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HomeMy WebLinkAbout2020-06-18 Leeward Exh D (AMEND REZ 2004-024 & AMEND REZ 2004-025) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JUNE 18, 2020 A regularly advertised continued hearing on the applications of SUFFOLK INVESTMENT LLC (AMEND REZ 2004-000024) and PUAA DEVELOPMENT LLC (AMEND REZ 2004-000025) was called to order at 11:50 a.m. via live-stream meeting, with Chairperson Nancy Carr Smith presiding. COMMISSIONERS IN ATTENDANCE: Nancy Carr Smith, Perry Kealoha, Max Newberg, Mark Van Pernis, Michael Vitousek and Faith "Faye" Yates ALSO IN ATTENDANCE: J Yoshimoto, Esq. (Counsel for the Commission), Michael Yee (Planning Director), John Mukai, Esq. (Counsel for the Planning Director), Christian Kay (Planner), Jeff Darrow (Planning Program Manager), Maija Jackson (Planner), Jessica Andrews (Planner), Alex Roy (Planner), Rachelle Ley (Secretary to the Planning Director) and Noriko Sauer(Commission Secretary) APPLICANT: SUFFOLK INVESTMENT LLC (AMEND REZ 2004-000024) Continued hearing on an application to amend Condition B (Time to Pay Water Deposit), Condition C (Time to Complete Construction), Amend Condition D (Delete Rental Housing Restriction), Amend Condition E(Delete Requirement for Supplemental TIAR), Amend Condition F (Roadway Improvements), Amend Condition H (Location of Spine Road within Project Site), Amend Condition I(Kuakini Highway Improvements), Amend Condition U(Requirement of a 5-acre School Site & Improvements), Amend Condition V (Fair Share), Amend Condition X(Affordable Housing Requirement& Change Housing Program Approving Authority), and Amend Condition Z (Administrative Time Extension) of Ordinance No. 05-113. Ordinance No. 05-113 reclassified the 14.872-acre property from Agricultural-5 acres (A-5a) to Multiple-Family Residential-2,500 square foot(RM-2.5) in 2005. The subject property is located west(makai) of Queen Ka`ahumanu Highway and east(mauka) of Kuakini Highway and the Kahakai Estates Subdivision, approximately 2,200 feet north of the Queen Ka`ahumanu Highway - Kuakini Highway intersection, Puapuaaiki 1st, North Kona, Hawaii, TMK: (3) 7-5-017:019. APPLICANT: PUAA DEVELOPMENT LLC (AMEND REZ 2004-000025) Continued hearing on an application to amend Condition B (Time to Pay Water Deposit), Condition C (Time to Complete Construction), Condition E(Delete Requirement for Supplemental Traffic Study), Condition F (Roadway Improvements), Condition H (Location of Spine Road), Condition I (Kuakini Highway Improvements), Condition V(Requirement for a 5-Acre School Site and Improvements), Condition W (Fair Share Contribution), Condition Y (Affordable Housing Timing), Condition Z (Housing), and Condition BB (Administrative Time Extension) of Ordinance No. 05-115. Ordinance No. 05-115 reclassified the 14.973-acre property from Agricultural-5 acres (A-5a) to Neighborhood Commercial-20,000 square feet(CN-20) in 2005. The subject property is located west(makai) of Queen Ka`ahumanu Highway and the Pualani Estates Subdivision, and 1 EXHIBIT D about 1,400 feet north of the Queen Ka`ahumanu Highway - Kuakini Highway intersection, Puapuaaiki 1st and Puapuaanui P', North Kona, Hawaii, TMK: (3) 7-5-017:001. Secretary's Note: "- - -" indicates that there were technical and/or internet difficulties, which made the conversation inaudible. CARR SMITH: Okay, so, the next two applications, Agenda Item 5 and 6, are two separate applications, but we are going to hear them together. We heard these cases in February, and they were deferred to the next meeting, which is today in May [sic]. So I'm going to read these long agenda items again: Suffolk Investment LLC, AMEND REZ 2004-000024, continued hearing on an application to amend Condition B, which is a time to pay water deposit; Condition C, time to complete construction; amend Condition D, which deletes rental housing restriction; amend Condition E, deletes requirement for supplemental TIRA, I'm sorry, TIAR; amend Condition F, which is road improvements; amend Condition H, which is a location of the spine road within the project site; amend Condition I, Kuakini Highway improvements; amend Condition U, which is a requirement of a five-acre school site and improvements; amend Condition V, which is fair share; amend Condition X, which is affordable housing requirement and change housing program approving authority; amend Condition Z, which is administrative time extension. This is all of Ordinance No. 05-113. Ordinance No. 05-113 reclassified the 14.872-acre property from Ag-5 to Multi-Family Residential- 2,500 square feet in 2005. The subject property is located makai of Queen Ka`ahumanu Highway and east, mauka, of Kuakini Highway and of the Kahakai Estates Subdivision, approximately 2,200 feet north of the Queen Ka`ahumanu Highway-Kuakini Highway intersection, Puapuaaiki P', North Kona, Hawaii. TMK: (3) 7-5-017:019. Okay? Agenda Item No. 2 [sic] is Applicant Puaa Development LLC, AMEND REZ 2004-000025. This is a continued hearing on the application to amend Condition B, which is time to pay water deposit; Condition C, time to complete construction; Condition E, complete [sic] requirement for supplemental traffic study; Condition F, roadway improvements; Condition H, location of the spine road; Condition I, Kuakini Highway improvements; Condition V, requirement for a five-acre school site and improvements; Condition W, which is fair share contribution; Condition Y, which is affordable housing timing; Condition Z, which is housing; and, Condition BB, which is administrative time extension, of Ordinance No. 05-115. Ordinance No. 05-115 reclassified the 14.973-acre property from Agricultural-5 acres to Neighborhood Commercial-20,000 square feet. The subject property is located west of Queen Ka`ahumanu Highway and the Pualani Estates Subdivision, and about 1,400 feet north of the Queen Ka`ahumanu Highway-Kuakini Highway intersection, PuapuaaikiI'm not sure I'm saying that right—I" and, in North Kona, Hawaii. TMK: (3) 7-5-017:001. All right. So those are the agenda items. Some housekeeping, since Commissioner Yates was not at the meeting in February, I need to ask if you have had a chance to review all the materials. Mark, can you give her the microphone, please? YATES: Yes, I have. 2 EXHIBIT D CARR SMITH: Very good, thank you. All right. Christian, please proceed with your presentation. KAY: Yes, thank you, Madam Chair. If you give me a moment, I'll switch on my screen here. CARR SMITH: Okay. KAY: And, can everybody see it there? CARR SMITH: Good. KAY: Okay. Again, as you stated, these are, the next two agenda items, we are going to do one presentation for the both of them, given that there is a connection between the two, both geographically as well as from an ownership standpoint. And, essentially, the two properties are being designed as part of one larger master-planned community. The subject properties here outlined in red for Puaa Development and in blue for Suffolk Investment are situated in the North Kona district of Hawaii Island. For reference, we've got Queen Ka`ahumanu Highway running generally north-south through the slide in the middle here, and also a little bit further makai, we've got Kuakini Highway again generally running north-south through the slide. For further location reference, we've got Pualani Estates here mauka of the Puaa property shown in the yellow, and then makai of the Suffolk property, we've got Kahakai Estates Subdivision, and that's makai here of Kuakini Highway. So I just want to go through the existing entitlements and what was proposed initially and now the current proposed project. For the Suffolk property, Ordinance No. 05-113 was approved on August 5, 2005, to change the zoning from an Agricultural-5 acre zoning designation to a Multi-Family Residential-2,500 square foot zoning designation for 14,872 acres. The applicant originally proposed at the time a 250-unit market-rate rental housing development, with the 300-stall parking lot and a one-plus-acre park. The applicant is currently proposing to reduce the number of rental units to 226 and intends to develop open space and a passive recreation area. For the Puaa Development property, which is approved under Ordinance 05-115 on August 5, 2005, that changed the zoning from Agricultural-5 acres to Neighborhood Commercial-20,000 square feet for 14.973 acres. The applicant in that case initially proposed to develop a neighborhood commercial shopping center, including a 93,600-square foot complex that would house varied commercial uses, such as financial institutions and office spaces. Also proposed was a 500-plus parking stall lot, with appropriate accessibility requirements. The applicant is currently proposing a reduction in the size of the commercial project from 93,600 square feet to 72,600 square feet. Also included in this current proposal is the inclusion of a transit hub in the form of a public bus transfer station, as well as the addition of 100 multiple-family residential units. I will note here that in the application it spoke about 100 multiple-family residential units on the Puaa Development property; however, when we get through the site plan, you'll see that it's actually 150 multiple-family dwelling units shown on the site plan on that property. So there is a bit of discrepancy between the application and what's on the site. So the next two slides list the applicant's amendment requests that the Chair read at the beginning, so instead of re-reading through all of them, I'll leave them on the screen for you to read. And so 3 EXHIBIT D with the exception of two specific Conditions for the Suffolk property and one for the Puaa property, the other requested amendments are essentially the same. So in the case of the Suffolk property, those two Conditions are related to rental housing and affordable housing. First is Condition D, which currently requires the project to be used for rental housing for a period of 20 years as what was represented by the applicant at that time of the original change of zone; so the applicant in this case is asking to delete that Condition entirely. Second is Condition X, and the applicant is requesting to amend that, which, again as represented by the applicant at the time of the original change of zone, would have, would require a minimum of 20 percent of their rental units with the Suffolk property to be rented at 80 percent or less than the median income level and the remainder to be rented at a 120 percent or less in the area median income level; in this case the applicant is requesting relief from these requirements to be replaced with standard affordable housing language. And then next is for Puaa Development, and again in that case the applicant is requesting to delete Condition Y, which currently requires the project to include housing. The Condition goes on to require that at least 50 residential units be under actual construction with completion assured by surety bond before a certificate of occupancy can be issued for any commercial structures. In addition, that Condition requires an additional 50 units of housing would be built under those same conditions, if any commercial uses exceeds 60,000 square feet of gross floor area; so in this case they are asking for relief from that requirement. And again, other than those, the rest of the conditions that they are asking for amendment remain the same, or are essentially the same. The applicant's stated reasons for request are basically due to the economic, the global economic meltdown that occurred in 2008, over a decade ago; they had difficulty securing the required financing to initiate and complete the project as represented, as a funding was too difficult to obtain, and thus they decided to prioritize exploring alternative uses for the properties, including sale of the properties, and exploring sources for construction financing. The applicant believes that the current economic outlook is amenable; however, time is still needed for the applicant to address the various conditions of approval, to incorporate and finalize plans, and to secure the required financing. Again, I'll just note that the economic outlook being amenable was pre-COVID. According to the applicant, they have worked on compliance for several conditions, including the conveyance of a five-acre site for a future school as required by the ordinances, but it ultimately did not get approved because that was tied to a subdivision of the property that never occurred, and then the school relocating to a different area. Lastly, although there has been no physical construction that has occurred, the applicant states that they have expended a considerable amount of soft funds, including nearly a million dollars spent for more detailed land use planning and the preparation of infrastructure construction plans for the projects. So the zoning for the subject properties are as follows: Again, for reference, we have Queen Ka`ahumanu Highway running in the middle of the slide here north-south, and Kuakini Highway running toward the bottom, and again, Puaa Development is a Neighborhood Commercial-20,000 feet as indicated in the pink color, and for Suffolk Investment we've got Multiple-Family Residential-2,500 square feet. Other zonings in the area are a mix of Single- and Multiple-Family Residential, some Agricultural and some Neighborhood Commercial closer to Kuakini Highway. The State Land Use designation for the subject parcels is a State Land Use Urban as is indicated by the pink colors. The other designations that we see here, Agriculture as is indicated by the green color. It should be noted that in conjunction with the change of zone ordinances granted in 2005, the 4 EXHIBIT D applicant secured State Land Use Boundary Amendments - - - of the subject parcels. As each of those parcels was under 15 acres, they were able to do so through the Planning Commission and the County Council. And the General Plan designation for, under the General Plan Land Use Pattern Allocation Guide Map, for the subject parcels is largely Urban Expansion as is indicated by the thatched design. There is some Low Density Urban to the bottom of the screen, indicated in yellow, and some Medium Density Urban in the upper left that's consistent with other Multiple-Family Residential zoning in the area. The Kona Community Development Plan designates this area within the Kona Urban Area as is indicated by the red line. And the, the subject parcels here outlined again in red and blue are right in the middle of the Kahului-Puapua`a Village Neighborhood Transit Oriented Development area, and we'll get into what that means a little bit more later. Here is an aerial photograph of the subject properties with the Puaa property again outlined in red and Suffolk outlined in blue. So, as you can see, mauka of Puaa you've got the subdivision here, and then makai of Suffolk you've got the Kahakai Estates Subdivision here. The properties are generally vacant of any improvements or structures. In compliance with some conditions of approval of the subdivision, there was a paved road built here in this area, and that's consistent with a utility corridor. Here is the applicant's proposed site plan entitled the "Pualani Makai —A Master Planned Community," and encompasses both properties. The plan shows two accesses from Queen Ka`ahumanu Highway - - - at the top of the screen: One is on the left here across from Puapua`anui Street; and the other further to the right is the mauka-most terminus spine road that's required by the existing ordinances. That spine road intersects with Kuakini Highway, which is generally running in this area towards the bottom on the makai side of the larger area. The Puaa Development property outlined again in red on the mauka side depicts a commercial office center here on the left-hand side and the associated parking, for the middle of the property there you can see what is meant to be a drug store area, and mauka of that is the proposed bus transfer station, and then further to the right of the screen is proposed areas for about 100 units of multiple-family residential. And as I mentioned before, there is a bit of discrepancy between what is in the application in terms of the number of multiple-family residential units in the Puaa property whereas they said 100, but there are another 50 multiple-family