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HomeMy WebLinkAbout2020-01-16 Leeward Exh B (REZ 19-237, SMA 19-073 & SMA 379) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JANUARY 16, 2020 A regularly advertised hearing on the applications of KOHALA SHORELINE, LLC (REZ 19-000237 and SMA 19-000073) and KOHALA SHORELINE, LLC, FORMERLY GENTRY-PACIFIC, LTD, (SMA 379) was called to order at 10:16 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, Perry Kealoha, Max Newberg, Michael Vitousek and Faith "Faye" Yates ALSO PRESENT: Malia Hall, Esq. (Counsel for the Commission), Michael Yee (Planning Director), Jeff Darrow (Planning Program Manager), Alex Roy (Planner), Christian Kay (Planner) and Noriko Sauer(Commission Secretary) And five people from the public in attendance. APPLICANT: KOHALA SHORELINE, LLC (REZ 19-000237) Application for a Change of Zone from a Single-Family Residential- 15,000 square feet(RS-15) to Residential and Agricultural- 5 acres (RA-5a) zoning district for 37.88 acres of land. The subject property is located on the makai (west) side of Akoni Pule Highway directly across from the entrance to Kohala Ranch at Kahua 1st, North Kohala, Hawaii, TMK: (3) 5-9-001:008. APPLICANT: KOHALA SHORELINE, LLC (SMA 19-000073) Application for a Special Management Area Use Permit to develop a six-lot subdivision on 37.88 acres of land within the Special Management Area. The subject property is located on the makai (west) side of Akoni Pule Highway directly across from the entrance to Kohala Ranch at Kahua 1st, North Kohala, Hawaii, TMK: (3) 5-9-001:008. APPLICANT: KOHALA SHORELINE, LLC (FORMERLY GENTRY-PACIFIC, LTD.) (SMA 379) Request to revoke Special Management Area Use Permit No. 379, which was granted in 1997 to develop a 50-lot single-family residential subdivision and related improvements on 37.88 acres of land. The subject property is located on the makai (west) side of Akoni Pule Highway directly across from the entrance to Kohala Ranch at Kahua 1st, North Kohala, Hawaii, TMK: (3) 5-9-001:008. UNGER: Helu `elua o ka papahana, second agenda item, Applicant Kohala Shoreline, LLC, REZ 19-000237, application for a Change of Zone from a Single-Family Residential-15,000 square feet, RS-15, to Residential and Agricultural-5 acres, RA-5a, zoning district for 37.88 acres of land. The subject property is located on the makai, west, side of Akoni Pule Highway directly across from the entrance to Kohala Ranch at Kahua 1st, North Kohala, Hawai`i, TMK (3) 5-9-001:Parcel 008. County, open to your presentation. 1 EXHIBIT B ROY: Thank you, Commission. Today, we are going to be going through two applications, kind of they came in as a packet, both the Change of Zone application from RS Residential-15,000 to RA, that's Residential Agriculture, 5-acre, and then of course the Special Management Area Use Permit to go along with this project. So, as stated, the property is located on the Kohala area. You can see in the larger map there is a black arrow pointing to the area, the project area, and then I've included a kind of inset map showing the subject property, of course Kohala Ranch, and the adjacent Kohala Kai Subdivision. At this time the applicant is requesting a Change of Zone from Single-Family Residential-15,000 square feet to Residential and Agricultural-5 acres. And then additionally, the applicant is requesting a Special Management Area Use Permit. The reason for this request is the applicant intends to subdivide the property into six lots for future home sites and associated development. Here is a County Zoning map of the area. The property is down here outlined in black and zoned currently as RS-15. We can see the majority of the neighboring zoning is in A-5a, so Agricultural, A-20a, and then there is some additional, south of the project area, we have some LDU and other zoning districts. But the majority, as you can see, of the surrounding properties is Agricultural. The State Land Use Boundary Map shows this parcel as all within the Urban district, State Land Use District. The parcel to the north, the State parcel, is all in the Conservation. You can see that the Urban designation extends down the coast,practically everything makai of the highway, with the remainder Kohala and up ones to be in the Ag district, and then of course if you get further up you are back into the Urban district again. Here is the General Plan LUPAG Map, so this relates to the General Plan. The site actually has three kind of designations: Open along the shoreline, this EA, which is Extensive Agriculture, on kind of the northern end, and then LDU, Low-Density Urban, on the majority southern portion. The majority of the area up mauka is Extensive Agriculture, with an Open buffer that goes back into LDU where we saw the Urban designation previously. There is a small pocket of Rural down here, and this is within the Rural designation for LUPAG. Here is an aerial photograph of the site. What I have done is just, I didn't bound the coastal area, of course, but you can see where that is, but these are the property lines for the property here. You can see that it's undeveloped, somewhat vegetated typically with kiawe trees and buffet grass. There are some, there is one main gulch and other smaller gulches that run through the property. And then, take note of the residential development just mauka where you can see that there is a number of residential structures already constructed. Here is a conceptual site plan of the proposed project, which includes the six-lot subdivision. There is a lot going on here, but, hopefully, you had a chance to look in the exhibits. Not only is the lots—you can see one, two, three, four, five, six they have the entrances, they have the entrance, excuse me, shoreline access, parking, the ala loa trail, which runs along the base here, and then these areas are preservation around different sites that have been previously recorded. 2 EXHIBIT B Here's some site photos. On the left, you'll see, standing at the entrance area, looking south along Akoni Pule Highway, and then the picture on the right is looking north. This is within the property. This is the existing Jeep road, and you can see that it's present but difficult to traverse, but it is, crisscrosses the entire property. I included a picture of the shoreline just to give the Commission an idea of what the shoreline looks like in this area. This is pretty typical, very rocky, kind of overgrown. There was some indication of trash and things along the shoreline, but that has since been worked to try to clean up. But for the most part,this is the typical coastline along this area. I wanted to include some of the special conditions because this project has a long history, and there are a lot of community concerns, so I'm going to kind of touch on a few of these special conditions that we felt at the Planning Department were important to kind of make sure that we get out ahead of. So, this one, first, is view planes. So, the conditions that we have, "All proposed structures will be set back a minimum of 150 feet from the highway," "all proposed structures shall be sited 100 feet from the shoreline mauka of the ala loa/Jeep road" I'd like to note that the applicant proposed an amendment to this, which we believe clarifies this, and they say that"all structures shall be sited mauka of the ala loa/Jeep road, a minimum of 100 feet from the shoreline," so that's a little more specific than the condition that we placed—and then of course, "all proposed structures shall have a minimum[sic] height of 25 feet." They included some designs of photographs, sorry, computer-generated pictures of what the property is, and you can see, if you can, there is a structure, there is a structure, and then again a structure there, kind of showing that the height restrictions would help to mitigate view plane impacts in this area. So we have the view from the ocean on the left, and then the view plane from the highway on the right. The second special condition deals with the cultural resource, the cultural resources and historical resources of the site, which are vast. We have placed a condition that requires that a data recovery plan and preservation plan to be prepared and approved in consultation with SHPD, and that proposes mitigation treatment for burial sites also to be approved by SHPD and Hawaii County, Hawaii Island Burial Council, and that final data recovery plan and preservation plan need to be submitted prior to the subdivision review and prior to any approval for any land alteration permits. So we are really looking to have that preservation plan done, approved and completed before this really moves forward. I included one of the sites, Site 2496, which is just an ag mound, this is typical of what you see in that