timeframe to secure final subdivision approval expired in 2002, it needed a discretionary action to proceed-first, the Planning Director's administrative time extension (which it has never received), and second, the Council's agreement to extend time. Because it needs a discretionary action to proceed with its development, it has no vested rights. The project also needed a subdivision approval, which is also discretionary, within the bounds of discretion provided by the terms of the Subdivision Code. Kohala LLC's argument is equivalent to saying that the Council must allow a time extension whenever it is requested by a landowner. This would, of course, defeat the very idea of having time conditions. Obviously, time conditions allow the Council to reconsider whether a property's zoning is still appropriate, given the current conditions and desires. There is specific case law holding that whether or not to grant a time extension to a rezoning is a discretionary decision by a legislative body, and that the court will uphold the refusal to extend time if it has any reasonable basis in fact, which can include general land use considerations. Court House Plaza Co. v. City of Palo Alto, 117 Cal. App. 3d 871 173 Cal. Rptr. 161 (1981). A SMA permit is also a discretionary decision. The factors to be weighed are listed in H.R.S. Chap. 205A. There are many factors, but all of them call for the exercise of judgment and discretion. In fact, all of the permits upon which the Planning Commission makes a final decision are discretionary. Takings. The Supreme Court has upheld the basic concept of zoning restrictions that limit the use, and often the market value, of private property, including restrictions that greatly diminish the value of property. If this were not so, the entire system of zoning and other land use regulations would be impossible. Courts have upheld land use 5 regulations that reduce the value of property by as much as 95%. The Court has said that such regulations can go too far, however, and constitute a "taking" of private property for public use. In that case, the public must pay just compensation to the landowner, similar to the actual taking of property by eminent domain. The law of "takings" is complex. But in the typical situation, a zoning ordinance will not be a taking on the grounds that it unduly limits the density of development allowed on a property, unless it does not leave the owner with some beneficial economic use of the property. The ability to build one home on a lot, for example, is enough of a beneficial economic use to defeat a "takings" claim. Palazzolo v. Rhode Island, 533 U.S. 606 (2001). Applying this to proposed Kohala LLC rezoning, the RA-5a zoning, if later accompanied by a SMA permit for the same density, and a subdivision approval would allow the 37.8 acre property to be subdivided into seven lots of five acres; and on each lot, a home could be built. This is a significant economic use; and the property, with that level of entitlement, is very valuable. To compare, the 63-acre property immediately to the south, also along the shoreline, was purchased in 2004 for $16.5 million. That property was in the state land use urban district, county zoned A-5a. The owner of the 63-acre property did not seek rezoning and has obtained SMA permit approval to subdivide the property into five-acre lots. What the owner did with that property is basically what is being proposed for this property. Appropriate Land Use. Clearly, the fact that the government and its agents like the County Council and Planning Commission have the legal right and power to put certain restrictions on land does not mean that it necessarily should do so. The issue must still be analyzed from the overall standpoint of land use. The most significant reason for changing the zoning is that the public goal of a preserving viewplanes to the shoreline and ocean can be better and more easily achieved in the 6 context of a development involving seven homes versus fifty homes. The public purpose for this area has been expressed by legislative concurrent resolutions. More generally, the SMA law, H.R.S. sec. 205A-26(3)(D) expresses the desire of the legislature to minimize development that will "substantially interfere with or detract from the line of sight toward the sea from the state highway nearest the coast." In a subsequent SMA permit, this policy can be more easily implemented in siting seven homes rather than fifty. The proposed RA-5a rezoning will also further policies stated in the General Plan, such as sec. 7.3(b): "Develop and establish viewplane regulations to preserve and enhance views of scenic or prominent landscapes from specific locations, and coastal aesthetic values", 7.3(h): "Protect views of areas endowed with natural beauty by carefully considering the effects of proposed construction during all land use reviews", and 7.3(i): "Do not allow incompatible construction in areas of natural beauty." Waiakilio Bay, which is at the northern end of the property, is cited in the General Plan as an example of natural beauty in the North Kohala district, see p. 7-10, along with, more generally, the coastline viewplane from Akoni Pule Highway. In the "Natural Resources" section of the General Plan, one policy is to "Protect the shoreline from the encroachment of man-made improvements and structures." Sec. 8.3(d). The proposed rezoning will also reduce the potential for problems from soil erosion due to development of the site by reducing the amount of grading and other land clearing. The site is crossed by several gulches, and there has been significant soil erosion into the ocean fronting the site, apparently from runoff from mauka areas, which include the Kohala Ranch subdivision. The proposed RA-5a zoning is actually much more consistent with the typical zoning makai of the Akoni Pule Highway. All of the land makai of the Akoni Pule Highway in North Kohala, from the South Kohala boundary, to Upolu Point, is zoned Open, A-5a, or A-20a, except for two areas: the Kohala Waterfront subdivision, which is about 2800' south of this property, and Mahukona. Kohala Waterfront is zoned RM-4, but is being 7 developed as a single-family residential subdivision. Mahukona and the Kapaanui property to the north have a mix of visitor and A-1 a zoning, but the latest development proposal is for much less than the density permitted by zoning. As stated earlier, the property immediately to the south is being developed into five-acre lots. The LUPAG map shows the southern two-thirds of the property as "low density urban", while the northern one-third is "extensive agriculture." The LUPAG map allows a residential development at RS-15 and even greater densities, but it does not mandate the Council to zone such properties to an urban use. The Council must still apply site- specific factors and judgment to the zoning of a particular site. Although not the prime reason for changing the zone, the owner's inaction in developing the property is relevant to the question of revoking the RS-15 zoning. The owner has offered no reason for inaction beyond this sentence in their representative's June 5, 2007 letter: "In its efforts to comply with the conditions of approval under Ordinance 97-102 and SMA 379, Kohala LLC has completed an Archaeological Inventory Survey, and obtained SHPD approval for the Site Preservation Plan and Burial Treatment Plan, and is currently assessing its rights and obligations under the various Development and Water Agreements involving several third-party entities relative to water sources, supply, easements and transmission lines for the Project." Ordinance 97-102 contains a number of conditions relating to time. The only action claimed by the applicant in its 2007 annual report relates to the approval of the burial treatment plan and preservation plan by SHPD, under Condition "M", but even this is somewhat illusory. The archaeological work was largely done by the time of the rezoning in 1997. SHPD did approve the burial treatment plan and preservation plan in 2001; but as pointed out in the Planning Department's October 2001 letter to the applicant, these approvals were based on the owner's representation that the plans had changed to become one single-family residence, and that the owner would have to obtain a new approval from SHPD if they went back to a subdivision concept. Although the ordinance and SMA permit require annual reports, the applicant did not file any from 8 1999-2006, except for one in 2001 where the applicant acknowledged that final subdivision approval was due in 2002. They also filed one after the Planning Director initiated the rezoning. Condition "C" requires final subdivision approval within five years. The applicant has not even filed maps for tentative subdivision approval. It typically takes 1-2 years from the filing of the maps for tentative subdivision approval to the receipt of final subdivision approval. Condition "17" requires construction of improvements to Akoni Pule Highway meeting with the requirements of the State DOT. No plans for such improvements have been submitted to the DOT. Condition "J" states that a drainage plan, if required, shall be submitted to DPW before submittal of subdivision plans. DPW asked for a drainage study by letter prior to the rezoning; no drainage plan has been submitted. The public access plan required by Condition "O" has not been submitted. The Planning Director recommends that the Planning Commission forward a favorable recommendation to the County Council on the Planning Director's request to repeal Ordinance 97-102 and to rezone the property to RA-5a, and an unfavorable recommendation on the applicant's request for a time extension of Ordinance 97-102. If the Planning Commission is inclined to support a time extension to the RS-15 zoning, it should note the following: • Condition "17" states generally that access from the Akoni Pule Highway should meet with the approval of the State DOT. The Police Department suggested that right and left turn lanes be required, at the time of the 1997 rezoning. If there is to be a 50-lot subdivision here, with access from a high-speed highway, such turn lanes should be required. • Condition "J" says that a drainage study "if required", should be done. DPW asked for a drainage study in 1997. The property is crossed by several gulches. The drainage study should be required. 9 PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JANUARY 11, 2008 A regularly advertised hearing on the application of Initiator PLANNING DIRECTOR (REZ 07- 000067/REZ 866) was called to order at 4:37 p.m. at the King Kamehameha's Kona Beach Hotel, 75-5660 Palani Road, Kailua-Kona, Hawaii, with Chairman Rodney Watanabe presiding. PRESENT: William Graham ABSENT & EXCUSED: C. Kimo Alameda Takashi Domingo Andrew Iwashita Shelly Ogata Rene' Siracusa Alvin Rho Rodney Watanabe Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Christopher Yuen, Planning Director Steven Lim, Attorney for Kohala LLC And 2 people from the public in attendance. INITIATOR: PLANNING DIRECTOR (REZ 07-000067/REZ 866) a. Continued hearing on the Planning Director's initiation of a Change of Zone for 37.88 acres of land from a Single-Family Residential 15,000-square foot (RS-15) to a Residential and Agricultural 5-acre (RA-5a) district. b. Continued hearing on the repeal of Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5 a) to a Single-Family Residential 15,000-square foot (RS-15) district. The property involved, owned by Kohala LLC, is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua I", North Kohala, Hawaii, TMK:5-9-1:8. WATANABE: We are on Agenda Items 4 and 5. Agenda Item 4 is a Planning Director initiated revocation of zoning, REZ 07-000067/REZ 866. Item No. 5 is a request for an extension of time by the applicant, Kohala LLC, REZ 866, for Condition C. This is Unfinished Business; we've discussed this on a number of occasions. And I know there's been some discussion mostly about process procedure, we also apparently have some arguments about the five agenda items, three of which are not agendized today, being consolidated at our earlier meeting, I believe that was a July meeting. And I'm thinking that, if the applicant's representative would be in agreement, that we should take Agenda Item 4 on its own, the reason i I being if Agenda Item 4 passes, then everything else is moot. And also because the Director has made it very clear that he will not extend beyond this January 11"' date, in which case an unfavorable recommendation would be forwarded to the County Council. Now it's also my understanding that really the reason for wanting to keep the items consolidated is the SMA permits, which are not agendized but agendized for the March 20'h meeting, go hand in hand with the - how should I put it - with the application for a time extension. And that application for a time extension would only arise if Agenda Item 4, the Planning Director initiated revocation, passes. So if you will consent to that, then I think we can narrow or focus our discussions. LIM: As we stated before I'm sorry. Steven Lim representing WATANABE: Let me swear you in. Do you swear or affirm to tell the truth now before the Planning Commission? LIM: I do. WATANABE: Thank you, Mr. Lim. And name and address, of course. LIM: Steven Lim representing Kohala LLC, which is the applicant, and Item No. 5 on the agenda today. My address is P. O. Box 121, Hilo, Hawaii, 96721. Your question was whether we would agree to the hearing of Item No. 4 only, which is the Planning Director's initiated downzonings, and - excuse me WATANABE: I'm not suggesting that we not deliberate on Agenda Item 5; it is agendized, we will address that. I'm hoping that we can deliberate on Item 4, so that we will get a clear direction as to how the Planning Commissioners feel. Obviously, if it's five or a greater number in favor of the Planning Director's recommendation, then Agenda Item 5 is moot. On the other hand, if it's five or greater against the Planning Director's recommendation, then we can proceed to Agenda Item 5. And my thoughts here are that, you know, with Agenda Item 5 as I understand the Rules allow the applicant to agree to an extension of time, which then we could join in, if appropriate, with the SMA discussions. On the other hand, I do want to make a point that if indeed we proceed to 5 because Agenda Item 4 fails, then I would like to record in these discussions some direction, so that we can provide the Council with some direction, since we are sending it up separately, as to where we are headed with Agenda Item 5 and the subsequent SMA discussions that are agendized for March 20`h. LIM: I think our legal position is that we believe that the five matters including the SMA matters were all consolidated and they still remain consolidated. We have no objections to you taking up for discussion purposes Item 4 and then Item 5 so long as it's understood that we are not waiving any of our claims that all these matters are consolidated. WATANABE: Okay. Mr. Domingo? DOMINGO: Mr. Chairman, if I may. Even before we go any further, you know, we have had discussions on this issue for a number of months, and as each time goes by, as each 2 time we meet to consider these items before us, personally what I'm feeling and sensing is, you know, there is that contentious feeling among the Department and the applicant. And you know, I think to a certain degree it may have impacted on the members of the Planning Commission. Through some of the deliberations I've had a sense of feeling of some Commissioners by their expression having a desire to have the parties get together and talk about it, you know, discuss the issue. And as the last resort I don't think any one of us would just like to go through the whole items and then abruptly or whatever may happen, either deny the Planning Director's initiatives or approve it. You know, any way you look at it, there will be some degree of I think doubt in one or the other's feelings or perhaps even to a degree of the integrity of an individual. I just, you know, as a last ditch effort, you know, in this public hearing want to know if the Planning Director and the applicant can meet and discuss the issues and hopefully come to some kind of amicable conclusion, which both of the parties can subscribe to. WATANABE: Mr. Domingo, we've been asking for that for quite a while now and DOMINGO: Well, you know WATANABE: It doesn't appear as though - please let me continue - doesn't appear as though that's going to be possible. With that in mind, and I will ask again both parties whether that's possible or not, that's why I'm not ruling that out. But again not knowing where Item 4 is headed or how the other Planning Commissioners are planning to vote on Item 4, I don't want to jump to the conclusion that this Commission will then play as mediator in Agenda Item 5. And so I'd like to get that decided. However, that said, you know, Mr. Director, we've asked you in the past whether you're willing to concede on this to some degree, and I don't believe your position has changed. But, for the record, would you care to make a statement? YUEN: Well, I'm very willing to meet with the applicant and discuss this further. But I would like to proceed with the request to rezone the property to RA-5 a; and at the end of this meeting, have that go to the Council with either a favorable or unfavorable recommendation from the Planning Commission. I understand that it the Planning Commission, you're very often faced with difficult choices; and I'm sorry that in this case this is a difficult choice that I initiated and presented to the Planning Commission. I have worked with people on many, many issues over a seven-year period, and have probably come to compromises that are then embodies- in things that come to the Commission where there is no dispute between the applicant and the Planning Commission. I've done that probably a hundred times, if I've done it once. I haven't been able to do that in this case. I don't know if a position like that is possible. There is time to, certainly before this goes finally through the County Council to, for everybody to modify their positions or to come to different kinds of visions of what would happen. But I have to say that as far as today I'd like to see the Commission discuss the merits of the proposal on the return to the 5-acre zoning and attempt, you know, to take vote on it, and make a recommendation to the Council one way or the other on that. There is also Mr. Lim's request for a time extension, which the Commission should also vote on. He can extend the time on that although - and that's entirely up to him, of course - although I would imagine that he would want that to go up to the County Council at the same time as the 5-acre zoning. I certainly have no objection to doing that. I believe he can under the timeframes make sure that that happens. 3 WATANABE: Did that answer your question, Mr. Domingo? DOMINGO: Well, yeah, it seems like I have no recourse WATANABE: Well, Mr. Lim DOMINGO: And let the games begin. LIM: I guess on the applicant's side, we've always been willing to negotiate for a lower density; you know, we've reserved our rights to the RS-15 zoning that we've had for years. And we would be willing to negotiate but not at the expense of having the change of zone moved up to the County Council. Once it does that, it puts us in jeopardy. 1 think that, and even the Director recognizes that nothing is happening on the property. So I don't see what the rush on pushing it forward is. So we would be willing to negotiate and it's, like I said, I would suggest that the best way to negotiate is when there is no pressure on either party, and that would be at this stage without moving it up. WATANABE: I have some suggestions, but again because of the Sunshine Law we are unable to discuss amongst ourselves towards any deliberation and so I have no idea what this body is going to vote on Agenda Item No. 4. And with that, now that the preliminaries have been, you know, put forth, maybe I can call on staff to do the presentation. And then with your consent, Mr. Lim, since we have only two testifiers from the public, possibly we could have the testifiers testify first, and then proceed into our deliberations. LIM: I have no objections. WATANABE: Thank you. DARROW: Thank you, Mr. Chairman. Just a brief presentation, if I can direct your attention to the location map. The area of this application is within North Kohala. More specifically, we are looking at Akoni Pule Highway running in a north-south direction; it's identified in a red line. We have Kohala Ranch Estates located directly across from the project location, which is identified with a black dot. The color on the map indicates the zoning. The light green zoning represents Agricultural I-acre; the dark green represents Agricultural 20- acres, and we have, for the project location, we have RS-15. This is located directly in front of Waiakailio Bay. This is a continued hearing from our December 12, 2007, hearing; the Planning Commission voted to continue the three change of zone applications, rezoning applications, till this date, January 11`h, and that the two SMA applications be continued until March 20`h. These matters that we are looking at today are the Planning Director initiated change of zone from RS to RA-5 and the continued hearing on the repeal of Ordinance 97-102. Additionally, we're addressing the application, amendment application for Kohala LLC which is they're requesting an amendment to Condition C of Ordinance 97-102 which rezoned 37.88 acres from Ag 5-acre to RS-15. 4 We have just several aerial photos of the area. This again is the Waiakailio Bay and we have the project location. We have the entrance to Kohala Ranch located directly across the street. What I'll do is I'll just keep the project, the location map up on the board for reference. Just for the Commission's attention we have had several pieces of correspondence that have come to the Commission's attention since our last hearing. One is the additional information to the background and recommendation report from the Planning Director. We've received correspondence from the applicant. This is called the Memorandum in Opposition to the Planning Director initiated change of zone, repeal of Ordinance 97-102 and revocation of SMA Permit No. 379, and in support of applicant's requested amendment to Condition C of Ordinance 97-102 and Condition 4 of SMA Permit 379. These are time stamped January 9, 2008. And lastly we have, or additionally we have a letter dated January 10, 2008 to the Planning Commission Chairman from the Planning Director; and lastly we received correspondence from Preserving North Kohala. That was a letter, I'm not sure exactly who it's from. I think it's from several members of the Kohala residents, North Kohala residents. All this information should have been passed out to the Commission. Thank you. WATANABE: Thank you. Do we have any questions of staff, Commissioners? If not, then may I call up Gail, Mike Isaacs and Gail Byrne. May I swear you in. Well, actually I swore you in earlier so you're still under oath. But Mr. Isaacs, I, do you swear or affirm to tell the truth now before the Planning Commission? ISACCS: Yes, I do. WATANABE: Maybe we can start with you, Mr. Isaacs. Would you state your full name and address for the record, and you may begin with your testimony. ISAACS: Michael Isaacs, Camp 17, Kokoiki, North Kohala. WATANABE: Would you use the mike, please. We're recording this and it's difficult for the recording secretary to transcribe. ISAACS: Mike Isaacs, Camp 17, Kokoiki, North Kohala. WATANABE: You may begin. ISAACS: Anyway, excuse me. I'm here representing this stack of paper which actually are signatures of over, well, it's three separate petitions. They represent 6, 7, almost 8,000 signatures. And what it's about is the preservation of the North Kohala coast, and also the kupunas who have been working, gosh, for over 30 plus years to preserve the North Kohala Coastline. Most of them have, that I'd worked with, have passed on. So I continue to speak for them, especially when it comes to the coastline. Basically I'm here, and this material here, is to back up the Planning Director's initiatives. We do not want to see the coastline all of us, the ones that are still present and not developed. We actually want something even more, which is Conservation and Open. And yet the Planning Director's initiative is better than nothing at all. 5 The problem with that area, that particular area, is that development above it has impacted the ocean in a very negative way. And if you decide to let this development go with that amount of homes, the density would definitely destroy that particular area and further. I've heard that there has been mentioning, someone mentioned taking, taking pertaining to this private individual or developer. Well, let me read something to you; and this is based on the public trust doctrine in my, you know, my own opinion. When the public loses its source of food, cultural identify, spiritual renewal and recreation, this is a taking. It is a taking when the public rights by way of actual use, custom, or prescription are compromised by development. And this development will compromise the public. And I think it's overdue that the Commission start looking at it from a different point of view instead of just the private single entity and look at how it affects long- term, short-term, the public. Mr. Yuen's request to downzone it is correct. To put that amount of homes there is not. And I ask the Commission to support Mr. Yuen in his initiative. Mahalo. WATANABE: Thank you, Mr. Isaacs. Do we have any questions for Mr. Isaacs, Fellow Commissioners? Seeing none, thank you. Gail? BYRNE: Yeah, thanks. I know it has been a long day. I appreciate everyone's time. The testimony I'm submitting and that we submitted in August and December meetings is on behalf of six Kohala organizations that present about 400 families. And as stated previously we urge the Planning Commission to support the Planning Director's initiatives. We're also asking for more, similar to what Mike just alluded to. We're asking for a minimum of a rezoning to Ag-20a, which is completely aligned with that stack of papers you saw there, State Plans, Joint Resolutions by the State Legislature, past Community Development Plans. It's absolutely aligned with the work that's coming out of the current Community Development Plan. And most significantly this applicant does not meet the conditions for time extension. You know, the circumstances and the context under which this initial application was granted have changed; and the testimony outlines just a couple of examples. You know, there is very compelling documentation that the development construction activities up slope of this area is already significantly degraded the water quality, it has killed off all the coral right in front of this site. And there's a couple of, three photos, I think, attached with the testimony that has been submitted today. All the invertebrates in that area have been killed. The sediment was measured to beat least 15 inches or more just 15 feet offshore, up to 60 feet off shore. There's a significant impact there. You have to take that into consideration. Additional development of any kind will contribute to this problem. There's not a BMP on the planet that's going to stop this development from contributing to that problem. That's just a fact. I'm a civil engineer, worked for 8 years on watershed issues. I guarantee you there's going to be more contribution from that project to that reef. In the scale of damage to this area that we're talking about makai, directly makai of this project, its magnitude is greater than what precipitated the EPA investigation and fines against Hokulia. It's significant, the damage that's already there. You know, there's even a greater body of evidence and support that the proposed project is not at all aligned with what the community has consistently expressed with regard to preserving the 6 coastline. The input received in the last two years during the community readiness program for North Kohala development planning process, and this was the most well-attended community readiness program in all the years that we were receiving such support, there was tremendous out-turn by the public. Anyway, the input from the community at that time and the draft recommendations coming out of the focus groups are clearly not aligned with this project. In fact, there's a recommendation calling for the State lands to be downzoned to Conservation. And right now there are two bills being introduced at the Legislature to do exactly that for the property immediately north of here. And the social environmental conditions under which the ordinance and permit were originally passed and issued have significantly changed and do not support any extensions. What the conditions support at a minimum is what Chris is asking for. I think there's a real sound case to ask for more. I hope you guys will consider that and use your authority to do so. You know, the annual reports were not filed, the required progress was not made. There's no takings issue here. I know there's a lot of concern and talk about that at the last Commission meeting. For whatever reasons, the required conditions were not met. The applicant didn't comply with the required procedures. There's no takings here. There has been no subdivision granted. There's no takings here. On Oahu I believe there is a resort zoning downgraded all the way to Preservation, made it all the way to the 9`h Circuit Court, there's no takings. We need to quit being afraid of doing the right thing, especially when folks haven't complied with the procedure. Let's not be concerned. But there is certainly cause for concern about lawsuits that will force the County to take action to protect natural resources from the cumulative effects of development as allowed under the Clean Water Act, the Coastal Zone Management Act, and with regard to upholding the public trust doctrine as allowed for in our Hawaii State Constitution. No one has done it yet but the time is getting nearer if we don't start doing some better planning. You know, one of the reasons we're here today is because the applicant did not follow rules and that time to exercise the conditional entitlements expired. You know, but the real reason we are here is because over the decades for whatever reason the County has not listened to the community in terms of what their vision is and what they wanted for this coast. I think we alluded to it in our document and other testimony. This coast has the most numerous and intact archaeological and cultural sites in the State. It's precious. It's the last uninterrupted viewplane for the longest stretch in the state. There are many, many reasons to be looking at preserving all the parcels along this coast. You know, please hear us today. Please support the Planning Director's recommendation to repeal Ordinance 97-102 and please use your authority to rezone it to a more, to zoning that is more aligned with what the community has asked for for decades. And I really, I'm very much a win-win optimistic type person. I love dialogue, I love discussion. And I appreciate the efforts by the Commissioners to encourage more discussion between the Planning Department and applicant. And yet at the same time, you know, what about more dialogue between the Planning Department and what the community has wanted or 30 years? 7 The last thing I wanted to say, with all that being said, Mr. Lim and I had a conversation in December briefly about a possible Conservation sale and then this morning; and I'm going to be sending him a letter. He has asked me, encouraged me to do so. So there is that possibility out there. And certainly that's something I know that the organization] represent would support. So that's it. Thank you for your consideration and I encourage you to act proactively. WATANABE: Do we have any questions for the testifier? Thank you, well, you may be seated then. I'll call up Mr. Lim. Mr. Lim, you've already been sworn in. You've heard the testimony. It's repetitive in that we heard it at the last meeting. And I'm hoping, you know, at the last meeting we spent much of our time about procedure, process, rules. And I'm hoping this time we'll be able to move forward and make a decision one way or the other on this issue and then hopefully in the end we'll drive this to a conclusion. So, but what, I know you worked quite diligently preparing for this so now is your opportunity to present your case. LIM: And due to the late hour I'll try to be brief. As I spoke earlier the Commission's vote in July of last year to unanimously approve the consolidation of the five matters before you was, we believe, the tool to bring the two matters together; and Kohala LLC relied on that consolidation in processing and hearing this matter. We believe that because of that consolidation that the applicant Kohala LLC now has the ability to extend time limits for both our change of zone time extensions, the SMA time extensions and also the Planning Director initiated actions that you're reviewing today. I think one of the things that we would recommend to the Commission is no matter which way you go I know you have strong opinions on this matter. There's a potential that the 60 days, if we're wrong the 60 days has run and the only thing you can do is send up a nertive recommendation. And based upon what the Director says in the December 12` transcript at page 13, he said that if the change of zone is sent to the Council with a negative recommendation he stated that only the Planning Director's recommendation will be sent up there. And if that occurs, if in the end the Commission defaults to a negative recommendation because you find that the 60 days have passed, I urge that you also send up what you think at the same time. We think that the Planning Director took 10 years to enforce the SMA conditions, and that's why we wanted the extra time to be able to prepare our arguments for the change of zone and the SMA together at the March 20`h hearing. We still believe that that's the best way to go. Nothing is happening on the property. The Planning Director's position is not being compromised. The only one that is being compromised at this time is the applicant because basically once this action started back in July of last year we had to put all stops on whatever actions we were pursing on development of the property. You know, so our point is why not wait another couple of months to let us argue this thing, let the Commission decide these all at one time. And for purposes of the record, Kohala LLC is going to reserve all of its rights with respect to the five consolidated matters and any of the issues that relate to the proper processing of the Planning Director's downzoning and revocation bills that are listed on Items 4 of the, 4.a. and 4.b. of today's agenda. As I stated I think that the Commission should make its thoughts known if it does go up to the County Council after this meeting. We believe that that is the fair and proper way to go on this one. I'm going to, I guess, defer a little bit with my presentation on the 8 merits until after you've discussed the Planning Director's Agenda Items 4.a, and 4.b., if that's okay. WATANABE: Okay. Do we have any questions for the applicant's representative? Hearing none, I do have couple of questions. I was looking through the notes, and you bought the property back in July, I believe it was, of 1999, or your client did anyway, yeah? And in looking at some of the correspondence apparently Gentry satisfied the 10 percent affordable housing requirement. So that is something that has been invested since the property was rezoned to RS-15. And it appears you have also successfully negotiated an easement under the road. Because I think it was Condition 1, is that where all utilities should be underground? LIM: Well, that's part of the reliance factor by the applicant. I was going to get into that more later, but yes. Part of the activities that occurred, including the satisfaction of the affordable housing requirement, were done prior to the purchase of the property by my client. But the point is I think that regardless of who did it my client essentially buys the property with existing entitlements. So that's reflected in the purchase price. WATANABE: Yeah, but my question really is, now I noted two things And at today's prices a housing credit runs somewhere in the neighborhood of $70,000 to $75,000 per credit. Ten percent in this case was five units, which would convert at that rate to about $375,000 roughly. But I'm wondering if I covered everything. Did I miss anything? LIM: In addition to the governmental required items to develop the property, the property also comes with a water agreement that's with the Kohala Ranch Water Company. We essentially have a commitment for 76,000 gallons per day. And no matter what is developed on the property, whether it's one house or 50 homes as the permits allow, the applicant is going to have to pay in excess of a half a million dollars for that water, no matter what. So that's why I say WATANABE: Okay. That wasn't clear to me. So, again, that was how much per year? LIM: It's a one-time payment for reimbursement for the waterline that comes from the Kohala Ranch mauka down across the Kohala LLC property and over to the, I think it . was called the Kohala Waterfront property. WATANABE: Okay, that commitment is for how much? LIM: Seventy-six thousand gallons per day. And the payment is over half a million dollars. I don't have the exact number. I think it's in the neighborhood of $640,000, but I'm guessing. WATANABE: Roughly $600,000 then? LIM: That's correct. 9 WATANABE: Okay. And like you said, whether you build one house, or 50, or whatever LIM: That's correct. WATANABE: That's okay. Thank you. Mr. Graham. GRAHAM: Mr. Lim, just since Commissioner Watanabe brought it up, can you just be clear to us specifically what has been done as far as the housing, the affordable housing requirement? Lim: The housing that was provided was in Kona in what I believe was called the Kalawa View Estates Project. So the developer at that time in 1970, excuse me, in 1998 purchased affordable housing credits from that project, purchased five of them; and that resulted in the February 25, 1998 agreement between the developer of this project and the Office of Housing and Community Development that the affordable housing requirements for the rezoning were satisfied. GRAHAM: And do you have a purchase price on what those five were or anything? LIM: No, I don't have that information. That was not paid by my client. That was paid by the prior developer but it was built into the sale price for my client. GRAHAM: Thank you. WATANABE: In all fairness to the Director, I think we should offer you an opportunity to rebut before, you know You should be able to state your case, yeah? YUEN: Certainly. Well, on the merits of why we're doing this, that's the purpose of the supplemental along with the original background and recommendation; and it's to create a project with a lower density of development to be able to keep more of an open space view along the shore and also for environmental factors as talked about earlier. Just one minute on procedure because I think that's, I don't want to spend a heck of a lot of time on it. What I would think is the correct procedure is for the Commission to take a vote on the proposed, Director's proposed rezoning, and to take a vote on the time extension, very simple. Question of consolidation, the purpose of, as I believe, the purpose of the consolidation was to avoid having to say that this testimony is for the rezoning and this other testimony is for the SMA Permit. It was never possible to actually consolidate these matters in the sense that the decision would be made at the same time. The decision on the rezoning is made by the County Council. The decision on the SMA Permit is made by the Planning Commission. The Planning Commission's decision on the SMA Permit cannot take effect unless and until the County Council makes a decision on the zoning. So even if the Planning Commission, for example, were inclined to extend the time to allow, on the SMA Permit, to allow the 50 units to be 10 developed, the County Council would still have to pass the time extension on the zoning for that to take effect. 'fhat cannot happen in one proceeding in front of the Planning Commission. WATANABE: Thank you. WOODWARD: Mr. Chairman? WATANABE: Yes. WOODWARD: If I could ask Mr. Yuen a question. I realize that originally this was zoned A-5 and then it was rezoned RS-15. But if you look at the map there, everything around it is A-1. So why are we proposing to make this A-5? YUEN: No, those light colors are A-5. WOODWARD: Oh, they are? YUEN: Those light colors are A-5a. WOODWARD: Okay. YUEN: Yes. And this would be RA-5a, which is very similar. It's still a 5 acre minimum. But because it's in a State Land Use Urban rather than the Ag district, it has slightly fewer uses than the A-5 but basically the same as far as the lot size density. WATANABE: Just for the record, you did indicate in your writing to us that approximately 2/3 of the roughly 38 acres is under Low Density Urban, right, which would allow RS-15 or possibly even higher according to YUEN: Yes, possibly it's Under the LUPAG map, roughly the southern 2/3, if you would take the strict application of the LUPAG map roughly 2/3 of the property, the southern 2/3 is Low Density Urban and potentially allows a zoning of a Residential zoning of, the standards in the General Plan say up to six units per acre. The northern 1/3 or so is Extensive Agriculture in the LUPAG Map. In the State Land Use District this property is Urban. WATANABE: Thank you. Mr. Lim, do you have anything to add? LIM: Just to I guess clarify too, to Commissioner Woodward's question, the other surrounding zonings I guess would be roughly south of the subject property. There's a Multi-Family Residential RM-4 project. It's called, I think, the Kohala Waterfront. That, however, was developed for Single Family lots I believe half an acre in size. Then immediately mauka of that is the area that's zoned Agriculture I -acre. WOODWARD: I thought that's what I heard Jeff Darrow say, but Director Yuen says that's all A-5a. II LIM: Well, it's A-5 just immediately mauka of the project. WOODWARD: Okay, okay. LIM: Mauka of that is Ag-3. WOODWARD: All right. WATANABE: Okay. Would that roughly conclude your presentation or do you have anything else to add, Mr. Lim? LIM: Well, I think, you know I should go ahead and run quickly through my substantive presentation. Because I think once I finish doing that then you'd be acting on it WATANABE: Okay, okay. Certainly. LIM: Basically we're at the point now where we're seeing that the Planning Director's involuntary downzoning and the revocation to the existing zoning ordinance for RS- 15 is in violation of the General Plan. You know, essentially I think that once, our position is that once the County Council and the Planning Commission issued their RS-15 zoning and their SMA Permit No. 379, that was a recognition and admission by the County that the proposed 50- lot project complied with the General Plan and zoning and SMA criteria. And for the Planning Director to now come in and involuntarily downzone the property from RS-15 to RA 5-acre lots, we believe, requires a General Plan Amendment. We believe that, because the project as presently zoned either complies with the General Plan or it doesn't. And if he believes that the project as presently zoned does not comply with the General Plan, then he should be required to file a General Plan Amendment to initiate his downzonings. The property as you can see is in, you don't quite have the State Land Use diagram up there but basically that whole area is State Land Use Urban and it goes all the way through to the Kohala Woodvale project on the brown on the south side. As I stated before the other properties in the area are zoned Multi-Family 4 and Ag-1, so why should we downzone this property from RS-15 all the way down to Residential - Agricultural 5 acres? The General Plan ordinance has not changed. There has been no, and that's one of our strong points, I believe, is that the State and County regulatory entitlements, the laws, the General Plan in other words, has consistently provided that the property be used for Low Density Urban uses; and that was what was found by the Planning Commission and the County Council when they did those rezonings in the initial go-around. Even the 2005 General Plan Amendment procedure which was processed by Mr. Yuen recognized that the property in question should be used for Low Density Urban uses. You've heard the testimony by the public witnesses, this hearing and the last, that basically says that, you know, for years the North Kohala community has wanted to utilize, to keep the oceanfront areas makai of Akoni Pule Highway in Conservation or at least a lesser intensive use. And I think that in 2005 we see that the Planning Director and the County Council found that at least one of the parcels was worthy of this designation. And just immediately north of that parcel in the 2005 General Plan they took that area from Extensive Agricultural down to Conservation. That was in the General Plan processing, Item E-6. We believe that was a reflection of the 12 Planning Commission's and the Planning Director's, and the County Council's feeling that they should recognize some of these issues that are brought up by the community. They did not touch this property. And for the Plamiing Director now without any changes in the General Plan or any other regulatory documents to come before you to downzone an existing zoned property we think is improper. We think that once, you know, I think it would be a different situation if there was no rezoning or SMA Permit granted for this property, but that did happen; and we believe that it creates a situation in which Kohala LLC has its property rights to protect. We believe that the downzoning would affect a violation of our civil rights and our constitutional protections to due process and equal protection. We also believe that under the regulatory takings issues that the SMA Permit No. 379 was the last discretionary approval that vests Kohala LLC's rights to develop the property pursuant to that SMA Permit. We believe that although conditions of approval, such as the time extensions for any final subdivision approval, were not met, those are, those have been deemed by the Hawaii Supreme Court as not being critical to the legality of the SMA Permit. We think that the Commission should both extend the discussion on this matter to the March hearing to allow us to present it all at one time, but that at the worst case scenario that the Commission, if they're inclined to vote this out today under any scenario, that they do make it clear on the record what their position was so that the County Council can have the full benefit of your thoughts. I think what, you know, my final point is that once the County Council and the Planning Commission acted on the rezoning and SMA in the initial go-around on the entitlements for this project and they made a substantive determination on the General Plan and all the regulatory entitlements, that the County cannot now reverse the field and change their findings on those things. The issue, and I think you kind of expressed it sometimes in your comments, is that the public has to rely on the government to protect private property rights; and that is critical to the Constitutional rights of due process and equal protection. And when an applicant comes in they deserve to be treated fairly; and as we've indicated in our last memo to you, this is the only involuntary downzoning that has been processed at least in the last eight years. I've been working with the Planning Commission and the County Council on rezonings for 20 years now . and I haven't seen any involuntary downzonings occur in that period of time in my experience. We think it's a bad idea, we think it's unfair. And so we would ask that the Commission support our request to retain the zoning for this property. Thank you. WATANABE: Mr. Woodward. WOODWARD: I don't really have a question for Mr. Lim, but I would like some clarification because I'm still confused about the surrounding zonings. Maybe, Jeff, if you could show me what's what up there. DARROW: I'm sorry, I made a mistake earlier. The light green zoning is Ag-5, Agricultural-5. 