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HomeMy WebLinkAbout2006-01-20 TIbbetson PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT January 20, 2006 DANIEL IBBETSON (SPP 05-015) A regularly advertised hearing on the application of was called to order at 11:50 a.m. at the Outrigger Keauhou Beach Resort, 78-6740 Alii Drive, Keauhou, Hawaii with Chairman C. Kimo Alameda presiding. PRESENT:C. Kimo AlamedaABSENT & EXCUSED: Allen Salavea Jeffrey McCall Rene€ Siracusa Hannah Springer Andrew Iwashita Fred Galdones Chris Yuen, DeputyPlanning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Ivan Torigoe, Deputy Corporation Counsel And approximately 10 people from the public in attendance. APPLICANT: DANIEL IBBETSON (SPP 05-015) Continuation of a contested case hearing on the application for a Special Permit to allow a 2-unit bed and breakfast establishment on 0.722 acre of land situated within the State Land Use Agricultural District. The property is located along the west (makai) side of Mamalahoa Highway(Highway11),approximately120feetsouthoftheKaoheRoad-MamalahoaHighway intersection, Kaohe 5 , South Kona, Hawaii, TMK: 8-7-9:14. th ALAMEDA:Will the Hawaii County Planning Commission now come back to order? All right, moving along the agenda. This is I believe still old business. Agenda Item number 3. Applicant Daniel Ibbetson. SPP 05-015. This is a continuation of a contested case hearing on the application for a Special Permit to allow a 2-unit bed and breakfast establishment on 0.722 acre of land situated within the State Land Use Agricultural District. I wanted to-, before we start turn it over to our staff, Mr. Darrow, if you could just update some of our Commissioners who-. Well all of the Commissioners and then some insight for our Commissioners who weren€t at the previous contested case hearing. Mr. Darrow? DARROW:Thank you Mr. Chairman. At our last hearing on this matter November th a motion was made to continue the hearing to allow subpoena of witnesses to be able to 18 addressconcernsoftheCommission.ThesewitnessesareidentifiedasMaryAnneMaigret, EXHIBIT B 1 Keola Lindsey from the Department of Land and Natural Resources, State Historic Preservation Division and also Joe Derby who is with the Hawaii Conference Foundation. These witnesses have been served. You folks should have received a copy of the subpoenas recently. It€s my understanding that 2 of the witnesses here, the applicant or the intervenor might be able to answer why the, Mr. Derby is not present today. The applicant in this case, Daniel Ibbetson is represented by Dennis Krueger, attorney Dennis Krueger. And the intervenor in this matter is identified as Dean Kaiawe who is being represented by attorney Mike Matsukawa. Just for, to bring the Commissioners remembrance of this matter. This application, the area of this application is within the South Kona District. This white line moving in a north-south direction across the middle of the map is identified as Mamalahoa Highway. This area here is the Kona Paradise subdivision in South Kona. The application is identified, the area of the application is identified with a blue dot that is just south of the entrance to the Kona Paradise subdivision. The applicant in this case, Daniel Ibbetson is requesting a special permit for a 2-unit bed and breakfast operation. Referring to the site map that has been submitted by the applicant, this will beMamalahoaHighwaywhichisidentifiedhere.Theapplicanthasa10-footeasementthatgoes through a property, parcel 2 that is between the highway and his property that allows access from the highway to his property. The area of the residence is located here on the property. The 2 bedrooms that will be used for the bed and breakfast operation are identified in colors. The-. A major concern of this application is the identification of gravesites on the property. There are 2 gravesites identified on the map as gravesite A and gravesite B. The Planning Director is recommending that this application be approved by the Planning Commission. The, just to address 2 conditions. Condition 2 states that the applicant will need to receive a permitted access to the highway prior to the establishment of the bed and breakfast operation. And then more recently to address the concerns regarding the gravesites on the property Condition 7 was added which states the applicant shall maintain the perpetual non-exclusive easement and right of entry over the visit, over for the visitation, maintenance and care of the existing gravesites located within gravesite A and gravesite B identified as easement 1 within the applicant€s deed to the property. Are there any questions? ALAMEDA:Fellow Commissioners questions? I think we all remember now this application and keep in mind this is a contested case so there is a little bit more formal proceedings and structure to this. So I will be asking Corp Counsel to guide us in this process and if, if Mr. Torigoe you don€t mind just sharing kind of where we left off and what we need to do right now to complete this agenda item. TORIGOE:Thank you Mr. Chairman. As Mr. Darrow indicated we had, you had taken a continuance for the purpose of allowing subpoenaed witnesses that the parties would like to bring forward to try to respond to the concerns which the Commission had raised in their earlier hearing. And so at this point in time you would just resume the taking of evidence and allow the parties to go in their usual order I think to present whatever new witnesses that they would like to present. Unless the parties have some other order or procedure that they would like to stipulate to. ALAMEDA:And could you share the order with us? EXHIBIT B 2 TORIGOE:Normally the applicant will go first and then we€ll allow the intervenor to go ahead and cross examine and then the director and he may also allow the applicant to go ahead and do a redirect. And then if, once we€re done with the applicant€s witnesses then you can proceed on to the intervenor€s witnesses if any and the director€s and of course the Commission can be allowed to also ask questions of the witnesses. ALAMEDA:Okay. Commissioners you have any questions about the process before we proceed? Mr. Darrow you have a comment? DARROW:Thank you Mr. Chairman. I also wanted to bring to the attention of the Commissioners that Exhibit D-I #7 additional photographs has been submitted this morning and passed out to the Planning Commission. MATSUKAWA:The intervenors have no objection to the additional photographs D-I 7. ALAMEDA:Thank you. The Department has any objection to the new evidence? SELF:No we have no objections. ALAMEDA:Thank you. Okay, so we will be receiving these photos into evidence for therecord.Let€sproceedwithourapplicant.Statethenameandaddress? SIRACUSA:I have some questions about the photographs. When will be an appropriate time for me to ask the applicant? ALAMEDA:Mr. Torigoe? TORIGOE:They€re in evidence now so Mr. Chairman if you want to allow just general background kind of, if you want to get some orientation kind of questions you can do that. Otherwise I€d suggest that you wait until the parties start referring to them. ALAMEDA:And should I swear everybody in again? TORIGOE:Couldn€t hurt and identify everyone on the record. ALAMEDA:All right let€s do it very formal. Could I swear all you in again? Do you swear or affirm to tell the truth now before the Hawaii County Planning Commission? TESTIFIERS:I do. ALAMEDA:Thank you. So as I ask you to speak you can start off by saying your name and address for the record and then you can proceed. So with regard to the photos, your question Commissioner Siracusa? SIRACUSA:Yes, I€m assuming and tell me if I€m wrong or not that these photographs of different cemeteries other than what€s under consideration here today are to show that there is, EXHIBIT B 3 that it€s not unusual shall we say for cemeteries to be surrounded by commercialoperations. What we don€t know here is whether these cemeteries are on the same parcel as those commercial operations. And I would like the answer to that question. ALAMEDA:Applicant? Mr. Krueger? KRUEGER:Commissioner Siracusa I have no idea if they€re on the same parcel as the commercial operations. The only one that€s near a commercial operation would be the pictures of St. Michael€s Church cemetery which are opposite Alii Drive. Those would be pictures-. SIRACUSA:16A? KRUEGER:16 A, B, C, D, E and F. To my understanding and I€ve not looked at a tax map, it is that St. Michael€s Church is a different tax map from the adjacent uses. But the purposeofsubmittingthosepicturestoyouisbecausetherewasacommentmadeatthelast hearing that allowing cars to pass in front of the existing cemetery in site A or allowing a commercial use nearby it would cheapen the cemetery. And the point that was being made in those is that we have cemeteries all over this island from Alae cemetery in Hilo to cemeteries in Honokaa to cemeteries here in town with vehicles, commercial vehicles passing by every day. And also that are bordered by if not on the same property other commercial uses. There is one picture in here that contains a basketball court in the middle of the cemetery. That is picture 14A and that is the Kona Hongwanji mission. And that is on the same property. And that€s the purpose of the pictures is to respond to some of the comments that were made at the last hearing in that regard. SIRACUSA:Thank you for clarifying that. ALAMEDA:Mr. Krueger could you please state your name and address for the record? KRUEGER:Certainly. My name is Dennis Krueger. My address is 75-5722 Kuakini Highway. ALAMEDA:From the last meeting in continuation, there were a list of testifiers would you like to acknowledge or call them up at this time? KRUEGER:Yes, we requested a continuance of the last hearing so that we would be able to have representatives of the State Historic Preservation Division present to testify with respect to this application. And we do have 2 of those people here present today, one is Keola Lindsey and the other is Mary Anne Maigret. And at this time I would like to call Keola Lindsey if I could. ALAMEDA:Okay Mr. Lindsey would you please have a seat on my far right. Mr. Lindsey I€m going to swear you in could you please raise your right hand? Do you swear or affirm to tell the truth now before the Hawaii County Planning Commission? LINDSEY:I do. EXHIBIT B 4 ALAMEDA:Thank you. Could you please state your name and addressfor the record? LINDSEY:My name is Keola Lindsey. My address is 61-4151 Kalooloo Drive in Kawaihae, Kohala. ALAMEDA:Thank you. Mr. Krueger? KRUEGER:Thank you Mr. Chairman. Mr. Lindsey would you state what your present employment is? LINDSEY:I€m Hawaiian on staff with the History and Culture Branch of the State Historic Preservation Division, which falls within the Department of Land and Natural Resources. KRUEGER:How long have you employed by that agency? LINDSEY:I€ve been employed with that agency since July of 2002. KRUEGER:And what are your duties with respect to your current occupation? LINDSEY:It€s a fairly wide range of duties. As the branch indicates we deal with the history and culture of the people that have chosen to make Hawaii their home. And for the native population that was already here. KRUEGER:Are you familiar with the State Historic Preservation Division Rules in the Hawaii Revised Statutes? LINDSEY:Yes I am. KRUEGER:And does you department exist to more or less enforce those rules? LINDSEY:Yes. KRUEGER:Okay. Are you familiar with Mr. Ibbetson who€s the applicant here today? LINDSEY:Yes I am. KRUEGER:When did you first become aware or meet Mr. Ibbetson? th LINDSEY:If memory serves me correctly it was March 11of2003. KRUEGER:Andhowdidyoucometo?DidyoumeetMr.Ibbetsonthatdayordid you speak to him on the telephone? EXHIBIT B 5 LINDSEY:I believe we had set up that meeting via telephone but I was first put in contact with Mr. Ibbetson through my supervisor in our Honolulu offices. KRUEGER:And did Mr.? To the best of your knowledge did Mr. Ibbetson contact your