parcel. And then here is a map of most of the identified sites, and as you can see, they stretch across the entire parcel. The blue line is the old trail that runs through, and, I'm sorry, the Jeep road that runs through, and then there is a coastal trail that's not shown on this map. This, too, was included as an exhibit, so you should have a, I know it's kind of hard to see. So the third special condition, or special issue, that we want to touch on was access, public access to the shoreline. So, we have put a condition that prior to final subdivision approval they have to submit, the applicant shall submit a comprehensive public access plan. That plan will include public access pathways, parking stalls, signage, the hours of operation, night-time fishing 3 EXHIBIT B protocols, and any other related improvements or operational details that go along with that. So, in this diagram here, we can see the parking area, which is just off of the entry cul-de-sac. This is a four-stall parking area, which then leads to a ten-foot wide path that will take people down to the shoreline. From there, the public will be able to traverse the shoreline either via the Jeep trail or along the ala loa coastal trail. The applicant has proposed an amendment that—we had stated that the applicant shall provide no less than four onsite public access stalls the applicant has proposed an amendment to that to add at the end of that sentence that those stalls be located adjacent to the northern access cul-de-sac along with a ten-foot wide pedestrian access pathway from these stalls to the shoreline. The Director has also proposed some additional conditions. These are to ensure that we work to preserve the shoreline setback area and minimize impacts that not from development but that can occur from landscaping, from minor projects that the applicants, you know, that the homeowners may do based on our previous experience; we know that when a home is developed, the single-family residence is built, that there is subsequent minor development that goes on and on and on, you know, as the property gets used. So we wanted to make sure that no land alteration, grubbing, landscaping, anything like that would occur in the shoreline setback area without, of course, securing a prior written determination from the Director and a shoreline setback variance from the Planning Commission. Second was to towards the development of the subject property shall be completed in a manner that is substantially representative of plans and details provided; so what we read in the Final Environmental Assessment, the rezone application and SMA application, which are all one document essentially, that we wanted to ensure that the, what was stated there, as far as BMPs, mitigation strategies, get included into this project, and then, any substantial deviation from what is represented would require actual amendments. So we are expecting that, those statements of best management practices get adhered to during the project development. So, at this time, I'm going to give you the Planning Director's recommendation. Number one is to forward a favorable recommendation to the County Council for the Change of Zone application, REZ 19-000237, that the Planning Director recommends approval of Special Management Area Use Permit, SMA 19-000073, and that the Planning Director recommends approval of the revocation of Special Management Area Use Permit No. 379, which is attached to the project already. And you should have seen in the exhibits a letter from the applicant stating that they accept the revocation, if, of course, this rezone and SMA go through. Questions? UNGER: Any questions from the Commissioners? CARR SMITH: Yes, I have one. Is the shoreline setback variance, an application, that will come later? ROY: The shoreline setback variance is only if they conduct work. The applicant has stated over and over again that they wish to remain 100 to 150 feet away from the shoreline. So,the shoreline setback area is essentially from the certified shoreline into 40 feet, so, but we did put that condition, because by law they are allowed to apply for that, but it's not part of this 4 EXHIBIT B application at this time. There has been no indication that they want to conduct any work in the shoreline setback area. And the applicant may be able to address that question a little better. CARR SMITH: Okay. And, the Jeep trail needs to stay intact? ROY: It's not, it's, the public access plan, the comprehensive public access plan is hopefully going to address how that's maintained, if it is. We'll decide through the Director's, of course, recommendation how best to ensure that the access is provided along there. And, as you saw, it's, the trail is kind of open, it's ragged but it's traversable. I'm not sure, four-wheel drive maybe, but we walked along it, and, so, but the preservation plan, the public access plan is supposed to touch on that. And if there is specific conditions that the Commission would like, or the Director would like, to put into that plan, we would do that at that time, but there has been no discussion of improving that road or maintaining it, kind of it is as is. CARR SMITH: And I believe that it's just pedestrian access that's required to be provided, right? YEE: To my knowledge, yes. But, I'd, make sure we'd ask the applicant to CARR SMITH: Okay, thank you. ROY: Yeah, there is no vehicular access through the parcel being provided. Public access is pedestrian to the shoreline, mauka to makai, and then laterally along the shoreline. I think the Jeep road is just what has been called the Jeep road because it was at one time, but it goes in and out. But, it is accessible, but I'm not sure for vehicle. LINGER: Was this access issue addressed in the conditions? ROY: Yes, yes UNGER: WhatI'm having a hard time ROY: —one of which is the comprehensive public access plan that we are requiring. And—let me go back to UNGER: But what item is that on the condition of approval? ROY: Yeah, that should have been, it's MOOERS mom the audience]: Condition 6 of the SMA. ROY: Yeah, it's in the UNGER: Oh, SMA. ROY: Yeah, sorry, yeah, that's in the SMA approval, No. 6. 5 EXHIBIT B UNGER: Okay, so it's not in the conditions of the rezone. ROY: Yeah, we have two sets, we have kind of two, we have the rezone with the rezone conditions UNGER: Okay, got it, got it, okay. VITOUSEK: Was this project reviewed by the Cultural Resources Commission? ROY: Yes. In fact, the CRC has reviewed the project a few years ago, I believe, the applicant may have to MOOERS mom the audience]: This year. ROY: This year? Well, then yesterday actually, too, I brought it before them and updated, the updated AIS. So they have commented and reviewed the project a couple of times. VITOUSEK: Do you have a copy of their comments? MOOERS mom the audience]: It's in the ROY: Yeah, it should be in the EA in the back there. That'll be their original comments. VITOUSEK: I just want to make sure everybody has it, you know, it was kind of in there, the packet was pretty big for this one. So the—has everybody had the opportunity to review the Cultural Resources Commission's recommendation on this? HALL: What page is it? VITOUSEK: It was, gosh, I think, if I were to guess, like 342 or something like that. HALL: Oh, they don't have page numbers. VITOUSEK: I've got a copy of it here, if you would like to read the ROY: Sure. VITOUSEK: recommendations to the Commission. ROY: This is from the Hawaii County Cultural Resources Commission, dated June 6, 2019. "The Hawaii, CRC reviewed the subject proposal at their meeting on May 21, 2019, to provide comments...." "The following comments and recommendations should be included as an update to the Draft EA ... 1) An Archaeological Data Recovery Plan ... should be prepared by the applicant, and approved by the State Historic Preservation Division, prior to the issuance of a Special Management Area Use Permit by the Leeward Planning Commission; 2) A Burial 6 EXHIBIT B Treatment Plan ... shall be completed and approved by the SHPD prior to the issuance of a SMA Use Permit by the Leeward Planning Commission; 3) The CRC is requesting that the buffer zones around archaeological sites"which you can see in the diagram there—"that were shown during the presentation be revised to ensure that public trails, subdivision development, and residential development do not impact these sites, and that the buffer zones are sufficient to ensure protection of these sites; 4) The CRC observed that a number of historic properties designated for preservation are not depicted on the Site Plan provided in the Draft EA. The CRC requests that the applicant ensure that the Site Plan, and all future maps, accurately depict all of the preservation sites ... within the project boundaries. 