residential units being shown on their site plan here just makai of the commercial area. For the Suffolk property, further makai - - -the proposed 260-unit multiple-family residential development. Finally, the site plan does depict a few archaeological sites that are shown on the larger area, and they don't appear to be directly located upon the existing Puaa or Suffolk property. Here are some site photos showing surrounding roadways of the subject parcels. The photo on the upper left shows Kuakini Highway heading toward Kailua-Kona. The upper right is a view of the same highway heading the opposite direction, with the intersection of the Kahakai Estates Subdivision here on the right. On the bottom left is a view of Queen Ka`ahumanu Highway looking toward Kailua-Kona; this is at the Puapua`anui Street intersection, with the subject property that being Puaa Development, on the right-hand side. And then the bottom right is Queen Ka`ahumanu Highway looking the other direction, with the subject property on the left-hand side. 5 EXHIBIT D So the Planning Director is recommending an unfavorable recommendation be forwarded to the Hawaii County Council for both ordinances for the following reasons: The proposed requests do not conform to the goals, objectives, and actions of the Kona Community Development Plan; the proposed requests do not conform to the goals,policies, and courses of action of the Land Use– Commercial, Development& Land Use–Multiple Family Elements of the General Plan;previous segmentation of this area in securing planning entitlements is inconsistent with State Law; and, the proposed request will not result in a more appropriate land use pattern that will further the public necessity and convenience and the general welfare. I just wanted to point, and I didn't the last time, but these four bullet points here are actually part of the criteria we look at when we are making recommendations for approving changes of zone and amendments thereto, so the language is very specific because we are recommending unfavorable based on those analysis points. So to the first one, "The proposed requests do not conform to the goals, objectives, and actions of the Kona Community Development Plan,"the CDP was adopted in 2008, approximately three years after the zoning was approved, and the CDP being adopted with extensive community input. As we stated before, the subject properties are situated right within the middle of the Kahului-Puapua`a Village Transit Oriented Development area. And within those areas in the Kona Urban Area, the CDP calls for development of compact, walkable, mixed-use village development as a preferred development pattern in those areas. The recommended way to do that is through the development of a Project District zoning, which is identified in the CDP as a mechanism to achieve that development pattern in the Transit Oriented Development area, as it allows the flexibility in both permitted uses, as well as the densities, required all developed under a master plan to meet the compact, walkable, mixed-use preferred future for those areas. So, conversely, the existing single district zoning that we have, both the Multiple-Family Residential and Neighborhood Commercial zonings, cannot achieve this preferred pattern. The applicant has suggested that conditions of approval could further the TOD concept, but the Director doesn't want to create a new development process through separate zoning ordinances, you know, on a case-by-case basis, but really prefers to use the existing community-vetted master planning process that was recommended in the CDP. The applicant has stated that this is not possible because a Project District requires a minimum of 50 acres of land area. And as we'll discuss it in a minute, we believe that based on the shared ownership of the parcels, not only the two subject parcels but surrounding parcels, we can find 50 acres to meet that Project District requirement. The next slide I want to show is something that I didn't show in the original presentation. But when we went back and we talked about it a little bit, we thought it would be a good idea to show you kind of a graphic representation of what a TOD development could look like. There are two existing TOD developments under, under process right now in Hawaii County and actually in Kona, and that's Palamanui and Makalapua; we were told that we probably shouldn't bring up any of those images because they will likely come in front of this body in the very near future for action, so we didn't want to jump the gun on those. But we looked around to see other areas in the islands that are doing this type of TOD development. And what you see here is from the Island of Oahu, and this is the Waipahu Neighborhood TOD site plan, or proposed land use plan. As you can see here—and, I'm sorry, maybe a little be unclear to read but the development is really centered around this rail stop here in the middle, and it should be noted that in this case and in the case of most of TOD developments envisioned in the State and by the Kona CDP, that the transit component is really 6 EXHIBIT D central to the development of the area, and not just as an add-in of a bus transportation as is proposed by the applicant. Now, the TOD development really allows for mixed several different uses, including—within this pedestrian shed area, which is indicated by this dash circle these include mixed-use residential and commercial, with higher intensities and densities in the core around the transit, as well as high density and medium density housing, which, as you get further out in the pedestrian shed, you see some of those designations, some civic spaces, and then high medium density live-work spaces, which means both residential and commercial in the same buildings, or within the same block with each other. So, really, not wanted to get too heavily into the particulars of this TOD, but just kind of give you a graphic representation of what it could and should look like, and kind of comparing this graphic to what's being proposed for Puaa and Suffolk. Extending the zoning under the existing zoning, the Neighborhood Commercial and Multiple-Family Residential, would really only allow for kind of two of these colors, and that's, you know, commercial in the Neighborhood Commercial area, with some separated multiple-family residential, and then another separate multiple-family residential development,which is largely constrained by our existing Zoning Code in terms of permitted uses and again densities that would be allowed under the existing zoning. So, again, I'll just reiterate that the only way to really created a compact walkable mixed-use neighborhood TOD development that's recommended by the Kona CDP, is through this larger, more comprehensive project development and planning that's allowed by the Project District zoning in, as recommended by the CDP and allowed for in our Zoning Code. And at this point I just want to reiterate that although it would require a bit more of planning work on the frontend, it also offers the developer some significant benefits in terms of increased density and a broader mix of permitted uses than what's currently allowed. Getting back to the question of the minimum 50 acres required for the Project District, and we showed this the last time, this is just the ownership of the parcels in the area. This shows the properties owned, the subject property here, the Puaa property and Suffolk property are the subject properties, but the other remaining properties are also owned by Puaa Development, with the exception of Suffolk. And according to DCCA records, the listed managing partner for Suffolk Investment is Puaa Development. So there is an ownership connection there, and we believe that it would be possible to consolidate those parcels to come up with the minimum 50 acres required, as the parcels together are approximately 60, 61 acres. So, getting with the next stated reason for our unfavorable recommendation, "The proposed request does not conform to the goals, policies, and courses of action of the Land Use–Commercial Development& Land Use–Multiple Family Elements of the General Plan." The proposed time extension and amendments do not comply with General Plan Policies: 14.3.5.7.2 of the Land Use– Commercial Development section states that"Controls to prevent speculative practices on commercially zoned lands may be established"; and, 14.5.3(e) of the Land Use–Multiple Family section states, "To assure the use of multiple residential zoned areas and to curb speculation and resale of undeveloped lots only, the County may impose incremental and conditional zoning, which shall be based on performance requirements." And we believe that that's what the original ordinances did; they put in place several conditions that locks the applicants into performance of developing multiple-family residential and commercial development. And, you know, a lot of the requested amendments are asking for relief from those conditions. Construction was supposed to be complete by 2015. Last time we made this presentation, we were unable to confirm that an administrative time extension was requested. After the fact, the applicant did provide us with those 7 EXHIBIT D documents. So there was an administrative time extension that was granted to 2015; however, with that said, the applicants waited over four years to attempt to revive stale ordinances and is now doing so to either sell the properties or secure a development partner. And in fact, if you look back at the transcript from the last meeting, the applicant themselves, or their representatives, stated that it didn't make sense to try and ask for a time extension before the time that they did when they didn't have anybody on board to develop. Unfortunately, the ordinances do have those time frames in place, and our code does require requests of time extensions prior to those expiration dates. So in this case, the applicant is requesting kind of a large time extension to commence construction within ten years and complete construction within 20 years. So what they are asking for is an amendment to commence construction within five years and complete construction within ten, but they are also asking for the ability to have an administrative time extension, which could multiply that up to ten years to start and 20 years to complete. And in the case of Puaa, they are asking for another change to say that completion of construction should be for either the commercial component or the residential component and not both, as is currently represented in the condition. The applicants have not demonstrated to the Director's satisfaction that they have a plan to complete construction in the requested time frames nor have they demonstrated any recent efforts to comply with numerous conditions of approval. As we stated last time, and very early on we met with the applicants' representative and let them know that we were leaning toward an unfavorable recommendation for many of the reasons we've stated here, and asked them to provide us with a detailed construction schedule outlining how they could meet their requirements of the ordinances or what they were proposing within the time frames designated. What they did provide to us unfortunately was just the name of their possible development partner, Spring Capital, and at the last hearing they handed out kind of a CV of some of the projects that Spring Capital had done, but other than that, even to this point four months later they have not provided us with any kind of a detailed plan showing that they can actually develop the property as is being represented. So at this point it's hard for us to find the Director's satisfaction that they can actually complete within the time frame that they are asking for. Secondly, within the last 15 years the applicant has had an opportunity to comply with other conditions of approval. They stated that they had done some roadway designs and some drainage designs and things like that; however, there are several other conditions of approval, such as the requirement to complete sewer studies; a requirement to do water calculations and get water commitments, which they haven't done for 15 years; completing archaeological plans beyond just the archaeological inventory survey; and then in the case of Suffolk, they were required to pay their fair share for multiple-family residential units either prior to plan approval or within five years of the effective date of the ordinance, and they have not done that, either. So, you know, we, the last, there was a couple of applications we heard today, both Parker School and then Kona Country Club, where it was stated that, you know, in the case of Parker School, they'd really shown a concerted effort to comply with conditions of approval, and even in Kona Country Club it was stated by the applicant and some of the Commissioners that they've been able to see that there was kind of a concerted effort to actually comply with conditions. You know, in the case of these two ordinances, however, outside of some really smaller types of condition compliance, there really hasn't been much in the way of a lot of these other studies. And that's, the applicants' stated reason for needing all this additional time is we need the time to do all of these studies, when in fact they could have been doing this in the last 15 years, but they have not done so. Next is the previous segmentation of the area in securing planning entitlements is inconsistent with State Law. Subdivision 7814, which we showed before, was approved in 2004 and created a five-lot 8 EXHIBIT D subdivision, four of which resulted in lots just under 15 acres in size. In 2005, both Puaa Development and Suffolk applied for and received approval for a State Land Use Boundary Amendment from the, from Agricultural to Urban designation for their respective properties. At the time of processing, these applications did not go to the Land Use Commission, as they were represented by the applicants to be separate entities and under 15 acres in size. At the time the Land Use Commission commented that they had strong objections to the manner in which the State Land Use boundary amendments were being processed under HRS 205-3.1, Amendments to District Boundaries. They believed that both the Village Center, Puaa, and the rental housing project, Suffolk, were part of the same Pualani Makai Master Planned Community and the permitting was deliberately incrementalized to evade the jurisdiction of the Land Use Commission. Although the original 2005 Boundary Amendments were approved in an incrementalized manner, in order to implement the TOD concept and Project District zoning recommended by the Kona Community Development Plan, and the Director in this case, the applicant will be required to seek a State Land Use Boundary Amendment from the LUC from Agricultural to Urban for the surrounding properties that are under joint ownership. And, again, this is, this is a, can be a laborious process, but in order to do it right, this is what will be done. The proposed request will not result in a more appropriate land use pattern that will further the public necessity and convenience and the general welfare. Based on all of the preceding information, the Director feels that approving the requested amendments and retaining the existing zoning would no longer result in an appropriate land use pattern that will further the public necessity and convenience and the general welfare. As an alternative, the Director recommends that the applicants pursue a State Land Use Boundary Amendment for the remaining two adjacent properties and submit a change of zone to a Project District for the approximately 60-acre area, or at minimum 50 acres, to establish the Kahului-Puapua`a Village Neighborhood Transit Oriented Development area as recommended by the Kona CDP. For all of these reasons, the Director is recommending that we forward unfavorable recommendations to the County Council for the proposed amendments for Rezone Ordinance 05-113 and Rezone Ordinance 05-115. With that, again, I'll leave the presentation on the screen, if there are any questions related to any of the slides that we've shared, and I'm happy to answer any questions the Commission may have. CARR SMITH: Thank you, Christian. Mark, I