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HomeMy WebLinkAbout2003-03-25 TBLASMAN (2) PLANNING COMMISSION CONTESTED CASE MINUTES AND HEARING TRANSCRIPT WAYNE BLASMAN (SMA 02-03) MARCH 25, 2003 The contested case proceedings for WAYNE BLASMAN (SMA 02-03) was called to order at 9:00 a.m. in the Ohana Keauhou Beach Resort, Kahalu`u Ballroom, Kona, Hawai`i, with Geraldine Giffin presiding. PRESENT:Geraldine Giffin, Presiding Officer Hannah Springer, Hearing Officer Grant Togashi, Hearing Officer Applicant: Wayne Blasman Wayne Blasman Randy Vitousek, Esq. Jim Fox Intervenor: Maile David Maile David Intervenor: Jk`m`GtkhGnmt` Mikahala Roy Intervenor: County of HawaiÒi Lester Ishado, Esq. Christopher J. Yuen, Hawai`i County Planning Department Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Staff Phyllis Fujimoto, Staff And approximately 22 people from the public in attendance. APPLICANT: WAYNE BLASMAN (SMA 02-03) Î Application for a Special Management Area Use Permit to allow the development of a 13-unit condominiu improvements. The property is located on the east side (mauka) of Ali'i Drive in the vicinity of Hlualoa Bay and across of the Keolonhihi State Historical Park at Kamoa Point, Hlualoa 4, North Kona, Hawai`i, TMK: 7-7-4:26. GIFFIN:Good morning. PARTIES:Good morning. GIFFIN:Am I on? Oh, I am, okay. I'd like to call this contested case hearing to order, but only to the extent that I am going to call an immediate recess. For most of the parties 1 and for all of the Hearings Officers, you know that we have received a whole bunch of material today -. VITOUSEK:Right. GIFFIN:Right now, upon our arrival. And before I can even begin to rule on the admissibility of this stuff, I really need to at least review them. So, do you have 9 oÓclock, Norman? Is it 9 oÓclock now? HAYASHI:Yes. It's after 9:00. GIFFIN:Is it after 9:00? HAYASHI:ItÓs 9:06. GIFFIN:Nine-oh-six. Okay. Then I'd like to recess until 9:15. Thank you. VITOUSEK:Excuse me. Madam Chairman, is there something that you we haven't or, you know? GIFFIN:I hope not, but you can ask our Staff. Norman? VITOUSEK:Okay. Thank you. GIFFIN:Oh, okay. RECESSEDThe Presiding Officer called a short recess at 9:06 a.m. RECONVENEDThe meeting reconvened at 9:15 a.m. GIFFIN:Good morning. ROY:Good morning. GIFFIN:I'd like to welcome all of you here to the contested case. The Applicant is Wayne Blasman. The SMA number is 02-03. This is an application, like I said, for a Special Management Area Use Permit to allow the development of a 13-unit related improvements. Norman? HAYASHI:Thank you, Madam Chair and Hearing Officers. GIFFIN:I'll introduce them when you're through. HAYASHI:IÓm on? GIFFIN:Yeah, I can hear you. 2 HAYASHI:Okay. We have received various correspondences that I would like to enter into the record. We just received, and it's being circulated right now -, maybe I'll go over those that we got earlier. GIFFIN:You know, yeah, not the ones that are being circulated, because I don't think I got mine. HAYASHI:Okay. First, we received a testimony from OHA dated March 25. The second is from Francis Schobel dated March 17, 2003. We also received from Teresa McHugh, The Trust for Public Land, a correspondence dated Monday, March 24, 2003. Also, we received from the parties, from the Applicant, a statement of issues, their witness list, and their exhibits, and exhibit list. Also, from the Planning Director, a statement of issues, witness list, and the exhibits, and exhibit list. From Maile David, a statement of issues, witness list, and their exhibit list, and exhibits. From Klana Huli Honua, a statement of issues, witness list, and their exhibit and exhibit list. We also received in our Kona office yesterday, I believe, a correspondence from Michael Matsukawa, representing Pokobo, who indicated that they are withdrawing their petition for intervention. We don't physically have a copy here, it's in transition right now from the Kona office to the Hilo office. But I've confirmed with the Kona sta request for withdrawal came in and was received at the Kona offi Okay, I believe -. GIFFIN:While we're waiting for that, Norman, why don't I go ahea the Hearing Officers. HAYASHI:Sure. GIFFIN:And later on, could you go into a description of the parcel. HAYASHI:Okay. GIFFIN:Members of the public, I'd like to introduce the other Hearings Officers who will be hearing this contested case. To my right is Hannah Togashi, and I'm Geri Giffin. To my left is our Deputy Corporation Counsel, who serves the 3 Planning Commission, Ivan Torigoe. And it has been determined by consensus that I will be the presiding officer of this contested case. I have set up an agenda of some sort, it's very informal, of how like to just go over that with the members of the parties. First of all, it's really incumbent that we determine that we have one spokesperson for the parties that are here today. So -. TORIGOE:Have them introduce themselves. GIFFIN:Yes, and I need to have you people identify yourself as you introduce yourselves to the members of the public and also to the Hearings Officers this morning. So, Randy, why don't we start with you, and please tell me who will be the spokesperson. VITOUSEK:Good morning, ma'am. GIFFIN:Good morning. VITOUSEK:Randy Vitousek on behalf of the Applicant. The Applicant, Wayne Blasman, is present in court today. His partner, Mr. Fox, is also present. Wayne Blasman will speak for himself, except to the extent that I'm going to be representing him as attorney. GIFFIN:Thank you. DAVID:Aloha. My name is Maile David. I will be the spokesperson for myself -. GIFFIN:Okay. DAVID:On this hearing. Mahalo. ROY:Aloha, Mikahala Roy, spokesperson for Klana Huli Honua. GIFFIN:Thank you. Lester? ISHADO:Good morning. Lester Ishado, Deputy Corporation Counsel, here with the Planning Director. And Mr. Yuen will be testifying today or whenever you may want to. GIFFIN:Fine. Thank you. The next item of business, I'd like to housekeeping things done early, is our schedule. As posted in our agenda and as requested, we need to determine when we're going to do the site visit; and the Hearings Officers are open to any suggestions that the parties may have regarding when we're going to do the site visit unless the Hearings Officers would like to give some input now -. Mr. Togashi? TOGASHI:I would opt for -, I thought about maybe doing it after the public testimony today; but on reconsideration, perhaps Friday, before the start of the meeting, we could do it at that time. 4 GIFFIN:Thank you. Hannah? SPRINGER:Thank you, Madam Chair. I'm comfortable with that. That allows us to study the prepared materials and hear from the public testifiers as well as the various parties and, have a sense of what we're looking at and, for when we visit the site. So I would support that suggestion that we go first thing in the morning on Friday. GIFFIN:Thank you. Any other suggestions? Parties? ROY:Madam Chair? GIFFINYes. ROY:My suggestion is this, that in having been told that we would go there first, it kind of sets the tone in my mind. Seeing the place kind of sets everything going. I can w appreciate the comments, but that's just my thought. GIFFIN:And they're well taken. Maile? DAVID:Yes, I believe a site visit before the hearing would be appropriate in this matter, and I believe we have discussed this at the pre-hearing conference. And I think that -, I'm not trying to say what Mikahala is explaining. But for me, I have prepared myself with that in mind, and that's my comment. GIFFIN:Fine. Randy? VITOUSEK:I join the other parties. I think that, I'd like to propose that you do the public testimony first, but then, I mean, that is not party testimony but public testimony. GIFFIN:Yes. VITOUSEK:Because they're here and -. GIFFIN:Right. VITOUSEK:They're welcome to