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HomeMy WebLinkAbout2021-07-15 Leeward Exh D (Amend SMA 286) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JULY 15, 2021 A regularly advertised hearing on the application of PACIFICA BIG ISLAND, LLC (Amend SMA 286) was called to order at 1:04 p.m. via live stream online meeting, with Chairman Michael Vitousek presiding. COMMISSIONERS PRESENT: Michael Vitousek, Barbara DeFranco, Mark Van Pernis, and Faith "Faye" Yates ABSENT AND EXCUSED: Clement"CJ" Kanuha III ALSO IN ATTENDANCE: Dalilah Schlueter, Esq. (Counsel for the Commission), Jean Campbell, Esq. (Counsel for the Planning Department), Zendo Kern (Planning Director), Jeffrey Darrow (Deputy Planning Director), Maija Jackson (Planning Program Manager), Christian Kay (Planner), Tracie-Lee Camero (Planner), and Noriko Sauer(Leeward Planning Commission Secretary) APPLICANT: PACIFICA BIG ISLAND, LLC (Amend SMA 286) Application for a three (3)-year time extension to Condition No. 2 (Time to Secure Final Plan Approval) of Special Management Area Use Permit No. 286, which allows the development of 184 units of multiple-family housing and related improvements on two (2)parcels totaling approximately 24.499 acres of land situated within the Special Management Area. The subject properties are located on the east(mauka) side of the Kamehameha III Road-Ali`i Drive intersection, Kahulu`u and Keauhou 1st, North Kona, Hawaii, TMK: 7-8-010:078 and 090. VITOUSEK: Item number 2, applicant is, the application is by Pacifica Big Island, LLC, to amend SMA 286; application for a three-year time extension to condition number 2, time to secure final Plan Approval, of Special Management Area Use Permit number 286, which allows the development of 184 units of multiple-family housing and related improvements on two parcels totaling approximately 24.499 acres of land situated within the Special Management Area. The subject properties are located on the east, mauka, side of the Kamehameha III Road-Ali`i Drive intersection, Kahulu`u and Keauhou 1st, North Kona Moku, Hawaii Island, TMK: 7-8-010:078 and 090. Staff presentation today will be by Christian Kay. Christian, please proceed. KAY: Yes, thank you, Mr. Chair, and good afternoon to the members of the Leeward Planning Commission. Welcome, Commissioner Armbruster. If you give me a moment, I'll share my screen, please. And can everybody see that? (No audible response) okay, thank you. As the Chair stated, this is an amendment to SMA Use Permit number 286. The subject properties are situated in the North Kona District of Hawaii Island, more specifically, in the Keauhou area. They are outlined here in red. There are two properties totaling 24.499 acres. 1 EXHIBIT D And for reference, we've got Kamehameha III Road running generally north-south through the slide, and Alii Drive makai of the subject properties running, again, north-south through the slide. Across from Kamehameha III Road is the Keauhou Shopping Center. The applicant is requesting a three-year time extension to condition number 2, time to secure final Plan Approval, of SMA Use Permit number 286, which allows the development of 184 units of multiple-family housing and related improvements on two parcels totaling approximately 24.499 acres of land situated within the Special Management Area. The applicants are currently proposing to develop the project within the next five years, consisting of no more than 184 multiple-family housing units within two- and three-story structures on the subject properties, and these will be done within 8-, 12-, and 21-unit structures. Additional improvements include 414 parking stalls, 10 of which would be handicap stalls, an approximately 1,600-square foot clubhouse, swimming pool, and barbeque or gathering area, landscaping, and other on-site infrastructure to support the project, for example, roadways and utility lines. Should the extension to secure final Plan Approval be granted, condition number 3 of the SMA permit requires the applicant to commence construction within one year of securing final Plan Approval and complete construction within five years thereafter. The applicant stated reasons for the request as: After acquiring the properties in 2014 and amending SMA Permit 286 in 2015, they've worked diligently to develop the project by securing final Plan Approval for a 32-unit multiple-family housing project on parcel 90 and the common area clubhouse recreation facility on parcel 78; however, after bids for the development proved too costly, the applicant spent additional time and money to rethink the technical design of the project, specifically grading and building placement, to reduce costs. Shortly after an administrative time extension to secure final Plan Approval was granted in 2018, the Kilauea eruption suddenly and drastically impacted the housing and development market. Less than two years after the completion of the eruption and just as the financing market was beginning to recover, the COVID-19 pandemic hit resulting in nation and statewide shutdowns, uncertainty in financial markets and drastic increase in the cost of construction. Despite this, the applicant is still committed to completing the project and wishes to retain the existing SMA permit that would enable the application [sic] to complete construction of the project, which would require the requested time extension. The zoning of the subject parcel is pardon me—is Multiple-Family Residential-3 as indicated in the light mustard color. Surrounding zonings include Village Commercial, other Multiple-Family Residential, and Open zoning, which is consistent with the golf course use, and Single-Family Residential zoning in the area. The subject parcel and the surrounding area is designated, subject parcels and the surrounding area, is designated as Urban by the state Land Use Commission, as indicated in the pink color. And the General Plan Land Use Pattern Allocation Guide Map designates the subject parcels as Medium-Density Urban, which would support the multiple-family residential development that's being proposed. 2 EXHIBIT D Here is the Kona Community Development Plan map showing the subject parcels, again, here outlined in red, within the larger Kona Urban Area but outside of any TODs, pardon me, Transit Oriented Development areas. Here is a Special Management Area map. Again, the subject parcels are here outlined in red. The red thatching is,just indicates the extent of the Special Management Area in the area. Here's some aerial photographs of the subject properties. On the left-hand side it's zoomed out. Again, in this case the properties are outlined in yellow, showing the subject parcels, parcel 78 and parcel 90. Across Kamehameha III Road is the Keauhou Shopping Center. To the east is a golf course, and there are other commercial, single- and multiple-family uses, and resort uses, in the area. On the right-hand side is a little bit more zoomed in. Again, for reference, you've got Kamehameha III Road generally running north-south through the slide here, and makai of parcel 78, Alii Drive running north-south as well. Again, across Kamehameha III Road, Keauhou Shopping Center, and other single- and multiple-family residential and resort uses. Access to the subject properties are off of this private roadway easement, which is 20-foot wide pavement within a 50-foot-wide right-of-way, it's improved with curb, gutters and sidewalks, and it's also the access to the Kona Life Care Center, which is located north of the subject properties. Here is the applicant's proposed site plan. Again, if you look at the upper right-hand side here, parcel 78 and parcel 90, we've got Kamehameha III Road running here on the left-hand side and Alii Drive running on the right-hand side. The majority—at least according to this site plan the majority of the development will take place within this area of the subject parcels. And, again, we've got the private access road coming off of Kamehameha III Road here. Here is a view of the project area looking east across Kamehameha III Road from the Keauhou Shopping Center. It's a signalized intersection. Here is that private access road that I spoke about earlier, with parcel 90 roughly on the left-hand side of that parcel 78 roughly on the right-hand side. Here's some views of that driveway looking east into the project area,parcel 78 being here. The turnoff to go to the Kona Life Care Center is located here where the vehicle is. And then looking west toward Kamehameha III Road and the Keauhou Shopping Center, again, showing it's improved with the sidewalks, and curbs and gutters. Here's a view of Kamehameha III Road looking makai, with the subject properties on the left-hand side, and a view of Kamehameha III Road looking mauka, with the subject properties on the right-hand side. Further views of Alii Drive looking north, the subject properties on the right, and a view of Alii Drive looking south. And this is the intersection of Alii Drive and Kamehameha III, and the subject properties are on the left-hand side. The planning director is recommending approval of the amendment request, with conditions. With that, I'm happy to stop sharing my screen and turn the time back over to the Chair. 3 EXHIBIT D VITOUSEK: Thank you, sir, appreciate it. (Inaudible—microphone on mute) here it is, thank you. Okay, thank you, Christian, appreciate it. KAY: Sure. VITOUSEK: Okay, we will move forward with the applicant's presentation. Applicant,please raise your right hand. Please, do you swear or affirm to tell the truth on this matter before the Leeward Planning Commission? FUKE: I do. VITOUSEK: Thank you. Please state your name and the down that you live in. FUKE: Good afternoon, Mr. Chairman, members of the commission. My name is Sidney Fuke. I live in Hilo, Hawaii. With me are also Rick North and Jack Straw, they are kind of like on your screen as well. They are actually the developer themselves. If you wish, I would be more than happy to proceed with my presentation. VITOUSEK: Please do. FUKE: Sure. As I mentioned earlier, I, on the screen also are Jack Straw and Ricky North of Pacifica Big Island, LLC. They are here to, you know, respond to any questions that the commissioners may have, which may be, you know, too sensitive that I can't. But, nonetheless, I would like to initially note that the staff's background report and recommendation, they were reviewed by the applicants, and they found that to be not only accurate but very comprehensive. They found the proposed conditions acceptable as well. I would like to just kind of add a few comments, if I may, Mr. Chair. Back in 2015, you know, subsequent to the applicant acquiring the property, what happened was that they consolidated two Special Management Area permits affecting two parcels of land. They are basically contiguous, but except, you know, being separated by the small little private road lot. So if you look at the combined area, you have like a total of, from an SMA permitting standpoint, a total of 292 units allowed, of which 44 units were already developed, that's the Kaulana at Kona project, part of the original SMA. Back in 2002 the original SMA for the Kaulana project was reduced by 64 units. So effectively, what you have right now is, the maximum number of units that can be developed on this consolidate properties is just like 184 over 24-plus-or-minus acres of land. So that kind of amounts to like a density of roughly like about, you know, one unit for every 6,000 square feet, as opposed to one unit for every 3,000 square feet, which is the current RM-3 zoning would allow. Back in February, actually March of 2015 when the effective time extension was granted, there was a condition that required a Plan Approval be secured by March of 2018, and that was complied with; the Plan Approval, as Christian had mentioned, was issued for a 32-unit project and also for a rec center, both in the latter part of 2015. The zoning code requires that if it's not exercised within a two-year period, then it becomes an automatic nullity, and that's the situation there. The applicants then requested for an administrative time extension, which then required them to secure a final Plan Approval by March of this year, 2021. The, back in you know, the reasons for the delay, I think, you know, the staff had indicated it, so I kind of 4 EXHIBIT D like don't want to go through it, but all I wanted to also indicate is that the applicant is committed to seeing this project through under all of the terms and conditions of the SMA and any amendment, whether that project is done by itself, with a joint venture partner, or for that matter even possibly a new developer. In my preparing the application, I prepared the report as though it were like a brand-new application in the event the commissioners wanted to review this as a not necessarily a straight-on time extension request but a new application. I gave that option to not only the staff but the commission, and the staff decided that the appropriate way really would be to process it via the amendment route. But