offices? LINDSEY:I€m not exactly sure how the contact to me came from my supervisor. But it was my understanding from my supervisor that Mr. Ibbetson had contacted him. KRUEGER:And what was the purpose of his call if you know? LINDSEY:Of Mr. Ibbetson€s call to my supervisor? KRUEGER:Yes. LINDSEY:I don€t know that. KRUEGER:Okay. What did your supervisor tell you? LINDSEY:He asked me to go to the property andmeet up with Mr. Ibbetson and take alookatIguessbasicallytakealookatthepropertyandhedidletmeknowthattherewere gravesites present on that property. KRUEGER:Okay. When you went out to the property, what was the purpose of the visit to the property? LINDSEY:It was my understanding that Mr. Ibbetson was going to begin construction for a home on that property and wanted to discuss the possible impact of construction of that home on the gravesites that exist there. th KRUEGER:And when you went out to this was on March 11, 2003? LINDSEY:Correct. KRUEGER:And when you went out to the site did you identify the graves that were on the site? LINDSEY:Yes. KRUEGER:And were they part of a cemetery that was in existence? LINDSEY:From what I saw yes. KRUEGER:And did you discuss anything with Mr. Ibbetson on that visit? LINDSEY:Regarding the cemetery? EXHIBIT B 6 KRUEGER:Uh, yes. LINDSEY:Yes. KRUEGER:What did you discuss with him? LINDSEY:How impacts to the cemetery should be avoided by the construction of his home. I mean I€m sorry, how impacts to the cemetery should be avoided during the construction of his home. KRUEGER:And did you discuss with Mr. Ibbetson the methods of mitigating any impact of the construction? LINDSEY:Yes. KRUEGER:Andwhatdidyou,didyoutellhimwhattodo? LINDSEY:Thatthegravesite,thatthegravesitesthatwebothwerelookingatandthat he knew about shouldn€t be disturbed by the construction. KRUEGER:Okay. Referring to the diagram on the wall to your right. There is a diagram showing a site A and a site B. Are those the 2 sites where you saw the graves located? LINDSEY:Yes. KRUEGER:Okay. Did you know at the time that you went out there to the site that Mr. Ibbetson intended to commence with construction afterwards? LINDSEY:At some point in time afterwards I understood that. KRUEGER:And did you tell him that there was anything further that he needed to do in terms of contacting State Historic Preservation Division or the Burial Council or anybody else having to do with the graves before he commenced construction? LINDSEY:We wanted to stay in touch with him during the course of the you know the initiation of the construction work and the duration of the construction work, to ensure that the site wasn€t being impacted. KRUEGER:Okay. There are exhibits in evidence that show that Mr. Ibbetson applied for and received a building permit for his house in April of 2003 and then for a pool in May of 2003. There€s also in evidence a letter from I believe a woman named McIldowny in December of 2003 addressed to Mr. Ibbetson. Have you seen a copy of that letter? LINDSEY:Yes I have. EXHIBIT B 7 KRUEGER:I believe it€s dated December 13, 2003. Can you tell me what the purpose of that letterwas? LINDSEY:To ensure that Mr. Ibbetson was aware of the gravesites on his property and that their construction of his home should not impact those gravesites on his property. KRUEGER:Is it your opinion that the letter itself was intended to tell Mr. Ibbetson to stop construction on the property? Have you seen a copy? Would you like me to show you a copy of that letter? LINDSEY:Sure. KRUEGER:For the Commission€s benefit that is Exhibit L of Mr. Kaiawe€s exhibits. I€ll give you a minute to review that. ALAMEDA:Continue. KRUEGER:Thank you. Mr. Lindsey the letter dated December 17, 2003, I believe I th saidDecember13 from P. HollyMcEldowneyadministrator to Mr. Ibbetson refers to a March th 11 visit to the property. That was the date that you I believe and Mary Anne Maigret went to the property correct? LINDSEY:Correct. KRUEGER:The last paragraph of that letter says you are urged to refrain from any activity that may adversely impact these burials. Is that a standard requestby the State Historic Preservation Division? LINDSEY:It€s fairly common. KRUEGER:Okay. Does anything that you read in that letter indicate to you that Mr. Ibbetson should have stopped construction after receiving that letter? LINDSEY:In my opinion no. KRUEGER:Okay. And can you tell the Commission who Ms. McEldowney is? LINDSEY:She was the former administrator of the State Historic Preservation Division. KRUEGER:Okay.They,thelastsentenceofthatletterforthisreasontheSHPD requests that you contact our Kona office at 327-3692 to arrange for a follow up visit to assess thecurrentstatusoftheaforementionedburialsite.Doyouseethat? LINDSEY:IsawitwhenIwasreviewingtheletter. EXHIBIT B 8 KRUEGER:Okay. Did Mr. Ibbetson subsequently contact you after thisDecember th 17 letter? LINDSEY:Yes he did. KRUEGER:And did you have further discussions with Mr. Ibbetson regarding his site and the graves? LINDSEY:Via telephone, yes we did. KRUEGER:Do you recall what you told Mr. Ibbetson at that time? LINDSEY:Specifically I can€t but I believe the general conversation was to again confirm that Mr. Ibbetson was aware of you know avoiding impacting those burial sites as he wasconstructinghishome. KRUEGER:HaveyouseenacopyofthesalesdocumentbetweenMr.Ibbetsonandthe Hawaii Conference Foundation that sold him this particular property? LINDSEY:No I have not. KRUEGER:Has he mentioned to you, has Mr. Ibbetson mentioned to you any conditions in that deed? LINDSEY:Yes he has. KRUEGER:And what has he told you that the conditions are with respect to his use of that property? LINDSEY:Regarding the use of the property? KRUEGER:Yes regarding, with respect to the gravesites? LINDSEY:From my understanding that the sites should be left there and descendants to the graves within the burial area should be provided access. KRUEGER:Is that? As far as you€re concerned for the State Historic Preservation Division is that satisfactory because the cemetery was in existence before the construction? That was, is there anything more that you would have required him to do besides what was contained in that deed? LINDSEY:Potentially there could be an issue of a buffer zone around the sites. KRUEGER:Okay. EXHIBIT B 9 LINDSEY:And there could be other things during the course of discussion on the matter but off the top of my head the first thing that jumps out is a potential buffer. KRUEGER:Did you tell Mr. Ibbetson at any timethat he needed to maintain a buffer of any certain distance? LINDSEY:I don€t believe an actual measurement was ever established. KRUEGER:Do you know approximately how far these 2 rooms are that we€re talking about today here for the bed and breakfast are from site A or site B? LINDSEY:I don€t know the actual measurement but based on the site plan that€s up there it€s well removed. KRUEGER:Mr.Ibbetson€sapplicationisaskingtheCommissiontoapprovea2 bedroom bed and breakfast that would allow up to 4 additional people to use those 2 rooms. In your opinion would that have an adverse impact on the gravesites if they approve that? LINDSEY:As I sit here today I can€t think of a potential adverse effect. KRUEGER:Mr. Lindsey one of the questions that one of the Commissioners had at the last hearing was how old does a cemetery have to be to be within the jurisdiction of the State Historic Preservation Division? Do you know the answer to that? LINDSEY:Yes I do. KRUEGER:And what would that be? LINDSEY:The State Historic Preservation Division is charged with protection of burial sites over 50 years old outside of the boundaries of known and actively used cemeteries. And it€s always been a point of debate what defines an actively used cemetery. KRUEGER:In this particular case if there were burials at the gravesite within a year of the time that Mr. Ibbetson was building or in conjunction with his building would that be considered active use of the gravesite? LINDSEY:In my opinion yes. th KRUEGER:Mary Anne Maigret visited the site with you on March 11 is that correct? LINDSEY:Correct. KRUEGER:Andwhatwasthepurposeforhertovisitthesitewithyou? EXHIBIT B 10 LINDSEY:We had other things to do that day and this first site inspection was you know again the first thing we had to do that day. She is a staff archaeologist but I think the primary reason I guess she was there because we were on our way to do other things as well. KRUEGER:I see. Have you ever had any discussions with Dean Kaiawe the intervenor in this case? LINDSEY:I believe we had conversations via telephone. KRUEGER:Can you tell us generally what the, how many times? LINDSEY:Generally I€d say two to three times. KRUEGER:Do you remember generally the subject of the discussions? Were the generallythesamediscussions? LINDSEY:Theywerediscussionsregardingthegravesitesonthisproperty.Andhis, I€m sorry, and his connection to those gravesites. KRUEGER:Can you tell me whether or not you discussed with Mr. Kaiawe the types of things that you€ve been testifying here today with respect to Mr. Ibbetson€s use of the property? LINDSEY:Regarding the construction of the home? KRUEGER:Regarding construction of the home the fact that maintaining the gravesites in place and making sure they were safe was satisfactory to you. LINDSEY:I recall discussing ways to protect these sites as construction continued or initiated and continued. I can€t remember the exact details of what we talked about relative to what should be implemented, what sort of protected measures should be in place. KRUEGER:Just for the record again. Did you ever tell Mr. Ibbetson that he was supposed to do certain things during construction that he did not do to protect the gravesites? LINDSEY:I don€t recall. No. KRUEGER:Thank you Mr. Lindsey I don€t have any further questions. ALAMEDA:Thank you Mr. Krueger. Cross examine? MATSUKAWA:Yes. My name is Michael Matsukawa. My address is 75-5751 Kuakini Highway, Kailua-Kona. I€m the attorney for the intervenor. Mr. Lindsey as you described the drawing on the wall there. Is it your understanding that when you refer to cemetery that€s only sites A & B? You used the word cemetery; you€re referring to sites A & B? EXHIBIT B 11 LINDSEY:Yes. MATSUKAWA:Okay. Were you aware that this entire parcel was known as the Hoikeana Cemetery that was a church in South Kona? LINDSEY:I wasn€t aware that this entire parcel was identified by that name. MATSUKAWA:Okay. Assuming that it is true that there is a survey map and testimony that the entire 0.7 acre parcel, not just A & B but the entire thing is a cemetery would you have discussed Mr. Ibbetson€s construction of a home in any different manner? Would your analysis of the situation have been any different in other words? LINDSEY:Only if there was question of actual burial sites existing outside of areas identified as A & B. MATSUKAWA:And would you have considered the entire parcel as a historic property? If itweremorethan50yearsold? LINDSEY:Ican€tanswerthatquestion. MATSUKAWA:Okayandyou€veansweredmyquestion.Youwouldhave,wouldyou have nonetheless. Let me ask again. Would you have treated the entire 0.7 acre parcel as a cemetery not just A & B? LINDSEY:Only if burials existed outside of those areas A & B. MATSUKAWA:So your definition of cemetery is where the burials are located as opposed to the entire? Let€s say-. Let me backtrack. Let€s say I have a cemetery that€s 2 acres but only a portion has been developed and used for burials. Would you call, would your use of the word in your profession, cemetery be the entire parcel or just the area where burials are located? LINDSEY:Well I mean it€s tough cause you know cemetery is a word that shows up in the statutes that we run under. But, what we€re truly trying to do is protect any actual burial sites. MATSUKAWA:Okay fair enough. Now after you went out to the site on March 11, 2003 you recall according to what€s been submitted here is a memorandum by yourself that you discussed other issues discussed were recordation of sites with the Bureau of Conveyances, Consultations with an access for lineal and/or cultural descendants formalizing burial treatment plan prior to ground altering activities. Mr. Ibbetson seemed agreeable to these items and said he would contact SHPD again soon.