HomeMy WebLinkAbout2019-04-18 Leeward Exh B (AMEND SMA 07-020) LEEWARD PLANNING COMMISSION
COUNTY OF HAWAII
HEARING TRANSCRIPT
APRIL 18, 2019
A regularly advertised hearing on the application of APPLICANT: KILOHANA MAKAI
LLC (AMEND SMA 07-000020) was called to order at 10:23 a.m. in the West Hawaii Civic
Center, Community Center, Building G, 74-5044 Ane Keohokalole Highway, Kailua-Kona,
Hawaii, with Chairman Keith F. Unger presiding.
COMMISSIONERS PRESENT: Keith F. Unger, Nancy Carr Smith, Sonny Shimaoka,
Michael Vitousek and Faye Yates
ABSENT AND EXCUSED: Scott Church and Perry Kealoha
ALSO PRESENT: J Yoshimoto, Esq. (Counsel for the Commission), Michael Yee (Planning
Director), Jeff Darrow(Planning Program Manager), Maija Jackson (Planner), Christian Kay
(Planner) and Noriko Sauer(Commission Secretary)
And approximately 20 people from the public in attendance.
APPLICANT: KILOHANA MAKAI LLC (AMEND SMA 07-000020)
Application for a 5-year time extension to comply with Condition No. 3 (Complete Construction)
of SMA Permit No. 07-000020, which was issued in 2007 to allow the development of a 5-story,
11-unit residential condominium on 14,450 square feet of land in the Special Management Area.
The property is located along the makai side of Alii Drive, adjacent to and south of the Kona
Banyan Tree Condominium, Holualoa It and 2nd, North Kona, Hawaii, TMK: (3) 7-6-014:013.
UNGER: Second agenda item, Applicant Kilohana Makai LLC, AMEND SMA 07-000020.
Application for a five-year time extension to comply with Condition No. 3, complete
construction of SMA Permit No. 07-000020, which was issued in 2007 to allow the development
of a 5-story, 11-unit residential condominium on 14,450 square feet of land in the Special
Management Area. The property is located along the makai side of Alii Drive, adjacent to and
south of Kona Banyan Tree Condominium, Holualoa It and 2nd, North Kona, Hawaii,
TMK: (3) 7-6-014:Parce1013.
We've received two petitions for standing in a contested case hearing, so, by rule, by Planning
Commission Rule 4-6, we acknowledge these petitions. They were received in a timely, in a
timely fashion, so the Commission today will be hearing from the petitioners and deciding on if
these petitioners have a case for standing in a contested case hearing. Part of the criteria that the
petitioners need to meet is one of four, one of five items: His or her interests is clearly
distinguishable from that of the general public; or is a government agency whose jurisdiction
includes the land involved in the subject request; or that they have some property interest in the
land or lawfully reside on the land; or that even though they do not have an interest different
from the public generally, that the proposed action will cause them actual or threatened injury in
1
EXHIBIT B
fact; and then finally, persons who are descendants of Native Hawaiians who inhabited the
Hawaiian Islands prior to 1778, who practiced those rights which were customarily and
traditionally exercised for cultural and religious purposes.
So, that is the criteria we're going to be looking, looking at as these petitioners come forward
and make their presentation. We will be opening up the process to public testimony as well.
Members of the public can testify on the supporting or any comments in regards to the
petitioners, or they can comment, this is again an opportunity for the public to comment on the
project itself.
So, the process will begin with staff presentation. They're going to make an abbreviated
presentation, and the, we'll open it up to questions of staff from the Commissioners. Then,
we'll, I'll be calling up the petitioner. I'll start with Ms. Michael [sic]. She submitted her
application first, so we'll start with Petitioner McMichael. We'll ask her to come up together
with the applicant and the Planning Director, and we'll have a discu- we'll have, the petitioner
will have an opportunity to state her case. After the petitioner makes, makes their presentation,
at that point, then the Planning Director and the applicant will be able to respond. We'll allow
public testimony, and then at that point, the Commission, the Commissioners will rule on
petition for standing. So, slightly different than our usual process, and I wanted to clarify that.
So, at this point, I'd like to call staff up for a presentation. Thank you.
JACKSON: Thank you, Mr. Chair. I'm going to be giving a very brief presentation. The
applicant is Kilohana Makai LLC. They are requesting to amend Special Management Area
Permit No. 07-20.
This is a location map, which shows the subject property with a black dot over here. You have
Alii Drive running in a north-south direction. The property is located just makai of Alii Drive.
And then you have Lako Street running mauka-makai in this area, and Royal Poinciana Drive to
the north. Holualoa Bay isn't labelled on the map, but it's in this area right here. Lyman's surf
spot is generally in this location. Banyans surf shop, surf spot—excuse me—is generally in this
location just in front of the property.
So, SMA Permit No. 07-20 was issued by the Planning Commission in 2007 to allow for the
construction of a five-story, eleven-unit residential condominium on about 14,000 square feet of
land located in the SMA. The applicant is currently requesting a five-year time extension to
comply with Condition 3, which required construction of the development be completed by
December 12, 2017.
And, that concludes my presentation.
LINGER: Commissioners, any questions? [None.] Thank you. At this time, I'd like to call up
the first petitioner, Ms. McMichael, the applicant and the Planning Director. Please raise your
right hand. Do you swear or affirm to tell the truth before the Planning Commission?
LIM: I do.
2
EXHIBIT B
MCCOWATT: I do.
YEE: I do.
MCMICHAEL: I do.
LINGER: Thank you. When it's your turn, could you please state your name and area of
residence? Ms. McMichael, why don't we start with you? And just a reminder, we are, you can
certainly talk about the merits of the project, but what we're here specifically to decide today is,
is your qualifications for standing in a contested case hearing. Mahalo.
MCMICHAEL: My name is Paula Simmy McMichael, and I reside in the Holualoa District
1 and 2.
LINGER: Thank you. Please proceed with your presentation.
MCMICHAEL: Okay. I would like you to say no to the project. That's my number one. And,
if you're inclined to say yes, then I would plead with you to allow me to present my information
in past decade of this entire area of the Holualoa Bay.
I've battled with the County, the State, DLNR, since 2005 on all the destruction of this land.
And, you know, building lands on this area should be the public beach, and when you put a
building there—this is a coastal high-hazard zone—we keep tearing, the ocean keeps tearing it
up, and we keep allowing them to build their walls. And this is our land, the public land. This is
our surf area. I have run surf contests there for ten years, six contests a year for the ten years. It
is the best surfing spot on the entire Island of Hawaii. You would not put buildings on Oahu at
the Pipeline, Sandy Beach, 20 feet from the shoreline. This is our land, and they keep illegally
trying to restore their seawall to protect the building, and they have done everything wrong about
it. They got fined 45,000 dollars. And, the last hearing, you said about the clear definition of
the, the State and the County on whose line it is, but I have photos to show you that they are
building inside the sand, and they are moving the shoreline out, and they were told to get
shoreline survey maps and then twice it was rejected. So, the State said, you know, the real high
tide, we have to go by the flood, FEMA, and the real line is in the middle of Alii Drive
centerline. You take all our beach. You take all our parking. There is no parking. Every condo
there has no parking, no parking. So, that's public shoulder parking. They took everything
away. Then, they take our beach away, and they constantly battle. The sand, and they put the
seawall, and they tell you to stay off the grass, and they make you walk on the, along the
shoreline, and there's nothing to walk on. It's all rocks. And, to build another one when you
have this, and you call it an infill? Where's the checks and balance of the public open space?
It's really difficult when—and I think it should be changed as far as the open, open space,
because you're saying from the highway. How about the coast? The coastline is like, it's
nauseous because all they're doing now is protecting their property with all these walls, and all
you do is you drive down, and it's walls, walls, walls.
3
EXHIBIT B
And you're talking about sea rise, and you're saying, oh, well, you can't put that now
because the State is working on this law, but it's not law. But, here, it's because it's a coastal
high-hazard zone. Of more than three feet of wave, it's considered high hazard, so it constantly
gets crashed. And, because they keep eroding our shoreline, we no longer have the inside wave,
and the inside wave you can put keiki-s, little keiki-s there to surf with their kupuna and mothers,
but now you don't have it. So, you really, at Banyans, you really have to be an advanced surfer
to surf there now. They've changed our waves, and it breaks further out, and it's, the waves are
dangerous outside. So, I'm saying—and also, now we find out since 2007 it's now historic.
This Holualoa Bay is Keakealaniwahine, and it's now historic. And, also, because they all did
their illegal seawalls, iwi-s came up. And now you have to do a thorough archaeology study, and
not just study, you have to test the soil. And because it was inhabited by the chiefs, this was a
well-known area. So when you have all the iwi-s, you need to check, because now we have State
constitutional laws that we have as kanaka maoli to protect iwi kupuna.
My husband, he was part of the building of Bali Kai, and he, we, this whole discussion came up,
and he says —well, he was a journeyman carpenter, so he didn't do the laborer part—but, he said
when they did the footing and foundation, he said they was carrying boxes of iwi-s every day.
And when they found the iwi in 2010 —after they did their illegal wall, the iwi showed up in the
shoreline—the DOCARE came, and the surfer said it was weird, Simmy, things were flying out
of his truck, so he just took off I got a call from an ex-DLNR. He said, Simmy, get down there.
There's an iwi problem there, and they're not addressing it. So, as soon as I got there, I called
West Hawaii Today. The surfer said that DOCARE ran away, and they left the iwi in the sun,
and it was, the waves were going to take it away, so they, they covered it with the rocks. I saw
the grave, and, you know, they took a lot of time for this grave. Each rock looked almost the
same; it was almost like square, and then all the edges were rounded, and it was in a rectangular
shape.
UNGER: To
MCMICHAEL: There was over an acre lost. You can see the map. I have it. They lost an acre.
So, the land went further out.
UNGER: I'm not stopping you; I just have a question that might help the Commissioners out in
making our decision here. In particular, can you in your, in your presentation, can you talk about
how your interests is distinguished from the general public? I think we really want to hear that
and/or if this project does go through, you know, is there any actual or threatened injury to you?
