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HomeMy WebLinkAbout2006-02-03 TCellco PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT FEBRUARY 3, 2005 A regularly advertised hearing on the application of CELLCO PARTNERSHIP DBA VERIZON WIRELESS (SPP 05-004)was called to order at 10:30 a.m. in the County Building, Councilroom - Room 201, 25 Aupuni Street, Hilo, Hawaii, with Chairman C. Kimo Alameda presiding. PRESENT:C. Kimo AlamedaABSENT & EXCUSED: Fred Galdones Hannah SpringerJeffrey McCall Bill Graham Andrew Iwashita Allen Salavea Rene€Siracusa Rodney Watanabe Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And 10 people from the public in attendance. APPLICANT: CELLCO PARTNERSHIP dba VERIZON WIRELESS (SPP 05-004) Discussion and action on the Hearings Officer€s report on a Special Permit application to allow the construction of a 104-foot high steel monopole telecommunications tower, appurtenant cabinets and equipment shelter, and chain link fence enclosure on approximately 1,100 square feet of land within the State Land Use Agricultural District. The property is located along the thth northeast side of 35 Avenue, approximately 650 feet from the 35 Avenue ƒ Orchidland Drive intersection, Orchidland Estates Subdivision, Keaau, Puna, Hawaii, TMK: 1-6-10: portion of 48. ALAMEDA:In front of us, Agenda Item No. 2, applicant CELLCO Partnership doing business as Verizon Wireless (SPP 05-004). Staff? DARROW:Thank you, Mr. Chairman. This is a continued contested case hearing. Today€s agenda will be, the Planning Commission will be discussing and bringing action on the Hearings Officer€s proposed Findings of Fact and Conclusions of Law for this application. Just for remembrance, if I may direct your attention to the location map. The area of this applicationiswithinthePunaDistrictofHawaii,morespecificallywithintheOrchidlandEstates Subdivision. Orchidland Estates Subdivision is identified mainly in the light blue, although there aresomelotsthatareidentifiedinone-acrezoningwhichisidentifiedingreen.Directlyacross EXHIBIT B the street to the northeast is the Hawaiian Paradise Park Subdivision. This particular white line running in a north-south direction through the middle of the map is identified as the Keaau- Pahoa Road. And we have the Orchidland Drive identified in this area. The area of the application is identified with a red dot. The applicant in this case, CELLCO Partnership doing business as Verizon Wireless, is requesting a special permit to allow a 104-foot self-supporting steel monopole telecommunications tower and related equipment. This will be on a 1,100 square foot portion of an approximate 2-acre piece of property. Referring to the applicant€s site plan that has been submitted along with the application, this th particular road fronting the property is identified as 35 Street, and then we have Orchidland Drive in this particular area. The parcel is identified in blue. The area that we€re looking at for the special permit project site is identified in pink. More specifically, we have an enlarged view th with the driveway coming off of 35 Street. th Since our last hearing, October 24 when the contested case hearing was conducted, we have received the proposed Findings of Fact and Conclusions of Law from the Hearings Officer dated th December 19. We€ve also received the objections to the Hearings Officer€s report from the Orchidland Community Association, as well as a response letter to the Orchidland€s letter from thth the applicant dated January 9, correction January 6. Are there any questions? ALAMEDA:Fellow Commissioners? Commissioner Siracusa. SIRACUSA:Jeff, I see on the map that there€s also a white dot. Is that pertinent? DARROW:No, Ma€am. That was a previous application where the dot did not come off as nicely as I would have liked it to. Sorry about that. ALAMEDA:Fellow Commissioners, before us, as part of the background report, you do have your findings of fact, you do have the objections, and you do have the response letter to the objections. So we have a lot of information in front of us already. This did go through a contested case. Jeff, Mr. Darrow, would you like to just share a little bit on the findings of fact, maybe to highlight or, for the fellow Commissioners? Or, Commissioners, you€ve got a pretty good sense of the Hearing Officer€s report? Commissioner Watanabe? WATANABE:Actually,Ithinkwegotaprettygoodsenseof-.Ifit€sokay,maybewe could move on to the testimony -. ALAMEDA:All right, to the applicant. Okay, will the applicant or its representative pleasecomeforward.Reminder,thisisacontestedcase.Weshouldbringallpartiesforward, the applicant, the Department, the intervenor. And why don€t I swear all of you in at once. Pleaseraiseyourrighthand.DoyouswearoraffirmtotellthetruthnowbeforetheHawaii County Planning Commission? Yes? TESTIFIERS:I do. 2EXHIBIT B ALAMEDA:Okay. Can I get the, there may be testimony, so Mr. Director, Ms. Leithead-Todd, could I swear you in? YUEN:Oh, I€m sorry. I wasn€t sworn in. ALAMEDA:Would you please raise your hand. Do you swear or affirm to tell the truth now before the Hawaii County Planning Commission? YUEN:I do. LEITHEAD-TODD:I do. ALAMEDA:Thank you. For the applicant, could you please state your name and address for the record. YOUNG:My name is Les Young, address is 500 Ala Moana Boulevard in Honolulu, Hawaii. ALAMEDA:Okay,Iknowyou€vebeenthroughthehearingandall.Arethereany comments that you€d like to share with us or any thoughts? YOUNG:Well, you do have quite a bit of information already from the documents in front of you. What I€d like to do is just spend a few minutes giving you a very brief summary of our proposal, and then make myself available for questions to then provide more specific details to your questions. ALAMEDA:I want to check with Corp. Counsel on, if you don€t mind, on me getting clarity on how best to proceed. Mr. Torigoe, could you kind of lay it out for us? TORIGOE:Sure. You€re in a situation where you now have a report and recommendations and a proposed findings from the Hearings Officer, you also have a proposed findings from the Department, and you have some exceptions from the intervenor. So you have all that to consider. Under your Rule 4-33 when there are exceptions filed, the Commission may render its decision based on the record, all the material that you have, or you can allow for oral argument by the parties. You also can reopen the docket and take further evidence. So you have some flexibility in doing these things. At this point, so I guess the initial decision is do you want to make a decision based only on the documents and the record that you have, or do you want to allow for oral argument and possibly further questioning of the parties? If so, then you should have a motion to do that. ALAMEDA:All right, fellow Commissioners, we can vote, we can basically make a motion on what€s before us already, it€s Option 1. Option 2, we can allow for oral arguments between the parties. And then Option 3, we could actually open it for testimony again. What€s your pleasure? SIRACUSA:Well -. 3EXHIBIT B ALAMEDA:Commissioner Siracusa. SIRACUSA:Well, I have a question of, I guess, Mr. Young and possibly Mr. Ely. So I would like to have the option to be able to do that. ALAMEDA:Mr. Torigoe? TORIGOE:Okay. Maybe the most efficient way to do it then is if, it sounds like you€re going to, well, you basically want to ask some questions to clarify some factual issues? SIRACUSA:Yes. TORIGOE:Yeah. So in essence you€re reopening the hearing for that purpose. So are you going to want to allow them also to argue points? If so, then basically you can have a motionbasicallytoallowfororalargumentandtoallowquestioningoftheparties. ALAMEDA:IsthatthepleasureoftheCommission?SowhatI€mhearing, Mr. Torigoe, is that if Commissioner Siracusa has basically clarification type of questions then that will automatically kind of lead us to opening it up for oral argument? TORIGOE:Well, they€re two separate things, basically; and you should cover both of them if you want to reopen the hearing for those purposes, to answer your question. WATANABE:I -. TORIGOE:Commissioner Watanabe. SIRACUSA:May I clarify my question? TORIGOE:Okay, go ahead, Commissioner Siracusa. SIRACUSA:Yeah, there was a letter that came in that was dated after the hearing and it raised the, it was to Mr. Young from Mr. Ely, and it raised the question about some other possible locations; and I just wanted to know if those had been explored, and if so -. I wanted an updating, basically -. TORIGOE:Yeah, so you€re basically asking for more fact -. SIRACUSA:On something that€s already in our, yeah. TORIGOE:Yeah, so you€re trying to clarify and ask for more factual information. So I think you should have a motion basically to reopen the hearing for purposes of questioning the parties about factual maters. SIRACUSA:Okay, then I will make such a motion. ALAMEDA:Okay, Commissioner Siracusa, will you make your motion. 4EXHIBIT B SIRACUSA:I just did. ALAMEDA:Oh. Is there a second? SIRACUSA:I hereby move that we reopen the hearing for the purpose of questioning for clarification on the matters already in our pile of documents. ALAMEDA:Okay, motion was made by Commissioner Siracusa to reopen the hearing for the purpose of further questioning. Is there a second? IWASHITA:Second. ALAMEDA:Seconded by Commissioner Iwashita. Could we vote on it? TORIGOE:Yes. ALAMEDA:Staff? DARROW:Thank you, Mr. Chairman. Commissioner Siracusa? SIRACUSA:Aye. DARROW:Commissioner Iwashita? IWASHITA:Aye. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner Salavea? SALAVEA:Aye. DARROW:Commissioner Springer? SPRINGER:Yes. DARROW:Commissioner Watanabe? WATANABE:Aye. DARROW:And Mr. Chairman? ALAMEDA:Aye. 5EXHIBIT B DARROW:The motion passes. ALAMEDA:All right, we can now move as if this is a kind of, allow for oral, what -? TORIGOE:Yeah, allow for some questioning of the parties for more factual information. ALAMEDA:Could we do that now? TORIGOE:Yeah. ALAMEDA:Okay, Commissioner Siracusa, go ahead. SIRACUSA:Thank you. I have here a letter on Orchidland Community Association letterheaddatedOctober30,2005,toMr.LesYoungfromBobElyofOrchidlandCommunity Association. Shall I wait for a few seconds while you all find that? ALAMEDA:Yes. SIRACUSA:Okay. In this letter Mr. Ely stated that he contacted Mr. Brazier of the, who€s the President of the Ainaloa Community Association, and that the Ainaloa Community Association board is in favor of putting the tower on their property, that they have not only the one particular lot, the commons property lot, but also two other 7-acre commons areas that might be suitable where there are no adjacent houses, and property value and aesthetic and viewing distances would not play such a large role in community objections. And his final sentence, paragraph rather, is It is unfortunate that Verizon did not explore this alternative at the start of this process. However, we feel that it is not too late to pursue an alternative where all parties will win.‚ And so what I would like to ask Mr. Young at this point is, first of all, whether he decided, having seen this letter, to pursue the alternative; and, if so, what the upshot of it all was. YOUNG:Sure. Thank you very much. That particular site where T-Mobile currently has an 80-foot stealth flagpole antennae tower was one of four sites that we originally looked at back in August of 2004. But because, and it€s in the documents that you have, but because it€s a stealth flagpole, it would not allow for co-location in that particular area in the Ainaloa Community Center area. So that was one of those sites that although we originally looked at was not one that rose up to the level of being acceptable. SIRACUSA:Excuse me, but he€s referring to -. YOUNG:Yes. SIRACUSA:Three sites altogether. YOUNG:Yes. SIRACUSA:Yeah. 6EXHIBIT B YOUNG:We then, after receiving Mr. Ely€s letter, we then had our engineersgo out to the property and do some calculations based on both an 80-footanda 100-foot tower. The results came back, which were submitted to Mr. Love. The results came back such that it is too far to the Pahoa side to be able to provide coverage all the way back to Keaau, such that if we were to put a tower in that general Ainaloa community area that a second tower would still be needed between Orchidland towards Keaau. So rather than looking at just one antennae tower at Orchidland, we€d be looking at one at Ainaloa and finding another site close towards Keaau. Again, studies were prepared and documents were sent with some maps showing the coverage pattern for site at Ainaloa versus without a site there. SIRACUSA:Thank you. And I€d like to ask Mr. Ely if he has anything to add to that, to elaborate on? ALAMEDA:Pleasedo.Youmaybeabletoaskthat,exceptthosewhoareanswering please answer the question and not go into a testimony or go tangential. Commissioner Siracusa? Go ahead. ELY:Yes, I would like to address -. ALAMEDA:Please speak into the mike, in the mike please. ELY:Oh, sorry. Yes, I would like to address that. Verizon did, after the Planning Commission hearing, the contested case hearing in late November, go out to the site and made their first radio propagation measurements and determined that it was not acceptable. We questioned whether or not they had actually made these measurements based on a higher tower because their claim conflicts directly with the report of their engineer, engineering department. And I quote from a letter from a Debra Adams, their engineer, Hopefully they will answer your question regarding whether or not Verizon Wireless can co-locate on a T-Mobiles existing tower.‚ The implication of this is clearly that they didn€t look at putting in a new tower, they looked at co-locating on the shorter T-Mobile tower. ALAMEDA:Thank you for answering the question directly. I appreciate that. Also, fellow Commissioners, if you find that the question is not being answered directly, please just jump in and ask that the question be directly answered. Commissioner Graham. GRAHAM:I had a question for Mr. Torigoe. A substantial part of the discussion at the contested case hearing as we read the minutes and all really was about alternatives. But, you know, we€re being asked to grant a special permit; and when I look at our rules and I look at the law, I don€t see any part of it that says, you know, if there€s no better alternative you should grant it or anything like that. So I€d like it if he could give us a legal direction of how we should view this whole issue of alternatives. ALAMEDA:Thank you, Commissioner Graham. Mr. Torigoe? TORIGOE:Yes, thank you. Ultimately I think we should probably ask the parties, you know, for input on that as well. But just very generally, I think, in the past in various special 7EXHIBIT B permit applications, we have looked at the availability of other properly zoned or otherwise usable sites, just as a matter of looking at the nature of theneed and changing trends, things like this, which are relevant to special permit decisions. So there is some relevance that should be looked at in the specific circumstances of each case. And you may want to ask the parties for their positions on that as well. ALAMEDA:Commissioner Graham, would you, we do have the opportunity to ask the parties direct questions just so that we can make a better decision on this application. So, Commissioner Graham? GRAHAM:No, I don€t think I want to go further and extend it. But I guess the short of what you€re saying is that one part of the condition which relates to needs is the hook we have in our criteria, one about needs, huh? ALAMEDA:Mr.Torigoe? TORIGOE:Yeah,ifyoulookatyourRule6.3,youknow,thatlistoffiveorsix, 6.3(b)(5),andthenthere€s(A),(B),(C),(D,(E),(F),(G),that€sonpages2to3ofyourRule6. There€s a, for instance on top of page 3, one of the criteria you should look at is Unusual conditions, trends, and needs have arisen since the district boundaries and regulations were established.‚ GRAHAM:And how does that relate to an alternative site, I mean if the need is there to put in wireless communication? TORIGOE:Yeah, you know, it€s a very site, well, it€s a very application fact intensive inquiry. You know, basically, if there€s no place else, if there€s a great need for this and there€s no place else, then that should weigh into your decision. GRAHAM:I see. So the need is actually not the general need of getting wireless service but the need of using this piece of property to do it? TORIGOE:I think that would be one way to look at it, yeah. GRAHAM:Thank you. ALAMEDA:Fellow Commissioners, other questions for our parties or for our Corp. Counsel? Commissioner Graham and then Commissioner Siracusa. GRAHAM:I have a question for the Planning Department. And the question that I have will sound more like a criticism so I€m hoping to get a response that gives me some understanding. And I€m speaking of the County of Hawaii Planning Director€s proposed Findings of Fact, Conclusions of Law and Recommendation. After reading the Planning Director€s proposed Findings of Fact, Conclusions of Law and Recommendation, after reading the transcript, it seemed like the intervenor spoke of a number of concerns, like property value, visual intrusion, the possibility of the tower falling over, the alternatives that were available. But when I read this report from the Planning Director€s proposed Findings of Fact, I don€t see even any reference to any of that stuff in here, which kind of, you know, struck me strongly. It€s sort of, you know, when we€re serving the public we can disagree, but to ignore feels to me that that€s kind of, you know, dismissive in a way that I don€t like to see us be. So the only thing that I saw in this whole recommendation from the Planning Director was Conclusion of Law 4 where they flatly say the desired use will not adversely affect surrounding properties. But I didn€t see 8EXHIBIT B any discussion as far as facts, findings, conclusions or anything in any of the material thatwas really brought up in the contested case hearing. So that€s what bothered me. I€m wondering if there is just a little simple explanation for why it came out that way. ALAMEDA:Ms. Todd? LEITHEAD-TODD: When I, in drafting something towards a particular position, my understanding of the rules in drafting is that you don€t have to draft every single finding or refer to every single factual thing. So I looked at those things that I thought were important and that were relevant, and I included them in those. And, in this case, these were going to a Hearings Officer so I basically put in what I thought was relevant to the Conclusions of Law. GRAHAM:So does that mean if I am accurately portraying what I read from the transcript that you didn€t find the intervenor€s contentions and witnesses, and all that, relevant to -? LEITHEAD-TODD:I didn€t think that they were substantial enough in terms of supporting the conclusions of law that I was putting in the proposed findings and proposed conclusions. You€re not required to put everything into your findings when you submit it. It€s just a question of whetheryourfindingsaresupportedbythefactualrecord.AndinthiscaseIfeltthatthe findings that I put in were supported by the factual record. ALAMEDA:Thank you. Commissioner Siracusa? SIRACUSA:Yes. I would like to ask Mr. Young some questions, plural, about co- location. I know that all those utility poles along the highway, the big ones are owned by Helco and the smaller ones are the telephone company. And I understood that although there is a joint pole agreement the Helco was asking more than the telephone company wanted to pay and so the telephone company was allowed to put up their own poles, as a result of which we have a plethora of poles, really unsightly ones along the highway. Now I understand that that sort of thing goes to the Public Utilities Commission. And I€m wondering if you are going to, if your company is going to work up a co-location agreement with, say, another wireless company like Cingular or whatever, whether you would have to go through the Public Utilities Commission, is there a process there, or whether you just negotiate company to company? That€s my first question. ALAMEDA:Thank you. Mr. Young? YOUNG:When it comes to co-location we work directly with another carrier. Their application would need to go through the same process that we€re going through today. We would not need, as far as I€m aware, not need to go through the Public Utilities Commission. We currently have a letter from Cingular Wireless, again it should be part of the record that was submitted, expressing their interest in going on the proposed antenna pole should our proposal be approved. ALAMEDA:Thank you. Commissioner Siracusa? 