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HomeMy WebLinkAbout2005-01-21 TLAURANCE PLANNING COMMISSION COUNTY OF HAWAI€I HEARING TRANSCRIPT JANUARY 21, 2005 DALE LAURANCE (SSV 04-001) A regularly advertised hearing on the application of was called to order at 11:02 a.m. in the King Kamehameha's Kona Beach Hotel, Kamakahonu Ballroom, 75-5660 Palani Road, Kailua-Kona, Hawai€i, with First Vice-Chairperson Hannah Springer presiding. PRESENT:William GrahamABSENT & EXCUSEDC. Kimo Alameda Jeffrey McCallFred Galdones Rene SiracusaEarl Fujikawa FrancisSmith Hannah Springer Ivan Torigoe, Deputy Corporation Counsel Roy Takemoto, Deputy Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Kiran Emler representing Department of Public Works And approximately 10 people from the public in attendance APPLICANT: DALE LAURANCE (SSV 04-001) Continued hearing on an application for a Shoreline Setback Variance to allow the construction of a swimming pool with a shoreline setback of five (5) feet in lieu of the minimum requirement of twenty (20) feet. The property is situated along the south (makai) side of the Kona Bay Estates private subdivision road, Kona Bay Estates Subdivision, Kailua-Kona, Hawai€i, TMK: 7-5-5:37. SPRINGER:Were on agenda Item No. 2, the applicant is Dale Laurance (SSV 04-001). A continued hearing on an application for a Shoreline Setback Variance to allow the construction of a swimming pool with a shoreline setback of five (5) feet in lieu of the minimum requirement of twenty (20) feet. The property is situated along the south (makai) side of the Kona Bay Estates private subdivision road, Kona Bay Estates Subdivision, Kailua-Kona, Hawai€i, TMK: 7-5-5:37. Mr. Darrow, are you ready with the presentation for us? DARROW:Yes. Thank you, Madam Chair. If I may direct the Commissioners attention to the location map. Again, the area of this application is within North Kona District. The area more specifically is located just makai of the old Kona airport area which is identified here in gray. This red line running in a northerly-south direction is Alii Drive and- oh, Im sorry, EXHIBIT B Kuakini Highway. This identifies the Special Management Area line. Across from Kaiwi Street is the entrance to the Kona Bay Estates. This morning we wereable to conduct a site inspection of the property. As you enter into the Kona Bay Estates, this is identified here in the red dot. Looking at the site plan this shows the proposed single family dwelling that is under construction, a three-story single family dwelling. It also identifies the spa and, more specifically, the swimming pool that is the object of the application this morning. The applicant Dale Laurance is requesting a shoreline setback variance to be able to allow a minimum of 5 feet within the shoreline setback area in lieu of the minimum requirement of 20 feet. Also, just for clarification, this area along the south side of the property is a 10-foot public access right-of- way, 5 feet of which is on the applicants property. And along the makai side of the property we have a rock wall 2 feet in height, 2 feet in width; and this is also for public access purposes, also located on the applicants property. ThePlanningDirectorisrecommendingthatthisrequestbedeniedbythePlanningCommission. Id like to also bring to your attention that weve received several new pieces of material from the applicant and their representative, as well as an exhibit that has been submitted by the Planning Department. Recently, the staff has learned that there was a previous shoreline setback variance that was approved in the Kona Bay Estates on parcel 42. Weve submitted the approval letter with conditions for you for your review. In lieu of this, the Planning Director still feels that this request should be denied. Wed like to make one change to the recommendation: On page 3, in the third paragraph on the third line, theres the sentence that begins ‚The other developed lots which had received prior approval for the construction of a swimming pool were located outside of the shoreline setback area.ƒ Wed like to add in, ‚except for one of the lots.ƒ Are there any questions? SIRACUSA:I couldnt find the exact spot where that is. SPRINGER:Its on your yellow sheet. DARROW:Sorry about that, the recommendation. SIRACUSA;Ah, okay. DARROW:These- has everybody received all the information that has been passed out? SPRINGER:Jeff, your reference to the other setback variance application is that the correspondence to Mr. Lim? rd DARROW:Correct, dated January 3 , 1995. SPRINGER:Thank you. DARROW:Thank you, Madam Chair. 2 SPRINGER:Commissioners,anyquestions for the staff at this time? At this time Id like to invite the applicant or his representative tocome forward. Thank you. In addi-. VITOUSEK:Good morning, Madam Chair and Members of the Commission. SPRINGER:Good morning. VITOUSEK:Randy Vitousek, I represent the applicant Dale Laurance. Mr. Laurance is also present before the Commission this morning. SPRINGER:Thank you. Id like to invite any members of the audience who have signed up to testify or who wish to testify and have yetto sign up to please join with the applicantandhisrepresentativeinraisingtheirrighthands. Thankyou.DoyouswearoraffirmtotellthetruthoronthismatternowbeforetheHawai€i County Planning Commission? VITOUSEK:Yes. SPRINGER:Thank you. Anyone who is not yet signed up, please do so with the staff to your right of the room. Mr. Vitousek, Mr. Laurance, did you receive the Planning Departments background report and recommendation? TESTIFIERS:Yes. SPRINGER:You may proceed with your comments at this time, after you give us your name and your residential addresses, please. VITOUSEK:Yeah. Randy Vitousek, 75-170 Hualalai Road. Madam Chair, I think there are a couple of procedural matters that, I think, we need to address at the beginning. One is that, based on my discussions with Planning Director Yuen at an earlier hearing of the Commission, I think we need a stipulation from the Commission that this would constitute a contested case hearing, as that term is defined in Chapter 91 and in the Planning Commissions rules. This is the last hearing, this is the last hearing before an opportunity to appeal to Circuit Court; and so, what we need to agree is that for purposes of judicial review this does constitute a contested case hearing. SPRINGER:Thank you, Mr. Vitousek. Mr. Torigoe, if you could, at this time, brief the Planning Commissioners on the implications of Mr. Vitouseks comments. TORIGOE:Thank you, Madam Chairman. First of all, I would have to say that I would have to concur that this hearing would be a contested case. It is the last agency hearing 3 before judicial review for any aggrieved party. And that basically means that the provisions of Rule 4 which pertain to contested cases would basically apply, exceptto the extent that the parties agree to modify them. This is a good thing to keep in mind about all of the final decisions that you make are pretty much to be considered contested cases that can be taken up to court for review. Even if there is not an intervenor who formally is asking for, you know, a trial like proceeding, at least it still should be considered contested cases, and it can be taken up for review. This means also that the parties will havethe opportunity to call witnesses, cross- examine them and do other things that are allowed them under Rule 4. SPRINGER:Thank you, Mr. Torigoe. Commissioners, are there anyquestions about the authority and rules under which were conducting this agenda item? SIRACUSA:I-. SPRINGER:CommissionerSiracusa? SIRACUSA:Usuallyinacontestedcasehearingitsheldlikeacourtandthe intervenors can cross examine, both sides can cross examine. And Im wondering how that would work out here if we dont have an intervenor? How will we be able to illicit all the information? SPRINGER:Mr. Torigoe? TORIGOE:Thank you, Madam Chairman. Essentially, you have the applicant who is a party and, at this point, also under the rules the Director would also be a party. So these would be the primary parties and they could call also witnesses. So thats how that would work. SPRINGER:Commissioner Graham? GRAHAM:Directed to our Corporation Counsel. Is this any different than the prior application before us with Mr. Holmes where hes going for a permit also and then his next alternative would be to go to court if we turned it down, I guess? TORIGOE:Thats correct. GRAHAM:Thank you. SPRINGER:Were responding to a request to clarify the record on this matter. Commissioners, any further questions of Mr. Torigoe? In that case, Mr. Vitousek. VITOUSEK:Yeah, well, Im sorry, Madam Chair. The other, the other procedural matter is, I think, we need to confirm that there have been no requests to intervene. In other words, there have been no written requests to intervene and the Commission has not approved any requests to intervene. So that, as Mr. Torigoe said, the parties to this action are the applicant and the Department. 4 SPRINGER:Thats correct. VITOUSEK:Thank you. If I may, it was interesting I just received this morning, in fact just as the hearing started, this Planning Commissions decision dated January 3, 1995. Im concerned that I didnt receive it before; but, you know, that really doesnt matter, we have it. Basically, what this is, is this is, this is an approval of a shoreline setback variance that is essentially identical to the application thats now before you. This, this is approval of an application to construct a lap pool, deck and rock wall adjacent to and fronting their residence in Kona Bay Estates. It pertains to parcel 42. Referring to the exhibit, parcel 37 is the Laurance application shaded right there. Parcel 42 is right there. So this is four doors down. This, this, this is four doors down from the application thats currently pending before the Commission. And, in reading this decision of the Commission, you know, basically all one would have to do is change the application number and the TMK. And this- it just really shows that the Commission has specifically found that an application for a pool, in a location exactly such as this, meets all ofthecriteriaforashorelinesetbackvariance.AndsoIthinkthatisobviouslyanimportant piece of new evidence. It supplements the application. And I think it really makes it very clear that this applicant meets the criteria for a shoreline setback variance. In other words, the Commission has already found that an identical application four doors down meets all of the criteria. So I think the point is we start out on this, is to look at what the- look at what those criteria are. And, under the Planning Commission rules, the issue is whether the-. It says the structure or activity may be granted, may be granted a variance