go, I guess, on the site visit; but them wait. But I really do agree that I think it helps us to have a sense of the property visually and just get a, you know, just be on the property. I think that's the appropriate way to start this type of a deliberation. I think it will help us all understand the spatial relationships and what can be seen from where. And so I would just join the other parties in a request that we do it before we start the testimony in the contested case. I'd also say, you know, we we intend to rely primarily on that written testimony in presentation of our case. And so it would help us if the Commissioners have been on the property and could visualize it. I think, because, you know, we are going to try to move through that pretty quickly. So we're not going to have 5 that testimony where we walk through what is where and what is, and what, you know, in terms of what the spatial relationships are between the different parts of it because we want to, you know, we would like to move the hearing forward. GIFFIN:Thank you. Lester? ISHADO:I think we'll just leave that up to the panel. We can understand the feelings of the parties and I think whichever, whatever expedites. I understand that the parcel is level ground, so we'll be able, you know, everybody should be able to get out and walk around anyway. So, you know, basically, weÓll leave it up to the panel. GIFFIN:Thank you. Commissioners, I need your guidance. Mr. Togashi. TOGASHI:I guess given the consensus of the three of the four parties today, I guess that we should opt to go sometime today. And I do agree with Mr. Vitousek, perhaps we should hear public testimony; and after it's heard, then that would be an appropriate time today. SPRINGER:Madam Chair? GIFFIN:Hannah. SPRINGER:Will the site visit be limited to the one-plus acres of the subject parcel, or will we be looking onto sites in the adjoining properties that may have bearing with regard to view sheds or other cultural activities? GIFFIN:Hang on. Mr. Torigoe. TORIGOE:Thank you, Madam Chair. If the Commission or the panel would like to look at some adjacent areas, if you can do so without trespassing and it's practical to do so, you know, and if it's relevant, you can do that. GIFFIN:Mr. Vitousek. VITOUSEK:Yeah, you know, I would support seeing whatever the panel and the parties think is appropriate in a site visit. We really do. I mean if it means going on other sites and looking back at the property, if it means, you know, this, you know -. It's impossible to try to make the decis -, I personally think it's impossible to try to make the decisions the Commission has to make without having really had a sense that it has seen the area. SPRINGER:Madam Chair? GIFFIN:Commissioner Springer. SPRINGER:Having heard comments then from both Deputy Corporation Counsel and Mr. Vitousek, how would we, I'm looking it as procedure, how would we determine, at what point would we determine if we wanted to go onto adjacent properties, if we're able to? Could 6 that be determined while on the site visit or in consultation with either the Applicant or the Intervenors? GIFFIN:I would rather that those decisions and the comments be on the record, and I would like to have them determined before we go. For the record, I do want everyone to be aware that there are some physical limitations that I have regarding being able to traverse. And so bearing that in mind, I think that we're open, you know; and this is the whole purpose of this discussion. Maile, I see you grabbing the mike. DAVID:Thank you. I just wanted to comment that when we had last met at our pre-hearing -. GIFFIN:Yes? DAVID:We discussed the fact that a site visit onto property, onto Keakealaniwahine would entail a lot longer period of time, and certainly we cannot do it dressed like we are today. And I think we discussed that. So correct me if I'm wrong. You stated that it would be a site visit on the Applicant's property to view what's around his property, and that's what I recall. And if I'm wrong -. GIFFIN:Mikahala. ROY:To my understanding, based on our pre-hearing conference, we were asked particularly not to speak on making that a cultural lesson, so to speak. So I did believe, like Maile expressed, that it was just to see the place of the Applicant's land. GIFFIN:And I think both of you are very accurate. In fact, I remember saying that I have never been there, and so I thought that that was especially appropriate for me. I don't know if I spoke for Grant or not, and I assumed that Hannah had, but that was an assumption. So, Commissioners, again, I need your guidance; and I think we need to make a philosophical decision, you know, as to what we're going to do. I am open. A inclined, I would like to suggest that we do the site visit today, and as Grant Togashi suggested, we do it after public testimony, that would be a logical break, and then come back and go into the contested case. Does that sit well with you? Commissioner Springer. SPRINGER:Madam Chair, especially with regard to the comments of agreement which came from the pre-hearing conference, I'm comfortable with that. I'm wondering if there would, is a possibility of a subsequent site visit as may be determined GIFFIN:Mr. Torigoe. TORIGOE:Well, yeah, if you feel like you need to go back to look at, you know, sites, then we can arrange that. At this point, it seems like, it sounds like the panel doesn't have any particular idea of what it wants to do. I don't know if you want to ask the parties if there are, 7 you know, a few selected viewpoints that they would suggest the Commission look at; and then we can discuss with Staff if it would be practical to do that. GIFFIN:And I think the key word with what Mr. Torigoe just said is viewpoints. And as I said at the pre-hearing conference, I really do not want this to be a lesson on, you know, the cultural value of the sites. I would like to see the effect of this application on the surrounding property. Mikahala. ROY:Madam Chair, no disrespect intended, but for the record, I've been asked to speak and say that that predisposes that you believe that everyone is culturally aware at the same level. And that is just, I just need to state that that, for this site, is not the case. GIFFIN:I see what you're saying. And, Mr. Torigoe, correct me if I'm wrong. I think that we are of the same level from the material that has been presented to us. TORIGOE:Yeah, I think, thank you. I think what would be helpful is if, as I said, if you could identify a few key viewpoints and maybe make note of what those viewpoints are as we go through them. So that when you are going through your presentation, you are able to refer back to those and inform the panel as to what the real significance of those are, when you are in your case, you know, in making your case. That would probably be the best way to make the record on that. GIFFIN:Any other comments, parties? None? Officers, do I hear regarding the site visit and when? Commissioner Springer. SPRINGER:Madam Chair, I move that this panel of Hearings Officers conduct a site visit to the Keakealaniwahine or to the subject property following public testimony on the matter. TOGASHI:Second. GIFFIN:It has been moved and seconded that we have a site visit of the subject property after public testimony today. Mr. Torigoe, in this motion, should we say that if the need presents itself that we also have other site visits? TORIGOE:You donÓt need to say that at this point. GIFFIN:Okay. All those in favor? HEARINGS OFFICERS:Aye. GIFFIN:All those opposed? Thank you. So, by decision, we will be doing a site visit this morning after public testimony. Mr. Torigoe has just suggested to me that we determine the site points now. 8 VITOUSEK:If -. GIFFIN:And with that, we'll need input