9EXHIBIT B YOUNG:Did I answer your question? I€m sorry. Did I answer your question? ALAMEDA:I missed the last sentence, thatyour company has approved that, did you say? YOUNG:No. Cingular Wireless, another wireless company, has already sent us a letter expressing interest in co-locating on the proposed Verizon tower if it is approved. They would like to locate their antennas below ours at the Orchidland site, at our proposed site. SIRACUSA:And your company€s response? YOUNG:Right now we€ve told them that once we, and hopefully, we receive approval that we would then negotiate with them for them being placed on ourtower. Co- location amongst wireless carriers is very, very common. It€s encouraged by many of the counties,andalsoit€sencouragedbyourselvesbecauseithelpstodefraycosts. ALAMEDA:Thankyou,Mr.Young,foransweringthatquestion.Commissioner Siracusa, follow-up? SIRACUSA:Yes. I wanted to comment that it would also not only defray cost but defray the construction of a lot more poles. And so Condition No. 3, I€d like to change that a little bit if I may. ALAMEDA:Go ahead. SIRACUSA:It says Co-location or any expansion on the tower and the antennae shall be allowed within the parameters of the buildingheight and envelope as represented.‚ I would like to change that to shall be encouraged to be allowed,‚ so that it€s clear that we are looking to avoid a plethora of these poles. ALAMEDA:Okay. Well, let me check -. Ms. Todd has her hand up. Go ahead. LEITHEAD-TODD:I just had a question -. ALAMEDA:Sure. LEITHEAD-TODD:In whether we were still in discussion and oral argument or whether we were in decision making? ALAMEDA:Yeah, right now we€re still getting clarification for the Commissioners€ benefit in order to make a decision whether or not to accept the Hearing Officer€s report or to move forward. LEITHEAD-TODD:Cause I did have comments about the Hearings Officer€s report that I wanted to make before you went into decision-making. 10EXHIBIT B ALAMEDA:Okay. Let€s continue with the questioning of fellow Commissioners. That was a question of whether or not you could modify the conditions? SIRACUSA:Yes. And I€m willing to hear what the other Commissioners think about that. ALAMEDA:Any objections, Commissioners, to that potential modification? Commissioner Watanabe. WATANABE:Maybe we should hold that for later when we€re contemplating a motion. ALAMEDA:Okay, okay. SIRACUSA:We could do that. ALAMEDA:Well, I thought we were contemplating a motion already. No? All right, CommissionerGraham. GRAHAM:IhaveanotherquestionfortheCounty,probablyforDirectorYuenwould be the proper person. When we looked at the facts of this, there is that parcel, there are neighboring homes at a certain distance, maybe at least one of which is fairly close and all; and the Planning Department is recommending approval. And the only sort of backup we see for the recommendation again is in the conclusion saying the desired use will not adversely affect surrounding properties, in your recommendation. So I€m just wondering, does the Planning Department have some policy, if there€s like more than three houses within 20 feet of it you will say it€s adverse or is it going to, no matter what€s around it it€s not adverse, or -? It feels like there should be some kind of policy that let€s us know, you know, where you€re coming from on this so that we can see why you draw the line where you do or something, rather than just -. And then in the future, you know, other people will know whether this is something that is meaningful to contest, or whether the County will always feel it€s okay, or -. Do you have any guidelines on when it meets your criteria as being okay for a special permit? ALAMEDA:Mr. Director. YUEN:What you€re saying is correct; and no, we don€t have a set guideline. We€re very concerned about, there€s two aspects to the visual impact of this. One is from vantage points of the general public. We are very concerned about that and want to minimize that. The vantage points from the neighbors is also a significant and legitimate concern. I believe there is, although there€s not, I can€t, I€m not familiar with the details of this application. I believe there is material in the record as to existing vegetation, shielding the view of the property owners from, the adjacent property owners from the tower. What I would, it should be, the thing that Counsel was referring to that we want to disavow in the Hearings Officer€s report and actually disagree with is the Hearings Officer€s attitude toward the neighbors, what he calls the neighbor€s subjective opinion about the aesthetics of having a tower next to them. The Hearings Officer and I, we argued, I argued this very point with the Hearings Officer the last time this came up. The Hearings Officer seems to think that people€s, 11EXHIBIT B the fact that somebody doesn€t like the way something looks built next to them is to be completely disregarded in the special permit process. That€s totally, totally, 100 percent wrong. He says that it doesn€t affect the surrounding property, it only affects the feelings of the people who live on the surrounding property. Almost everything we say -. We have to consider the commonly held opinions of people as to whatthey like to have in their neighboring property. You know, there€s a general feeling, I think, it€s not an odd-ball feeling shared by only a very few people that you would rather not look at, say, a 100-foot high cell tower right out your back yard. I mean, that doesn€t mean that you wouldn€t approve it, it doesn€t mean that it couldn€t have a special permit. But it is, that opinion is entitled to protection in the process of a special permit. And I completely, absolutely disagree with the way the Hearings Officer approaches this. And, as I say, we had this argument before. You€re right that we should have some criteria -. Apart from saying that there should be some substantial screening of something like this from the neighboring property owners, we don€t have asetcriteria.Itwouldbeusefultohaveit. ALAMEDA:CommissionerGraham.That€sgood-? GRAHAM:Thankyou. ALAMEDA:Okay.Otherquestionssothatwecouldeithermoveforwardonthe Hearings Officer€s report or make a motion? But you wanted to clarify the Hearings Officer€s report? LEITHEAD-TODD:Yeah, what I wanted to do in regards to what the Director just said was bring your attention to the Hearings Officer€s Report on page 14, Conclusion of Law No. 4 and that that Conclusion of Law should probably have a couple of sentences removed from it, particularly in the first paragraph, the sentence, I guess you€d call it the third sentence. It says The inquiry is not into the effect that the desired use will have on the subjective feelings of the surrounding property owners.‚ We think that that should be deleted. Further down in the last paragraph, the second sentence that also says that you shouldn€t be looking at the subjective feelings, that that should also be deleted. And, similarly, on the top of page 15 the last sentence there, in either case that subjective feelings are beyond the limits of inquiry, that that sentence should be deleted from the conclusions of law. Because the way you do measure impact to some extent is based on the subjective feelings of the surrounding neighbors. It€s whether something is ugly, whether it€s going to impact their viewplane. Those are all kinds of subjective impacts. Imeanthere€salittleimpactintermsofwhetherthepoleisthere.Butintermsofhow somebody interprets that pole there and its impact on the neighbors, which is subjective, that€s a legitimateinquiry. ALAMEDA:AnyobjectionstothosemodificationstotheHearingsOfficer€sreport? Commissioner Siracusa. SIRACUSA:Well, I, for one thing, subjective feelings seems a bit redundant. I mean, arethereanyotherkind?ButImissedthepart,thefirstonethatyousaid.Igottheoneatthe bottom and the one on the top of page 15. I missed the first one. Where did, I€m wondering -? 12EXHIBIT B LEITHEAD-TODD:On the top of page 14, the paragraph that starts Reasons for Conclusion of Law # 4, the second sentence following that that says The inquiry is not into the effect that the desired use will have on the subjective feelings of the surrounding property owners.