nevertheless, all of the information contained in the application is tantamount to like a new application. I really don't have any more to add, except that I know there was this, there was this one condition relating to a historic trail; that was thoroughly investigated, and to the extent that it could be barely discernible, it's kind of reflected in the site plan, and it will be continued to be reflected in any subsequent site plan. I noticed that the staff had proposed a condition requiring, to the extent practicable, delineation by metes and bounds of this remnant of any trail, and that will be done by the applicant. Having said that, you know, the other question, you know, related to the public testimony, talked about, you know, issues relating to being able to accommodate the concerns of the Kaulana at Kona project, and ironically, the Kaulana at Kona project was part and parcel of this original project. But at any rate, the applicant fully understands the comments and concerns, and based on that, when the commission approved the SMA amendment back in 2015, there were a number of conditions that specifically addressed that concern, and it's carried through in the current proposed conditions, and these are conditions 2, 10, 15, 16, and 17. And this morning I saw public testimony portion; the testifier noted the question relating to drainage, and I'd like to again direct the commission's attention to proposed conditions 8 and 11, which specifically relates to that on drainage. So, having said that, Mr. Chair and members of the commission, if there are any questions of me, I'd be more than happy to answer them. VITOUSEK: Thank you, Mr. Fuke. Commissioner Yates. Remember we are trying to keep everybody within a 10-minute fact-finding period YATES: Okay. VITOUSEK: —and then (indiscernible–broken connection) hopefully, and then we can move onto discussion. Please proceed. YATES: Okay. How close to Life Care is this construction project? FUKE: The smaller property is actually adjacent to the Life Care Center. 5 EXHIBIT D YATES: So, I guess my concern is, because how much of an impact would that make to those, to the patients and people at Life Care. FUKE: Yeah, usually, Commissioner Yates, the impact would be associated during the construction period, and so the applicant is very mindful of that— YATES: hatYATES: Okay. FUKE: there are specific conditions relating to dust mitigation and noise mitigation as well. YATES: Okay. I had questions on cultural sites,but you did mention some of that, and I think I leave that to Mike; he is, he is smarter than I am on that. The other question that I had, you had 184 units, is that correct? FUKE: The maximum allowed would be 184 units YATES: Okay, but you only have 10 handicap parking? FUKE: The parking would have to be consistent with whatever the zoning code is, but based on this, then what's being preliminarily proposed stands, and I believe like that still excess of what is required. I think normally what happens is that when a person, when you have a project of this nature with separate buildings, it's incumbent upon the developer to at least have one handicap stall assigned to each structure. YATES: So each structure would have how many units? Approximately. FUKE: Yeah, it varies like eight to 10. YATES: Okay, well, yeah, okay so I mean, you know, and the reason I'm asking is because, you know, our population getting older and they are the ones that can usually afford to have a place FUKE: Understand YATES: —and so parking becomes a problem. And then I noticed that you have a clubhouse and recreation area, and those areas would probably need to have some handicap parking, and I think that's a concern. And, so, that was the reason for my question about the handicap parking FUKE: Yeah, I think your concern is very well taken. You know, as preliminarily proposed, they are suggesting like,proposing, you know, over 400 parking stalls, and the minimum requirement for parking, you know, for condominiums, you know, ranges from 1.25 to 1.5, depending on the number of bedrooms. So obviously, the project would have much more than its minimum required. So if there is a need for additional handicap stall, and I think it would behoove the developer to provide those kinds of accommodations, there is ample room on the site to accommodate. 6 EXHIBIT D YATES: Okay, very good. That's all I have for now. Thank you. VITOUSEK: Okay. Commissioner DeFranco. DEFRANCO: Thank you, Faye. My question was about Life Care, too, my concern. So, will the buildings that you are building below Life Care impact their view? Is it going to you talked about mitigating dust and noise in construction, but once they build it, does it go in their view plane? And, the second part is that where the pool and clubhouse, the sound, what happens there between those two places? FUKE: If I—very important question, I think, the view plane concern, because we addressed the view plane issues relative to the existing Kaulana at Kona project— DEFRANCO: rojectDEFRANCO: Right. FUKE: but we didn't specifically address the impact on the Life Care facility. DEFRANCO: Yes. FUKE: I think in this particular situation—and I guess, you know, Christian can show the site plan, which shows the property in relation to Life Care—Life Care kind of like looks out more towards the, you know, Kailua portion. DEFRANCO: Can't see it there. FUKE: And whereas like this project, you know, the orientation of the Life Care structure, the units, are, run parallel with Kamehameha III Road, so they look out that way, you know, like towards Kailua, Kainaliu [sic], the Kahalu`u area; whereas like these projects are immediately makai. Sooh, that's a good one, yeah—so portion of it would, you know, on the makai portion of the Life Care would have some amount of visual effect, but not so much on the section, you know, further mauka. The units over there are going to be like two stories, so two-story would be no more than about 30 feet high. And then if you look at the site plan againChristian, yes—so those would be like the two structures that are close to the Life Care facility. So the one that would have, closest to the Life Care would be buildings number I and 2; that whole site, you know, which consists of merely three acres of land, the maximum number of units would be no more than 30. DEFRANCO: Okay, so, my, my question is, because it looks like it takes up at least half of Life Care, in front of Life Care, so how—I know it slopes upso, is Life Care's view plane above, above what you are creating, or is it just going to look right into these buildings? FUKE: It's going to have like some impact on the view of the makai portion of the Life Care facility. 7 EXHIBIT D DEFRANCO: Can you, can you be more specific for me so I can understand this? See, that's like half the building FUKE: Oh, okay DEFRANCO: at least half the building. And then you have—and it's going to be above what you are building, right? That, it goes up there. FUKE: Yeah, so if you look at like, you know, where "90" is DEFRANCO: Yeah. FUKE: the word"90,"you are going to have like two structures that are pretty much going to be generally in that area. DEFRANCO: Uh huh. And on top of where the "90" is, what's there? FUKE: Well, generally, in the area where the number "90" is written. DEFRANCO: Okay. FUKE: So it's going to have you know, I'm not going to, any description but it's going to have some major visual impact on that project of Life Care. DEFRANCO: So it takes away all their visual or some of their visual? I'm just not quite understanding what you are saying there FUKE: It's going to take away some of their visual, because, you know, fortunately the buildings, the structure proposed by the applicant is not one long monolithic building, but it's a series of structures, or two structures, in that particular area, so you will have like open areas that will have direct view, unimpeded view. DEFRANCO: Okay. JACKSON: Chair Vitousek, can I add to that? VITOUSEK: Yes, please. JACKSON: So I just did a quick elevation measurement on Google Earth, and it looks like the location of buildings 1 and 2 sits about 10 to 15 feet below the elevation of Life Care DEFRANCO: Oh good. JACKSON: so anything above a one-story building would have some visual impact. DEFRANCO: And, and these are all two-story buildings. 8 EXHIBIT D FUKE: In that particular area, as my understanding is yes. VIOTUSEK: Is that it for your questions, Commissioner DeFranco? (Inaudible response) Okay. Commissioner Van Pernis. You are, you are not muted, you can speak now. Now you are muted. Okay, you are good. VAN PERNIS: Okay. This question is for the Planning Department. I'm looking at your background report, and it appears that the project was first approved in 1989. Is that correct? KAY: The SMA permit, number 286, was first approved on August 15, 1989, correct. VEN PERNIS: And there have been various extensions of times since then, right? KAY: Yes, amendments in 2002, 2005, and 2015. VAN PERNIS: So now they are asking for another three years from now, right? KAY: To secure a final Plan Approval, that's correct. VAN PERNIS: So that would be not construction but time on Plan Approval. KAY: Yeah, that's correct. So if you take a look at condition number 3, they would have, after securing a final Plan Approval, one year to commence construction of the project and five years thereafter to complete. VAN PERNIS: So looking at a postponement of nine additional years from now. Is that right? KAY: If it goes to the end, that's correct. VNA PERNIS: Okay, so, what, 1989 to 2030? KAY: Is that a question, I'm sorry? VAN PERNIS: Yeah, is that right? We are talking about 40 years since issuing the original first approval? KAY: Yes, to complete what is now the remainder of the project; the 44 units of the original units that were initially approved under SMA 286, have already been built, and that's the Kaulana at Kona condominium project. And there has been some reduction in density allowed and things like that. But the remaining 184 units, if it goes to that, from the beginning of the time the original SMA permit was granted, the time it will be complete would be from 1989 to, was it the, 2030, correct. VAN PERNIS: Okay, approximately 40 years. Now, many of the approvals were made by the planning director, or many of the extensions — 9 EXHIBIT D KAY: Uh VAN PERNIS: were made by the planning director during that time, right? KAY: Yes, so the background report identifies when there were administrative time extensions granted, and that was done by the planning director at the time. VAN PERNIS: And during, from 1989 until now,there's been substantial changes in the amount of traffic on Alii Drive and Kamehameha III Road, the Life Care Center has been built, the shopping center there has been built, and there have been innumerable other projects and houses built during that period of time, right? KAY: I'm aware of the Care Center and the 44-unit phase one. I don't know exactly the history of all the other development in the area. But, yes, there has been construction since the time 286 was granted. VAN PERNIS: And what additional infrastructure requirements have been added since 1989 to this project? Public infrastructure. KAY: There are requirements for curb-gutter-and-sidewalk improvements along the frontages of parcel 90 and parcel 78 prior to VAN PERNIS: That was—when, when was that first imposed? KAY: I'd have to look back; I don't know exactly at what point in the process that was required. I know it's carried through from the 2015 amendment. Sid may be able to address that, or the applicant may be able to address when those requirements were added. VAN PERNIS: Some time before 2015, is that correct? KAY: I'm not exactly sure. If it was done prior to 2015, but I know in 2015 that was one of the conditions that was part of the permit. VAN PERNIS: Now, has the public had an opportunity to weigh in on what additional infrastructure since 1989 and 2015 is appropriate? KAY: The public has had an opportunity, as the amendments have come in front of the Planning Commission, to participate in those hearings. I think that the zoning in this area has always been RM-3, so the entitlement that has been, was requested in 1989 and has been amended throughout, has been the SMA permit. And I believe we talked about this before as a commission that the traffic is not one of those discussions, or those type of roadway infrastructure pieces are not one of those triggers like a zoning would be, if this was like a zoning change. 