from the parties. VITOUSEK:Madam Chair, could we take -? GIFFIN:Mr. Vitousek. VITOUSEK:If we took like a two-minute recess and allow the parties to discuss it and then come to you with a proposal, is that fair enough? GIFFIN:Yes. VITOUSEK:Thank you. RECESSEDThe Presiding Officer called a short recess at 9:40 a.m. RECONVENEDThe meeting reconvened at 9:49 a.m. GIFFIN:I'd like to call the meeting of the Hawai`i County Planni back to order. This is a contested case. The Applicant is Wayne Blasman. The SMA number is 02-03. And, Norman, maybe this is a good time to put in the description. HAYASHI:Thank you, Chair. The SMA use permit application is to allow the development of a 13-unit condominium project and related improve located on the east side, or mauka side, of Ali`i Drive, in the vicinity of Hlualoa Bay and across the Keolonhihi State Historical Park at Kamoa Point, Hlualoa 4, North Kona, TMK: 7-7-4:26. We also, I'd like to enter into the record the written testimonies that were circulated this morning, in addition to those that were delivered to you earlier. This is from Joseph Castelli dated March 25, 2003. From Joseph Rodrigues, March 24, 2003. From Duane Erway, President, Plan to Protect Kona, dated March 24, 2003, with an attached letter dated June 24, 2002. Also from William Wallace III dated March 19, 2003. And from Kealoha Kaliko dated March 21, 2003. From Rosemary Alles, dated, I'm sorry, there is no date to this letter, and it is addressed to the Hearings Officers. Also to be circulated to you is the correspondence or testimony that we just received from Kahala-Ann Trask Gibson dated March 25, 2003; and Staff will be circulating that in a moment. 9 GIFFIN:Okay. HAYASHI:Oh, I'm sorry, there's one more correspondence, and that provided to you, from Tricia Carroll, and there is no date to that correspondence. GIFFIN:Thank you, Norman. When we recessed, we recessed with the purpose of the parties getting together and determining the sites that we would be looking at this morning at our site visit. Randy? VITOUSEK:Yeah. Sorry, Madam Chair. First, relative to the additional witness testimonies that were submitted, you know, to the extent that these are written testimonies of a witness who a party is calling, that, they're in a different category than public testimony. GIFFIN:Exactly. VITOUSEK:And IÓm not sure as to entirely how many of these witnesses are witnesses who are listed; but I know Mr. Castelli was listed as a witness by Intervenor Roy. And so I think we need to distinguish between -. GIFFIN:Right. VITOUSEK:Written testimony in the contested case hearing, which examination -. GIFFIN:Right. VITOUSEK:And public testimony which is not, theoretically, subject to cross examination. So -. GIFFIN:Hang on just a minute. Mr. Torigoe. TORIGOE:Thank you, Madam Chairman. I think normally as in your usual meetings, if there is written testimony that is just presented as written public testimony, that is noted for the record and is in the record, but as public testimony and not as contested case testimony subject to cross examination. So if we can just note for the record the particular written testimony that's being offered just as public testimony, and distinguish that on the record from, you know, the other testimony that would be given in the context of the contested case, that would be sufficient. GIFFIN:So then we should ask people like Mr. Castelli if this is simply public testimony or if this is what he is going to be presenting as a w TORIGOE:Well, you know, as a member of the public, he can basica say anything that is reasonably relevant or maybe not even reasonably relevant regarding the subject matter. So I don't want, I donÓt want to be, you know, testimony on that basis. But I think it, you know, I think it would be reasonable also to remind 10 them that if they are going to be testifying as contested case witnesses that, you know, they will have that opportunity and to please not repeat themselves. GIFFIN:Maile. DAVID:Yes, Madam Chair, with respect to public testimony, I would like to note that none of the testimonies, the written testimonies, that we submitted are people on my witness list. But I do, they did request that someone read their testimony into the record this morning as public testimony. So these people whose testimonies Karen Eoff will be reading into the record will be Duane Erway and Mr. -. GIFFIN:Hang on. DAVID:He's listed on your -? GIFFIN:Hang on just a minute. Tell me if they are. DAVID:Okay. GIFFIN:As public testimony? DAVID:Public testimony, correct. Duane Erway, William Wallace I GIFFIN:Okay, just a minute. Okay. DAVID:Kealoha Kaliko. GIFFIN:Hang on. Yes. DAVID:Rosemary Alles. GIFFIN:Yes. DAVID:And the last one is Tricia Carroll. And, Madam Chair, before I pass the mike to Mikahala, I do want to raise an issue, but I would like to raise it after the public testimony and before we start with the case. GIFFIN:Sure. DAVID:Thank you. GIFFIN:Sure. Mikahala. ROY:Madam Chair, just to clarify, Mr. Castelli has been listed as a potential witness, as is required to list all potential witnesses for our case. Today, his testimony, in my opinion, should be admitted as public testimony solely. Thank y 11 GIFFIN:The sites? VITOUSEK:Oh, okay, I'm sorry. You know, thank you for taking th the recess, the parties discussed and came to at least a tentative agreement as to how to conduct the site visit. Of course, that's subject to what the Commission decides. GIFFIN:Right. VITOUSEK:We have, what we've done is by reference to Applicant's Exhibit 6, which is a site plan, we have drawn on the site plan the three areas that we felt were appropriate to look at while we were at the site visit. I have numbered those. I guess we could offer an amended exhibit into evidence that would be the proposed map of the three sites. May I approach the, may I approach -? GIFFIN:Yes. Thank you, Norman. VITOUSEK:This is -. GIFFIN:Where's Ali`i Drive? Okay, here's Ali`i Drive. VITOUSEK:Yeah, this is Ali`i Drive. GIFFIN:Okay. VITOUSEK:What we are proposing -. Okay, Ali`i Drive, okay, we'll turn it around this side. That's Ali`i Drive -. GIFFIN:Okay. VITOUSEK:In that way. Then what we're, this is approximately where the road comes in. We would park right in this area, there's an open parking area, and then we would walk to the mauka side of the property. And there's two, essentially two areas there we want to look from, the subject property mauka towards the Keakealaniwahine Complex GIFFIN:Okay. VITOUSEK:We want to -, if we can find an area where it's easy to walk some ways in to the Keakealaniwahine Complex, we want to do that and look back makai. That would be, so number one would be on Keakealani looking back makai. Number two would be on the subject property looking all around, including mauka at Keakealaniwahine. And then we would come back to the makai south corner of the property and look all around. GIFFIN:Here? VITOUSEK:Essentially. Yes. No, here. No, no, I'm sorry, here, 12 GIFFIN:Okay. VITOUSEK:Right. So Î. GIFFIN:Okay. VITOUSEK:That's the proposal that we came up with during the, during this recess. And let me offer a copy of this as an -. GIFFIN:Yeah, yeah. VITOUSEK:Applicant's exhibit -. GIFFIN:I just need that -. VITOUSEK:Next in sequence. GIFFIN:Entrance. Thank you. Commissioners, I need your input. Randy, did you want to submit this? VITOUSEK:Yeah, I would. I propose that we submit that as Applicant's Exhibit -. GIFFIN:Six-A? VITOUSEK:No. I think we should call it 16, because that's our next, that would be our next exhibit in order. GIFFIN:Hannah and Grant, any objection? TOGASHI:Can you clarify what Site No. 3 is, which is I guess maybe the closest viewpoint from Ali`i Drive? VITOUSEK:Right, yes. Site No. 3 is on the makai south corner of the subject property. It will be on a promontory above Ali`i Drive; and that's probably the closest portion of the subject property to the Keolonhihi complex. GIFFIN:Oh. VITOUSEK:And, you know, so I guess we had thought that from that site you can get a better orientation in terms of where Keolonhihi is relative to where Keakealaniwahine is, relative to the subject property. GIFFIN:Mr. Togashi. 