‚ When you wrote that memo were these things that had to be done in your mind at the time in 2003 when you wrote the memo? LINDSEY:The day I wrote the memo those are things that potentially had to happen yes. EXHIBIT B 12 MATSUKAWA:And what event would determine whether or not these things had to be done. LINDSEY:The circumstances regarding the burials themselves as well as any potential permits that would be routed through our office for review. MATSUKAWA:Now was any permit routed, permit application of any kind for the construction of the homerouted through your office to your knowledge? LINDSEY:You mean like a building permit? MATSUKAWA:That€s correct. LINDSEY:Not that I recall. MATSUKAWA:Is it normal in your work when the County Building Division would submitanapplicationforcomment? LINDSEY:Isitnormalforabuildingpermittoberoutedthroughouroffice? MATSUKAWA:That€scorrect. LINDSEY:In my work experience, no. But my co-worker does a lot more of the actual review of County permits. So perhaps she might be able to answer that question better. MATSUKAWA:Okay. But to your knowledge you€re aware of incidents where applications have been routed through your office perhaps not directly to you but through your office in general for review on a building permit. LINDSEY:Not building permits no. MATSUKAWA:Okay what kind of permits come through your office? LINDSEY:Grubbing and grading permits. MATSUKAWA:So can I assume that you personally were not given an opportunity to review or comment directly to the Planning Department excuse me Building Division of the County on Mr. Ibbetson€s building permit application? LINDSEY:If I recall correctly myself directly no. MATSUKAWA:Okay now in reference to you know that letter that Mr. Krueger talked to you about Exhibit L, the letter from Mrs. McEldowny? I€m referring to that same letter and in the second to the last paragraph she says 6E-43.5 provides that the appropriate Island burial council shall determine whether to preserve in place or relocate previously identified native EXHIBIT B 13 Hawaiian burial sites. What in your opinion did that, in your understanding did that sentence purport to say? LINDSEY:I think the answer is just what it, it does say that the Hawaii Island Burial Council has the authority under this stated statute to determine preservation in place or relocation of previously identified native Hawaiian burial sites. MATSUKAWA:Was it your understanding that a burial treatment plan was supposed to be obtained? LINDSEY:Potentially. MATSUKAWA:And this was as of the date of this letter December 2003. What, what again, what event would have triggered the need for a burial treatment plan. LINDSEY:Generally it€s triggered by a review of a County permit. MATSUKAWA:Okay. I have no more questions. ALAMEDA:Director cross examine? SELF:We have no questions thank you. ALAMEDA:Fellow Commissioners any questions for Mr. Lindsey? Commissioner Siracusa? SIRACUSA:Yes usually when we see permits for development one of the standard conditions that€s in there is, is that during the grubbing or grading if any archaeological remains are discovered that all work is to cease and desist and that the Office of Historic Preservation be called immediately. And I€m wondering if you had made mention of that condition to Mr. Ibbetson when you went down to see the property on March 11, 2003? And if not why did you neglect to do that? LINDSEY:I think the situation you€re talking about, the inadvertent find procedure. The reason I didn€t talk about it with Mr. Ibbetson is that we were looking at defined boundaries of a burial area. SIRACUSA:So, it never occurred to you that if. Because I understand that the first burial area A was immediately obvious. Burial area B was discovered later on, it was considerably overgrown not quite so obvious. It never consider- entered your mind that perhaps there might be similar spots on the property that might also contain possibly older burials or burials that weren€t quite as obviously marked or perhaps more overgrown? So that you would mention some sort of you know if you found anything else while they€re clearing this lot or preparing or you know grading for the house that sort of thing that you should do the standard thing and stop everything and call Historic Preservation Division. EXHIBIT B 14 LINDSEY:I mean are we talking about like burial area B is you know delineated by rock walls and has stone platforms within. It may have been unknown at some point in time but as of March 11, 2003 it was known to Mr. Ibbetson and myself. SIRACUSA:Well, I only mentioned that because at our earlier meeting here it was brought up that burial area B wasn€t noticed immediately. If I recall correctly that it was only a little bit later on that it was noticed because it had been so overgrown. So I was wondering, well if that was overgrown maybe there were burials on the property that were even a earlier date that might have been even more overgrown with possibly the stones would you know would have tumbled down and not form such a demarcated area. LINDSEY:It was my understanding that Mr. Ibbetson had been working with members of the church associated with this property. And that the burial areas at the church was aware of had been pointed out during those discussions to him. He never indicated that there wasquestionsfromthechurchmembersofothersitesthattheyhadheardoforknewaboutthat could not be found at that point in time. Now on any property in Hawaii there could be burials that you know pre-date, that are older I guess than the activity that€s going. But as far as burials specifically related to the church activities, it was my understanding at the time of my site visit that those had all been identified and there was no question, there was no question about, sites that could not be found. ALAMEDA:Commissioner Siracusa? SIRACUSA:Yeah, I€m looking at the conveyance which is exhibit C, which starts know ye by, know all men by these presence and it refers to on line, on line 7, all of that certain place or parcel of ground. And then the third paragraph, to have and to hold the said premises with the appurtenances so that it may be used as a cemetery. And this is relating, referring to all of that parcel to be used as a cemetery. To the said Board of the Hawaiian Evangelical Association, its successors and assigns forever. And so this is relating to I guess the, why I€m questioning that Mr. Matsukawa was asking you about whether you would consider the entire parcel or cemetery or only those specific gravesites. Had you seen this document at the point of th your visit? Did you, had you read this document when you visited on March 11 ? LINDSEY:I€ve never seen that document. SIRACUSA:Oh so till this day you haven€t seen that document? LINDSEY:That€s correct. SIRACUSA:Had you seen this document would you have answered Mr. Matsukawa€s question differently? LINDSEY:No because I think our job is still protecting where we know there are burials, actual burials existing. And while that deed, it sounds like that deed leaves open the potential for using the entire property as a cemetery my primary responsibility is still to protect where those burials actually exist. EXHIBIT B 15 SIRACUSA:Thank you. LINDSEY:This opportunity is for redirect. There€s nofurther questions from our-. Oh Commissioner Springer? SPRINGER:Did you review any documents prior to your site visit? LINDSEY:No I didn€t. SPRINGER:Absent that information that was that was contained in the deeds as stated by Commissioner Siracusa and others you then went to verify the presence of remains on sites A & B is that correct? LINDSEY:Idon€tthinkIwastheretoverify.Ithinkhowthesitesaresituatedare verification in themselves. It was to discuss with Mr. Ibbetson his, the planned beginning of construction on his property for his home and again how that construction should avoid impacting the areas identified as burial area A & B. SPRINGER:Thank you. Was there any discussion of the area having been designated as a burial site for the Hoikeana Church? LINDSEY:The entire property? SPRINGER:Yes. LINDSEY:Not that I recall. SPRINGER: Question in general. How may a cemetery be decommissioned? LINDSEY:I gotta ask you, what is decommissioned? SPRINGER:We have in our documentation from the church that this area was intended to be a cemetery. Understanding in this particular case you visited or the Department€s representative visited the site not knowing that there was indeed a cemetery there. Does the department-? In your discussion with us you€ve said that your task is to protect burials as compared to cemeteries. Did I hear you correctly? LINDSEY:Just because, I think you know we€re getting into a definition of the statutes and-. I mean generally cemeteries continue to be actively used up until this, this point in time. And generally speaking the division more commonly deals with sites that I wouldn€t define as being within the modern definition of a cemetery. SPRINGER:Thank you Mr. Lindsey. I€m looking at the limited warranty deed dated March 17, 2003 and in that it says no additional burials or internments of remains would be allowed in either gravesite A or gravesite B with the exception that cremated remains may go EXHIBIT B 16 into gravesite A. It seems to be very specific to those areas indicated on the map on the wall. At any point is it proper to engage in discussion of Hoikeana cemetery as a whole in your opinion? LINDSEY:Hoikeana Church Cemetery as a whole in terms of the whole boundaries of the parcel? SPRINGER:Yes. LINDSEY:I guess potential was a, for future use of that parcel. SPRINGER:I€m wondering if there wasany, what the verification or what the voracity of the apparent statement that, or the statement that apparently only sites A & B contain iwi. LINDSEY:Relative to the church€s involvement on the property. SPRINGER:Thank you I have no further questions. Mahalo. ALAMEDA:Other questions Commissioners before we turn it over to the applicant for redirect?Mr.Krueger? KRUEGER:ThankyouMr.Chairman.WithregardtoCommissionerSpringer€slast question to you, excuse me, having to do with a limited warranty deed. I believe just for the sake of clarification the limited warranted deed on page 2 says that no additional burials or internments of remains will be allowed in either gravesite A or gravesite B with the exception that number one, Louisa Luika Kima Haalilio may be buried at gravesite A and then the cremated remains may be buried at gravesite A. So there were both of those things I believe. But if, Mr. Lindsey, you didn€t visit this site not knowing that there was a cemetery there right? You knew that it was, that there were burials and that it was a cemetery. LINDSEY:My supervisor briefed me over the phone what type of site this was. KRUEGER:Okay. And when, when you went there if I told you that in the sale document between the church and Mr. Ibbetson that there was a meets and bounds description of site A and site B specifically identifying those as the only 2 sites on the property that had remains and that those were the 2 sites that he was supposed to allow the descendants to maintain and access to would that be consistent with what you saw when you went there? LINDSEY:Yes. KRUEGER:Now the burial treatment plan that I believe it was Commissioner Siracusa asked you about. May have been Mike Matsukawa I€m sorry I forgot at this point. Is a burial treatment plan necessary where the gravesites already exist within a cemetery? In other words they€re not going to be moved and they exist within a cemetery is there a burial treatment plan necessary? EXHIBIT B 17 LINDSEY:Generally it would depend on, it would depend on the, how the definition of cemetery is being identified. KRUEGER:Okay. If they are, if these graves are in identified locations in what€s been identified as a cemetery is it