10 EXHIBIT D VAN PERNIS: Is there other infrastructure that would then be supposed to be imposed other than traffic? KAY: There is water available for it, there is wastewater available for it, the proposed project. So I'm not sure that I understand the question. Are you saying have there been other requirements above and beyond those? VAN PERNIS: Yes. KAY: Not to my knowledge. Just what our conditions of approval, the requirement to have, you know, water available for the project and the wastewater availability, capacity availability, which they have. VAN PERNIS: Are there turn-lanes required? KAY: I don't believe so. VAN PERNIS: Is a KAY: Access, access would be taken off of that 20-foot wide private easement, and that's a signalized intersection there, across from the signalized intersection of Keauhou Shopping Center, so there is already the facility in place to handle those turns, signalized, yeah. VAN PERNIS: Thank you. I have a question of the applicant. KAY: Sure. VAN PERNIS: Mr. Fuke, has the developer considered the fact that during the period of time involved here, 40 years, that the amount of electrical vehicles has been up about 50 percent, and they would have charging stations in their parking? FUKE: Well, first of all, I'd like to indicate that the current applicant was not the applicant way back in 1989 when the original SMA permit was secured, and I think as Christian pointed out, the SMA permit was approved, the project was completed but not its entirety, and because the original SMA had required the project be constructed and completed in phases, that's the reason why the extension had to be made. You know, the applicants acquired the property in 2013 to 2014, you know, during the expiration of the earlier SMA permit, and as a result, had to come in for the SMA amendment back in 2015. Now, relative to your question about the fact that electrical vehicles are kind of like on the rise, I mean, you know, that's, that's not a mandated thing, but if that is like the trend, I'm sure that any wise developer would wish to have or provide that kind of accommodation within the project, you know, in the same way like what Commissioner Yates was pointing out about the need for, possible need for additional handicap stall, I mean, fortunately the property is large enough, the project is going to be not as dense as what's currently allowed by the zoning, so there will be ample opportunities to provide for handicap stall. So—and it behooves the project, you know, 11 EXHIBIT D and looking at clientele, and, you know, if that's who you want to market this stuff, if that's your market, then you have to provide that accommodation, likewise whether it's for like handicap, additional handicap requirements or like EVso, but at this point in time it's not a mandate, and it's really like at the discretion of the developer to provide. VAN PERNIS: Thank you. VITOUSEK: Is that all your questions, Commissioner Van Pernis. VAN PERNIS: That's it. VITOUSEK: Okay, thank you. Commissioner Armbruster. ARMBRUSTER: Hi there. Christian, this is probably a question for you. Is there anything that's changed in the code in the process since this was originally granted that would prevent an SMA, prevent this SMA from being granted today, if it were a new application? KAY: No. So just to give you an idea of what our process is, on amendments is, we look at them, even though it's not a new application, we kind of look at them as it were a new application; we look at all the same information. One of the criteria is, you know, is it consistent with the original reasons for granting the permit in the first place? So we go back and we take a look at condition compliance to this point. We take a look to see if there has been any significant changes. You know, the Kona CDP was granted in 2008; there is nothing in the CDP that would preclude this amendment or the development of the project in this area. So, yeah, I mean, as we look at amendments, we don't just look at it as what's being asked; we kind of go back and review the record and see, you know, what if anything, what of any changes there have been that would require additional conditions and/or would necessitate a denial recommendation. In this case, it's, if the applicant would have come with a brand-new application, you know, today, we would look at the same things, and I think the approval would be, the recommendation would still be an approval. ARMBRUSTER: Thank you. And then, for the applicant, I'm assuming this is a hundred percent market-rate housing that you are proposing? FUKE: These are going to be like condominium units. ARMBRUSTER: Is there any, any thought of affordable housing or any affordable housing offsets that the developer is proposing? FUKE: There is no affordable housing requirement, and at this point in time I don't know whether the developer has any plans to assign any units for affordable housing. Normally, affordable housing requirements are associated with any change of zone. I think, as what Christian had mentioned, this is already a zoned property for a number of years, and we are just coming in for an SMA permit and trying to address all of the criteria and guidelines for issuance of an SMA permit, which are different from the criteria and guideline for issuing a rezoning application, for example. 12 EXHIBIT D ARMBRUSTER: Thank you. VITOUSEK: Okay, is that it for commissioners? Okay, I'll ask my questions—one second. Okay, the criteria that we have to evaluate a time extension request is: A, the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicants, successors or assigns, and that are not the result of their fault or negligence; B, granting of the time extension would not be contrary to the General Plan and zoning code; and C, Granting of the time extension would not be contrary to the original reasons for the granting of the permit. I think items B and C have been addressed through questions by previous commissioners that it's not contrary to the General Plan or zoning code, and that the extension is not contrary to the original intent. So I'd just like to ask a couple of questions on item A as to the non-performance to date. So it's stated in our application that the 2015 SMA, where Plan Approval was received, their reason that was not actually built was because "bids for the development proved too costly." Is that correct? FUKE: That is corre-that is correct; Like, you know, Alii Architect was the architect, and they did a preliminary design, you know, to address the Plan Approval requirements, and as well as had to modify some time to address some of the design commitments, or parameters, that was agreed upon with the Homeowners Association at Kaulana. So he came VITOUSEK: So FUKE: I'm sorry? VITOUSEK: I just keep asking the questions, sorry about that, Mr. Fuke, but who hired the architect to design FUKE: Pacifica Big Island LLC. VITOUSEK: Okay, the developer. FUKE: Yeah, so the developer then and the developer today, yes. VITOUSEK: So then it was designed, it was hired by the developer to do the design. FUKE: Correct, yeah, and VITOUSEK: But(indiscernible–simultaneous speech) FUKE: I'm sorry? VITOUSEK: They couldn't afford the design that they created. Is that right? FUKE: Well, the design that the architect prepared was a preliminary one, and then after that was done, then they did some preliminary so-called like cost study analysis. And because of the 13 EXHIBIT D extreme sitework that's required for the property,you know, they had hired like Hiram Rivera to take a look at the ground conditions and, you know, based upon that, kind of like going back and forth, and they said if you are going to do this particular project based on this particular design, then your sitework requirement is going to be, you know, inordinately high. And so they had to kind of go back, you know, to the table and try to come up with some alternative design or let alone looking at the construction material. So that was, you know, really resulted in some of the delay. At that point in time, I mean, in 2015 and, you know, Pacifica was really like ready to start with the project, you know, gangbusters, so they had funds and everything else. Then, you know, this cost construction came up, and shortly thereafter the eruption and VITOUSEK: I'll get to that, Mr. Fuke, I'll get to that for sure. But basically, what I'm saying on this one is that, you know, the decision to not build is a result of the high cost of the design that was made by the applicant. Is there any outside factors that force the applicant to design a structure that they couldn't afford? FUKE: You mean like following the same footprint that, for which Plan Approval was secured? VITOUSEK: That they designed, right. FUKE: Yeah, so they ran into like more detail cost analysis after the Plan Approval with the design, because prior to going into, you know, like hard drawings, construction plans, and that was when they kind of like decided to call on hold. VITOUSEK: Okay, got you. So in my—okay, thank you. Next up, they stated in there that, in the, so in their 2018 request for an administrative extension, they stated that the market for housing is robust, but the frenzied labor market drives up prices. Is the frenzied labor market the result of high amounts of construction elsewhere in Kona? FUKE: I really don't know. I think that that, that was a comment written in, the request for an extension was written by the former project manager; I didn't generate that letter, so I can't really speak to what he was referring to there. VITOUSEK: Okay. So it seemed to me as though the labor market being frenzy because of high amount of construction would be indication that it's, there is a lot of construction happening in the area, and that there are no outside factors that will prevent the applicant from pursuing construction since there is so much construction happening. Do you agree with that? FUKE: That is true, I mean like, you know, if you have a lot of construction activity, it will demonstrate that there is a lot of interest in a project of this nature. But I guess any, any homeowner or developer would have to kind of balance up the availability of funds with what you are going to be building. And so in this case, sure, I guess the conclusion was just that they'd like to build, but maybe, and maybe that time was a right time, but not at that kind of cost that, to construct the buildings is going to be. 14 EXHIBIT D VITOUSEK: So there are no outside factors that prevent them from building because of the high amount of building in the area, so the decision not to build is because of lack of financial resources on the part of the developer? FUKE: I would say, to some extent, I think that could have affected it, you know, I don't think that was a sole decision. But it's just like saying that, you know, say, you've got like $500,000 to build a home, and then after you have your design and then oops—even like trying to build today, you know, because of the cons-you know, the material cost is like exuberantly high, you know, what's your original budget and your actual ability to build is, you know, becomes two separate matters. And so I think that was the dilemma that the applicant faced, you know, at that time. VITOUSEK: I'm just, you know, I'm just reflecting what's stated in our background about the reasons that are outside their control. So the next reason that's stated is the volcanic eruption in 2018. Do you know the date that the time extension for Plan Approval was granted by the county? FUKE: Yeah, the Plan Approval was granted like shortly after they were actually granted in July of 2015 and September of 2015. Now the SMA was granted, you know, became effective in March of 2015. And the fact that, they, you know, within a span of six months, they pulled the trigger to do all of that, you know, it was indicative of their desire to get something on the ground as soon as possible. VITOUSEK: Got you, thanks. And I stated my question wrong; I'm asking when, if they are aware of when the administrative time extension for the SMA in order for them to attain Plan Approval was granted in 2018. FUKE: Yeah, it was granted in 2018, and I believe like when the former project manager requested for an extension, I think that the eruption had already occurred, and that kind of dampened some of the overall market. VITOUSEK: Okay, so the extension occurred on September 4, 2018, which is the same date that the eruption stopped, September 4, 2018, so they received the extension after the Kilauea eruption had ceased. So FUKE: I think that was purely coincidental. I don't think that was by design, but nevertheless VITOUSEK: (Indiscernible–simultaneous speech) FUKE: leading up to that, you know, understandably, you know, the overall real estate market for the Island of Hawaii was really, it sagged. VITOUSEK: Do you know what the changes in the real estate market were between 2017 and 2018? FUKE: Specifically no,just on the generic level. 