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HomeMy WebLinkAbout2021-09-16 Leeward Exh B (Item 1 SPP 21-227) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT SEPTEMBER 16, 2021 A regularly advertised hearing on the application of KONA AERIAL GYMNASTIC TEAM INC. (SPP 21-000227)was called to order at 10:14 a.m. via live stream online meeting, with Chairman Michael Vitousek presiding. COMMISSIONERS PRESENT: Michael Vitousek, Shani Armbruster, Barbara DeFranco, Clement"CJ" Kanuha III, and Faith"Faye" Yates EX-OFFICIO MEMBER PRESENT: Robyn Matsumoto (Department of Public Works, Engineering Division) ALSO IN ATTENDANCE: Dalilah Schlueter, Esq. (Counsel for the Commission), Jean Campbell, Esq. (Counsel for the Planning Department), Jeffrey Darrow (Deputy Planning Director), Maija Jackson (Planning Program Manager), Jessica Andrews (Planner), and Noriko Sauer(Commission Secretary) APPLICANT: KONA AERIAL GYMNASTIC TEAM INC. (SPP 21-000227) Application for a Special Permit to legitimize the operation of a youth Gymnastic and sports fitness facility and related improvements on an approximately 2.3-acre portion of a larger 23.738-acre property in the State Land Use Agricultural District. The subject property is located at 75-476 Hualalai Road, approximately 700 feet east of its intersection with Queen Ka`ahumanu Highway, Wai`aha 1st, Puapua`anui 1st, North Kona, Hawaii, TMK: (3) 7-5-017:044 (por). VITOUSEK: Moving onto the new business section of the agenda. Item one, the applicant is Kona Aerial Gymnastic Team Inc., application for a Special Permit, SPP 21-000227, to legitimize the operation of a youth gymnastics and sport fitness facility and related improvements on an approximately 2.3-acre portion of a larger 23.738-acre property in the State Land Use Agricultural District. The subject property is located at 75-476 Hualalai Road, approximately 700 feet east of its intersection with Queen Ka`ahumanu Highway, Wai`aha 1st Puapua`anui 1st, North Kona, Hawaii, TMK: (3) 7-5-017: Parcel 044, portion thereof. Our staff presentation will be by Jessica Andrews. ANDREWS: Yes, hi, thank you, Chair. Thank you, Chair Vitousek. JACKSON: Jessica? VITOUSEK: Maija, is there a, do you have a question? JACKSON: Yeah,just before Jessica starts, I just want to announce to the testifiers that I'll be removing you from the meeting, and you can go ahead and watch the remainder of the meeting on the YouTube channel, and the URL to get to that is on our agenda. Okay? Thank you. 1 EXHIBIT B VITOUSEK: Thank you. ANDREWS: Thanks, everyone. I'll be presenting the application for Kona Aerial Gymnastic, and I'm going to share, start by sharing my screen, so let me get that established here. Okay, can everybody see the introduction screen here? VITOUSEK: Yeah. ANDREWS: Great. So, as stated, this is a Special Permit application for Kona Aerial Gymnastic Team Inc. Okay, here is the location map. You can see the subject property in red. It is just mauka of Queen Ka`ahumanu Highway in the North Kona District. The applicant is requesting a Special Permit to legitimize the operation of a youth gymnastic and sports fitness facility and related improvements on a 2.3-acre portion of a 23.8-acre parcel located in the State Land Use Agricultural District; also, requesting to convert the existing 12,600-square foot warehouse by obtaining all necessary permits for the proposed use; to construct 38 parking stalls including to ADA stalls; to provide access to the permit area by a 12-to 15-foot wide, 1,000-foot long gravel driveway; and to operate the youth gymnastics facility Monday through Friday, 2:00 to 7:30 p.m., and Saturday, 8:00 a.m. to 3:00 p.m.; the sports facility will operate Monday through Friday, 6:00 a.m. to 9:00 p.m., and Saturday, 10:00 a.m. to 5:00 p.m.; summer programs will operate during summer school breaks from May to August, with gymnastics classes held Monday, Wednesday, Friday, 7:30 a.m. to 3:30 p.m., and Tuesday, Thursday, 3:00 p.m. to 7:00 p.m., and that is as proposed by the applicant. So this is the zoning map, and what you are seeing is the subject parcel outlined in red and the zoning of the parcel and the surrounding area. A-la is Agricultural-1 acre, and that's the subject property, and some nearby darker green is that zoning. Also nearby to the, on the lower part of your screen there is RS-10, which is Residential Single-Family-10 acre [sic], there is RS-7.5 Residential Single-Family and RS-15 also Residential Single-Family zoning. And opposite on the makai side of the highway there is Agricultural-5, there is Residential Multi-Family zoning, and there is some RS-7.5, which is also Residential Single-Family. So there is quite a varied amount of zoning in the surrounding area. State Land Use is Agricultural. As you can see, everything in green is Agricultural, and nearby is also Urban zoning to the, to the south and to the west of the property. The property according to the General Plan LUPAG Map, which is the land use designation, this is designated Urban Expansion, and just mauka of the property is Important Agricultural Lands and to the west of the property is MDU, or Medium Density Urban. So this is the site plan as proposed by the applicant. What you are seeing is a conceptual site plan. There is a vicinity map in the upper right, and the conceptual plan showing the existing, 2 EXHIBIT B the existing warehouse structure, existing catchment tanks just to the west of the structure, there is existing access drive, and proposed locations for the bathrooms. Jumping forward to the, again, conceptual site plan. The applicant has shown where the proposed restrooms are. And to the left on your screen is the space that's used by Kona Aerials and to the right on your screen is the space that's used by Nakuwana Foundation, and that's referred to as the fitness facility in the application, whereas the gymnastics facilities is the Kona Aerials space. This is an aerial photograph of the site. This is the, the most recent aerial photograph that I could locate; it does not, it was taken in you can see the imagery date on the bottom right—it was taken in June of 2019, so it unfortunately doesn't show the existing structure, which is of course there, but the structure is located where you see the green pin on the property, so it's, that's where the warehouse, existing warehouse structure is located. You can see the access drive kind of on the west side of the property, that's approximately where the existing access drive is located, and it adjoins Hualalai Road, which is on the upper part of your, of the site plan or the photograph there. So the site photographs there is a few here over the next few slides these, these photographs show Hualalai Road; the left side shows looking west from the drive, from where the access drive adjoins Hualalai Road, and on the right side you see looking east. Site photographs, these were taken earlier this year, so fairly recently. On the left you are seeing a view at the existing entrance gate to the subject property, and this includes a view of the existing building on the adjacent parcel, so the warehouse structure that you are seeing in that left photograph is actually on the, on a different parcel, so it's just,just makai of the subject property. On the right you are seeing a view of the existing gravel driveway, and on the left in that photograph is the existing subject property, so that's the structure that's currently used by Kona Aerials and Nakuwana Foundation. These are closer-up photos of that structure that's currently in use, and these photographs show, you can see the warehouse building as it's currently being used, and you can see the restrooms that were built, that are attached to the structure that are currently unpermitted. And, yeah, so this just shows a few different views of that structure. The bottom right, you can see, on the very far right of that photograph you can see the existing water storage takes. All that said, the deputy planning director's recommendation is approval with conditions. And I did want to go over some revised conditions that were provided yesterday to the planning commissioners; I hope that all commissioners have received those revised conditions. These were proposed in order to clarify timing in response to the request from the applicant. And so I'll just go over that. Basically, condition number 5 fully replaces the condition, what you are seeing fully replaces the condition that was within the recommendation. Condition number 5 states, "Prior to applying for a building permit," and the timing was modified to accommodate that prior to applying for a building permit; the original recommendation—I'll just, I'm sure the commissioners can refer to the recommendation that was provided to you—condition number 5 had stated that there was a five-year time condition. So condition number 5 now, now begins, 3 EXHIBIT B "Prior to applying for a building permit," and then the remainder of the condition is actually the same as was before for obtaining plan approval. Condition number 10 is stated that it should be, "Within five years from the effective date of this permit, the applicant shall align the access driveway within the 60-foot wide future Kakalina Road extension alignment. This alignment shall be noted on all future plans submitted to the county and shall be kept clear of any permanent structures," and that was changed from the original condition 10, which had stated, "Prior to Certificate of Occupancy"; so this now is time to provide five years from the effectiveness of this permit. And finally, condition number 17, there was an addition to, to essentially begin stating, "With the exception of condition number 10, an initial extension of time for the performance of conditions that within the permit may be granted by the planning conditioner," excuse me, "by the planning director upon the following circumstances," and the remainder is the same, but that was in order to provide that condition number 10 may not obtain an extension of time. And that completes my presentation, and I'm happy to answer any questions at this point. Commissioner DeFranco DEFRANCO: Yeah, I was ANDREWS: —I'll stop sharing, too, sorry. DEFRANCO: Thank you. I was wondering where the river is that they are talking about, you know, if you can show us where this water flood plain. You know, everything seems like a river right now to me, but I know that we are having a lot of rainfall, and I really think we should look at this now. And I wasn't clear by your presentation where the river was. Can you show us a picture of where the river is? ANDREWS: Yeah, I'll go back to the, maybe the aerial photographs. I'm just going to start sharing screen again—and we'll go backwards here—so it's not going to be obvious in this photograph because it's, it's not super detailed, but the access road, the access road that you are seeing that is just makai of where, or towards the west side of the property, that goes through the drainage, or the channel, which is the Wai`aha channel. DEFRANCO: You mean the bottom red line? Where, where do you mean exactly? Say that again. ANDREWS: I'm not sure if you can actually see my mouse. DEFRANCO: Here, I see ANDREWS: Okay, so this, this is the access drive, this is the driveway. DEFRANCO: Yes. ANDREWS: And that goes through the drainage channel—or that, it's not actually maybe a river would be, I'm not sure if that would be the proper terminology but it's a flood zone. 4 EXHIBIT B VITOUSEK: Deputy Director Darrow, do you have something to add there? DARROW: Thank you, Chairman. Yeah, it