I think that will help us a lot as part of your presentation, so, so, continue.
MCMICHAEL: Okay. I'm a cultural descendant. My family came here in the 1800's. They
came here as plantationers, restored fishponds, cooked, canoe builders, fishermen. They, they
came to Kohala in the 1800's. Back then, the United States were trying to control the Chinese,
and they had this Newlands Resolution, and if you had a business, you could stay, but if you
were a laborer, you had to prove you were married. So, what they did, my ancestors, lived with
the Hawaiians and married their daughters. I have records to show you that they have a—they
also had a lawsuit in the 1800's with the Kohala Sugar. That's where they were. And they had a
4
EXHIBIT B
lawsuit for the Wright, W-R-I-G-H-T, on water rights for the kalo, sugar, and in that document–
in the Supreme Court–my relatives are on there.
Then, I have a marriage certificate. And I thought that it was King Kamehameha I and III of
Kahalu`u, but it's actually with King Kalakaua, who, my family has deep ties with King
Kalakaua, and it was specifically Kahalu`u Mauka, and Aunty Lily Kong ran me through it, and I
am related to her family because she's a Kong, so that
LINGER: —Okay, so under, under Item E, "Persons who are descendants of native Hawaiians
who inhabited the Hawaiian Islands prior to 1778, who practiced those rights which were
customarily and traditionally exercised for"these purposes, you're saying you are, you are a
descendant of native Hawaiians. Is that correct?
MCMICHAEL: Yes, because the—because of the Akau, my family married the Akau
specifically. Okay, and the Akau's were, have a marriage certificate, said they were, resided in
Kainaliu and the residents of La`aloa to Keauhou, and, yeah, so, Akau is now I found is
descendants also of the Alapai's
UNGER: Okay.
MCMICHAEL: who resided on this, because the Akau is the mother. She's an Akau, and
they had
UNGER: And I don't mean to get too specific
MCMICHAEL: I know
UNGER: but we do have rules here, but, I mean, do you have koko? Do you have Hawaiian
blood?
MCMICHAEL: Yes.
UNGER: Oh, okay, okay, I think
MCMICHAEL: —Yes
UNGER: that we just need to be clear with that.
MCMICHAEL: Well, here's what I brought because I can't explain things. It's always a picture
tells a thousand words for me. [Ms. McMichael showed a collage of photographs to the
Commissioners.] So, here's my family and they came from China. They landed in Hawaii.
These are pictures, Chun's. There's so much mana. There's so much mana here. I can't believe
what happened is this particular land is the Chun, and next to it is the Akau. It's surreal. I just
think it's surreal. I only know Hawaiians since as a little girl. This picture here, Governor
Burns, I campaigned for him. So, I was a hula dancer since I was three. I've danced on every
television station that was on–Lucky Luck, Kini Popo, Bozo the Clown–it's like every
5
EXHIBIT B
television station there was, I danced, danced, danced. And I realized that the most significant
one was Mary Kawena Pukui's 69th birthday and the celebration of the Hawaiian Dictionary with
the Hawaiian University, and it was at the Blaisdell and I was a solo dancer there. It was the
largest audience, and I couldn't figure out why. But I grew up, my family had a shoe store on
Nu`uanu. We were only like three blocks away from the `Iolani Palace. So, they grew up with
all the Hawaiians, and my family went to `Iolani with all the Hawaiians.
UNGER: So you're pili with the Akau `ohana. Is that correct?
MCMICHAEL: Yes.
UNGER: Oh, okay, all right. Thank you.
MCMICHAEL: Okay, then I
VITOUSEK: Chair Unger, for—question.
UNGER: Yeah?
VITOUSEK: As it relates to the application for petition in contested case, Item D, you checked
"no"under "Are you a person [or persons] descended from native Hawaiians who inhabited the
Hawaiian Islands
MCMICHAEL: —Yeah, I checked no because it said 1778.
VITOUSEK: Right.
MCMICHAEL: I didn't check 1778. My records have 1800's. And so I didn't check the
Hawaiian side. But now I have. We checked with the genealogy to the Alapai's who are the
Akau's, and he has all the records. He's done the studies
UNGER: Oh, okay, so
MCMICHAEL: so, now I'm, now I'm going right under them because
UNGER: you are pili with
MCMICHAEL: this is my family married into them.
UNGER: Okay, so
MCMICHAEL: to stay in the United States.
UNGER: Okay, so you are prior to 1778, then
MCMICHAEL: Yes, yes
—
6
EXHIBIT B
LINGER: by, by that lineage. Okay, very good.
MCMICHAEL: Yeah, so
LINGER: Thank you for the clarification again. Sorry for the questions, but we are looking at
this definition, and our job is to follow the definition.
MCMICHAEL: Yeah, okay, and then, so, basically this is all, all I know is Hawaiian. And to
make me separate, I'm a surf shop [owner], too, so that's part of, no one has had that; I'm the
only female in the State that's owned a surf shop for 41 years, and that's my culture. I grew up
in Waikiki with all my—one of my family is married to Duke Kahanamoku family, so that's all I
know. And, my grandma? She's in this corner. She died at 99, and she had grandchildren,
great-grandchildren; when she died, it was 71 of them. They made a lot of babies so that they
could make money as laborers and send money to China. So, they married all those Hawaiians,
and I have a whole closet full of paperwork and pictures, a closetful, and you can't find these
pictures. So, I have more.
LINGER: Great.
MCMICHAEL: Okay.
LINGER: Thank you.
MCMICHAEL: Okay.
LINGER: To the applicant then, this is your opportunity. Do you have any objections to the
petition? Please state your name and area of residence.
LIM: Thank you, Mr. Chairman. Steven Lim from Carlsmith Ball, business address
121 Waianuenue Avenue in Hilo. With me to my left is Mr. Bill McCowatt who is the
representative of Kilohana Makai LLC today at the hearing.
LINGER: Thank you.
LIM: We do have objections to the intervention request by Ms. McMichael as we submitted in
our pleading earlier. We understand that she has now updated her information that she does
claim the traditional customary practices as a native Hawaiian, and I just had some questions to
ask her with respect to, you know,just exactly what those are.
UNGER: Okay
LIM: Ms. McMichael
UNGER: go ahead.
7
EXHIBIT B
LIM: —could you tell us, well, before, a procedural issue first, I mean, in your petition, you
mentioned that you are the president of the West Hawaii Surfing Association?
MCMICHAEL: Yes.
LINGER: Ms. McMichael, could you please speak into the mic for the minutes? Thank you.
MCMICHAEL: Yes.
LIM: Are you claiming intervention for the West Hawaii Surfing Association or just yourself
individually?
MCMICHAEL: Both.
LIM: Okay, do you have any resolution or any other authorization from the West Hawaii
Surfing Association Board of Directors giving you authority to do that?
MCMICHAEL: Yes.
LIM: Okay, do you have that with you?
MCMICHAEL: No.
LIM: Okay. Can you submit that to the Commission?
MCMICHAEL: Sure.
LIM: Okay. So, you're coming in as a West Hawaii Surfing Association and as a Paula
McMichael individually?
MCMICHAEL: Yes.
LIM: Okay. And, obviously, we would object to the West Hawaii Surfing Association for lack
of proof of representation. But I'll go on with the traditional, cultural practices issue. What are
the traditional and cultural practices you, yourself, practice at this property?
MCMICHAEL: I surf and I pray to the iwi-s.
LIM: Okay. You were mentioning during your initial presentation, you know, things about the
owner being fined 45,000 dollars for seawall demolition and trying to build on the sand and all
those things. Those are not this property, right? Those are another property.
MCMICHAEL: This is one lot away.
LIM: Okay, so it's, those are not related to this property.
8
EXHIBIT B
MCMICHAEL: It's in the area. It fronts Holualoa Bay.
LIM: Right, but it's not this property that those violations occurred on?
MCMICHAEL: No.
LIM: Okay. How long have you been practicing the traditional and customary practices that
you mentioned at this property?
MCMICHAEL: I would say in the 70's, 70's.
LIM: How often?
MCMICHAEL: I live right above of it, Holualoa. This is part of the ahupua`a. Yeah, often,
every day.
LIM: Every day?
MCMICHAEL: Every day, I pray to Akua.
LIM: Okay, from? Not necessarily this property.
MCMICHAEL: This whole area. This is where I live, yes.
LIM: Yeah, no, I'm just trying to get the location, area of where you practice such traditional
and cultural practices. And please excuse my questions, I have to ask these as part of the record.
MCMICHAEL: Where do I pray?
LIM: Yes.
MCMICHAEL: I pray every day as I go to bed and as I wake up, and if I'm in the water, I pray,
and I also pray for surf.
LIM: Okay.
MCMICHAEL: And I pray aloud, and I sing out loud. Everybody knows that. And when I
sing, the waves come.
LIM: Okay, no further questions.
LINGER: Thank you. Mr. Yee? Please raise your right hand. Do you swear or affirm to tell the
truth before the Planning Commission?
YEE: I do.
9
EXHIBIT B
UNGER: Please state your name and area of residence for the record. Thank you.
YEE: Michael Yee, Hilo.
UNGER: Thank you. Please comment on the petition.
YEE: I do not, I do not object to the petition for standing.
UNGER: Thank you. Commissioners, do you have any questions of the petitioner, the
applicant, the Planning Director?
VITOUSEK: Sure, I have a question for the applicant. How often do you surf out there?
Banyans? Provided there's waves.
MCMICHAEL: I can't surf there anymore, because they've ruined the inside waves. They've
taken away the inside waves. The last time I surfed there was the Keolonahihi Surf Contest, and
the inside wave, because it's so shallow, I surfed and hit my head and I was bleeding. That's the
last time I could surf there.
VITOUSEK: But, although you can't surf there anymore, are you still engaged in promoting
surfing at the location?