your experience that they would-. If there was nothing that was going to be done to disturb those existing sites, would it be your experience that somebody would need to submit a burial treatment plan if there was no intent to disturb those and they were within an existing identified cemetery? LINDSEY:Our ability to require someone to do a burial treatment plan ties into our review of a permit. KRUEGER:Okay. Section 6E-43 of the Hawaii Revised Statutes describes prehistoric and historic burial sites. And it says that any site other than a known maintained actively used cemeterywherehumanskeletalremainsarediscoveredorareknowntobeburiedandappearto be over 50 years old, the remains in their associated burial shall not be moved without the Department€s approval. In this particular case the location of gravesite A and gravesite B were known and had actively buried remains within a year prior to or at the same time Mr. Ibbetson was constructing the house right? LINDSEY:From my understanding yes. KRUEGER:Okay. So if that€s the case would the Department have jurisdiction over that site, under this definition? LINDSEY:No. KRUEGER:Okay. LINDSEY:You€d also have to expand that definition to talk about maintained and, but that€s always been a definition that€s kind of escaped the Department in terms of does maintained mean people are cutting the grass? Does maintained mean people are visiting the sites, leaving flowers, paying respects? KRUEGER:When you went to the site were there flowers on the site? LINDSEY:Burial site A. KRUEGER:Okay. And if I told you that the deed between Mr. Ibbetson and the church required Mr. Ibbetson to allow the descendants of the people buried in that cemetery to maintain the gravesites would that also fall into this definition, would that work? If I said that they were known and maintained, if they required him to allow them to maintain it would that, would that address your concern with respect to the maintenance? LINDSEY:Yes. EXHIBIT B 18 KRUEGER:Okay. Thank you I don€t have anything further. ALAMEDA:Thank you. We have some, Commissioners have the last questioning. Okay I€m hearing from Mr. Torigoe we coulddo arecross. MATSUKAWA:I€ll be very brief Mr. Chairman. ALAMEDA:Okay, go ahead. MATSUKAWA:Mr. Lindsey the word cemetery is a problematic word isn€t it as youjust described? LINDSEY:Forthe historicpreservation in some situations it is. MATSUKAWA:OkayandthedefinitionofaburialsiteasIunderstanditisanyspecific unmarked location where historic skeletal remains are interned correct? LINDSEY:Or prehistoric. MATSUKAWA:Or prehistoric. The legislature made no reference to cemetery in particular correct? LINDSEY:The modern definition of a cemetery. MATSUKAWA:That€s correct. And if I believe the definition continues that the burial site also includes the immediate surrounding archaeological context. LINDSEY:Correct. MATSUKAWA:So in other words it€s not just where the bones are buried or the iwi is but the surrounding archaeological context in terms of space? What the? LINDSEY:For Hawaiian style burials sometimes we have them in like a rock platform so it€d be the iwi within the platform, and the rock platform itself. MATSUKAWA:So space around the actual internment area is considered part of the burial site? LINDSEY:Generally yes. MATSUKAWA:Yeah generally speaking. And is it fair to also conclude that when a developer wants to preserve a known or identified burial site, wants to preserve it in place you mentioned buffer zones as a means to protect it. Is, is, is that concern of yours that you described about buffer zones to address this archaeological context surrounding the burial? LINDSEY:On some occasions yes. EXHIBIT B 19 MATSUKAWA:Okay, now in reference to a burial treatment plan as to a trigger I understand your rules to say that requests to preserve previously identified native Hawaiian burial sites triggers a burial treatment plan review is that correct? LINDSEY:Right because the burial treatment plans, the, basically the plan that goes to the Hawaii Island Burial Council for them to review and then render a decision. MATSUKAWA:So in other words just because a developer says I€m not going to touch the gravesite I€ll stay 4 feet away or 5 feet or 8 feet but I intend to keep it in place that decision to keep something in place doesn€t it trigger some kind of review? LINDSEY:When you say review? MATSUKAWA:Astowhetherthatplanisappropriate? LINDSEY:Itwouldgenerateareviewand-. MATSUKAWA:Andcouldyouexplainwhatthatreviewprocessisjustinsummaryform? Cause I think I myself and some others may have some questions about what triggers this review process. If someone says I€m going to keep it in place I know it€s historic, I know it€s a native Hawaiian family, I€ve been told that it€s located here and I€m going to keep it in place. What follows and what triggers a formal burial treatment plan procedure? LINDSEY:That the requirement for the plan is somehow tied into a review of a permit. MATSUKAWA:Okay thank you. ALAMEDA:That was a recross examine and now I€m wondering if there€s redirect, redirect. Mr. Torigoe? TORIGOE:Yeah I think it€s basically within your discretion. As long as you feel that there€s information that is going to be helpful to the Commission you can allow it but basically maybe you should see what the parties intend to do and see if that€s something that you want to? ALAMEDA:Mr. Krueger? KRUEGER:I have no desire to redirect but I€m didn€t ask the County if they had any recross? ALAMEDA:Okay, recross? SELF:No. EXHIBIT B 20 ALAMEDA:Well we do have one question from the Board, Commissioner Iwashita? And this is for Mr. Lindsey. Any questions for Mr. Lindsey before we let him off the hot seat? IWASHITA:Mr. Lindsey I€m lolo about what you do and I just wanted to clarify with you and make sure I understand I guess your testimony so far so if I restate it incorrectly or something tell me. Basically what I understand is that your job is as far as burials that are more than 50 years old all the other criteria, you go out and you, you do the inspection and then whatever reports and things that need to be done in your regular procedure and in this case my impression is that your, what you felt needed to be done was do the inspection send your memo do the follow-up letter and that€s pretty much all that your department needed to be involved in this particular case? LINDSEY:There were certain, certain information came up after my initial site inspection in March and the letter in December of €03 that indicated that there was a high potentialthattheStatemaynotevenhavejurisdictionoverthissite. IWASHITA:Becauseit€saactivelyusedburialsite? LINDSEY:Correct. IWASHITA:Wouldthat-?OkaysoandthatwouldapplytoAandBorjustAor-? Because I guess my impression is B didn€t, wasn€t really maintained, it was sort of overgrown. LINDSEY:It may have been overgrown but again I can€t comment on if people, family members to those graves were still visiting the site. It may, you know they may not have been cutting the trees and the grass but that doesn€t mean people weren€t still going there. And although the 2 areas are you know not physically connected I think in the paperwork people have described to me and they€re still considered one and the same. IWASHITA:Thank you. ALAMEDA:Thank you Commissioner Iwashita. Commissioner Springer? SPRINGER:Thanks if we can just revisit that December memo. The third paragraph reads furthermore, Hawaii Revised Statutes Section 6E-43.5 provides that the appropriate Island Burial Council shall determine whether to preserve in place or relocate previously identified native Hawaiian burial sites. Was that done? LINDSEY:No. SPRINGER:And then the final paragraph urges contact by the applicant of your office. Does that serve in place of the Hawaii Island Burial Council making the previously mentioned determination? LINDSEY:No it does not. EXHIBIT B 21 SPRINGER:Thank you. ALAMEDA:Fellow Commissioners? Commissioner Siracusa? SIRACUSA:I€m looking at Exhibit I which isa letter dated March 17, 2003 to Kai Markell from you, Keola Lindsey. And the, let€s see, it€s the next to the last paragraph. You say Mr. Ibbetson, at the very last sentence of the next to the last paragraph. Mr. Ibbetson seemed to think that allother grave areas will not be impacted by ground altering activities. He was referring to, well the beginning of the paragraph gives you the context, Mr. Ibbetson€s area of concern is one of the unmarked grave areas. Is that A or B? LINDSEY:B. SIRACUSA:That€s B. And then at the last sentence, all other grave areas. Would that thenbeAorBorothers? LINDSEY:WhenIwrotethismemoIwastreatingwhatisnowdefinedasburialarea B as 2 separate ones and burial area A as one as its own. So when it says all other grave areas I was referring to a second area within area B and that was by my own definition and then burial area A. SIRACUSA:Okay so, the first, let me just for clarification here, the first sentence of that paragraph Mr. Ibbetson€s of concern is one of the, one of the unmarked grave areas and you€re saying that, you€re referring to B there? LINDSEY:By my own definition I split what is now known as burial area B into 2 separate ones. SIRACUSA:Ah! And so the last sentence also refers to B but other than the first one? It€s a, it€s a little confusing there to be looking at B in terms of more than one grave area. You would think that A would be one area, B would be another area and then define more specifically at, by you know referring to say specific burials like the most, the most mauka burial or the most, you know like that. LINDSEY:If I remember correctly burial area B is, there€s basically 2 areas enclosed by rock walls within burial area B. SIRACUSA:Mm hm. LINDSEY:And that€s why during my site inspection I treated them as 2 separate burial areas. SIRACUSA:So I find it strange that instead of you saying, instead of saying that, that the other grave area and yet you refer to all other grave areas as though it was more than 2. As a. Do you follow my? Okay if one of the unmarked grave areas is one of the areas defined by a rock wall in B. And then you refer to all other grave areas plural, that makes it sound like there EXHIBIT B 22 are more but you€re saying that there€s only one. So why did you us that terminology instead of saying that the other grave area or the other burial? LINDSEY:I may have misused terminology but-. SIRACUSA:It just makes it sound as though there€s more than what you€re stating. LINDSEY:I may have misused terminology when I was writing this memorandum but during and after my site inspection I had no information that indicated there was graves outside of the areas that are currently identified on your folks map on the wall as burial areas A and B. ALAMEDA:Commissioner Siracusa? Fellow Commissioners I would like to before we, I feel like I€m going to be apologizing all day cause I want to honor this process. This is veryimportanttomethatweputtheissuesonthetableandwemovenottoofastbutIhave some concerns around maybe kind of the questioning. And I just wanted to ask Mr. Torigoe if you could help us, just kind of give us some guidance around, kind of what do we have. What can we judge, what shouldn€t we judge, what kind of questions should we ask, kind of along those lines? TORIGOE:Mr. Chairman I assume you€re asking about basically the relevance of the questioning of Mr. Lindsey at this point? ALAMEDA:Correct. TORIGOE:Yeah it gets a little difficult because I€m not entirely sure myself exactly what the Commission wants to get in terms of what, from Mr. Lindsey, in terms of making the decision as to whether this Special Permit or the bed and breakfast permit should be allowed. One thing to be careful for is not to try to become an, a judgment or enforcement agency regarding Chapter 6E because that basically is not part of your jurisdiction. You can try and get some background information-. It seems like what you€re trying to do is get some background information about the extent to which perhaps the applicant was proceeding in good faith in consulting