HomeMy WebLinkAbout2020-02-20 Leeward Exh E (SMA 19-074 & SPP 19-210) LEEWARD PLANNING COMMISSION
COUNTY OF HAWAII
HEARING TRANSCRIPT
FEBRUARY 20, 2020
A regularly advertised hearing on the applications of SGRY DBA KONALANI YOGA
ASHRAM (SMA 19-000074 AND SPP 19-000210) was called to order at 1:15 p.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 (until 3:16 p.m.)
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 eight people from the public in attendance.
APPLICANT: SGRY DBA KONALANI YOGA ASHRAM (SMA 19-000074)
Application for a Special Management Area Use Permit to legitimize the development and
operation of a residential yoga ashram, and the establishment and operation of a church facility
with a meditation temple, classrooms, six (6) guest bedrooms and a commercial kitchen and
related improvements on an approximately one (1) acre portion of a larger 5.1570-acre property
situated in the Special Management Area. The subject property is located at 77-0447
Ho`omaluhia Drive, at the southern terminus of Sea View Circle, H61ualoa 3rd—Kaumalumalu—
Beach Sec., North Kona, Hawaii, TMK: (3) 7-7-004:065 (por).
APPLICANT: SGRY DBA KONALANI YOGA ASHRAM (SPP 19-000210)
Application for a Special Permit to legitimize the development and operation of a residential
yoga ashram, and the establishment and operation of a church facility with a meditation temple,
classrooms, six (6) guest bedrooms and a commercial kitchen and related improvements on an
approximately one (1) acre portion of a larger 5.1570-acre property situated in the State Land
Use Agricultural District. The subject property is located at 77-0447 Ho`omaluhia Drive, at the
southern terminus of Sea View Circle, H61ualoa 3 rd—Kaumalumalu—B each Sec., North Kona,
Hawaii, TMK: (3) 7-7-004:065 (por).
CARR SMITH: The next agenda item is Applicant SGRY, which is a DBA Konalani Yoga
Ashram. This is SMA Permit 19-000074, application for a Special Management Area Use
Permit to legitimize the development and operation of a residential yoga ashram, and the
establishment and operation of a church facility with a meditation temple, classrooms, six
bedrooms and a commercial kitchen and related improvements on approximately one acre of a
larger 5.1570-acre parcel situated in the Special Management Area. The subject property is
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located at 77-0447 Ho`omaluhia Drive, at the southern terminus of Sea View Circle, H6lualoa
3 rd—Kaumalumalu—B each Section, North Kona, Hawaii. The TMK is (3) 7-7-004: aportion of
Parcel 065.
We are hearing this as well along with Agenda Item 7, which is SGRY doing business as
Konalani Yoga Ashram. This is for Special Permit 19-000210. It's an application for a Special
Permit to legitimize the development and operation of a residential yoga ashram, and the
establishment and operation of a church facility with a meditation temple, classrooms, six guest
bedrooms and a commercial kitchen and related improvements on an approximately one-acre
portion of a larger 5.1570-acre property situated in the State Land Use Agricultural District. The
subject property is located at 77-0447 Ho`omaluhia Drive, at the southern terminus of Sea View
Circle, H6lualoa 3 rd—Kaumalumalu—B each Section, North Kona, Hawaii, TMK: (3) 7-7-004: a
portion of Parcel 065. Staff?
KAY: Thank you, Madam Chair. Again, if I can direct your attention to the screen. As the
Chair stated, we are going to do one presentation, as essentially both the Special Permit and the
SMA Permit are for the same purpose.
The subject property is located in the North Kona District of Hawaii Island, more specifically,
in the, pardon me, adjacent to the Kona Sea View Estate Subdivision, and the subject property is
outlined here in red. For reference, we've got Kuakini Highway running mauka of the subject
property, generally north-south through the slide. Again, the Sea View Subdivision here, and the
subject parcel is part of the Ho`omalu at Alii Subdivision.
Applicant is requesting a Special Permit and a Special Management Area Use Permit for the
following uses: To legitimize the development and operation of a residential yoga ashram, as
well as, pardon me, within an existing 3,186-square foot dwelling; according to the applicant, a
residential yoga ashram is a religious entity most similar to a monastery for clergy and dedicated
meditation practitioners to live and practice together; they are also requesting to develop and
operate a new 4,800-square foot church facility with a meditation temple, classrooms, six guest
bedrooms, dining area, bathrooms and a common area; in addition, the applicant proposes to
develop a ten-stall gravel-improved parking area and landscaping, as well as they are in the
process of securing as-built, or after-the-fact, building permits for three additional unpermitted
bedrooms within the existing dwelling, a 1,196-square foot covered yoga deck attached to the
existing dwelling and a gazebo shrine structure and a barn. The applicant anticipates utilizing
approximately one acre of a larger 5.157-acre property for the proposed uses.
Per the applicant, once the new temple facility is built, the applicant proposes to resume the
following activities on the subject property: Three weekly drop-in meditation classes and three
weekly yoga classes open to the public; classes generally range from three to ten students and
range from one to two hours; on occasion, the applicant would also offer special classes and
workshops for Hindu/Buddhist holidays and sacred art;the applicant also proposes to hold an
estimated four to eight retreats each year, both meditation retreats and yoga teacher training
retreats; based on past practice, the retreats range from one to three weeks and retreat attendance
ranges from three to ten students, serving an estimated 18 to 36 retreatants per year; meals for
retreatants will be prepared in the proposed certified kitchen and overnight accommodations will
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be provided within the proposed six guest bedrooms. In the near term, the applicant has
represented a desire to continue a meditation practice on Monday evenings for about 14 church
members at the proposed residential ashram, or within the existing dwelling. Please note, in our
reports we said three evenings a week, because other correspondence had represented that
meditation practice for church members occurs Mondays, Thursdays and Fridays, specifically
around the traffic studies. So that's why that was in there, but there seem to be some
differentiation.
Stated reasons for the request as the subject Special Permit request was filed in response to a
Planning Department warning letter for a possible Zoning Code violation for allegedly operating
an unpermitted, non-agricultural yoga training business in an Agricultural zone and providing
overnight accommodations to yoga students without a Special Permit; the applicant countered
that they were operating a residential yoga ashram and providing Hindu/Buddhist religious
church services, which included yoga instruction and overnight accommodations to yoga
students as part of the practice. In any case, churches, residential yoga ashrams and yoga
instruction with overnight accommodations are not permitted within the State Land Use
Agricultural District, and thus require a Special Permit to operate.
As the subject property is situated within the Special Management Area and the valuation of the
proposed project would likely exceed 500,000 dollars valuation threshold, the Director
determined that an SMA Use Permit application was required. According to the applicant, all
public uses of the property have ceased while they are going through the required Special
Permit/SMA Use Permit application processes.
The County zoning for the subject property and much of the surrounding area is Agricultural-5
acres as indicated within the green color. The Kona Sea View Subdivision is Single-Family
Residential, as well as some Multiple-Family Residential and Commercial up by the highway.
Across Kuakini Highway is more Single-Family Residential and Agricultural zoning. I should
point out,too,that the applicants represented that they would be taking access both off of Sea
View Circle, as well as off of Ho`omaluhia Drive, which is a private road across several private
properties in an easement, as well as this small narrow parcel here is the 15-foot wide Judd Trail
alignment, and the applicant crosses that to get to their property from the backside, from the
Ho`omaluhia side.
The State Land Use designation for the subject property and much of the surrounding area is
Agricultural as indicated in green. And as indicated in red is Urban, more consistent with the
Single-Family Residential zoning.
The LUPAG designation for the subject property and much of the surrounding area is Urban
Expansion. A portion of it is within the Low Density Urban designation and then, again,
consistent with the Commercial and Multiple-Family Residential is Medium Density Urban as
indicated in the burnt orange color.
The subject property is fully within the Special Management Area as indicated by the red
thatching. In this area, it goes from Kuakini makai down to the shoreline. Again, that's why the
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determination for the Special Management Area Permit, again, given that the project is likely to
exceed the 500,000-dollar threshold.
Kona CDP designates the area within the Kona Urban Area. You can kind of see the small red
line here and further mauka encompasses the Kona Urban Area.
Here's two aerial photographs of the subject parcel: On the upper left just showing the subject
property bounded in purple and the adjacent residential subdivisions and agricultural
subdivisions, so you can see single-family residential uses here, as well as farm dwelling uses
and some farm uses in the Ho`omalu Subdivision; on the lower right we've got a blown-up
picture of the subject property, again, bounded in purple, access coming from Kona Sea View,
pardon me, Sea View Circle, as well as you can see Ho`omaluhia Drive here. The driveway
access is across, from Ho`omaluhia Drive across the Judd Trail is generally in this area. On the
subject property you'll see the existing dwelling, and this is the unpermitted yoga deck here
attached to the existing dwelling. We've got an additional farm dwelling that was built without a
permit here. The applicant is in the process of demolishing that. We are requesting a demolition
permit to take that out. There were four other unpermitted structures up along the backside of
the property here, two bungalows for lack of a better term and then two tent decks where covered
and, tents were erected for retreat participants. Also, we've got the barn here that we talked
about earlier. The property does have some agricultural use on it in a form of fruit trees and the
trees for trading religious prayer beads.
Here is the applicant's site plan. Again, this is kind of flipped a little bit, but we've got Sea
View Circle here coming to the top of the property and Ho`omaluhia Drive here. You can see
the Judd Trail indicated here in the dash line. And we've got the entering way for the driveway
here across the area, again, showing the existing dwelling that is being proposed for the
residential yoga ashram, the unpermitted yoga deck connected, and the additional farm dwelling
that is in the process of being removed. Sorry, I failed to mention on the other one that there is
also a shrine gazebo here in this area, and you can see driveway and parking area here. Adjacent
to the right of the existing dwelling is the proposed location of the new ashram temple facility
and, again, some, you know, showing trees and landscaping as well.
I should mention, you know,there was question about legal access over the Judd Trail
throughout the process. We've got a comment letter from the Department of Land and Natural
Resources, Land Division, indicating that there was no record that there was ever an access
easement that was executed across the Judd Trail in this area. Upon further research, we found
that that was based on a requirement within the Board of Land and Natural Resources sale of
eight access easements across the Judd Trail, which indicated that there was a requirement that
the applicant at the time, Nahona Partners, or any successors or assigns, be responsible for
complying with preservation measures that would be required by SHPD. As after the first phase
of the subdivision was granted, unfortunately Nahona Partners dissolved as a business, and we
were unable to follow through with those easements. And, as it currently stands, SHPD is
determining what those preservation requirements will be. Also, as part of this, we researched
the access along Ho`omaluhia Drive and found that unfortunately again there was no access
easement that was approved for the applicant across Ho`omaluhia Drive.
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Okay, here are some photos of the site. Upper left and upper right are just photos looking mauka
at the existing dwelling, proposed residential ashram facility. You can see here the yoga deck
that they are requesting an as-built permit for, and within this portion of the dwelling is a
worship shrine area as well that meditation is practiced. This is from the backside looking
makai, and the backside of the dwelling shows an existing parking area that's provided.
Upper left in this series of photos is the existing unpermitted additional farm pardon me
[malfunction of the projector], come on, Technology, you can do it, okay, thank youso, upper
left is the existing additional farm dwelling that is in the process of being demolished. This is
the gazebo shrine structure. These are kind of just general areas that were indicated as where the
new temple structure is proposed to be built.
Here are just some photos of Sea View Circle. The top photos are from Sea View Circle looking
toward the subject property, which is here, and this is from within the subject property looking
out at Sea View Circle. Here is looking at Sea View Circle from the gate, and then up another
portion of Sea View Circle that comes from the highway.
The Planning Director is recommending approval of the requests with conditions. With that, I'm
happy to answer any questions that Commission may have.
CARR SMITH: Thank you. Mr. Van Pernis.
VAN PERNIS: I have, I guess three questions. First, my understanding is that this property has
been in violation of the land use laws of the County for approximately 20 years. If that's correct,
what is the penalty for that violation? Is there generally one? Because they have been caught in
this violation.
KAY: So our philosophy on violations is generally complaint-driven. The warning letter that
we issued to the applicant was based on a complaint; we had inspectors that went out, did an
investigation and filed a warning letter. And our philosophy on enforcement in these cases is to
try to bring the folks into compliance. So in this case, compliance was to get a Special Permit
and a Special Management Area Use Permit so that they could operate in a legal manner.
VAN PERNIS: So generally speaking, there is no penalty for a 20-year violation.
KAY: That's correct, we go for trying to bring people into compliance first.
VAN PERNIS: Secondly, the applicant, I assume, correct me if I'm wrong, can live and host on
the premises during the time they come into compliance with the approval and conditions.
KAY: Yes, I mean that the structure is currently permitted as a single-family dwelling.
VAN PERNIS: It's just they can't run any public functions until they come into compliance.
KAY: That is correct.
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VAN PERNIS: And if they violate that?
KAY: So, again, the way that in a case of our permits, if there is a suspected violation of
conditions of the permit, we would follow a similar process where we would investigate a
complaint; if it's found that the applicant is in violation of their permit, we work with them to try
and come into compliance; if that does not work,then there is the ability for the Director to bring
the permit back to the Planning Commission for revocation.
VAN PERNIS: And what are the conditions?
KAY: I'm sorry
VAN PERNIS: What are the conditions issued for the job there?
KAY: There are multiple conditions in your recommendation reports
VAN PERNIS: The same as the Director's report?
KAY: Yes, at the end of each recommendation report, there is a statement that says, "Based on
the proceeding findings, it is recommended that this permit request be approved subject to the
following conditions." In the case of the Special Permit, that starts on Page 15. In the case of
the SMA Permit, that starts on Page 10.
I should mention, too, I apologize, since we sent out our background and recommendation to
you, there have been a few other pieces of correspondence that have come in. First and
foremost, there was a set of questions on our recommendation from the applicant. We sent a
response to those. And there was one other correspondence in response to our response. And
then today you received a, pardon me, a written comment from a Wanda Carey. I just want to
point out, it's on a Petition for Standing in a Contested Case Hearing, Ms. Carey was
contemplating filing a petition last week. She decided not to but asked to just submit this
because this is where all of the kind of written justification for her complaint is, or her testimony
is. So those are the documents that have come in since.