might be good to bring up the flood map. I have it on my screen I can share, but it's actually on page 16 of the applicant's, applicant's [background noise] ANDREWS: Okay, she VITOUSEK: background noise there. DARROW: Yeah. This is the flood zone map that shows the subject property identified in blue, and then it shows the floodway, it shows the Special Permit area identified in a red square. And this is, this is a large flood zone area. The applicant is currently conducting flood channel improvements to be able to channelize this flood zone, and that's the, a lot of the discussion about material and activity occurring on the property. But anyway, this kind of gives you a better idea what's going on with the flooding on the property. DEFRANCO: So, Jeff, the flood zone is actually outside the Special Permit, I mean the DARROW: It's within the property but it's outside the Special Permit area. The area DEFRANCO: Okay DARROW: the area that's not in blue is zone X. DEFRANCO: Okay, but the driveway to get to the special use permit goes through DARROW: Correct DEFRANCO: through it— DARROW: tDARROW: —and there is going to be some requirements that the applicant will have to go through to be able to get that driveway permitted through that flood zone. DEFRANCO: I see, so the excavators and the equipment that they are seeing in there are permitted thing that Bolton is doing to mitigate the flood thing? Is that what I'm hearing here? DARROW: You know, there has been a lot of discussion on that, and there has been a lot of back and forth accusations that they are doing a stockpiling yard, a base yard, a quarry, but they do have an active grading permit for the flood channelization project, and so, you know, and currently that's what we look at. DEFRANCO: So bringing this culvert in and putting the culvert there, that is being done under a permitted — 5 EXHIBIT B DARROW: That's our understanding. I don't know to—maybe Robyn can address the extent of the channelization project I would think it would be pretty extreme, given a flood zone on the property. MATSUMOTO: Yeah, so, Commissioner DeFranco, the applicant, the property owner had put in a CLOMR, which is a conditional letter of map revision, with FEMA, so they have a permit for doing work in these flood zones. And, yeah, it's a, it's a lot of material. The last application I saw, it, overall was like over 100,000 cubic yards of material that they are deepening the channel. So they are aware that if they are going to do work on the other driveway, you know, they are going to have to either get another conditional letter or they are going to have to do what we call a no-rise where it's approved by an engineer, they have to hire a licensed civil engineer that's saying that the work they are going to do isn't going to create any additional rise in the flow of, you know, the floodwaters. VITOUSEK: Commissioner Yates. YATES: Yeah, I'm, I'm concerned with all of this talk going back and forth and reading, you know, the violations, etcetera, etcetera, that says that they shouldn't be doing any of these things. So we are talking just disregarding all of these things that was, you know, all of the, you know, the letters that said they shouldn't be doing this. And my big concern for this is to have that little gym-looking place over there is so close to where the water could go by, and it looks so unsafe. And, I mean, I'm not against the gym or anything like that; I'm just thinking, is it safe? I mean, are we allowing this person to do whatever even though they've been cited on numerous occasions, and we are still looking into it? I'm kind of confused about this. VITOUSEK: Okay, at this point, if we have questions for the county staff, we can ask and try to get some answers from them, but I think we'll have to hold off on discussions on it until we have a motion on the floor. YATES: Okay. VITOUSEK: If you do have any questions, now is definitely the time to ask. And then we'll have a presentation by the applicant as well, and you can ask more questions than. YATES: Well, my first question, it says to cease and desist, but it's continuing. So they were allowed to do all of these things without any permitting? That's my question, I mean, how come. VITOUSEK: Good question. Is there an answer for that question, Deputy Director? DARROW: Thank you, Mr. Chairman. Normally, in a situation like this believe me, this isn't the first time this has happened in the county and it's not going to be the last, we issue numerous zoning violations throughout the county—and one of the requirements is to cease and desist. One thing that wasn't put in the NOVs for this particular one is one, is the alternative, you know, there has to be an alternative, and that wasn't put in these NOVs, which should have been put in. And that is that you either cease and desist or you get permitted. And you go through the process. These particular landowners and applicants had received the violation notice, they've 6 EXHIBIT B worked with the county, they've submitted the fine payment, they have actively hired a consultant and then actively submitted a Special Permit to be able to try and get this permitted through the county. If this process does not work for them, then at that point, they obviously have to relocate. But we allow, except for extreme situations—we didn't feel this was "an extreme situation"that was affecting a number of people in a negative manner; we felt that this could be operated during the time that they could go through this process. We are finally at that place now where they are trying to get permitted. In regards to the building being where it's located, regardless of whether it was a building for a recreational facility or an agricultural building, it did go through a building permit and was allowed to be built in the location it's at. So it's, if they had concerns regarding the flooding to that building, that wouldn't have been permitted at that point. VITOUSEK: Commissioner Armbruster. Thanks for your patience. ARMBRUSTER: Sure, of course. I had a couple questions. I don't know if this would be for Robyn or the Planning Department, but I understand that there is a grading permit in place and that they are actively working on modifying the floodways, but is this stormwater mitigation in compliance, or have you all found or heard any evidence that the accusations about, you know, boulders and flooding on the other properties, is that actually going on, do we know? MATSUMOTO: They do have their BMPs, our inspectors go out occasionally to check to make sure. But I think regarding that major flooding event that had brown water in the bay, I mean, there was a lot of water coming from a lot of additional properties is my understanding from our inspectors. ARMBRUSTER: Okay, and then the access, is that I understand that they are improving that and that they are going to be altering it, but last time I was there it's just kind of like a sketchy dirt driveway—is that something that your traffic department would consider appropriate for commercial use? MATSUMOTO: We don't determine the type of material for commercial propertyI don't know, Jeff, does the Planning Department dictate that? DARROW: When it comes to a Special Permit, we have flexibility. In this particular case, we are asking for a paved driveway access as part of the approval in condition number 10. ARMBRUSTER: Thank you. VITOUSEK: Commissioner DeFranco. DEFRANCO: So I was, I wanted to just clarify. So this is for 2.3 acres within a larger piece of property. I have two, a couple questions there. So I'm assuming that these people have some kind of long-term lease with Bolton to establish this and to go through this special use permit. And, number two, are there plans on the table for what they are doing with the rest of the property? Is that somewhere in the — 7 EXHIBIT B VITOUSEK: That's something we'll probably have to hear from the applicant after their presentation. DEFRANCO: All right. Thank you. VITOUSEK: Are there any questions for the county? Okay, I've got a couple of questions. The building itself, from the material it indicates that it has a building permit, but there have been no inspections. Is that correct? ANDREWS: Yeah, I can address that, Chair Vitousek. Yes, it has a building permit that was issued, and it was issued to be an ag warehouse with no electrical or plumbing, and the final inspection has not been completed. VITOUSEK: Have any of the inspections been completed? ANDREWS: It's my understanding that the foundation inspection was final, or was approved, but that further inspections have not been. VITOUSEK: There has been no further inspections. Okay, and then ANDREWS: And, and just, sorry,just to clarify further a little bit more. Of course, the current use still is going to require yet another building permit, so it will all have to be redone. So it would, it would require what's called a change of use building permit, so they would have to redo everything to current code, if it doesn't already meet current code, and the whole series of the inspections would happen again. VITOUSEK: Okay, so, basically, we need a whole new permit for the building, including the portion that's already been permitted, which will require bringing everything up to code because I'm assuming they've got electrical at this point, if they are having classes in there that will, everything will have to be brought into code, they will have to after the fact permit all the stuff that they've done in there. And then, and they have to get a final inspection in order to get a certificate of occupancy. Is that right? ANDREWS: Correct, that's right. VITOUSEK: And, does the county allow commercial use of a building prior to certificate of occupancy? ANDREWS: That is typically not something that I've seen happen, but it, it's going to be up to the discretion of the county, of the permitting agency, which will be DPW. VITOUSEK: So it's DPW's decision to grant a certificate of occupancy, right? ANDREWS: That's right. 