15 EXHIBIT D VITOUSEK: I do, it was a decrease in condo sales of 11 percent and a decrease of residential sales of 10 percent from the MLS FUKE: Thank you very much. VITOUSEK: although it was immediate rebound in 2019, with an increase in condo sales of eight percent and an increase of residential 13 percent. So, to me, it's an indication that there is, this eruption was not a factor in their decision not to build, in terms of actual results of the eruption. FUKE: Well, I would think like normally, you know, Mr. Chairman, I think, normally—so you defer because, and then you want to get started; to get restarted, you actually have to have construction plans prepared, and they weren't in the position to submit any plans for building permit. But I think that if the way you cited, that there was a rebound in the market and you already have your building permit, I think construction would probably have occurred. VITOUSEK: And in this case, we are not getting to the point of permits; we are just, the simple process, more simple process anyway, of Plan Approval. You know, continuing onto the list of, of reasons that are being given as factors outside their control is COVID-19 pandemic. Do you guys have statistics on the changes in the market that resulted from the COVID-19 pandemic? FUKE: No, I don't have any specific statistics; it was, again, it was more like intuitive. VITOUSEK: Well, that, so 2020 there was a decline in condo sales of 14 percent and increase in residential sales of nine percent, and year to date 2021, there is an increase in condo sales of 143 percent and increase in residential sales of 57 percent. FUKE: I will not dispute your numbers, Chair. VITOUSEK: Statistics. So, I mean, do we agree that we are in one of the most robust sales periods in history of Big Island? FUKE: I don't know if(indiscernible–broken connection) but I'm sure that there have been, the island has gone like many cycles, and this is kind of like one of those cycles. VITOUSEK: Yep. FUKE: But ironically, like where you have the real estate, you know, ups and downs, what's funny is like the automobile industry is a little bit kind of like screwy right now, you know, because of the shortage on the chips. So that's kind of unprecedented, as opposed to like real estate. VITOUSEK: So, you know, given that the stated factors are not truly detrimental to the construction of this project, what indications can the developer give to us that they are in a financial position now to complete this project? 16 EXHIBIT D FUKE: You mean in terms of like whether they have the funds? I can't really speak for that, Mr. Chair, except that there is a very narrow window within which they must secure Plan Approval. They are going to have to do some redesign, because obviously the original design did not work, so they are going to have to do some redesign and come back. And if they can't comply with that, you know, within that window, they are going to have to come back before this Planning Commission again. At any rate, like, you know, not knowing, you know, what the commissioners' attitude or proclivities were relative to time extension, that's the reason why I had submitted a report giving the option of either a new SMA permit or considering vis-a-vis a time extension. VITOUSEK: Okay. Do you know, in any case, whether it's a new, a new permit or whether it's a time extension, you know, one of the conditions of the approval is that it will be built, and, again, we want to know, I would like to know that the applicant has financial standing in order to build this project as condition. Do they, where is the money coming from? Is it a financing or is it private equity, to have the money to build it? FUKE: Okay, Mr. Chair, can I refer the question to Mr. North or his associate? Because I think they are familiar with the company themselves to attest or share with you a little bit more information regarding the viability or the company to do anything on the property. VITOUSEK: Sure, no problem. Hello, would you please state your name and the area you live in? NORTH: Hi, Mr. Chair. My name is Ricky North. I live in San Diego. I work with Pacifica Companies. As Sidney has indicated a couple of times, I'm actually a new project manager for this particular project. It's something that I'm only familiar with in the last couple weeks, so I could only speak to my existing experience. In listening to some of the comments regarding the market conditions, a lot of the data that you've given us is what we are seeing, but it's in hindsight, and a lot of times when we go through things that are considered to be disruptive to the market cycle, we question internally what we are going to do and how we are going to do it. In terms of the construction costs, when there was a big boom of construction, typically what we are seeingI'm seeing this on the west coast of California particularly—is that supply and demand; it's hard to get the labor at the price that you, and material, at the price you are comfortable with, if everybody is building. So what happens is you are paying more on most of things that typically were budgeted for a different amount previously. I can't speak specifically to Hawaii because I'm not familiar with this particular project or budgets that we had beforehand, but that's something that I've seen come up here in California where we have a proj ect. And in terms of financing, the organization itself is able to fund this project and a project of this size, of larger; we have a much larger project, for example, in Chula Vista, which is San Diego. And we can finance a lot of construction independently without any financing. Typically, we get construction loans just—money is cheap right now, cheaper than ever before—and so we do. Sometimes if we need to, we will fund it ourself, and I don't know if you've ever done this, but proof of funds or something, and I canI haven't got the, been given the authority to share that, 17 EXHIBIT D but the money is there to do it independently. We also have relationships with very reputable banks here in San Diego. So the money is not the problem; it's being able to build something at the cost that we are comfortable with. VITOUSEK: So given the extension (indiscernible–echo and broken connection) you have the money to complete the project? NORTH: You did break up there, but is the question do we have the funds to build the project? VITOUSEK: Yep. NORTH: Yes, we do have the funds so we could build this project. VITOUSEK: And you will allocate those funds to building this project, if the extension is given, in the timeline? NORTH: I would have to confer with the team to say that's absolutely a definitive decision, but that's the intention I've been given in the short time I've been put on this project. VITOUSEK: I mean, for us, end result, the condition of issuing permit is that it will be built, so it doesn't make sense for us to issue a permit, if we don't think it's going to be built. So we would need a commitment from your group that, yes, if you issue this permit, we will build. NORTH: I can, I mean, the reason why I would hesitate is because there have been things that happen in the last year or two that were just unprecedented and un-we could never have, have expected, but the intention is to build. As long as the cost for the project of those that we are comfortable with them where we can make a return on the investment, then, yes, it would be something we would build, but it's certainly something that we need to investigate further and explore. I can't—and again, I've been on this for two weeks, so I'm talking in general terms because I can't say that matter-of-factly. FUKE: Mr. Chair, can I just make one comment to that? VITOUSEK: Yep. FUKE: You know, normally, the condition would allow the planning director to grant an administrative extension. In this case here there is no provision. So the short answer to your question is that if they don't comply with the window of, construction window, they are back before the Planning Commission, and I'm sure like all of these, most of you commissioners will still be here. And I know you all have elephant memory, so. VITOUSEK: Yeah YATES: Yes 18 EXHIBIT D VITOUSEK: Go ahead, Commissioner Van Pernis, you had your hand up first. Go ahead, Commissioner Van Pernis. You are, you are not on mute, you can speak now. Commissioner Van Pernis, you may speak. You are not on mute,you don't need to unmute it, you can just speak VAN PERNIS: Okay VITOUSEK: Yep. VAN PERNIS: am I heard? VITOUSEK: Yes. VAN PERNIS: I would ask the applicants. You bought this project, and when was that? When was this project purchased? FUKE: My understanding, Commissioner Van Pernis, is that the applicant bought the property, or got interest in the property, either in 2013 or 2014, and shortly thereafter they sought the time extension. VAN PERNIS: Okay, so they bought the project with the previous permits in place. FUKE: That's correct. VAN PERNIS: I assume they paid a great deal for it. Do they, does this purchaser also sell projects such as this? FUKE: You mean developed or undeveloped projects? VAN PERNIS: Undeveloped pro-well, projects such as this which are not fully developed. FUKE: I can't speak for that directly, but if Pacifica Big Island, Big Island Pacifica LLC or any other like developer, they'll either do a joint venture, sometimes they sell, sometimes they develop, you know, I've seen that happen all over. So I can't definitively state that, you know, what's going to happen like next year, and so they'll keep if for the next five or 10 years. VAN PERNIS: Oh, so it's possible that this project would be sold, like these applicants purchased it. Would they possibly sell it? FUKE: It's like, it's no different than a person applying for a single-family zoning, you know, and later on selling a portion of the, a portion or all of the properties. And so I think the critical thing in evaluating, from my point of view, evaluating land use request are, you know, is essentially, does the project meet the criteria, do you have the appropriate infrastructure to address the development, regardless of who the developer is. 19 EXHIBIT D VAN PERNIS: I'll take that as an answer to my question, saying that they might sell under certain circumstances? FUKE: I cannot say that they will not sell it, because there is always that, because if I say that they won't sell it, and they do sell it, and then I'm going to be lying to the commission, and I don't want to lie to the commission. VAN PERNIS: Now, have they applied for any financing for this project since they acquired it? FUKE: I can't speak to that. Maybe Mr. North can. But I think that he indicated that, in response to a question to Chair Vitousek, that independent of any financing, the company is in a position to build it. VAN PERNIS: Well, the question is, if Mr. North could answer, was any financing applied for for this project. FUKE: That, I don't know. And may I ask the relevance behind that question? VAN PERNIS: Well, I'm following up on Mr. Vitousek's questions about whether this project is actually going to be built. It's first approved in 89, and here we are almost 40 years later, with no certainty when or if it would be built, versus sell or refinance it. You haven't got any information if there's been financing even applied for. You say we can always come back to the Planning Commission, but I would say that the permit should be, or permits, should be already cancelled. It was a sunset provision, if it's not built within a certain period of time VITOUSEK: Okay VAN PERNIS: these applicants should commit to when it's going to be built. VITOUSEK: Okay, we'll get into, we'll get into that during discussion KERN: And Mr. Chair, if I may. VITOUSEK: Yes, sir. KERN: Just, I'd like to try to bring us back to more of the criteria around the SMA. I do understand what you, you know, you are coming from that you want a commitment that this is going to be built in some way. Fully get that. I think we are kind of, need to probably bring the guardrails in a little bit. I'd also like to point out that the applicant did ask the Planning Department whether it was going to be a new, whether they want us to do a new application or a time extension, and it was the Planning Department that determined that this would be most appropriate as a time extension while reviewing it as a totality as it would be new. So I just, I want to underscore that, that we actually said that that would be the most appropriate manner to go. YATES: I have a question. 