Loading...
HomeMy WebLinkAbout2008-03-20 TKOHALA LLC PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT MARCH 20, 2008 A regularly advertised hearing on the applications of Initiator PLANNING DIRECTOR (SMA 379) and Applicant KOHALA LLC (REZ 866/SMA 379) was called to order at 9:08 a.m. in the nd Hapuna Beach Prince Hotel, Hau Room, 62-100 Kaunaoa Drive, Kohala Coast, Hawaii, with 2 Vice Chairman Alvin Rho presiding. PRESENT: Lani Bowman ABSENT & EXCUSED: C. Kimo Alameda Takashi Domingo Andrew Iwashita Shelly Ogata Alvin Rho Rene’ Siracusa Rodney Watanabe QdkkVnncv`qc Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Planning Program Manager (from 12:05 p.m.) Phyllis Fujimoto, Staff Planner (from 12:05 p.m.) Jeff Darrow, Staff Planner Christopher Yuen, Planning Director Steven Lim, Attorney for Kohala LLC And 3 people from the public in attendance. INITIATOR: PLANNING DIRECTOR (SMA USE PERMIT NO. 379) Continued hearing on the revocation of Special Management Area (SMA) Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved, owned by Kohala LLC, is located along the southwest (makai) side of Akoni Pule st Highway and the Kohala Ranch Subdivision, Kahua 1, North Kohala, Hawaii, TMK: 5-9-1:8. APPLICANT: KOHALA LLC (REZ 866) Continued hearing on an amendment to Condition C (time to secure final subdivision approval) of Change of Zone Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5a) to a Single-Family Residential 15,000-square foot (RS-15) district. The property involved is located along the southwest (makai) side of Akoni Pule Highway and st the Kohala Ranch Subdivision, Kahua 1, North Kohala, Hawaii, TMK: 5-9-1:8. APPLICANT: KOHALA LLC (SMA 379) Continued hearing on an amendment to Condition 4 (time to secure final subdivision approval) of Special Management Area Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved is located along the southwest EXHIBIT A 1 st (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua 1, North Kohala, Hawaii, TMK: 5-9-1:8. WATANABE: The first agenda item is a part of the Unfinished Business. The initiator is the Planning Director, SMA Use Permit No. 379. And actually, the first three items are sort of all interrelated; however, we’ve been informed by the Planning Director that probably the proper procedure for handling this would be to address Agenda Item 2a, which is the Applicant: Kohala LLC (REZ 866) regarding the extension of time on the Change of Zone Ordinance. But before we begin this, I believe I owe this Commission an apology for the previous meeting, which we addressed the Kohala LLC issue; and I think I may have taken some liberties in that meeting and possibly led or directed the conversation a little too much as Chair. But for the record, I want to make it clear that I was not trying to dictate the results of that meeting. I just sensed from previous meetings that we didn’t have the votes one way or the other; and I certainly didn’t want to wind up in a situation where if we did wind up with the votes, we would be trying to craft conditions on the fly. And so I need to thank Ivan Torigoe, our counsel, because he informed me that under the Robert’s Rules the Chair is able to relinquish the position when we encounter a topic like this. And so previously I talked to Mr. Rho, and agreed with him that he would chair the meeting. This in no way is any slight to Ms. Siracusa; the only reason I selected Mr. Rho is because he was in attendance at that particular meeting. And of course, the other reason is because he seems to be in favor of the Planning Director’s recommendation; and so I think that helps to create a level playing field, and just to show I’m sincere about that, not trying to dictate where this all heads. So with that, maybe what we can do is we’ll switch places, Mr. Rho will Chair -. DOMINGO: Mr. Chairman. Mr. Chairman. WATANABE: Yes. Yes, Mr. Domingo. DOMINGO: May I take a few minutes also? WATANABE: Sure. DOMINGO: I think for me also an apology is in order for my irate remarks that I made responding to the action taken that day when we were on this issue. It was somewhat abrupt and I know it was not proper, in the right tone. But I would like to apologize to you and the Commission also. WATANABE: No apology is necessary to me. Thank you anyway, though. So maybe what we can do is switch positions, Mr. Rho, and conduct the meeting. RHO: Okay. Maybe before we proceed, can I call on Commissioner Bowman? She wanted to share -. BOWMAN: Yes. For the record, I’d like to note that I previously was employed by Gentry-Pacific, I believe, in 1993, the prior owner of the parcel; so if the Commissioners see that EXHIBIT A 2 as any type of conflict of interest, I’d like that just on the record. I was a community relations person. Thank you. RHO: Okay. Any objections or concerns? How about from the parties? Mr. Lim, maybe you can step forward. And from the Department, Mr. Yuen? LIM: We have no objections for the applicant. YUEN: I have a question. Was part of your role to in any way promote the use of this particular piece of property? BOWMAN: Would you clarify what you mean by “promote?” YUEN: Maybe just to get a better idea what your role was. Did Gentry own other property in Kohala? BOWMAN: This was the only property that I was involved with. YUEN: Were you doing -, what did you do? You know, there’re a lot of different things somebody can do as community relations. BOWMAN: Yeah, I did work with the planner, Sid Fuke, and mostly as a community liaison person getting input from Hui Lihikai and various community groups. They initially, I believe, were looking at a small resort like a retreat resort, was initially what was spoken about. I don’t have the records, and I guess I should have looked up what I was, you know, during that time. YUEN: And then Gentry -, when you say you were working with Sidney Fuke, he was working for Gentry as well -? BOWMAN: Yes, yes. YUEN: And Gentry was in the process of planning the project at that point? BOWMAN: Right. And then I believe that he passed away. YUEN: Mr. Gentry, yes. BOWMAN: Yes. And I think things were changed. I’m not sure. I apologize. I just had a slight role of -, because I lived in the Kohala community, to identify community groups that could be accessed to have meetings with. YUEN: Were you working for them when they went to get their land use approvals, like when they went to the Planning Commission, when they went to the County Council? BOWMAN: I do not think so. What year was that, I’m sorry? EXHIBIT A 3 YUEN: Ninety-seven. BOWMAN: No. YUEN: Ninety-six and 97. BOWMAN: No. It was prior to 95. YUEN: Were you involved in -, were you trying to convince community groups what Gentry wanted to do was a good idea? BOWMAN: No. YUEN: All right. More in the sense of going out and trying to talk to people about what they thought was a good idea? BOWMAN: Exactly. YUEN: Okay, fine. No, I don’t have problem with your participating -. DOMINGO: Mr. Chairman. RHO: Yes, Commissioner Domingo. DOMINGO: As a formality, could we have an interpretation by our counsel, Mr. Torigoe, on this matter? RHO: Mr. Torigoe. TORIGOE: Thank you, Mr. Chairman. Commissioner Bowman, can I just ask you a couple of more questions? At this point in time, do you have any current interest in the Kohala LLC project before us? BOWMAN: No. TORIGOE: Okay. And do you have any relationship with Kohala LLC at this point? BOWMAN: No. TORIGOE: Do you have any kind of relationships or any business related to the Kohala LLC project? BOWMAN: No. TORIGOE: Do you have any connection with the project that might result in you gaining any kind of personal benefit, whether monetary or otherwise, from this project? EXHIBIT A 4 BOWMAN: No. TORIGOE: Do you feel at this point you can exercise independent judgment regarding the matters that are before the Commission today on this project? BOWMAN: Yes, I do. TORIGOE: Okay. Yeah, it seems to me that there isn’t anything that would prohibit Commissioner Bowman from participating at this point, particularly with the parties having stipulated to her continuing participation. RHO: Okay. With that, can we proceed with Mr. Darrow’s presentation? DARROW: Thank you, Mr. Chairman. Good Morning, Members of the Planning Commission and Mr. Chairman. I’ll make it brief this morning, as this is a continued hearing on this matter. This morning we have three items relating to this particular application. Item No. 1 which is the Planning Director’s initiation for the revocation of Special Management Area Use Permit No. 379. We have Item No. 2a, which is Kohala LLC’s continued hearing on an amendment to Condition C for Change of Zone 97-102. Condition C has to do with the time to secure final subdivision approval; they are requesting a 5-year extension. And Item No. 2a (sic) which is the continued hearing on the Special Management Area Use Permit 379, again, for Condition No. 4, time to secure final subdivision approval, and again, a 5-year time extension request. At our December 12, 2007, hearing an agreement was made upon by the parties to be able to submit proposed Findings of Fact, Conclusions of Law, and Decision and Order as well as objections to each. These were all submitted in a timely fashion and they have been distributed to the Planning Commission. Since our last, at our last hearing on January 11, 2008, there was a motion made for Item 2a for the time extension for Change of Zone 97-102. The motion did not pass; the vote was two ayes to four noes. So all these matters were continued from these hearings. We have received some correspondences since our last hearing that I’d like to just bring to your th attention. Dated March 4 is a memorandum that was drafted by the Planning Director to the Planning Commission. This is the information that was requested of the applicant by the Planning Director. The Planning Director had requested certain items be forwarded to the Planning Commission for their information; mainly this has to do with the site preservation plan and the burial treatment plan for the property. Additionally, we’ve received a comment letter from the Department of Transportation, dated March 10, 2008; this has to do again with a clarification request from the Planning Department to the Department of Transportation, mainly for Condition No. 2 in their comment letter that they had sent previously. And lastly, we have received a correspondence from the applicant, dated March 18, 2008; and this has been distributed both through email as well as the hard copy this morning to the Planning Commission. Are there any questions? SIRACUSA: Yes. EXHIBIT A 5 RHO: Commissioner Siracusa. SIRACUSA: Just for the record, Jeff, when you were going through the three items before us, when you got to No. 2, you referred to it as 2a; so you referred both of them as 2a. DARROW: I’m sorry. Thank you. SIRACUSA: So it was just a slip of the tongue. But I just wanted to get it, so that it’s corrected in the minutes and the transcript. DARROW: Thank you. RHO: Other questions from the Commissioners? Okay, so can I call up Mike Isaacs and Gail Byrne? Both of you, I think, have been here before; so you know the procedure. First, let me swear you in. Do you both – can you raise your right hand – do you both swear or affirm to tell the truth now before the Planning Commission? BYRNE: Yes. ISAACS: I do. RHO: Okay. I’m not sure which one of you is going to go first. But whoever is going to go first, if you can start with your name and address -. BYRNE: Sure. RHO: And you can proceed. BYRNE: My name is Gail Byrne. I live at 68-3551 Awamoa Place, Waikoloa. I guess I’m a little confused by the agenda. We couldn’t stay for the rest of the last meeting. I thought the only thing that was on the agenda was the SMA revocation, but it looks like the rezoning is still on the agenda. So the testimony that we submitted today is based on the understanding that the only thing before the Commission was the revocation of the SMA. I guess if we need to, we’ll amend it to be aligned with all of our previous testimony at the three previous Planning Commission meetings, that we are in support of the Planning Director’s initiative to downzone the land as well. So I just preface that if need be. And the written testimony that was just submitted is on behalf of six North Kohala nonprofits and organizations that represent about 400 families. And before I jump into that, I just wanted to say that, on a personal note, including today I’ve testified before public bodies in total of seven times; and four of those have been on this issue before this body. And it’s because I feel so personally, professionally strong about this particular issue. And based on my work as a civil engineer for eight years on land use issues and water quality issues, I just don’t think the land can carry what it’s been zoned for. That’s my personal testimony. And I’ll jump into the written -, what was submitted to you today by those other organizations. EXHIBIT A 6 As I mentioned earlier, we were here at the last three previous Planning Commission meetings. And we are here to support the Planning Director’s recommendation to revoke the Special Management Area Use Permit for this parcel. This is aligned with over 30 years of State and County resolutions, plans, and community petitions that have called for this coast to be zoned Open and Conservation and preserved. I think most significantly it’s been clearly shown that the applicant just doesn’t meet the conditions for a time extension. And we stated this in January. And just to reiterate, you know, the circumstances and contexts under which this application was initially approved have changed and they need to be considered environmentally and socially. There is very compelling documentation that we included again in today’s testimony that the development and construction activities upslope of this area have already significantly degraded the water quality and the reef there. And you are probably familiar with Bill Walsh’s DLNR work regarding this reef. You know, basically the coral has been pretty decimated and killed. And the scale of damage in this area, immediately offshore, is significantly greater than the damage that precipitated the EPA investigations and fines against Hokulia. I know based on my personal, professional experience that – that’s why I’m here for the fourth time, taking time away from work – that development of any kind will only contribute to this problem, especially because it borders the ocean and this area has already been severely impacted. And there really are no best management practices in the world that they are going to guarantee that they are not going to continue to decimate this area. You know, the second point with regard to changes in conditions and contexts since this permit was initially issued is that there is an even greater body of evidence and support that the proposed project is not at all aligned with what the community has consistently expressed with regard to preserving this coastline. The input the last two years during the readiness process for the community development planning up in North Kohala and the draft recommendations coming out of the focus groups, which include a calling for rezoning of the State coastal lands, which includes the parcel immediately adjacent and north of this to Conservation, all this clearly identifies preserving this coast free of development, is the community’s longstanding wishes and desires. You know, the annual reports weren’t followed; the conditions for exercising the options for entitlements weren’t followed. There are no takings here. And there are plenty of court cases that have been cited. We cited one at our last testimony regarding a case on Oahu going all the th way up through the 9 Circuit Court of Appeals with regard to downzoning private property from Resort to Conservation. There’s absolutely not a takings issue here. And my understanding is that the County Council has received a whole bunch of documentation regarding this as well. But I would say, you know, one of the things we really need to consider on this island, you know, socially and those of us involved in the political arena and planning, is there is a real concern for lawsuits. They are going to force the County to take action to protect natural resources from the cumulative effects of development under the Clean Water Act and the Coastal Zone Management Act. And we certainly need to be concerned about upholding the Public Trust doctrine of our State. You know, rulings have upheld the validity of the Public Trust doctrine to trump private land rights specifically for the protection of water and beneficial uses. It’s just a -, EXHIBIT A 7 I think you folks pretty well understand that we are about 20 years behind with respect to integrating our environmental laws and land use policy around the State; and Hawaii Island is no exception. And you know, we’ll probably catch up eventually, but we need to consider that. I think if you are concerned