‚ We believe that sentence should be deleted when you are going into decision-making because we don€t think it€s appropriate. ALAMEDA:Okay. SIRACUSA:Thank you. I have no objection to those deletions because those were areas that I had underscored in red myself on my own copy. ALAMEDA:And also please note that these are like revisions when we go into making the decision if we€re going to accept this report or not. So we haven€t gotten there yet. But, you know, just so you guys know that. Okay, Commissioner Watanabe. WATANABE:I have no objections specifically to what was said. I was just wondering procedurally if we€re getting more into testimony than clarification because it doesn€t seem like anybody asked a specific question to that. However -. ALAMEDA:Right, right. WATANABE:However, that said, it would seem that all of the recommended deletions areactuallystatingthattheintervenorhasavalidconcern.SoIwouldnotobjecttothechanges based on that, but -. ALAMEDA:Okay. It is a bit ahead of ourselves, so if you still have any questions for the parties to help you clarify things, I would -. Go ahead, Commissioner Graham. GRAHAM:I have one for Mr. Young. I believe when I read the transcript, one of the witnesses that came in after you folks had really concluded with your cross-examination and all made some point, well, we ought to just go ahead here and the neighboring property owners who perhaps are losing property value could be compensated and just go forward. So my question to you is, my understanding is that you the applicant will be paying the property owner that holds the tower a rental fee of whatever to have your tower. But, in fact, the adjoining property owners will have the tower right next door maybe just as close as the property owner€s house to their house but they€re getting nothing. Is there any background, is there any precedent, is there any ability or interest in compensating neighboring property owners for having a tower in full view of their homes nearby? Is that something that you€ve considered, or it is considered, or you know if that has been done in situations like this? ALAMEDA:Mr. Young? YOUNG:I€m not aware of that, I€m not aware of that having been done in the past in Hawaii. I did bring that subject up about six months ago to Verizon; and their response was that that is something which they would not consider. GRAHAM:Thank you. 13EXHIBIT B ALAMEDA:Fellow Commissioners, just so you know what we€re not doing so far, we€re not allowing for testimony, we€re not even allowing for arguments between the parties. So we€re still in the collecting information phase of this. Commissioner Iwashita? IWASHITA:Thank you, Mr. Chair. Mr. Young, I want to focus on these alternatives. And I guess first I€d like to know whether or not you were the person that attempted to negotiate with the owners of the alternative sites. I guess, in particular, looking at the Findings of Fact, Conclusions of Law, page 8, No. 60 talks about the Watumull properties for a site at Wiki Wiki Mart and with Vern Wood. Were you the one negotiating for that? YOUNG:Yes. I contacted Richard Howard from Gullsons who is with the Watumull family. Okay, that€s for the Wiki Wiki Mart. IWASHITA:Okay.And,Iguess,whatI€dliketoknowiswhetherornot,wellinyour letter in response to the Orchidland Community Association letter pointing out that alternative sites are still a possibility, I believe you acknowledged that, your letter says that it might be possible for Verizon to locate on, referring to Mr. Wood€s property. Is that still a possibility? According to your letter it is. I just wanted to clarify it. YOUNG:That remains a possibility. My last discussion with Mr. Wood was several months back; and at that time he had not decided one way or another. My last conversation with him basically resulted in him having a possible renewed interest in entertaining our offer. But at that time he had concerns with his architect. He wanted to make sure that from his architect€s point of view that a, well, our proposal on his property would fit in. In a subsequent conversation with him, he asked whether or not a site located elsewhere on his property would be acceptable; and I said we would consider that. And he was then going to go back to his architect to find out whether or not that would work. One of the initial reasons why he did not have an interest in our proposal from the very beginning was because the amount of space we needed he and his partner felt that they could generate more by way of per square foot income via leasing it out than leasing it to us. IWASHITA:Okay. So my, it sounds to me like that€s still open, that he needs to get back on what his response is from his architect. YOUNG:He has not gotten back to us. We have proceeded down with this particular subject, proposed site with efforts throughout the course of time in contacting and, continue to discuss with possible alternative owners what the likelihood would be of them considering our proposals. We also looked at properties from an engineering point of view to make sure that even if we had a willing landlord that the site would work for us. So to answer your question, with regard to Mr. Wood€s property it is very close to the subject property; and from an RF point of view, you know, a greater transmission point of view, it would work. But Mr. Wood and I have not had any discussion for the last several months. ALAMEDA:Commissioner Iwashita, follow- up? IWASHITA:And the negotiations with Wiki Wiki Mart, is that still a possibility? 14EXHIBIT B YOUNG:No. The Watumull family does not have any interest in placing our facility on their property. ALAMEDA:Commissioner Iwashita? IWASHITA:This is a different concern. ALAMEDA:Sure. IWASHITA:And I don€t know if you can tell me, but, you know, you refer to the RF technology and the capabilities. What I€d like to know is whether or not there is any, whether or not you know of any progress being made in technology that would, for instance, make the co- use of the T-Mobile tower in Ainaloa become effective, in other words, that the range would be expanded? YOUNG:I€mnotawareofanytechnologythatwouldmakethattowermore effective for what it is we want, other than extending the height. That tower is now 80 feet. A second set of antennas would need to be placed below it. With the terrain and the number of trees, fairly thick trees that are, and fairly tall trees also that are around that area, an antennae of considerable more height would be required. But in terms of technology, I€m not aware of any technology that would allow that site at its current height to work. ALAMEDA:Commissioner Iwashita? IWASHITA:Is there any documentation that you can point me to as far as the testing that was done that you say included testing at 100 feet of that site? YOUNG:What I have actually, I€m not sure if what I sent to Mr. Love was included in the packets of information that you folks have. In that I responded to, I sent information that had some colored maps showing the coverage from the Ainaloa site, as well as the letter from the Engineer. ALAMEDA:Fellow Commissioners, anybody seen those colored maps? IWASHITA:I have maps but they€re not in color. ALAMEDA:Could you visually show it to Mr. Young to see if that€s the ones? IWASHITA:I don€t have those colored maps, the one -. Well, what I€d like to know is, Mr. Young -. ALAMEDA:Commissioner Iwashita. 15EXHIBIT B IWASHITA:Yes. Is there, thank you, Mr. Chair. Is there in the letter, and maybe I missed it, I didn€t see, you know, a specific reference or statement that the testing was done at 100 feet. YOUNG:The letter that I have that came from our engineers from Verizon Wireless th dated November 28 does not specifically state the height. However, in talking with the engineers, the request was to test at the existing T-Mobile height and also to test at the proposed height for the Orchidland site. But that is not specifically stated in the letter, dated again November 28th. And this was all that I have from the engineer, this letter as well as the maps showing the coverage. ALAMEDA:Commissioner Iwashita? IWASHITA:I just wanted to clarify that there€s nothing written in the record that directly establishes what the heights were that were tested. It€s just -. This is my concern -. What you€re telling me is what lawyers would call hear say, somebody told you something happened. Right? And I€m uncomfortable with that, you know, with the evidence being of that nature. So I€m trying to ask you for something that directly shows that that was done. YOUNG:My response to Mr. Love does state the 80 to 100 foot, but, again, but there€snothingfromthe-. IWASHITA:Yeah, but what I€m telling you is that in my mind that€s not adequate because you didn€t do the testing. Right? So you don€t know whether it was done at 100 feet. You€re saying, you€re thinking somebody did it because they were asked to do it. There€s not even a representation that the engineer said, yes, we did it at 100 feet. Right? You€re saying that basically it€s an assumption, that they were instructed to do it at the Orchidland height, we€re assuming that it was done that way. Isn€t that correct? YOUNG:That€s correct. IWASHITA:Okay, thank you. ALAMEDA:Thank you, Commissioner Iwashita. We€re still at the questioning stage of the game. Any other questions? WATANABE:Mr. Chair? ALAMEDA:Commissioner Springer? SPRINGER:I€m concerned -. ALAMEDA:Oh, sorry, Commissioner Watanabe. WATANABE:No, no, go ahead with that. I yield to -. 16EXHIBIT B ALAMEDA:Commissioner Springer. SPRINGER:Well, I€m just concerned that there is apparently some information that are in the files of the parties before us that we don€t have. The only map that I have was in my background report, Exhibit I. And as I€m looking at the table there, it doesn€t look like it€s the same map. Do we need to be concerned about this? We€re having a discussion based on information that we don€t have before us. ALAMEDA:Okay. Let me ask if Commissioner Watanabe had that same line of thinking or you had a different question, like missing information? WATANABE:I was, I thought maybe we were running out of questions and I was prepared to make a motion. On the other hand, in response to Ms. Springer€s question, I think themorerelevantportionofthemapreallyisjustthelocationofthelotanditsproximityto public views as well as surrounding neighbor views. ALAMEDA:Commissioner Springer, your response on this? WATANABE:Am I completely off on this? Are you -? SPRINGER:Well, I€m thinking that if there€s a, I€m not sure if this is the right term, but a propagation map that shows the distance that the signal travels in the area of overlap, that that might be important to us. But, and I don€t have that before me except for in the form of Exhibit I. But then if there was information that was presented at the hearing or in correspondence between one of the parties and the Hearings Officer, I guess the question is to Mr. Torigoe ƒ should we have that before us because reference is being made to it and I cannot look at it? ALAMEDA:Thank you. Mr. Torigoe? TORIGOE:Well, certainly to the extent that you€re going to rely upon a Hearings Officer€s recommendations or conclusions and, you know, you should have the underlying information. So you should have a complete record before you. ALAMEDA:Commissioner Springer? SPRINGER:So, Mr. Chair, I have a concern that my record is not complete. ALAMEDA:Fellow Commissioners, how would you -? Mr. Torigoe, well, how would you resolve an incomplete record? TORIGOE:Well, if the parties have the information that they can simply supply at this point, then that can be entered into the record. ALAMEDA:Is there any objection to that? 17EXHIBIT B IWASHITA:No. WATANABE:No. SPRINGER:Mr. Torigoe, in order to save time, could it just be circulated among the panel, or do copies need to be made, or -? TORIGOE:Well, you know, if the parties are agreeable to simply allowing a copy to be circulated, that€s fine. Generally speaking, you would want to have copies for all of you to look at as you make your decision. ALAMEDA:Any objections to having the evidence circulated amongst ourselves? Fellow Commissioners? WATANABE:Personally-. ALAMEDA:CommissionerWatanabe. WATANABE:PersonallyIdon€thaveanyobjectionscauseIdon€tknowthatIhave sufficient expertise to -. ALAMEDA:Okay. Seems like Commissioner Springer would appreciate a circulation of that. Parties, you have any objections for us taking a look at that document? YOUNG:No, none. May I explain what it is though so when you see it -? TORIGOE:Yes, for the record that should be -. ALAMEDA:Okay, go ahead, for the record. YOUNG:This colored map here shows the distance that the signal from the Orchidland, I€m sorry, from the Ainaloa site would travel. And it -. ALAMEDA:Excuse me, could you, is it circulated already? Could we circulate it? YOUNG:Yes, yes. Commissioner Siracusa has -. SIRACUSA:Is it this one? SPRINGER:No. Well, that was my question if it€s Exhibit I. ALAMEDA:It€s Exhibit I? SPRINGER:If it€s Exhibit I, I have a copy but -. ALAMEDA:I think we€re getting, cause one is colored and maybe one is black and white -. 