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HomeMy WebLinkAbout2020-02-20 Leeward Exh D (AMEND REZ 2004-024 & AMEND REZ 2004-025) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT FEBRUARY 20, 2020 A regularly advertised hearing on the applications of SUFFOLK INVESTMENT LLC (AMEND REZ 2004-000024) and PUAA DEVELOPMENT LLC (AMEND REZ 2004-000025) was called to order at 10:30 a.m. in the West Hawaii Civic Center, Community Center, Building G, 74-5044 Ane Keohokalole Highway, Kailua-Kona, Hawaii, with Chairperson Nancy Carr Smith presiding. COMMISSIONERS PRESENT: Nancy Carr Smith, Perry Kealoha, Max Newberg, Keith F. Unger, Mark Van Pernis and Michael Vitousek ABSENT AND EXCUSED: Faith "Faye" Yates ALSO PRESENT: Malia Hall, Esq. (Counsel for the Commission), Michael Yee (Planning Director), Jeff Darrow (Planning Program Manager), Christian Kay (Planner), Alex Roy (Planner), Jessica Andrews (Planner) and Noriko Sauer (Commission Secretary) And approximately 15 people from the public in attendance. APPLICANT: SUFFOLK INVESTMENT LLC (AMEND REZ 2004-000024) Application to amend Condition B (Time to Pay Water Deposit), Condition C (Time to Complete Construction), Amend Condition D (Delete Rental Housing Restriction), Amend Condition E (Delete Requirement for Supplemental TIAR), Amend Condition F (Roadway Improvements), Amend Condition H (Location of Spine Road within Project Site), Amend Condition I (Kuakini Highway Improvements), Amend Condition U (Requirement of a 5-acre School Site & Improvements), Amend Condition V (Fair Share), Amend Condition X (Affordable Housing Requirement& Change Housing Program Approving Authority), and Amend Condition Z (Administrative Time Extension) of Ordinance No. 05-113. Ordinance No. 05-113 reclassified the 14.872-acre property from Agricultural-5 acres (A-5a)to Multiple-Family Residential-2,500 square foot(RM-2.5) in 2005. The subject property is located west(makai) of Queen Ka`ahumanu Highway and east(mauka) of Kuakini Highway and the Kahakai Estates Subdivision, approximately 2,200 feet north of the Queen Ka`ahumanu Highway—Kuakini Highway intersection, Puapuaaiki 1st, North Kona, Hawaii, TMK: (3) 7-5-017:019. APPLICANT: PUAA DEVELOPMENT LLC (AMEND REZ 2004-000025) Application to amend Condition B (Time to Pay Water Deposit), Condition C (Time to Complete Construction), Condition E (Delete Requirement for Supplemental Traffic Study), Condition F (Roadway Improvements), Condition H (Location of Spine Road), Condition I (Kuakini Highway Improvements), Condition V (Requirement for a 5-Acre School Site and Improvements), Condition W (Fair Share Contribution), Condition Y (Affordable Housing Timing), Condition Z (Housing), and Condition BB (Administrative Time Extension) of Ordinance No. 05-115. Ordinance No. 05-115 reclassified the 14.973-acre property from Agricultural-5 acres (A-5a) to Neighborhood 1 EXHIBIT D Commercial-20,000 square feet(CN-20) in 2005. The subject property is located west(makai) of Queen Ka`ahumanu Highway and the Pualani Estates Subdivision, and about 1,400 feet north of the Queen Ka`ahumanu Highway—Kuakini Highway intersection, Puapuaaiki 1st and Puapuaanui 1st North Kona, Hawaii, TMK: (3) 7-5-017:001. CARR SMITH: Okay, we are going to hear the next two items together, and we'll deal with them separately. Agenda Item No. 4, Applicant is Suffolk Investment, LLC. This is AMEND REZ 2004-000024: Application to amend Condition B, which is the Time to Pay Water Deposit; Condition C is Time to Complete Construction; amend Condition D, Delete Rental Housing Restriction; amend Condition E to delete Requirement for Supplemental TIAR; amend Condition F, Roadway Improvements; amend Condition H, Location of Spine Road within Project Site; amend Condition I, Kuakini Highway Improvements; amend Condition U, Requirement of a 5-acre School Site and Improvements; amend Condition V, Fair Share; amend Condition X, Affordable Housing Requirement and Change Housing Program Approving Authority; and, amend Condition Z, Administrative Time Extension, of Ordinance No. 05-113. Ordinance No. 05-113 reclassified the 14.872-acre property from Agricultural-5 acres to Multiple-Family Residential- 2,500 square feet. That occurred in 2005. The subject property is located west of Queen Ka`ahumanu Highway and east of Kuakini Highway and the Kahakai Estates Subdivision, approximately 2,200 feet north of the Queen Ka`ahumanu Highway—Kuakini Highway intersection, Puapuaaiki 1st, North Kona, Hawaii, TMK: (3) 7-5-017:019. And the next agenda item is Applicant Puaa Development LLC, AMEND REZ 2004-000025. This is to, application to amend Condition B, Time to Pay Water Deposit; Condition C, Time to Complete Construction; Condition E, Delete Requirement for Supplemental Traffic Study; Condition F, Roadway Improvements; Condition H, Location of Spine Road; Condition I, Kuakini Highway Improvements; Condition V, Requirement for a 5-Acre School Site and Improvements; Condition W, Fair Share Contribution; Condition Y, Affordable Housing Timing; Condition Z, Housing, and, Condition BB, Administrative Time Extension, of Ordinance No. 05-115. Ordinance No. 05-115 reclassified the 14.973-acre property from Agricultural- 5 acres to Neighborhood Commercial-20,000 square feet in 2005. The subject property is located west of Queen Ka`ahumanu Highway and the Pualani Estates Subdivision, and about 1,400 feet north of the Queen Ka`ahumanu Highway—Kuakini Highway intersection, Puapuaaiki 1, or 1st rather, and Puapuaanui 1st, North Kona, Hawaii, TMK: (3) 7-5-017:001. It's a mouthful. KAY: Great job. CARR SMITH: Christian, go ahead, please. KAY: All right. Thank you, Madam Chair. If I can turn your attention to the screen. It's a little bit unusual that we are holding these presentations for two agenda items as one, but as they are adjacent properties and were essentially approved as part of the same project, we are going to run them that way. 2 EXHIBIT D So pardon me the subject properties are situated in the North Kona District of Hawaii Island. For reference, we've got Queen Ka`ahumanu Highway running generally north-south through the slide, and Kuakini Highway running below the subject properties here, makai of the subject properties, north-south as well. For further reference, we've got Pualani Estates Subdivision here, mauka of the subject properties, as well as Kahakai Estates Subdivision makai. The existing entitlements in proposed projects for each are as follows: Suffolk Investment, LLC that was approved under Ordinance No. 05-113 approved on August 5, 2005, to change the zoning from Agricultural-5 acres to Multiple-Family Residential-2.5 for 14.872 acres. The applicant originally proposed a 250-unit market rental housing development, a 300-stall parking lot and a one-plus acre park. The applicant is currently proposing to reduce the number of rental units to 226 and intends to develop open space and a passive recreation area on the property. For the parcel mauka of the Suffolk parcel, Ordinance No. 05-115 was approved on August 5, 2005, to change the zoning from Agricultural-5 acres to Neighborhood Commercial for 14.973 acres. The applicant initially proposed to develop a neighborhood commercial shopping center, including a 93,600-square foot complex that would house varied commercial uses, such as financial institutions and office spaces. Also proposed was a 500-plus parking stall parking lot, with appropriate accessibility requirements. The applicant has currently downsized the project by reducing the size of the commercial space from 93,600 square feet to 72,600 square feet. Also included in the current proposal is the inclusion of a transit hub in the form of a public bus transfer station, as well as the addition of 100 multiple-family residential units. So here are the applicant's requests. I'll just leave them up on the screen here. The Chair already kind of mentioned what they were. I need to apologize; we had two planners working on different applications, so the language of the conditions as they were in your reports are somewhat different. In reality, most of the conditions that are being requested to change are the same, with the exception of, in the case of Suffolk Investment, LLC, is Condition D deleting the rental housing restriction, which essentially said rental housing would be provided for 20 years, and then for Puaa Investment's, it was Condition Y, which deleted the condition relating to a housing requirement tied to commercial construction, essentially saying that a certain portion of housing would need to be completed prior to receiving occupancy for any of the commercial portion. With the exception of those, the other conditions that are being requested to amend are essentially the same. The applicants' reasons for the requests are, according to the applicant, one of the reasons for not completing the projects within a timely manner is that due to the global economic meltdown that occurred over a decade ago, securing the required financing to initiate and complete the project as represented was too difficult to obtain, and thus they decided to prioritize exploring alternative uses of the properties and exploring sources for construction financing. The applicant believes that the current economic outlook is amenable, however time is still needed for the applicant to, applicants to address the various conditions of approval, to incorporate and finalize plans, and to secure the required financing. According to the applicants, they have worked on compliance for several conditions, including the conveyance of a five-acre school site for a future school as 3 EXHIBIT D required by the ordinances, but ultimately did not get approved, as they were tied to infrastructure requirements that never took place. Lastly, although there has been no physical construction that's occurred on the properties, the applicant states that they've expended a considerable amount of soft funds, and these include nearly a million dollar spent for more detailed land use planning in the preparation of infrastructure construction plans for the projects. The zoning for the subject properties are as follows: For the Puaa Development parcel, it's a Neighborhood Commercial; and for the Suffolk parcel, it's Multi-Family Residential. Again, for reference, we've got Queen Ka`ahumanu Highway running north-south through the slide and Kuakini running north-south through the slide makai of the subject properties. Other zoning in the area is consistent with Residential zoning, some additional Multiple-Family Residential here to the north, the Kahakai Estates Subdivision is Single-Family Residential, and then mauka we've got the Pualani Estates Subdivision, also Single-Family Residential, with some Commercial as well in the area. The other adjacent properties makai are agriculturally zoned as well. The State Land Use Boundary designations for the subject parcels are Urban. In conjunction with the Change of Zones ordinances that were granted in 2005, the applicants secured State Land Use Boundary amendments for each of the subject parcels, as each of the parcels was under 15 acres. So the other State Land Use designations in the area are Urban to be consistent with the residential zoning, and then, that's in red, and then Agricultural in green surrounding the area. The General Plan Land Use Pattern Allocation Guide Map designation for the majority of the subject properties is Urban Expansion in the thatched design. There is a portion of the Puaa Development parcel that is within Low Density Urban. Medium Density Urban is here to the north, consistent with the Multiple-Family Residential zoning designation. The Kona Community Development Plan designates this area within the Kona Urban Area, which is indicated by this red line surrounding the properties, as well as the Kahului-Puapua`a Village Neighborhood Transit-Oriented Development circle is encompassing the area for both of the subject properties. Here is an aerial photograph of the subject properties. Again, Queen Ka`ahumanu Highway running generally north-south