VAN PERNIS: Have you received a letter from someone representing themselves as attorney
Mauck?
KAY: Yes. That was part of the application packet that we submitted in the background. It was
a twelve-page legal memorandum around the Religious Land Use and Incarcerated Persons Law.
VAN PERNIS: I want to point out and preface that, as an attorney in Kona for forty years, the
letter of Mr. Mauck is a standard publication and is not at all applicable to this proceeding in that
no church is being denied here, no monastery, no church, and that reasonable conditions as the
Planning Department has recommended is certainly applicable under any version or any
argument of the laws that Mr. Mauck refers to—Mr. Mauck is not a Hawaii attorney by the way.
And, have you got the opinion of Corporation Counsel on this?
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KAY: We have sent information to both Corporation Counsel for the Department as well as
Corporation Counsel for the Commission. I haven't received anything back in response
officially, so if there are legal questions, I will ask them to address those
VAN PERNIS: Thank you.
KAY: either out here or in executive session.
VAN PERNIS: And lastly, I want to point out, it's your position, I assume, of the Planning
Department's position that the letter of Mr. Mauck, what he refers to, provides no excuse for
noncompliance with the approval and conditions.
KAY: Again, as I am not an attorney, I'm going to defer to the corporation counsel for that. We
submitted that, again, as part of the record because it was submitted to us as part, from the
applicant.
VAN PERNIS: Thank you.
CARR SMITH: Any other questions for staff? No? Very good. Thank you.
KAY: Thank you.
CARR SMITH: Okay, will the applicant come forward, please?
F. STONE: We've been working on this for nine months, so we have quite [inaudible]. I
brought my computer along just in case so I have access to all information.
CARR SMITH: Very good,thank you. Will you all raise your right hand, please? Do you
swear or affirm to tell the truth on this matter before the Leeward Planning Commission?
APPLICANT'S REPRESENTATIVES: I do.
CARR SMITH: Okay. Could we start with you, please, and please provide your name and your
residence and your position?
D. STONE: So my name is Devi Stone. I am a resident of Kona, a student at UH Hilo, majoring
in Journalism, and I'm originally from Oahu, born and raised. I'm a member of SGRY, and our
community in Kona meets together to practice at Konalani Yoga Ashram. And while the word
"ashram" may be flowered with images of luxury spas and pools and other extravagant things
this is what Google Images brings me when I google "ashram"this is not who we are; we are
church, we are not a commercial business and we are not a vacation rental. We are not illegal.
Our practices may look very different from other churches. We teach yoga and meditation as a
part of our religion. My personal background is that I was born and raised on Oahu, and I went
to Protestant Church every Tuesday and Sunday, and while the practices I do now at Konalani
differ and look very different from what I have done, they share the same connection I have with
God. Essential to this practice like that of most religions is the ability to practice with a
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community. We've been practicing here for many years now, cultivating the land, watching our
trees and our kids and ourselves grow. And we've helped make Konalani what it is today. It's a
sacred space of our own making and is the expression of our aloha, and we are part of this Kona
community.
Since the County's order,the cease and desist order, we have stopped our meditation program
since July of 2019, and since then we've had to hopscotch around the each of our member's
houses who compose about roughly 14 people to meditate together. And if the County's mission
is to help Hawai`is land and its people thrive, depriving a group of people from worship and the
space they've owned and operated for 20 years now is not the way to do it. SGRY has and will
continue to work to address each of the County's concerns: we first met with our neighbors and
are working to remove structures, drawing up new site plans and seeking the appropriate permits.
And, but as the conditions of approval read now, we are, will still not be able to practice together
during what's likely a year or more long building and permit seeking process. And what's more,
our managers and teachers, Joe and Anna here, who live there will not be able to live there on
other current conditions of approval. And we can continue to work with the County, but that is
only if they recognize the protections afforded to us by the federal government via RLUIPA, the
Religious Land Use and Institutionalized Persons Act, and the First and Fourteenth
Amendments. So far, right now, to us it seems that the County's actions have continued to
threaten these rights, and I just seek and ask that the County, well, I just want to say that we have
the right to worship God together at this place, and we have the right to live together at Konalani
Yoga Ashram and Church.
F. STONE: My name is Faith Stone. I was impressed, Keith, how you opened the meeting last
month with Hawaiian, so, I believe my name in Hawaiian is Mana`o`i`o Pohaku. I found another
translation for faith; it's paulele, which means stop jumping. However, years ago my hulu kumu
told me that a woman's name cannot start with"pau."
My life's work has been focused around children together with Anne Saks who will speak here
today. I was a Girl Scouts troop leader, and I'm a lifelong member of Girl Scouts'. We had a
Girl Scouts troop, was held at Konalani Yoga Ashram, and about twelve kids, five of them from
the Sea View Circle neighborhood and from five different schools. Also with Anne Saks, we
started the first Big Island Pony Club, which is like Girl Scouts on horseback. We worked with
Nani from Ka`u Nani's Ponies, to have ponies enough for girls who didn't have horses, which
was 90 percent of our troop. In this way, we could keep it affordable and cut up scholarships for
low income. And I'm a retired art teacher. I worked with K through 12 kids but found my ideal
work as high school teacher with at-risk school students, like counseling department of the
public school that I worked at would tease that I was part of their department and they would let
kids come, having a really hard time, come to the art room. I didn't talk to them about their
problems but let them paint, draw, gave them a cup of tea and some cookies and gentle
encouragement about their art,pat on the back or shoulder. I am a working artist. I brought
along a couple of my books I did with a Tibetan friend, Karma, "Karma & Faith," and it has a lot
of our philosophy, so if anybody would like to look at that, it's all Buddhist art, religious art.
In order to support the ashram in the early years, my husband and I started Rudi's Restaurant and
Rudi's Bakery in Boulder, Colorado. Rudi's bread is nationwide now. Unfortunately, you can't
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find it in stores in Kona. Unfortunately, we sold it well before the bakery was making any
money. It is now carried nationwide.
I still run a summer yoga camp in Colorado where we reach 500 kids per summer, which teach
the yoga and meditation to give them the tools for dealing with stress in their lives. We also do
arts and crafts, hiking, go to a local spring type pool, which is freezing but extremely beautiful.
We have baby goats and alpacas to connect the kids with nature and teach care for the
environment and respect for everyone.
In regards to the yoga ashram, I have been the secretary treasurer for over 40 years since I was
20 years old. I have been through the special permit process successfully on behalf of the
ashram four times in Colorado. In these cases I wrote the special permit along with our attorney,
Berkley Freeman. Because our yoga ashram has limited financial resources, I worked as
research assistant to our attorney for legal cases. I've done that for 30 years. I'm not a lawyer or
a paralegal, but from experience, I have a working knowledge of church law. And though no
expert, I am not completely unfamiliar with County planning zoning and building departments. I
am here to help the yoga ashram to be granted special use in Ag zoning as is permitted within the
County's zoning, and that's why we are here today.
The last thing is that they talked about what is the ideal use for the property and the land, how do
we use it that helps. One, it is in Ag zoning. We've put 20 years now into improving the soil
quality. We've had people from the Hawaii Extension come and evaluate the soil. We have
planted mango trees. We grow Rudraksha trees, which are the seeds for malas. We have
multiple citrus plants or trees. We have a vegetable garden. So we have, even though the soil
quality is E, very poor, we significantly improved it. We also do only organic farming both for
our own health, we don't use any pesticides, and for the health of our neighbors. The neighbor
just below us grows organic mangos, and while we wouldn't use it anyway, we certainly
wouldn't want anything coming from our property to blow onto his. We did look into doing
organic gardening at one point, but the certification for that was a bit more than the yoga ashram
needed. When we have extra fruits and vegetables, we donate them to the community food
share.
I think that's enough for the basic.
CARR SMITH: Thank you.
GOLDSTEIN: Aloha Commissioners and Planning Director. My name is Anna Goldstein, and I
live in Kona at this ashram we call it Konalani. I've lived in austere wise ashrams since 2010,
but at Konalani for the past five and a half years. I currently manage the ashram, and I am a
resident acharya, which is a minister in the yoga tradition. Living in the ashram has completely
changed my life and my way of being; it has turned me from only worrying about myself to
really caring about the community, the people around me, being more loving and compassionate
and kind, and generally, I'm, I'm just happier. The amazing thing about the ashram is that it's
not just about me, it's not just about the single family, but it really is about a community. This
remarkable sanctuary helps people lead happier, more fulfilling lives. I am just one example, but
these practices impact countless others in the same way. I know we are small,just a
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congregation of 14 people, but each member of our community leaves the sanctuary, you know,
leaves the ashram, rejuvenated, recharged, their hearts full, full of joy, and takes that to their
family, to their work place, to the community at large. And it might seem silly, but those small
actions that we encounter every day, you know, someone letting us in as we are trying to merge,
or just someone friendly, someone's friendly smile in a supermarket, those little things really do
go a long way. So,though it might sound silly, I truly believe that Konalani not only allows our
small congregation to practice our religion as is our right, but it makes a whole Kona community
a better, sweeter, more joyful place to live. That's our goal.
EHINGER: Hello. I know you—I'll try to make mine quick, I think you were just sharing my
name and where I'm from—but so I'm Joe Ehinger, and I'm a resident acharya at the ashram as
well. And just to make it really simple, I came to the ashram after graduating at the DePaul
University, and though I went through high school and college and graduated with honors, I
didn't feel like I really learned anything about living until the ashram taught me how to work,
how to fix things, how to serve, how to just take every day for what it needs from me, and it's a
life of selfless service much like everybody in this room actually; you guys, we are all like, you
know, in the service industry in a way, the public service. So it just, it has taught me so much.
Even though I thought that I was going to learn all that in college, I learned it in the ashram.
And I have been living there for 14 years in the ashram. It's, I wear every hat you can wear; I'm,
you know, I'm like the guy, the minister at the church that you see out there, pulling the weeds,
and then giving the sermon, and then, you know, after the sermon, like hanging out with you and
talking story, and then he's there at night, you know, cleaning the place. So I'm just, you know,
the resident acharya along with my wife, and it's a full life, and we fully committed to it for our
life's work, and we are so grateful that Faith committed to it and made it possible for us. So,
yeah, I know it's been a long morning already, so I just, I'll wrap it up for me.
Neighborhood relations have always been really important, and I see a lot of people from our
community here today. Faith has always emphasized to me since my first day at Konalani how
absolutely vital neighbor relations are, and so I look at each of them with a lot of love in my
heart, and I've made sure to extend my services to all the elders in our community to know that
I'm always there to lend a hand. In fact,just before this meeting I was sort of running around
trying to get some farm equipment to one neighbor, and yesterday I was helping another
neighbor with their bananas because, you know, the apple bananas are so big. Anyway, as well
as the little fire ant epidemic, I just took it upon myself because I saw Ho`omaluhia being
infested with them. I heard about cats and dogs, even one of the neighbors that are here today,
actually their dog has cataracts from the little fire ant epidemic. I took it upon myself to teach
everybody how to test. I contacted BIISC, Big Island Invasive Species Committee, told them,
you know, "Can we get and organize a workday here?" I offered the ashram as a home to that
workday every six weeks for—you know how long it takes for the little fire ants, it's like a one-
to two-year commitment. So it's a pretty big deal. Nobody else in the neighborhood was willing
to take that on. I always take that for granted, I'm like that's what I was taught to do, but then
when you actually ask people, you realize not everybody is going to do that. So for the next
couple of years, we'll be, you know,the home base for the little fire ant epidemic to get rid of it
on Ho`omaluhia, and little does Sea View know is that a big part of our work is actually
preventing them, the fire ants, from getting to Sea View. And so right now with the work we are
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doing, we can, we can rest assured they will not get to Sea View, which would have more houses
in danger.
So, leave it at that. And thank you guys for listening.
CARR SMITH: Thank you very much. So, you've seen that the Planning Director is
recommending favorable recommendations to the County Council subject to conditions, so
F. STONE: I do, but the problem is
HALL: [Inaudible]for approval.
CARR SMITH: I'm sorry?
HALL: Oh, no, I said approval because you said recommendation
CARR SMITH: Oh, sorry. Conditions of approval.
F. STONE: Okay. And that is where we have a problem is that the conditions for approval, it's
almost like saying yes but no. And so if we could go through some of those things, I'd like to
start just with the beginning of our background packet. But I'm going to need Abhaya toI
have some correspondences that I'll reference, and there is no page numbers in here—so I need
her to pass out the correspondence packet, the Judd Trail packet, the John Mauck packet is I
think the most important document that we have. So if we can just take a second to do that.
[The packets were distributed to the Commissioners.] I also have a packet—and we'll recycle all
of this.
CARR SMITH: Yeah, I'm not sure we are going to have an opportunity to read these things,
so
F. STONE: No, I'm only going to pick out a little, like just a paragraph here or there. It's not, I
don't expect you to read. It's already in your packet.
CARR SMITH: Okay.
F. STONE: It's just that you, it will be impossible to find.
CARR SMITH: Okay, very good. So we are talking about both permits, or are we
F. STONE: Yeah, we can start
CARR SMITH: focusing on the Special Permit or
F. STONE: I thought I'd start with the SMA.
CARR SMITH: Okay.
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F. STONE: Because that's the way it is in order. Oh, I did have one quick question: Since Sorin
from John Mauck and Associates can't be here, will I be able to get a transcript to give him, our
attorney?
DARROW: Once it's available.
F. STONE: What's that?
DARROW: Once it's available.
F. STONE: Okay, that's fine. All right. So, I actually wanted to start with just some of the
background information because that will kind of help clarify things. So in the, your big packet,
just on the second page, if you just flip from the first page, it says, "Ashram Meditation Practice
three nights a week"; Monday is meditation, Thursday there is a small philosophy class, and
Friday evenings is actually movie night, we just get together and watch movie together, not
members can come or not. And in addition, we did talk with the neighbors about the three
weekly drop-in yoga classes in the morning. And if, we had offered that if traffic is a huge
concern, we would be willing to drop those. If we go
CARR SMITH: Can you, do you mind referring to a Condition number when you are
F. STONE: I'm not on the conditions yet. I'm just going over just a couple of general things.
CARR SMITH: Okay, very good, thanks.