on the grounds of hardship only if: (i) the applicant would be deprived of a reasonable use of land if required to comply with the rule, (ii) if the request is due to unique circumstances and does not draw into question the reasonableness of the rule and (iii) the request is the best practical alternative which conforms to the purpose of the rule. My starting point now is that the Commission has already made these rulings with respect to a pool four doors down. In looking at the particular application and recall from the site visit that at Kona Bay Estates, 18 of the 27 parcels have pools in the same location as the proposed application. The houses on either side have pools. Now this, what this goes to, what this information goes to is whether it is a reasonable use of land, okay, thats the question. Is this a reasonable use of land? And when 17 lots in the same subdivision have that use in the same location and where the Commission has found previously that its a reasonable use of land, it is a reasonable use of land. The next question is, are there unique circumstances that do not draw into question the rule? In this lot there are unique circumstances, in addition to those that may have applied in Lot 42. In this lot, there are, you know, approximately 20% of the lot, thats the area shaded in blue on that exhibit, 20% of the lots are already the subject of easements dedicated to public access and public use. In other words, this, the buildable area of the lot has been reduced by areas of the lot being subject to recorded easements, which give the public the right to walk over and to use those areas of the lot. Mr. Laurance still pays taxes on those portions of the lot that are dedicated to public use. In other words, hes, he still pays property taxes on those sections, but the public has the right to use those sections of land 24 hours a day and for purposes of access and use to the shoreline. Because the lot has the public access use, it reduced the amount of the lot that was 5 available to build on. Therefore, and Mr. Laurance will explain to you what he was trying to accomplish in building his house but the argument that he could have made it smaller or he could have moved it is a little bit different when the area left to him to build is reduced by public access use. So we think that is a unique circumstance. And that is one of the unique circumstances. Another is, you know, the shoreline. When he acquired, the property the shoreline was located 20 feet makai of the rock wall. The shoreline has been recertified. You all have heard a lot about the changing nature of the regulatory process, changing nature of definitions of shorelines. Those, were not here to debate those issues because the shoreline is now certified at the rock wall. At the time Mr. Laurance acquired the property, the shoreline appeared to be 20 feet makai of the wall. That presents a somewhat unique situation. Then the other criteria, is the request the best practical alternative which conforms to the purpose oftherule.SoifMr.Lauranceisgoingtohaveapooltheonlypracticalalternativeavailableat this point is the approval of the variance. Now I understand thats a little circular but what were talking about is what is the definition of the criteria set out in the rule. And thats the definition. Its, it also goes on to say that before granting a hardship variance the Planning Commission must determine that the request is a reasonable use of land. The determination of reasonableness of the use of land shall consider the factors such as shoreline conditions, erosion, surf and flood conditions, and the geography of the lot as it relates to health and safety. Okay. These are the criteria to use to determine if its a reasonable use of land. We have offered evidence on each of these criteria. The shoreline conditions, you observed them. There is shoreline public access and use a portion of the property makai of the wall. The pool will in no way interfere with, the pool is located entirely mauka of the wall. The pool will in no way interfere with shoreline conditions. Weve offered testimony, it will not cause erosion. Again, it is located mauka of the wall. The surf and flood conditions, the pool is located above the base flood elevation. The base flood elevation for the lot is 11 feet. As you saw when you were at the property the, the, it is slab on grade. This is not an elevated structure. The structure is not built up on stilts. Im not sure what Mr. Rothstein was talking about when he said in his testimony that the house was built up on stilts. But, as you were there, when we were standing where the pool was going to be, we were on a concrete slab. That slab was the level of the house and, and so, this is not, theres not a flood issue involved here. It complies, the building complies with County flood requirements. The geography of the lot as it relates to health and safety, you know, again, this is a public access lot. The public access nearly surrounds the pool. If there are health and safety implications to the pool there are certainly health and safety implications of the public access, and frankly there, there arent. I mean, there, there are no, whether theres a pool there, or grass, or a deck has no impact on public health and safety. Dr. Richard Brock, well, weve offered evidence that this is going to be a salt water purified pool. Dr. Richard Brock has offered testimony that there will no adverse impact on coastal processes or on coastal biology. So, you know, in terms of what criteria are available, what criteria the Department is to use to assess a variance, the application meets the criteria. Theres a lot of, the reason the Planning Commission oh, sorry, the Planning Department made an adverse recommendation is, according to their statement, because they didnt demonstrate 6 hardship. They said the applicant did not demonstrate hardship and they dont really refer to the specific conditions that the rule states for granting or denying a variance. Thats something well get into. So, thats my initial presentation. If there are- what we would ask is simply that the Commission approve the shoreline setback variance under the same terms and conditions that it approved the shoreline setback variance for the parcel four doors down. SPRINGER:Thank you. Commissioners, any questions? Commissioner Siracusa? SIRACUSA:Yes, I am in possession of the letter you referred to that we all got at this very late date from the Commission to Mr. Lim who was the lawyer for the owner of parcel 42, and that letter is dated 1995. Im wondering when was the second shoreline certification done? VITOUSEK:Well,thepointMadamCommissioneris-. SIRACUSA:Becauseyousaidthiswasall-thatyoucouldonlychangethenameand the TMK number and it would be exactly the same. VITOUSEK:Sure. SIRACUSA:So I would like to know would it really be exactly the same or was this, would it have been the same for the first shoreline certification? And we never did find out when the second one was done. VITOUSEK:Yeah, what Im, what Im pointing out, Madam Commissioner, is that what youre holding in your hand is a shoreline setback variance. So whenever the shoreline was certified this pool was within 20 feet of that shoreline. The pool that was approved, in other words, if the pool was being, if the pool on Lot 42 was outside the shoreline setback they wouldnt need a variance. So, so-. SIRACUSA:I follow your point. But Im saying, however, the actual shoreline was not in the same place as it is now, because you showed us where it used to be and it was 20 feet makai of the wall. VITOUSEK:I appreciate that but what-. SIRACUSA:So, Id like, Id just like to know when that second certification was done. VITOUSEK:I think- I think we provided a copy of that as one of the exhibits; but the second shoreline certification I believe was approved in December of 2003. But, what Im saying is that, thats not really relevant because in 1995 in lot 42 they applied for a pool within the shoreline setback. So within 20 feet of the shoreline; and they granted the variance saying that you know it was appropriate to have a pool within 20 feet of the shoreline on that lot. Thats the same thing that were asking for. 7 SIRACUSA:But the shoreline was not where it is now, thats what Im saying; and thats the only point I wanted to make. SPRINGER:Thank you, Commissioner Siracusa. Commissioner Graham. GRAHAM:Mr. Vitousek, my sense of how we deal with something like this is, you know, we need to follow the legal framework. And, and, if the legal framework under which we operate for this permit is slam dunk yes or slam dunk no, regardless to any particular feelings we have, thats the way we go. And there may be a- a boundary in between where, you know, its a little discretionary; and then if its discretionary, you know, our feelings about what is fair and all that is what really comes to play. But as far as the legal framework, it seems to me the County has based their position, their recommendation against granting this on the- Im looking at the very bottom line of page 2, the County believes this will not- that a- refusal to grant this permit will not deprive the applicant of reasonable use of the land. So, to me, in the legal arena that is probablythekeyissueforus;andwhenIthinkaboutthatissuethepieceofthatsentencethat grabs me is land. So I just want to be sure were all on the same page. Is the land were talking about the specific area where the pool might be built or is the land the total parcel? Do you have an understanding of that one way or the other? VITOUSEK:Oh, yeah, I think its really clear. I think if you refer to Rule 8-10(b)(3)(B) it says, ‚Before granting a hardship variance, the Planning Commission must determine that the request is a reasonable use of the landƒ. And so what theyre talking about is, is the request itself, the request to use a particular piece of land for a particular purpose. GRAHAM:Thats not what I have here on- what I get from Planning Department. It says Rule 8-10(b)(3) states variance may also be granted upon finding that the proposed activity meets one of the following standards. Standard 3 is the hardship standard and it says, ‚The applicant would be deprived of reasonable use of the land if required to comply fully with this rule.