13 WOODWARD: Okay. DARROW: The darker green is Agricultural-20. This lighter green is Agricultural-1 acre. So when you're looking at this area to the south and this area to the north, it's Agricultural- 5 acres. WOODWARD: Okay. How about the blue, what is the light blue? DARROW: Blue is Agricultural-3 acres. WOODWARD: Okay, so it's surrounded by all sorts of things. DARROW: Yeah. And then as the applicant's representative mentioned, you have an area zoned RM-4, Multiple Family Residential 4,000 square feet. WOODWARD: Okay. And what's that darker area up there near the DARROW: Right here, right here? WOODWARD: No, near the light blue. Yeah, that's 20 I understand. And is that 20 also to the right of that light blue area? DARROW: Correct, right over here. These WOODWARD: Down, straight down from there, this, that? DARROW: Yes. WOODWARD: That's a 20-acre also? DARROW: Correct. WOODWARD: Okay, all right. Great, thank you. WATANABE: We, yes, Mr. Graham. GRAHAM: I'd just like to confirm with the Planning Director, one of the Mr. Lim's points is about the General Plan a lot. And so we do know that the RS-15 zoning, which this property has, is consistent with General Plan Urban designation. Since Mr. Yuen is recommending a change to FA-5, is FA-5 also permissible and consistent with General Plan Urban? YUEN: Yes, it is. And let me, without, and I did discuss this in some of my written material. I'm not going to repeat it, but let me just mention one more thing. Last year, if you see the area that's right next to this property along the shore on the south side or the Kawaihae side, that area is also zoned A-5a and came in for an SMA Permit with 5-acre lots last 14 year; and the Commission made a finding that that was consistent with the General Plan and granted an SMA Permit. So having a development of 5-acre lots in an area which has all the same General Plan designations, actually that area is entirely Low Density Urban in the General Plan, has the same State Land Use designation, that is as consistent with the General Plan as well. WATANABE: Any follow-up, Mr. Graham. No? GRAHAM: No. WATANABE: Okay, I, for clarification purposes, the subdivision you're referring to or the SMA Permit you're referring to was the Belt Collins application where we did so many height limitations, etc., on that? YUEN: I'm trying to remember what the I know that Greg Mooers worked on it. I'm not sure if Belt Collins was And let me just say one more thing, that when I said consistency with the General Plan as, the RS-15 is consistent with a LUPAG Map Low Density Urban. You also have other aspects of the General Plan goals and policies that the development may not be consistent with. But as speaking of the LUPAG, yes, it is consistent with Low Density Urban. But, anyway, I can't remember if, I think Belt Collins was involved. I remember Greg Mooers was also involved as the applicant, but that did come to the Commission last year and was granted an SMA Permit for 5-acre lots. WATANABE: Thank you. Do we have any further questions for either the applicant's representative or the Director? Do you have anything else to add, Mr. Yuen? YUEN: No. I'd be happy to answer any more questions, but nothing else I need to say. WATANABE: Okay. Do we need to enter into, well, Mr. Lim, if that concludes your presentation I think we'll attempt to go into deliberation on Agenda Item 4. So you may be seated in this case. Yes, sir? WOODWARD: Do we need to close the hearing? WATANABE: I guess technically we do. You know, I would entertain a motion to that effect. WOODWARD: So move. RHO: Second. WATANABE: And second. All in favor of closing the hearing say aye? COMMISSIONERS: Aye. 15 WATANABE: Okay, then the hearing is officially closed. Okay, we have options now. We can discuss to some degree a little more about the particulars of Agenda Item 4. Again, let's focus on Agenda Item 4 first. Once we decide on that And I'm truly hoping that we will not punt. One way or another I'm hoping that we will make a decision, Yes, Mr. Woodward. WOODWARD: Mr. Chairman, I'm really not comfortable. I have not been comfortable with this, the Director's recommendation, from the beginning for a number of reasons that I have articulated in the past; and I'm not going to go over all of them again. But it comes down to, I think, a question of fairness on bow, what interaction there has been between the Planning Department and the applicant. And the fact that downzoning properties just You know, we're charged with generally reviewing people that are trying to put in new developments; and we really stick to our guns and I think we're very hardnosed about it; and they really have to show us that they're going to do a good job. But to downzone, that's an entirely different matter. And if Mr. Lim is correct this is the first time this is happening in eight years, I'm a little concerned about that. And so I do have those concerns. . WATANABE: Thank you. Any further discussion? Yes, Mr. Graham. GRAHAM: Just speaking to that very understandable concern that Commissioner Woodward brought up, I do remember when I was brand new on the Planning Commission which was in 2003 and in my first meeting over in Hilo was April, we had a very similar situation where an applicant was asking to extend the time conditions which had expired a number of years before. And being new to the process I remember asking at that time, well, if the applicant didn't complete his requirements, what is the current zoning of the property, is it the zoning that it used to be or is it the zoning that was given to him contingent on him completing the requirements? And Mr. Yuen went to explain to me at the time, he said it stays with the new zoning even though he didn't complete the requirements. However, he says, you know, I have the opportunity as Planning Director to return it to its original zoning or suggest a more appropriate zoning, but if I'm going to do this, I have to initiate a new bill, and it has to go before the Commission and the Council. And then he kind of challenged me, well, do you have a more appropriate zoning you think I should apply for, you know; and I said no, you know, I was just trying to understand the law of the land. So all I'm saying by that is even though he had not initiated a rezoning against the will of the applicant or something he did certainly make it public in my first hearing that that option was there for him to take and that if I had a suggestion he'd do it, would I please go ahead and make it. So it's not totally new terrain in that respect. WATANABE: Thank you. Any further comments? Well, I'm not trying to railroad this or anything. I too am having great difficultly with the taking. I think I've expressed my feelings at prior meetings. At the same time, like Commissioner Domingo, I had hoped that this could be worked out. Obviously it's not going to be worked out unless we somehow step in. But we can't do that until we decide on this and, or at least Agenda Item 4. And, you know, that's why I brought up some of these other issues with regard to satisfying the fair housing requirement, you know, obtaining the easements for the underground utilities, which was an attempt to satisfy one of the conditions within the change of zone. And also now I guess we have an additional commitment that was made by the applicant to the Kohala Water Company which will cost them in the neighborhood of $600,000, irrespective of how many homes they put up. That said, while 16 I'd like to see the downzoning, the density decreased It's my understanding that it's, the Commission does not have the power to initiate a downzoning request to say one acre or something like that. I will point out to you that Condition C does indicate that the limitations on the units were 50 and potentially that could be worked out to a lower number if the Commission as a body so desires. So, anyway, personally I'm not in favor of revoking. But that's just my feelings. Anyone else have any comments? Mr. Graham? GRAHAM: I want to take kind of an unusual turn here. This may be my last Planning Commission meeting. I've been on the Planning Commission all this time and I know we have some members like you folks who are expressing reservations who are, you know, more supportive of the developments in general than I have been and all. And it seems like one of the issues, and I think the public testifier kind of said that today, like maybe the public interest in general, you know, ask for open space and ask for lower density zoning, however, there is a negative impact to the owner of this property. So that it's sort of a, I mean, it seems to me sort of a balancing that needs to be done, and that Mr. Yuen in this case and in my own personal feeling in this case is that because the opportunity is here in the law for the Planning Director to act in favor of what he believes to be the community's interest and, you know, I'm inclined to also act on my vote on what's favorable to the community's interest yet you all are not. Can you elucidate a little more your feeling? Is it like you think that the private landowner's interest is more important than the community's interest, or do you think maybe the community doesn't really have that interest, or, you know, anything in that nature to help me understand a little more your feeling since it may be my last chance to get that. WATANABE: Okay. Well, let me recognize Mr. Woodard first and WOODWARD: Thank you, Mr. Chair. If I could address that. And that's why I was asking about how everything is zoned around there. And there are quite a few areas that are zoned half acre or one acre. You know, I think if there had been dialogue perhaps this could have been rezoned Ag, you know, 1 acre. But it sounded like a fait accompli that it was, you know, my way or the highway; and that's kind of what bothered me. You know, I think if there was a dialogue and, okay, you know, Mr. Lim says okay we can live with one acre, you know, we'll change it, and Mr. Yuen says okay, that's fine, I could live with that. But, you know, it's one side against the other with nothing in between; and that's what bothers me, that there has been no dialogue, there has been no attempt to resolve this, you know, in a mutually beneficial fashion. That's my concern. WATANABE: And if I might respond, this is how I feel about it. As we heard testimony this is the most extensive open area; and I traveled that road quite often while I served as branch manager out in Kohala so I'm familiar with that. It is, and there is a lot of opportunity for open spaces there that we can preserve that isn't currently zoned RS-15 or Ag-1 even. Maybe it should be 5 acres, maybe in some sections it should be Conservation. But we have that opportunity to preserve, yeah, significant shoreline vistas along that highway, Akoni Pule Highway, without infringing on the rights of any individuals, whether they were vested or technically aren't vested any further. It would be my hope that we could send a message that way that, to the Council, that says, you know, we really don't want to infringe on the individual's rights although we do recognize the public's right to some degree or desire, yeah. And if you 17 will recall, Mr. Lim indicated, and I hadn't done this calculation prior to this, but Mr. Lim indicated that actually you can put about 107 lots on the 20, what is that, 30, 37.88 acres. And actually that might be a little tight cause you need room for our infrastructure and all of that, and, you know, also as I understand there are gulches that traverse that property. So the entire area is not flat and buildable, yeah. And, indeed, from, so for argument's sake we're to say that oh, with an RS-15 zoning you could have done a 100 lots, then it was downsized by 50 percent to limit it to 50, arbitrarily. Okay? But even at that 50, to be perfectly honest with you, times have changed; and I'm not inclined to say go ahead and stay with the RS-15 and 50. I'm more inclined to negotiate to some lower density. Unfortunately, you know, whatever density we negotiate to, it won't be reflected by the actual zoning. But we have other methods of controlling the amount of density. Some of the conditions have already been agreed to, such as no second homes on the property, additional shoreline setbacks, public access which the public could actually gain. So I see it as a way for the public to win to some degree. Yes, the vistas in this area might be affected to some degree. How much frontage is that as a percentage of the entire length of Akoni Pule Highway all the way out to Kohala? Very small, I think. And so why would 1, in my view, why would I make a stand and affect private individual's rights when I have much more land to preserve vistas with. That's my point. GRAHAM: Thank you. WATANABE: Mr. Rho, you have something to add? I know you RHO: He was holding WATANABE: Oh, okay. Mr. Domingo. DOMINGO: Thank you, Mr. Chairman. You know, this really is a serious matter. And having been on the County Council for 20 years, and probably 18 of those 20 years I was the Planning Committee Chairman, if my memory serves me right, I have never even been able to entertain a motion to downzone; and if I had, I guess my senior moments preclude me from recalling if I did. But, you know, I can't recall having done that. You know, it has often been said that the General Plan is a bible of the whole planning process in our County. Everything we do hinges upon what is written in the General Plan and what is described in the General Plan. Okay? The decision made by the Council at this time and I wasn't on the Council at this time when this was considered, I think it was considered shortly after I retired you know, the decisions made were based on what the General Plan permitted uses were for this particular parcel. It was done in that manner. And within the Zoning Ordinance you'll find that, you know, there certainly may have been some strong considerations about the development of this area. Therefore, they initiated and conditioned upon the developer to address some of the concerns, you know. Having done that, the measure was adopted and passed and became law. Now, you know, I think as we make these kinds of decisions, you know, even each and every one of us as Commissioners, the decisions we make has a very lasting and a serious impact on the lives who owns those properties. And I refer mostly more specifically to the young individuals or couples or parents, more so than with developers. But this principle also applies to developers as well 18 because there's no one principle that you can apply for developers or a single individual. And that is, you know, the issue of integrity. If you say, okay, that's the way it's supposed to be, then you seal it with your signature and you stamp it, and it's an ordinance, it becomes law. Therefore, everything that is on that book is something that both parties must adhere to. Yeah? But when we, I wouldn't use the word arbitrarily, but when we think of trying to downzone a property of this magnitude then it becomes a real serious matter; and this is where I have strong reservations about, you know, supporting this initiative. Because in me I know it's wrong. You know, by law it's wrong. And it's morally wrong when you put individuals through the whole process of meeting requirements and paying, you know, paying water commitments and all of that and then you say to them, hey, look, we're going to take, we're going to take your zoning away therefore you will not be able to develop it as was decided, you know. And that's where I have a problem, too, Mr. Chairman. WATANABE: Thank you. We haven't heard from you, Mr. Rho. RHO: I just wanted to say a few things. One is I agree time has passed, and we have a requirement or at least a timeline requirement for these projects. And during my short time on the Commission my recollection, and I have repeated senior moments nowadays, is that we always or have allowed these time extensions because we generally feel that the developer or the private individual with that 15,000 square feet lot or that 10,000 square feet lot with a home on it, etc., etc. is entitled, should be able to, we should give them the benefit of the doubt, etc., etc. So in general my general feeling is that the Commission will bend over backwards to protect the individual's rights. I don't have any problem with that. I think that's the way to be. But there is or there must be a reason for these timelines. And I think I know why the timelines are there. So when it comes to some of these issues that have come up I have a very difficult time allowing or saying, okay, I can go with extending the timeline. Times have changed, the developer in this case knew what the timeline was. I think the community should have objected to this change, this SMA and whatever, whenever it came up. But we didn't have foresight then, and maybe now as a community we have more foresight, more information, more knowledge, etc. So I'm sympathetic to the developer; but at the same time the community good with this Director's proposed change I think overwhelms the developer's need to keep the zoning. We just basically did the same thing in different ways, different wording, to the Kona Scenic, and I remember that's Kona Scenic, Kona Scenic that Highway Bypass thing. We promised that community that, nobody denied that we didn't promise them, that we wouldn't run the road through their property. But today we, because of circumstances and for me personally because of greater community good, I voted in favor of reneging on that commitment to that small community, 100 homes, to run the highway or run that roadway. Hopefully it will be safe because it's only up hill and it's only temporary. So, you know, I don't buy this thing where once it's done, once it's voted upon, it has to stay that way because that person or that group is entitled to it. Times change, attitudes change, the needs change. So my last little comment - If we had this kind of foresight a long time ago, and I mean a long time ago, we wouldn't have Alii Drive, makai Alii Drive, looking like it is today. I don't care 19 that the lady today said it looks beautiful. It does not. We have development everywhere along that Drive; and there will be pressure to develop from that new Bypass Highway. I don't care that we say, oh, well, we want it in preservation or whatever. There's going to be tremendous pressure to develop that, along that Bypass Highway. Anyway, I really think that the Commissioners should really look at supporting this, the Director's recommendations, for this specific area for the greater community good. Thanks. WATANABE: Okay, Shelly? OGATA: I guess my question at this point would be is there any possibility of some kind of a compromise from the RS-15 to the RA whatever it is, RA-5. Is there any middle ground that can be reached? Cause I share both sides of the issue and I'm just wondering if there's any WATANABE: Let me take a stab at that, Shelly. OGATA: Okay. WATANABE: The Commission, the Planning Commission, as I understand it, does not have the power to initiate a zoning change. There are other zonings, like say RA-1 or RA-2, that could possibly, you know, act as a compromise. But the Commission on its own does not have the power to initiate any zoning change. We do have to one way or another respond to the Director's initiation for revocation; and the deadline is today. I mean, it has been extended by way of the Director allowing it to be extended. We do, however, have an opportunity as a Commission to, again, we're not going to do any approvals but we do have an opportunity as a Commission to suggest and recommend other conditions. And one of those conditions might be a limit on the units which, in effect, would have the same affect or nearly the same affect as rezoning to Ag-1. For example, if you had it at Ag-I with 37.88 acres and allowing for the setbacks and the infrastructure and etc., maybe you could squeeze in, you know, between the gulches and everything, 30 units into that. So you would have an approximate same effect. The problem with still having the RS-15 is technically the developer could go in there and make 15,000 square foot lots all in a bunch and, you know, there would be no view corridors at that point. But I would venture to guess that the developer is not interested in creating a pod with common areas, large open space common areas. So the developer is going to subdivide the lots to larger lots anyway, and it's going to become RS-1 or I %2 or whatever; and, you know, potentially in the northern section where it's Extensive Ag, maybe that's the side that the developer may choose to place larger lots there. But we don't have, as I understand we don't have the ability to initiate, again, change of zone. But fortunately for us Condition C did have a unit, 50 units in there as a constraint and we are, you know, if the applicant's representative is willing, able to negotiate on that basis. I hope I answered your question. But it doesn't appear as though any type of negotiation between the applicant's representative and the Director will occur; and we're out of time. LIM: May I make a statement, Mr. Chairman. I guess, you know, we're kind of stuck, in terms of the applicant's side, we're stuck. We can initiate a zoning amendment or an amendment to an SMA Permit, but we can't do that without the Director's cooperation. 20 WATANABE: Well, I understand that, Mr. Lin; but on the other hand I think you would rightfully be leery of initiating that, not knowing whether it would pass or not. So if you would allow us, you know, maybe we can work this out as best we can. It doesn't appear as though we have the votes. So it seems like we're going to punt anyway on Item 4 anyhow; and then we can discuss this further when we discuss Agenda Item 5, which would be yours. And at that time, like 1 pointed out earlier, the applicant has the, there's no argument about that, the applicant has the right to extend the time; and we could do this in conjunction with the SMA Permit. However, I would encourage us to, you know, entertain further discussions today so at least when Agenda Item 4 goes up there's a little more documentation as to where this body might be headed or leaning and why? And so maybe that would be I'm not suggesting that you, I appreciate your volunteering that, but I'm not suggesting that you needed to initiate any change of zone. Would you, Shelly, share with us your feelings? OGATA: No, no, at this point in time based on what I've heard thus far I'm not inclined to agree with the Director's position. So WATANABE: Okay. Well, we've heard from all of the Commissioners and we heard from the applicant's representative and the Planning Director. I would entertain a motion. I don't suspect that motion would carry, but at least that way we could, you know, put it to bed and we'll, you know, we'll have to send it up as whatever turns out turns out. So I'd entertain a motion at this point. DOMINGO: Mr. Chairman? WATANABE: Yes. DOMINGO: Regarding Planning Director's initiative, Rezoning No. 07-000067/REZ 866, with the initiation of a change of zone for 37.88 acres of land from a Single-Family Residential 15,000-square foot (RS-15) to a Residential and Agricultural 5-acre (RA-5a) district, I move that we send an unfavorable recommendation to the County Council. WATANABE: Is there a second to that motion? WOODWARD: Second. WATANABE: Okay, it has been moved and seconded; and I believe we've all kind of expressed our views on this. So I doubt that any further discussion is needed. Mr. Darrow? DARROW: For clarification, we are on Agenda Item No. 4. Agenda Item No. 4 has two items. Is this for both items? WATANABE: Oh, very good. Mr. Domingo, you're in reference to both items meaning No. 4.a. and No. 4.b.? Because No. 4.b. it references the repeal of the Ordinance 97-102 which we-. It's one in the same really. 21 DOMINGO: Yes. WATANABE: Would you kindly include that? DOMINGO: I would include that. WATANABE: As a friendly amendment? DOMINGO: Yes, I would include that. WATANABE: Thank you. WOODWARD: I agree. WATANABE: Okay, thank you. It has been seconded. Yeah, so Mr. Darrow, we have a motion to send an unfavorable recommendation on Agenda Items 4.a. and.b. to the County Council. DARROW: Thank you, Mr. Chairman. With that I'll take the vote. Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Woodward? WOODARD: Aye. DARROW: Commissioner Graham? GRAHAM: No. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Rho? RHO: No. DARROW: And Mr. Chairman? WATANABE: Aye. DARROW: The motion does not pass four to two. 22 WATANABE: Okay, that takes care of Agenda Item 4. Because we are out of time, that means procedurally this goes up with a negative recommendation to the County Council. The discussion ended at 6:06 p.m. Respectfully submitted, /s/ Sharon M. Nomura Sharon M. Nomura, East Hawaii Secretary ATTEST: /s/ Noriko Sauer Noriko Sauer, West Hawaii Secretary 23 PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT DECEMBER 12, 2007 A regularly advertised hearing on the applications of Initiator PLANNING DIRECTOR and Applicant KOHALA LLC (REZ 866/SMA 379) was called to order at 9:20 a.m. at the Waikoloa Beach Marriott Hotel, Alii I, 69-275 Waikoloa Beach Drive, Waikoloa, Hawaii, with Chairman William Graham presiding. PRESENT: William Graham ABSENT & EXCUSED: Andrew Iwashita C. Kimo Alameda Takashi Domingo Shelly Ogata Alvin Rho Rene' Siracusa Rodney Watanabe Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Christopher Yuen, Planning Director And approximately 11 people from the public in attendance. INITIATOR: PLANNING DMCTOR a. Continued hearing on the Planning Director's initiation of a Change of Zone (REZ 07- 000067) for 37.88 acres of land from a Single-Family Residential 15,000-square foot (RS-15) to a Residential and Agricultural 5-acre (RA-5a) district. b. Continued hearing on the repeal of Ordinance No. 97-102 which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5a) to a Single-Family Residential 15,000-square foot (RS-15) district. C. Continued hearing on the revocation of Special Management Area (SMA) Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved, owned by Kohala LLC, is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua l't, North Kohala, Hawaii, TMK: 5-9-1:8. APPLICANT: KOHALA LLC (REZ 866/SMA 379) a. Continued hearing on an amendment to Condition C (time to secure final subdivision approval) of Change of Zone Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5a) to a Single-Family Residential 15,000-square foot (RS-15) district. 1 EXHIBIT A b. Continued hearing on an amendment to Condition 4 (time to secure final subdivision approval) Special Management Area Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua I", North Kohala, Hawaii, TMK: 5-9-1:8. GRAHAM: The first item on our agenda today is a three-part item, initiated by the Planning Director, and it has a relation to Item 2 where the application is Kohala LLC. The first item initiated by the Planning Director - these are continued hearings in both Items 1 and 2 - the Planning Director's initiation is for a change of zone on 37 acres of land from Single-Family RS-15 to Residential and Agricultural 5-acre, which is RA-5. The second part of that is repeal of Zoning Ordinance 97-102 which rezoned the same parcel of land from Ag-5 to Single-Family Residential RS-15. And the third part of the Planning Director's initiated agenda item is also a continued hearing on revoking the SMA, Special Management Area Use Permit No. 379, which allowed a development of a 50-lot single-family subdivision on this same piece of land. The piece of land is owned by Kohala LLC. It's located along the makai side of Akoni Pule Highway and the Kohala Ranch Subdivision; that's in Ahupuaa of Kahua 1, North Kohala, Hawaii. The second item of business, which I'm going to put forth right now because I think we're going to for the most part handle the two of them concurrently, is an application by Kohala LLC. It also has been continued from prior meetings. It's asking for an amendment to Condition C, which is a timing condition to secure final plan (sic) approval; that amendment is to Change of Zone Ordinance No. 97-102, which rezoned the same parcel of land we were speaking of, 37.88 acres, from Ag-5a to Single-Family Residential 15,000-square foot, which we call RS-15. And the second part of Kohala LLC's application is a continued hearing also on an amendment to Condition 4, another time related amendment, time to secure subdivision approval, and that's related to Special Management Area Use Permit No. 379, which allowed the development of the 50-lot single-family residential subdivision. And again we're speaking of the same piece of property I spoke to before in North Kohala on the makai side of the Akoni Pule Highway across from the Kohala Ranch Subdivision. We have communications on these items, both from the Planning Director and the attorney for the applicant. We have one person signed up to speak from the public today. And before we do any of that, Jeff will give us a little background on both of these items. Jeff? DARROW: Thank you, Mr. Chairman. Good morning, Members of the Planning Commission. Usually we do give a brief background on this particular application, but I've been asked to defer this to the Planning Director. I just wanted to bring to your attention that we have received also a correspondence this morning from, which is dated December 11`h as well as August 30, 2007, these are two letters and they are from different parties, six different parties that are listed on the letters. These appear to be support letters for the Planning Director's action. If I could defer this to the Planning Director at this time. GRAHAM: All right. Mr. Yuen? YUEN: Good morning, everybody. The short story is that the applicant has asked for deferral of any action today, and I have written a letter which was put out yesterday and 2 EXHIBIT A should be on your tables, I hope that you've gotten, where I suggested that action be deferred until the January 11, 2008, meeting which is the next West Hawaii meeting. I can then give a little longer background on where we are and what is in front of the Planning Commission here. So just briefly There was a question? Yes? WATANABE: Yeah, I GRAHAM: Commissioner Watanabe, you had a question? WATANABE: I'm wondering if, I understand what is going on, but I'm wondering if it's going to help to expand upon the discussions or lack of discussions that have gone on between the applicant and the Planning Department. GRAHAM: I think we should, personally I think we should just go ahead with Mr. Yuen's commentary now, and then once we have everything spoken, we can, you know, discuss more on where I think you might be coming from, if that's okay. WATANABE: Okay. GRAHAM: Go ahead, Mr. Yuen. YUEN: Okay. What this, to start with the beginning, in 1997 there was an application, this is, concerns the 38-acre property on the North Kohala shoreline, roughly across from the entrance to the Kohala Estates Subdivision. It was, in 1997 at the landowner's request, it was rezoned from Agricultural 5-acres to Residential 15,000-square foot lots. At the same time the Planning Commission approved an SMA permit which would allow a maximum of 50 lots to be developed there. The rezoning ordinance and SMA permit both had time conditions requiring that final subdivision approval be obtained within 5 years; that would have been July of 2002. There was a provision for one administrative time extension in that, which would have been July of 2007. No request for the administrative time extension was actually made, and no plans for either for preliminary subdivision approval have been submitted. So naturally, final subdivision approval was not obtained. In late May 2007, I initiated a revocation of the SMA permit and an ordinance which would change the zoning essentially to what had been before, which would be RA-5a, which is 5-acre minimum lot size. Shortly thereafter the applicant initiated a request to extend the time on the SMA permit and on the rezoning. So what the Planning Commission has in front of it is two of these related actions. And the extension of time on the zoning would have to go, or the change of zoning, both of those eventually would have to be decided by the County Council; the Planning Commission provides a recommendation to the Council on those. The SMA permit, the Planning Commission would make the final decision on either extending time or revoking it. However, if the Planning Commission extended time on the SMA permit and the Council changed the zoning, then the SMA permit would become void because of inconsistency with the zoning. GRAHAM: Yes, Commissioner Siracusa? SIRACUSA: And if it was the other way around? GRAHAM: The Council only takes action on the zoning. 3 EXHIBIT A SIRACUSA: If that condition, situation was reversed? YUEN: Yes, if the Planning Commission revoked the SMA permit and the Council continued the current zoning, the applicant would have to come in for a new SMA permit. GRAHAM: Okay. Any further questions of Mr. Yuen? All right. Jeff, did you have anything further to give on your presentation? DARROW: That's it. Thank you. GRAHAM: Okay. I think we have probably a few comments from Commissioners, we also have a public testifier, and of course we'll have the applicant, Mr. Lim, come forward before we go anywhere with this. So my question is just how do we sequence that. TORIGOE: Public testimony. GRAHAM: Pardon? TORIGOE: Public testimony. GRAHAM: Okay. Maybe good to take the public testimony at this point since we've kind of heard from Mr. Yuen exactly where we stand and what's at stake here. I have a Gail Byrne signed up to testify. If you could come forward, Gail. BYRNE: Good morning. GRAHAM: Thank you. Could you-? BYRNE: Do I need to hold this, or am I DARROW: Yes. BYRNE: Okay. GRAHAM: Could you raise your right hand, so I swear you in first? BYRNE: Sure. GRAHAM: Do you swear or affirm to tell the truth on this matter before the Planning Commission today? BYRNE: Yes. GRAHAM: Thank you. BYRNE: Thank you. 4 EXHIBIT A GRAHAM: Then we'll hear your testimony. And when you start, just give your name and address, so it's on the record for us. BYRNE: Sure. GRAHAM: Thanks. BYRNE: And I'll keep it brief 'cause it looks like it's going to be deferred to January. So we'll come back in January; and there will be other representatives here from the organizations I'm, that also signed this testimony. My name is Gail Byrne, and I'm representing Malama Kohala Kahakai as well as five other non-profit organizations in Kohala. And we testified and submitted testimony at the August Planning Commission and supported the Planning Director's actions to repeal Ordinance 97-102 and to revoke the Special Management Area Permit 379. We also asked at that time, and we continue to ask, for a change of zone to at least Ag 20a; and there is really strong basis for that. In brief, there is over 30 years of State and County resolutions, Community Development Plans, and community petitions have called for this coast to be zoned Open and Conservation. Coastal zoning of Ag-5a has never been aligned with what the community has wanted for this shoreline and it's very well documented history. I think I provided that in August, over 30 years of work regarding that. RA-20 is more aligned with the long-standing documented work of the community. You know, most significantly, as I understand it, this applicant doesn't meet the conditions for a time extension. The conditions and contexts under which this application was initially approved have changed. This project is not consistent with the present and past General Plans, it is not consistent with input received from the community during the recent readiness process for the North Kohala Community Development Planning process that's undergoing, and it is not consistent with draft recommendations that are coming out of the focus groups up there, which are calling for a rezoning of the State coastal lands to Conservation, finally getting to what the community has asked for over 30 years. So they list some other reasons why RA-20 is valid here; I won't go into this again. We'll be back in January. I just want to thank you for your time this morning. GRAHAM: Thanks, Ms. Byrne. Do we have any questions for the testifier from the Commissioners? SIRACUSA: Yes. GRAHAM: Commissioner Siracusa? SIRACUSA: You mentioned that you were representing, I believe, five different groups. Could you tell us what those groups are? BYRNE: Sure. They are listed on the back of the, I don't know if you've got a copy; I brought in copies this morning for everyone. The organizations, I'm with Malama Kohala Kahakai; there's Maikai`i Kamakani `O Kohala, Kamakani `O Kohala Ohana, the Kohala Historic and Cultural Preservation Group, Malama Na Wahi Pana O Kohala and Hui Lihikai. 5 EXHIBIT A SIRACUSA: Thank you. BYRNE: Yeah, and together these organizations represent nearly 400 families in North Kohala. Thank you. GRAHAM: Thank you. Yes, Commissioner Alameda? ALAMEDA: Thank you. Thank you for your testimony. You also mentioned that there is a group of Kohala residents that are in process of planning for what they would like to see in Kohala. What group is that? BYRNE: Yeah, we are, there's a, the County has initiated Community Development Planning process in North Kohala, like the one that's going on in Kona and Puna. So we're in the midst of that right now. ALAMEDA: Okay, thanks. BYRNE: Thank you. GRAHAM: Anything further? DOMINGO: Mr. Chairman? GRAHAM: Commissioner Domingo? DOMINGO: I'd like to ask our staff a question. Is this particular area, what its General Plan for? DARROW: The General Plan for this particular area at this time is Low Density Urban, Extensive Agricultural and Open; all of these three designations affect the property. More specifically the Open designation is along the coastline, the Low Density Urban affects the southern portion of the property, and a portion of the northern piece of the property is Extensive Agriculture. DOMINGO: When was that General Plan adopted? The provisions of this, the part that is directly applicable to this parcel? DARROW: I'm not sure when the first date was, but I do not think it was amended on the last General Plan. So it was in effect at least from 1989 is my understanding, and even, could be even further. DOMINGO: So then if the zoning is consistent with the General Plan, then the statement that this project is not consistent with the present General Plan is erroneous, huh? DARROW: I believe that it was Is that the Community Development Plan or the General Plan? DOMINGO: It refers to the General Plan. 6 EXHIBIT A DARROW: I think it's referring to the element, the natural beauty element. Is that correct? So it's referring to the actual element of natural beauty, not so much the LUPAG designation. GRAHAM: Commissioner Domingo, would you like the testifier to explain a little bit why she said that? DOMINGO: Yeah, that'll help. BYRNE: Sure. The Community Development Plans are a component of the General Plans to help implement the General Plans, and the recommendations of the 1983 Community Development Plan were to zone the entire coast Conservation/Open. There have also been joint resolutions out of the State Legislature asking for the same. And the Planning Commission in the past has actually supported similar initiatives. So I guess it's a matter of interpretation, but certainly Development Plans in the past were recommended now. DOMINGO: Yeah, it seems like you mentioned that in 1983 all the ongoing discussions indicated that you folks wanted to have it Open and into 20-acre Ag, yeah? But somehow that suggestion on that part of your Community Development Plan was not followed and not implemented because the Planning Department has not up to this moment even changed the General Plan. So I'd just like to make that clear. BYRNE: Uh huh. DOMINGO: Okay? GRAHAM: Thank you. Any other questions for the testifier? Yes, Commissioner Alameda? ALAMEDA: Sony. I'm interested in this Community Development Planning process 'cause that in a nutshell will kind of give us one idea of maybe where the community is headed in their thinking, yeah? Are you an active participant of that Community Development Planning process? BYRNE: In one of the focus groups, yeah. And I attended most of other meetings. ALAMEDA: Okay. Does it feel like it's collaborative and there is, you know BYRNE: The community up there is very special; in North Kohala they are immensely involved in what's going on. Chris can probably speak to that a little bit, and certainly the planners from the County that are involved in that. There're focus groups in Kona and South Kohala and Puna; their groups focus on certain issues and they make recommendations to the general steering committee, and often they meet with their consultants. But folks in North Kohala are so, care so deeply about where they live and really want to make a difference, and they have really stepped up to the plate, and they have really in the last 30 years. But they meet regularly, almost weekly, not just with, when the consultants are there. You'll 7 EXHIBIT A find in other processes they tend to meet just when the paid consultants are there. So they are doing a ton of work on their own. ALAMEDA: Okay, good. Very good. Thank you. DOMINGO: Mr. Chairman? GRAHAM: Yes, Commissioner Domingo? DOMINGO: I commend the efforts of you and those in the community in keeping a sharp vigil on what's really happening in a way of development in the North Kohala, and I think it would be nice if all the communities throughout the island would do such a thing; and then we would know that the growth and development is happening according to what the community actually all want. But I think in this particular case, as you indicated, that the Development Plan should be reflective of the General Plan. And unfortunately at this time in your deliberations, the General Plan and what's in the General Plan and what you say now, I feel personally, contradicts, somewhat contradicts each other BYRNE: Yeah, we've been very frustrated by that. Not just me but people for decades. I mean last time I brought in a stack of petitions dating from 2002, 2000 and 1988, asking for different zoning, but they, you know, whatever reasons there have been different decisions made regarding that. DOMINGO: Uh huh. Thank you very much. BYRNE: Thank you. GRAHAM: All right. Planning Director Yuen? YUEN: Yeah, just for the sake of the Commission, we are having a presentation tomorrow morning by staff working on the various Community Develop Plans. So we can talk about the update of that. It's mostly a procedural thing, just to let you know how it's going. GRAHAM: Thank you. Is there anyone else from the public who would like to speak on this matter today? DOMINGO: Mr. Chairman? GRAHAM: Yes, Commissioner Domingo? DOMINGO: Just one simple question here, probably to the Planning Department staff. Have there been any attempts to change, amend the General Plan to reflect what the community actually wants to accomplish with regard to the entire North Kohala coast? Have there been any applications or any requests for that consideration be made with regard to changing that portion of the General Plan? GRAHAM: Mr. Yuen, maybe you could best address that? 8 EXHIBIT A YUEN: In the General Plan update that was started in the late 1990s and finally passed in 2005, I don't believe that there were any specific changes to the General Plan maps involving the coastal areas. I would like to say, though, that although the General Plan may have an area as an Urban area, some kind of Urban designation, that the Planning Commission, the County Council and the Planning Department still have to make a site specific judgment as to whether that property should in fact be zoned for some kind of Urban use. The General Plan maps are taken on a broad scale; they show the general locations of uses and do not generally when you adopt the General Plan map, you aren't looking at all the factors that may affect the actual usability or desirability of the property for a particular use by drainage, historic sites, viewplanes and the like. So there is still that analysis that has to be made on the zoning level and on the SMA level by the Planning Commission and the Council. GRAHAM: Thank you, Mr. Yuen. DOMINGO: Mr. Chairman, Mr. Chairman? GRAHAM: Yeah, Mr. Domingo. Remember we do have a ways to go on this. We're going to hear from the applicant, then we're going to discuss, so DOMINGO: Yeah, I understand, but you know, I'd just like to lay foundation for me GRAHAM: Okay. DOMINGO: And make it clear as to where I'm coming from. And I think with regard to having a workshop tomorrow, I think it's good and I hope that people from the community would come and listen to try to understand what the process is like; because there being no request for any kind of General Plan amendment in this North Kohala coast indicates that somewhat there might be misunderstanding of what can be done and what would be done in the best interest of what the people actually want. And you know, it's not like the Community Development Plan would actually drive the whole force, but as we've been often told the General Plan is a document, is a general document, and the Development Plan as we consider, decide on more finer and detailed development of a particular area is done through the Community Development Plan. And you know, I think where we need to make the initial changes would be at the General Plan review. And this particular case, it was mentioned that the Planning Commission and the Council and the Planning Department would decide where the finer boundaries of the development would be allowed, when you consider Urban and Ag and all of that. But you know, that not being done, when any particular application comes before the Council or the Planning Commission, in essence by default the decisions that they make is a statement of policy which would designate the proper use for that particular area based on what the General Plan speaks. And you know, if the General Plan is broad and the LUPAG map indicates a certain use for that particular land is such that it would be Rural, Ag or whatever, then the question is how far do we draw the line. And that line, the specific line, is not being drawn at any time by the Commission, the Planning Department nor the Council. So when anyone comes with an application for any kind of development before the Planning Commission or the Planning Department, the Planning Department looks at that, and looks at the LUPAG map, and they at that time initially would indicate, you know, this falls within the general context of what the General Plan is saying. So what actually happens is that the Planning Department then processes that application, and the Planning Commission in turn would recommend approval or 9 EXHIBIT A denial of that; and with any application that is done in the advisory capacity, and it's sent up to the Council with the Council making the final determination. And with any zoning or General Plan amendment or whatever land use issues and decisions you have to make, the final decision makers would be the County Council. So what we discuss from time to time and we reference to is something that is acted upon officially and is made law through ordinances, and that, which we must follow. So you know, that's my understanding of the whole process in brief, and I just wanted to make myself clear as to what, how I'm looking at it. It all depends, it all starts with the community coming together and deciding what they want for that particular community, and that has to be effectuated through the amendment of the General Plan, and then you follow up with the Community Development Plan or some specific issues if you want concerning a particular parcel. Thank you, Mr. Chairman. GRAHAM: Okay. Could the applicant's representative come forward, please? Good morning, Mr. Lim. Yes, please. Do you swear or affirm to tell the truth on this matter today before the Hawaii County Planning Commission? LIM: I do. GRAHAM: Thank you. And could you start with your name and address, and give us whatever presentation you would like? LIM: Sure. I'm Steven Lim representing Kohala, LLC, with the Carlsmith firm at P. O. Box 121 in Hilo. Basically what we are here for is, you know, we had an exchange of letters - I think the letters will speak for themselves - we obviously have a disagreement over, you know, how to interpret what happened. But I think, let's move past that, I would like to respond to the proposed date that the Planning Director is giving of January I Vb. I think what we are trying to accomplish - and you understand, I think, that this is a very serious matter for the landowner. We believe that it's an unprecedented action - I'm sure the Planning Director disagrees - but you know, we're looking at it, we are the ones in the gun sights right now. So what we are trying to do is to see if we can establish a procedure by which the applicant and the Planning Director will have time to prepare their legal memoranda, submit their proposed Findings of Fact, Conclusions of Law, Decision and Order, and then have the Commission have enough time to review those; and then we come back for a public hearing in which you would hear our arguments under Chapter 91, which with your review of the transcripts would then qualify all the Planning Commissioners to vote on the matter. That's our intended goal. I, you know, the Planning Director's proposed continuance to the date of January l lth doesn't let us do that. So what I was proposing, I would like to propose, is that the Commission adopt the following schedule: We would have the Kohala LLC legal memoranda