20 EXHIBIT D VITOUSEK: Commissioner Yates. YATES: Just a quick question, hopefully it's quick. If this project has been approved previously and, you know, back in 2008 or whenever it started, then how come we are looking for another extension, rather than just getting it going? That's what I'm confused about. And since the developer said they have the money, they don't really have to go and get the money, then why isn't it just doing it? Or is something missing? VITOUSEK: They ran out of the time on their condition to secure Plan Approval. So they didn't, they didn't go out and do it, that's the problem. They didn't do it, and then the time clock ran out on that; now they need more time in order to meet the requirements. Do you have another question, Commissioner Yates? YATES: Actually, it's not another question, I'm just saying that if they had, if they were able to, I'm just not understanding why they didn't, you know, at the time, because like he said, Commissioner Van Pernis said, it has been almost 40 years SCHLUETER: Can I pause you real quick? Can I pause you real quick? We are waiting for a motion on the floor before we fully engage in discussion. If we can finish questions, and then you folks get to discuss further. VITOUSEK: Okay. The last question I've got is in regards to the historic trail. So we are in a situation where Na Ala Hele has made a claim that there is fee simple land on this property that is owned by the state as unencumbered land under control of the Board of Land and Natural Resources. This doesn't mean that it's been fully adjudicated to prove that in fact that land is owned the state. Is there a drawing of the site plan that shows the location of the trail? KAY: Yes, Mr. Chair. I added that at the end of my presentation just in case this question came up, and it was included in the response that Mr. Fuke provided as part of the report in compliance with that condition related to the trail. But give me one moment, I will share my screen and identify the general location of the trail. Give me one moment, please. Can everyone see this? VITOUSEK: Yes. KAY: Okay, great. So just for reference, we've got parcel 78 here,parcel 90 here, the approximate location, or area, of the trail segments as was identified in the 1980 AIS is generally in this area, that circle, and so, as you can see, at least according to this preliminary site plan, structures and improvements would avoid that area. Because of the statements relative to it being unencumbered state land, we decided to request that a metes-and-bounds survey be conducted so that the area could be identified on the ground such that should the area be used, they could appropriately secure an easement from the Board of Land and Natural Resources. VITOUSEK: So the trail KAY: Or avoid it in their development. 21 EXHIBIT D VITOUSEK: Right. So, the trail is a linear historic property, and we've got a circle of a small area there. Is that including the entire portion of the trail? Looks to be much bigger on the map. KAY: Sure. It was a trail segment, at least according to the AIS in 1980, and the AIS is the subsequent studies done after that were not able to identify on the ground any physical remnants of the trail section because of bulldozing of the property. But my understanding is, from Na Ala Hele's request or information, the underlying land area is still that kind of unencumbered state land. And so that was my understanding in reading through the record and the indications from the AIS, as well as SHPD's responses VITOUSEK: Got you. Looking at the Hammatt and Folk 1980 site location map, it's hard to, there's so many lines on there, it's hard to figure out what is the parcel that we are looking at. KAY: Yeah. VITOUSEK: But it appears as thoughI mean, hard to say, it's either a small section or a larger section. But in any case, you know, I'm—have you made any efforts to figure out whether or not this is or isn't state land? KAY: Is that a question for the department? VITOUSEK: The applicant, yep. FUSE: I think, you know, Mr. Chair, to answer your question, the so-called oblong circle is kind of like the generous designation of where the trail could be, the remnants of the trail could be, you know. Obviously, the archeologist could not find it on the ground, but based on this condition that the staff is proposing and the applicant has accepted, it will be then they are going to have to make a concerted effort to at some point in time delineate something, you know, on that area and have it described a metes and bounds, you know, in metes and bounds. And if in the process it turns out that they have to secure its acquisition or easement from the state, then that will have to be done. VITOUSEK: So what I'm saying is that I think it—you know, that is fine, the conditions are fine—what I'm saying is that the determination that this is state property is not complete yet. Na Ala Hele is saying its ours, but they don't have the legal authority to determine property right, right? Maybe it, maybe there is no indication that it is in fact Highway's Act and subject to taxes and government and actually is a property, rather than just being a trail alignment that was privately utilized in historic times. So there are factors that are, go above and beyond Na Ala Hele's claim that this is state property, and I was just wondering if the applicant had ever researched and done any work to determine within a court that this is state land or it isn't state land. FUKE: I don't believe the applicant, or the archaeologist, has taken it to that level. I kind of like suggest that if that is an issue, you know, the applicant would welcome any amended condition to that effect. 22 EXHIBIT D VITOUSEK: Well, I'm, I'm saying this isn't the archaeological site. The archaeology of the trail has been destroyed; there is no more trail. But the underlying property beneath the trail is a highway site, which Na Ala Hele has claimed, but that's never been determined to be state property. And the language is fine, but I was just curious if the developer had taken it to the next step, because in order for the state to give you an easement, you have to determine that it is in fact state property. That's not Na Ala Hele's determination; that's the court's determination. FUKE: Yeah, I think that as a result, you know, the staff's proposed condition would indirectly mandate that kind of research. By having it now you are going to have to specifically describe an area, whether it's obliterated or not. VITOUSEK: Okay. Commissioners, any last questions before we seek a motion? FUKE: Mr. Chair, can I make one more comment, if I may? VITOUSEK: I'll take it, but Maija had (inaudible–broken connection) JACKSON: Chair Vitousek, so I, I just want to get a little clarification from you on your comment about it not being, not for certain being state land. So I think maybe the department assumed that it was based on the Na Ala Hele memo from 2015; in that memo Na Ala Hele said, "As such, the trail is considered" I'm sorry, let me back up a little, they said although the trail has been destroyed the underlying fee simple title of the trail remains with the state through its Board of Land and Natural Resources—"As such, the trail is considered unencumbered state land." And so I'm a little bit confused as to why you are saying it may not be state land. VITOUSEK: So in my opinion, Na Ala Hele is making a claim of this trail; they are saying this is state land. But it doesn't automatically become state land because they say it does. That has to be determined by Land Court. So it could become state land through quitclaim by the owner. They can say it already is state land; that needs to be established, then it will be state land. But in my opinion, the mere fact that Na Ala Hele is claiming it, doesn't mean that it has become fully adjudicated to be state land. JACKSON: And I think that the guidance that staff has gotten from Na Ala Hele and Land Division before is that even if something is destroyed, if it's a trail, historic trail covered under the Highway's Act, it is still state land. And the impression that we have been given was that it doesn't have to be adjudicated, that it's just automatic. VITOUSEK: So I'm JACKSON: So I think that's why we are being ultra-conservative with putting that condition in that, hey, it appears to be state land, and if you intend to use that area at all, you'll need to get some kind of approval from the board. VITOUSEK: No, I think that's, I think the condition is fine. The condition is perfectly fine. All I'm saying is that I don't think that it has been fully proven to be state land. 23 EXHIBIT D SCHLUETER: I think, folks, I think we are getting a little far into discussion here with lots of opinions and things. VITOUSEK: Okay. SCHLUETER: Let's try and stick to our questions. We'll discuss in just a moment. VITOUSEK: Okay. So with that, can we have a motion to FUKE: Mr. Chair, can I just make one final comment— VITOUSEK: ommentVITOUSEK: Okay. FUKE: to address like one of the questions that was raised by the commissioners? Yeah, I think that Commissioner DeFranco had raised a very interesting, made a very interesting observation about the view plane impact the project would have on the Life Care facility. Normally, if my understanding of the SMA rules is accurate, the view plane considerations are important usually from a public highway perspective and not necessarily neighbor to neighbor. But notwithstanding the, you know, that criteria, it is important to remain neighborly. So in this particular situation, fortunately, there is like ample space to kind of adjust, you know, the placement of buildings. And so—and it was comforting to hear what Maija had mentioned that in checking the topography, the subject property is like 10 feet lower than, you know, the Life Care facilityso, you know, I, I would kind of like want to encourage the developer, and, you know, they are here, that during the course of the Plan Approval process, prior to submitting the plans for plan review, that at least have some consultation with representatives of Life Care Center to see like how possibly buildings could be massaged to address their concern. But at least give an opportunity for the Life Care Center to weigh in on it, and the Plan Approval, you know, that information obviously would have to be transmitted to the planning director as part of the Plan Approval process, and maybe the Planning Department through that process can modify, if appropriate, some of the placements of the structure. And I,personally, I think that just only being the good neighbors. VITOUSEK: Thank you. With that, again, is thereI think time is good to seek a motion to approve, deny, or defera motion that's at hand to the agenda item? Commissioner DeFranco. DEFRANCO: Okay, so, I move the application to amend the Special Management Area permit, docket number 286 be approved based on the planning director's recommendations, which shall be adopted. So I need a second. VITOUSEK: Second from anybody? (No audible response) okay, seeing noneoh, Commissioner Armbruster? ARMBRUSTER: Yep, I second. 24 EXHIBIT D VITOUSEK: Okay, motion and second. I'd like to open it up to discussion at this time. Commissioner Van Pernis. VAN PERNIS: It's clear that this project is going on and on for many years since `89, without any adequate public input on needed infrastructure. The current applicant purchased the property for, I assume, millions and millions of dollars, which primarily was money added to the price by the county rendering the SMA and other permits. What does the county get in exchange to that? Well, we are supposed to get a bunch of infrastructure that now is not going to happen, if at all, for up to 40 years, and we are not going to get—it's a bad deal the county has made, a real bad deal, given them millions, they purchased for millions, and the county gets nothing back, not even for this extension, there is no give-back for this further extension. And I think Mr. Vitousek was barking up the right tree when he said, or when he pursued the matter of what outside influence caused this delay. There is none. It's their desire for profit(indiscernible– muffled) as a profit margin that dictated whether and when they were going to build after the original applicants got millions of added values. This is not something I would say their circumstances, the volcano eruption and COVID, this is a shibai that I've been in, is just a the Planning Department has not looked into, and it's not adequately shown, that there is an outside influence that dictated this need for an extension. The need for the extension is purely want of, they want the adjusted profits. I would suggest that we put a sunset provision on this application. Mr. Fuke says, well, he can come in and, to the Planning Commission, if you want a further delay; I tell you, terminate the matter and start over again. I don't think the county should have said, well,just do this extension; I think it should have been an original application all over again so the matter of infrastructure could be addressed. I think allowing a sale and adjusting for profits, or delay for profits, is inappropriate. I would suggest that we, all permits be terminated at a certain future date, that the matter be approved as to the extension, but if everything is not under construction and completed, let's say, in three years, all permits are cancelled. Thank you. KERN: Mr. Chair, I'd like to opine real quick. VITOUSEK: Go ahead. KERN: This is an SMA permit. Whether it was a new permit application submitted or whether it was a time extension that they have, we wouldn't be going over the infrastructure side of it; that's not criteria that we review in the SMA. There is quite case law that relates to this. We do that for rezonings. So there is no, there is, we would be at the same place regarding infrastructure. So that's really not relevant to the SMA. We are here looking at the impacts to the Special Management Area on their, this existing legacy zoning. VITOUSEK: Okay. Commissioner DeFranco. DEFRANCO: Well, you know, I just look at this is we are here now with this project, and I do see the history of it, that they did build out some units, that it has taken them a long time. I