13 TOGASHI:Do you see any value in perhaps maybe observing the subject property, and this is addressed to all three parties, from perhaps the -. There are three parcels, I guess, right there, there are three buildings across the street from the subject property. Would the parties see any, I guess, value in the Hearings Officers perhaps observing the subject property from that viewpoint? VITOUSEK:Well, I think that, you know, when we're at the propose buildings on the makai side of Ali`i Drive will be readily apparent. TOGASHI:And point it out to us. VITOUSEK:Oh, yeah. TOGASHI:Okay. VITOUSEK:They'll be readily apparent. TOGASHI:Okay. All right. VITOUSEK:I mean you'll have no confusion as to where those -. TOGASHI:Okay. VITOUSEK:Where the buildings on the makai side -. TOGASHI:Ali`i Drive. VITOUSEK:Of Ali`i Drive are located. TOGASHI:Okay. All right. Thank you. VITOUSEK:That's part of the reason for going. GIFFIN:Hannah. SPRINGER:I wonder if there would be value in us looking to Exhibit B, the archaeological assessment, and Figure 2 therein, if that would be helpful for us to orient ourselves looking from the subject property. You're considering the subject property with regard to what surrounds it. That's Exhibit B, which is the Archaeological Assessment found in the application. GIFFIN:Hang on. SPRINGER:That figure indicates the parcels that Commissioner Togashi was making inquiry of, as well as the cultural complexes surrounding. 14 GIFFIN:Yeah. VITOUSEK:I'm sorry, which figure? SPRINGER:Figure 2 of Exhibit B, the Archaeological Assessment. VITOUSEK:Yes. Okay. And where on -? SPRINGER:I'm wondering if we might take it with us. VITOUSEK:Oh, I see. SPRINGER:I wanted to make sure that we all -. GIFFIN:On the same page. SPRINGER:Yeah, that we don't -. If I were to ask a question based on this, it would be appropriate. GIFFIN:Yeah. SPRINGER:Madam Chair, I make the inquiry only that I not ask an inappropriate question in the field. GIFFIN:Mr. Togashi, are we all on the same page? TOGASHI:I guess you're recommending that we look at a viewpoint which is pretty much makai of Ali`i Drive, is that what you were saying? I'm looking at Figure 2. I finally found Figure 2. GIFFIN:Yeah, it took me a while, too, but I did. SPRINGER:I think that what Mr. Vitousek identified as Sites 1 and 2, in particular, it would be useful to have this document when looking at that, those two mauka-most view sites. GIFFIN:Mauka-most, yes. TOGASHI:So using Figure 2 as a reference guide when viewing Site you're asking. SPRINGER:If there are no objections. TOGASHI:Okay. GIFFIN:And as Counsel has just advised me, when we are there, we will also ask the parties to help us orient us when we're there. Mr. Vitousek. 15 VITOUSEK:Yeah, I just was somewhat concerned based on Commissioner Springer's statement about asking questions in the field, because of course on a site visit, we're not -. GIFFIN:No. VITOUSEK:On the record. GIFFIN:No. VITOUSEK:And so -. GIFFIN:Unless directed -. VITOUSEK:Right. GIFFIN:To give us some input. There will be no questioning or -. VITOUSEK:Okay. GIFFIN:That kind of -. VITOUSEK:Fine. I'm just saying that's my usual understanding in site visits is -. GIFFIN:No, you're right. VITOUSEK:That there's not an open dialogue. And that if there, that we basically try to remember, I think that -, hadn't we used it to say, well, let's note this area; and then I'll follow up when we're back on the record. GIFFIN:Absolutely. I did want to ask the parties if what Mr. Vitousek said was your, in fact, your consensus. DAVID:Yes. ROY:Yes. ISHADO:Yes. GIFFIN:Great. Okay. Okay, so IÓm going to take this with me wh Hannah and Grant -? We do need to have cell phones off, please. Hannah and Grant, you are in agreement? SPRINGER:Yes. TOGASHI:Yes. 16 GIFFIN:Great! Mr. Torigoe. TORIGOE:Yes, thank you, Madam Chair, I just want to clarify -. I just talked to Staff. And what we will be doing though is to make, give the parties an opportunity just to inform the panel while we're on site of exactly where they are in relation, you know, to some of the sites, and that will, notes will be taken on that. So we'll have a recorded, you know, document regarding that. GIFFIN:Okay. Any other comments, Commissioners? Okay, hearing none. There was a scheduling question that I wanted to talk about. Maile David's correspondence on th March 20, the last paragraph, "For scheduling purposes, please be advised that the two thth witnesses from O`ahu have scheduling conflicts on March 25 and March 28, and I am also waiting to hear from the Mayor's office as to his availability on those dates. Thank you for your consideration." Maile, maybe it might be appropriate for you to go ahead and expound on this last paragraph, and then we'll take it up. DAVID:Thank you. Two of my witnesses, which is Vicky Takamine and David Forman, both cannot make the hearing today or Friday. I have contacted them and advised them that following today's hearing I would have a better idea as to when a next available date would be, considering how fast this hearing process takes. As far as Mayor Kim, I understand that he is, his schedule is very, very busy, understandably; and I would be willing to accommodate his schedule if he would like to testify or agrees to testify via phone conference. GIFFIN:Lester. ISHADO:Yes, thank you, Madam Chair. Just for the record, I have parties and the parties have no objections to testimony by phone. We just need to notify the Mayor of the date. And I guess that will depend partly on Maile date, or when that hearing date is going to be. But I appreciate the courtesy extended to the County in this matter, because the Mayor is tied up in a lot of serious matters right now, not to say that this isn't a very serious matter, also. Also, Mr. Vitousek has graciously stated that Pat Engelhard from Parks and Recreation need not attend today. GIFFIN:Louder, please. ISHADO:Need not attend today. Basically, I represented to Mr. Vitousek that, you know, Ms. Engelhard does not know anything about sale negotiations or anything like that. And I guess you, Mr. Vitousek is going to wait until the end of the day before making another decision. So the subpoena is left open. That is the representation I made to Mr. Vitousek. And so, I guess, once the panel decides on the new, well, if they need a new third day, you know, I'll call the Mayor's office and make sure that's okay. 17 GIFFIN:Okay. Okay. Commissioners, your input regarding the possibility of extending this contested case hearing into the month of April. Hannah? SPRINGER:Madam Chair, I have no objections. But with that probability in mind, I'm wondering if we could set hours at which we will conclude the various installments that we'll be conducting this meeting under. GIFFIN:Mr. Togashi. TOGASHI:I don't have any objections either to extending the hearing beyond the second date. And may I suggest that if the parties are in agreement to extend beyond, to extend it to a third date, perhaps they can suggest, especially Maile David, because, you know, there's no point in setting a third date if your two witnesses can't appear on that date either -. Yeah, so if you could perhaps suggest a third date which would be in agreement with the parties as well as the Hearings Officers that would be, I think, a good way to approach it. DAVID:And would I be able to at least advise you of the date on Friday, at Friday's