and their proposed Findings of Fact, Conclusions of Law, Decision and Order submitted to the Commission and the Director no later than February 8`h of this next year 2008; by Thursday (sic), February 29`h, which gives them almost a month, the Planning Director would submit any legal memoranda or any proposed Findings of Fact, Conclusions of Law, and Decision and Order that he wishes to propose - we still agree that the Planning Director's background and recommendation can serve as that, if he wants to; by Friday, March 7, 2008, Kohala LLC would submit any rebuttal memoranda or comments on the proposed Findings that the Planning Director submits; and then we come back for the, what I believe to be the Planning Commission's March 20, 2008, hearing in Kona; at that point we would argue the proposed Decision and Order, and the Planning Commission could then start to take final action on the matter. I think that gives everybody 10 EXHIBIT A enough time to prepare their legal memoranda and their proposed Findings, and that gives the Planning Commission something in the neighborhood of two weeks till, before the hearing to happen everything in front of you rather than have it two or three days, you know, like as often times happens. So that's our request. GRAHAM: Thank you, Mr. Lim. I missed the last meeting that we had where this was brought up, but I do remember back in, I think it was the August meeting that I chaired, at that time I thought the way we left it was that you needed to get some additional documents from the Planning Department, so that you could prepare your Findings of Fact, Decision and Order at that time. Have you gotten those documents that you need or LIM: Yes, we believe we have gotten the documents. Planning Department staff has asked us for a list of the documents that we did get, so we're going to prepare that for them. GRAHAM: Okay. I think I also asked Director Yuen at that time if he could provide some written reports on the nature of the flooding that went on apparently at some point after the earthquake and left a lot of sedimentation along the coast in that area. Have you been able to chase them down at all, Mr. Yuen? YUEN: Yes, we have that and we can have that before the Commission when they take this up on the merits. GRAHAM: All right. YUEN: We can have that well in advance. There isn't, well, they are somewhat informal; some of that are by lengthy emails that were done by people with the Division of Aquatic Resources. But we can have that, and naturally of course we would copy to Kohala LLC. GRAHAM: Do we have any other questions from the Commissioners of the applicant's representative? Commissioner Alameda? ALAMEDA: I have one for the Director, if it's okay now. GRAHAM: Sure. ALAMEDA: I've heard the pros of why we should maybe abide by Mr. Lim's request. But what will be the cons? YUEN: Well, in thinking about this, it's an extremely long time to deal with the matter. However, let me make a suggestion. There's actually two different items here: One is the rezoning and the other is the SMA permit. The Planning Commission is advisory on the rezoning that ultimately goes to the Council for final decision; there is no reason to keep that here. There is no requirement of Findings of Fact, Conclusions of Law, etc. in a rezoning because it's not an administrative permit that has these formal requirements. I would suggest that the Planning Commission take up the matter of the rezoning on January I Id, try to come to a recommendation that it takes to the Council on both Kohala LLC's request and the Planning 11 EXHIBIT A Department's alternative. And if the Planning Commission is not able to come to a decision on that by a 5-member vote, there is, the procedure under the ordinance is that the Commission has 60 days to make a recommendation to the Council on a Director initiated rezoning. And my suggestion is that - and depending on whether you count that there was a period of a voluntary deferral by the parties, which I would not count against the 60 days, however, this rezoning is supposed to move up from the Planning Commission to the County Council within the timeframe - so my suggestion is that we, the Commission act on that on the January l la' meeting, and if it is not able to act on it, then that would move up to the County Council. I have certainly no objection as well to the rezoning request from Kohala LLC also moving up to the Council at the same time. And then following the suggestion on the schedule for the SMA permit, which in any event is only valid if the Council enacts Kohala Kohala LLC's request for an extension of their SMA permit is only valid anyway, if the Council does rezone the property. GRAHAM: Mr. Lim, do you have a response LIM: Yeah, obviously we have an objection 'cause it accomplishes the same thing; it forces us into hurrying up. I mean that was the whole point of my last letter is I'm trying to give the applicant an opportunity and a fair opportunity to the Planning Commission to review all the legal arguments and make a reasoned decision on both matters. I think everybody recognizes that this change of zone and the SMA permit are intertwined, and to send one up without the other is nonsensical to me. We would object to that. GRAHAM: All right. Commissioner Watanabe? WATANABE: Yeah, I have a question for Ivan. Now the Rules as far as if we cannot arrive at a majority decision for a change of zone, then it implies that we send up a negative recommendation. Is that correct? TORIGOE: Right. If you look at your Rule 11-3(c), which is consistent with the Zoning Code, there is actually a couple of things going on: If you have the Planning Director initiated one and if you look at Rule 11-3(c)(13), it says that within 60 days after receipt of the amendment, then the Commission shall transmit the proposed amendment with its recommendation to the Council, and in the event the Commission fails to act on the amendment within the 60-day period, such inaction shall be considered as unfavorable recommendation by the Commission. You also have the request by the applicant for an extension of time, the amendment to Condition C of the change of zone ordinance, that would also be handled as an amendment and there is a, as you know, most of the time amendments are initiated by property owners; and your Rule 11-3(b)(2) says within 90 days - it's a longer period - after receipt of the application from the Director, unless a longer period is agreed to by the applicant, the Commission shall transmit the proposed change of zone ordinance together with its recommendations; and similarly in the event that the Commission fails to act on the application within the 90-day period, the application shall be considered an unfavorable recommendation. So in either the property owner initiated or the Director initiated, if you fail to act within the prescribed period, then it goes up with a default negative recommendation. I want to note this one thing - and this is probably something that the applicant and the Director may want to respond to or give some recommendation on - there is a difference. As I noted, for the property owner initiated ones, it says that's 90 days unless a longer period is agreed to by the 12 EXHIBIT A applicant; for the Director's one, it just says within 60 days after receipt, and does not contain the same language that talks about, you know, a longer period being agreed to by the applicant. Exactly what that means, I don't think we ever dealt with that, but it's an issue that I invite the parties to address when we get to argument on the merits. WATANABE: Follow-up. GRAHAM: Yes, Commissioner Watanabe? WATANABE: Okay. I don't know if I'm reading this correctly or not, but we have two opposing proposals here: one from the applicant to extend the time and another from the Planning Director to rescind. And if we are unable to come to a majority decision on either one, then it implies that we will not have a majority decision on the other. But the Rules state in both instances that a negative recommendation is then forwarded to the County Council, and the negative recommendation in each situation will nullify the other. It's you see what I'm driving at? It doesn't make sense. You know, so unless we decide here, it's a nonsensical circular argument. GRAHAM: All right. Is it all right if I have Mr. Yuen respond? WATANABE: Please. GRAHAM: Go ahead. YUEN: There isn't any way around that. If you have contradictory applications and there isn't a majority vote by the Planning Commission, they will both go up with a negative recommendation. We have had, as you know, quite a few matters go to the Council with a negative recommendation due to the failure to obtain five votes by the Planning Commission either for or against the application. So we do, we transmit it to the Council with a transcript of what happened, we tell the Council what the vote was, and it does formally go up as a negative recommendation. We try to explain, we send the Planning Director's recommendation on it, so the Council has something to work with. So there really is no way around that, if the Commission does not have and in this case where there are two contradictory proposals for the same piece of property. GRAHAM: Yes, Commissioner Domingo? DOMINGO: Mr. Chairman, where are we on the time clock with regard to the submittal for the down zoning to the Planning Commission? GRAHAM: Mr. Torigoe, could you explain that sort of as concisely as possible? TORIGOE: Well, I think it's kind of a matter of calendar; it depends on when the transmittal was to the Planning Commission from the Director. DOMINGO: So Mr. Torigoe, that means that being that it's a Planning Director's initiated measure, and if we pass the 90-day mark, then it would automatically go up to the Council with a negative recommendation; that's what I understand 13 EXHIBIT A WATANABE: Sixty. DOMINGO: Sixty, 60 days. So that would be forwarded to the Council with a negative recommendation by the Planning Commission. TORIGOE: Right. That's essentially what the rule says. DOMINGO: Okay. So you know, I think the critical question of the matter is where are we on the time clock. HAYASHI: Okay. The GRAHAM: Mr. Hayashi? HAYASHI: The Director's recommendation was forwarded to the Planning Commission on July 11th. So that's the date that you have received it. That being the case, if you take 60 days, then action should have been taken by September 11`h. GRAHAM: Thank you, Mr. Hayashi YUEN: Let me, let me lay out what the issue is here GRAHAM: All right. Mr. Yuen. YUEN: And I do think that in this case I would turn to the Planning Commission's counsel to tell us the proper legality of the procedure. The issue that counsel is raising is whether the, clearly under the - and the ordinance, by the way, the ordinance is the same as the Rules; the Zoning Code has the same procedure as the Planning Commission Rules - clearly under both the ordinance or the Planning Commission Rules, when an applicant landowner initiates a change to the Zoning Code, the applicant landowner can consent to the Planning Commission keeping the matter there beyond 90 days and not sending it up to the Council. The rule does not, both the rule and the ordinance don't expressly say that of a Planning Director initiated amendment. For the record, my view is that the Planning Director can consent to keep a matter at the Planning Commission beyond the 60 days. And again for the record, I would consent that this matter be kept at the Planning Commission for action at the January 11th meeting. I would not consent to a time period beyond that. There is also sort of a subsidiary question of whether you count periods of a voluntary deferral against the 60 days or 90 days. My view is that you it's not really that critical because, as I said, either the Planning Director can consent to extend the time beyond the 60 days or not; if the Planning Director can, then I would, as I just said, consent to extend it to January 11th for the Planning Commission to consider this and, to consider the rezoning aspect of it and make a decision on the merits before sending it up to the County Council, but not beyond that. GRAHAM: Thank you, Mr. Yuen. I would also like to just say to the public who's here today, this is all kind of meticulous legal kind of back-and-forth we are doing, which doesn't probably make very good listening on your part, but it's important, it's important that we do it in a public arena. So maybe you want to take a break, maybe you want to keep listening, 14 EXHIBIT A but we'll probably be at it for another few minutes for sure. Thank you for your forbearance. Mr. Lim, do you have comment, please? LIM: Yes. Mr. Chairman and Members of the Commission, you know, we first started out this hearing some months ago, and I think one of the, my main thrust in that hearing was that we were asking the Commission for basic fairness. And you know, I think that I outlined in my proposed schedule enough, way enough time for both myself and Mr. Yuen to prepare the adequate legal arguments and proposed Findings, a very, you know, clear path to get everybody's facts on the record and you can review, you'll have something in the neighborhood of two weeks at least to review from the last submittal. You know, this is something that, like I said, is very important to the applicant. We feel that basic fairness dictates that we should be able to have this time. For the Planning Director to recommend that the zoning go up before the SMA action means that he wants you to vote on the matter before we even get a chance to get ready to give you our best argument. I think that's not in good faith. I think that we should have fairness. The applicant is stalled in his development because of the proposed down zoning; we've stopped all work on the project. We can't proceed with the project. So to me, you know, there is no harm to the Planning Director, to the County, for us to take this extra time to give us the chance to give you, the Planning Commission, the chance to review all of the arguments and all of the facts. I think that, you know, the rush to judgment, the rush to push the change of zone ahead of the SMA action is not warranted. I think that you should consider both in your decision. Thank you. GRAHAM: Mr. Lim, one question I had, when you spoke to the Findings of Fact submittal and all, I think you had February 8`h for the applicant and February 29 h for the Planning Director. Why does the Planning Director need extra time to essentially do the same thing? I think you are doing it by February 8`h. LIM: Yes. We figured that we would give the Planning Director adequate time. His attorneys are quite busy also, and so we didn't want them to have to respond in a week, so we thought we would give them that extra time, that's what, 21 days. GRAHAM: So when you say February 29`h, you are talking about him responding to yours, not him submitting his. LIM: Yes, he could submit his own. But, yes, we would submit our legal memorandum and a proposed Findings on the 8`h of February, then he would come back with his on the 29`h of February. We would then have about maybe a week or so for rebuttal to March 7`h and then you would have all of documents at least two weeks before the hearing to review. And then we would come back on March 20`h to argue the proposed Decision and Orders, and you could take final action at that point, if you wish to. GRAHAM: I see. Also we might keep in mind that since we have a difficult decision maybe to make here today, the Planning Director is at least in general agreement with you as far as the SMA permit. So, you know, as far as us deciding what we're going to do taking votes, we might sort of split them and get one out of the way and deal with the rezoning one or I'm just throwing that out as a way to help us move forward, if we need to do that. Commissioner Watanabe? 15 EXHIBIT A WATANABE: Yeah, I have a question for the Director. You, in spite of the additional discussions that have occurred, you stand firm with January 11th? Because it appears that, the way that the Rules are written, that only you can consent to an extension. GRAHAM: Mr. Yuen? YUEN: At most, yes. There is some question about whether the Planning, as Mr. Torigoe said, there is some question as to whether the Planning Director can extend the time. I would consent to extend the time to January l lth but not beyond. WATANABE: Okay, so then that, as a follow-up, that means that for the Planning Director recommended initiatives, we have until January 11th, which is our next meeting. Right? GRAHAM: For those pertaining to the rezoning, not to the SMA. WATANABE: Yeah, to the rezoning. Okay. Here, let me, could I continue for a second, Mr. Woodward? Here is where I'm having a problem. I don't believe that much communication has gone on in spite of the amount of time that has passed. And I agree that RS-15 is probably much too dense for the area in question. On the other hand, going from an entitlement of 50 - and it's questionable whether that entitlement even is in place at this point; I'll concede that - but going from 50 to 5 or 6 is a huge taking, and I'm not comfortable with either one. But as these arguments are outlined at present, I have a choice of either saying, yes, I vote for RS-15 or downsize from 50 to 6; and I'm not sure I'm comfortable with either one. And to that extent, I was hoping that we could enter into some discussions as to what the other Commissioners might be comfortable with. Now I could be in a minority and maybe everybody wants to downsize or maybe everybody wants to go to RS-15. But you know, in a final analysis we would hope that this body could make a recommendation rather than punt to the County Council. And that's my concern. GRAHAM: Thank you, Commissioner Watanabe. My sense of interpreting what he was saying is that, let's say, we come back for the January meeting, and Mr. Yuen's change of zone initiatives, we're going to make a decision one way or the other; and I think what Commissioner Watanabe is saying is he doesn't know at this time - I certainly don't know at this time - how the Commission will vote on it. So he was thinking rather than take such discrete steps along the way that he may be uncomfortable with, it might be good to initiate a discussion early like perhaps today even amongst the Planning Commission, so that the applicant and the Director, if they want to take some direction from what they hear about coming to some kind of middle ground, that's something they can be working on in a meantime rather than have the whole discussion take place in January. Is that correct? WATANABE: That's correct, and I'm just, you know, that way we can push this thing forward hopefully with a recommendation either way. GRAHAM: Thank you. Commissioner Woodward? WOODWARD: Well, I have a procedural question first. Evidently there is a question about a Director initiated motion whether it has a 60-day limit. But cannot that be refiled if we 16 EXHIBIT A were to agree with Mr. Lim's request to defer this to the March meeting? And if there was a legal question about the Director initiative having elapsed, could that not be refiled? GRAHAM: Mr. Yuen? YUEN: Well, I would like to see the matter move forward, and the only consequence of the 60 days having run out already is that it should already have gone to the Council with a negative recommendation. GRAHAM: All right. Commissioner Siracusa? SIRACUSA: Commissioner Watanabe expressed his discomfort with the two extremes, and hoping to find some kind of a middle ground that would be satisfactory that could be worked out between the Department and the applicant. But we haven't heard from Mr. Lim on that, if he feels that his, that the applicant would want to hold a hard line to 50 lots or would be willing to negotiate the number of lots and a decreased density. So unless we know if there is a willingness to negotiate on that, your point would become moot. So Mr. Lim, would you please respond to that? LIM: Yes. I'd have to of course reserve all my legal rights to the RS-15 zoning. But on the question of whether or not the applicant would be willing to negotiate on something less dense, the answer is yes; and the answer is we've tried and we were rejected. GRAHAM: Thank you, Mr. Lim. Commissioner Domingo? DOMINGO: Thank you, Mr. Chairman. I would like to ask for confirmation from our legal counsel with regard to the statements made by Mr. Yuen regarding the time schedules and what would be in his power to make decisions that he is making, and with regard to, you know, the elapsing of the time, the time and the ability to send up a negative recommendation to the full Council. GRAHAM: Mr. Torigoe? TORIGOE: Thank you, Mr. Chairman. I am not entirely sure, exactly what you would like to hear from me is DOMINGO: Well, you know, I was hoping to have caught the Chairman's attention at the very instant when Mr. Yuen had completed his statement and to ask at that time whether in fact that what Mr. Yuen is saying is how you interpret the law or the policies and the Rules of the Commission. GRAHAM: You mean the very last statement that Mr. Yuen just made a couple of minutes ago? DOMINGO: No, not the last statement. He was explaining the applicant initiated measure and the Planning Director initiated measure. And I remember in my discussion, I pointed out that, okay, if the applicant, and we have that 60-day limit when if no action is taken, then it's sent up to the Council as a negative recommendation. But I think it's not that clear if in 17 EXHIBIT A fact that is what actually is happening here. And I think Mr. Yuen explained why it isn't. That's why, you know, I want some confirmation from Mr. Torigoe as to if he in fact agrees with that as our attorney for the Planning Commission. GRAHAM: Yeah, Mr. Torigoe, did what you hear from Planning Director Yuen all sound legally accurate to you? TORIGOE: You're referring to whether the Planning Director has authority to agree to an extension of the time beyond the 60 days. Is that the question? GRAHAM: Is that the question, Mr. Domingo? DOMINGO: Yeah, that's one of them. And, okay, when an applicant submits an application, the applicant would in fact agree to whether an extension of the 60 days would be appropriate in his favor, and he would do it. Now in this case, as the Planning Director, is there the leeway wherein he would be able to hold it on the Planning Commission level for another extension of time? TORIGOE: Yeah, you know, you can, the Planning Director has expressed a position, and I think it's an arguable position. I was hoping to get some input from both the Planning Director and the applicant regarding that before I had to give you an opinion on it. I could give you an opinion, you know, right now, but then I'm not sure if you would want to do that in an open session or whether you want to get that as a matter of attorney-client privilege because you may disagree with my opinion and go the other way, you know, in which case the record would have me contradicting you. DOMINGO: You know Mr. Chairman? Thank you, Mr. Torigoe, for your comments. It's been frank and I can understand what you are saying. You know, at the last meeting we received a letter from the representative of the applicant, Mr. Lim, with regard to the application and the sequence of time that has taken place and his efforts to see if this whole issue could be resolved. And you know, in frustration, because nothing had actually happened, you know, he was forced to in his interest write that letter for the applicant. Now recently I read a reply to that by Mr. Yuen regarding what the attorney's applicant said in his letter. You know, I see in both letters and I can understand it; there is a lot of information that we need that is not in our hands. And you know, one is saying one thing and the other is reflecting on another thing. And it seems like, if you look at it, the blame is upon either one and it depends on where you are coming from, you know, whether or not you support the application, the move on or not. And that's why I think, you know, more time is needed. Both parties, as Mr. Lim indicated, would do their part and then a final analysis would be submitted to the Planning Commission for our review and study, so that we can make a decision. And whatever that decision may be, then that will be final because at that point we would have all the information before us, the arguments, the arguments for the action or inaction of both parties. And that's what I'm looking at. GRAHAM: Okay, thank you, Commissioner Domingo. I might say I think we've gotten pretty clear presentations by both the applicant and the Planning Director, and I would like to encourage us to kind of move forward rather than just chewing on the same information too long. Commissioner Watanabe? 18 EXHIBIT A WATANABE: I would like to hear from the other Commissioners really, as far as what your concerns are or whether you agree with what's been proposed, and not with regard to the procedures but with regard to the final decision, you know, as far as the zoning is concerned. And I think if we have some input there, then it will be much clear as to whether we can arrive at some type of decision come January I Ith. Barring fiuther discussion amongst us, I doubt that there's going to be any fruitful discussion between the Planning Department and the applicant. And so we'll be at the same impasse come January I lth, and that's why I suggest what I suggested earlier. GRAHAM: Okay. Commissioner Watanabe, the only thing that occurs to me is, like Commissioner Domingo just said he feels like he needs a lot more information, a lot more time; I think one thing we want to keep clear here is that at this point we are not making a decision about the body of it. So if the Commissioners want to speak, it's probably best they speak to concerns that they want to have brought up in additional material rather than their positions on the Planning Director's or the applicant's. WATANABE: Well, I understand what you're saying and I understand that Mr. Domingo feels like he needs more information and he needs more time. But I also understand that the Director is very firm on the January 11`h date. So in my opinion based on the firmness of the Director's January 11`h date, we don't have additional time, which means the zoning change goes up regardless of what we say or decide come January 11 `h, or can't decide. What I'm trying to point out is that generally we do not want to punt; generally we want to come up with a decision and a recommendation. So if that is a fact, then it would be helpful I think if people would express where they stand on this to some degree, not so much to decide, but it may send a message to both parties that maybe there is compromise or maybe it's going to fly one way or the other, you know, as it stands. I'm not sure. GRAHAM: Okay. Commissioner Woodward? WOODWARD: Yeah, I would agree with Commissioner Domingo. And one of the things that we brought up at the last time that this was addressed was that we'd like to have dialogue between the Planning Department and the applicant. And evidently that has not happened, which is unfortunate. And in that regard I think we do need more information. This is not an emergency, they are not doing anything with the property right now, and they can't until we make a decision one way or the other. So in that regard I would support Mr. Lim's recommendation that the parties be given time to prepare more information for us, and hopefully dialogue will occur between the Planning Department and the applicant, so that maybe this can be worked out in some other fashion, other than just an up or down vote. But I think the thing that disturbs me is there has been no dialogue, right, and that does bother me. And for that reason I would support Mr. Lim's recommendation that this be deferred. GRAHAM: Commissioner Alameda? ALAMEDA: Thank you, Mr. Chair. In addition to what Commissioner Woodward has suggested, I'm kind of more interested in dialogue between the developer and the Kohala community and seeing the result of that. That's kind of where I'm leaning. Commissioner Watanabe's, I want to And Re in March - I was looking at the Community Development Plan timeline as one our documents - I think we should have like a rough draft over the Kohala 19 EXHIBIT A Community Development Plan, I think, around that time. So to me, I'm more interested in the dialogue between the developer and the community and seeing that result, if you will. GRAHAM: Thank you, Commissioner Alameda. Commissioner Siracusa? SIRACUSA: Yes. Relevant to that, I believe the County Council passed some resolutions about rezonings in the three districts where the Community Development Plans are being worked out. And so I'm wondering if a rezoning comes under that purview of those resolutions. GRAHAM: Mr. Yuen? YUEN: We attached copies of the resolutions to the materials that were submitted to the Commission, and the proposed rezoning that I initiated does not contradict the resolutions which ask for a moratorium. I believe that a time extension doesn't, if this were a new zoning, it would contradict the resolutions. As far as, you know, what the applicant wants, I'd have to go back and look at it to be sure, but I don't believe that the resolutions apply to time extensions. And in any event, the Planning Department and the Planning Commission have to, if an applicant chooses to submit a rezoning request that contradicts one of these resolutions, the Planning Department and the Commission are still obligated to process those through under the timeframes that are contained in it, in the ordinance. The Council can defer action, if they want, indefinitely; the Council can vote down the rezoning application. SIRACUSA: I'll follow up. GRAHAM: Go ahead, Commissioner Siracusa. SIRACUSA: Since everyone was giving their opinion and I hadn't stated mine, I was just asking questions. I would be willing to go along with the Director on January 11`h. I think there has been lots of time already for information gathering. That still gives a month; it doesn't take that long to talk to people. And if on January 11th everyone seems to agree that more time is needed, I understand that it can always be agreed to grant some more time. But I don't want to see this dragging on forever, and so I would vote to continue the matter to the January 11`s meeting. GRAHAM: Thank you. I'd like to move our process forward. I'm not saying I want to move the application forward; I'd like to move our process forward. I think we have agreement on the SMA matters with Mr. Lim and Mr. Yuen about the schedule that Mr. Lim proposed. Could we not take a motion, and move forward and say this is how we want to handle the SMA matters as far as our continuance and what we expect from the parties? And then once we've done that, then we can look at continuing the rezoning requests both for the applicant and for the Planning Director, just so we can move through this logjam we are in in our procedures today. Commissioner Siracusa? SIRACUSA: Okay, I'll make that motion. DOMINGO: Mr. Chairman? 20 EXHIBIT A GRAHAM: All right. Commissioner Domingo has something he wants to say also. Go ahead. DOMINGO: Yes. I had my hand up for a while. But during that opportunity to the other half of the table, to people who haven't spoken yet, I thought I'd just wait and see that through, and then I'd like to speak. You know, trying to put things in proper perspective, and you know, first, I totally respect the efforts of people in the community who'd like to participate in the decision-making process that we have in our government, and it's real important that they do that. But in this particular case, what we are looking at is entitlements that have been given to an individual in a community to do and to cant' out his plan. And this whole acquisition of these entitlements has gone through a lengthy process of hearings, a number of hearings, and participation by those who are interested in the matter. Now they have been given those entitlements, and what we are doing now is trying to take back those entitlements. And you know, for one, for me I'd like to know what has drastically happened between - was that 19? - 1997 till now that warrants the government to come up and take away those entitlements, you know. We are talking about fairness. You can apply to this principle to anyone on this island, anyone in the community where you live; and if you by some desire decide to have your parcel rezoned, you know, at a time, and because you haven't been able to develop it or because the parcel you bought has gone to some other person's hands and they have not complied with some requirements of the zoning hearing at that time, now we are asking this other individual who bought the property, you cannot develop that because there is some ties to it. Apply it - we are looking at a developer, you know, we are looking at a developer - but put that same situation in your life as an individual, as a couple, as a father and a mother who'd like to give your children a parcel for them to build, you know. Now the principle is the same. There is a question of fairness right here. The applicant is asking give us more time so that we can assemble all the facts together, and let the Planning Department do the same, and we'll present it to the Commission; and you guys decide with the fullest possible complete information that we can give you. And you know, at that point my whole attitude is that, you know, let it fall where they may and if we say no, it's no. But at least we give them the fair, we treat them fairly and give that time as they requested. I think that's what they are asking. So you know, I certainly would like to see that they be given, they be given enough time to comply with our request. GRAHAM: Again, you know, I'm stuck on wanting to move today forward. And I'm sure if we take up Mr. Yuen's stuff on January 11`h and we take up Mr. Lim's stuff in March, we're going to be talking all about entitlements on January 11`h and we're going to talk about them all in March, so I would prefer we don't talk about that stuff right now; and we just try to move with the schedule and get the schedule we want, so that we can go on with our other business today. SIRACUSA: Point of order, Mr. Chairman? GRAHAM: Yes, Commissioner Siracusa? SIRACUSA: We have not closed the hearing and asked Mr. Lim to step back. GRAHAM: Thank you. 21 EXHIBIT A SIRACUSA: And I'm prepared to make a motion. And it has nothing to do with the merits of the case but with our scheduling. GRAHAM: Thank you. Do we have any further questions of Mr. Lim at this point, questions of the applicant? All right. Thank you, Mr. Lim, for your participation today. All right. Mr. Watanabe, can we go ahead with Commission Siracusa's motion now? Do you need something that needs to be said first? WATANABE: I was about to echo what you had said. And really for clarification it's, the Commission does not have the power to extend; so we are talking about extending, the only person that potentially has the power to extend is Mr. Yuen, and Mr. Yuen has adamantly stated that it's going to be January 110'. So all this talk about extension, as far as the rezoning is going, is moot because the Commission does not have the power. Now if Ms. Siracusa would like to make a motion to extend on the SMA issue, on the SMA not the rezoning, then you know, then we can proceed as the Chair has requested. GRAHAM: All right, let's hear Commissioner Siracusa's motion. Can we do that? SIRACUSA: Can we discuss after the motion? I mean GRAHAM: Well, we're going to discuss the motion. SIRACUSA: That's when discussions happen; it's after you make a motion. GRAHAM: That's fine. So should I officially say SIRACUSA: Instead of assuming what I'm going to GRAHAM: That the hearing is closed at this time? Is that appropriate, Mr. Torigoe? SIRACUSA: I was going to move in the matter of SMA Use Permit No. 379 that we continue the hearing until January 110 . GRAHAM: Do I have a SIRACUSA: And then I was going to make a follow-up motion for the rezoning. WATANABE: I'll second. GRAHAM: Do I have a second? Okay. Now just as a point of information, I thought Mr. Lim's suggestion was that Findings of Fact, etc. would be put forward in February and that he didn't really presume that we would be hearing this again probably until March, given his schedule on the SMA. Did you understand it differently, Commissioner Siracusa? SIRACUSA: I did, but I really, I think we have so much information in front of us right now, it seems to me that what Mr. Lim is doing is a delaying tactic, and I don't feel like playing into that. 22 EXHIBIT A WATANABE: Oh, wait. I withdraw my second then because I guess I misunderstood the motion. GRAHAM: Okay, Commissioner Watanabe misunderstood, so we need another motion, I mean we need another second, if we have one for Commissioner Siracusa's motion, which ask that we continue the SMA hearing until our January meeting. Do we have a second for that? I guess the motion fails for lack of a second. Do we, I'll be asking to entertain a motion for when we might like to continue to hear the SMA matters resolved. Commissioner Watanabe? WATANABE: I would move to hear or proceed with the schedule proposed by Mr. Lim for the SMA and hear that at the - I believe it was - March 201' meeting. DOMINGO: Second. GRAHAM: All right. And the second is by whom? DOMINGO: I second. GRAHAM: Oh, Commissioner Domingo, you seconded that motion? DOMINGO: Yes, I seconded. GRAHAM: All right, thank you, just Commissioner Alameda? ALAMEDA: Is this discussion? Are we in discussion? GRAHAM: Yes, go ahead. ALAMEDA: Okay, thank you, Mr. Chair. I wanted to comment on Commissioner Watanabe's comment about the Director's interpretation of that timeline, that only the Director has the final say on that. I think that it's interpretable, given Mr. Torigoe's earlier comment that he didn't want to go into. So just to make that clear, in my mind, that's an interpretation right now, and it's not very clear. WATANABE: Okay. May I-? GRAHAM: Commissioner Alameda, that's regard to the rezoning, I believe, not to the SMA permit. So it's really not on point with this particular motion. ALAMEDA: I'll hold that thought then. GRAHAM: Good, thanks. DARROW: Mr. Chairman? GRAHAM: Yes, Mr. Darrow. 23 EXHIBIT A DARROW: Thank you. If I canjust get some clarifications, these matters before us involve five different actions, and if I can make sure that I'm on the same page with the Commissioners. With Commissioner Siracusa's motion, is that exclusive of only 2.b? I'm song, for the first motion I need to get clarification. GRAHAM: Mr. Darrow, the first motion failed for lack of a second DARROW: Correct, but I GRAHAM: So we are with Commissioner Watanabe's motion now. DARROW: All right. On the second motion, is that specific to 2.b. on the agenda? WATANABE: Excuse me. DARROW: This would be the applicant, Kohala LLC, continued hearing for an amendment to Condition 4 of SMA Use Permit 379. Or is this inclusive of the Planning Director's WATANABE: Here, you know, we may need some clarification here because we also have Le. which references to the SMA portion. As I understood it, the Planning Director consented to the SMA extending beyond the 60 days, so I'm assuming that we were referring to No. I.e. and No. 2.b. both of which reference the SMA permit and none of which references the zoning. DARROW: Thank you. GRAHAM: Thank you. Is that your understanding also, Commissioner Domingo, when you seconded? DOMINGO: I, you know, I can say yes or no, but I think what we all in general would want is more time to consider all the facts and evidence that certainly I see forthcoming. GRAHAM: Do I need to get another second on Commissioner Watanabe's revised motion, or does your second hold okay with his explanation? DOMINGO: Okay, I'll go with it. GRAHAM: Okay, thank you. So we'll go forward with that motion. I'm also in need of a break pretty soon here for the restrooms. I don't know at what point I'm going to say, we're not going to be through here anytime soon. Why don't we take a break right now? Can we do that? WATANABE: Why don't we take a vote? SIRACUSA: We have a motion on the table. GRAHAM: Are we ready for a vote on this one? 24 EXHIBIT A WATANABE: Or do we need further discussion? GRAHAM: That's the issue. Is there further discussion? Is there further discussion on Commissioner Watanabe's motion to bring up Item l.c. and Item 2.b. in our March meeting, to defer until that time? Is there any further discussion? Good. Thank you. And Mr. Darrow? DARROW: Thank you, Mr. Chairman. I'm sorry I have to again ask for just a brief clarification. My understanding is that this motion is to continue this, both these Special Management Area Use Permit actions till January 11, 2008, with WATANABE- No, no. March 2e. DARROW: Oh, I'm sorry, March 20`h WATANABE: The January 11a' motion failed DARROW: Correct. Okay. WATANABE: Because no second. DARROW: To the March 20, 2008, with the schedule given by the applicant. My understanding is that the schedule is that Kohala LLC will submit proposed Findings of Fact, Conclusions of Law, Decision and Order by February 8 h WATANABE: That's correct. DARROW: And that there will be WATANABE: Twenty-one day additional period. DARROW: The 21 days will allow the Planning Department to submittal a rebuttal to the proposed Findings of Fact submitted by the applicant. Is that correct? GRAHAM: I believe that's correct. WATANABE: Yeah, that's correct. DARROW: Okay. And then on March 7w it will allow comments and rebuttals for both the Planning Department and the applicant, and then the hearing will be for March 20, 2008. WATANABE: That's correct. GRAHAM: Mr. Yuen? YUEN: I need to see, was there a date for the Planning Department to submit proposed Findings, if it so desires? I believe there was a stipulation that it was not necessary, but 25 EXHIBIT A we should have a date for the, deadline for the Planning Department to submit proposed Findings. And I'd let Mr. Lim suggest one. GRAHAM: Well, all right, Mr. Lim, maybe you can clarify for us where we stand. LIM: Yes. We had intended that the February 29th date be for the Planning Director's legal memoranda and any proposed Findings that he wishes to submit. YUEN: The same date as the applicant? LIM: No, no. We would be submitting ours on February 8`s, you would submit yours on February 29 h. YUEN: That's fine, that's fine, yes. GRAHAM: All right, fine. I think our Go ahead, Mr. Darrow. DARROW: So we are okay with that. Okay, I won't reword that; I'll just go ahead into the motion. The motion before us is to continue this matter. If I could, with that I'll take the vote. Commissioner Watanabe? WATANABE: Aye. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Alameda? ALAMEDA: Aye. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Rho? RHO: Aye. DARROW: Commissioner Woodward? WOODWARD: Aye. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: And Mr. Chairman? 26 EXHIBIT A GRAHAM: Aye. DARROW: The motion passes to continue both the Kohala LLC amendment and the Planning Director's initiated revocation of SMA Use Permit 379 to March 20, 2008. Thank you. GRAHAM: All right, thank you. So our next item would be the rezoning ordinance, and what we're going to do with them as far as continuations or whatever. So let's take a five- minute recess now, then we'll go right to that. RECESSED The Chair called a recess at 10:43 a.m. RECONVENED The meeting reconvened at 10:56 a.m. GRAHAM: Will the Planning Commission come back to order, please. Also, I want to indicate that we are scheduled to do our 12 noon lunch today, so we'll time ourselves for that. So the item before us now, the items are those on these two applications: one initiated by the Planning Director, one initiated by Kohala LLC, as they relate to change of zone ordinance. And we've already heard from the applicant that he would like his change of zone ordinance to mirror the same timetable as the SMA ordinance, as the SMA permit that we will be hearing in March as we've just decided. And the Planning Director has indicated that as far as his rezoning, initiated ordinance, he would be willing to extend the date from today until our January meeting, but he would really not be wanting to extend beyond that. And my presumption would be that if in fact we were not willing, we didn't want to hear his motion today and we didn't want to hear his application on January I Ith, we wanted to extend beyond that, essentially that the time clock would run out on that, so it would go up to the Council with this sort of default negative recommendation. So that's my kind of read of the lay of the land. WATANABE: Yeah, Mr. Chair? GRAHAM: Commissioner Watanabe? WATANABE: I would like to make a motion that the Planning Director initiated change of zone No. La. and Lb. as well as the applicant initiated amendment to Condition C of Change of Zone Ordinance 97-102 that will be Agenda Item 2.a. be continued to the January 11th meeting because it appears this body does not have the authority to extend beyond that. SIRACUSA: Second. GRAHAM: All right, seconded by Commissioner Siracusa. So Commissioner Watanabe has made a motion, and seconded by Commissioner Siracusa, to have the rezonings of both the applicant and the Planning Director come before us in January. I see Mr. Lim is at the table and would like to make a comment on that. We have closed the hearing, so I'd sort of ask whether the Commissioners would appreciate hearing from Mr. Lim now or not. Mr. Woodward? WOODWARD: Well, I would like to make a comment first. 27 EXHIBIT A GRAHAM: Okay. WOODWARD: And maybe my mike is a little too high, but These issues are so intertwined; voting on one essentially means we are voting on all five issues. And if we have agreed to defer at Mr. Lim's request to March 28`h (sic) for the two issues, voting on these other three essentially means we are voting on all five at one time. And I think, out of the issue of fairness, if we send a negative recommendation to the Council on all these issues, they essentially cancel each other out; it means we don't have a recommendation. I would recommend that we defer this also until March 28`h (sic) and then we discuss the whole issue because these are all five intertwined initiatives. WATANABE: I Mr. Chair? GRAHAM: Okay, yes, Commissioner Watanabe, go ahead, if you want to respond to that WATANABE: Please. GRAHAM: Then I'd also want to deal with whether we'd like to hear from Mr. Lim or not ALAMEDA: I have a comment, too, before that. WATANABE: Yes. GRAHAM: Go ahead, Commissioner Watanabe. WATANABE: I fully agree, however, I did state towards the end of my motion that the body apparently does not have the authority, and that is the only reason I'm making the motion. And I have further comments when we get into discussion on this because as I stated earlier I'm not comfortable with either choice that we have. ALAMEDA: Mr. Chair? GRAHAM: Okay, Commissioner Alameda? ALAMEDA: We are in discussion from what I understand. Correct, Mr. Chair? GRAHAM: Yeah, but I think we are in discussion at this point of time on his specific motion which is to what date do we continue the hearing on the rezonings. ALAMEDA: Again I just wanted to, I don't know when it is appropriate, but I think I need to get at least just a yes, that's correct, from our counsel, that that is indeed true that the Director does have the final say on that, and if so, then at least I can put that to rest. 'Cause I understand Mr. Torigoe may have a different interpretation on that. GRAHAM: Mr. Torigoe? 