about legalities and lawsuits, you ought to be more concerned about that one cause someone is going to get tired of it soon. I don’t mean to sound threatening. It’s not me. I don’t want to do that. One of the reasons we are here today is because the applicant did not follow the rules and the time to exercise the conditional entitlements has expired. Really, the real reason we are here is because, you know, the County and the State have not listened to what the vision was for the community for a long time. And so we are hoping that you’re going to hear what we have to say today and really what the overwhelming sentiments are. So thanks for your consideration. I need to just reflect again on a personal note that I understand – I wasn’t there for it but – the Council might have deferred action on the rezoning last week, and I think that’s my fault. There was a fuel tax, I think, or something that they had to discuss and there was a time crunch. But I had asked them to introduce a floor amendment to bring it down even further the rezoning to Ag-20; and I think that caused some confusion, and so they had to defer the discussion. So I just want you to know that if there was deferral, it’s probably because of me. And maybe we need to resend that request. But I’m sure over time they’ll be able to understand what that request was all about. Thanks. RHO: Thank you, Ms. Byrne. Any questions from the Commissioners -? SIRACUSA: Yes -. RHO: Commissioner Woodward. WOODWARD: Yes. Despite what you say, I do feel that your testimony has basically been a threat, a threat of lawsuits. And you know, that’s fine. But that’s not what we make our decision on. So you need to keep that in mind, if you are addressing us. And I do take it as a threat. RHO: Commissioner Siracusa. SIRACUSA: Okay, well, I didn’t interpret it that way at all; but everyone has their own interpretations. You mentioned best available control technology in doing development projects and how that doesn’t always get us the results that we want or how they don’t always, with the best available is not always good enough. I was looking at the Director’s proposed Findings of Fact, Conclusions of Law, and on Page 2, No. 5 he mentions that – he’s talking about hydrology – he mentions that the evaporation rate for the area is one of the highest in the State. Do you feel that it would be very difficult with that high an evaporation rate for contractors to keep the dust down even if they kept spraying it with water, and that the dust could migrate to the reef? BYRNE: Well, I think you not only have to consider the evaporation rate but high intensity winds that we have. And you know, people do the best that they can out in construction. But you know, it’s just my own professional, personal experience that you can’t EXHIBIT A 8 mitigate for everything. And what we’re seeing I think across in many areas in terms of planning practices, we’re starting to provide wide buffers between developed areas and sensitive areas because we just can’t engineer enough protection in. And so I think we’re beginning to look at that. DOMINGO: Mr. Chairman. RHO: Commissioner Domingo. DOMINGO: Thank you. I certainly feel like Mr. Woodward; and I feel a threat and see a threat in your comments. But you know, as I look at what you’re trying to say and you’re addressing a body that’s only advisory, you know, I think this issue should be taken with the legislators and our County Council members; they are the ones that would address your concerns and find solutions if needed to address those concerns. And you know, you may want to know that you speak of some violations by the developer. As far as I can see, the only so-called violation was inability to submit a plan approval (sic) application in time. All others are in keeping with the General Plan. In fact, the General Plan was not changed to indicate the concerns that have been expressed with regards to the denying or revocation of the zoning in this matter; and I think it spells out clearly by the Findings of Fact by the applicant. So you know, I just wanted to let you know because putting aside everything the applicant has done the best that he could up to now, and he has made every effort to do it with exception that there has been transaction of the ownership of the property and the inability to find funding to go ahead with the property. But during the interim they have conducted studies and reports, and those have been submitted to the Planning Department. So you know, it’s not like they bought the property and just sitting on their lawns and not doing anything and waiting for an opportunity to just spin it off, you know. But now as they have gone by this far, you know, what alternative do they have? And I think it’s a very serious matter we should consider on this issue. BYRNE: Do you mind if I just quickly respond -? RHO: Can I just generally remind all the Commissioners that what we are doing now is asking the testifier questions, and our discussion can be held or will be held at a later time in this meeting. But did you want to respond to some of the Commissioners’ comments? BYRNE: Yeah. I just wanted to clarify; I don’t know that I used the word “violation.” I did say that annual reports weren’t filed. So if I did use the word “violation,” thank you for bringing that to my attention cause that wasn’t the intention. The other thing is I wasn’t personally insinuating lawsuits. But it is a fact. I mean, I’ve seen those lawsuits brought in other areas. And I think if we are concerned about takings lawsuits, we need to look at those as well. I certainly understand everyone in this room for the most part is a volunteer where we take time off from our work. It’s not my intent to make anyone uncomfortable; it was to share my experience and to share what I thought was what had been expressed through the community. So you know, to the extent that I made anyone uncomfortable with my choice of words, you know, please understand that was not my intention. RHO: Commissioner Woodward. EXHIBIT A 9 WOODWARD: Yeah, I’d just like to follow up on that. None of us are threatened because we have no liability. It’s the County. But it was the way you said it. It wasn’t what you said; it was the way you said it. And that was my concern. Now you’ve presented testimony, as you say, three times or four; and you’ve really given factual information. This time it was coming out, you know, walking softly and carrying a big stick. That was my concern. None of us have any vested interest in this. If the County gets sued, the County gets sued. It doesn’t affect us at all. But I don’t think that type of testimony is particularly helpful. RHO: Commissioner Siracusa. SIRACUSA: Yes. It was said that we are only advisory; and that is true for the rezoning because we submit recommendation to the County Council. It is not true, however, for the SMA portion of this. And I just wanted to make that distinction. RHO: Thank you. Any other -? Seeing none, thank you, Ms. Byrne. Can we move onto Mike Isaacs? First, your name and your mailing address. ISAACS: Mike Isaacs, P. O. Box 116, Hawi, North Kohala. Are we on 2a, or can we like roll into No. 1 also? RHO: You can roll into 1, 2a or even 2. ISAACS: Okay. Basically I came in to support the Planning Director’s SMA Use Permit No. 379, the revocation of it. Based on the fact that – I’m not aware if any of Commissioners have visited the site but – the topography there is very extreme. From Akoni Pule, it slopes downward towards the cliff edge, and there are a lot of little gulches and convolutions on this property. So as a general contractor for many years – I’m retired now – when you talk about dust abatement, you can only be so successful in an area like that. Because of the topography, you’re going to have to do a lot of cutting. And the wind will be a factor. In that area – I’ve been in that area quite a bit in fact, along that coastline – and the winds that sweep down off of the Kohala Mountains are very extreme at times. Generally, they pick up about 12:00 and later in the afternoon; the mornings, pretty malia. As far as trying to contain the dust that’s created by all excavators you are going to have to have on the property, I don’t think it’s going to be very successful, to be very truthful. My concern about that is the fact that that coastline has been impacted heavily over the years by runoffs and such. If ever you were to go around that area when the waves are running, you’re going to see everything turn chocolate brown. The reefs have been inundated with fine soil from that area, and it looses up when you have a high wave action. And the problem with that is that it doesn’t stay there; it starts moving outward further and further and then around the point going up towards Kohala because of the way the currents are. We, the people of Kohala, are very concerned because of ciguatera. Right now, there is a standing rule a lot of Kohala people go by is that – and I fish a lot, so I know what I’m talking about, and I know a lot of people will do – is that from 5-mile marker to Kona, we won’t eat anything. I have friends in Kona who -, sometimes I go over their house and, you know, then they give you fish. You can’t refuse it; it’s just not nice. So I take it and whomever I give it to I EXHIBIT A 10 explain to them, this is from Kona or this is from there. Cause I won’t eat it; but I don’t want to throw it away, either. The more development, coastal development that occurs, ciguatera starts moving. Right now, ulua, I won’t eat it. I don’t care where in Kohala I won’t eat it because it’s a traveler and it eats the smaller fish. So a development like this, because of the density that was initially proposed, will definitely impact that coast and further on up towards North Kohala. So yes, I do support the revocation of this SMA based on that and the fear that ciguatera will start moving up the coast and more of the reef life will be completely wiped out. Coral in that area is gone. I mean, there are no ifs. University of Hawaii did a very good dive in that section there all the way to Kawaihae. And they said you can’t find the coral; it’s just covered with silt. So the more you keep doing stuff like this, the worse it’s going to get. But it moves outward; and the further it moves out, it gets into that current and then it starts moving up the coast. So the impacts are long-termed. So I should hope that you support the Planning Director’s request. Thank you. RHO: Commissioner Woodward. WOODWARD: Yeah, I’d like to ask you a question. Now ciguatera is related to a specific algae bloom that has actually a toxin in it. How is that related to development? ISAACS: You know, scientifically I really don’t know the what for is on that; but we do understand and know that wherever you have development, ciguatera starts blooming after that, obviously from what is put into the soil by development that reaches into the ocean. I’ll give you a prime example. Papa Akau, William Akau, lives in Kawaihae and his family go back for generations in that area. They were fishermen. He eventually became the harbor master for Kawaihae. He told me as soon as they started developing around that area, especially the harbor, he and his family as usual went out fishing, and all of them came down with ciguatera. This is quite a few years ago. Till today his family does not eat fish at all. So it is related to whatever you do to the coast. You know, no one has ever done a study on it. I wish they would. Then perhaps we can stop this bloom and what activates it. But I’m not an expert on that. WOODWARD: If I could follow up. RHO: Follow-up. WOODWARD: My understanding -, and I lived in the Florida Keys for three and half years, and there has obviously been a lot of development, a lot of related damage to the coral reef there; and to my knowledge there has never been a case of ciguatera poisoning in the Florida Keys. Now have there been cases that you are aware of that have been treated in a hospital here in Kona or in Hilo? ISAACS: Definitely. Papa Akau and his whole family were brought down with it. I know people in Kohala whom I fish with, certain kinds of fish they will not touch because they got it from that species -. WOODWARD: Well, exactly, the -. EXHIBIT A 11 ISAACS: And these I get -. WOODWARD: The higher you are in the food chain, the more that toxin gets concentrated; and that’s why people -, even though barracuda is an excellent tasting fish, a lot of people don’t eat barracuda because they are the top order predator. But I have a real question whether development has anything to do with that, to be honest with you. As I say, there has been extensive development in the Florida Keys, and to my knowledge, not a case of ciguatera poisoning in the last 20 years.So it’s a bit of specious science, I think. Yeah, ciguatera poisoning exists; but I don’t think you can trigger that to, or tie that to development, to be quite honest with you. ISAACS: Can I comment on that? RHO: Sure. ISAACS: Growing up on the Big Island, we never knew what that was because it didn’t exist. And this was before coastal development. There was no ciguatera. Nobody got sick. It’s only when coastal development started that this started to come about. And you can find, how they say, the worst areas and look at what’s beyond it. WOODWARD: Well, my understanding is that it’s a basically random event related to a particular type of coral, or particular type of algal bloom that has the DNA – I think it’s got a virus in it or something – that causes the problem. And again, I don’t think you can say it’s tied to development. You know, the fact that it occurred when this development was occurring, I think it’s probably more coincidental than anything else. As I say, there has been extensive development in the Florida Keys and extensive damage unfortunately to the coral reefs, and there is no ciguatera. So -, and there is ciguatera in other places in Caribbean. So, yeah, okay, that’s a problem; ciguatera is a bad thing to have. But I’m not sure that there is any real science that ties it to development, to be honest with you. RHO: No other questions? Thank you very much, Mr. Isaacs. ISAACS: Thank you. RHO: So we can continue and move along, and ask Mr. Lim to step up. Before we proceed, I just want to ask the audience to see if there are any other persons that wanted to testify who have not signed up. We had two signed up, and both have testified. If not, we’ll go ahead and proceed. Can I ask both applicant and the Department to swear in? Do you both swear or affirm to tell the truth now before the Planning Commission? YUEN: Yes. LIM: Yes, we do. RHO: Okay. And we can start with the applicant, Mr. Lim. EXHIBIT A 12 LIM: Okay. Thank you for your willingness to allow the applicant the time and the ability to formulate our case and present you our feelings on the proposed downzoning and our request for the time extensions for the zoning ordinance and the SMA permit in this case. For purposes of the record, I would like to reiterate our preservation of any objections that we’ve raised to the process and the substantive matters that have gone on in these proceedings. And as I understand it, we are still in the consolidated proceeding; so I’d like to make my comments that I’ve given throughout this proceeding applicable to both the Change of Zone application and the Director’s action on that, and our SMA time extension and the Director’s action on that permit also. Also, for purposes of the record, to the extent that the public witnesses have given any expert testimony, we’d like to object to that because they have not been qualified to testify as experts in this matter. Okay. I missed Mr. Darrow’s presentation a little bit. But am I to understand they’ve received the March 18, 2008, letter? DARROW: Yes. LIM: Okay. What I’ll do is I’ll go over our overall presentation on the issues relating to the Change of Zone and SMA application matters before you. And then I’ll go and follow up with our proposed conditions that would be submitted as amendments to our proposed Findings of Fact, Conclusions of Law, Decision and Order in the SMA matter, and also as our proposed conditions for the Commission’s consideration on the time extension for the Change of Zone. As the Commission noted in its initial presentation, feelings have gotten strong. Apologies have been made, and there are strong feelings on all sides. And it’s because this is a very important issue for both the applicant and the County. The applicant’s position is that throughout the last 15 to 20 years all State and County authorities have recognized that the areas of makai of the Kohala Ranch project, which by the way is – Jeff, can you do me a favor and put up the graphic for the General Plan, GIS, for that area – that all the areas makai of the Kohala Ranch project should be limited to urban development in that area as shown on the Land Use Pattern Allocation Guide Map for this area. As you can