with SHPD and that may be of some relevance in determining not so much whether you can-. Again not whether this particular applicant can be trusted you know in the future but, but really more along the lines of whether this is a reasonable and unusual use given all of the circumstances under, under Chapter 205. So, you do need to be careful not to you know start thinking of yourself as an agency that is responsible for determining Chapter 6E compliance in this case. But certainly if you decide to grant a permit you, you may consider putting in a condition that says that you know Chapter 6E shall be complied with and that all of the requirements of SHPD will be complied with now that SHPD is fully, more fully apprised of the circumstances. ALAMEDA:Fellow Commissioners you have any questions for Mr. Torigoe? It sounds pretty clear to me. Any other questions for Mr. Lindsey before we let him go? No further questions? Thank you Mr. Lindsey. EXHIBIT B 23 LINDSEY:Thank you. ALAMEDA:You may be seated. It€s 1 o€clock. I want to put this out on the table for our fellow commissioners to think about. We€re going to have to eat lunchsooner or later. And I just have a feeling that this, this deliberations will take us a little longer than I expect so I€m thinking that we should break for lunch and come back and pick up where we left off. Mr. Krueger? KRUEGER:Mr. Chairman I just spoke to Mr. Matsukawa briefly here. Given Mr. Lindsey€s testimony and the fact that, the reason we have MaryAnne Maigret here is because she accompanied him to the site. We didn€t really know what that purpose was. And also because she had submitted a document to the Planning Staff in reference to the fact that there were no historic impacts to the site. I don€t really believe we need to call her at this point. So I don€t believe we€d have any further witnesses to call. And I€d hate, I apologize to Mary Anne forhavinghersithereallmorningand,andthennotcallher.Butinordertoexpeditethe procedure I wanted the Commission to know that. ALAMEDA:Fellow Commissioners given that comment by Mr. Krueger what, what€s your pleasure? MATSUKAWA:Let her go. ALAMEDA:Go through? MATSUKAWA:Let her go. ALAMEDA:Oh sure, do we need to make a motion for that? Dismiss our potential testifier? TORIGOE:It sounds like the parties are in agreement that Ms. Maigret does not need to testify today. So unless the Commission wants to call her forward to ask a question or two then you can just release her as presiding officer. ALAMEDA:The Department has any concerns with releasing Mrs. Maigret? Seems like the applicant, the intervenor and the department doesn€t have any problems. Commission do you have any problems with releasing Mrs. Maigret from testifying? Mrs. Maigret you are dismissed. Thank you. But you can, you can stay and enjoy. So seeing that there are no more testifiers how should we proceed Mr. Torigoe? TORIGOE:I guess, just for the record Mr. Matsukawa you don€t have any witnesses that you plan to bring at this point? Okay. Well, I guess. SIRACUSA:Well question, I thought that somebody from the church was going to come and testify? ALAMEDA:Mr. McGregor? Krueger? EXHIBIT B 24 KRUEGER:Thank you Mr. Chair. Commissioner Siracusa, there was a member of the church who was subpoenaed, John Derby, to be here today. An issue arose over the last day or so about his appearance here and he has attorney representing him in Honolulu, Derek Kobayashi from the law firm of Goodsill Anderson. Mr. Kobayashi sent a letter to Mr. Matsukawa, to myself and I believe he spoke to Mr. Torigoe questioning the authority of the Commission to subpoena someone off island and to compel them to attend the proceedings today. And in light of that he said, and in light of the fact that Mr. Derby was moving his office today which I think was the underlying concern. He said he would not be appearing here today. ALAMEDA:Commissioner Siracusa you okay with that? SIRACUSA:Well I would have had some questions for him. So I€m unhappy to hear that he will not be here to answer them. ALAMEDA:Mr. Torigoe? SIRACUSA:And this is in terms of getting more background on the whole thing so we canreallyunderstandthedynamics. TORIGOE:Yeah,acoupleof,Iguesspartofthedifficultywithsubpoenainganybody is that you have to make sure that provisions are made to get them here and for whatever reason that ball seems to have been dropped somewhat probably because the parties themselves didn€t feel that there was any particular need for their cases to bring the witness over. Is that; is that a fair representation of what happened? KRUEGER:That€s true as far as I€m concerned. When I had spoke to Mr. Kobayashi, Derek Kobayashi, I told him that I had subpoenaed Mr. Derby because the Commission wanted to hear from him and wanted to ask him questions with regard to this matter. I told him as far as my case was concerned I did not believe that I needed to have Mr. Derby present. I believe Mr. Matsukawa was contacted and I€ll let him speak for himself in that area. And with respect I€m sorry, with respect to the money because Mr. Matsukawa had offered to pay for the airfare for Mr. Derby to come over he communicated with Mr. Derby€s office I believe and told him to submit his request for payment for whatever airfare and ground transportation, he would pay it. And I believe Mr. Kobayashi was saying well that€s not sufficient, he has to be provided with the money ahead of time in order for him to be compelled to attend. So those were 2 other issues. MATSUKAWA:Yeah, basically we just had a- you know Mr. Derby was away from the island until January 7 and our office has been trying to leave messages with him to arrange for his plane ticket so we could e-ticket him etc. etc. I guess his office is in the process of a major move. They never got back to us until yesterday and so you know. Basically what I told his attorney is essentially what Mr. Krueger said, I said you know sorry we just never, he never called us up to get the money and the ticket and I didn€t need him because I had his DROA. ALAMEDA:Thank you. Commissioner? EXHIBIT B 25 SIRACUSA:But it€s my understanding that even if that, you had been able to make those connections his attorney was still advising him anyway that he didn€t have to answer the subpoena because it was off island. Is that correct? ALAMEDA:Mr. Matsukawa? MATSUKAWA:I think that€s basically correct. ALAMEDA:Thank you. MATSUKAWA:The scope of the subpoena couldn€t force him to come over the ocean I guess is how Derek put it. ALAMEDA:Okay. MATSUKAWA:And that€s a legal question that I guess he also posed to Ivan. ALAMEDA:Okay. Mr. Torigoe? TORIGOE:Yeah, so there€s some legal issues which if we wanted to try and force Mr. Derbytobeherewe€dbasicallyhavetogotocourtatthispointandgetanorderfromthecourt you know to enforce the subpoena. Doesn€t seem like the parties felt that that was something that was, they needed to do in order to make their cases. And I had no authority to do that you know on the Commissioner€s behalf at this point. Beyond that is the question of relevance and I, I guess again because the parties don€t see it, neither side really sees a need to question the Hawaii Conference Foundation I really wonder what the relevance would be of our further trying to get a representative here to make a record basically when the parties don€t see a need to do so. I think though Mr. Kobayashi did want to communicate that if there was a pressing need to try and get some answers from them that he would try to make his client available by telephone. But then we would have to try and set up some kind of conference phone here in order to do that. But his did want to, he did want to express that he does respect the Commission and the Commissioner€s authority and so he wanted to be cooperative to the extent that it€s practical. ALAMEDA:Well for me the fact that the parties have no objections to him not being here is satisfying to me but I don€t know about the other Commissioners. Commissioner Watanabe? WATANABE:Yeah, you know I for background purposes I think we have enough documentation in the file already as far as the DROA is concerned and as well as the warranty deed, the original warranty deed and the subsequent warranty deed that documents the sale to Mr. Ibbetson. So I think we might really be reaching if you€re trying to subpoena the church I think that€s more of a civil matter. Not something that we would have any jurisdiction over. ALAMEDA:Okay. Well I would like to move forward if that€s okay. Any objections with the Commission. I would like to finish this before lunch. So, do I have to make a formal dismissal of Mr. Derby, for the record? EXHIBIT B 26 TORIGOE:Well I think at this point it seems like the parties are basically in agreement that Mr. Derby will not be called so that€s sufficient I think. ALAMEDA:Okay very good. Seeing that there€s no more testifiers it brings us back to the closing arguments for the parties. So, if we could I guess start with the applicant. Closing arguments? KRUEGER:Thank you Mr. Chairman. Mr. Chairman, members of the Commission. Mr. Ibbetson is applying for a special permit to operate a 2-bedroom bed and breakfast. The grounds for issuance of the special permit are contained in rules 6-6 and 6.3B of the Planning Commission Rules of Practice and Procedure. Those matters have been highlighted by your, your, the Director and his Staff and we agree with their recommendation, we agree with all of the conditions for approval that they have set forth. What I wanted to address just briefly and I won€ttakealongtimesoyoucangetthisdoneandeatistheargumentoftheintervenor.The general argument I think boiled down to, from what I€ve heard boiled down to very simple language is that he believes that number 1 the church should not have sold the property to Mr. Ibbetson. Number 2 that somehow Mr. Ibbetson hoodwinked the Building department into giving him a building permit and allowing him to put his house up when he should not have been able to do that. And 3 that, that by allowing him to have a special permit for a bed and breakfast for up to 4 people, that that would be complicating an already bad situation. And I€d like to address each one of those just briefly. And as far as the church is concerned you know there€s no evidence that the church was precluded from selling the property to Mr. Ibbetson. And I think the Commissions questions or inquiry with respect to this application are really going far off field if have to go back to was it appropriate or inappropriate for the church to sell the property to Mr. Ibbetson. I don€t think we have much to go on there and in terms of whether or not the church was bound by the original deed from Mr. Kaiawe€s great-grandmother with respect to the use of the property whether that was honored in the sense that the graveyard that was there was going to maintain, be maintained and the descendants of the people buried there allowed to come in and visit the gravesites. But you know that issue isn€t before you today to decide. And, I think with respect to the questions that the Commission had a few minutes ago about the relevance of Mr. Derby being here kind of highlights the fact that isn€t before the Commission and it€s not something that should be considered by the Commission in terms of whether or not to grant the special permit that€s being requested today. The question of whether or not Mr. Ibbetson hoodwinked the County. You know I think the testimony was very clear from Mr. Lindsey today that, that Mr. Ibbetson contacted the State Historic Preservation Division through Kai Markell. That as a result of that Mr. Markell asked Mr. Lindsey to come to the property and to look at the property and to review the property with respect to the gravesites, which he did. He testified that, that they had no conditions for Mr. Ibbetson to proceed with his construction except that he make sure that there was no damage or injury to the gravesites and that they were maintained which he did. There were no other guidelines for this construction