through the slide, Kuakini Highway here, and you can see the other residential subdivisions that I mentioned previously. The property is primarily vacant at this point. There have been some improvements, including a paved roadway that comes from Queen Ka`ahumanu Highway and runs the length of the properties down to Kuakini Highway that's consistent with a sewer easement as required by a subdivision, I believe. Here is the applicant's site plan. Again, this was shown, submitted to us as the Pualani Makai Master Planned Community and encompasses both properties, with the Puaa Development property here to the north—you can see the proposed area of the commercial activity, as well as some multiple-family residential designation, pardon me, developments—and then further makai, you see the 226-unit multiple-family residential development being proposed for the Suffolk property. It's showing a proposal for two accesses from the highway, one here to the 4 EXHIBIT D west and then one here to the east, and this is going to be a spine road that connects Kuakini to Queen Ka`ahumanu Highway. Also showing here are some archaeological sites that were identified in an archaeological inventory survey approved for the subject development. Here are some site photos. Such a large land area, difficult to get anything really of worth to take a photo of, these are just photos from Kuakini Highway looking toward Kailua-Kona, and here on the top right is a view of the intersection at the Kahakai Estates Subdivision. Bottom left is a view of Queen Ka`ahumanu Highway looking toward Kailua-Kona. This is at Puapua`anui Street with the subject property on the right, and here is a view looking the other direction with the subject property on the left hand side. The Planning Director is recommending an unfavorable recommendation be forwarded to the Hawaii County Council for both ordinances for the following reasons: 1) The proposed requests do not conform with the goals, objectives, and actions of the Kona Community Development Plan; 2) The proposed request does not conform to the goals, policies, and courses of action for the Land Use—Commercial Development& Land Use—Multiple-Family elements of the General Plan; 3) Previous segmentation of this area in securing planning entitlements was inconsistent with State Law; and, finally, the proposed request will not result in a more appropriate land use pattern that will further the public necessity and convenience and the general welfare. I'll go into a little bit more detail for each of these reasons. The first is non-conformance with the Kona Community Development Plan. The Kona Community Development Plan was adopted in 2008, about three years after the zoning for the subject properties was approved. As you know, when we look at amendments to ordinances or permits, we have to look at the existing plans of the time, so whereas prior, when they got their zoning, the CDP wasn't in place, it was now, so we looked at that in analyzing the request. The subject properties are situated within the middle of the Kahului-Puapua`a Village TOD, which, according to the Plan, are general locations for these areas but are then secured by Project District. Within the Kona Urban Area, compact, walkable, mixed-use village development is preferred in the TOD. This is something the Plan calls for that indicates that, that indicates an actual development preference for those transit-oriented developments that have a more dense walkable commercial core surrounded by a secondary more residential area and then a greenbelt area surrounding that. The CDP also identified a mechanism to achieve this preferred development pattern in the TOD, as it allows, as the Project District allows flexibility in uses and densities for, and all developed under a master plan. So, basically, under the existing single district zoning, Multiple-Family and Neighborhood Commercial, because of use requirements and density requirements and the like under those existing zonings, the preferred development pattern cannot be achieved through the existing single-district zoning. The applicant has suggested conditions of approval that could further the TOD concept, but the Director is not inclined to create a new development process through separate zoning ordinances in the area but prefers to use the existing community-vetted master planning process recommended in the CDP. The applicant has represented that a minimum 50-acre land area that's required for Project District cannot be met because each of these properties are under 15 acres. However, we believe they can be met by consolidating the surrounding properties that are under joined ownership or management, which is about 61 acres in the area. This is Planning Department Exhibit No. 4 just showing the ownership of the parcels in the area; this is a subdivision map that was, the 5 EXHIBIT D subdivision was granted in 2004 that created five lots, four of which were just under 14[sic] acres and then about a two-acre road lot here by Queen Ka`ahumanu Highway. Each of these properties, with the exception of the Suffolk property, is owned by Puaa Development. The Suffolk Investment property, according to DCCA records,their only managing member is Puaa Development, so there is a connection there. So we believe there will be a possibility of going through the Project District with sufficient land area. The proposed request does not conform to the goals, policies, and courses of action of the Land Use—Commercial Development& Land Use—Multiple-Family elements of the General Plan. The proposed time extension and amendments do not comply with the General Plan policies around controls force curbing speculation. The first one is for the Land Use—Commercial Development section that states, "Controls to prevent speculative practices on commercially zoned lands may be established." And under the Land Use—Multiple-Family section, it states, "To assure the use of multiple residential zoned areas and to curb speculation and resale of undeveloped lots only, the County may impose incremental and conditional zoning, which shall be based on performance requirements." So for both ordinances, construction was supposed to have been completed within five years by 2010, if, and 2015, if an administrative time extension has been requested. As we were doing our research on this, we were unable to find evidence of administrative time extension for completion of construction. The applicant informed, the applicants' representative informed me this morning that there were in fact those admin time extensions granted, and, up to August of 2015, and if he has that information, he can share with you. Even so, the applicants waited over four years to attempt to revive their stale ordinances and is currently doing so now to either sell the property or secure a development partner. The applicant is requesting a time extension to commence construction within ten years and complete within 20, so the actual request is for commencing construction within five and to complete within ten; however, they are also asking for the addition of the administrative time extension condition to be allowed, which would essentially give them, if granted, ten years to start, 20 years to finish. The applicants have not demonstrated to the Director's satisfaction that they have a plan to complete construction in their requested time frames, nor have they demonstrated any recent efforts to comply with numerous conditions of approval. We met with the applicants' representative early on in the process and let them know that we were leaning toward an unfavorable recommendation and asked them to provide us with a detailed construction schedule outlining how they could meet the requirements of the ordinances or what they are proposing within the time frames designated. What they provided us unfortunately was just the name of a possible development partner from the mainland. So based on that information, we don't believe they have demonstrated that they can get this done. Secondly, within the last 15 years, the applicant has had an opportunity to comply with other conditions of approval, other studies, archaeological, sewer studies and other types of, water improvements and the like, and has not done so. Previous segmentation of this area in securing planning entitlements is inconsistent with State Law. As we mentioned before, Subdivision 7814 was approved in 2004 to create a five-lot subdivision, in which four or the lots resulted in an area just under 15 acres in size. In 2005, after the applicants bought the properties, both Puaa Development and Suffolk Investment applied for and received approval for State Land Use Boundary amendments from Agricultural to Urban designation for their respective properties. At the time of processing these applications, 6 EXHIBIT D the applicants represented that they were separate entities and under 15 acres; therefore, they were processed at the County Council and not the State Land Use Commission. The Land Use Commission commented that they had strong objections to the manner in which the boundary amendments were being processed. Under HRS 205-3.1, Amendments to District Boundaries, they believed that both the Village Center, Puaa, and rental housing project were part of the same Pualani Makai master planned community, which is consistent with the site plan that they provided to us today, or for these applications, and that permitting was deliberately incrementalized to evade the jurisdiction of the Land Use Commission. Although the original 2005 boundary amendments were approved in an incrementalized manner, in order to implement the TOD concept and Project District zoning recommended by the Kona Community Development Plan, the applicant will be required to seek a State Land Use Boundary Amendment from the Land Use Commission from Agricultural to Urban district for the surrounding properties under joint ownership. And then, finally, the proposed request will not result in a more appropriate land use pattern that will further the public necessity and convenience and the general welfare. Based on everything that we've mentioned prior, the Director feels that approving the requested amendments and retaining the existing zoning would no longer result in an appropriate land use pattern that will further the public necessity and convenience and the general welfare. As an alternative, the Director recommends the applicants pursue a State Land Use Boundary Amendment for the remaining adjacent properties and submit a Change of Zone to a Project District for the approximately 60-acre area to establish the Kahului-Puapua`a Village Neighborhood Transit-Oriented Development as recommended by the Kona CDP. So, based on all of that,the Director is recommending that we,the Commission forward an unfavorable recommendation to the County Council for amendments to the rezone ordinance No. 05-113 and the rezone ordinance 05-115. Since the information was sent to you, today we received two pieces of information, three pieces of information from the applicants' representative. We handed those out to you earlier. In the absence of a favorable recommendation from the Department, the applicants themselves offered a favorable recommendation for the Commission to consider sending up, should you decide you want to go with a favorable recommendation. Also, there was a set of plans and other information that the applicant is desiring to walk you through as part of their presentation. With that, I'm happy to answer any questions that the Commission may have. Thank you. CARR SMITH: I have a question. Whose documents are these? KAY: This was handed to us, again, by the applicants' representative CARR SMITH: These are the applicants' documents. KAY: Sidney Fuke. Correct, yeah. CARR SMITH: Okay. I couldn't tell. 7 EXHIBIT D KAY: Sorry. CARR SMITH: All right. Mr. Van Pernis, do you have a question? VAN PERNIS: Yes, sorry, I have several questions, because I'm concerned the County has been deceived in the diction to what it's already analyzed. This was approved