18EXHIBIT B TORIGOE:We may have it. YOUNG:Okay, anyway, that map goes to show an antenna site at Ainaloa, how far the signal would travel, and that a site there would not cover the gap that we need to go back to Keaau. ALAMEDA:Okay. Yes, Commissioner Springer? SPRINGER:These images are not the same images that are in Exhibit I, which I think is what we all have. ALAMEDA:Okay. So it will be worth circulating. Thankyou. Thank you for that, Commissioner Springer. So as that has been circulated -. Are there any other questions? SIRACUSA:Yes. What is being circulated, there€s three, there€s four locations. One is Mt.View,oneisKeaau,oneisPunaandoneisPahoa.IsthisproposedonePuna? YOUNG:ThisisforPuna.TheothersshowthesurroundingVerizonsites. SIRACUSA:Well,becausethoseotheronesarealsoinPuna,soIjustwantedtomake sure that the one that says Puna here is the one that€s under discussion. YOUNG:Correct, yes. SIRACUSA:Okay. ALAMEDA:Commissioner Graham? GRAHAM:Just an off-point comment but about the process here. I think Mr. Watanabe was thinking it was coming to motion time. And I had thought from the beginning we were going to ask questions and then perhaps we were going to have a closing argument from each of the parties. Was that your understanding, Mr. Chairman or, before we do motions? ALAMEDA:Yeah, we could go, that will be the next kind of layer if we wanted to, to even go to having the parties speak. Cause we have enough, we could as a Commission say, you know, we have enough information before us to go ahead and make a motion and make a decision on the now updated Hearings Officer€s report. Or we could go to the next level and say let€s have them all have a chance to make closing arguments, and then make a decision. So -. GRAHAM:I€m okay either way. ALAMEDA:Okay. WATANABE:Yeah, I had thought that we had limited it to just answering questions for clarification purposes and that we were not into oral arguments. 19EXHIBIT B ALAMEDA:Right. Okay, if you guys feel comfortable with that, we could stay at that level. But if we want to bump it another level, we could that too. So it€s up to you guys. SIRACUSA:Well, my original motion was just for clarification purposes. ALAMEDA:Okay, okay. So, fellow Commissioners, are you, do you have enough information, are you guys ready to possibly entertain a motion? TORIGOE:Mr. Chairman, just for clarification -. ALAMEDA:Mr. Torigoe. TORIGOE:Just to clarify the record, has any party actually filed any written request foranoralargument? YOUNG:Well,wehavenot. DARROW:No. ELY:No. TORIGOE:No. Okay. ALAMEDA:Other thoughts, Mr. Torigoe, or concerns we should be aware of? TORIGOE:No. ALAMEDA:Okay. Sounds like we€re ready to entertain a motion. TORIGOE:Well, if you€re done, if you€re completely done with your gathering of evidence and oral argument, then you should close the hearing and then go into decision-making. ALAMEDA:Could I have a motion to close the hearing? SIRACUSA:I so move. ALAMEDA:Is there a second? WATANABE:Second. ALAMEDA:Motion to close the hearing by Commissioner Siracusa, seconded by Commissioner Watanabe. All those in favor aye? COMMISSIONERS:Aye. 20EXHIBIT B TORIGOE:Also, is there any public testimony that you need to take? ALAMEDA:Question, Mr. Torigoe. I thought we weren€t allowing public testimony? TORIGOE:No. Well, you know, you have to allow for public testimony in every -. ALAMEDA:Okay. Oh, we do, okay. TORIGOE:Contested case. ALAMEDA:There is a testifier here by the name of Bob Ely. Do we have to do the formal, have everybody sit down, or could he provide testimony where he€s at? TORIGOE:Well, he€s here as a contested case party. I don€t know that he intends to dosomethingdifferentfrom,orsaysomethingdifferentfromwhathewouldsayasacontested case party. But, you know, it being a contested case, if you€re going to allow him to give testimony or argument as it may be, then you probably need to allow the other parties to do the same. ALAMEDA:Yeah, fellow Commissioners, I am hesitant to allow Mr. Ely further testimony cause then it will open it up for everybody else. I think we have the information, the Hearing Officer did spend time with the parties. WATANABE:Mr. Chairman? TORIGOE:Is there -? ALAMEDA:Commissioner Watanabe? WATANABE:I would tend to agree except that if there are other individuals from the public who would like to testify I think we are obliged to accept their testimony. But I would agree that if we allow the intervenor to act as someone from the public to testify then we have to go to oral arguments, because you€re not providing equal opportunity. SIRACUSA:He can€t wear two hats. LEITHEAD-TODD:Mr. Chair? ALAMEDA:Yes, Ms. Leithead-Todd. LEITHEAD-TODD:Both the intervenors and Mr. Young are not lawyers. They€re not familiar with the rules, and they may not have understood that they needed to put in a request for oral argument. So what you may want to do is give them an opportunity to request an opportunity for oral argument. I mean it€s just in fairness because they€re not familiar, they€re representing themselves. And I€m just thinking that if you€re making the record and, you know, if there€s any potential for an appeal of this that you want to make as full a record as possible and give them the opportunity if they so desire. 21EXHIBIT B ALAMEDA:Thank you. Mr. Torigoe, the request, is that a formal request or is it one that can be presented before us today? TORIGOE:Well, the Commission always has the discretion to allow oral argument, whether you have a formal request or not. And so if you, you know, have basically a, if the parties basically are agreeable to that and, or if you just want to allow it to make sure that you have a full record, you know, it€s within your discretion to allow oral argument. WATANABE:Mr. Chair? ALAMEDA:Commissioner Watanabe. WATANABE:I have a question. Can I then take it that the County has not an objection tothatandthatwouldnotnecessarilyopenthisuptocompleteoralargumentsonallparties?Or are you suggesting we open it up -? SIRACUSA:If you offer one, you have to offer all, yeah? TORIGOE:Yeah, I think basically -. WATANABE:Well, that€s what I€m thinking and yet, you know -. TORIGOE:But you can also limit. LEITHEAD-TODD:Yeah, I think the only issues that the parties need to be arguing is evidence that€s in the record and not use this as an opportunity to bring new evidence in. But I think, just generally I think the Department and the Director takes the position that when we€re dealing with members of the public, particularly non-lawyers, that, you know, you try to accommodate them as much as possible. ALAMEDA:Okay. Commissioner Watanabe? WATANABE:Well, in light of that, then I guess we should revise the motion to open it up to oral arguments; and I would so move. SIRACUSA:Second. ALAMEDA:Okay, the motion was made by Commissioner Watanabe to reopen it to, could I get clarification? WATANABE:Oral arguments. ALAMEDA:To oral arguments. Is there a second? SIRACUSA:Second. 22EXHIBIT B ALAMEDA:Seconded by Commissioner Siracusa. All those in favor say aye. COMMISSIONERS:Aye. ALAMEDA:So noted. All right. So the protocol then, who do we start with? Do we start with theapplicant? TORIGOE:Normally you start with the applicant, yes, then intervenor, and then the Department. ALAMEDA:Okay. Mr. Young, this is your opportunity to make your statement. YOUNG:Mr. Chairman and fellow Commissioners, thank you very much for your patience and a lot of time that you folks have spent reviewing the documentation. There€s quite abitofinformationinfrontofyou,andIwouldnotwanttotakeyourprecioustimeinreviewing most of it. Let me just say that over the past decade or so a lot of the wireless carriers have worked to provide as best a level of coverage as we possibly can. But, nonetheless, there€s still a number of gaps throughout the entire state. The reason why we identified a particular area primarily comes as a result of community concerns and community complaints. That is a red flag. This particular area has a red flag from Verizon€s point of view. And, as a result, we would like to fill the gap that presently exists in the coverage between Keaau and Pahoa. We cannot hide a 100-foot tower no matter what we do. What we€ve tried to do in our proposal though is to find a location that will be from the general community as least intrusive as possible, if you could visualize a non-intrusive 100-foot tower. And one of the areas that we looked at was to find a location that would be set back from the Keaau-Pahoa Highway, such that the greater community and those who frequent and drive up and down the road would not be staring at a 100-foot tower every single day. So we found a site further back in an