2020-10-15 Leeward Exh E (AMEND SMA 388)

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I'd like to, you know,just give somewhat of the history and then directly kind of answer Commissioner Van Pernis's question. As I recall, the existing building that has been straddled by this property was there when the initial permit was secured. And if I recall correctly, it was a real estate office by C. J. Kimberly. Whether she is currently there or not, I'm not really sure. So all of the improvements that you see there like the foundational work there, it's kind like they have occurred subsequent to the, you know, the existence of the real estate office. Normally you know, Jessica had explained what, the final Plan Approval was granted, the one in 2017 and so, if you look at it from the fact that the property is already zoned Resort, it's within the GP Resort area, consistent with the Kona Community Development Plan, so on and so forth, that if you have a property along those lines, then very simply, you know, you need to have like Plan Approval. And Plan Approval is a process that is issued by the, you know, it's handled by the Planning Department. Their role, you know, on a Plan Approval, is essentially to decide whether the project use is consistent with the zoning, you have the required setback, you have the required parking, landscaping, so on and so forth. And once you secure your Plan Approval, then your next step is to go straight into your construction permit, and that will be your grading and your building, electrical, plumbing, so on and so forth. In this situation, you know, the reason why we are before you again is like, it's the Special Management Area permit requirement. And just to give the Commission a 30-second understand- sharing, rather, of the SMA law, it was passed in 1975 by the state, and basically it was designed to provide special control, you know, within area along or approximate to the shoreline, and the law delegated the enforcement responsibility to the counties. So, you know, under Rule 9, the Commission's Rule 9, you know, you have a way that the boundaries are established, and you have the permitting process. And so, in situations like this, your rules call for having the planning commission make the decision on a Major SMA permit. Essentially, however, the SMA permit, the rules and regulations relating to SMA permit basically want to make sure that, you know, you don't, the project does not degradate the coastal area, it properly addresses historical, archaeological issues, it's got to make sure that it's consistent with the General Plan and the zoning code, there is an appreciation for the protection of native Hawaiian rights. So these are your, all of your, the guidelines and the criteria, from which then a decision is made either by the planning director for a Minor SMA permit or by the planning commission for a Major SMA permit. I'd like to kind of like segue just a bit and share with the Planning Commission a very significant judicial decision that was rendered by the Intermediate Court of Appeals back in 1993. The planning, it was called—and I'm sure that Commissioner Van Pernis being an attorney is well aware of that decision back in 1993 the county planning commission had denied an SMA permit for a two-story office building, proposed office building on the corner of Kuakini Highway and the Seaview Circle, and that property was already zoned Commercial, they came in for an SMA permit, then the commission, because of traffic-related kinds of concerns raised by surrounding property owners, they, the commission in their wisdom denied the permit. So the person, the applicant, Larry Topliss—not topless, I mean, L-I-S-Sso he had appealed, then finally went all the way to the Intermediate Court of Appeals. And essentially what the court said was that—and I'll just kind of read it to you—it just says that traffic from a development within the SMA is not shown to have a substantial effect on the coastal environment, then it cannot be used as a basis to deny the SMA permit. And so as a result, if you look at it, you know, from that standpoint, and you look at your laws for like zone change time extension, like the one, you know, we just went through on the Pua`a/Suffolk, there was already a requirement 7 EXHIBIT E