MCMICHAEL: I don't do the surf contests anymore. I did it for ten years, and I brought up
Shane Dorian. He was my team rider, and he's, he's taken over, and he's done all the surf
contests now. And, he's done a wonderful job. He's promoted surfing. He's given them
scholarships and surfboards and, I mean, you name it. He brings, with Laura Sayre and Frank
Sayre–they have the foundation, the Danny Sayre's –and so they bring in all the pro surfers to
the, to Banyans. I go there every contest, support them, and it's just wonderful. I mean, they
have to have a certain grade point average. They don't pay anything; they have like a
can-goods-to-the-Food-Bank. They get trips to go to the national surf contests, and tons of brand
new surfboards are donated from Firewire and Kelly Slater. They all–so it's, yes, it's just
carried on, and yeah
VITOUSEK: I just like, I'm just trying to understand. So, how much day-to-day time do you go
down there,just check the surf, check on everybody, is that just a part of your regular life?
Going down and seeing the scene and stuff?
MCMICHAEL: Well, I don't hang out there every day. It's when the
VITOUSEK: Right
MCMICHAEL: —surf is up.
VITOUSEK: Sure.
MCMICHAEL: Yeah.
10
EXHIBIT B
VITOUSEK: Yeah, but it's something you would be going to do. If there's surf, you would be
going to the area
MCMICHAEL: Yeah.
VITOUSEK: to be
MCMICHAEL: Yes.
VITOUSEK: involved in it.
MCMICHAEL: I love watching and
VITOUSEK: Yeah.
MCMICHAEL: Yeah.
VITOUSEK: Cool.
MCMICHAEL: But it's—yeah, okay.
UNGER: Commissioners, any other questions? Thank you all. You may be seated. The
hearing is now open for public testimony. We have 14 people signed up to testify. If you would,
everybody who is signed up or would like to [inaudible conversation with Mr. Darrow]. Is
the second petitioner here? Okay, we'll, we'll go ahead and hear you before we get into public
testimony. So,please come up. And apologies, Applicant and Planning Director, if you could
please return.
So, Mr. Alapai, if you would please raise your right hand. Do you swear or affirm to tell the
truth before the Planning Commission?
ALAPAL Yes.
UNGER: Please state your name and area of residence.
ALAPAL My name is Keawe K.K.K. Alapai. Residence now is Kealia Mauka.
UNGER: Mahalo. You may begin your presentation. Thank you.
ALAPAL Okay, I guess we're tying everybody into this lineal descent, lateral descent. So, my
name is Keawe K.K.K. Alapai, seventh of my name, named after two ruling chiefs, Moku o
Keawe—oh, three ruling chiefs —Alapa`i Nui, and Keawe`opala. So my name is actually
Keawe`ikekahiali`iokamoku/Keawe`opala, Keaweamahi, I guess that's . So, my mom—to
make it easier, I'm just going to stick direct—so my mom is Kalua Alapai. Her father is Keawe
Alapai, Jr. or III. Keawe Alapai, III's father is Keawe, Jr. Keawe Alapai, Jr.'s father is Keawe,
11
EXHIBIT B
Sr. Alapai, Keaweamahi, Sr. So, that's my, what, what, great, second great grandfather, Keawe
Alapai, Sr. His father is William David Kahinu Namaielua. His —how's that, okay, third, third
great grandfather, William David Namaielua, married—okay, then, his father is Namaielua.
Namaielua's wife is Kina`u. Kina`u, daughter of Kamehameha and Kalakua Ka`ahumanu. So,
Kamehameha, royal descent, so and so. His father is KeOua, Keoua—actually,
Kalanikupuapa`ikalaninuikeoua was his name—Keoua's father is Ke`eaumoku Nui.
Ke`eaumoku Nui's father, mother is, no, father, is Keawe`ikekahiali`iokamoku, Moku o Keawe
so they say. His mother is Keakealaniwahine. Keakealaniwahine's mom is Keakamahana. So,
now, that's where I tie in the whole ahupua`a, every island, however you want to call it, because
they're all ruling chiefs of every island. That's how I tie in.
And then, I'm going to tie in my grand-aunt, Aunty Simmy. She's an Akau, [inaudible] Akau.
My second great-grandfather is William Paul Akau, married Lydia Awaa Kahookano. So, she's
coming in as a lateral descendant, not a lineal. Or maybe lineal, I guess, she can, rightly, you
know. But, lineal or lateral, she's tied into my Alapai-Akau family. Any questions?
LINGER: At this time—well, Commissioners, you have any questions of the applicant? Go
ahead.
CARR SMITH: Yes, I was just wondering what your specific connection to this area is.
ALAPAL Oh, my specific connection is basically lineal descendant, yeah, of the property, of
basically every island because being a descendant of—ruling chiefs had property on every island,
right? They had to give it to their
LINGER: Please speak into your mic, so we can
ALAPAL Oh, the ruling chiefs of the land like, let's see, Moku o Keawe, he ruled Big Island,
passed it over, well, he got taken over by Alapai Nui. Then, his son took over, Keawe`opala.
He got taken over by Kalani`opu`u. Kalani`opu`u got taken over by Kamehameha.
Kamehameha took over, gave his kids, 1-2-3-4-5, the properties, and then, we went into the
democratic system, and then Lunalino, my other ancestor, became ruling chief. And, then the
Kalakaua era came. They voted them in. And, then Kalakaua passed. Lili`uokalani ruled the
last. And, yes, lineal descendent. That's who I am. That's who Aunty Simmy is also. But, any
questions?
LINGER: Yeah, I have one more and then we'll get to you because some of these questions
might be yours, but just specifically, and for our education, what cultural practices do you
continue as a
ALAPAL I pray. In our family, I know people they worship Ku, Lono, you know, other gods.
That's not my god. That's not the Hawaiians'. Hawaiians' god was, his name was
Kaonohiokala. This is twelfth century Hawaiians. It's not Pa`ao Hawaiians, like, Pa`ao came
from Tahiti, trans- or—what they call—indoctrinated us in Ku, Lono, all these gods. But,
Hawaiians' actual religion is Kaonohiokala, and that's like the sun, yeah, you know, the sun was,
in every culture, the sun is the god of everybody, you know, like, because the sun brings life and
12
EXHIBIT B
so, but, anyways, that's my religion, Kaonohiokala. I practice. I worship to him all the time,
every day, and, yes. Any more questions?
LINGER: No more questions. Thank you. Applicant?
LIM: Good morning, Mr. Alapai.
ALAPAL Morning, morning, morning.
LIM: I'm going to ask you some questions that I
ALAPAL Yes, yeah, no problem, it's all good
LIM: normally wouldn't ask in other context, but I have to do this as part of your record.
ALAPAL Yeah, no worries, no worries.
LIM: The traditional and cultural practices that you've mentioned in your intervention, and
maybe you can help me read the writing, but it looks like that you're saying that "including but
not limited to limu seaweed, salt, `opihi," it's fishing?
ALAPAL Oh, yes, throw net, yeah, all this, yes, yes.
LIM: "Fishing as well as customary surf at said property?"
ALAPAL Yes, correct, yes.
LIM: Okay. No further questions other than maybe the prayers that you offer daily, is that done
at the property? At the subject property?
ALAPAL Sometimes when I'm there in the area picking `opihi or pipipi, you know, yeah.
LIM: Approximately how many times do you go in a year, let's say, to the property?
ALAPAL Pretty much a lot. I'm there, I'm there, well, close to it, every day, and to time in a
little bit more further, I guess, where the property is, right next to that property, my grandfather,
Keawe Alapai, and Mary Arthur Spinney, lived right there, where the blue house is, that octagon
house, right there, that's where they lived. They lived, they played, they worshiped, everything.
So, that's, that's for my grandfather. My great-grandfather was a caretaker of the Bali Kai area
all the way across, before the Bali Kai when he used to work for the Hine family, and he was the
caretaker of the property. So, from one end of that property to the end where the blue house is,
my roots run deep from me to my grandfather over here where they lived to my great-grandfather
caretaking the whole property here. And then when you go back some more, then we hit the
ruling chiefs, right? Alapai, Keawe, Kamehameha. So, that's how deep I run. Any more
questions?
13
EXHIBIT B
LIM: No. No further questions.
ALAPAL All right.
UNGER: Thank you. Mr. Yee, do you have any objections to the petition?
YEE: No, I do not.
UNGER: Thank you. Thank you all. You may be seated. At this time, I'd like to open up the
hearing to public testimony. For all those who have signed up or would like to testify, would
you please raise your right hand? Do you swear or affirm to tell the truth before the Planning
Commission?
TESTIFIERS: Yes. I do.
UNGER: Thank you. If Bob Hoxsie would come up? Sharon Willeford, Tiare Makaio Houser,
and Celeste Gaspan? Aloha. Why don't we start here? Please state your name and area of
residence.
HOXSIE: Okay, my name is Bob Hoxsie. I live in Ahupua`a of Holualoa 1 and 2. I live mauka.
I'm also an owner at the Banyan Tree Condos. So, there's not enough time here today to address
all the issues with the specific proposal, so I'm not going to go into that. But, after the previous
meeting discussion on time extensions for permits and everything, it's, it really kind of surprises
me, I'm not sure why we are here, because it appears to me from those discussions that apply to
all permits, not specifically this one, that the applicant has no legal right to even request an
extension. So, I just want to make that point. I do hope that the Commissioners' public
statements that were made at that meeting will be followed by consistent action today, and we
can finally close the chapter on this application.
But, so on another subject, I mean related to this one, you know, the last meeting, some people
suggested using land funds to acquire this land, and I guess I have a bolder proposal than that.
I've spoken to owners, you know, while none of the owners at Banyan Tree right now were there
in 1976 when Banyan Tree was built, Banyan Tree owners do respect the `aina and recognize
that the Banyan Tree complex has negatively impacted the area. While I don't speak for all the
owners, I have spoken to some of the owners, and there is support for the owners and the
association offering the property for sale to the County or some other entity to purchase,
demolish, and restore the land, and provide the opportunity for Banyans to be a wonderful
community area. It's time to be thinking about how to restore the land, not destroy the land.
Thank you.
UNGER: Aloha, please
MAKAIO HOUSER: Hi.
UNGER: please state your name and area of residence.