F. STONE: Okay, the "Reason for the Request," it says that yoga ashrams are not permitted uses
in the State Land Use, but actually church is permitted in State Land, in Ag land in the State.
Then we can skip ahead to, oh, on Condition, on the No. 8 where it says about, "the permitted
dwelling on the property appears to have unpermitted additions attached,"that's not the case.
We, and, we just repurposed one pod to become a meditation room and additional bedrooms.
And we did apply for those after the fact to be done.
All right, now, if we go to the SMA, which I believe is No. 6—let's see—we really don't have
much there except that for the Judd Trail, on Page 5, it says that Nahona Partners paid for the
Judd Trail easements or they were supposed to pay for that, but if you turn to Page 15,there we
were talking with the State because Nahona Partners went out of business and nothing was being,
no progress was being made in the subdivision. We stepped forward and said we'll pay for all
eight easements and we'll also pay for the appraisal to be done for what that would cost, and we
did, and that was 2,800 dollars that we paid on January 11, 2005,to get those eight easements,
which if you flip forward, it talks about that again on Page 17
DARROW: Where are you at, ma'am?
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EXHIBIT E
F. STONE: In the Judd Trail. So I'll back up. On Page 15, it shows where it was not the
Nahona Partners. Seeing that there was no progress being made because the Nahona Partners
had gone out of business, we stepped forward to the State and said, can we do it, can we go
ahead and pay for all those appraisals to be done so we can get the Judd Trail so that not only
ourselves but eight, there are eight Judd Trail easements onto Ho`omaluhia Road, so we paid for
all of them. And then we also paid for the easements themselves, and that is on Page 17, and that
was for 1,255 dollars. After that, on Page 18 we got a perpetual non-exclusive easement for
roadway, utility and driveway access purposes, and it says all of that. And we thought we were
done. We thought not only had we paid for ours but we'd also paid for all our future
neighbors the properties hadn't been sold yet that we took care of that because Nahona
wasn't doing that. And that's kind of how neighbors look out for each other; if you are a good
neighbor, you try to help out. Then if you go forward onto Page 26—so we have a lengthy
history spanning many years with the Judd Trail—on Page 26, and this is in 2007 now, they said,
well, you can't have all eight easements because those property owners need to own their own.
So they gave us back the check, it's on the next page that, oh, not that one, they did refund us for
the other seven easements, and then we reapplied just for our own individual easement of 148.50,
and that's what's on the next page is that those were cashed. And then on Page 28, and that's
again in 2007, and remember we started this process in 2000, we were again, the Subject says,
"Perpetual, Non-Exclusive Easement for Roadway, Utility & Driveway ..." onto the Judd Trail.
We thought we were done. So then, come to present, and that's actually on Page 2, when we
applied for the permit, the special use permit, it was discovered that those, that SHPD had never
finished the approval. They needed to do the recommendation for how to preserve. Now,they
had given us a paper that said how we were supposed to do it, and we did that; we did gravel, we
didn't put any cement or anything like that, we respected everything that we were supposed to
do. However, the preservation plan was never put in place. And so that was when we found out,
when we did the Special Permit, that it's still not in place. This is 15 years later. So I have
talked to Candace and I have talked to Sean at SHPD, and we've contacted Na Ala Hele Trails.
And now they are working on it together. They had a meeting, and then they are working on it
together just, all they need to do is the preservation plan, that's the last step. In the meantime, I
don't think other property owners even were aware that there maybe was a Judd Trail or that
there was any preservation, so, not all, not all owners did that, kept with that. All right, so, there
is much more about the Judd Trail, but I think that shows that we've been earnestly working on it
for quite a long time.
All right, on Page 7, I'm sorry, of the yellow, yeah, it does say that the proposed development is
consistent with the County General Plan and all of those things, so, and we, we agree. We were
surprised that we had to do a Major SMA since SMAS are mostly coastal areas. We are not on
the coast, we are about a half a mile up. The archaeological we have, the Judd Trail is adjacent
to our property, not on our property, it's right next to our property. And the AIS had already said
that no further work needed to be done, that there weren't important archaeological things.
However, we were told that we would not be able to apply for a special use permit without doing
the SMA, so we did it. We did a lot of research. We weren't able to get very much from the
County. I called Oahu to get how it should be done, and they said, well, the first thing is that
you fill out a survey and then you submit that to the State, and then, or to the County, and then
they recommend whether it's a Minor, a small SMA, or a Major SMA. That never happened; it
was just decided for us. And I'm only mentioning that because I think this isalthough John
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Mauck and Associates are not Hawaii attorneys, it is federal law—it's, specifically, he wrote the
federal RLUIPA law, which protects churches, and if you look at Page 1, the Background of
RLUIPA, it says that"Congress enacted RLUIPA unanimously to combat the widespread
municipal practice of using `individualized and discretionary processes to exclude churches....
And a half way down the next page it says, "RLUIPA requires, among other things, that religious
and nonreligious assemblies [and institutions] be treated on equal terms," and that, I'm going to,
"RLUIPA further provides that a municipality may not substantially burden the exercise of
religion ...." So why I'm mentioning that is because things like SMA can be very costly. From
what we've found out,they can be anywhere from 10 to 40 thousand dollars, maybe more, I
don't know. [Addressing to Commissioner Vitousek] Do you know anything—I know that you
are familiar with archaeological things—do you know what an SMA, Major SMA could cost?
VITOUSEK: That's not an archaeological
F. STONE: Okay, so you wouldn't know that, okay. At any rate, it was a big deal to us to have
to write it, and, but we did it. So, No. 4, it talks about the floodplain, and I'm going to turn to
Joe for this for a minute because we can't find that we are in a floodplain. We've been told that
we are not from the Kona side, and then the Planning Department is telling us we are.
EHINGER: Is there room on your desk for one more paper, I'm sorry, I'm sorry, look, I, you
know, I just
HALL: Please, please speak into the mic.
EHINGER: Yeah, thank you. Yeah, so these are just four images that we put together that I
really thought would just help the floodplain concept be really clear and simple. So the top left
image is an overhead view of the current residence—yeah, I know the quality is a little poor,this
is from the original, sort of okay that we got on the floodplain like originally, so I just took that
picture from this original floodplain hazardous assessment report, which decided that—of
course, in that time 20 years ago we built an entire home with the, net full well knowing that the
tributary was there, and hence that's why the house is elevated four feet off the ground on
concrete pillars with the concrete surrounding those pillars actually, and extra support,that's
why we sloped the driveway to carry water away from the house, that's why we planted
vegetation, 30 mango trees, grass, bamboo, mauka of the house, and had drainage holes dug. So
in 20 years we've never had any water make it over the driveway in the Kaumalumalu Tributary.
That being said, you see just in each image, the Zone X designation, which, you know, earlier in
this today it was asked about and it came up earlier, and I believe it was Alex that said, well, I
mean the property is in the Zone X. And it was almost like a non-issue. And I was like, oh,
yeah, the Zone X is a non-issue. In fact, when I went to talk to Dion in Engineering right over
there, he sort of had trouble, he was like, why are you, why are you here? And I'm like, oh,
because the County said we were in a floodplain. He just kept looking at me like, you are in
Zone X. And I was like, I'm new to this, they must be more serious than that. He goes, no, I
mean, he's like, I don't have anything to tell you, you are in Zone X. And then I, so he said you
can call Bryce. So I called Bryce and talked to him on the phone. He had the same sort of
puzzled response. He just kept saying like, I don't understand, like, this is Zone X, what's the
problem? He said, well, you know, at very least you have to have your place elevated. And I go,
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yeah, it's elevated, it was already approved 20 years ago, it's four feet off the ground. He goes
okay. And I said, is there any note you need me to give to the Planning Commission when I talk
to them, like I just don't know what to tell them except for this is a non-issue. He said, let me
get back to you. That was about, that was in January. And so I've called and left voicemails
ever since then. I just assume no news was good news or non-issue.
So just to further the point, the top right image shows the portion of the ashram being considered
for the as-built permit dotted. You can see that the tributary itself does not intersect this portion
that's under consideration. Again,just another thing that I told Bryce and Dion, and neither of
them, they both said, yeah, that makes total sense.
But in any case, we go down to the bottom left image. This is the subdivision map that was used
I believe in sort of the Planning Commission's report that said, hey, it looks like your building is
in this tributary. That,that depiction of the tributary is significantly different than the depiction
given by the DLNR that we got online; you can see how it's like a wider swath than the DLNR's
like a thin line. Again, though, it's all Zone X, and there is just no way to get around that. And
so even when the tributary is larger, it just doesn't have an effect.
And then, last but not least is the bottom right picture. Finally, when I was zooming out to go
like, what does a real floodplain look like, what are people talking when they say you can't build
in a floodplain? You look across the street at Ho`omaluhia, and I go, oh, that's the kind of thing
that I was expecting to see. You see like a real legit floodplain with zoned AE and AEF that
actually have like a base flood elevation that you have to keep in consideration when you are
building, and it says obviously AE and AEF. You have to keep those areas free of
encroachments so that the one percent annual chance of flood can be carried through, right?
So those things just kept pointing us towards we don't understand what the floodplain issue
could be. Again, if it was already approved for the main house the way it was built 20 years ago
and it went right through the center of it, how could this affect the as-built portion, which it does
not touch, considering that this is actually a tributary and not an AE or AEF floodplain? So that
was what I came up with.
CARR SMITH: Okay, thanks.
EHINGER: Thanks.
F. STONE: Okay, if we stay on the SMA, the only other thing we wanted to know about No. 9,
which is the time, time extensions, and what is included within that. And we became more
curious about that, considering the previous applicant. And so, does that include, does that,
No. 9,the initial extension, is it, extensions for the permit, does that include the Judd Trail
easement and Ho`omalu? Because it's already been over 15 years on the Judd Trail, and we
don't think that Candace had told us, from DLNR, that they didn't think that they would finish
that recommendation within a year, and so that, nothing we can do about that. So we want to
make sure that easements are not part of that. We do have, we have filed a claim for easement
on Ho`omalu. It's in our title insurance that we have easement for ingress, egress, over and
across, so both sides of Ho`omalu, but we've been working on that already six months. It takes a
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while. At one point I thought I had found our easement for Ho`omalu, and showed that to
Christian and Candace, but they said, no, that's an easement for the Judd Trail. Then Candace
said, no, it's not, because the State owns the Judd Trail, and then Christian told me it's for the
land under the Judd Trail. But I contacted a real estate attorney, and he said there is no such
thing that easements are just on the surface. So all I'm trying to say is that this was brand new
news to us. With Ho`omalu, I could either, we could wrap up the SMA, because I could talk
about that separately on the other one, but we've been working on that very diligently, and
CARR SMITH: So
F. STONE: Mm-hmm.
CARR SMITH: just,just to be clear, so the issues that you have on the SMA are
F. STONE: Only floodplain. We don't find that there is a floodplain.
CARR SMITH: The floodplain only, okay.
F. STONE: Yeah, that's it. And that the exten- if we can get clarification on how long is the
time, and can we get clarification that it would not include the easements? Because we don't
know how long that will take.
VITOUSEK: Is that Condition 4?
F. STONE: I think it's under 9 where it just time links and extensions. On the SMA one.
VITOUSEK: The floodplain portion is Condition 4. Is that right?
F. STONE: Oh, that's Condition 4, yes. Sorry.
VITOUSEK: Okay. And so, is there a recommended change that you have to Condition 4?
F. STONE: Well, it's, there is no floodplain. That shouldn't be in there.
CARR SMITH: They are saying it's a tributary versus
F. STONE: And that's what the Department of Public Works gave us.
KAY: Is it possible to address
CARR SMITH: Yeah, why don't we have
KAY: —how this came about?
CARR SMITH: —staff address those issues?
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KAY: Yeah, okay, first and foremost,the conditions that we add to permits are done largely
based on representations from the applicant, as well as comment letters we receive from agencies
that we consult. Those agencies implement other sections of law and code, and so we include
those as conditions of approval.
In the case of No. 4, and then there is an associated condition in the Special PermitI'm not sure
which number that isif you look at Planning Department Exhibit 15, from the Department of
Public Works, dated October 18, 2019, from Natalie Whitworth who was a Kona engineer from
DPW Engineering, she indicated that, "Although the subject property is located within Flood
Zone X as designated by the Flood Insurance Rate Map, Kaumalumalu Tributary Number 3 is
located within the property. If any of the current structures that are built above the
Kaumalumalu Tributary Number 3 are unpermitted and being as-built, those structures shall
comply with the requirements of Chapter 27—Floodplain Management—of the Hawaii County
Code and may need to be brought up to current code requirements. Any additional
improvements in Kaumalumalu Tributary Number 3 will be subject to the requirements of
Chapter 27. A flood study may be required to determine base flood elevations of the
Kaumalumalu Tributary Number 3 as directed by the Department of Public Works." We further
looked at the applicant's deed, and recorded against the deed is the Kaumalumalu Tributary
Number 3 as was surveyed for the, for Subdivision No. 7022. So whereas the FIRM Map shows
just a line underneath the dwelling, the extent of the survey property as recorded against their
deed is that larger area; hence, "Any new or `as-built' building permits and
development/construction activities within the Kaumalumalu Tributary Number 3 as shown on
Subdivision Map No. 7022 shall conform to Chapter 27 —Floodplain Management—of the
Hawaii County Code." So, again, came from DPW Engineering, the extent of which is recorded
against their deed as a reservation, and any building within that will have to meet the
requirements of Chapter 27. These are all functions that happen after they are granted their
Special Permit, and are added as kind of standard conditions of approval.
In terms of the time extension, No. 9,this is our standard administrative time extension
condition, lays out the conditions under which an applicant can get a time extension, and the
justification that they have to provide. Under Subsection D, it says, "The time extension granted
shall be for a period not to exceed the period originally granted for performance," for example, if
a condition is to be performed within a year, it may be extended for up to one additional year.
That's just an example. In the case of conditions of approval, those are those conditions that
have a time component, so for instance, construction needs to be completed within five years; if
they are not able to complete construction within five years, they can come and ask for an
administrative time extension for up to additional five years. Again, all very standard conditions
that we add to most, if not all, of our permits.
