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HomeMy WebLinkAboutCOM 0526.031 2010-2012 P!eoaNaL Kenneth G. Goodenow _ . 2:Pi V 7 Attorney at Law �� 157 Kualua Place Hilo,Ilawaii 96720 (808) 933-2423 ?;'!° 1 3 September 4, 2012 Dominic Yagong, Chairperson and Members The Hawai`i County Council The County Building 25 Aupuni Street Hilo, Hawai`i 96720 Re: Bill 168 Proposed Change of Zone Donny Souza and Melissa Mulliken Applicants Second Reading on September 6, 2012 Dear Chair Yagong and Members: I am submitting written testimony as I have court in Waimea on the morning of September 6, 2012 and will not be able to attend the public testimony portion of the Council meeting. I want to provide the Council with a brief summary of our activity since the Council last met on this matter. Traffic Accident Data As discussed at the previous Council meeting, Ms. Langer was waiting to receive traffic accident information from the State Department of Transportation regarding the portion of Highway 11 near the project site. Copies of the correspondence we received in response to our requests are attached as Exhibits 1 and 2. Review of the Petition Submitted by the Applicants As addresses were not included on the petition, it is difficult to determine which petitioners live in the immediate vicinity of the proposed project. It does appear, however, that two residents of Nichols Road signed the petition. Our Attempts to Contact Neighboring Property Owners and Residents of Nichols Road A letter was sent to owners of property with access to Nichols Road. A letter was also distributed door-to-door to residents of Nichols Road. These two letters are attached as Exhibits 3 and 4. Of the fourteen letters sent to lot owners, two letters were returned as undeliverable and two owners responded. One lot owner has already provided written testimony in opposition to Bill 168. The other lot owner stated that he contacted an attorney after receiving my letter and has negotiated an agreement with the applicants relieving him of any roadway liability or Comm. No. • ' 3 Ref. To: Ref. Date P 0 201 Dominic Yagong,Chairperson and Members September 4,2012 maintenance obligations. He stated that he therefore supported the rezoning and supports having an auto repair shop on Nichols Road. Ms. Langer and I went door-to-door twice on the Nichols Road. In addition to the applicants and Ms. Langer, there are eleven residences on Nichols Road. Two renters stated that they were opposed to the rezoning and were willing to sign a petition. One of the renters, however, stated that he was moving in the near future. We were not able to subsequently contact the other renter. Two other residents stated they did not want an auto repair shop on Nichols Road but were not willing to sign any petition. Another resident who is an owner,but whose letter was returned as undeliverable, stated that she was interested in learning more, but she was not fundamentally opposed to the proposed auto repair shop. Two other resident owners stated that they supported the applicants. Proposed Conditions for Rezoning While Ms. Langer is still strongly opposed to the proposed rezoning, we request that Bill 168 be amended to include additional conditions to lessen the impacts of this project, in the event Bill 168 becomes an ordinance. The applicants have already indicated their willingness to modify their project in a letter sent to Ms. Langer after the completion of the mediation process. This letter is attached as Exhibit 5. We are in support of the proposed amendments being submitted by Council Member Brittany Smart. Yours very truly, KENNETH G. GOODENOW Attorney for Susan Langer Attachments Original Message From: Clement.P.Channa.hawaii.gov To: langerw001(a)_hawaii.rr.com Cc: Ken.Tatsuguchi(a�hawaii.gov ; Yibo.hsuahawaii.gov ; Jan.Higaki cr,hawaii.gov ; Sean.Hiraokaahawaii.gov Sent: Monday, August 27, 2012 2:16 PM Subject: Fw: traffic count HWY 11, through Mt. View HI Village area Hi Susan, I previously sent the traffic data to you. Please see below email for the number of traffic accidents. Thanks Forwarded by Clement P Chan/HWY/HIDOT on 08/27/2012 10:36 AM From Jan Higaki/HWY/HIDOT To: Clement P Chan/HWY/HIDOTOIHIDOT, Cc: Yibo Hsu/HWY/HIDOT(a.HIDOT,SEAN HIRAOKA Date: 08/27/2012 10:26 AM Subject: Re:Fw:traffic count HWY 11,through Mt.View HI Village area Clement, We have studied the subject location on Volcano Road from Kulani Road to Pszyk Road utilizing accident data from the three(3) most recent years of data available, which is from 2007 to 2009 and have found 37 major traffic accidents. The Traffic Branch has conducted this traffic safety study for the subject location under its Highway Safety Improvement Program (HSIP)of Title 23, United States Code, and Section 148. This traffic study is protected under Title 23, U.S.C., Sections 402(k)and 409, and is intended for highway safety and educational purposes only. Let me know if you have any questions. Jan Exhibit 1 Original Message From: Jan.Higaki ahawaii.gov To: langerw001( hawaii.rr.com