8 EXHIBIT B VITOUSEK: Okay, Building Division. Do we have conditions in this special use permit that indicate that there will be no commercial use of this building until after a certificate of occupancy is accepted from DPW? ANDREWS: Jeff wants to jump in. Go ahead, Jeff. VITOUSEK: Go ahead, yep. DARROW: Well, again, this is one of those situations that we have the cart before the horse. And, you know, normally, the horse goes before the cart; people come in, they get their permit, they get the approval, they get the certificate of occupancy, and then they occupy. At this particular time this building has been occupied; it's actively being used for a particular use. They are trying to come into compliance. All of this, these conditions are bringing them, if approved, would be able to bring them into compliance. That would, once the Special Permit allows them to be able to operate as a permitted use this particular facility, they would be able to operate with the understanding that they've got to go through this process within a particular amount of time and get these permits and certificate of occupancyI believe it was one year, with the possibility of one year time extension. If they don't comply with that, they either come back to the commission or the permit is not valid; they wouldn't be able to continue utilizing that facility under this permit. VITOUSEK: And next question is the access. Is there a reason why the access is not included in the boundaries of the special management, or the special use permit application? ANDREWS: Are you referring to the square footage calculation of what the permit area is? VITOUSEK: Right, well, the graphic that was shown on the flood zone map shows a rectangular 2.3 acres project area for the Special Permit, but the access to that area is also a part of that commercial use. I'm just wondering why that's not included in the Special Permit project area. ANDREWS: Yeah, I guess the property map that you are referring to, which shows the flood zone, is referring to the proposed use, the area of the proposed use. But I understand your question that the driveway perhaps could be considered part of that required access for the proposed use. VITOUSEK: Yeah, as that's a part of the commercial use of the property, the access to the location that's being used, I think, will be pretty relevant. And one of the conditions is that the access be relocated to the future alignment of Kakalina Road. Is there a map that you have that shows the existing location of the road and the proposed relocated location? ANDREWS: One of our maps that I showed in the presentation does show the existing corridor, the road corridor. I can, I can share a slide. Give me a minute here. DARROW: Maybe I can just chime in real quick, Chairman Vitousek. VITOUSEK: Yes, please, yes. 9 EXHIBIT B DARROW: Yeah, this particular road there are times that we require an applicant to allow, to include the driveway access to a particular use, that's usually when the driveway is specific to that particular use—in this particular case, this road was actually going to be used in a much bigger capacity, not just for the Special Permit. Our condition in there is that this road become compliant to the requirements of the Kona CDP for that particular alignment. So it will, hopefully, in the future be utilized as one of these collector roads for compliance with the CDP. VITOUSEK: So ANDREWS: This VITOUSEK: do they, do they have to build the road to dedicable standard, the Kakalina extension? Is that a part of this? DARROW: Not, not to that standard, but at some point it could be utilized as, you know, as long as that alignment is in it, it can be built to a higher standard in the future, especially when the remainder of the property comes in for what they are proposing. We wouldn't require dedicable standards for this road for a simple Special Permit, but if they came in for a change of zone and a subdivision, at that point we would consider. ANDREWS: This shows just kind of a simple graphic of where the Kakalina Street currently exists,just to the north of the property. And on the aerial map there, sorry, the aerial photograph, you can see the road exists here. And so it would need to be aligned, that access would need to be aligned with that road corridor. VITOUSEK: And, is, was that portion of the required improvements factored into SHPD's review of the project area? Because if you are looking at using an existing gravel road to access an existing building, there is not going to be much impact on historic sites, but if you are talking about relocating the road to a previously undeveloped portion of the property, that's something entirely different. And if we are conditioning that, then I would like to know if that has been reviewed. And it's unclear from the letter from SHPD exactly what was submitted to them and reviewed by them. ANDREWS: SHPD reviewed the application and the supplemental information as existed in about July of this year. VITOUSEK: Did that include the location of the realigned driveway? That we are because they may not know that was part of it, since it's a condition now coming from us. ANDREWS: They probably don't know that, that's correct, I think you are correct on that point, because that was a condition that we, that we have decided as important to the Planning Department, and it's something that wasn't originally proposed by the applicant. DARROW: Can you, Jessica, can you stop sharing? I can bring up the actual CDP map that shows the alignment real quick. So, Mike, in I'm sorry, Chairman Vitousekin regards to 10 EXHIBIT B SHPD review, when the applicants—are you able to see that, not yet, huh? There we go. So, the project site is in this location, and this is the Kakalina right-of-way, here is Hualalai Street, this is across Hualalai coming through the property, and then eventually connecting up with the existing subdivision to the south. In regards to review of the roadway, I mean there is two ways we can do it: we can do prior to construction, we can add to a condition that prior to construction of that realignment that they receive approval from SHPD; but the other factor is is that they are going to have to get a grading permit for that road, and they will have to be reviewed through SHPD for that particular permit. So there is two different avenues there. But, yeah, I don't think that— through hatthrough our review we were the ones that requested this after the submittal of the application, so SHPD would not have known about this. VITOUSEK: Okay. Commissioner Armbruster. ARMBRUSTER: Robyn, is that part, is that area part of the grading? The greeting plan that's underway? Because if so, it probably would have been reviewed that way, right? MATSUMOTO: We have them review because maybe the depth is going to be different. So it would go back to SHPD again for specific review of the new road. ARMBRUSTER: Okay, okay. VITOUSEK: Are there any other questions for the county? If not, we can proceed with the applicant's presentation. We can take more questions of the applicant. [No audible response] Okay, would the applicant—one second—okay, we've got the applicants, would you please raise your right hand so I can swear you in? Do you swear or affirm to tell the truth on the matter now before the Leeward Planning Commission? [The applicant and representatives nod in affirmation.] Thank you. Would you please state your name and the town that you live in? PIPAN: John Pipan, I live just outside of Honoka`a. And before we get into our presentation, I'd like to just take a quick poll, see if everyone is comfortable timeline-wise, if anyone wants a bathroom break. I know it's important to be comfortable in this process, so I'm just putting it out there. VITOUSEK: What was that? PIPAN: If anyone would like a restroom break at this point, before we get into another long discussion? VITOUSEK: Anybody? It looks like we are good to go. PIPAN: Okay, thank you much. Aloha, Chair Vitousek, Planning Commissioners, thank you very much for your service to your communities and your dedication to this process. I was especially glad to hear more about your backgrounds and how you've come to be where you are. Big mahalo-s to the Planning Department staff and Deputy Director Darrow. We really appreciate the favorable recommendation and respectfully request your consideration to approve the requested Special Permit. 11 EXHIBIT B While the pandemic has disrupted pretty much all aspects of daily life and served as a news source of stress and anxiety in local families, one thing that has emerged as a powerful source of positivity and resilience is physical activity. So we have an opportunity here to help out two Hawaii-based nonprofits dedicated to providing West Hawaii with facilities and training to foster personal growth, health, and wellness. The applicants have struggled to find appropriate facilities for their specific needs, and this site is particularly well suited to the proposed uses; it's centrally located in town, has the appropriate indoor space for the safety of the participants. Not only do these programs benefit the health and wellness physically, which is crucial in times like these, these programs foster community; they teach valuable life skills and promote good mental hygiene for the participants. I'd also like to address a typo in the application regarding the number of classes held at Kona Aerials, the gymnastics use. Originally, it was written as 20 classes per month, yeah, and that should read 20 classes per week. So my apologies for any confusion there. And in listing the details of the requested use, we wanted to be conservative and allow for some modest growth over the current levels. And while current enrollment at Kona Aerials is 25 team participants and 75 recreational participants, we listed in the permit application request was for 40 team participants and 96 recreational participants and those more conservative numbers for use to project for traffic impacts and the like. A lot of testimony focused on the history of this property, and, while it is relevant, I think we should really focus on requested use and its potential impacts evaluated against the criteria that are established for looking at Special Permits; are they unusual reasonable request; are they going to impact surrounding properties adversely; are they consistent with State Land Use law? And I think we'll see that each of those boxes were ticked for this application. And there are conditions that would help to remediate and ameliorate some of those past complaints against this property. So, with that in mind, I'll introduce the other representatives for this project. Ms. Logan is here as a representative of the landowner, Mr. Elisaga is here representing Nakuwana Foundation, and they are mainly to field questions should they arise; they are not planning on presenting anything formally. Ms. Guiffrida would like to say a few words to the commission and then would be happy to answer any questions. But I will confirm that we have all reviewed the conditions of approval and will comply with those going forward. Thank you. VITOUSEK: Thank you. So, Ms. Guiffrida, would you like to say something. GUIFFRIDA: Yes, thank you very much. Thank you everybody for your time this morning and for your consideration in this meeting and in this special use VITOUSEK: Actually, before you get going,just for our record, would you mind stating your name and the town that you live in? GUIFFRIDA: Yes, my name is Nanette Guiffrida, and I live in Kealakekua. 