apologize that I didn't go back to you for your question. My bad. J, I think Mark might have a question for you. Go ahead, Mark. Use the microphone, though, yeah? Use the microphone, please. VAN PERNIS: First, I have a question for staff. CARR SMITH: I thought you had a legal question to Counsel VAN PERNIS: Well, let me ask the legal questions first then. As the staff says, these ordinances are stale. By that I take it to mean the requirements for the completion - - - and project have all been long since passed and expired before the applications were filed. Aren't the ordinances pau? Such that they can't reverse record they extended as to those expired conditions for these proposed 9 EXHIBIT D developments? Such that the applicants must file new applications for new ordinances? That's my first question. CARR SMITH: J, did you understand the question? YOSHIMOTO: I did. I'm not sure what he is asking as it relates to what we are doing here today, though. Because here, you know, we are here on the applicants' requests, you know, for, for basically to amend their conditions. And so I understand his question in the context of what, of what could be done or should have been done. But I'm not sure that that's something that the Leeward Planning Commission would have authority over in terms of making that decision for them, for the applicants. VAN PERNIS: Let me be more specific. The ordinances have expired. The applications seek a waiver or changes in the expired applications. So, aren't the applications also pau? CARR SMITH: Christian, do you want to comment? KAY: Yes, thank you, Madam Chair. So there is a condition in both ordinances. In the case of Suffolk, it's AA, and it reads, "Should any of the conditions not be met or substantially complied with in a timely fashion, the Planning Director may initiate rezoning of the area to its original or more appropriate designation." So if I understand the question correctly, it doesn't automatically revert to the prior zoning but would require an action on the Planning Director, by the Planning Director to initiate rezoning of that area to original or something more appropriate. - - - here says "may," so it doesn't prescribe that it happens; it says, "may." VAN PERNIS: Christian, you said that they had until 2015 with the extensions to comply with the ordinance. I'm not suggesting any change of zone or anything; what I'm suggesting, or what I'm questioning is, since the ordinances were pau as of 2015, aren't the applications also pau? Shouldn't they be applying for new ordinances? KAY: I, I might let Jeff address this, or the Director, but I think as a matter of practice, we have in the past allowed folks to come in after the fact to request amendments, including time extensions, beyond the expiration date of ordinances. And I know that there has been a lot of discussion with both the Leeward and Windward Planning Commission on what to do with kind of these stale ordinances and stale permits. But, in this case, we did accept the amendment request applications and have processed them and come to a recommendation, so, and we are at where we are at right now and moving forward with what's in front of us. I don't know if Jeff or Michael want to address that. VAN PERNIS: Well, what I'm - - -the practice being not appropriate; I'm asking for your opinion as to whether that practice of accepting applications for pau ordinances is, is legal. KAY: In that case I'd have to defer to corporation counsel. CARR SMITH: J, did you want to comment? 10 EXHIBIT D YOSHIMOTO: Yes, you know, if we want to go through a protracted discussion about this particular issue, then we should go into executive session. All I can say for the record here simply put is that Leeward Commission, Planning Commission, has what it has before it, and the Commission has options on what it wants to do. I wouldn't let this—well, it's up to the Commission, right, I mean if the Commission wants to hear or discuss this matter further in executive session, then that would have to come on another date. CARR SMITH: Thank you, J VAN PERNIS: My second CARR SMITH: Wait, Mark, Mark, you have to, yeah, so hold on a second, please, Mark. Maija, I think you had something to add perhaps. VAN PERNIS: Yes, I have a second legal question and a question for staff on their presentation. CARR SMITH: All right, hold on, Mark. Maija, did you have a comment on this? JACKSON: I do. So, I think the sticking point of misinterpretation here is that Commissioner Van Pernis has said that the ordinance is pau, and it's not pau. There is nothing, there is no condition in the ordinance that says that it shall automatically expire after a certain date, or there is no condition in the ordinance that says if you don't perform, the ordinance automatically expires. It requires further action on the part of the Planning Director, the Commission and the Council. There is nothing in the Zoning Code that says non-conformance means the ordinance automatically expires. So,just to be very clear, the ordinance is not pau and it does not automatically expire. The reason, what there is in the Zoning Code is language that says an applicant can come back and request amendments to ordinances or time extensions to an ordinance through the Director, the Planning Commission and the Council. So that's where we are; we have an ordinance, two ordinances that are what we call stale, have stale conditions, the applicant has requested the time extension, and now the ball is really in Planning Commission and County Council's court to say, hey, you know, we don't want to offer those time extensions or, yeah, that seems reasonable. So that's just some context of how we have handled the situation in the past based on, you know, our legal limitations on what the code says and the ordinances do or do not say. CARR SMITH: Thank you, Maija, appreciate that. VAN PERNIS: Let me respond to Maija by saying that's a good argument, but under that argument, every ordinance can go on forever. CARR SMITH: That's what we have in front of us, Mark, so VAN PERNIS: Okay, let me ask Maija the other legal question. The applicants are asking for deletion of the requirement of five acres going for a school lot, which implies, or states, that they are going to take that five acres and include it in the development. Does this additional five acres trigger the requirement for a new application to either the County or the State agencies involved? 11 EXHIBIT D CARR SMITH: Christian? VAN PERNIS: This is a legal question about the five acres of additional development. CARR SMITH: J? YOSHIMOTO: I would have to defer that to the Planning Department; I am not aware of or familiar with that particular condition. CARR SMITH: Michael, did I see your hand? Planning Directoroh, I'm sorry, I thought I did, you must have been scratching your head. Christian? KAY: Okay, if I can try to address that. The condition requiring a five-acre set aside for a school site was just a condition of approval for that ordinance. It's part of the, that five acres would have been part of the just under 15 acres of the project size. So this would be the appropriate venue to go through to, request to amend that condition, delete it or otherwise, without having to, you know, trigger it to go up to State Land Use Commission or anything else; it's just part of the under 15 acres that is under the purview of the Planning Commission and the County Council. If I understand your question correctly. VAN PERNIS: Thank you. I have a question of staff, which is you said that they are asking for the deletion of the affordable housing requirement, which is to construct the affordable housing, and - - - refer to a standard language on affordable housing. What standard language are you referring to? KAY: Generally that 20 percent of the units developed within any development would need to be affordable as designated by the Office of Housing and Community Development and HUD guidelines. So in this case, at the time they were granted the change of zone back in 2005, they represented that they would go above and beyond the normal requirement; they said where 20 percent of these units we will rent them at 80 percent or less than median income, which—and the remainder would be at 120 or lessI believe the standard requirement is - - -under at 120 or less. So I think in this case they are asking for all of the units that would be designated as affordable units to be under at 120 or less. That's how we - - - I guess maybe the applicant can address that at the time. But they are asking for relief of a condition that was placed on that based on their representations back then. VAN PERNIS: My understanding is they are seeking to not build affordable housing or rent affordable housing but to allow some undesignated property be submitted in lieu of affordable housing so that the property could theoretically be used by the County, if the County had any money to build affordable housing. Is that not your understanding? KAY: So I think at the time—and Sid even said this at the last hearing, reading through the transcript—at the time the County Council really wanted to see actual affordable housing developed and not use in-lieu credits, which is also a possibility that's kind of standard language in our, in our housing conditions of rezones. In fact, for Puaa, the village, pardon me, the neighborhood commercial, there is a condition that states housing shall be a part of this project, and then it goes on to link the development, or the ability to obtain a certificate of occupancy for any commercial to the 12 EXHIBIT D development of actual housing. They are asking for relief from that requirement as well so that there is no tying the actual having to build housing to commercial development. So I will let them address that as to what their intentions are, moving forward. On the record they've stated they intend to develop affordable housing. But looking at the request for relief of conditions that they've submitted, it would really decouple the development of housing from the development of commercial, and there would be nothing holding them to developing housing, if those conditions were, amendments were granted. Part of going through the Project District process includes a phasing plan, which speaks to when housing would be developed relative to commercial, relative to other type of uses. So that's another reason that we are recommending going that direction, as is consistency with the CDP - - - VAN PERNIS: - - - developing affordable housing, I'd like to use the word "construct" affordable housing. So you are understanding that they are proposing to delete any requirement to construct affordable housing and instead submit some undefined property at some undefined location and some undefined price? KAY: Again, maybe I would, I would let the applicant to address that. I don't want to get into what their intent is or however it is. All I'm saying is, based on the types of amendments that they are requesting right now, there would be no conditions holding them to actually developing or constructing housing, other than time conditions for Suffolk saying that they would develop, you know, if granted their amendments, in the next 20 years, some type of housing development. And if they go with what the standard language is for affordable housing, then they could use in-lieu housing credits or things like that where they wouldn't actually have to construct onsite housing. But, again, that's something that I'll let them address. Because we haven't seen a kind of a detailed development timeline or any other type of assurances that housing is going to be built and when, I can't answer that. CARR SMITH: - - - sorry, I was muted. Do other Commissioners have questions? Mike. We are, we are questioning staff. VITOUSEK: Yes. Yeah, pretty complicated deal here. But, basically, if we could boil it down to being looking at the project as being proposed, right, does the staff have issues with the project itself? Or are the issues with the process to get to that project? KAY: I would say that the development as is currently proposed in the site plan and as is, as would be allowed by the, by continuation of the existing zoning, would not allow the type of development that is envisioned and recommended by the Kona Community Development Plan for a mixed use, walkable—I'll go ahead and, if I can reshare my screen, I'll throw back up the - - - site plan, and maybe it will help kind of address what I'm looking at, or what we are looking at, sorry, not quite sure how to do this, otherwise, okay, oops. So, again, what you see here in their, the proposed site plan for the Pualani Makai Master Planned Community you guys can see this, okay—is really what is allowed under the existing zoning. For the Neighborhood Commercial, you have the ability to do both commercial and multiple-family residential, which is being proposed, but then completely separate from the other multiple-family residential that's being proposed on the Suffolk lot that, you know, requires setback separation that requires, you know, whatever density is allowed for development on that property; as you can see here, for these folks to access the commercial area, 13 EXHIBIT D they'd have to jump in their cars and drive up the access road to get to the commercial area to go to the drug store or the offices or whatever else. What the CDP, what the CDP envisions, and that's, you know, more consistent with this type of mixed-use TOD development is kind of all of these uses taking place in one area and allowing for a higher density around the transit area in the commercial core, lower density on the outside, but then mixed uses of, you know, living and working in the same buildings, in buildings next door to each other, and things like that. Under the existing zoning, this is impossible. So, I mean, ultimately, your, your question initially was, do we have an issue with the development? And the issue is, yes, the development is inconsistent, as is currently proposed, with what the CDP calls for. And as that's one of the kind of criteria to look at, consistency with the existing plans, we would say that, yes, we have an issue with what's being currently proposed. It was, it's inconsistent with the CDP that came into, into view three years after the ordinances were granted, but because they are coming in for a time extension and other amendments, we have to look at what the CDP calls for in the area, and that's kind of where we are at this point. Does that answer your question, Mike? VITOUSEK: - - - KAY: - -KAY: Mike, you are muted. VITOUSEK: Thank you. So the - - - CARR - -CARR SMITH: You are still muted for some reason. There you go. VITOUSEK: Is it still muted? CARR SMITH: No, go ahead. KAY: No, we can hear you. VITOUSEK: Okay, cool. Yeah, so the inconsistency, then, is that the development that's being proposed is not dense enough for the area? KAY: It's, it's not just density; it's density, it's a mix of uses, it's walkability, it's any number of things that the CDP calls out, which unfortunately cannot be developed under the zoning that's currently set up at this point, so, yeah. VITOUSEK: - - -because of like the walkability,there is no way that we can connect the two. Is that what we are saying is that the zoning prohibits like construction of walking path that would go between the two properties? KAY: There is no prohibition there. And, you know, Maija and I have talked a lot about this, so I'm going to, I'm going to tap her in, tag her in, if that's okay, Mike, and she can address that. VITOUSEK: Sure, of course. CARR SMITH: Go ahead, Maija. 