ƒ So its not whether what he wants to do is reasonable, its whether if we dont let him do what he wants to do hes deprived of reasonable use. So,-. VITOUSEK:I think were reading different sections, Mr. Graham. I think youre reading section 8-10(b)(3)(A)(i) and I am reading section 8-10(b)(3)(B). And I think that the use of the term ‚reasonable use of the landƒ in (b)(3)(B) makes it clear that the reference to ‚reasonable use of the landƒ is the use of the particular parcel that theyre requesting use of. Because otherwise it would make no sense to say before granting a hardship, the Planning Commission must determine that the request is a reasonable use of land and that the determination of the reasonableness of the use involves factors such as shoreline conditions, erosion, surf conditions and geography. €Cause none of those issues are relevant to whether a house on the main lot is a reasonable use of land. GRAHAM:So getting back to where I started then, youre saying, your sense of the land is the specific piece within the parcel, not the parcel as a whole? VITOUSEK:Absolutely €cause we dont need a variance to build a house on a big parcel. And this section relates to when a variance should be granted. And I think that the 8 section that Ive quoted now makes it very clear that the term reasonable use of land is a reference to the use, the request, the requested use of land. And, were not requesting permission to build a house, we dont need permission to build a house. Okay. GRAHAM:Mr. Torigoe, does that strike you the same way that were hearing? TORIGOE:This is normally the kind of question that, you know what, in the past this is not the kind of question that you would ask your counsel on the record because this may end up, you know, being appealed. And so, if you want to ask me my opinion normally you go into Executive Session to ask that kind of question. You could ask the Planning Director as a party for his view of that. But if you wanted to ask me on the record then, you know, that is going to basically waive any kind of privilege that we may have to discuss the issue. GRAHAM:Since the document Im referring to was put forth by the Planning Department,ImwillingtoaskthattoRoy,ourAssistantDirector. TAKEMOTO:Therecommendationstemsfromadifferentpointofviewfromthe applicant. We interpret it as the area to be considered as the lot. Because in 10-, whatever that section B, subsection B states, it goes- it says, ‚The determination of the reasonableness of the use of land shall consider factors such as shoreline conditions, erosion, surf and flood condition, and the geography of the lot as it relates to health and safety.ƒ And the point about the house being a permitted use on the lot, a lot of times there are uses where it depends on what you can do in the shoreline setback area. I dont know, maybe a wastewater treatment plant where youve got to extend an ocean disposal pipeline through the shoreline setback area. You have to go through that area in order for that primary use to be permitted. So, in that case, what happens within the shoreline setback area determines what can happen on the entire lot. SPRINGER:Commissioners, other discussion at this time? If there is none Id like to invite the testifiers who have signed up to testify on this matter to come forward at this time. Im sorry, Mr. Vitousek, is that agreeable with you? Are you pau? VITOUSEK:Yes, yes. SPRINGER:Thank you. Perhaps if the applicant and his representative can stand back from the table. So far we have three people signed up: Josephine Keliipio, Dale Laurance, and Janice Palma Glennie, and Mr. Rothstein as well. Good morning, well take testimony from the three members of the public who have come forward starting with Ms. Keliipio. If you could please give us your name and residential address for the record. KELIIPIO:My name is Josephine Keliipio. I live at 76-168 Royal Poinciana Drive, Kailua-Kona. SPRINGER:Thank you. You may proceed with your testimony. 9 KELIIPIO:I think you should deny the request of the applicant. Im wondering why he cant downsize his house to move his pool back and fit his pool within, within the required setback. And I think that his lawyer has made some, I mean, all kinds of excuses with the public right-of-way for reasons why you should grant it; and I really think those are poor excuses, and you shouldnt grant this-this request. Thank you. SPRINGER:Youre welcome. Thank you. Commissioners, do you have any questions for the testifier? Commissioner Siracusa. SIRACUSA:Yes. Id like you to be a little more specific and tell us why you think those excuses are poor. KELIIPIO:Well, the excuses that he, he mentioned were that the lot owner already has provided like 5 feet of public access to the trail and, and, and the front part, that wall is also publicaccess,andthereforeheshould,youknow,since,sincethatparthepaystaxesonthat section that therefore he should have the pool where it is. And, and Im, Im thinking that perhaps, you know, the County needs to or somebody needs to condemn that area for public use exclusively so that we dont have those kinds of excuses any more for this landowner or people like him to make. And that, I dont know, those reasons are not good enough, in my opinion, for him to have his pool so close to the shoreline setback. SPRINGER:Commissioner Siracusa. SIRACUSA:Are, are you interpreting this as a native Hawaiian access rights issue? I, I notice from your name and your appearance that youre probably native Hawaiian. But you didnt say so specifically and Id like to know if thats the way youre interpreting this. KELIIPIO:No, Im not, just as citizen in Kona. SPRINGER:Thank you. Other Commissioners? Thank you, Ms. Keliipio. Mr. Rothstein, your name and address, please. ROTHSTEIN:Good morning, my name is Jerry Rothstein; and I live in 76-123 Royal Poinciana Drive, Kailua-Kona. And Im here representing PASH, Public Access Shoreline Hawai¡i. There are two givens here. One is a Shoreline Certification and the second, which establishes the shoreline at the base of the wall, and the second is the shoreline certification rules, which allow a shoreline setback variance based upon certain criteria which are defined as hardship. There are other things that have been brought up that I maintain are not relevant. Prior shoreline certification is not relevant to this. The fact that neighbors have pools is not relative, relevant to this. All but one of those pools have been put in without having to deal with a shoreline setback. The fact that theres a makai, 3-foot makai easement along the wall is not relevant. And, also, the prior shoreline setback variance on parcel 42, which was just brought up, I dont think is relevant either. That was another time, that was 7 years ago. That, no, it was a, it was a almost 10 years ago. It was a different Planning Commission, a different Mayor, a different Planning Director; and theres not necessarily any precedent value. If they did something one way, it is no bearing on what, on the decisions that you have to make today. 10 The only things that are relevant are the criteria for granting a shoreline setback, and thats hardship. And, they are the reasonable, and there are three of them. One of them is the reasonable use. The Planning Department came out with their recommendations and they, as we do, say that there is, that theyre not depriving the applicant of reasonable use. And he points out three things and these are the same points that I wanted to make. Very briefly, the applicant has submitted and received the building permit for a three-story single-family dwelling and an above ground spa on the subject property, which will be constructed outside of the shoreline setback area. Based on these permitted uses on the property, the applicant has not been deprived a reasonable use of the land. Then a second aspect is, another reason given by the applicant is that there have been 18 other developed lots within the subdivision that have constructed swimming pools previously, and that it would be a reasonable and accepted use of the property. The other developed lots that have received prior approval for the construction of a swimming pool were located outside of the shoreline setback area. And, as I said, parcel 42 is just not, not necessarily relevant.AnditsabsolutelynohardshipbecauseotherpeoplehavepoolsthatMr.Laurance should have a pool. Its a frivolous reason. And, finally, the applicant had options available to decrease the size of the first floor area and relocate the pool outside the shoreline setback area, rather than maximize the building area and locate the pool within the shoreline setback area. So, there was options and he, this is, did not have to, have to build a house so big as to force, if he want to have a pool to have it within the shoreline setback area. To me, oh, the other thing is the practicable alternative; and the practicable alternative is no pool or having built the house in a manner that the shoreline setback variance or the, building within a shoreline setback was not necessary. To me, whats at stake is the integrity of the shoreline setback variance process. To me, this is a frivolous request and apparently so does the Planning Department think it approp-inappropriate. If you grant this shoreline setback variance, based on this being a hardship, then you are, as I see it, undermining the meaning of hardship, and with it the bases of granting shoreline setback variances. Accordingly, I ask that you deny this request for a shoreline setback variance as it fails to meet the requirements necessary to grant such a variance. Thank you. SPRINGER:Thank you, Mr. Rothstein. Commissioners? Commissioner Graham. GRAHAM:Mr. Rothstein, I know you advocate for public interest issues and have done so for many years. If we take the legal issue aside for a minute, just for common sense feeling about this, and we take aside precedence issues and just look at whats there, is there any particular way the public interest would be harmed by building this pool at the place he wants to build his pool? Do you have any particular public interest you can see being harmed? ROTHSTEIN:Well, anytime you have a pool 5 feet from the public access thats impinging on public access; and the other places where they may have been close, we had no choice. It was a- the setback was 20 to 40 feet makai. But here we do have a choice and, therefore, to allow a pool so close to the wall almost as if you could trip and youd fall into the pool, thats how close it would practically be. So for that reason, that is the, that is the impact. 