in 2004 originally, right? KAY: The application came in 2004, the ordinances were approved in August 2005. VAN PERNIS: All right, so it has been approximately 15 years that they have not met the requirements they are now seeking to waive. Is that right? KAY: That's correct. So, with the grated administrative time extension for the time conditions around construction and payment of water commitments, they would have had, and other time conditions, they would have had until 2010, pardon me, 2015, to come in and complete construction and satisfy those time requirements. They didn't come in to apply for the amendments until late last year. VAN PERNIS: And the County has no record of the time extension requests. KAY: We were unable to find time extension requests to complete construction for the Suffolk rezone ordinance. There was a time extension request for the school site condition; however, again, according to the applicant, they have those time extension letters here that they can provide to you. VAN PERNIS: Now they are seeking up to another 20 years? KAY: That's correct. So they are asking for a five-year time extension to commence construction and then a ten-year from the date of the amended ordinance to complete construction; however, they are also asking for the standard administrative time extension condition that would allow them up to an additional five years to start and an additional ten years to complete. VAN PERNIS: So they are asking for a total of possible 55 years from the original application to, without any review or additional conditions imposed. KAY: In their applications, they recommended several amendments to conditions of approval, as well as indicated that they would comply with others that they weren't asking for amendments to. So if the Director had recommended a favorable recommendation, we would have included conditions of approval; we would have done our analysis of their requests and either agreed with them or made our own recommendations for conditions of approval based on agency comments, public testimony and the like. Because we have sent up an unfavorable recommendation, we did not include any conditions of approval. 8 EXHIBIT D VAN PERNIS: When they originally obtained their approval, they got valuable zoning for this and the master planned area, and they are now, in exchange for the promises, they are now asking to waive, right? KAY: There are a few conditions of approval that they are asking to waive that were based on representations made back then around affordable housing, timing of housing relative to commercial development and the like, and have provided their justification for that in their application. VAN PERNIS: And, have they offered to give anything back from the valuable rezoning they obtained in 2004 and 2005? KAY: Not that we've seen. Most of the conditions have been either asking for cleaning up conditions that have already been complied with or asking for relief from conditions of approval that were required them to do something, in addition to what's already on the books in terms of County requirements. VAN PERNIS: So they get the valuable upzoning, but there is no, their promises are not kept, and they are looking to eliminate many of them. KAY: I will let the applicant address that. CARR SMITH: Any other questions? VAN PERNIS: Yes, I have several more. Is Mr. Schuler behind all of this development in the area, these LLCs and Pualani Makai, generally speaking? CARR SMITH: Let's let the applicant VAN PERNIS: Well, I'm asking if the County investigated and tied these applications in with those of Pualani Makai. KAY: So, Mr. Schuler is the only managing member that DCCA provided for Puaa Development, and as we stated before, Puaa Development is the only managing member for Suffolk Investment, so there does seem to be a connection. VAN PERNIS: And in regards to the five-acre school lot, has the Planning Department investigated whether or not Holualoa School, which is in the district, has any space for additional students? KAY: It's our understanding that a tentative subdivision approval was granted for a five-acre school site, but again, according to our background report, because the development of the school was tied to infrastructure improvements that have not taken place yet,that site was abandoned essentially, and the school went further makai of the project site. VAN PERNIS: Where is another school? 9 EXHIBIT D KAY: Across the street, is it about, adjacent to Pualani Estates Subdivision, yeah. And that was the CARR SMITH: Yes, we had that case. KAY: Okay, yeah. CARR SMITH: Okay, can we move along? VAN PERNIS: And CARR SMITH: Or do you have any other topics? VAN PERNIS: Also, are they still proposing 500 parking stalls to go with their reduced commercial area? KAY: That's what the application said, and, again, I can let the applicant kind of address that. VAN PERNIS: Isn't this area the worst traffic congestion on this side of the island? KAY: I don't know how to address that. There was a traffic impact analysis report that was submitted as part of the application that addressed traffic performance in the area, as well as proposed mitigation based on traffic performance. VAN PERNIS: Did you check that traffic report? KAY: It was accepted as part of the application. We have not received any final comments from Department of Transportation or the Department of Public Works. VAN PERNIS: But you've received some letters, correct? KAY: Yes, we've got a comment letter from the Department of Public Works relative to the TIAR. VAN PERNIS: And some letters from residents of the area? KAY: I, we have not seen any letters that I'm aware of around traffic issues, or around anything actually; we haven't received any written comments. VAN PERNIS: I thought you just handed some. KAY: Okay, I'm sorry, to this point—no, I'm sorry, the stuff that came out to you today was for a different agenda item. The public comment today was for a different agenda item. VAN PERNIS: And, is there any support for this project from anyone other than the applicant? 10 EXHIBIT D KAY: I don't know the answer to that. We didn't receive any letters in support as well. The Planning Department, the Director is making a recommendation for unfavorable for the reasons stated prior. VAN PERNIS: Thank you. KAY: Thank you. CARR SMITH: Questions from other Commissioners? [None.] Okay, very good, thank you. Applicant, come forward, please. Good morning. Please raise your right hands. Do you swear or affirm to tell the truth before the Leeward Planning Commission? REPRESENTATIVES: I do. CARR SMITH: Thank you. One at a time, can you please state your name and your area of residence and your role here, please? FUKE: Sure. Good morning, Madam Chair, Members of the Commission. My name is Sidney Fuke. I'm a planning consultant. My address is in Hilo, Hawaii. I've been retained by the applicants to assist with the processing of these applications. COOK: Good morning, I'm Brian Cook. I've lived here in Kona for the last 32 years. VAN BERGEN: Good morning. Ken Van Bergen, Kailua-Kona, I'm here representing Spring Capital Group who is looking to acquire an interest in this, in these projects to complete development. I also have been here for 55 years, I might add. CARR SMITH: Go ahead. FUKE: Sure,thank you very much, Madam Chair. In the interest of time, as the staff had indicated, you know, we are just kind of consolidating both applications in the sense that there's a lot of similar infrastructure obligations, the land use relationship, there is a symbiotic relationship. I'd like to kind of like do the presentation more from a chronological perspective to kind of help put the projects in better light, I guess. Essentially, you know, who are the developers? Essentially, we had Puaa Development. It's a Hawaii-based LLC, and then the authorization is Mr. Brian Cook. Mr. Cook has done like a number of projects, smaller projects here on this island, most notably, the Malulani Gardens, you know, it's a subdivision, as well as a housing project as well. Suffolk Investment, it's a Denver-based LLC. The principal on that is James Schuler. Schuler, as some of you may know, is well-known in the housing industry, Schuler Homes. And in 2002 he kind of collaborated and basically merged with D.R. Horton, one of the larger home builders here in the State of Hawaii. Schuler was, you know, D.R. Horton and Schuler, was responsible for a lot of the homes that were constructed at the Pualani Subdivision, which is situated generally mauka of the subject properties. 11 EXHIBIT D So back in late 2004 and 2005, Puaa and Suffolk had nothing to do with the creation of the subdivision. It was already there. It was created by a company called Westpro. And then they acquired, Puaa acquired the properties. So Puaa came in with this idea, largely Brian's idea, to create like a shopping complex in that particular area. Suffolk, because of Schuler's interest in housing, also wanted to do a housing project. So basically, they collaborated. They had like this architect designer, local architect, his name is Michael Riehm, to kind of like do a, you know, do a master plan for those two projects. So Puaa's plan way back when, as the staff had indicated, called for, you know, a shopping complex, a 95,000-square foot shopping complex. He also had proposed a 100-plus-or-minus-unit affordable housing, not affordable, housing project on this site. As far as the access, if I can now direct you to Figure 1, so Figure 1 basically shows what the original project was for Puaa. You can see the 19,000-square foot subdivision, excuse me, the village commercial area. There was a gas station, and at the Puapua`anui intersection that was going to be signalized. And there was going to be like a frontage road eventually leading up to the south end. At the south end it would be like a right-in-right-out kind of movements. These two intersections at the State highway have already been approved in terms of access location by the State Department of Transportation. The roadway configuration, as you can see in the Figure 1, you know, it's exactly as how the land was ultimately subdivided, and that right-of-way is a 60-foot wide right-of-way that would eventually connect Kuakini Highway to the Queen Ka`ahumanu Highway extension. Suffolk's plan, as you can see in that Figure 2, was essentially to try to create a 250-unit affordable rental housing, and this was going to be exclusively a rental housing project in that they were going to have a small little one-plus-or-minus-acre private passive park area. Of interest, however, what I wanted to point out also, it's found on Figures 1 and 2, you can see those areas that's outside of the subject property; these are like the archaeological preserved areas that are not within the subject area but there was an approved archaeological inventory survey done, and when Mr. Riehm did the overall master plan, he used that as a development constrain to identify where these features are, you know, kind of like a no-build zone. But this is just more like for your information. Now, back in 2005 the Planning Director did recommend that both of these projects be favorably considered. And what they did recommend at that time was that these properties already had like 50 affordable housing credit assigned to the site, so the Director's recommendation was saying, look, you know, housing is important, you are not going to use any of the, any of your existing credit to address the affordable credit requirements, you know, for this project, and also no in-lieu fee, and whatever obligation you have for housing, it has to be built on site. So the applicants, both applicants said, yes, we will comply with that requirement. So the County Council finally approved both zone change in August of 2005. When the Council considered their request, they said like, oh, maybe you guys want to have like a five-acre, you know, you want to set aside an area for school since you guys own the property on the makai side. And so Mr. Cook at that time said, fine, we