meeting, because I need to contact these people today. ROY:Madam Chair? GIFFIN:Mr. Torigoe has just suggested that the parties perhaps get together and discuss a day that would be, you know, have consensus on. I think as Hearings Officers we'll do the same. Mikahala. ROY:Just to represent Klana, excuse me, Huli Honua, our witness, Pua Kanahele, faces similar situation where we'd need to pre -, or to plan that, she tells us that tentatively Mondays and Wednesdays are good for her. With working in lieu of your schedule, that would be something we'd need to work toward. In addition, there are two witnesses from O`ahu that would require special scheduling, as well. Thank you. GIFFIN:So may I direct you that all four of you get together and determine suggested dates in April; and we will do the same. Mr. Vitousek VITOUSEK:Yeah, I'm not sure I heard when Mr. Hayashi was listing the documents. I just wanted to clarify that the Commissioners have received the written testimony from the Applicant's witnesses. Is that -? GIFFIN:Mr. Hayashi. HAYASHI:The list of names that I read off, those are the testimonies that we, written testimonies that we received up to date. VITOUSEK:Okay, I'm sorry. No, no, today. I mean we submitted, th submitted written testimony on March 18, because there was a date set in the pre-trial for -. 18 GIFFIN:Yeah. VITOUSEK:Written testimony. And so we submitted our written tes date, and I just wanted to make sure that that has been received by the Commissioners because that will have more impact than anything else on the timing of the appearance. HAYASHI:Mr. Vitousek, who did, who was the written testimony from? VITOUSEK:We submitted written testimony from the Applicant, Greg Mooers, Ron Terry, Bob Rechtman, Paul Bleck, and Fielding Schultz. HAYASHI:Were those part of your exhibits? VITOUSEK:They were not part of the exhibits, they were submitted in accordance with the pre-hearing agreement. HAYASHI:I didn't get anything, any of those. TORIGOE:This is the document that's, it's entitled Applicant's Submission of Written Testimony of Witnesses. VITOUSEK:That's correct. GIFFIN:Hang on. TORIGOE:And there's about a half an inch of -. VITOUSEK:That's correct. TORIGOE:Testimony paper there. GIFFIN:Hang on, okay. SPRINGER:Madam Chair? GIFFIN:Mr. Ishado. Oh, I'm sorry, Hannah. SPRINGER:Madam Chair, I have not received a copy of that. I have received a list of witnesses and exhibits, but I do not have the document that we're discussing. ISHADO:Madam Chair? GIFFIN:Yes, Mr. Ishado. ISHADO:Just for the record, I did receive a copy. 19 GIFFIN:You did. ISHADO:And I have no objections except for portions thereof related to discussions of sale negotiations. But, you know, I did receive a copy. GIFFIN:Did the other parties receive a copy? ROY:We did not, Ms. Giffin. We -, Klana did not. I -, to this moment, I have not put my, have not seen that. I gave a call to Mr. Vitousek's office yesterday to just confirm, and it might be our error, and yet I don't have that as of this point. GIFFIN:Maile? DAVID:I received my copy. GIFFIN:Thank you. Randy. VITOUSEK:Yeah, you know, these 18 copies were hand-delivered to the Planning th Department office in Kona on March 18, and then they were mailed to the other parties, that's why -, to the Counsel. You know, Mikahala did call me yesterday and asked me to confirm the address that the -, her copy was mailed to. I confirmed that it was the correct address with her. I, you know, we, I advised her -. She said she's going to look some more. And I said if you want to come over and get a copy, come over and get a copy. Let me just say that, you know, this is extremely unfortunate because the reason that we did this was to streamline the hearing. You know, the reason that we wrote out all the testimony of all the consultant witnesses was so that we wouldn't have to spend time in the hearing doing it. So I think maybe the first order of scheduling is we ought to create some time for everybody to read those because it will take you maybe an hour to read them all an to -. GIFFIN:Yeah. VITOUSEK:Do it all in another way. Because, honestly, you know, discussion about trying to move this thing along. GIFFIN:Yeah. VITOUSEK:Because some of your Commissioners are holdovers and what not; and so, you know, we went through the time and expense. I'm not whining about it, I'm just saying that we did it because we wanted to speed the hearing up and -. GIFFIN:Okay. Thank you. Mr. Torigoe, what do you suggest we do? 20 TORIGOE:Well, I suggest that you all get copies of this and we m you to spend reviewing it. Because as Mr. Vitousek noted, it's really in everybody's interest that this hearing be done efficiently that way. DAVID:Madam -? GIFFIN:Maile. DAVID:Chair? Yes, while we are on the subject of scheduling and raising issues, I think that the issue I wanted to raise, I should raise it now. I think it's an appropriate time. And the reason I feel this way is because I had a question as to Mr. Vitousek mentioning the extended terms of the Hearings Officers. GIFFIN:Yes. DAVID:And my question is the, Mr. Togashi's term and your term -? GIFFIN:Yes. DAVID:Expired December what? GIFFIN:Thirty-first. DAVID:Thirty-first. Mr. Togashi's appointment, replacement has been appointed? GIFFIN:Yes. DAVID:Okay. And your, you are on a 90-day extension, extended t speak? GIFFIN:I do believe the County has a replacement for me, as well DAVID:I see. Then my question would be whether this hearing, yo Hearings Officers are the, you know, are the appropriate people to be listening to this. And I don't mean to -, it just concerns me because a lot of testimony and a lot of effort is being put into this; and I'd like that clarified for me. GIFFIN:Mr. Torigoe. TORIGOE:Yeah, at the, excuse me, at a prior hearing on this matter, the Planning Commission actually authorized these three persons to function as Hearings Officers, even beyond the end of their terms. As you probably know, the Planning Commission has authority to authorize and even hire people to function as Hearings Officers who aren't even on the Commission. And so, you know, you don't necessarily have to be a current Commissioner to be a Hearings Officer, so -. 21 GIFFIN:Who are paid, I might add. TORIGOE:Right. DAVID:Right. I understand that. My question is at our other -, at the hearing, at the public hearing on this matter, I think it was voted that, whether to fan this out to a private hearings officer or have Commission, Planning Commission members sit as Hearings Officers. So at the time I think this was decided upon, everyone were Commissioners. And things st changed after December 31, and that's my concern. I want to know, for myself, whether th people sitting up front is going to be, you know, or is authorized to do so for the duration of this contested case hearing. And that's why I am raising the objection and raising this question. Whether they decide on it or not, I just want it on the record. Mahalo. GIFFIN:Mr. Torigoe. TORIGOE:Yes. My understanding is that we did specifically raise that issue at a meeting and that the Commission did specifically say, or authorize these persons to continue on beyond the end of their terms as Commissioners as Hearings Officers. And certainly, you know, maybe this would be a good time to see just, on the record, whether anybody has any objection to that, because we did do this on the record. And I really don't see any reason, you know, for you to be concerned about that. I think these, they are committed, they're giving of their own time, and they will be here for the duration. DAVID:And like I said before, I was just concerned because my understanding of the rule is that it is either the term expires on the expiration date, or if extended 90 days, or your appointment, somebody replaces