understand by listening to Mr. North that they have the money to go forward with this project, that he is the new guy on the block. You know, building in Hawaii is not—it's even harder building in California because of the cost of materials. But, you know, the point is for me it's like I appreciate the idea that they might look at the project and give the seniors home a view; I 25 EXHIBIT D think that's a good idea. I think if the trail is addressed correctly and protected, which I think it can be, it's on a corner of that property, and I don't understand why, you know, they can't come up with a solution there. And because this is an SMA extension that's going on that we are trying to agree upon, I, for me, I think that they ticked all my boxes that I see to go forward with this project. I think it's a good project. It's located in a good place, it has the turning lanes, it has the sidewalks. Right now sitting empty, it's a place for homeless people to hang out, and goats. You know, it's right, it's in a perfect place really, with the country club there and the golf course there and, you know, I think it fits nicely. And if it's, if it's not changed anything to, environmentally impacting anythingI mean, it's got the wastewater hooked up, you know I'm looking at it as a good project. So if there is a way for all of us to look at it and not put all of our frustrations on this group, because we are upset, because time extensions seem to be always asked for. I don't know how to take that and calm that down, without making some, you know, verbal commitment. Let's hear from these owners, and they intend to go through with this project and live up to their word. And, and if they don't, you knowI don't know what a sunset clause is or what we can do, but I know in financing things, you can't say three years. I mean, what if Young Brothers or somebody like that, you know, decides that they are not sailing ships? Who knows what can happen? You know, there is a lot of things that can happen. So, anyway, thank you. VITOUSEK: Commissioner Yates. YATES: Again, you know, like where I started earlier about the different, you know, extensions of time, I guess I'm just a little bit confused, because, you know, we are saying you want a time extension for final Plan Approval, which I would have thought would be already there since they were ready to build, and then there is the project will begin in the next five years. And so that's what's a little bit confusing. I agree that, you know, housing is needed in Hawaii. And for this developer, I mean, this is a fabulous time, you know, you get it done as soon as possible because people need homes and prices are really great. So this is why my concern about these time extensions. So I agree, you know, if you can get it going, then get it going. VITOUSEK: Yeah, I meanoh, is that, Mark, you have your hand up? Commissioner Van Pernis, do you have your hand up? VAN PERNIS: Yes. VITOUSEK: Okay, go ahead. VAN PERNIS: I disagree with Ms. DeFranco—since I (indiscernible–muffled). This is an appropriate project for that area; that's not the question. The question is they've had since 1989 to get it done. And these people bought into it in 2012 or something, still haven't got it done. One thing she did say that I agree with is let's get it done. And the way to get it done is to have a requirement that it'll be done by a certain period of time, that the construction start and/or end at a certain time, or the permits are invalid. We would have a situation where the build-out would take place, rather than the endless delays and possibilities of resale upon resale. So I think that we represent the people of Kona, including developers, but primarily the people of Kona, and they are not getting what they are supposed to get here. We can accommodate developers up to a 26 EXHIBIT D point. These developers have already been accommodated way, way past the point. They want 40 years. If they want 40 years, it'd better be done, not come back in front of the Planning Commission and hear again how it's a good project, give us some more time. Let's get it done or move onto the next guy. VITOUSEK: Yeah, I tend to agree with what pretty much everybody is saying, with Commissioner DeFranco that this is an appropriate project in a good location, with Commissioner Van Pernis that there are some things that need to be addressed. I personally do not believe that the failure to perform on this is the result of factors that are outside of the applicant's control. I personally believe that they made their calculated decision not to build, and it was around this thing, you know, they said hindsight 2020, but it was their decision; there is no outside factors preventing them from building other than themselves. To me, I think this would have been cleaner as a new application, but the fact that Mr. Fuke prepares such a thorough application, we have all the information that we need to consider in the SMA permit review. I believe that we do need to put our foot down in one area, and that can be with putting specific language that if the current extension is not built out, which, you know, unfortunately, hearing from the developers, we didn't get a definitive yes, we are going to build this, we've got, we have to see what the market is doing. So if we want to get something built, you know, if they are the right person to do it, we can give them a chance to do it. But I think that in this case a sunset clause on this as a condition would be appropriate where we are saying that if you don't get it done by this time, that's it, permits voided, you come back for a new one or sell it to someone else who is going to build it. Commissioner DeFranco. DEFRANCO: Yeah, I agree with you, Mike. I just don't really understand legally. I need to hear legally how you say that, how you, how that would sound and how we would do that. So I VITOUSEK: condition of the permit approval where, you know, instead of saying at the end that"If the applicant should require an additional extension of time, the Planning Department shall submit the applicant's request to the Planning Commission for appropriate action," let's say something along the lines of if the timing conditions are not met, the application, the permit will be voided, and that's it. They can apply for a new one. Commissioner Van Pernis. VAN PERNIS: Yes, I just like to say in response to what Mr. Kern said, that it's, from my point of view, it's not good enough to hide behind, well,this form of application doesn't address infrastructure or if, a new application would be, doesn't address infrastructure. Well, it should. I think infrastructure should be something that's considered when we have this kind of a delay. There is nothing to prevent the developer, who may be in the future, to agree to address infrastructure needs like additional traffic and view planes, etcetera. So I think that it's not okay to say, well, it would not make any difference anyway. I think we should have an opportunity, which would come about, if the developer doesn't perform, as Mr. Vitousek says. VITOUSEK: Okay. I think in this case there are two conditions that I think would be appropriate for us to add to this in my opinion. I think one of the conditions that we could add would be a condition to preserve the view plane from Life Care, as the view planes are an SMA 27 EXHIBIT D issue, and if we do want to protect the view plane of our kupuna who are spending a lot of time there and are not able to get out and move around so much, so I would love to leave them with the beautiful view of the coastline, and I think we can do that through a condition. And then the other would be altering the conditions to indicate that if the current extension is not fulfilled at any phase of it, if they don't get Plan Approval within the three years, if they don't start construction within a year, if they don'toh, if they are substantially, if they start construction, I'd like them to finish but if they don't do those two things, then the permit will be revoked. I just wanted to know if the applicants would agree with that. Mr. Fuke. FUKE: Mr. Chair, I was just communicating with the applicant via text, and thanks to the wonders of technology, I specifically asked them the question whether they would object to any sunset clause provision as, along the lines of what you had articulated, and the response to that they said no problem, you know, they'll accept it. Because, you know, understandably, whether it's they or their partner or whomever, they understand what the constraints are, and they are ready, willing, and able to develop the project as represented. VITOUSEK: Yeah, you want to do it, let's do it. In that case, we will need a motion to amend the motion DEFRANCO: And the other, and the other provision? VITOUSEK: Yeah, the other provision, correct, yes. FUKE: Yeah, the other provision was, you know,just having a consultation, you know, with the representatives of Life Care Center and try to see what kind of a site plan can be developed over there. Now, knowing that the planning director has the discretion to move structures around as part of the Plan Approval process, the concept was to have that kind of discussion with representatives of Life Care, come up with a scheme, and provide such a report to the planning director in conjunction with the Plan Approval application. I think that it's kind of hard to stipulate, quite honestly, it's very difficult at this point in time, unlike what the architect did with the Kaulana project, you know, to specifically look at the sight plane distances and all that stuff, it takes some time. But I think that all developer can agree to is like a commitment to have that consultation and defer and trust your planning director in making adjustments as may be needed based upon that— VITOUSEK: hatVITOUSEK: Well, we are talking about specifically a condition to preserve the view plane of Life Care. FUKE: See, it's, like when you say "preserve,"that means, it can be like no structure, you know VITOUSEK: No FUKE: —it's like 10 feet below, and then it's like—it becomes a difficult thing to, to implement, because, like, you know, the building stretches like mauka-makai, and then at some point in time you are going to have some obstruction. 28 EXHIBIT D VITOUSEK: But what, what would be the appropriate language, Mr. Fuke, that you would for our condition that would not entirely eliminate visual impacts but significantly reduce and mitigate visual impacts on Life Care to allow for a view from Life Care of the ocean? STRAW: Chair, if I can jump in real quick to make a comment? This is Jack Straw with Pacifica. I don't know that we are in a position where we can commit to something like that right here, because we haven't looked it back in depth to see what those impacts are and whether or not that would be necessary changes to the plan designs. We would need to look at that first. I don't know that we are in a position where we can definitively say yes I can agree to that today. VITOUSEK: Commissioner Van Pernis. VAN PERNIS: Yes. The statement, or commitment, to consult means they can consult and refuse or consult and impose whatever conditions they want. So I don't think that Mr. Fuke's suggestion is going, shouldn't go anywhere. I think that the multiple concerns that's left up to the planning director, he'll wait the planning director to make the decision, we also can't rely upon that as preserving the view planes. So I think that we need some sort of language that the view planes will be to some extent preserved by relocations of buildings or lessening their height. VITOUSEK: I agree. I think, the protection of the view plane for Life Care through relocation or reducing height of buildings as necessary. Would that be appropriate language? Commissioner DeFranco. DEFRANCO: Yeah, I agree with Commissioner Van Pernis. I think that we can have some language that's stronger than a consultation, which doesn't feel like that has double, both sides of us represented properly. But I do trust the Planning Department and the planning director to understand how we feel about this and what we are looking at and what we are looking for. And I also appreciate the honesty coming from the owners, or the representatives of the owners, to tell us, you know, they do have to work out a lot of things to be able to make this kind of commitment. But I think that we need to ask you just like condominiums next door asked you, is to be the good neighbor, you are going to have to look at this project and make an attempt to minimize the impact so you are not blocking the view of, completely, of this place. You know, II don't know, I know you'll come up with it, Mike. Come up with those words for us. Thank you. VITOUSEK: My proposed language will be, view planes from Life Care facility will be protected through relocation of buildings or reduction of building height as necessary YATES: (Indiscernible—simultaneous speech) DEFRANCO: —one more thing that, Mike, that is like, that's too, that's not in the middle, that's not meeting in