12 EXHIBIT B VITOUSEK: Thank you. Go ahead, sorry about that. GUIFFRIDA: That's all right. Okay, thank you again for your time and for your consideration. As I said, my name is Nanette Guiffrida. I am the founder of Kona Aerials Gymnastics. We started Kona Aerials in 1989 here in Kona. We have serviced thousands of athletes, created many champions, brought home state, national, and regional titles. Many of our athletes have received college scholarships, not only for gymnastics but for cheer, for diving, and even track and field. We have, we even had one young lady, Shantessa Pama, she made the national team in 2004 and represented Kona very well. I'd like to tell everyone that we instill in our athletes that this is not just about gymnastics, that when you are an adult, no one really will care how many times you could flip or twist in the air, but they are really going to care about the kind of person you become. So, integrity is the cornerstone of our training at Kona Aerials. The sport of gymnastics is just the vehicle we have chosen to help children become successful adults that are also community contributors. We instill in our athletes that training with integrity will teach them discipline, focus, and dedication, not only to their sport, but to themselves, their family, and their community. We teach them to deal with being judged, to deal with disappointment, but still continue to train, knowing that they can always reach their goals. They learn to set goals, how to manage their training time to achieve their goals, both in and out of the gym. We encourage them to be proud of small achievements and to continue to work on their long-term goals. They learn to never give up. They learn that falling is part of the process of succeeding. They learn that the fall doesn't matter, what matters is how you get up and step forward. Our athletes learn that success is not achieved overnight, it takes hours and hours, years and years, of hard work and practice to create a champion. They learn that winning is not always the scoreboard, it's about achieving your personal goals, doing the best you can at that moment. They learn to support each other, be good teammates, gracious in defeat, and humble in success. They are given the opportunity to make lifelong friendships, create memories that will last a lifetime to be proud of their achievements, small or large, and to always be proud of themselves. These are the skills that will carry over into their adulthood and service in any relationship they choose to be in. It's also the foundation of good community contributors. I just would like to add, one of the issues that I keep hearing is going commercial space. Gymnastic schools require like 18-to 23-foot ceilings. I've never seen a commercial space outside of a large department store to have that. So it's never been, I've never been able to go into a commercial space; there has never been one that can facilitate our needs. And Mr. Bolton stepped up for us and created this great building for us, for us to continue our work in Kona and continue to help nurture the community and the children. And I really hope you take all of this into consideration. Thank you very much. VITOUSEK: Thank you. Is there anything else that the applicant would like to add? PIPAN: I think we are prepared to answer any questions the Commission may have now. Thank you. 13 EXHIBIT B VITOUSEK: Commissioners, are there any questions for the applicant? Commissioner DeFranco. DEFRANCO: Yeah, a couple questions. One, do you have like a long-term lease with the Bolton to be doing this? I mean this is a huge commitment on both parts. What's GUIFFRIDA: Our intent is for this to be our permanent home. DEFRANCO: So GUIFFRIDA: So, yes. DEFRANCO: you have some kind of written thing there then with him about that being GUIFFRIDA: Yes, we do. DEFRANCO: Okay, and then, so this is for 2.3 acres of a very large parcel, is there a plan to do some kind of other development on there, can you say or? GUIFFRIDA: I really don't know if there's plans to do any more development. DEFRANCO: It felt like, listening to Mr. Darrow speak that, because we are talking about a road access that would, that road would be used for other things like maybe a subdivision. I'm just asking this question because I'm trying to understand the relationship of this piece of land to the surrounding land into a flood plain and how that relates to our community and—and maybe you can answer that, but maybe somebody in the county can, I don't know. GUIFFRIDA: As far as I know, I don't believe there is any plans on doing a subdivision. But I'm not the landowner. VITOUSEK: John, would you like to respond? PIPAN: Yes, thanks, Chair Vitousek. Thank you, Commissioner DeFranco, for your question. I had brief discussions with the landowner about their master plan for this area, and it's, it's not very far along. So we are not engaged to do any further planning outside of the Special Permit, and to my knowledge they don't have firm plans for additional developments. DEFRANCO: Okay, and so your special use permit is right above Innovation School, is that right? It's above there. And to the south of the special use, there is like a road that—is there a road access that's going to be used by you possibly in the future on the south side? PIPAN: Yes, again, thanks for the question. There are three separate flags, four lots, to the south of the subject property. And there are easements that allow for that paved access and waterline to cross that area. We indicated that area for a potential emergency access, given that 14 EXHIBIT B the proposed main access does cross through the floodplain. So, yes, those are flag lots serving those properties to the south. DEFRANCO: And that would also be used for Innovation Schools, if they needed an evacuation, too? PIPAN: Potentially, yes. I'm not sure we didn't consult with them DEFRANCO: Okay, so this flood, this floodplain, I mean there is Innovation School, we can see those buildings are there, this is a school, this has been permitted, this seems safe by everybody in the community that this is going on there. So just directly above that here is this VITOUSEK: I think Innovation is actually located about a half mile north DEFRANCO: (Indiscernible—simultaneous speech) so what's, what am I looking at below? PIPAN: There is a church there. DEFRANCO: A church? PIPAN: Yes. DEFRANCO: Okay. And what's, so that, so those buildings there that were the churches right now that they are not being affected by the floodplain or anything? Jeff, I'm sorry, Mr. Darrow? DARROW: Yeah, if I could chime in, Commissioner Vitousek. I think the buildings that you are referring to just makaiis that what you are talking?those are actually part of the applicant's [sic —landowner's] buildings for agricultural uses on their separate property just makai. There is a church that was approved through a Special Permit in 2019 on the property to the south, which I believe has not been constructed yet. That road that we are speaking about for the Kona CDP is going to go from the north of the property across Hualalai, come across the applicant's property and eventually hook up to Pualani Subdivision; that's the proposed alignment in the CDP. Innovation School is actually a little North, as Mike, Commissioner Vitousek said. We recently also had another school come in between Innovations and the applicant's property on the other side of Hualalai. So a lot of activity in this particular area right now. DEFRANCO: Right, I think we looked at that one, too, that school, for the approval. Okay, so the two ag buildings that are there now, what, it's used for storage? PIPAN: So those are on the neighboring property, and we didn't really evaluate, you know, their uses or impacts from this use as their agricultural nature, and are also managed by the same owner. VITOUSEK: Okay, Commissioner Yates, you had your hand up also. Do you have any questions for the applicant? 15 EXHIBIT B YATES: Oh, well, my question was just if the Aerial Gymnastics, if they are, you know, if they felt that be, I mean, I guess, because they don't really have any other option and they are given an option to have their gymnastics [someone sneezes]bless you—have their genetics there, they feel comfortable about being there that, you know, no, you know, traffic and in-and-out or any of those things that are going to affect the neighbors and, if they are going to, you know, be in a position where the neighbors are not going to be very happy. So if all of that has been, you know, they've looked at that and talked to the people and, you know, if they are okay with it, then, as well as the gymnastics folks that they are in a safe location. That was my question; if they feel all of that has been taken care of, and if you feel safe being there. PIPAN: Commissioner Yates VITOUSEK: (Indiscernible–simultaneous speech) question for Ms. Guiffrida. Do people feel safe driving across the property? Do people feel safe in the building that hasn't been inspected? GUIFFRIDA: As far as I know, everyone does. We feel real safe there. VITOUSEK: Commissioner Kanuha. KANUHA: I have a couple of questions for both you, John, and the, you know, the representative of Bolton. That timeline, when do you guys think that you guys will have the parking lot done, the ADA compliancy, and also be able to (inaudible–noise) with what has been done for the building's permitting process, as a timeline? PIPAN: Thank you, Commissioner Kanuha. We are given in the conditions one year to get final Plan Approval and to secure and implement any building permits that would be required to change the use and to bring the as-permitted, or as-built, bathrooms into compliance. I think that is ambitious, but with the addition of the administrative one-year additional time to get those completed, I think two years should be plenty of time. And just to speak a little bit more about the parking. We've shown a little less than 40 spots on this conceptual site plan, and that's why it is conceptual; there will be revisions that would be required through the Plan Approval process that will evaluate against code, how many parking spaces are required, that will influence how many ADA parking spaces are required, and then that will be implemented through those building permits. So I hope that answers your question. Yeah, we feel like, one year, maybe a little ambitious; we hit the ground running really hard, that may be feasible. But two years seems to be definitely doable. KANUHA: Okay, and also, I know just kind of with Mr. Darrow's and also the planning director's recommendation looking at the Kakalina Drive extension, what would happen to the previous road that was in there? There are those conditions that are in there—did I see it—and 17, there is a timeline with that extension. 16 EXHIBIT B PIPAN: So, you mean the current existing access drive? What would KANUHA: Yeah, yes. PIPAN: It would probably be worked over and incorporated into the design of the new and improved realigned access. They would have to account for grading that into the appropriate slopes and stable structures to support the new roadway. KANUHA: You know, they have the property on both, the property owners are looking at also mitigating some of the runoff of water there that would come through, because opening up another road, there would be a, you know, there would be a lot more water moving through there, rather than vegetation, you know, taking it back in. Do you know if that has been talked about, and has that been discussed about— PIPAN: boutPIPAN: So KANUHA: moving forward(indiscernible–simultaneous speech) creating, you know, you guys do have the grading permit that's in there. You know, I visited the site, I think it's a great thing for the kids, there are concerns for our community, which just those, you know, there is a couple different concerns that I see, but, you know, that these are some questions that have been on my mind, and I do want to ask. PIPAN: Yes, thank you again for the question. Now—and I, you know, I feel those concerns strongly, too, that everything would be done in a proper manner with the proper permitting processes—we've heard about the CLOMR, the Conditional Letter of Map Revision, that the landowner has sought for the drainage improvements on the property, the grubbing and grading permits, new grubbing and grading permits would be required, if any of that work is in the flood zone. I'm sure we will also have to comply with Chapter 27 and any requirements of FEMA for their floodways. So there are many different layers of permitting that would come into play when that section is realigned and permitted. Best management practices would have to be implemented and inspected, as DPW alluded to earlier. KANUHA: All right, thank you. VITOUSEK: Commissioner Armbruster. ARMBRUSTER: Hi there. So I have a couple of questions. One is there seem to be multiple parties involved here; obviously, there is the landowner, there is Kona Aerials, there is the other gym. And Kona Aerials here are taking this on yourself. What, I'm just concerned because there are other parties involved. You are making commitments and doI don't know how to phrase this—how are we, if we allow this to go forward, how are we to be, how are we to be sure or comfortable that these other parties that aren't parry to this agreement also—like, I know it was kind of mentioned that there, you know, there was a lease involved, there was a long-term commitment, but I'm just a little bit worried that there are things that you alone won't be able to fulfill that are being asked in this special use permit. Can John speak to that a little bit,please? 