of his house. There were no other requirements that he put up walls or that he set back the house you know a certain number of feet from any aspect of the graveyard although he did that. We€ve heard testimony I believe from Nancietta Haalilio who was here and I believe Mr. Kaiawe as well that Mr. Ibbetson has dealt at all times in good faith with the heirs of the people who are buried there, has allowed them access, has allowed them to come in and has maintained a portion of those EXHIBIT B 27 gravesites himself. The State Historic Preservation Division sent a letter through Mrs. McEldowny in December again questioning certain aspects or telling him certain things about his construction, asking him to communicate with State Historic Preservation Division again which he did according to Mr. Lindsey. He did contact them and Mr. Lindsey did tell him what he needed to do in order to proceed with this construction. There was never anybody that said you can€t go forward or you can€t do the construction or you can€t put the house in the place where it€s located. So he did everything in accordance with what he was being told to do. And the question exists and Mr. Lindsey addressed it a couple of times as to whether or not State Historic Preservation Division even has jurisdiction to tell Mr. Ibbetson what he can and can€t do with respect to the graves that are there. But notwithstanding that he€s agreed to do everything they€ve told him to do and he€s maintained-. He€s, he has allowed as I said pursuant to his limited warranty deed and in response to Commissioner Siracusa those areas were specifically identified. As a result of the DROA that was signed between Mr. Ibbetson and the Church there was an addendum which said we have to do a meets and bounds description of those areas and identifythelocationofthegravesandidentifyeasementsforthem,whichwasdone.Andasfar as those locations being recorded it was recorded. The Bureau of Conveyances has the document that was attached to the deed. And the location of those graves by meets and bounds descriptions have been recorded in the Bureau of Conveyances so that is known and it is of record. He didn€t, Mr. Ibbetson didn€t do anything that he was not otherwise allowed or required to do. If he was told to do something he did it. If he was told to stop he would have stopped but nobody said you can€t do that. You know he did everything he thought he was required to do. So I don€t believe that the County or the Building Department were hoodwinked by Mr. Ibbetson. If there was a failure on the part of an agency to take action I don€t think you can hold that against Mr. Ibbetson or attribute that to him in terms of a denial of a permit today because he didn€t do something that he didn€t know he was supposed to do. So, I just don€t think that the evidence that€s before you today reflects that he did anything intentionally wrong or in error. You know the, the approval of the special permit will allow a maximum of 2 additional bedrooms to be used for bed and breakfast or 4 additional people. Mr. Ibbetson lives there by himself at the present time. If he sold the property to a family there could easily be more than 4 people or 5 people in a family. I don€t know how many of you have more than 4 or 5 people in your house. The, Mr. Ibbetson€s practice is to, to rent to professionals he doesn€t allow children. So there, the people that visit there are more interested in seeing the island than in ravel rousing and partying and that€s always been the case. You know, he€s had other bed and breakfast, he has the same clientele that would be coming to this one. The County has, has indicated that they feel that the application in it€s, you know, based upon the location of the house, based upon the fact that it would add additional rooms to the market for the tourism over here would be beneficial in the area where it€s located. The cars that would be passing the graves, you know you may have 2 additional cars and this is only and we€re talking 4 people if it€s booked every single night for the year. Otherwise you know you€re talking 2 people maybe one car passing by the gravesite. I don€t believe that would be extreme or would cause unnecessary result with respect to the use of the property or the effect upon the graves. I just feel that Mr. Ibbetson has done everything he should do. He€s gone through the contested case hearing today so that at least everybody can be more clear on the process and what took place out there. But I think at this point the Commission should go ahead and grant the permit to allow him to make a living at least with respect to the 4 additional people. So, with that I€d submitted. EXHIBIT B 28 ALAMEDA:Thank you Mr. Krueger. Closing remarks Mr. Matsukawa? MATSUKAWA:Thank you Mr. Chairman, members of the Commission. Last night I reviewed the transcript of the last meeting and I found it to reflect a lot of the common concerns that I think we€re all struggling with. It€s about something that some other agency should have or didn€t or perhaps prudently might have done and what€s your jurisdiction over another agency€s shortcomings. I think that€s pretty accurate. We have issues with how do you define terms like burial site. I mean we can go on and on I mean 6E is ripe for argument as to what cemetery mean, what burial sites mean. I don€t want to disagree openly with Mr. Lindsey but when you read the Statutes against the administrative application its, there€s doubt as to whether the statement that oh we don€t deal with active cemeteries is true. You know that€s a departmental interpretation of the Legislature€s Statute which makes no exception for well if it€s an active cemetery or something you know then we don€t have to cover those. If you read the Statute it doesn€t say that but this is not the time and place for that. I think its sufficient to note thatthereisaprovisionthatrequiresforinplaceburialtreatmentplansifsomeonedecidesto keep a burial site preserved in place like A or B. There€s a procedure to decide then how that happens and as Mr. Lindsey said the trigger is a permit application of some kind triggers that so the question is who bears that responsibility of triggering. You know it€s like an environmental impact statement, something triggers something. You€re going to build in a conservation district. You€re going to use County funds or State land and those are triggers that you consciously are aware of when you go in so what€s the trigger here. Well, the evidence is the applicant bought the property, he knew there were graves, he may dispute knowing whether this was in fact the Hoikeana Cemetery from many years ago but the record speaks for itself. The map provided with the DROA shows it to be a cemetery. The map says beyond A and B no statement is made as to other burials beyond what€s marked on A and B. It€s called a cemetery. He meets with Mr. Lindsey. He€s made aware that at least there is a process you know there is a process. So, the Building Division is not aware that this information is in the applicant€s hands. The map, the deed, the references in the deed to these burial sites, they have no idea; building permit is issued. After Mr. Lindsey€s site inspection the other letters come in. If I recall at the first meeting at the Hapuna Prince when the application for this special permit itself was submitted again there was no reference to the deed, no reference to the map, no reference to the specific burial sites or conditions as part of the application. And I think that€s when areas A and B were drawn onto that map in red for those of you who were present that day. So, the way I looked at this struggle and it€s if you look, if you look at the intervenor€s statement from the beginning the point being now why is all this relevant if it€s not your jurisdiction, it€s not your kuleana to decide whether the 6E is being enforced properly or not or whether these so called limiting conditions on the use of the property? Well the intervenor€s position has been well-. That renders the application incomplete. So you can€t proceed until you feel those issues are resolved because as a member of a adjudicatory body if you know that there€s potential problems concerning an existing structure that€s on the ground this is not something like an after the fact permit where you come in cause someone got caught building something without a permit in the shoreline areas so you had to come in and do an SMA permit application so you say okay shame on you but you add some conditions that you€ll do this, you€ll do that. You know here you have a structure that€s already there. As to why it€s there or should it be there in the first instance you know kind of falls outside your jurisdiction. But this guy is coming to you now for special relief now. He€s saying I want to, I want relief under the code I want a special permit. So our first argument is EXHIBIT B 29 that is this application complete under the circumstances and we€ll say no. And the other point is under the Statute a special permit is allowed when the use is unreasonable, I mean unusual which it is. But reasonable nonetheless. And we feel there€s enough evidence to show that under the circumstances it€s not reasonable. Thank you. ALAMEDA:Thank you Mr. Matsukawa. The Department? Closing arguments? SELF:Thank you, I don€t think I€ve been introduced yet. My name is Amy Self, Deputy Corporation Counsel and to my right Chris Yuen the Planning Director. Based on all the evidence that has come before the Commission the Planning Director€s recommendation still stands. He still stands by what he recommended months ago. The house is already built. The graves are protected, you€ve had evidence of that. SHPD, he contacted SHPD, they came out, they were satisfied that the graves were protected. That is what they do. This State Division is in charge of protecting burial sites. They were satisfied so what they are not in charge of, what theydonotdoistheydonotgetinvolvedingettingabuildingpermitwherethereisnoother land use. So it€s, I don€t know that this Commission should question SHPD because that is what they do that€s why they are the Division that they are. Also, the application is complete because he went through the routine that he was supposed to do. He followed all the procedures. SHPD said good you know you€ve done everything we expect you to do so I think the question before the Commission is getting back to the issue is should he have a special use permit for this bed and breakfast. And you should look at is this going to be a disturbance, is this, is he taking measures to protect the gravesite so that this is not a disturbance? And the evidence has shown that he has taken measures to do that. So, that€s why the Director is satisfied that he has followed all the procedures and recommends to the Commission that you approve this special use permit. Thank you. ALAMEDA:Thank you. There€s an opportunity for a final rebuttal by our applicant. Is there any closing comments Mr. Krueger? KRUEGER:Just one brief comment. ALAMEDA:Sure. KRUEGER:With respect to Mr. Matsukawa and I think that you know the fact that he feels the application is incomplete again has to do with his belief that other agencies may or should have done something that they didn€t do. And I don€t think that this Commission can really make a finding today that there was something that another agency should have done that they didn€t do with respect to the Construction of Mr. Ibbetson€s house. And I don€t think you should make that determination today. But I think that in order to determine that this application is incomplete in the respect that Mr. Matsukawa wants to do that you have to but I don€t think you€re able to. Nor do I think you should. And with that I€ll stop. ALAMEDA:Thank you. As the procedure goes we€ve heard all evidence up to this point. We€ve read the documents. As far as procedure wise Mr. Torigoe do I ask the parties to sit down? EXHIBIT B 30 TORIGOE:It seems that you€re at the point of closing the