5) The CRC is recommending that metes and bounds measurements of all site preservation easements located throughout the project area be recorded with the State of Hawaii Bureau of Conveyances, along with applicable covenants to ensure future lots owners do not impact or alter any historical, cultural or archaeological sites." UNGER: Great,thank you. Any other questions from the Commissioner, Commissioners? YATES: I have a question about it being 100 feet from the shoreline to where they are going to start the subdivision or to build? MOOERS [from the audience]: That's correct, a minimum of 100 feet. ROY: Yeah, that's, that's where we want updated; it will be a minimum of 100 feet from the shoreline. YATES: And where, and how far between where they are going to propose building to the trail, or the ala loa? ROY: Oh, that trail will be makai of the development, all of it. They are not going to build makai of the Jeep road. YATES: So, how high does the water come up? MOOERS [from the audience]: [Inaudible] HALL: Just come to the table, actually UNGER: Yeah, why don't we HALL: —speak to the mic, please. UNGER: yeah, we'll hold off until, these questions, and we can just, we can just pass off to the applicant at the appropriate time, so, if you are not comfortable answering ROY: No, I was going to say that all building pads sites, the base flood elevation is 35, all the building pads sites are set at 40 feet above base flood. But I was going to zoom back to the photograph of the shoreline. It's kind of hard to see, but it's, the runup, wave runup, is pretty 7 EXHIBIT B low in this area; so, if that's your concern, flooding, coastal flooding, yeah, it would be pretty minimal in this area. Most, probably, the impacts from flooding would come from through the gulches from mauka, heavy rains or something like that. CARR SMITH: So, I'd like to know what the Planning Department thought about the letter form the Cultural Resources Commission and how that was weighed into the decision for a favorable recommendation. ROY: Those comments were addressed in the Final Environmental Assessment, and, so we felt that they had addressed that. Now, unfortunately, with the requirements for prior to SMA approval, I'm not sure if that's something that the Commission, I think, may want to decide on. But I felt like they had addressed the concerns of the CRC, and when I brought it to them yesterdayI'm the staff for the CRC, so I work with them extensively—and when we went yesterday, they felt comfortable with the updated AIS, they were pleased with the increase in preservation versus just marks for recordation, and, so it seems like they were okay with the way that they were going to address the preservation of this area. And, the CRC will be reviewing the preservation plan before it goes through final approval, so they'll have another opportunity; I'll be bringing that before them once the preservation plan comes back, they are going to take another look at it. So, but, we feel like they had addressed in the final Environmental Assessment and the application those comments. CARR SMITH: But you don't have an updated letter from them stating that they were satisfied at this point. ROY: No, we didn't have enough time from yesterday's meeting, unfortunately, to get it together. CARR SMITH: Thank you. LINGER: Any other questions? [None.] Thank you. Would the applicant or representative come forward, please? Please raise your right hand. Do you swear or affirm to tell the truth before the Planning Commission? REPRESENTATIVES: I do. Yes. LINGER: Thank you. Please state your name and area of residence. MOOERS: Assume this is on. LINGER: Yeah, you are on. MOOERS: My name is Greg Mooers. I live in Kamuela. RECHTMAN: Bob Rechtman. I live in Papa`ikou. TERRY: Ron Terry in Pi`ihonua. 8 EXHIBIT B LINGER: Aloha. Have you had a chance to review the recommendation from the Planning Department, and do you agree with the conditions imposed? MOOERS: Yes, I have had that opportunity to review and discuss with staff. We agree with the conditions as proposed. My role in the project is I'm the land planner. I prepared the applications. Dr. Ron Terry prepared the Environmental Assessment and coordinated all of the studies that were done. And Dr. Bob Rechtman is responsible for the archaeological and cultural resource evaluation for the project. So, any questions you have, hopefully, we can, we can handle. This project has an extensive history, which I would like to take a few moments to go through to maybe help you understand where we are and what we've been through. When my client, Dr. Myhrvold, acquired the property, the property was zoned RS-15 and had an SMA approved for 50 lots. That project was obviously significantly different than what you see today. The [displaying a site plan for the SO-lot subdivision] I know this is a small map, but I think you get the idea—for the 50-lot subdivision, what this meant was that the entire site was going to be bulldozed and there would be 15,000 square feet lots throughout the entire property. It has long been believed that that's not an appropriate use of this property, given the resources. We did prepare a draft environmental assessment for a nine-lot alternative that was processed by Dr. Terry in 2015. We received significant comments from agencies and also from the community, groups we met with, and we have tried to respond to those comments with the latest proposed development—Ron, could you hold that up, or Bob? What they are holding up is a site plan for the project, and what that represents, obviously the—yeah, show to the Commissioners, they are the ones who make the decision the border across the highway is a 150-foot buffer in yellow. And if you notice the buffer down below that we say it's a minimum of 100 feet, you see how much bigger that is than the 150 feet above the highway. The orange line that traverses is the Jeep trail, which is also being, assessed as being the ala loa, all right? The little orange line along the coast is a six-foot wideor, is it six- or ten-foot wideI think six-foot wide trail that Tom Gentry, when he owned the property, was required to record. So, you can see that all of those areas in yellow will not be developed, all right? So, setting back everything above the highway, everything above, has to be above a 40-foot elevation, and everything is a minimum of 100 feet from the shoreline, and a minimum of 150 feet. Now, I bring the trails issue up because this side is a little bit different than those; these trails are not owned by the State of Hawaii. In 1935 these trails were traded with the landowner, Kahua Ranch, in exchange for the alignment for the Kohala Mountain Road. So, we have abstracts from the State in which they clearly state that they don't claim ownership of any of these trails. So, I think that's why the previous 50-lot configuration, they felt like they could get rid of the trails. But we've been told, and we agree, the fact that these trail, particularly the ala loa, is a historic site; it has a site number, and it will be preserved. The comments we received from agencies, particularly Na Ala Hele, and Ala Kahakai, the federal trails group, was that this trail was significant and should be preserved. The community repeatedly told us they didn't want us to drive across this Jeep trail even though they'd been driving on it for the last 80 years. So, we are not proposing any breach of the trail, all right? 9 EXHIBIT B The other thing that came up as a major concern was the effect of runoff onto Waiakailio Bay of development above that. And so what we've done is, if you notice, there's only one small road on the property. That's a cul-de-sac on the north and that's directly below the Kohala Mountain Road, and it swings into the property and then adjacent to the highway. There are no other roads on the project. Access will be generated to each lot by a driveway, which will be permeable and not have to be developed as a roadway, with 40-foot right-of-way, particular grades, curvatures, things like that,that would all generate runoff that we have to be concerned with. So, we purposely eliminated as many roads as we can. On the south there are two lots that access will basically just be from a joint driveway onto the highway. Those are two permitted access from Department of Transportation. We've tried to address all of the concerns that the community has given to the project. But some of those concerns are contrary. And I think Toni Withington is here today; she has kind of talked about desire for vehicular access. And I think that's important to discuss, because that request, which does appear in the CDP, the North Kohala CDP, they talk about an existing Jeep trail that ran down from the entrance, our northern entrance, down