17 EXHIBIT B PIPAN: Thank you, Commissioner Armbruster. I know your comment, or your question, was directed mostly to Kona Aerials, but I personally have followed up on the conditions of the Special Permit with the other parties, with the landowner, Nakuwana. They understand them. They don't have any issues with also themselves committing to these conditions. So, I hope, I hope that addresses your question. If you, if you did have more to follow up, you know, I'm sure Ms. Guiffrida will ARMBRUSTER: Okay, thank you VITOUSEK: (Indiscernible—simultaneous speech) Deputy Director, he's got his hand up. If you'd like to add something there? DARROW: Yeah, if I could. Thank you, Chairman. Commissioner Armbruster, normally, if the applicant is identified in a permit, that's who is responsible for compliance for those conditions. If they have some sort of agreement outside the permit, we always look to the applicant for compliance. There are times that the applicant will change, and we receive information to the department, requesting a change of the identification of the applicant, and then we follow up with them. But at this time Kona Aerials Gymnastics Team Inc. is what we would be looking to as the entity for compliance. ARMBRUSTER: Thank you. And, Kona Aerials, you all understand that, and you are. comfortable taking responsibility for that? GUIFFRIDA: Yes, we do understand that. ARMBRUSTER: Okay. And as Mr. Darrow mentioned a while ago, this is a little bit backwards in how we normally process things, and normally, the reward for complying with all of this is that you get your certificate of occupancy and you get to open, but you are already there. So I'm just curious what sort of, what sort of commitment you can offer us that this is, you know, you understand the seriousness of this, and we certainly want your students and your children and everyone in the community to be able to take advantage of this, but we want it to be used in a safe and compliant way. PIPAN: So, yes, thank you. I'll start off. Part of this is in the background of Kona Aerials previously having a Special Permit for another property, they were under the false impression that that permit followed their business and didn't remain with the property. So that was part of what led us to the situation where we are coming in and asking after the fact for permission for this us. I'm sorry, there was a second part to your question, but I'm spacing on right now. Commitments? ARMBRUSTER: Right, right, I mean I just, it's—and I'm not trying to imply that anyone has any intention of being deceptive but there is also, you are already there, and you are already operating, and the certificate of occupancy is just sort of piece of paper at this point because you are already doing what that should allow you to do. 18 EXHIBIT B PIPAN: I think in this case the surrounding community that has shown to be very observant and critical of the actions on this property can serve as that insurance of compliance; you know, if, if they notice that something isn't according to these conditions, they can call the Planning Department, they can complain, and that will set things straight. But I can assure you now, we are going into this fully committed to comply with the conditions as they are written. VITOUSEK: Commissioner Yates. YATES: So, am I understanding that the Kona Aerials is like under a lease or a contract from this person who actually is I guess the owner, so from there, then, they are able to do all of the things that need to be done on the Kona Aerials? Is that what it is? They have a lease or they are contracted or somehow so they are responsible and going to be the ones to follow up and making sure that all of the, you know, is are crossed and the is are dotted. GUIFFRIDA: I can speak, I believe the landowner and myself are both on the same page to get this done. YATES: You have that in writing? GUIFFRIDA: Not really, but we have a very YATES: I guess what I'm trying to determine is that, you know, after we go through all of this, and I don't know who is, who will ultimately be responsible to, you know—I mean, I'm sure your heart is right where you are you are talking and but I'm saying that, you know, as time goes on, you know, there is a lot of things that need to be done, and if you are comfortable, well, not even comfortable, are we going to go through all of this and find out that, you know, that you can't do it, or after a length of time is gone by, we are going to go through this all over again because something didn't happen? GUIFFRIDA: Well, I hope that that's not the case. YATES: Yeah, but I'm saying, do you have all of this in writing so that you will be able to have something to fall back on and get this thing up and going? GUIFFRIDA: Okay, what I do know is that because I'm the applicant, I'm the one responsible; I'm the one the county is going to look at, that's what I do know. So I'm willing to take on that obligation. YATES: Well, for the, for the other commissioners or anyone, I'm just really confused, because I'm trying to figure out if they are, if Kona Aerials is not the owner of this property, do they have some kind of written agreement that this is something they will pursue and see to fruition, I guess. VITOUSEK: Right. Does Kona Aerials have the authority to construct these required condition improvements on the landowner's property? That's a very good question. 19 EXHIBIT B GUIFFRIDA: I've been working with the landowner on these issues. John and I have been in contact with him. I believe Christy is on this call; she could back that up. The landowner and I are willing to do these things and get this done, yes. PIPAN: Yes, and again, I did confirm with the landowner they are aware of all of the conditions that are being imposed on us and agree with it. YATES: So then, why not something in writing? I mean just to cover yourself, you know, Kona Aerials, because that's a lot of heart and a lot of work going into it. And I think it's wonderful, but I'm just saying that, concerned about that, and hopefully, that it will have, you know but don't you think it should be in writing? GUIFFRIDA: As far as I'm concerned, it's in writing with the county. I already, you know VITOUSEK: But, is it, I mean, it's a follow up on the question, you stated earlier that there is a lease agreement between Kona Aerials and the owner, does the lease agreement provide for tenant improvements, is the question. Is there an answer to that? GUIFFRIDA: I'm not really sure, I'd have to look that up. I'm not really sure. I'm not comfortable answering that. VITOUSEK: Okay, okay. PIPAN: Yeah, I perhaps like to ask if the similar level of scrutiny between, of an agreement between the lessor and the lessee is applied to all Special Permits kind of uniformly. It's a private matter between the landowner and Kona Aerials. VITOUSEK: Commissioner DeFranco. DEFRANCO: Yeah, I can speak to that a little bit because I've gotten a special use permit and I'm on Kamehameha Schools' lands. So for me to apply for special use permit, I have to have in writing from Kamehameha Schools that this has been approved, and that is okay for it to happen. So, definitely, something between the Bolton, who are the owners of the land, and through Kona Aerials would have to be put through the county special use permitting process. At least that's what I went through then. But, you know, I agree with Commissioner Yates, too, I mean and Commissioner Armbruster, this, to redo, you know, this big, huge thing to a gymnasium, I can't even imagine what the costs are in complying with a building permit for this thing for the use, usage change; that's a, that's a big monetary commitment. Of course, you are a nonprofit, so you have a board of directors who is voting on this and is making sure that it is, you know, going forward in the right way. But, you know, we are asking these questions, you know, to protect you and to make sure that the commitments going forward with the level of investment that you, and fundraising, that you are going to have to do to put this forward, you know, so that it stays in place, because when I talked, when I asked you the question, you said this was your forever home this is the impression I'm getting this is the forever home for what you are doing. And all of us want to 20 EXHIBIT B see something like this happen in the community. We are, you know, we want this for the kids, we appreciate what you've done over all these years. This isn't why we are asking these hard questions; we are trying to make sure that as this goes forward, because these are big questions with floodplains and mitigation things. And I think that Bolton has a lot of resources that could make this a great fit, I mean, I think that they have the ability to make this work for you. But I just want to make sure, too, that the commitments are there. Thank you. VITOUSEK: Commissioner Kanuha. KANUHA: Just kind of following up on Commissioner DeFranco, what she has just kind of put forward. Would you guys be open to, if this was to be approved, you know, I would say a 30-day or 60-day agreement between the landowner and your guys self just to see something moving forward, and also, you know, having him involved in this process. Obviously, you guys have an agreement, but that agreement could take place, I don't know if that's in the context of what we are talking about, but that's something that I'd like to see, you know, having his foot down on the ground as well and moving things forward. DEFRANCO: I think, Jeff, Mr. Darrow, I think you can speak to this because the landowner has to sign off on the special use permit, don't they? DARROW: Correct. And that's VITOUSEK: And they did. They did. That's in the application process. So the landowner has signed off on the special permit application, so they are totally on board with that. DARROW: My understanding would be that they would also have to sign off on any building permit for the property, and obviously, any Planning (inaudible—noise) application for, if this Special Permit was approved. And, you know, I understand the concerns of the commission. It actually is a good concern for the applicant. It's not a bad thing; they are just concerned. You know, there is all kinds of things that are going on that people brought up, and they are concerned; they want to make sure that you have a valid agreement with the landowner to be able to proceed with any type of condition approval that you need to do. And I, I agree, I would think that you folks would already be in that, but if you are not, I think it would be appropriate to definitely, you know, being that this is going to be a venture that, if approved, you are going to be there for quite some time, that you get in some sort of legal agreement with the landowner. That's just, I don't know if it's appropriate for us, for the commission to actually condition that, but I think it's definitely a concern that's brought up and made clear. KANUHA: Thank you, Jeff. VITOUSEK: Right. Thank you. Yeah, and I think that a lot of