you. And it didn't say, you know, that, it didn't go further to say that unless, you know, the Planning Commission decides that they can still serve. That's the question I have. GIFFIN:Mr. Vitousek. VITOUSEK:Yeah, just briefly. I think this issue was specifically brought to the Commission in a duly noticed hearing in this contested case, and I think that the Commission decided based on the Commission's Rule 4-5(a) that the Hearings Officers were being appointed by the Commission as Hearings Officers. And so, you know, the capacity that presiding officer and the Commissioner Togashi, or Hearings Officer Togashi are sitting in is the capacity of Hearings Officers appointed by the Commission. And there was no objection to that procedure in that hearing. And so I think that issue has already been decided. Thank you. GIFFIN:Mikahala. ROY:Madam Chair, it was also stated at the very close of the mee people had already spent a good number of hours, if I recall. A case of this magnitude, in my opinion, really should call forward some of the most procured representatives, of which I don't contest you are those, mind you. But, for the record, I'm saying that my concern is that, in fact, that it has been the case. And I can well take the question for the fact that if we begin the 22 process only to have it stopped, I can appreciate Maile's question here at this point because it is the case it is. GIFFIN:Mr. Torigoe. TORIGOE:Well, I think in terms of what we have on the record, the intent of the Commission and of the panel here has always been to make sure that these people are here for the duration. They will serve as your Hearings Officers to make sure that this case is heard without having to stop and, you know, change horses or anything like that. DAVID:I appreciate that, and I just needed to raise that for the record. Mahalo. Thank you. GIFFIN:You're welcome. So we are back to the consensus amongst the parties to determine some dates, and you'll come back to us on Friday, and All right. In light of Commissioner Springer's suggestion that if we do go on and extend into April that we would have some designated end times for each date, and so I'd like to suggest that 5:00 p.m. today is the time that we would recess this contested case. Is that agreeable to everybody, 5:00 p.m.? ROY:Yes. GIFFIN:Mr. Vitousek? VITOUSEK:Yes, that's fine. ROY:Yes, that's fine with me. GIFFIN:Okay DAVID:Yes. GIFFIN:Mr. Torigoe and Commissioner Springer? TORIGOE:Yes. SPRINGER:Yes, ma'am. GIFFIN:Sir, okay? On Friday -. TORIGOE:Togashi. GIFFIN:He did, he said yes. 23 TORIGOE:You said Torigoe. GIFFIN:Did I say Torigoe? TORIGOE:Yes. GIFFIN:I apologize. Mr. Togashi? TOGASHI:It's fine with me. GIFFIN:Thank you. Thank you. Regarding Friday, you should be in receipt of a letter regarding my request to leave at 1 oÓclock on Friday. Is there any objection to that? And, therefore, adjourning or recessing at 1 oÓclock and then continuing on the consents date that we have for April? Any other comments? Okay. Norman, did you hav say? HAYASHI:Yes. I did check with the Kona office as to the written testimony that was submitted by Mr. Vitousek. It, in fact, was submitted to the Kona office. It was pouched over to the Hilo office; however, the Staff at the Hilo office has not r must be in the Hilo office. GIFFIN:Okay. VITOUSEK:You know, I, excuse me. I guess we ought to try to fin way to get you copies of this as soon as possible. And then, you know, maybe we could, I don't know, do the site visit and then like, like come back at one or something? I mean, just so that we get a chance to, because really it will speed things up if we get a chance, if the Commissioners get a chance to read the testimony and we don't have to, you know, go through it all orally. GIFFIN:You know, in light of the schedule that we have, we informally spoke of having our lunch brought in. VITOUSEK:Oh, okay. GIFFIN:And that might be a very good thing if we could have the material here after we got back from the site visit. We could go over it during our lunch recess. HAYASHI:We can have copies made at the Kona office and have it ready. VITOUSEK:That's fine. GIFFIN:Okay. And with that, I think we have all of our housekeeping chores done, unless I have forgotten something. Everyone, we're all on the same page? And as I recall, the consensus was that, or the motion was that we will begin public testimony and then, after that, go on to our site visit. 24 Sharon, do you have an order in which the people signed up for public testimony this morning? NOMURA:Two people signed up. GIFFIN:Who is one and who is two? NOMURA:Mr. Castelli is first. GIFFIN:According to our Staff, there are two people who signed up to give public testimony here today in person. The first person is Joe Castelli and the second person is Ron, I'm sorry, I can't read your last name. Cauther? Where are you? CAWTHON:Cawthon. GIFFIN:Cawthon, okay. Would you please come forward. We'll begin with Joe Castelli. Joe, will you please go up to the podium, and I need to -. Is there anyone else who came here today to give public testimony who did not sign up? NOMURA:These gentlemen right here. GIFFIN:There's four of them. Okay. Will you please all raise y Thank you. So there's five of you. Could you please stand up, all of you to raise your right hand who are going to give public testimony. Do you swear or affirm to tell the truth on this matter now before the Hawai`i County Planning Commission's contested case? TESTIFIERS:I do. GIFFIN:Thank you. Sir, will you please give us your name and your resident address. CASTELLI:My name is Joe Castelli. I live at the Surf and Racquet Club, 78-6800 Ali`i Drive, # 27, Kailua-Kona. I've lived in Kona since 1984, and prior to that Honolulu, and prior to that 15 years in Micronesia and the Marshall Islands. I, the testimony IÓm going to give today is just my own opinion. I've been to the site many, many times, and I've been over every inch of it. And IÓm very f about it because I am familiar with Keakealanikane, who was the grandfather of, well, all those, and Keli`iokalani, Keakamahana, and Keakealaniwahine. But this is my testimony, and it's my own opinion. The 13-unit condominium complex proposed for the 1.225 acre parcel at issue is planned to be built on land that was once an integral part of the Royal Hlualoa Center consisting of the Keakealaniwahine and the Keolonhihi Complexes. This incompatible condominium complex should not be allowed to be built as part of the Royal Hlualoa Complex. It would be like building a shopping mall in the middle of the Gettysburg Battlefield. A better use for this 25 1.225-acre parcel would be to conserve it for future use as a visitor's center as well as an entrance for the visitor parking from Ali`i Drive. The closest planned condominium building to the Keakealaniwahine complex property line is approximately 20 feet and approximately 75 feet from the walled enclosure of Queen Keakealaniwahine's residence. As well as detrimental cultural, visual and contrary land use impacts, there will be a severe impact relating to noise between the condominium and historic site entities. When completed, noise will emanate from the condominium complex from the residences, the pool, cars, children and other normal community activities. This noise will disrupt the sacred tranquility of this ancient site, disturbing the interpretive presentations of the State Department guides within the historic complex. And because of the closeness of these two entities, we can be sure that at some time in the future when both sites are developed, there will be complaints from condominium residents against historic site activities. These complaints will cite excessive noise from the historic site relating to drums, chanting, Hawaiian music and visitors