toward Waiakailio Bay. Unfortunately, that trail is at over a 20-percent slope, all right, far too steep for the County to accept. In order to generate a roadway to the shoreline, it would have to look something like this, in which we would have to have switchbacks, and the orange areas would represent retaining walls and massive grading. One of the things that we've tried to do with the project that you've noticed in the application on Page 4, we mention that we are trying to follow the coastal zone management low impact design guidelines, and those guidelines specifically state that one is we should limit the amount of site disturbance, so we try to do that by not having massive roadways, by not grading the entire site as the 50-lot configuration envisioned. The second thing is to try, take it to a less engineered approach to site grading, by that it means follow the natural terrain and not have retaining walls, flat building sites that you see in a lot of developments, because that disturbs a lot of natural vegetation, increases impervious surface, increases runoff. The third thing is to maximize percolation, and we are trying to do that by eliminating the roads and having impervious, or having percolating surfaces that we can use for driveways down instead of putting roadways throughout the project site. And then the last thing is alternative approaches to slope retention and stabilization. And if you look at the best management practices that we have listed in the application, you'll see we are proposing a significant number of issues to address drainage, runoff, and to eliminate the impacts to the coastal area. So, in sum, I think we've tried over several iterations to this project to minimize impacts to the both cultural, historical and also archaeological features but also natural resources to preserve the impacts, or to mitigate impacts to the shoreline in that area. So, frankly, I'm really proud of the owner agreeing to do what he's done; to go from 15,000-square foot lots to five-area lots, I think, is a pretty significant concession on his part. Anyway, I'm prepared, and Dr. Terry and Dr. Rechtman are prepared, to answer any questions, which you may have about the application or the project or the studies that we've done in preparation for this. UNGER: Great,thank you. Commissioners, open for questions? 10 EXHIBIT B CARR SMITH: I guess, based on the CRC letter again, and then based on the County's response to that, it sounded like the archaeological data recovery plan has been done, or? RECHTMAN: So,the archaeological data recovery—is this [mic]working?—data recovery plan has not been completed yet. You can ask about it the others, or I can just . The archaeological inventory survey has been completed. The cultural impact assessment was completed. The plans for preservation, mitigation, and burial treatment, while that came up in the Cultural Resources Commission meeting, we had a subsequent meeting after that, that meeting with them, and we had meetings with the Planning Director about at what point in the process would these plans be completed. And we had a, I don't know if we call it an agreement, but we had an understanding that we would begin the consultation phases of the data recovery plan, the preservation plan, the burial treatment plan, but the plan themselves would not have to be completed or submitted until prior to, you know, final subdivision or ground altering activities. MOOERS: I think one of the things that always comes up is that it's very difficult to prepare specific plans until we have an agreement with the County that we are going to have five-acre lots, and then you are going to agree with this proposal that we have, you know. Once that's agreed to, then we can finalize those plans, and they have to be approved by not only the State Historic Preservation Division but also the Planning Department, and they'll do that in consultation with the CRC. So, it's really, very difficult for us to go beyond this point with the plans until we have an understanding that they are going to be six lots, and we are not going to build anything makai of the trail. I did want to bring up one thing and I forgot. You asked about the preservation of the trail. We are working with the Ala Kahakai people, and they are saying that this alignment of the trail would probably be the Ala Kahakai trail as [inaudible] here. The owner is completely committed to working with Na Ala Hele and Ala Kahakai to confirm the alignment and have that be the pedestrian access across the property. RECHTMAN: Sort of a case in point is when this was a nine-lot subdivision, the level of preservation versus data recovery was extremely different than it is for a six-lot subdivision. So, if I had a nine-lot subdivision, the requirement would have been, get your data recovery and preservation plans in place; when we morph it to do a six-lot, those will all change. So, for example, everything, this is the same, everything in green on this map was preservation at the nine-lot subdivision configuration, and then when we switched to a six-lot subdivision configuration, we were able to put in all these other yellow sites here are now in preservation, which would have otherwise been data recovery sites. So, once we get the approvals and we know where we are going and we know which roads, you know, driveways and everything else, then we know we can, you know, maximize the preservation sites that way. CARR SMITH: Thank you. 11 EXHIBIT B LINGER: On the recommendation by the Planning Department,they alluded to four million dollars' worth of improvements for this six-lot subdivision. That just seems high to me. Where MOOERS: No,that's, unfortunately, that's pretty accurate. I UNGER: Where is this MOOERS: I assembled that by using Belt Collins Associates to give us some engineering studies for things, water improvement, underground utilities, drainage basins, intersection improvements UNGER: So it's not MOOERS: Yeah, I wish, I wish it were high UNGER: —it's not a typo? MOOERS: No. No, I wish it were, but that's, that's accurate. CARR SMITH: What is the applicant's plan for the property? Speculation or MOOERS: Well, Dr. Myhrvold has owned the property for 21 years, and if he were a developer or speculator, he would have developed it when it was 50 lots and RS-15. His goal is to build on Lot 1. He has two boys that both finished their PhDs at Harvard this year. He's hoping that they would build on possibly Lots 2 and 3. But I can't commit to that. And I don't mind giving the information, but I don't want to imply that that's necessarily going to happen because land is a commodity. But I can say, and if you want to google Dr. Myhrvold, you'll see, that he's not a land developer, he is a scientist. Interesting gentleman, but his plan initially is to build on Lot 1 for himself, trying to recover some of his investments on the other, but in all likelihood he'll never recover his investment because of the density that he purchased and the density he is proposing, you know. Just as an aside, my market analysis says that these lots might be worth a million and a half. He paid eleven and a half, I think, is what the public record says on this, for the property, so CARR SMITH: Kohala Kai right next door has not been able to sell a single lot, so it's MOOERS: Right, and they are listing it four and five million CARR SMITH: Right. MOOERS: which, you know, is not a realistic market. So, it's not,this is not a developer seeking to speculate and try to make grand; this is a gentleman who fell in love with the property, bought it 21 years ago, and hoping to build his home on Lot 1, and then recover as much of his investment as he can on the other lots. But, if he decides to sell it, you know, he certainly has that right,too. But this is not somebody who's coming quickly and trying to flip 12 EXHIBIT B the property, because he's actually going forpotentially, RS-15 you could put 110 lots on it, but to go to the six lots is significant decrease in density. CARR SMITH: Thank you. UNGER: Go ahead. VITOUSEK: Will we be hearing, is there public testimony for this? I don't UNGER: Yes. VITOUSEK: All right, I'll hold my comments until after. UNGER: Okay. Very good,thank you, you may be seated. We do have one member of the public that wishes to testify, so, Toni, you can come up, please. Aloha. WITHINGTON: Aloha. UNGER: For the, yeah, for the record, could you please raise your right hand? Do you swear or affirm to tell the truth before the Planning Commission? WITHINGTON: Yes. UNGER: Please state your name and area of residence. WITHINGTON: My name is Toni Withington. I'm representing Ka Makani O Kohala `Ohana —Kako`o. I live in Hawi, I've been there for almost 50 years, and I've been involved in coastal preservation for 