11 More and more people are using that trail. And the way we have a choice not to have a pool 5 feet from the wall when it is, it is not a hardship to do that, is a reason why it impacts the public interest and should not be approved. GRAHAM:Could I just briefly think that what youre sort of saying is like the ambiance of the public way is harmed? Is that kind of what youre getting at then? ROTHSTEIN:Well, ambiance is kind of a, kind of a weak word. Its a- but, but you might say that. Thats right where you have a pool where people are walking. You have people sitting in the pool, swimming in the pool, people walking right by, right over there, thats how close it is. Its not, its not a good situation to have it like that when you have a choice. GRAHAM:Thank you. SPRINGER:OtherCommissionersanyquestionsforthetestifier?Commissioner McCall, then Siracusa. MCCALL:Yeah, my question, I brought this up during our site visit I, this might be the best time and I think Ill probably direct it to the Planning, Deputy Planning Director. Its more just to clarify when the shoreline was recertified and moved approximately 20 feet more mauka, the Laurance property. Well, their title did not change on any of this property. I mean the pins are still there, so it is, in effect is, the public easement over the property. There is a, I believe theres a, I dont know exactly how to phrase this. But, in effect, it was, you could say it was a taking of, you know, by the government of land, you know, where government sometimes will compensate people when they take, as a taking. Lets say if you, if the government down zoned a piece of property, to me, in effect that is what happened with this from 20 feet, 20-foot section was in effect down zoned, you know, to a point where he couldnt use it. But I dont believe there was any compensation for that. Im just, Im not sure about the, on this, is there any other, you know, precedence in this type of situation? TAKEMOTO:It does get rather complicated, the shoreline. But the certified shoreline is a tool of regulation, it doesnt change title. So the only significance of the certified shoreline is where you start measuring the regulated area. So, in this case, because the certified shoreline is at the base of the wall thats where we start measuring the 20- or 40-foot shoreline setback area. Your question about -. (End of tape) MCCALL:If you own- if you bought a shoreline lot and then the lot is all covered and extended, its that you now no longer own a shoreline lot. TAKEMOTO:Yeah, that gets into title questions that I think were getting kind of off track for this. MCCALL:Thank you. Retract it. 12 ROTHSTEIN:May I try to answer some of those questions? SPRINGER:Is that question posed to the testifier as well? MCCALL:Sure. ROTHSTEIN:If its metes and bounds as the makai boundary, then the person owns up to the metes and bounds, and that happens a lot of times with Land Use Commissions. But a lot of times the shoreline, the certified shoreline becomes the makai boundary; and then thats subject to change. The fact is that a shoreline is certified for one year. And next time it could come around, which could be never, unless the property owner wants to have it done again for whatever reason it stays wherever it is put, at the shoreline certification. About public access, you know, theres a 3-foot easement along that wall. But whether the shorelineisatthewallor20feetout,thepublicstillhasthesameaccess.Andaboutataking, thats very interesting, you know, youre concerned about the possibility of taking. Well, Ive been watching, Ive been involved with this subdivision for, for 20 years going back when it was occupied by the Hawaiians at Kukailimoku Village. And I can tell you that if there was any taking it was taking of the public shore, because almost all those shoreline certifications are too far makai. This happens to be one that was done correctly. There are few others that are done correctly. But for the most part the public has lost a lot of public shore as a result of shoreline certifications done a long time ago before- before there were the rules for public notice that there are now, so the public had no opportunity to participate in the process. So, if theres any loss its the public, its the publics lost shore as a result of the certification in the past; and its good when, when you can have something finally corrected and done right, as happened in this case. SPRINGER:Thank you, Mr. Rothstein. Commissioner Siracusa, did you have a question for the testifier. SIRACUSA:Yes, well, actually, I forgot the question I was originally going to ask because of all the side-tracking. But Mr. Rothstein brought something else up and that was about how much land has been lost. I understand like, for example, the highest wash of the waves. But when the state surveyor comes out to do the shoreline certification, does he always come out to certify a parcel shoreline at the highest tide of the year and at the highest time of tide? ROTHSTEIN:First of all, the state surveyor rarely comes out to do that work. Its done by private surveyors owned, hired by the property owner. And what was the other part of the question? There was a- who does the survey-? SIRACUSA:Whether the surveys are done at the highest wash of the waves. ROTHSTEIN:Oh, at the high tide. No, theyre done anytime the application is put in 12 months of the year. And theres a very fundamental flaw the way shorelines are certified. And, I tell you from personal experience that an overwhelming majority of the time they are done too far makai resulting in the loss of public shore. There is legislation in this, in this current session that hopes for the third year in a row to try to resolve some of these problems. 13 SIRACUSA:When we were on the site visit and we were all walking along the wall, some of us ended up stepping off the wall and someone made a joking remark, ‚oh, youre trespassing on private property.ƒ And, I could see your point where it could be very easy to- if a bunch of people are walking along to trip and fall off the wall; and if the pool were right that close there could be an accident and that Mr. Laurance, of course, I assume would be liable. So I can see that, when were talking about the reasons for variances or denying them that the question of public safety could conceivably come in there. Would you like to comment on that? ROTHSTEIN:Well, that, that is one of the points, public safety. There- public can walk makai of the wall throughout the entire subdivision as a result of a lawsuit pursued by the Kona Old Hawaiian Trails Group and through Native Hawaiian Legal Corporation. There is a 3-foot easement on the side of the- on the makai side of the wall, so, which the subdivision is supposed to be taking care of. Theyre supposed to be clearing it and maintaining it; and theyre not doing averygoodjobofthat.So,Ithink,didIansweryourquestion? SIRACUSA:Yes. ROTHSTEIN:Whatmy,whatmymostimportantconcernisthatthewaythisisgoingto be perceived by people, and accurately so, that my, I have a, my neighbors have pools and I want a pool, too, and thats my hardship. And thats what this is really all about. No matter what all this other testimony says, thats the bottom line. Its not a hardship and theres no reason to grant the variance. SPRINGER:Thank you, Mr. Rothstein. Are there any other questions of the testifier? Seeing none, Ms. Palma-Glennie, could you please give us your name and your address for the record. PALMA-GLENNIE:Yes, Aloha. My name is Janice Palma-Glennie and Im at P.O. Box 4849, Kailua-Kona. Thank you for allowing me this opportunity to speak today. To allow the Laurances request for a variance for an already minimal shoreline setback would be a breach of the public trust. Mr. Laurance bought his property knowing the restrictions upon it. In addition the new findings by the applicant that there was a similar variance given nearly a decade ago is moot. First, a variance is not a given, its a gift given by the public to certain landowners; and, second, two wrongs dont make a right; and also, third, luckily weve learned that what is reasonable to one person can be very unreasonable to the general public and the public trust, especially when it relates to shoreline. Owning coastal property has extra luxuries as well as responsibilities attached to it. Not encroaching upon the public domain is one of those responsibilities. I ask that you, in agreement with the Planning Directors recommendations, deny the above variance; and I appreciate the opportunity to provide this testimony. Thank you. SPRINGER:Thank you, Ms. Palma-Glennie. Are there any questions of the testifier? Thank you, you may step back from the table. Mr. Torigoe, may we request to go into Executive Session for the purpose of discussing with you our obligations under the definitions of the Planning Commission rules? 14 TORIGOE:Yes, if you want to ask, ask me for legal advice with respect to what some of the options are under the rules you can do that. You may want to wait until the applicant has completed his case or, or not, you know, but its up to you. SPRINGER:I think that the answer that you may give me with regard to some of the definitions that were working under would be helpful to hear the rest of the testimony. VITOUSEK:Madam Chair. May I make one point before, if theres going to be a motion. I do recall, this relates to, I hope relates to the issue. But, I do recall Mr. Takemoto saying that his interpretation of the rule was that land means the whole property; and so what I wanted to point out at the start of the executive session is that under Section A.3 there is a definition of the term lot, which refers to, means a parcel or track of land in established subdivision. And so, I just wanted to point out that theres a- that there is a definition of the term lot and that that term is not used in the standard for hardship. In other words, it says land not lot. And,ifithadmeantthewholeparcelitwouldvesaidlotbecauseitdefinedit.SoIjustwanted to raise that before the Executive Session, I mean, if thats going to be the issue considered. SPRINGER:Thank you, Mr. Vitousek. VITOUSEK:Im sorry, may I raise another point along the same line, that you might want to discuss with counsel. I just want to make this take to go quicker. I also note in Section 8-3 that theres no definition of hardship. And I dont see a definition of hardship as distinguished from- as distinguished from a reasonable use of land anywhere in Rule 8. And so Id ask that you also consider HRS 205A-46(b) which says, and as youre aware HO 205A is the Coastal Zone Management Act which creates the shoreline setbacks and which delegates responsibility to this commission. And its a direct allegation. In other words it isnt to the County and then to the Commission, its a direct allegation to the Commission as the authority. But that section states, ‚Hardship shall be defined in rules adopted by the authority under chapter 91.