28 EXHIBIT A TORIGOE: Well, with respect to, you know, you are asking at this point about the choices whether you can go beyond November l 1`h, and basically even if you assume that the Director has the authority to agree to an extension, if the Director does not agree to the extension, then he's basically choosing to end it at that point. And so it would at that point go, you know, if you don't make either decision by that date, then it would go up with the default negative recommendation. GRAHAM: Is that answer what you needed? ALAMEDA: No. GRAHAM: Okay, go ahead and be more specific. ALAMEDA: So Mr. Torigoe, then as our counsel, you agree that the Director cannot or has the authority to consent or to not consent to the January I Ith deadline, and that basically that's already rest with the Director and not with the Commission? TORIGOE: Well, basically the Director has, you know, the Director has a veto power in any case at that point, you know. If we are saying that your going forward depends on the Director's agreement to go forward beyond that date and he is saying, no, I'm not agreeing to go forward beyond that date, then you can't go and do anything with the Director initiated matters beyond the date that the Director agrees to, which is January WATANABE: Mr. Chair? ALAMEDA: Okay, got you. GRAHAM: That's clear? ALAMEDA: Thank you, Mr. Chair. GRAHAM: All right, now, hold WATANABE: Mr. Chair? GRAHAM: A lot of people speaking here. Let's, first off I did ask a minute ago if the Commission would like to hear from Mr. Lim. Would the Commission like to hear from Mr. Lim at this time or not? So the hearing is closing? LIM: I just wanted to lodge an objection, and then I'll sit down, for the record. GRAHAM: All right, go ahead, Mr. Lim. LIM: For the record, we object to the setting of the January 11`h change of zone hearing separately from the SMA, and the applicant reserves all rights on the Planning Commission Rule 11-3(c) to argue that the 60-day period for action has or will elapse by January 11, 2008. Thank you. 29 EXHIBIT A GRAHAM: All right, thank you. Commissioner Woodward? WOODWARD: Yeah, I think the question of whether or not we pass or decide on this recommendation with regard to rezoning is moot because in all, from all intents and purposes the 60 days elapsed a long time ago. And again I think out of the interest of fairness, since these are all intertwined issues, you can't decide one without deciding the other. It makes no sense to hear the rezoning request, particularly if there is a question of whether the time has already elapsed, on January 11`h, and then to hear the SMA permit request on March 20`h. It makes much more sense to put everything back together. It may require a little bit of work from the Planning Department to reformat this and to get together with their counsel, but I think that's an interest of fairness. GRAHAM: Thank you. Do we have any further discussion? Commissioner Domingo has been waiting. Go ahead, Commissioner Domingo. DOMINGO: Thank you, Mr. Chairman. You know, if the statement of Mr. Woodward is correct with regard to the 60-day limit already has passed, then regardless of how we feel or even how the Planning Director feels, by law, having passed that date, it should be sent up to the Council with a negative recommendation. There're no two ways about it. It's a law; we've got to abide by the law. GRAHAM: Thank you, Commissioner Domingo. Anything further from the Commissioners? All right. So we have a motion on the table for January l hh date to hear - is it all three rezoning matters? Is that the case, Commissioner Watanabe? WATANABE: As I stated the motion, yes, it was for all three. I think for clarification purposes, maybe Mr. Torigoe could make it clear that, whether the Commission has any authority to extend. 'Cause we are keeping going back whether the Director has any authority; it's not clear within the Rules, as I read it, whether the Director has. But I think the second part of Mr. Alameda's question was whether the Commission had any authority. GRAHAM: Yes, Mr. Torigoe? TORIGOE: Reading your Rule 11-3, you know, basically I think what seems to be intent of this in general is that if anybody has the authority to extend the timeframe, it would be the applicant or possibly the Director. And if the Director, you know, basically refuses to agree to an extension, then that certainly I think would end the time; and I don't think the Commission would have the authority to go beyond that. For instance, if you did another motion that would ask for the rezoning initiated by the Director to be heard on March 20`h, but the Director says, no, I don't want it to go that long, I think you are basically stuck with what the Director wants at that point. I mean you can make the motion, you can pass it, but I think basically that it ends up with the Rule saying that, you know, it goes up with the default negative. GRAHAM: Thank you. Also it occurs to me, looking ahead time-wise, that if we approve this motion today, the one before us right now for January 11"' date, when we come to January 11`h, we are sort of asking the parties to be ready to argue and with those particular three rezoning matters. But when January 11 m comes, we certainly can wind up entertaining more 30 EXHIBIT A motions to put things off until March or something, right? I mean that's certainly part of what could happen come January 1 Vh. Any further WATANABE: I, I wish we could handle this GRAHAM: Commissioner Watanabe, go ahead. WATANABE: I'm sorry. I wish we could handle this all at once, but we don't have that choice or at least that's my understanding of the Rules. To be LIM: To the extent that GRAHAM: Mr. Lim, please, would you LIM: I'm sorry. WATANABE: To be perfectly honest with you, I stated my position that I'm not in favor of either extreme to be, I would, however, be inclined to vote for an extension of the time and go with the RS-15 when this vote comes up on January 1 Vh, even though I think it's much higher density than the area should have, because to me that's a preferable choice than to take away - what is that, it can get come down to 6, that would be - 44 units. And that's why I don't particularly like the choices that I have. I was hoping that we could arrive at, you know, the parties could arrive at some kind of compromise, but it doesn't seem like it's going to go that way. And so-. GRAHAM: Okay, thank you. Any other comments by the Commissioners on the motion? All right, Jeff, we have a motion before us for January 11'h, continuance to January 11`h, on the rezoning matters, which would be, I believe, La. and Lb. and 2.a. on our agenda. DARROW: Thank you, Mr. Chairman. If it's okay with you, I'll take one vote for all three matters. GRAHAM: Is that all right, Mr. Watanabe? WATANABE: I'm fine with that; I did state the motion that way. SIRACUSA: That's the way the motion was made. GRAHAM: Thank you. DARROW: Thank you. With that, I'll take the vote. Commissioner Watanabe? WATANABE: Aye. DARROW: Commissioner Siracusa? SIRACUSA: Aye. 31 EXHIBIT A DARROW: Commissioner Alameda? ALAMEDA: Nay. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Rho? RHO: Aye. DARROW: Commissioner Woodward? WOODWARD: No. DARROW: And Mr. Chairman? GRAHAM: Aye. DARROW: The motion passes, six to two. GRAHAM: All right, thank you. So I believe we are finished with Items 1 and 2 today; that on the SMA aspects we are going to have our March meeting, and we are going to follow the schedule suggested by Mr. Lim as far as the legal documents and their schedule, they will be prepared because we will be taking final actions on the SMA. As far as the rezonings, we are only doing recommendations to the Council and they will both come before us at our January meeting. So Mr. Torigoe, have we exhausted all issues on these two agenda items, as far as you understand? TORIGOE: I think so. Basically you've continued everything. Unless the parties have some other issues that they think should be raised. GRAHAM: Correct. Mr. Lim, is there any further that we should raise today that comes to your mind? LIM: We'll be submitting legal memoranda on the change of zone prior to the January 11th hearing. Thank you. GRAHAM: Thank you. Mr. Yuen, anything further? YUEN: No. GRAHAM: Thank you. 32 EXHIBIT A The discussion ended at 11:11 a.m. Respectfully submitted, Noriko Sauer West Hawaii Secretary 33 EXHIBIT A PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT AUGUST 31, 2007 A regularly advertised hearing on the applications of Initiator PLANNING DIRECTOR and Applicant KOHALA LLC (REZ 866/SMA 379) was called to order at 12 noon at the King Kamehameha's Kona Beach Hotel, 75-5660 Palani Road, Kailua-Kona, Hawaii, with Chairman William Graham presiding. PRESENT: William Graham ABSENT & EXCUSED: Takashi Domingo C. Kimo Alameda Shelly Ogata Andrew Iwashita Rene' Siracusa Alvin Rho Rodney Watanabe Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Christopher Yuen, Planning Director And 4 people from the public in attendance. INITIATOR: PLANNING DIRECTOR a. Change of Zone (REZ 07-000067) for 37.88 acres of land from a Single-Family Residential 15,000-square foot (RS-15) to a Residential and Agricultural 5-acre (RA-5a) district. b. Repeal of Ordinance No. 97 102 which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5a) to a Single-Family Residential 15,000-square foot (RS-15) district. C. Revocation of Special Management Area (SMA) Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved, owned by Kohala LLC, is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua 151, North Kohala, Hawaii, TMK: 5-9-1:8. APPLICANT: KOHALA LLC (REZ 866/SMA 379) a. Amendment to Condition C (time to secure final subdivision approval) of Change of Zone Ordinance No. 97 102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5a) to a Single-Family Residential 15,000-square foot (RS-15) district. b. Amendment to Condition 4 (time to secure final subdivision approval) Special Management Area Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua I", North Kohala, Hawaii, TMK: 5-9-1:8. 1 GRAHAM: Our next item of business which I believe in the last Commission hearing when I was not here involved both Items 4 and 5, Unfinished Business. Four is initiated by the Planning Director. Five is by Applicant Kohala LLC. It relates to a Change of Zone and a Special Management Area Permit; and this is in the, just below the Kohala Ranch Subdivision in Kahua 1, North Kohala. And I think the Planning Department is going to put up some maps at this time and we'll just wait a few minutes till they're ready to go. Basically the Applicant Kohala LLC is asking for an amendment to a Change of Zone Ordinance as well as to an SMA Permit. And the amendments would allow additional time to meet the requirements. The Planning Director's initiation is to change the zone on that land, and also to repeal a Special Management Area Use Permit, and repeal the ordinance which originally set the zoning on that land. DARROW: We're ready to go? GRAHAM: Jeff, go ahead. DARROW: Thank you. I'll just make this brief. I'll just do a brief presentation. The location of this application is within the North Kohala District of Hawaii, more specifically we're looking near Kawaihae area. This would be Kawaihae in this area. Just for reference, this is the Kohala Ranch Subdivision area. The white line running in a north-south direction on the bottom of the map is the Akoni Pule Highway. And the area of the application is identified with a blue dot. There are two applications that we are combining together. These have to do with Change of Zone 97 102, which is a Rezone 866, and Special Management Area Use Permit No. 379. The Planning Director is recommending that Special Management Area Use Permit No. 379 be revoked. It was originally approved to allow a 50-lot subdivision on this property. Additionally, the Planning Director is initiating downzoning of the property from Single Family Residential 15,000 square feet to Residential-Agricultural 5 acres; and this is for approximately 38 acres of this area. Originally the property was rezoned from Agricultural 5 acres to Single Family Residential 15,000 square feet and, again, allowed The Special Management Area Use Permit was approved to allow a 50-lot subdivision. The applicant, apparently the property was sold in between this time. The applicant, nobody had requested a time extension for the Change of Zone as well as for the SMA Permit, and so ten years after-the-fact of the original approvals there is a request now for a time extension to Condition C of the Change of Zone as well as to Condition 4 of the SMA Use Permit. At our last hearing the parties involved had gone into deliberations regarding this matter and there has been a letter submitted by the applicant dated August 7"' requesting a continuance of this hearing until the October meeting in Kona, because of the fact that he is requesting for certain Planning Department records to subpoena. It is my understanding today that we do have somebody signed up to testify, but there has been a request from the applicant to continue both these matters until our October meeting. 2 GRAHAM: Thank you, Jeff. Any questions of Jeff from the Commissioners? Maybe we can take our public testimony right now then. Ms. Byrne, would you come forward. Do you swear or affirm to tell the truth on this matter before the Planning Commission today? BYRNE: I do. GRAHAM: Thank you. And go ahead with your testimony and start with your name and address, please. BYRNE: Sure. My name is Gail Byrne, address is 68-3551 Awamoa Place, Waikoloa, Kohala; and I'm here delivering testimony from five North Kohala non-profits and the organizations and together our membership represents about 400 families in North Kohala. And we're here to support the Planning Director's recommendation to repeal the Ordinance 97 102 and revoke the Special Management Area Permit No. 379. We are also urging the Planning Commission and the Planning Director to consider the more restrictive zoning which would be consistent with what the community has asked for for over 30 years. And I have copies of a letter signed from the five organizations here enough for each I don't know how we, what's the appropriate way to deliver this? It's kind of summarizing some of the points I wanted to hit today. I think there's nine in there. And then there's a second batch here. This summarizes, the second batch summarizes the 30 years worth of, documented work that the community has done to preserve the area makai of Akoni Pule Highway in open space and their continuing desire to do so. So, again, we're here to affirm and support the Planning Director's recommendations and ask for zoning in that area of at least RA 20 if it's possible. Again, it's consistent with what the community has asked for for 30 years in previous General Plan reviews and planning documents, multiple resolutions. During the last General Plan review petitions were submitted to the County requesting the County to zone this area Open. And some of this stuff I have in the box. I was going to thump down, about 2,000 signatures asking for this area to be in Open or Conservation. There's another 6,000 signatures here that requested the County to put a building moratorium on this area or the whole coast makai of Akoni Pule Highway, including this parcel. So there's a long history of community support planning documents for more restrictive zoning. And you guys are aware that this year the County Council passed a rezoning moratorium for North Kohala that specifically states there will be no rezoning into districts smaller than Ag-20a. I understand that might not be quite applicable to this particular situation; but that moratorium is different than the moratorium that was developed for Kona or South Kohala, and specifically with regard to the wording around Ag 20-a because it reflects the community's conversations with their Council Member for better protections specifically along the coast. Some of you may be aware that recent water quality surveys, and some of them hit the front page of a paper just a few weeks ago showing that the reefs in this area or the marine environment being heavily impacted already by upslope development. And additional development of any kind only contribute to this problem, especially because development on this parcel borders the ocean. My background is in civil engineering and I spent eight years working on development 3 land use issues and best management practices around development and looking at what we could do to mitigate these kinds of effects. And I'm here to tell you in my professional experience you can't over time. There are cumulative impacts. And the Water Quality Study completed in 2006 by professors at the University of Hawaii Hilo strongly criticized the degradation of water quality occurring along the Kohala Coast as a result of increased development. There's also spotty data in there. You know, we mentioned in our testimony that, you know, under the Clean Water Act the County has an obligation to ensure that any pollution resulting from development is not overwhelming the environment's ability to assimilate that pollution. And if that's not done, the County and the State will be held accountable; and usually you have to go back and go through a much more expensive process of retrofitting and trying to fix a problem which is almost always very difficult or impossible to do. So we have an opportunity right here now to act proactively and prevent a lot of costly clean-up. And we've already got a problem. It's right here. We've seen it in the papers. I think specifically with respect to the criteria that you guys have to look at on whether you can grant these time extensions, my understanding is that the applicant does not meet the criteria for a time extension. You know it's not, this project is not at all consistent with the General Plans that have been developed; and it's certainly not consistent with the outputs of the North Kohala Community Development Process. It's on-going right now. It's part of the General Plan. The highest, over and over what that community has voiced is keep those areas open to the extent possible from any development. You know, there has been plenty of time to ask for an extension. It has been expired for five years, is my understanding. And, you know, the original conditions and contexts have changed under which this original permit was granted. We are now seeing the cumulative effects of development around here. We now understand better some of these impacts. And so the conditions and context in which the original permit were granted have changed. So I don't think the applicant meets the criteria for a time extension in any regard. So that was the testimony provided by the groups. I just want to say a few personal roads, words. I've a Masters Degree in Civil Engineering and so I love concrete in certain types of developments, I really do. And I actually invest in some real estate but not in sensitive areas. And I also know there are no guarantees in any kind of investment; and I don't expect the taxpayers to bail me out when I make a bad decision or I don't follow-through when I need to. So that's just my, that's my own personal testimony there. So, again, you know, the folks in North Kohala really appreciate what the Planning Director is recommending here and thank the Planning Commission for your time. GRAHAM: Thank you, Ms. Byrne. Do we have some questions from any of the Commissioners? In regard to what you said, I might ask Mr. Yuen if we do take this matter up at a future hearing - apparently the State and perhaps the Federal government also has been really studying this whole sedimentation area from Honokua Gulch going north along the coastline - Could you at the Planning Department look to see if there's any reports on what's going on there, 4 and what has caused it, and, you know, what's recommended so that we could have that as part of our folder for dealing with this application at the next hearing if we do? YUEN: We can certainly try, we'll get you what's available. GRAHAM: Thank you. YUEN: There were some, there were a couple initial investigations and then there has been some follow-up that's not actually, I think, in the form of a report. I did attend the meeting and have had some discussions with people about the major runoff incident earlier this year. GRAHAM: Thank you. Thank you, Ms. Byrne. Would the applicant come forward at this time. Mr. Lim, do you swear or affirm to tell the truth on this matter today before the Hawaii County Planning Commission? LIM: I do. GRAHAM: Thank you. And could you give your name and address and then carry forward with your testimony. LIM: Steven Lim representing Kohala, LLC, PO Box 121, Hilo, 96721. Mr. Chairman and Members of the Commission, we had half a hearing the last time. We've, I think, requested some additional time to both get some of the documentation that we had subpoenaed from the Planning Department and also to engage in further discussions with the Planning Department on this matter. And as a result of that, I think we've submitted a stipulation to continue the August 31, 2007, hearing. We last sent it to the Corporation Counsel's office and I'm assuming it was forwarded here. GRAHAM: Jeff? DARROW: The continuance letter till October, correct? LIM: Right, right. We had executed a stipulation to continue to the Planning Commission's meeting in West Hawaii on October 19, 2007, subject to continuance to a later date in West Hawaii by agreement of the parties and approval by the Planning Commission. So that's what the last thing that we sent in to the County, yesterday, I believe it was. GRAHAM: Thank you, Mr. Lim. So your request at this time is that Planning Commission continue this matter? LIM: That's correct. GRAHAM: To the October hearing? LIM: That is correct. GRAHAM: All right. Commissioner Watanabe? 5 WATANABE: I'll move to continue to the October 19`h meeting of 2007. GRAHAM: Is there a second? ALAMEDA: Second. GRAHAM: All right. Seconded by Commissioner Alameda. Mr. Yuen, since the Planning Director is involved in Item No. 4, 1 guess, on this one, are we looking to continue both of these items or I imagine Mr. Lim only speaks for the Kohala LLC application. YUEN: They should be dealt with at the same time. So we agree. It's not a big rush. There's nothing happening on the property, so we agree that both Numbers 4 and 5 should be continued to October. GRAHAM: Thank you. And, Mr. Torigoe, are there any legal considerations we should be aware of? TORIGOE: No. Basically the deadlines will not start running until, as long as there's an agreement the deadlines will be okay, I think. GRAHAM: Thank you. Any questions, any further questions of Mr. Lim or any comment by the Commissioners? We do have a motion right now before us. IWASHITA: I just GRAHAM: Yes, Commissioner Iwashita. IWASHITA: We're treating this as a contested case kind of scenario? GRAHAM: I don't think it's specific that we're treating it. This is whenever there's a decision by this body I think the legal ramifications are such that it is as if it were a contested case hearing. IWASHITA: So, I'm just concerned that we meet all the procedural requirements, - since we're not hearing it all at once and the Commissioners present might be different, you know, in October than present today - whether or not we need to address any procedural requirements. GRAHAM: So would you like me to query Mr. Torigoe, I guess, of any further IWASHITA: Yes. GRAHAM: Any further procedural considerations? TORIGOE: I believe that after the last hearing between Mr. Lim and the Director we had an agreement that, and I assume that the question is really aimed primarily at HRS 91-11 matters about having a proposal for a decision in front of the Commissioners before the decision 6 is made. I think there was an understanding that the, let's see, the Planning Director had submitted his recommendations and that would be sufficient but correct me if I'm wrong, I think if you can just straighten that out and that there would not be a requirement of further filings beyond those which we've already talked about, that is that the parties will be filing findings of fact and conclusions of law and being able to respond. So, and I think there's a stipulation regarding submittal of those findings and conclusions that was submitted and it was dated, looks like, received August 16`h in the Planning Department. GRAHAM: Okay. All right. Mr. Lim, are you in conformance with all what you hear? LIM: That's correct. We submitted a stipulation regarding submittal of proposed findings of fact, conclusions of law and decision and order which was signed by the attorney for the Planning Director on August 15`h and by myself on August, I think it's 10`h or 16`h, I can't tell which one. But basically that conforms with what Mr. Torigoe has represented in that the Chapter 91-11. Section 91-11 proposed findings would be, we would consider the Planning Director's background and recommendation as being the Planning Director's proposed decision. And then we would have an extension of the deadline within which to submit any other findings of fact which would probably be primarily the applicant's from August 17, 2007 to not later than 20 calendar days prior to the final action by the Planning Commission on this matter. And that's all laid out in the stipulation. GRAHAM: Okay. Thank you, Mr. Lim. IWASHITA: Mr. Chair? GRAHAM: Yes, Commissioner Iwashita? IWASHITA: Just thinking about it, the way the deadline is worded I guess I'm a little concerned is, how we're doing ahead of time when the final action by this body is going to be and if we use that, you know, to measure the time back LIM: Typically what we're expecting was, you know, we don't know how long the hearing is going to last in between the final action. And I think that we were trying to estimate out that it usually takes the Planning Staff, they usually start setting up the agenda at least 30 days ahead of time, so we would know what the date would be. IWASHITA: Oh, so we're continuing this to October 17`h. Does that now mean that the, I believe that's the date, so it's September 27`h or something like that? Is that LIM: Well, we're expecting that we're going to have some discussions with the Planning Director on this matter. So it may be that it gets continued further; and that's why the stipulation has that additional, you know, continuance. GRAHAM: Just to try to be clear on this - then if I'm hearing right then we're sort of assuming at this point that when you refer to the final decision tentatively we're talking about the October meeting but that we're not cementing it to that at this point because there will be further discussions between you and the Planning Director, is that correct? 7 LIM: That is correct. GRAHAM: Thank you. IWASHITA: So for the moment it is the 27th or 20 days before the 17`h. That's, okay. GRAHAM: Okay? So if we're all clear, I think we could have Jeff take the vote on our motion before us, which is to continue the hearing. And this is Items 4 and 5, Jeff? DARROW: This is Items 4 and 5. What I'll be doing, we actually have five voting sheets for this. So if it's okay if we can do one vote, and I'll do all the votes on all five of them. We have two for the SMA, we have one for the Planning Director's initiated rezoning and two for the rezoning. GRAHAM: Okay. So my understanding is both the applicant and the Planning Director are supportive of this continuation and that Jeff plans to take five votes for one. If there's any Commissioner who would prefer otherwise, would you please indicate so at this time. All right. Thank you, Jeff, go ahead. DARROW: Sorry to, I need to get the Commissioners who WATANABE: Yeah, I'll take it as a friendly amendment for the five. DARROW: Okay. And also the Commissioner who seconded the GRAHAM: Yes. Commissioner Alameda, are you, I believe you seconded ALAMEDA: Yes to your request. GRAHAM: Yes. DARROW: Okay. Thank you. Okay, with that I'll take the roll. The motion before us is to continue both Agenda Items 4 and 5 until our October 19`h Kona meeting. Commissioner Watanabe? WATANABE: Aye. DARROW: Commissioner Alameda? ALAMEDA: Aye. DARROW: Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Rho? 8 RHO: Aye. DARROW: Commissioner Woodward? WOODWARD: Aye. DARROW: And Mr. Chairman? GRAHAM: Aye. DARROW: The motion passes six to zero. GRAHAM: All right. Thank you, Mr. Lim. LIM: Thank you very much. The discussion ended at 12:22 p.m. Respectfully submitted, Sharon M. Nomura, East Hawaii Secretary ATTEST: Noriko Sauer, West Hawaii Secretary 9 r PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JULY 20, 2007 A regularly advertised hearing on the applications of Initiator PLANNING DIRECTOR and Applicant KOHALA LLC (REZ 866/SMA 379) was called to order at 9:35 a.m. at the Waikoloa Beach Marriott, Naupaka III, 69-275 Waikoloa Drive, Waikoloa, Hawaii, with First-Vice Chairman C. Kimo Alameda presiding. PRESENT: C. Kimo Alameda ABSENT & EXCUSED: William Graham Takashi Domingo Alvin Rho Andrew Iwashita Rodney Watanabe Shelly Ogata Rene' Siracusa Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Brooks Bancroft, Deputy Corporation Counsel Chris Yuen, Planning Director Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately 15 people from the public in attendance. INITIATOR: PLANNING DIRECTOR a. Change of Zone (REZ 07-000067) for 37.88 acres of land from a Single-Family Residential 15,000-square foot (RS-15) to a Residential and Agricultural 5-acre (RA-5a) district. b. Repeal of Ordinance No. 97-102 which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5a) to a Single-Family Residential 15,000-square foot (RS-15) district. C. Revocation of Special Management Area (SMA) Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved, owned by Kohala LLC, is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua lsr, North Kohala, Hawaii, TMK: 5-9-1:8. APPLICANT: KOHALA LLC (REZ 866/SMA 379) a. Amendment to Condition C (time to secure final subdivision approval) of Change of Zone Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5a) to a Single-Family Residential 15,000-square foot (RS-15) district. b. Amendment to Condition 4 (time to secure final subdivision approval) Special Management Area Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua 1s`, North Kohala, Hawaii, TMK: 5-9-1:8. 1 ALAMEDA: All right, Fellow Commissioners, we're at Agenda Item 2 and potentially 3. According to Corp. Counsel we have an opportunity to combine Agenda Items 2 and 3 because they're contingent. And I'd like to turn it over to Mr. Darrow for his explanation of why we could combine 2 and 3. Jeff? DARROW: Thank you, Mr. Chairman. The Agenda Item Nos. 2 and 3 are related to each other. Agenda Item No. 3 is a time extension request from Kohala LLC requesting a 5-year time extension to Condition C of Rezone 97-102 and also Condition 4 of Special Management Area Use Permit No. 379. And basically these are both the same conditions, just in two different permits, that they be able to secure final subdivision approval. The Agenda Item No. 2 is initiated by the Planning Director to change the zoning of this property, as well as to revoke Special Management Area Use Permit 379. Before I get into too much detail, I'd like to just give a brief presentation of the location of these applications. These applications are occurring in the North Kohala District of Hawaii, more specifically we're looking at the Akoni Pule Highway running in a north/south direction. Kawaihae would be located in approximately this area. Hawi would be located in this area. We have Kohala Ranch Subdivision and other agricultural subdivisions in this particular area. And the area that we're looking at for these applications is identified with a blue dot. The zoning of this property at this time is Single-Family Residential 15,000 square feet. Around this particular property we have Agricultural 5 acres identified with light green. The darker green is Agricultural 20 acres. The light blue is Agricultural 3 acres; and the darker blue is Agricultural 40 acres. We also have an area that has come in previously for a Change of Zone to Multiple-Family 4,000 square feet, as well as received a Special Management Area Use Permit. Additionally, we've had a Special Management Area Use Permit on the properties just to the south which had come in for a subdivision to break up these parcels into 5-acre lots. And then there's one bulk lot remaining. The applicant in this case, again, we have two applicants, but Kohala LLC who owns the property at this time is requesting a time extension to Condition C of Change of Zone Ordinance No. 97-102 and Condition 4 of Special Management Area Use Permit 379. These permits were approved in 1997. They were approved on different dates. July 14, 1997 is the effective date for the Change of Zone Ordinance and August 8, 1997 is the effective date for the Special Management Area Use Permit. Both of these have similar conditions stating that the applicant needs to secure final subdivision approval within 5 years from the effective date of those permits. The previous owner and the current owner up to this point had not submitted a subdivision plan as well as a request for a time extension on these conditions. Usually what happens is if the applicant is not able to meet these conditions within the time allotted then they request an administrative time extension which is allowed through the conditions of these permits. The applicant and the previous owner in this particular case did not do this. So it's the Planning Director's position that once this is not done then in all actuality these permits are no longer valid. The applicant recently, almost ten years after the fact, has come in and is requesting a time extension for these two conditions. Just to go into detail briefly about the Planning Director's initiative, the Planning Director is initiating a change of zone to be able to change this property from its currently zoned Single Family Residential 5,000 square feet to Residential and Agricultural 5 acres or RA-5a. And, again, the main reason for this is spelled out in the recommendation where there have been two Senate Concurrent Bills, I believe, 146 and 179 that have requested and urged retention of these 2 areas for viewplanes and open space, and more recently, for historic sites and traditional purposes. The other reasoning is that it complies with the natural beauty element of the General Plan and, lastly, that it's the position of the community to be able to preserve the coastline in this particular area of North Kohala. Additionally, the Planning Director is initiating revocation of Special Management Area Use Permit 379 which originally was approved to allow a 50-lor subdivision and related uses. So the Planning Director is asking that that be revoked. If the Planning Director's initiative passes and this particular property is rezoned to RA-5a then in the future when an applicant does come forward to be able to subdivide this property, at that time they will be required to come before the Planning Commission for a Special Management Area Use Permit, and therefore place further controls on the property regarding public access and special management area guidelines. The Planning Director is recommending that the time extension for both the Change of Zone Ordinance and the Special Management Area Use Permit be denied, and that he is requesting that his initiatives for the Change of Zone and the revocation for the Special Management Area Use Permit be approved and receive a favorable recommendation. ALAMEDA: Thank you, Mr. Darrow. DARROW: Just one, one quick note. ALAMEDA: Sure, go ahead. DARROW: Because we're dealing with a change of zone request as well as a special management area, we have two, the change of zone obviously will receive a recommendation from the Commission and then go to the Council. The Special Management Area Use Permit will be final with the Commission. So that's something to keep in mind. Thank you. ALAMEDA: Thank you. Commissioner Siracusa, questions for Mr. Darrow? SIRACUSA: Yes, I have two procedural questions. ALAMEDA: Go ahead. SIRACUSA: I just want to clarify that if, well, first of all, are we going to take these matters up in the order, and accept the motions in the order in which they're presented on the agenda, which starts out with the Planning Director initiated ones? That's No. 1. And No. 2 is if we pass the Planning Director's proposals then we don't have to go on and do any motions on the applicant's proposals because they will be automatically moot? Is that, or do we have to go through the process anyway? ALAMEDA: Let's ask Mr. Torigoe. No. 1, do we have to take it up in this order; and No. 2 if we take up the first one do we have to take up the second? TORIGOE: Thank you, Mr. Chair. I've actually talked with Mr. Lim who represents the applicant and the Planning Director; and because as Mr. Darrow noted these two agenda items are basically two opposing sides of the same factual coin, it makes sense to consolidate 3 them for your discussion and action. And so that would be the first procedural issue that I would recommend, is that you confirm with the parties that they'll agree to consolidate these for action; and then you go ahead and take that action. After you've consolidated, assuming you consolidate these two issues, then it becomes really up to you how you would want to handle it. I would think that at some point you would want to entertain a motion that would, well, you could possibly entertain a motion that would deal with everything in one motion, if it fits that way. ALAMEDA: Follow-up, Commissioner Siracusa? SIRACUSA: Follow-up questions, yeah. I don't see how we could do one motion if one motion would be at the very least on the Change of Zone and the other would be on an SMA. It would seem that at the very least we would have to do two separate motions TORIGOE: Right. SIRACUSA: To keep it from getting too convoluted. TORIGOE I think you're right. That would probably be the better way to do it. And, also, think about the relationship between the Rezoning and the SMA Permit. Basically, the SMA Permit ought to be consistent with whatever the rezoning is. ALAMEDA: That sounds good. Commissioner Siracusa, I think you've got it right. Commissioner Domingo? DOMINGO: Just from Jeff, you know, in the event that we revoke the Change of Zone Ordinance and the SMA Permit, then in the future should the owner decide to come in and develop that, then they would have to go through another rezoning procedure and an application for an SMA Permit? DARROW: If the applicants choose to develop it as it is now, a 50-lot subdivision, if the Planning Director's initiative passes, then the property will be zoned RA-5 acres. So they could do, you know, a development on 5-acre lots. But, again, it would require the development to come before the Planning Commission through the subdivision of the lots for the Special Management Area Use Permit. DOMINGO: I just want to clarify that in my mind because I kind of heard you say once it's revoked then they would have to come in for any application, for another SMA Permit; and if I heard correctly I didn't hear you saying that they need to come in for another rezoning application. DARROW: Yeah, the Special Management Area Permit that they would need to come in for would be for the subdivision of the 5-acre lots, cause right now the property is approximately 38 acres. So they'd still need to go through the subdivision, which would trigger the requirement of a Special Management Area Use Permit. Thank you. 4 ALAMEDA: Thank you, Commissioner Domingo. Do we have any questions before I ask the applicant up? Okay, please raise your right hand. Do you swear or affirm to tell the truth now before the Hawaii County Planning Commission? LIM: I do. ALAMEDA: Thank you. Could you please state your name and address for the record. LIM: I'm Steven Lim from Carlsmith representing the applicant, Kohala LLC, at 121 Post Office Box, Hilo 96721. ALAMEDA: Okay, thank you, Mr. Lim. What do you think about our discussion so far or what would you like to share with us. LIM: I think that the Agenda Items 2 and 3 should be discussed together, as Corporation Counsel has indicated those are flipsides of the same coin. I think you have to take separate actions. So we'll stipulate to discuss both and incorporate the records for both agenda items into one proceeding. ALAMEDA: Okay. Is there anything else you'd like to add for our benefit? LIM: I have a full presentation, of course. But for procedural purposes that I think should handle it. ALAMEDA: Okay. Mr. Torigoe? TORIGOE: Thank you, Mr. Chairman. Just to clarify, as Mr. Darrow noted the rezoning is a recommendation matter that you would send to the Planning Committee, the SMA Use Permit decision is a final decision of yours and it's technically a contested case. And so I just wanted to get clear on the record that, Mr. Lim, you know, as the SMA matter is a contested case matter you would have the right to call witnesses or, you know, do all the kind of trial-like things that you might want to do if there was an intervenor present. If we're going to consolidate this and have a more informal discussion, are you okay with that? LIM: I think I would like to have whatever proceedings occur, whatever exhibits are introduced to be part of the SMA Chapter 91 type of a hearing, even though it's technically mixed in with the rezoning. If we have to appeal, I have to appeal on the record that is represented before the Planning Commission on the SMA Permit. So I want to make sure that everything that we do today and in subsequent hearings would be included on the Chapter 91 SMA hearing. TORIGOE: Okay. So, I guess, Mr. Chairman, as we go we should just make sure that Mr. Lim has the opportunity to introduce his exhibits and you'd want to, as we go also check and see if there are any other procedural matters that he would like to have done as a matter of a contested case before we wrap up. ALAMEDA: Thank you. Mr. Torigoe, if it's going to go along those lines, should the parties, the Department and all, be at the front or 5 TORIGOE: Well, we can, you know, I guess we can see if the parties Mr. Lim, would you request that the Planning Director basically take a seat as a party for these proceedings at the counsel table or are you okay with him seating where he is now? LIM: I'm okay with him seating where he is now. I understand in SMA proceedings that he would be a party. ALAMEDA: Okay. All right. Seeing no further questions for our Corp. Counsel, Mr. Lim, go ahead. LIM: Thank you very much, Mr. Chairman and Members of the Commission. I think what I'd like to stress the most is the issue of fairness on this proceeding. For those of you Can you turn it (microphone) up a little bit louder maybe? Thank you. Okay. (Testing microphones). I'll just try to speak louder, I'll try. Okay, so going back to the fairness issue, as I think those of you on the Commission, probably half of you have been on for some years now, half of you have just recently been appointed. But for those who have been on for some years now, I think you probably understand that this is the very first and the only Planning Director initiated down zoning of a private property without any consent from the fee owner. I want you to understand that very clearly because I've been doing this, at least with Mr. Yuen, for about 8 years now or nearly 8 years. I am only aware of two instances in which the Planning Director initiated a down zoning; and those were both voluntarily agreed to by the applicant. One of them was in approximately 2006, that was an application by the Matsuda family for approximately 1.95 acres in Waiakea in Hilo. He took his previously zoned RS-10 property, Single-Family Residential, back down to Agricultural 3 acres because he was not going to pursue subdivision or development of his property. It doesn't say in the Planning Department's records but I'm assuming he ran into some difficulty with respect to developing his farm dwelling on the lot and had to pay the fair share fees and all the other things that come along with the rezoning. So that was revoked and reversed, the zoning was reversed back down to Ag-3. More recently, some of you probably worked on the 2007 request by the Planning Director to down zone the pun up above Waimea town. That was property that was owned by the State Department of Land and Natural Resources; and also in that case the State Director at the time, Peter Young, consented in writing to the down designation. That was from Ag-1 a to Agricultural 400 acres for the area of the puu. Soother than those two, I am not aware, and I've been doing this in the County of Hawaii for about 20 years now, I am unaware of any other Planning Director initiated down zoning of a private property without consent by the property owner. So that's why I'm saying we're raising the fairness issue. Going to the reasons for the Director's recommendation to down zone the property, essentially what he's saying is that we haven't gotten the final subdivision approval in the 10 years since the rezoning was adopted and the SMA was approved in approximately 1997; and that is correct. The developer and owner has changed over the years. I'll give you a short rundown on that. But that is part of the reason why there was no action. The other big reason why there was no action is that the property has significant archaeological sites and burial sites on it. And it was only until May of 2006 that we got the final approval of the archaeological inventory work from the State Historic Preservation Division. So I'm going to pass out exhibits that detail some of the burial treatment work and the latest May 19, 2006 SHPD approval letter. What I'm passing out 6 to Jeff is a May 19, 2006 SHPD letter to Paul Rosendahl, April 28, 2006 SHPD letter to Paul Rosendahl, May 8, 2005 PHRI letter to SHPD, May 3, 2005 PHRI letter to SHPD. And to give some context in terms of the general area, this is property that is located just immediately makai of the Kohala Ranch project. We believe it is consistent with the General Plan and the Special Management Area Regulations in the area. In fact, when the project first came through the Planning Commission and the Planning Department, the County of Hawaii Planning Department's recommendations stated the development will not have any significant adverse environmental or ecological effect. They also stated in that recommendation and report that "Although there will be a diminution of open space and alteration of the existing coastal viewplane the project as proposed would have no adverse impact to recreational and visual resources, access to and along the shoreline, nor coastal ecosystems". The report went on to conclude that "The proposed development is consistent with the objectives and policies as provided by Chapter 205A, HRS, and Special Management Area Guidelines contained in Rule 9 of the Planning Commission Rules of Practice and Procedure." It is our position that the Planning Director's effort to down zone the private property without the fee owner's consent in this case is not supported by law, nor procedure, nor the County General Plan. As you can see from the graphic up there on the site plan that the Planning Department staff has posted, it's in an area of development very close to a Multi-Family Residential zoned area and immediately makai of something in the neighborhood of 800 acres of State Land Use Urban which is that yellow that you see, which is zoned for potential density of approximately 1490 residential units and a golf course. Whether they actually developed that project or not, I don't know; but it has been zoned for about the same period of time. We don't think that the proposed zoning or SMA permit for this particular project is out of line. We think it's consistent with that area of North Kohala. In fact, this property is about 38 acres, round numbers. At RS- 15 zoning the total maximum density is something in the neighborhood of 110 lots. What we have the Special Management Area Permit for is only 50 lots. This particular client, Kohala LLC, has been in the process over the past year or so trying to determine, once we get the SHPD clearance for the archaeological sites and the burials as to where these preserved sites would be, it's to then figure out what size of project he wants to do. We're looking currently at something less than the 50 acres (sic) but we're not sure yet. So I can't any make commitments with that regard. But while we are essentially under attack on the entitlements, we really can't move forward any further. Thus far we've secured water and an indication that the utility duct lines for the electrical have already been constructed under the Akoni Pule Highway to the project. We've recently made a request of the Kohala Ranch Water Company, which is a private water company servicing this area under, there's an agreement between the surrounding properties, we've made a request for the water meters. And what happens after that is they will then send us what they call a "will serve" letter from the public utility company that basically says "We will service your project if you will build these certain water infrastructure improvements." The Condition L of Ordinance No. 97-102 has already been satisfied by the submittal of the February 5, 1998 agreement to the County. We've satisfied the affordable housing requirements of Condition L. Condition M of the Rezoning Ordinance related to submittal of a data recovery plan for the archaeological issues, we've just recently completed all of the work for that. So now 7 at this point in time we would be ready now to develop what the configuration of the lots would be, considering the archaeological preserved sites which are numerous in this area. The property owner over the past several years has gone back and forth between considering whether he wanted to do a very low density project to negotiating with a potential joint venturer who was proposing to develop this property and the next door to the south property, which would be a total of about a 102-acre site for development, joint development, of those two project areas. And so the density on the present property, the Kohala LLC property, would have been reduced because it would have spread the density over on to the southern site. That took up some time during the mid-2000s and it in the end didn't work out. We have, in fact, just before the Planning Director sent his May 2007 letter to the applicant indicating that he will be processing this down zoning, we were already in the process of obtaining the project entitlements, preparing our draft annual report on the entitlements, which we did submit, along with our time extension. And