14 EXHIBIT D JACKSON: Hi. So one of the main differences, Mike, is, with this current zoning and what they are proposing, you have land uses that are segregated; you have your commercial in one area, you have your housing in another. And when you don't integrate it, either within one structure with like a live-work unit or very close to one another, then the community, the area becomes less walkable. You have to get in your car, the tendency is to get in the car, to go from the housing area to the commercial area. So the Project District zoning will allow not only greater density but a lot higher percentage of mixing the uses together so that these areas do become automatically more conducive to walking and biking. VITOUSEK: So that's a nice idea, of course, you know, I mean it's great. Does that solve our housing issue now? I mean we have this pressing issues where we don't have housing for people and, you know, the idea that what they have presented to us is, is pretty close to what we are suggesting, you know, in terms of mixed use where you've got some residential, you've got some multi-family. They are pretty close to each other, they are connected to each other. They could be more connected. I don't know if that's something that can be worked out between the applicant and the office. But, I mean, is it, is this, you know, is this going to make it more difficult for our community to get the housing that it needs? JACKSON: I would say not necessarily, I mean, the current request that the applicant is making is actually a lot of relief from providing affordable housing units. So I would, you know, suggest that what they are proposing isn't going to necessarily get us any closer to providing units on the ground in a short time frame. VITOUSEK: And I agree with you there; I don't necessarily think the changes to the zoning conditions are appropriate, you know, given the need for it now. I think the time extension is too great. But, my question is if we would be better served by maintaining the existing zoning and reconditioning it to make it suit out community's needs now versus kicking it back to Land Use Commission and Project District that's going to extend this way beyond the, you know, ten-, 20-year period that, that is being proposed here. JACKSON: Yeah, so I, I understand your concern, Mike,just because of the time it takes to go through these planning processes. I would just remind you that the developer, the applicant has not provided us with any timeline or guarantee at this point. So I can't really speak to how long their proposal is going to take or if it's going to pan out. But what I can tell you is the Planning Department has to advise the Commission based on the plans that the community has created. And, you know, the CDP says we need affordable housing, the CDP also says we want more walkable TODs and more walkable commercial communities. So we have to balance that, and I don't think- - -necessarily throw either of those ideas out the window. I think the Director, and he can speak to this, would feel a lot more comfortable, if the applicant would provide some more solid timeline on when housing could be provided, or if it's even going to be provided on site. VITOUSEK: So, again, you know, I definitely agree, but I think that, you know, looking at the extension, the zoning extension, from 2011, it indicates that, you know, the Kona Community Development Plan was adopted after the fact, and it kind of offers help from the County to the developer, saying, hey, if you need help in complying with the guidelines established in the 15 EXHIBIT D Community Development Plan, then we can help you. You know, the whole purpose behind, you know, three months ago when we asked for deferral was I think the Commission was hoping that, you know, the applicants and the Planning Department would fully back up and try to solve these issues so that we are not in this kind of uncomfortable position of trying to mediate something. And I feel like if we have this goal of providing housing or providing commercial space, we have this kind of a mixed-use type area, which existed prior to the Kona Community Development Plan. And, you know, it's kind of like a chicken-or-the-egg where we've got this thing that existed previously, now we are trying to incorporate it into the Plan. Is there a way where the applicant can work with the staff, with the Planning Department, to make the existing zoning work so that we don't have to kick it further down the road and change zoning and go to Land Use Commission and all that? Is there a way that we can accomplish that by working together? CARR SMITH: That's a very good question. I support that question, and I'd like to know whether there has been any communications and any efforts trying to work out any of these details. Can the Planning Department confirm or deny whether there has been any efforts made since February? KAY: We met with the applicants' representative shortly after the February hearing, had a conversation in the Director's office, and really what came out of that is a determination that our recommendation wasn't going to change, that, not just for consistency with the CDP but all the other reasons we stated for the unfavorable recommendation. We were just going to move forward with that. And from that point, that's kind of when, when the world turned upside down. So we haven't had any additional meetings since then about that. CARR SMITH: Mike. VITOUSEK: Does the, does the County have any ideas on what could be done in order to turn this into a favorable recommendation to maintain the existing zoning and allow them to proceed? Or is it a hardline on the Project District is the only way to accomplish the needs? KAY: I, I think,just my opinion and I'll certainly defer to the Director on this, but based on what the CDP calls for and based on the limitations of the existing single zoning as they are, there's really not a possibility to kind of even get close. If you add into that, then the extensive relief that's been requested by the applicant on developing anything other than commercial development there, it's very difficult to find the middle ground. But that's just my, my response, and I'll let the Director respond, as it's his recommendation. CARR SMITH: Director, do you have any comments? YEE: So, yeah, besides the meetings that Christian just spoke about, we certainly have had internal meetings among staff to talk about this project, more, more than once, soon after the hearing in February and thereafter a couple more. So I think we've tried to take a reasonable look at options, and I still fell under the recommendation that I had before. So I'm hesitant to sit there and say, yes, there is an option, because then all of a sudden we'll get into conversation about, about not going forward with my recommendation, right? So I'm hesitant to want to sit there and say now, people who know me, also I try never to say never. I try to listen if there are good options out there, too. 16 EXHIBIT D But I think we've kind of exhausted our conversations on this up to now. So that's my general comment for now. CARR SMOTH: That seems to, a lot of what you are proposing seems to be based on something that doesn't really sit that well with me, and that's with you recommending to the property owner that they pull in other property that they own and combine it into a Project District. Is that really typical to address property other than the applicants are in front of you for? YEE: No, I wouldI see Christian raising his hand, so I'll let Christian first. Go ahead, Christian. KAY: I think more than anything we were responding to the applicants' assertion that there wasn't a possibility to meet the minimum required acreage for a Project District, and we were saying that in fact with consolidation there is. And, really, even in the areas where there are multiple landowners, that's still what the Plan calls for in those areas. A little more difficult in those other TOD areas where there are multiple landowners to get everybody on the same page, but in this case it's a bit unique in that all of the properties in the area that would make up that minimum of 50 acres are either owned or controlled by Puaa Development. So I think our, our recommendation is a more appropriate zoning, which, which the condition calls for that the, and in this case the more appropriate zoning would be the Project District. So, yeah, I think in my opinion it's appropriate to make that recommendation because that's the part of the authority we have to make the recommendation for a more appropriate CARR SMITH: But they have zoning, right? They have zoning, and they are making a proposalI see you, Mark and Faye, I'll be with you just, in just a minute, I want to speak as well, thank you. KAY: They currently have zoning that is stale, that would need the time extension to continue to do anything on the property. CARR SMITH: Right. KAY: And so, again, the condition of the existing ordinance says if they are not met, or conditions not met or substantially complied with in a timely fashion, the Planning Director may initiate rezoning to the area to its original or a more appropriate designation. So in this case, the Director is not initiating the zoning; he is recommending that the applicant move toward the Project District, which is the more appropriate designation in this case. In order to move, in order to refresh the ordinances and move a project forward. CARR SMITH: I guess all I'm saying, and then I'll move on, is that I wish that the Department was trying to be more cooperative with applicants that are proposing to develop something that develops a new mauka-makai road, which would be a benefit to the community, there is commercial involved, there is rentals involved, which, we desperately need the housing. And it seems like it's just maybe not jibing with the definition of the TOD that you guys want, but we are not Oahu and it's not going to look like Oahu looks, hopefully. So that's all I have to say right now on that. Mark, go ahead. VAN PERNIS: - - - 17 EXHIBIT D CARR SMITH: You are muted. Noriko? VAN PERNIS: - - - CARR - -CARR SMITH: Okay, anybody else until we get DARROW: Rachelle, can you, can you unmute them, Rachelle? LEY: He's unmuted. DARROW: Okay, thanks. CARR SMITH: Okay, go ahead, Mark. VAN PERNIS: - - - CARR - -CARR SMITH: Go ahead, Mark. LAY: Their microphone is not on mute. It's under Noriko's name, right? CARR SMITH: Yes. LAY: Yeah, is your, something wrong with the microphone? Is Alex there to check? CARR SMITH: Okay, anybody else? Perry? Max? You have—go ahead, Perry. KEALOHA: I guess following up on Mike's questioning in light of the conversation that's being going on, so if I'm hearing this right, as far as part of the County's view on this, because they are trying to piecemeal this project to avoid certain hoops, they are not able to achieve the goal as far as this TOD is concerned. So if they were treating this as one property, could create appropriate walkways and so forth, to meet the general requirements, but because they are piecemealing it, they need to have the appropriate setbacks that will kind of be in the walkways and the properties aren't adjoined in anyway. Is that the right understanding? CARR SMITH: Christian? KAY: I think, again, under the existing zoning VAN PERNIS: Am I heard yet? KAY: under the existing zoning, it's, it's kind of impossible to get to that preferred development. It's not that we don't want to see it or anything like that; it's just kind of not possible. And it provides you what you see they're proposing is kind of these separate uses, commercial separate from housing, separate from other housing that requires getting into a car and going to commercial, and things like that. So, that, hopefully, that answers your question. 18 EXHIBIT D CARR SMITH: I don't under- how, why is it not possible to walk from your apartment up to the commercial? Maybe there's easements or whatever. Why is that not possible? Or what makes you think that people will get in a car as opposed to walking? They'll even walk down to Kuakini and walk into the village. KAY: If, if we are looking at kind of what's being proposed, that's, that's kind of the way that they would do, and it's more consistent with kind of suburban separate development, auto-oriented development, versus a mixed-use, walkable, commercial and residences mixed in the same place that the CDP is looking for and what the CDP asks for, since the CDP provides a process and the framework for doing that through the Project District. I, you know, I don't know if people will get out, you know, and walk up to the commercial or walk down. I'm certain that some would, but most, at least as what's being represented in the site plan, would almost require that. CARR SMITH: Okay. All right, let's move over to Noriko's VAN PERNIS: Can I CARR SMITH: Go ahead, Mark. VAN PERNIS: Can I be hard? Am I, can you hear me out? CARR SMITH: Yes. VAN PERNIS: First of all, I want to point out to Mike and to Ms. Smith that they have a false assumption that there is affordable housing going to be built. They, my understanding is that they are asking that the affordable housing not be built,that there not be affordable housing. Secondly, I would point out that the CDP has the power of law; it has to be complied with. Supreme Court has decided and states very broadly. And, thirdly, I wish to point out that I've thoroughly studied this project and spoken with some of the people who have filed their statements, and I wish to point out that there is a major, major infrastructure problem that this project creates. So it got all the design—and I'm not suggesting that it be returned to Ag, I think that it should have appropriate zoning but that you folks are not yet considering what I believe Mr. Fuke will admit is a major, major infrastructure problem that the applicants are going to cause and not address. By the way, the other Commissioner here wants to talk. CARR SMITH: Yes, go ahead, Faye. YATES: Yay, finally. CARR SMITH: Yes, sorry YATES: That's okay 19 EXHIBIT D CARR SMITH: Everybody has a lot to say. Thanks for being patient. YATES: That's okay. Well, first of all, I mean we all realize housing is at the shortage, and it would be a great thing to be able to have more shortage [sic] but, again, you know, I went to school here at Konawaena High School more than 50 years ago; the road, Kuakini, has not been improved to any way that will be, you know, conducive to traffic these days. And I know all of that has to be done. So, again, it has to do with the infrastructure. Secondly, can, you know, when you build all of these homes, etcetera, etcetera, who, the County has to come up with monies, has to come up with workers, has to come up with maintaining, I mean they are saying a park, so who is going to maintain that park? We need more County employees. There is a lot of things that needs to be taken into consideration other than having affordable housing. And then, of course, yeah,people, you know, may walk around and, but, my biggest concern is, you know, can our County support this, you know, with the maintaining the road—or are the developers going to maintain the road? Are they going to also take care of the parks? Are they also going to provide transportation? Maybe the transportation to the commercial areas? What's going to happen? This is my concern, you know. It becomes a tax burden on all of us. So, are the people that buy into their place, they are going to be responsible for their taxes to take care of where they are? As we all know, you know, all of us are paying an exorbitant amount of taxes to be able to support our County. So all of these things to me are something that needs to be considered and, you know, unfortunately, it's a good idea, but I have to agree with our Director that, you know, maybe now is not the time or maybe more thought should be put into it so that it's not a tax burden on all of us. Thank you. CARR SMITH: Thank you. Max, do you have any questions for staff? NEWBURG: At this time I don't have any questions, but just merely, simply put that the request of exemptions being made by the applicant seem to far outweigh what they are offering as a project. We desperately need housing, but I just don't see between what they are proposing and what the community needs coming together. I just leave that as my statement. CARR SMITH: Okay, thank you. Maija. JACKSON: Thank you, Chair Carr Smith. Can I just close with one more idea? When the Planning Director makes a recommendation, what we do is we look at for zoning, we look at whether the zoning is the most appropriate land use, I'm sorry,the most appropriate zoning for that area in order to create the best land use pattern. So I know there is a tendency on all of our permits to look at projects rather than the zoning that's being requested. What we are saying in this case is right now the applicant has Commercial and Residential segregated zoning districts, and what we are saying is a Project District would be the more appropriate zoning district to create the land use pattern that the Kona community has said that they want to see in this area. CARR SMITH: And that would - - - -traffic, right? JACKSON: I'm sorry, what was that? 20 EXHIBIT D CARR SMITH: That would create more density and more traffic in that area. JACKSON: It, it may create less density, if it's designed in a more walkable way. That's the goal. CARR SMITH: Mike, did you have something else? Mike Vitousek? No? Okay. All right. Anything else, anyone? VITOUSEK: Yeah, I do have one more, one more question. CARR SMITH: Okay. VITOUSEK: So would the Planning Director then initiate the change of zoning as is indicated in the change of zoning ordinance? JACKSON: I'm going to answer that, but, Michael, chime in, if you want to. So if the Commission and the Council were to determine that this wasn't an appropriate zoning any longer, then the Director would initiate procedures to change the zoning. VITOUSEK: And how does that work for the additional properties that would add to get to the 50 acres? Does the applicant have to opt into that in order to have their zoning changed? JACKSON: That is a great question. We would have to have that conversation with the applicant, and we would also probably have to have an internal conversation of whether the Director should also initiate a change to the Zoning Code to reduce the minimum acreage to create a Project District. So there is, there is different things we can look at, if the applicant isn't amenable to including other properties. CARR SMITH: So, is—okay, Mark, go ahead. VAN PERNIS: - - - one thing, everybody has been assuming the applicant here is going to be the developer. I want to remind you that there was a statement shared at the February hearing that the applicant represented by Mr. Cook is not going to develop, has no ability to develop, nor is Mr. Schuler, the man behind Mr. Cook- - - going to develop, but this is a sale. This is a sale to another developer who will not commit to when or where he will develop, or when, and that what we are doing here is just promoting this sale by Mr. Schuler to this developer who will sometime in the indefinite future develop,perhaps be the seller themselves. And I think that the true developer should apply when it plans to be developing CARR SMITH: Okay VAN PERNIS: and have public review at that time. CARR SMITH: All right, thank you. Okay, Christian. 