ƒ And thats a fairly unequivocal statement that the Commission is required to adopt rules defining hardship in order to deny someone a variance based on a hardship. And so, I just- you know, rather than bring this out in testimony later on before the executive session I thought Id raise that now and say that, you know, its our position that- if there is a definition of hardship in the Planning Commission rules, it is those 3 criteria set out in 8-10(3)(A)(i), (ii), (iii). Im not sure thats the definition €cause when I read the Planning Directors recommendation he talks about hardship like it was something other than just a reasonable use of land. And so, you know, if hes applying some standard other than just what a reasonable use of land is, then hes applying a standard that exists in his head maybe and doesnt exist in a rule created by Chapter 91 and published. So thats our position, just give you a preview, thats where youre going in Executive Session. Thank you. SPRINGER:Thank you, Mr. Vitousek. ROTHSTEIN:May I respond to what hes saying? SPRINGER:Im sorry, Mr. Rothstein, were going into our deliberation on this matter before us now. Commissioners, Mr. Vitousek did touch upon some of my concerns. I am 15 interested in understanding the definitions under which were operating and going to be making judgement, and what our legal parameters and responsibilities and vulnerabilities are. Is a- if you concur may we have a motion on that? Commissioner McCall. MCCALL:I move we go to executive session. SPRINGER:Is there a second? SMITH:I second. SPRINGER:And a second. TORIGOE:Yes,andfortherecordthemotionwouldbetoconsultwithlegalcounsel regarding your legal rights and options under the rules. SPRINGER:Thank you. It has been moved by Commissioner McCall and seconded by Commissioner Smith that we go into executive session. May we have a roll call vote please, Mr. Darrow. DARROW:Thank you, Madam Chair. Commissioner McCall? MCCALL:Aye. DARROW:Commissioner Smith? SMITH:Aye. DARROW:Commissioner Siracusa? SIRACUSA:Nay. Because I think everyone, if were going to talk definition everyone should be able to hear them. DARROW:Commissioner Graham? GRAHAM:Ill vote aye. DARROW:And Madam Chair? SPRINGER:Yes. DARROW:Im sorry, Madam Chair, the motion does not pass. 16 SPRINGER:Thank you. I would turn to Mr. Torigoe then. The request was not to discuss definitions but our responsibilities and our limitations and vulnerabilities under the rule. Do we just proceed at this time now? TORIGOE:Well, its up- its up to the Commission. I feel a little bit reluctant to discuss openly on the record certain things which will pertain to my representation of you should this go to a circuit court appeal. Because, for instance, what I say here and now about the definition of these rules is going to be quoted back at me in whatever position I take at circuit court, unless it is done in executive session. Thats why we normally go into executive session when you want to discuss, you know, the legal position that I would be taking on these rules. SIRACUSA:Arent these definitions written down somewhere already? TORIGOE:Well, as you can see there are attorneys who will try to draw different inferencesanddifferentmeaningsoutofthewordsthatarewrittenhere.Andsowhat-itsounds like what some of you would like to ask me is really from my independent standpoint as a non- party and advising you what I think, you know, the appropriate meanings and applications should be that are drawn out of these words. And whatever I say on that, on the record here, would be used in circuit court, unless it is done in executive session. Also, well, I guess what you would be doing then is saying that this-my communications with you on this matter would not be privileged under the attorney/client privilege. And so there would be- it would be very difficult thereafter to have discussions with me about these definitions without those discussions being discovered and also used in court. SIRACUSA:I see. In that case, would it be appropriate for me to change my vote, or would we have to make a motion to start all over again? TORIGOE:I think, yeah, you should- you could make a motion to reconsider since you were the person who voted against it. SIRACUSA:I would like to make a motion to reconsider. SPRINGER:Thank you, Commissioner Siracusa. Is there a second? MCCALL:Second. SPRINGER:Thank you, Commissioner McCall. Moved by Commissioner Siracusa, seconded by Commissioner McCall, to reconsider. Is there any discussion? Mr. Graham. GRAHAM:Id just like to say- I am supportive of Commissioner Siracusas reluctance to go into executive session. So, the particular things that Ive heard brought up are the use of the word ‚landƒ and the use of ‚hardshipƒ; and I would just like to say that, you know, my intention in going along with having executive sessions that we restrict our deliberations to just these two specific and any other specific legal issue that Mr. Torigoe or the Commission 17 Chairman wishes to bring up, but that we will talk of no other things that wont be available to the public. SPRINGER:Thank you, Commissioner Graham. Mr. Darrow. DARROW:Thank you, Madam Chair. Commissioner Siracusa? SIRACUSA:Aye. DARROW:Commissioner McCall? MCCALL:Aye. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner Smith? SMITH:Aye. DARROW:And Madam Chair? SPRINGER:Yes. DARROW:The motion passes five to zero. TORIGOE:For the record you should take another vote on- on the main motion, have another main motion. SPRINGER:We need- now we are reconsidering the previous motion. If we could have a motion to go into executive session or not. We need a motion for executive session. SIRACUSA:Okay, I move that we go into executive session. MCCALL:I second. SPRINGER:Moved by Commissioner Siracusa, seconded by Commissioner McCall, that we go into executive session at this time. DARROW:Thank you, Madam Chair. Commissioner Siracusa? SIRACUSA:Aye. DARROW:Commissioner McCall? 18 MCCALL:Aye. DARROW:Commissioner Graham? GRAHAM:Aye DARROW:Commissioner Smith? SMITH:Aye. DARROW:And, Madam Chair? SPRINGER:Yes. DARROW:Themotionpassesfivetozero. SPRINGER:Thankyou. Beforewegointoexecutivecommission,executivesession,Mr.Vitousek,doyouhave witnesses that youll be calling? VITOUSEK:Ive offered written testimony. SPRINGER:I see. VITOUSEK:And so the only, the only live witness I would offer unless the Commissioner wants to hear from anyone would be Mr. Laurance. SPRINGER:Okay. VITOUSEK:I have asked Mr. Mooers and Mr. Terry be here because they are both prime consultants on it. But, but I have submitted the written testimony and theyll be available to be questioned or cross-examined. Id also want to question the representative of the Planning Department. SPRINGER:Thank you. Thank you, well- when we come out of executive session, well continue hearing this application and take a lunch break after that. EXECUTIVEThe Chair called an Executive Session at 12:47 p.m. SESSIONThe Commission came out of executive session at 1:12 p.m. by a motionmadebyCommissionerMcCall,secondedby Commissioner Smith, and unanimously carried by a voice vote of all Commissioners in attendance. 19 RECESSEDThe Chair recessed the meeting at 1:12 p.m. RECONVENED:The meeting reconvened at 2:27 p.m. SPRINGER:Id like to call this meeting of the Hawai¡i County Planning Commission back to order. Were on agenda itemnumber 2. The applicant is Dale Laurance (SSV 04-001). Thank you, Mr. Vitousek and Mr. Laurance. VITOUSEK;At this time, Madam Chair, Id like to offer the exhibits and the written testimony into the record. SPRINGER:Thank you. Mr. Director, do you have any objections to the entering of the exhibits by the applicant? TAKEMOTO:No objections. SPRINGER:Thank you, Mr. Vitousek. Is that the binder that you distributed to us? VITOUSEK:I think that the written testimony was distributed earlier and then the binder are the exhibits. Okay. And so- am I up then? SPRINGER:Proceed. Youre up! VITOUSEK:Thank you. Id like to ask Mr. Laurance to testify briefly. SPRINGER:Thank you, Mr. Laurance. May we have your name and address for the record,please? LAURANCE:Yes.ImDaleLaurance.ImtheownerofLot37inKonaBayEstates and my address is 13731 Romany Drive in Pacific Palisades, California. Thank you letting me be here today. VITOUSEK:Mr. Laurance, can you just give a very brief introduction to yourself and your background. LAURANCE:Well, Im retired, and I just retired in December, but I had been planning to do so for some time. And, I currently live in a suburb of Los Angeles and Ive been bringing my family to Hawai¡i for many years and to Kona all the time, as much as I can for the last few years because I found I really love this place. I love the town, the climate, the people, everything. Its just when I like, when I get off the plane I feel like Ive come home. And so now Im retiring and Ive been planning on building a home here for quite some time. I bought this lot 3 or 4 years ago, and hired local architects and local builders to start building this home a little over a year ago. VITOUSEK:Okay. And, Mr. Laurance, what- do you have a family? 20 LAURANCE:Yes. My wife and I, my wife would have been here today but one of my daughters has been ill and she was taking care of her. But, we have 4 grown daughters and we have 3 grandchildren. And with 4 grown daughters, I hope to have more than a dozen grandchildren before this is all over. And, one of the- the reason why Im building this home, you all saw it this morning, its a big home and Ive been fortunate to be able to afford to do things like that. And, I have a- I want a big home because I want my kids and their spouses and especially my grandchildren to come to Kona and spend lots of time here and have- we have a very close family. We spend many holidays together and birthdays; and its- thats a big house but it will be full when theyre all there. And so, thats why Im- Im doing it; and this is the place weve been dreaming about building the house. VITOUSEK:Okay, so Mr. Laurance, when did you- when did buy this property? Well, let me just back up. You, you came and looked at the other properties in Hawai¡i, is that right? LAURANCE:IlookedatplacesallovertheHawaiianIslandsandwanderedintoKona one day and said, wow, this is it. And so I started renting homes here. I rented homes in Kona Bay Estates especially because I looked at the resort areas and it wasnt- didnt fit our style. And, I looked other- I just, we looked everywhere and this was a place where it could be close to the water. My grandchildren- Im- pardon the digression, but for me my warmest childhood memory is time with my grandfather; and I cant explain how much that meant to me. And I want that same sort of relationship with my grandchildren; and Ive worked very hard to do that. And my grand- my eldest grandson and I we go fishing together, we go swimming together, so when we saw this place in Kona Bay Estates and there was an empty lot avail-. We stayed here a couple of times, and then an empty lot- a lot came available, someone was selling. So I bought this lot 3 or 4 years ago. VITOUSEK:Okay, and so when you bought the lot did you, did