so we are now currently underway to pursue development. But pending this development, pending this issue we have to stop. I think one of the big reasons, and something that the Planning Director's background report indicated, was that the time condition for obtaining final subdivision approval, although it's a violation, I think that he felt that one of the bigger reasons why you should down zone this property is, as he says, more important than noncompliance, this revocation action is being initiated in response to the resolution from the State of Hawaii Senate. Those are the two resolutions that Mr. Darrow referred to which was the 1988 Senate Concurrent Resolution 179 and the 2001 Senate Concurrent Resolution No. 146. I was involved in the development of a project in North Kohala which generated, I think, the primary thrust for these resolutions to come out; and that was the Mahukona Resort project further up, several miles away from this particular project. The one in 1988 came down right about the time that the SMA and entitlements were being processed for that project. And the 2001 resolution which essentially reiterated the 1988 resolution came out during the initial land clearing activities that was being conducted on the Mahukona site. We don't, and we are not aware of any specific reference in those resolutions to this particular property and, in fact, we don't think they apply to this property. As you can tell from the dates, in 1988 the Senate Concurrent Resolution 179 was passed. In 1997 when that resolution was already in effect, the Change of Zone and the SMA Permit for this particular property was granted. So I submit to you that those resolutions have no force and effect. I submit to you that the Planning Department's representations and recommendations on the original Change of Zone have not changed. An additional reason for the Planning Commission to deny this reclassification, this involuntary down zoning, is that this is a policy decision that the Planning Director is making by himself. He doesn't have any guidance from the County Council; and if he wanted to change the land use for this area, for this particular parcel, then he should have passed or should have processed a General Plan Amendment for this parcel when all of the proceedings were going on in 2005 when the new General Plan was being processed. In fact, the property just to the north of this subject property was changed from Extensive Ag down to Conservation. So the Planning Department and the Planning Director was at that time looking at this area. And had he thought that this was inappropriate land use, then he should have processed a General Pan Amendment at that time. And his failure to do so I think is instructive that it points out the arbitrary nature of 8 this action and that is one of the reasons, also, why we believe that the down zoning is inappropriate. I think it's instructive, at least today, that as of this hearing that we have no agency comments in opposition to our request for a time extension on the Change of Zone and the SMA, and at least as of today I don't see anybody testifying against our time extension. We feel that the involuntary down zoning is inappropriate. We believe that the Planning Commission and the Planning Director have both recommended and approved time extensions on change of zone ordinance and SMA Permits routinely; and that if there are any updates to those permits because of changed conditions, the Planning Commission and the County Council have felt very free to amend and revise those conditions on those time extension requests. I believe that that is a proper method for the Planning Commission and the County Council to act on this matter. We believe that we're being unfairly singled out and we are not being provided with the equal protection under the laws that you provide to others. I have another exhibit to provide to you, which is our July 20, 2007 letter from Carlsmith Ball to the Planning Commission, which is essentially our recitation of the legal issues that we feel are implicated by the proposed down zoning. I ask you to take that into consideration. But essentially like most, hopefully like most legal concepts the concept that we mentioned in those letters are founded upon the issue of fairness. Like I said, I could see the Planning Director pursuing a down zoning if this was a bad developer, if they had committed bad acts or if they had been intentionally disregarding any notification from the Planning Department they'd better get going on the project. The May 2007 letter to the developer indicating that they were going to process the down zoning was the very first notice that the developer had of the Planning Director's intention. We believe that the legal memorandum raises, I think, in legal terms, the basic issue of fairness that I started out with, is this fair to this applicant? Have you not in the other cases for time extensions routinely granted these time extensions to developers? We feel that we have provided enough information that the developer has proceeded with aspects of the development, and due to the SHPD clearance in May 2006 now is able to proceed with the preparation of his site plan for his lotting of the project. We feel that the Planning Department and that the Planning Commission's initial recommendation for approval and granting of the SMA Permit for essentially 50 percent of density, the zoned density on the project, was a reflection of the agreement by the County at that time that the downsized project that was coupled with a visual study to minimize, showing the minimal impacts of the project on the visual aspects of the Kohala coast was sufficient to address the concerns. I stand ready for questions by the Commission. ALAMEDA: Okay, before we do that, could I, I wanted to make sure that our exhibits are in the record. And what is the protocol for that? TORIGOE: Well, I think you can ask Mr. Lim to identify whatever exhibits he wants to have in the record for the SMA Permit matter, and see if there's anybody or the Planning Director has any objections to those, see if the Commission has any comments on the admission of that evidence, and as the presiding officer you make the call. ALAMEDA: Okay. Mr. Lim, could you restate the two exhibits that you just presented to us. 9 LIM: Sure. I'll go ahead and run through the list of SHPD letters. The May 19, 2006 SHPD letter to Paul Rosendahl, the April 28, 2006 SHPD letter to Paul Rosendahl, the May 8, 2005 PHRI letter to SHPD, the May 3, 2005, PHRI letter to SHPD. That was the first set of exhibits we talked about. I'd ask the Planning Commission, for purposes of the SMA record to take judicial or administrative notice of the County General Plan and the proceedings that supported the County General Plan, which is Ordinance No. 05-25. In those proceedings you will find the reference to the North Kohala District change that is identified as E-6 which was Extensive Agriculture to Conservation for the lot that is immediately north of the subject property makai of Akoni Pule Highway. We'd also like the Commission to take judicial and administrative notice of the fact that between the 1997 General Plan and the 2005 General Plan there has been no change to the County of Hawaii General Plan designation for the property. Therefore, we feel that it's inappropriate for the Planning Director to select out of all the other properties in the North Kohala region this particular property for a down zoning which, as I hope I made clear to you, is probably going to be the very first involuntary down zoning attempt by the Planning Director, at least that I can remember in approximately 20 years in the County of Hawaii. ALAMEDA: All right, first thing first. LIM: My last exhibit was the July 20, 2007 letter to the Planning Commission from Carlsmith Ball LLP. For purposes of the record, I'd like the Commission to take judicial and administrative notice of all the records and files in the SMA No. 379 and Ordinance No. 97- 102, SMA Permit 93-13, which is a prior SMA Minor Permit for a single family residence and ohana dwelling on the property. And that's all so far. ALAMEDA: Mr. Director, do you have any objection to allowing these exhibits to be part of the record? YUEN: No objection to the introduction of the exhibits into the record, nor to the Planning Commission taking administrative notice of the record, of the other records mentioned, including the proceedings of the General Plan Amendment. ALAMEDA: Thank you. Questions for Mr. Lim? Oh, Mr. Darrow, procedural question? I would like to first ask my Fellow Commissioners if you have any problems with the exhibits that were being proposed for the record. If not, okay, we need to make a motion to allow TORIGOE: Mr. Chairman, if there are no objections, you can just, as the presiding officer, admit them into evidence on the record. ALAMEDA: Okay. As a presiding officer I admit these exhibits into the record. DARROW: Just for procedural clarification purposes, some of these exhibits that were submitted are different letters but submitted as one exhibit. Would the applicant like these exhibits separate or is Exhibit 1 okay for the multiple? 10 LIM: 1 guess why don't we do it, to number them sequentially. The May 19'h would be one, and so forth. There's I think four separate letters, so one through four. Then the Carlsmith letter would be No. 5. DARROW: Thank you. Thank you, Mr. Chair. ALAMEDA: You're welcome. I wanted to allow questions from the Commissioners since Mr. Lim is there. Who grabbed the mike first? I think Commissioner Domingo got the mike first. So go ahead, Commissioner Domingo. DOMINGO: Mr. Lim, ever since the acquisition of the change of zone and the approval of the SMA Permit, how many owners have since come into the history of this property? LIM: From the adoption of the SMA and rezoning, in mid-1997, there have been two owners. The owner at the time of the applications was Tom Gentry who met an untimely passing. He passed in about '97, late '97 I believe. Then in mid-1999 Kohala LLC takes title to the subject property. DOMINGO: Okay, thank you. ALAMEDA: Commissioner Iwashita? IWASHITA: So there's just those two owners? LIM: That's correct. IWASHITA: I don't know if you know the answers to these questions, Mr. Lim. In 1999 when Kohala LLC took title to this property, did Kohala LLC review the Ordinance No. 97-102? LIM: I can't say. I do know that they had submitted an annual report on the SMA and Change of Zone on July 5, 2001 which acknowledged the time frames. IWASHITA: I'm sorry, that's in 2001? LIM: Yes. I don't know what they saw when they purchased the property or before they purchased the property. But I do know that there is a July 5, 2001 annual report submitted on behalf of the client. IWASHITA: Thank you, Mr. Lim. Do you know who would know, who at that time, in that time frame, in 1999 when Kohala LLC purchased the property whether at that time they reviewed 97-102? LIM: If your question is did they know what their responsibilities were under the permit, I don't know what they knew at the time that they purchased. I know that subsequently they became aware of what the responsibilities were. IWASHITA: And by subsequently what time frame are you talking about? 11 LIM: I have to assume that around 2001 that they knew they had to comply with the time conditions cause that was the July 5, 2001 annual report submitted by Sidney Fuke on behalf of the client. IWASHITA: Okay. So by 2001 at least I'm going to assume, unless there is evidence presented earlier that, and unless you object, that the applicant knew at the time of acquiring title that there were these time restrictions in 97-102. LIM: Well, I guess I would have to object because I don't know what they knew. I can't say myself what they knew. But I can say that as of 2001 they were aware of the time restrictions. In my discussions with them, the client is not a sophisticated developer and I don't believe that they understood that they would have had to make a formal time extension request for the time to get final subdivision approval. IWASHITA: Before 2002 when Mr. LIM: That's correct, that's correct. Cause we were retained subsequent to that and we had that discussion with him. IWASHITA: Okay. I tell you, Mr. Lim, my concern is that, you know, you raise the fairness issue, and that's a fair thing to raise. However, when we talk about fairness, you know the ordinance makes clear, as I read it, you know, the obligation of the applicant and the assignee, in this case is your client who acquired title in 1999. And, to be fair, I think the applicant needs to accept that responsibility from the time of acquisition, whether they actually knew or not. And therefore I think that it's important for me, anyway, as a Commissioner, that evidence be presented by you, you know, by the applicant, as to when they actually became aware of 97-102 and its time restrictive requirements. If we don't have that evidence I cannot even start to consider, really, in my mind, any fairness argument on the part of the applicant. Because if the applicant is not being responsible and the ordinance makes it clear that the applicant is responsible and the assignee of the applicant in this case, Kohala LLC, is responsible for meeting all of the conditions within the time frame spelled out in the ordinance, and that if the applicant is going to ignore that responsibility, then I don't think the applicant is in the position to argue fairness. LIM: I don't think the applicant intentionally ignored it. I think they just didn't know. IWASHITA: Well, I understand your argument, but we need facts. LIM: Well, I think the issue is it's a conceptual issue. Your argument I think would go to whether you grant the time extension or not; and that's a separate issue, to me, from do you change the zoning policy because of that failure to follow the time extension. I think those are two totally separate issues. IWASHITA: Well, I understand what you're saying Mr. Lim. However, what I'm trying to convey to you is that I believe that the applicant for the time extension here and the owner objecting to the down zoning proposal by the Director that the applicant has a 12 responsibility to present a complete record to support your unfairness argument, okay, both of them. And so, yes, we can argue philosophically or, you know, whatever term you want to put on it. But what I'm trying to convey to you is that I believe that unless the applicant puts on the record what it knew when, then we can make, all we have are philosophical arguments. We have no evidentiary basis to go forward to really address your fairness argument. So, you know, I would like some suggestion, or maybe we need guidance from Corp. Counsel, as to, you know, how this evidence is going to be generated, whether we require that applicant LIM: Then I would request a continuance if that's something that you need to decide the matter. IWASHITA: And the understanding would be that the applicant would do the necessary investigation and inquiry to present the evidence that I'm suggesting is needed? LIM: I understand that you want to know when the applicant personally knew of the time condition requirements under the Change of Zone and the SMA? IWASHITA: Yes, 97-102. LIM: That's correct, okay, I can get that. IWASHITA: Thank you. DOMINGO: Mr. Chair? ALAMEDA: Commissioner Domingo. DOMINGO: Thank you, Mr. Chairman. Mr. Lim, your reference to the developer not being a sophisticated developer, my interpretation is that probably you mean that he's not involved actively in the development arena, therefore not being aware of what he has to comply with at certain time or certain dates; and that unless having hired a professional who might be a planning consultant or even a legal person such as you, the developer as such would not be totally aware of things that should be met at the time intervals. That's what I'm interpreting you're trying to tell us when you say he's not a sophisticated developer. Am I right? LIM: I think that's correct; and I think that goes more to the issue of good faith on his part. I mean from what I know about the progress of the project, he was fairly stalled in the mid-2004 and 2005 area in negotiations with the one person who was going to jointly develop his property and the one to the south. So it kind of came to a stop; and that didn't work out in 2005. And so then he retrenched, tried to get the archaeological approvals done and was ready to move forward when we got hit with this issue. DOMINGO: Has the owner even attempted to sell the parcel during the past years? LIM: Other than the proposed joint venture in about 2004-2005 I don't believe so. I can't say for sure. I don't know if he has listed the property or not. 13 DOMINGO: Now, you know, going back to Commissioner Iwashita's statements with regards to fairness, I am reminded of an application which we entertained perhaps a month or two ago with regards to a special permit given to a trucking company who had not met the requirements of the special permit and had not submitted plan approvals and other pertinent information that was required of him during the process of having the permit. And it came before us, and what this Commission did after listening to him on all the facts and weighing the issue, we decided that perhaps, you know, okay, this individual was not aware of what was supposed to be submitted to meet the deadlines imposed on those submittals. And on top of that he had an attorney, a friend of his who was consulting with him and who was carrying the issue around; and he, in fact, did not proceed to submit those requirements in a timely fashion. You know what happened with us? We the Commission, we decided to also at this point to be lenient with him and we said, okay, you sit down with the Planning Director and discuss with the Planning Director what would be the most fair way that we can address this problem. Had this not been addressed, and I don't know if it had been addressed already, this individual was set to pay a phenomenal amount of fees to the County, you know. So I guess when we speak of fairness it goes both ways. And I think this Commission will, I personally will consider anything that would pertain to the issue of fairness, regardless if it goes one way or the other. ALAMEDA: All right, just following protocol, let me get a couple more questions from the Commissioners. And I wanted to ask, of course, Director Yuen if he has questions, cause then after that Director Yuen has an opportunity to present his case. So, going along the lines of our Commissioners' questioning? SIRACUSA: I'll hold that till later. ALAMEDA: Okay. Commissioner Woodward. WOODWARD: Mr. Lim, can you explain to us other than the fact that the owner may not have known until 2001 about the responsibilities, why he didn't request extension of the time in 2001? LIM: I do not know. All I can surmise is that when he was doing the negotiations with the potential joint venture partner he was kind of leaving it up to them and it just didn't work out; and it fell through the cracks. I can't say, I know that he didn't personally know that you're supposed to make a time extension request, although it may be because of the terms of the permit he should know. We're not trying to say that, you know, he never knew. I think that at least as of 2001 when Mr. Fuke submitted the annual report that at least the client should have known, I'm assuming the client read that report. WOODWARD: Thank you. LIM: I think what we're trying to say is the issue of the time extension for the zoning and the special management area permit is something that you deal with regularly. You've done numerous ones of those. And I think that the way the Commission has approached, at least the ones that I've been listening to, is that you take the time extension, you look at the project all over again. If there are new issues that have come up since the original passage of the zoning ordinance or the SMA permit you put those issues in and you include those in the new permit or a new recommendation on the zoning to the County Council. That's another issue, I 14 guess; and I'd have to ask Mr. Yuen to give me some guidance on this. But I don't know that there have been many time extension requests that have been denied by the Planning Commission. There may have been but I wasn't tracking those. Thank you. ALAMEDA: All right. Commissioner Domingo? DOMINGO: Thank you, Mr. Chairman. Mr. Lim, after the acquisition of the property by the second owner, at what point did you folks contract with Rosendahl to go ahead and conduct an investigation and assessment of the property with regards to those burial sites and historical sites? LIM: I'm not sure of the exact date of the contract, but anything after 1999 should have been under contract with the current owner. I think, my impression of looking at what was happening on the burial treatment program and the inventory level work was that it was an on-going thing that took many years to accomplish. DOMINGO: Thank you very much. LIM: Before I forget, Mr. Chairman, for purposes of what constitutes the record on appeal for the SMA portion of the proceedings, I'd like to incorporate the two voluntary down zonings that I spoke about earlier, which is the Matsuda, John Mitsuda rezoning and for a parcel in Hilo identified as TMK: 2-4-80:parcel 15. And the other would be a voluntary rezoning for the Ag 400-acre district for TMK: (3)6-5-1:parcel 20, which was the Waimea town puu. ALAMEDA: I'm wondering if our staff could allow us to view that so that I could ask the Commissioners if they don't have any objections to it. Cause we need to look at it, yeah, as Commissioners. Commissioner Siracusa. SIRACUSA: I remember both of those issues, but what I don't understand is why, why do you want to incorporate those. LIM: I want to incorporate those as evidence of what the Planning Commission and Planning Director have recommended in the past and the fact that those are voluntary rezonings. I don't believe that there are, at least that I'm aware of, any involuntary down zonings that have ever been passed or SMA revocations that have been passed by the Planning Commission or the County Council. I don't know everything, but that's at least what my research shows to date. ALAMEDA: Let me ask Mr. Yuen if he objects to having that as part of the record. Mr. Yuen? YUEN: No. He's simply referring to a couple of actions that took place in the past. I have no objection to that being, the factual representations that are being made that there were a couple of down zonings that involved the consent of the applicant. There is more information on this that I'll give a bit later, but there's a time for that. ALAMEDA: All right, thank you. So there's no objection by Mr. Yuen to include that as part of the record. 15 LIM: That's for the files from the Planning Department on those, Planning Department, and I guess County Council files on those two rezoning actions. IWASHITA: Mr. Chair? ALAMEDA: Commissioner Iwashita. IWASHITA: What do you mean the files? LIM: You know, for purposes of the record on appeal, I think it's safer for me to designate the entire file, which would be, you know, if you go down to the Planning Department and the County Council and pick up and ask for a copy of the public records on those issues, then those are the things that I'm referring to. ALAMEDA: From what I understand it's pretty broad, those files, there's a whole bunch of information. LIM: That's correct, but I think for purposes of, you know, if the Commission decides to go on an involuntary down zoning, I need to have as much in the record as I can. YUEN: I have a question. What are you asking? That the entire rezoning of those two actions be put into the record? LIM: That's correct. YUEN: Seems like a big waste of paper, if your point is only that LIM: At this point in time because of the potential negative ramifications of my client, I can't, you know, I can't agree to cut off a portion of the record that might be helpful later on. I just am not prepared to do that now. YUEN: Well, if he wants to do it I don't have a problem with doing it. I think it's a waste of paper. ALAMEDA: Well, I feel like there's no general objection by Mr. Yuen to include this. However, just make note that if we do, if this agenda item does continue, I would request from the applicant that we'd bring in all of this, you know, if you want it to be part of the record. Commissioner Siracusa. SIRACUSA: It seems to me that you're comparing apples and oranges. You want to see the complete files of applications where it was voluntary where the applicants requested or consented to the down zoning; and that has nothing to do with this case which is an involuntary down zoning. It's apples and oranges, so I don't see how you can make any comparisons. LIM: Well, for purposes of my legal arguments I want to have those in the record; and as a practical matter I was going to ask later anyway that I would like the Planning Director and the Planning Commission to provide also copies of the files on any involuntary 16 SMA revocations and also any involuntary change of zone down zonings. I mean I'm not aware of any but maybe Mr. Yuen knows. YUEN: Well, here, this is where, you know I do have to object if this is an attempt to delay the proceedings from the Commission being able to make a decision today. This is scheduled for hearing, we're here to have a hearing. If you want to make something into exhibit, you can go get it and bring it for the hearing. ALAMEDA: So if there's a potential to continue then maybe there's selected parts of that big file that you could LIM: Then I would ask that the Planning Commission issue subpoenas for the applicant to request that information from the Planning Department. ALAMEDA: Mr. Director? YUEN: Yeah. We're here, this is scheduled for a hearing, we're here for the hearing, it's duly noticed. If the applicant wants to come to the hearing with, the applicant knows, they want to bring an exhibit to the hearing, they can bring the exhibit. If they want to get the file from the Planning Department, they can come into the Planning Department and get a file. Nobody needs a subpoena to do that. Again, I'm not concerned with the applicant saying, making representations about what has been done or hasn't been done in the past. I am concerned about this being an effort to prolong the hearing to bring in evidence that should have been brought to this hearing in the first place. If the applicant thought it was so important to their position and their case that they need to physically have this in the record, they could have done that. Now if the applicant is saying, if all the applicant is saying is that subsequent to, that they want this entered into the record subsequent to the Commission making a decision, I don't have a problem with that. ALAMEDA: Mr. Lim, response? LIM: I'd like to have that before the Commission. I think that's something the Commission should see. The Planning Department and the Planning Director is within sole control of his records. Like I said we don't know of any involuntary rezonings or SMA revocations; and all I can do is ask him. And if he tells me that there are none, then that's sufficient for me. That sets my record. But we just don't know. And so that's why I need that information from him. I mean, realize that this SMA Permit and rezoning have been alive for 10 years, we get basically almost a 30-day notice to come in and defend ourselves. So I think, you know, in light of the serious ramifications to my client and the need for a substantive due process we request that the subpoenas be issued for that information and that we continue the hearing for further proceedings. ALAMEDA: All right. So on the table now is a possible continuance. Are there any questions or concerns about that? Commissioner Siracusa. SIRACUSA: Yeah. Mr. Lim is saying that he wants the Planning Commission to see those files. We already did see those files. We're the ones who acted on them. And you knew about them because you're the one who brought it up and you referred to both of those situations. 17 So you had ample opportunity to get those files and come in today for it. You know, we carry around so much heavy paper and to have all of those files added to the paper for the next time we have to come before with everything else it seems to be like just a total waste of time; and I would like to make a motion that we deny applicant's request to continue. ALAMEDA: All right, that may be a little premature. We have a little more to go on that. Any further questions for Mr. Lim? Any questions? IWASHITA: Mr. Chair? ALAMEDA: Okay, Commissioner Iwashita. IWASHITA: I just want to clarify for the record, Mr. Lim, that as of 2001 when Mr. Fuke sent his letter on behalf of the current applicant, that as of that date the applicant for the purpose of this record had knowledge of all of the conditions in 97-102? LIM: That is my expectation. I haven't specifically asked him that question. IWASHITA: But for the record, in this proceeding it's clear that as of 2001 the applicant hired a planning consultant, Mr. Fuke, who reviewed the requirements of 97-102 and submitted an annual report as part of the requirements of 97-102, is that correct? LIM: That's correct. IWASHITA: That also, that 97-102 states clearly that, this is paragraph V, page 10, "Should any of the conditions not be met or substantially complied with in a timely fashion," and the timely fashion we're discussing is failure to apply for administrative extension within five years of the original granting of the zoning and also failure to file a request to this Commission within that same five years actually because no administrative extension was granted, "that the Director may initiate rezoning of the subject property to its original or more appropriate designation." That was part of the ordinance which Mr. Fake on behalf of the applicant reviewed. LIM: That's what it says. IWASHITA: Thank you. ALAMEDA: Seeing no further questions from the Commissioners, you have any more questions you'd like to present, Mr. Yuen? SIRACUSA: Point of order, there's a motion on the floor. ALAMEDA: Yeah, but Commissioner Siracusa, the protocol, we need to have the Director make his presentation, and when he's done and there's no testimony, then we go to the motion, according to our procedures. Mr. Torigoe? TORIGOE: Well, at this point there was a motion made, there was no second yet. At some point you would allow for a second to see if it, you know, the motion should be considered. 18 And then Mr. Yuen should be allowed to respond, actually both parties should be allowed to respond to the motion. ALAMEDA: Oh, so we could take the motion up now. TORIGOE: Well, the motion having been made, you know, actually, and it's not a dispositive motion either at this point. It's just denying the continuance that has been requested by Mr. Lim. Now if something else comes up as the hearing goes on and you find that there is some basis for continuing, then, you know, another motion can be made along that effect, or you as the presiding officer has the power under your Rule 4, you have the power as the presiding officer to continue the matter also. ALAMEDA: Commissioner Siracusa, let's do that. I'm not clear on your motion. Was it to continue or was it to SIRACUSA: It was to deny Mr. Lim's request for a continuance. ALAMEDA: Oh, got you. Is there a second? So no second, motion dies for now. Mr. Yuen, you have any questions before you present? YUEN: Yes. First on the owner's plans, Mr. Lim, according to, there's a letter in the file signed by State Historic Preservation Division that says that they are agreeing to a change in the preservation plan for the property. This letter is in 2001. The gist of the letter is that there was a Historic Sites Preservation Plan that called for interpretation of the sites, that means some kind of signage of the sites that would be posted. And the owner asked SHPD to take away that condition. The sites would still have to be preserved but not to have any signage because the owner wanted to, the owner's plan was to develop one single family home on this 37-acre property as its development plan. And given that the development would be limited to one home, SHPD agreed to take off that condition requiring interpretation. So it is in fact correct that at some point that around 2001 the owner was planning to only develop the property with one single-family home. LIM: I believe that is correct. He had, and that's part of the issue in terms of why he vacillated back and forth. That was, I think, his initial intent. Then he entered into the negotiations with the other joint venturer and that fell apart. And so now he's on his own basically trying to develop the subdivision. YUEN: And just a couple of short questions with respect to getting files. The rezoning files that you are now asking to be put in the record, have you ever requested those from the Planning Department in preparation for this hearing? LIM: We've got relevant copies of those. And if I'm forced to and the hearing doesn't get continued I'll submit my copies of what little I have. YUEN: You did ask for and obtained the files? LIM: We got portions of the files. As you know, we were never contacted prior to May that this was going to happen in terms of the involuntary rezonings. I would have hoped 19 that we could have discussed this before it turned into a public hearing, but, you know, here we are. So that's why I'm at this point in time trying to set the record. I think that part of the information that we need that I would really like and maybe you can just tell me, I don't know if you know now, but we really needed to know what the Planning Commission's prior actions were, if any, on the denial of a time extension request and the involuntary revocation of an SMA permit. I mean if you know that there are none, that's sufficient for me; and if you say that now, we don't need those records. YUEN No, there have been, there has been at least one; and I'll get into that. And then just to keep this orderly you can ask me questions about that to the extent that I don't explain it. But my question on getting the files, you said you had portions of the file. Is the problem that the Planning Department only turned over portions of the file or is the issue that you only copies portions of the file? You requested the file and got the complete file, correct? LIM: That is correct. YUEN: And you chose to only copy certain portions? LIM: We chose selected portions. But for purposes of this litigation I would like to have the whole file in. YUEN: That's all the questions I have. ALAMEDA: Mr. Torigoe, do we have to decide upon Mr. Lim's request for these files now or at the end? TORIGOE: Well, at some point before you adjourn. Let me make a couple of remarks on this. Your rules generally, first of all with respect to exhibits, your Rule 4-18 on evidence speaks to how exhibits are to be presented. And generally speaking, the parties are expected to, under Rule 4-18(f), provide copies, other parties shall be afforded an opportunity to examine the document and to offer into evidence other portions that may be material and of relevance. Generally under Rule 4-18(g) when exhibits are offered in evidence, the original and fifteen copies shall be furnished to the presiding officer with a copy to each party to the proceeding other than the Commission, unless they have been previously furnished; and, you know there are certain procedures that are set up for producing these. So this is one of the reasons why it is becoming a little difficult to keep order at this point because the applicant is asking for your indulgence in just recognizing and accepting quite a few items which are not even before you as copies. Whether, you know, it's within your discretion to offer a continuance to allow these procedures to be followed so that it's more orderly. You can also insist on strict conformance with these rules. With respect to subpoenas, similarly, there are rules that discuss how that is done. Your Rule 4-14 speaks of requesting subpoenas, "...shall be valid only if it is physically received by the Commission no later than five working days before date of the hearing at which the subpoenaed witness is to testify or documents are to be produced." So, you know, your rules provide for certain procedures to be followed so that things are done in an orderly fashion. 20 Now there may be situations where something comes up in the course of a hearing that a party did not anticipate, could not reasonably anticipate, and of course in those cases you should do what is necessary to allow a full record and justice to be served. But, you know, these are matters of discretion with the Commission. At this point I just wanted to point out that there are rules and procedures for doing these things; and it's within the Commission's discretion, particularly the presiding officer who under your rules has the authority to make decisions on questions of evidence and rules on all objections or motions which do involve a final determination. So there's a certain discretion that the presiding officer has to manage the way the evidence comes in. ALAMEDA: Mr. Torigoe, I have a question. As the presiding officer, if there are parts of the record that the applicant wants us to review and I deny that request, wouldn't that increase the probability for appeal later on for an incomplete record, if you will? TORIGOE: Well, any decision that is made on either denying or accepting evidence is potentially an appealable matter if someone is objecting to it or, you know, is adversely affected. ALAMEDA: Commissioner Domingo? DOMINGO: Thank you, Mr. Chairman. I'm wondering if the procedure of what we're talking about is at this time appropriate. I think what we're talking about is something that we anticipate might happen but never know that it will happen. But, in any event, there is a step to prepare for that event when it happens. I was wondering if this is at all necessary at this point. ALAMEDA: Well, the discussion is appropriate because the applicant has requested that we consider this potential evidence. But whether we need to consider it or not at this time is like what Mr. Torigoe said, it's discretionary. Mr. Yuen? YUEN: Is the applicant formally requesting a continuance? LIM: Yes. YUEN: Okay, then I'd like to speak to that for just a minute. ALAMEDA: Sure, Mr. Yuen. YUEN: First, the records that the applicant is asking for are records of prior down zoning actions on totally different pieces of property which apparently happened with the consent of the applicant. If that's the point that Mr. Lim wants to make, we agree with the point. And so, he's asking for a continuance to present the physical file of the rezoning. He had the physical file of the rezoning, he chose to make copies of some items of the file and not others. If he had brought those to the hearing we would have had no objections to him introducing them. I don't know if the Commission is going to make a decision today when it finishes hearing all the evidence. That's really up to the Commission. But I do think that this is a very flimsy reason to continue the hearing to present exhibits that were completely within his power to bring to the hearing if he thought that they were so important that the Commission ought to consider them, and especially when I've agreed with the gist of the point that he's apparently trying to make. So I do think that the Commission ought to take this as far as it can today, hearing as much as it can, 21 try to make a decision, and not continue it for the copying of unrelated and files of very little relevance. ALAMEDA: Commissioner Woodward. WOODWARD: Mr. Lim, did you make any attempt to contact Mr. Yuen after receipt of this letter dated May 31", to try and work out the situation prior to having it come here? LIM: No. We just talked briefly, I think, one time when I was at his office, but hardly at all. We assumed that because he had publicly gone out with the intention to down zone that there was really nothing much to talk about. WOODWARD: Okay, let me ask Mr. Yuen, did you make any attempt to work this out or to negotiate the situation prior to having it come to us? YUEN: Mr. Woodward, this is, I believe that the land use should be changed. This is not a question to me of whether the applicant is a good person, what they have been doing for the last ten years. It is a belief that the current, the zoning designation which has technically lapsed of RS-15 should be changed to a lower density zoning, in this case RA-5a. So the answer is no, I didn't initiate a discussion with the applicant. We sent them this letter in a good time; and here we are. That was their notice and here we are seven weeks later to go through this process. WOODWARD: Thank you. ALAMEDA: I'd like to move this along. If there is no further questions for our applicant, I'd like to ask Mr. Yuen to formally present Any more questions for the applicant, Mr. Lim? Anything else to add, Mr. Lim? LIM: I'd like to hear Mr. Yuen's presentation. ALAMEDA: Thank you. Mr. Yuen, would you like to do it from here or up there. YUEN: I think it might be more convenient for the Commission if I sat ALAMEDA: Thank you, sure. YUEN: And faced the Commission. ALAMEDA: Thank you. And, Mr. Lim, just for the record and so you know, that your request for continuance I'm going to hold that off for now. Mr. Yuen? YUEN: This is really Good morning, Mr. Chair and Members of the Commission. This is really a question about what is the right land use for this 37 acres of oceanfront property in North Kohala. It's not a question about whether the applicant is sophisticated or unsophisticated, or knew or They certainly should have known of the conditions of the rezoning. This is a point at which the Commission on the zoning has to make a recommendation to the Council as to what is the best zoning for the property. And with respect 22 to the SMA Permit, naturally if the Commission determines that the best zoning is a 5-acre lot zoning, then it should follow the, naturally I mean rather than make an inconsistent determination, it should revoke the SMA Permit which is about to lapse in a few days as well. So, we, Mr. Darrow in his presentation talked about our reasons for recommending a change of zone here. We've seen a great deal of development along the shoreline in Hawaii. We've seen a great deal of change. We have an opportunity here to move this piece of shoreline to a lower density designation, not to wipe out all value for the owner, all use for the owner, but to move it to a lower density designation so that if it is subdivided later to the 5 acres in the SMA Permit process you will have perhaps seven homes in the viewplanes, seven homes that would be constructed, rather than 50 as allowed by the current SMA Permit, and perhaps even more by the zoning. So I urge the Commission to focus on that land use issue. What is the proper land use for the area? If you look at the map there, this is a very conspicuous piece of property from the highway. The oceanfront is quite close there. The bay itself and the view from the highway, the view of the bay there is identified in the General Plan as an example of natural beauty in the North Kohala District. If you know, the General Plan, there aren't, they're typically 6, 8, 10 identified areas of natural beauty in each district. There aren't hundreds and hundreds of these areas. So it's something that has been recognized as an important scenic vista. If you also look at the map, you'll see there's, this is fairly close to Kawaihae. There's, about 3,000 feet away, there's one area of relatively high density zoning that is actually being developed in Single-Family lots. It's zoned for Multi-Family but it was actually developed as Single-Family lots; and that's the brown color there. Then the next light green color is a piece of property that came to the Commission for an SMA Permit that's zoned A-5a, essentially the same zoning as we're recommending for this piece of property. That landowner on those 63 acres didn't try to change the zoning from the A-5a. They accepted the 5-acre zoning that they had, came to the Commission for an SMA Permit and is now, and it has received an SMA Permit to subdivide that to 5-acre lots with conditions that are meant to protect public interest, such as the viewplanes in the area. So then you have, looking at the map there, you have this piece of property that we're here today, which is colored sort of an amber color; and then from that point going north, the next property that's actually zoned for denser than 5 acre lots is at Mahukona. So for many, many miles along the shore of North Kohala from the Highway to the sea is, actually from that brown color, and I don't have the exact, it's something like 10 miles of shoreline is zoned either for Conservation or for 5-acre lots. And so this is what we're proposing to be the zoning for this piece of property. Now let me turn to the question of fairness which is really being raised to you as an issue of consistency. And the notion seems to be that because the Planning Director has generally gone along with time extensions when zoning conditions have run out and it has become the time for there to be a time extension that the Planning Director always should do something like this. And I think that's really the argument that's being made to you, that it should be treated as simply a mechanical or routine decision rather than, as I would say, it's an opportunity to look at the zoning and see if it's still appropriate. That's one of the key reasons to have a time condition of zoning. If it hasn't been developed according to the zoning, a few years down the road the Planning Commission and the County Council can take a hard look at it and say should this still be zoned for what people thought was a good idea back in 1997. 23 So it's almost like if I were driving down the road with, say when my children were small and we came to a stop sign, and I stopped the car, I looked both ways and I go ahead; and we do this four or five times in a row. And then when we come to another stop sign I stop and I don't go; and my kid says, well, how come you're not going, you always go after stopping. And then a car comes whizzing in front of us. And I didn't go that time because I saw a car coming that was going to hit me. Well, in this case when looking at this time condition about to expire on this piece of property, I see a piece of property that should be changed from its RS-15 zoning in order to protect the shoreline resources. This I believe, and I'm fairly certain of this, that this is the only piece of oceanfront property that has needed a time extension from the County Council on a zoning that has come up while I've been the Director. We also, and so if you're looking at consistency and treating shoreline property, you know, looking at the characteristics of land and what should be zoned we have been consistent in not rezoning shoreline property on this island in this current administration. The only shoreline property that has been rezoned in the 6'/2 years of the current administration was one piece of State land next to Kawaihae Harbor right next to the boat harbor where the State came in and requested a change of zone, somebody had an idea for a commercial use on the site. Now most of the property there, actually the State EOd (executive ordered) for public purposes to the canoe club. So that's the only exception in 6 1/2 years of rezoning shoreline property. So we come up, in this case, with a shoreline property where the zoning has lapsed, the zoning has expired; and we have to take a fresh look, what should the zoning be. And we're saying not wipe out the applicant's land, potential use of the property, but to rezone it to RA-5a, in other words, a potential of 5-acre lots. The property is worth quite a bit of money with RA-5a zoning. The property immediately adjacent to it was sold for multi-millions of dollars. I think, and this I hesitate a little bit because I'm going from memory here, but I believe it was sold for $8 million with that zoning. The applicant, the owner went ahead with development on 5-acre lot sizes with that property. We're not talking about a situation where we're wiping out value from the landowner by, for example, a down zoning to Open. ALAMEDA: Mr. Yuen? YUEN: Yes. ALAMEDA: We have a request for a bathroom break. Is this a good time to YUEN: I'd be happy, I would never ignore a request for a bathroom break. ALAMEDA: Well, we're going to take 10 minutes. And since there is no objection, I'd like to take a recess at this time. RECESSED The Chair called a short recess at 11:06 a.m. RECONVENED The meeting reconvened at 11:18 a.m. 24 ALAMEDA: The meeting of the Commission will return to order. I wanted to continue where we left off with Mr. Yuen's presentation. I know you were at the tail end but I don't know how far. Mr. Yuen? YUEN: Yes, and perhaps I should be, I believe I wasn't sworn in. ALAMEDA: Yes. Please raise your right hand. Do you swear or affirm to tell the truth now before the Hawaii County Planning Commission? YUEN: Yes, I do. ALAMEDA: Okay. How about your name and address for the record. YUEN: Yes, Chris Yuen, 32-832 Old Mamalahoa Highway, Ninole. And just to make sure there's no objection, to Mr. Lim, that I wasn't previously sworn in? LIM: We have no objections to Mr. Yuen being who he is. ALAMEDA: All right, thank you. Mr. Lim, you may continue. LIM: And I'll just close by responding to a few points made by Mr. Lim. One, and I don't want to beat a dead horse here but to stay on the question of fairness, Commissioner Iwashita read the section of the zoning, the rezoning ordinance that says if the conditions are not complied with in a timely fashion the Director may initiate a rezoning to the original or more appropriate designation, that's what it says, and that's what's happening. Somebody can hardly complain that when the ordinance says you can do that and that's what the Planning Director eventually does. The SMA Permit has almost the same language. It says "Should any of the foregoing conditions not be met or substantially complied within a timely fashion, the Planning Director may initiate procedures to revoke the Special Management Area Major Use Permit." And that's what it says and that's what's happening here. There was a complaint that this is a unilateral action of the Planning Director. The Zoning Code says the Planning Director can initiate rezonings of property. The Planning Director can't rezone property on his own. That, as is happening here, goes to the Planning Commission, and will eventually have to be done by the County Council, which is the only body empowered to make the final decision. But the Planning Director is empowered to initiate that and to make recommendations and to advocate for that. The question of, and just to address a couple of points that are in the July 201h letter from Mr. Lim, essentially it's a series of legal arguments. There's a term called vested rights which means that a property's rights vest when, in law, that it has proceeded to a point where it cannot be changed by subsequent action. Normally you can, even if this were not up for a time extension, the Planning Director could still do the same thing and initiate a rezoning of the property. At a certain point though, the rights of the owner are considered vested and the Planning Director can't initiate that kind of a change to the land use designation. Under Hawaii law, that vesting occurs when the project has its final discretionary permit. In this case, without saying that there may be other discretionary permits that are required, at the very least the SMA Permit is clearly a discretionary permit. The SMA Permit is going to lapse in a couple of weeks. 