will dedicate a five-acre site for a school site. But what the Council's condition required was that, okay, before it gets officially dedicated to 12 EXHIBIT D any school, you have to go out into the community and you check with the DOE, you check with the community and you ask them, do you want to have a school over here, and if they come back and say like yes we want, then fine, you know, let's go ahead and implement that concept. So we checked with the DOE, and the Department of Education said Kahakai Elementary School is right down the street, we don't need to have like another school. And in the meantime, Innovations Charter School approached Brian and said that how about like giving the land to us. So we went to the Council and the Council, this is in 2006, we went back to the County Council, and the County Council at that point in time said, fine, Innovations is a suitable tenant, you know, for this area. So when the Council had approved the zone change condition calling for a five-acre school site on the makai side of this project,they had also required that the developer also provide the required infrastructure servicing the site the water, sewer line and roadway system. And it also required, in addition to that, that you construct up to 600,000 dollars of improvement on that site. So at that time, this is now, bearing in mind, you know, you are in 2005-2006, so the economy was good, so they said, fine, you know, we'll do that. There was a land conveyance agreement between the developers and the Innovations School, and that was considered back in 2006 by the County Council. Well, the conveyance never occurred, as the staff had indicated, you know, because you had to get the land subdivided and in conjunction with the land getting subdivided, you have to put in all of this infrastructure, you know, the 60-foot wide right-of-way, the roadway, the utility, so on and so forth, so it was never conveyed. So in the meantime, Innovations said, fine, you know,they moved up the street. Then, I think you are back again to the year, I guess September 10, 2008. That's when the Kona Community Development Plan was adopted. And when the Kona Community Development Plan was adopted—and I just kind of make reference to Figure 3, and it was shown on the staff's presentation map—if you look at like where the site is, this is really like the bull's eye, unmistakable that this is a TOD site. And they even had that small little transit hub identified, and the roadway alignment that takes you from Kuakini Highway to the Queen Ka`ahumanu Highway extension, that's exactly as how the land is, you know, was subdivided. So, the premise of the CDP, they took the existing zoning to heart, and then they created this TOD area, this transit hub area. We also have to understand that, you know, after Puaa and Suffolk had acquired the property, you know, in 2006-2007, guess what happened in 2008; we had the biggest depression, the recessions, since the Great Depression. Nothing could have happened. You know, like so it affected the demand, it affected the financeability of the project. But, in spite of all of that, what did these guys do? They continued with a lot of the small what you call like the soft planning cost; they did—and I pointed out to, like, your Figure 4-they worked with the State, they got the culvert plans approved, they developed these drainage plans, they did the interior roadway, if you look at Figure 5. Ifsomebody was asking about where the location of the school was going to be—if you look at the second page of Page 5, you can see where this new road was coming down where the project was all in, and that was going to be the location of the school site. And look at Figure 6, the flood control, you know, they did all of these plans. They paid like in excess of 1.3 million dollars in real property taxes. Then I take you, now we are up to like 2010-2011. So in 2011, understandably, you know, nothing happened. So they asked for a time extension, an administrative time extension, and the planning director at that time reviewed the General Plan—and if you look at the conditions under which any time extension, whether it's an administrative or County Council-approved time 13 EXHIBIT D extension, you have to assure that they are in conformance to the General Plan. So when the time extension was granted in September of 2011, the director at that time said that okay, I'll grant you the time extension, you know, based on the fact that it's consistent with the General Plan. Now like, sure, from 2015, 2016, 2017 they are all getting older. It doesn't make sense to apply for any time extension, if you don't have someone that's really ready, willing and able to do the development. So in 2018-2019, on comes Spring Capital. They said that,they raised their hand, they said like we are willing to do it, but you need to get a time extension for us, because without the entitlements, we can't do it. Ken here is representing the potential developer, Spring Capital Group, and if you want, you can ask him questions about like who exactly is Spring Capital Group. So I turn you now to Figure 8, which is the current master plan. So after they were approached, Brian, Suffolk and Puaa were approached by Spring Capital as a potential developer, they went back to the drawing board, had Michael Riehm kind of like take a look at it, and said how can we massage what was previously approved and expired, to do a project that generally comports to what the CDP is saying, a TOD type of concept. So they said one of the first things you had to do is you had to reduce your commercial area because it's too big; you've got to create more like a walkable area. So that's why the commercial area was reduced from 21, well, was reduced by over 20,000 square feet. And they said besides you have to put residential uses close to commercial area. So if you look at this revised master plan, you'll see the residential activities immediately makai of where the commercial area is going to go. You also see this kind of road connection or pedestrian connection between the north end and the south end of the Puaa project. And if you can find that small little bus transit area, that's also reflected on the plan. So to the extent, you know, that they could, the developer tried to massage the project, revised the project, so that it can better address the TOD concept of the CDP. And with this, now they are ready to apply for a time extension, because we can go before this Planning Commission, we can go before the County Council, and say, yes, we don't have a bogus developer, we have somebody real that's ready and willing to step up. So, Figures 9 and 10, basically gives you an illustration of like what is so-called this pedestrian oriented type of project. The Director is recommending, as the staff had indicated, that, you know, there's a number of reasons why the project should be denied. One is that it's a speculative entitlement. You know, he recommends denial because the request would support speculative entitlement for the purpose of resale. So from the owner's standpoint, we say, okay, aside from the General Plan policies, which generally talk about speculative practices may be established, there is no specific County ordinance or regulation that prohibits the sale of real estate or any business for financial gain. I mean like just, if that's the case, look at the one that you guys just recently recommended for approval, BNP; they clearly said that they were going to sell the property, if they can get the downzoning. What's the difference? If, if Puaa and Suffolk were going to speculate, then I would have to ask myself, like, why didn't they sell the property in 2006 and 2007 before the, you know, the recession came out in 2008? But, no, they continued to pay the real property taxes over 1.3 million dollars, they spent nearly a million dollars in construction cost, I mean the soft cost in preparing all of these plans, and finally, they found a partner. They are happy now. So to me, it clearly shows that they were not interested in flipping the property. If they were 14 EXHIBIT D interested in flipping the property, they would have done that way back when, not 15 years later. So I think the operative question is like why the delay, why all this delay. I mentioned some things already about, you know, they had a global recession in 2008, you know,people who are involved directly or indirectly in the real estate or any development field would understand that if you are the banker and you are trying to seek, you want to do a project and the bank thinks that, oh, you know what,this is the field of dream, the bank is not going to lend you the money, you know, because the field of dream is that don't worry, people will come; it doesn't work that way. Then, even right now, you know, even though he has Spring Group coming in, we know what happened to the economy when you had things like the SARS back in the mid-2000, and now we've got the coronavirus, and big firms are beginning to feel like the effects of that, you know, from a global sense. Nobody can predict what's going to happen globally. But you need to have some people at least willing to take a chance. Spring Group right now is willing to take that chance. The Director is saying that like you've got to recommend denial because the request is not consistent with the General Plan. So I would say like, well, you know, if you look at the General Plan and you look at the Charter, and I hate to use a religious metaphor, but the General Plan is the so-called the bible. The Charter doesn't talk anything about the CDPs. The CDPs are mentioned in the General Plan itself, the Charter only mentions the General Plan. So the hierarchy of planning documents, you really have to look at the General Plan. And the General Plan, Sections 15.1, states that the CDPs are designed to translate the broad General Plan statements to specific actions as they apply to specific geographical areas. Essentially, the General Plan is controlling. If there is any conflicts between the General Plan and the CDP, they say that the General Plan prevails. So, then, you know, in addition to that, I would say like given that, then if the General Plan, if the time extension was considered in 2011, and if the planning director at that time had looked at the same document, which is the General Plan was approved in 2005 the same document we have today, the planning director in 2011 said that, you know, granting the time extension is fine because you are still consistent with the General Plan. So I ask: Why today, we have the same General Plan document, and you are saying it's not consistent. So I guess like if you look at it, the only regulatory change that has occurred since 2010 to where we are right now, are the amendments to the Kona CDP, which happened in 2019. And the amendments to the CDP made, tried to make the CDP more of a plan than a regulatory document. And in so doing, you know, they tried to make it a little more flexible and less rigid, and so they used the terms like "guidelines" or"encourage." So from the applicant's standpoint, we would say like there's no substantive basis to conclude that the requests are inconsistent with the General Plan. Now, if you look at the CDP itself—the Director recommends that you deny because he wants the project to go through a Project District rezoning application, because the Project District fixes the location of the TOD, allows flexibility in land use, density, design, so on and so forth. But it requires a minimum area of 50 acres, and it requires at least two-plus years, plus considerable funds, to secure State Land Use Commission approval, County Council approval, master plan approval by the Kona Design Center and Planning Director, over two years. Now, if you look at the TOD process and this site, the Transit-Oriented site, the CDP clearly, in my 15 EXHIBIT D mind, allows other processing options aside from just going through the Project District. If you look at the, you know, the figure that shows about