21 EXHIBIT D KAY: Just really quickly. Before we get to the applicant, I did want to point out that we did receive a significant number of correspondences after the February meeting in terms of public testimony from neighbors, the evidence of the administrative time extension, and we also got response from State Department of Transportation relative to their review of the traffic impact analysis report. And so I just want to point that out and also to address the possible reopening of public testimony so we could accept those testimonies. That's all. CARR SMITH: Thank you. All right, we'll get to the public testimony after we hear from the applicant, as we usually do, right? That was the plan anyway, Christian, correct? Thank you. All right, Mr. Fuke, you and your guys are there and ready to go? We need to swear you in. Is everybody okay? Do we need any breaks at this point? - - - Okay. All right, everybody raising their right hand,please. Mr. Fuke, Mr. Cook and Mr. Van Bergen, and Mr. Okaneku, thank you. Do you swear and affirm to tell the truth on this matter now before the Leeward Planning Commission? APPLICANTS' REPRESENTATIVES: I Do. CARR SMITH: Thank you very much. Can you one at a time please state your name and where you reside for the record? FUKE: Good afternoon, Commissioner, Madam Chair, Commissioners. My name is Sidney Fuke. I'm aplanning consultant. My residence address is Hilo, Hawaii. My role is essentially to assist the applicants with the processing of the time extension and - - - amendments. With me today are Brian Cook, the landowner, representing the landowner developer, and also Ken Van Bergen who is representing the developer - - -. You want me to just kind of continue on or? CARR SMITH: Go ahead, yeah, go ahead. FUKE: There have been a lot of material that have been already sent to the Commission, a lot of internal discussion, you know, among the, between the Commission and the staff. And before like, kind of like going on further, I'd like to just kind of indicate, as the staff had noted, one is that, you know, this is a neighborhood shopping complex that has about 380-plus housing units of which we propose like 226 would be in the rental market. There is a transit station. There is a new mauka-makai road, which would be developed by the landowner, complete with curb, gutters and sidewalks. They are going to be doing expanded signalization at the Puapua`anui intersection, so on and so forth. Now, there are like two, I think, like discourses, I get it, like one was the whole notion about like all or nothing on the conditions. True, the applicant has proposed like about ten or eleven different amendments. Now, it's the responsibility I believe of not only the staff but also the Commission that if you like ten and you don't like the eleven, then your obligation would be to recommend its approval or denial on certain things. So please do not regard this as being like an all-or-nothing. So, specifically, as it relates to the affordable housing condition, that is true, the applicant had proposed that as far as the rental unit, the demarcation of certain percentage be set aside for 80 percent and below and the rest in the pool are like rental area; that language was being proposed to be deleted. Now, if on the other hand, based on all of your considerations, that you believe that that condition 22 EXHIBIT D should still be retained, then that should be your recommendation. But don't let that one condition be the downfall of the rest of what the applicant is requesting. Secondly, the whole notion about walkability, mixed-use, so on and so forth, I tend to disagree with the staff's finding that you can't integrate the two properties to achieve the walkability and the mixed-use style - - -. True within the Multiple-Family zoned area; it's going to be limited only to Multiple-Family activities. But within the commercially zoned area, you could have like a combination of multiple-family and commercial uses, which is what the tentative plan calls for right now. Further, the distance between the two area is not like two miles; I mean you're basically talking only like about 100 or 200 yards differences. So if there is a desire to kind of integrate both areas, then it can easily be done through what it's called administrative process of plan approval. So which is one item that, you know, in my discussion with the Planning Department, I'm saying like, look, if you want to achieve like some of these TOD kind of objectives, it can be done short of adequately vetted by the Kona Design Center, which sometimes can take you like so, so long, but you can do it through the plan approval process; you can require like there be, you know, this kind of physical integration - - - happens. I know that for a fact because there have a number of projects that I've worked on in the Hilo area, but it kind of like mandated driveway accesses and pedestrian accesses - - - - adjoining properties, then in the beginning the adjoining properties objected but at the end of the day they agreed like how it's, you know, like how it's functioned. Now, having said that, I think a couple of things I wanted to speak to relative to the regulatory end. The General Plan was adopted in, you know, like in 1970-71, and the most current one, which is what we are operating today, was adopted in February of 2005. The zone change was adopted in August of 2005. So at that time it was a decisionmaker, and the Planning Commission and the planning director, they all concluded that this project meets the requirements of the County General Plan. Then we had the CDP, the Kona Community Development Plan, which was adopted in 2008. When we went through, the applicant went through for the initial time extension in 2001, excuse me, 2011, at that time the planning director concluded, number one, you are, the project is consistent with the General Plan; number two, the project is consistent with the Kona CDP. Now, what has happened on the Kona CDP since the adoption in 2008, there have been some amendments that occurred in 2019,just last year. And the specific amendments as it relates to the land use component basically said that it's not a mandate in terms of going through the Project District, but it would encourage the developer to go through the Project District process, because, you know what, we'll help you guys out, we'll speed it up, we'll support you guys all the way, and we'll take it through the Kona Design Center, and we'll get it through very quickly. Now, usually, when the Department or the Commission considers a recommendation for denial, the denial is, you know, on the General Plan, you say like, well, it's not consistent with the General Plan, so if you want to propose a resort activity in an area that's not shown on the General Plan, then obviously you are out, you know; there is no way that statutorily you can recommend its approval. And then, you know, you look at, in this case, the case, you know, you have a Medium Density and Urban Expansion on the General Plan. The zoning is already consistent with that, as approved in 2005 and as approved by another planning director in 2011. So how can you tell me in 2019 this is not consistent with the County General Plan? 23 EXHIBIT D Then you look at for other reasons why the Commission or the Department might recommend denial. The infrastructure - - -; you don't have enough water, you don't have enough sewer, you don't- - -. But here is a situation, you have the water, there is a county sewer line right below the street, and the State Department, there's a traffic study done, their mitigation has been proposed pursuant to an approved traffic study by the State Department of Transportation. I just mentioned that, you know, the Department of Transportation reviewed the traffic study, and they concurred with that study. The other reasons why like maybe a project might be denied is that you have unresolvable environmental or also historical issues. Say, for example, you have a major floodway going through the property; there is no way that you want to have development be occurring in that area. Or if you have like archaeological sorts of things that cannot be resolved, then, you know like, then they are basis for its denial. So then, you've got to ask yourself like why is the Planning Director recommending—if you look through, you know, like three or four pages and 15 minutes of recitation of the reasons why, you know, they talk a little bit about the General Plan saying speculation, they are talking about separating the Land Use Commission process. But the linchpin argument is really that if you want the project, the landowner, to go through the State Land Use Commission at the Project District rezone, now we all know that that's a process that's very time-consuming, that's very expensive, and most critically, you don't know the outcome. Maybe you like the project. But what if the Land Use Commission denies it or imposes conditions that are totally, amount to like an impossible situation for the developer to pursue. So what it boils down to I think, there are two ways of like how this application can be processed. One is that you can take what the Director or the staff has recommended, stay denial, and then force the developer to go through the Project District and the State Land Use Commission - - -, and I've already explained some of the liabilities behind all that. Or on the other hand, you can take the recommended approach; you can pick and choose what you want from the conditions to favorably recommend and conditions you don't want to favorably recommend, but take it up to the County Council and let the Council make the decision. Now, in so doing, what you do is that you are keeping the decision-making down to this level; you are not kicking the decision-making up to nine Land Use Commissioners of which seven of them don't reside on this island. So I guess what I'm asking, you know, as dealing really like with this Commission, is that if you can put your real life common sense to the end result and ask yourself, you know, given the County's high unemployment and the economic uncertainty especially created, excessively created, by the COVID-19 issue, you know, shouldn't government be more encouraging and supportive of private initiatives? Especially on a project that, number one, is consistent with the CDP and the General Plan, as recommended, you know, by planning, two previous planning directors and the County Council, project that could help the economy, provide much needed jobs, provide goods and services, provide affordable housing both for sale and rental, provide much needed road connectivity between Kuakini Highway and the Queen Ka`ahumanu Highway extension. So I presented to you at the last Commission meeting, and I think I also emailed it to Planning staff to provide it to the Commissioner who was not there, you know,proposed recommendations for both the Suffolk and the Puaa applications. Now, I had to do that because otherwise, you know, should, 24 EXHIBIT D you know, if the Commission, hopefully, sees it the way that, you know, we are seeing, I'm hoping that the Commission would act, and if you recommend favorably on all or a portion of it, you would need to have reasons for its favorable recommendation. You would also need to have corresponding amendments to those. So that's what I did. One final thing I'd like to kind of mention is that,you know, in what I presented on the affordable housing, the existing condition—and even the proposed condition, even if it deletes the rental portion, the subject property already was entitled to 50 affordable housing credits the existing condition right now, and we are not proposing any amendment, is saying that, you know what, you cannot use any of those affordable housing credits to offset your affordable housing requirement, and, two, you cannot buy credits and you cannot, it will, your, satisfy your requirements off site; they have to be on site. And that's explicit in terms of what the existing condition states. So, therefore, if the affordable housing, the rental component, is a very critical issue for the Commissioners, and I kind of sense that it is, then my recommendation is that if you look at Condition, Condition B, the new Condition B, then you leave the wording in, and that wording basically says, further as represented by the applicant, a minimum of 20 percent of units will be rented at 80 percent or less than median income level and the remaining at 120 percent or less than the median income level. So that was what we were proposing to delete. If you cannot agree with that,just recommend its denial on that component. But don't let that one issue cause you to, to recommend denial on the entire package of requested amendments. I had mentioned earlier, Brian Cook and Ken Van Bergen, landowner, developer, and also on standby is Mr. Okanekuhe is in a position to answer any traffic-related questions that the Commissioners may have. Thank you very much. CARR SMITH: Thank you, Mr. Fuke. Were Mr. Van Bergen or Mr. Cook planning on speaking? COOK: Yes, Madam Chair. I'm Brian Cook representing Puaa Development, Suffolk CARR SMITH: Can you speak up? COOK: Yes, I can. CARR SMITH: Thank you. Go ahead. COOK: Yeah, we acquired the property, 62 acres, back in 2004, zoned Ag agricultural property. We felt like at that time there was a need in central West Hawaii to develop a project that would provide affordable rental housing and commercial shopping center, that we felt like that area is central, and as it turned out, that area became a Neighborhood TOD; so someone did agree with the - - -. And we got it rezoned for Neighborhood Commercial, CV[sic]-20, and RM-2.5 of the brown. We felt like at that time that we needed to provide housing for local people that can't afford place, that were currently - - -. And so we felt like an affordable rental