you realize that- that it was, you know, in- that public access ran over the lot and that there would be a lot of „ a lot of people around? Is that something you understood? LAURANCE:Not only did I understand it having renting homes down there, I had experienced it myself. There are always people fishing out there. But actually it encourages me because that means the fish are biting, or theyd be somewhere else. No and- the people walk by on the wall, Ive stayed down there for weeks at a time and people walk by all hours of the day and night; and its okay. I mean its- theres lots of people use that place, and my family uses it, and other people use, and lots of public access. I have no problem with that. We were joking about who owns that land. Well, I pay the taxes on it but the public really owns it, €cause I cant use it and they can. And, its okay, its okay. Its Hawai¡i and thats, you should do. Thats fair and reasonable; and I have no problems with any of that. So I was, but I was very much aware of these things when I bought the lot. Its okay. VITOUSEK:And so you were aware- where was your understanding as to where the shoreline was at the time you bought the lot? LAURANCE:Well, I asked specifically at the time when I was buying the lot, I looked, I talked to local builders, local architects. There were pools being put in, in that area. The 21 shoreline setback if you look at that it kind of goes along and now it jogs in from my house and goes back out again, or at least if you look at the last assessment. I realize theyre only good for a year, Im not trying to play lawyer. Im just saying the shoreline assessment got moved inland from my lot. I had no idea that was happening. I had already designed and paid an architect, Bill Weigang, a great architect whos here is town, to design the house for me, for my family. Wed already done all that work; and then when we submitted the application it came- he realized and they all realized, no, wait a minute the shoreline certification got moved inland on us. But at the time, I had already spent all the money to design the house. It wasnt a matter of- its sort of- Im not blaming anyone, but this was a big surprise. I had no idea because you saw- there are pools seaward of where we are, pools a lot closer than 5-foot to that wall. You walked by two of them this morning. So at, when we saw that we thought, anyway, it was a surprise. VITOUSEK:It mentioned that you could have reduced the size of your house and somehow adjusted the size of your house and put the pool in a different location. What, whats your-? LAURANCE:Well,Icouldhavepaidthearchitecttoredothewholehousebutthiscost a lot of money for the architect to do the house. I put a chunk- you know, he would, he would do it, hes in the business to do things, hes a nice fellow; and if I said no, I want to have the pool-. But then, not only would I have the expense but then the house would be smaller. And I really, although its a big house, Ive got- with 4 other, 4 families to come in that house, I wanted the house to have the room in it. So, and besides, I just at the time anyway, not understanding everything I understand now, I just, I just thought since everybody else had the pools out there and I was going to- it just seemed like everything was going to be okay. I, I could have made the house smaller but- it would have cost a ton of money, a ton. VITOUSEK:Okay. And so that, and so you understood then that you had to apply, in order to put the pool in that location, you had to apply for a shoreline setback variance, isnt that correct? LAURANCE:Yes. VITOUSEK:And you understand that the Planning Commission has the discretion with respect to whether to approve or deny the shoreline setback variance? LAURANCE:Absolutely. Thats why I came today to beg. VITOUSEK:And, and among the criteria are the, the question whether this is a reasonable use of the land. And I just wanted to have, you know, the Commission hear your statement in terms of whether you feel this is a- a swimming pool in that location is a reasonable use of land. LAURANCE:Rather than logic let me just talk from heart. I want my grandchildren to argue with my- with their parents- my daughters that they could come spend their summers with papa in Kona. Now they are other pools, public pools I could take them to. But having the ocean there to fish in and having the pool there and the things around us, I think will help me sort 22 of steal them away for time I can have with my grandchildren. Ill go back to the mainland to see them too but, but this- Lynda and I live our lives. We love Kona and we want this home here, and how we live our lives here. This will really- if we cant have the pool it would- other people may think its a hardship for- and in some senses its not but it will change what we do and how we do things. And so I, I just in- beg you to please let me do this, €cause I dont think I harm anyone by doing it. VITOUSEK:Yeah, I dont- I dont have any further questions. SPRINGER:Commissioners do you have questions for the applicant or his representative? Commissioner Graham. GRAHAM:Yeah. Mr. Laurance, I appreciate your feeling of- how you feel about things and all, too. But I wanted to, can I give you like kind of a nitty gritty kind of question? The5-footissue,Imean,Ihave-IfeellikeIhaveagoodpositivefeelingforwhyyoure requesting this and the reasonableness of it and all that. However, when I was looking closely at the parcels both to the south and the north, Im not convinced about the 5-foot in the sense that Im not convinced that if we give you a 5-foot setback your pool cannot be noticeably closer to that wall than these other ones are. So, what I would ask is that you agree to a condition whereby the water surface on your pool is no closer to that wall than either of the adjoining properties to the north and to the south and also that the masonry or whatever construction around the pool thats there to sort of construct the pool be no closer to the wall than either of the properties on the north or the south. And it feels like the- the gist of, you know, how you justify being able to do this is that this is what others are doing so I only want, you know, whats fair. So I feel like this is something perhaps you should accede to in the sense of being consistent with what your request is. Could you do that? LAURANCE:Mr. Graham, as you were walking this morning and you were walking southerly, going to the left -. GRAHAM:Yes. LAURANCE:There was the first pool and then there was a second pool. The second pool you can reach out and touch the rock wall if you lean in. If thats what youre asking me, in other words, if I, if you pick just the two pools that are adjacent to me as being that-. NOMURA:Microphone, please. LAURANCE:Pardon? VITOUSEK:Microphone. LAURANCE:Oh. I understand your point; and I would be- I would be no closer to the wall than any of the other pools along that area. Pick the closest one to the wall, I will be no closer to that. I can see this space here, this is, I dont know- its this one over here is also close, but this ones also close, too. I dont think its a problem. 23 VITOUSEK:Yeah, this is fine. LAURANCE:I think its fine. I think its fine. I understand the concept of what youre saying. If you dont do any- youre saying, youre not any closer including the brick and the water. I understand exactly not parson- so whatever I do I dont get any closer to the public access walkway wall than anyone else. That should- you think that- I think that works because I dont think wed get that close. Remember, when you were at the house the pool starts outside this, whats it called, special management area. So its just part of it that extends on it. So, I think that works. GRAHAM:Well, I was, you know, I was running my eyes real close on what I thought 5-feet were when I was there and all; and thats why I bring this up, consideration. Thank you. LAURANCE:Thatwouldbeacceptabletome.Thankyouverymuch. GRAHAM:Okay. SPRINGER:Commissioners,furtherquestionsfortheapplicant?Commissioner Siracusa. SIRACUSA:Yes, you, okay, do you have any idea who authorized the second shoreline certification? Usually its either the property owner or an entity of a branch of government that does that. LAURANCE:My arch- SIRACUSA:The shoreline certification you said was done in 2003 but you bought the lot 3 and 4 years ago. So, was it you, or the previous owner, or a branch of government, do you know? LAURANCE:I do not believe there was a shoreline certification change when I bought the lot. I purchased the lot several years- we asked for the shoreline certification when I, when I was getting ready to make all the permit app- get the permits to build the house. Is Bill Weigang still- Bill? VITOUSEK:If I may-. LAURANCE:My architect is right here and hes the one was doing it. VITOUSEK:If I can address that. The application was, for shoreline certification was directed by Mr. Laurances architect. It was-. SIRACUSA:Okay. VITOUSEK:It was done in order to-. 24 SIRACUSA:Because I was wondering if you had had any notice prior to that survey or if something had been sprung upon you from outside. LAURANCE:Right, my archi- cause I asked my architect, whos sitting right here, what happened when this happened? Because it was a shock, and he was very, he was visibly upset. He was-. SIRACUSA:Okay, I wanted to clarify that, thank you. LAURANCE:Yeah, no, so we, we had no idea. Otherwise, I wouldnt have kind of got myself in this Catch-22. SPRINGER:Commissioners? So do I understand correctly that the certification was onlyforthislot? LAURANCE:Yes,maam. SPRINGER:Andatthetimethatyourarchitectconductedthecertificationtheplansfor the home had already been fully articulated? LAURANCE:Yes, maam. SPRINGER:Commissioners? Mr. Vitousek, do you have anything more to add? VITOUSEK:I, I do have a- Mr. Terry and Mr. Mooers here. If I could just summarize, you know, from their testimony and if there are any questions as a result of that-. I just would point out that we did submit written testimony from Ron Terry who conducted the environmental assessment and who prepared the environmental assessment which resulted in the finding of no significant impact. And that in so doing he looked at potential adverse environmental effects from the proposed action and concluded that there were no significant adverse effects. That included looking at viewplanes, that the proposed pool did not have any adverse effect on viewplanes, as are articulated in the General Plan or as commonly understood that there were no adverse effects on the marine or coastal environments, that the proposed pool would not artifi- excuse me- artificially fix the shoreline or affect coastal processes. To back that up we asked