where the TODs are established, they show all of these property lines; these property lines, it's rare, you are going to find like one property that has more than 50 acres in size. So to be able to effectuate a TOD, or, you know, through a Project District, you have to get, you have to assemble all of these properties, get all of these different property owners together, and it becomes an impossible feat. So only two developers that I know of, and there may be others, I know of two developers that are going through this TOD process, and it's been a long and laborious process. One is Palamanui and the other one is Makalapua, and which is, and they are owned by, Makalapua is Lili`uokalani Trust, and Palamanui, we know Palamanui. But land establish becomes an issue. And so what does the CDP say? It says like, you know, many parcels do not meet 50 acres, so Section 4.2.2 states that the establishment of a TOD should be encouraged, as long as the proposed rezoning conforms to the CDP in terms of general location and concept, the legislative rezoning should be expedited. So I ask you: Look at the map, isn't this like the TOD area? Even if you look at the Director's recommendation on Page 6 of his recommendation, he says, "the CDP has already identified the property and surrounding areas as a Neighborhood TOD, so this does not need to be done through conditions of[approval of] individual rezone ordinances." So everybody is saying, the map is saying, the Director is saying, this is a TOD area. So why then do we necessarily need to go through, you know, project like this, necessarily need to go through a Project District. You can have it incrementally implemented. And if you go, if you look at other TODs, you are going to have no other option but to have TODs established only incrementally just purely based on the parcels. So, in summary, from a locational infrastructure and land use perspective, it's clear that the area is de facto a Neighborhood TOD. Secondly, the CDP does not mandate a TOD to be created only through the Project District route and in one application. But you can have multiple applications, and you can have like individual rezoning. The other thing that the Director,the reason the Director recommended denial was that it can't, it's a segmentation review because we bypassed the State Land Use Commission, and the applicants have interest in other parcels to make up the 50-acre, you know, TOD requirement. But as I mentioned earlier, first of all, these guys had no responsibility in creating these 14-acre lots subdivision; they bought the property as is. It was done by Westpro. They just bought the property. Secondly, it's that like for them now engaging other properties and putting it all into one package now, you know, it's not economically feasible. It means that when you have like a 50-plus acre property and you are going to do a Project District, the only person that can do it, the only type of business that can do it, would have to be a large developer; you cannot have smaller developers like Puaa or Suffolk to be able to do it. Even this project itself, they needed to get a strong backing like Spring Capitals, you know, to kind of come in. So if you increase the size of the project, you have a greater potential for these guys, you know, out of necessity now, having to spin off portions of the property. And, you know, the State Land Use Commission, for those of you who had directly or indirectly had the experience of going before the State Land Use Commission, have understanding that how time consuming and costly it can get. But more than, more that the time consuming and costly, you know the cost aspect, I think I would have to prevail upon like this body over here to look at yourselves and you ask yourself like who is a better decision maker for land use matters like this? Should it be the State or should it be the County? If you have the State, you are lucky if you are going to have two representatives of, you know, from this island. It's a nine-member commission. So I would 16 EXHIBIT D venture to say that the seven-member commission, the nine Council members that we have, are in a better position to understand what the land use and community's needs are. If you take it up to the Land Use Commission hypothetically, you go to the Land Use Commission, you have this beautiful TOD plan, and for some strange reason, the Land Use Commission denies it, what do you do? You can't even move. And they are like, bottom line is that I think that I would rather have this body, the County Council, make important land use community-related decisions at this level. So bottom—you know, this is my conclusion, and I'll shut upI think here you have now, here you have the applicants, you know, Mr. Cook is like 80-plus years, and, you know,they don't have too long to be able to do like another 15-year time extension or whatever. And you have like Spring Capital, you know, very strong partner,to come in and to be able to kind of finish up, you know, to do a project that will do, that will provide much commercial services to an area, provide much needed affordable housing, not only in terms of for-sale but rental, rental housing, and they'll be providing much needed road connectivity—everybody talks about the traffic and all that, you need to have connectivitya new road coming in, traffic lights at the Puapua`a intersection, and they want to do this all in an area that the CDP clearly calls for and everybody acknowledges as a TOD area. There are actually two paths to achieve these: One is the path that the Department is recommending, that you deny this, force the developer to go to the State Land Use Commission, spend all that amount of money, and not knowing what your outcome is going to go; and the other option is take the path that we are recommending right now, it's a path that you can make a decision right here, it's less costly, less time consuming, and you are reserving the decision, you know, at this level here. Now, I, because the staff did not provide a proposed recommendation, I did pass out proposed recommendation for both the Puaa and the Suffolk one generally along, but, you know, along the line of what I just represented, stated. However, what I did do was I used the recommendation that the planning director back in 2005 did to justify the initial rezoning and made a few tweaks to that,particularly, the tweaks relating to the Community Development Plan. So I'm lost for wordsI guess at this point in time, you know, Madam Chair and Members of the Commission, if there are questions that you want to direct of me or Mr. Cook or Mr. Van Bergen, please do feel free to do so. CARR SMITH: Thank you very much. Ken, could you tell us a bit about Spring Capital, please? VAN BERGEN: Sure. So prior to coming to work for the County—am I on? Prior to coming to work for the County in 2009, I was the development manager at Maryl Group, and Spring was one of our partners. So I've known this Group for over 15 years. They've been actively developing in Hawaii for about 20. Currently, they are developing the storage units on Kamanu Street above Costco. That's one of their local projects. They were, like a lot of people, hurt pretty bad in 2008, you know, pretty leveraged up some of the resort developments, but they chose to stay in Hawaii and keep investing, and are currently doing so and looking for other projects. And so when this opportunity came to them, they were excited about it because it's kind of right up what they do. I believe you guys were given kind of a syllabus of our projects 17 EXHIBIT D from Spring Capital. We are notoh, I'm sorry, well, can I pass these out or do you want us to do these? Basically, it's just a list of developments; it's kind of examples of what they've done throughout the country, most in the West Coast, California, Oregon, but also North Dakota, Oklahoma, Texas and other areas. They are a very seasoned developer. They are well funded. When they, you know, folks on a project, it gets done. So unlike a lot of folks that come to Hawaii looking to do something and fall short, because they don't understand the local construction or, you know, how things work. And this is real, it's a real project, you know, we are committed to working with the current owners to develop this project. But it's hinged on this zoning getting approved, because without the zoning, there is really nothing to develop. It'll go back to Ag land and sit there for however long. I'm happy to answer any questions you have. I think they are, projects kind of speak to themselves. CARR SMITH: Thank you. Questions, Commissioners? VAN PERNIS: I have a question CARR SMITH: Mr. Van Pernis. VAN PERNIS: of this person and also Mr. Fuke and also Mr. Cook. Should I wait until Mr. Cook testifies? CARR SMITH: Mr. Cook, were you planning on testifying? COOK: Yes, I can. CARR SMITH: All right, go ahead, please. COOK: Basically, when the property was acquired back in 2004, we started working with Michael Riehm to lay out a preliminary master plan to develop the project. And one of the things that we found out is that the 100-year floodplain ran right through the property. And we saw that the development of Pualani Estates on the mauka side of the highway, they had, with their development, they had to construct a gunite concrete channel right at the entry to Pualani Estates where the traffic light is. As you enter, on the left side, on the north side, there's a gunite channel there, and then the gunite channel goes down almost to the intersection entering a multi- throat box culvert that goes across the entry road over to where the little park is there. And then the State, when they built the highway, they put an eight-foot diameter concrete pipe under the highway to get the water at the low point, and then it would go over into our property on the makai side of the highway. The water has never even got to enter that, with all the rains through all the years; the water has never got in to the gunite channel. And the reason is the water did not run as the old FEMA map showed it would run. And so what we had to do when we acquired the property back in 2004 and went in to get the property zoned, we had our civil engineers, we had to go and work with FEMA and the State, and we had to do what is called a CLOMR where as you go in and you had, we had to take and do new contours all the way up. So on the north side of Hualalai Road all the way up almost to Hienaloli Street, we had two-foot contours 18 EXHIBIT D coming all the way down showing the actual flow of the floodplain. And as it came down and crossed over Hualalai Road, it came in to two properties that we owned right on the highway, two 14-acre parcels. And basically, we had to come up with a new design to how to get to all the water and get it into the gunite channel, and then as it got to the highway, we had to design a culvert crossing. And when the engineers got all the analysis completed, we had to design a culvert crossing for the highway and multi-plate aluminum culvert that's 20-foot wide, 14.5 feet high and 135 feet long,just to get that flow of water under the highway. If the 100-year storm would happen, they said, they indicated that the water would breach over the highway some 400 feet, and probably wipe out the highway. So we had to design that culvert. We then as the property, or as the floodwaters, enter the Pualani Makai project, we designed a concrete U-shape channel, 40-foot wide, and it would, for every 50 to 70 feet, it would drop about four feet, which build a velocity breaker to slow down the flooding waters. And just above Kuakini Highway where the, we designed a large 2.5-acre retention basin, 25-, 30-foot deep to collect the water and had barriers on the drop, and that is to take the water down, percolate down, so, anyway, we designed that, and that takes a couple years to do. It took us almost three years to 2008 to get things done engineering-wise, and we designed all the roadways, all the utilities, for the whole project as it was shown on the original