hearing. Your rule 4-22 says at the end of the presentation of evidence submission of briefs and oral arguments if any Commission or the Hearing Officer shall close the Hearing. So if there€s no further evidence to be produced and the arguments are done then you can go ahead and close the hearing and go into deliberations. ALAMEDA:I€d like to close the hearing if there€s any objections? GRAHAM:Question? ALAMEDA:Question. GRAHAM:I know before we had the opportunity to question the witnesses do we have opportunity to ask any question stemming off the closing arguments or not? ALAMEDA:That€s a good question. TORIGOE:Yeah, I think that would be in your discretion to allow. ALAMEDA:Sure, if you think that question can help you in your decision making. Mr. Graham? GRAHAM:Yes I€m, I€m kind of brief. My problem is so much of what is being presented to us and argued before us doesn€t seem germane to what€s going on in my head as to what the issue hinges upon and so I just want to-. I don€t want to be off base and I remember one comment that Mr. Matsukawa made in his closing argument there, I€m just wondering if that is maybe a little nexus to where I might understand something that I€m not understanding and not finding relevant and that is Mr. Matsukawa indicated that the applicant is coming to us for relief. Can you explain what you mean by that please? ALAMEDA:Also let me just interject real quick. In answering our Board€s questions could you just answer the question and not provide any additional. MATSUKAWA:Yeah he€s asking for what I consider to be a discretionary permit. So he, under existing zoning he cannot operate a bed and breakfast so he€s seeking a discretionary permit from you to be able to do that. In that sense I will use the word relief, relief from the existing zoning code. GRAHAM:Okay thank you. ALAMEDA:Mr. Graham, thank you. Any other direct questions? Commissioner Springer? SPRINGER:I have a question for the Planning Director with regard to the development of the conditions of this application. May that be taken up now or should that be taken up later? EXHIBIT B 31 ALAMEDA:That would be, now would be the time for that. So, go ahead. SPRINGER:Mr. Director I€m again looking at the December 2003 memo from Holly McEldowny and I wonder if in your opinion as the Planning Director does the consultation with the SHPD Kona Office satisfy the previous paragraph that says that the appropriate island burial council shall determine whether to preserve in place or relocate? ALAMEDA:Director? YUEN:With respect to what we did and the final word on this is that when we had the bed and breakfast application we sent to State Historical Preservation Division and they said everything was fine. So, and they€re aware of the situation on the site so they€re saying by telling us in the letter in response to our-. In response to our circulating this application to them they€re saying that they€re not requiring anything like a burial treatment plan. And what, what wentintotheirthinkinginmakingthatfinaldeterminationIcan€tsay.Ibelievethatreference that they may have made a determination that this was an actively maintained cemetery and hence not subject to a burial treatment plan. That would be my guess on that. But as far as, you€re taking things at a different point in time but when, in terms of what their comment were on the bed and breakfast they€re saying that the process is complete. ALAMEDA:Commissioner Springer follow up? SPRINGER:Is then the, and I should know this but refresh my memory. The burial program is that subset of the SHPD? YUEN:Yes. SPRINGER:Thank you. ALAMEDA:Question Commissioner Iwashita? IWASHITA:Thank you. I believe this question addresses the issue of reasonableness in terms of our going forth with this application. I€ll direct this to you Mr. Krueger. The exhibits include the original deed from Mikala Kaiawe to the church and then the deed from the church to Mr., I€m sorry is it Ibbetson or Ibetson? Ibbetson? And what concerns me again in this whole issue of whether its reasonable for us to proceed is that it seems to me the original language in the Exhibit C to the intervenor Dean Kaiawe€s exhibits says to have and to hold said premises with the appurtenances so that it may be used as a cemetery and so on and so forth. To me that€s rather clear language, what the property can be used for and it€s describing the entire .7 some odd acres. The deed to Mr. Ibbetson which is Exhibit-. ALAMEDA:Commissioner Iwashita I just like make sure, I know it€s important I just want to make sure that, you proceed with a question. IWASHITA:Yeah, I€m getting-. I gotta set it up. EXHIBIT B 32 ALAMEDA:Okay. IWASHITA:Exhibit H. Page2 of the encumbrances, item number 5 talks about the conveyance to Mr. Ibbetson being restricted, some sort of restrictions imposed by law. And I€ll just read what I believe to be the relevant words. Regarding the disposition of said land resulting from the dedication of said land for cemetery purposes okay. To me that, it can read, be reasonably be read to incorporate the limiting restriction on use in Mikala Kaiawe€s original deed to the church. That is to say that the entire .7 acres is to be used as a cemetery. Can you? Do you agree with me that, that-; those words can be interpreted in that fashion? ALAMEDA:Mr. Krueger? KRUEGER:I agree that that€s one interpretation. I think that the Supreme Court though in the State of Hawaii is, has been clear about the restrictions on property. And whether it€sacovenantinadeedoradeveloper€scovenantifthewordingisacceptabletomorethanone interpretation it€s ambiguous. And the courts have said that they, the Supreme Court in Hawaii has specifically said that they do not favor restrictions on the free use of real property. And that where there is ambiguity that exists with the respect to that they will strike it down. And that€s what the cases say so in this case the-. IWASHITA:Mr.-. Okay I have a follow. I understand your point and let me ask a follow-. KRUEGER:Well if I may, wait I just want to, well can I just follow up? IWASHITA:Please let me ask a follow up question? KRUEGER:I haven€t finished my answer yet. ALAMEDA:That€s okay if, but if the Commissioner is satisfied with whatever he, he€s heard so that€s fine. KRUEGER:I think it€s-. ALAMEDA:Excuse me, Commissioner Iwashita. IWASHITA:Let Mr. Krueger-. ALAMEDA:All right Mr. Krueger. KRUEGER:I€m sorry. The point I wanted to make was that when the first deed that you€re referring to from Mikala Kaiawe says that it may be used as a cemetery. It doesn€t say it has to be used as a cemetery, must be used as a cemetery, may only be used as a cemetery and the fact is there is a cemetery there and continues to be a cemetery on the property at the present time. So it doesn€t exclude any other use of the property and if they wanted to exclude other uses of the property they could have said that and they didn€t. EXHIBIT B 33 ALAMEDA:Thank you Mr. Krueger. Commissioner Iwashita? IWASHITA:And just follow up. There is no court decision that interprets these words are there? KRUEGER:There€s a court, there€s a Supreme Court decision that interprets restrictive deeds, restrictive covenants and deeds. IWASHITA:Mr. Krueger the question is, is there a decision by the court that interprets these particular words in these 2 particular deeds? KRUEGER:To the best of my knowledge this case has never gone to the Supreme Court so no. That€s the best of my knowledge. IWASHITA:Nor any other court? KRUEGER:This case has never gone to court, that€s correct, to the best of my knowledge. ALAMEDA:OtherCommissioners,I€mafraidtoaskifyouhaveanyotherquestions. But anything pressing that you think you need to know in order for us to move forward? Okay. Mr. Torigoe? TORIGOE:Thank you Mr. Chairman. I just wanted to-, in light of that last question I, I-. Something we talked about before is that generally private covenants are not something that this Commission is responsible for enforcing. So you need to be very careful I think about you know trying to enforce private covenants particularly when there is, there€s a legal issue that is not settled. ALAMEDA:Point well taken. Can I ask, now in terms of proceedings can the parties have a seat? TORIGOE:Yes if it€s. ALAMEDA:Okay, I€m going to ask that the-. I know you want to say something, I getting nervous Mr., Commissioner Iwashita. IWASHITA:You should be. ALAMEDA:Cause I don€t know if your question is more of a statement towards Mr. Torigoe but I would like to, to move forward if I could ask the applicants and the parties to sit down. Would you be okay with that? IWASHITA:Yeah I was going to ask for an Executive Session. EXHIBIT B 34 ALAMEDA:Why don€t we do this? Could I ask the parties, thank you for your time, could you now be seated? And I will take up additional matters as it comes forward. I want to put it out to the Commissioners. There€s 2 possibilities right now I€m hearing. One is the possibility of going into Executive Session, the other possibility of going to lunch. I wanted to-, what€s your pleasure fellow Commissioners. IWASHITA:Lunch is always pleasurable. ALAMEDA:Commissioner Graham? GRAHAM:Well I€m ready to move forward and I don€t think we need an Executive Session. ALAMEDA:Okay. I guess we could make a motion for Executive Session and if it gets deniedwecanmoveforward. IWASHITA:IjustwantedmoreclarificationfromMr.Torigoeonhislaststatementand I believe that, that would be best done in the Executive Session. ALAMEDA:Would you like to make a motion to that? IWASHITA:I move for Executive Session. ALAMEDA:Is there a second? Seeing none, motion denied. Commissioner Watanabe? WATANABE:I have a question of Mr. Torigoe. What exactly is the appeals process and through that appeals process would that court then have jurisdiction over the issues that possibly this body does not have and might these issues be straightened out there? TORIGOE:This is a contested case and so the decision that you make either way would be appealed by the party that is not satisfied with the decision. That would go through the Circuit Court. The Circuit Court would have jurisdiction over all of the issues that have come before you. WATANABE:Inclusive of the civil matter with regard to the actual transfer of the property, the original one? TORIGOE:Not directly because basically the court would be looking at this through the lens of the limits of your jurisdiction. So that you know in that sense what I would expect might happen is that if the parties intend to litigate all of these issues then I would not be surprised to see some related lawsuits filed for instance declaratory ruling requests. To interpret some of the language in the deeds and also to review the actions of SHPD. So, the Circuit Court would have jurisdiction to do those things. It might not do so directly in context of this appeal. But the appeal might be accompanied by other special proceedings that would cover those issues. EXHIBIT B 35 ALAMEDA:Thank you. Fellow Commissioners, in terms of the process. There€s a recommendation to approve this application by the Department. We can make a motion either way and then we can have discussion. Let me get Mr. Graham and then I€ll get you after. Commissioner Graham? GRAHAM: I just had a quick one for Mr. Torigoe. ALAMEDA:Sure. GRAHAM:Is the Special Permit run with property or is the Special Permit only good for this applicant with this property? TORIGOE:It runs with the property. GRAHAM:Thankyou. ALAMEDA:Mr.Iwashita? IWASHITA:ThankyouMr.Chair. ALAMEDA:Sure. IWASHITA:Mr. Torigoe I€m a little concerned about the last statement made and I don€t, because I€m not real clear the parameters on that which you raise so can you try to be little bit more specific about this private covenants and to what extent or not we€re able to consider that? TORIGOE:Yeah, I just. This has arisen in various contexts before and we€ve always as a Commission followed the general rule which has support in case law. That the Commission€s jurisdiction and authority in granting permits normally does