area that we felt would be mitigated because of its distance from the road, as well as because of the trees that are around that area. We feel that it€s a good site. It fulfills our transmission and reception requirements. And although for those neighbors who are very close by, from the general viewpoints, we feel that that particular site, although it cannot be hidden, what€s around it would aid greatly in being able to mitigate the visual intrusion. Okay, so with the information that you now have in front of you, I respectfully request that you view our application favorably with an approval. Thank you very much. ALAMEDA:Thank you Mr. Young. Mr. Ely? ELY:Yes. ALAMEDA:First of all, I want to say thank you for being patient and waiting your time. But, go ahead, this is your opportunity. ELY:All right. I represent, my name is Bob Ely, as I said before; and I represent the Orchidland Community Association Board of Directors and the three neighbors that are in the immediately adjacent properties. And I will be as brief as I can, not take up any more 23EXHIBIT B of your time than necessary. But I think you need some additional facts in order to make an informed decision. I€d like to say that Orchidland is not, are not a bunch of Luddites that are against cell towers. We agree that cell towers and better communications are necessary. What we disagree with is the location of this tower in amongst a bunch of homes. I€d like to briefly outline from our point of view what this cell tower is, a 104-foot tower, three immediately adjacent homes. Two of them 200 feet away with stunning views of the tower outside of their living room windows, and another home is only 63 feet away from the base of the tower. The bedrooms of this closer home will actually be in the fall shadow‚ of the tower. This is what we€re talking about (diagram). As far as I€m concerned, this is what we should be talking about. ALAMEDA:Excuse me, you said it€s Ely, your last name? ELY:Ely. ALAMEDA:Mr. Ely, you know, we just had a comment by Miss Todd about adding furtherevidencetothedocument,tothedocumentation.AndI€mjustwondering,Mr.Torigoe, is it okay to have the -? SIRACUSA:It€s not further evidence. This was mentioned, the fall zone‚ was mentioned. I can€t remember where, but I remember reading about it. There was no picture of it. ALAMEDA:Okay. Mr. Torigoe, -? TORIGOE:Yeah, Mr. Chairman, basically, if there€s an exhibit or drawing that is based on the evidence, you can make an argument that way. So, I guess, the question is whether the parties agree that there is evidence upon which this drawing is based in the record? LEIHEAD-TODD:I believe there€s evidence in the record that indicates the distance of the house from the tower, which is approximately 63 feet; and this illustrates, I guess, the tower being 104 feet, and the arch of the tower versus the location of the house. ALAMEDA:Mr. Young, are you okay with this description? YOUNG:Yes. I have no issue with what Mr. Ely wants to present. ALAMEDA:Fellow Commissioners? All right, Mr. Ely. ELY:Okay. I€ll keep going and try to make it fast. But I believe that is an accurately drawn scale drawing. 24EXHIBIT B Now, if there were some really compelling reason to put the tower in this spot, that might be one thing. But there really isn€t a reason to locate it so close to these houses. There are a number of other alternative sites available. I don€t know how we got to this point. I honestly don€t understand it. The facts are so simple that it€s baffling to me. Most communities have got building codes that require a setback that would prevent a situation like this from developing. I gather that here in Hawaii we don€t have such building codes. Here we€re allowing a 104-foot tall mechanical eyesore to loom over a house. We have a group of innocent property owners that are going to lose tens of thousands or hundreds of thousands of dollars in diminished property values as a result of it. And why? As nearly as I can tell, it€s because Verizon is in a hurry to get this thing permitted. Almost a year ago Verizon came to the Orchidland Board of Director and told us about this project. At that time we made it very clear that we objected strongly to the location of the tower. And,asaresult,wefiledforacontestedcasehearing. Atthatpointthiswholethingbecameboggeddowninprocess.‚AndbythatImeanallrational considerations ceased, and the parties became bogged down and plodded ahead with the mechanics of this contested hearing process. The actual contested case hearing in 2005 as far as Orchidland was concerned was a rather sorry affair. The Planning Department resolutely stood by their decision to approve the application even though, as Mr. Darrow testified, no consideration was given to the financial impact on the immediately adjacent properties. OLCA€s request to introduce some common sense in this regard (that is loss of property value to the adjacent property owners 63 feet away) was denied because we didn€t have a study or solid evidence to back it up. Yet, Verizon was allowed to cite a completely irrelevant property value study done on the mainland, which clearly states that it€s applicable to houses a block to five blocks away. Not 63 feet away! Testimony regarding the concerns was effective, regarding health concerns was effectively barred by the hearing examiner. The Telecommunications Act of 1966 precludes the use of health issues as an argument in these cases. That€s fair enough. The science may not be there for it. However, when you have a tower looming over your child€s bedroom the perception of possible radiation and health problems and the anxiety that they induce in the property owner are real. Following the hearing the process just proceeded. The Planning Department spent a lot of money on Corporate Counsel writing up a proposed Findings of Facts and Conclusions of Law for the hearing examiner to sign. Then the hearing examiner spent more of the County€s money and wrote his own. And it€s interesting to note that 90+ percent of the verbiage in these documents has to do with soils, archaeology, land use, need for better communications, etc.; things that are not even at issue. Very little of it addresses the real issues such as property value diminution, aesthetics and alternative sites. And when something relevant is mentioned, it is dismissed with a cavalier statement like owners will be able to see the tower if they look in the appropriate direction.‚ A 104-foot tower 63 feet away! This is like saying you will see the faces on Mt. Rushmore from the parking lot if you look from the right direction. That€s what I mean by getting lost in process.‚ The neighbors really deserve more consideration than that. 25EXHIBIT B The question of alternative sites is important. There are a number of them available. The Wood property is on Orchidland Drive and is adjacent to the Monroe property. It is acceptable to the Orchidland Community Association and is technically acceptable to Verizon. Moreover, it is locatedin an area proposed to be Medium-Density Urban‚ by the Planning Department. In addition, there is the Church on a Sure Foundation which is 1200 feet away from the application site. It€s on Highway 130. Both of the lot owners have indicated, in writing, a willingness to have a cell tower on their property. The question is did Verizon make a reasonable effort‚ to find an alternative site, as the hearing examiner said in his report? I don€t think they did. In spite of the fact that Verizon knew that there was strong opposition to this project in March and were directed to the Ainaloa site by the OLCA Board of Directors as a possible alternative, they never bothered to make contact with the Ainaloa Community Association and made no radio propagation measurements until late November.Theeaseoffindinganalternativesiteisillustratedbythefactthatwithasimple letter to Mr. Wood and a visit to the Church on a Sure Foundation which took me about an hour, we were able to turn up two viable alternatives. Now if Verizon claims that these alternatives were not developed in a timely manner, it is due to Verizon€s lack of diligence. OCLA should not have had to do their homework for them! Okay. Verizon may claim that they proposed three alternative sites on the Monroe property, they would be willing to slide the tower back along the property line, or move it in front of one neighbor€s front window to another neighbor€s front window. A token improvement. For this we had to give up our right to contest this application. Think about this. What Verizon is really saying is that, yes, they can improve this situation somewhat, but unless we are willing to give up the fight they are going to leave the tower right where it is ƒ where it does the greatest possible damage to the neighborhood. A nice corporate citizen! OLCA, Verizon and the neighbors did try to work out a compromise and had a tentative agreement that they spot 700 feet away from the Monroe€s house, 700 feet away near the Monroe€s house and abutting the Wood property would be acceptable. The OCLA Board of Directors even voted to withdraw their objections if the tower were to be located there. However, the Monroe€s apparently had home expansion plans‚ for this area. And, it seemed that a new permit application might be needed if the tower were moved to an adjacent TMK. Thus, Verizon would not pursue the option. My translation of this is, I don€t want this thing next to my house (even though I€m being handsomely paid for it with the lease). So, let€s stick it to the poor guy next door and get on with this project.‚ Nice corporate citizen! I would characterize Verizon€s attitude as nothing short of arrogant in this case. In a December telephone conversation with Verizon€s Mr. Young, I was told (in almost these exact words) that They have the Planning Department€s approval, the favorable recommendation of the Hearing Examiner. This process has been going on long enough. Why should we bother to look at alternative sites.‚ Contrary to the article in the Tribune-Herald of about a month ago, Verizon has not even offered to mitigate the visual impact by disguising the tower as an artificial tree or a stealth tower.