to the historic site. Some historic site activities wi The time to solve this impending problem is now before it begins. Future generations will fault us for our lack of sensitivity for the Royal Hlualoa Center. A condominium complex does not belong as an integral part of this historic site. The request for a Special Management Area use permit approval should be denied. I would recommend that the State and County acquire this 1.225-acre parcel and include it as part of the Royal Hlualoa Complex (Kaluaokalani) State Park. Thank you. GIFFIN:Mr. Torigoe, we have been in receipt of a question from the party representing the County, and I would like you to please give us some input on that. TORIGOE:Okay. I guess the Planning Director is interested in asking Mr. Castelli, as a public testifier, a question or two. Do the parties have any objection to that? DAVID:I'm sorry? TORIGOE:The Planning Director wants to ask Mr. Castelli a question or two. Is there any objection? Of course, Mr. Castelli being a member of the public, is not obligated to answer; but Mr. Yuen, I suppose if there is no objection, can ask. VITOUSEK:We have no objection provided that, you know, all parties have the opportunity to ask questions if one party does. GIFFIN:See, and I mean then it's going to be cross-examination. TORIGOE:Yeah, you know, the Chairperson is concerned that this not turn into a cross-examination by all parties of all public witnesses. So, you know, maybe we can try to see if it gets out of hand. GIFFIN:Mr. Yuen. Mr. Castelli. 26 YUEN:I just wanted to ask you a question or two because you've spent a, I know you spent a great deal of time working and studying at the Keolohihi and Keakealaniwahine Complex. According to the Applicant's archaeological report, the 1.3-acre Blasman property that the SMA, that they're applying for the SMA permit was largely cl and does not currently have any features on it that result from old Hawaiian days. Do you know of any studies, reports, records that would tell us what might have been on it dating from Hawaiian times before the property was cleared or altered as it's presently in? CASTELLI:I'm not aware of any archaeological sites that were there previously. Apparently, this property has been bulldozed at one time because the land level is several feet below the land level of the surrounding area. That's not to say there was not because, any archaeological sites, because it sat in between the Keakealaniwahine Complex and the Keolonhihi Complex and was once an integral part of both of those. I would assume there were sites there, but I'm not aware of any. YUEN:That's the only question I have. GIFFIN:Mr. Vitousek. VITOUSEK:Yeah, Mr. Castelli, I'm Randy Vitousek, I represent the Applicant. You say you live at Kona Surf and Racquet Club, is that correct? CASTELLI:Correct. VITOUSEK:Is that a condominium project? CASTELLI:Yes, it is. VITOUSEK:And how many units are in that condominium project? CASTELLI:There's 193 units. VITOUSEK:And is that located on the ocean front. Is that correct? CASTELLI:That is correct. VITOUSEK:And are you aware of whether there were any historical sites which were displaced as a result of building that condominium project? CASTELLI:There were many that were destroyed. At the moment, there were three significant sites. One is purported to be the residence of Lonoikamakahiki, who was once king of HawaiÒi; and there's a k`ula inikiwai heiau, which is a fisherman heiau, and that's in p good condition; and there's a hale moa. But there was also a tapa making heiau which was destroyed and there was a, when the place was built; and another k`ula shrine on the ocean 27 which was, oh, I'd say 75 percent destroyed. And the tennis court is only 10 feet from the Lonoikamakahiki residence. VITOUSEK:Okay. And then, Mr. Castelli, you say you've been visiting this property for some time, is that correct, the subject property, the property where -? CASTELLI:Oh, that is correct. VITOUSEK:And did you ever talk to Mr. Silva, who was the owner of the property before Mr. Blasman? CASTELLI:Right, I know Mr. Silva quite well. VITOUSEK:Did -? CASTELLI:And I got permission from him to -. VITOUSEK:No, no, I appreciate that. CASTELLI:Cross the property. VITOUSEK:What I'm asking is Mr. Silva told me that you and he talked about whether the State or County might be interested in buying his property when it was for sale. Do you remember that? CASTELLI:Oh, many years ago. DAVID:Excuse me. VITOUSEK:He testified about it. He's saying it should be acquired by the State or County, so I'm following up on his testimony. That's appropriate cross-examination. DAVID:But -. GIFFIN:I will give you a chance to go ahead and speak to Mr. Castelli or ask questions, as well. DAVID:Okay. I just wanted to note my objection to this questioning of the -, of a public testifier. GIFFIN:Thank you. VITOUSEK:Okay. So, Mr. Castelli, did you ever talk to Mr. Silva about offering the property to the State or County? CASTELLI:About offering it? 28 VITOUSEK:About, well, about whether the State or County might be interested in buying it. CASTELLI:I spoke to him many years ago about it. And, as I understand it, he was hoping the County would buy it from him, and I believe that might have been his initial intent of buying the property, with the hopes that one day it would be purchased by the -. I'm just guessing, or -. VITOUSEK:Yeah. CASTELLI:Kind of got an indication that he bought it with the hopes that one day it might become a State park. VITOUSEK:Okay, so -. So you're at least aware that Mr. Silva was open to the possibility of the State or County buying his property to make it part of the park, is that correct? CASTELLI:Yeah, that's correct. VITOUSEK:Okay. I don't have any further questions. GIFFIN:Thank you. Maile. DAVID:With all due respect, Mr. Castelli, I really appreciate your love and aloha for historic sites and things Hawaiian. But I just want to make a note that the comments that you have just heard on Keakealaniwahine represent Mr. Castelli's opinions if -, and correct me if I'm wrong, and his own assumptions. And matters respecting the Keakealaniwahine Complex should be left to our cultural experts. Thank you. GIFFIN:Mikahala. ROY:I appreciate the comments made by Ms. David. And, in addition, I would say that, further, the comments made for sites down the coast are made by the discretion of Mr. Castelli. But they, in fact, should be confirmed by cultural experts of the area. Thank you. GIFFIN:Thank you, Mr. Castelli. The second person to sign up is Ron Cawthon. You may begin your testimony after you've given us your name and your residence, please. CAWTHON:Aloha, my name is Ron Cawthon. I live at 75-6988 Mmalahoa Highway, Keauhou Mauka. And aloha everyone, and kala mai if I offend anybody. I didn't bring my reading glasses. This is kind of an ask and answer, since we're not really in court. The question is what duties does the Commission and Commissioners owe, and what laws obligate them to insure they are followed? 