HALL: So, but none of these have time conditions
KAY: Yeah
HALL: because I don't see any
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EXHIBIT E
KAY: You know, I apologize, there is one condition that says the applicant, its successor or
assigns shall comply with all conditions of the Special Permit; I believe that that's why I put it in
there. It may be superfluous at this point, and we can strike it out since there is nothing on this
one that's timed. But the same rationale and thought process goes for the Special Permit.
CARR SMITH: So I think what they were asking is if there will be a time extension or time
frame that has to do with the easement over the Judd Trail.
KAY: So because there is, there is no performance condition that's put in there, that's between
the applicant and the State relative to the Judd Trail. We have no idea how long that's going to
take. According to Land Division, it can take a year or longer, but that's something that is
between, was between Nahona Partners and the State, but is now, according to the Board of Land
and Natural Resources easement sale document, now any successors or assigns would be
required to comply with that. And so that's the hold-off I think with those Judd Trail easements,
is that SHPD is still determining what those preservation requirements are going to be, and the
applicant would need to comply with those before they can have legal access across the Judd
Trail.
CARR SMITH: Does that make sense?
F. STONE: So it tells me that the easement is not, we are, we are not given any conditions,
that's great.
CARR SMITH: Because I think the County sees your access through the subdivision, right?
F. STONE: Both. We still see it as both, but we'll address that in a minute.
VITOUSEK: Going back to the flood
F. STONE: Yes.
VITOUSEK: issue. So, hearing that, you know, there is something coming from the County
DPW Engineering that any as-built structures within the area need to comply with the Chapter
27, do those structures comply with Chapter 27?
F. STONE: On what we show is that the tributary, which is also on your map here, it's straight
under the original permitted building, and we did comply with everything.
VITOUSEK: So theI guess the question for both the unpermitted yoga deck, does that
comply, as far as anybody knows, with the standard
F. STONE: We think it does because it's not near there.
KAY: Based on our conversations with Building Division, they would need to come in for an
as-built permit, and those
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EXHIBIT E
VITOUSEK: In order to determine
KAY: In order to determine whether or not that's required. So, in reference to the map in front
of you, I submitted that map to the applicant; I created that map, which I overlaid their site plan
on the subdivision map, which showed the extent of the tributary. This was done a couple of
weeks ago where I sent it to them just to let them know, hey, by the way, where you are
proposing your new temple facility is smack in the middle of the tributary as is recorded against
your deed, you may want to reconsider locating it elsewhere on your property since you have
land area to do so. So I was just doing it as a heads-up to the applicant relative to that section.
Yeah, so in terms of the, back to the Judd Trail, essentially what we are saying right now, and
there is a condition of approval in the Special Permit, which I'm sure we'll get to, basically
limiting access to their existing legal access on Sea View. And in the background and
recommendation, we said if they are able to substantiate in the future legal access from the other
way, then they can come in and amend their permit.
F. STONE: But it's not access. It's, it's not talking about easements. We had discussed with
Christian before that we don't have the easement, we are working on it. It's, we don't think it's
through any fault of our own on either of the cases, but, and it's uncontested. And not only
should it, if it has to apply, not only to us but seven other properties. So we have been working
on trying to secure the easement for all eight properties because none of them have it. Eight
properties are legally landlocked by the Judd Trail. However, all of those people have been
using Ho`omaluhia for, since they bought the property, which could be 20 years, continuously.
So the condition that was put on us—and here, I'm going to need to go to the correspondence,
sorry was that essentially we are not allowed to set foot on Ho`omaluhia, and that would be
considered a violation of our permit and our permit could be revoked. That seems kind of
extreme since it's also our mail, it's our legal address, it's where our taxes come, it's where we
get our propane gas for cooking and showers, and all our deliveries, UPS. We have to go down
the street to get the mail; we are blocked from our US Mail. So we thought that was very
unreasonable. We don't, we understand if you want to say, you don't have it yet—we even
proposed that we do an escrow—and say, okay, we are working on this and we won't, they won't
be recorded to our deed until we complete it; however, we need to be able to use our road. And
so, it's called an escrow and it's really common in real estate things. But when I spoke with
Candace at DLNR, she said, "Christian said absolutely not."
So, but, in correspondences, and so if you can go on the Correspondence book to Page 38I
doubt that you've all had a chance to read this, whole packet is over 600 pages
VAN PERNIS: Let me, let me interrupt you, ma'am. Do you happen to have a right of an
easement over Ho`omaluhia Road? That's a private road.
F. STONE: Yeah, we are part of the private road. We've been paying membership for 20
years
VAN PERNIS: Do you have a-
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EXHIBIT E
F. STONE: we've paid over 2 1,000
VAN PERNIS: a documented ease
F. STONE: Yes, we do, our warranty deed shows, not,the warranty deed for the subdivision
names our TMK as one of the owners of the property. It's all in your packet.
VAN PERNIS: Did you submit that to the County?
F. STONE: Yes.
VAN PERNIS: Okay, thank you.
F. STONE: I did give that to the County.
VAN PERNIS: Let me ask you a few other questions.
F. STONE: Okay.
VAN PERNIS: Commercial kitchen, do you now or in the future plan on using a kitchen to
prepare food for the public outside of the ashram?
F. STONE: No, only for the retreat participants. And right now the way we get around that is
when we have meals, we do potluck, which churches do all the time.
VAN PERNIS: So you are willing to agree to a condition that the commercial
F. STONE: We already, yeah, we already
VAN PERNIS: Let me finish, please
F. STONE: —have said that
VAN PERNIS: please
F. STONE: I'm answering your question
VAN PERNIS: —don't interrupt.
F. STONE: Excuse me?
VAN PERNIS: Are you willing to agree to a condition that a commercial
F. STONE: Yes
VAN PERNIS: commercial kitchen not provide any food outside of the subject
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F. STONE: Yes
VAN PERNIS: property? All right. Secondly, do you charge for any services
F. STONE: We do. Churches do; they charge for bible camp, they charge for adult day care,
they charge for child day care, they charge for schools and preschools. They have to pay their
ministers and their maintenance people. Yes.
VAN PERNIS: And these are all services provided on the property? Adult day care and
F. STONE: We don't do that. We were just saying
VAN PERNIS: I'm just asking you
F. STONE: churches do that
VAN PERNIS: the things on your property, what you charge for.
F. STONE: We charge for yoga instruction when people come and stay for three weeks. We
charge to teach them, and it is part of our religious practices.
VAN PERNIS: How about
F. STONE: Buddhist retreats across the country
VAN PERNIS: —how about people who live there? Like fees
F. STONE: They don't pay anything.
VAN PERNIS: Okay.
F. STONE: They get a really modest salary, as most people that work for churches do.
VAN PERNIS: Okay, and
F. STONE: Or non-profits even.
VAN PERNIS: —how much do you charge for people stay there for, I think you said three
weeks?
F. STONE: It varies depending, we do work study and things like that.
VAN PERNIS: And what's the range?
F. STONE: I don't think I need to answer that question.
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CARR SMITH: Yeah, I don't think that this is relative, Mark, I'm sorry.
VAN PERNIS: I think it's relevant because
CARR SMITH: I don't. And I'd like to
VAN PERNIS: When you see her questions
CARR SMITH: —keep moving along.
VAN PERNIS: —her questions are, can she practice her religion? And construction. Answer,
yes, of course you can
F. STONE: But the County has told us we can't.
VAN PERNIS: —and one of the conditions is that the public functions, having the public come
to the property or inviting the public to the property must cease while you are meeting the
conditions, right?
F. STONE: And that is actually against federal law. That's against federal law to do that.
VAN PERNIS: That's your opinion.
F. STONE: No, it's not my opinion.
VAN PERNIS: And in my opinion, Mr. Mauck does not
F. STONE: Mr. Mauck wrote the federal law
VAN PERNIS: in any way say that.
CARR SMITH: Mr. Van Pernis, I'm sorry
VAN PERNIS: I think that I am asking an important question. You intend to not comply with
the conditions because of what Mr. Mauck says.
F. STONE: We only contracted with Mr. Mauck about a month ago, two months ago. I've been
talking to them, and we actually hired them to represent us
VAN PERNIS: Do you intend to
F. STONE: three months ago.
VAN PERNIS: not comply with all the conditions
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F. STONE: I intend to not comply
VAN PERNIS: because of the so-called—
F. STONE: with ones that are in violation of federal law
VAN PERNIS: Can I finish my question first? Do you intend not to comply with conditions on
your interpretation of this federal law?
F. STONE: I, I can't answer these questions because they are ridiculous.
CARR SMITH: Okay, I would like to move along because I don't think that's where we are; we
are trying to systematically go through objections
VAN PERNIS: [Inaudible.]
CARR SMITH: Excuse me, please don't interrupt me. Thank you. So I'd like to move along to
the conditions on the Special Permit.
F. STONE: Okay.
CARR SMITH: So we can understand where we are not on the same page.
F. STONE: All right, on Page 13,just reinforcing Planning Department view that the proposed
use is not contrary to the objectives sought to be accomplished in coastal zone management, and
we'll not have an adverse impact on traditional Hawaiian rights that is important to us.
KEALOHA: What are we on right now?
F. STONE: The Special Permit, yeah, on Page 13.
CARR SMITH: So far you commented on the things you agree with, right?
F. STONE: That's what we are about to do.
CARR SMITH: Okay.
F. STONE: And both of those on 13,they are saying that, what it says to me is that we fit in
perfectly in what does, land is supposed to be used for.
CARR SMITH: Right, okay.
F. STONE: Okay. Then on Page 15, on No. 2, No. 1 and 2, we are fine with those as the
conditions of approval.
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We did want to double-check on No. 3, the extension, if that is up to ten years, I think that we
can do that. We do need to fundraise to be able to build, but I think that if we have, if I
understand it, if we have five years with potential for extra five years, I think we can do that.
What we have a problem with is No. 4, "Prior to resumption of public activities on the property
and within the proposed Residential Yoga Ashram, the applicant shall secure change of use and
`as-built' building permits and be granted a Certificate of Occupancy meeting with the
requirements of the Department of Public Works [Building Division and/or] as articulated...,"
blah, blah, blah. And, so we think those refer to two things in the RLUIPA law. One is that it's
substantial burden; Certificate of Occupancy means you can't live there while you are doing
those things, you cannot live in a building, you cannot occupy a building until you have a
Certificate of Occupancy. So that means, in order to comply with that request, we would have to
move out of the residential ashram and do those things. And it's also, it says "prior,"because the
prior, it starts with prior. Also, "change of use," I have a sheet on that—I'll see if I can find that
one, sorry, I have so many papers—well, I can kind of cover it, if again you go to the
Correspondence on Page 79, and so, on Page 79 of the Correspondence, you'll see a couple of
charts. And, so I did not send this letter, but I wrote it: "Hi Christian. Can you help me
understand something? SGRY has applied for a Special Permit to be a church in Ag zoning,
which is clearly allowed under the County of Hawaii Permitted Use Table." I also printed that
out, and you can see that it has churches, and then if you go over, it has "Residential &
Agriculture,"they are allowed with a Special Permit. It has "Family Agriculture" and
"Agriculture," and "Interior[sic] Agriculture." So churches are permitted in all agricultural
zones with a special use permit. Okay, then on January 22nd, I received an email from Mr. Kay
saying, "Aloha Faith, Please see the attached comment memo from the Department of Public
Works-Building Division confirming that our County Code requires a change of use permit to an
R-2 (Monastery) occupancy to accommodate your request to be recognized as a residential yoga
ashram." Okay, and then Number "3) Then is correspondence with John Mauck and Associates"
in response to a FOIA"request, Freedom of Information Act; it says, "Please be aware, except
for telecommunications towers,the Planning Commission does not grant Use Permits in
agricultural zones. Use permits are intended for uses in Urban zoning designations. In other
words: Change your permit from a church in Ag zoning (a permitted use)to a Change of Use
permit which is not a permitted use. ... No,thank you, ... This position still denies that we are a
church. I think it is a violation of federal law, suggesting that we take a path that leads to us
being shut down as a church. That doesn't seem particularly helpful. And I think I can see the
next step after that. There is a Baptist church in Oceanview that changed their Ag zoning to
Commercial. They still don't have their special use permit and hold Sunday service in a carport.
I don't think we can make it that far." So we are being asked to do something that immediately
bounces us out.
KAY: Madam Chair
CARR SMITH: Can I get, can you clarify, please?
KAY: Yeah, if I may clarify. I think, unfortunately, there is some understanding of, a lot of the
permitting sounds the same but it's not. A Special Permit will grant the land use. Churches are
permitted in the Ag district,provided they get a Special Permit, which the Director is approving,
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or recommending approval to right now. Change of Use Permits are a building permit process
where if you are changing the use from what is currently permitted as a residence, which is, R-3
occupancy is something that's non-residential, which are other R occupancies, that's a building
permit process that happens after the Special Permit is granted. I responded to the Freedom of
Information request where the applicant's attorney was asking for all Use Permits in the State
Land Use Agricultural Districts: Use Permits, with exception of those for telecommunications
facilities, are for the State Land Use Urban District. A Use Permit and a Change of Use Permit
are two very different things; Change of Use Permit is a building permit that's regulated by the
Building Division of the Department of Public Works. So I think what's going on here is there is
a lot of misunderstanding, unfortunately, of the permitting process. Throughout the process
we've been attempting to provide written advice to the applicant on what they are likely to
encounter after their Special, if the Special Permit was approved, what other permitting
processes they would have to go through in order to effectuate their permit. And that's where we
are at this point. I, we've done our best to try and communicate that effectively. So that's where
we are at.
F. STONE: Unfortunately
VAN PERNIS: [Inaudible]that
F. STONE: that would, unfortunately
CARR SMITH: Excuse me, excuse me
VAN PERNIS: up to five unrelated people
F. STONE: unfortunately
VAN PERNIS: —could live in a residence, so her statements that said the people had to move
out aren't true.
F. STONE: No, they are not untrue.
CARR SMITH: Okay, so, it seems to meChristian, can you confirm they do not have to move
off of the property while they are waiting for their Special Permit to be completed?
KAY: I, I think, as a practical matter, probably not, but I believe they should probably speak
with the Department of Public Works, Building Division. It is currently, the structure is
currently permitted as a three-bedroom single-family dwelling.