the middle. You have to use a terminology that gives them a place to explore and gives us a place that we are going to be seeing. I don't know that those words achieve that exactly. So maybe, maybe someone whoMaija? Does anybody have an idea? 29 EXHIBIT D JACKSON: I would suggest instead of using the wording "to preserve view planes," maybe ,'minimize obstruction." That way, that's kind of the middle ground; they can still allow some view planes to the sea, but then also have a little bit of building, maybe like a roofline. VITOUSEK: Commissioner Yates. YATES: No, I don't think so, because once that building is put in place, there is no preserving the view. I agree with Commissioner Vitousek that you have to preserve the view plane. There is a lot of space, I mean, if you look at the plan, there is a lot of space here, even if you have to take down that building a story, you know. Because once the building goes up, too late, you can't change it. VITOUSEK: I mean, I feel like that there is a lot of space on the property, that they can accomplish their objectives still, you know, they can move things around, they can, they can do it. I mean, they have, I'm sure they've got high quality engineers to design, architects, they can make a beautiful project happen while preserving a beautiful environment for the kupuna alike. KERN: Mr. Chair, I want to try to chime in real quick. I mean the concept is to mitigate visual impacts, right? From the Life Care center, right? It doesn't mean that you are not going to see a roof, it doesn't mean that you are going to have unobstructed views. I think there is opportunity for the buildings to potentially be sited there, maybe with some adjustments; I think there is a lot more investigation that will probably need to occur to really understand the true impact. But I think the essence there is, you know, to mitigate the visual impact to the Life Care Center. But I think it could go a whole other way with what you are saying by way of relocating buildings, because they may not need to be relocated. We don't know. I think that's where we are lacking a little bit of information there. So how do we, how do we find the middle ground of mitigating the visual impact to allow them to have a view, right? VITOUSEK: Yeah, I think DEFRANCO: Mike, what about"protect view planes within reason?" VAN PERNIS: What's "reason?" VITOUSEK: What's the reason, what is a reasonable amount to protect the view plane? Commissioner DeFranco. DEFRANCO: Yeah, I just think that, I think that Mr. Kern made a very good point. I mean, and when they do the study of it, it could be that all you are seeing is the top of the roof. VITOUSEK: Terrific. Then it's DEFRANCO: I think that would be okay, right, Faye? I mean, but- 30 ut30 EXHIBIT D YATES: I guess where I'm coming from is, because the project is such a huge project that it would not affect them, if they had to, you know, move it or not put one there and put one somewhere else. Because they are looking for, to be able to secure final Plan Approval, so if they are going to do that, I would think that they would take that into consideration so that we won't have to go and fight with them later on that says no you can't put that there. No, because there is no such a thing as compromise where you are going to have a little bit of a building in front of you. I don't think that's the intent. We just don't want any, you know, because there's so much space there, so there is no reason to clog it all there and make the view from Life Care to be looking around the corner. KERN: To add to that,just as a thought, the topographical challenges sometimes of the sites, while maybe a big general canvas, can be very tricky and which can adjust cost up and down greatly. And so it's just something to be mindful of in this discussion that, well, you know, you look at it from a one dimensional, there is a lot of room, but when you actually get into the elevations and topogra- how are they going to have to do that, it gets a lot more complicated. Just something to VITOUSEK: Right, same could be said for using the topography to avoid visual impacts; it could be a lot more simple where if they move the building five feet forward, there is no visual impact because of that topography. And I think that what the commission is saying, some of us, is that we are okay with them having to shuffle things around a little bit in order to maintain a view of the ocean for Life Care. Mr. Kay, you had your hand up a while, go ahead. KAY: Thanks, Mr. Chair. As I'm listening to the discussion, it strikes me that there may be a way to bring together the different suggestions. It seems like Life Care Center is the party that's really not here at this moment, and hence the consultation, I think, as a start would be a good idea to determine what, if any, concerns they have over blocking their view plane. And then from there, having some type of visual analysis that's included based on those conversations in, to be submitted along with final Plan Approval and a report indicating the proposed mitigation that's going to address the concerns of Life Care Center as part of final Plan Approval. I'm not sure how to, how to verbalize that, but it seems like right now we are talking about that from what we think Life Care Center might want, but without having talked to Life Care Center first. Just my two cents. VITOUSEK: Commissioner Van Pernis. VAN PERNIS: I would caution against use of words like "reasonable." One man's reason is another man's unreason. So I think we should use definite language. Also, question whether we should have Life Care Center make this decision rather than us, who is Life Care Center? The occupants? The management? The ownership? I think we should decide here now. VITOUSEK: Commissioner DeFranco. DEFRANCO: Yeah, I think, Christian Kay, I think he made the point; I think that's who needs to be at the table is Life Care Center. And Commissioner Van Pernis made the point. I agree, it has to be, Life Care Center needs to be part of the conversation. And I think that that's part of 31 EXHIBIT D the commitment that they are committed to meeting with Life Care Center and then seeing what their feelings are and what they would like, and then when it goes to final Plan Approval, they know how we feel about it, and then we can support however Life Care sees it. Because it could be that side of the building doesn't even have windows; we don't really know, or, you know, what that part even is. But we need, we need them to be consulted. So I agree with you. VITOUSEK: Okay, would someone like to make a motion then to amend the motion on the floor, with the, provide us language on how we can move forward? I think that indicating that their view plane has to be protected and including the possibility of having to move buildings and reduce building height if necessary is entirely appropriate; it's part of the design, that's why, that's why they are they don't have Plan Approval yet—they are here so that they can get an approval. They don't have a design yet for their building. They are in the process of redesigning, both topography and construction. So here at this space, we are able to say while you are designing your building, please preserve the view planes of our kupuna. DEFRANCO: Well, Mike, why don't you say something based, throw in Life Care Center there with that sentence? It has to be a little bit based on what that, what that counsel will be with Life Care Center, what do they really want. I mean, don't you think we should include them somehow in there? VITOUSEK: I think great for them to be included in there, if we want to defer this item so that we can give them the opportunity to come to the table and consult, that's fine. If we want to move forward with it today, we need language in the condition that memorializes that the view plane will be protected. So really, to me, that they are, if we want to being Life Care in, fine, we need to defer this action, bring Life Care in. Otherwise, if we are going to make this decision, we've got to make it, and as Commissioner Van Pernis says, you know, there are all those levels to Life Care, there are the patients there, there are the residents, there are the employees, and perhaps the employees and management will be speaking for the residents. Commissioner DeFranco. DEFRANCO: Well, we have them committed now to going forward with the project. This is good, right? We have that commitment, which we were all worried about that they were just going to not do it. Now we have that commitment from them, and so we just have to word this so we have a commitment for them to consult with Life Care Center. VITOUSEK: So I've worded it the way I think is appropriate. You are welcome to word it another way in a motion. DEFRANCO: Okay. FUKE: Mr. Chairman, can I, can I make a suggestion then as a result of my discussions with the owner and hearing all of the conversation? VITOUSEK: Go ahead, yeah. 32 EXHIBIT D FUKE: Oh, okay. So I would think like if you have a condition that reads as follows, you know, like the applicant—meaning like its successors or assigns or whomever, right—shall confer with representatives of Life Care Center to address and mitigate view plane impacts and provide the outcome of that discussion to the planning director as part of the Plan Approval process. Now, having said that, we know that the planning director has the ability through the PA process to, you know, move structures around; at least now you have a census as far as like there is going to be this kind of engagement with Life Care Center. I don't know whether Life Care Center—you know, as you saw the site plan, it seems like the makai section of, you know, the Life Care building is that portion that will be visually most impacted and not the mauka portion—and I don't know whether that portion, you have the, you know, those who are like on skilled nursing or like assisted living; if you are like on the skilled nursing portion and that's all on the makai section, then obviously, view plane has less of an impact than those who are like on the assisted living. So not knowing that, and having the discussion with representatives of Life Care, then at least you can kind of massage the structures, if there is, if there is a need to massage it, and provide all that information to the planning director when we submit plans for Plan Approval. VITOUSEK: Okay, so the language you said was, was to conserve or did you mean consult? FUKE: No, "shall confer, confer or consult, with representatives of LCC to address and mitigate view plane impacts and provide the outcome of that discussion to the planning director as part of the Plan Approval process." VITOUSEK: Middle part of that again? LCC to? FUKE: "Address and mitigate view plane impacts and provide the outcome of that discussion to the planning director as part of the Plan Approval process." VITOUSEK: "To address and mitigate view plane impacts." FUKE: Yeah. VITOUSEK: I would prefer if it said, "to conserve the view plane and address and mitigate view plane impacts." Conserve doesn't mean that it's going to be entirely protected; it seems that they will have, will maintain some form of view plane. And (indiscernible–broken connection) will be addressed and mitigated. FUKE: Well, it might be semantics, but somehow I have some apprehensions about the term "conserve." One can mean, conserve means nothing, and so that's why a little bit more, one that provides an opportunity for discretion is the more, you know, the verb "address." And you already have the limiting what you are going to be addressing; you are trying to address mitigation. VITOUSEK: Right, I'm just, I'm just, you know, mitigation comes in so many forms; mitigation could mean, hey, we'll give you $1,000,000 and we'll put up a 20-story building right in front of you, you know, or whateverobviously, that's a stretch. But I want to have a word in there first whether conserve, protect,preserve, maintain, something in the like of that that will 33 EXHIBIT D indicate that it's not just mitigation; we want to have this view planes appropriately preserved in some form. And the rest of DEFRANCO: I like FUKE: Would you, would it be appropriate then to say, "to reasonably conserve and mitigate view plane impacts?" VAN PERNIS: Reasonable VITOUSEK: I'll be okay with that language. Commissioner Van Pernis, you've got your hand up. VAN PERNIS: Mr. Fuke's statement is not a commitment. Basically, he says they'll consult (indiscernible—muffled) consultation with the planning director. It doesn't give the planning director any authority to say I agree or I disagree or I think you should do more or do less. And I think "reasonable" is a very loose term. We lawyers love to say it because, you know, it can mean anything. VITOUSEK: You know, I think that the language in there indicating that the view planes are to be protected, and that this is how it's going to be done, to me that accomplishes that goal because it's, it's qualifying that protection as the element that's taking place. They are saying that this is going to be protected and this is how it's going to be protected. And, you know, that's the discussion we are going to have to be okay with unless we are going to defer this item. So we are going to, in any case, we are going to have to put a condition saying that this is going to be protected somehow, some way, they will be protected. And then they'll be speaking all the details all out about it, and they'll move forward without us, under the condition that it's protected. If not, then we'd have to defer, and we'd have to ask them to consult and bring that information back(indiscernible—broken connection) day. And personally, I'd be comfortable with the language saying this is going to be protected and address, they're going to consult with them to protect the view plane and address view plane, address and mitigate concerns through the Plan Approval process. That, to me, that sounds appropriate. As long as the qualifier in that condition is the protection of the view plane, conservation, the preservation, whatever the case may be, but as long as they have a view plane that's protected in some form, that they can work out the details in Plan Approval process, I'll be okay with that. KERN: So the view plane, would that be the rock in front, would that the road, would that be the coast, would that be the horizon? Because I think that's where it can get tricky when you, when we, when that's not quantified, right? Because someone can make the argument, well, I want to see rocks right in front, you know, right down in front of the building versus I want to see the ocean, right? And that's where it could get, it could get sticky. VITOUSEK: Yeah, I, I think the ocean. I think maintain a view of the ocean. I think that's a bare minimum that we can offer to the kupuna. 