see, both the State Land Use Commission and the County General Plan since 1989 and also in that 2005 revision that you just went through have shown the majority of the property as Low Density Urban and State Land Use Commission Urban for the entire property. It’s our position that this is the County of Hawaii’s official policy position as expressed by law in the General Plan. And this is something that the County of Hawaii has supported for numerous years. As you can see, in the Kohala Ranch project, which is located mauka of this project, that is an area of several hundred acres, which is presently entitled for development of between 1,000 to 1,500 residential units and, I believe, a golf course also. Located to the south of the subject property, one property away, is a multi-family residential development that has been developed into half-acre, essentially, farm lots or residential lots. In the past 26 years, based upon our research and a research done by the Planning Director, in the past 26 years there have been no involuntary downzonings of any properties that have occurred. th Even then, and this was in 1982 – and this is part of our submittal to you in our last March 18 EXHIBIT A 13 letter – this was a island-wide effort by the County to first amend the General Plan and the Land Use – I’ll call them – LUPAG Maps for several areas across the whole island, then followed those up with downzonings to match the new zoning with the newly enacted General Plan. In this particular case, there has been absolutely no change to the General Plan, LUPAG Map. And even if you accept the Planning Director’s logic that the 2005 General Plan text amendments authorize him to pursue the downzoning, why didn’t the County re-designate this subject property, the Kohala LLC property, just like they did the property to the north. The property to the north was reclassified on the LUPAG Map in 2005, relatively recently, from Extensive Ag to Conservation. No such action took place for this subject property. It is, you know, one of the conclusions of the applicant that part of the reason for the proposed downzoning and revocation of the SMA permit is that the Mayor and the Planning Director have taken a position as the administration to further an agenda to minimize development along the shoreline. I know that you’ve heard and I’ve heard both the Planning Director and the Mayor saying more than once to the Commission that he and his administration have not upzoned any oceanfront properties since they came into the office in the year 2000. We believe that this proposal to downzone the Kohala LLC property and take away the SMA permit is part of that agenda, which is improperly targeted against an individual property owner and is not being processed through the required General Plan amendment procedures. I think that relieves -, I won’t bore you with the takings and substantive due process and equal protection violations that we’ve talked about before; I’ll leave that for the lawyers to fight about later on. But I think what we are trying to do in this particular proceeding is to recognize some of the concerns by the Commission over the potential density for the property. The density of this property at RS-15,000 square feet has a potential maximum density of 107, approximately, single-family residential lots. The SMA permit that was approved in 1997 was for 50 lots. In th our March 18 submittal, we’ve submitted to you a redline version of the proposed conditions for both these SMA Permit No. 379 and for the Change of Zone amendment for Ordinance No. 97-102. I think for purposes of the Commission’s consideration on the policy on what they should do on this is pretty -, it’s, I think, similar in some respects to one of the matters that the Commission ruled on previously in which they modified the SMA permit but did not take away the permit, and certainly didn’t even consider taking away the zoning as the Planning Director has you looking at right now. We think that the existing conditions of zoning and SMA will protect the property. We think that the existing conditions will provide a vehicular public access road down to the shoreline, something that’s sorely lacking in the North Kohala district. This even includes one accessible ADA parking space and three regular stalls. The County of Hawaii, as you can see, if you’ve been paying attention over the last 12 months or so, they have various methods by which to effectively further their goals to create open space along the shoreline. One of those is the Public Access, Open Space, and Natural Resource Commission. That commission appointed by this Mayor recently finished their work and forwarded their list of selected properties to the Council. At no point in time has the Kohala LLC property ever been listed on the Mayor’s wish list on that. Additionally, there is a newly adopted ordinance called the scenic corridor program as part of the Zoning Code; that is a tool that would essentially amend or revise the zoning conditions for various properties, provided that the County Council feels that it is important to adopt such a scenic corridor for protection of views and open spaces. There has been no adoption or no attempt to float that ordinance by the EXHIBIT A 14 Planning Director or any other party. These are other tools that are more properly -, the way that you should proceed. We feel that the method in which the County has been proceeding in this proceeding is in individualized attack on one property owner. With all due respect to Ms. Byrne and Mr. Gomes (sic) – and they’ve come out numerous times to testify – as Ms. Byrne admits, the real reason why she is here – and I’m going to paraphrase – the real reason why she is here is that the County of Hawaii and the State of Hawaii have not listened to what the community wants for this area. Now what that says to me is an admission that the legal requirements for development of this property are as they sit today with the RS-15 zoning and the SMA Permit No. 379. Effectively, that’s the basis of our objection in this case, is that the legal procedures have not been followed, and that the rights of the applicant have been infringed upon. We ask for your support of our time extensions to further pursue the project. We’ve tried to suggest for your consideration some proposed conditions of approval that would be attached to any time extension given. We basically ask for 5 years from the time of the time extension approval, and that any further time extensions would have to be brought back before the Planning Commission for appropriate action. We’ve included all of the protective conditions that have already been placed on the property, and have added new ones based upon some of the things we’ve been hearing from the Commission during these proceedings. I stand ready to answer any questions. Thank you. RHO: Commissioners, any questions? Mr. Watanabe. WATANABE: Mr. Lim, so I think that you are comfortable with this further reduction, actually it’s a 50 percent reduction, to 25 units. LIM: That is correct. WATANABE: Okay. Okay, that’s it. Thank you. LIM: What we’ve also added is -, if you go to the redline of the Change of Zone, that’s probably the best one to look at because that one also includes the channelization at Akoni Pule Highway, which is not a proper subject for the SMA permit; so the Change of Zone is probably the one that includes all of the conditions. WATANABE: Yeah, thank you, I noted those. I also noted the proposal to stub out to the south-east side of the subdivision. LIM: That’s correct. And we’ve added in the SMA conditions the applicant’s proposal to set back the structures minimum of 100 feet from the shoreline; and with exception of the project entry features, all structures will be set back at minimum of 150 feet from the Akoni Pule Highway right-of-way. WATANABE: Okay. Thank you. EXHIBIT A 15 RHO: Can you give us a citation in terms of where, what page you’re actually th looking at or referring to? Well, first, the document. Is that March 18? th LIM: Okay. The actual document is March 18. And the first document after the 2-page letter is the SMA Use Permit No. 379; and it’s done in redline so you can see the changes from the existing conditions. So when I spoke about the setbacks on the shoreline and from the Akoni Pule right-of-way, that’s Condition No. 5 under the SMA permit. Condition 4 talks about the reduction down to the 25-lot subdivision. And you can see other issues that we’ve added in based upon things that have been mentioned by the Commission: undergrounding the utilities, and that we would implement the public access improvements and complete them prior to submittal of any application for the first building permit for the single- family dwelling on the subject property. And of course, the conditions relating to the time extension, automatic time extension or administrative time extension have been deleted in favor of our return to the Commission. RHO: Thank you. DOMINGO: Mr. Chairman. RHO: Commissioner Domingo. DOMINGO: Yes. For interpretation by Mr. Torigoe, the submittal by the applicant regarding Bill No. 459, amended, amending the County of Hawaii General Plan, now the action was taken in November 1978 and under my signature as my former position with the County Council. How would that impact on my participation? RHO: Mr. Torigoe. TORIGOE: Thank you, Mr. Chairman. Just reviewing the particular ordinance, which -. Okay, this is Ordinance No. 786; it seems to be a change in zoning of a property at Waiakea, South Hilo, Hawaii. And, I guess what I should do is first of all ask the parties if there is any issue that that raises in your mind the fact that Mr. Domingo introduced this particular ordinance. Do you feel that has any bearing on his participation today? YUEN: The Planning Director. No, that’s fine. We understand that Mr. Domingo was a member of the Council, actually a member of the Planning Commission at one time, and things may come up at the Planning Commission from time to time that he was involved in previously. DOMINGO: Mr. Chairman. I’m speaking to Bill No. 459, amending the County of Hawaii General Plan. And within the document you have policy statements regarding the development of various districts that would be Puna, South Hilo, North Hilo district, Hamakua district, and North and South Kohala districts. And making reference to point Nos. 33 and 34, “Delete Alternate Urban Expansion: Kawaihae – northwest of Kawaihae Harbor and on the mauka side of the highway,” and also, “Add Alternate Urban Expansion: Kawaihae – adjacent and to the north of the Kawaihae Village housing development.” Now it’s within the area of the EXHIBIT A 16 zoned property to which we are entertaining the possible, potential action of either revocation of the SMA permit. Now in this case, can I still participate and vote on these issues? LIM: On behalf of the applicant, we have no objections. I think the areas you were mentioning are farther away from this property. And we know that you were the Planning Committee Chairman; so you probably introduced -. DOMINGO: Yes. LIM: All of these at some point in time. Our position is that these are existing laws for many years, and Mr. Domingo can deliberate on these proceedings. Otherwise, he probably couldn’t work on any other rezonings or other matters. DOMINGO: That was what I was trying to point out. If the fact and the interpretation is that I’m not allowed to participate or even vote on it, then my position on the Commission would be just useless. YUEN: Well, that’s certainly true. And when we considered Mr. Domingo for the position, this current position of the Planning Commission, we were very aware that he had been involved in a lot of decisions made in the past. And all we ask for is that he take a fresh look at all these things in the future, that he is not prejudiced by having worked on a particular matter at some time in his prior service on the County Council or on the Planning Commission in the early to mid 1970s. TORIGOE: Okay. Yeah, generally speaking, Commissioner Domingo, it would appear that your having been involved as a lawmaker in a period of time in which some of these bills were passed does not have direct bearing on your participation today. I assume that you would affirm that you are able to approach the matters today, applying fully independent judgment and not prejudiced or biased in any particular way. DOMINGO: Yes. TORIGOE: Okay, he stated yes. Yeah, and the Parties have indicated that they have no objection. And the only thing, I would, I guess, caution anybody who has been involved in any kind of proceedings that may appear in any record that’s before you is to refrain from spontaneously giving your testimony or views as to what the intent, you know, was of things that have been passed in previous proceedings. If you feel like you need to do that, then you may have to talk to me and the Chair about perhaps relinquishing your participation. RHO: Okay. Moving on. Any other questions for Mr. Lim? BOWMAN: I’d have a maybe -. RHO: Commissioner Bowman. BOWMAN: A question; and that might be to the Department. I’m not sure. I’m looking at the Planning Director’s proposed Findings of Fact, February 20, on page 3 with the EXHIBIT A 17 archaeological inventory, and then going back to the applicant’s page 2, No. 11. I’m just a little concerned because it seems that there are some significant sites on the subject property. And I’m not sure if I’m in order right now. And it says that, “should any remains of historic sites, such as rock walls … work in the immediate area shall cease and the DLNR-Historic Preservation Division will be notified.” But aren’t there already identified sites? So if you can explain. YUEN: Yes. What you are reading is a catch-all or a fallback type of condition that applies if something unknown is discovered. For example, bulldozers are out in the field and they come across, they may remove say a layer of dirt, and then you see a layer of paving and maybe that’s an ancient trail; and so they see that, according to this condition, they are supposed to stop. Now there has been an archaeological inventory study done of the property, and certain sites have been identified for preservation. And in my discussion I’ll get into that a little bit further, and show where those are on one of the maps that you have. So there is another condition, the condition about having a preservation plan requires that the sites that have been found in the inventory survey be preserved. This is just like a fallback in case during the course of construction new things were found, then, oops, you are supposed to stop and take care of it; and not just say, oops, oh well, they are not what was found earlier in order to be preserved so we can keep going and knock it down. BOWMAN: Thank you for the clarification. RHO: Other questions? If not, I have a question. And maybe you can just help me clarify this for my own mind. When the original SMA was approved, the archaeological study was not done. Is that true? LIM: During the course of development the archaeological inventory survey, which is basically the archaeologist going out and finding everything, sending his report to the State Historic Preservation Division and them agreeing that, yes, we think you found everything; that has been done. They did some subsequent what they call preservation plans and mitigation plans for the development at that time proposed of just one house. So if the developer comes back in with the 25 lots, he will have to go back in for a new mitigation and preservation plan. These -, the preserved sites are already identified; and how it works in development, they would be -, you’ll see those orange plastic fence that they put around the sites with the buffers that are approved by the SHPD. RHO: This may not be an appropriate question for you; but when the SMA was th actually approved, that study was not available. The study that’s attached to this March 4 Planning Director’s cover letter to the -. LIM: I’m not sure -. RHO: Plan -. LIM: On the date of the inventory survey report. I think much of the -. RHO: Well, one is dated August 2000, a letter from Don Hibbard -. EXHIBIT A 18 LIM: Right. You are looking at the State Historic Preservation approval letters. The actual surveys themselves were done much earlier, I believe, in conjunction with the applicant’s proposed development of a retreat resort on that property. That was when Ms. Bowman was involved. They had done what they call a draft environmental assessment to -, because they were going to go for a General Plan amendment at that time. And it kind of points up our position which is that if you are going to change the zoning, you should go do the General Plan amendment for this specific property. RHO: Maybe I can ask the Director when the Director testifies. But I have another question on page 11 of the site preservation plan that’s dated or submitted -, dated August 2000, page 