25 There is no way that the applicant can obtain final subdivision approval in a couple of weeks. They don't even have a tentative subdivision map submitted to the County. I think there's no question about that. The applicant does not have vested rights. One of the functions actually of having a time condition is that if your time runs out your rights are not vested. And the final thing I'd like to say, just in connection with a couple of factual questions, on the question of revocation of other SMA Permits, I didn't come here prepared certainly to discuss the history of revocation of other SMA Permits, particularly before I was the Planning Director. But I do know that in the 2001, roughly the 2001-2002 period we went through, administratively in the Department, we went through a number of SMA Permits where the time conditions had run out and we brought those to the Commission to revoke because we didn't feel that we could just administratively say your time has run out. We thought we needed to have a proceeding like this to revoke them; and at least one was contested. I can get the reference to that. But as I recall at least one of those was contested by an applicant who wanted it. So it's not a, certainly, even if it has never happened before, the Commission clearly has the power to do it and it is something that And I think it's of very little relevance whether it has ever happened before or not. You can always do this. It may be that no SMA Permit has ever come up where it should have been revoked before. But it did happen that a number of permits, and I'm speaking of permits whose time conditions had completely expired and there was no chance of an administrative or In this case it's not that dissimilar because the permit is going to expire in two weeks, but the time conditions had expired and we brought them to the Commission for revocation. And, finally, I do believe that, I know that in the 1970s several properties in Keaukaha were down zoned from Resort to Single-Family Residential, I believe, without the consent of the landowner, but I'm not absolutely sure on that point. Again, it's a point of very little, very little significance and relevance. If it never happened before, the Commission, or the County Council clearly has the power to down zone property. ALAMEDA: Thank you, Mr. Yuen. Let me just, first of all, acknowledge the public, thank you for coming today. As you know we are behind schedule and we are planning to take a lunch at 12. We do have a testifier for this particular agenda item. So I would like to move this along as quickly as possible without compromising the integrity of this public hearing. So, Commissioner Domingo, go ahead. DOMINGO: Mr. Chairman, thank you. Mr. Yuen, I don't know if I understood you correctly. But at the whim of a Planning Director, if he or she desires to down zone any property they can do it with no just reason, irregardless of their being a time extension or not? YUEN: No. Well, they must have a just reason on a land use basis, for example, that the property was inappropriately zoned; and there may be examples of, you know, a lot of properties for example was zoned by a land use, by a map in the late 1960s. There was a master zoning map prepared. If one reexamined it, if one reexamined the zoning and said, well, that's too dense for the area or the community's desire for the area has changed, you'd have to have a reason for it. It'd have to be consistent with the General Plan and the Planning Director could initiate, can initiate that at any time. It does not have to be tied to a condition of a rezoning ordinance not being satisfied. And this is clearly, I mean, it's stated in the Zoning Code as the Planning Director may initiate the rezoning of a piece of property and it doesn't limit it to 26 rezoning to a more intense use. The Planning Director can also and has initiated rezonings to a less intense use. DOMINGO: You know, coupled with the issue of time extension with regards to this particular property, I think I heard the Department indicate they looked at this zoning at this particular site and that it was felt that the density, that this development would cause, result in, is not something that is desirable because of the density. Can that be an issue for down zoning? ALAMEDA: Mr. Yuen? YUEN: Yes. ALAMEDA: Mr. Domingo, follow-up? DOMINGO: So, in other words, along Alii Drive if it is felt that the density is so dense and that future development would cause hardship within that area, then there is a cause for down zoning? ALAMEDA: Mr. Yuen. YUEN: The Planning Director or the Council can initiate a down zoning of property along Alii Drive or elsewhere in the County against the owner's wishes. At some, depending on the stage of permitting it may be that the property has what I referred to earlier as vested rights and that they're protected from that. But as a general matter, yes, the Council, the Planning Director can initiate a down zoning of property along Alii Drive or elsewhere. DOMINGO: You know, the issue of density for my own reasoning is that I'm more concerned about the density on Alii Drive more than anywhere else, than even considering the density on this one small parcel that we're zoning. Now, you know, you indicated that there are other 5-acre parcels going north towards North Kohala. But I think, if I'm not wrong, those properties are interspersed between and amongst State land and which probably would render them impossible to develop because of the issue of bringing water to the site as practically, the cost is practically intolerable. But, you know, I just wanted to make sure in my mind what we can do, and what the Planning Director can do, and what is proper with regards to lands zoned throughout this island; and I'm glad that you clarified that. Because as you indicated there is an issue of depriving development, land issue, issues depriving landowners their development rights. You know, there is that issue which is very serious if that is done. Anyway, thank you very much. ALAMEDA: Any other questions? Seeing none, Mr. Lim, you have questions for Mr. Yuen? LIM: He talked about the prior revocation of the SMA Permits, I guess we'll look to see what he comes up with in terms of the examples that he mentioned. ALAMEDA: Okay. Mr. Torigoe, would this be an appropriate time for a testifier? 27 TORIGOE: Sure, you can do that, if the Commissioners don't have any further questions. ALAMEDA: No further questions? Thank you. Can I ask Jcjo Tanimoto to please come forward? Do you swear or affirm to tell the truth now before the Hawaii County Planning Commission? TANIMOTO: I do. ALAMEDA: Thank you. You may be seated. Ms. Tanimoto, can you please state your name and address for the record. TANIMOTO: Jojo Tanimoto, PO Box 44337, Kawaihae, 96743. ALAMEDA: All right. Okay, thank you. Thank you for coming. You may state your testimony at this time. TANIMOTO: I'm sorry, what was that? ALAMEDA: You can proceed with your testimony. TANIMOTO: Thank you. I live in the Hawaiian Homestead Subdivision, which is on the boundary of the, the South Kohala boundary of this picture that you have. This subdivision is on the North Kohala side of the boundary line. So one of the problems that we have is this boundary thing. And I don't know if that has anything to do with communication or whatever. Now I got my lease from Hawaiian Homesteads in 1986. My residence at the time was the County Spencer Park until such time that I got the Commission's approval to build in that subdivision right there. At that time it was not these owners that owned that property. It was a Japanese company. And the whole subdivision over there is dependent upon this company's water that's on their side of the boundary. And since my residence in Kawaihae there has been a lot of communication with the next door owners before. I have never met my neighbors that own this property. I have never heard from these people. I am aware of this meeting today by accident because it was brought to my attention. Any of the changes and whatever, I regret that I am not up-to-date with the last six years. Prior to that, which would be over 10 years, I am aware of what was going on. I also noted on this picture here that the Na Ala Hele Trail stops on the Hawaiian Home side and then there's nothing after that, which is the whole boundary of this subdivision. Okay, but my question to the Planning Commission or anybody else is as of 2000 what has changed that these people can come and ask for some kind of revisions? What has changed to improve anything from even down at the Harbor, except population, traffic? There's still no infrastructure. And I probably am cutting off my nose here because the water is on that side; and if that company turns off the water our whole subdivision, everybody, has no water. And there's no infrastructure from the County, there's no availability according to the Water Department. And so I would like to know, oh, before I even ask you that question - is when I came into this meeting I was very happy to hear that you folks have the same concerns so I'm not going to even repeat it. 1 think there was only that one, what has changed since 1986 to today that allows these people to make any kind of changes from what, or deviations from what the original owners of 28 that property agreed to do, or what kind of vision and plans these people have, or who are they? I would really appreciate this Commission, I would request that the Commission put this on hold until we figure out what they're doing, or where they're going to go, or anything like that. Thank you. ALAMEDA: Thank you for your testimony. With regards to your questions, we get to ask the questions and, but So if a Commissioner wants to take your question and ask the various parties they can. But you just basically get to make your statements; and I think we got the gist of what you're trying to say. So thank you very much for coming. You may be seated, unless we have any questions for you. Wait, maybe we might have some questions for you. Commissioner Woodward? WOODWARD: Yes, I just had a question. Thank you for your testimony, by the way. It seems to me that you have kind of mixed feelings about this, that this subdivision controls your water but you'd rather not have it developed, is that correct? TANIMOTO: No, that's totally wrong. WOODWARD: Oh, okay. TANIMOTO: I am not against development of any kind. My concerns have to do with the health and safety of everybody that's in the area, which happens to be us and them. WOODWARD: Okay. TANIMOTO: They got the water and we don't. We don't have an alternative even. WOODWARD: Well, you've seen the presentation where Mr. Lim and actually Jeff Darrow gave the presentation that they have 38 acres and they're planning on building 50 homes there. Is that a bother to you? TANIMOTO: I would say if that is 50 houses more than the plan they originally had it would be because the water allotted and the statement that the other company made at the time was that there would be no changes. And so now you're going to change, my question has what has changed? ALAMEDA: Very good. WOODWARD: Thank you. ALAMEDA: Hold there, you might have some more questions. Commissioner Domingo. DOMINGO: Aloha, Jojo. TANIMOTO: Aloha. How are you? 29 DOMINGO: How are you? Good to see you. I only say that because I used to see her on many occasions when, in my other life. Jojo, are you referring to that parcel in yellow, because the Hawaiian Home Lands is just south of that. ALAMEDA: Let me give you a mike, Mrs. Tanimoto, so you can TANIMOTO: This is Akoni Pule Highway. That's the ocean looks like. This side is their subdivision and that's ours where the houses are, the subdivision. This is the mauka side. There's one more on the bottom. And that's probably where the bridge is, where they're trying to fix the bridge. Okay, so my house is right there. I'm overlooking all of this, which has a gate over here, a walkway. The gate is on this side. DOMINGO: So what your concern is is that if any development changes on the mauka parcel, the big yellow parcel that is being entertained, that is your concern at this time? TANIMOTO: Not necessarily. Any development from here down to the harbor, even out to, I don't know, Ouli Subdivision, would be an increase to any of the infrastructure and support system to this whole area which is fire hazard. DOMINGO: That would be your concern? TANIMOTO: So any changes any where in those areas would be of concern to us in here, any changes. There's no water, the water stops here, there's no other lines nowheres that can accommodate all of this whole subdivision. The County cannot do it, there's no infrastructure. And the water stops here, there's no water because it comes down the hill from Waimea, yeah. There's no availability of water to continue it to us. So if they're going to build anything and the old owners with this knowledge knew, so they said they wasn't going to do anything else. So if they're going to change anything, what changed so that they can change, they can do what they like, but they're going to hold everybody else stay as is? I'm sure, I don't know, they haven't told me anything. DOMINGO: Okay. You know, the issue at hand is that which is directed toward you know that, okay, towards Kohala you have that blue or green dot, yeah, that's the one we're discussing right now. And the change that's being proposed by the Planning Director is to take away the Rezoning and the SMA Permit. TANIMOTO: Okay. Permit to do something different? DOMINGO: No, it's nothing different. It's something that's been approved over 10 years ago, over 10 years go. TANIMOTO: That's why I said the original-. DOMINGO: The plan has not changed. There's no change to the plan, I'd just like to make that clear to you. TANIMOTO: Exactly, that's why I said that you folks seem to understand that any changes should be deferred at this time; and I would ask that you folks continue in that light, 30 until such time that you figure it out. Because the rest of whatever is going to happen is going to be affected, you know, any changes. DOMINGO: Okay. So you'd just like to make it status quo then, same? TANIMOTO: Status quo until such time that something changes. DOMINGO: Okay, thank you very much. TANIMOTO: Thank you. ALAMEDA: I have a question. You're meaning, somewhat to get clear what you mean by the change, change as in more? Cause what if the change is actually less, like less development? TANIMOTO: If the changes would be less, if the changes would be less? ALAMEDA: Then are you still concerned? TANIMOTO: I would still be concerned. Because then what other changes outside of that box is going to happen? ALAMEDA: Okay, I hear what you're saying. TANIMOTO: Right now the County of Hawaii is working on the General Plan so the Waimea people are making all of these visionary things and the Kohala people are making all visionary things. But Kawaihae's vision is not included in there. We have been so far at the point where they think, oh, Hawaiian Homes is a state agency so what Hawaiian Homes decides is right or wrong, but we pay the taxes and whatever of it. Where's our input? So any changes would include us. ALAMEDA: Any changes, okay, got it. TANIMOTO: Thank you. ALAMEDA: Thank you. Any other questions for our testifier? Very good. Ms. Tanimoto, thank you for testifying today. Okay, now we're going back to the protocol again. So we go back to, right, Mr. Lim, back up again. Fellow Commissioners, you've heard from the applicant, you've heard from the Department, you also heard from a testifier. You have any further questions? Okay, final arguments. Can we start with Mr. Lim. LIM: Well, I guess before we get into final arguments, I had a pending request to continue. I think I heard, I know I have to get some information for Mr. Iwashita, I heard the Planning Director say that he needs to get further information also. So I'll renew the request for a continuance. I think I can work with him in the meantime to scope down the records that we would be submitting to the Planning Commission. I only was doing that to protect the record in case you decide to go against me today. And so for purposes of the continuance, that's what I would request. I think we could manage the process and the documents a lot better. 31 IWASHITA: Mr. Chair? ALAMEDA: Let me just ask real quick and then I'll ask the Commissioners how they feel about it. But I want to ask the Department about how they feel about the potential request for continuance. Chris? YUEN: As I said earlier, I hope the Commission will take this as far as it can today. I'm opposed to a continuance. The information that's being requested is of very little relevance and could easily have been obtained by the applicant before this hearing. It seems to be a stall tactic. I am not requesting any further information. The applicant said no SMA Permit has ever been revoked. I said it has happened. I know it has happened. And no SMA Permit has ever been revoked against the applicant's, the landowner's wishes, I don't think that's of any great relevance that it has happened before. Mr. Lim, it's Mr. Lim who has raised the issue and I'm only testifying in contradiction to that. And I don't know, you know, as I say, where the Commission is at with this matter, whether the Commission can make a decision. But I don't see a need to continue to get evidence that, one, there was a, to get files from a rezoning that happened, couple of rezonings that happened dozens of miles away that were apparently with the consent of the landowner. I accept Mr. Lim's representation that this happened. I think to the extent that that's relevant that's the extent of it. And it's, nor is it necessary to bring in a file to show that at one point or it may be more than one point in the past an SMA Permit whose time conditions had expired was revoked by the Planning Commission. ALAMEDA: Okay. I would like to ask at this time Commissioner Iwashita, cause he had a request for some information. I don't know where you might be at with that, Commissioner Iwashita. IWASHITA: Thank you, Mr. Chair. My last question of Mr. Lim just clarified for me and then I believe made the record, that I, as far as that addresses the issue, as I see it raised by Mr. Lim, and that basically Because it's clear on the record as far as I'm concerned now that the applicant was aware as of 2001 as far as all the conditions of the 97-102, as well as the applicant's planning consultant who wrote that letter at that time, I'm satisfied and I won't require any more information. LIM: I guess I would repeat that even the Planning Director, you know, understand how this process works from the applicant's side is we go to the Planning Department, we ask whether there are any SMA revocations or Planning Director-initiated involuntary down zonings, we were told no. Now he tells us today that there are at least a couple on either side. That is something that we cannot find out until today. So I think that that's something that's very material to our case. We would request for the Planning Director to produce those document or at least make those files available to us then we can bring to you the relevant documents from those files. Those are especially relevant to our argument of equal protection under the law; and I think those are critical for purposes of creating the record on the SMA revocation and the change of zone down zoning. ALAMEDA: Commissioner Iwashita follow-up? 32 IWASHITA: Well, I guess procedurally, I guess, my thoughts on how to proceed from now is that the request for continuance is by the applicant. The Director does not want a continuance. And so I guess procedurally, I guess, the only motion I can think of would be to deny the request for a continuance; or if there's lack of a motion then it just dies on its own. So-. ALAMEDA: I would entertain a motion. IWASHITA: Then I move SIRACUSA: So now I'll repeat my motion. IWASHITA: Go ahead. SIRACUSA: That we deny the applicant's request for a continuance. ALAMEDA: Motion made by Commissioner Siracusa to deny the applicant's request for a continuance. Is there a second? IWASHITA: I'll second. ALAMEDA: Seconded by Commissioner Iwashita. Discussion? Seeing none, staff. DARROW: Thank you, Mr. Chairman. The motion before us is to deny the applicant's request for a continuance. With that I'll take the roll. Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: I'm sorry? DOMINGO: Aye. DARROW: Thank you. Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Woodward? WOODWARD: No. 33 DARROW: And Mr. Chairman? ALAMEDA: Aye. DARROW: The motion passes five to one. ALAMEDA: Okay. All right, now moving right along. Commissioner Domingo, you had something to say? DOMINGO: Is a motion in order at this time? ALAMEDA: Well, I want to make sure first our exhibits, let me just check on procedurally Mr. Torigoe, would you like to help us out, making sure we follow protocol? TORIGOE: Well, there are a couple of things. First of all, let's make sure we have all exhibit requests resolved. Mr. Lim, do you still have outstanding a request for the Commission to accept as exhibits rezoning files of other rezonings, has that been officially ruled on? ALAMEDA: Fellow Commissioners, we have a request for the rezoning files at issue. I think it's irrelevant. As a presiding officer, I'd like to deny that request. Discussion. IWASHITA: These are? TORIGOE: There's no, I'm sorry. IWASHITA: The rezoning ALAMEDA: Commissioner Iwashita? IWASHITA: Sorry. Thank you, Mr. Chair. These are the two prior down zonings that were basically uncontested or consented to by the owners, those are the files you're talking about? TORIGOE: Let's get clear on the record. Mr. Lim, if you can tell us do you have an outstanding request at this point for files to be accepted? LIM: That's correct. In light of the Commission's vote to deny the continuance, I'm going to submit for the record the copies of the documents that I do have on both the John Mitsuda rezoning, File 825, and the State DLNR's rezoning for the pun at Waimea that, I believe, is Rezoning 07-000062. So I will on the record give copies to the Planning Department staff for entry into the record. I have several documents for each sections, so ALAMEDA: Let me check. Mr. Yuen, do you have any objection to that? YUEN: Just let me take a quick look at it. ALAMEDA: Sure. And, Jeff, if that is allowed it will be Exhibits 7 and 8. 34 DARROW: I have one procedural question for Corporation Counsel. ALAMEDA: Sure. DARROW: The motions before us would be within the SMA Permit? TORIGOE: Well, I think we decided this was going to be a consolidated hearing so, which by the way, I don't know that we had a formal, either a motion or a consensus, that this would be consolidated for hearings. And we discussed it extensively. ALAMEDA: We didn't yet. Mr. Yuen, go ahead. Wait, Mr. Darrow, follow-up. DARROW: if it's okay with you, I'll be using the SMA as the master and just placing the exhibits and the motions relative to the proceeding in there, unless it's having something to do with the change of zone or the SMA specifically. ALAMEDA: Uh huh. DARROW: Thank you. ALAMEDA: That sounds good. Mr. Yuen, your feedback on the potential exhibits? YUEN: No objection to admitting the exhibits. That's fine. ALAMEDA: Fellow Commissioners, no objections to allowing the exhibits? IWASHITA: No. ALAMEDA: Okay, seeing none. I'd like to admit those exhibits. Is it 8 and 9, 7 and 8? LIM: One of them is to numerically order them in order after the last letter which was Exhibit 5 from my office. I'll describe what the Exhibit 6 is, and subsequently Exhibit 6 is a September 27, 2006 Planning Commission letter to the County Council on the Jon Mitsuda proceeding. Exhibit 7 is a front page of the notice of public meeting for the Planning Commission's hearing on September 7, 2006. Exhibit 8 is the Planning Department's recommendation on the Jon Mitsuda repeal of Change of Zone Ordinance No. 96-81. The next set of documents would be related to the Waimea pun. Exhibit No. 9 was going to be Ordinance No. 96-81 which rezoned it from Agricultural A-3a to Single Family Residential - RS-10, oh, excuse me, this I think is the, this is portion of the Mitsuda parcel, yeah, Exhibit 9 is part of the Mitsuda rezoning, sorry. Exhibits 10, 11, 12 and 13 are going to be related to the Waimea pun rezoning. Exhibit 10 is a June 6, 2007 letter to Pete Hoffman, Chairman of the County Council from the Mayor Kim. Exhibit 11 is the County of Hawaii Planning Department recommendation on Change of Zone Rezoning File 07-000062. Exhibit 12 is the County Planning Department change of zone application background report in Rezoning 07-000062. And Exhibit 13 is the April 11, 2006 Planning Department letter to Peter Young of the Department of land and Natural Resources regarding rezoning of the State parcel. Thank you. 35 ALAMEDA: This is a proposal, it's 10 to 12, I would like the Commissioners to at least take a look at those exhibits before we formally enter it into public record. And which means that I would like to recess now, take some time to review these exhibits going to lunch and come back at about 1 o'clock. Any thoughts on that? TORIGOE: Can I just make sure ALAMEDA: Mr. Torigoe? TORIGOE: Okay, again, we probably want to have some kind of formal, either a motion or a consensus on the record to consolidate for hearing these two matters, for one thing. IWASHITA: Without objection. TORIGOE: Yeah. ALAMEDA: Okay, Commissioner Woodward. WOODWARD: I would move that we consolidate Items 2 and 3 on the agenda and that when we vote we vote on two separate items, one is the special permit (sic) and the other is the rezoning application. SIRACUSA: Second. ALAMEDA: Okay, motion made by Commissioner Woodward, seconded by Commissioner Siracusa. Discussion? Mr. Torigoe? WOODWARD: Is that good? TORIGOE: That's good. ALAMEDA: Commissioner Iwashita? IWASHITA: Yes. DARROW: Just for clarification, that would be the Special Management Area Use Permit? WOODWARD: Yes, sir, excuse me. IWASHITA: SMA ALAMEDA: The SMA. Commissioner Iwashita? IWASHITA: I guess because in my mind, the way I'm thinking about this is that the zoning conditions were not met and one of the conditions of 97-102 is to comply with the SMA Permit requirements, that in terms of when it comes up for a vote it would be easier for me to 36 evaluate and analyze to vote on the zoning aspect of our considerations today; and then followed by the SMA. ALAMEDA: Is there any objection? WOODWARD: None. I'll accept that as a friendly amendment. SIRACUSA: I'll second it as a friendly amendment. ALAMEDA: All right. So noted. Jeff, you got that clear what we're going or propose to do? DARROW: No, I'm sorry I missed that. WOODWARD: You'd like me to restate what, it would be two votes, one on zoning to be held first and the second on the Special Management Area Permit. DARROW: And they would be, we have four actions before us. So we have two time extension actions, one for the change of zone, one for the SMA; and we have two Planning Director initiatives, one for the change of zone and for the So we actually have four WOODWARD: Well, part of the motion was to consolidate Items 2 and 3 on the agenda. So that a vote on one affects the other; and they're the same topic. So the vote on zoning comes first, up or down, and then the vote on the Special Management Area Permit. ALAMEDA: Okay, Mr. Torigoe? TORIGOE: Yeah, I think that's probably about as much as you'd want to tie yourselves into at this point. You know, from this point on if the motion passes then you can entertain various, other variations on the thing? ALAMEDA: Let me check with Mr. Lim. Your thoughts on what we're proposing, with the procedures? LIM: No, no position. ALAMEDA: Okay. Mr. Iwashita, you have any other You're okay? IWASHITA: Yes. ALAMEDA: All right, are we ready to take a few minutes of recess? Jeff, can you reiterate the motion before us. DARROW: The motion before us is to consolidate Agenda Items No. 2, which is the Planning Director's initiated actions, change of zone and revocation of the SMA Permit; and Agenda Item No. 3 which is the time extension requests for the Change of Zone and SMA Permit 379 for Kohala LLC. And, again, the motion has been clarified that there will be two votes, one for the Change of Zone and one for the Special Management Area Use Permit. 37 ALAMEDA: Okay. Seeing no further discussion, staff. DARROW: Thank you, Mr. Chairman. Commissioner Woodward? WOODWARD: Aye. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: And Mr. Chairman? ALAMEDA: Aye. DARROW: The motion passes six to zero. ALAMEDA: Mr. Torigoe? TORIGOE: Thank you, Mr. Chairman. Okay, as you go to lunch, there's one thing for the parties and all of you to think about, and I want to mention that as you look at the possibility of the structuring of your voting, Mr. Bancroft came up and asked me an interesting question, which was basically would it be possible for there to be a vote on the rezoning, which would go to Council, and then to continue the SMA Permit matter to see what happens at the Council because, you know, the SMA matter really ought to be consistent with what happens at the counsel. And I'm going to be looking at that over lunch, but I just wanted to raise that for the parties and you all to think about. ALAMEDA: Thank you for your insight, Mr. Bancroft, very good. Seeing no further objections for a recess to review some of these documents and to break for lunch, I want to adjourn and come back at 1:15. Thank you. RECESSED The Chair called a recess at 11:50 p.m. RECONVENED The meeting reconvened at 1:20 p.m. 38 ALAMEDA: The Hawaii County Planning Commission now returning to order. All right, thank you public for your patience. Moving back to where we started or where we left off. We did review the documents. I'd like to ask Mr. Yuen and Mr. Lim if there's any other evidence that you'd like to submit for the record. YUEN: Chris Yuen, Planning Department, no. ALAMEDA: Okay. Mr. Lim? LIM: Steve Lim for the applicant, nothing that we've not already requested be entered into the record. ALAMEDA: I'm thinking of if there's any other procedural issues that we haven't considered, I want to ask Mr. Torigoe. TORIGOE: No. I think at this point I just would ask the parties if there are any other procedural issues or objections to the procedure that we've followed that we need to deal with it at this point before we go into a decision-making mode. LIM: For Kohala LLC, of course, we have an objection to the denial of the request to continue the hearing to conduct adequate discovery with the Planning Department; and I would like to make an argument at the end. ALAMEDA: Mr. Yuen? YUEN: No, no procedural issues. ALAMEDA: Let me see, in terms of protocol, do we do closing arguments and then TORIGOE: Yeah, you can offer that. ALAMEDA: All right, we'll go with Mr. Lim, and then Mr. Yuen, and then back to Mr. Lim. Correct? TORIGOE: Right. ALAMEDA: Okay, Mr. Lim. LIM: I'll just be brief. Thank you very much, Mr. Chairman and Members of the Commission. The reasons for the Planning Director's down zoning of the property and revocation with the Special Management Area permit are founded upon his beliefs that this is not the right use of the property, I think was his words, that there are visual impacts that are going to come off the project, and that the density is such that it shouldn't be continued. I think the starting point for the County Planning Director and the applicant is different. He's treating the starting point of this discussion as if the lands were in the State Land Use Agriculture and zoned Ag-5. I think it's critical for our purposes to stress to the Commission that we do have an existing Zoning Ordinance and existing Special Management Area Permit, albeit the time conditions weren't met. But that is not any different than numerous other time conditions that 39 you've allowed to move forward. As I stated before on behalf of the applicant, the time condition issue can be addressed by the Planning Commission on the SMA and the County Council by revising and updating the conditions of approval and not taking away the entitlements, which as far as we know hasn't occurred at least in the last 8 years. The precedent I think is very dangerous. At this point in time any property owner is subject to a petition by the Director for an involuntary rezoning or revocation of a permit; and this is in light of an existing Special Management Area Permit and a Change of Zone Ordinance which both addressed the voluntary downsizing of the project from approximately 110 total possible units to 50 units. And the direct terms of the Special Management Area Permit No. 379, it says that the proposed development is "consistent with the County General Plan and Zoning Code." I'll paraphrase some. The average density relating to the 50 lots over the 38 plus acres would amount to 1.5 units per acre; therefore consistent with the urban form depicted on the LUPAG Map for the General Plan for this area. The visual impacts along the coastal viewplane and open space of the development will be somewhat diminished as the site is located makai of the Akoni Pule Highway. To mitigate these concerns there will be design guidelines to ensure the project when fully developed will only minimally affect coastal viewplanes. Covenants will be developed to restrict structures to certain sizes, building pads, envelopes, colors, materials, etc., to minimize mauka/makai viewplane, impacts from the highway, as well as to minimize excessive alteration of the area's natural terrain. The potential for retaining the regional vistas will still exist. These are statements directly out of an existing SMA Permit, and the record in the Change of Zone is going to be very similar. The applicant feels that the County is inappropriately attempting to rezone the property and revoke the SMA Permit; and they're doing so without any change, and I'd like to stress this, without any change in the official County of Hawaii policy on the General Plan for this area. That, if that had happened, I think we wouldn't be here today; but that didn't happen. The only change that we got was the May 7, I think it was, 2007 letter from the Planning Director saying I'm taking your zoning down. To us it's a denial of equal protection and we think it's going to be a taking. I think that the issue can be better handled in terms of how the development comes down. As the Planning Commission has done in numerous cases before on these time extension requests, you work with the developer and the Planning Director to develop conditions of approval that address any updated concerns. I'm not aware, as I said before, of any time extension requests that got denied that would essentially take away the zoning or the SMA Permit for our project. So again, I guess, I close with we think that the County General Plan which is one of the laws of the County of Hawaii and the existing SMA Permit and Change of Zone are fully supported by law and that absent any change in those planning and legal documents that the proposed down zoning is inappropriate. Thank you. ALAMEDA: Thank you, Mr. Lim. Mr. Yuen, closing arguments? YUEN: I'll try to be brief. If this were a situation where there was no strong public policy reason to change the decision that had been made by the earlier zoning ordinance we would probably recommend a time extension as we've done in many cases in the past. But I think we pointed out what's different about this one, and there has been a change in the last 40 dozen years or so. We've seen a great deal of shorefront development on the island, we've seen a great deal of negative effects of that. And we have an opportunity here, and we're not saying that this is an area that we're going to keep open and we're going to take all value away from the owner, but that we can make it a more open area, we can lower the density, and we can take this opportunity. The applicant's argument is essentially that zoning goes on forever, even though there are time conditions that are supposed to be met and even though the ordinance says that we can do exactly what we're proposing to do right here. There is one point that I think is a small point of misunderstanding by the applicant, that they could have done a denser project under the zoning. Although numerically the RS-15 zoning would permit more units, the zoning ordinance always limited the project to 50 units. That was in the rezoning ordinance. Possibly it allows a lot size of 15,000 square feet but it does have a 50-unit limit. And finally on the question of the General Plan, although the General Plan may have not have changed, there are different points of emphasis in the General Plan. And the community and people making a decision on land use projects like yourselves as the Planning Commission, like the County Council, like myself as a Planning Director, can decide that the times call for a different emphasis. In 1997 there was one emphasis. Today, 2007 really with what we're seeing in the island the emphasis really should be on protecting and preserving what we have, particularly in the crucial shoreline area. ALAMEDA: Thank you, Mr. Yuen. Mr. Lim, any final responses? LIM: I think that the limitation to 50 lots in both the SMA and the zoning was a reflection of the Planning Commission and the County Council's belief that that level of development on this particular zoned property would be sufficient to protect the cultural and visual impacts and the General Plan criteria. So we believe that that decision was made and that it's more appropriate for the Planning Commission at this point in time to enact updated conditions of approval rather than to revoke the zoning and the, I mean, excuse me, to recommend down zoning and to revoke the SMA Permit. Mr. Yuen talks about different emphasis between 1997 and 2007, but that's just his statement. I have to rely on the law, and the General Plan established the criteria for this project. It was found in the SMA Permit that it is consistent with the County General Plan for 50 residential lots; and that the failure in 2005 of the County to reclassify this particular property down to Open or Conservation on the General Plan will, is indication that this property should remain as presently zoned. I think that we would like the opportunity to work with the Planning Department and the Commission to make this project move forward. We've finished the archaeological studies to enable us to do the lotting and that would have been our next step towards moving towards development of this project. I ask for your support. Thank you ALAMEDA: Thank you, Mr. Lim. All right, Fellow Commissioners, I believe, before I close the hearing, are there any final questions that you might have for either Mr. Yuen or Mr. Lim? Okay, seeing none, do we need to make a motion to close the hearing? TORIGOE: You can close it. 41 ALAMEDA: All right, if there's no objections to closing the hearing at this time, I'd like to do so. Seeing no objections, the hearing is closed. Okay, moving forward, I'd be open to entertain a motion, or if you want to discuss first that's fine. Commissioner Iwashita? IWASHITA: Yeah. So we're proceeding with the zoning first and the SMA second? Is that still the procedure we're going to follow? ALAMEDA: That's correct, unless, that's correct. IWASHITA: And we'll then address both agenda items, the zoning aspects of both Agenda Items 2 and 3? ALAMEDA: That's correct. IWASHITA: Okay. Then I move that Kohala LLC amendment to Change of Zone Ordinance No. 97, that SIRACUSA: Could you speak louder, please. IWASHITA: Oh, I'm sorry. Okay. My wife usually tells me the opposite. I move that Kohala LLC amendment to Change of Zone Ordinance No. 97-102 (REZ 866) be, can we do both together, be denied and then approved? ALAMEDA: Mr. Torigoe? TORIGOE: Yeah, I think you could do that. Just going in order from Items 2 to 3, basically you're taking 2(a) and 2(b), I think, along with 3(a). So if you're basically looking for a negative recommendation to Council on 3(a) and a favorable recommendation on 2(a) and (b), is that what you're doing? IWASHITA: Yes, yes. Okay, so I can do two. Start all over again, Jeff. I move that the Planning Commission forward a favorable recommendation on Initiator Planning Director Change of Zone Application from RS-15 to RA-5 and we forward a negative recommendation on Kohala LLC amendment to Change of Zone Ordinance No. 97-102 (REZ 866). SIRACUSA: Second. ALAMEDA: Does that include 2(b)? IWASHITA: I'm sorry? I'm missing something? ALAMEDA: Does that include 2(b)? IWASHITA: Yes. ALAMEDA: Okay. Is there a second? SIRACUSA: Second. 