‚ Nice corporate citizen! 26EXHIBIT B To summarize, what we have here is a gross intrusion into what is essentially a residential neighborhood. A cell tower 63 feet from somebody€s house will have a significant aesthetic and financial impact on that property, and there is not one of you that can look me in the eye and tell me otherwise. Most importantly, it is simply not necessary to put the tower there. Verizon made an error early on by applying to site the tower in the midst of several homes. The Planning Department compounded the error by approving the application. It€s time to stop burying our heads in the process‚ and start caring about the citizenry. Please judge this application by the evidence, by the logic and by the fairness. If you do, we are sure you will deny this application. If you cannot deny it outright, at least tell us where we go wrong in our arguments. ALAMEDA:Thank you, Mr. Ely. Ms. Todd? LEITHEAD-TODD:Countyhasnooralargumenttomake. ALAMEDA:Okay.FellowCommissioners,oh,there€sarequesttotakefive.Isthere any objection to that? All right, let€s take five. We€ll be back in five. RECESSEDThe Chair called a short recess at 11:45 a.m. RECONVENEDThe meeting reconvened at 11:50 a.m. ALAMEDA:Will the Hawaii County Planning Commission now come back in order. All right, picking up where we left off, the Countydidn€t have any further arguments. We€ve heard the closing argument by our intervenor. The applicant has the last say to either react or to add further comments. Mr. Young? YOUNG:Thank you. I don€t have any additional information to add other than I€d like to clarify a few statements that Mr. Ely presented. ALAMEDA:Sure. YOUNG:With regard to being a good corporate citizen, Verizon I believe is, and always has been, and will continue to be. The statement that Mr. Ely made with regard to basically a take it or leave it regarding if we move our site then in exchange we want them to back away from their contested case, it was actually an offer that the Orchidland Association presented to Verizon and not the other way around. That€s true isn€t it, you offered to withdraw -? ALAMEDA:Pleasedirectyourquestiontome. YOUNG:I€msorry,I€msorry.So,anyway,that€sthesituationwithregardtothat matter which Mr. Ely brought up. With regard to the church site that€s about 1200 feet away, afterMr.Elybroughtthattomyattention,Ididvisitthesite.Wetooksomecalculationsand came to the determination that that site also since it€s very close would also work. But bear in mindthatthesesiteswerebroughttoourattentionIbelievearoundtheearlypartofDecemberor 27EXHIBIT B , thereabouts, far into the process, this application processsuch that with the responses that we received from the Planning Department and the contested case, Mr. Love, we felt that we were on good ground and decided to pursue this particular site. With regard to the appraisals, I did state thatthese appraisals were done by three certified appraisers on the mainland in Washington state. And although it was in a different geographic area, the principals of real estate would still apply. And the conclusions of those three appraisers was that the effect on surrounding property values would be minimal at most. With regard to alternate sites on Mr. Monroe€s property, we did look at four additional sites, three of which were acceptable to the Orchidland Association, one of which was not acceptable to Mr. and Mrs. Monroe, primarily because they have a working orchid farm. In that back area of their lot, there is considerable growth that they actually use to harvest. Yes, they do have some plans in the future to expand and develop their property in that direction. But right now thatispartoftheirworkingfarm,theirworkingorchard. OneofthesitesthatweconsideredontheMonroepropertyasanalternativewouldhavepushed the facility, I€m not sure of the exact distance, but 160 or 170 feet further away from the front; and, also, additional distance away from Mr. and Mrs. Alatan€s property. We also proposed at that time to put up a monopine stealth tree because there are several other fairly tall pine trees in that further back area. We thought, and I thought, that that particular site would have been a good compromise, further away from the Alatans,further away from the main street. We had proposed a stealth monopine in a cluster of three or four other monopines of similar height, but that was not acceptable to Mr. Ely, Mr. Lapinski and the other members of the Orchidland Association. So that brings us back to the original site that we pursued from the very beginning. Other alternatives have been considered at various times. Some have not worked out because of various reasons, others we have not pursued as aggressively because it came about very late in the process. ALAMEDA:Thank you, Mr. Young. YOUNG:Thank you very much. Fellow Commissioners, this is our opportunity to gather any other information we need in terms of questioning before I entertain a motion to close the hearing. Commissioner Watanabe? WATANABE:Yes. Mr. Young, then is it your testimony that in spite of the efforts that were made on this particular site that the current location is about the best location that you can settle upon? I€m not asking you would you move to a different TMK. I€m asking you if the current location, 63 feet from whichever house, etc., in your opinion is the best at this point? YOUNG:In my opinion, the best site is the one that€s further behind where we -. recommended a monopine. It€s farther away from Mr. Alatan€s house WATANABE:But that€s not acceptable to the -? YOUNG:That€s not acceptable to Orchidland. It would be acceptable to us. So, yes, our current site is the best site that we have on the table right now. 28EXHIBIT B ALAMEDA:Commissioner Watanabe? WATANABE:Thank you. ALAMEDA:Other Commissioners, questions that we might want to entertain before we move forward? Commissioner Siracusa? th SIRACUSA:Yes. In the July 28 paper it was announced that a law suit had been filed by three environmental groups suing the FCC actually, regarding cell towers and their effects on endangered birds. And I€m wondering if you know if that case has been completed and if so what the ruling was. ALAMEDA:No, I do not. SIRACUSA:Thank you. ALAMEDA:Further questions that we might ask in order to move forward, fellow Commissioners? Commissioner Watanabe. WATANABE:I move that we close the hearing. SIRACUSA:Second. WATANABE:Motion that we close the hearing by Commissioner Watanabe, seconded by Commissioner Siracusa. All those in favor say aye? COMMISSIONERS:Aye. ALAMEDA:So noted. Is this discussion opportunity time, Mr. Torigoe? TORIGOE:Yes. Since you closed the hearing now, you can go into a motion, deliberation, discussion. ALAMEDA:Okay, could I ask the parties to be seated. Thank you. WATANABE:Mr.Chair? ALAMEDA:CommissionerWatanabe. WATANABE:I€mreadytomakeamotionifthat€sokaywiththefellowCommissioners. ALAMEDA:Sure. WATANABE:ImovetoaccepttheCountyofHawaiiPlanningDirector€sproposed Findings of Fact and Conclusions of Law and the recommendations of the Hearing Officer, revisedasrecommendedbytheDirectorandCorporationCounsel,removinganyreferences 29EXHIBIT B within the Hearing Officer€s report suggesting that subjective feelings of surrounding property owners are invalid, and also to approve Special Permit application SP 05-004. ALAMEDA:Motion made by Commissioner Watanabe. Is there a second? SIRACUSA:Before we get to that, I would like to ask Commissioner Watanabe if he would accept a friendly amendment, which was the point I had made earlier to Condition No. 3 about co-location, changing the word allowed‚ to encouraged?‚ ALAMEDA:Commissioner Watanabe? WATANABE:That€s acceptable to me. ALAMEDA:Motion was made by Commissioner Watanabe, considering the friendly amendmentbyCommissionerSiracusa.Isthereasecond? TORIGOE:Mr.Chair,canIjustclarifysomething? ALAMEDA:Sure. TORIGOE:ItsoundedlikeCommissionerWatanabewassaying,Ithinkhestartedoff saying to accept the recommendation of the Director and then, you know, also referring to the Hearing Officer€s findings. Is it your intention basically to adopt the Hearing Officer€s findings with the amendments that you€re stating? WATANABE:If it€s not required then -. I was trying to incorporate the recommendations that were made by the Director and Corporation Counsel because they felt very strongly that there were some errors in those findings; and I thought that might be the only way to introduce that. If it€s not necessary then I€m perfectly willing to amend it to just limit it to the Findings of Fact, Conclusions of Law by the Director. ALAMEDA:Commissioner Graham. GRAHAM:I think Mr. Torigoe€s point is that in your motion, you recommended that we accept the findings of the Planning Director. Whereas the commentary we got from the Planning Director and the counsel was that the findings of the Hearings Officer needed to be amended. So I think Mr. Torigoe wants to know are you basing your motion on the findings of the Hearings Officer as amended, or are you basing your motion on the findings of the Planning Director? ALAMEDA:Commissioner Watanabe? WATANABE:I would prefer to, I think it would be less convoluted if we eliminated the Hearings Officer€s then and limit it to the findings of the Planning Director. ALAMEDA:Mr. Torigoe, hearing that, your thoughts? 