11. Should I just read you the sentence? It’s actually Long-term Protection Measures, and the last sentence of that very short paragraph says, “The owner will be responsible for having a qualified archaeologist, on a biennial basis, verify that the sites are being preserved.” So if in fact this was done in 2000, and it’s 2007, there should have been two reports filed, if my definition of biennial is correct, which is every two years. So I wondered whether or not that was done. LIM: To best of my knowledge, no, because no development was being done. RHO: Well, the way I read this thing, that whole section based on this plan was not going to be developed; he was just going to put in a road to a single-family dwelling on the part of the parcel on – when I looked at the map – on the left side. On the right side was the burials and archaeological whatever they call those things; and then they have this long-term protection measure. LIM: I think what was anticipated was that the development would be proceeding and they would be making reports while they were developing. But since they didn’t do anything, there were no reports filed. RHO: Okay, thank you. If there are no other questions from the Commissioners, I wanted to ask the Director if he had any questions. YUEN: I have some comments that I’d like to make, similar to Mr. Lim -. RHO: Right. But I was -. YUEN: Just some time to address this -. RHO: Yeah, but I was going to give you time to ask -. YUEN: I’m sorry, the questions on Mr. Lim. Yes, actually I do. And it’s a procedural issue and I just wanted to make sure that we were all on the same page here on what we are doing today. We have the SMA permit for which the Planning Commission has a final say. However, the zoning of the property still is pending at the County Council. Mr. Lim has kept the time extension on the zoning here, and that has not gone up to the County Council; so the only thing actually before the County Council now is the rezoning that I proposed to residential 5-acre minimum lot size. So on the question of the SMA permit, the SMA permit EXHIBIT A 19 depends on the zoning. You cannot pass an SMA permit that is inconsistent with the zoning. So any action today on the SMA permit has to be contingent on the Council taking some consistent action on the zoning at some future time, extending the zoning to -, in the case of what the applicant is now asking for, approving a zoning which would allow a development of at least 25 lots on the property. And if the Council does not do that, does not pass a zoning that allows at least 25 lots, then any SMA permit which, if the Planning Commission were to take action on it, then becomes null and void. If the Council for example passes a zoning that allows only 7 lots on the property, then I think obviously this SMA permit, if the Planning Commission today passes an SMA permit for 25 lots, that has to be null and void. And I want to make sure that we are all on the same page with that. So that’s actually a question for Mr. Lim. LIM: My position would be if the Planning Commission passes an SMA permit for 25 lots and the County Council then essentially revokes the Change of Zone and adopts a new Change of Zone Ordinance, we would have to follow the Change of Zone Ordinance. YUEN: Okay, that’s fine. Then with that understanding and, I hope, with some clarifying language in the SMA permit, should the Commission vote in favor of -, to grant an SMA permit along the lines that the applicant is asking for, I’m fine with the Commission going ahead and taking action on the SMA permit today. LIM: We’ve had Condition No. 2 that’s proposed in the SMA permit that makes the effective date of the SMA permit, the effective date of the amendment to the Change of Zone Ordinance No. 97-102. YUEN: When the time comes, I’ll probably suggest something a little bit more definitive in the wording. But what Mr. Lim just said a minute ago is also fine, as far as putting an understanding on the record of what the effect of passing an SMA permit would be today. In other words, it basically depends upon, if the Commission were to pass it, it would depend upon further action by the Council. If the Council then passes a zoning that’s consistent, then the SMA permit would take effect and would not have to come back to the Planning Commission. If the Council passes -, the Council eventually has to pass some zoning for the property; this cannot go on forever with nothing in place. But if it does not allow the development along the scope envisioned by this SMA permit, then basically a re-application would have to take place; there would be no SMA permit. RHO: Yes, Commissioner Siracusa. SIRACUSA: Based on what the Director has said, I would like to ask Mr. Torigoe for some guidance here. Should we make three separate motions on 1, 2a and 2, and if so, in what order? Or should a motion include all three no matter what kind of motion it is, up or down? I’m asking about the process here. TORIGOE: Thank you, Mr. Chairman. Basically, the Chairperson mentioned earlier that we’d probably want to take the rezoning matter first, 2a, just because the SMA permit ought to be consistent with whatever the zoning is. So you know, that’s probably a good place to start. And generally speaking, yeah, I would recommend that there be a separate motion on each of these just for clarity sake. EXHIBIT A 20 RHO: Does that answer your question? SIRACUSA: Yes. So 2a, the first motion should be based on 2a, and then it doesn’t much -, then the second two could be separate or -. RHO: Yes. SIRACUSA: They could be combined -. RHO: Yes. SIRACUSA: Because they’re both on the SMA. RHO: Well, I think Mr. Torigoe is asking that, or suggesting that they be separate. So it’ll be 2a, I would suggest that it’ll be 2, and then we go up to 1. DOMINGO: Mr. Chairman. SIRACUSA: Okay, I understand now. Thank you. RHO: Okay. Commissioner -. DOMINGO: Mr. Chairman, thank you very much. You know, with regards to the zoning bill that is on the Council level right now, and should they go ahead and revoke the zoning, actually what would be the status of that bill? Just be null and void and that’s it? And then that SMA permit would be also null and void, and it will reflect that -, this will be reflected in the General Plan? RHO: Director Yuen, maybe you can answer that question for us? YUEN: If the Council rezones the property to something that does not allow -, say, the Commission today can revoke the SMA permit or it can pass an SMA permit contingent on future Council action. If the Council then does not keep the zoning in place that would allow a 25-lot subdivision, then the SMA permit is null and void; it’s inconsistent with the zoning. None of those actions will change the General Plan itself. DOMINGO: But right now what does the General Plan permit -, what is permitted on the General Plan for this specific parcel? YUEN: The General Plan permits a range of things including a residential development of up to 6 units per acre. It doesn’t compel that the zoning be any particular density. DOMINGO: That’s a very important point that I hope the Council can look at because what we are doing is permitting or not permitting a development according to the General Plan. EXHIBIT A 21 As we all know the General Plan is by ordinance, is by law. So can we circumvent that? Can the Council circumvent that? That’s all, Mr. Chairman. RHO: Okay. Commissioner Woodward. WOODWARD: Yeah, I had a couple of points. Our decision on this SMA permit is based on the zoning as it exists. Now if the Council changes that, then obviously that changes the SMA permit. But I don’t think we need to necessarily make it contingent. It’s based on what the current zoning is; and if they make an action, well, then that will have to be brought back to us. But you know, we can’t go on presumptions of what’s going to happen in the County Council six months from now. So I have no problem voting on that issue with the current zoning. Any recommendation we make with regard to rezoning goes to the County Council; that has to be acted upon later. Another thing, Jeff, I might ask you cause I know in the past you’ve shown us the zoning of this area, and there is a wide range of zoning everywhere from 1-acre to 20-acre in this small area that we are dealing with. Do you have access to that? DARROW: Just for reference, this is the zoning for the particular area. The light green reflects Agricultural 1-acre. The proper project location which is a little darker yellow is RS-15 zoning. The light blue is Agricultural 3-acre zoning. The darker blue is Agricultural 40-acre. And then the dark green is Agricultural 20-acre. WOODWARD: Okay. They have 37 acres. Is that correct? DARROW: Approximately. WOODWARD: All right. And they are asking 25 lots. DARROW: Correct. WOODWARD: Okay. And they are surrounded by land that is all zoned Ag-1a. DARROW: A majority of it. I mean, you can see the light blue is Agricultural 3-acre zoning. WOODWARD: Right. But all the stuff, the light green there is all 1-acre. So they are actually asking for 25 lots on 37 acres. Is that right? YUEN: The light green is Ag-5a. DARROW: I’m sorry. My mistake. This particular zoning here, the little darker green is Agricultural 1-acre. WOODWARD: Okay. DARROW: My mistake. The lighter green is Agricultural 5-acre. EXHIBIT A 22 WOODWARD: Yeah, I got confused by that last time. So I just wanted to kind of clarify it. So, but there’s obviously a wide range there from 1-acre to 3-acre to 5-acre to 20-acre to 40- acre; and it all surrounds this property fairly closely. But the immediate surroundings are Ag-5. Correct? YUEN: Correct. WOODWARD: Okay. Thank you. RHO: Okay. Let’s -. SIRACUSA: Excuse me. Can we take a 5-minute recess? RHO: Yes. That’s what I was just going to suggest that we take a 5-minute, or let’s make it a 10-minute recess. RECESSED The Chair called a recess at 10:30 a.m. RECONVENED The meeting reconvened at 10:41 a.m. RHO: The Planning Commission will now come back to order. What I wanted to do is -, we haven’t given the Planning Director time for his presentation; so, Mr. Yuen, now is your time. YUEN: Okay, great. Thank you very much. Good Morning, Members of the Commission and Mr. Chairman. There’re a few things that I’d like to talk about with this application. I know we’ve been over this in quite a bit of detail. But let me step back a minute, and first talk about fairness. And there has been quite a bit of discussion of fairness in connection with this application. Fairness is a concept that means a lot of different things to different people. And it’s related to legality. It’s different from legality; something can be legal but unfair. And I accept that. But it’s related to legality in a sense that the legal system sets some of the bounds for what you do and it creates the context for what you do. So really the argument about unfairness seems to be that rezoning is a one-way street. What I mean by that is the idea that once you’ve zoned something to a higher density – for example, in this case it was zoned from Agricultural 5-acre lots to Residential 15,000-square foot lots – once you’ve done that, it’s unfair to ever change that. I have to reject that proposition. As a legal statement, it’s wrong. You can rezone property to a lower density; you can downzone property. The legal boundaries for that are, as I discussed in the memo to the Planning Commission, are vested rights and takings. In this case we don’t have a problem with that. And it’s something that has to be in the repertoire or the inventory of tools that the County has in dealing with land. Conditions change, public attitudes change, policies change; and you have to have the ability then to also change zoning subject to the legal limits. This is done. It’s done many times throughout the country. It has happened in this county, not very commonly but it has happened. And it is something that in a right case – and I wouldn’t say it should ever be done casually or for poor reasons or not in support of a significant policy – in a right case you can do it. It’s even more clear and perhaps more clearly fair to do it in a context of a time extension when somebody is -, EXHIBIT A 23 essentially their time to, of their zoning has expired and they need a time extension. If you look at the very last paragraph of the ordinance that granted the RS-15 zoning back in 1997, it says that if the time conditions are not met, the Director may initiate rezoning of the property to its original or more appropriate classification. That’s in the same ordinance that has the RS-15 zoning. So what the applicant’s attorney keeps saying is it’s not fair to do exactly what the ordinance says the Planning Director can do. This is what it says in the ordinance and this is just -, it links with the rest of the ordinance. I don’t look at this action as being punitive in a sense of the applicant was bad, they didn’t do what they were supposed to do, they dropped the ball; it’s really not a question of that. How much investment the applicant has put into a project can influence the question of fairness on a time extension. If you think back – let me give you an example – we had a situation a few months ago on the Commission with the Volcano Golf Course Subdivision where they needed a time extension. They’d not gotten final subdivision approval. They’d gotten tentative subdivision approval. They needed the time extension. They had -, at that point, though, they had almost finished the subdivision. They built the roads, they put almost everything in; they were almost ready and completed. And I said sure, you know. You would look at that level of investment as an issue on the fairness of whether or not to grant a time extension. In this situation they really have not done a great deal since 1997. The basic archeological work had been done. The reports that you saw that came with our letter in early March is really about the extent of it; and that was getting approval of what sites would be preserved and really having a minimal amount of work connected with the preservation of those sites. So this is really a question -, and I look at it as a question of land use; and it was not a question of being punitive or being negative to the owner. What is the right use of this land? Whether you have 25 lots there, or you have 7 lots, you have 50 lots, the land is going to be used for basically a residential, highly upscale development. In Kohala Waterfront, which would be similar to the 50-lot type of development – the Kohala Waterfront being the brown area that’s about 3,000 feet from this property – the lots are being offered at $1 Million to $1.5 Million each, and then people put homes on them. So this is not any kind of housing opportunity for people. So in that context, the opportunity to have more open space to be able to control where the houses go is really something that -, there is a lot more opportunity to create and to work to be able to fit houses in the landscape and not cause environmental problems in a 7-lot development than a 50- or 25-lot development. On the question of the General Plan, a rezoning or zoning has to be consistent with both the LUPAG Map and policies and goals of the General Plan that is the text of the General Plan. The policies and goals, you know, as I’ve said before, there are often competing policies and goals, and people can have differences of opinion about whether it fits or not. The LUPAG Map really serves as a filter in it; it serves as a limitation. You can develop in an area like this, for example, you can -, the General Plan LUPAG Map permits a housing development of or the density of that proposed or even of a greater density. But when you come to the zoning decision, you have to make a site specific and careful decision about what really should happen on the property. When the LUPAG Map is done, it’s done on – the term that’s used in the General Plan is broad brush – it’s done without looking at the specific issues that may be there on a piece of property like the archaeological sites, like the drainage ways, like the viewplanes; it’s really looking at broad areas on the map. And then at the zoning decision you have to make a specific decision about whether EXHIBIT A 24 this is the right use for the property. In this case what is being proposed as far as the 5-acre zoning is, it’s low density urban. It’s very low density, but it is -, we are not saying that it should be Agriculture; it’s a very low density urban development. So then, let me just discuss a couple of things. This specifically relates to the SMA permit, which certainly we urge you to revoke the current SMA permit and not to adopt a 25-lot SMA permit as -, or extend time and allow a 25-lot SMA permit. To really talk about this, let me ask you to look at that March 4, 1998 (sic), letter and then turn to, there is a map with the archeological sites on it, and that’s page 4 on the Burial Treatment Plan, PHRI report. And you see the – yes, Chairman, you have the page there – and so we have a map that -, and the reason I’m asking you to look at this map is for two things. One is that it’s a pretty good map showing the topography. And it also shows the archaeological sites. The map has a label “Burial Treatment Plan” on the bottom. And my basic point here is that there’re -, you’re being asked to approve an SMA permit for a property that has a lot of difficulties in developing it, a lot of challenges. I have a question. They may be able to get 25 lots into this property; I don’t think that they could have even gotten 50 lots into this property. But you’re being asked to approve an SMA permit with no knowledge of how this subdivision is going to be laid out. How are they treating any of these issues that I’m going to talk about in a minute? And how are they actually going to -, where the houses are going to be? And how are they going to handle -, how are they actually going to handle this subdivision? Now, first thing I, just in passing, I’d like you to notice is the big portion of the property that says Undeveloped Area, and just to note that at one time the owner was telling SHPD that they were going to do one house on the property, and leave the bulk of the property undeveloped. The map shows the archaeological sites that have to be preserved: most of them burials, one of them being a shrine, some of them being other kinds of historic sites features. And they take up much of the middle part of the property. For a sense of scale here, how big is a 15,000-square foot lot, all right? If you look at the -, see the square, it’s actually trapezoid labeled 4005; and the part that has heavy lines around it, not the buffer area with the dash lines, that’s roughly 15,000 square feet, all right? You know, maybe a couple thousands more, maybe a couple thousands less. But that’s about what one of the lots, the minimum lot size would be on this. So you see how that central part of the property is largely -, there is quite a bit of area that’s taken up by archaeological sites where you won’t be able to build. Now then looking to the right of that, which is on the south-east side, the contour lines that go in an upside-down V with the apex of the V pointing mauka, those represent a gully. That’s a big gulch that goes way up into Kohala Ranch. It’s Keawewai Gulch; that’s the one that carried a huge amount of water in the storm that you have the records on that resulted in this big runoff event. That’s a very big gulch. I hope they are not planning to build somewhere in that gulch. Much of this area -, and then again, you know, looking a little farther to the right, there is another big gulch. You can see that with the upside-down V showing the contours there. Those are 5-foot contours, by the way; each of those contour lines is 5 feet apart. This has a lot of steep land. The steepest part, if you look at the area of a burial site 16148, and you see the contour lines there, that’s a little bit of a hill there on the property, or a knoll actually. Where the contours are fairly steep there, that’s about a 30 percent grade. To give you an idea what a 30 percent grade is like, Waipio Valley Road averages about a 26 percent grade. So it’s a pretty steep portion of the property there. And turning -, if you look at some of the other areas, if you go all the way to the left hand side of the map where it says “Easterly Boundary of Proposed Development Area” and you see the contour EXHIBIT A 25 lines just makai of that; that’s roughly 20 to 25 percent grade. There are a lot of steep areas on the property. So how are they going to handle all of the earth moving, all of the house pad construction, the subdivision roads and the like on this site? We have no subdivision map that shows us that. We have nothing to go from, that shows us any of that. So – and let me give a comparison – and so my view of -, certainly I think that we should change the zoning to a 5-acre minimum lot size. There have been advocacies of 20 acres. There was a motion at the Council to make it 15 acres. My view is that we should make it 5 acres, which is the same as, looking at this map, the property immediately along the shoreline on the Kawaihae side, and the same as on the property on the Mahukona side. We should revoke the SMA permit; they would then come back for an SMA permit for 7-lot development. And at that time my view is that the Department and the Planning Commission should take a careful look at that. What we did is in the property immediately adjacent, which we did pass an SMA permit based on a 5-acre lot residential development, we had height limits on the houses, we had enhanced yard setbacks to create more open space. And that’s the course we should take. So with that, I’ll be happy to take any questions. But my recommendation to the Planning Commission is that they vote to reject the time extension on the RS-15 zoning, and reject the time extension on the SMA permit, and revoke the current SMA permit. RHO: Questions from the Commissioners? DOMINGO: Mr. Chairman -. RHO: Mr. Watanabe. WATANABE: Mr. Director, even if – and in many ways I don’t necessarily disagree with you, okay – even if, though, we were to revoke this and we were to revert back to a 5-acre parcel, the State would still allow you only one access point. Am I correct on that? YUEN: Correct. WATANABE: A follow-up to that. So that means that in spite of the topography, which I agree probably is quite challenging, you’re still going to have internal infrastructure that has to traverse all these gulches and, you know, wind around the hills and etc. And given that, you know, your smallest plot would be 5 acres, is it possible that that might make it even more difficult to develop this property? YUEN: Well, it depends on how it’s laid out. It depends on where you want to put property. Now, in a 5-acre zoning, you’ll have seven that you are going to put someplace. And there is an administrative mechanism where that seven would not have to be on equal 5-acre pieces. There is a PUD mechanism. So administratively the Director could -, you know, if they had a plan that puts more in one area, the Director can administratively allow that. WATANABE: Okay, so we would -. RHO: Follow-up, Mr. Watanabe? EXHIBIT A 26 WATANABE: Yeah, please. May I? RHO: Yes. WATANABE: Okay. So – let me see if I’m getting this correct – you are saying that it’s zoned 5-acre, but because it’s a Planned Unit Development, that these 7 houses or 6 houses could be congregated in one particular area of this 37.8-acre parcel. YUEN: That can be done with a Planned Unit Development, yes. WATANABE: Okay. RHO: Commissioner Woodward. WOODWARD: I’d like to know -, and maybe Jeff can answer this question. Hello, Jeff. How many lots are there above this area? And how many lots have been -, do you have any idea how many of these lots have been built upon? You know, cause the concern we have here is, okay, runoff and so on and so forth, damage to the coral, and some kind of specious arguments about ciguatera poisoning and all that sort of nonsense. But it looks to me like that area is already developed up above. And I don’t know how many homes are up there, but it wouldn’t sound to me like putting 25 more in this area is going to make a big difference. That’s just kind of my gut feeling. But do you know how many homes are up in that area? DARROW: Unfortunately, specifically I don’t. I mean, it would be a guess and probably a bad guess. I believe the Planning Director would have a better guesstimate as to how many houses, and maybe even the applicant in regards to -. I haven’t been out in this particular area in quite a while. WOODWARD: Okay. DARROW: Sorry about that. RHO: Director, do you have a comment about -, or an estimate? YUEN: Well, Kohala Ranch has 477 lots. Kohala Estates, I don’t have a number in my head but fewer than Kohala Ranch. There is an urban area where kind of -, the green area between the two blue areas is an urban area in Kohala Ranch, and it has a lot of potential for development. So it’s true that there is a lot of potential for development in that area mauka; and that is a concern. I wouldn’t minimize the importance of doing what we can on the coastal property. As far as how many houses are built, I don’t have a figure for that. I know -, I had a figure of 60 in Kohala Ranch roughly 5 years ago. I think it’s under a quarter built up. Kohala Estate is probably a little more built up as a percentage than Kohala Ranch. The urban area in Kohala Ranch is not built. There may be a couple of houses in there; it basically hasn’t been developed. WOODWARD: So maybe 200 homes up in that area. Is that a rough guess? EXHIBIT A 27 YUEN: That would be, for currently as a rough guess, ballpark, yeah. WOODWARD: Thank you. RHO: Commissioner -. DOMINGO: Thank you, Mr. Chairman. Is it within the purview of the responsibility of the Commission to determine the buildable areas of the parcel? Is it within our responsibility to make that determination? YUEN: Well, I think -. Yes. In looking at the feasibility of a project or -, you know, and this is part of basic analysis of a site. If there are areas that are too steep, then if you zone them to develop, then people may try to develop them even though they are very difficult and they require a lot of site work. If you are concerned about runoff and problems due to grading and clearing a site, then you’re going to look at the steepness of the slope. If somebody says that they are – just to give a lot of examples – somebody says that they are going to do affordable housing, but the site is very steep and you realize that its site work is going to be very expensive, that’s not going to be feasible. So looking at the characteristics of a site itself is an important part of planning. And looking at things like gullies and hills and other kinds of problem areas is a significant part of what we should be doing. RHO: Follow-up, Mr. Domingo? DOMINGO: Yeah, no, I want to go on. You know, as I listened to you and as I look at the role of a Planning Commissioner, you know, it would entail a lot of time and research to determine, in this particular case, if the project was feasible and that -, if built according to the number of lots that they were originally granted, you know; it would have been impossible for the Commission to do that. And I would say that, you know, at the time that this SMA permit was forwarded to the Commission, and approved at that time, then I would say that the Planning Director or the Planning Department should have already determined the number of buildable areas and the space that’s required to carry on with the project. But lacking that, you know, what we are looking at, the developer -, that’s why we require the developer to submit a plan approval with a submittal of plans for the project; and I feel that is where the Planning Department will determine its buildable area and the method and the mitigating steps that need to be taken. And that’s why we have -, we expect all developers to go through a plan approval process. And if that is left to the Commission or the Council, then you know, it would be taking a part of the administrative work away, and relegating it to the law-making authority or the decision-making authority in this case. And that is wrong. That’s my feeling. I mean, I’m not going to sit here and go over the entire proposal by the applicant, and say, okay, how many lots are planned to build, now let’s see, what’s the topography, and at what slant or what grade it is, and how deep is a ravine and how wide is it; and then we would then include regular conditions in the SMA permit to address those issues. You know, that’s why we have a plan approval process. We can approve in a broad term and express our concerns about the possibility of not being large enough to accommodate the number of units, but we leave them up to the plan approval process. And that’s how I’m looking at it. RHO: Do you want to respond to that, Mr. Director? EXHIBIT A 28 YUEN: Well, up to a point, you know. There is a level of details, I mean, the Commission is not supposed to -, would not get into. But especially when you are looking at an SMA permit and you have to -, the Commission has to make findings about -, that the project can be done without significant and adverse environmental and ecological effects, the Commission has to be satisfied that that can be done. I’m advising you as Director that I’m not satisfied that they -, with what they’ve shown us, that can be done. I mean, the comment was that the Department is supposed to make this determination. But you know, the Commission has to vote on an SMA permit. And my recommendation is that they have not shown that they -, with what we have here, that they can do a subdivision like this without significant and adverse environmental and ecological effects. Now the Commission certainly -, there is a level of things that are taken care of at subdivision. And I would urge that when -, well, the Commission has to follow its -, the Commission has responsibilities in an SMA permit that are different in just looking at the zoning, for example. RHO: Commissioner Watanabe. WATANABE: Yes. Mr. Director, I’m referring to the letter we just got this morning, I thth believe it was, March 10, from the State Department of Transportation. It’s dated March 10. And on the first page, last paragraph, they indicated that perhaps the most effective control regarding controlled access would be the County’s requiring developments on both sides of Akoni Pule Highway to provide interior connectivity between developments by constructing their part of a continuous road that parallels their arterial highway. And you know, earlier Mr. Lim had indicated that within the proposed conditions that he would provide one to the north. And as I recall in your Findings of Fact, the parcel immediately adjacent to this is owned by the State. And I’m wondering if it’s even necessary to provide a stub to the left, to the north of the subdivision. YUEN: Yes. I hope, you know, regardless of how far you go with controls on private property, I hope that the State ultimately respects the desires of people that there be open space along the shoreline. And there is a great deal of State property along the shoreline; and I hope that the State property isn’t developed someday. I mean, the State has -, if you could talk about land for housing or other kinds of needs that the State has, there are loads of property that would accommodate those kinds of things. So I hope that it’s not developed. So I don’t see a great need to have a stub to the north. I don’t know -, I don’t think that that does much. WATANABE: Yeah, I -, okay, thank you, because that was my thinking also; you just create more impermeable surface for hopefully no reason at all. SIRACUSA: Can I comment on that, please? RHO: Commissioner -. SIRACUSA: Also at this point us talking about connectivity between the different subdivisions, we haven’t seen the lay of the land there where the gulches are, where the burials and archaeological sites are. So it might not even be possible, you know, for a road to be put in EXHIBIT A 29 between the two subdivisions because of those considerations. So I think that’s sort of a moot point at this stage of the game. RHO: Commissioner Watanabe. WATANABE: Well, the way I’m interpreting it is it’s one of the conditions for the subdivision; so if it doesn’t happen, if the subdivision is not going to happen, then everything is moot, you see. So it’s in writing as, you know, a requirement, yeah? So if it can’t be done, then as far as I’m concerned, the whole discussion is moot. RHO: Other questions from the Commissioners? BOWMAN: I just have a comment because we are saying County requiring but when it starts, it says, “Perhaps the most effective control regarding controlled access would be the County’s requiring .