14
EXHIBIT B
MAKAIO HOUSER: I'm Tiare Makaio. I live in Kona, but I grew up on Alii Drive. My
grandmother was Katherine Adams and Brian Adams. They kind of were known in Kona. My
uncle built a gym so he was really active in the community. But I kind of want to state
something that kind of bothered me back there with my Aunty Simmy and Keawe. Now,
anybody from Kona should know the Alapai and the history of Kona and Chief Alapai, you
know, was from mauka all the way down. So, I'm married into, well, my brother is married into
the Alapai family, which—my grandmother, Katherine Adams, had a house on Alii Drive right
next to the Alapai house, so I grew up with them. And daily on that land, in particular that you
have, my father, my uncles, and my Alapai family practiced, you know, religion and gathering
rights on that property, throwing net right off of that property, going to pray all over there. And
what bothers me now is, you know, when my nephew or my brother goes and they're kicked off,
you know. You have houses next door where the owners come out that don't even own that
property tell you you're not allowed here, we're gonna call the cops. And, they do call the cops.
You know, it's hard for us to park anywhere in that area where my family surfs daily, when there
is waves. And, for instance, after our last hearing, I was parked there with Keawe because it's a
daily routine. After work, you know, we stop, you know, to see the ocean, to watch the waves,
to gather, you know. And, a policeman gave actually Keawe a ticket, and he wasn't, there was
no sign—well, actually, there was a sign, but the arrow was going in another direction. And the
police officer tried to write me a ticket that same day. So, where can we go and park? It's
overcrowded. There is no parking for us to go and rejoice or to go watch my neph—I don't
throw the net, you know, I'm afraid I'm going to slip on the rocks —but I enjoy watching my
nephew do those things. I enjoy watching, you know, my nieces and nephews surf, you know.
And it's, it's just not right where there's hardly any place for us to go and gather and, you know,
have a community anymore because it's getting taken away by these big developments, and
people building these houses, and they think they own the coastline. You know, to have cops
called on me and my daughter, because it was a beautiful night and we're down there looking at
the stars, and an officer removing my 10-year old daughter and me from the beach for laying on
the beach with a towel, accusing us of sleeping there. No, excuse me, my grandmother is right
across the street, but we have to move, you know, and it's only going to get worse if we keep
putting more houses and more big developments. You know, where are us locals going to go
anymore? We got Magic Sands, and we got Banyans and Kahalu`u. That's pretty much it.
You know, so I urge you guys to say no against this, and try and get that property back in the
community and turn it into a grass area. You know? So,please.
UNGER: Thank you.
MAKAIO HOUSER: Thank you.
WILLEFORD: Aloha.
UNGER: Aloha.
WILLEFORD: Sharon Willeford. The last time I was here, I did mention that I had been a
teacher at Kahakai Elementary School for many, many years, and that during that time, we never
15
EXHIBIT B
had a practice evacuation for tsunami. We maybe once a year walked down to the stone church.
I think that was more of an evacuation if there was a bomb threat or something, but that certainly
wouldn't benefit the children if there was any other kind of threat, earthquake, tsunami.
So, I've also observed the traffic there, of course, and it's very difficult to get up Royal
Poinciana or down Royal—the evacuation for that area, there's not a plan and it just is very
scary. I, again, I, I do go by Banyans every day. I stop often, and I know the area very, very
well.
I want to give everyone else time, so I just wanted to share my vision, our vision, for the future,
for the children, would be to clean up Alii Drive. Make it a beautiful corridor like it used to be.
I'd like to see a non-motorized zone in the ocean so we're not chopping up our dolphins and our
manta with the propellers. It's out of hand if you ever watch 20 boats around the dolphins
jumping on them, not giving them—I'm sorry, I'm going off on that tangent, but it's all part of
what's happening in Kona. Don't let the big developers take over everything. You guys are
decision-makers. Go into your heart and decide: Is this going to benefit our children and our
future and our community? Are they coming here to take and send more boats on the ocean and
do more tours, and it's just—and the homeless thing is a huge, yes, the police have, you know,
they're sleeping everywhere, so we're also trying to organize a meeting, community meeting for
that.
But, thank you. Please close your eyes and see beautiful orchards all up and down Alii Drive
and everywhere. We need to grow food for our community and make this a place for the Kanaka
first and the rest of the people to live in peace and harmony. Thank you.
LINGER: Mahalo.
GASPAR: Hello, my name is Celeste Gaspar. I reside in Washington State, but I have grown up
at Banyans. I lived behind the Banyan Mart Store since I was one, and I moved away when I
was 21. The beach is my first spot that I come to when I come home. I get very emotional about
the beach because I grew up there every day in the water. Sorry, but I can't believe this is
happening. You know, I move away, and I come home, and I can't believe this. It just makes
me sad to know that there might be a development on this property. When I come home from
the mainland, I expect it to be how it is and see my friends, family, go fishing, go, you know. I
don't even need there to be waves, I'll just get in the water, and I feel home. I feel love. I feel
the Big Island. I feel this is my roots. This is where I, you know, belong. But, it's, you know,
Hawaii is expensive, and I can't be here.
I just urge you, like everyone else here, please do not develop this property. It's, it's my home.
Again, I'm just, it blows my mind. Thank you.
LINGER: Mahalo. You may be seated.
HOXSIE: Thank you.
LINGER: Lokelani McMichael, Chad Campbell, Cindy Freitas, and Cherie Griffore?
16
EXHIBIT B
L. MCMICHAEL: Aloha, my name is Lokelani McMichael. I reside in the Holualoa Ahupua`a.
Yeah, please reject the extension, extended permit. We don't need five stories to make it bigger
than anything that's there right now, considering Banyan Tree and Bali Kai are four stories. So,
why are we going bigger? In 2010, they already found an iwi, a skull, a small skull in front of
the Bali Kai, and they found a headless body at Gates. So, this property is in the middle. It was,
they got the permit in 2007. They found the iwi-s in 2010. So, for sure, there's gotta be iwi
kupuna on this property. I don't see why there wouldn't. And how would we know where they
are when it's traditional to bury people secretly; we don't know where all the bodies are. So, I
mean, they have surf contests, and there's bones. There's, there's pieces of bones everywhere.
My dad built, he helped build the Bali Kai Hotel, and they said they were finding fragments of
bones like every day, and they had to call the priest to come collect it in a box. There's a body
that's still buried supposedly underneath the office at the Bali Kai also. With all the trouble
we've had, I mean, the residents there, the poor residents that are trying to keep their condos that
are already there, by building these, they have all these seawalls that are already falling into the
ocean, and last time they tried to repair it, they put up all these tarps, and a lot of the tarps were
left there with the endangered sea turtles that they killed and covered and the place stunk, and out
by Kamoa Point, people were getting attacked by sharks. So, the dead turtles were bringing in
the sharks to clean it up.
So, the damage to the property is only surface, but I mean it's a perfect place to bury people
because of the soft sand. Also, the place is very sacred, Holualoa Bay is very sacred. I think
there should be more recognition for the chiefesses that ruled there. It's Keolonahihi,
Keakamahana and Keakealaniwahine should really —all, a lot of my friends think it should be
a park, maybe with their names on it. Something to signify the history that's there.
Parking is also such a problem, especially during the high surf. Often, I have to park, if I want to
go to Banyans, I have to park across the street at Keolonahihi and walk down there. There's not
really any sidewalks. We just walk along the side of the road. And if you look, if you go down
there, you'll see that everywhere is no parking here, no parking there, tow-away zones. This
property that they want to build the five stories on, it already, you can park five spaces, so that's
going to take away five more parking zones.
Yeah, it's just not a good idea. I don't see why, if it, I think it's a mistake building condos on the
best surf breaks, and I don't see people on Oahu proposing, yeah, five stories on Pipeline
because it's such a great spot to surf. So, please don't build it. It's bad enough. It's bad enough
watching my friends get chased out. The same day, my mom and I were in front of the Banyan
Tree, looking at all the tarps, and a couple of people on the top story told us to get out of there
and sic their husband on us and chased us from Banyan Tree all the way north to where Da Poke
Shack is now. Yeah, it's great getting chased by someone's big husband, fuzzy chest, no t-shirt.
And same day, we saw Billy Kenoi get a parking ticket also. So, it's not enough space down
there for this project. Thank you.
LINGER: Thank you.
17
EXHIBIT B
CAMPBELL: Good morning, I'm Chad Campbell. I reside in Kailua-Kona, and I grew up
surfing Banyans. I surf there still every, pretty much every day. I'm also part kanaka maoli, so
I'm a cultural practitioner if you will. Surfing is my number; it's who I am, a hundred percent.
I'm no lawyer. Can I ask a question? Is this permit, the permit itself is expired, correct? As far
as
LINGER: Let's go ahead and complete your testimony, and then we can circle back and, if you
have any questions, I'd rather do that.
CAMPBELL: Okay, I'll keep it short.
LINGER: Yeah.
CAMPBELL: In general, I, personally, I would love to see less development along the whole
Kona coastline and more community spaces. Pahoehoe Park is great, you know. That place, the
lot in question or the lot under discussion would be an awesome place for a park for the whole
community, along with Kamaoa Point, which many believe could have been a place of refuge,
right, Pu`uhonua? But aside from that, yeah, less development. For me, in my opinion, is
especially along the coastline, yeah, right? In other places in the world where I've been, they
don't develop along the coastline. There's a road, coastline is community, behind the road is
development. It seems like a good model, you know. That's not us. We have to go through our
laws and stuff And, that's my, that's my feeling as a member of the community, is, it always
seems like these things or it's always the people with—I'm going to look at my notes here, that's
why I'm looking at my phone, I'm not texting—it always seems like the people with the big
money, you know, kind of versus the people that are just trying to go to the beach and hang out
and practice surfing or pray to Akua or go fishing, you know. And, one of the notes here, this is
out of your guys book: "Reason for Request: Although the applicant believes the highest and
best use of the property is for residential condominium apartments of the size and number
proposed ...." Best use for who, yeah? Obviously, for them, for their turnaround or for their
business. And that's fine, you know, you're allowed to run a business. And just—is that the best
for everybody, though, right? For the whole community? Not in my opinion, it's not. That's
my opinion. And my opinion is it's, it would be better as an open space and utilize it in a more
creative way that will benefit the general, the general community at large, not so much the eleven
condos and the people who are fortunate enough or worked hard enough or whatever it is to be
able to afford those, yeah? That's my, that's my thoughts, and that's my feelings on it.