CARR SMITH: So they can use it that way, correct?
KAY: So, I'm not sure, Jessica used to work for Building Division, and we were having
conversations about that, and she suggested that the applicant speak with them. And in our last
response to them, I suggested that the applicant speak with Public Works. It was not the
intention of the condition to eliminate their possibility of living on the property while they are
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going through their change of use permit. If it turns out that the language does that, it was
unintentional, and we can amend that as necessary before, if it's approved. What this is saying
is, "Prior to resumption of public activities on the property ... the applicant shall secure change
of use and `as-built' building permits and be granted a Certificate of Occupancy" for the new
use, for the non-residential use. And I think that's, again, maybe just lost in translation. Where
we were concerned is—and what we do with other church Special Permits is, especially those
that are wanting to operate within dwelling that's permitted as a residence, they have to go
through that process. We have consistently required those of other Special Permits. So I just, I
think what I want to lay out is we are treating this applicant like we would treat any other
applicant for a Special Permit for a church.
F. STONE: We disagree with that. If you go to Page 77, so we questioned the need in the
correspondence, so on Page 77, it's a summary of residential churches, which if you've read your
packet, it's 600 pages, there's probably a dozen times where Christian tells us there is no such
thing as a residential church in the county; however, I worked as a research assistant for Sorin
from John Mauck and Associates, too,plus we've been doing our own research, and so this letter
says there are "over 40 churches on the Big Island that have a residence for the priest, minister,
reverend... We are still looking. There are even more but this should be a pretty solid
representation of exactly what we are trying to do." Church residences on 1/23/2020, "Every
Catholic Church in Hawaii has a rectory for the priest or pastor. I spoke with Vince Vernay
from the Catholic Diocese. He said it is the home for the priest and a normal residence, not a
commercial building. When I asked him if it was residential or commercial, he was surprised.
He said–Well, none of it is commercial, we are a non-profit Church. This is an issue that has
come up repeatedly with the County: Christian said for lack of a better word we call you
commercial–we say we are not commercial; we are a church. The County says [They say] they
have no building code for that. Berkley said–Of course they do, it's called a church." And then
I went on talking to Vince and, "I said I was referring more to the building itself and he
volunteered: The Church usually builds the rectory with 2 bedrooms, that way the church can
accommodate visiting priests or deacons who can also serve for mass when the Pastor is on
vacation. He said most of them are located right on the church grounds but sometimes they need
to have the priest residence on a separate property due to space availability. Even if the priest's
home is built off of the public church facility, it is still part of the church." And 1/24/2020, "I
visited Rev. Jiko Nakade, who is the reverend for Daifukuji Soto Mission in Kealakekua, which
is one of the many Japanese Buddhist temples on the Big Island. She was willing to talk to me
about how their temples work. She said that the reverend has a residence home on the property
of every Japanese Buddhist temple on the Big Island. She said occasionally they are attached to
the temple but usually they are a separate home. I asked her if the residences were considered
commercial or residential. This stopped her as it did with the Catholic church. She said–
nothing is commercial, it is a church. I explained that I was helping the Yoga Ashram (she knew
about [of] us) and was working with the County but that they did not seem to understand
residences being part of the church. I said that they are looking more in terms of building codes
and that it is much more expensive to build commercially. She said that it is just a normal house.
She also told me that Christ Church, an Episcopal church,just down the road in Kealakekua,just
added a minister residence to their church. It also is just a normal residence."
VAN PERNIS: Could you tell me who your church pastor is?
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EXHIBIT E
F. STONE: I grew up Catholic, and I was able to ask them
VAN PERNIS: No, who is your church pastor
F. STONE: I
VAN PERNIS: your church pastor at your place
F. STONE: Is this appropriate?
VAN PERNIS: Is it you, or is it everybody you said you have living there?
F. STONE: These seem to be very off subject, and I'm not really sure how to answer them.
CARR SMITH: That's fine, you don't have to answer that. Do you understand
F. STONE: I didn't quite finish that letter.
CARR SMITH: Do you understand, though? I think we get the gist of it. I think that everything
that you've explained in that probably started as a church, not? And
F. STONE: No.
CARR SMITH: Okay.
F. STONE: You can, you can build a temple first, and then
CARR SMITH: Okay, I think we understand
F. STONE: the house, or you can do it the other way.
CARR SMITH: that these churches all have residence
KEALOHA: Can I ask a question, please
CARR SMITH: —and that's fine.
KEALOHA: to clarify something?
KAY: Sure.
KEALOHA: Okay, so, the residence was approved and permitted.
F. STONE: Mm-hmm.
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KAY: Asa single-family dwelling
KEALOHA: Asa single-family dwelling.
KAY: Correct.
KEALOHA: What's
F. STONE: That's all we need.
KEALOHA: What's requesting an as-built is ashram that's attached to the residence.
F. STONE: No, only the deck.
KEALOHA: Only the deck.
KAY: If
KEALOHA: So all we are talking about is approval of the deck, which doesn't prohibit the
home.
KAY: There's a few other things. Based on, based on the applicant's application, as well as the
as-built building permits that came in
KEALOHA: Right, but, additional buildings and so forth
KAY: Right, the additional bedrooms, the as-built deck
KEALOHA: but the home was approved.
KAY: The home was approved as a residence.
KEALOHA: Correct.
KAY: Correct.
KEALOHA: So you are asking for the non-residential use
KAY: Public Works in their memo to us indicated that based on review of the application and
their permits, that these type of change of use would be required. So I
VITOUSEK: Is that for the whole building?
KAY: That is for sections of the building. The issue with this one is, again, "Prior to resumption
of public activities." I think were the activities within the structure or around the yoga deck to be
just for those who live in the structure,those probably wouldn't be a problem or an issue, but as
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was represented by the applicant,they are bringing the public, members of their church, into the
sanctuary area to practice, so that's, at this point, like any other church, they would have to build
to that code for public health and safety prior to operating public activities within the structure.
That's all this is saying. Again, being very consistent with other churches that we've done
Special Permits for.
F. STONE: So what we were saying is we want to use it just as a residence, and that we were
building the facility for the public. We do have nine members. I don't think members are the
public, and neither does federal church law. Two of those members are myself and my husband.
Those members are church teachers; they are not somebody off the street. We consider the
public, if you go to a restaurant, if you go to a movie theater, that's public. These are members
that have been members for a long time. And we don't, we did cease and desist, we don't have
anything open to the public. And I should let you know this is really we've made a mountain out
of a mole hill, because our public is those three to ten people coming for yoga classes. We are
not the kind, yoga ashrams and the yoga practice is not the kind of two, three, four, six hundred
people on a Sunday; it's really small, it's really small. Half of our membership is here today,
there's seven of us here.
CARR SMITH: All right. Mr. Vitousek.
VITOUSEK: I just, it just seems to me like we are way closer than it appears to an agreement on
these things, you know? I think that the conditions for
F. STONE: The change of use is our biggest obstacle.
VITOUSEK: And then for me just trying to further understand that, the change of use applies
only to the
F. STONE: The residence.
VITOUSEK: as-built.
F. STONE: Right.
VITOUSEK: Is that right? Am I getting that right?
F. STONE: They are already permitted as built.
KAY: If I may, I'm going to ask Jessica to address that
VITOUSEK: Sure.
KAY: —given that she worked for Building Division. She would be able to more intelligently
address it.
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EXHIBIT E
ANDREWS: Yeah, so, I've worked with Building Code for many years, and so I can address the
question of change of use. What was your question specifically?
VITOUSEK: The question is, so, let's see, we've got the existing permitted residence here,
single-family residence or whatever you want to call it, and then we've got this unpermitted yoga
deck and that's an as-built, right? So, is the condition saying there's no public use of this as-built
yoga deck until the change of use is completed only for this yoga deck? Am I right?
ANDREWS: Well, if the yoga deck is intended to be used for the purposes of yoga instruction
for the ashram, then it's not technically, it likely wouldn't be considered a single-family
residence, which is strictly
F. STONE: It's not.
ANDREWS: just R-3, right?
F. STONE: It's not intended.
VITOUSEK: Okay
ANDREWS: So if, so that would be the, it will be up to the Building Division to assess, I mean
this is something that would be, it will play out during the building permit process. So I think
what the, the change of use, the question specifically of change of use
VITOUSEK: Yeah.
ANDREWS: that is if you have a residence and you want to change an office to a bedroom,
that's a change of use, that requires actually a permit. It's not, it's not only residential to
commercial; it's a pretty broad term that applies to just your changing the use of a space from
what it was originally permitted for.
VITOUSEK: So in this case, the change of use applies only to the as-built. Is that right? Or
does it apply to the entire building?
ANDREWS: Well, the as-built has never been permitted, right? So it's, you are trying to
establish use. So it's, in the eyes of, you know, of the reviewer of the Building Division, it
would just be a new, new construction.
VITOUSEK: So basically, what you are looking at is a change of use on this existing use as a
single-family dwelling to a church. Is that right?
ANDREWS: Yes, if that's how it's presented through the building permit process, that's how it
would be reviewed.
VITOUSEK: Okay, so the existing designation of this building is as a single-family residence.
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F. STONE: Right, and that's enough,just like it is with a rectory for the priest, the parish house,
all the Japanese temples that have a residence for their minister. That's all we are asking for.
It's not for the public.
VITOUSEK: So, again, you know, on that question, are those, in that example, you know, I
know a lot of examples of where there is a residence on the campus of a church, is that classified
in the same way?
ANDREWS: So I've actually reviewed building permits for a pastor,the building of a pastor on
Buddhist temples on this island, I've actually permitted them. And there are three, because it's a
single-family residence, but it's not used for any church functions. They are permitted as the
single-family residence, for a pastoral residence.
VAN PERNIS: As single-family—
F. STONE: That's what we are asking for.
VAN PERNIS: residence for the pastor
ANDREWS: Yes.
VAN PERNIS: right? Not for everybody's, but just for the pastor.
KAY: So what
F. STONE: Right. Agree.
KAY: the details this gets into is of the other portion of the dwelling that was permitted
originally as an exercise room or family, an exercise room, has been converted into a shrine or a
worship area. That's where members of the church come and do meditation practice and other
types of uses that is public use of a dwelling that changes that use to now not a single-family
residence or pastor's residence, but now something that you are bringing the public into. It gets
into the nitty-gritty, but that's the comment letter that we received from Public Works, Building
Division. We incorporated that into the condition of approval. We offer some flexibility in this;
if you read the language, it says, "the applicant shall secure change of use and `as-built' building
permits and be granted a CO [Certificate of Occupancy] meeting with the requirements of the
Department of Public Works [Building Division] and/or as articulated in Building Division's
December 27, 2019 memo[random]." So that's saying is that if they change their proposal and
they no longer have public use within that structure, then they likely won't have to get a change
of use from residential to non-residential. So we are trying to allow for some flexibility there,
but based on what was represented to us and based on the as-built building plans, we got the
comment letter from Public Works.
VITOUSEK: So if you decide that you want your single-family residence to remain entirely as a
single-family residence with no change of use, and you want to plan your church activities on the
new building that's coming in and the as-built deck, which is going in, in that case, they have the
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existing single-family residence, not changing, they don't need to change the use, the change of
use would happen in the newly constructed areas and the as-built areas.
KAY: The newly constructed areas wouldn't require a change of use; they would just be
permitted as non-residential. What the applicant has represented, it said until such time as the
new structure is built, there will be no public activity; in the same breath, they said, however
we'd like to still maintain our meditation practice on the property in the meantime. So that's
what we are trying to address is that"meantime." There is some disagreement in whether or not
members of the church are members of the public; the way the County sees it is if they do not
reside on the property, they are members of the public.
VAN PERNIS: [Inaudible.]
CARR SMITH: Microphone.
VAN PERNIS: Members of the public stay off until the new structures are permitted.
KAY: That's what was represented by the applicant.
VAN PERNIS: Okay. And, do I understand the applicant were complied with that condition?
F. STONE: We already did. We ceased and desisted.
VAN PERNIS: No public activity on the property until the
F. STONE: We already did.
VAN PERNIS: And you are not going to argue that the inapplicable federal law somehow
supersedes that?
F. STONE: No, I'm always going to argue that federal law supersedes County zoning and
regulations.
VAN PERNIS: Well, I can just tell you that it doesn't, and you are
F. STONE: It does.
VAN PERNIS: invited to go to court and try to get that ruled
F. STONE: And that's where we'll
VAN PERNIS: you will fail.
F. STONE: —end up, if we can't agree.
VITOUSEK: So, but, again,just trying to bring it back to
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F. STONE: What you said is right
VITOUSEK: solving the issue here
F. STONE: you said right, what you said is right.
VITOUSEK: so you guys, you know, if it's something that we can work out, because the
change of use and all that is a building permit issue, not a Planning Commission issue, so you
guys can work it out with them on the design and the layout of your residential versus religious
uses of the property
F. STONE: Exactly, exactly.
VITOUSEK: outside of the jurisdiction of our commission so we can move forward with the
application, the Special Management Area Permit—is there a question?
F. STONE: I, I'd rather, because we haven't had a chance to discuss, and I don't know what
he's going to say and he's not as familiar with church law as I am, I'd rather
VITOUSEK: Okay.
F. STONE: consult first. I do just want to point out on Page 4 of the John Mauck and
Associates in the second paragraph, and I can just read it so you don't have to try to find it,
"Finally, the fact that Church also uses its property to house its ministers is typical of many
religious assemblies across the country and in Hawaii. Both today and historically, religious
assemblies maintain living quarters for their clergy such as rectories, parsonages, parish houses,
or the like." Now, the one thing that we did ask is that we be able to, we have a meditation
room, it's a normal room but we filled it with buddhas and gods and goddesses and paintings, all
sacred art, it's a sacred space, we have nine members from the public that we like to meditate
together on Monday nights—and actually, I shouldn't even call them "from the public"; two of
them are my husband and I, we started the ashram, and then there are seven others who are
longtime teachers. I'm talking seven, ten, twelve, 15, 20 years. We don't consider them the
public. We want to get together just, if you wanted to have a card game or if I had Girl Scouts, I
don't need a Special Permit to have my Girl Scouts to come over. That's just your freedom to
assemble, which is the Fourteenth Amendment, and also the First Amendment, which is freedom
to practice your religion.