housing project would be very important where we would have rental rates below market price affordable rental housing - - - beginning I felt like, well, if we - - - affordable rental housing project of 250 units, and we set aside 20 percent of them at 60 percent of rental rates, and then we set aside 60 percent of it at 80 percent of the low-income rates, and the final 20 percent at 120 percent, and so that's how we started the 25 EXHIBIT D affordable rental housing onset. The commercial property, we felt like being right- - - it would be ideal for neighborhood shopping center with a supermarket, drug store and then some of commercial businesses there. Anyway, we came up with our initial master plan, so 250-unit affordable rental housing, we had a neighborhood shopping center and 100-unit condo project. Since that time - - -process for rezone, and then as we got the property zoned, we went forward in getting the project designed. We approached the area of the flooding, the maps that they had at that time when D.R. Horton developed Pualani Estates, they had maps that showed that the stormwaters ran from property to the north of Pualani Estates, and they designed a gunite concrete channel that ran through their project to have the water flow into. Well, as it turned out when we started doing our drainage study - - - and we had the area- - -two-foot boundary. And then we took that area all way on the northside of Hualalai Road, and there is a two-foot- - - found out the floodwater did not align the area where they said, and floodwater can - - -to the gunite channel. So we went to the extent of getting a CLOMR down the old area, and found that floodwaters would be coming across Hualalai Road into property north of us and to two lots that we had acquired just adjacent to Pualani Estates on the northside. And so we hence realized that we had to design a good drainage system for the whole area there. And so we had our engineers go ahead and design basically a split-flow tube, which would go through those two lots into the gunite channel, and then where Pualani Estates entry road is - - - gunite channel, it went into a multi-throat box culvert that crossed the entry road to Pualani Estates into the area, park area. And at the low point there was a the State had designed and installed the eight-foot concrete, diameter, concrete pipe to take care of any floodwater crossing - - - highway. Our study determined that the floodwater would come across, breach over the highway some 400 feet and to our property below. And so we had to design an aluminum multi-plate culvert crossed under the state highway, and that multi-plate culvert ended up being designed at 20-foot wide, 14.5 feet high, and we designed it to be 135 feet long - - - highway. As the water then entered into our property, we designed a concrete headwall and a 40-foot wide concrete U-shape channel going through our property, and every 50 to 70 feet we got velocity breakers where the water hit turbulence and slowed down, and that just above Kuakini Highway we designed an about 2.5-, 3-acre basin that's about 25-, 30-foot deep to collect the water. And we had drywells at the park, and we hadanyway, we did design the whole system to protect that area from the 100-year storm. And then after that, we got into the design of our project where we - - -the neighborhood shopping center, we have housing there, and we've got the affordable rental housing project. And we did all that and started in 2005, we got the zoning, and by late 2008 we had most of the design complete, we had the plans, went to the State Department of Transportation for the culvert crossing - - -, and it was finally approved in 2010. The market balked back in 2008, and we got burned; we were not able to go forward. So there were, there were delays and,with the process of moving forward. And, anyway, we were, we were hopeful that we could get our - - - after 2015. Anyway, so it has been a lengthy process and, we, myself I will be 83 next month, I'm approaching - - -, and Mr. Schuler will be 82 in September, or October, excuse me CARR SMITH: Okay COOK: —and so we were looking for someone that was younger that can take our project with finance - - - so expensive, but we - - -work design of the roadways and do that sort of thing, it's 26 EXHIBIT D 32 - - -, but that done, we could have done it. But at this time, as time - - - development- - - Spring Capital interest and probably going to be taking over the project and acquiring - - -. So they are, our agreement with them is - - - little under seven million dollars - - -trying to get something we felt like the community needed back in 2005, and we feel like it would be - - -. If you all want to make different changes on plans that'll be more neighborhood-friendly as far as walking path - - -where the 40-foot channel is going - - -the shops, you could put in a walkway, ten-foot wide concrete walkway - - -the new developer can work with the County Planning Department and - - - some of these issues, but if they have to go back - - -new process, it's, I don't know, it's very difficult. Anyway, I'd like to hand it over to Ken Van Bergen representing Spring Capital - - - CARR - -CARR SMITH: Thank you, Mr. Cook. Thank you. VAN BERGEN: Aloha, Commissioners and Chair, nice to see you today. As was mentioned back in February and earlier at this meeting, you know,the property is for sale. It, I view it as a strength, although Brian is a very accomplished developer and has many successes through his own rights CARR SMITH: Ken, Ken, could you be a little closer to your microphone,please? Your computer? It's thank you. VAN BERGEN: You are not hearing me CARR SMITH: Thank you, that's better, thanks. VAN BERGEN: All right, sure. So, you know, I view this sale as a positive for this development, because as I was saying Brian is a very, you know, accomplished successful developer, but Spring Capital is even more accomplished, and it is a bigger entity. I shared with you back in February three pages, some of their developments over the,you know, past two decades, we had five states, over 30 development projects,just showing Big Island alone, we've been on the Big Island for 25 years, over 100 million dollars in developments that were done. Someone maybe, you know, someone at Planning maybe went out and looked at some of their projects, Maula Lani projects, Kuki`o projects, they are currently developing a very large storage facility just above Costco here in Kona. And so they've been invested in this community for, for a long time, and - - -to continue that, you know, with this project. I think as far as what's actually been built, you know, they inherited a lot of Brian's designs, which Brian put a lot of effort into and Brian did a good job with, but they are not, you know, glued to that, if the Planning Commission or Council, you know, has more requirements for affordable housing and walkways, and so forth. We've got a solid track record in developing. They don't buy land to hold it; they buy land to build. And you are not going to find another scenario where you have a more willing, able developer, with the kind of resources into a project like this that will get done. So I, it's definitely a strength in the reality of situation, you folks can see that. And I'm here to answer any questions you may have. My history with Spring Capital goes back to 2006 and 7 when I worked for Maryl Group as development manager in South Kohala on several projects, and so I can speak with experience that they are well qualified to fulfill requirements and to build the project like this. Thanks. CARR SMITH: Okay, thank you. Commissioners, do you have questions? Max. 27 EXHIBIT D NEWBERG: If I could, Ken, you had mentioned that I believe Spring Capital has had some projects on Hawaii Island. VAN BERGEN: Yes. NEWBERG: Could you, could you expound on that? What projects specifically? VAN BERGEN: Did you get the history that I brought to the February meeting? The three pages with so many developments that they've done in five different states? NEWBERG: I don't have it in front of me at this time. I could pull it up on email, but you'd mentioned maybe the VAN BERGEN: Yeah, I'll be happy to, so back in 2000 they developed 130 single-family homes at Maula Lani, Villages at Mauna Lani. So if- - -to the right- - - anything about, that was a very successful project. They developed multiple houses at Kuki`o and Hualalai Resorts that I was involved in personally back in 2006, 7 and 8. Currently, they have 100 acres that they own at Kuki`o, the last 100 acres in Phase Three, and they're developing in this 20-acre, 20 parcels, 22 large parcels. So most of their commitment on the Big Island so far has been in the resort areas. But if you look at- - - later, the pages that I brought, there's, you know, 28 projects in mixed-use commercial, industrial, resort, rentals; they have a plethora of experiences in different developments, so NEWBERG: You had mentioned the storage facility near Costco VAN BERGEN: Yeah, so if you go up Hina Lani, you go to, at the corner of Hina Lani and Kamanu, right on the corner there is a, that very large, it's under construction now and is getting close to being done. NEWBERG: I see. VAN BERGEN: Yeah, that's, that's their latest project here in Kona. NEWBERG: The reason I ask, was Spring Capital the original developer of the storage facility or did they take that project over? VAN BERGEN: You know, I personally haven't been involved with that, history of that project. I know that they are, they are developing it now. My understanding is they were, but I could find out. I don't know. I don't know that— NEWBERG: hatNEWBERG: The reason I, the reason I ask is the projects you're listing, one being the Villages at Mauna Lani, is Spring Capital in conjunction on that project with Maryl? VAN BERGEN: They were back in, when it was built. Actually, all those units have been sold off many, you know, over a decade ago, and they are owned by private owners at this point- - - 28 - -28 EXHIBIT D NEWBERG: Okay VAN BERGEN: But Spring Capital, yes, they acquired it with Maryl, they had several LLCs, TDM 1, 2, 3, 4 and some other, which they participated,they participated in those developments. NEWBERG: Sure,just- - - dots to make that, bring that together in my mind, I know at the time as an employee of Maryl Pacific Construction, that they did do the development of the Villages, as well as purchasing the lots at Manini`owali, Kuki`o; I was just trying to see if there was a connection between Spring Capital and the family there, Mark and Cheryl. VAN BERGEN: Yes, Mark, TDM was just what the, TDM 1, 2, 3, 4 and 5 were all the LLCs that we developed at Kuki`o, and they stand for Tom, Don and Maryl; that's what TDM stands for. NEWBERG: Okay, I appreciate that— VAN hatVAN BERGEN: Tom Connor and Don Woolley are Spring Capital. So if you go to Spring Capital's website, look at the partners, Tom Connor and Don Woolley are the main partners, and Tom, Jr. and a couple of others, but Spring Capital is Tom and Don, that's Maryl's partners for those proj ects— NEWBERG: I do appreciate, I do appreciate you kind of connecting those dots for me. You also bring up the storage facility at the corner of Hina Laniis that Maiau, no, not, I'm sorry, not Maiau but VAN BERGEN: Kamanu. NEWBERG: to my knowledge, that project was shut down because the developer, or the contractor, didn't have a license at that time. Not sure if that's the best project to bring up. VAN BERGEN: So, I know that there was a, you know, there was an issue with the contractor. I know that, that they changed contractors at midstream. I don't know any of the details of that. The only reason I know that is when Tom asked me to come on and help with this project because I know Brian and it's kind of what I can do, I learned some things about the storage project,just working on this project, you know, some discussions. So I know there were some issues. I know that it's moving forward very nicely at this point. It's going to be done in the near future. But they did change at least subs, if not general, I'm not sure. NEWBERG: I appreciate the clarity. I don't have any more questions at this time. Thank you. CARR SMITH: - - - NEWBERG: - -NEWBERG: Nancy, you may be muted, if you are trying to speak. CARR SMITH: Thank you. Yes, I was. Mark, go ahead. Rachell, can you unmute Noriko guys, please? Thank you. Go ahead, Mark. 29 EXHIBIT D VAN PERNIS: Thank you. I have a question of Mr. Van Bergen. The applicants, the LLCs, they are not going to do the development, Spring Capital is, right? VAN BERGEN: Pualani Springs, I believe, is the name of the entity that's going to develop this project, which is owned by Spring Capital. As you know, developers usually have, a lot of times have different LLCs for different projects— VAN rofectsVAN PERNIS: What I'm trying to say - - -the applicants, the LLCs Mr. Cook is planning for, they are not going to do the development; some entity of Spring Development is going to do the development, right? VAN BERGEN: Correct, if, if the planning, if the ordinances get extended—we've been in escrow now for almost two years, and one of the conditions of escrow is to have the ordinances extended. Once that happens, escrow can close, and then Brian and his partners are kind of out of the picture, and Spring Capital moves forward as the new landowner, yes. VAN PERNIS: And his partners include Mr. Schuler? VAN BERGEN: Brian and his partners are selling interests in these parcels, and once the sale happens VAN PERNIS: And when is the said, the referring development can actually start construction? VAN BERGEN: Did you say when it is going to start construction? VAN PERNIS: Right. VAN BERGEN: We'll start construction as soon as the entitlement process, plan approval, and design, working with the County, and we get a building - - -but as soon as possible VAN PERNIS: - - - Do you anticipate it being a year, two years, ten years for it? VAN BERGEN: For a project of this size, it's going to take some time, but I would envision, I know in the five-year window, get at least phase one, the parcel project done, and within ten years, have the full project done, if not sooner. A lot of it depends on the entitlement, planning VAN PERNIS: Wouldn't it be more proper for Spring Development to make the application when they actually are going to start developing? VAN BERGEN: No, because at the price it's purchasing the property for, they are buying the property as entitled, not going to spend seven million dollars on Ag land, you know, spend seven million dollars on entitled property they can move forward and develop. VAN PERNIS: And all of the conditions, B, C, D, E, F, L, U, V, X, Z, these are all conditions of the ordinances that you want, or Spring Capital or its entities, want waived as part of the purchase, right? 