And then just coming from a purely—again, I'm not a lawyer—but according to what I've read,
this permit is expired, and by definition, how can you extend something that is already expired?
It's by definition you cannot extend, if that's the case, yeah? So, I would just request that you
guys stick with the laws. If the thing is expired, they cannot extend, you cannot extend it. They
gotta go through the whole thing. If I, if I missed my taxes, I do have that moment where I can
send and, hey, I need to extend this `cause I'm going to be late; but if I don't put in the extension,
I don't get my taxes in, there are penalties at the end of it, yeah? Same thing with any business
transaction, and that's we're going by the rule of law. I just say you stick to that. If that is the
case, if it's already expired especially, you can't extend it. By definition. And just coming from
18
EXHIBIT B
a purely, a person who spends so much time at Banyans that they got it tattooed on their hand,
it's better with less development. Thank you.
GRIFFORE: Aloha, my name is Cherie Griffore, and I'm representing a few people today. The
first one I'm representing is Surfrider Big Island Chapter, Kona Kai Ea. We have over a
thousand members. We have voted as an executive committee to oppose this proposed
development. We are in the process of submitting Banyans to be purchased by the PONC, the
public open spaces fund. In 2011, Banyans was ranked the number one property to be purchased
with the PONC. We have the support of the community, three non-profit organizations, multiple
County Council members, and a State senator.
The next testimony I'm going to read is from Shane Dorian who throws the Keiki Classic, the
big surf competition that's down there. So, he says, "Being born in Kona in the early 70's, I
started surfing when I was five years old, and spent most of my time in the water on the beach at
Banyans. It is the most consistent and best quality surf break on the whole Kona Coast and a
family beach where kids meet up after school every day to surf and socialize. I'm down there
every day with my family these days and now more than ever, it is such an important place for
local kids who love the ocean to be able to go do something healthy and positive. The proposed
development tries to fit as many condo units as possible in the small space available and would
add to an already very congested Alii Drive. I am against this proposed development plan.
Thank you. Shane Dorian."
The next one is my personal testimony. I wanted to thank the Commissioners for everything you
guys do and all your hard work and public service. It's a lot and kind of overwhelming a lot of
times. There are more people that showed up last time to testify. It's hard for people to show up
multiple times to oppose the same expired permit because most people can't take off work. I
have ten reasons why Banyans shouldn't be, this proposed condo shouldn't be developed.
The lease expired in 2017. When our driver's license expires, we can't get an extension. We
have to start everything from the beginning and go through the whole process. Stand in line for
three days, give blood, breath, or urine, and get our license again. The same shoreline study, the
same shoreline study from 2007 we can't use because of all the—and we just heard about all the
sea level rise, flooding, and erosion in front of the Kona Sea Villas which is 2.1 miles away.
The residents who live within 300 feet were not properly notified about the lease extension
request. There is no signage posted, and the applicant noted the wrong property where, in their
notice to the neighbors.
Number three is the Public Trust Doctrine. Hawaii Supreme Court described the Public Trust
Doctrine as "the right of the people to have [the] waters protected for their use, which demands
adequate provision for traditional and customary Hawaiian rights, wildlife, maintenance of
ecological balance and scenic beauty, and the preservation and enhancement of[the] waters ....
For the benefit of present and future generations, the State and its political subdivision should
[shall] conserve and protect Hawai`i's natural beauty and all natural resources, including land,
water, air, minerals and energy sources, and shall promote the development and utilization of
these resources in a manner consistent with their conservation .... All public natural resources
19
EXHIBIT B
are held in trust by the State for the benefit of the people." In this application, it shows no
benefits to the public. Section 1, the Conservation and Development [of Resources] section of
the doctrine, "For [the] benefit of present and future generations, the State and its political
subdivisions shall conserve and protect Hawai`i's natural beauty and natural resources, including
[land], water, air, minerals and energy sources, and shall promote the development and
utilization of these resources in a manner consistent with their conservation ...." Environmental
Rights, Section 9: "Each person has the right to a clean and healthful environment, as laws
defined [as defined by laws] relating to environmental quality, including control of pollution and
conservation, protection and enhancement of natural resources."
Reason number 4, there's no sewer line the last mile of Alii Drive. Two-point-two miles south
of Banyans, Kahalu`u Beach keeps getting shut down because there is so much bacteria, and it's
not safe for the public to use.
Number 5, 2.8 miles north of Banyans, we have a pier that has been shut down multiple times
because it's unsafe for the public to swim. So, you have sewer and hygiene problems on both
sides of this proposed development.
Number 6, our County doesn't have an R-1 sewage treatment center, which means our
wastewater is not disinfected before it is pumped back into the ocean. We need to get our poop
figured out before we can think about adding more to the problem.
In a February 28th West Hawaii Today article titled, "Erosion Undermines Alii Drive in Kailua
Village," Highway Division Chief Neil Azevedo said, "It's like a washing machine right there.
It hits and circles." He said the erosion has been an issue for about four or five years, and they
patched it up at least once already. In a March 7th West Hawaii Today article titled, "Erosion
Issues on Alii Drive are being addressed and repairs are underway," ["Work Underway on
Erosion Issue in Kailua Village"] the Chief again said, "It was damaged good. The road was
undermining. I'm glad we caught it when we caught it." And, I'd like to add that those repairs
are not on the makai side of the road. They are on the mauka side of the road, which means
everybody walking and everybody driving was in danger.
When Banyan Tree Condos tried to repair their seawall after the March 2011 tsunami, they were
told to move it because the shoreline had changed; this change to the shoreline study done in
2007.
Number 9, this is the heart of the surfing community. Shane Dorian's Keiki Classic is almost,
the most anticipated and celebrated surfing contest, and next year, it celebrates 25 years.
Students must get good grades to participate, and Shane gets all his corporate sponsors and pro
surf buddies to donate their time and prizes for the keiki of our community. We need to keep
some open spaces for our health and sanity.
Number 10, this is a Hawaiian burial grounds. There are many of our loved ones we have
paddled out and spread their ashes in the ocean and their ashes are scattered all along this coast.
Please do not build anymore and just let them rest. And, furthermore, we should have a
moratorium on building anything makai side of Alii Drive because of climate change and sea
20
EXHIBIT B
level rise as we have already seen their impacts at the erosion on Alii Drive. And this is a
tsunami inundation zone.
And, the last thing. There's so much traffic down there already. It's congested and it's
dangerous for the kids to cross the street. Thanks!
FREITAS: E mele komo a he mele aloha. Nana kupuna i ke au i kala. Aloha mai kakou.
UNGER: Aloha.
FREITAS: Aloha, my name is Cindy Freitas. I'm a cultural practitioner. I oppose the extension
to the SMA Permit. I'm a native descendant of the native inhabitants of Hawaii prior to 1778,
born and raised in Hawaii all my life. My family conduct traditional practices in pule, hula,
lawai`a, gathering, songs, surfing, etcetera. I practice my traditional cultural practices in the
Ahupua`a of Holualoa from mauka to makai. Due to the Kilohana Makai LLC, it will encroach
into my traditional practice under Article 12, Section 7. In HRS 91, it states that the public
hearing should have been advertised in newspapers so people can come to voice their concern
under SMA Permit, but the applicant was not forthcoming in doing so among other issues that is
brought forth.
Kilohana Makai LLC will cause irreparable harm to the land as well as the people. It would also
cause desecration to the land under Hawaii Revised Statutes 711-1107. This came from the
archives of the State: "Thus, Lieutenant James King, commander of the Discovery, 1779,
recorded in the ship's log the first written description of Hawaiian surfing by a European."
Before contact with Cook crew, Hawaii was ruled by code of kapu taboos, which regulates
almost everything, where to eat, how to grow food, how to predict weather, how to build canoe,
how to build surfboard, how to predict surf, or convince the gods to make it good. Hawaii
society was distinguished, satisfied into royal and common classes, and these taboos extended
into surf zones. There were reefs and beaches where the ali`i, chief, surf, and the reefs and
beaches where the commoners surf. Commoners generally rode waves on pao prone boards and
alaia stand-up board as long as 12 feet. The ali`i board was olo board as long as 24 feet. Under
the Article XII, Section 7, this is a practice that was done prior to 1778. I am the descendant of
this practice.
I also gather things in that area. Today, they call it haole koa which we use for kala`au-s. We
don't have the native plants around due to the vast growth of what's happening around us. So,
today, we have to do it with what we got. The property that you, that sits there has many
significant cultural practices where today we still as a descendant practice. So, therefore, this
should not be issued to any further development. It should be hold back for the people of the
land, which we can cultivate other things to feed the people, to use products that we need,just in
case Matson truck doesn't come. Mahalo, thank you.
UNGER: Mahalo. Thank you. You may be seated. Liz Wiggans, Chad Villarin, Lamaku
Mikahala Roy?
21
EXHIBIT B
WIGGANS: Good morning, I wasn't sure if I was going to make this before I have to go back
for lunch duty. I swear to tell the truth. Good morning Planning Chair, Director, Commission, I
am—my name is Liz Wiggans —I am a resident of Kailua-Kona, and this is a personal testimony
to reject this planning project. I am a teacher at Konawaena Middle School, and I'm actually
right now missing our 8th graders' presentations on their Kulia I Ka Nu`u capstone project. Our
students at Konawaena have been conducting a college caliber research project this semester and
a broad range of topics they cover include issues that deal with the environmental issues such as
lack of affordable housing, Hawaiian culture preservation, and also addressing ocean pollution.
So, these issues faced by our community and addressed by our keiki are directly related to the
condition that we have of converting vacant land into a source of revenue for a select few. This
project will increase an already unaffordable area, negate respectful treatment of historical areas,
and have a lasting environmental impact due to its proximity to the water. I thank you for your
time and not considering this planning project.