…” So it’s saying “perhaps” this “would be;” it’s not saying that they will require it, perhaps. So I think we need to take that in context. WATANABE: May I? RHO: Sure. WATANABE: When I said it’s a requirement, I was referring to the applicant’s proposed conditions and not from this letter. And within the applicant’s proposed conditions they have committed to creating a southern link to the adjoining subdivision. BOWMAN: Thank you for the clarification. RHO: If there are no other questions from the Commissioners, I do have a question. And I wanted to follow up on my question to Mr. Lim about the archaeological survey or report, and ask the Director whether or not that was available to the Commission when the Commission approved the SMA. YUEN: I think they had a survey showing where the sites were. They didn’t have a preservation plan. RHO: And did they also have a schematic, like we usually do for – as far as I can remember – like proposed drawings for what would be built and where it would be built. And I know it isn’t the official plan and hadn’t been approved or hasn’t been approved, and it’s to be approved or to be modified and approved. But generally speaking we have a plan that’s presented to us prior to us or as we are looking at the SMA approval or disapproval. So did the Commission at that time have access to a diagram? YUEN: Yeah. And this is why I don’t think you should make the assumption that the 1997 decision was a sound decision. There was a subdivision plan for 50 lots submitted, and I have it here. I don’t know if it’s something that’s -, not everything that was with the ’97 application has been circulated to the Commission. So there is a subdivision plan that shows how they would lay out 50 lots.There are some really big problems with that subdivision plan. EXHIBIT A 30 There are lots that are largely within a gulch. They do show some archaeological sites; they don’t show all the archaeological sites. They don’t show the amount of area that would be taken up by the buffers shown on this preservation plan that you have here, that I had you look at a few minutes ago. So, yes, there was one, but there are -. If we want, we can look at it; I can show you what the problems are with that site plan that was submitted. RHO: The other question I had was whether or not you had a chance to review the proposed conditions that the applicant is now suggesting. And I also had a concern -, in th relation to that, I had a concern about this March 10 letter from the State Highways – I guess that person is writing from the State Highways – and that same paragraph, the last paragraph on the first page, regarding the interior connectivity; and whether or not -, I mean, I just can’t imagine without, I guess, looking at a diagram to see where that – what is it called – parallel road would actually be and how that would actually look from the Highway. I mean, do you understand what I’m saying? So -. YUEN: Yeah. Sometimes we get comments that are correct in general terms but not necessarily very applicable to the reality of the site. What I mean by that is, yes, in general terms it’s a good idea to have a parallel circulation. And one of the big problems that we’ve had in the county is we have not developed parallel circulations. We typically had zonings come in for one spot and they do their own road system and come out to the highway, and then the next zoning comes in for the next piece of property and they do their own road system that comes out to the highway; you don’t have any connection between the two. We are trying to turn the ship around and fix this problem generally. However, when you look at – so that’s the validity of this comment in general – but when you look at this specific application, the idea of connecting to the north where hopefully -, and actually by the General Plan, it should not be a developed area. I don’t see the need to have a stub.It doesn’t hurt to have a stub, if you have a stub likely to be a stub for a fairly long time. And as far as connecting to the south, I don’t think we had a requirement. You know, that was again -, there’s just a fairly small number of lots to the south. I don’t think we had a requirement that they connect this side. And they do have their own access to the Highway; so you are not eliminating a highway access by having a connection between the two.You make it easier for people from maybe one subdivision to visit the people in the other subdivision, but you are not really eliminating highway access points. RHO: So the road could actually be a normal subdivision roadway, like between Coastview and Kona Palisades, and I think it runs through Wonderview. Is that what these guys are talking about from the State Highways? YUEN: Well, what they are saying is that it’s a good idea to have parallel connections on a local road system, parallel to the main highway. And yes, in general that’s true. But given what is the planning and likely development of this area, I wouldn’t push it in this particular area. I mean, yes, it’s fine to have a condition that says stub to the north; it doesn’t hurt. But it’s not likely really to be very useful. WATANABE: Mr. Chair. EXHIBIT A 31 RHO: Yes, Commissioner Watanabe. WATANABE: Yeah, the only reason I brought that up is because on page 2 of that letter from the State Department -, Item No. 4, they had recommended, “A stub-end road connecting to the north property should be provided to encourage a lateral roadway system ….” But when I combine that together with Mr. Yuen’s Findings of Fact, that the State actually owns that land and, you know, and the State saying that, oh, we’re going to preserve the viewplanes; then why does the State then recommend the stub? For public access? I’m not sure. And that’s why I made that comment. However, you know, within your testimony earlier you also indicated that the subdivision immediately to the south of this particular parcel already has an existing access to Akoni Pule Highway. So by providing connectivity or lateral connectivity we are not accomplishing much of anything? YUEN: Well, you are not eliminating the fact that that subdivision has at least – and I can’t remember off the top of my head – that subdivision has at least one access to Akoni Pule; and that’s not going to get closed off by doing this. And as far as taking local traffic between the two subdivisions, it’s a very low volume of traffic that you would ever have between -, you know, whether you had this at 25 lots and the other one, I think, is 10 or 11 lots, it doesn’t really do much. WATANABE: Yeah, okay. Follow-up. So you are saying that the subdivision immediately south has a maximum of maybe 11 lots or so. YUEN: Off the top of my head – I can’t remember – I think it’s 11, though, on 63 acres -. WATANABE: Okay, well, that’s close enough -. YUEN: I think it’s 11. WATANABE: Okay, thank you. Mr. Chair. RHO: Yes, Commissioner -. WATANABE: I have a question for Mr. Lim. Correct me, if I’m wrong – I am referring to your proposed conditions now – and correct me, if I’m wrong; but I don’t recall that we had a requirement to connect to the south. And given that the adjoining subdivision potentially has only 11 lots and also given that the topography towards the south with that gulch, etc., I’m wondering why you included that if we didn’t already require it, and if you’d like to reconsider that now. LIM: The requirement for a road stub to the south is an existing condition of the Change of Zone Ordinance. WATANABE: Oh, it was? LIM: Yes. EXHIBIT A 32 WATANABE: Oh, I’m sorry, I’m sorry. LIM: Part of the roadway design for this particular project would have taken into consideration the drainage, the burial sites and all these other things. And like Mr. Yuen said, that was what we were starting to do when we received his notice back last year on the proposed downzoning. One of the tools that we were looking at is a Planned Unit Development, which is essentially a tool that allows you to take whatever lots you have in terms of density and cluster them into one or two or three PUDs, and we will be doing that to avoid the drainage areas and to minimize the amount of roadway that would be built just for runoff and cost purposes also. So this is the reason why we kept in the condition in SMA Permit 379, which is Condition No. 6, which requires that a preliminary site plan be redesigned to create mauka-makai view corridors, and address all these other site constraints that you have, and then you would submit along with the subdivision plan. We believe that the conditions as proposed, which require us to set back from the shoreline 100 feet and from the roadway at the top 150 feet, create this buildable area, which would best allow us to use the property without impacting on the resources. RHO: Okay. If there are no other questions from the Commissioners, Mr. Lim, do you have questions of the Department or the Director? LIM: No, I don’t have any questions of the Director at this time. I think he has given you his position and we’ve given you ours.We believe that the design of the lots is something that should occur down at the administrative level through a plan approval with the Planning Department; and that’s already provided for in the conditions. And we ask for your support. RHO: Mr. Watanabe. WATANABE: No, no, no. Because if we are going to go into discussion, if there’re no -. RHO: No, no. We still have to give them final -. WATANABE: I beg your pardon? RHO: They still have to do their final arguments. WATANABE: Oh. No, I don’t have any -. RHO: Okay. I have one other question that I’d like to bring up, and this is for Mr. Lim. As I was mentioning to the Director, it’s my feeling or my belief that generally speaking when an SMA permit is being requested, and I’m sure in other cases, there’s a diagram that’s presented to the Commission for us to look at in terms of where the roads might be, where the lots might be, etc. He says that there was one for the SMA that was approved approximately 10 years ago. My question is whether or not you have one for the current revised plan for 25 lots. EXHIBIT A 33 LIM: No, we do not. We are applying for a time extension on the existing SMA permit with 50 lots; and so that’s the site plan that we are basing our request upon. And this resubmittal for the 25 lots was to try to address the Commission’s concerns on the density and also on the impacts. I think the other conditions that we implemented through some of the comments that you’ve made with the buffers and the studies that are required prior to us going forward are going to adequately address the impacts. RHO: Okay. I think we are ready for final arguments and we can begin with the applicant followed by the Department, and then concluded by the applicant. Mr. Lim. LIM: I’ll be brief. The action that you are looking at today, especially on the downzoning and the revocation of the SMA permit, is something that the Planning Commission has very rarely, if ever, taken up. You’ve been, most of you, sitting on the Commission for something in the neighborhood of 6 years or more, some of you. And I think you know that the time that you’ve seen SMA permits revoked are very rare, if any. We believe that the actions taken by the Director are aimed essentially only at this property, and are in effect – what you might call – an illegal spot-downzoning. We feel that the legal procedures that are required to downzone the property and revoke the SMA permit are lacking. And we would say to you that although that the applicant in this case has not followed the time conditions in the Change of Zone and the SMA permit, they are not too much unlike a lot of other people that you see. I mean, the Director cited the Volcano Fairways project, which did finish its roadways, and that was probably the closest that I’ve ever seen on a time extension. But the vast majority of the people who come to you for time extensions have not constructed their projects, and it’s very similar to this one. So we feel that the Planning Commission has the authority to approve the time extension for the Change of Zone and also to issue the SMA permit based upon the proposed conditions. And we would ask for your support. Thank you. RHO: Mr. Director. YUEN: Yeah, I’ll also be very brief, I hope. We have a decision to make as to what is the right use of this land; it’s a decision that we have to face simply because the time has run out and now they need a time extension. This is a logical point at which to consider, was that decision a good one back in 1997? And does it fit the needs of today, the wants of today? And what is the best use for this land? Probably -.And we do have to respect that they have a right to some economic return from the property. There is a lot of sentiment that the property should be kept completely open. The 5-acre zoning does allow significant financial gain from this property, not as much as perhaps another zoning, but it does preserve a significant value for the property owner while implementing to some extent the desire to have more open space along the shores. It’s the same as the zoning of a property that came in front of you, the Planning Commission, a couple of years ago, and got an SMA permit based on the same concept of 5-acre lots. So for those reasons – and this is not something that I would casually bring to -, the idea of revoking an SMA permit or changing the zoning to a lower density is not something that I would casually bring to the Planning Commission – but for those reasons I think we should go ahead and do that. The final thing I’d like to say is that if the Commission is inclined to vote on extending the time for the SMA permit, I think a slight change to No. 2 would be useful; and it would say, “The EXHIBIT A 34 effective date of this Special Management Area Use Permit shall be the effective date of” – and instead of saying “the amendment” – “a consistent amendment to Change of Zone Ordinance No. 97-102.” But there are good reasons to make a change in course as far as the use of this particular property. RHO: You have closing remarks, Mr. Lim? LIM: Just one final comment. The Planning Director has asked you to recognize the public attitudes and the community concerns. And if that is true, if that is truly the wish of the community, then we say, fine, do a General Plan amendment. And then do the downzoning, like you always have done and which you are required to do. Thank you. RHO: Okay. Commissioner Woodward. WOODWARD: Thank you, Mr. Chairman. I have now, and have had, two basic problems with what we are being suggested to do. And as usual I’ll be blunt, and I’ll try and keep it -. RHO: Mr. Woodward, can I interrupt you? WOODWARD: Yes. RHO: What I’d like to do is close the hearing -. WOODWARD: Okay. RHO: And then we can move into discussion, if that’s all right with the Commissioners. So -. WATANABE: I’ll move to close the hearing -. RHO: Can we have a motion? WATANABE: I’ll move to close the hearing. WOODWARD: Second. RHO: It’s been moved and seconded. But before we actually take a vote, what I wanted to do was go through the documents that we received recently to make sure that it’s on the record, and the applicant and the Department have no objections for its inclusion. I’ll just th start at random. There is one that’s dated March 4; it’s from the Planning Director to the Planning Commission, and it includes the archaeological studies.There is one that’s dated th March 18 addressed to the Chairman of the Planning Commission from Steven Lim; and it includes the conditions or changes to the conditions for the proposed SMA Use Permit 379. SIRACUSA: Excuse me, Mr. Chair. RHO: Yes. EXHIBIT A 35 SIRACUSA: I was under the impression that we were going to take up the Change of Zone item first; and what you are looking at is the SMA. So shouldn’t we be -? RHO: No, that’s because we just had this hearing -. WATANABE: We combined -. RHO: And I’m just making sure that we have all the documentation that has been referred to in one way or another -. SIRACUSA: Okay. RHO: Included for the record. And then we’ll move back to the motion to close, and then open up for discussion and any other motions that the Commission wants. So where was I? th There is a letter to the Director from Brennon Morioka, dated March 10. There is the applicant’s Kohala LLC proposed Findings of Fact, Conclusions of Law, and Decision and Order th that’s date-time stamped February 11. There is from the Director, or the Department, the Planning Director’s Objections to Applicant’s Proposed Findings of Fact, Conclusions of Law, th and Decision and Order that’s date-time stamped February 28. There is the Planning Director’s proposed Findings of Fact, Conclusions of Law, and Decision and Order date-time stamped th February 28. There is also Applicant’s Exceptions to the Planning Director’s Objections and the Planning Director’s Proposed Findings of Fact, Conclusions of Law that’s date-time stamped thth March 10. And today we received from public testimony, a 4-page document dated March 19, signed by various people including Stephanie Naihe Laxton. So are there any objections to its inclusion for the record from either the Department or from the applicant? YUEN: No objection from the Department. LIM: No objection from the applicant. RHO: Okay, thank you very much. So we can move to discussion on the motion, if there is any discussion on the motion, which is to close the hearing. If not -. SIRACUSA: Did we get a second on that? RHO: Yes, we did. SIRACUSA: Okay. RHO: All in favor, say aye. COMMISSIONERS: Aye. EXHIBIT A 36 RHO: All opposed? Motion carried, and the hearing is closed. I guess now we can open up for discussion. Commissioner Woodward. WOODWARD: Well, as I was saying before, I’ll be brief and blunt as usual, and try and keep it simple. I’ve had a couple of problems with this whole process from the beginning. And the first problem is I think we are trying to legislate changes in zoning without being a legislative body. Honestly, where do we get the right to change the zoning on a parcel for what