30 EXHIBIT D VAN BERGEN: Spring Capital supports the effort by Sidney and Brian to get the ordinances extended so they can develop a project as proposed with amendments, whether be more residential VAN PERNIS: So all the, all the amendments, for instance, deletion of the five-acre school and the revision of the affordable housing, these are all requirements of your purchase—when I say "you," I'm referring to Spring Capital or its entities. VAN BERGEN: I understand that. So, as the Planning Department and the Planning Commission as a body, it's up for you to approve or not approve these amendments. Spring Capital is going to inherit whatever you guys approve. But they support— VAN upportVAN PRENIS: Is Spring VAN BERGEN: —effort of what they are trying to do is ordinances that are in front of you today. VAN PERNIS: Is Spring Capital going to purchase, if these conditions are not waived or lessened, in other words, if all of the requests of the applicants are not granted? VAN BERGEN: Spring Capital has every intention of purchasing these parcels with the zoning that's in place extended. So if you are asking me specifically if one item or two items are changed, are they still going to move forward, my answer is, yes, as far as I know, they have every intention of closing on this sale. They've been in escrow for two years VAN PERNIS: I understand that, but there's numerous conditions that the applicant is asking for waiver of or reduction of. My question is, is this Spring Capital's requirement? VAN BERGEN: I would say it's not their requirements. They are supportive of these amendments. And so I can't answer what you are asking because I don't know what you are talking; you've got to tell me what you are going to change or you are going to accept— VAN cceptVAN PERNIS: All right, let me, let me ask VAN BERGEN: —more clarity. VAN PERNIS: if the amendments are not granted, the amendments that you support are not granted, is Spring Capital still going to purchase? VAN BERGEN: Are you saying if it's extended or if it's not extended? VAN PERNIS: If all the conditions are not granted, the extension, the affordable housing change, the five-acre school lot deletion, if all of these conditions, and there are many, that are referred to in the application, not including the extension, are not granted, is Spring Capital going to purchase? VEN BERGEN: I would say no, or they would have bought it two years ago. They wouldn't have waited so 31 EXHIBIT D VAN PERNIS: —okay, now CARR SMITH: We are kind of speculating here, I believe VAN PERNIS: - - -what we are asking, what, the Commission is being asked to help to sell pending sale to Spring Capital, correct? VAN BERGEN: I'll say one more time just so I'm clear that Spring Capital entered escrow two years ago to buy these two parcels; one of the conditions at escrow is that the zoning extension, the zoning ordinances are extended. I don't know what else, what else to clarify. CARR SMITH: And, Mark, we are dealing with the applicants and the application, so VAN PERNIS: My understanding is that we are not, the Commission is not supposed to facilitate a sale by the applicant. CARR SMITH: The sale is not a part of the application. Does anybody else have questions VAN PERNIS: Well, I have several more questions CARR SMITH: Okay, let's, let's VAN PERNIS: —let me ask CARR SMITH: Mark, Mark, Mark, please, I want to move the questions around to different Commissioners. It's Mike's turn right now. Go ahead, Mike. VITOUSEK: Yeah, thank you. You know, I, I do want to kind of follow up on what Mark was saying, Commissioner Van Pernis was saying. I mean, to me, we would be much better served having this negotiation on the outcome of the project with the actual developer than with the current applicant who is proposing to sell the project to the developer who will then develop the property that may or may not be equivalent to what we see on paper. I mean, it certainly would be a lot simpler, if we were able to sit down with the people who were actually going to do development, come up with the plan that works for the area, for the community, and all of that. And, to me, I agree with Commissioner Van Pernis that our role is not to facilitate the sale of a property but is to, you know, figure out what's in the best interest of the community for the area. Again, that would be best served by negotiating directly with the developer. I, you know, I'm also very interested to hear if there is a path on that line where if Spring Capital were to purchase the property, and then we could, you know, move forward with the meaningful discussion on what can and can't be done here. CARR SMITH: My guess is the value in the purchase has to do with these guys teeing it up; if they have to do that on their own, it's probably not as valuable, right? VAN BERGEN: I would say that, you know, as you, as you know, land is valued based on location, and another thing is that entitlement is, of course, a big issue. Big Island is land packed. And so Spring Capital is interested in purchasing the property entitled with these zoning ordinances; 32 EXHIBIT D however, my, if there is some way to meet the Commission's or the Planning Department's requirements or discussions, I'm sure Spring Capital will be willing to discuss some more details of the prof ect VITOUSEK: Right. VAN BERGEN: But I view it as you guys - - -title in land, not up to the owner, and whatever the land is entitled for, the Spring Capital, Puaa and Suffolk, whoever that is, has to follow the guidelines of the whatever the entitlement says. But we are open. So - - - VITOUSEK: And the bottom line with that is that because the entitlements are stale, we need to recondition them in a way that makes sense for the property, or the community, and we think that that discussion would be best served with the developer. And, you know, in this case where it's complicated and, you know, you are buying it subject to the advancement of this ordinance, I don't think at this point that we have enough information and enough collaboration where everybody would be comfortable with that. I think that if we all, you know, take a step back, if you guys can come up with a new plan that incorporates the requests for more walkable space, more connectivity between that, as was discussed in the plan approval process, you know, and bring that back with the plan on how we move forward in the way that's going to maintain the existing zoning, excuse me, maintain the existing zoning move forward the fastest, then, you know, this kind of awkward three-party discussion can actually become meaningful. VAN BERGEN: Okay, is that- - - I'd have to - - - Brian to - - - something like - - -. As far as Spring Capital goes, I'm sure they'll participate and, a discussion - - - clarify these items. But again, the property would have to be entitled before the acquisition, so it's still kind of- - - VITOUSEK: So, I mean, and again, basically, the entitlement that exists in the zoning, the Neighborhood Commercial zoning and then the Multi-Family Residential zoning, that wouldn't change, right? It would just be the existing conditions that are now stale. So the zoning doesn't change, even if the property sells; it's just the conditions that need to be met for that zoning. VAN BERGEN: Okay. We are, we are open, so you tell, as the Commission or as the Planning Department, you tell us what works for you VITOUSEK: Well, I say that my reluctance with issuing a favorable recommendation has more to do with the conditions and the alterations to these conditions than it has to do with the zoning in Commercial versus Project District. So, to me, if we were to come up with conditions that are better suited for the community, that maintain the affordable housing, that address this connectivity issue between the community, that alleviate, you know, any kind of traffic improvements, and works that into a plan approval, get the departments behind, then I would be in favor of it, maintaining its existing zoning. But, in absence of that, if we are, you know, all of this or all of that, we are in a tough place. VAN BERGEN: Okay. CARR SMITH: Perry, did you have anything to add? 33 EXHIBIT D KEALOHA: I'm kind of soaking it all in right now. I'll hold off on questions. CARR SMITH: Okay, well, hopefully, we are getting near the end of that opportunity. I think we are all fading. Mark. VAN PERNIS: - - -we're all fading, then - - -there are several more matters that are CARR SMITH: Mark, you put your microphone closer, please. VAN PERNIS: Can I ask Mr. Fuke some questions? CARR SMITH: Yes, here he is. VAN PERNIS: Back in 2005 in exchange for the very valuable zoning and promise the developer received, put these projects to which became Pualani, generating huge profits, and after 15 years the developer seeks to break all these promises, and cost for the - - - get back at all that the county - - - several had a much higher price to developer. Is this fair to the people of Kona? Mr. Fuke? FUKE: Well, equity is not a question for me to ask and answer. All, all I know is that the entitlements were secured, the developer tried to, the landowner developer at that time tried to do as much as they could, and it had to seek a time extension. And I'm sorry like I guess on behalf of everyone that, you know, now we are like on 15-plus years and, you know, they are - - - here right now. You know, it's a situation where, unfortunately, you have the commercial neighborhood and the multiple-family zoning, but because the conditions have not been complied with, in a nutshell, you have a zoning in limbo. I mean, you know, anybody who owns the property today and you go to the Planning Department and you ask yourself, "Can I develop the property, you know, based on the existing commercial neighborhood or RM zone?" and they are going to send you, tell you, "No, you can't." The only way you can do it is that you need to have the conditions amended to provide you with that opportunity to develop. You know, the reality of it, you know, like from the landowner standpoint, all these years in spite of the inability to actually exercise the terms of the zoning ordinance, you still have to pay commercial real estate taxes on it. VAN PERNIS: The applications ask for the waiver or reduction of Ordinance Conditions B, C, D, E, F, H, I, U, V, X and Z. That saves the developer millions of dollars, right? - - - developer - - - FUKE: - -FUKE: Yeah, I, I don't want to, you know, debate upon the cost issue, but that's something VAN PERNIS: Okay, let's not debate then. What about affordable housing? Are you going to build it? Is the application going to comply with the ordinance or does the application seek to change that requirement? FUKE: I think Mr. Brian had, Mr. Brian Cook had indicated earlier that, you know, given his age and, he still desires to do something for the community, and knowing a project of this nature, it would probably take you five, ten years to seeing it to its completion. He needs to have a viable partner to develop it. Mr. Van Bergen has indicated that the group that he represents, whatever is the 34 EXHIBIT D outcome of the conditions, as long as there is a time extension granted, then they are in the position to examine all of those things and make a decision to pull the trigger or not. Now, I understand that, like just hearing some of the discussions, that there's still a concern for the proposed amendments to delete the affordable housing conditions. Then my recommendation to you as a commissioner, is that to argue and hopefully convince the rest of the commissioners, I agree with A, B and C proposed amendments, but I don't agree with this for the following reasons, and then make the denial. I made the statement in the beginning that please do not look at the applicant's requests as like an all-or-nothing. The critical one is, if anything as all-or-nothing, is a time extension. VAN PERNIS: You are not answering the question. Does the application seek it to abandon or revise the affordable housing requirement in the ordinance? Does the application require that? FUKE: One of the proposed amendments called for the deletion of the mandate to have 80 percent, you know, 20 percent I think of the units for 80 percent or less and all that stuff, but that's the existing language right now. So all I'm saying, you know, Mr. Van Pernis and Members of the Commission, if that is foreign to you, then you should recommend its denial, but look at all of the other conditions that we are recommending amendments. And at the end of the day, whatever ultimately the Commission decides to recommend to the County Council, and whatever happens at the County Council, if, if the extension is granted with, you know, a number of conditions modified or non-modified, then it's going to be up to Mr. Van Bergen's group to decide, no, I can't live with it, I'm walking away, or, look, it pencils out, so I'm going to do it. VAN PERNIS: Let's move on to another subject. Isn't this area, Lako, Kuakini from Kam III, Henry Street and Hualalai Road, the location of the worst traffic jam in Kona during the mornings and afternoons, with traffic of the standstill, lights going through several cycles without traffic movement, merging vehicles and school buses, and Hualalai packed with vehicles as alternative route trying to avoid the traffic jam? Isn't that already present? FUKE: Isn't that, I'm sorry, what? VAN PERNIS: The worst traffic jam in Kona is in this area. FUKE: Well, you know, understandably, there, you know, there are definitely our like traffic issues. The whole concept behind the General Plan and the CDP was to create compact type of developments in this particular area, and you try to minimize sprawl. So if you encourage more development on the south end of Kona, and you have a lot of the work activities on the north end, invariably you are going to have a lot of this traffic moving to Kuakini and Queen Ka`ahumanu Highway VAN PERNIS: Could you answer this with yes or no? Isn't this a site of the worst traffic jam in Kona? FUKE: I, I can speak to worse, yeah. 35 EXHIBIT D VAN PERNIS: And hasn't the situation - - - over the last 15 years? CARR SMITH: Mark, Mark, I'm going to stop you there for a minute,please. Director Yee, do you have something? YEE: This format online is a bit difficult. I understand it doesn't, it's not conducive to kind of efficient ponderings here, but I have to warn that I do have a union civil servants here, and per the union contract, I do have to give them a break. And given that I'm not sure we are going to reach a vote real soon, I'm suggesting, Nancy, maybe we have to take this, give them their break for lunch. So, but I'll leave it to you whether or not you see the light here coming or not. CARR SMITH: Okay. Max, what do you, what did you have? NEWBERG: I just wanted to add, I don't want to speak for anymore anybody else on the Commission or the Planning Department other than myself, but being someone who hopes springs eternal, I think that, if I may, there was a suggestion to try and collaborate maybe a little closer in February. Our world since has turned upside down, and maybe we didn't have that time to collaborate. I would like to think that we are not as a commission, and again, - - - anyone other than myself, trying to say no to housing here. But, is it possible that we revisit maybe a bit of collaboration? There are a few sticking points I think at least for myself, getting rid of the affordable component, not as much so getting rid of the park,but, seeing that they are across from a park, that creating some traffic, and then again, third being the traffic itself. Would it maybe be more conducive to have that time to collaborate? Or do we feel that time to collaborate between some of these issues isn't what the applicant was looking for? CARR SMITH: I guess I would ask the Planning Department if they are willing to collaborate over the next month. YEE: So, I know, Nancy, earlier you had said that you were a little disappointed in the, maybe the lack of collaboration. I would feel as if we had been collaborating, we had been talking to the applicant. So I don't think there is like we dug in our heels and it was, we were not changing at all. But that said, I think you also know me very much as a planning director, I'm always willing to have more conversations, if I feel as if it's productive. It's always, you know, again, you direct my authority, if you really want us to go back and have more conversations to look at more alternatives, I will certainly do that. If you want to choose to have a continuance, we will try to see if there is an avenue. So I'm not closed off from that. Again, I think you have to ask the applicants, do they want a firm decision or not, would be another way to kind of approach that question, too. CARR SMITH: Sidney, what would be your response to that? FUKE: Well, you know, we did have meetings, you know, to go over like whether we could reach some sort of a compromise. At the end of the day, the Department's position was that I'm sorry, like, you know, the CDP is really calling for a Project District, you've got to go, you have to take it through that and Land Use Commission and the whole nine yards. And that was totally unacceptable. So if the staff is going to go back and maintain the same position, then it wouldn't make sense to kind of like go back and try to revisit that. If, on the other hand, the staff is willing to 36 EXHIBIT D kind of take that equation off the table and see like how we can kind of like, you know, make a good thing, you know, like make a lemonade out of this, maybe these two lemon situation, then, you know, like whether it's like, are you guys willing to delete the request for affordable housing rental, are you in a position to maybe convey X number