VILLARIN: How's everybody doing today? Good? My name is Chad Villarin. I reside in
Waiea. I also reside in Kahalu`u. Just to clear things up, I'm not of Hawaiian ancestry,
Hawaiian descent, but it doesn't take that to appreciate and understand the culture of Hawaii.
Just being born and raised here, you come to understand just basic living here, and it's, you
know, it's something that we can get that not other much people in the world can understand or,
you know, have the opportunity to live out. So, I just want to clear that up. But just basically
being someone who is always down at Banyans, I surf there, like, try to everyday, fish there.
Gives me like almost a piece of mind going down there. I go to escape when things are rough in
my life. I just paddle out, I look back and I like to see, you know, a lot of green and the
landscape, but it's just a feeling that you can't take away when you're out in the ocean and you
look back and you see, you know, Mother Nature and the island and everything that's just
beauty. But, that feeling is almost like taken away when I look back and all I see are buildings.
You know what I mean? Blocking Hualalai almost because they're so big. And this building
that's proposed to be built is something like five stories tall with a, with a parking lot underneath,
and that, that's just . I don't know how things are being, how that's passed nowadays because,
like a lot of people said, building on the other side of the road should be against the law almost
because it's hard to even drive down Alii Drive nowadays. And, you know, you should be able
to see the ocean throughout the whole drive, but it's house, house, house, house, big condo,
house, house, so it's taking away that raw, raw nature and beauty.
So, I'm just really concerned about what this, who this project is really going to benefit, because
it's not going to benefit the public, the people that live here, because we're, I tell you, we're not
going to be the ones living in the condos. It's going to be the people who fly over here two-three
months out of the year, you know, call it home, and then they go back to wherever they're from.
It's basically using the island and, you know, the scenery and stuff, but, yeah, it's not going to
benefit us, the people who go down there every day. You know, like everyone is saying, there's
just so much congestion, there's parking, there's all these oppositions and hurdles that, you know
stand in the developer's way, but yet, we're still, they're still pushing forward, and they're still
trying to make this a reality, but there's everyone here that's talking and speaking out and saying
how they don't approve of this, people that live here, but yet it's just, I don't know, it's not
getting through to them, I guess.
22
EXHIBIT B
So, like Aunty Simmy was also saying, all these developments, you know, when the land is
scraped and brought up, you know, you gotta lay the foundation for the building to be built.
What comes up after that, right? So, if there were bones being found not only a hundred feet
down the way, then you can rest assured there will probably be bones found when they scrape
this land as well. So, how many more of our ancestors are we going to disrupt before we, you
know, get the picture that development is not the answer and that we need to perpetuate the land?
That's part of the motto. By just letting it be. It doesn't have to be a park. It'd be awesome if
we had more parks. Trust me. I got a kid, I take him to the park. But even if it doesn't become
a park, if it just stays natural land, then that's good enough; it's better than a building being built,
you know. So, I think a lot of the times when we come to these situations, it's, you know, it's
the public versus corporations. And what is the corporation? Kilohana Makai is a corporation,
and I don't know, their representative is right there, but, oh, it's like, basically, I want to ask you
what kind of legacy
LINGER: If you, if you could address the Commission.
VILLARIN: Okay.
LINGER: Yeah, this is about your testimony to us. Thank you.
VILLARIN: Okay. I just want to say what kind of legacy are they going to leave, you know?
Are they gonna just leave this earth knowing that they just built up a bunch of buildings on our,
on our coastline, and then, you know, be done with it, and it's not going to benefit like my
generation or the generation after me? Or, are they gonna be like, okay, we can do something for
the community here, we can stop this project, we can hold back on what we want to do, and we
can let the land be; and then the community will benefit from that rather than just a small group
of people—because that's ultimately what's happening here. So, yeah, I just, man, I hate to see
more of this stuff happening because as more and more, you know,people get away with this
kind of thing, it opens the door for other people to come in and say, well, hey, this is what they
did, we can do the same thing. And then it just, you know, it snowballs effects, and then all, you
know, you lose control basically, so . Yeah, I just want it be like how it is, Hawaii, you
know? Not just buildings and—build houses for the people that live here. Do something else
away from the coastline. We don't need more erosion. We don't need more sewage going in
there. We don't need, you know—there's a power above us all and it's Mother Nature. And,
you know, I don't know why you guys would want to build the building there because, you
know, it's obviously, people next to it are having problems already building seawalls that are
illegal in a sense. But, yet, you want to come in and build your own seawall, and it's just, it's
craziness. But, yeah, and the permit has been, has been I guess declined or it's been up for a
couple years now? And, so, it doesn't make sense that how you guys are able to break the rules
and extend these permits, but we're not allowed to speak out and or just have our land, basically.
That's just a big concern, is the land, so.
LINGER: Great, thank you.
ROY: Aloha mai kakou. `O wau no Lamaku Mikahala Roy. I'm Kahu of Ahu`ena Heiau at
Kamakahonu.
23
EXHIBIT B
LINGER: Aloha.
ROY: Can you hear me? Aloha. In Hawaii, we stand on the shoulders of those who come
before us. And I am the daughter of Kahu David Kahelemauna Roy, Jr. who led the restoration
of the first temple in the Hawaiian Islands, restored in the breath of life of the Spirit of Akua,
Mana Mana Loa. I inherit this responsibility, and it is in this cause that I stand before you and
present this testimony.
Many of you I have the honor of knowing. This is an article written about the work of the
restoration of Ahu`ena Heiau in the mid-70's. This is a Ke Ola Magazine article written in 2014.
I would like to honor my father with a mele that I wrote for him, and I would like to be free,
because the reason, the call that came to me was by my heart, and as many of the people who
have testified today, they give voice to this aspect, the living aspect of being human and being
connected to our source:
Trails Mountainward
From the shorelines to the plains
See the dryland gardens
The kalo grows, the `ulu flourishes
Persistently, follow the trails
The trails mountainward are dim
Due to the building up on the land
Backbones rise to protect
Kaluaokalani in Holualoa
The long malo extends to Holualoa
Land of Keolonahihi
The Kapuali and the Hui trails
`Oiwi, tell of the history
Sacred place of the ho`omaukeiki ceremony
Where the Chiefs, the heavenly Ones before
Conducted ceremony in great reverence
When battles on every island ceased
Keolonahihi the gathering place
Established families of the land of that area
A pueo flew in the morning at meeting time
Alongside a hawk, flying above the families
Here is a song in your honor, Mountain-Roaming-Chief
As you encourage from shorelines to the plains
The kalo to grow, the `ulu to flourish
And the people to follow the trails of the ancestors
24
EXHIBIT B
He Inoa No Keli`ihelemauna, written in honor of my father who was chairman of the Kamoa
Point Commission and several other works to protect these very lands that these good people are
standing along with myself to urge protected. Obviously, my testimony is absolutely against this
particular development, and for all the reasons that have been well stated before here. If an
application is complete, it's done, and it should be finished there, no longer brought forward to
take people's time. Again, I say I would like to be free to express, and I am free to express my
being as Lamaku, Kahu of Ahu`ena Heiau.
In 2010, I had the discussion and heard of the story of the finding of these iwi that Simmy and
others have talked about and newspapers have carried at Keolonahihi, at, rather, the Holualoa
area, `cause we're talking about this very sacred area in the mid-Ali`i Drive. But, this area—and
in keeping with our oral traditions, little did she know that up the hill, I was composing a mele
that goes . I'd like to give this mele in a bit, but before I do, it also gives, before I do, I would
like to also say that at Kamakahonu, this is the capitol through time, the respected capitol, first
capitol of the Kingdom in Hawaii, respected as the first capitol of Hawaii nei. I reconfirmed
that this is the capitol of Kamehameha the Great in his stand as Alii, as ka ma'!of Hawaii nei.
Hawaii nei is occupied by the United States of America. As Kahu of Ahu`ena Heiau, I stand to
confirm what the ancestors have delivered to me. Lamaku is the term that I'm schooled by my
ancestors, was a station that was held by esteemed people of our culture, of our lives. These are
people who served Most High God. Lamaku is a station of authority and by this gift that I was
born with and now that reveals itself in time, I receive information.
In 2010, I began to hear from the ancestors when a developer said they owned Ahu`ena Heiau.
I said Akua owns all heiau, and all of Hawaii by the way, and Akua owns the world by the
way. No, you don't. Twenty-ten, actions of a development and a developer in the way of a
modern-day business closed a business at that time, Kulana Huli Honua for myself, foundation of
the search for wisdom. They say that when some doors close, others open. What opened for me
in 2010 was the wealth of heaven, and often I would tell people as I would walk there, I search
for the channel made fragrant by the maile. These words would come from my na`au, as often
we all do, we speak from our hearts. Na`au means heart. Another word that's of our language is
kulaiwi. This means our land. Kulaiwi means the plain of the bones. How many bones are
here? They're all throughout Hawaii nei. They do not belong to the United States. They
belong to the lineages of the kupa of these lands, who are living in peace here. Who dwell in
peace and want peace. They want guidance from the One.
In 2010, these, these messages began to come. Much as Kamehameha the Second when he was
praised for his wisdom. His response was, "Who would not be wise on a path so well-travelled
by my ancestors?" He reflected what our people were accustomed to, but this is utterly sublimed
and amazing. This is life-changing information that I give you today. That I stand here before
you, and in this testimony, I will say to you, before I conduct my oli, I will tell you that in a very
related way I received a visit from Most High. An `io, in 2015 on Mother's Day, a call came in
to me in the noon hour. A woman had been told on the highway she had received the
information that an `io was reaching to her. She found that bird, the `io. It had lost its life. She
picked him up. This woman lived on the other side of the island. In her love for animals, she
kept this being with her. She returned, and this call came to me and when this came, I went into
communications and received a great, a great conveyance as I call them, from Akua. In this
25
EXHIBIT B
conveyance, Akua said this was a message from the highest lofty realms of our ancestors. How
grateful we are, I am for this. This one gave his life that we would know this message. When I
received this message, this message was from Most High. Akua Mana, Mana Loa, who gave the
report that Mauna Wakea is His mountain. And, Hawaii, and all of the Earth, is His Earth. And
He went on to say, as in the reflections of Psalms, in the Good Book of the Bible, the Earth is the
Lord's, and the fullness thereof. In Hawaii, He, Akua says how is it that man forgets? It's
written in the Good Book there. How is it that man forgets the Earth is the Lord's and the
fullness thereof? My ances- my Hawaiian people don't forget. That's why they are called hiapo.