not extend to the enforcement of private covenants that is deed covenants or that sort of thing. Basically your jurisdiction revolves around the particular statutory authority that you€ve been given in this case under Chapter 205 determining whether this is an unusual and reasonable use. IWASHITA:So, if hypothetically in this case Mr., the applicants, or an applicant in a hypothetical case an applicant receives title to property which basically says you can€t use this for example as a B & B. And you have an agreement basically by the buyer you know taking property under those terms that that€s, was agreed upon and the buyer turns around and comes and applies for a Special Permit to run a B & B. You€re saying we cannot take that agreement into consideration? TORIGOE:In the typical hypothetical case there will be issues you know arguable legal issues about whether the particular use is, is really legally prevented by the covenants in question. And that€s where you also run into the issue of the limits of the jurisdiction because the Commission is not empowered to operate as a court would to render judgments regarding the application of private covenants. EXHIBIT B 36 ALAMEDA:Commissioner Iwashita? IWASHITA:But if there-. My hypothetical posits a specific agreement you know not to do a particular use. In that case would it be appropriate for that Commission to consider that particular agreement? TORIGOE:Well you know there€s, there€s no way to really give a definitive answer because the hypothetical is not before us but I think in a case where the parties agree. You know that an agreement exists that says a certain thing that€s certainly something that you might give some weight to. WATANABE:Yes Mr. Chair. IWASHITA:CommissionerWatanabe. WATANABE:Iwouldthinkthatwecouldprobablycrosswordsonthistill12:00tonight. I€d rather not because I sense that the sentiment is going to make that point moot. So I would suggest that we move forward and possibly someone make a motion so that we can enter into discussion. ALAMEDA:Sure, Commissioner Watanabe am I hearing a motion from your end? WATANABE:This one is difficult for me but I move to deny, that the application for Special Permit Docket SPP 05-015 be denied in spite of the Director€s recommendations. ALAMEDA:There€s a motion on the table. IWASHITA:Second. ALAMEDA:That the applicant, the application be denied despite the Director€s recommendation. There€s a second by Commissioner Iwashita. Discussion? WATANABE:May I explain because-. ALAMEDA:Sure, Commissioner Watanabe. WATANABE:I truly like to be consistent. Generally I don€t have any problems with Bed and Breakfasts in particular. Generally I tend to agree with the Director I think his decisions are well thought through. I€m having real issues with this from the very beginning. I think because of what I perceive to be inconsistencies in the testimony. I think, as I recall Mr. Ibbetson testified that he was the party rather than the church that had such great concern about the burials. And yet under cross examination, if my recollection serves me properly he admitted that he wasn€t the author of the addendum to the DROA for that sale of that property you know. Mr. Ibbetson also said he you know again he was very deeply concerned but yet under cross examination he said well you know when I applied for the building permit and also when I EXHIBIT B 37 applied for the bed and breakfast I thought it wasn€t that critical a point to mention. To me I found that kind of inconsistent. Mr. Ibbetson also testified that originally he didn€t want to build a, he didn€t go ahead with this to build a bed and breakfast. So in my mind that€s telling me that he built this for his own personal residence. He€s living there currently, on his own. In my mind that also tells me that if we deny this special permit he has lost nothing because his original intent was to live there anyway, which he€s allowed to do until such time that some court or someone with jurisdiction can make a determination as to whether all of this was on the up and up or not. And the last part is the part that we€ve been struggling with I think. You know, I think we all kind of recognize that something went awry here in the transaction or at least we don€t feel comfortable with it. Yet, we don€t have jurisdiction over this. SHPD doesn€t have jurisdiction over this because maybe it€s an active cemetery etc. Nobody has jurisdiction over this. My idea is rather than cloud the issue let it go somewhere where someone actually has jurisdiction can make one decision either which way and say hey yeah this is right, this is wrong. Why clog the issue now. ALAMEDA:Okay. Anything else to add that Commissioner Watanabe did not add. IWASHITA:I just wanted. ALAMEDA:Commissioner Iwashita? IWASHITA:I just wanted to put on the record my concurrence with all of the Commissioner Watanabe€s remarks. ALAMEDA:Thank you Commissioner Iwashita. Commissioner Siracusa? SIRACUSA:Yeah. I believe that according to the, the conveyance that despite the fact that the word may is used I think its very clear that the intent was that the parcel be, was being donated to the church to be used as a cemetery in perpetuity of the fact that the church did not honor that, well they, you know by accepting that donation it€s implied that they would honor it but they did not ultimately in the long run and we have no jurisdiction over that as Commissioner Watanabe says. What we do have jurisdiction over is looking at whether this is a, an unusual use of the land, this request, or if it is reasonable. And, it is unusual but I believe that it is not reasonable. And I believe it is not reasonable by virtue of the fact that, despite the fact that the church commercialized it in the first place by selling the land to Mr. Ibbetson, having a bed and breakfast is not a reasonable use of land. Now, I€ve seen cemeteries that had you know a house built on it where people lived and maybe that person was the, the caretaker of the property. I think that€s reasonable. It€s reasonable to build a church or a chapel on cemetery property. I don€t think having a commercial venture is reasonable. Mr. Krueger was referring to traffic going by that was never my concern whatever happens on a road. I€ve seen cemeteries built right on the road. It€s the question that I raised originally was, was any commercial activity on any of those parcels, the same parcels that was, the cemetery was on. And it doesn€t appear to be that way. The closest thing he could cite was a basketball court, which is not commercial, it€s recreational. I do not feel it€s appropriate use. I feel that the land at the parcel as a whole should be considered sacred land because originally someone was buried. The ceremony sanctifies the ground and we talk about it as being a, a permanent resting place. EXHIBIT B 38 ALAMEDA:Thank you. SIRACUSA:That is why I will be votingfor denial. ALAMEDA:Other remarks before I ask for roll call. Go ahead Commissioner Graham. GRAHAM:I would just like to say I€m at least encouraged that I think Commissioner Siracusa€s looking at the same stuff I€m looking at. It€s what I€ve been seeing here but that€s about all. It seems to me the issue is by, that€s about all, she€s the only I hear that seems to be dealing with the same issue, the issue of whether allowing a special permit, bed and breakfast operation is something that should go forward not depending on its impact on the rest of the property. To me the strongest evidence for denial came from our testifier at the last meeting the woman from I believe she was Kau district who felt that it was inappropriate and spoke well and all.Inthatregardanditcertainlyfeelsliketomeit€sabitoutofmyplacetosayshe€swrong. However, I don€t find any fault with Mr. Ibbetson€s conduct in this whole regard and I don€t find in Mr. Kiawe€s written testimony that he has really put forward why a bed and breakfast is a bad step from where we are right now and why he doesn€t want that step taken. And I don€t believe that the intervenor has made any case before us at all today or last time essentially saying that the bed and breakfast operation will bring this, that and the other thing, which is prejudicial to the cemetery use of the property. And I guess in the absence of (inaudible) and based on Mr. Ibbetson€s what I find to be good behavior under a lot of scrutiny I€m in favor of this permit. ALAMEDA:Commissioner Springer? SPRINGER:I lament that the native population of Kaohe has dwindled. And that the congregation of Hoikeana Church has done the same. But our job is neither to interpret the truth or wisdom of historic title transfers and deeds. Nor as Mr. Torigoe has reminded us to enforce Chapter 6E. Our job is to evaluate this application on its merits and in my opinion those merits favor the applicant. ALAMEDA:Thank you. Any other Commissioners feel a need to talk? Go ahead Commissioner McCall. MCCALL:Yeah, I feel very uncomfortable about this situation. I, my heart tells me to vote to deny the permit and I€ve been trying to find a way to justify it. I feel that in some ways you know looking at this again being a prehistoric or whatever you know burial site is not perhaps appropriate. Looking at this as being an active cemetery, I€m having some issues with that too. But I guess I€m tending to lean more towards looking at this as being an active cemetery and if I look at this as being an active cemetery it€s an active cemetery that has no, I mean could be an appropriate use on agricultural land with a permit of course, if there is no permit. But I€m leaning in that direction and if that is the case I€m seeing this as being, the use here is a cemetery, it€s a cemetery with a house on it. If we€re then moving to a cemetery with a house on it with a commercial venture such as a bed and breakfast I€m seeing that then being that this is something that will change the central character of the land and that is one of the things that we are supposed to be looking at. So from that standpoint I€m looking to deny it because EXHIBIT B 39 I€m saying that, if I€m looking at this being a cemetery, I€m looking at a bed and breakfast being, changing the use of the land. So, that€s, that€s my justification but whether any of these things hold up I guess we€ll find out in the future. ALAMEDA:Thank you Commissioner McCall. Other Commissioners wish to put their thoughts on the table before we ask for roll? Commissioner Iwashita? IWASHITA:I wantto just concur with Commissioner McCall€s final remarks and make that as part of the record in my vote for denial. ALAMEDA:Okay. Motion was made by Commissioner Watanabe, seconded by Commissioner Iwashita. Any further discussion? Roll? DARROW:Thank you Mr. Chair. The motion before us is a motion to deny the application.CommissionerWatanabe? WATANABE:Aye. DARROW:CommissionerIwashita? IWASHITA:Aye. DARROW:Commissioner Galdones? GALDONES:Aye. DARROW:Commissioner Graham? GRAHAM:No. DARROW:Commissioner McCall? MCCALL:Aye. DARROW:Commissioner Siracusa? SIRACUSA:Aye. DARROW:Commissioner Springer? SPRINGER:No. DARROW:And Mr. Chairman? ALAMEDA:Aye. EXHIBIT B 40 DARROW:The motion passes 6 to 2. ALAMEDA:Thank you, you€ll be informed in writing of this decision. KRUEGER:Thank you very much for taking the time to consider this but just for the record I believe there are some Commissioners here that were not here at the last meeting. And I just wanted to indicate for the record that they€ve reviewed the testimony before today so that it€s clear that when they were voting on it that they read what had occurred at the last meeting. ALAMEDA:So noted. TORIGOE:Yeah I think that would be a good idea just put on record that you know all of the Commissioners who voted today basically have had, they€ve all reviewed the entire record and are familiar with all of its contents. If anybody is not, has not done that then you need tohavethatindicatedatthispoint. ALAMEDA:Okay,sonoted. Thisdiscussionendedat1:55p.m. Respectfullysubmitted, Lynette Marushige, West Hawaii Secretary EXHIBIT B 41