of acres for a community park, whatever have you, now, those are like substantive discussions, which we think that we can go back and have a discussion, you know, among all three of us, three being myself, the landowner and the developer, potential developer, to see what can be worked out. Or, you know, alternatively, if you say, can you come up with a plan that shows how you are going to have like this pedestrian integration between Suffolk and Puaa, sure, we can come up with a master plan that shows something like that. And, as a matter of fact, I was just kind of thinking that, you know, whether we come up with a master plan now or a little bit later, you know, as part of the decision-making process as a recommendation, the Commission on its own can recommend that these are certain design considerations that the Planning Director has to take when it reviews the plans for plan approval. And one of the things, if you are really interested about integration between properties, then have that become part of the plan approval. So, it's a long way of saying that, again, if the Department fixes up the table that you've got to go through Project District, State Land Use Commission Boundary Amendment, then, if that gets off the table, then I think it would be worthwhile subject to Mr. Cook and Ken kind of like saying up here. YEE: I think, I'll chime in to say that good faith works both ways. The good faith works that I enter in a conversation, not that, again, to let's say a Project District, but it also means Sid and your, and the folks you work for, you know, are willing to come to the table also being openminded about solutions, too. It's, it's always a two-way street. And I certainly would not be suggesting that we can go to the table unless I felt I could enter the conversation with good faith. CARR SMITH: Okay, good, thank you. Mike. VITOUSEK: I was just curious if there are issues that have been discussed that would be specifics that—Director Yee is talking about that the developer was dug in on on their end, that they were not willing to compromise on. FUKE: I'm sorry - - -. Can you restate the question, Mike? VITOUSEK: Sure, sorry about that. Yeah, so, you know, Director Yee is indicating that, you know, he's looking for good faith from the developer as well to not be rigid and locked into any certain set of issues. Are there any issues that are, you know, that we are talking about here specifically? Is there anything that's a sticking point for the developer that they don't want to compromise on? FUKE: I think like it's not so much substantive as much as it would be like processing. As I indicated earlier, if the Department's position is not going to change relative to we need to go to Project District and the State Land Use Commission process, then I think it would be worthwhile to have this kind of conversation. Substantively, - - -the project so as we can kind of conceptually, you know, achieve the notion of mixed uses, you know, in spite of the segregated zoning, you know, Multiple-Family and Commercial area. How can we address like affordable housing, whether it's coinciding the commercial activity with the construction of the housing, you know, or housing 37 EXHIBIT D comes first, commercial comes second, you know, those kinds of things, they would be all up for discussion. VITOUSEK: Okay, okay, so substantively, in terms of development issues, you guys are open to taking the County's direction on how to take what we have and make it comply with the CDP the best you can. Is that right? FUKE: Well, like, as I mentioned, you know, there is a difference between compliance relative to what is understood from the Planning Department to be the process, which is taking the plan through the Kona Design Center, so on and so forth. But I think we all can read the plan and we know generally what the overall objectives were; I think the staff kind of pointed out walkability and mixed-use, all that stuff. So maybe we can't have the mixed-use in the RM zone, but we can have the mixed-use within the Commercial Neighborhood zone because they allow both commercial and residential activity. Talk about connectivity, we can do that. VITOUSEK: Yeah, okay, so basically, you guys are willing to accept their recommendations on how to make it fit, you know, substantively, not procedurally. We have a, you know, disagreement on Project District versus zoning, and what I think a lot of us from the Commission are asking is, can we make the existing zoning work to make the project in line with the guidelines provided in the CDP, and it seems like we can do that. FUKE: I believe we can. And, as a matter of fact, a lot of the earlier discussions I had with the Planning Department included something along these lines. VITOUSEK: Okay, I mean, I would personally be very supportive of Commissioner Newberg's suggestion that we take a break in order to facilitate further discussion on this. CARR SMITH: Do I hear a motion? VAN PERNIS: - - - VITOUSEK: - -VITOUSEK: Looks like Commissioner Van Pernis has a question. CARR SMITH: Sorry, I was looking at something. Okay, Mr. Van Pernis, go ahead, but please note, as you've been hearing this, that we are ready to wrap this up. Go ahead. VAN PERNIS: I don't think it should be wrapped up before all issues are covered. There is also - - - issue on the five-acre waiver of the school lot, and this is in regards to the State's intention to build a new school in this area, and CARR SMITH: Mark, I think the school got moved somewhere else, so it's not applicable anymore. That's my understanding. VAN PERNIS: That's not the correct understanding. They are seeking to waive all contributions to any school matters, and the State is acting in that. And also, there is the question of solar charging, charging stations in the area, which they say is cheaper to do now than to retrofit, to waive the 38 EXHIBIT D future. Also, I think the affordable housing situation needs to be clarified. But most of all, I want to say we are not here to ensure that a developer can make a profit or can develop; certainly, not in this case when the real developer is not the applicant, so we don't know when the real developer is going to develop. Our job is to represent the people of Kona, not to ensure some developer's ability to make profit and to keep - - -project until the developer can succeed at the expense of the people of Kona. The traffic is horrendous there. I wanted to get into that they are going to dump a thousand cars into the mix without doing anything about the traffic problem. And the public testimony, which I understand Christian has gotten in, all talks about the horrendous traffic, and I think we should pay attention to that. This is not the time for this project. I'm not suggesting that it's been zoned so it can't take place; they can have their zoning, they can keep their zoning, they can get their zoning. But it's contributing to a very bad problem in Kona. I myself can't make the intersection of Henry Street and Queen K. because of this backup CARR SMITH: All right— VAN ightVAN PERNIS: propose a thousand more cars with no contribution. CARR SMITH: Okay, thank you, Mark. Mike. VITOUSEK: - - - CARR - -CARR SMITH: Unmute. VITOUSEK: I would like to make a motion that we defer making a decision on Agenda Items 5 and 6 until the July Leeward Planning Commission in order to allow the applicant and the Department the opportunity to work collaboratively for planning a solution that allows the existing zoning to be continued subject to conditions. KEALOHA: I'll second that motion. CARR SMITH: Thank you. So we've got a motion on the table to defer to the July meeting, with intentions outlined, made by Mr. Vitousek and seconded by Mr. Kealoha. J, I have a question for you. If we, if we go ahead with this, do we need to speak of the public testimony that was on the table, or can that automatically defer? YOSHIMOTO: I would leave that up to you, Madam Chair, you can do it either way. If you are asking my suggestion, I would suggest that you do have a motion to reopen public testimony and make the record that testimonyI think Christian had mentioned it earlier that testimony was received since the testimony was closed. But you could do it the next time, too, but I just think procedurally so we can keep track, if we do it right away. CARR SMITH: That's what I thought, okay. I VITOUSEK: In which case, I'll put the previous motion on hold, and I'll make a motion to reopen public testimony. 39 EXHIBIT D CARR SMITH: Okay. Is there a second? NEWBERG: Second. CARR SMITH: Max is second, okay. So we are reopening public testimony. All in favor? COMMISSIONERS: Aye. CARR SMITH: Anyone opposed? [None.] Okay, so we are just acknowledging that we have written testimony from Joel Gimpel, Renee Inaba, Joel Cooperson, Edward Rapoza, Ryan Burns, Peri and Bill Steffenhagen, and Marya and Elizabeth, since our last meeting. So those public testimony items are entered into the record. And, can I have a motion to close public testimony, please? VITOUSEK: So moved. CARR SMITH: Second? NEWBERG: Second. CARR SMITH: Okay, Mike and Max. So public testimony is closed. We can move back to the other motion that was on the table. You want to reactivate that, Mike? VITOUSEK: Sure, I will reactivate my previous motion. CARR SMITH: To defer to July. Is there any discussion about this? Christian. KAY: Thank you, Madam Chair. Just given the working situation and everything has kind of slowed down a bit, I know we are in a situation where very soon we are going to have to set our July agenda, and if we were unable to meet within the next month, it might be difficult to come back empty-handed to see you. So I wonder if maybe we can do it until August or somewhat later time, if the applicant is okay with that- - - VITOUSEK: - -VITOUSEK: Sure, yeah, if it's possible for me to amend the motion, I would like to amend the motion to say that we defer until as long as necessary for the owner, or the applicant, and the Planning Department to work out this issue. I don't necessarily see the need to put a cap on it saying you must come back by July. I want you guys to have a meaningful discussion and resolve this. CARR SMITH: Perry, as the second, do you agree to that KEALOHA: Yeah, I would propose that we just defer to a future date. VITOUSEK: Yeah, yeah, I like it. CARR SMITH: Okay, all right, any discussion on that? Christian. 40 EXHIBIT D KAY: At the call of the Chair or when we are ready to come back? Is that— CARR hatCARR SMITH: Well, we hope that everybody is going to act in good faith and try to see if some solutions can be had. So, yeah, hopefully sooner than later, but like you said, maybe July is too soon. So I would hope that it would be by July, I mean by August, I'm sorry. Sid, do you have any comment on that? I mean, it's not really a, well, we've got a motion on the floor here, but. FUKE: Well, I can understand the staff's constraint and perhaps might not be able to have meaningful dialogue and, or at least conclusion, in July. My only apprehension is if you leave it open-ended, it can be open-ended and, my friend once told me that the most insidious form of denial is delay, so if there is a, if you are going to delay it for like one month, it's acceptable. I wouldn't suggest kind of like putting it in infinity because, if you are putting the responsibility on both the applicant and the Department, more so the applicant, if we have something that the Department can accept, what if, at the end of like extensive discussion, there is like no resolution, we have to go back to the Commission, we have to move it out, and we have to ultimately have the County Council make a decision, which is a legislative decision. So, that's my only apprehension. I mean, like, I can understand July might be a little bit too early, but, gee, August, September, October, you know? So I, I would respectfully ask that no later than August, maybe, it be agendized. CARR SMITH: Mike, it's your motion. VITOUSEK: I'm fine with that, if that's what, what the applicant wants. You know, I don't, I think that this seems like an issue that's going to take a little bit of time to work through and, you know, to me, if you guys aren't getting where you want to go with the negotiations with the County, you're, you're welcome to bring it back at any time that you want, and we can reject it or approve it, whatever the case may be. All we are saying is we want to defer it until, until there is a resolution one way or another. CARR SMITH: Which needs to include or delete the Project District. Max. NEWBERG: Just to add to that in respect to Mike making the motion, which I feel at this time is correct, I think the motion is being made to defer to continue this discussion, because what we have in front of us isn't something we are able to approve. And, speaking for myself, I don't think it's up to us to make suggestions of what is approvable. I think that maybe is a better conversation between the applicant and Planning, and then they bring it back in front of us to see if it's something that's acceptable. CARR SMITH: I think it's clear that we'd like to see something approvable come forward. Mark. VAN PERNIS: I have two points. Fist point of order, I spoke to Mr. Rapoza, and by closing the personal, or the testimony of the public, does that mean I can't comment on my conversation with Mr. Rapoza? Basically that- - - 41 EXHIBIT D CARR SMITH: Yeah, I think under the circumstances, since we are deferring, we wanted to acknowledge public testimony, but we are not having conversation about it right now, because we have already closed that. VAN PERNIS: And the second point is I want to remind everybody, including Mr. Yee, that we are representing the people of Kona. We are not trying to find some way for this developer to profit. And I think that the meeting that Mr. Vitousek is talking about should be between the actual developer. It was confirmed to me through various sources, including Mr. Cook himself, that the applicants are not the developers in any respect. CARR SMITH: Okay, thank you. All right, if there is no further discussion, I'd like to—do I do a roll call vote on this or just, Christian? KAY: I'm sorry, Madam Chair, there was some discussion about kind of when the coming-back date is. I didn't, I didn't think that was nailed down. Was it August, Mike? VITOUSEK: We, as it exists now, it's to a later date. KAY: Okay. VITOUSEK: And then it's up to the applicant and the Planning Department to figure it out; each one of them has power to bring it back. CARR SMITH: Incentive, hopefully. So, is this a roll call vote? Staff, can you help me, or not? KAY: I would say probably a good idea for a roll call vote, and then we have to do it twice for both ordinances. CARR SMITH: All right, very good. Then let's proceed with that,please. KAY: Okay, right now I've got the voting sheet just for Puaa Development. Commissioner Vitousek? VITOUSEK: Aye. KAY: Commissioner Kealoha? KEALOHA: Aye. KAY: Commissioner Newberg? NEWBERG: Aye. KAY: Commissioner Van Pernis? VAN PERNIS: Abstain. 42 EXHIBIT D KAY: Commissioner Yates? YATES: Aye. KAY: And Chair Carr Smith? CARR SMITH: Aye. KAY: Motion carries - - - five ayes and one abstention - - - CARR - -CARR SMITH: Thank you. KAY: Okay, and then for Suffolk Investments, I'm assuming it's the same, the same motion? CARR SMITH: Same motion. VITOUSEK: Yeah. KAY: All right, same motioner and seconder? CARR SMITH: Mr. Vitousek and Mr. Kealoha. KAY: Okay. Commissioner Vitousek? VITOUSEK: Aye. KAY: Commissioner Kealoha? KEALOHA: Aye. KAY: Commissioner Newberg? NEWBERG: Aye. KAY: Commissioner Van Pernis? VAN PERNIS: - - - CARR - -CARR SMITH: Oh, Noriko guys are muted. Thank you. Mark, can you vote again,please? VAN PERNIS: Abstain. KAY: Thank you. Commissioner Yates? YATES: Aye. 43 EXHIBIT D KAY: And Chair Carr Smith? CARR SMITH: Aye. KAY: Thank you, Madam Chair. Motion carries, five ayes and one abstention. CARR SMITH: Thank you all very much. HopefullyI, I apologize, Mr. Okaneku, that you didn't even get to speak, but thank you for being here with us. It looks like you have a lovely view to look at while you are working. OKANEKU: Okay, thank you, Chair. Aloha. CARR SMITH: Thank you all. The hearing was adjourned at 2:36 p.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 44 EXHIBIT D