I call them first-born, for they do not forget, and they are coming to the top of the mountains, and
they are here to protect.
So, the message is, all of Hawaii, Mauna Wakea, all of Hawaii nei, and all, really, the Earth is
Akua's, but certainly Hawaii nei, and He used the term Kaluaokalani, the second heaven.
Kaluaokalani, the second heaven. This is a name that was familiar to my father and who taught
me. This name is another name for these heartland, this heartland area that we are talking about
here. For the Holualoa lands are the heart of Kaluaokalani. The highest pinnacle is Mauna
Wakea. This is life-changing information. This is oral testimony, pure.
Simmy, little did you know in 2010, I was composing this mele because I was so, I had heard in
the wind and everywhere that the sharks were biting at Keolonahihi. You see how it operates?
The people care, and from heart to heart, word goes out, and it matters, especially to people who
are from here, because we've always been here. We are a continent before we were a sea.
Before we sailed the canoes back and forth, we were always the continent of an earlier continent
known as Kaluaokalani. This is a mele. Years later in 2015, Akua said in 2015 that the
restoration of the Kingdom of Hawaii is supported by the ancestors of Hawaii. They hold the
spiritual unity of the Hawaiian people, and as such, by Most High God, it is professed, and it is
spoken that the restoration of the Kingdom of Hawaii is underway and this will all be, I know,
in the form of peace, because this is Akua. We will go this way, and I know my people who
understand this, will go this way. Launa Ka `Io is a hula palm. I will move in the form that I'm
most comfortable with and that is orally.
Launa Ka `Io
Launa
Launa ka `io, i Luna i Luna
Kau ana e ka `ihi, i Talo i Talo
Pohai manu iki, wiwo`ole, wiwo`ole
I ka ulu `Ohai, kuha`o kuha`o
Launa
Launa ka `io, i Luna i Luna
Kau ana e ka `ihi, i Talo i Talo
Pohai manu iki, wiwo`ole, wiwo`ole
I ka ulu `Ohai, kuha`o kuha`o
26
EXHIBIT B
Ki`ei
Ki`ei aku ia, ka `ikena ka `ikena
Mai i uka a i kai, na ala na ala
Makani o ka `aina, ka `eka ka `eka
Noho wale i ka `olu, malu malu
Ki`ei
Ki`ei aku ia, ka `ikena ka `ikena
Mai i uka a i kai, na ala na ala
Makani o ka `aina, ka `eka ka `eka
Noho wale i ka `olu, malu malu
`Au ana
`Au ana ka niuhi, i hema i akau
Hono Holualoa, na nahu, na nahu
Huai na iwi, Tai`erua Tai`erua
Ka i ke kapitala, hehi`ia hehi`ia
`Au ana
`Au ana ka niuhi, i hema i akau
Hono Holualoa, na nahu, na nahu
Huai na iwi, Tai`erua Tai`erua
Ka i ke kapitala, hehi`ia hehi`ia
Launa
Launa ka `io, ma`ane`i ma`ane`i
Nanawale iho, i loko i waho
He mana`olana, ma ka `aina i ke kai
Ke lana mau nei, nana i ke kumu
Launa
Launa ka `io, ma`ane`i ma`ane`i
Nanawale iho, i loko i waho
He mana`olana, ma ka `aina i ke kai
Ke lana mau nei, nana i ke kumu
Ha`ina
Ha`ina ka puana, ka `aha `ilono
Launa ka `io, ma`ane`i ma`ane`i
Pohai manu iki, wiwo`ole wiwo`ole
I ka ulu `Ohai, kuha`o kuha`o
Ha`ina
Ha`ina ka puana, ka `aha `ilono
Launa ka `io, ma`ane`i ma`ane`i
Pohai manu iki, wiwo`ole wiwo`ole
27
EXHIBIT B
I ka ulu `Ohai, kuha`o kuha`o
He Mele no `Iolani
This is testimony to confirm the bloodlines from the heart of Kaluaokalani which is Holualoa,
which includes the lands that are being spoken of in this application. Deny this application.
UNGER: Thank you. You may be seated. I'll be asking the Commissioners motion to move to
executive session, but I did want to let everybody know that the next process will be for us to
entertain a motion specifically to the two petitioners to grant them standing or not to grant them
standing, and then after that if we do grant them standing, one or both, again, we'll get some
clarification from our corporate counsel in our executive session, but then it's, but then the
Commission has to decide what the next step is as far as a contested case hearing. Do we want
to hire a hearings officer? Does the Commission want to do it as a group? Or does an individual
Commissioner or a group of Commissioners want to participate in that, in that contested case
hearing? So, that's kind of the process going forward. We're getting towards the end, but I did
want to break for an executive session just so we're all, all clear on our responsibilities.
VITOUSEK: I'll move that the Commission enter into executive session to consult with its
attorney regarding questions and issues pertaining to the Commission's powers, duties,
privileges, immunities, and liabilities pursuant to Hawaii Revised Statutes 92-5.
SHIMAOKA: I second.
UNGER: Motion by Commissioner Vitousek, second by Commissioner Shimaoka. All in
favor?
COMMISSIONERS: Aye.
UNGER: Opposed? [None.] Motion moved, motion passes. We're in executive session now,
so that does mean if we could please ask everybody to leave the room, including staff. Thank
you.
Chairman Unger called a short recess at 12:03 p.m. and the room was cleared. The
Commission went into executive session at 12:10 p.m.for the purpose of consulting with its
counsel regarding questions and issues pertaining to the Commission's powers, duties,
privileges, immunities, and liabilities,pursuant to Hawai`i Revised Statutes 92-5.
At 1:23 p.m. it was moved by Commissioner Shimaoka and seconded by Commissioner Vitousek
that the Commission go out of executive session. Upon a voice vote, the motion carried
unanimously. The meeting was reconvened at 1:24 p.m.
UNGER: Continuing down the agenda. At this time, Commissioners, we need a motion to grant
or deny standing to our petitioners. Let's take them petitioner at a time. First Petitioner,
Ms. McMichael.
28
EXHIBIT B
SHIMAOKA: I move that the petition be granted to Ms. McMichael based on her interest is
clearly distinguishable from that of the general public. Also, that being a lineal descendant was
clearly outlined. That's my motion.
YATES: I second.
SHIMAOKA: Motion by Commissioner Shimaoka, second by Commissioner Faye. The floor is
open for discussion. [None.] Staff? Hea inoa, roll call.
JACKSON: Commissioner Shimaoka?
SHIMAOKA: Aye.
JACKSON: Commissioner Yates?
YATES: Aye.
JACKSON: Commissioner Carr Smith?
CARR SMITH: Aye.
JACKSON: And—I'm sorry, I'm getting lost here,just give me a minute—Commissioner
Vitousek?
VITOUSEK: Aye.
JACKSON: And Chair Unger.
UNGER: Aye.
JACKSON: Okay, the motion carries, five-zero.
UNGER: Next item on the agenda, Commissioners, I would like to entertain a motion for
Mr. Alapai in regard to his petition for standing.
SHIMAOKA: I so move that the petition be granted for Mr. Alapai based on his declaration of
descendant of native Hawaiians who inhabited the Hawaiian Islands prior to 1778 and who
practiced those rights which were customarily and traditionally exercised by subsistence, cultural
or religious purposes.
CARR SMITH: Second.
UNGER: We have a motion by Commissioner Shimaoka, second by Commissioner Carr Smith.
The floor is open for discussion. [None.] Maija? Hea inoa.
JACKSON: Commissioner Shimaoka?
29
EXHIBIT B
SHIMAOKA: Aye.
JACKSON: Commissioner Carr Smith?
CARR SMITH: Aye.
JACKSON: Commissioner Vitousek?
VITOUSEK: Aye.
JACKSON: Commissioner Yates?
YATES: Aye.
JACKSON: And Chair Unger.
UNGER: Aye.
JACKSON: Okay, the motion carries, five-zero.
UNGER: Thank you. The next item on the agenda is to discuss the next process, and at this
point, we'd like to call up the two petitioners and the applicant. Thank you all.
So, the process now is to determine the next step as far as going to a contested case hearing, and
the conventional discussion at this point is: Do we want to, I guess, consult it out to a hearings
officer; does the Commission want, does the Leeward Planning Commission want to be
essentially the hearing officer; or does an individual or group of Commissioners want to be that
hearing officer?
What we would like to discuss is that the Leeward Planning Commission is prepared to rule on
this agenda item as agendized on the agenda. So,but, you officially are of standing, so this is,
and you are the applicants with the understanding coming here that we were, we were talking
just about petition for standing. However, like I said, the Commission is prepared to, to have
discussion and make a ruling. And, in particular, if the, if the petitioners are in agreement, and
then the applicant is also in agreement, I think what, what we're mostly interested in hearing a
discussion on is the time extension as far as Rule 9-11(g). I'm not sure if you have that with you
right now, Mr. Lim, but as far as the time extension and your opinion on, on that matter. I think
for us that's, we'd like to hear that argument, if we get there.
So, it's, it's a change of course, and at this point, we need to defer to all of you for a decision.
And so, I guess, to start with Mr. Alapai and Ms. McMichael or maybe individually—I know it's
kind of out of, out of ordinary, and I'm sure you were not prepared to go to decision at this point
—but, again, it's your, it's your decision, your prerogatory. If you don't, we're fully prepared to
follow the procedure, go to contested case, and proceed along those lines.
30
EXHIBIT B
So, I mean, I'm sorry to put you on the spot with no prior . But, again, your, your fallback is
hey no, I want to, I need my time, and whatever it is, and you are, you are of standing, so you,
you get this decision.
MCMICHAEL: I would say I would like to go to a contested hearing.
LINGER: Very good.
ALAPAL I guess we're going to a contested hearing.