Cc: Clement.P.Chantc7r hawaii.gov ; Sean.Hiraoka a(�,hawaii.gov Sent: Monday, August 27, 2012 4:24 PM Subject: Re: definition of major vs. minor traffic accident Dear Ms. Langer, A major traffic accident involves a fatal, injury or property damage over$3000. A minor accident would not include a fatal or injury and the property damage would be under$3000. We receive the major traffic accident reports from Hawaii County Police Department. I'm not sure how or if they compile the minor accidents but you may want to contact them. Sincerely, Jan Higaki Exhibit 2 Kenneth G. Goodenow Attorney at Law 157 Kualua Place Hilo,Hawai`i 96720 (808)933-2423 goodenow @hawaiiantel.net August 8, 2012 • Dear My name is Kenneth Goodenow and I represent Mrs. Susan Langer who resides at 18- 1358 Nichols Road. On July 19, 2012 the County Council's Planning Committee voted 5 to 4 to recommend approval of Bill 168, which rezones 18-1354 Nichols Road from residential to commercial and allows for the construction of an auto repair shop by applicants Donny Souza and Mellissa Mulliken. Representations were made by the applicants that you support this rezoning. There are two facts, however,that I feel should be brought to your attention: 1. According to the applicants,they now own Nichols Road and you are legally responsible for a pro rata share of maintenance and improvements to the road. At the July 19, 2012 Planning Committee meeting, Ms. Mulliken made the following statement: "The attorney that prepared the documents,the deed and all of the paperwork that went with us taking title of the road, informed me that there are easements to the road so we do not have complete liability for the road. All of the homeowners who live off Nichols Road have equal rights to the road and they have to all maintain the road. So it's not our sole responsibility to maintain the road. It's all the homeowners' responsibility." The applicants may be required to improve the road. The applicants may also later desire to make additional improvements. While improvements must be reasonable,the applicants could require you to contribute your pro rata share of the costs of some of these improvements and subsequent maintenance, such as paving. At the meeting there was also discussion regarding commercial traffic entering or exiting the proposed auto repair shop via Pszyk Road. I advise you to discuss your liability for improvements, maintenance and accidents with an attorney. 2. Property values may be affected. My client is not the only person to oppose the proposed auto repair shop on Nichols Road. Among others, Bank of Hawaii, as Trustee for a neighboring property is also opposed to Exhibit 3— page 1 August 8,2012 Page 2 the project citing concerns about hazardous materials in the area. My client has also consulted with a real estate appraiser who has advised that property values of homes on Nichols Road will likely be negatively impacted by an auto repair shop. In addition,while we are not questioning the applicants' stated intention of using the property as an auto repair shop, once their property is rezoned,the following uses will be permissible: Bars and Restaurants; Financial Institutions; General Manufacturing Facilities; Medical Clinics; Mortuaries; Offices; Theaters; Auto Body and Frame Straightening Shops(with additional approval of the Planning Director); Convenience Stores; and numerous other uses. I advise you to contact a real estate agent or an appraiser to determine the possible economic impacts to your property. As the Planning Committee has already made a favorable recommendation to the County Council, if you are opposed,concerned or have questions about the proposed rezoning of 18- 1354 Nichols Road, I strongly urge you to submit testimony to the Hawaii County Council. Bill 168 is scheduled to be heard at the August 15,2012 meeting of the County Council in Kona. Testimony can be submitted by email to counciltestimony @co.hawaii.hi.us. Testimony can also be sent by mail to the Office of the County Clerk, 25 Aupuni Street,Hilo,HI 96720 or by fax to (808) 961-8912. Testimony must be submitted by 9:00 a.m., August 14, 2012. If you have any questions, or would like a DVD of the last Planning Committee hearing, please do not hesitate to contact me at(808) 933-2423. Sincerely, Kenneth G. Goodenow Attorney for Susan Langer Exhibit 3— page 2 Susan Langer P.O.Box 733 Mountain View,Hawai`i 96771 (808)315-8645 langerw001@hawaii.rr.com August 28, 2012 Dear Neighbor: My name is Mrs. Susan Langer. I live at 18-1358 Nichols Road. On August 15, 2012 the County Council voted 5 to 4 to recommend approval of Bill 168, which rezones 18-1354 Nichols Road from residential to commercial and allows for the construction of an auto repair shop by applicants Donny Souza and Melissa Mulliken. The applicants have stated that all of their neighbors on Nichols Road, except for me, support having an auto repair shop on our street. I am trying to find out if this is really true. I also want to share my concerns about traffic on our