plan. Those costs we spent over 2.5 million dollars on everything to date since we acquired the property. And, by 2008 when we were ready to move forward, we had all of our designs finished, we had the State Highway to sign the plans to build the culvert across the highway, which we were going to pay for, and then unfortunately, the market just crashed on us in 2008, and so we were unable to go forward, and the only thing we've been able to accomplish since then is just patiently waiting. The Community Development Plan came in, and then it, it was so much different; when we had designed it all that, we had spent all that money and had our thing designed, and now then we would have to change everything, and it just didn't make sense to go forward at that time. And, and then thankfully, we were able to get Spring Capital to show an interest to come in. So, you know, when you are developing land as a developer, it's just like, I mean, about every 20 years I go broke as a developer, because any time you develop something, it, you see the land that can take you five to seven years to get it from what you bought to something for the consumer, and the market can be up or can be down. So it's a high-risk business, and,just like farming is, what do we do, if you do make a profit? We put it into the next project. And that's what we've been doing. And, anyway, you know, we tried to do something, we looked what the needs were in the community. This is right in central West Hawaii. A neighborhood shopping center, you've got Kahakai down below, you've got Pualani Estates up above, we had to build a 60-foot wide spine road to connect the two, and we felt like it's an ideal place for a neighborhood shopping center, affordable rental housing project, charter elementary school, and, you know, we were just trying to do something to help our community. And we can't control all the factors that are involved. When the Community Development Plan came out I signed an agreement with Sidney in 2014 to start working on a zoning exchange—and again, and, basically with the Community Development Plan, it, I don't think there have been many developments since that was adopted in 2008. And so we need housing, we need affordable housing, we need rental housing, we need affordable homes, and where better but in central West Hawaii. It would help mitigate not just the drainage problem but the traffic problem, too,because all those people living there, you've 19 EXHIBIT D got Kahakai below and you've got Pualani Estates and even the homes up in Holualoa, can come into that shopping center. Anyway, we are just trying to be part of the community, and I guess that's all I can say for now. Thank you. CARR SMITH: Thank you very much. Questions, Mr. Van Pernis? VAN PERNIS: [Inaudible.] CARR SMITH: Can you use the microphone, please? VAN PERNIS: Mr. Cook, you've referred to "we"throughout your presentation here. Is that Mr. Schuler when you say "we?" COOK: Yes. VAN PERNIS: Mr. Shuler developed this planned community of Pualani Estates, including this property, right? COOK: [Inaudible.] HALL: Use your microphone. COOK: Schuler Homes VAN PERNIS: Well, the entity COOK: was a, Schuler Homes was a division of D.R. Horton. D.R. Horton bought VAN PERNIS: When I COOK: Schuler Homes VAN PERNIS: referred Schuler COOK: in 2002. CARR SMITH: Can, Mr. Van Pernis, please let him answer. Go ahead. COOK: D.R. Horton bought Schuler Homes in February of 2002. Schuler Homes merged into D.R. Horton, made them the largest homebuilder in the nation. Jim Schuler individually and myself were looking at in developing the Pualani Makai property. Jim and I have known each other since 1977. We signed our first joint venture agreement in December of 1977 on Oahu. And Jim is, has been very successful, and when we do projects, he puts up the money and I do the work, and that's been our relationship for 43 years. CARR SMITH: Thank you. 20 EXHIBIT D VAN PERNIS: Mr. Schuler is behind all of these LLCs. And would you have a role? Puaa, Suffolk COOK: Yeah, yes. VAN PERNIS: So you are just a front man for Mr. Schuler. COOK: No, sir. I'm a developer, I'm a land developer. Mr. Schuler was a homebuilder. VAN PERNIS: Have you COOK: And so I go through VAN PERNIS: declare bankruptcy? COOK: I go through the design process in getting a project as far as what we think would be appropriate for certain community. I mean I have my talents, you have yours, and he has his. VAN PERNIS: Mr. Schuler pays for all that. COOK: Yes, I said that he puts up all the money. VAN PERNIS: Okay. And you've declared bankruptcy. COOK: I beg your pardon? VAN PERNIS: You have declared bankruptcy. COOK: I declared bankruptcy in 1976. CARR SMITH: Mr. Van Pernis, please keep your comments COOK: Why so personal? CARR SMITH: —and your questions on topic, if you can, please. VAN PERNIS: I think this is on topic. Mr. Schuler—well, let me switch to Mr. Fuke. Did you represent any Schuler entity in the Pualani development? COOK: I'm sorry, I'm a little hard of hearing. FUKE: I guess, before I respond to that, Madam Chair, I guess like my question is that my understanding is zoning or land use entitlements run with the land, not necessarily with who the individuals are. Now, having said that, I will answer your question; I have done work with D.R. Horton, I have not done any work, I've not done any work directly with Mr. Schuler. 21 EXHIBIT D VAN PERNIS: Mr. Cook, are you still using, twelve years later,the 2008 financial meltdown as an excuse for not developing? COOK: I'm sorry but I'm having a hard time understanding you. VAN PERNIS: I'm sorry. Can you hear me? COOK: Yes, I think so. VAN PERNIS: Are you using the financial meltdown of twelve years ago as an excuse for not developing now? COOK: Have I personally had financial problems? VAN PERNIS: No. Are the limited partnerships who are the applicants using the financial meltdown of twelve years ago as an excuse for the delay? COOK: I'm sorry, I CARR SMITH: I'm not following, either. And is this a part, Mr. Van Pernis, is this a part of the application or is this something else? VITOUSEK: The question I think he is asking is if the development group is using the 2008 financial meltdown as an excuse for not developing now? COOK: It, it's not an excuse, it's a reality. CARR SMITH: Okay, do we have other questions? VAN PERNIS: Yes, I have several more. You admit—well, Mr. Fuke perhaps can answer this question, or you, Mr. Cook you admit that you are in violation of the present ordinances. FUKE: I don't even necessarily consider that violation. I know that, you know, it's one of those kind of like a road-in-limbo's type, you know, you have the zoning, but if you apply for a building permit, then you won't be able to do it. Regrettably, he still has to be paying the real property taxes based upon the zoning, though, at over like, over 100,000 dollars a year. So, but VAN PERNIS: You were supposed to develop by 2015, correct? FUKE: I'm sorry? VAN PERNIS: You are supposed to develop by 2015- 22 EXHIBIT D FUKE: Well, the administrative extension was up until 2015, that is correct. So the request right now is to request for an extension retroactive to that period. VAN PERNIS: What penalty is there for not completing construction by 2015? FUKE: The penalty is that you can't move forward. VAN PERNIS: What are FUKE: You can't, you can't do anything. I don't know if there is any fiscal assessment or whatever have you, you know, unlike other violations like for an SMA or a special, excuse me, building permit, but to me, I think the major penalty is like you can't move. VAN PERNIS: The property has been reclassified from Agriculture to Urban, correct? FUKE: Back in 2005, correct. VAN PERNIS: So the Planning Director can take this property and rezone it or downzone it to Agriculture. FUKE: It would be a separate legislative action to achieve that. VAN PERNIS: Now, all of the things that you are asking to waive here in these applications were promises made by the developer in exchange for the valuable upzoning, right? FUKE: Not all. Some of them was like, you know, for example on the school, that was a concern raised, and so Mr. Cook at that point in time made the concession to say, you know, we'll provide it, you know, recognizing that their intent was to do something for the community, and if the Council at that time felt that a school would be doing something for the community and if it's something that they could live with VAN PERNIS: What about the other conditions, other than the school FUKE: —it's the same thing to have a representation that the 225 or 250, you know, housing project would be exclusively reserved for rental, that was a commitment that they had made, that's a commitment that they continue to make today for the Suffolk property. VAN PERNIS: Is that affordable rental or just rental? FUKE: It's rental—at that time when the Council had approved it, they wanted to stipulate, you know, so many percentage be like at 80 percent or 90 percent or whatever have you—what we are proposing here is that they be kept in rental and let the prevailing housing code prevail and not to have like special legislation. VAN PERNIS: And it may be up to 55 years from 2005 before we see the completion of construction. 23 EXHIBIT D FUKE: I'm sorry? VAN PERNIS: It may be up to 55 years before we see the completion of the construction you are asking for. FUKE: Well, the request right now is to have, you know, beginning like, let's assume beginning 2020 to have like a five-year start construction and a ten-year completion. So, if there is an administrative extension provision considered, you know, favorably by this body and the Council, then yes, you'll be looking at ultimately an additional 20 years to complete construction. VAN PERNIS: And that would be without the developer or the constructors going in front of the public in any way. FUKE: For the administrative extension, correct. VAN PERNIS: And the public could not provide its input. FUKE: But they could ask the Planning Director, I guess. VAN PERNIS: And, have the conditions changed in that area since 2005? FUKE: What kind of conditions? VAN PERNIS: Traffic, for instance. FUKE: And that's the, if you are relating to traffic, and that's why the concurrency provision of the Zoning Code requires that when you go for a time extension and your projected volume is in excess of 50, AM/PM peak hour traffic, you need to have an updated traffic study, so that was done. VAN PERNIS: Do you know how many subdivisions have been completed in the area of Lako Street since 2005? FUKE: Not offhand, I don't have an inventory, no, sir. VAN PERNIS: Do you have any idea at all? A ballpark number FUKE: I don't know how relevant that would be, because it would be a guess on my part and VAN PERNIS: We're careless to avoid there's trouble there. Now, can you answer the question? FUKE: I'm sorry? 