VAN PERNIS: Your Girl Scouts don't live at the ashram.
F. STONE: What did you say? You seem very nasty and hostile.
VAN PERNIS: Your Girl Scouts may come and have their troop meetings, but they don't live
there overnight.
F. STONE: Nor do the people that come and meditate with us once a week.
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VAN PERNIS: Like your husband.
F. STONE: Exactly.
VAN PERNIS: He doesn't live there.
F. STONE: No, we don't live there. We are trying to retire. We founded the ashram. We
bought it in 1999. My husband is now 72. I'm 65. We are trying to retire and turn it over to
these two wonderful people. So we go over on Monday night and teach.
VAN PERNIS: So your violation of 20 years means nothing.
F. STONE: It's not a violation. If you read the John Mauck, it's just that we need to get
VAN PERNIS: I have read it in detail
F. STONE: a special use permit.
VAN PERNIS: —and it does not apply. We are not
HALL: Commissioner
VAN PERNIS: church—
HALL: Commissioner Van Pernis
F. STONE: I consider him hostile. This man is hostile.
HALL: Hold on one second. Commissioner Van Pernis, this is not an adversarial process. We
are processing a permit. You are not here to attack applicants; we are here to discuss what is
before us, which is two applications with conditions. So if you are not going to act in a civil
manner, we are going to ask you to leave.
VAN PERNIS: [Inaudible] out of order.
CARR SMITH: Sorry? What was your response?
VAN PERNIS: I think
CARR SMITH: Could you use your microphone?
VAN PERNIS: I think this is a condition she does not intend to
CARR SMITH: Use your microphone, if you are going to speak.
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VAN PERNIS: If she doesn't intend to comply with the conditions for whatever reason
F. STONE: Because they are illegal.
VAN PERNIS: that's something we should know.
CARR SMITH: Okay, I think we are all good, we are working through these conditions.
Okay
F. STONE: Okay, so that was No. 4. And also, the two laws in the federal law that apply to this
are, to do the change of occupancy, which maybe we are beyond that and if we don't have to do
that, that's fabulous, we are just about done, reply to that it would be a substantial burden to do
that. Also, equal treatment is another condition of the federal church law that just means if you
have one church that has a residence and a public facility, then you have to honor that for any
other church, and I've shown 40. And that's not,that's, there is more.
VITOUSEK: And I don't think anybody is questioning that from the Planning Department, from
the Planning Commission. We recognize it, you know, that's a standard practice, and they are
just trying to follow the administrative process in order to make it work within the system, so to
speak
F. STONE: Okay.
VITOUSEK: so I think the generality is everybody is okay with the concept
F. STONE: Great.
VITOUSEK: of having a church and a home in the same environment
F. STONE: Fantastic.
VITOUSEK: —it's just trying to, you know, work that in with the system that we have.
F. STONE: Okay, great.
VITOUSEK: Right?
F. STONE: No. 6, the "Vehicular access to the subject property shall be limited to Sea View
Circle. All driveway connections to Sea View Circle and any work within the County
Right-of-Way shall conform to [Chapter] 22 ..."with that code. We have been toldso, now
I'm going to switch over, if I could, for some of the explanations. This is the one that starts with,
"Hi Christian, I received your responses"—is that it?
CARR SMITH: Which Condition is this referring to?
F. STONE: The ones that we were contesting.
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KAY: No. 6.
CARR SMITH: No. 6.
KAY: No. 6 of the Special Permit.
CARR SMITH: Didn't we, haven't we discussed the access already?
F. STONE: No. Because—all right, so, No. 1, No. 2
CARR SMITH: I believe we determined that you are in the process of working on the easement.
F. STONE: Right.
CARR SMITH: But until you have that in place, it's not recognized as an access
F. STONE: However
CARR SMITH: by the County.
F. STONE: we have been, twice, we have been written by the County that, because it is our
legal address, because it's where we get our mail
CARR SMITH: I understand that
F. STONE: because of the extreme hardships that we would be able to use it residentially, and
then just in the conditions of approval, we were told that we cannot. And that puts us in a
difficult position with our neighbors because when we worked with the Sea View neighbors,
even though the traffic study will show that there's on average on weekdays 15 cars on the
bottom of our, on our dead-end that pass through, there is 1,770 at the top. We sat in a car,
recorded it and measured that, so at the top of Sea View Circle, 1,770 cars go by that first house.
If you come down to the first letter of complaint we got, which was addressed traffic, there are
400 and 50 or 60 cars that go by there every day. Of those eight go to the yoga ashram, of those
420. When you get down to where the road Ts, 167 cars go by that Alan and Tisa's house, and
then when they turn, there's 15. But I told, I asked Joe, would you please just double-check on
Saturdays because Saturdays were when we had the public yoga class and maybe ten people
would come in season, much less than that other than this wintertime. So he did, and he
measured 45 cars on a Saturday, and of those two were coming to the ashram. That was when
we did, we stopped all public classes. So prior to that, on a Saturday if there was 45, there might
have been 65 because ten cars coming and going. The ashram uses less, it has the same, less
traffic than what is a single-family residence according to national standards, which is ten to 20
trips per day. So, we were trying to work with the neighbors, though, and say that, fine, if you
don't want the yoga class, we can use the other side and just use this for residence. We, and
Christian had recommended that we do a meeting with neighbors to tell them what we are up to,
get to know them, see what their concerns are. So we took that advice; we do have a poster, and
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we sent it out to the neighborhood and invited everybody to come and talk about their concerns.
We told them that if there was one problem that we have, it could be just ignorance; we didn't
know that it was bothering them. And there, if I can refer you to the traffic packetsorry, it's
stapled—it shows that, or I can tell youoh, that was that one—and it's in your packet as well.
VITOUSEK: Mind if I ask a question?
F. STONE: Mm-hmm.
VITOUSEK: So, if Condition 6 were to say, "Vehicular access for public use of the subject
property shall be limited to Sea View Circle...?"
F. STONE: That would be okay, but we have to explain that to the neighbors because the
commitment we've made to them was residents only, and even though we are not offering any
public yoga classes and don't intend to,that was our commitment. So we tried to explain that. I
actually sent a letter to all the neighbors, and said, oh—well, let me back up a little bit, because
after
VITOUSEK: But, actually, if I just finish that thought there
F. STONE: Yeah, go ahead, okay.
VITOUSEK: so the reason behind that, so what we are regulating with the Special Permit is
the non-residential use, right?
F. STONE: Mm-hmm.
VITOUSEK: So for us to say that we are regulating vehicular access for the public use, which is
what we have the authority to regulate, we are not saying anything in there about allowing access
over the Judd Trail or anything like that.
F. STONE: He does.
VITOUSEK: Well, I mean what
F. STONE: We could change it.
VITOUSEK: what I,that's what I'm suggesting here is that we change this here so we are not
saying anything specifically about the Judd Trail, because that's
F. STONE: It does, it does.
VITOUSEK: outside the purview of our, of our role as Planning Commission, to regulate the
access for residential uses. When you look up and down that road and if every single one of
those residential lots is using that access, that's something that's bigger than just you guys.
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F. STONE: Exactly.
VITOUSEK: So, again, you know, if we are looking at this in terms of the Special Permit and
we are saying the "Vehicular access for public use to the subject property shall be limited to Sea
View Circle,"that's limiting the public use; we are not condoning or condemning the Judd Trail
access because that's an issue that you guys need to work out independently.
F. STONE: I think that's fantastic and that would solve most of our problems. I just would like
to ask Carrol, because we had told Carrol we would only have residents' traffic. Commercial
traffic or non-resident traffic is going to be even less than the residential traffic. So very
minimal, like less than a single-family residence.
VITOUSEK: Christian, is that
F. STONE: So, if that's okay
VITOUSEK: is that something
F. STONE: with Carrol.
PICKETT mom the audience]: Well, may I interrupt
VITOUSEK: I'm not in control of that, but
HALL: Wait a second.
VITOUSEK: Christian, is that something that the Planning Department would be able to put
in as a condition?
KAY: The Director has made his recommendation. Our concern is we don't want to be seen as
condoning access over, an access they don't,they don't have legal access to.
VITOUSEK: Yeah.
KAY: If the Commission chooses to propose an amendment to that condition and votes on that
condition, you are welcome to do so.
VITOUSEK: So, again, the same question of us putting that condition requiring the public use to
be in this area, and not specifically saying anything about the Judd Trail, we are not condemning
it, we are not condoning it.
CARR SMITH: That's why it's not there.
VITOUSEK: Yeah.
KAY: It's, it's not only the Judd Trail, but Ho`omaluhia as well.
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VITOUSEK: Same, yes.
KAY: Yeah.
UNGER: We would be silent on that, essentially.
VITOUSEK: Because I don't feel like in my capacity now, I'm able to review the access
easements for Ho`omaluhia, for Judd Trail; I don't think that's our position really. I think we are
looking at the special use permit, and if we were tying the access for the special use permit to the
allowable access, then, and we are not saying anything about their access, and they can figure
that out.
KAY: As the approving body, that is your right to suggest amendments to conditions.
VAN PERNIS: Christian, can I ask you whether the applicants have submitted any proof that
they have a right-of-way or easement over Ho`omaluhia?
KAY: We have had a significant amount of back-and-forth correspondence where the applicant
has felt like they found documents proving access. We've done our research and to this point
have not been able to substantiate legal access over Ho`omaluhia.
F. STONE: What I
CARR SMITH: Could it
F. STONE: If you want to talk about that more, I can address that. It is in your packet as well.
It's kind of far towards the back and there is not page numbers, but in the original articles
VITOUSEK: Do we need to talk about that? Is this, is that part of
F. STONE: No.
VITOUSEK: —our role as reviewing the Special Permit?
F. STONE: I would be happy to answer you.
VITOUSEK: Their access?
CARR SMITH: Well, I think you brought it up here. It seems like on No. 6, could we not say,
add to the end of it and say, "until such time as Applicant attains legal easement over
Ho`omaluhia?"
F. STONE: The problem is that Judd Trail could take another 15 years.
CARR SMITH: Well, I, but, you know, you have to understand the County's position, too.
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EXHIBIT E
VITOUSEK: And what I'm saying
F. STONE: Right, but then a private road
VITOUSEK: is that we are reviewing only the Special Permit, and so the condition of the
Special Permit that we are implementing is that the use associated with the Special Permit be tied
to the existing allowable access off of Sea View. We are not saying anything about the
Ho`omaluhia, about the access over the Judd Trail.
UNGER: So, for example, Item No. 6 could be written to read something like, "Vehicular access
for the public to the subject property shall be limited to Sea View ...T'
VITOUSEK: Exactly.
F. STONE: We would be very happy with that.
CARR SMITH: Shall be limited to the public?
F. STONE: Yes.
VITOUSEK: "Vehicular access for public use of the subject property ...."
F. STONE: Thank you. Thank you very much.
VITOUSEK: Okay, that's, that's a possible
CARR SMITH: That's a possibility.
VITOUSEK: Yeah.
F. STONE: I would add one more thing onto that, which is just that when I talked to, we have
been paying members of the road association. We are listed in the TMK. I'm not going to go
into that because you already solved it. But the position of the private road association was it's a
private road,the County doesn't have jurisdiction, they can't say. In addition, we've put in
22,000 dollars, we pay 130 dollars a month, for the road association for 20 years. All right
VAN PERNIS: So you ought to be able to get,provide some proof of a written easement for the
use of that.
F. STONE: No. 7, I think we've talked about the floodplain. We can show that there isn't any
floodplain. Then, within that, we also show that instead of the DPW drawing the floodplain
map, it was actually Christian who's in Planning Department, and it didn't seem accurate to us.
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EXHIBIT E
No. 8, I think we already addressed, because that addresses the Certificate of Occupancy, but
now it sounds like the County is not going to require us to get a change of use permit, and so
then that's taken care of.
HALL: Sorry, let me just correct you on that. For one thing, though, for your actual church
building, you probably will need a Certificate of Occupancy, so then
F. STONE: Oh, sure.
HALL: Yeah, so
F. STONE: Yeah.
HALL: then this would apply to that.
F. STONE: Yeah, okay.
HALL: Yeah,just wanted to make sure.
F. STONE: Great, yeah, I actually wrote that, "new."
HALL: Okay, yeah.
F. STONE: Okay, great, thank you.
HALL: Mm-hmm.
DARROW: Madam Chair? If I can interject.
CARR SMITH: Yes.
DARROW: The applicant is not understanding. It was made clear that this process that we are
speaking about happens after this. When they go to the Department of Public Works to submit
their permit, whatever we put on here doesn't matter. We don't even have to have these
conditions. If they are in a tributary, they are going to have to meet that code. If they need a
change of use, they are going to have to apply for it. So it's just the way the process works. So
after they are done here and may go in to submit their permits, all that will happen regardless of
whatever permit condition we have. So you could take them all out, they'll still have to do it. So
I hope they understand that now. Thank you.
F. STONE: We do. And our only issue with any of those was just the change of use, because
change of use is not allowed in Ag zoning and a church is allowed in Ag zoning.
DARROW: Again, change of use is a process through the Department of Public Works for a
building permit. Doesn't matter what zoning you are in
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EXHIBIT E
F. STONE: Mm-hmm, we have
DARROW: doesn't matter. You could be in
F. STONE: Mm-hmm, I understand.
DARROW: —you could be in any zoning, and you could require a change of use. It is not a
Use Permit; it is a change of use building permit. Okay? Do you, do you understand that?
F. STONE: What I understand is that we don't want to make any changes to our residential.
DARROW: You will have to, if you have to go in and permit unpermitted structures or
F. STONE: It is against
DARROW: unpermitted additions.
F. STONE: federal law.
DARROW: Again, it doesn't matter, once you go in
F. STONE: It does matter.
DARROW: It doesn't matter, because
HALL: Jeff, it's DPW's call, so let's just leave it to DPW.
DARROW: Yeah, I'm just trying to get passed this.