Dr. Richard Brock to inspect this site. Dr. Brock is a fisheries biologist with the University of Hawai¡i in Honolulu. He is a specialist in coastal ecosystems; and, specifically, the world expert on coastal ponds, on anchialine ponds, and he inspected the site. He has given you a letter saying that he finds that there will be no adverse effects on the marine or coastal ecosystems as a result of the pool. I would just say for the record Dr. Brock refused to charge anything for his consulting services because he felt that it was too manini in the sense that it was too obvious to him that the, because there are pools on either side and because of how long theyd been there that he didnt feel thered be any adverse effect. And he asked me to relate to Mr. Laurance that he a- give him his aloha and hope he enjoys Hawai¡i. So that- you 25 know, I think that what, what, what I think weve shown in the application is that the proposed use will not have adverse effects on the environment. If I could have, you know, Mr. Mooers testimony relates to compliance with technical aspects of the, of the application for shoreline setback variance, the General Plan, regional plans, and what not. And, again, he concludes that this proposed application is entirely consistent with land use classification zoning, with the General Plan, with the community plans and that it will not cause any adverse effects on the normal uses of land in this area. So, based on that, I would say that-. And also the builder Jerry Akers is present, the architect is present, so if the Commissioners have any questions from them thats, thats why theyre here. But because weve submitted their written testimony and because it has been accepted in the record, I wont take the time to go through it. SPRINGER:Commissioners, any questions based on the written testimony of Misters MooersandTerry?Mr.Takemoto,doyouhaveanyquestionsoftheapplicantorhis representative at this time? TAKEMOTO:No. SPRINGER:Thank you. VITOUSEK:Madam Chair, may I ask Mr. Takemoto just a couple of questions? SPRINGER:Surely, proceed. VITOUSEK:Thank you. Mr. Takemoto, thank you and Im sorry that were going to do this. Ill be very brief. As I- You are Deputy Planning Director with the County of Hawai¡i, is that correct? TAKEMOTO:Yes. VITOUSEK:And youre here in the capacity representing the Planning Department as a party in this action, is that correct? TAKEMOTO:Correct. VITOUSEK:And the Planning Department made a recommendation relative to the shoreline setback application, is that correct? TAKEMOTO:Correct. VITOUSEK:And, do you know when the Planning Department came across this rd shoreline setback variance approval dated January 3,1995? TAKEMOTO:Ibelieveyesterday. 26 VITOUSEK:Okay. So at the time you made the recommendation the Planning Department wasnt aware that this had been or at least didnt have immediate knowledge of this approval of a shoreline setback variance, is that correct? TAKEMOTO:No, we didnt. VITOUSEK:And, Mr. Takemoto, the- when I read the Planning Departments recommendation, the last line, the last sentence is, has, ‚The stated reasons of accommodation of previously constructed pools in the area are not sufficient reasons to support a variance for building within the coastal open space sought to be protected.ƒ Last sentence, ‚Therefore, the applicant has not demonstrated a hardship that would warrant approval of a variance to allow construction of the swimming pool within the shoreline area.ƒ Is that correct? Its a correct reading? TAKEMOTO:Correctreading. VITOUSEK:Andisthatthe-isthatthereason,isthatthefindinguponwhichthe Planning Department based its recommendation of denial? TAKEMOTO:That is a summary of the bases of the recommendation; and I think further on in the recommendation it flushes out what hardship means to the Department. VITOUSEK:Okay. And what does hardship mean to the Department? TAKEMOTO:In this particular case, well, you cited the criteria-. VITOUSEK:Actually what Im asking, Mr. Takemoto, is what the word hardship means in the context of where its used in this sentence when you say that its- you recommend denial because they have not demonstrated hardship? GRAHAM:Excuse me, is this really the appropriate way that we deal with a hearing which is of this nature, Mr. Torigoe, that the applicants representative be questioning the Planning Department this way and all? TORIGOE:It is, in that, in a contested case the Planning Director is a party and a-, the applicant could actually subpoena the Planning Director to come and speak, or if the Planning Director is just here as a party, then he could be asking questions of him. So, unless Mr. Takemoto feels that he would like to have, you know, his counsel present or would like to have some other manner of procedure that is more formal, you know, basically the parties can agree to any, any kind of reasonable procedure for, for this kind of contested case hearing. VITOUSEK:If I may, Ill just be really brief, I dont, I dont need to take any time with it. I understand your point. And so, Mr. Takemoto, Ill cut to the chase. Is there a definition of hardship in Rule 8 of the Planning Commission Rules? Is that a defined term? 27 TAKEMOTO:If you consider definitions only as those included under Section 8-3, then it wouldnt fall under but- it wouldnt have a definition. But there is under the criteria a heading called hardship standard, which I believe would satisfy the HRS statutory requirement for definition of hardship. VITOUSEK:Okay. And so, in which aspect of that definition did the Planning Department use in making a recommendation of denial? TAKEMOTO:Yeah, under the hardship standard there seems to be a 3-part criteria to determine hardship. And this recommendation was based primarily on the first one, which is the reasonable use criterion. VITOUSEK:Okay and that, and that was the reasonable use of the land. And the decision was because the applicant built the 3-story home, thats a reasonable use of the land, is thatcorrect? TAKEMOTO:Right;andIthinkthecruxofthemattergoestoasCommissionerGraham pointed out, how we interpret the area to be considered as the reasonable use. VITOUSEK:Right. So the question is the meaning of the word land, right? TAKEMOTO:Correct or- right. VITOUSEK:Okay. TAKEMOTO:And I think- can I respond to your last point you made before we broke for executive session where-. VITOUSEK:Oh, well, I guess you have your ability to- I mean right now Im just asking questions. TAKEMOTO:Okay. VITOUSEK:So, your interpretation was based on saying that land meant the whole lot, right, land meant lot? Whereas lot is a defined term under HRS 8-3, isnt that correct? TAKEMOTO:Yes. VITOUSEK:Okay. So, your, your position is that land means lot even though lot is a defined term and even though Section 10 didnt use the term lot? TAKEMOTO:It does use the term lot, when it further explained what reasonable use is in the Subsection B. VITOUSEK:Okay. But thats, okay. And so youre saying that land means lot because both words appear in the same paragraph? 28 TAKEMOTO:Because B further explains what reasonable use is and B uses the word lot. VITOUSEK:Okay. So thats the Planning Departments position is that because, because the word lot and land both appear in Section B that land means lot even though lot is defined as something else, is that correct? I dont need to beleaguer the point. TAKEMOTO:Yeah, yeah. VITOUSEK:Thank you. SPRINGER:Mr. Takemoto, do you have any questions? TAKEMOTO:No. SPRINGER:Commissioners, any questions either of the Deputy Director, the applicant, hisrepresentative?CommissionerMcCall? MCCALL:IthinkImnotsurewho-Shorelinesetbacksthatwascertifiedbythe shoreline expert, Im not sure whether or not at the request of the architect, its said that that is good for a year. And I assume that if another shoreline assessment was asked it could come out differently at this point in time. It also could come out the same, you know. And I would also, you know, reasonably expect that right now the shoreline is, it looks like it drops in where this property is; and that is because this property was looked at recently and most of the other properties have not been, had a shoreline assessment recently. And if the entire section had a shoreline assessment it may all be in at that level or, you know, and next year it could be- it could slide out more, and other five years, 5 feet, or 10 feet, or whatever, is that-? VITOUSEK:Yeah, thats basically correct, except that it probably couldnt go further mauka because what the law says is that if the shoreline is fixed by an artificial structure then that shoreline doesnt have to be recertified every year, as long as the structure remains in place. So it could be further makai but it probably wouldnt be further mauka. MCCALL:Thank you. SPRINGER:Commissioners, questions? I have a couple of questions. We understand that the recertification occurred at your initiation. What prompted that in, that? VITOUSEK:Its necessary for a building permit application. SPRINGER:Thank you. On that wall which is used as public access, liability rests with the County or the State? VITOUSEK:Thats a good question. Under Chapter 5-20, Hawai¡i Revised Statutes, if a land owner holds their land open for the public for recreational purposes without charge, the landowner does not owe a duty of care to people using it. So generally the case was, was a case 29 in Honolulu that involved the seawall in front of the Halekulani, and I think it was Lemke vs. Breeden. But the result was that the-, in that case the County was found responsible because the County was the dominant owner, the County was the party that benefited from the easement. SPRINGER:Does that hold in this case? VITOUSEK:It may. It may. In this case the- that easement, that public use is created by a Judicial decision. SPRINGER:May either the Deputy Director or Corporation Counsel answer that question? I asked this because the question of public safety had come up previously; and with the pool being so close to this wall thats being used as a public access, Im wondering- VITOUSEK:Madam Chair, if I may, Mr. Laurance has told me that its his understandingthatthehomeownersassociationmaintainstheeasement.TheAssociationof Owners at Kona Bay Estates. SPRINGER:Maintains the easement and assumes all liability? VITOUSEK:Generally the party that maintains an easement assumes responsibility for it. LAURANCE:Im not a lawyer, Im sorry. SPRINGER:One other question. Youve pointed out that Mr. Laurance owns half of the mauka/makai public access or five feet of it. Who owns the other half? LAURANCE:The owner of the home on the other side of the wall. SPRINGER:I see, thank you. Commissioners, any further discussion? SMITH:Question „. SPRINGER:Commissioner Smith. SMITH:Question to Mr. Vitousek. On that last variance that was granted had conditions that they had to follow/abide by. VITOUSEK:Yes, sir. SMITH:Suppose we consider your application and impose the requirements of 1 through 8, you have any objection to that? VITOUSEK:No, sir. I reviewed those conditions and I would, we would have no objections to those conditions being put in place. 