40 of those 50 years. So, you heard from the owners. I am going to start out by saying that the very wealthy landowner here has hired some very good people, probably the best on the island, to do his presentation. They have come to our community; they have dealt with us. This is the second go-around, like they said, they had the nine-acre, or nine-lot, now they are six-lot. Okay, our group has been involved in this particular piece of land a lot longer than this owner. We were, the previous owner was Tom Gentry who originally planned to do his, a little closer to a 50-lot type of subdivision, and then after hearing from the community and working with us on public access and all these things, he eventually told us that he was really, all he wanted to do was build his own home there, so he wasn't going to subdivide it, he was just going to build his own home. Unfortunately, Tom Gentry died, and the land was sold. But our experience with, or at least my experience, not necessarily the group because the group has been involved for 30 years, but I have land use background and I was around when this ridiculous 15, RS-15 zoning came up. It was reported in the newspaper as being politically shenanigans; how was it that this open space was turned into 15-RS [sic], and also the fact that the Conservation District was removed from this process. Twenty-nine miles of coastline, we have Conservation District allover, except this parcel and the one below it. 13 EXHIBIT B So, our experience is long with this, and so, I've submitted public testimony to you, written testimony to you, to background you on the efforts of the community starting 50 years ago before me. I'm second-generation. We've got third and fourth generation happening, with an overall goal and desire to create a resource for the entire island of an open coastline that is accessible to all. And we have been pursuing this for years, documented in there. Now, what this comes down to then is, what is the highest and best use for this land? And you've heard what the owner and their representatives say; the highest and best use is six mega homes. What we are saying is the highest and best use is preservation. And we've been saying this for a lot of years, and we've said it to them, we've said it through this process we've been involved with these people, all the way through, and all the way through we've been saying preservation is really what is up for this parcel. It's steeply undulating, it has 40 registered historic sites, 36 of which have been identified as precontact, meaning before Captain Cook. The, there's been no extensive study of underneath the surface really of what's going on there. We look at it as a library of what the Hawaiians were like before the western culture came. We look at that, the burial sites and the historic sites, as being a major part of this. Second major part that we see is that this land has been used by the people of Kohala for over 700 years, for fishing, for gathering, for camping, for hiking. It has been available to us to do that, and we have done so up until it was, the gates were locked a few years ago, so. So, we see it both as a recreational and subsistence source, and we see it as a historic source. And this is what we've been saying all along. So, the letter that we submitted to you is very similar to the letter that we submitted to the second environmental assessment. And it basically says that the study of this land, the assessment did not adequately address the alternative of preservation. It's not mentioned really. And when we mentioned it and it went on Ala Kahakai in their comments on the EA mentioned that preservation needs to be looked at as an alternative to building. The comments that we got back were basically that we really didn't, as a group, we didn't really have a right to call for that because the cultural assessment, the cultural impact assessment, was, is based on the impacts on ethnic groups, and in our case I suppose that's Hawaiians. But the people like the rest of us who could have for six generations used this place for fishing and hiking and camping, that we don't have the standing to say, "Can't you look at this as an effect on us that you are going to put these rich houses down there and keep us from parking where we want to, we have to do it up above?" So, that's sort of what we are saying is that we would like you, as a commission, to say to the developer we are not sure that you adequately addressed the alternative of preservation. I think that that, I mean, we cannot, we cannot really go against because we have participated in, so far, in all the details and the conditions and all that other stuff, but the truth of the matter is that they didn't, never looked at that. The owner had a single-minded idea what the owner wanted to do. Another thing I just, I'd like to add is that the owner says that he wants to build his own house there. And I, I would like to caution you on this, because we've had a lot of owners who've come in to, for County permits of various kinds, and said that they were doing this for their own use, and truly, I've been involved in planning in North Kohala for 40 years and I cannot recall 14 EXHIBIT B one owner that is actually living in the house that they said that they were intending to build. So, just hold that as, as UNGER: Excuse me, can you please summarize? WITHINGTON: Yes. I think that the North Kohala community has shown itself to be interested in creating a resource for the entire island of an open community, I mean an open coastline, and I think that that idea of that aspect was not addressed properly in either the EA or in the SMA. So, I would like to say that our group, we support the no-brainer rezoning to 5a, we also support the revocation of the SMA, but we ask that you hold off on theI mean the old SMA we ask that you hold off on the current SMA until the owner can, number one, address the cultural things; number two, address the archaeological things; and, number three, address whether preservation could be an alternative that the owner would be able to address. UNGER: Thank you. Are there any other members of the public here that would like to testify? Seeing none, I need a motion KEALOHA: Can I ask one question? UNGER: Oh, sure. KEALOHA: I mean, in your written testimony, you talk about the 20.9 million dollars that were raised to purchase land. Did you guys every offer to buy it? WITHINGTON: Yes, we had conversation with the representatives here about that. We never made a formal offer to it, because there's four, five groups that are in Kohala that nominate to PONC. There's five groups that have over the years purchased seven different projects using various funds of sourcing, and we have two or three or four that are going on. We currently have eight projects on the PONC list of 13 projects. So,there is, there is a problem with this parcel in that this crazy RS-15 zoning makes it almost impossible for anyone with the right mind to think that the government or the funders would come in and purchase it for open space. It just, with that designation on it, the entire [inaudible] are such, so great that it really is out of the thing. The other thing is that the owner has consistently said that they, he is single-mindedly wanting to build rich homes on it. Did that answer your question? KEALOHA: Yes. UNGER: Great,thank you. WITHINGTON: I have one other thing. Jeff? Is it possible to speak to the other testifier? UNGER: Is this in regard to another item on the agenda? WITHINGTON: Yes, you have written testimony from Karen Martinez. UNGER: Yeah, please, read it. 15 EXHIBIT B WITHINGTON: Yeah, this is very brief, I won't— UNGER: on'tUNGER: That's fine, that's fine. WITHINGTON: I won't, I'm not going to read her testimony. But what I'm going to do is Karen Martinez is a woman living in North Kohala, and in her, she couldn't come today, she really wanted to, but she couldn't come today, so she wrote this testimony. And, in a way, it reflects a lot of the thought of people in North Kohala, and that is is that a lot of the planning that's going on around here has to do with rich homes and high-end subdivisions. Okay, so, I'm just going to point out in her letter, the middle paragraph where she says, "How can we let non-resident wealth dictate the development of empty castles when our homeless population sleeps on the ground? .... North Kohala needs investment in almost everything, except irresponsible speculated housing developments." I think this is the, it's the very commonly held thing in Kohala. So, Karen, I wish she could be here to express her feelings. UNGER: That's fine. Okay, thank you. WITHINGTON: Okay? UNGER: I do want a motion then to close public testimony. CARR SMITH: So moved. VITOUSEK: Second. UNGER: Motion by Commissioner Carr Smith, second by Commissioner Vitousek. All in favor? COMMISSIONERS: Aye. UNGER: Motion moves unanimously. Public testimony is closed. I would like to call the applicant back up just because we are here and there were certain things discussed about not calling attention to. So, if you would, if you would come back, and, in particular, could you talk about the looking at the alternative to preservation, if indeed that that was looked at MOOERS: Yeah, this is UNGER: —and any other clarification? MOOERS: Sure, I appreciate the opportunity to address these. I've been meeting with Toni and her group once a month for a couple of years, and I think we have a pretty good understanding of, you know, what each other's position is. The issue of preservation, there has never been a formal offer to preserve, or to acquire the land for preservation, and as far as I know,this property has never been on any of the list that the County, the PONC list, to acquire. And the resources of this property are the shoreline, the use of the shoreline and the historic features, 16 EXHIBIT B which are all being preserved. So, if someone were to try to preserve this site to acquire it, basically what they would be trying to acquire is that white area because the rest is already being preserved, all right? As a taxpayer, I would have a problem spending, you know, the eleven and a half million dollars that Dr. Myhrvold paid for the property to acquire all of the land above the trail and 100 feet below the highway, because that's essentially what you would be acquiring. So, I don't think it's a reasonable alternative to acquire. And as far as I'm aware of, there's never been an attempt to acquire the property or to list the property for preservation. I think one of the things to point out,too, is, I appreciate the comments [inaudible]get the lady's name right, I think it was Ms. Fischer?—yes, I'm sorry, Karen Martinez, I'm sorry, and she goes on, makes some very impassioned pleas about disregarding the community's desires. This project is consistent with the North Kohala Community Development Plan, all right? If you look at the land use map for this property, it says specifically existing high-end development, all right? So,this plan is consistent with the community's Community Development Plan. She says in here that she was informed by a local resident that over two decades ago they promised there would be no development on the coastline of Kohala. Well, two decades ago was when this property was zoned RS-15 by the County. This applicant did not zone the property for residential; this applicant is seeking to go back to five-acre lots that it was prior to that rezoning. So, I understand the desire, but I think, as far as public use of the land, the land currently being used the shoreline, how do people get there now? They get there from the north across the State property, they drive along a portion of the old Jeep trail, or the ala loa. You can't get through Keawewai Gulch because there's an old car there crashed and then the gulch is too steep to pass. The mauka-makai road onto this property, the gate was built by John Richards almost 30 years ago at Kahua Ranch because people were coming on to the property and abandoning vehicles and leaving junk on the property. So the property has not had a mauka-makai access in over 30 years, and that was done by Kahua Ranch, not by Mr. Gentry or not by Dr. Myhrvold, all right? The access to the shoreline will remain as it is today;people can walk laterally across the land, they can fish across it. What will stop is a vehicular access along that Jeep road because we've been told repeatedly by Ala Kahakai people, Na Ala Hele, they said that is a historic site and we should not be driving on it. So that is the only difference as far as the use of the shoreline that will occur between now and what Dr. Myhrvold will propose this. And I will say one thing, I agree with Toni; I don't think you should ever grant a rezoning to somebody because they say they are going to use the land personally. I, I just don't think that's an issue. I think the question is, given the history of the land, is what's the most appropriate use of the property, all right? And that's what will always be the decision, not by some representation that Greg Mooers is going to live there or Keith Unger is going to live there; it's what's appropriate. I do take a little bit of umbrage with the fact that they say that we don't want these rich people here because of all these high-end developments. You know, if you look at the application, clearly you'll see that Dr. Terry addresses that with a study that was done a number of years ago that looks at the impacts for resort residential homes. They pay tens of million dollars a year in excess real property taxes for services they don't receive, all right? This is a private water system. These people typically don't use a lot of services. There is a net income of those resources that go, pay for things in our community, like parks and police and affordable housing and other things. So,this is not a drain on our community. This is consistent with the 17 EXHIBIT B Community Development Plan. I think it's a reasonable use of the property. It's quite less dense development than it had been previously approved. And UNGER: Great MOOERS: we ask for your support. UNGER: Okay, wonderful, thank you for the clarification. Did you VITOUSEK: I do. UNGER: Okay, we'll go ahead and continue a question series here. VITOUSEK: Sure. You know,just looking at this, I get it, you know, I get what's happening, I get that this is a good direction for the project, for the property. For me, growing up utilizing this property and accessing this property in a traditional sense through the neighboring State property, accessing along the ala loa trail, fishing, diving at Waiakailio Bay. You know the importance of this property, and I can see that it's being addressed through preservation, through the easements that are being created for public access, through the archaeological commitments that are being made. My only concern is that we are stopping short of completion of the historic preservation review process in not having those preservation plans, specifically burial treatment plans and then also the shoreline access plans here for our review when we are being asked to make a determination on issuing the Special Management Area Permit. MOOERS: I appreciate the concern. This is an issue that comes up all the time about sequence of historic sites, or windows project is to be reviewed. I think, you know, Bob, Dr. Rechtman pointed out that depending upon the density that's allowed has a direct impact on which sites are preserved and which sites are data recovery. And I think the commitment we've made is to preserve those sites. There has been a burial treatment plan done for this, but it will have to be revised to reflect whatever the new plan is that's approved. And typically, in a development cycle is that the inventory survey is done, and then approved by SHPD, and then typically prior to subdivision approval, the other plans have to be submitted, approved by both SHPD and the Planning Department. It'll be very difficult for us, if we had submitted, for example, on the nine-lot subdivision, if we had submitted a preservation plan and date recovery plan, we would have to throw them out and start all over again because now we are going to six lots and some of those sites change. So, I understand the desire to have all that information, but I think what we have is an identification of all the sites, a commitment to preserve certain sites and a commitment that those studies will be done and approved prior to a ground disturbing. So, I'm hoping that that's enough of an assessment. As far as a public access plan, in the application, the applicant has made several commitments, as far as location of stalls, the trail, the lateral trail. But we have some issues; the trail, currently, the Jeep trail goes right through some archaeological sites. And so, we've talked with Ala Kahakai and Na Ala Hele, and said look, we're going to have to work with you guys to figure out how we are going to align this so that it doesn't go right through these archaeological sites, and they've agreed to do that. So all of those are going to kind of work in project. You notice 18 EXHIBIT B that one of the things that I did ask for is more specifications about the public access plan. But we can't give all of that until we work with Ala Kahakai and Na Ala Hele about that. But I'm happy to include any specifics about the public access plan in the SMA permit. As far as I'm concerned, the more specific the better. I think—Bob, [inaudible]. RECHTMAN: At this point in the process, with an