road. The plans submitted by the applicants are for an 1,800 square foot building to be constructed next to the existing residence. The applicants state that they will only work on one or two vehicles per day and thus traffic on Nichols Road will only be minimally affected. I would like you, however, to consider the following: 1. In their application for the rezoning,the applicants state, "North Pyzsak Road will be utilized for left hand turning on to the highway." This means that there will be some increased traffic on Nichols Road. 2. The applicants stated to the Planning Commission that Mr. Souza does and will do work for the National Park in Volcano and other large business at the proposed auto repair shop. Mr. Souza also stated that he would be working on large trucks such as those used by the National Park. 3. In my opinion,turning left on to Nichols Road from Highway 11 is dangerous and regular customers will likely turn onto the Pyzsak Road end of Nichols Road to access the proposed auto repair shop. If this happens there will be increased traffic on our road. 4. As the owners of Nichols Road,the applicants can make improvements to Nichols Road at any time and can demand reasonable pro rata contributions by lot owners with access to the road to pay for improvements. If the applicants or subsequent owners of the proposed project feel improvements may be in the interest of their business, changes may be made to the road, including widening and paving. 5. Most importantly, while we are not questioning the applicants' stated intention of using the property as an auto repair shop, once their property is rezoned, the following uses will be permissible: Bars and Restaurants; Financial Institutions; General Manufacturing Facilities; Medical Clinics; Offices; Auto Body and Frame Straightening Shops(with additional approval of the Planning Director); Convenience Stores; and numerous other uses. Exhibit 4— page 1 I ve against my s to m a ivin , ut I v ry worid what r may happen if Mr. Souza finds that he cannot neighborfi run an auto ake repair l business working am e on only e one ot two vehicles a day.nothing Mr.ga Souza testied at the Planning trying Commission:gb"I can't afford not rent a place. There are so much new places that opened up, and they also can't afford it. You've got to rent,you've got to pay business insurance, disposal of all,you know, oil and everything—it's just too much." In my opinion,the worst case scenario would be the applicants having to sell their property and a business such as an auto parts store opening up with employees and heavy traffic. At that point there would be nothing we could do to save the quiet nature of our residential road. If you are concerned, you may call the Planning Department or the applicants to discuss the proposed auto repair shop and the points I have raised. Bill 168 is scheduled for a final vote at the September 6, 2012 meeting of the County Council in Hilo. Testimony can be submitted by email to counciltestimony@co.hawaii.hi.us. Testimony can also be sent by mail to the Office of the County Clerk, 25 Aupuni Street, Hilo, HI 96720 or by fax to (808) 961-8912. Testimony must be submitted by 9:00 a.m., September 5, 2012 or brought to the meeting on September 6th. Three minutes of oral testimony can also be given at the meeting. The applicants have represented that the residents of Nichols Road support this rezoning. If you do not want a commercially zoned property on our street you need to speak up now, or this rezoning will likely be approved. If you have any questions, or would like copies of information submitted during the approval process or transcripts of previous meetings,please do not hesitate to contact me at(808) 315-8645. Sincerely, Susan Langer 1 Exhibit 4—page 2 March 21, 2012 Ms. Susan Langer Post Office Box 733 Mt. View, Hawaii 96771 Mr. Donny Souza Ms. Melissa Mulliken Post Office Box 711758 Mt.View, Hawaii 96771 Dear Ms. Langer, I am sorry we were not able to resolve this in mediation. We do want to take this last opportunity to try once more— Is there anything at all which we can do to address your concerns? Again, we are willing to take these steps: • Build a special insulated room to house the compressor; • Use the quietest compressor we can locate; • Turn the building completely around so that the openings are blocked as much as possible by the house; • Restrict the hours of operation to the common commercial hours of 8:00 am to 5:00 pm. ; • Require the use to revert to the RS-10 zoning should we we ever sell the property (we understand that the zoning cannot change but we are willing to contract with you, and you can enforce your contract with us); • Restrict customers from off-site parking and provide ample signage to deter; We are willing to consider and hear ANYTHING you request, if we can accomplish it. There ought to be some way that we can compromise on this. Please consider some form of compromise with us. We look forward to hearing from you. Since ely, Donny Souza Melissa Mulliken Exhibit 5