HALL: I get it, I understand. But at the end of the day, Public Works will have to decide that
for
YEE: Yeah, I want to be clear just to drive Jeff's point home. When you say that we are kind of
signing off of change of use, that,that is incorrect. No matter what they are voting on is not
addressing the change of use issue that you seem to be concerned about
F. STONE: Then it's in violation of federal law.
YEE: Again, I am saying they are not voting on change of use; they are voting on special use,
okay, Special Permit.
F. STONE: They are insisting that we take the current already permitted building that has been
in existence for 20 years, which we are not changing at all, it's the residence, and saying that we
have to change it to a change of use, which rejects and throws out our original permit.
YEE: Again, Ms. Stone, understand, the Planning Department is separate from the Building
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EXHIBIT E
F. STONE: Exactly.
YEE: so when you have to apply for a building permit, you are doing it with them, not with
us.
F. STONE: Okay.
YEE: So, when you say, "You are breaking the law," it's not us. When you go to building
permit, they will issue whatever determination they have for you with a building permit.
F. STONE: Then, can we just take that out? The thing that says that you must, you are required
to have a change of use. Because we'll just work that out with the building department.
YEE: We didn't say you have to have a change of use
F. STONE: Yes, you did in the conditions.
YEE: That doesn't say that.
F. STONE: It does.
VITOUSEK: So, again, going back to the solution that I think we have of you guys, you know,
maintaining your existing use of your residence, applying for the different use, the religious use,
on the as-built deck and the new structure, I think you are good, you know, I think everything is
going to work out
F. STONE: Okay, and the access, too.
VITOUSEK: —well for you guys.
KAY: Do you still intend to utilize the worship room for your meditation practice within the
structure?
F. STONE: We use it every morning at five o'clock for two hours.
KAY: For, for public use.
F. STONE: It depends on if you call our members public use. We don't. And if you make us go
outside to meditate—and there is no impact—and that is illegal on federal law. It's against the
Constitution, and it's against the RLUIPA law.
VAN PERNIS: It's
VITOUSEK: You know, I, and to me, I think that, you know, religious activity can be part of
the single-family residence, you know, that you guys, if you want to pray in the corner of your
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room, you can pray in the corner of your room. I mean I don't think that's the intent of this. So,
you know, I think if your praying is part of your use of your single-family residence, yeah, shoot,
you know, go for it. But if you are establishing structures that are dedicated only to the religious
practices and that kind of thing, they want to have that in line with their codes.
F. STONE: Right.
VITOUSEK: So I think we are really in a close place to where we should be and, you know, if
we can move it in that direction, you guys will be happy with the result, I think.
F. STONE: I think so, too.
VITOUSEK: So if—can we move towards public testimony?
CARR SMITH: If they are finished
VITOUSEK: And I'm unfortunately going to have to step out in about five minutes.
CARR SMITH: I know. So, are you ready to wrap up your presentation
F. STONE: I do need to
CARR SMITH: so that we can go on to public testimony?
F. STONE: I need to address one thing that we just got. I would also hope thatI noticed our
neighbor Carrol is here, and I have on, it's hard to find, I did give it to you in your packet, but
there is a lengthy transcription of our correspondence where there is quite a bit of
misinformation, so I would like you to at least be aware of that. Secondly, we just got something
from Wanda Carry this morning, and it is full of the same thing, misinformation; it's saying that
we are not allowed, that we've violated the DLNR, we've violated the Judd Trail, that church
members hang out in front of her house. It's just full of, but it's one person out of the Ho`omalu
Subdivision, we have four neighbors on all sides that have, so I just want to say that that
CARR SMITH: Okay, thank you.
F. STONE: Okay. I do have one more thing. I'll try to make it quick. Based on these things,
again, with the John Mauck, and the difficulties that can happen, the weaponizing the permit
process, that we were required to do an SMA, we did it, the floodplain, the Public Works, that
Mr. Kay redrew the map, which should be the Department of Public Works, not the Planning
Department. Planning consultants, we were advised to get a planning consultant. We didn't
think we would need to since I've written four permits before, but we could not get anybody
from the County to answer our emails or answer our correspondence, so we looked into it. We
contacted Zendo Kern, because Sidney Fuke is retiredI heard him today, and he did good
jobI'm not specifically against planning consultants, but the contract that Zendo gave us was
for 40,000 dollars, and I do know that when Sidney Fuke did the Living Stone's church, which is
a 600-seat church, 30 times as large as us, he charged 9,000 dollars. I would recommend that
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there be some kind of accountability or something for who, planning consultants, because this is
something that Mr. Kealoha, I heard you at the last meeting, says that when you can just say,
okay, you need to do this or you need to do this, you need to do this permit, you need to get a
planning consultant, it makes it cost prohibitive for most people, only the very wealthy or the
extremely determined, which is where we come in.
Then, according to what we understand, we are not commercial usage that we have been
threatened to be fined, if we practice our religion on our property, if we are caught meditating;
that's against federal law. We did actually shut down and have been shut down since July 31 st
for eight months we've had no public programs; that's against federal law. And, the barn and the
gazebo that we were told that we had to have permitted; within the County zone planning, under
600-foot square[sic]buildings, you don't have to permit. So there have just been a lot of
questionable things that have made the process extremely difficult and very stressful, so.
CARR SMITH: Okay, well, the Planning Director has recommended a favorable, approval with
these conditions, so it could be worse.
F. STONE: Are we clear on what the conditions are? Because I, we'll go with what
Mr. Vitousek said.
CARR SMITH: Thank you. You may all be seated.
F. STONE: If you don't want to keep the correspondence and stuff, I can take it back to recycle.
CARR SMITH: Okay, we'll move on to public testimony. All right. Could Wanda Carey,
Rosanne Shank, Brian Lamb and Anne Saks, please come forward?
VITOUSEK: So, unfortunately, I'm going to have to go. You guys still have quorum, though.
Thank you.
CARR SMITH: Thanks, Mike.
[Commissioner Vitousek left the meeting at 3:16p.m.]
CARR SMITH: Wanda Carey?
CAREY: Yes.
CARR SMITH: Who are we missing?
FROM THE AUDIENCE: Rosanne.
CARR SMITH: She left?
FROM THE AUDIENCE: Yes.
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CARR SMITH: Okay. That's fine. Raise your right hand, please. Do you swear or affirm to
tell the truth on this matter before the Planning Commission?
TESTIFIERS: I do. Yes.
CARR SMITH: Okay. Start with you, please.
CAREY: My name is Wanda Carey. I live across the Judd Trail from Faith. I bought my
property at the top of Ho`omalu because it was a gated community, it offered the privacy and
views I was looking for. Ho`omalu and Sea View Circle are not neighborhoods that a
4,800-square foot church, 35 feet high, plus commercial kitchen, classrooms, guestrooms, should
be built in. It would be unfair to both communities. By their action they have shown no respect
to rules, laws, regulations or agreements. Early in 2005 a water meter was installed on my
property by Faith Stone. DLNR told me she had no easement across Judd Trail for waterline, her
water comes from Sea View Circle. I mentioned their driveway and was told it was illegal and
was asked to pass on to her attorney that they get in touch with DLNR. In April 2005, their
request for a driveway easement over the Judd Trail was not granted. They do not have dual
access. The only time they mention Sea View Circle in their permit documents is to say the road
is 29 feet wide and Ho`omalu is 42 feet wide. Not true. It's 30 feet wide, and it's not theirs to
use. Their documents clearly show plans to use our private road and turn it into a public road.
They were granted permission to hold two classes a week. They agreed to use Sea View Circle,
their legal access. On February I Ph and February 12'h I was coming home and saw two large
vans loaded with people entering their property from our private roadway that they agreed not to
use. February 181h and 19'', using our roadway again, their usage is daily. They claim their
usage of our private road will not have any impact on us. Projected use of 20 trips a day will be
an increase in traffic at the top of the hill by at least 80 percent. That's a huge impact.
As for letters from neighbors on all sides, not true. I am on the Ho`omalu side. The Judd Trail is
between our two properties. I did not write a letter. A letter from Sea View Circle side said no
noticeable increase in traffic. Could it be because they are not using Sea View Circle? They
plan to have so many retreats each year, opening up to the general public. Not only will they be
in violation of no more than five unrelated persons on one property, they will create more traffic
than Sea View Circle or Ho`omalu can handle. Guests at Lot 2 have used my property as a place
to hang out and talking on the phone. Lot 2 needs to be fenced off, block them from loitering in
our roadway and on my property. Late one night a young lady climbed over my gate, looking for
the yoga studio. They are giving out gate codes to our gated community.
Please do not allow this permit for special use of agricultural land. They have shown no respect
for anyone. They will destroy our communities. These communities are not the place for this
kind of commercial business. They are zoned areas for that. This is not one of them.
I'd also like to say—Faith is talking about all these permits she was getting for everyone else
Ho`omalu Subdivision Lots 1, 2, 3, 4 and 5 do not have access to Ho`omalu roadway. Lots 3, 4
and 5 enter from Kuakini, and then there's lots in between them, so they can't get to the road.
Lots 1 and 2 have access from Sea View Circle. Lot 1 has not used Ho`omalu, and they use
strictly Sea View Circle. Faith is the only one who has crossed the Judd Trail illegally. She is
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not a member of our association. I know she says she is paying dues, but when I was on the
board, she was not a member. There is a new board that has taken over, and, maybe they've
added her, but we didn't vote her in. And DLNR, DLNR told me that all the lots below Lot 1, all
have legal access over the Judd Trail to Ho`omalu because otherwise it would have been
landlocked and could not have been sold. Thank you.
CARR SMITH: Thank you.
VAN PERNIS: I have a question to
CARR SMITH: No, not yet, thank you.
SAKS: Good afternoon, my name is Anne Saks, and I've lived in Kailua-Kona over 20 years
with my husband Mark, and raised my daughters here. We first lived at Sea View Circle, and at
that time we started going to Konalani that was Year 2000, and we really found it a wonderful
place to be with people who practice the same believes we do. I've been a practicing Buddhist
yogi for 40 years, and I started in Colorado. I knew Faith, and we are really family more than
anything else. That's why I'm kind of that gray area; I'm not really the public, I'm family. And
Konalani has been an `ohana for my family. My kids did Girl Scouts camp there and learned a
lot of important values as people. They graduated from Kealakehe with honors. My husband
and I are both schoolteachers. I think we taught some of your children. And so we are lay
members. We are community servants. We are people, like you, who also practice Buddhism
and yoga, and, you know, in a different way, and we really, really need a place to practice, and
there's only really a few handfuls of us, if you count the number. The people who come on
retreats are generally not from the area, and they don't have cars; they are mostly there doing a
retreat. So my, you know, I'll drive my car over there because I live in Kona.
So the ashram is really a place of sanctuary. It really provides a service to the community.
There aren't many places like this. My husband also leads a Mindful program in the schools,
which is based in meditation, because it's very important that kids learn this. And so, you know,
he walks the walk, too.
In conclusion, I support the special use permit for the Konalani ashram so that it may continue to
provide a spiritual sanctuary with profound teachings that can support others in the community in
the future. Thank you.
CARR SMITH: Thank you.
LAMB: Good afternoon, my name is Brian Lamb. I'm a resident of Kona. I've been here just
about my whole life, about 40 years now. I am an owner and operator of a wastewater utility
company here, private sector, so I get to deal a lot with communities and with the County, State,
Federal level everything. And for the past ten years now, I've been a member of the Konalani
yoga ashram, and it has helped me with my personal growth of working on becoming a better
person, more involved in the community. I've met many individuals through this group that
have used my services, and we've helped really better our areas around us. And I really feel that
the Konalani ashram has provided a place for a lot of people to kind of come and do that—I
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wouldn't say "a lot"but like she said a handful of the residents here to have a normal spiritual
practice where we can come and work on our personal growth and our connection with God.
And I don't see any impact from my years of being there where it has impacted any neighbors;
everybody is quiet, there is no stereos blasting as they drive by through the neighborhood, like I,
you can hear in any neighbor, you can hear people driving thumping their sounds through the
car, in their cars, and making a nuisance. I found that anyone affiliated or living at the ashram is
respectful, quiet, they keep their areas clean, they think about their neighbors and their
community. And we all try to stay as involved as we can with our communities. And you've
heard many different ways through Girl Scouts,through Pony Ride, through donating food,
through artwork shops, and through yoga classes, and these are people in the community that
appreciate having the yoga ashram here. It's a place for them to come practice, for them to build
a better, stronger structure within themselves to become better people. And even if it's just 14
people, those 14 people can spread enough compassion and care for their neighbors that it
becomes infectious. And without this, I really see that effectiveness diminished. And I fully
support the special use permit for Konalani Yoga Ashram. Thank you.
CARR SMITH: Thank you very much. Are there questions from the Commissioners?
VAN PERNIS: [Inaudible.]
CARR SMITH: Use your microphone, please, and keep it brief, if you don't mind.
VAN PERNIS: To your knowledge, ma'am, does this property have any kind of a legal
right-of-way or private entry over the private road you refer to?
CAREY: They have no legal access to Ho`omalu.
F. STONE[from the audience]: That's wrong. I[inaudible]that's, that's not true.
VAN PERNIS: Are you aware of any legal right?
CAREY: Excuse me?
VAN PERNIS: Are you aware of any legal right?
CAREY: Absolutely none.
CARR SMITH: Okay, thank you.
VAN PERNIS: All right. Secondly, are you aware that if the approval with conditions is
granted, that you can complain of any violation of conditions to the Planning Director who then
can take action?
CAREY: I understand that.
VAN PERNIS: Thank you.
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CARR SMITH: Thank you very much for your testimony. You may be seated. Next up is Devi
Stone and Carrol Pickett. [Inaudible commentfi°om the audience.] Oh, I'm sorry, okay. Oh,
Carrol?
PICKETT: Yes.
CARR SMITH: Oh, you are Carrol, got it.
PICKETT: Good afternoon.
CARR SMITH: Hello.
PICKETT: I think we started this morning. Anyway, I'm Carrol Pickett.
CARR SMITH: Raise your right hand, please, and
PICKETT: Oh, I'm sorry.
CARR SMITH: Yes. Do you swear and affirm to tell the truth on this matter before the
Planning Commission?
PICKETT: I do. Yes, ma'am.
CARR SMITH: Use your microphone, please, and then tell us, proceed.