30EXHIBIT B TORIGOE:Well, again, just to clarify, so there€s two separate documents. One is the report of the Hearings Officer which includes proposed findings and conclusions; and then there is a County of Hawaii Planning Director€s proposed Findings of Fact, Conclusions of Law and Recommendation. Is -? WATANABE:Should I then revise my motion to eliminate the Hearings Officer€s report? TORIGOE:Well, whatever your intention is, whichever one of these you are intending to adopt and amend, you just need to make that clear. ALAMEDA:Let me ask our senior Commissioner, Commissioner Springer. SPRINGER:I would be more comfortable first accepting the Hearings Officer€s report. This was an action that was referred to them by us. I think it€s only proper to receive their report. ALAMEDA:Anyquestionstothat? SIRACUSA:Ihaveaquestion. ALAMEDA:CommissionerSiracusa. SIRACUSA:If we accept the Hearing Officer€s report does that mean that we are approving the permit? I just want to clarify before I vote. TORIGOE:Yes. ALAMEDA:Mr. Torigoe? TORIGOE:Essentially, yes. WATANABE:So then I should revise it the other way around, which would be accept the Hearings Officer€s report with revisions, eliminating any references that suggested subjective feelings of surrounding property owners are invalid and should not be considered. Right? Then that would be the findings. TORIGOE:And you€re referring to the earlier discussion on the record from the Planning Director and the Planning Director€s attorney, right? WATANABE:That is correct. I believe she indicated there were four areas. ALAMEDA: Right. WATANABE:It€s real confusing now, isn€t it? LEITHEAD-TODD:It€s clear. 31EXHIBIT B ALAMEDA:Fellow Commissioners, there€s a motion made with the noted modifications to the Hearings Officer€s report; and I think there was a second. No? TORIGOE:No, no second yet. ALAMEDA:Not yet. Is there a second? Commissioner Iwashita. IWASHITA:Given the lack of a second, I€m prepared to make another motion. ALAMEDA:Seeing that there was no second, Commissioner Iwashita. IWASHITA:I move that the application for a special permit docket number SPP 05-004 be denied based on the following reasons: And the reason being that the record shows that it would be unreasonable to grant this motion given the adverse impact on the neighbors and the, essentiallythefailurefortheapplicanttoestablishtheneed,ortherecordreflectsthatthereare other possible alternative sites for which there are no objections on the record which can be pursued by the applicant. SPRINGER:Second. ALAMEDA:Okay. Motion was made by Commissioner Iwashita to deny this application for the reasons noted, seconded by Commissioner Springer. Discussion? IWASHITA:Mr. Chair? ALAMEDA:Commissioner Iwashita. IWASHITA:Thank you. As the maker of the motion, I just wanted to point out we received, and I just wanted to make clear that these documents we just received which are copies of, sorry, I should have clarified this earlier, the November 28, 2005 letter on Verizon Wireless letterhead to Les Young from Debra Adams, a November 28, 2005 letter on Alcoa letterhead from Colin Love, oh, addressed to Colin Love signed by Les Young, a March 30, 2005 letter on Alcoa letterhead addressed to Richard Howard signed by Les Young, and an August 5, 2004 letter again addressed to Richard Howard, signed by Les Young, that these are all part of the record. It€s my understanding they€re all part of the record in this case. ALAMEDA:That€s correct. IWASHITA:Thank you. I€d like to refer my fellow Commissioners to a couple of pages of the attachments, actually, to the November 28, 2005 letter addressed to Les Young from Debra Adams. Interestingly, if you look at the image that is referenced with the proposed Puna site, which is supposed to be the effect of the present antenna being proposed showing basically the complete coverage -. What I did was I did a little cutout. This is the effect of that antenna, the yellow, just general, just sort of eyeballing it. Right? If you take that, and then the last page is the one that we didn€t have that€s supposed to show the T-Mobile coverage, supposedly inadequate. What sort of struck me when I looked at this was if you look at the core of each of the existing sites of the coverage, and I€m assuming those are all 100-foot towers, they all had 32EXHIBIT B basically the same array, coverage. Right? The outsides are limited probably by geographical features or whatever. But the basic core coverage is the same. And the proposed site and its coverages follow the same pattern. But if you look at the T-Mobile comparison, for some reason it€s a lot smaller. It€s significant ƒ if you look at this it€s signi -. So what I did was I took this cutout, I centered it in the T-Mobile site, and you get full coverage. So it seems to me that if the T-Mobile site were a 100-foot tower as proposed by, you know, in this case, right, that you would have, I€m speculating obviously, but it appears to me that there€s some real problem with what has been presented and how it has been presented. And that is, I take that into consideration in my voting to deny this application. And I think more importantly, I think that since it€s very clear on the record that Verizon can continue to pursue two other sites, that they€re, one, there€s absolutely no objection to, actually it has been represented on the record that the Orchidland Association has approved that site in advance as a matter of negotiating with the owner to have it set up, that those really ought to be pursuedbeforeweconsiderseriouslyhavingthisparticularsite,whichis-.I€llmakea controversial statement, you know, this is like putting geothermal wells in the middle of subdivisions. You know, as much as possible we want to avoid doing it. Thank you. ALAMEDA:Thank you, Commissioner Iwashita. Commissioner Siracusa and then Commissioner Graham. SIRACUSA:Yes. I want to thank Commissioner Iwashita for bringing that up. And I want to, I€m looking at criteria to consider, and there€s also Criteria E, the land upon which the proposed use is sought is unsuited for the uses permitted within the district. I think that land is suited for the use just because it already is being put to that use. There is a house on the property. And so this application does not meet criteria E. I consider that Criteria B, the desired use shall not adversely affect surrounding properties, is an extremely important one. Not withstanding the fact that my cell phone is Verizon and that I would probably benefit from the increased coverage, and, you know, I look at all the power poles on the highway and everywhere and people never complain about those going in. There are a lot of areas in Puna especially that do not have any coverage at all and only cell phone is available; and it€s necessary to call 911 and all sorts of other things. And yet I believe that there are, as Commissioner Iwashita said, other opportunities and other alternatives that are open to Verizon. And I would like to really see them explore those; and so I will be voting in favor of the motion. IWASHITA:Just for the record, I also have a Verizon. ALAMEDA:Commissioner Graham? GRAHAM:I also will vote in favor of this motion. But I did want to indicate to Mr. Young that I believe that your comportment both in the transcript of the hearing we read and here today has been honest and forthright and much appreciated by this Commission. And I think from my perspective that the reason that we€re not supporting the application, the need is there, and I think your initial finding of this site was a reasonable one. But given that the community association supporting the neighbors and going out of their way to look for additional sites I think was really enough that Verizon had to really step back and examine other things 33EXHIBIT B more thoroughly than what they did. And I think that€s the reason why we cannot support the siting of your tower as it€s presented before us now. Thank you. ALAMEDA:Thank you, Commissioner Graham. Any other final comments before we move into a voting? Motion was made by Commissioner Iwashita to deny this application. It was seconded by Commissioner Springer. Seeing no further discussion, staff? DARROW:I have a question of clarification. ALAMEDA:Sure. DARROW:This denial request is a denial of the Hearings Officer€s report, or is it a denial of the special permit, or -? Just for clarification -. ALAMEDA:FellowCommissioners,fromwhatIunderstand-.Well,makerofthe motion, could you please answer that question? IWASHITA:My motion was denial of the application based on the reasons stated. DARROW:Okay. ALAMEDA:Mr. Darrow, does that satisfy your question? DARROW:Thank you. I just needed for clarification -. ALAMEDA:Fellow Commissioners, do you have any objections to that? Okay -. GRAHAM:Just a question. ALAMEDA:Go ahead. GRAHAM:Mr. Torigoe, is there any further information you need from the Commission before we vote for proper procedure? ALAMEDA:Thank you, Commissioner Graham. TORIGOE:No, I don€t think so. I guess just to, I guess you should understand that I guess what we€re going to have to do at this point is since we, I guess, the, -. I€ll have to work with the staff to work up an appropriate set of findings of fact, conclusions of law based on the record; and we€ll have the Chairperson go ahead and execute that. And I think we€ll also put in, as the last time we had to do this I mentioned putting in a paragraph that talks about that disposing of all of the other proposed findings and conclusions, you know, if they€re inconsistent with what you€re voting today then they€re rejected. If they€re consistent, then what we will write up will incorporate the intent of your vote today. IWASHITA:That€s fine. 34EXHIBIT B ALAMEDA:Commissioner Springer? SPRINGER:In response to your earlier question of me, I believe that it was proper just sequentially to take up the Hearings Officer€s report; andmotion on, to accept that was made, it did not receive a second. Soin myopinion we had in effect addressed the Hearings Officer€s report. I just would, I think Mr. Torigoe answered the question with regard to our proceedings yielding a good and proper record that can be taken up in the write-up of this. TORIGOE:I think so, we can do that, basically, that there was a motion to adopt the Hearings Officer€s report but that died for lack of a second. ALAMEDA:Very well. Once again, a motion was made, seconded as well. Mr. Darrow? DARROW:Thankyou,Mr.Chairman.CommissionerIwashita? IWASHITA:Aye. DARROW:CommissionerSpringer? SPRINGER:Yes. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner Salavea? SALAVEA:Aye. DARROW:Commissioner Siracusa? SIRACUSA:Aye. DARROW:Commissioner Watanabe? WATANABE:Nay. DARROW:And Mr. Chairman? ALAMEDA:Aye. DARROW:The motion passes to deny the special permit application six to one. ALAMEDA:Thank you. 35EXHIBIT B The discussion ended at 12:17 p.m. Respectfully submitted, Sharon M. Nomura East Hawaii Secretary 36EXHIBIT B