would be a minor infraction? We bypass those all the time, you know. A lot of people come in for extensions. They may not have met their time requirements and so on and so forth; but that happens frequently. The other problem that is really of more concern to me is that there really hasn’t been much communication between the County and the applicant as far as trying to work out, you know, an amenable solution to this problem. And in fact, I would say, if anything, Mr. Lim and the applicant have made significant compensations; they’ve reduced the lot size from 50 to 25, they’ve agreed to boundary agreements, and a number of things that were not in their original SMA. And they tried to work with the County. And you know, it looks to me like they are getting railroaded, to be honest with you. And that’s what bothers me. That’s the main thing that bothers me. RHO: Commissioner Watanabe. WATANABE: I have a number of comments. But first of all, I’d like to echo some comments that Lani Bowman made at our last Planning Commission meeting in Hilo; and this was with regard to an extension of time, Change of Zone for Nani Mau Gardens. And she had indicated at that point that “maybe if you were coming to me now asking for this density, I wouldn’t approve it; but seeing that you already have it, I’m more likely to go along with it.” I don’t entirely disagree with the Director. And I -, more and more, as I spend more time on the Commission, I’m becoming a little more concerned with SMAs and viewplanes and things of that nature. But you know, where I think I disagree significantly with the Director is with the preservation of previously granted entitlements. And the Director did indicate that not much was done on the parcel; and I guess that’s debatable. However, from previous testimony I do recall that the developer has already satisfied the affordable housing requirement, which was a condition. They also secured easements for underground electrical, which had to go below Akoni Pule Highway; that was another issue. And I also recall they had secured water rights from Kohala Ranch Water Company at a cost of approximately $600,000. And to me that along with whatever other efforts they’ve made is rather a significant investment. Now, it’s debatable, maybe they can make that back with 5 or 6 lots or 7 lots or whatever it turns out to be. Maybe not. I think, though, here if we were to merely extend the time, extension of time, then all we are saying is we are setting precedent for how we would vote on entitlements or preservation of entitlements. If on the other hand, as now the applicant is willing to concede, we are able to secure what is essentially a 50 percent reduction, I think that’s sending a clear message to the public that, no more, you know, the density should not be this great. Within the Director’s Findings of Fact, Conclusions of Law, he did indicate that to the north of this parcel all of the property is zoned -, virtually all of the property is zoned Ag-5 and it’s an expanse of about 8 EXHIBIT A 37 miles according to my recollection. I think that’s sufficient, you know, for public viewplanes, etc. And where I’m also concerned is we had one SMA that we turned down – it was D-Bar Ranch LLC – and this was for a 120-unit condominium project on 44 acres over in Kona. They appealed. I believe it was Judge Strance concluded that we denied it in error. Of course that wasn’t a zoning; that was an SMA. It was remanded back to us much like how Ibbetson was remanded back to us. And then we spent whatever time on that. You know, in conclusion I think if there is anything that we really ought to do, maybe we ought to ask the Director to look at ways to -.We have building height limits, but we don’t have restrictions on how high we can build building pads. And I don’t understand the significance of a building height limit, if there is unlimited -, you can build a pad up unlimited. And I’m referring to Kohanaiki, you know, where now when you stand in the parking lot, you can’t see the horizon because the building pad is higher than the horizon. So why do we even have a 45- foot building limit, if we are going to allow stuff like that? I mean, I haven’t said anything about this in the past because they did make also considerable concessions. And I believe their setback was 1,500 feet, if I recall properly. But still it makes it even more difficult, I think, for other people that are coming forward at a later date. So I think the applicant’s proposed conditions are a reasonable compromise. And I think we are also serving public interest by making some clear statements in the two areas I previously mentioned. DOMINGO: Mr. Chairman. RHO: Commissioner Domingo. DOMINGO: Thank you, Mr. Chairman. I feel that to hold a developer – in this case – and the representative to make revisions and amendments to a zoning code and an SMA permit in order to acquire an approval is wrong. The original owner applied for rezoning, they followed up with an SMA permit, all based on what is stated in the General Plan. And ever since that time until 2005 there has not been an amendment to the General Plan within a concern in this specific area. Now, I think the only ground that we can see in trying to deny -, if we were to deny the applicant to go ahead and do work on this project, it should have to be based on the ability of not meeting the plan approval (sic) deadline. But the applicant has revealed to us the difficulties that they were having, of course, change of ownership and the process to which they conducted, submitted a number of reports. And they have done this in good faith all the time, not trying to do any end- runs or trying to fool us, I mean, trying to convince us that this is done and that on their part it hasn’t been done. You know, it was all in good faith effort. The General Plan has not changed at all. And if the people along the coast in North Kohala, as indicated, felt very strongly about prohibiting any development or curtailing any such efforts in this area, why has not the County Council or the Planning Department initiated any change in the zoning or the LUPAG Map in this area? Why haven’t they changed the policies on the element of growth that is to be taking place? There has been no change or effort whatsoever by the Department nor by the County Council. And then what we find here is an approach, in my EXHIBIT A 38 opinion, to negate everything that has happened and take away from the developer all that he has put into it. That is unfair.You know, the doctrine of fairness is something that I have lived by throughout my life and especially serving on the County Council. Fairness and reasonableness has to be shown. And I think that is lacking here. The applicant has attempted to sit with the Planning Department for probably about 5 or 6 times; and there has not been any valid kind of meeting to discuss issues to mitigate the concerns that they had. It was just a stone wall. There was not an opportunity given to the applicant to go in and discuss the issue. And because of that, even the applicant feels that they have been in some ways targeted; and for whatever the reasons, I don’t know. But you know, it makes me feel very concerned about the authority that we have and oversight that the administration and the Council have with regards to planning issues. Planning is a very important aspect in the growth of our county. And it has to be done and it has to instill within the people within the community a degree of trust and fairness in this regard. And I think, you know, that’s why I feel strongly about this whole issue. Thank you, Mr. Chairman. RHO: Commissioner Woodward. WOODWARD: Well, just to echo what Commissioner Domingo said, the letter of the law and justice are not the same. And what we are doing here is to try and change the zoning for political expediency. And in fact, Director Yuen so much has said that the people right now want to have bigger lots. Well, what are the people going to want 10 years from now? Are we going to go on public opinion? Are we going to go on polls? Or are we going to go on what’s really just? You know, if this matter had come before the Planning Commission, and there was not this political consideration, we would have approved it in a heartbeat. Their infraction was minor. There is no reason to downzone this. And the applicant has actually made significant concessions, you know, despite his attempts to try and deal with the Planning Department; he has made concessions on his own. So you know, as I say, this is being done for political considerations, as far as I’m concerned, this whole episode. And it’s unprecedented. It happens so infrequently. And I can’t see a good reason to do it except for -, well, it’s the politics of now. And the politics of now are not going to be the politics of tomorrow. And so, you know, I can’t see any reason to deny the applicant’s recommendations, to be honest with you. SIRACUSA: Mr. Chair. RHO: Yes, Commissioner Siracusa. SIRACUSA: I notice we are having an awful lot of discussion without there being a motion on the floor. So I would like at this point to make a motion. And then we can discuss away. In the matter of REZ 866, Kohala LLC being the applicant requesting an amendment to Condition C (time to secure final subdivision approval) of Change of Zone Ordinance No. 97- 102, I move that an unfavorable recommendation be forwarded to the County Council based on the Planning Director’s Findings of Fact, Conclusions of Law, and comments to the Commission, as well as several other things, which will be -, other reasons which I would like to discuss but not necessarily make a part of the motion because that would be too longwinded. RHO: Is there any second? Your motion dies for second. EXHIBIT A 39 WOODWARD: Mr. Chairman. RHO: Commissioner Woodward. WOODWARD: In the absence of a second to that motion, I would move that we approve the applicant’s request for a time extension on REZ 866 and forward a favorable recommendation to the County Council. RHO: Is there a second? DOMINGO: Second. WATANABE: I’d like to clarify, please. Would that be subject to – I assume it is but – would that be subject to the proposed conditions by the applicant, Kohala LLC, Items A to – I think it was -? WOODWARD: I -. WATANABE: X, which restrict development to 25 residential lots and set the setback at 100 feet -? WOODWARD: I believe, if I’m not incorrect, that that’s actually part of the SMA permit, not the rezoning. WATANABE: No, no, no. It’s also part of the rezone. WOODWARD: Okay. Well, I will be happy to accept that as an amendment. DOMINGO: I’ll accept that as a second also. WATANABE: It’s part of Change of Zone Ordinance 97-102. This was submitted with his – excuse me. RHO: Just to add to the confusion, though, on the -. WATANABE: This was submitted as part of the material from the March 18, 2008, letter; and it had a redline version as well as a clean version both for the SMA as well as the Change of Zone. So, and as Mr. Lim pointed out earlier, all of the conditions that we were discussing were in the Change of Zone, yeah? There are two sets of documents, in other words, that he proposed, or conditions that he proposed; one was more applicable to the SMA and one is more applicable to the Change of Zone Ordinance. Again, it was included in -, I think it was the 41 pages that came along with that -. RHO: Okay. There has been a motion and a second. WOODWARD: Yeah, I would have no problem with adding the -. EXHIBIT A 40 RHO: With the friendly amendment -. WOODWARD: The amendments to both -. WATANABE: Right. RHO: Made by Commissioner Watanabe. WOODWARD: To both, yeah. WATANABE: For all the conditions -. RHO: For all the conditions -. WOODWARD: Absolutely. RHO: To be included. Discussion? Commissioner Siracusa. SIRACUSA: Yes. I want to say right now that I totally disagree with everything that Commissioner Woodward has said – and that doesn’t mean I don’t like you, Rell. WOODWARD: Okay. SIRACUSA: But I do totally disagree with you on this matter. For one thing, you have made statements about the applicant having bended over backwards, and made statements about the Department and the Director. I found on reading everything that quite to the contrary and in reverse Mr. Lim’s tone was rather personal, contentious and insulting to the Director. He has used phrases such as, in his Exceptions, “scheduling and notice defects that have plagued these proceedings,” “unprecedented and drastic treatment,” “targeted Applicant,” “unfair and illegal,” and here in our presence today used a phrase “individualized attack on one property owner.” It seems to me that we are playing little semantic games here. For one thing, we are talking about downzoning when actually what we are doing is reverting to original zoning. It’s not like we are starting from something and just downzoning. We are reverting to the original zoning – if you pass this, or if you don’t pass this, rather – because the applicant did not follow certain requirements. Every single permit or application we get has the statement, “Should any of these conditions not be met or substantially complied with in a timely fashion, the Director shall initiate procedures to revoke” the permit or the Change of Zone. When we ask an applicant who comes forward if they have read the conditions, if they agree to them, they say yes. Of course they say yes; they want to get the permit or the Change of Zone. But they always say yes, they will comply; so they are on record already as agreeing to that. And yet, I don’t think it’s manini that they didn’t. There were too many things that they didn’t do.And those things are important. Otherwise, we wouldn’t have them in the rules; we wouldn’t have them as a set of requirements. I don’t think we can say, “These requirements are manini and it’s okay if you don’t comply, but those you have to comply.” Where do we draw the line? If you are talking about fair, then we have to have the same standard for one condition or another condition. EXHIBIT A 41 We are talking about SMA permit revocations. Mr. Lim is contending that there was only one maybe 26 years ago or something. If that is true, it is still not relevant. And it’s still not relative because they have been other revocations of permits even if they were not SMA permits. And it is allowed in the rules, and it is part of the conditions of every permit that that can happen. The time extension -, by definition, an extension is something you do when you already have the time; you apply for the extension before it is run out. Once the time has run out, I don’t see how by definition you can apply for an extension because it doesn’t exist anymore. You would have to start all over from scratch. So I think these are little semantic games that the applicant is playing in order to confuse the issue; and it’s a little smoke and mirrors number. Basically, I feel -, I found that what the Director gave us in his -, and the documents that he presented to us and the yellow page on additions to background and recommendation reports, I found those compelling arguments. I found his discussion of the map, guiding us through the topography and the burial sites and the ability to find a way to position even a smaller number of parcels onto that particular configuration, I found that compelling as well. I will not be supporting any motion to continue this. Finally, I have to say that I feel personally, philosophically that we must always weigh the benefits and the detriments to the public versus to the developer. And even if we only look at that one specific consideration, there is no doubt in my mind that I have to support the Director’s initiative. Thank you. RHO: Commissioner Watanabe. WATANABE: Oh, no comment. RHO: Commissioner Domingo. DOMINGO: Thank you, Mr. Chairman. I think based on the philosophy of Ms. Siracusa, then I would think that if the developers weren’t able to build, first of all, Mauna Kea Beach Hotel, Mauna Lani and Waikoloa, the Hilton, you know, where would the people be today when the jobs were not here? I mean, establishing a precedent more for the people than for the developer would put us in a position that would have been even worse. Now, if it wasn’t for these developers in the past who had invested the monies and built these hotels here, you know, surely we wouldn’t be where we are today. And you know, thanks to the developers for what they’ve done for us. And I think every development, every time extension is considered and a decision is made based on their merits and the benefit for the people. Now, looking at time extensions, again, we would look at it as an individual application, and we determine the facts, and we look at the development and its impact on the developer and on the area. Now, here today some of us may be in conflict with what I’ve said and what Rell Woodward has said with regards to the proposed action that we are contemplating. Now, I don’t know how the votes fell in the issue