24 EXHIBIT D VAN PERNIS: Can you answer that question? FUKE: The specific answer is no, I don't know how many new homes were constructed in that area, no, sir. CARR SMITH: Mr. Van Pernis, are you asking that as it relates to traffic or what, what's the relativity here? VAN PERNIS: I'm asking a question regarding traffic in that area. Are you still proposing 500 stalls, as the staff indicated, for the commercial area? FUKE: Well, the commercial, the number of parking stalls is directly tied into what the Zoning Code says; the Zoning Code says if you have a retail area, then the minimum parking requirement is 1 stall for every 300 square feet. And if you are going to VAN PERNIS: What was the staff said, the original construction of commercial area included 500 parking stalls. The staff then said the amount of commercial area was reduced but did not say whether the number of parking stalls was reduced. Do you know whether it was reduced or not? FUKE: Logic would say that the parking would be, the parking would be reduced, because if you are reducing it by 20,000 square feet, then, you know, mathematically there should have been a reduction by 20,000 divided by 300. I don't know what the number is. VAN PERNIS: So the CARR SMITH: I believe that would be addressed to the planning level as well, not at this rezoning. HALL: Sixty-six less stalls. CARR SMITH: Sorry? HALL: Sixty-six less stalls. CARR SMITH: Sixty-six less stalls. HALL: If my math is right. VAN PERNIS: May I ask the developer? Excuse me, sir, did you say you had worked with this group before? VAN BERGEN: Yes. VAN PERNIS: And what group was that? 25 EXHIBIT D VAN BERGEN: Spring Capital. Spring Capital Group. VAN PERNIS: And who, what individuals are Spring Capital Group? VAN BERGEN: Tom, Tom Connor, the, one of the managing partners is VAN PERNIS: No, I'm talking about, did you say you dealt with these developers, Mr. Cook here? CARR SMITH: Are you asking if Spring Capital has dealt with Mr. Cook? VAN PERNIS: Is Spring Capital the group you meant worked before? VAN BERGEN: Met with, no, I represent Spring Capital. VAN PERNIS: Okay, did I understand you correctly to say that you had worked with these developers, the developers here in Hawaii? VAN BERGEN: No, I was referencing more of a personal reference; I started working personally with Spring Capital back in 2006 VAN PERNIS: Okay. VAN BERGEN: —and, so just trying to give you guys kind of an idea who they are and my relationship. VAN PERNIS: So you haven't dealt with Mr. Cook or Mr. Schuler. VAN BERGEN: Not professionally, no. VAN PERNIS: Have you made any commitment to them or any of their entities to develop this project? VAN BERGEN: Can you define "commitment?" VAN PERNIS: Any commitment, any financial commitment. VAN BERGEN: We are trying to acquire an interest in the property. VAN PERNIS: Is it in contingent upon anything? VAN BERGEN: It's contingent upon this rezoning getting approved. VAN PERNIS: Anything else? VAN BERGEN: No. 26 EXHIBIT D CARR SMITH: Mr. Van Pernis, I want to make sure we get to the other Commissioners. If you can VAN PERNIS: Okay, I'll, I have a question of the Planning Director, but I'll reserve that for later. CARR SMITH: All right, very good. Commissioners, any other questions of the applicant? VITOUSEK: Sure, I mean, I guess my question being that, you know, we are receiving a lot of information very late in the game, and if in any way it's possible to continue this, if you guys might be agreeable to that,to a next-month meeting so that we have the opportunity to review the information that has been submitted to us. FUKE: Madam Chair, I think that's, it's a totally reasonable request because I think there is a lot of information out there. The staff provided you with, you know, a couple of inches, and we provided additional information this morning. So, yes, I think that would be a reasonable request. CARR SMITH: So on that topic, so these items that we were given this morning that we haven't had a chance to look at, so these are addressing your responses to each of the conditions? FUKE: Yeah, so, you know, I prepared these proposed recommendations for approval in the absence of, you know, the Planning Director's recommendation. So I used the original reasons for the recommendation for approval, and I just made some slight editing, the editing being like the reference to the Kona Community Development Plan, and more critically are the conditions; the conditions reflect pretty much what we had proposed. Now, I don't know whether the Director, assuming that he would be, you know, he was going to recommend approval, I don't know what the Director's position on the conditions would have been. The only change, I must confess that, in the interest of time, that I did not make change to, you know, would be the fair share number, but I'm sure that that's an editorial thing that you've got to just mathematically just change the numbers. But I didn't have time to make the change. But all of the others are pretty much what we were representing in the beginning. CARR SMITH: Had the County asked you to provide a timeline that maybe they did not receive? FUKE: No, they did, the County did, through Christian, the staff, they asked like what's the development's time, timetable and all that. All we could just do was just like in generic, you know, generic term because first of all, you know, understandably, Brian, you know, Puaa and Suffolk independently, they are not able to do the project as was originally conceived; they need somebody strong like Spring Capital, you know, to come in. Knowing that there is a number of regulatory permits they still have to go through, you know, like finishing up the design and getting all of the necessary approvals by the County, I mean, you know, we can project realistically maybe like about a two-year window within which before like a first building permit 27 EXHIBIT D application can be filed, and hopefully sooner. But over and beyond that,this kind of generic information, it was difficult in talking with Ken and also Mr. Cook to final, like, can we provide them with a little bit more guidelines, you know, specific timetable, but we could not. So staff's point is accurate, you know; we could not give them any detailed information other than a generic response. UNGER: I would recommend, if we do end up postponing this to the next meeting, I really encourage the applicant to sit back down with the Planning Department and figure out a way to work through to a favorable recommendation where it's generated from the Planning Director. I understand your strategy just to give us a visual and a road map of if it was, you know, approved, this is what the recommendations would look like. But obviously, we don't get a lot of unfavorable recommendations from the Planning Department. So, again, I would just encourage you to sit down and try hammer some of these issues out before you get to the Planning Commission next time, if we go there. CARR SMITH: Thank you for that. VITOUSEK: Last one thing I just would hope that we could have like a real quick discussion about the project in general and how it,the general effect would be. There is a lot of discussion on the, you know, adherence with regulations and the County plans and whatnot, but just wondering what you think the effect of the project is going to be on the Community. VAN BERGEN: Well, I know from Spring Capital's standpoint, it would be a benefit, you know, that's one of the reasons why we are interested in acquiring the property. We feel it's an ideal location for something like commercial activity and shopping and so forth for not only Pualani Estates but other subdivisions in the vicinity. And then the rentable housing, we all know the huge shortage in Kona, so we'll eventually alleviate some of that by building a nice, you know, affordable, affordable component of it would be, you know, for affordable component. But, you know, if you look at the resume I gave you guys, you know,they are very variously developing multi-family products, and so we are looking forward to bringing that here to Hawaii. VITOUSEK: All right, and then, as far as the passage of time, you know,the environment in that area has changed considerably since 2005, and, you know, whether the developer would be agreeable with working with the Planning Department to update the conditions and stuff that would make it more in line with the current need in the area, with traffic, with all of that. VAN BERGEN: Yes. VITOUSEK: Okay. VAN BERGEN: Yes. There is also some discussion,just as an FYI to you, of the remaining acres below, Parcel 19, of doing maybe 201H or some other affordable housing, strictly affordable housing components. The developer is very interested in exploring that as well in addition to this zoning we are trying to get. But, yes, we work very close to with recommendations from the Planning Department. 28 EXHIBIT D UNGER: And just some background on this Planning Commission, we have brought up several times now, and we are working through the concept of when a project time extension expires. And I have to say it's a difficult situation, because it has expired. And so it's something that we are talking about discussing, but expiration means expiration in most cases. So, so just putting that out there. And I understand your discussion as to why it was extended etcetera, but at some point the reason why you are going through all this convincing, I guess, or discussion with the Planning Commission is that, hey, this thing expired, and now you are trying to make an argument on why this body here should say, yes, it expired but. And so that's, that's an issue that we are dealing with, and it's a very serious issue when it comes to projects like this. VITOUSEK: And on that note that this is a zoning request, not a permit expiration; so it's a zoning request that's not in compliance with the conditions. So, you know, we had talked previously about the difference between an SMA Permit who has expired versus a zoning ordinance that's not in compliance with the conditions. So, you know, in the past when we reviewed this kind of thing, it has been, is this project something where the easiest path towards completing the project is retaining the zoning, if the project has the kind of benefit that we believe is what the community needs, or is it not the kind of project that we think the community needs, therefore the zoning needs to be amended? So I think that, you know, if we have the opportunity to make a thorough review of this, because I think this is a very important project to thoroughly consider, and give us the adequate time that we need to look through the details of it. CARR SMITH: Yeah, on the topic of expirations of conditions, that's definitely something that both the Leeward and the Windward Planning Commission, they have been discussing, and the Planning Department has made some recommendations, and we are working toward that, because it really puts us in an awkward position to have to deal with these because it doesn't feel right to us to just automatically extend expired permits or zoning, so that's something we are working on. I think it's a matter of getting the two Planning Commissions on somewhat of the same page as well. I just want to get some clarity just to make sure that I understand this. So the CDP sees these parcels as a Neighborhood TOD, but if you are talking about a Project District TOD, then that's the larger combination of the parcels to get it to over 50. Do I have that right? It's complicated to me. FUKE: Well, you know, the process is so convoluted, you know, and I had to read it many times and still then, I'm still confused. But like from, if I can distill my understanding, you know, very simply, you know, like this area is generically referred to as a Neighborhood TOD area on the CDP. It's generically referred on the Plan, and then it gets established, if you go through the zone process, you know,the zoning process. And the CDP says like one of the ways to achieve that is to go through a Project District zoning; they encourage you to go through, encourage, you to go through the Project District zoning process because you can get these design flexibilities, you can get additional densities, mixed uses, so on and so forth, and so they are saying that if you can do that,then that's the, that's what, the route that they would do, and they would also promise to expedite the permit because you are doing something that really what the Plan is saying. On the other hand, the CDP, as I read it, says that if you look at the map and if you look 29 EXHIBIT D at parcels, it's very, it's, you are not going to find too many areas that you are going to have one 50-acre area that that you can kind of come in with a, you know, for a Project District. As I mentioned earlier, Palamanui and Makalapua, you know, Lili`uokalani Trust. All of other areas, you know, if you look up on the CDP, it points out a number of these so-called, these circles, they are all like, you know, fractionalized. So that's why the CDP says you can kind of incrementally, in my mind, incrementally zone areas, as long as you are mindful that this is an area that you want to have like a TOD established. So if you zone this