34 EXHIBIT D FUKE: So, if II was just kind of writing as you were speaking, Mr. Chairman but, so then it would be like, "The applicant shall consult with representatives of LCC to reasonably conserve and protect and mitigate view plane impacts of the ocean, and provide the outcome of same to the planning director as part of the Plan Approval process." VITOUSEK: Okay with that. Commissioner Van Pernis. VAN PERNIS: I can say that the use of the term "reason" or "reasonable,"which is a very loose term. And secondly, there is no authority given the planning director to argue or change or impose anything on the developer. The developer has complete and unbridled discretion. KERN: Maybe FUKE: I disagree. The planning director has considerable discretion and authority vis-a-vis the Plan Approval process. And if the director so-called exceeds what is perceived to be his authority, then his decision is subject to the appeal. KERN: And maybe you could add the language with the, based on the approval of the planning director or something like that at the end of the condition; that way, the planning director would be looking at it, saying this meets the general FUKE: Yeah, it says like, you know, as part of the application process, the developer, you know, would have to provide, you know, the outcome of that discussion, and include that as part of the Plan Approval application. So when you review the Plan Approval application, you would have the benefit of what has happened between the applicant and LCC. And from there you can kind of like make your own decision in terms of whether further mitigation should be required, you know, maybe we haven't fulfilled the intent of the commission, you know, that kind of stuff. KAY: I also assume that the plans that are submitted with Plan Approval incorporate some of these mitigation measures such that the plans, you know, along with the narrative or whatever report comes back, then can be matched up for the director to make that final call, instead of just leaving the language with the director and having the director then trying to move buildings around and things like that. Is that accurate, Sid? FUKE: Yeah, I think the expectation is that there would be this discussion, there would be some massaging of the project, you know, based on that input,just to make sure that the view plane issues, you know, to the ocean are kind of maintained at different spots. And hopefully, there is a consensus. And based on that, then the Plan Approval application would be submitted with appropriate landscaping, site drainage plan, so on and so forth. But as part and parcel of that, also a discussion of what occurred between the architect, developer, and the, and LCC. VITOUSEK: Okay. KAY: Just,just so we have the record correct, Sid, can read the final language again so that we have that on the recording? Because you had language a few times and we've been talking back and forth, I just want to make sure we know what we are voting on. 35 EXHIBIT D FUKE: Okay, "The applicant shall consult with representatives of Life Care Center to reasonably conserve and protect and mitigate view plane impacts of the ocean and provide the outcome of same to the planning director as part of the Plan Approval process." VITOUSEK: Okay. And then the other condition being the sunset, that would be, what would be, we would be replacing item 19 somehow? Replacing the language "If the applicant should require an additional time extension?" If the applicants fail to complete the requirements, it will result in termination of the SMA permit? KAY: Do you want to speak to specific timed conditions, Mr. Chair, or this would be more general? Because we are looking at the final Plan Approval in condition 2, and then condition 3, which speaks to commencement and completion of construction. There are also timed conditions of detailed water uses calculations. And I believe that is it. The rest speak to prior to receipt of final Plan Approval or prior to Certificate of Occupancy or things like that, but the ones that have actual time are 2, 3, and 4. VITOUSEK: I think just 2 in that case. I think that one year after Plan Approval to begin construction out, if we need to condition that, I think that if they don't get their Plan Approval within three years, it's over. KAY: Okay, so your language could be "if the applicant fails to secure final Plan Approval within three years, the permit shall be voided and a new permit shall be sought." VITOUSEK: Yeah. Okay, would one of my fellow commissionersoh, Mr. Fuke, do you have something to add? FUKE: Yeah, I was just going to like suggest then; if you look at your staff s background and recommendation, on the last page, you know, page 9, of their recommendation, then you can kind of delete the whole sentence right above that, "If the applicant should require an additional extension of time," so just make it clear, and the next paragraph then, "Should any of conditions 2 and 3,"because they specifically deal with Plan Approval and construction, "not be met or substantially complied with in a timely fashion, the planning director may initiate procedures to revoke the permit." VITOUSEK: So, okay, yeah, that sounds, that sounds appropriate to me also. What are the procedures to initiate the permit? Or would it just be complete, wouldn't that just, wouldn't it just be done, if they don't meet the requirements? 36 EXHIBIT D FUKE: I don't believe, like for SMA, you know,just like ordinances, can automatically be dead; there has to be a like formal action taken by whoever dispenses the permit to nullify the permitI'm sorry, Christian. KAY: I was just going to maybe ask our corp. counsel to opine on that. But I believe since the final authority lies with the Planning Commission, they could put that sunset clause in there since the director is, would simply be making a recommendation at the time of initiating procedures for termination. So that would be my reading of it, but maybe corp. counsel wants to weigh in. FUKE: Christian, that's the reason why I had suggested changing the word from a discretionary "may" to like a mandatory "shall." So if noncompliance, then it's, the director is obligated to send it over to the Commission for official revocation. KAY: So the question then to me would be, is this commission right now saying that we as a commission currently want to void the permit, should these conditions not be met, or do we want to leave it up to a future commission to make that determination, should they not meet the requirements. That's all. VITOUSEK: That's a great question, Christian. I'd love to hear the answer. SCHLUETER: I'm just trying to pull the rules regarding the entire revocation process just so I don't mislead. I believe you guys are correct at this time, but let me pull that rule up before I give you a solid answer. CAMPBELL: I think it's Rule 9-16, Dalilah. And I think the, if I'm reading it correctly, the authority lies with the commission. SCHLUETER: Yes, that's correct for, "A Special Management Area Use Permit may be revoked by the Commission in the event that: Any property owner who holds the permit sought to be revoked or at the request of any other person, with the property owner's consent, submits a written statement to the Commission verifying that the development approved under the permit issued has either not been established or has been abandoned," or under (2), in the event that the director submits a request if"There has been noncompliance with the conditions of the permit; or the development authorized under the permit is creating a threat to the health or safety of the community." KAY: So it appears, if I'm hearing that correctly, then the director would have to initiate that upon noncompliance and bring it back to the commission at that time. SCHLUETER: That's correct. 37 EXHIBIT D KAY: Okay. So in that case, Sid, then your language seems appropriate in terms of, the language is a little more direct in "shall" initiate, instead of"may." VITOUSEK: Okay. Okay, that sounds good to me. Do we have—Commissioner Van Pernis, did you have your hand up there? VAN PERNIS: Thank you. The intent here is not to kick the can down the road so that a future director or a future Planning Commission makes a decision, but it is automatic, so it happens no matter what. So the developer is under the gun to get things done or some other developer starts over again. So I want to make sure that the language includes that it must be done, that there is no discretion in a future Planning Commission or a future planning director. VITOUSEK: Yeah, I think, I think Mr. Fuke's proposed language removing "may" and inserting "shall"provides certainty that it will be done. KAY: In that case, Sid, can you restate your language just so we have it clear for the record again, please? FUKE: Sure,just eliminate the first sentence, you know KAY: Yeah. FUKE: —item 20? KAY: Mm-hmm. FUKE: And so you'd have only one sentence, and that would be, "Should Conditions 2 and 3 not be met or substantially complied with in a timely fashion, the Planning Director shall initiate procedures to revoke the permit." KAY: Okay VITOUSEK: Commissioner Van Pernis. VAN PERNIS: That"shall" indicates procedures, but the permit shall be terminated. He may indicate the procedures to be take some (indiscernible–muffled) or go through some process or consider a further extension first. I think it has to be "shall terminate,"not some future procedure. VITOUSEK: So according to the rules that our attorney has just looked up, we have, the only recourse that we have is where the director to initiate termination. And that's the strongest thing that's allowable under the current rules. And indicating "shall" means that it will be initiated, that it's going to be done. And this is, you know, follows the appropriate process in order to 38 EXHIBIT D accomplish the objective that we all intend. So would somebody please make a motion to amend the motion on the floor to incorporate the two conditions that have been suggested by the applicant's representative? VAN PERNIS: So moved. VITOUSEK: Thank you, Commissioner Van Pernis. YATES: I'll second. VITOUSEK: Thank you, Commissioner Yates. I will do a roll call vote on the motion to amend the main motion. KAY: Okay, thank you. Commissioner Van Pernis? VAN PERNIS: Aye. KAY: Commissioner Yates? YATES: Aye. KAY: Commissioner Armbruster? ARMBRUSTER: Aye. KAY: Commissioner DeFranco? DEFRANCO: Aye. KAY: And Chair Vitousek? VITOUSEK: Aye. KAY: Thank you. Mr. Chair, motion carries, five-zero. And VITOUSEK: Let's do a roll call vote on the main motion, which is now newly amended main motion. KAY: Okay. Commissioner DeFranco? DEFRANCO: Aye. KAY: Commissioner Armbruster? ARMBRUSTER: Aye. 39 EXHIBIT D KAY: Commissioner Van Pernis? VAN PERNIS: Aye. KAY: Commissioner Yates? YATES: Aye. KAY: And Chair Vitousek? VITOUSEK: Aye. KAY: Thank you. Mr. Chair, motion carries, five-nothing. FUKE: Thank you very much, Mr. Chairman, members of the commission. Very engaging discussion. Thank you. VITOUSEK: Thank you, Mr. Fuke. Thank you for your patience, and you always bring so much to the table. You folks will be notified of the commission's decision in writing. Good luck. The hearing ended at 2:23 p.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 40 EXHIBIT D