42 ALAMEDA: All right, motion made by Commissioner Iwashita, seconded by Commissioner Siracusa. Discussion? Commissioner Iwashita. IWASHITA: Thank you, Mr. Chair. ALAMEDA: Sure. IWASHITA: Essentially, I support the Director's position in that this is 2007, it's not 1997, that the, you know, in my two years or so on the Commission the concern about the impacts of all these shoreline management developments has been a continuous and genuine concern on the part of this body and that we have taken several actions, you know, to protect, our job is to protect the environment and implement the General Plan. And I believe that in our taking this particular action that we will be implementing the General Plan. And in that regard I disagree with Mr. Lim in that the General Plan somehow supports his position. The General Plan clearly directs us to take into consideration the environment and adverse impact on the environment, and viewplanes, and so forth. And at this point given the applicant's failure in the last ten years to comply with the time requirements of 97-102 that that is not the Commission's fault, that is not the County Council's fault, that's is not the Planning Department's fault. All of the failure on the part of the applicant is basically the applicant's responsibility. And in failing to meet up to that responsibility, I don't think that an argument can be made of equal protection or loss of rights, and so forth. So that is the basis for my making the motion and supporting this motion. ALAMEDA: Commissioner Siracusa and then Commissioner Domingo. SIRACUSA: Yes. I have several points I want to make. I have notes all over the place here. The progress report that was submitted on 2001 and the year when the five years was up for the plan approval, the final subdivision approval to be submitted, that was 2000, a year before. In other words, the new owner had ample time in order to file a request for an extension, if that new owner had been exercising due diligence. The delay that was due to State Historic Preservation Division, obviously there was a delay that was not the fault of the applicant; however, the applicant knowing that there was a delay, that things weren't moving according to the preferred schedule, had an opportunity at that time to apply for a time extension. And it would have been a valid reason and could have been granted; however, the applicant did not do so. By default through applicant's failure to act, they are in a sense giving consent to the down zoning. It's just like if you are called to, you know, called to answer a charge and you don't show up and they file a default judgment against you, you have no say after that. You've given up your rights by failing to show, And, in a sense, it seems to me that that's what the applicant has done here. So it's not a case of without consent or without the applicant's request. The applicant by failing to file an extension literally waived that right. Finally, no, not finally, and ultimately, the applicant mentioned that there were no testifiers today to testify against his request for a time extension. But by the same token there were no testifiers today to testify in favor of his request. So I think that argument just doesn't hold any water. And last but not least, between '97 and 2007, that's ten years, and all of us who live on this island have seen dramatic changes in ten years. We have seen huge population leaps, go through 43 birth increases, natural population increases, and in-migration. We have seen, you know, what happens in areas where the traffic jams, there didn't used to have to be traffic jams like that in Kona, you know, in Hilo or in Waimea, and we have them now. There have been a lot of changes, including Senate Concurrent Resolution 179 and 146 in 2001. The General Plan which was a new General Plan was put through, there have been concurrency resolutions coming through the County Council and at the Mayor's request, and the Community Development Plan. And I think that all those changes in the intervening years argue that the situation has changed dramatically and requires a different response than the Planning Commission gave originally back in `97. So I am going to vote in support of the Planning Director's Agenda Items 2(a) and (b). ALAMEDA: Thank you, Commissioner Siracusa. Mr. Domingo? DOMINGO: Thank you, Mr. Chairman. I speak against the motion. And I do so with strong feelings with regards to the General Plan which more than likely is known to be the sacred document in the realm of planning and, along with that, with the zoning that is in place, and with the SMA Permit that was approved for this particular development. What this tells anyone in this audience and those who own property that at any time there is a feeling among some individuals to down zone their property and to prevent them from improving it and developing it, you know, it's something that can be done to them also. That's a scary part. That's a principle and the concept that we're looking at today. This zoning was granted in 1997, the County Council, the ultimate body which determines General Plan Amendments and zoning, decided at that time that this is what is best for this particular area. And they have been aware of that and they have not initiated any zoning. If there was any change in the minds of the County Council with regards to the density and development of this particular area, they surely would have initiated some rezoning requests to be considered by the public. Just because, just because there have been some changes or drastic changes in the way this island has grown and the direction growth has taken place does not give us license to come up arbitrarily and take away an individual's or developer's right to zone and develop their property. That is wrong. And that can be applied to any one of us in here with property that is already zoned for development. Certainly you wouldn't want that thought to be in your mind as you live from day to day knowing some day that there will be some individuals who will be taking your zoning away and prevent you from developing your land. Now one of the important factors, the overriding factor here today is with regards to concern for density and the density that developments would cause, not only in this particular instance but in other places. And as I've indicated earlier today, you know, I would be more concerned about development on Alii Drive in Kona with regards, as it pertains to density. But today we're continuing to entertain applications for SMA Permits which would permit them to develop their property and increase the density on Alii Drive. The zoning to those properties were granted years ago, 10, 15 years ago, but it has come to a point at this time that they feel that it's possible for them to develop and improve their property and provide for other units because the market is there. You know, there are many factors I think we should consider in developing one's property. And I think this developer in this particular case has gone through the aches and pains of deciding what to do, whether it be the financial aspect of improving or developing a property, or whether or not the market is ripe to go ahead and develop. You know, that's the risk developers take today. But in this particular case, when the second owner took hold of the 44 property immediately after that or shortly thereafter they went to continue and acquire a study of an assessment of their property with regards to historical sites, burials and all that. And only, only last year did they receive a reply from the Department and the, I think, the consultant. You know, as in the past, as this Commission had entertained issues of revocation of permits, and I mentioned that this morning with regards to a trucking company who had not complied with the request of the special permit and he was, he was assessed as a penalty an amount, probably amounting up to $40,000 or so. Did we go ahead and revoke that permit? No, we told the Planning Director get together with this individual and see what you can do to make things right. I don't think we as Commissioners, you know, we're lay people, we're not planners. We're lay people. I think I'm more akin to the feelings of an individual rather than be more tied in with the documents of legality or not. I'm concerned about individuals and how they think, and how they react and what is really in here, you know. So in that respect we said okay, go back and work things out. To the Planning Director, work things out with the trucking company and see if you can resolve this. And I think there have been some positive results in that respect. I haven't had any report; but I would assume that there has been. You know, I ask this Commission to look at this issue very closely. There's a strong principle inlaid in this action that we will be taking, and that is a person's or owner's right to develop his property. We know that in the course of that development difficulties come in a way which precludes them from meeting deadlines and the submission of documents. That comes in the way. I think we should took at this closely and consider an individual's plight here with regards to developing or not to develop the land. If we support the Planning Director's decision, what we'll be doing is taking away this developer's right to develop; and that in the event in the future if he decides to come and apply for a rezoning and ultimately ask for an SMA Permit application, then it will be even harder for him; and that would be certainly unfair for him to go through the hoops as he will have to do if we do take this action today. Thank you, Mr. Chairman. ALAMEDA: Thank you, Mr. Domingo. Any other comments? Commissioner Woodward. WOODWARD: I would agree with most of what Commissioner Domingo has just stated. And there are a couple of things that bothered me about this. One is he's right, we have had numerous occasions where people have not met their statutory obligations and we've always worked with them. In fact, the other thing that bothered me is Director Yuen has more or less said directly that that's really kind of an excuse because, you know, we want to rezone that anyway because we feel that's an inappropriate use of this property. And so we're coming down on him; and that bothers me. And I think it is somewhat arbitrary and capricious for us to say, well, that's the way we feel this property should be used; but anybody else that come up and violates their time requirements or whatever, we work with them. But no effort was made to work with these people. So I'll have to vote against the motion. ALAMEDA: Commissioner Siracusa, anything that you wanted to add? SIRACUSA: Yeah, I just wanted to address two points. One was about the trucking company, and that failure to comply was only about a year in terms of time. This here we're looking at ten years down the line. So I think there's a question of extent, you know. And, also, we're not taking away this company's, this applicant's right to develop. We're just taking away 45 the right to develop in a specific way. And, 1 mean, as Director Yuen pointed out, he can still do a development with 5-acre lots; and that would be allowed. So it's not that we're taking away all his rights completely. We're just revoking a permit that he had the opportunity for, ten years, he had the opportunity to put in an extension request and failed to do so. ALAMEDA: All right. I don't think we need to continue convincing each other. I think we're pretty set in our ways already. I'm ready to vote, if anything. IWASHITA: Mr. Chair? ALAMEDA: Go ahead, Commissioner Iwashita. IWASHITA: I have to apologize to Chair because I'm compelled to say ALAMEDA: Okay, all right. Just keep it brief. IWASHITA: Yes. I agree with Commissioner Domingo that this body cannot act arbitrarily and that we have an obligation to recognize that private property owners do have rights due to them. Those rights aren't unlimited though. That's the whole basis for our land use regulation system. In this particular case, my emphasis is, there's no question that this applicant and the original applicant that got 97-102 passed, that both parties had the opportunity, which we have not taken away and we can't take away because that opportunity was for five years or more, actually up until today. If they had just, either owner had actually taken 97-102 and done the things, gotten the planning done and gotten the final subdivision approval, we wouldn't be here today. None of that is being taken away or, you know, we can possibly take that away. What the applicant is asking is for more time to do those things; and with the passage of time comes change of conditions. And neither the applicant nor this body, I think, can ignore the fact that conditions have changed in the past ten years; and I for one have to recognize that. I think I'm especially or maybe today more sensitive to that because I just got back from lost wages and, you know, I met a realtor/developer person there, and in the past five years, you know, Las Vegas has seen the kind of development most places don't see. And, you know, we're not going to see anything like that here. But we are at a point in terms of the development of this island that as the Director indicated in my mind it's almost the tipping point. Either we start taking our environment seriously now and we make decisions that take that into full account and protect as much of it as we can or and, you know, because of private property owner rights that's going to be a challenge we're going to be facing this for years and years to come. And I for one think that, and I believe there is an important principle that we're working on today; and that is to apply the genuine concern that we should have for the environment, especially in our coastal areas, and do take this opportunity as we fully can under our rules and under the law, following the law, and protect as much as we can in this particular case. And then I would urge we continue to do that in looking at other applications. Thank you, Mr. Chair, for your indulgence. ALAMEDA: Thank you. Anyone else compelled enough to respond to that? Very good. All right, we have a motion on the table made by Commissioner Iwashita, seconded by Commissioner Siracusa. Seeing no further discussion, staff? DARROW: Thank you, Mr. Chairman. The motion before us is actually voting on three items of the agenda, Item Nos. 2(a), 2(b) and 3(a). This will include the Planning Director 46 initiating Change of Zone from Single Family Residential 15,000 square feet or RS-15 to Residential-Agricultural 5-acre (RA-5a); the repeal of Ordinance 97-102, which rezoned the property from Agricultural 5 acres to Single Family Residential 15,000 square feet or RS-15; and, lastly, the amendment to Condition C for Rezone 97-102. So with that, the motion is that they send a favorable recommendation for 2(a) and 2(b) and an unfavorable recommendation for 3(a). Sound clear? ALAMEDA: I got it. DARROW: With that, I'll take the roll. Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Domingo? DOMINGO: No. DARROW: Commissioner Ogata? OGATA: No. DARROW: Commissioner Woodward? WOODWARD: No. DARROW: And Mr. Chair? ALAMEDA: Aye. DARROW: The motion does not pass three ayes, three noes. ALAMEDA: All right, Mr. Torigoe, what will be the next step in this process? TORIGOE: As you know, on rezoning amendment matters, let's see, this is interesting because part of it is initiated by the Director and part is initiated by the property owner. Something that is initiated by a property owner, you have 90 days after receipt of the application, unless a longer period is agreed to by the applicant to get a decision of five votes; and if that fails then it's considered an unfavorable recommendation. On the matter that's initiated by the Director, there should be a decision within 60 days after receipt of the amendment. And if the Commission fails to act within 60 days then the action is considered as unfavorable by the Commission. So staff, I suppose, first we should ask if you can confirm to us that this can be put back on a Kona agenda within 60 days of the transmittal to the Commission from the Director. ALAMEDA: Try and see what the calendar allows for. Phyllis? 47 FUJIMOTO: Yes, we do have a scheduled August 3 date in Kona. We are not sure about a September meeting because of a conflict. ALAMEDA: August 31st. Does that make it within the 60? FUJIMOTO: Yes, it would. We could put it on the August agenda. ALAMEDA: Okay. TORIGOE: So, yeah, unless someone comes up with some other form of a motion that maybe five votes could support, that seems to be what you should do with the rezoning part. The SMA part you have not touched yet but it seems like, again, you know, it seems that it's going to be a split vote. Now on that one the rules are a little different. Your Rule 9-1 I(f), that's on page 9-16 of your rules, it says that within a reasonable time not to exceed 30 calendars days after the conclusion of the hearing or a longer period as may be agreed to by the applicant then you should render a decision, again requiring five votes. If you fail to render a decision to approve or deny within that 30-day period, then the request shall be considered denied. The applicant can also request the authority to defer action, but that requires a majority vote of the Commission; and if the authority fails to render a decision to defer the action within that same time limit, that request is considered denied. So basically we start, it starts with you closed the hearing today, so you have 30 calendar days in which to make a decision. Staff, can you tell me if we will be, is August, oh boy DARROW: August WOODWARD: Mr. Torigoe, if I might make a suggestion, from what you just said, it's or a later date if agreed to by the applicant. Perhaps if we vote to defer action, if it's all right with the applicant's attorney, we can consider both those matters at the August 31st meeting even though that's beyond the 30-day limit. TORIGOE: Right. I think that's within your authority. ALAMEDA: Can we ask Mr. Lim? LIM: On the Planning Director's initiated Change of Zone application on Agenda Items 2(a), I guess 2(b) and 3(a), excuse me, 2(a) and 2(b) for agenda items, the applicant cannot stipulate to extend the time limit. ALAMEDA: Was it the 90 days, Mr. Lim, or the 60? LIM: That's the 60-day time limit in Planning Commission Rule 11-3(c)1., Capital Bravo. TORIGOE: Okay. But for the August 31" meeting, I'm sorry, what was the date? DARROW: August 31". 48 TORIGOE: Yeah, August 31" meeting. DARROW: So we're within the 60 days. TORIGOE: That's still within 60 days. DARROW: I think the issue is the SMA application. TORIGOE: Right. LIM: Could I ask a point of order as to when the proposed amendment was initiated by the Director? I'm not able to tell. Was it the May 7, 2007 letter to the applicant? YUEN: I think the wording is 60 days from the transmittal to the Commission. ALAMEDA: Would that be today? TORIGOE: Let's see. It says 60 days after receipt of the amendment from the Director. So LIM: For procedural record purposes, can you tell me what date that was? DARROW: That would be July 11, 2007. IWASHITA: That's the date of receipt by this body? DARROW: That is the date that we sent out the background and recommendations to the Planning Commission; and that's the date that we can verify that it has been submitted to the Commission. IWASHITA: Mr. Chairman, my concern is that, you know, we get it for preparation purposes but we don't officially meet as a body until today and to considerate it. So I would say that we got it today. WOODWARD: Mr. Chairman? ALAMEDA: Sure. WOODWARD: In any case, it's within 60 days. Even if July 11`x', August 31" is still within 60 days. The question is whether Mr. Lim is willing to accept a vote on the Special Management Area Permit at the same time, the 31", which would require an extension beyond the 30 days. ALAMEDA: Mr. Torigoe? TORIGOE: Well, I suppose another thing you could do would be to reopen the hearing, you know, to allow for any further evidence that you may want to ask the parties for and 49 that would extend, well, that would basically extend the trigger because the 30 days begins from the time that you conclude the hearing. But that's up to you. SIRACUSA: Excuse me, we have already have voted to consolidate the matter so I don't see any need to reopen the hearing. But I could see where we could decide to take the vote on the SMA Permit and then let the time frame play out from there. ALAMEDA: Could we ask the applicant if he would be willing to consider the SMA Permit on the 31"9 Is that an option? TORIGOE: Yeah, that's what I think was being discussed, is that the applicant may request the authority to defer action, and that would extend the time. LIM: I'm not clear on the time frames under the rules for the SMA Permit. Maybe you can enlighten me. TORIGOE: Yeah, I'm looking at, on my version, well, that's Rule 9-11(f) and in the current version that's page 9-16. And it is kind of a convoluted rule but it says, first paragraph talks about the 30-day deadline or within a longer period as may agreed to by the applicant. LIM: Okay, so that means that within 30 calendar days after today, July 20`h you have to make a decision one way or the other. TORIGOE: Right. LIM: And the next Planning Commission meeting is August 31"9 TORIGOE: In Kona. DOMINGO: Mr. Chair? SIRACUSA: I have a procedural question. TORIGOE: Commissioner Domingo had a question. DOMINGO: It's aside from determining the time when it should be considered, I have another clarification. ALAMEDA: Okay, procedural question, Commissioner Siracusa. SIRACUSA: Yeah, is there a difference in what would happen afterwards if someone made a motion to approve the applicant's request to extend time on the final approval for the SMA and we split three-three the way we did on the other vote? Or if we did it just on the Planning Director's and we still had the three-three split, would the results of how it plays out afterwards be the same or different? ALAMEDA: Mr. Yuen? 50 YUEN: I'm going to answer that question indirectly. But let me first make a recommendation, that the Commission do take a vote on the Planning Director's initiative to revoke the SMA Permit and the applicant's request to extend it so that there is a vote, so that the Commission had dealt with it and taken a vote on the record. Then at that point it is up to the, and it may be split. I don't ask you to have a lot of debate on it. It may be a split vote. But the matter has been brought to the Commission and the Commission has taken a vote on it. Then let me discuss what happens after that; and that is, and this is for Mr. Lim as well, and I'm not going to engage in gamesmanship on this. Because what is going to happen is that if the time is not extended there is a 30-day time frame to act on either. So the revocation doesn't meet the time frame. His motion to extend time does not reach the time frame. If they do not extend time on the SMA Permit, the time has expired and his SMA Permit becomes defunct. All right. Now you have a split vote today and then the Commission has a, if there's a time extension the Commission can take a vote again on August 31". If there's a split vote on August 31s`, with neither one being affirmative or not, and if it's due to the lack of there being 9 people here, which is the typical reason, there is a special provision in the SMA Rule that allows for a second vote on that question, one more vote. And if that vote is again split, then both the request to extend, the effect is the request to extend time is denied and the revocation is also denied. SIRACUSA: So what do we end up with then? Because they're opposite? YUEN: You end up with a defunct SMA Permit. ALAMEDA: Mr. Torigoe, you had something? TORIGOE: Yeah, Mr. Chairman, I'm not sure that I would agree, you know, that if there is no decision made by the time that the original deadline for the final subdivision approval is met that you have a defunct permit. I don't know that I would say that the permit itself just automatically expires because, well, for one thing, the language of it seems to indicate that what happens then is that the Planning Director can initiate revocation. So IWASHITA: You're talking about the SMA? TORIGOE: Yeah, the SMA. ALAMEDA: Yes, Commissioner Domingo. I know you've been holding the mike for a while. Go ahead. DOMINGO: Just a point of clarification, Mr. Chairman. It's in regard to the vote that we've just taken where it was a split vote. Now what does Robert's Rules play in this whole scenario? Because under Robert's Rules if you don't have the majority vote, then the motion is dead. ALAMEDA: That's correct. TORIGOE: Basically, Robert's Rules would come into play if your Planning Commission Rules don't govern the matter. It seems to me the Planning Commission Rules allow for you, for instance, on the rezoning matter, that the rules seem to contemplate that you do 51 make an effort, you know, over the 90- or 60-day period to come to some kind of decision with five votes one way or another. DOMINGO: One way or the other? TORIGOE: Right. ALAMEDA: All right, taking up Mr. Yuen's recommendation that we vote, Commissioner Iwashita. IWASHITA: Thank you, Mr. Chair. I move as to Item No. 2, revocation of Special Management Area Permit, SMA Use Permit No. 379, that we adopt the Director's recommendation to revoke the Special Management Area Permit. And as to Agenda Item No. 3, requesting amendment to Condition 4, time to secure final subdivision approval, Special Management Area Use Permit No. 379, which allowed the development of a 50-lot Single Family Residential Subdivision, that that amendment be denied. SIRACUSA: Second. ALAMEDA: Okay. Motion made by Commissioner Iwashita, seconded by Commissioner Siracusa. Discussion? Commissioner Domingo. DOMINGO: I understand the basis for this motion, among others mentioned, but I think the primary basis is the nonsubmittal of a request for extension on both issues, and not density or other issues surrounding this development? ALAMEDA: Are you asking, who are you asking that question to? DOMINGO: Whoever can answer that. ALAMEDA: Any Commissioner care to entertain that question? Commissioner Iwashita? IWASHITA: If I may. I make the motion because, you know, as to an SMA Use Permit application, we are obligated as Planning Commissioners to address the criteria set out in Act 205 which specifically addresses adverse impact of any proposed development on the ocean. In this case, you know, this is the primary reason why we're empowered to require SMA Use Permits in property located in the SMA area. So, to me, that further emphasizes my concerns about the environmental issues that have arisen in the past 10 years and that, you know, it's not hard for us to look around to see the degradation of the environment; and the acceleration of the degradation of the environment is rather obvious to me if we continue down the path that we do. So that is a significant change in circumstances as far as I'm concerned and why I support the motion. ALAMEDA: Commissioner Siracusa? SIRACUSA: As the seconder, I would like to clarify why I seconded it. And it is partly what has to do with the 10-year failure to request a time extension and to comply with the 52 conditions. It has to do with the environmental impacts, with the changes that have happened, with the increased density of an area where there has been no concurrency, and all of those issues, really. It's not just one issue. ALAMEDA: Thank you, Commissioner Siracusa. Mr. Domingo? DOMINGO: The SMA permit process we use to determine the impact, mostly the negative impact of the proposed development along the shoreline, and as Mr. Iwashita said the concerns of the water quality, and protecting the environment, the shoreline environment and preserving all that is there, I can accept that. But using that as an argument to deny the SMA Permit isn't appropriate because if we go along this coast today and then, you know, bringing your attention to the reports by the Corps of Engineers with regards to quality control, it has impacted the waters and shorelines along the coast. Okay, if that is an argument why hasn't the Commission or the administration taken any corrective action with that regard? Now applying that to, again, Alii Drive, the same comment by the Corps of Engineers with regards to the readings of the waters, you know, it is being impacted by the development along Alii Drive and above that; and we're going to consider some applications in the future with regards to those developments. Now I see no recommendation of denial of those permits because of the degradation it has caused on the waters and the surrounding environment along Alii Drive. You know, I'm puzzled by this. IWASHITA: Mr. Chair, just one point? ALAMEDA: Okay, let me just, again, reiterate we may not convince each other but we have one chance. So, go ahead IWASHITA: I understand. ALAMEDA: Commissioner Iwashita. IWASHITA: I just wanted to point out one example to Commissioner Domingo. You know, the D-Bar Ranch application which we got reversed on befuddles me how the Court did that. But that was one case, that proposed development mauka of Alii Drive for what was it, 120 units or whatever it was, and this body, that was for an SMA Use Permit; and this body because of the environmental concerns and the cumulative effect of similar developments that we can expect in the future did deny that application. So that is just one example I wanted to raise that this body has acted on those concerns, and that by denying the request for extension in this case that we can be consistent. ALAMEDA: Commissioner Siracusa. SIRACUSA: Yes, just to follow-up with that, is that also certain Commissioners have voted consistently against increasing density in that area on the Kona side; and maybe they were not always on the winning side of the motion, you know, so you couldn't say, oh, the Planning Commission unanimously. But there still has been a concern that has been voiced and voted on accordingly. 53 ALAMEDA: Thank you for keeping it brief. Commissioner Domingo. DOMINGO: I just wanted to mention, you know, speaking of consistency, this body also approved Sun Coast development, an adjacent development of the D-Bar Ranch application. And, you know, that's why I said where's the consistency in all of this by the Planning Department and by the Commission. ALAMEDA: All right, points well taken by all of you fellow Commissioners. Nonetheless, we still have to come down to a vote. I appreciate the discussion, that's why we're a 9-member body. Today we have 6 though so we'll see how it goes. Seeing no further discussion or further points, the motion was made already by Commissioner Iwashita, seconded by Commissioner Siracusa. Staff? DARROW: Thank you, Mr. Chairman. The motion before us is for two agenda items. This would be Agenda Item 2(c) which is the Planning Director initiated revocation of Special Management Area Use Permit 379, that's to approve the revocation; and also Agenda Item 3(b) which is a time extension request for Condition 4 of SMA 379 by the applicant Kohala LLC, and the motion is to deny the request. With that I'll take the roll. Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Domingo? DOMINGO: No. DARROW: Commissioner Ogata? OGATA: No. DARROW: Commissioner Woodward? WOODWARD: No. DARROW: And Mr. Chairman? ALAMEDA: Aye. DARROW: The motion does not pass three to three. ALAMEDA: All right. Mr. Torigoe? Next step. TORIGOE: Well, as we discussed then the rule basically is within 30 calendar days after the conclusion of the hearing, which is today, or within a longer time as may be agreed to 54 yi by the applicant, then you must render a decision. If you fail to do so, then the request shall be considered denied. ALAMEDA: Okay, any questions for Mr. Torigoe on that? Mr. Lim? LIM: For purposes of the SMA proceedings, at least under my understanding of SMA Planning Commission Rule 9-11F. subsection 1., it's that the Commission within thirty (30) calendar days after the conclusion of the hearing must render a decision. For purposes of the applicant's request to extend the time for Condition 4 under Special Management Area Permit No. 379, we stipulate to a time extension for Commission action only up to and including the August 31, 2007 Planning Commission hearing. ALAMEDA: Mr. Yuen? YUEN: And I believe it would be in order for the Planning Director as the applicant for the revocation to also consent to extend time on the consideration of that up to and including the August 31s` meeting. ALAMEDA: Commissioner Iwashita. IWASHITA: So that applies to both to 2(c) and 3(b)? We're continuing both of those to August 3 meeting, is that correct? YUEN: Correct. ALAMEDA: Okay, go ahead. IWASHITA: Mr. Chair, then I move that Items 2(c) and 3(b) be scheduled for further consideration by the Commission at its August 31, 2007 meeting scheduled for West Hawaii and that those Commissioners not present for today's proceeding be provided the transcript of the contested case hearing and the relevant exhibits for their consideration. ALAMEDA: All right. SIRACUSA: Second. ALAMEDA: Motion made by Commissioner Iwashita, seconded by Commissioner Siracusa. Discussion? Seeing none, staff. DARROW: Thank you, Mr. Chairman. The motion before us is to continue this matter until the August 31" West Hawaii hearing. Is that correct? ALAMEDA: That's correct. DARROW: With that I'll take the roll. Commissioner Iwashita? IWASHITA: Yes. 55 DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Woodward? WOODWARD: Aye. DARROW: And Mr. Chairman? ALAMEDA: Aye. DARROW: The motion passes six to zero. ALAMEDA: Mr. Torigoe, are there any procedural matters that we missed? TORIGOE: Okay, one thing, if we are going to continue for another vote on the SMA matter, which is a contested case matter, the Circuit Court recently informed us that if there are going to be people at the second hearing who have not heard the evidence at the first hearing that there ought to be a form of a decision before the Commission and to allow for exceptions and argument unless the parties waive that. So I'd just like to ask the parties if they would like to have some form of a decision to put before the Commission or whether they would just want to go ahead with the record as it is. The Planning Director has a recommendation in there. One thing we could do is just allow for Mr. Lim to present an opposing proposal for decision, and then allow for the parties to either waive any further action until it gets here, back here, or to set a date to file any exceptions to the proposals for a decision and then come back and argue, or you can waive that as well. LIM: I would like to submit a proposed decision and order pursuant to Chapter 91 and we have the opportunity to respond to any of the Director's opposition to that proposed Decision and Order. TORIGOE: Okay. Can we agree to perhaps a submission of the proposal for a decision to be, what's reasonable, within two weeks prior to the August 31" meeting? More than that? Or would you rather have it three weeks before and then you can maybe a week after that respond if you want? LIM: Perhaps we could make the applicant's proposed decision and order, this is on the SMA case only, correct, due by August 17`h Friday. Is that pushing it too far back close to the hearing? 56 YUEN: The Director's proposed action has been in front of the applicant, and I think the applicant has expressed their objections. If they are comfortable with an informal decision that has been presented, I don't then have a problem with the August 17`h date for them to present a formal decision and order. LIM: We're accepting his representation that the papers filed to date are his proposed decision and order, so we'll frame our own. Would the Director then have a chance to rebut? Cause we'd like to have a chance to respond after that if that was the case. TORIGOE: Okay, so what we're hearing now is basically that the Director's recommendations will be used as the Director's proposal for a decision, and that Mr. Lim will file something by August 17`h, and that's it for the record, that there will be no further written exceptions. ALAMEDA: Is that correct? YUEN: That's fine. I think that what we should do is simply, you know, he has made his objections to the proposed decision and he can argue them again. I think we should open the hearing to the extent of allowing further argument on that if he wishes and we will argue on August 31" against his, rather than requiring formal exceptions be submitted at some time in the two weeks between August 17`h and the hearing. I'm willing to agree to that if Mr. Lim is. LIM: That's fine with us as long as we're able to keep the hearing open to argue on the August 31s` hearing. TORIGOE: Okay, so you're saying you want to have the option to file formal exceptions to each other's forms? LIM: No, I'm okay with just filing one. YUEN: Yeah, we're agreeing that we would not file exceptions, that he wants to file a formal decision and order, that he will have a deadline of August 17`h. After that there will be no further written filing. The parties will simply argue their cases again in front of the Commission on the 31". The Planning Department will, with the consent of the applicant, rest upon, as far as a formal decision, will simply rest upon what has been submitted; and if the Commission votes to revoke, that will be the decision that the Commission is voting to revoke, as stipulated by Mr. Lim. ALAMEDA: Fellow Commissioners, are there any objections to Mr. Yuen's comments? IWASHITA: Just a clarification, so then when we meet on the 31s` then our choices will be either choose between the two or some, we can make some changes on one or the other? TORIGOE: Right. IWASHITA: That's fine. 57 ALAMEDA: Okay. Seeing no further objections, that's how we will proceed. LIM: Thank you very much. ALAMEDA: Thank you. The discussion ended at 2:31 p.m. Respectfully submitted, ATTEST: Sharon M. Nomura, East Hawaii Secretary Noriko Sauer, West Hawaii Secretary 58 LF117-1 R Are- Dornnry Director PLANNING DEPARTMENT 101 Pauahi Street, Suite 3 e Hilo, tlawaii 96720-4224 (808) 961-8288 m FAX (8608) 961-8742 January 28, 2008 Mr. Robert A. Stuit p r > Gs Vice President of Special Projects Z~ z 1250 Oceanside Partners ' . o 78-6831 Alii Drive, #K15 Kailua-Kona, HI 96740-2440 Dear Mr. Stuit: 3> N 00 Applicant: Hokulia Development Agrreement No. 1 Change of Zone Ordinance No. 96-7 (REZ 812) Change of Zone Ordinance No. 97-8 (REZ 765) Special Management Area No. 356 (SMA 356) Subject: 2008 Annual Progress Reports Hokukano to Onouli, North and South Kona, Hawaii Thank you for your letter dated January 14, 2008, providing us with the comprehensive annual progress reports for the Hokulia Project. The submission of the reports satisfies the requirements of the above referenced agreement, ordinances and permit. A copy of the annual progress reports will be transmitted to the Hawaii County Council and the Planning Commission for its information. If you have any questions, please feel free to contact Norman Hayashi or Jeff Darrow at 961-8288. SincereVPHER ti CHRIS YUEN Planning Director JWD:snm P:\public\wpwin60\lefflLetters\Annual Reports\Lttuit-Hokulia-2008APR-DevAgr-REZ812-REZ765-SMA356.doc cc w/copy of reports: Mawaii County Council Planning Commission West Hawaii Office la'r-. ov'i c'oldniy 7,P aim F-11Fgl 17lao0''-t"Jf.V Prori'eg wire Fnrrrrryer: lk- January 14, 2008 Mr. Christopher J. Yuen, Planning Director County of Hawaii Planning Department Mr. William Graham, Chairperson County of Hawaii Planning Commission Aupuni Center 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720 ATTENTION: NORMAN HAYASHI Subject: 2008 Annual Report Development Agreement No. 1 Change of Zone Ordinance No. 96-7 Change of Zone Ordinance No. 96-8 Special Management Area Use Permit No. 356 Dear Mr. Yuen & Chairperson Graham: I am pleased to submit the following annual report for Development Agreement No. 1 ("Agreement") by and between the County of Hawaii ("County") and Oceanside 1250 ("Oceanside"), in accordance with Item 24 of said Agreement, Condition No. R of Change of Zone Ordinance No. 96-7, Condition No. V of Change of Zone Ordinance No. 96-8 and Condition No. 13 of Special Management Area Use Permit No. 356. This letter is intended to supplement the prior annual reports. However, if there are any issues which you believe are not covered within the attachments, please do no hesitate to contact me so that we can fill in any perceived gaps with this report. In April of 1998, Oceanside 1250 and the Hawaii County entered a Development Agreement to identify the obligations of Oceanside, to provide assurance that these obligations are met in a timely manner, to provide assurances to Oceanside that it may complete full development of the Hokuli'a Project ("Project"), to provide assurance to the County that the Mamalahoa Highway Bypass ("Bypass") and other public benefits set forth in the Development 1250 Ocearuide Partners 78-6831 Ali`i Drive - Suite K15 Kailzta-Kona, Hauxri`i 96740-24¢0 037323 phone 808-3?4-1500 - fay 808-324-4252 auww hokirlia. com ` Mr. Christopher J. Yuen, Planning Director Mr. William Graham, Chairperson January 14, 2008 Page 2 Agreement are completed, to allow Oceanside and the County to enter a reimbursement agreement for costs associated with the Bypass and to reduce or eliminate uncertainty in the responsibilities of Oceanside and the County relating to the development of the Project and the Bypass. The scope and purpose of the Development Agreement is consistent with Ordinance 93- 37, the Development Agreement Code and Rule 1, which implements procedures for the application, preparation and administration of development agreements as provided by Ordinance 93-37. The Development Agreement was executed and approved by the Mayor on April 20, 1998. Golf Course The Golf Course was completed in July of 2002. Details regarding compliance with the conditions of approval of Use Permit No. 115 and SMA Permit No. 345 for the golf course will be provided in the 2008 annual reports for these permits. We will continue to monitor Oceanside's compliance with the conditions of approval of Use Permit No. 115 and SMA Permit No. 345. Mamalahoa Highway Bypass The Mamalahoa Highway Bypass is in part designed to address existing traffic conditions in the area and to provide an alternative route for interregional traffic between North and South Kona in support of the County's long-range traffic plan. The Draft Environmental Impact Statement and Final Environmental Impact Statement (DEI and FEIS) were both approved and accepted by Department of Public Works. Construction of the Bypass Highway commenced in January 2001. However, completion of the Bypass Highway has been prevented by the ongoing Richards lawsuit. Oceanside acquired or completed a purchase agreement with each of the landowners for the necessary right-of way along the Bypass route except for the owners at the south end of the alignment who are still reviewing their documents, and the owners of the Coupe/Richards property. That latter property is the subject of a condemnation action (County of Hawaii v. Robert Nigel Richards, Trustee, etal, Civ. No. 00-1-0181K). As you know, in December 2007, the Third Circuit Court granted an Order of Possession in favor of the County, but one of the co- owners of the property (referred to as the "Coupe Parties", who held an undivided 72% in the property) filed an appeal of the court's judgment and order of possession. We do not know when the appellate court will decide on the Coupe Parties' appeal. As a result of the delay caused by the opposition and appeal of the Coupe Parties, as well as the delay caused by prior Kelly case, Oceanside has been meeting with landowners who completed purchase agreements for the necessary right-of-way along the Bypass route to discuss estimated dates of construction and related matter of concerns to the landowners. Mr. Christopher J. Yuen, Planning Dig ectoi Mr. William Graham, Chairperson January 14, 2008 Page 3 Shoreline Park Oceanside obtained approval of the Public Access and Shoreline Management Plan on January 29, 1999. This plan addresses the public access areas, perpetual access covenants, archaeology, marine resources and related improvement measures. Details of the provisions for historical sites were developed and will be implemented as part of the comprehensive archaeological mitigation plan that was approved by SHPD on September 7, 1999 and September 15, 1999. We are in the process of completing an Archaeology Inventory Survey for the State Parcel at Hokukano Village which is situated next to the shoreline park. In addition, Oceanside obtained approval of both CDUA HA-2977 and SMA Permit No. 401 that outline the proposed facilities to be developed in the Shoreline Park. We are in the process of preparing the necessary documents as required and anticipate the preparation of construction plans as required by the conditions of approval of both permits to ensure that they are complied with. The annual report required by SMA Permit No. 401 will provide greater detail of our progress on this component of the Project. The first phase of the shoreline park with the required public parking stalls was opened on August 1, 2002. Archaeology Oceanside obtained approval from SHPD on September 7, 1999 and September 15, 1999 of the Archaeological Mitigation Plan that includes a data recovery plan, an interim protection/preservation plan, interpretive plan and a monitoring plan. We are currently in the process of preparing the final Preservation Plans in consultation with DLNR and Hawaiian community organizations. As required by the terms of the land use entitlements for the Project, approved mitigation measures are being implemented prior to or in conjunction with land alteration on the property. Subdivisions On September 18, 1999, the County issued Final Subdivision approval for Phase I and on December 1, 2000, the County issued Final Subdivision approval for Phase Il of the project and related subdivision improvements. On July 10, 2007 the County issued tentative subdivision approval for Phase 3, North and South. Other Items There are no other items to report that affect the status of the Project or the Bypass as it relates to the terms of the ordinances. Subject to the foregoing, Oceanside 1250 intends to meet all of the terms and comply Mr. Christopher J. Yuen, Planning Director Mr. William Graham, Chairperson January 14, 2008 Page 4 with all of the conditions that are specified within each ordinance. To date, however, we believe that this letter and the actions described herein constitute full compliance with all of the terms and conditions contained in the ordinances and Agreement and that Oceanside 1250 is in good standing under its obligations. For your reference, we have attached matrix charts for Development Agreement No. 1, Change of Zone Ordinance No. 96-7, Change of Zone Ordinance 96-8 and Special Management Area Use Permit No. 356 that indicate the status and compliance for each condition for the Development Agreement, the two change of zone ordinances and the SMA permit. Oceanside requests, per the terms of Paragraph 49 of the Development Agreement, that when the Planning Department finds compliance by Oceanside with the terms of this Agreement, the Planning Department shall issue a certificate of compliance in recordable form that Oceanside may record in the Office of the Assistant Registrar of the Land Court of the State of Hawaii and/or the State of Hawaii Bureau of Conveyances. I trust the above provides a useful description of the status of development and compliance with the conditions of approval for the ordinances. Should you have any questions regarding this report, or if you require further information regarding the Project, please contact me at (808) 324-4212. Sincerely, OCE 12 Ro A. Stui Vice President of Special Projects Attachments cc: Josh Skevington w/attachment Michael Matsukawa w/attachment Phil Schneider w/attachment wd ~ v~: rn m 10 May t7w ~_'n w.0 ~.w o.~n d~r.o•~,w°~yw w ~ ~ ~ ~ ® w ~ G Aob rn a~ nnrn w'w a.E nC)'o a'pa.a`ti°~ tro"~ o, v~2 rn NCO 0 vw, ~o c<o p O r-i G O..0 95, 1+ rop w`< w' rnaa aw to ~r*.~ q,E Orn p, 5 (~a<< ° t~_G E. ° o° rn< c? o °n " p tom" yy G H< n 9a ti~ pyo do o< o oEC'° ~Oo ayaa 5 "5w o < o p v < o o rn p o ff T7 0 0 <4$ ~1 m 14 [ rn GGy O `G N `O < p Cam. v," E " O ~°w 0 0 O cp ~ ~ ~00 til ca n w yyyy N~ °u b o ~W N a a~ A Na.o o 9 w B ntr °~o0pa 'o rn N ~a° 0y~~ oaf CL go 00. m~ 't ~o "t Ol7o a• p ~oo+ r0 y< m warn rn . m o CJ o w ~y rn CL O row Crn ~~•~p P.C~.~c<o 'tyyYt,',~ w fn o O r O' " A Oq Cy w c~N~ p' G. + w n'1 y p. w ~ " rn ~ rn Q, oo w p, rn o. G ~ ~p d ~ rn n " M y d _ K A Fib ll ° Q V p r' t3' r L3 ao 5' x~° np!-n w avow N p'w w trn ® o c :r K a a_ w a v`o w p w ~ o~ ti~ n ~ o ~ ea C7 p w P. ~ ° b7 - ° m t5' ~ a p' ~ ~ p- ~ m td rn O ~i ~ o w v rn K rt o 'Ooh G1~ E w a.o w O5'aa g y oA w o p °6'u rn o ~o u a E h7 ,Q o o H' zoo ~i H a CL C 5 w o o °o C" CO) o o xhp,x~x..,~ xE O..,a 'rn m mao C' M rn on oy t q, o w C] y. 5 w o 0 rn rn z 5 p° C °G oar L° 4~ av ° .sMm ' w p A w. n O1 G Cs7 ~.E °°zrn Ego ~ +n C7 ti'crn Cp d wp .*,rn o rn ww a v cr ~F~y+ w rn rn a V ao p a o p p. w m p rn m b CL . " p n ``w C. kh7ti ryy n K C C. p rn E ap a o a ow p o'rnr~ w ap 0 aS"a c)° v A p'p o ab C]~nm p,~ o a w a= 'o o ° o p C. R n O n 0. y~ N rn O b {~y*. 0 O tr < O p, F 00 w y p 5Q p O .N_. ° pq O 0 0 p c~t ~(o O E 'p p0 W O R p o n y m y N ~y,,. y N O o' E~ CL 0 Id k4 a° r,* 0 ell 0 trj p m y _ pp, ^ w r~ p F+, Q~ o P nfS 'C p rn~ O O ~ ~ b C ~O o pab.tn4p ~'p w p Mp q,cn C o o o. °O`nti" W w C.r 7 y p .p o p 7 w Cr o p rn ~ p °~~w b7 rn a' ° 6+ cc•. w Er a a ~ ~ a- w ~ b p v rA d m A M O d m f~ ~ co, 6 i6 ~H ~ \P ~ r5 rn m w a C7 p uc ~e m o H o w p¢. ry c as A~ .a o ao < q' b a rn o w E, d o h o v p, ts7 rn p• m t ~r' t7 w rn w 5 o t7 o t1 Fj A P"v y A 1~7 00 ps1 Fi7 .a iv L~7 N C=1 o ffQ CS K b C p z o. ° co P.' n A b O^ C° A rn O C° rn ° w C o o m K p p p o o rI° w`G ° y~Awp c.'7yt~°'w dp •,d° C7"y#.'yy O C21 C K u o o. O rn o o O v b' 5' .gyp a b w ° C] b ° in ao y r~R'°° co o f]a P'+ m tr1 > yZo d w o ^ ° p^ Z a< w~Zo y Z~w m o D G c# CL a 10 d w ^ .C • • fD rn z p., O S] p0 p oo O„V G P 0'0 p d Cs7 p cC !.y~.a m ooa ~p ti 217yo ts7 •o 0K~yl y. Gp o rn y "G rn ti0 G. " p p "O d b r pti a w w tl1 ° K [h~7 v l~7 ^y C y G Oti Ap nom. o ° c o °o d: d y `D b: p w t7 p m ~ a ? ~ a r) p a, E w a o °9 a y o o OO g w 0 a~DO y b Vo o 9 5 x"\l o ~.~o oao O p C.C r K oo o by G m a m C~ E d w p p "5. rn rn ~ O p w p',~ ~ p G ~ W O " p fi' O •p rn rn 0 N°~~ A O~ O b 'O S `G O n Et 0 ee p w Ory Y ~ ~ O O^ O d ~ . N R n r ti em y d - K A O M n 0 b n - w w N D N w o ro k a s o' c p w o O ro o• ~ w p ac ~ o ° o ~ ac ~ ° w ~ 5 ~ ~ ~ o ~ ~ ~ ~ obi ~ w to ti y 5 "PS p o rn O o o y y o a U, p a x rn m C F' o O' o p G y K7 ro a p w ° w O x c? P Op lsy oy e+ {~''a o ~p o ~+"p~ v m , GC) W.E m y~ A m rn `p' v~D, rn P. 'wY Cy" rn to O ~o-n C. C^ o G y ~i d G 05 n m v,~R w try P c:N y ~tro C y° a' o" p o A y yy P CD ~O~b= bpw~~ oO 0SK°. 00 oaz 9 7y o o C 0 4 a r ao o rn 7s ' A m m m' b a' o w rn rn tl rn rn w a ~y 0p rn P a O " r o O° 'o o m E w , w w o ° C 0 o w o y b gg C: # E C' = w F N< A N m a ao ^ rn wB °G'o'd o~ o°x~E P o `wG 6 'h ry y: n D. o N G 0 y r p. C. ergg'. w A p, r+ p h 00 n V. N a Off' 0 y Ow R b 7 f~c' O 04 O O N txD 00 o G m? P. -o m y p .y m rO ° R. `G C O0°am E° ° ~o4q~ym rY° p v o a. o ° 0 b y cao rnV ° by' a c. ° .n c 0. a. n O O O w N yn W o ~ a a yya' p o w p r: G ~nO A r+, P m m M n O b b A UI ~ co OP. co ,$o R Ctl C]&' Otdawawc C ~b o n5 B p, io 'bE ro by o W ro v n° v w o o~ ,y b? ~ o a H ::'C p ° r ~i rn ~ ac ~ tr' a O "i m w a w o m a 6 "n°°i w u cao ° u a 'Ab tom"' sr. G .°7, y_ gyn. Z A C p a0" o ti ap~~ ao ~.Orn ° y#.w ~''~aa o h7 ~ w~z~~.dNyp~~d ~yrna~~yro roZ? rowu~ o.~ CL w~ zw ^io C=i W 5'0 0 O, an. vi 'S5 F+ p mHop 0° rn C1"~Z ~,ni LT ~+y ~O r7 p to ci G cr , P. w nirn 5zarn wGl wao ° .'`7", w''< < .~jd C]n ti N° C 5 5 0 0 o y. G w rn ^o p d io w on o ° 0 o 'o y o O rn o 0 0° ° A Fr~~ ~aooa e+ oaw.~a° ° A°pt7 E~ to p.~ oo a. 0 t ° o Za k o a.rn,zy o i.~ on. p. rn a' ' w ry 0 R, p.aAOao 8 nrnrn w G 9 S 0 - o Noo w` <o 0ow na E 9oww°wrn~ w5'Btr a a ce wf n 0 ynro o o. xg A N O § :3 S. % m0 .do q a o ~ ~ +~~e m °p ~ F cr ~ o •d ~ ~ oa ° c; ~o w w p ~ w row.ary tr,<~V p e o A o'a o f d~° o yO ky o`~o Pte-' o y. Z 0 C: o wW. r G yy1, ° CCC) N m . as Ry ,G°ry R`~ G. P. p o .#71 n C'1 P w° r p G "oNO ui pw, ° o rn t3 G [n C p. R. R h7 ~G ry m p i~ o°~ p p" m p tGi A v ° E O u ^ ~O p ~D ~O O '~ryryY V~+, O y v" w' r' Cfl til N ao y'~, ?p a s o y " o o all y G Nao m M A M n O .d k! n m 1 r. 6d kd "'p 0 o`~Ny c w v ny pC~ w o m G .o o~ as o' O a• o N w W E.G mq C ~ ~ o~~ o° H h O o C aMp. [Hs1Hc~ory~y trJa~On wc~o f",.. p rn m 7 w x'w w. A p ao o b o o Oro. l=foS ~H O°G °n~ ° .ti~~ ox W A wrn ~ ~ E~'('~~' ~ rTiw ~.O .+,v~e? . rn o, Ego ~nm ~ gyrn po kY n d o w w° o H w. p a oo . a n 5 ° 5 3° a e ~~c~°o d~ a~ 050 o'YB ry a~odo~ovcn'- Et"<rs'~ Heo <o, rn~'pw a'~~g'~<~" a!'<°~ns~°aoErpd•v,r~~~~'h7~o ~d rn w 7 m on w O C o K ~,~F •Ci~ p p v'-~i C7 r~ a' cwo E: N x A o P. G~~ hn7~ Onq 'CO o < am o 0 0'0 u0 b p b7~ c~ o roo ° ya ~aA fl rn o~nFwa° ~a rnC• yO X.o°.-n ^ O ~r~.. . R t m o o n O O o 2.. pf. w x " a O rn w A a ry a to rn m , ~ y m N K O ti- o' a p J N o^ oa qq o o ~q o 2 ° G w ~G c o a ro_ ~r o C o Eaospx bo o~& ode B ^~c~° on - O Oo w 9 O rn w O v'J. _ w m w R R7 'no cEE n~pcEp:a n oB oa"a~~~~a~ ° ~ Mwa6 ~ o o F'l. ~ ^ ~ rno 0n~n~ w -atiya~ °w (D SE~xO D ° ~ o p y~ o' m a O~ A• m y d A O r•r. O rfl G7 A - F~ ~ g ~ ~ Cie sr: F rt n y'6 a"o R_ Ky "d 6' N ro a• W n 6' n P. O w N w O O _ ® UJ ® ® Q w 0 rn w O a O a .9 to 'i5 R. w R.~ O W A C E P. p a O4 ~s C W °t1 a '^t ~D ] A~ ~i Oil M tz 't rn o m n p ° H o ~ 'cz r `C ~ T1 ~ . o~ a o <o o' ~ y. y0 m O ~ `wC' C. o. Q~Q A p aHa~C nG < °am mrr9~°H a y° , o o ° w ty m w `0 .w. h7 cr ? G N C Pi 0 to N o ~C ~s a tri ry~ Q p p p 'f7 1., Czj a ry C v' w a w .cni O o o a R. a ~9 tro 0 o r~ m w rn kS' W boat' atO°» w m Zo ov ~a tl °p w c°„° YN amOn~ m n c:o C n d ro h7 y M o o F, 9 qyo ° o cr ',I E' C m `C o a 0. w S. G y° o" o rn p ny rn ny c°. y ° m o prnp, ty ° o w ~7 m 00 w w O O N R tl7 n O O N O, O w O ,a 4~ ° p o 0 00 N ° w v M ~brorr o o:~ b'~°S ~ro o'aK F~-z°° aq A w C3 4 p, m o rn w p• a A, o' rn on r Vi rn w w y Oo , o m rn m n o" a N tc o 0 o O w ~ ~ p ~qy 0 m"y E> 00 pya » o o A ttl~. ~'e ° a v [i'1 ° o o o 0 °.o C7 w o m° Gt b e p• ay R O O D pn G. m O C w G. o' O ~ E o' CL 0 5 no. a o. ro a ~ o a E~ r "S ya Cv a p~ ~.0 Dao004. 5E° o~ o .y0 w.. a O C70 a. p N r/• y.~ h 0 0 rn O 00 CL tz o- n o w » a x o o. o p Cy a y w a rn O n M N m P. `wG o.. C n tOO `G rn 1 K 10 O ° (C H y N ~.y C N d ~9 O a ~ o a ~ b O d A d rn A• 0 b 1 ag a c w ~a o w - m c ° P: t~ E- F 'v LO - n :l n - N n „ p CIO, in in ~o d. d. a` F7. ;r ~ m ~ cr o ° a, p- w €a E2 p '~'9 r ° Y° o o a m o o o eb ~ ~ M CT Oy ® N ~ K w pd co•o v, r"~ MKS w xy'o gy v' ts' cr iv ~°o "Jo ® o A 'o o d Mrn " Y<° rn V a~Aly co ~ W tD O 23 w ao ~ •.o CI o tt1 m ~ rn ° ts1 ~j wdh7c p0Z' c7~pS.O pS.ZG~ac o Rz.cro OR 0 hny b7 ,»^r C.'c3° ~ y 4 Q A p or°~oG yo~ O ~aotd .