PICKETT: I'm Carrol Pickett. I'm adjoining the said property. Originally, I, we built the house
in Sea View sort of 1971, and I've lived there ever since, and we are the owner of that property.
And when we bought the property at Sea View Circle, the north end of that was barricaded off,
because the pasture, that end was pasture land, not the subdivision, and I understand that that was
never to be open because that property is not part of Sea View Circle and never has been part of
Sea View Circle. So they opened their rights there for their property, which we didn't have a
problem at the time, but I tell you it was illegal. But the problem we have now is because if they
get permits for other traffic coming in there, my house and one other house is dead-end, across
the street is my other neighbor; we are the only two, three houses, that are actually complaining
about the new traffic coming through there. Because the gate now is open at the end of their
property. So any excess property from the—excuse me, my mouth is so dry—so I understand
they don't have legal rights to open that in the first place. I may be wrong, but. But the only
complain now I have is the traffic, extra traffic, since the barricade is not there anymore. That's
the only problem I have with the adjoining properties. What they are doing in their property,
getting permits, if that's all okay, if that's all approved, we don't have a problem with that at all,
okay? Thank you.
CARR SMITH: Okay, thank you very much. Appreciate it.
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PICKETT: Oh, I want to, I'm sorry, I'm speaking on behalf of the other two neighbors. They
both got sick. One hurt his back, and they had doctor's appointment, so I did bring Tika, which
is, her husband is sick, and he couldn't be here also. Thank you for your time.
CARR SMITH: Thank you. All right, Commissioners, I need a motion to close public
testimony.
LINGER: I make a motion to close public testimony.
KEALOHA: I'll second.
CARR SMITH: All in favor?
COMMISSIONERS: Aye.
CARR SMITH: Anyone opposed? [None.] Okay, public testimony is now closed. I would like
to ask the Director if, after hearing public testimony, if your recommendation is still the same.
YEE: I would request a five-minute recess, if you are asking me that question.
CARR SMITH: That's fine. Let's take a five-minute recess. We'll be back at, let's say, 3:45.
[Chair Carr Smith called a recess at 3:32 p.m. The hearing was reconvened at 3:40 p.m.]
CARR SMITH: Since everyone is back here, maybe we'll go ahead and get back to it here. So,
Director Yee, did you, or Christian, want to respond to my question before the break?
YEE: Yes, so, I'll maintain the favorable with some changes, which Christian will read, which
incorporate what we've been talking about.
CARR SMITH: Okay, Christian?
KAY: First thing is just, because there are no time conditions on the SMA, we are going to
strike the time extension condition—superfluous and not necessary there.
In terms of No. 4, "Prior to resumption of public activities on the property and within the
proposed Residential Yoga Ashram, if required by the Department of Public Works, Building
Division, the applicant shall secure change of use and `as-built' building permits and be granted
a Certificate of Occupancy meeting with the requirements of the Department of Public Works,
Building Division, and/or as articulated in Building Division's December 27, 2019
memorandum." That's changes, so the changes are essentially, "if required by the Department of
Public Works, Building Division."
Okay—sorry—and then the other one that has to do with access is, and this is what
Commissioner Vitousek laid out was, "Vehicular access for public use to the subject property
shall be limited to Sea View Circle," and then the rest of the condition will remain as is.
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CARR SMITH: Can you give me some reference numbers here so we are all
KAY: I apologize. The first one relative to the change of use is Condition No. 4 of the Special
Permit
CARR SMITH: Oh, I thought you said we were on the SMA, sorry.
KAY: Oh, sorry, yeah, the SMA was just striking, sorry, yeah, we are striking No. 9 from the
SMA, and then adjusting the Condition No. 4 in the Special Permit to read, "if required by the
Department of Public Works, Building Division," and then
CARR SMITH: Got it, okay.
KAY: the access clarification that Commissioner Vitousek laid out for Condition No. 6.
VAN PERMIS: Could I ask to add another condition that I believe the applicant agreed to?
KAY: As I understand that these are the, at least the first two were the Director-suggested
changes. I think once there is a motion, you'll have an opportunity to request an amendment to
the conditions. Is that correct? Okay.
CARR SMITH: Sorry, don't, don't leave yet. So, on the
KAY: I wouldn't dream of it.
CARR SMITH: on the SMA,just so we can proceed clearly here
KAY: Okay.
CARR SMITH: —Item No. 4 is adding "if required by DPW."
KAY: On the Special Permit.
CARR SMITH: On the Special Permit. Okay.
KAY: So, on the Special Permit, No. 4, "Prior to resumption of public activities on the property
and within the proposed Residential Yoga Ashram, if required by the Department of Public
Works, Building Division, the applicant shall secure change of use and `as-built' building
permits and be granted a Certificated of Occupancy meeting with the requirements of the
Department of Public Works, Building Division and/or as articulated in Building Division's
December 27, 2019 memorandum."
CARR SMITH: So it's just No. 4 in the special use permit?
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KAY: Number 4, and then the other one was No. 6 and that was Commissioner Vitousek's
change
CARR SMITH: For public use.
KAY: For public use, correct.
CARR SMITH: And then scratching No. 9 on the SMA.
KAY: Correct.
CARR SMITH: Okay, so that's what we are working with on the Director's recommendation.
KAY: Correct.
VAN PERNIS: Could I offer to it another special condition and see what the
HALL: You need a motion first, sorry, yeah, we need a motion first, and then we can discuss
amendments.
UNGER: I'd like to make a motion. I move that the application for Special Management Area
Permit, Docket No. 19-000074, be approved based on the Planning Director's recommendations,
which shall be adopted, subject to changing Item No. 4 of the requirements to
HALL: No, you are doing SMA, right?
UNGER: This is SMA, I'm sorry, SMA, to strike Item No. 9.
CARR SMITH: Second?
KEALOHA: I'll second.
KAY: If I may, we
CARR SMITH: Motion by Mr. Unger and second by Mr. Kealoha.
VAN PERNIS: May I propose a friendly amendment?
CARR SMITH: Yes,just a moment, please. Christian, did you have a comment?
KAY: Yeah, we seem to have misplaced the file, so I need the voting sheet, okay, we'll transfer
this into the file once the voting is done. So, sorry, the motion was from Commissioner Unger
and the second was Kealoha
CARR SMITH: Kealoha, for the SMA.
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KAY: Okay, and then, and that's for the SMAah, here we are [the voting sheet],thank you
for the SMA Unger and Kealoha—and this was, approve as recommended by the Planning
Director, including striking out No. 9. Okay, and any—okay, I've got, I've got the motion.
CARR SMITH: Okay. Mr. Van Pernis, is your
VAN PERNIS: Thank you.
CARR SMITH: suggestion regarding the SMA?
VAN PERNIS: I believe, I'll make the said recommendation, but I guess it's the Special Permit
that allows for the commercial kitchen.
KAY: That's correct, so that would be when we discuss the Special Permit.
VAN PERNIS: I'll defer until when we discuss the Special Permit.
KAY: I apologize, let me just double-check to make sure that that's accurate. Okay, okay, yeah,
it'll be on the Special Permit, not the SMA.
CARR SMITH: All right, so, we have a motion on the floor. Is there any other discussion about
the SMA? [None.]
Applicant, could you come to the table by yourself, please? I just want to make sure that you
understand what we are doing on the SMA Permit
F. STONE: Yes.
CARR SMITH: we are scratching the
F. STONE: Yes.
CARR SMITH: time frames
F. STONE: Thank you.
CARR SMITH: Okay?
F. STONE: Appreciate it.
CARR SMITH: Thank you. You can stay there.
F. STONE: Okay.
CARR SMITH: All right. Can we have a vote, please?
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KAY: Yes, thank you, Madam Chair. Commissioner Unger?
UNGER: Aye.
KAY: Commissioner Kealoha?
KEALOHA: Aye.
KAY: Commissioner Newberg?
NEWBERG: Aye.
KAY: Commissioner Van Pernis?
VAN PERNIS: Aye.
KAY: And Chair Carr Smith?
CARR SMITH: Aye.
KAY: Thank you. Madam Chair, motion carries, five-nothing.
CARR SMITH: Okay. All right, let's go to the Special Permit. I need a motion for that.
UNGER: I'd like to make a motion.
CARR SMITH: Sorry?
UNGER: I'd like to make a motion.
CARR SMITH: [Inaudible advice from Ms. Hall.] Oh, yeah. Did you understand the changes
that we discussed?
F. STONE: I'm sorry, I believe so. Can, can I just refresh? So
CARR SMITH: On the Special Permit, right?
F. STONE: Right.
CARR SMITH: Okay.
F. STONE: Let me just make sure I do have the right one. So, yeah, No. 1 and No. 2, we're fine
with that.
CARR SMITH: We are just talking about 4 and 6 as far as
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F. STONE: Right.
CARR SMITH: the changes made by the Planning Director.
F. STONE: And that's really all, other than, the floodplain was No. 7, and so, but that sounds
like we just go to the Building Department with that.
KAY: Engineering Division.
CARR SMITH: Okay.
F. STONE: We are fine with that.
CARR SMITH: All right. A motion for the Special Permit, please?
LINGER: I'd like to make a motion. I move that the application for Special Permit, Docket
No. 19-000210, be approved based on the Planning Director's recommendations, which shall be
adopted, subject to changing recommendation No. 5 [sic]to read, "Should the Department of
Public Works, Building Division, require it, and prior to resumption of public activities on the
property and within the proposed Residential Yoga Ashram, the applicant shall secure change of
use and `as-built' building permits and be granted a Certificate of Occupancy meeting with the
requirements of the Department of Public Works, Building Division, and/or as articulated in the
Building Division's December 27, 2019 memorandum," and then Item No. 6 to be changed to,
"Vehicular access for members of the public to the subject property shall be limited to the Sea
View Circle. All driveway connections to Sea View Circle and any work within the County
Right-of-Way shall conform to Chapter 22, County Streets, of the Hawaii County Code."
VAN PERNIS: Point of order. Could I ask the motion maker what memorandum the maker is
referring to?
UNGER: On which item?
KAY: Number 4 speaks to
UNGER: Number 4
KAY: Building Division's memorandum of December 271h.
UNGER: Right.
VAN PERNIS: Memorandum of who?
HALL: DPW.
KAY: DPW submitted to us a memorandum outlining the requirements for a change of use
permit.
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VAN PERNIS: All right, thank you.
KAY: One clarification, if I may, Chair[sic]Unger, you said, "the Sea View Circle?" Did you
want"the" in front of that
UNGER: No, Sea View, as it's written.
KAY: Thank you. So if I'm clear, "Vehicular access for members of the public to the subject
property shall be limited to Sea View Circle. All driveway connections to Sea View Circle and
any work within the County Right-of-Way shall conform to Chapter 22, County Streets, of the
Hawaii County Code."
UNGER: Correct.
KAY: Okay, thank you.
CARR SMITH: One more comment. You said, "Item 5"; you meant Item 4. So,just for
Noriko's
UNGER: Item 4, I'm sorry, I meant Item 4.
CARR SMITH: Yeah.
UNGER: Okay.
CARR SMITH: Is there a second?
KEALOHA: I'll second.
CARR SMITH: Any discussion about this?
VAN PERNIS: I'd like to make a friendly suggestion for amendment.
KAY: Okay.
VAN PERMIS: First of all, don't get me wrong; I'm a yoga practitioner myself. But I think this
applicant has demonstrated some disregard of the public and the law, and what they refer to
Federal laws as some applying here, and it certainly does not as Mr. Mauck writes. So I'd ask
Mr. Yee to closely monitor the conditions of this approval, if it passed, to see whether or not
anything is violated, particularly the public access issue.
The friendly amendment I said I believe the applicant has agreed that the commercial kitchen
would be limited to supplying food on premises, not off premises. If we can make that as a
special condition, I appreciate it.
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KAY: The condition of approval that speaks to the certified kitchen is Condition No. 12. If you
want, you could add something to the end of that to that effect, without adding another condition.
VAN PERNIS: That's what I'd like to do.
KAY: Do you have any language, Commissioner Van Pernis, that you would like to add?
VAN PERNIS: Just a short sentence that the commercial kitchen shall be limited to providing
food for the premises only and not the public.
F. STONE: We don't have any problem with that.
KAY: Shall be limited to the premises only?
VAN PERNIS: Not the public outside.
KAY: Okay. Only and not for the public outside.
F. STONE: Although I don't think that's defensible. Though we don't intend to do it anyway.
VAN PERNIS: I'm sorry, are you opposed now?
F. STONE: I'm just saying I don't think it's legally defensible when you have a licensed
kitchen, but we don't intend to do it anyway, so we agree.
VAN PERNIS: So it's okay.
F. STONE: Yeah.
KAY: Okay, if I can read this, I won't read the entirety of Condition 11 [sic], but after
Certificate of Occupancy
LINGER: Well, let me, I think I need to probably either withdraw my motion, or can I modify it,
or?
HALL: Yeah, you can amend it.
KAY: You can amend it.
LINGER: Okay, I'd like to amend it according to Commissioner Van Pernis's suggestion.
KAY: All right. And after "issuance of a Certificate of Occupancy"period, "The commercial
kitchen shall be limited to the premises and not for the public offsite."
VAN PERNIS: Preparation of food in
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KAY: Preparation of food in the commercial kitchen.
KEALOHA: And I'll second that.
CARR SMITH: Thank you. Any other discussion? [None.] Very good. When you are ready,
Christian, we'll take a roll call vote.
KAY: Okay, thank you, Madam Chair. With the amended motion, Commissioner Unger?
UNGER: Aye.
KAY: Commissioner Kealoha?
KEALOHA: Aye.
KAY: Commissioner Newberg?
NEWBERG: Aye.
KAY: Commissioner Van Pernis?
VAN PERNIS: Aye.
KAY: Commissioner, pardon me, Chair Carr Smith?
CARR SMITH: Aye.
KAY: Thank you. Madam Chair, motion carries, five to nothing.
CARR SMITH: Very good.
F. STONE: Thank you very much. I appreciate it.
CARR SMITH: You'll be alerted in writing of the decision. Thank you.
The hearing ended at 3:55 p.m.
Respectfully submitted,
Noriko Sauer, Secretary
Leeward Planning Commission
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