LINGER: Okay, okay. Very good, and really, that, that's all we need to hear at this point. So, as
standing and if that's your choice, then so be it. So, thank you all. We did want to give you that
opt
MCMICHAEL: Thank you.
LINGER: All right. Thank you. Aloha. Mr. Lim, go, go ahead.
LIM: Did I understand that you wanted an argument from us on Rule 9-11(g)?
LINGER: Not, not if we're, not if we're not going to, not if the petitioners or any rest of them are
going to a contested case hearing. If that's the case, then, then we can wait and hear that
argument. Or
LIM: Well, I can make it really quickly.
LINGER: Okay, let's
LIM: And just for,just for the record
LINGER: Okay, let's, let's hear it.
LIM: Regarding the Planning Commission Rule 9-11(g), the Planning Director has already
accepted the application for time extension of the SMA Permit, and it's our position that the
Planning Director has the sole authority to do the acceptance of the application, so that the
Leeward Planning Commission does not have the authority to accept or reject applications. You
get to say yes or no and yes with conditions on the permit application, but you don't get to say
anything on whether the application is full and complete and, therefore, acceptable. That has
already been made, that determination has already been made by the Planning Director, and
that's why we're here today.
Secondly, the clear and unambiguous language of Rule 9-11(g)provides for only, provides for
two categories of applications; one is time extensions, and the other one, as you know, is the
addition or modification or deletion of conditions, which the second category must be filed no
less than 60 days prior to the expiration date, which is the issue here.
31
EXHIBIT B
The applicant's position, of course, is that we have a time extension application, I mean, that is
what was applied for, that's what the hearing agenda for today's meetings says. And for the
record, I'd ask that the Planning Department correct its PowerPoint to say this is a time extension
request rather than an amendment of an SMA Permit on the first page of their PowerPoint.
But, that's basically the gist of it. We think that the, the language of the statute is clear and
unambiguous, and the courts have regularly held that when that's the case, the Commission or
whatever the deciding body, doesn't have the ability to go behind the words and make its own
interpretation.
LINGER: Great. Thank you for that clarification.
LIM: And, last statement is that I know that on the March 21st, the Commission did have an
extensive discussion on these types of issues on the time extensions and what you do for all types
of permits, and to understand it, I'll paraphrase what our, my take was that the Commission felt
that it needed more legal counsel with the Office of the Corporation Counsel, didn't make any
decisions either which way, and a potential fix would be to either amend the rules of the
Planning Commission or go to seek code amendments to the Zoning Code. That would be the
applicant's position is that unless you make those changes, the Commission must entertain this
application for an SMA time extension.
LINGER: Great.
LIM: Thank you.
LINGER: Great. Thank you. Great, thank you, you may be seated. Oh, did you have—I'm
sorry, I'm sorry, we have a question.
CARR SMITH: Mr. Lim, can you just clarify what the requirements, as you know them, of this
Commission; you're saying that we cannot deny a time extension?
LIM: No, no. You can do whatever you want at the end of the day; you can approve the time
extension, you can approve it with conditions, you can deny the time extension. I'm talking
about the application at the front end of the process.
CARR SMITH: Right.
LIM: I believe the Zoning Code provides the Planning Director with the sole authority to rule on
whether an application is acceptable or not.
CARR SMITH: Right, right.
LIM: And believe me, they make us toe the line on that. So, the Commission itself cannot say
we don't accept the application.
CARR SMITH: Okay. But, it's just an application, right? It's not an approval
32
EXHIBIT B
LIM: Yes, you
CARR SMITH: so, even though they accepted an application, it's
LIM: —you have the final say
CARR SMITH: just an application.
LIM: —you always have the final say.
CARR SMITH: Thank you.
UNGER: Any other questions? Thank you, all. You may be seated.
LIM: Mr. Chairman, one question. We, it seems like we're proceeding towards the contested
case hearing. Do we talk about the mediation process now or later?
UNGER: Later. We still need to make a motion and make a decision as a Commission in regard
to who is going to hear it. Commissioners, at this time, we need to make a motion on who is
going to hear this contested case hearing. Our options are to refer it out to a hearing officer, a
Commission as a whole and, or an individual Commissioner or a group of Commissioners. So,
so let's go ahead and at least get a motion on the table and a second, because, again, if you make
a motion and you second it, it just lets us have an opportunity to discuss it. We've never, you
know, discussed this before, so, you know, at least get the conversation going. So, I'd like to
entertain a motion at this point.
VITOUSEK: I move that the matter be referred to a hearing officer to conduct the contested
case hearing.
SHIMAOKA: I second.
UNGER: Motion by Commissioner Vitousek, second by Commissioner Shimaoka. The floor is
open for discussion.
VITOUSEK: Is there anyone on the Commission willing to act as a hearing officer?
UNGER: Or would the group as a whole want to take this on as a Commission?
VITOUSEK: I personally would prefer to have it go to a third party, hearings officer.
CARR SMITH: I don't support the motion. I think it's our responsibility to take care of this.
YATES: I agree with Commissioner Carr Smith.
33
EXHIBIT B
VITOUSEK: From my perspective, we will be taking care of it. The hearings officer will be
making a recommendation to the Planning Commission ultimately for our decision and approval,
so it will allow for the, more detailed rules of evidence or, you know, the quasi-judicial nature of
the, of the contested case hearing to take place and with someone who is more experienced with
those set of conditions, and then bringing to us their recommendation for the same thing that
we'd be doing anyway of making the final decision on this application.
SHIMAOKA: My mana`o is the reason why we're approving the standing is so that maybe we
can get a clearer picture, and I also agree with Mr. Vitousek on having a third party that would
be more experienced in dealing with this particular case, and so I, too, would vote for a hearing
officer.
UNGER: I also would vote for a hearing officer; however, if a, I think one of our options,
correct me if I'm wrong, even though it's the third option, it's my understanding that if the
Commission as a whole wants to do it, which that doesn't seem to be the case, but if a subset of
the Commission does want to do it, for example–I'm just throwing this out there and I'm not
assuming that Commissioner Faye, Commissioner Carr Smith would even want to do this –but
it's not, it's their option as Commissioners if they choose to do it, that should be an option for
discussion for the Commission.
DARROW: Mr. Chairman, if I could just read into the rule. This is contested case rule number
4-4, subsection (a). It says, "Person Presiding. The chairperson of the Commission, one of its
members, or a hearing officer duly appointed and designated, shall preside at the hearing."
UNGER: So, it's either the Chair, one of the Commissioners, or a hearings officer.
DARROW: Correct.
UNGER: Oh, okay.
DARROW: Now, I know that there was a conflict somewhere else in the rule, and I can't find
that right now where it kind of had members of the Commission, but I think based on this
language, it's kind of clear who
UNGER: Okay.
DARROW: —the presiding officer is.
UNGER: Okay, okay. So, I mean, again, open for discussion if either Commissioner Faye—it
sounds like one or the other if you choose to be the hearings officer, you could; both, you can't.
Or, myself could or the Commissioner as a whole, so, the Commission as a whole could.
CARR SMITH: Yeah, my opinion is just based on sitting on the Board of Appeals for five
years, and that's what we heard, was contested cases, and it's really not that big of a deal based
on what we go through all the time. And, it saves the County a lot of money. So, that's why it
seems to me that it's, we should be able to take that on in my opinion.
34
EXHIBIT B
UNGER: I have a logistic timeframe concern personally for me to take on a project like that.
And, I agree. I mean, it may not be that much, but again, I might be, have a difficult time with
that.
CARR SMITH: We have a motion on the table?
UNGER: Yeah. Yeah, any other comments? We have aI'm sorry, ma'am, we're in the, let us
complete this motion, and then I can hear from you.
ROY: Can no one speak for the applicants that are being standing, that have standing?
UNGER: Right, right now, let us finish this motion, and then we'll, we'll discuss that. Thank
you. So, roll call?
JACKSON: Commissioner Vitousek?
VITOUSEK: Aye.
JACKSON: Commissioner Shimaoka?
SHIMAOKA: Aye.
JACKSON: Commissioner Carr Smith?
CARR SMITH: No.
JACKSON: Commissioner Yates?
YATES: No.
JACKSON: And Chair Unger.
UNGER: Aye.
JACKSON: Okay, the motion fails, three-two.
UNGER: I think it passed, three-two?
JACKSON: It fails. You need four to pass a motion.
UNGER: Oh, oh, got it, got it. Because our quorum is —seven, okay. So motion fails, so we
need to make another motion, yeah. The floor is open to a motion.
SHIMAOKA: I move that Ms. Carr Smith be the hearings officer to conduct a contested case
hearing.
35
EXHIBIT B
YATES: I second.
UNGER: We have a motion on the table for Commissioner, from Commissioner Shimaoka,
second by Commissioner Yates. The floor is open for discussion.
VITOUSEK: Commissioner Carr Smith, are you willing to take on that role?
CARR SMITH: Generally speaking, yes. I would want to know a little bit more about the
timing as well, especially if you have issues that would
UNGER: No, it's just
CARR SMITH: timing-wise.
UNGER: I[inaudible]if you're the hearings officer.
CARR SMITH: Okay.
UNGER: Right?
CARR SMITH: Okay. Yes, I'd agree to it.
UNGER: Roll call?
JACKSON: Commissioner Shimaoka?
SHIMAOKA: Aye.
JACKSON: Commissioner Yates?
YATES: Aye.
JACKSON: Commissioner Carr Smith?
CARR SMITH: Aye.
JACKSON: Commissioner Vitousek?
VITOUSEK: Aye.
JACKSON: And Chair Unger.
UNGER: Aye.
JACKSON: Okay, the motion carries, five-zero.
36
EXHIBIT B
LINGER: Thank you, everyone. The meeting is going to continue. All Applicants and
Petitioners will be notified in writing of the decisions by the Leeward Planning Commission.
And Mr. Lim brought up, Mr. Lim brought up the discussion about mediation. I think we can
have, or you and the Planning Department, can enter into those discussions with the petitioners
in regard to the next step in the mediation process. Thank you.
The discussion ended at 1:46 p.m.
Respectfully submitted,
Noriko Sauer, Secretary
Leeward Planning Commission
37
EXHIBIT B