approved archaeological inventory survey, you have the significance determinations made for all the sites and the approved treatments. So if a site is known, it's going to be preserved. The specific details of the preservation obviously will take place once the applicant has an approved project, and then they know how they are going to develop their project. But the treatments that knowing how these sites are going to be treated is already done with completion of the AIS. VITOUSEK: So, you mentioned the word"project,"to your understanding of it, is the issuance of an SMA permit qualified as a project? Well, to me, the answer is yes, it is. It's a, it's a permit, which is specifically listed as a project under Hawaii Revised Statutes Chapter 6E-2. RECHTMAN: Right, and, right, and for me, for me, Dr. Myhrvold doesn't have a project yet; until he gets approval that he has a project, there isn't a project yet. It's just now a bunch of lines on a piece of paper, for me. VITOUSEK: Again, you know, the State rules, laws, clearly indicate that, you know,this is a project for review, this triggers historic preservation review. That's why we've gone to this state. And, there are six steps in the historic preservation review, you know: Identification; significance assessments; determination of effect; mitigation commitments—and we've done all those, right? We haven't finished the process; we haven't created a detailed mitigation plan for the sites, and we haven't verified the completion of that detailed mitigation plan yet. So we've taken a part way through the historic preservation review process, and we're being asked to basically kick it down the road and say that, you know, we are not going to have the opportunity to review this based on the actual preservation plan. So, again, to me, looking at this project, it's awesome, it's a great project, but for us to kick it on without having the preservation process completed, then, then we are not doing our job adequately and we are setting the project up for potential issues. MOOERS: Excuse me, Commissioner, I have to say that I've been doing this for 30 years and I've never been required at the SMA level to have those studies done; it's always been a condition of subdivision approval because it's almost impossible to do those plans that you suggest until we have a commitment of what we've got, you know, and, I don't, you know, I guess I don't see what the risk is because if there is anything of a commitment that is not going to be met, ultimately it's not this body to decide; it's SHPD that decides in consultation with the Planning Department, with consultation with whoever else they want to bring in. And if they want to come back to this body and ask for review again, I, I don't see a problem with that, but I have a problem with trying to prepare plans around a project that we are not even sure we are going to have. You know, I mean, if we had done all of this for the nine lots,that would all be wasted, we would just have to throw it out. It's always been, to my recollection, it's always been a condition of subdivision approval, that the approved AIS was adequate to get through SMA, rezoning, and then the specifics of the data recovery plan, the preservation plan, the burial 19 EXHIBIT B treatment plans were always conditions of approval, and so you couldn't proceed with any land altering activity until those plans were completed and approved. And I'll refer to the Planning Department staff, but I believe that's a true statement. YEE: Yes, so,this project came to my attention when I first started three years ago. And I think that's the correct description like many of these plans won't be done until subdivision. So, when the nine-lot project came in front of us, we had deep conversations around what we were asking for, because with your concerns like, Mike, we wanted to know a little bit more. Based on that, we actually ended up in a Board of Appeals case that right prior to having the hearing, we were able to kind of come to an agreement about what we needed more of. And from that,they withdrew the project and came back with this six-lot. And so, I will say there was what was practiced prior to me arriving a few years ago and what developers were used to doing and what the process was. I was trying to shift that a little bit to say that there were certain projects we needed to know a little bit more of. And being, as Scott Church said earlier, trying to be practical, trying to be realistic, trying to work with development, to find how do we nudge in the right places to get better projects. And so, as we've seen, I feel as if they've come back with more, and a lot of our concerns have been addressed by some of the decisions they've made on how they want to go about the development. Again, I think everybody understands your concern, Mike. I wish there was maybe more practice or more ability to, on certain projects, to really go that way, but I also have to balance being challenge for decisions when that hasn't been the general practice of the Planning Department to do certain things. And so I would say in general this process with this applicant is above average. I appreciate the responsiveness they've shown and being flexible with the new director that had strong focus around ensuring that we, you know, preserve our resources. Is it perfect? I wouldn't say it's ever perfect, but I think the communication that we've had and what they've represented, we felt comfortable enough to push forward today. LINGER: Just a quick comment, too, it sounds like to a certain extent this may be more of an issue at the statutory level than where we are right now. But that's just a comment. Thank you all, thank you all. [Inaudible short dialogue with Ms. Hall] Okay, so, we are going to open the floor up now for motions, and how we are going to approach is we are looking at three separate motions. HALL: So we'll just do one at a time. LINGER: Yeah, we'll do one at atime, vote, second one, vote, third one, vote. So we are specific to REZ 19-000237, Change of Zone, on this project. And so I do need a motion from the Commissioners. CARR SMITH: I move that a favorable recommendation be forwarded to the County Council on the application for Change of Zone, Docket No. REZ 19-000237, based on the Planning Director's recommendation, which shall be adopted. KEALOHA: I'll second. 20 EXHIBIT B UNGER: We have a motion by Commissioner Carr Smith, second by Commissioner Kealoha. Floor is open for discussion. CARR SMITH: I just want to make a comment that I think the applicant has done a really good job with the plan, and the consultants that have been hired, in my experience, are trustworthy, and I believe they'll do the right thing going forward. ROY: Commissioner, I just want to make sure that the motion includes this revised recommendation in conditions of approval. CARR SMITH: That's for the SMA, isn't it? ROY: Yeah, that's for the SMA. UNGER: Okay, we are just doing rezoning. ROY: Oh, we are just doing the rezone right now. UNGER: Roll call. ROY: Commissioner Carr Smith? CARR SMITH: Aye. ROY: Commissioner Kealoha? KEALOHA: Aye. ROY: Commissioner Newberg? NERBERG: Aye. ROY: Commissioner Vitousek? VITOUSEK: Kanalua. ROY: I'm sorry? VITOUSEK: Kanalua. ROY: Commissioner Yates? YATES: Aye. ROY: And Chair Unger? 21 EXHIBIT B UNGER: Aye. ROY: All right, and, Commissioner Vitousek, can you restate your VITOUSEK: The vote? ROY: Yes. VITOUSEK: Kanalua. ROY: Motion passes with five ayes. UNGER: Thank you all. Applicant, you'll be notified of the Planning Commission, Leeward Planning Commission's decision in writing. Thank you all. We need a motion now to approve the Special Management Area Use Permit application, SMA 19-000073. CARR SMITH: I move that the applicant, application for the Special Management Area Permit, Docket No. 19-000073, be approved based on the Planning Director's recommendation, including the revised conditions, which shall be adopted. KEALOHA: I'll second. UNGER: We have a motion by Commissioner Carr Smith, second by Commissioner Kealoha. Open for discussion. VITOUSEK: Just for discussion purposes, I just want to point out that we are the approving body for Special Management Area Permit; in this case under the definition we are the permitting agency. And under the historic preservation statutes, it's the permitting agency's responsibility to conduct the historic preservation review process, giving the State Historic Preservation Division the opportunity to review and comment. Again, the historic preservation review process consists of six steps, and we've only done four. So, for us, we haven't completed our responsibilities to consider the effects on historic properties, without completely completing the historic preservation review process. As the