this is coming from the commissioners' desire to understand whether the conditions that are being put in place will be carried out. And I think that the questions are very appropriate in that they want to know who is going to do these things that are being posted as conditions, which are going to be very 21 EXHIBIT B expensive conditions. And given the history on the project of noncompliance, we want to know that, will these conditions be met, by whom, who will pay for it, and when? And I think those are very reasonable questions to ask in considering whether or not to grant this approval. So, the retrofit of the building, who will pay for that? PIPAN: That is, that is outside of my scope to get into the matters between the applicant and the landowner on those financials, so I can't answer to that. VITOUSEK: Okay. Can the applicant answer that? GUIFFRIDA: We have been working on those details, and we are prepared to invest in this. VITOUSEK: So, is Kona Aerials going to be, I mean, are you going to be paying out of pocket for the improvements to the facility? GUIFFRIDA: I believe the landlord and I will be working out some deals to make sure this gets done, and that I abide by what the county needs me to abide by. VITOUSEK: And the driveway improvements, relocating and paving and re-grading the access driveway, is that something Kona Aerials is going to pay for it or is that the landowner that's going to pay for it? GUIFFRIDA: I believe we are going to be sharing the cost. VITOUSEK: You share the cost. And again, you understand that we issue these permits with the understanding that they will be done where we would be issuing a permit saying that you, you will carry these things out, and so, for us, a big part of being comfortable and approving it is being comfortable in the fact that it will be done. And I just, I think that if we have a clear indication of where that's coming from will be helpful. ELISAGA: Chairman, Chairman Vitousek, excuse me, this is Darren Elisaga from Nakuwana Foundation. I can speak VITOUSEK: Hold on there, hold on for one second ELISAGA: Yeah, yeah, sure VITOUSEK: (Indiscernible—simultaneous speech) your video on, and I'll swear you in, if you are going to provide testimony. ELISAGA: Yeah, let me see if I can do that; my bandwidth is kind of, kind of slow. VITOUSEK: Well, if you've got the hand feature, you can just put your hand up on that, and I'll swear you in that way. Raise Hand, press the Raise Hand. 22 EXHIBIT B PIPAN: And if I may real quick, Mr., Chair Vitousek, while they are in works on his technology. Whenever conditions are proposed for any discretionary permit, be it a Special Permit, be it an SMA permit or rezone, there is a certain level of trust in a leap of faith that you as commissioners have to present, because there are no guarantees in life. You see in many cases, unfortunately, things don't turn out as they are proposed, and they have to come back before you to make modifications. So, that's all kind of built into the process. There are allowances for administrative time extensions on some of these items, but bigger items are strict five-year time limit, and if we don't meet that, then we'll be back before you in five years VITOUSEK: Thank you very much. The key word there is "discretionary," and it is up to our discretion to determine what's appropriate. Appreciate your time. Darren, go ahead,please raise your right hand, state your name and the town you live in. ELISAGA: My name is VITOUSEK: Never mind, never mind, I messed that up, I messed that up. Sorry,please raise your right hand. Do you swear or affirm to tell the truth before the Planning Commission? ELISAGA: Yes. VITOUSEK: Okay, thank you. Now you can state your name and the town you live in. ELISAGA: My name is Darren Elisaga, and I live in Kailua-Kona, Hawaii. VITOUSEK: Thank you, go ahead. ELISAGA: So speaking to the improvements that we plan to make, out of my experience in the small space that we occupy, I have seen over the year that the landowner has already made a lot of improvements moving in that direction. So when we talk about whether or not, you know, and Nanette as well, whether or not the landowner will actually, or who will be responsible for this, you know, we've been working on these things already. So it's not something that is at a standstill that we are going to all of a sudden, because of conditions, attempt to start. From what I understand in working with Mr. Bolton, these things are already in effect. And even in the space that we occupy, we know that there is a lot of things that aren't permitted and need to be approved, and those improvements have already been worked on or are being worked on. And he is actually paying for a lot of it. So when Nanette says that she is in close talks with the owner and he agrees, you know, although we would be taking the responsibility for these things, it is already in motion. So we are trying to be proactive even without the permit; it's not like we were just operating and all of a sudden, we need a permit. We knew these things are coming up, so alongside with the landowner we are already taking proactive steps to accomplish these things. So, I don't know if that helps. As far as a written agreement goes, like Nanette, we are also hoping to make this our permanent home as well. So with that being said, I think, as Chairman [sic] Darrow had explained in the previously, you know, it's the cart coming before the horse, right? So, we as well didn't want to commit to something long-term unless we had a chance at getting this permit approved. So, even though there might not be something exactly in writing, we do have that commitment. As, you know, Commissioner Kanuha was talking about 23 EXHIBIT B earlier about putting something in writing, I think that's totally possible; we could, we could easily work that out, because this, like I said, these are discussions that we as applicants have had with the landowner, you know, over the time that we've been occupying the space. So I hope that helps a little bit on that subject. VITOUSEK: Thank you. Commissioner Armbruster. ARMBRUSTER: I actually have a question for Dalilah, and I'm not sure what the process is. I kind of wanted to check with her and see if something was legit, like a legit path to go down. That was something VITOUSEK: Do you want to discuss it openly or do you want to request an executive session to discuss it? ARMBRUSTER: I think executive session. VITOUSEK: Okay, would you like to make a motion? ARMBRUSTER: Yes, please, I'd like to make a motion to go into executive session. VITOUSEK: I'll second the motion. All those in favor? Aye. Any opposed? [None.] Okay, we will enter executive session. And, Maija, can you give us guidance on how the Zoom aspect of that work? JACKSON: Yeah, so I'm going to put the commission and your secretary and counsel into a breakout room, and then when you are finished with your executive session there will be some button on your display to come back into the main meeting. Okay? So just give me a few minutes to set that up. VITOUSEK: Thank you. JACKSON: Noriko, do I need to put your recorder in executive session? SAUER: Yes, please. JACKSON: Okay, so you and the recorder, got it. [The commission went into executive session at 11:41 a.m.for the purpose ofconsulting with its counsel regarding questions and issues pertaining to the commission's powers, duties, privileges, immunities and liabilities,pursuant to Hawai`i Revised Statutes 92-5. The commission came out of executive session and the open session was reconvened at 11:53 a.m.] VITOUSEK: Okay, we are back. Is everybody back? Back online everybody? Okay, okay. Thank you for your patience. The Leeward Planning Commission would like to get some more information, and I think, Ms. Matsumoto, you might be the best person to ask. On the 24 EXHIBIT B inspections, so we just want to confirm that so far the only inspection to date has been on the foundation of the building, is that correct? MATSUMOTO: Oh, are you talking about the building permit? I can go and check. I don't, I'm not usually in tune with the building section stuff. VITOUSEK: Would you? Would you mind checking on that and see what inspections have been MATSUMOTO: I'll be right back. VITOUSEK: Thank you so much. Okay, Deputy Director Darrow, go ahead. DARROW: Thank you, Commissioner Vitousek. Just a side note, since we have this little break. The commission may be wondering why this is a deputy director recommendation versus a planning director recommendation. You have seen those come before you in the past. When Planning Director Zendo Kern was approved to be director, there was some concern about his previous business as a planning consultant, and he had gone before the Board of Ethics and asked how to appropriately deal with those perceived conflicts in regards to his previous clients, as well as his previous planning consulting business. And so the Board of Ethics had requested that he recuse himself for a period of one year from working with those particular applicants, previous clients, as well as the previous business, which is now Land Planning Hawaii, which John is representing. Whenever we receive an application from Land Planning Hawaii, it comes directly to me; whenever we receive any application or correspondence from any previous applicant or client from, of our planning director, it comes directly to me and to be able to avoid any apparent conflict or issues or anything. So, again,just wanted to make that clear for you folks so you can understand as to the difference between when you see a planning director recommendation or a deputy planning director recommendation. Hopefully, after one year we'll be able to put that aside, and all of them will be planning director recommendations. Thank you. VITOUSEK: Thank you. Appreciate it. Aloha, Robyn. MATSUMOTO: Yeah, so according to the permitting system, it shows that they did the slab and foundation inspection that was recorded back in September of 2019. So there is nothing else after the slab, so none of walls or VITOUSEK: Okay, thank you. MATSUMOTO: Yep. VITOUSEK: Appreciate it, that's super helpful. Okay, having had a pretty lengthy fact-finding period, I would like to request from my fellow commissioners that we proceed with a motion to either accept, deny, or defer the application on the table so that we can have discussion. Commissioner Kanuha. 