~.ao Hti ~Foywaorn 777 y ° Z;n w or "e H w C7 o d Ln .F 2. ,..y , p n KPH v~ ° N w5 O ova io li7 a^L~7 O Coo ~'c "~~ro n~Nb aw C A+ m Fdo a d' p h7 ' rn n y ° x. Z d rn h m N P. l=7 w rn °P, [ m Q p A G~ ,o rn ~ JL n °o rn ~1 a. ay ay Adro o w H m n nw N Oo o O e m o c o m 0 0 w o p wd °o H p° a. ~ rn< C O 4 trl d rorna E. C) -e 0 ~r C j d 3.0 o cn~dhy Og o ~v .wn d nro C.o O d N oy A d rr ao On'o " ~ E C'1 0 ro m P. V 0 Nx S y ° b7 0 d' o rn cc d y 04 Ow ° O 'tie x ° 7y d 2. i+ on d 0 a ryi ° o - o n° b o ° m o o o pqaq G f . qpO. rn 0. ~ z a k E; E? b7 5' CA~9 n n o' a' .Oy oA q C wId tj, w'p ry p, Si O O 0 5 arod b ~d aN~.p ~ rd O m, W ~i FD Flo d. o p» {CC°~~~ "i7 a F^ F7 ,o° by a ,°-y n ° cao y ° o ° a n q~ tv p, t• 5' t7 ern (71 w N g' ° nn p. ° w+ o y obi < r o' y C] t 5• rn r » q°q UQ C o0 5' y p b° rn "E a y o o' 2 0 O o aC~ N N C Vop y B' o r+ °rnq p kp 00 o q ° E. M 'bU' o' Flo ° ~ C. rn rn Oil [rl o o G. N E. ~o' o 9 o. C aq `cc°. ~ro d a°'~ c°p'O O ErH ado m ° y aFO F~° p N C A' rn agN w p P. cdo p ~ `~G~~~~ N Cl g~ Ito .7. y K p N C W d ryry ° ran ; 0.P p. N g., y V'. rn a m a a o' iN" o O m C y Uq y V - A M n ° B Uy rU }4 F' ~ ~1 H ~ V w k? o~ s~ e°V k Tt ~'i V? Cg M ® ~o `0 1 €y M ld °m ~ o o .`°n moo' n, o coo a °y o 0 o O o ° w o " G 0 ~b c ~ v ~ b ~ o W z P'. ro % tOr1 C m O `G tyy (iy v, O O 'LS m rn R7 o m e+ a G, v, f° [ G O 'cs 'z FF W ro q-C B Z rn o o° rn,pa n o n n 5 't o ,w._, rn? G ~i rn N ~y P. d o p p n n rn Oi d p n a'. G P' m O cD a o . 5 orDO a ° p ~o rn Cs7 b <o p~ 7J p a rn n m n, ° 5- E' 7Q A p 0 5 o O o V a ro rn o n rn° y . s po o y. ry o ro y trv»:o oE.tl 0 tiM, p0-w~005 row°rn rn n° ° 'g oL4 g n yyy b C w C o o p o O w w ' rn~ y o o ° o n' w m m a~ -0 m a m ° ti a p t~ m o p C p O O p rn o N p O o f G o 0 5a OrMi a~ p' ~5.0 o o ~'mMz row, n' P-y v°.p o ~'~oG'O°:Nb CY p°'°p 5 rn hy~' [~C~! ~r'n'm o ~O w p° 05. .ntr- 9 roC~o rn r-3 m P. Aw n 'u OC. N ' a4 ~ Tl O ~yy 27 w y w N [37 p rn C N top p. p o cn rn o p, 'n y O p o r '5 p m pr' w. O E n w ;n Q° $ o p rn y, m o o E; O c p, q wr`v' tr' tv P. w IC3 Ow m m N o' kf"w ~ o ~o (ern O~ ~ '0 O'O t'l o a c n Z ~ n ao 0 0 0 ~ trtyy 'n cno v' o o C; ro . O C. 0 M OR w fr p ao C o Fi, o° ny y. On m p A 2.o p rno ^CG rn 5.0°.~ m5 m b7 i'no Ppe P. y N 00 w L"' w r p m p b p o a gi p! 0 G O 'y rpO ,D ~V < b oK5`-Ons o P'y w rnpNey~w ~"c1 t~ pW"-'b o'^~ o `D 0~/-- 0 m M d t?o? p y 0 0 rn E N K rni, ^ F tTi p w a v 00 .ra FUa~. C~*,°p rn ro»,~ 'Cm w ~a. ' o v,,crn ° ~N tlg o o• v O n m p t~ `n .Oi tD n' rn p N k1 Cl 0- 0 0 el. E;- o "c° y 5 p a~ y yg° a : E~ ao o W R. p' H w rn p p o y E'r o W% rn a' w rn o 0 0 d k rn o rn o p pD m 5 tr1 w Q G p p °p O K Vi tv R A n^qf A ° m n A L- '4 C ~v k y o CD 6a'. OOO $ O V~4 mu, m n ro O° rn w a Y 5' p o°° m a C] a'° n o' oM C,+ o ro O W CD w O co O w n tg~o rn n' .°ti 'o ° < Cl. p0p °p~ c o rn N, w p w A o tD 0 5° o w rn mmy o k qq CoC c a o ff o y Z rn o a o hs G. p 6 o o. C7 rn 0 o' 9 A C aaaavwa~° ° d~o'OrnnOdd y o^. O M~ g oo~w m B w r~ o.a5 ErR o d d rob 'CI ° Z p mE rn rn S~ ° p FF° t3 d o ynD ks M, P. 0 m G1 M m Z 5' 11 n~ ~ p d rn~ Z CJ ~ L m H A G a n C p rn o O rn no a a p p o w v 00 CL w mw 0 y~+ io b"' ao ~ ° nR ~p ° n o ~wG v.:o ~ p Oo o rn m w o ~ ~ ,o.,, yL . ~'On y v' y nG " c, v~C o w, ~ p o G o o C]c p "~y rn ° o. r7 E. "Ca0 o d c0 o Ob C7, tz no m y o c. -0 o a~ d p w a a. g. 5 w :C p, o 0 m o 0 a» O a o M w m y Cam,. w m d ~ O w h O d a o° tvy Dv p w ' hn7 ~7 o''b o F ° C u°, ~ rn Cr h0 7 CL P. mV ^ ~O . o y n 5 ° o CX yy r 5 o ~pD K w C p zm~ O w m' p'~ Eo ° 6 v rn o w O p m y p p w _ o o V.< rn rn m a y a o p _ p C] <x ~p~a wooCO M Oy w~ °.~78 ° o zp~n prn m a < O' fD p w (n » d EL O O O p v~' ~y M M y » }~i+ ~D O b0 y V _ A A ro b m ~ ~ p aa'o€a o• N N . o y ° on o° o° E' ° r a y a• u pC ° Zyyq m x w ® o W p h w N N P o n w ft0 w W W A O w? C o b a: P" ~°p m° `G r Fr'O w @. Cr Gyyp h o O p `G n vi `G ~i m P. a F ° EE E P A p (IQ 5 w cr o o ro Q ps Cr n ro w y w o w r p ° w 0 p M, tj 10 C, 0 0- 00 o. a- F_ tj o 0 rro D o n v D°° aNro y o b ' tr aC° rppa~"~wv$S ; n rn w ~.~0.r rn~ y. 'o o o n 0 w < m w yb aw y '°°y,0.c Fso o ~ ~'0 8 ~ 0 ,b a v e o zt m r a o ci ro w p c m o t:p Q ati °cv° Brab~~ y w rn "O c pp ryp w a O o rn y E 0 EF° cr ~ Gg 0 0 as 0 K~i ;.o v~ ° a n 9 0 ro o ryy o 'ern ap: F H P-~''~ n w~.'~.w C6 o rn M K1 pq m K Ci w io Qrn9 F1 ry to bgm on vw, m 'y P. O 5 m ~D m k^ ;G a B p o o p 6 tyo p W u o e g rn °nrnC °~ao 0 vw ~,Aw 15 o t0 m ° m. o rn ~°,n m K a+ C - - A 0 f1 0 b w p m v N a F .ter 9 -0 95 c~ ~ N o b° a p° x c, w° a N p Ku w ~n ® c D on » C) N a o b 7J d G' o "o E y as a n S C) a w P. o 0 a- ° trJ E+' io v a.'cs gg ° rx* wx O A'+ ° ° 0 rn -0 ro o ° w G O m y o.o on o.~y b o w 0UP ~~d w N ry troltd H vie A p ° y o. N O a " p V ~'n ??qE° taD C• w ° ° O Oao MS p a~ G' a- ~n ~aN' G. o o rn a m tf1 N p ti 0 o N o o c N o w n C' F+ Ls1 (4 N 5 y Ca 0 ~o ~p* N w ~-n ~ td ..n ~Cy" ~ ~-y G cp n,3 m C. m° d0 N p• a d C. TJ m W ~mi r N G `G G h7 `G Ls' C .y p a.0o mma roN c'~a'p.o 9. c ~o y t-,0 a' B VN.z O. p C t~ ~e w m w. rn w o o as b K x o O m a M H ego p o ag ° ~ a~, a 'y : < N m : o Ca : o CC)): C ~L ° O d -or t3 0 CD y o'~p t^3 ° G 2~F °~»N °nErEr~ Gn o o z p ° N 0 may' ~E ~y a7° El7wc0, abEe'.J.~'` a.a° a0o~o o w°~ttl N a o w a N. o N C]o .N» .0 cm ~ C)~ b7va~ o•~ p m N .d p0 a• G. n o E• W p o ,o w - b7 vw N w m E; ry w 0~ o`OO G' bco O~ x o ~ vK o a ~t °E P N~ A N rn Do Z x ~ rn ~ ~ a o- d h7 C, 0 o c' a C1 N U' .p c p*. r w y as a. V^, o " g N ~ O ~ rr c 0 t ° y v .C a. o Ern p E m uc N .i r+ " rn Lr, » o• B' ny 'n w w w C. a h7 w `G y[xxy.r,,1.. N „on V < N n 0 5 a' m 0 ° w ro C7 E" F R n N w .7i O 00 o a' om a E'. E r a p N rn a o ,6G 5, ~ryp w n a ~E'cr R• y0 N ~j <O N (D TJ x (D ~ r+ y o N Q (D y CD ° w a» k y~j~ N a RN w O' G~ G G N ~•m~ ~,a o~ aa. l~ a y E °~o c•~~ g o ~~•y a y~ Oo » a9 a E 5 a° o, o f N o- o m 0 0 0 0 ~ 7 b b ~p A C A A H a as a 5. B m v a ro b ° m A o S.w a o 0 N a O' r-h 0 O o< C 4°i rn P a ~1' trJ b o ~ ro ~ E ~ ti G7 N ° eo o w p o, oc' ca qq b N 0. n. " ~ G 2~ b rr w ~ O p ® O ~ N n r py fro `mo'o C d o ~'W°.%ro crn o 9ro n "cn^ v o" Do 0 0 n y ao' Se t~ w o° M.o ° R v~ tirr' rn b w m p O vw b o,~•, u ..d rn .z o0 't O €s, w rn ti A o v, p rn o p E ro .o rn w Af O H :Oa N G° a- o 04 m w w o ° rn o 'C c o w. o pq o y O o' , tr ° w 0 rn Kr rn °o w o° h o d ro c° y o 'U C~ `o E o. 0 a~ y n to Fr ,ti P'i 5' p KI' o w p °o• `y n q CL o' tr , R O C, ts ~-n . Off' rn o OBBro ego #°°nm o° no ~o caH r~d y o m ro o It a o H o' w o' ty~r1 ° o ~o y ~T' a % °Op S~' tyr ~v+ b o ro m K w~° o z- a ~ a 'o N' K' C.„ R 0. w7 w co p rn d r' a ro ty ,d R F•, b 0 -0 on 0 o O o xo 6 Kao.y a'yy^ 5'~ am ° ar9 0 o c ono ° o y rn P N iy ~ rn P' fsl ~ p' -o+ ~T P v rn ~ o ~ a p ~ w oa w a rn m a Er < & 6w o p,p y aE o o ~aa°n'~ ° c ogoa~S x tr% ooon c a5 w ry 6 P (4 5p. (D rn y$ P o f _r», o ` h7 fix'. g 6o L~cJ. w o 0 E a m ~ o p, w ° ti ~ y tr K O O ~ O K d - - A M A ° 0 b C p m ° U a F 0 0 U ® N o a° w w b w w " ro^ cl 'a Z- 0 ~n P O® f~6 a o s 0 O d C a [r rn 0.o w t7 ° n rn_ rn o b 5 ,a rn G b P'y C) va 0 n O w to b h m an 0 n R' fD ^ a Y o E. torn a' a' rn p - o" b+ 0 0 0 0 0 w '7y ~ K O r9i, 7~Q p 2. o C °w no w o\ 0 w • a 'V w yy^ o C e~zi w 0 'o A 0. y O a to O I1 . O O. M C wp N O o N N O fG w' N v» C P 5 C o rnG' in trl ^ op °o O 0 o ^ 0 0''. a o w `D .oa. p o C) tl p" y a n' w 0 r P'+ A 6 va' v 0 h7 o rn rn oa w 0 0 C 0 trl p n 0 rn W rn' 10 `G tao y a rn. P. n y g 0 C n j o ~ro o C.S.c~~ 0 ~vn o^o<o =a rn 0 ~ ~ aOU no m A n w x o R. ooa ° a~a CC 0 00 ya0 a o Erw < C) b 0 r y. a. a to "d E m p C H iC b O O~ O w 0 m N a+ ryy tlQ w a' y O P 0 o o h o y O 5 twD m y " a' a•' o n ~ M 00~ ww ~.o~ py-mow~. '<.~.'x~ a Oyvn o v, n o P, y p G o o• a on m d o C~ rn ~D vZi o0 a 'o CIO R0+ o C rn ~7 H b(~ a. o. ~y ao ' = `C y C] A r- CL E; 00 - rn o O° m G. m C] k [Y m n a nd C. SS O by 0-* rn C P O ....0~ C n ~~V0 •C on P. bao kr~y C~'o 0 O O ao w r m Syr. Q+ a tri O 9 v0i a m d C ntl 17 rn 0 t J b N n (w G O S. w by ~O Yr rn io yi ..o rn ro m a o w rn p i,m ? 4$a .n w n O rn m G a a t~s E E No a o v, a m o w 0 a o a ~C a c0 o~ Er m g o t' a n p tr b o o'er M o h7 C] K . rn W w rn ono b< o Q 0 n» a 8 0 O cr $ 5 P. ° oo < R o H 0 w p rn o o m O O a.°'. 0.0~ h oa .°o .gym y o m » o ~Fn a0 o tr o 51 ?a 0 n co O 'n m ~ K O 5' m as O o d - p ~ is .C rnrn+ Ot . 5a o M q , 0 m w O ° C ~ A. aaa~ O E; E b rn on 0 a rr E Or ~en"+ y a O fnD g~ w 5' c'n .o rn C awa w 0 rn 'U p 0 p P 0 K 0 °p. ;~9 ~ ~ Ps9 r< ~ ~Fa Fj ~?v ~ O p ~ N , G#'CCy b c?'(~°-,~. n ° O O O A rn CJ Cj'o m N ao o ti , co, 9 ° " ° ? .wy w .°-N o .4 ° 'q W f6 Qo n .°m n o' m h" w a w rn g m by y CL " 0 10 [ m o < t, 0 0 o y c ,~y y, 0."7 w° G rn v° 0 p q A ° y r+ coo °w 6' " [ p g' aoh- Fn, E a'n° cam,' y w7~- w a 'U CrJ ° o V °a y o. °G o a K g o a o w oo C° A m 0 o n" 0 °G o m° 0 o 0 0 B y E b° p n x w g O rn py rn o' w o v~ Kr oG 5 0 0 g o C t <o py rn a ti C) E' o ro 0 r,' m ° p, m tr E. v~ " o ~ .dG 9 ~7 to coo"Ppoo~, o zz~ o x y f° ~D P. ' p° r- O `D P° i m p ~rf r,~~,"v m h Own7u^, ma rn .h ° d~ m F7'0'a~:g ° dOCD~' 0°0 .,°p na y5 R,c ° ~ pp~s 0, PA m o p a a y a° p° y w n .,y as ~ '8 y cw 0 p° 5' w e ^ w ; r, a V pro " 0 0 m < 0 P. m 0 a 'c3 o co m ~O o Cza o a n0 ro E-r a °Oww 0" „Ca~ » o.ooo y;5 ° v~ C o w o. o ~Ji w ° O g o n 0 C a pc' ~~CC O torn R (n p o' o w p, w w. o ° a g y pG y F•r C' 0 0 0 y' per- ° I tyqery ~0r a~Fo G: m p C Opa p, G1 Cl Gw o 0 > ° rn W 0. - cti w -7' to Z C - m - m n 0 V m a 4 ® ~ to cY R- !-n'O VG w a a tr4 0' a a P. ~ w ~'n w N o- p. ^ J Q O rn rn rn rn a o rn rn o a o w. p w p- rn o m rn worn °3+`, rn b W w p< a^-. 0 0 rn W p o a p C"<°.. rn V C t1 C tl4 h ~~t ~~y W, ryp p vj '°ti O P - w C Ca ~ o " m a. w C.rn 0 w p' m 0 o f u w, p: w rn << ~e pp' wa o w o v' " rn A~ o o pwp o y `G O' - o n7 rn p, Rio rn rn w S+ P' "vrn, P b w G w w A p vi .h' rn° a M O~ p O. M o ff v, FD O O a rn `C h `C `G r'3 O r~ o C p p rnG- °.°e ' x h n m E° G a o a m C] v~ CCU: C~ g B° a n ro ° o g w. a o on h7 ac ao o a °G gg o o "y 0 0 0 0 0' C' M p°° 'a C y ° ~n E kt '7 C d Al N o y R aOp rn td x° took ° ow o~ o Esp ~a000 arnowoo~ °'~rn'~ ~rn°rn aK.p h7 Ky [OrnyP-~y~ rid .d K 'xy.~x9 c. p,0 o Og co''k~i c,xZ ~Fn aCL CD ao C rn ° p C' pp' kr p < ny a O M O a 00 00 W 0 j0q- 0 m a ° h7 O .T, ~n '~.'r~ w rn rn b w tao w ,w.y p' o Er rn o y A N y W o o ti a. w o 'b M. w rn ° a G O p b a m n R+ o° x rn rn p y x n o a a rn p F+ rn 0 p 4F, C) 0rn rn~b 0 ~ pvo g gE p rnmp n ~?C' y o » IT, orr R ~n p `p° c crn^p 'i7 O p M y o ry E m° rn o rn w n a c a ado g. 4 G c° C3,~ a p C ~ mG~.a q0q cl.0 0 ~w ~'O b ow w g O rn P. Fi, o to N O G G- p O P° b .a.' C 0 y tj' ,n rn w w° p C O ao GG rn t3 0 m C - m - A 0 n ° 0 b d n CD p G I-t7 1 v `,I N w flo F", w 0 [css~ v, ~y a, w n !-n w r r, 0. `i7 `O co P. p~ C] O A7 ~ 'N' o W N 0.p P °"O oo~ ~ ~ fJ °]"n `S v~c°i '-y Wy G.~N ~P. .f"Y ~k•,~ .~7' o P1 wPw. o o' a 'q C Lrnj m ~,n cu Ww N o CD ,"y m ° F$ o a N u 0 , `G » rn cao ° a C1 a s c° n A 0 p a. a? kt O rn ° o °G rn m co rn o v, .a w N m no 0 00 r ~~rn Gy!Cm~yc°u n < fD a^ o r~Z o, ~ 0 " v'g rn 4 ° o'+,n x xtr,ZP " C A y rn cn tr a n or cD w o o O. E o O o p 0 Vy° C'1 0° n7 O a w r~''~ + m w p r_] to C]B ~O Otr g pG H m o ~ ~.a o C p~ o o o fps ~.[3 w 0 Vi O 0 o 0 r O C l r] a nor', " `p F' r. r (7 C] a' C K. t p ro + ro ° ear O Q, m '3 'S P" rj C p .0 C w p w w C ~ w p m 0 ~ O P. p o p 0 N m `0 CD 'J 0 7. H` t3 a :5. 0, 0 Pa h ate, h07 0 0 a'c° ~°o C 0 n ? c "a R. N m pO~j „ N 0 b $ CS 0 y p' rnMP.N~ ~N 5 ~O~ or r O w- O O w O oin o G; p v ° tr 2.--0- 5' o h7 (D as o X Dr x x e N Q; spy Amy w° I w p G: ~y Q * ~y O o 0 Q• 0 , 'o R.E:~ P C' 0 T o w w in ~O ' C G$ ro O rn w G. n hww7 ?ITI N O pQ' o y t7 ? p O O P rn O O CR, A ~ C F m m d n °b Prnmt~ d o G 71 m m .tee o c 0 0 ~ C w rn w ~ C ~ 0o w rn 0 rn P' ~ p 0.w ~ iy ~ w S. w rn a a° ~ y $ "b L~ rTr E=. F Ra tz OF p O E~ O P Y Q rn O o R ro_ o- o 'a rn 5 5 w vro y o y b Wee a, m C70 ° < g'nnb w o n cE. o.y w. o r° ~.b c°, b Pe P+ o N h fli o " '0 iy y7 C y R " 3~ o iy "p rn 'S O . 0, EL Ba4P.arHzic.> oE`~opOnpaa°aro °G.~] as Ao .row ~ E ww n 0° rn g o L,- °n K ~ A R. o C aP y O G' h'1 oO~ M 0 by o• tit m p. o a m on rn z °p o to A y Cr .may r a Z- o t+~ m ° o w w~ b 't oo ro ~ w ~ 0 0 ° ° y 8 O A•`~ m M N ~ CI--I rn ~ C p e: B a. Ft rn G. o a x'a E S ary `S rn x Er"' E' q $ m a. a .^f. ~""ro~.o w o .yrn.y .w»'ao ""o~rnEP~o"m " of Go o00 ° 5'"o Dz°~ pOw E~°Opg ~E~` ~o a d .coy p d o° o o m w C7 . b w b < y o w n o o p. ro A o v y o F ro a e p o ny o G° rn " w^° ti ° o0 E ~ 9 oa. ~oSvp~Gt ~~c.° oG ~,k90 'n o .d o n rn r+ ,d x P'i m m p - G o ° Ems'. rn rn cr ° y Cr w' 09 - 5..m.,, ^ 5 cn o c m w ~o o rn t7 b h7 c b ti. I Er ti g y 5 ~ °p° o ~ o rn ~ Eyr D ^ o o c. o' It E (7 o 0'0 y F' i-n S ° .Pi 7G taD `G p (D d ° 2 0O n' vp, w G: P G O .0 0 o ° co rn r5 ~ ~ Vic.< 0DQ o~rs'eny 0'r p Ov0 o o ~ o. o0° Et w 0 Frw'o0Qts9o c~ o K' ^ p o rn Q. " O .y G C. ro '17 P. i~ a= rn ro 'b0" rn Y ~y m 'c3 m co rn o p ado < °p w a n 6 5 y o °u ^ t7 o w p o °o oca P a o ° p' ro a.r2 a' ~bo.~ o p0 o M 'fl o 'a a ~ a o~oC] `"e Yn d C~ ~ 'r" ~ n p b e a'O A _ cD n ~ N .bp b w p a ~ < o O ewe pGp n R. m z ~ ro a a - ~ ~o C+3 G+ cis iyv Oro Fj eG rr-j P Qt,iz o o G o 2- 1 rn "ro o' °N' 5' 'S.'o kT. Q' Z o Fr Ga F= rn ® W ro N w Fy v ryry ry^ 'Ct O p~ ~ti b CC O° r 'CS ° 22 0 m r o O w N T3 o K A o Vy < y rt c' i ? o o ° wo rn " c. 0 ° eb o o w RS S o w R m m p w yKS ° w tr o o ptq ~i C 3~w S 0 <a 20 woa~apo.naa y°~ 5 a °~ClJ 00 xOol " 05 ao °`<d>a~ d wa 43 N G. y 0 y a y ~ P. M N v. h D• O A7 f~D ;,w '°e m w° ° v, l9~co WW Yp~ n.~ y d° O Cot:tly 00 G V] " G `G' y rOi, a w C C7 to ° rn a y CD oxrr G. Er °r7pa~ow~nga~°p c.p t7 o0 n rn d 0 G d b" rn o w Y g_ m O .d . ro k w o-, n o c k~ o m w d v" ,a g n 4 8 rnrrl o o r+ ~ 3 m b no • ~ d 00 b o ~ ~ ° o ° my ~ 0 o r w ~ P O G . ~ aoro iYSdgyoc.E~ < Z ya "o ti c. A C) cn 'i7 C1'1 d ° rx rn tai d N O 7 N .p' w y ^d » O C ~.r ° O O y h9 h7 < d .f ~O O ~-n pp o-l' v0 5w G° ~ ~rn d p rn E~ f an ° 0 2 o•w 21.0 . 0-`°° p..° rn o ° a a 5' m" d ° c. 8 o ° t"p p ~i w G 'O „~f v. O G ,-n'G `C 'O O v y N y 2< y o" E-r Fr d a° »u^ v° od _ y o o l7v ro S.~ CO3 p _ w x' E -SEC "°d Mw y ~'Fr ^ Ey"p o o r° 0 rn~ o off' o~ in pq N 4y C F' p R (~D " V i-n N M O N i-t ~ nti p O R b A H D. ° o m C 0 G o p C m rn d ° rn h O G d ° O O O' N ~e N z a j3 ~ cu by ! v0 ~ v~ ~ ea ~ cia C ~w Y~ ° Brow°b.y 5'YC]591~ c ~'rn Y1~5'S"°.o xO~ p rn'° G5 b o ® °w ro aW~oc Oa' 0cl m m' v a w ' o a H t~ c raw 5 ^Y B ° w o a 3 UO a C o p ~o2o m°Fr oGp~ ppoy dR~ °Fro ~ ann p °CsJ h M rn ° ~n a n rn F t~7 c o° 00 co 5.~0 5. [p,ly Er 5•~+ a z rn myN *x< m w p &y C na" ~ C ".n nro° "p inZro°° a°n z•M5 5^0 ~`~KC a5.,~ pn p o 0'90 ° °c 5 H ° C4r v+ v wr, 0 9 0 N w O. '.7. y '9 Vvp, b n p o y' ~5 a C, °-n rn° y H tCD 'vo ~C m°oOOOww~.o05 p~han +wpo~°~rvo5^So C M o c°rto 'O ~N, G '.d ls7 ~ a p :D 00 '0 rn to ° no .°y C 91 G. 0 P a 0 appp ` C p o P. Cj o n w '.7. z p " 00 ° o a ~ C rn" Q0 p v x a r" 5' P• R- qQ H Fr as <ynyn- gpot" o °~mroES' O ° b ° e•o Er°.amy5 ~ o n E np o C. o 5- °o C . o c oG ro~ z y 00 C a p E w y' ro9 ° a° H ° Ks ° a A N 5'~~ o w o o ~P.tri y5. w Oro m y 5 y o 6 o y y c O ob rn °,aw o p w p° y av; p o on n E w w yc~ ° r m N ° O v o O 00 0. . y v p n f~~/yyr m fD tb44 ° C+] r~i, r :t w' G; V ccyy .~i m p 0 < V pro' b 'd [s7 0.. o. co o p° n y C. m mC o w }n `wC 5 y a o f1 C] O ~~Qra.o m ~rn°~rocta a~C~~~ aa~~'yw"o 0 %~°~OCEc~~° oc•<~ ooc.°a.a~~ro° moo w° o vA L2 d n ° 0 b p CD CD o pp At nz € w w 5'w ~ ~ ® ® p,~~NPo O ° o CoC Er A O o 'a o ,u c o o ' ® 4 o o E~ O ~o o '0 Td O Pe 0 d y~ rn ti m( 2 y rn h~7 a° w G h~7 C1 P'Sr- O 5 d 0 f~Ob.zO w " rp. rn E;'wr._ rn o.5 byw v, a ~yy g A m rn ro_ ° ?c O ac,+ v' o ~G w rn ° o n° fD a G L'~. a v~ r v 'Y R s p n n zg c. o e w y a C~a5'rntC~ E °o°~cr° ~ ox rowrn,,,a.~C~ e~ m ° 0 C °G' p n co a w 7y ° < v, y . to ns o w o" A u yr ~y 5 roa°g C w < E wG o~y~ p p p# `w< ~°°»w o wv~5'wt a5o ? naco,° << "o r-]eeD O'S 0-M papw o ~ o o w ~`•i.0.b k,"w.,~ ' yG m c,'o < o CW~~' p^v, C~ p ° .y ry C]co b C]o C ey .co o y ~1y o 'o _,arn rn rn,~ Er >1 Op o•o p,° p w ro G1 Fo C" m p o Mq" ° 5 o w w 00 0 5 rn ro "Oo 0 oao y p o P- E° o cr b 5 O Fn w ~ ro a C [rJ y O~ p C. w p < P. p 0. p ro ~C p 1 p P R° P 'O n rn 0 4+ ° m N p,.,. Q I-+ w o° o 5 ao t" a~ p o tr° rox O° O o ~aCYo~ yrn~S.$„r7a1-1 OE °ug~oo 5 m p a y' c by C O tao G° rn° 'r°b o o k. cei 0 H ",~d 9 cr M ° rn n hyy7 ° 6 o ° w w rn `o O an~E<"y ~ozoopey~ p~pbo~K^o r" n 5 n ~ " rn ~ ~ e~ is a s p w CL CL O o C o d - f0 - A M f~ O `d C A 5 w 0' - ~ O lk A ~ PG PD O N A ® Is ro ° on is o' as ° w w 0 O 'n asw 0° ~ O ~ c ~i w o rn ~ m C' ~ ~ ~ ° ~ rn ~ p• oo h p rn ~ K W ro w w 0 a Chp p'+~~!!y °C]a.w~- o° a z P." w v o p p ° a G i-3 G tc9 t 0 ai < p a K O w m OR O 'a h a•~?'w ~ a p'n Ci ?.w a rno~o'm O~ tsJ w ~ o a~ o. ..'o_yC A C m i~ rn ° o o O o h. o r,~ oG' E rlvb ~.Oo m Q. h~'1m > v' w o'h tz h7n w rn ° n~p09 C" ~+M a p~ y rn r. w B' y S ° Ft'. O P N w n ~O C C `G 0 0 y !CD Ks ~ S ~ trl I O ° S w gg~ ° m w Cq ° ro~° ap o c~ ~ d 0" '0 t3' 0 o ti° as o° w m f° a ao ,y p p. w Ctl ry o o n .ti rn o .p~. o caoaB0.~SoOrn aoaw °o ~oMC ooh w to w ° o CC (~D ~D b w °p ° tn17 y w ~ 5. 0 tic ~ m qo ~ rn o 6 ~ ~ ~ ~ S E w ~ ~ ~ d ~ o r c ~ ~ giro ~ 9 w` A tea °c w"< h° o w p o ~'n °q o o m fD C o o ti 8 d w oaq " n o C7 - l~l Y OR rn g tl0 K i-` o v w o n o a' b .°n t7 p O CJ Era a C oroo hy72y rn win ° n a ° n'~ ES'''A C OVO o 'do a o C~ w o qs '271 ~y o p o ~ m~ o~ w C a m o ~n o V io ,y 0 F. ~ by ,y p' ty ~ a wMO o v p o o h] ° oa a m G tt as r 4J 4J 00 00 V m ' A 0 /IY ll ~ 0 b p n m - - O a,rn C ® N ~ N Pn ran ° '6 n rn h1 Y O b p. ° 6' ° w h7 rn ro ° p, 00 p C Q o F' p . P' m ° a o co rn a O n Y "C W ° aE°w w c°w G y. ma°n ro °a< an p E~ o w m ° o a °K° o h7 o p p c . p' o m C co G p m z w~ ~„y o rn H~ O ~ ~ A p ~ ° h ~ ~ (D ~ (D O N ~ r. N ~ M p ~ w C*' ° V] F a 0. C Q (D ~'S K po o E ° w° p m a ro O- O y^ E a h a' " o on f~ o ao o ° 5 K K ° ~ v o o x a C] z 5o rn y ~ ~ ~ Cr1 5co o ' a5 T'° ~>c~.cp~. pp ^ tn° O~ 5.n a O,'zK ° ~ " y m p 0 v' c ~ y O w yC' 6 ° ~ 'n a o ~ ~ E ~ o . O ~ ny , p n 0 o' o' o O 'a y~Owo?? Go~~E~ o~ .gc 2°°°Op tif" H~ rn o' m o p p C " ~°p r rn 'gyp ° 5 on V. h7 w Fo ° f") 0 o R p~ `G o ? ~.o ° ror N a N m ° W o ~j o P. °a ? o O oO' rn' 0 coo 0 a A ca c a p ~ ~ ~ < ao . PL o wa 4B of C E Er cc o. p o 0 o C7 0 b a y rn m h o e °rn' on o Ern O oo a' a K w b ° °°p C O CC ° ° G ' ' k too O1 w.'roU' ° K c 0 a A N o o a o' S p a m 15 o°. c m d K o rn rn v a c o m cr ° p ao:" o• a 0 n O ° w c' °oy Er .r rn o, ro ~<~o p. rn ° h ro c p o n~K\O N~Nw wW p'"0 Op'N 6y o ~'w ~~p S'nmR ° p rn° a g a o° rn g b cYw o E~ g `O o ro y ro^ w m rn E w m o o° O 00 o Et.m~a`< m G1° CL 0m'~.o O~ov p w ti m o r p. ~-n (7 w ro o o 24 o y .Oi~ rnGCy o~°<~.nmy °p D D ri7~ p~p .p°na a°o c w rn p G r c. n N o ~.p O (ry~D yy ? p' p ° o' p p h o E a m rn b a ~r~' cn~' ~ a.~.~a'o ~ ~ ~.a p M O O M w ° p° yy a COC p' y 00 r o d Cl ° rn p !e Fo ~ ~ O O b Oo o E rn ° rn ° a rn o n'a w m w ° rn ~w p o. y $ ° cr o ~ h K li = r'~ ~,.J w U ~AB f~G ~ U LI e (v/ 4 ti 4 N R Fh CD ° W N N n N ® ~ ~ 6 Q o W `o B " w rn WW O E O'0 t:~ E~ n w ro 2' E"r rl'o n a' a ® b CCD P p n G a 0o a o n C ro n n co o .r" sg W A n Q• 0° 'z O O 0 n .O O C~ 0 ry m n O ro !o O O 0 v.' O `n ° C. 0 At Pr ~y 0 H P. 0 C 0 C f~' l7 . h7 < v, n n 0 C] ro°° m C] O R w h° ti rn ry m w o p f7 E C°° 0 C°> o m G a 0 O O 0 "o d < oo' °°io ° w rn a on c o am 0 " o o G. 00 a o o °'°z dy aK ;a ° ' 0 ~7 o ' ron o~ 0 y n H a o u°° L' w ° p rn rl < O O o y o o p m 0 p w a Jr .r ro. n a B' o b Cs .n ~G 0 w a ao 0 p.. C] 0 0 n 0 C21 C7 k+ w w C~ ro on rn 5 O o a. b ron 0 s°< o u~ p Y c Z° y co a n o H w ~ o o y co ~n ro o ~ S..y 0 0 00. n ~ 0 C C7 0 Hw o° O b 0 rn h07 O y' w n o p o' E~ Oagv Otr ao°' 0owro°V ayzO,°wPo o~ °n Cy t, Io o V p- K o a ° o"' no cn A 'C o Y E grn'~g x cr N: `D y' ~ G' d. rn m ~G o 6' ° °rr S o o o' oI <o o p a 0 '3 ° w n -0 aq ° o ~6 .rti h7 Ctl w Y n o ' fi n .0, y R r gg°°° y m a o 04 p 0 Z 0 ° 0 0 0 p a S. o Y o ~t a b~ O o 0 no n C)'O .O q 0 0 0 .0 0 0 0 a m it A N C. ° v° C1 a S w b O° a ° y c 0 p rn~° w? 0 0 Y~ Z ryy 0 C) 1- jlal.43 0' CZ °F'. p cSi G a n o op P a„ a .0y C; E3 a~OA~z 00ap.°'oppwop~;°p~~ p " p m rn P. N a o p n ° 0 0 m° 0 O C ~y.~ O ~HJ ao O Ear C o w n w 0 ~ m a ~0, o. VC q' Ki a o f] 0 o a a a o g nr~, rn ~f o y p o a' y as 0 n o' a o ti 0 p° 0 o O 0 o ° .n 0w asp p ~,m X00 C~~ 6~ ~p rn N+,a 0 5, E.0 0-3 E H C o 0 O O O O 0 0 0 0 d - _ A O M n O 'O P ff N <o a4 aS p' ° p' tr Ua w w - w W ~ ~ ~ ~ w iv o N rd ew o°®•o o~ w o ~7 ° rn o Y b„ C 0 a ro W O as w a° y o p rn ti o 5 ry p 'd O W ro t"r~07~a sa °cT°~o " G~ °Oo.a~ "'off o to b O m o y w a ° 5 w m C° v° ° m ro n" co C h a w r"r** P: a Zyy v ro o. o "a °fs'° w aa' tsl y A Y 0 0 P. O N 'O'ff ^ 00 ti Hl O Q p .0 a w p Qq O p .O o y yy 0 YQ i ti O N C OvC~ p P O ~O ~.0+ Y V FO+ CiJ p a n b m w o a" n K„ H ~O F- 0 '0 E 5 y Fr 0. o o . ° o , v t'] q fD Z EF C. ~u 'r 0 on o ny w pH, ro is H A y a o [ o m o, io p.. ° ' o b Gy 5' o a ° L p b7 o . th a `D o ° E'. . ny o py E rn ~ p P 5 y ~ o 0! rn t3 0 C] w 0 C w 2 0 ° m° z o< w~ ay o 0 5' Co o•O o mtr Cooo ~r~ Wn°otnn~v w~a65'pO~"~~° iy ~n O N p a p v' v, w O G': ~rn W 0 G p V p p 91 cr io M ~e " ° to p 0 tti9 p tv o w w w p ° h~i "O rn y rn ° as aq°r W Fps , ~n as rn C. Fo ° O b p, fD V1 fo G 15' .C O s as M b 0. " H .p 00 p, TS a ro E gpp. p• m a w h7 s Cat o6 °G, a o d. w ~ot rn [°o w ° Cb R C, M °o'~° C.ro '°V 6C 9p RE ° p~ p. tAi7 c C 0 P O p C N y 5^+ N 0 ~ ~ wi~ 0 p C. N. ~O-n OH P~ jCy7 pry C. R O N r~ p0 ° C' v. ~ ~ p " va N ~ (U p ~ 54 Er 0 0 0 ~ V - T A A 0 b C m rn an c trq un ~q 60 ~"n} ea - 0~ ,x ~ rn o w o G o m ti o _ _a F.- ~ B w. ~ cs 00~oEc~ ~w~°Za o°~rnoro5'~C1o Ao~rnvG~Y7yd7y b w O Q g y ro o Q~ w o ro O m ts9 C O' O r G rn O "4 fD O "O,~' GrOi. N y° O ~b"i R. 'by N y w a w~ a y ry y tCo C O w 'JG O w ~ o R. ~ 9 ~-n ~ <p N fly ~.y O W G O rn P rn O' " ~ 'O ^ ffQ A k3 rn o CEi R. c~ y a w y o. Er C~7 y t o 0. ,a o y' p- m o o yy y: tC o o p, ,o a o Cr1 ' o- w ro ro R n o'a'r x>O" Ll.? CL E. o o w O W~W' o y° rn w /H too p O r C n Q y ( Cp O z y d UO P r o 0 C~ n O i p E 1F~ar b C O r % - : P rcOnS O r d y m N p 0. O• p, ro0 ~°-n y M S' f7 y Irv M ct: g o. o o e S, n- o Cr ' rn y o c E p ro o 0 fD C7 i o,y O D o r o p p C " g- E. ~rM tr [~"o m 0 0 0° o B O0 7 p o ao ° r C o 8' s E o m r ~s w z r rn o b fir'"' yS.q+a. S~ Ornv' ~orn~tl5o- nro ~E'.~+,nrnrn°»°y~J'o oC,; ~oCc)a 5 5'pocn °zgro.G~°nK~w~o rn a o a o 0 6 r o ro y C 0 9 0 p O O r rn ro C R `G v~ :-F O c°i m n CA E' 2y '~7 P YQ O 0> M GrnoEop o'w °'awa o< p<.y°°?o on p`° n FF~gyi by t~ O Oq p aq' C W P.P r `C td ~.o C tOi .~S' ~o ~''.7. o• o ~ o• C. p ~ ~ ~ r°n o 5 rn ~ u `0 o w og ~ .Wi o o o• ° p. r r: n Ra "o n o a ~ G' x o 0 0 0 0 0 0 A M A ° 0 ti w d eo w w ~w ° w P o p ' N 6~ to €a ae o' nv rn as ca o as ca.~ro e ~ 'w0 d'w0 Y°'7 Cb P G N 'Ti N A ° A A M A A W~~ A p w N o O® tJ N~ v v~ w w ~y :z- ,ow m c o ° c f] a,v n p ° o ~d ° o w A t'j o w rn rn ° w ° ns O . ° o O[ C7 ° Oo o co ° H is ~n n w rn o rn r m O co p° Z ~n m X50 ,p d' r, o o K o Oil w coo y o m c. o- d 00 m z o • p o o' p d° 'o ° < z w Gyp y ° p rn w o y y» °G o a, trod ° a o ks a G by " o o w w a° ti ° o d o" o o"° M aN b a s ~iy w~7 pp~ {vv° 6 ~~~yy O a rnG a rn ro 'o rz " y p p .C O W' 7 y Q .FTr' Q' " `n O C 'n .'2 G ~y tp' a C LQ" byN ° 0"0nE o o'° as ~7co crZao~~o~~ o a<SB'ro~w c'~ off wo .C7 m ° " hyy N O ry rn p rn G° G G G 10 x c~c d.w 02 r y 0 °r~ ml "o '0' a'~ rna ~ 0 o Ir c. a W Er ° w co ac o o °p G 0 °O ~ m .07 0 P. d y p r C N 0 0 0 p d 0 ° O~ p E m P. O. rT w m 0 Cr. a. E~ 2. a-4 ° rn rn rn w n. w m a4 d' po w p O °w wed ° .~.o ~a me wa a? ~0tj0,- tea. ° cAo °y coo O° O o " w o' o O o p, A C m 5 MR " v °y x coo n o G a" N 0 0 Er O L~ d Go " w ? Oct 'a N O h7 N p ° p.p (D 'L Q••+ o p d"° o o ~D x an p O W O <Ornrn °ro 9 c~? o ] d" z Gym drn r+ °rn~n D54~ w °p .rho p 0~ E O ro cy~ ~ mo 0 0 0 0 ~yr• E a0 p° - 0 a o' " y ~ o m p~ O y~ h E d O cci 6 yy" o Er o or. ~ 0 a ~ rypY o W° N' Fs` h O b tD O• p b p p (D " 9 O M m ? p r .s["' ~ ° C co G ~ ~ ~ rn `G p' b p " t3 " ~ C rn ° O p' y p O ~ ° ~ O ~ W ° `G " '4 p' rn ° ~O w W O ° p N y G C: (Gi W O O O~0 O w Q' O tki G as ° d•5 w " ~ o 13 C. ~y O O O O O ~ 0 0 0 0 0 C - m M f] ° O 'O d CD A tit' Co O fPq d' L', R E iu - f3 C~ ti Rq rq Utz U Vr5 «V~ r: UV i.., tl~V f-5 F ~ a ~V F tTi ,ev P-1 4 F9 41 w n Vi w n n va m® fD w-0 ao v xOo :don f5~ ~'c'm rn ab p Y~ h9F~ o p'~o W ro h' b H :E a p cnpw w o G' m o y° ~rn p .a O Ft W a po a w° p °a a o o° b p H o °p^ p H<° c a d V~ c p O G tysi 6. ^ " r~wi. O. tno l=t+1 p rn t~°o y o ..n, an -rl ao At l~D o z9Z o'p ts p o n o ~i a ° p o o 4 C p ° b o °G y. K m n ° 5 5' p rn' w y m a tt p o n rn p'o, .°n Er ° w X w W C° l~1 C' rn rn n rn rn n t rn ty 0 a rn w rn A o 1* to 0 0 w rn p a• O O 0 o ttta< hn~Er- ' 0" 'EG0 , at °Crrt C70 o rn Oq rn y k p C pan ° Oo wG o p, y. o ~'ti '3 p b R ~ ~ ~ o p• p, p ~ y vi rn p o b p ry O A C N m p b rnG ° t"n h]y ~a n a-n t17 ~p p, Cp C. ~m no `G Q np y0 0 0 7,ry aCp oG'Orp cnP tau i o °-np G o on E~ Er by y' rn v o n a rn ° p 0 9 o Y - o o..o c m a ro v~ro~ S.~ W 0.o C vn 'ww w w C o'y h7KE a ~'p. .~o b 0° a p n rY n° rn P? C E y C' p lTJ H~*, y 9 `wG p~ O UP 00 0 o D ao n o G< m h C O p m p R W o y ° ww y ° ~.~o ~o E o aJ9 M rn m Q. °a 5 On R. rn p W O O O O O O 0 0 0 0 0 0 V - A "^Pf A b p u d' ° rc „t.q m m o 6 N c,•~ m~ Vn ~ ~ Y q { 7 r5 cn p w ~ N ® ® N ~ ~ ' o 'w^ m$ G w ° l'] E 7y ' x d y rn opo (D a K o n by oo ® ®Uro o ° y ° h o ~ w ~ ~ O ~ E °y. a ~ ~ l1 ~ 'd C ~ c• ~ P9. G rn n 'n Cr c ~ C~ W ~ o y p p a m m G a.R a° p a rn rn on * a~ rn C'~ - rn H y C o yy~ t' OQ ? C3 ro m N 0. rn O~~ w k~ o N rn N N i-•I a y ~ G Vl py+ O~ ,°.y ~ .r O. O ~y ~ O gg a a a rn ~ ° a ~ w a~, (/1 ' v. O CLa d.y rn ~ ~ ~ro o.° a rn as ~ ~ y rn G7ro,. ~°'~'w O b m b L~1 a p. '~l p y ~ ~ G ~ ~ p ryr "a c' ~ Er ° h7 cao o . tt C r~+ ro O° a N° o a r o° e O' y ° r 0 o< o rn~99o irnwoo-Em~1 ~p ~°apo~t~~ p.C " a a IS f] w" oc t~ m Z rn n n Er 9 a° o O y H m mUO rn m •~'w. k+`°G oc.w b o o ° p- °o p• ~n „3 a 4 a 0. to a a f] w O~Q+, pi~yb 'eo a'~•° o0 0 0. o Po o y w : a y ro ~i r L°3 cko c ^ C7 iY w y h7 b m ^C o 'e a rn ro N rn y 8 a m a o o 5' E G1 w- C° o a w0 o C N O y y O .0 a• kY° 0 m ' o o ~ W 0 N N a 0 vW a a O~ A N °.9 ET' w Er w rn o ° o tii rn ro o O ° 'b C~.'o~ Ems'. ° m y o a'to nE 04 rn a !Fri-0> rn ~t/-r' a C•','~'+i0 0 r. too f~0 p• ~ o o ry "y G'; rn p o F, Z" ~ p w r1 `G O7 ro ~ ~0{ F+ (D O *1 W O ''1'' N p o R M o w N C ~i N Cw~! O C. Fn Q: O 00 6 CS' a• S.' N G O K O 00 0 ~m p °OC y_, o o ~ $ w Z "rn ° rn C1 ~ m q o 00 p a d p G. n a y H pro fs ro p 8-51 rn a y o rn a w H co ° O o p o 5, Oft w C. b'' 0 0 > rncwt ywtoo o Go y 'rn rn m%o O a~ w o ~a A• gtl cr'~, w b ~-n° K ..Hp O o .-~o O p rn p `n ° rn m C c° y `G M C. R' 6',' m G." coo ~W.+ N~j O ~F ry N O rA o O O ~ G7 v - R A "h I1 ° b p m ~U 4,0 ~ 0 w u ~ O p oN J ~ C O N b, N K a wm o"' a V~ ~Y' O /J 9 C; r-ry F+ Cry? p n ti y ..r On `rg a 0m m -p cr 0, '0 a o 09 % C7 o 0 WOQ On CD On F~ ayaoaO 00 0 p y rn o- p Fraam" ~ao: a o.~ p.. roryyo° rn a. K ~ pp n~' S ~ vNi C tCPO (~i ~ O a .oi 0. p A' O y a o O CL on 0 m O ~ 0 0 5 ao o-0 d - m m O 0 b D C A - - p. f,. Vii, f~ :n ~ ~ 'CJ Id 0 mob ~~~.°rn 43 ~a~ ~ n O o S: o. o '-n ~cs p n & - `S. acs b p o h " „ wts o' w0' Q CD CD rr O O N A cCD C O ~ z b p d w~ 0 o:FY o 0 G G~ O CD ID 0 CD CL rr ID ° °y L39 mG a CD O AC E O N ~N :8 0 cot on 0 t;r o w ° o " a < rn ~ M h i7 CD CD (D n E5 ~ry p y O m 'G ii p (n. N N O (D 14D C) 0 COD R D P. CA - 10 a d o m o w x° ° mmu°+`tih pmt r. an b p7m .h~ C ti°MCO M n N 6i o O C n N 5 '•h in, CD A ~r (I a 5 y N C a O ~ o ~ p b 9 o b C H C C.' o o off] (w_p o O C W w-°O w p' m O w v V p (D Cc) R G G~ M O Gp ~ .d ,may T1 C.C W O w '6 n~~ C ~ ~ y a' ~ G C ° ~ a' .n ~ .cDn ~ co b o rn cu c, n a n~ w n~py yo xn a N'E dh ro o - oo A C o° o CD co 5' o f° o w o' ? a 0 m oa a w a CD. C) cr 'D co p w o° C C o ° 0 0o h~p o o ' 0 0 ~ o C o~ rn o m o n ° ,0 PlU0 ~°10 o~t7ty~~ ~~p ~.WW~~ a .`n.. b P N M S.'O O O S• p R. •w--" `'S G > [ moo E a • G? C `C C°°1 t~pi (~°p- y . ~ O 0 b O 0 0 ::r ~ l) w n m o < o. o ado oo» o ~a tiY o. o . °p ° O 0 0 tit P. oo ri J. --m COD 8) Rr p ao Whwo 7 °p " u bw ron ~a,r ~ 6 o Kr 07 R b C b C n G p' c~D n p N a m a ° p i. `C W w Q' p0 Z p C'~• o ' o .y RO o S. Cy Svb ~ C iii "17 R r W R. ON '1 r. O G (i b L' o coo F a"o E rn o o rn C rn ao is o ,ti o 0 0 ,b o ,b o ° vg v~ ~ o b o y m m m y m y CL a a a y G M o h a o a O tp o 0 - a `G o.~ W C. P- N N ' C K < CD a h d° o o co ° d`0 ° o' ro<< b w o m n .PV ° 7y ~3 0 p a Ln o fl E a o C' o CD ~s rye v ° o oo ro a o wrow y~ Ab' g m w b o a o o Co ~ ° m N ° CL a. - ~ a a ^n ~ ® A5 r- p w n n n cc o n o p rn rn m o 'o 'c5 o a c n G .~'T' a CS' ~i ~ S o rn m l C, 0 0~ o , 0 ~ p 0 w o 0 CD r:s q. r- CD CE p1n o@ by sv w o w rn o f n m p °u n ro CD o a a C~ o Q. o o ~Ji o? K w F° to Z p o° C g a q ..o w io' `D- fyD J 0 w o w h3 C M N ' r 0 n H A <aarn B a~5- a'wD--.4~'-0~ .wok p n b n a n w ro y~ °v w °o as o Er w C Z Do ) C, C 0 IQ CD CD 0 CD CD o rn m J U- CD t(D 10 CD 'Cl CD by n ro m ro o am rn ~ ? o CD C S. y ~°n roo b o rw "0 acA~B o c"o p E o G b° io HpC`° m N „O. f~D N 0 ~ ryp. C7 N a• y ~ Il, 0 o 0 q ~ 0G t'. CD v rn O ny ~-I w~ W 0 C, n Ct 'U d O~ p. b p ~ da c o• w °d d c~ o o w S.aa m CL 0 ° ° o ° w.o o w o'.o p cw ° afro p 0.0 0 Q w fD a 'e b o ~ rn 0 C C a a CD m J N o o b r o 0 0 _ k ~ o o a ooE' a a `°o .ter'. a C d n o G P p alb tj o N p P y 10 M o w p 'rte P A L o , R vw rn o c rn o ti I °a 0 n ~ rn 7 ~4 a? x N ro d w N w w w w acs ~ o N ~u ~ y~ K o n~ ^ v~ r: ns nz ® a w G o rn rn n3 'o n n3 w ,yam C G h w w 00 a- ~C O `J K3 ,+'O r? n n N ~ 0 o~ w 0 Tt rn by w as o' r' io w o p o w ' CD CD 14, 0 m O. pG'yyo a W CD G' m io n A. w v0, p ,d `C w d0 M P_ a R ° P. m UQ [D "t N CD O '9 Ai C v~ fD 0 a ~ ~ `n to ° N d n O 7i C o v'' O R 'b .''LS O o M W 'LS w "vi to UQ a `s no ° w < n' r"3 a N (nD G CY , QO OFq• ~-t 10 q~ .0 .0 O i~l N ~ry '10U~ (fq O w 0 b n C o. ~ Q. "..h aq ~ ~ ~ 0 N w d° m o,~y w F CD is b tpp rn w° ar CD 10 P. CL 0 S, ~ ° a N o p'ry~p. b io ~°-n p o aq, m gym{ paal ow9K ~0a-r, -.m CD tx uQ orn d~ p vi S. ap~ R. p ~E w N o a < P. o (t0 ° P rn ° P..,y hr a Y' O n (~D Ob1 a o o o~ m w?w.~ o CD p b - G °a- m 00 o w ° ro " ti ° G° w ° G p is S CD Ei C, ID CL w o to u b CD rn a m o r hf' CD m r,Y N CD D, H o' v O o ~ o 0 ro b ~ ~ b C a F m2 CL y y y F .a o ° N. N. rz ~00 oYii ° a a b p r o 0 o PSG ~ ~ o" sy p w , d o a.'a o N w v o n n o n ° w o `7~ C o 0 5 0 0 0 0 ~2s o o A CD ° a w w 'O u- ° w w aq w p n w o rn n .,y w. 0~ ^17 is p. a~ w~ d o n¢ n o a w w CD LID o n" ~s n rn w o P'a' 0 w w w 0' 0, ' 'c3 0~ w „o CC+ 0'q n n tl0 `C y `•G 0w (D 0 'o p R• d o p n a o o o o o p C3 is y y a C o CO roWaWwM!r! 0~o N~worya m n P F (D h3 CY y 'LS 'X s m ,.y G o N Dow aa°Er oa0 w•o~ rn ~owy~ ooh m Z ~'Ew~n Ep oo N ~0 0 5'xaa0- 0~ o ~r oao pe w° y 5 o a~ Cr w C7 ` w CD o a H ° w rn o co m is a Cl. o 0"o 0 w rn 0- ~ tf 0 o I o 6 o 3"S'crb -:o ry ~ w ~g~s 0 ° aaan'0 e d rn p ~.0 co yb o -cl o t m g. o v'° 0 w 0 p p o w o< CD a o. P y W o E~r*, 0 co ° b. w•a~ o.~ tr~ ffin p°pt.° a e cac p n°~ rn o o N b cw CL n o w rn q °a o b h, v w' N o A 1-1 . o: 6 0 b ao na- gmg a a~ 5b 5' 0~ ° C^ o° b C C7 0 M G n 12: O m x O y w wa 0 CD o n n rn o Oro Cb r. N p o O O O O g~ B 6 C r C C C p+ ~ a a a a. ~ H, 5 dg aN o < b °p o 0 o S. w o CD o w at an p oc 0 w fD CD n ti o fc 0. 0 ° t/'h n 0 ^i on z 1 n 4yoa p °bo a AD N w 0 (-L O r° N -..wm GG Cif 0 na. o rn w a p w M a Y v~, P (nD x 0 G ° A a O x M O 0 W c> n w 0 O O CD M 0 C) 00 oa x w o° w o nz C~ a ° E C7 K G k3 w rn (D w p' p~ Q N .°n- O C N `G" "rNi. h CR. C' EL O a P N N 'C .N- O `wt CD W" 0 ''Y r. y P y v~y R• 0 0 c o Cn a o "rn w a as .rte. o o w ,y, a''t3 W Cwwrw0~coowafDatZ 'd OO~°pap°O tai O n a' a' P'~. ry n'~ ` 3 w "O a' N N 'O'' e- R. O" O p rn R p O N 'O w w W c(DO b O C a- G( a y r o p ~m W CL CD C., (gyp y 'd w o 'a ° '-n a o ° o ~vr P. 0 N p ya o O (°~D ° On x cSi Ow O `7Y C~ m N n ~-n ry 'c3 W G G n, S. A~ C p a a. ccYO C b7 '"'P' G ~a o•~.~.~"P ~"",G " ~qq O w p '7 N 0dnya~~~' tn~va - 5~aC'~ po g ~.~E Cr O w E'i M O o to Co c", G "O.. a' va N q P• O N v w p a tD w On C may N p CD (D O 0C i ',7 M p N O Jam' K P p (D Gn • `C o *0 f . a .0 w Gi rn R, . Q. C) F t3 - 'w° ° w 0• G m„ O rn •'O tti M ~i n O w r: w a b Ana o o aad0 o f °n~dna y o °v~ wo G a n CD CD 0 ro o ob o5 0 0 0 c° rn"ny `C*°~ti w a ° n E (op ma ?W n vC o q a 0 R, I 0 ~ o CD 9 P N ~ m ` w 'aU' v, w w tOD CAD •°C rn 0 n 0 ptl070 ~°wE°7 a o o rt 0 ,°0 w ~ n b ° o b N ar y Z ~ E E a O a CD R00 o 0 C C o ~ o S o ~ o & o'er o a5 S SwF. o 0>0 0 6° vra`~ D o n O C, CL C, CD o r~ ro zro a c o o~ K o P C n (D m 9 ~ a O < ° N (D n W W 0 N O o0 CD 0 w 0 - ~ - - - - ~ c.~ ~y rte, 6 a, O TO rn Z o aAF ~,Aa ~ F+ y CD u r~'aw all N o xo ° wKsoq aw .p cxw ~3 -d w w o o CAD ga. ti co 4. cr ro KK? rn ano 0° a aogo Kd ° wv S. 07 ^ p" ' " ~ ~ p"o ~ m C> v, `d cao ~ n - `C a• w w r3• n2-. O 0 zi P- Poo 00 -P 41 o ° N a° w + K w a n is N° w A ryy powi x ° co a w n m 00 'CD 0" n o g- 0 117 0 a~,0~cCDO0'w`~C7$'rn C9 0, w CD 0 to CD o C' n b 0 C a. o p w ro coo c 0 -0 CD CD 4 o a °c p a waM oC q'u'a o :r y ~n ~E o coo w, 5'a a~a .rn cp° '°b ~o e CD ID CD q . qua a co o co a G o 00 :g (WD (D 0 E~ f -0 MI. .0 pN o p ° g o (Cp7 w$° E a• o h7 G CL P ~e P 0 ate' N 'O Ems, O 0 'O. .7. ~~bCC7 '.y p g CD cn 'n 'd a. a oO a• O EF o+ CD o (7 tr P a $ o. r, rn h o O `n S O ~ 0 o v' 5' ° m ~ y ° fwA ro e Ft~ b A a, N O ~ by ~ cn p a' ~ A a. S CD cr 0 a ° CL w . O [D p° p' w p G O O O k O ,p„ `O Cr rpn ro C 0. CD rn n rn p 'c5 b 'o a O n°o a' m° r' w C w w T3 p C w P- o R. P. G: C V p,+ o w O :y p rn M Q. G, i-n'c5 CD r,Y* w. m . Vn O p n CD p E. Q ° w tr ~ Z, "i ns a ~ ~ Tt w Q' 5' a ° o p S rn o< 0~ 0 r 0 rn w y S yv~ ti o o M° p w" w n a ° C C tom". a G F O O o. k p F' G O Pi m. G O O K O 'ti gym! ° O rn p G.@ O' p O. t3 `C Cs' ~i ° O ° ° rn a w° ar,.k 1 o w 0 rn o S as m a~ o'dQ m CD d C v' op°~oop .tom pWS~ G co p y ~r O o ~-n p 0 S f ° G a ~T w w, w a H< m p o w a o o ~°no~poa ° 0 o~° o'C ~w~ E oG`°~ w o S p i3 co 00 cr O E'. rn E O o ~ ~ as n 0 v~ c y w; CD C-D CL m m. M M'a CD ~O~yy w `Y <D E N w "O MR T N A W w N n A O ,m o p ~ p ~ - p'`"~cao o o ° xv ~ AC]w eaw ^-o w n ' o °n 00 ~ PIN o .w x a a E rn Y. o s o a W o CL :r o w w o w Vii o N a m P. ~ O. O y o 1. N 00 rn p a p b a N o o o rn a o m ' c°o a o o o w 4. o 0 o p, ~ Z CD (~r CD U- O O M n k a , M R. o w, .y '[Y p 'O M . ' E' w G ' CTS w to ° W (°D .•1 N p N P' [D o W R KS' R..i C p n w R-. Q '0 0 - ri CD. S, CD 0 CD M 0, '0 CD a W rn n n~ ~ N C. O G ME; H. ww rn rn n~'.N+~w~~oNO.°p a: c< o' ~ ° n a a0CD 0 Gy g rn ~p p p Tis' a F w°& 5, w o w a° C] ° ti b m o O~ `D ~y ° 0 5 o Q o o w o. °rn0 CD C ao0 0o aom~ Vn u n. w N M N P. O O ' b4 p O O OM 0 w 1 O 'd 0 < cn En ° O ~+M O o•om~ a aa<aaICCDD~` ~ w o o'09 O ° M ~ - CD CD 41 O G N P M p N w o 00 ,p cLTo c<o N 'U as ~S C]dd a y ° ° a o ° Er G. v ~rpt M G ~l O O W p M ~w.y a O m O y v-. P. O O w p v' Op /C CD 0 0 0 0 0 9 B g B g C C C o. c c a c ~ \J O b b CD ° n. o Q PIL p o op ~D to o w G) p c o d° w r. ° d p° w d° o e ro uo'~°o° >1 ~O~° 5~~a~o~ av~ o P.O w h o p o o m ° p a n a 5' w a° O UQ b OQ O M p N O to 'O N N CAD C O ry yy C3 f O p O Oti O Uq p i° -y H O O O O ° N d o o w CD m ° ° m ° m ccD N c'cD m° P• O pp~ H O O m yrn P_ 4 w 'mss' w co'. ,,y O I CD ° rn a CD rn "o o c p rn O C rn '0J' d a' -0 P, J K n >g a m o w c o W rs u~+ ° o 0 o p cHD M M m p" b p G C°° M° ° Cy p p a m o n o cD P° w CD m C. m ° p m b 0 w o; poi O o p - OG pp " p o. P. d p tlOa rn 'G m a a ~3 0 5 a0 rn rn ycry 0~ K3 p f~D p 00 p' ~°p w p O O i-y w N bQ CD 0 C{ p , p N 1+ 0 0 B 0 p n P m 5 R P. R.CL ><.y fiFOp p S7 dry as a a ° Cy. G~° o CD O c~D w P K O 7 O O . n O O O M Fn ~n Gi C~ O p ° P. t7, O' w '°'GC or O CD 14 CD rt. ro ~~y rn~ o'~ a o wb ~o , cp0 CD o w n'° E c~'D w° m cno p p io ~ O 0 0 a ~ r as n PTI O O O 0 0 0 0 u~o aka v oa an LT m b° 0 0 0 0° w o o O ~ `G p C o o o y w rn E° pw m o ° ".Pw CD w ~ N~ C 00 a. pD w a w E rn w m p a O (D 0 N ~ pe O p O ~ N ® py kr ~ p~ w ® p o V~ c) Cam' cn G cu -P O ® PD fD o f4 O (U fxi .'Y. 00 a O ~J P. .C O O C3. p'. p w r: A• ° 'L5 N A O °1 n O~ w M O p' O~ Cr D\ po, CD P, CD o 0, 0 19 rn o (D n CL a CD p ga. c~~oo o:~ po n o o x N h O ~ b N P~ w. ~ .x+ ~ O C oa ° a w m N n 9 a r © ty 010 co 0o O ~ ~ ~ a CC~ rn n C7 ? u H p 00 rp rn C-D P a w O O p ~~p~ ~ N (OD C~ Al R k IQ n d 0 p "a O P. O w p w w w co p o 'd Q- a G. j . ec rn d p M CL o o O °oS o o 00 n' N N O 0 N w~ ~t o C7 a n D O w° n m Y O ^t rn .0. ~ y d h+ -Cr CCOD w p rn tr 60. O. f1~ cl- O O (D o rn G O `C maE C. P~' p G p p~ ~o p w tr? CDr CD a o -rj O ~ w w R N ~ ~ M tlq O M O O N O N O y a a a7 L px trn q O ~ N p W + P P O Q~ M M N w fOp O O O ~ w E C ~H o d cn O ~ b ~ M ~ w (D f rV V..~ lCJ Kr r L L. Qm; --Ol Ol Ui P, ~ f ~J N ° 27 ~ a' w n o' ~ rn ' rn w 77 pg? o ~ m E a' p ~ C c5 v, ~ ~ ~t h~ ~D o .~..w ~o aG- c?~~s G a ~r ~v Oq a O Kg O'. 0'q N ray S' O N r w, ~ CD. o C9 cn ° F w m ~ o• G rn~ o' o o' ~ rQ a, ""h O N .h^"'• ,0.~ G N N'iL. f~ R. ~ eB 0 '0 o p w o o w tao 'ti ° 5 G O O 6 o o o o O rn 00 a dc. o C w ° °n D ° a rn ° 00 0 l~ d l70 0 0 Y pp0[ry G nrn o c rn C a o as a s co fn N o o5'g~"p_oE~ ~a ~CD ~rc,-'o a N w c o rn 5 o a 7 coo b b~ C ~ w r, w o COPID w o ~C R. p' ° rn w O o co tla ~ p° w n r M y o ~ (~D ~ ~ P N N ~ O ~ ~ O O o .d o o ~ ro rn rn m C rA O A O CL ~ ~ a a m cr cl x x rx~,i N CK~ ~p Pd boy, C, IR w w w w w o p pb rn o a @ o °p F- v, c y m u pW! n o 5 o b° b o G rn a P G m rn° G a " R ,goy N N E Q' O~ ti rwi, r N to N rwi. cn r+ CD o w ° o. rio 0o G~ 6` ~ f~3 rn WW o w w o c y y y ° p w o N a. °r3 ~ 4 ~ p, ~ n N b 'C~~°~' 5 ~ w ~ w y o o w .e W C°3 C R. O ,tP. N. O N N N h rn,-. ° on F- Q. P~ 'LS °C) 0, N °o °n < a ~o} ° °B 3 ~ n P rR,~.-~ ° (gy(pp. m ~ y ~ o ° ro n O O" (CD 3 O ° 0 •0+ w o" P.. w N a o Q. ° fD CD 0 CD 0 r2 ° w P- CD . N v. UQ o RF ~r ~D o ° WEW rn o ro_ CD a~a b? o b .W o w S. W C' ro w hi ao gal o P a m i C rn ti O R w O P5 CO ~ C t' 0 CD =.'O - 14 8 ~ P7, CD wooWoa°°< CD ado o"a a E n -CJ CD ol CD a ° C o 1 20 0, co tA 6 CD (D P. R ° v G P. y' 'ns ¢i N ' 'a' N L7 ° O. b 0. o w y o N n C G m p r d ID ° in Qty o y M C N~ ~6y' N iR M r. - o z F. p~R~ w ERR v~ p c-, CD t p~ g' o N 5 o N z m v a~ a ~ ov ti o w An n ~ A A A 0 0 0 0 0 b bb b o b b b C C C C C C cc a m a c c m.~ L: O w b by w r, N 0 0 'Lt' b ° y 'U CD d C a CD ° m CO xy~~ N ~ m o ~'ad~ cl'q b ° A o z O m ~ O 't7 ~ n 0 0 fp d g a o n ~ G O G O O q' C:L "O~ ~ N w O ~ O ~p V 1 `C " 't3 y N ~ O ~ O ~ d 00 .°J. N w m w ^'C3 w 'C$ 'R3 m '0 µ O r CA O 'C P 6` ~ ~ B O N N U G b ~i ~P r C .7° n v ~ Lam. n G n w v P N n a- m b o ro , 8 ``i a• Y y a rn a~ °c7 ° Cc, 'ci rn w w~, tl° o rn w o 'o w n b o 'o w p w ° 0 ~ w n3 . a' " p o ~n °rnQ o w W o O N U, 1 oh p,w o'N aN ~ ,Pn., N CD P. p.N CD `w ..s'a p''r n [%w A d Uq o' m a w o rF' CD cs o O Z ti^ t"~ P O `C v, ? a O (D P ti N M 'r1 C3' p `•.l O O O V T, o C, a w' CD s a ° Y UQ p 6 . vd w. E. < to °q a Jam. 00 0 Z n n x rn ° o R w O rt ~ O (IQ n P w (D (D ti w 't$ `.r fD 'L3 (D w d P~a w CD CL ~i' w AD CL 0 -~D o 11 0" o 0 CD CD < O C, 0 0, CL mp C 9' 0 -0 q O rn P n P ° w , CD n 0 CD w oc~c~5 o aCD C, CD p B' C, o w as wEa ob O ~cr (D N ao 0 a CL Y< E m m o .~y o o o o o o v b . CD CD w tr w G' S. ~ CD 0 P F cD E. rnY a °y cpD o rn w p A n b O O ( d a m c 0 0 R. Pm N N C O O A N N cn oo cio :a. ~ ~ ~a: ~ Fw ® Pm+ r~ Gy o p G O 0 G N W O N Id tl4 b ea 13 w~ ca. ~j U5q C ° rn N ,p. n P v, tta' P. o p w o CD °G (D w o RD, o S q a ° Co 0 2: g CD 0 ~ N .Oi O O N 'd 9:t. 0 0 o Fr H w aS" O 4 -o' CD CL ? S o o a y °w 9D 0 y o F~l 10 n m O rn ~ b ~ p' n o w o ro CL CD 9f < W, W ~d (D G~6 CD 8 , ad v a a ° 9.b ~o e _ pC aicrc5o ° ti.~ 5 m xw.w o p o o m o c o vi 00 CD ID" CD b c b o0 o w p c,' tr o 5• w go S. D o ti (gyp c q' v d o yr o a m p" E b R a d o o a o N Cr Ca O m m ti p a a O N CD p a. ~~ojj 5 p_~ o (t°o c~i m ? c~'o w E ^o ~ ~ v~ t~ M • a ~ C] w to K 7G• ~ p°• m 5° x a` b W (moo" O O (D K O N O ° 5' coo vG ap rn ~O Co Ln ti m o EC as p o G C 5 ~n a m ° 5 0 G own a. ~ ...p ~ G pO o 'fl o b a a, b M~ 5 ~ o ~ o N O p O .I O O W (9 ~ O N a' O ~D D~ P -5 p~ o ° p P. R ,py~ PG- F'• OGQ CRn a- 'G'e •°Y. d CD U4 `C h OG' G. r7, CD UQ on CD F3- w 0 ts C, 0 (D w b 10 f3 o w -v , o o G G w ~-h p, Cp G '0 0 CD 0, n 00 CD b a p°p~~ Cp p~. ,N5 ri rn `G O N CC, ° Q w p, CD w 0 o' w o ayi F-r CD ° ° p' 0 CCD [n 0 o o c o ° G + o o oo G c o° l< CD p, ° d o CD -.,a << o CD < 0 w CD o 4 41 a C i-. 0 o o `C 10 q CD 'R 0 ' o per, o o . a << H ro r 'c5 CD N' .'w~ cD R m a. ~ uq. Co S. Or 0 CD o ~ o. by ~ o w l p~ o• CTS' a' tw-, spy.' p + ti p x o L7 ° p o' 1 O R p O n h' .n p,", r p, ° w tCi o ~-1 CD P. CD 'D 2. CL 0 0 0 0 0 ~ ro bb bb b CC R:C C ca as a "trC7rn^ C7vA`"C~~ d ° o m rn ° C cr5 CD < ~3 P co cn , ° o 'o ° ti o w o w R p 03 o cn cdi m o ' w Gi E w cPD 8. ap.o Ej °eK° ti o c~ 5• •y CD 0 Cry o~ p r) CD a d g p ti cEo 0 0 fD° o. o CD yT z w o' z w rn GG C p Q rn G o G o rn o G d (D CD 00a~ °Oa CD < o w w o o ti p ° rt 'CS ~ ~ M `"'r3 ..h b C^p Uq ~r p' tD. CD ° 0 n o CD o ~ 0 m 0 0 0 ° ;n w bow b u w a- t ~r o CD p rn CD f 61 wr rn o b o b7 6 a o o. a P.w. 6J .n N w G .S. 'cY •'s' C. o ti x C~' w p ~ G 'c5 w was .7e" N CL aC O G R' n P- 't3 V x'0'8 a~~o w o a. WG7p'w Q'u'a o Mo N M (Gi N G. w w V] ~„j w w 0"p p m o~ N .°0 O a' w ~ 4, w N n a- b n N y '0 0 G' 6' a. oo' O' N (D ON o< o o c ° a " CD . ywv C, E 00 i' 0 v, G 0' [B 0 0 Cs' w p t7 o R ° w p 0 CD CD 6*- 0, 'o to ,w... G ^w'. w 'rl. n 'Oro P. O ~ 0 al w n N o o N M ' a. w b a o N CD 0 . o. Cie, C a 90 ° .GS. E@+ o ~ p N. ado S0 CD .0 CD o. 0 I' rv VV o w o n a cQi h7 H M rn o a C7 io ro o. a l~ o$ coo < a 8 a 0 On COD 0 rr p, .n-• aN h ti yL Y a m N y p (D » p C3 m' fD GR ° M y d L. F• np N N Q• Q b z w w 0 Uo ^s ImoI` is € v, n n n ti rn m rn o 'o .ti n w< v, o w '-o n CIi' o n o no rt o n c ny o y o r!-o;, o o p v.p 71 T2 CD o rt ~ . ~ ~ o n ~ ~ o w w o rr c= ~ o ~ ~ o ° ~ O. v n a o < n b Cs M w n a. m rn p. a a~ o a° ~ o ~ ° b7 ° m no o a C] rn° rn w D o° Cho w~ G o rw o ~T ° 0 0, CD o n o OR , a~ o ti is p ,n v, y a' ro rn m a Co Z w M CD n v, R7 0 I' c 'C w G a v, a o n ; o nq rw Cho 4) _ a. < o. ° w N a 0° °h a rn w n a a' o' o a a G rn o~ C ro K, el w n p ° 'b w m Co o 0~ rAo n ro aq Ks rr E y $ a C w Cc) ° n3 u1' ° 0 C CD 9- P ti w N w S, n R C~r 0 Lr °b CD no ooQ p rno' o. CD 0_ o' b y x o'er ° m' A 5 v a~ as o° o F1 oo 0 0 0 o y dr"k~ m° on o w °o o'c a 0 o ~.rn.:vc S''rn -:0 E- n CD qq n Z vw p K Co Co ry a. y A w aq . n ~S o' o w ,ti a' rn" E o o rn 0 0 " o a o uQ- Co ~orS o° C S CRO o. o~ o p I w G a 0 CD 5 5 5' ro ro ro o N CD rn -tj ° v (4 0 m W 6 ~ C @ OR p o A a c w ~ o o a o o CD w w o ywf'- m 'r3 ro .y A o ~ o ~ q ro Co w w ~ 0 .i ,y ry~ ~i CJ eb O R. .OOG n 'C P- w O aWs rOYn N n w^ v-..~ wNyH '09 CJ °J n N w C O G N iy G ti a p- N O O env A. 1-h C) 'tj ~r 0 'r CL a C y n Na a o aco p o o as CCD oFr cZoyoy ny°nrn ~~~a~°cCO° nr~a~y 00 Q 11 ID o 00 0 10, CD ro 8' L E o b g dth" a°n p cID_ cm CD CD CD 0 0 ID cr no CL n F a P'. "Q c 0 ° 0 C] a. '0 a t"o M crop a' o $ o CD b o o by o (D ro w o' ~ 0 n a (D r3 0 ° ° ay :o~7 o ro CLrn N _ a~ G R w o0 0 hi a O.-. C ~D CL O c~ [c ID o co o j SC a y y h a CD oo w tr o S. o a rnG S. C6 cr 0 0 5 ro c y fA ~ m d `D 0 w CD N O 0 n ° O ro O W O 00 E. o~ N ( A ao ~ 'h O 9 0- n a a Q9 00 © ,mac lz w n a n o ~ w N o w w o w rn C' m ~ a w p' a ° pq ? o C w a n° ~w° rn a ? o o° CD 0 :5. a- 0 m CD 0 CD 'b ~J o' k ° ty, N o N ~"h w CD C' w w ° n n n ' cs p. ~ o o o CD o° o CD (:r wE~ o' n Cr O p 0 'b w Cr t3 ~>4 -5 N n (D P. O orn~°a°pwwtd~oS.oa o ~o o .rn n p o o° n McD a~ co °n as rn wrnw ° ~e rn ryr c`D o ~O a a E $ C° Cr n G M ti R° o a' O n O w G 6' O O o CL 0 c a' n CCU o C w O p' v, ° b cY m O p RQ. C w O C~ n S v, C O f. r-y ~°-n G 'C N O O ti N C (D ?ry n pC. C O N N < 'L7 PC `n w i^ G. tY. A n Hw w b N L7 C M'17 w° O 'r C 'y M O p CL CD N m CC w m ° y y 'T3 CD M (D O.-•. U- O f<0 (D ° CD a Cy O°» R' Fy 'O C1. pFM~ 0 0 CD P? ,'~Jy ° a ° O ~D 0 -0 0 51 0 a- CD 0-'0 CL 6'oo (D a o-. CD ro 0 ~ w° no ~ °E n~ S ~Uwq M w m rn C y co p CD o ~ 0 CL ~ y b ro~Tj a - y (D n ~ A. n N G N.4 C ro Cn o CD n O ~ N m F• Oxy~- n0 a ox ti G b w ~ O ~ ~ O F E,' r=F ¢ae p ~ ~ ~ CF [SD ~ P- N 'O aQ ° O C R' O O V aNi ° a CD '0 H rn w m m G n' .p. w n a\ io' o w° p m g° 0 5 Fg rn cr~ _oo o No 00 ~'O m o'P',, C~ o'wG. 10- w a5. o 00 cs < cs v o n ro .0 CD 0 0 CD o a "d C m cD w o b n n m rn b 0 C o °n o a° o 'J m F, `G Q. G. p aq o_ O 0 o m S. O p° 8~ mFm .~y brn 17' ~t3, M°co'o ~ a o: a rn b Wp~' n A°°° o ~s R E- a ~~p CD - rj. a4 'o m R i~-i o rn O W Q coi 'O ? v' •C• a o' P. i p m O a A0.° a ° w 0 m' 0 o a. Cti p.~ p. o n m .caw i o, a p a y G' y N a o' o° o rn ° p C o IQ o ry m co tom , ~C; o°. a. a ° 0 go a. o w o a0 CD 2 Ica o oOw L". rnA^o Vi E R o 'd a ° ao rn o o w w ° 0 o C1 A ° C: I a o a o. m o w, w G o abc o ID CD c gaa~°n~an o~rn°~ vas ~ ° ~'OEEoo°~y a o c E 0 IQ CD rn o oUO w o 6,_s o'!~* o n w rn o CL t3 CD R° CD o'o ~ ~ ~ OAR < o ~ °o rn a ~S as+' N. a, 0 0 o° ,...y co 0 0, p~. 0 0 , g m ° Rag . o ~ 0 0 0 0 0 m ego' m eCo' m rA a a a a a L2 n a A l9 ~ ~ Ns ha ~ ~ ~ w co ,n w p 't3 0 5; ps' G. rn ~ o a ~ ° G ~ - ° o P ~ o co ~ G.. h a p rn m G ~fS• n n"~ p ~t co r° o as o 5' 5 b w ro 0 0 o f C~ O~ G, G: " rn C C O ~ O G, (D O 'O c G C w p a d N° rn E rn p ° o° p rn (D p A• N n p ,wy ,°.y o 0 N ~w M o w A ro b °n o p fD o q~ a rt 5 cxo Z y O O o (D Vii 'C 'NN' N. r°° w CD 0 r. b 0 C c RRRH w o p C w v, C' w w G .0 0 0 P rr a n E w p o o E. ° b, ao o ° o0 (D C7 k En o rn l7 C7 p C] p, f~ m p' n '[5 G' ~p~~p r~ v' M W. O C. 'C N w ~-h (D ~r. `C O O C m N B(D ry ~d. H P-: 'L3 . b O y 'L3 M p O O CD ID C C C, CD ° 0-0 .~~1 a K '00 0 CL o a c o O p o ~9 5 rn .E o~cD5 0 °G~ ° o 7y n 0 Er ~ M rn o rn o 0 CD E~ kkq a ~n r 5 a k t rs P. oo c°o ~D e CL w o cD as cD w w cD t:rl o' E n o WW ~C3 0 a o o' Ts a p p ti ti p O O O' PO G G (D P^ 0 PL 0 CD 0 CL _ 55 c, ~ CL O O O ~ e 0 0 0 0 'ti m 5, (IQ Om ego a m VA 00 z g 91109 w A G 0 o cr N m_ w a w `t rn n duo Eb ~S o ~'o 0 0 °CD CL g o CD rcao CD ry a s CL ° C O 'V m .CCCOn .O w ~ tOo ,d ~ ~ h G ~ti cu ro cp 'd n 6' n d C O p k w p m " o ~aa w o o o w ~ ~ p J av ~ ® eD ec R. psi d F, ' rn r'. ~O f' cr p A b w o a .°M, a o co o a co IQ on m n Ka^ w.E4 f] m .'L3 C C O p 0 0 O N p to w C R R a E E a. o a p w a' `G H U, a z C Ul o -h o ' P- o o o.. a oop' fD o' ~~d is n o w o o ~o p a w O 'c3 p ry O r, ~ ~ rn a. p~p~~ ~ o co co 0 0 c~D ~ p' ~ ~ rn `d ~ PiD G w oM o ow o 0 0 0°0 a O M * M W n 0 b m ~r i VZ rV- ! Ci G lt, th to ~ Fx fj ~ v~ ~ ~ 43 o rn ° a a a. w @ up mow. rn ° ' oo"LY p N O w i-h K W p (D (D ((DD '6 w G• N N N U° Y4 O~ O 0 "a w ~03 O 0 O. 03 y N n ° W o a iD p o o G rn 4 o o w l o a b CL a ;w cs a a°nG ddoD fi ppI~ - CD rs qo~+y qq, C) w CD 0 0 o' G rn H (D o' w 0 C~ b w rn w w a pa CL ~3, o °3a ooh DCD WOW ~o n ~rnw .1 Z G a w E ro E N° a a ar CD w w Fi ~ p, 0o 'O P FSy .w+ ~ K o C~ o N p (MD m w m O p G. o o o w rn C w o s: row w t°t G ,ti tires, n m TJ CDq ar M R Y 'r3 C . rn O O (D A ti rn U" CD O y E 'O G N v, O 'w-• C7 m w A a' 0 n CD CD 0 ro y CD ~5.(D rn ("D o~ ro.o~ o CD 0 0 0 0 0 0 (Rp o ~ ~ b b b b v~ rr4) op vCD p i A A (D N M P y N N a a a a a ~ 0 8b x tibb r to c~~ o x "o(pffoe P. N y .w. P. (~<p• rte" ~ w; w (cDD d no o (~~o. a, a, ~ ,..y p m rdH tD 0. w w O CD _ p rn< a rn o ~ cn o o 5' o d ~ is M M ON O o rn E E, cr U- <1 C~ o rn: w" P a o w o e'• o ~ - rn a w w M N rn kc a In R. o n N ' W° w S. . = `c-'I N W V, I o? rn n' o o° o o Y°° p o a o< rn A, N9, o as ° w a o 7y w w w s ,oh ro {"wv R CA N Y ~d '~C per. 7:s ~°-n o' p N p ~ G ri ~ CY 0 (D °O a O " r t YV .'3 R y ' ° w w S a on a. w m o w w ° C7 b rtq b ry OR TS n w P. p uQ r7 ,.'w P, of o' `C R o p w r~. . 0 a a rn S d m PQ a o U Q `r Z 4~ p w ° °w 5 o o a n b o n a C w rn ° co by ° ° G. C R o o ° p. m S. 0 o m M° " S co .N. w co 'cs H ~mj G o a o o " q Gh o 'r.' A x n C7 ° c» a o' p o 0 o o ~9 y° ~N o p ~~y ~ ro C ~ ~ ~o o~'cs ~ p~G• c~~o .ti p~~ ~ ~ G. C ~ ryw m .ly W ~ F. ~ y?Wp M ~ n ~ ~ ~ ~ Q~q P ~ ~ M ryQ• ~ ~ » ~3. UI m ~k' c O O o o p ° 'b O O ° b b y A Q m A A a ~ ~ ~ a a C[ O (p y O O O R p _ a ?o`"° B a p, mp p p ww a? a' a p, c w a ,ado w: o w cp w C7 ~ . o o 4 0 0 o ID o K o UQ coo 'LO Qq 0 Gy G o E. ~5 o b A a b UQ ° `C m R °roW o ~o C1 `G 0 ~ P A o a G w E p Q (o C. P. N P N a o' N 0 N Fi~ 1,11 l J' I L I I m led W W N?. [s k'= 0, 01) 21 W I~ eP ~ ~ J h ~ ~ 'cY O Cs ~ g ro OfQ e'D (Fa 00 c b o o n p < 'o < o o ro 00 10 0- n ~ as no a• k - - CD 0 0 '0 (D 00 D FL Ks o h r V w ".3' p a "n A9 N M K o ug w o D w o o O ° . w coo (p o N m o G ~yyr a s .p o p '0 CD 0 p 'w cm 00 a CD 0 N a o ° o° G b Q o eo o' g m n m a s °1 ° C ::r CD 107, n, 14 ~oj d Q' o M~ r~jCD O N w o o r on o ao ° °p a 9. o cro ? m o a 6° a a C a o do o < ro o p o =D' o a 5' < o ? D v o CD j St o c E, o p o o n o o p C z o rn~Y' G ~D m o o ro Oi'~' G P' ° '"''y tPo "o p. o o rn rn 'ti H o w e o v~ a Do a pr g~~p~ coo c o rn a p N ro_ a o: ° O d ao.o 0 0~ ° ao cr ro e el. rn E p o_ E is I° o a' ° C "O w o a w co o 5s o ro ~ b ro p p O O y O O ~ H y N y rn rl, C) oo a N E w m ry a o~ 00 0 0 0 wa o r. ~ ro p a' coo p'aw O O ~