of the Special Permit for this trucking company that was before us. And let’s think about its history, and recall how many times he had to come before the Council (sic) and ask for consideration, and how many times he had not met the provisions and the requirements of the Special Permit. And what has this Commission done? We have in good EXHIBIT A 42 conscience been very considerate with this individual, and have afforded him the opportunity to sit with the Planning Department and discuss the issues and how he would go about in meeting those requirements. We still have him on the agenda; we have not revoked that Special Permit for one reason or another. And you know, I hope that as we vote as individuals on these issues, we are consistent with what we say and what we do. Thank you. RHO: Ms. Bowman. BOWMAN: I just have a couple of comments. I am concerned with the, I guess, the holding capacity of the area and the environmental effects, the cumulative effects. And I differ with Mr. Woodward who said that just 25 more lots won’t make a difference. I personally think it would. I guess that’s all I have to say right now. RHO: I’d like to make a -, or bring up for me anyway, this technical issue. If you look at the agenda for 2a, it specifically says, “Continued hearing on an amendment to Condition C;” and my understanding is Condition C is time to secure final subdivision approval. And I’m not clear as to how we can add all the other conditions to this agenda, or you know, in terms of the motion. So if somebody can explain that to me. Mr. Torigoe. TORIGOE: Thank you, Mr. Chairman. You know, it’s a valid point to consider. I think, though, normally your agenda is fairly specific in describing what business is coming before you. But often the Commission in the course of discussing the action that it’s going to take on a specific agenda item, as part of making that decision on the specific agenda item, the Commission very commonly looks at other conditions and adjusts them as well, as part of the decision that is amended on the agenda. And so, as long as something that is directly related to the business that is agendized in terms of amending conditions, it seems to be something that should be okay and that the Commission commonly does. So I really don’t see a problem with that at this point. RHO: So if the motion carries, would that already commit us to the SMA? TORIGOE: No, it does not. I mean, you are basically talking about the rezoning; but if there are other concerns that arise in context of the SMA, then you can address those in the SMA. RHO: Okay. Any other questions, concerns? Are we ready to vote? BOWMAN: Could you restate the motion, please? RHO: Okay. Can you help me with that? DARROW: Thank you, Mr. Chairman. The motion before us is to send a favorable recommendation for the Change of Zone Ordinance 97-102 with the applicant’s proposed -, or adopting the applicant’s proposed amended conditions that are listed within the applicant’s March 18, 2008 submittal. Is that correct? WATANABE: That’s correct. EXHIBIT A 43 DARROW: With that, I’ll take the roll. RHO: Yes. DARROW: Thank you, Mr. Chairman. Commissioner Woodward? WOODWARD: Aye. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Bowman? BOWMAN: No. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Siracusa? SIRACUSA: No. DARROW: Commissioner Watanabe? WATANABE: Aye. DARROW: And Mr. Chairman? RHO: No. DARROW: The motion does not pass, four to three. RHO: So at this point we have, I think, two choices or two alternatives: one is to send a default negative recommendation to the Council -. SIRACUSA: Excuse me. That was my motion that couldn’t get a second. WATANABE: No. Yours was not a default -, yours was not a default recommendation. This is default because we have four to three – no five votes. SIRACUSA: Oh, right, right. WATANABE: We hadn’t voted on yours; it didn’t have a second. EXHIBIT A 44 SIRACUSA: Right. RHO: Okay, can we come back to -? I haven’t finished yet. That’s one choice, or one thing that can happen. Another thing is another motion from a Commissioner that’s seconded and a vote on whatever the motion may be. Or the third alternative, third possibility is the applicant can ask for continuance. So what’s the pleasure of the Commission? WATANABE: Mr. Chair. RHO: Yes, Commissioner Watanabe. WATANABE: We’ve attempted to iron this out over – I don’t know, what is this, the forth or fifth meeting? And there is a significant amount of material. I think it’s for the most part polarized at this point. As much as I generally would prefer to not punt and send up a solid decision, I don’t think that we have the votes one way or the other to accomplish that. And so my suggestion would be that we forward this up with all the material and the minutes, etc. to the Council with the default negative. Rho: Mr. Lim, do you have a comment or recommendation or suggestion for the Commission? LIM: I think I -, as much as you want to be done with this, part of the duty that I have to my client is to preserve whatever chance he has to obtain a favorable vote. So I would like to request a continuance, but I want to leave you with something for your next meeting in Kona. But I want to leave you with something is that if some of the no votes are no, no matter how many lots, then I want the Commission to understand that we are willing to work with the Commission on a reasonable number of lots; if 25 is not the number, then I’d like you to tell me what the number is, so I can see what my client will agree to. That’s something that I think -, you know, because that’s kind of where I see this is going. I mean, there are obviously two more Commissioners that could come on; I could get two more yes or two more no votes. But I think that that’s something that would help me anyway in the interim. Because this is a serious matter for him. They’ve got a significant amount of money at stake.And, well, I want to make the right decision for them. RHO: Okay. WATANABE: So then -. RHO: Commissioner Siracusa. SIRACUSA: If we allow the rezoning to revert to the Ag-5, however, that would allow 7 homes. So I don’t see what the -, if you are willing to go for that, I don’t see what the objection to the rezoning would be. Could you explain -? LIM: We are not willing to go to the seven. WATANABE: Mr. Chair. EXHIBIT A 45 RHO: Commissioner Watanabe. WATANABE: Okay. Given the comments of the applicant’s representative, I move to continue this to the next Kona meeting. RHO: Do we have a second? DOMINGO: Second. RHO: It’s moved and seconded. Discussion? Well, I -. SIRACUSA: Question of Mr. Torigoe. RHO: Sure. SIRACUSA: If we continue this, do we also have to continue deliberations on the SMA permit, both the applicant initiated and the Planning Director initiated versions? TORIGOE: Well, just in terms of the logic of your discussions it would seem that if you are going to ruminate further on the rezoning, then, as we’ve noted, the SMA permit has to be consistent with the zoning; so it kind of makes sense for you to continue both of those. But technically speaking, if for whatever reason you want to go ahead and vote on the SMA permit, if there were five votes to approve the SMA permit extension, for instance, then you could make it contingent on there being a consistent zoning amendment. So I mean, that is a technical possibility. WATANABE: I was just making that motion -, I intended to follow up with, after the vote, with another motion to continue both SMAs. If the Commission would like to consider all of them at once this time, as opposed to just the zoning as was agreed to earlier, then I’ll amend it to include Agenda Items 1 and 2 along with 2a; so we would continue all three items to the next Kona meeting -. LIM: To the extent -. RHO: Okay -. WATANABE: I’m willing to amend it that way. RHO: Any other discussion? Okay, I have a -, I want to actually answer your question, Mr. Lim, at least for me personally. I had a difficulty with 2a with the additional components included in it; because in my view once I voted, or if I voted for it, then logically I would then vote for the SMA. I can’t distinguish that. In my mind we were going to vote, or we should have voted on 2a to basically extend the time on the original ordinance. And I guess it’s the same thing for 2 – although we probably wouldn’t get there. But I would not vote for 1 at this time even though I acknowledge and recognize and appreciate the developer’s or the applicant’s concession from 50 to 25. EXHIBIT A 46 TORIGOE: What did you say? You wouldn’t vote for 1? LIM: I’m not -, I think -. RHO: I can’t vote for 1 at this point even though -. TORIGOE: One being -? RHO: I’m -, I recognize the developer’s wanting to reduce the size from 50 to 25, etc. – all that kind of stuff that you’ve argued. And the reason for that is I want to see more than, I don’t know, the map that we are shown or the documents that we have. I think that the Commission truly needs a full-blown presentation that the Commission 10 years ago either didn’t have access to -, it was a different time, different feeling, different mindset, etc. etc. With that said, though, I really have a difficulty with trying to approve any development on the shoreline at this time with 10 years more information, knowledge, etc. etc. etc., regardless of ciguatera and pollution – although that’s part of it, too. So I don’t know whether that helps you, but I really did want to at least from my side, for me personally, address your specific question to the Commission. I think the Commission does appreciate the developer’s willingness to work on this. With that said -. DOMINGO: Mr. Chairman. RHO: We have a motion on the floor -. SIRACUSA: Mr. Chairman, I just -. RHO: Commissioner -. DOMINGO: Mr. Chairman. RHO: Siracusa. SIRACUSA: Want to say that for me it would have been a lot easier, if we could have had a site visit. And I would urge the Commissioners to think about possibly -, especially since the Director brought up all those questions about the terrain and everything, I would like -, if we are going to continue everything, I would like us Commissioners to think about maybe scheduling a site visit prior to coming into the meeting, so that we could all be on the same page and see exactly what the situation on the ground is. RHO: Okay. We have a motion on the floor. DOMINGO: Mr. Chairman. RHO: Commissioner Domingo. EXHIBIT A 47 DOMINGO: Yes. Your emphasizing the need to see a larger map depicting the uses along the coast is well taken. But I think that is one of the bones of contention by the developer and also my argument to it; because nothing has changed in the General Plan, which shows a change in the uses. And I think what we’ve been negligent about – I mean the County Council and the administration – is the fact that they have not come with any changes and amendments to the General Plan or with the policies with regards to viewplane and preservation of historical sites and all the -, those things have not been done; it was not carried over. I mean, we’ve often heard the sentiments of the people from North Kohala with regards to development along that area; but nothing has been attempted to change that or to emphasize that – so developers can look at that and thereby have a clearer understanding on whether or not any development plan should be submitted. That is lacking. So having the maps come up before us, I think, I feel, would not make any difference at all because there has been no change. RHO: Just to clarify, though, I wasn’t asking for maps of the entire area; I wanted diagrams and more specific plans about what would actually be developed in that parcel, like we’ve had before on all these other issues that we have worked on. We have had archaeological plans before us, or at least reports that were available, and we’ve had diagrams. For instance D-Bar Ranch on Alii Drive – we had maps, we had diagrams, we knew how many parking spaces, where they would generally be; they were not final plans, but they were more complete than all this paper that we’ve had over the last six months. That’s all I’m saying. DOMINGO: Thank you. And I understand what you are saying, Mr. Chairman. But if I may, again, what we are asking the developer is to invest more money into something that has a pre-gone conclusion that it will be denied by this Commission. If I was a developer, I wouldn’t do that. And that’s why we depend on plan approval process. So when they’ve given approval for the development, then the developer would then invest monies in hiring engineers and other experts in devising a planned development for them. And then that would be reviewed by the Planning Department, and there are at that time more definitive decisions made with regards to what they can do and what they shouldn’t be doing. And they would all address and come up with mitigating steps for the kind of concern. WATANABE: Mr. Chair. RHO: Commissioner Watanabe. WATANABE: I understand your concern about the SMA permit. And I also recognized it you are an intelligent person and you realize that it’s not necessarily the final plan. I think where this became very difficult, though, for the developer to present you with the final plan is generally what happens is the negotiations, whether it would be a concession from 50 to 25 or whatever it may be, would occur before all of this happens here, in other words, between the Planning Director, the Planning Department and the developer; and then all those requirements are set, yeah, agreement is arrived, they go out and invest all of this, and recommendation generally comes up to us, oh, we recommend a favorable recommendation based on all of this. What’s happening here is the developer is offering the concession because all negotiations other than this have failed. But he doesn’t know what’s going to be accepted; he doesn’t know if it’s going to be 20, 25, 15 or, you know, 30 or whatever.And so that’s why it’s so difficult. And where I think I have a little bit of concern, if that’s the hang-up, is I don’t think he can develop EXHIBIT A 48 the amount of detail that you want by the next Kona meeting. You know, if that’s all that’s going to sway you – and I’m not saying you don’t have a right to that – but if that’s the only thing that would sway you, then we’d be better off continuing it for a longer period, given that the developer says he would prefer to continue. I just don’t see a way that can be done within that amount of time. RHO: Can I just put a final period to this little discussion on my comment? I’m not sure how – and this is just a personal thing – how any of us would be able to act on this SMA, which is basically for me a brand new SMA, given the information we currently have. So that’s my hang-up. And I will -, and I have shared it with Mr. Lim. That doesn’t mean that my vote will switch. All I’m saying is I can’t vote on this SMA; and if I’m forced to vote on this SMA currently today, it’ll be a negative because the information is not there. That’s my view. Why the information is not there is irrelevant to me. I don’t care that the developer has to spend all that money. He should have developed that property within the 10 years. Yes, he bought it after 5 years. But that’s irrelevant to me, personally. I just can’t see myself voting for this SMA based on the information that’s provided today. That’s it. That’s the period. So we have a motion on the floor. Can we take up the motion and have a vote on it – if we can remember what the motion is – and then not adjourn but close the meeting for now for lunch and return after lunch at about 1:30? So -. WATANABE: For the clarification? RHO: Mr. Watanabe, will you clarify that motion? WATANABE: Yeah, for the clarification part? RHO: Thank you. WATANABE: Move to continue Agenda Items 1, 2a and 2 to the next Kona meeting. I forgot who seconded. DOMINGO: I would second it. RHO: Any further discussion on the motion or the revised, slightly amended motion? TORIGOE: So basically, if there is no objection to the amended motion, then that can be taken up. RHO: Okay, so there is no objection to this amended motion made by Commissioner Watanabe and seconded by Commissioner Domingo. If no objections, can you take the roll? DARROW: Sure. If I could just ask for a slight change to the motion; if we could make it to the next West Hawaii meeting. It might not be specifically in Kona. EXHIBIT A 49 WATANABE: Oh, yeah, that would be fine. DARROW: And so the motion before us is to continue Item 1, Item 2 and Item 2a to the next West Hawaii meeting. Is that correct? Okay. With that, I’ll take the roll. Commissioner Watanabe? WATANABE: Aye. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Bowman? BOWMAN: Aye. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Woodward? WOODWARD: Aye. DARROW: And Mr. Chairman? RHO: Aye. DARROW: The motion passes, seven to zero. RHO: Okay. The discussion ended at 12:29 p.m. Respectfully submitted, Noriko Sauer, West Hawaii Secretary EXHIBIT A 50