25 EXHIBIT B KANUHA: I would like to make a motion to approve this Special Management [sic], SPP 21-000227, under the planning, deputy planning director's recommendations. I would like to put in maybe a special condition that everything for permitting-wise for the building be taken care of within a year. No extension for that next year, so that be taken care of as soon as possible, yeah. VITOUSEK: Maybe for purposes, we could do a motion to approve and then maybe seek a secondary amendment for changes to the conditions. Would that be okay with you? KANUHA: Yes. VITOUSEK: So right now we have a motion to approve. Is there a second? Second by Commissioner DeFranco. Okay, now we'll open it up to discussion. Commissioner Kanuha, would you like to restate your concern. KANUHA: Yeah, yes, excuse me, I'm in my office right now, so the answering machine, can you guys hear that in the background? Hold on one second. So, yeah, basically, yes, I made a motion to approve with the special conditions for,you know, recommendations by Deputy Director Darrow, with also a special condition that the permitting issues for the building be taken care of within the next year, with no extension,just to move things forward and get that building permitted. VITOUSEK: Deputy Director, you have a DARROW: Yeah, if I could chime in on that. We do have the additional revised conditions, and if we can clarify with Commissioner Kanuha that that includes those to address your concerns. What we can do is on condition 17 where we put in, "with the exception of condition 10." We can also add in condition 6, which only, which allows them, requires them one year to come in with the building permits and does not allow them the additional year for the administrative time extension for that condition, so that may resolve, or may address your request there. VITOUSEK: Commissioner Armbruster. ARMBRUSTER: So,just to clarify, are we asking them to final the existing permit and then go in for a revised permit, like we want the existing permit finaled within a year, correct? And then they start over again? We are not asking them to be done with the new stuff within a year, correct? DARROW: My understanding would be that they have to come in with a change of use permit. It wouldn't I mean, Jessica, maybe you can chime in on this but it didn't seem to make sense to go ahead and finalize the entire building as an ag building when they'd have to re-review it for a new type of use for that building, which would require most likely new codes. Jessica, is that true? ANDREWS: Yeah, that's true. They probably wouldn't even be able to obtain the existing building permit final inspections at this point, if they've done any modifications, and they have, that weren't included in the original permits, such as electrical and plumbing are now in the 26 EXHIBIT B building, whereas the existing building permit was permitted as an ag structure, with no plumbing or electrical. It's, it would have to be reviewed as a new use. KANUHA: New use and an as-built? ANDREWS: Exactly. So it's like starting all over, it would have to start all over. And probably—it would be up to DPW what they do with the existing permit—perhaps they would void it. DARROW: Commissioner Kanuha, does that address your concern by changing that condition 17 to include condition 6? KANUHA: Yes, it does. DARROW: Okay. And again,just so we are all on the same page, we did submit several revised conditions, so it's part of the approval. We want to make sure we capture those as well. Thank you. PIPAN: Sorry, could I ask a question quickly? VITOUSEK: Yes, go ahead. PIPAN: Thank you. As it's written, condition 6 is building permits for all existing and proposed structures and improvements, including water tanks, septic system, etcetera, will be finalized within one year from the effective date of this permit. I just hope to see some clarity, if—maybe I missed the exact transition there where the existing to be permitted and then the proposed for the change of use, whatever is necessary, is that also entirely included in this one here? My concern is we are placing a condition that might be insurmountable about,just given feedback time with the departments, the lag generated by the implementation of the new EPIC system. There have been an increase review times in all permits, so I want to make sure that's factored into this proposed condition as well. Thanks. VITOUSEK: Deputy Corp. Counsel. SCHLUETER: So,just bringing us in procedural-wise, Commissioner Kanuha has—so we have a motion that he is proposing on the floor, once that motion is seconded when he finalized the motion, once it's seconded, then we can go into a more in-depth discussion, so VITOUSEK: It was seconded by Commissioner DeFranco. SCHLUETER: Okay, okay, so we are officially in VITOUSEK: Right, we are in discussion, yeah. Commissioner Armbruster. ARMBRUSTER: Can I ask the applicant? Do you have as-built and construction drawings ready to go or is that still something you need to work out? 27 EXHIBIT B PIPAN: Thank you, Commissioner Armbruster. There are as-built drawings for the existing needing permitting bathroom facilities, septic system, as well. I believe there are as-built drawings for the entire structure, so those are very close. But, again, those were built with the occupancy in mind of agricultural storage, so an architect drafts person will need to review those with respect to the new occupancy, which looks to be assembly occupancy, and all the code requirements for that use be reflected in those plans, and to my knowledge, that has not yet been done. ARMBRUSTER: Okay, so the new building permit submittal still needs to be developed. PIPAN: Correct, yes. And it was, it was our understanding, and the landowner's understanding, with working with Deputy Director Darrow that, you know, the proper procedure is to get the Special Permit and then go to apply for the actual building permits. ARMBRUSTER: Do you think it's feasible to meet these deadlines we are giving you, considering the documents still need to be developed and then permitted and then the construction finished? PIPAN: I'm no architect; I do peruse building code, and there have been significant changes to Hawaii Building Code of late, so I haven't had enough experience with all those changes and the new 2018 IBC to really have a good handle on the feasibility or the time that's going to be required to adapt this building to this use. I have been to the site. It's a very well built, solid steel structure, one that you see used in many commercial and industrial sites all over the island. So, you know, it's not, it's not like a hoop house or something like that agricultural nature, which would require insane and expensive retrofitting. So I see it as feasible. The one-year time limit looks to be very, very ambitious if, if possible, given that Plan Approval, final Plan Approval, has to be secured prior to building permit submittal. So, you know, there is the sequence of events and each of those events is subject to returns from the department and additional processing times, so we see a lot of these permitting processes drag on from what we would initially estimate to be their time of completion. Unfortunately, a lot of it is just due to circumstances beyond our control that kind of come up in the reviews. VITOUSEK: Hey, we are going to take a quick recess for a bathroom break. I've got a request, so we are going to do a quick five-minute bathroom break, and then we are going to resume. So we'll do a quick recess and come back in five minutes. Okay? Thank you. [Chairman Vitousek called a recess at 12:08 p.m. He called the hearing back to order at 12:14 p.m.] VITOUSEK: Is everybody back? Okay, right on, looks like we've got everybody. Okay. DARROW: Commissioner Vitousek? VITOUSEK: Yes. 28 EXHIBIT B DARROW: Sorry, before we start up again, I was, I need to correct the record. My, I was informed that in regards to the planning director and the deputy director moving forward, the Board of Ethics did rule that all previous clients that Zendo Kern had represented, those were, he could not be a part of those applications or correspondence for a period of one year. What happened was it was disclosed that his sister works for the company that John overseas, Land Planning Hawaii, and so both the commission as well, or the Board of Ethics, as well as the director, agreed that for those applications and correspondence, it would be better to just recuse himself for the period of time that he is director. And so I will be working the way that it works is anything that comes in, again, that is a possible or perceived previous client or Land Planning Hawaii, comes directly to me; he has, does not review it, does not see it, does not participate in it, we do not talk about it, it stays specifically with me. So, again,just to clarify on the record. Appreciate the time, thank you. VITOUSEK: Okay, thank you. So we have a motion on the floor, we have a second. Is there any further discussion from the council [sic] members? Deputy Director Darrow. DARROW: Sorry, I just wanted to confirm. My understanding was the recommendation was to approve the conditions. I don't know if it was made clear to approve the revised conditions as well. VITOUSEK: My understanding was that the language was to approve the conditions from Deputy Director Darrow. KANUHA: Yeah, the revised conditions that we received from Deputy Darrow, yes. That's the motion. VITOUSEK: Okay. And then we are in discussion now. Go ahead, Commissioner DeFranco. DEFRANCO: So in the revised condition, this is going to include the flood mitigation and the new roadways, is that correct? Addressing the flooding that is happening there with the proper culvert. ANDREWS: Commissioner DeFranco, those issues were addressed in the original conditions, I believe. The revised conditions were created to address timing. KANUHA: But, Jessica, I believe in that revised—and I'm kind of, I'm looking at it here now it also states driveway access, so, is that, that's part of that, correct? ANDREWS: If it would be acceptedI don't think that language was actually changed from the original conditions up to the revised condition, so KANUHA: Yeah, I see, I see both will ANDREWS: Mm-hmm. VITOUSEK: Deputy Director. 29 EXHIBIT B DARROW: Thank you, Chairman. So I, you know, it sounds like the real issue here is the concern of timing for the building permits. The applicant, you know, one year is a tight timeline to get I think for any of us would agree just to get a permit, let alone to have to get a permit for a change of use after the fact, with the additional restroom and the septic and the water, it might be a tight fit, if even possible. So just, if we can discuss that, that might be good, and maybe the applicant again can address that. Thank you. VITOUSEK: Yeah, I think that's one, one issue. Commissioner Kanuha, would you like to I'm. Christian like to respond? KANUHA: Yes, going back to that motion, you know, looking at it and just thinking about commercial stuff that I've done before, that is a, that is a quick timeline, but there was that extra year extension on there. Am I not correct? So, you know, (inaudible—noise) there would be that extra year on top of the, you know, trying to get it done. But at least moving, with that motion, moving things forward as quickly as possible to get things in order to where the horse is in front of the carriage. DARROW: So, if we are clear on the record, so we would not be adding the condition of, we would not be adding to condition 17 other than what is there already; we wouldn't reference condition 6. KANUHA: Yes. VITOUSEK: Okay. Any other Commissioners, discussion? [No response] Okay, I have, I have some concerns. Obviously, this is the type of projects that you desperately want to support in every way possible, because of what they are doing for children in our community, and I just want to thank them for that, the history that they have of working to improve the lives of children in our community is something that we desperately need in our community. The hard thing for us is that it is difficult in that it is not as simple as we would like it to be. The concerns about safety on the property, safety for the kids who are going to be going to this special place that they'll also be enjoying. The overlapping uses of construction equipment and children going to ballet practice, it is a concern of mine. I want the kids to have a place to go to be able to do ballet, but I want to make sure that they are safe, I want to make sure that the building is safe. And we've gotten assurances from the applicant's planning consultant that it's a good building, but we don't have those assurances in the form of inspections from Department of Public Works. And I think in most situations we wouldn't be comfortable allowing hundreds of kids to congregate in a commercial use, in a building that has never had any inspection, that we don't know, that we can't verify is safe. So I would personally rather have an immediate inspection of the building by Department of Public Works to determine that this is in fact a safe building, this structure is safe, the access road is safe, that we can make sure that we are not approving something that that people can get hurt at. And I would honestly like to have that in my hands now, before making a decision on whether we can allow the Special Permit to go forward. Any of the commissioners have any thoughts? Commissioner DeFranco. 