permitting agency, we are issuing a permit under the assumption that historic properties, the preservation plans and such will be taken care of, but we are divorcing ourselves from that process. So, you know, in the standard practice for the past 30 years may have been one thing, but in 2003 when the Hawaii Administrative Rules, Chapter 13-284, were created that established the historic preservation review process, that's the current procedures that should be in place, and whether those are followed or not is up to us as the permitting agency. That being said, this project is a terrific looking project on paper. What they are proposing is very good; it allows for the use of the project in a way that it's consistent with the way the people would want to use it, you know, to have pedestrian access to walk down, to access to the ocean, 22 EXHIBIT B access to the historic sites. Those are all good things. It's just completing the process in a way that memorializes all of those good things so that the project moves forward and has benefit. UNGER: This is really interesting discussion, and I think it's awesome that we are discussing it. Commissioner Vitousek, if you don't know his background, he was with State Historic Preservation Department, he is an archaeologist. He has been really an asset to this process, and I think even we are all learning as we get into this. A comment specifically about this, and, for me at least, I'm not an archaeologist, so I, I look at not so much reviewing the process halfway and then dropping my hands; I look at it, I'm a commissioner, it is my responsibility, to a certain extent I'm delegating it. I'm delegating it to a process that I'm familiar with. I've been on the Burial Council. I've, I understand that SHPD has to go through this process, nothing break ground before that. So, for me personally, I'm okay delegating it, and that's just how I'm, how I'm mentally dealing with this situation today. KEALOHA: I'd like to follow up to that as well. I spent the last hour thinking through his suggestion and, I guess, two points. One is I don't think this is the appropriate time to change the ground rules; everybody has been operating on, and there's a certain set of ground rules. And, it's easy to pick on a wealthy landowner, but these rules would apply to everyone. And to have that expectation,just for the subdivision, I'm sorry, for the zoning changes, and multiple iterations that may occur along the way, it's unreasonable at some point. So, as much as I agree with the responsibility, I have to think forward about how it impacts everyone who comes before us, and is it practical, is it doable, are we stopping all development of any kind at some point, and that's a concern of mine. CARR SMITH: Mr. Vitousek, I was wondering what your thoughts are about the applicant's response that they can't really do those last couple of steps until they get their rezoning and proceed with their project. VITOUSEK: I mean, so, to me, the definition of a project clearly includes what we are doing right now. About their, you know,their discussion about the changes in the project that occur over the life of a project, I mean, to me, that's an internal discussion between what the developer wants to do on the property, and when they come in to the regulatory process on taking their internal plan forward, you know, that's when they have to fully bake the project into what's going to be built, which includes all of the historic preservation reviews and preservation plans, whatnot. UNGER: Seeing no further discussion, roll call. ROY: Commissioner Carr Smith? CARR SMITH: Aye. ROY: Commissioner Kealoha? KEALOHA: Aye. 23 EXHIBIT B ROY: Commissioner Newberg? NERBERG: Aye. ROY: Commissioner Vitousek? VITOUSEK: Nay. ROY: Commissioner Yates? YATES: No. ROY: Commissioner, Chair Unger? UNGER: Aye. ROY: Motion carries with four votes. UNGER: Again, you'll be notified of that in writing. And then the final motion to be heard, the revocation of Special Management Area Use Permit No. 379. CARR SMITH: I move that the application to revoke Special Management Area Permit 379 be approved based on the Planning Director's recommendation, which shall be adopted. KEALOHA: I'll second it. UNGER: Motion by Commissioner Carr Smith, second by Commissioner Kealoha. Floor is open for discussion. Seeing no discussion, roll call. [Inaudible short discussion among staffplanners.] KAY: Sorry, Mr. Chair, we have some discussion here. The question is about the timing of the revocation, and that would be concurrent with the approval of the rezone. Yeah, I mean, we just want to make that clear that until, until the rezone is approved, like you wouldn't be approving the revocation—if you are voting to approve the revocation right now, consistent with the rezone being approved, essentially. UNGER: Okay, so we put a pause on that then, and do not hear a motion on that at all? KAY: Well, there is a way to do it. If, the way to—and correct me, if I'm wrong, Corporation Counsel—but the concern is making sure that the timing is with the rezone, and I don't know if it can be just part of the motion or if we need to come back and do the revocation after the rezone is approved. So that's just the conversation that we were having yesterday. Concern being that if for whatever reason the County Council doesn't approve their rezone there are conditions in the rezone and in the SMA that say that the SMA, the new SMA would only go into effect when 24 EXHIBIT B the rezone is approvedso, the concern would be about losing, losing the existing entitlement right now, and then there will be no SMA on the property. HALL: Is that the applicant's concern or is that your concern? KAY: That was a departmental concern, and HALL: But if they, if they have an application for revocation of their entitlements, then why would we KAY: I believe that part of their request for revocation had that language in there about being, the timing of it being upon approval of the rezone. HALL: Then they should bring it back when they have that. KAY: Okay. LINGER: Right, so, let's not make a motion on that. That will stand until final subdivision[sic] approval either happens or doesn't happen. And if it does happen, then we will hear that motion at that time. HALL: I don't know how we, you are making a ROY: Do we continue, or? HALL: motion of, yeah, you can continue until the rezone, I guess, and then bring it back, because I think that that's ROY: Yeah, okay, because the condition is in the rezone HALL: Yeah, that's a weird ROY: too, so it's an effective date—yeah, we weren't sure how to kind of put this all together. HALL: I would say just bring it back, yeah. ROY: Okay. HALL: I mean unless the Commission has, I mean, wants to just vote on it now, but, continue CARR SMITH: So we have two DARROW: So there is CARR SMITH: —SMAS recommended for this property right now? 25 EXHIBIT B DARROW: No,there is an existing SMA that has not been revoked. UNGER: And we just approved an SMA, another SMA. DARROW: You approved it, but it's effective, it becomes effective upon the approval of the rezone. So it's not effective yet. So the concern is that if the rezone does not get approved, then no SMAS on the property, yeah. And so, yesterday I was in Kona, so I wasn't available but there was discussion, and I thought that there was going to be a condition added to the revocation saying that it would become effective upon the approval of the rezone. HALL: Is that what the applicant desires? VITOUSEK: Can we do that now? DARROW: That's the question is HALL: I just, I don't understand what's DARROW: If the applicant is willing to let go of the old SMA and not worry about the future, then LINGER: No MOOERS: The old SMA has never been perfected anyway and it's for a project that we don't propose to build. My letter requesting revocation did not say it was contingent upon the rezoning. It's just a revocation, because in effect that that SMA may exist on paper, but has never been complied with, and we have no intention of building that project. UNGER: Okay, all right, well, there you go,that's clarification. I think there is a motion on the table right now. HALL: Thank you. UNGER: Yeah, thank you. ROY: There is a motion. UNGER: There is a motion to revoke the current SMA Permit. If there is no other discussions, then roll call. ROY: Commissioner Carr Smith? CARR SMITH: Aye. ROY: Commissioner Kealoha? 26 EXHIBIT B KEALOHA: Aye. ROY: Commissioner Newberg? NEWBERG: Aye. ROY: Commissioner Vitousek? VITOUSEK: Aye. ROY: Commissioner Yates? YATES: Aye. ROY: And Chair Unger? UNGER: Aye. ROY: Vote passes, six votes,passed. UNGER: Thank you, Applicants. Thank you, members of the public. The discussion ended at 11:41 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 27 EXHIBIT B