area as like maybe Neighborhood Commercial and a Multiple-Family Residential area, if and when adjoining property owners come in to have the zoning, then put your CDP-TOD lenses on in terms of how you review that, because that's going to be already given, and then you see what kind of uses can complement that to make an effective TOD. CARR SMITH: That helps, thank you. Mr. Van Pernis. VAN PERNIS: Yes. Before I ask Mr. Yee my question, I want to point out that we are not here to guarantee a profit for Mr. Schuler but we are here to represent the interest of the people in Kona, and that's why I think that when we get a negative recommendation from the Planning Director, it should be treated very seriously rather than look for some way around it. Now, Mr. Yee, my question to you is, clearly they are in violation of the ordinance. What is their penalty or what is your ability to penalize them, considering that they have reclassified the property Urban? In other words, is there any downside at all? YEE: So there are many rezones out there that have not accomplished their conditions. I would generally say we don't actively like track what all those are. We don't have the capacity. So, many times in reality when an applicant comes back in, we discover something has lapsed. Would we like to get to the place where we know things are expiring and be able to proactively pursue property owners for action? That would be ideal, but we are not in that place. So when an applicant comes in and we discover like something has lapsed, I think our general mindset in the past has been to, you know, from a planning aspect, is there something of value here that we want to have, right? You know, there are many times where we've come back to the Planning Commission to say, yes, we should, you know, offer an extension or let's continue to move forward. I think that's where some of the members have said we've started to review that process in terms of when we find something has lapsed, you know, is it an automatic given that we can just go ahead and continue to give them the entitlements or not, and we are trying to question how we go about that process. I said, so when we find conditions haven't been met, no, we don't actively sit there and seek some kind of violation or some kind of penalty for it. Typically, that's not,just from a philosophical standpoint, that's not why I want to exist us to be out there to just penalize when people don't want to, haven't done something; it's about trying to figure out what's the best path forward for the county. So I think that's the best I can answer that question at this point in time. VAN PERNIS: So, is that a nice way of saying that these applicants have no penalty or downside? 30 EXHIBIT D YEE: I think in this process of being here for three years, having them come in front of us to talk about this, it's certainly a big step from where we were at when I first came aboard. It hasn't been an automatic by any means. So I'm not sure, saying, by them, having them come back here, I'm not saying, is penalty enough, but we certainly haven't made it easy for them. VAN PERNIS: Well, when they got their original approval, they got valuable zoning for the overall planned community development, and all the items in the application were promised by the developers, by Mr. Schuler and his organizations. And they are now asking to waive a number of these conditions. Does the Planning Department have a policy of demanding something back from what was originally given? Or did they get all the benefits, and now they waive their promises? YEE: I don't want to talk about in general terms; I want, on this specific application, I came in with unfavorable, I mean, I think that says a lot. And I'm sure just me saying unfavorable, you know, certainly makes them really think about what they have to do. Again, I'm not sure that's penalty enough, but that's what we are here for. And so within my authority right now to make a decision, an unfavorable is a pretty big recommendation to put forth to you. And so I appreciate the conversation, and I think given all the stuff that has been said today, I agree with having to continue this to have more conversations. I think at this point I'd like Commissioners to be able to throw out the questions they would like us to try to address so I know what those are as we pursue conversations with them. That's kind of where I would like to go. VAN PERNIS: And I think the conversation should include some of the testifiers who may have something to say about CARR SMITH: Yeah, yes, thank you. Mr. Darrow, did you have something? DARROW: Thank you, Madam Chair. I just wanted to,there was some discussion touched upon about our previous presentation that we did regarding time extensions and the difference between zoning changes as well as permits and the direction that Commissions were heading towards that. And Mr. Van Pernis himself was a part of that. This is a Change of Zone; normally, there isn't a, you know, like a violation that's given out or there isn't penalties given by the Department. The condition is clearly stated in each ordinance that should the applicant not substantially comply with the conditions therein, the Planning Director can either revert or bring it to a more appropriate zoning. In this particular case, the Planning Director is recommending a more appropriate zoning, which is the Project District. But again, there can be more discussion on that after the meeting through the continuance. But as we move forward, and as we had mentioned, we will be bringing some rule and code amendment changes, but that's something to keep in mind that we really, it sounded previously like the Commission wanted, and the testifiers, that if zoning is appropriate for an area, we should keep the zoning in place; if something doesn't get developed in a timely manner, then whoever is able to develop in the future,they come back and they refresh the conditions, and they get upgraded. So it's, but when you look at permits relating to like a Special Permit or an SMA Permit, that is for a specific project for a specific timeline, and therefore that really expires; if you don't do that project within that timeframe, you pretty much are, that's stopped, and you have to come in to refresh that. Thank you. 31 EXHIBIT D CARR SMITH: Okay, thank you very much. All right, anything else? [None.] All right,thank you very much, you may be seated. We'll move into public testimony for this agenda item, and I just have one person on the list: Don Hurzeler. Raise your right hand, thank you. Do you swear or affirm to tell the truth before the Planning Commission? HURZELER: I do. CARR SMITH: Thank you. Can you speak into the mic and HURZELER: I will. CARR SMITH: —let us know who you are and where you are from? HURZELER: I'm Don Hurzeler. I am the vice president of the Heights of Hualalai Homeowners Association, which is up Puapua`anui right below Hualalai Road, about 30 families that we represent. And I'll make this very quick because you've had long discussions already. We fully support the negative recommendation of the Planning Director and think it's well thought out and well stated, and so nothing further to say on that. We also want to commend the body here for taking this on as a holistic view rather than looking at these conveniently-sized just smaller than 15-acre units as separate, looking at them what they are going to look like together; we thing that's a very wise idea. The information on the school disappearing was news to me, maybe old news to everybody else, but it was news to me, and so it does bring to my concern the fact that,to the best of my knowledge, our schools in that area are already at capacity or near capacity and are challenged as it is, and so what are we going to do with the young folks that come in to the schools in that area—kind of a new concern for us. But as a resident of that area and someone who has lived here for quite some time and been coming here since my wife's grandparents' days who lived here their whole life, and to the honorable gentleman who is the consultant from Hilo, what has changed was a question that he posed I think rhetorically to everybody, what has changed? What has changed is the traffic. It is more clogged than my arteries. I have a, I live up on a hill and can look down and see the traffic, and this is like the pinch point of this side of the island. It's two lanes there, and I know that there would be changes made and the like, but they would have to be massive. And I'm not so concerned about what that causes me. If I want to wander off to Costco or Walmart, it's a few minutes here or there; it's not like living in Honolulu or Los Angeles, but it is an inconvenience, and we can put up with some inconvenience. What bothers me is that I sit up on the hill and look down and see on a daily basis, and here on a daily basis, the emergency traffic that goes along the beltway down there day in and day out at all hours. And so I'm very concerned about that. We have Fire Department, and we have Police, and we have most importantly ambulances heading out to the community hospital that cannot get through. And so that is a major concern. So that's it. Keep up the good work, and thank you for your considerations. VAN PERNIS: I have a- 32 EXHIBIT D CARR SMITH: Thank you very much. VAN PERNIS: I have a question for this testifier. CARR SMITH: Sure, go ahead. VAN PERNIS: Do you have an estimate of how many new subdivisions have been built in that area since 2005? HURZELER: I certainly do not, but I do know that it has been constant, and that there have been homes after homes, including my own, built up in that area. And it is a dense area at this point, and certainly the traffic patterns would show that. VAN PERNIS: Is it, not including the emergency transportation, is traffic come to a standstill there in the commute-in and the commute-out? HURZELER: The traffic—and of course it's a little seasonal, too, winter is certainly worse than the rest of the year, thank goodness, because we have visitors here that help our economy—but it is about twice to three times a day horrible. It comes to a screeching halt coming in, going. And it might be worse one time of day going toward Kona and another time going away, but it is quite bad. And I feel horror for the people who have to work on a regular basis and drive that every morning and every evening. It's got to be a major frustration to them. CARR SMITH: Thank you very much. HURZELER: Thank you. CARR SMITH: Any other testifiers? [None.] Commissioners, we are going to have a motion to close public testimony, please. VITOUSEK: I move to close public testimony. UNGER: Second. CARR SMITH: Mr. Vitousek, seconded by Mr. Unger. All in favor? COMMISSIONERS: Aye. CARR SMITH: Any opposed? [None.] Thank you, public testimony is closed. All right, we need a motion of some sort. VITOUSEK: I'd like to make a motion that we continue this agenda item to the next available Leeward Planning Commission meeting. HALL: Items. 33 EXHIBIT D VITOUSEK: Items. HALL: Yeah. VITOUSEK: Make a motion that we continue these agenda items to the next available Planning Commission meeting. KEALOHA: I'll second. VAN PERNIS: May I comment? CARR SMITH: Is that, is that motion clear enough? KAY: Yes. VAN PERNIS: I think we may need the consent of the applicants. HALL: Yeah, they said, they did already. CARR SMITH: I think they made that clear in their testimony. Any other discussion about this? All right. Can we have a vote on the motion, please? HALL: You can do an all-in-favor. CARR SMITH: Okay. All in favor of the motion? COMMISSIONERS: Aye. CARR SMITH: Any opposed? VAN PERNIS: Nay. CARR SMITH: Okay. KAY: Okay, thank you, Madam Chair. Motion carries, five to one. And I just extend that to both ordinances, or both requests, okay? VITOUSEK: Yes. KAY: Yeah, motion carries, five to one, for both. CARR SMITH: Thank you very much. The discussion ended at 12:25 p.m. Respectfully submitted, 34 EXHIBIT D Noriko Sauer, Secretary Leeward Planning Commission 35 EXHIBIT D