30 SMITH:In addition to those articulated by Chairman-? VITOUSEK:Oh yes, yes, sir. SMITH:Graham. VITOUSEK:In addition to the conditions articulated by Commissioner Graham. SMITH:Thank you. SPRINGER:Thank you, Commissioner Smith. Is there any further discussion, or do we-, are we ready to make a motion? TORIGOE:Madam Chairman. SPRINGER:Yes, Mr. Torigoe. TORIGOE:You need to give the Planning Director or the Deputy Director an opportunitytopresentwhateverevidencehewouldliketoalsoputintherecord.Alsomakesure that Mr. Vitousek is done putting all of his evidence in the record. Im not sure what the status is of that other variance, whether that is in the record formally or not. SPRINGER:Thank you. VITOUSEK:If I may, Madam. SPRINGER:Proceed. VITOUSEK:In so far as it was presented by the County, I would have assumed they would come in as part of the Countys case. If the County doesnt offer it, I would like to offer it as an exhibit. SPRINGER:Thank you. Mr. Takemoto. TAKEMOTO:Yes, just to clarify- I believe our exhibits would be the background report, the recommendation, the previous shoreline setback decision that was made, dated January 3, 1995 for TMK: 7-5-05:parcel 42. I believe that would be it. Thats it, no witnesses. SPRINGER:Thank you, Mr. Takemoto. Mr. Vitousek, do you have any objections to those items? VITOUSEK:No objection. I would like to point out and, and I think its important that I think that the Planning Department showed a considerable amount of integrity in presenting this previous variance because you- I dont, I didnt know about it. It wasnt part of my exhibits, and they produced it voluntarily and- to the Commission and I think thats important, and I think 31 it should be recognized. €Cause it, you know, it wasnt necessarily consistent with their recommendation. SPRINGER:Thank you, Mr. Vitousek and also to the staff who produced this document for us to review today. Mr. Torigoe, may we proceed? TORIGOE:Okay, so for the record there has been no objection to the Planning Directors proposed exhibits. VITOUSEK:Thats correct. TORIGOE:Okay. And so are those then received into evidence? SPRINGER:Yes. TORIGOE:Yes. Okay. Are there any other contested case matters that either of the partieswouldliketoputonrecordatthispoint,orarewepreparedtoclosethehearing? VITOUSEK:So,Imsorrywas,nofurtherpresentationfromthePlanningDepartment, is that correct? I mean, just, just the exhibits? TAKEMOTO:Yes. TORIGOE:Madam Chairman, your contested case Rule 4-22 says, ‚At the end of the presentation of the evidence, submission of briefs and oral arguments, if any, the Commissioner or the hearing officer shall close the hearing.ƒ So you could either ask for a motion, or as the presiding officer I think you could close the hearing. There has been no discussion of whether theres need for any briefs or- or the oral argument. Thats up to the Commission. VITOUSEK:I would just ask, you know, by way of oral argument if I could just let Mr. Laurance make a closing statement; and we have submitted a brief, we do not need further briefing. SPRINGER:Thank you. Mr. Laurance, proceed, please. LAURANCE:Well, Im, Im going to be living here a long time and I just wanted to ask you please help me on this. I promise to be a good Kona citizen, and I promise to- not only live with the letter of all this which is always complicated and subject to interpretation but actually the spirit of all this. So I share, I think the reasons you do go through this process are good, and I appreciate them, and I care about the same things you care about, the quality of life here and everything else. And I will be a good citizen and I will live with both the spirit and the letter of what we agree. I promise you that. SPRINGER:Thank you, Mr. Laurance. Mr. Takemoto. TAKEMOTO:Youre asking for like closing statements? 32 SPRINGER:Mm hm. TAKEMOTO:Oh okay. Just to reiterate the Departments position on the, set forth in the recommendation. I think Mr. Rothstein kind of stated it well when, what were after is integrity of the shoreline setback law. This case alone may not mean much, but taken into the broader picture, what were looking at is, you know, other people looking at the same reasoning to look at future shoreline setbacks, variances. The shoreline setback area is a very narrow area. The shoreline is a very dynamic process. This is our buffer and its not just processes, its open space that, that the shoreline setback law is trying to preserve. So with that, I think that was the basis upon which we made the Departments recommendation. SPRINGER:Thank you. Commissioners, is there any further discussion? Atthistimethencanwehaveamotiontoclosethepublichearing? SIRACUSA:Imovetoclosethepublichearing. SPRINGER:Thankyou.Isthereasecond? MCCALL:Second. SPRINGER:Moved by Commissioner Siracusa, seconded by Commissioner McCall, to close the public hearing. Mr. Darrow. DARROW:Thank you, Madam Chair. Commissioner Siracusa? SIRACUSA:Aye. DARROW:Commissioner McCall? MCCALL:Aye. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner Smith? SMITH:Aye. DARROW:Commissioner, Madam Chair? SPRINGER:Yes. DARROW:Thank you. The motion passes. 33 SPRINGER:Thank you, Commissioners. May I have a motion? Commissioner Graham? GRAHAM:I will move that we approve the shoreline setback variance with a stipulation which I think we got from the applicant, which is that the pool will be no closer to the wall than the existing pools of the neighbors to the north and to south, of the immediate neighbors to the north and to the south. And to me that means that the surface of the water of the pool will be no closer to the wall and also that the construction related to the pool will be no closer to the wall than the nearest to the wall of the adjacent properties. And I make this motion based on the fact that I think the detriment to the public is close to nothing. And I share the concern of the Planning Director about precedent and if, in fact, I felt there was any significant detriment to the public at all I would probably feel differently. I am concerned about the strict interpretationofHardshipStandard(3)(A)(i).Ithinkifitsreadstrictlythisprobably,this application probably would not qualify. But my sense is that its not always read this strictly as far as depriving reasonable use of the land. And so because I dont feel any public detriment, Im going to read it somewhat more liberally. Thank you. SPRINGER:Before we- I call for a second, Commissioner Graham, did you include the conditions that Commissioner Smith cited earlier that come out of that memo to Mr. Lim, the 1995? GRAHAM:I didnt. I did not include those conditions, but certainly would be acceptable to an amendment from Commissioner Smith to include those. SPRINGER:Okay, so the motion is to approve the application with the conditions that are articulated in the 1995 memo to Steven Lim regarding setback variance application SSV 94- 2, and also a condition that discusses the distance of the pool from the public access way. SMITH:Second. SPRINGER:Moved by Commissioner Graham, seconded by Commissioner Smith, to approve Dale Laurances Shoreline Setback Variance 04-001 to allow the construction of a swimming pool with a shoreline setback of 5-feet, in lieu of the minimum requirement of 20 feet. Is there any discussion? Mr. Darrow, the roll call, please. DARROW:Thank you, Madam Chair. Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner Smith? SMITH:Aye. 34 DARROW:Commissioner McCall? MCCALL:No. DARROW:Commissioner Siracusa? SIRACUSA:No. DARROW:And Madam Chair? SPRINGER:No. DARROW:The motion does not pass. SPRINGER:Thank you, members. Thank you, Mr. Laurance, Mr. Vitousek. Youll be informedinwritingofthisdecision. TORIGOE:Waitaminute,wait. SPRINGER:Mr.Torigoe? TORIGOE:Yes. Madam Chair, I think what we need to have is five votes to either approve or deny. Not having that at this point there is no action taken. So-your Rule 8-8 says that within 60 days after the conclusion of the hearing or within a longer period as may be agreed to by the applicant, the Planning Commission shall render a decision to approve or deny the application. The hearing was concluded today so theres a 60-day window starting today in which five votes should be sought one way or the other. And, in fact, this particular rule unlike the SMA rule seems to allow for more leeway for the applicant to agree to a longer period of time, if necessary. So, it would seem that what would be appropriate is a continuance of the hearing until the next, well, until the next available spot on the calendar or as the parties may agree in order to seek five votes either way. SPRINGER:I would inquire of staff if there is space on the next Kona agenda then to hear this again, if thats agreeable with the applicant. HAYASHI:Yes. SPRINGER:There is space on the next Kona agenda. Mr. Vitousek, would you like to-? VITOUSEK:When, when is that? th HAYASHI:February 18. 35 th VITOUSEK:February 18. Is there any meeting between now and then, or is that-? I mean, of course, the Commission has the discretion to decide what meeting it will be held at, but I would like to ask that. th HAYASHI:Theres a meeting on February 4 in Hilo. VITOUSEK:Well, I guess, you know, again, we would request that the matter just be reset for hearing. So I, you know, its really at the Commissions discretion in terms of where and when its set, but we would prefer to get it done as quickly as we can. Thank you. SPRINGER:So you would prefer the Kona meeting as compared to Hilo. VITOUSEK:Well, either, either one, really. SPRINGER:Which agenda is lighter at this time? HAYASHI:Right now, its the Kona agenda thats lighter. SPRINGER:Okay. So this meeting will be con- Im sorry, this application will be continued until the next Kona hearing. Do we need that in a form of a motion? TORIGOE:Well, you know, Rule 4-5 says the presiding officer may postpone or continueanyhearingtoinsuretheorderlyandjustconductofahearing.So-andIthinkitwould be necessary to go ahead and continue it in any case. SPRINGER:So, no motion or vote is necessary? TORIGOE:I dont think so, unless you want to put it on the record. SPRINGER:Okay. Then well continue this matter until the next Kona hearing, which th is February 18. VITOUSEK:Thank you. SPRINGER:Well see you then. Thank you. The discussion ended at 1:10 p.m. Respectfully submitted, Lynette Sanemitsu, West Hawai€i Secretary 36