30 EXHIBIT B DEFRANCO: This is to Mr. Darrow. So, in granting and making your recommendation that this go forward, do you have some thoughts on safety of this building? DARROW: well, I mean, the building has a building permit; the building permit was to be for an agricultural storage building. I've seenI haven't been to the site—I've seen pretty good photos of the structure. It's definitely, as mentioned by John, a solid structure. There is, I mean anything could happen, I mean there is always that concern, you know, the flooding on this property, you know, the access. The goal here is we are in a situation where, like we had mentioned, the cart got before the horse, we are trying to get the horse before the cart. If Commissioner Vitousek, or Chairman Vitousek, feels that to make a comfortable decision of an approval for this, he would like to have that assurance that this is a safe building, by all means we can defer this request that an inspection be done by the Department of Public Works, maybe, I don't know,just a, you know, preliminary inspection to confirm that this is a solid structure, and that there are no safety concerns for the children at this time, and then come back in a month and make a decision. But, yeah, it's a tough, tough area to be in, you know, when we find ourselves having to deal with this. DEFRANCO: I thin VITOUSEK: Yeah, I DEFRANCO: I think we all feel more comfortable if that could happen. I would feel more comfortable with that. VITOUSEK: And, and not only that they inspect the building but inspect the access to make sure that the access going across the FEMA channel is sustainable, that the kids won't get trapped, that they won't get swept away, you know, when they are going in. I think having that insurance fromoh, Robyn, I see you've got your hand up. Please go ahead, you are an expert. MATSUMOTO: (Inaudible—microphone on mute) Okay, sorry about that. So, you know, I've worked for the Building Division as well, so if you are asking them to, you know, do an inspection and tell you that it's safe, I don't believe they can do that, because, as Jessica stated, there are changes to the building that are not part of the current plan, so they won't take on that liability, you know; I mean they are inspecting for what is exactly on plan, so if it's, if there is things there that aren't on the plan, they are not going to be able to do to give you a passing inspection on safety. Regarding the access, you know it's just like you said, Chairman Vitousek, it's hard to see if—this is an active construction site, right, I cannot say it's safe unless the construction was completed. VITOUSEK: Do you have concerns about the safety of the access. MATSUMOTO: I had concerns when I wrote my initial response because it's still an ongoing construction site, and there is another, I believe there is another section of the property that doesn't cross through the flood zone; it goes through X. But I'm not sure how much of that has been cleared to get to Hualalai Road, but I mean that's another possibility. I don't see any 31 EXHIBIT B restrictions on that other than you know the cost to construct. John, do you know the corner I'm talking about, on the other end? Do you know if there's any restrictions there? DARROW: You are muted, John. PIPAN: No, I don't know exactly where you are talking about in terms of access. We have the main access to be realigned, and then there is potentially the alternate access coming mauka-makai along the south side MATSUMOTO: Yep, that one. PIPAN: so that could be, yes, that could be developed. There is currently a 10-foot-wide paved strip over the 16-inch DWS line there that feeds the fire hydrant right next to the building, so, that could be improved to serve as access to the site until such time that the main access is realigned, construction finished, to the Kakalina extension alignment. I think that would get around a lot of the safety concerns and, you know,just serve as a good alternative VITOUSEK: Is that entry off of Ka`ahumanu Highway? PIPAN: No, it is off of Hualalai Road up near the big water tank. VITOUSEK: Oh, and coming straight makai from PIPAN: Straight up, yeah, straight down. So, like I said, it's paved 10-foot wide right now; that wouldn't really permit good two-way access fulltime, so there would be some improvements required to make that a workable access. VITOUSEK: That definitely looks like safer access. Commissioner Armbruster, you've got your hand up, go ahead. ARMBRUSTER: Would it be within our authority to request like a private struc-that the applicant have a private structural engineer look at the building before we approve it? Like, could be different for a month and ask they have a structural engineer take a look at the building? VITOUSEK: I think that would be entirely appropriate, if Department of Public Works is not willing to take on that responsibility, because I believe that that liability would then fall on to us as the approving body if we are issuing a permit for a structure that may not be safe. So I think that if—and perhaps Deputy Corp. Counsel Schlueter can weigh in on that. SCHLUETER: Just to rein this in, this special use permit is not a permit regarding the safety of the building, so the commission is not on the hook to that degree. This permit has to do essentially with the use of this property, not the safety of this building. If that helps to rein that in at all. VITOUSEK: But I feel like at the same time we are responsible, if we are issuing a permit, we have to consider the, whether the use is reasonable for the people who are going to be using it, 32 EXHIBIT B and reasonable mean safe; is the use of the property for this purpose safe? Can weI think that's the purpose of zoning in those things, and so that there are overlapping uses that don't impinge on one another. And so requesting a structural engineer to determine the safety of it and the engineer determine that the access road is safe, I think those are reasonable requests from Commissioner Armbruster. Commissioner DeFranco. DEFRANCO: Yeah, I agree with you, Mike, Commissioner Armbruster. I think that if we can, if we are allowed to ask her that, we should. I think we are all trying to get the cart before the, I mean the horse before the cart here, but you've got to give us something to get there. I mean, right now we are trying to work with you as much as we can, but we want to know that the building is safe, even though we understand it's not our liability, we are approving this, we would like to approve this gym, but we want to make sure that it is safe for the kids, and that they can get there, and they can get out of there if they needed to. VITOUSEK: You know, I think that—to the applicant, would the applicant be willing to provide a civil engineer and a structural engineer to determine the safety of the access to the property and the safety of the building, and you come back in a month and present those to us and discuss it at that time? GUIFFRIDA: I'm willing to do whatever I have to do to get this approved. VITOUSEK: Thank you. PIPAN: And, again, a little bit on timeline, it may be tight and we may have to push it for another month,just due to workloads of civil and structural engineers to get them to have time to do their reviews. VITOUSEK: Yep, sure, no, no stress on you guys on doing that, okay. Yes, Nanette. GUIFFRIDA: I'm sorry, we keep talking about timelines, and in my head I keep thinking, what about the COVID thing going on? I mean one of the reasons we didn't put our application in sooner was because of COVID, and everything was shut down, including us. So I, I'm just afraid that we might end up in that situation again, and if we do, are there going to be exceptions made? Oh, everything was shut down for 90 days, I, so I guess that's the only alarm going off in my head. VITOUSEK: Yeah, and we are not trying to put a timeline on you to complete these requirements. I think, from our perspective, the timeline to complete the requirements of providing engineers to document the safety of your place, and however long that takes you, that's, that's up to you guys. Basically, we want to make sure that you know you can come in next month, if you want to; we don't want to be the ones holding you up. But if your consultants need more time than that, that's fine with us. Deputy Director Darrow. DARROW: Thank you, Chairman Vitousek. So there, as a consideration also John had touched upon it briefly, there is an alternative access to the Special Permit area; it comes off Hualalai Road a little further mauka, and it is paved but it's only paved 10 feet wide at this time. There 33 EXHIBIT B could be a consideration that if there are concerns about the main access, that this be used until that main access is constructed. They could put pullouts along that emergency access roadway to allow for the two vehicles, if they were to use that for ingress and egress. So again just another consideration. VITOUSEK: Thank you. No, I, I think that that should absolutely be considered in the, when they come back, hopefully, and we can—and from my perspective, I think a thing that would be excellent to consider in the Special Permit application is considering the access as part of this Special Permit application so that that is drawn on the map and we are seeing where the location is coming off of, whether it's this way, whether it's coming, you know, north, south or coming mauka, makai. And honestly, I leave that up to you and to your civil engineers to determine what's the safest way to access this site so that we stay clear of construction traffic, we stay clear of flooding, and we get the kids to their gym safely. I guess with that I'd seek a motion to defer. Anyone would be willing to make that motion? Commissioner Armbruster. ARMBRUSTER: I'd like to make a motion to defer our decision on this issue until the applicant is able to provide the engineering support we've requested. VITOUSEK: Thank you. Is there a second? Second by Commissioner Yates. Is there any discussion? [No response] Okay, seeing none, we'll do a roll call vote. ANDREWS: Okay, Commissioner Armbruster? ARMBRUSTER: (Inaudible—microphone on mute) ANDREWS: I'm sorry, was that an aye? VITOUSEK: That was an aye, yeah. ANDREWS: Okay. ARMBRUSTER: Sorry, yes, aye. ANDREWS: Commissioner Yates? YATES: Aye. ANDREWS: Commissioner DeFranco? DEFRANCO: Aye. ANDREWS: Commissioner Kanuha? KANUHA: Aye. ANDREWS: Chair Vitousek? 34 EXHIBIT B VITOUSEK: Aye. ANDREWS: Five to zero, the motion passes. VITOUSEK: Thank you all, thank you all for your time. And I just want to say again that we support what you are doing in the community and look forward to helping find a way to work this out. Thank you. The hearing was adjourned at 12:38 p.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 35 EXHIBIT B