29 Each Commissioner is required to take an oath to support and defend the Constitution of the State of Hawai`i and the United States. The State of Hawai`i Constitution indicates that the State affirms, reaffirms and shall protect all rights, traditionally and customarily exercised for subsistence purposes, possessed by the ahupua`a's tenants. If this Commission grants an SMA permit, it would clearly impact the rights, customarily and traditionally exercised for subsistence, and cultural and religious purposes. If the developer desires to build condos, the ahupua`a tenants will no longer be able to exercise rights, traditionally and customarily exercised for subsistence and traditional, for cultural and religious purposes. Because of this -, there is some language at the end of that provision that says subject to the State -, subject to the rights of the state to regulate such rights. Because of this confusing language, in the State Constitutional provision, IÓm going blind here, Commissioners might think you have some sort of right to regulate or alter -. Mahalo, ee haw, oh, I can see. Because of the confusing, okay, sorry about this. This Commission might think it has some authority to regulate those rights. Both the State of Hawai`i and the United States Constitution specifically forbid the government regulating religious purpose. The State of Hawai`i Constitution dictates no law shall be enact religion, or prohibiting the free exercise thereof. This does place the Commission in an extremely difficult position, as it is a fundamental Hawaiian religious practice to malama ka `aina (to take care of the land). Any actions by this Commission that would help in the obstruction of the religious beliefs of Hawaiians, or others that have religious beliefs that Keakealaniwahine or Kaluaokalani have great religious or spiritual value, would be a serious violation of United States Criminal Codes, Title 18, Chapter 13, Civil Rights, Section 247, Obstructions of Persons in the Free Exercise of Their Religious Beliefs. Question 2, what rights does the developer have to this 1.5 acre site in the ahupua`a of Hlualoa 4 and what are the limitations of those rights? The developer of this parcel appears to hold a contractually based interest in this `aina. The question becomes what are the terms and conditions of his interest as it relates to the creation of the title? In August of -, I'm not sure of the date, I've got it somewhere. At the first Planning Commission meeting, I personally served Mr. Blasman a copy of an instrument that was recorded in the Bureau of Conveyance. The document indicates that a direct lineal heir of Loe, he's asserting his vested rights. Vested rights are a right complete and consummated, and of such character that it cannot be divested without the consent of the person to whom it belongs. This notice was placed in the Bureau of Conveyance pursuant to Hawaiian judicial precedent or established, and established by Hawaiian usage. Hawaiian Kingdom Law, see HRS 1-1, HRS 172-11. 30 If developer Wayne Blasman right -. The developer Wayne Blasman rights are limited. He does not have the legal entitlements to change or alter the use of this parcel, nor does he have the leg standing to come before this Commission and request a limitation of rights, customarily and traditionally exercised for subsistence, and cultural and religi When the developer purchased an interest in this parcel, the title -, his title report specifically indicated that his rights were subject to the rights of the native tenants (see Civil Code, Hawaiian Islands, 1859). If this Commission were to grant an SMA permit, the effect would be that native tenant rights will become subject to his use of the property. Unlike this Commission's Constitutional requirement to protect rights customarily and traditionally exercised for subsistence and cultural purpose, cultural and religious purposes, there is no Constitutional requirement to grant this developer the right to limit or destroy native tenant rights or rights customarily and traditionally exercised for subsistence and cultural and religious purposes. Thus it appears that until this Commission can define the rights of native tenants and rights, customarily and traditionally exercised for subsistence, cultural and religious purposes, the impact of this project on said -, and the impact of the project will have on said rights, it would far exceed its authorities and duties if it were to grant this SMA permit. There is no question Mr. Blasman has an interest in this `aina, but it is clearly limited and he cannot claim rights which are not vested in law. The facts are clear. Mr. Blasman is not a native tenant, he does not reside on the parcel, he is an American, not a Hawaiian. Mr. Blasman purchased title insurance to protect him from the heirs of Loe. If he makes a claim, maybe they'll take care of him. If this Commission were to grant Mr. Blasman's SMA permit, each substantial civil liability. Mahalo. GIFFIN:Commissioners, Hearings Officers, any questions of the public testifier? SPRINGER:No, thank you. GIFFIN:Thank you very much. The next public testifier is Kai`pua Fyfe. Your name and resident address, please. FYFE:Aloha kakou apau. My name is Kai`pua Fyfe. I reside at 4121 Rice Street, Lihu`e, Kaua`i. GIFFIN:You may begin your testimony. 31 FYFE:Mahalo, Hearings Officers, for being here to participate in this contested hearing case, and I appreciate the opportunity to speak before you. My name is Kai`pua Fyfe. I am a member of the Muller-Kekaula `ohana. I am here representing that `ohana as the committee chair of the Kona Heritage Committee, which is part of our `ohana organization. I don't have written testimony at this time. I will submit it before the next hearing, if that's allowable. And today I would just like to say that our `ohana has been working internally on educating ourselves regarding the sites that are in question adjacent to the property. As a matter of fact, we have created models, we have studied all the reports that State Parks has made available. We have a strong commitment to support any of the activities that would benefit these sacred sites. And we have discussed it at length and via teleconference at a `ohana board meeting last week. I was authorized very briefly to state that our `ohana opposes the issuance of an SMA permit, that we support protection of the Keakealaniwahine site, and that we also support a unified Keakealaniwahine-Keolonhihi Complex Historic State Park which would eventually include all pertinent and appropriate properties which fall within the complex boundaries or are adjacent thereto. And at that point, at this point, I would just like to say mahalo again, and I will be submitting detailed written testimony. GIFFIN:Thank you. Officers, any questions? SPRINGER:No, thank you. GIFFIN:Thank you very much. VITOUSEK:May I ask one question? FYFE:Oh, excuse me, let me make one more point, which I failed t that is to state that our `ohana is comprised of lineal descendents of historic and pre-historic inhabitants of the area in question. GIFFIN:Mr. Vitousek, I will allow your question as long as it's brief. VITOUSEK:Sure, you bet. GIFFIN:Thank you. VITOUSEK:Mr. Fyfe, my name is Randy Vitousek, and I represent the Applicant. Mr. Fyfe, isn't it correct that the Muller family formerly owned a kuleana immediately adjacent to this Blasman property? FYFE:I think the Muller family has been, as a matter of record, a resident in that area for quite a while. You may have more detailed information than I have on that. 32 VITOUSEK:Okay. Well, it was my understanding the Muller family owned a kuleana that was immediately adjacent to this, the Blasman property, and that that property was sold to a Ms. Kimi Cook. Are you familiar with that? FYFE:That may be the case. As I drove past there today, I saw t that there's a for sale sign and Kimi Cook's name was on it. VITOUSEK:Okay. And so do you know when, do you know what member of your family sold that property and, to Kimi Cook? FYFE:I'm not clear what the transactions were at that time. I was aware that it transpired. I became active in this area about 12 years ago when our `ohana formally organized and started visiting frequently to -. VITOUSEK:Yeah. FYFE:Kona. VITOUSEK:But you do recognize that there is a house developed on the property that was formerly the Muller kuleana there, is that correct? FYFE:I saw it this morning. VITOUSEK:Okay. I have no further questions. GIFFIN:Thank you. Mr. Ishado. ISHADO:Just one question, sir. The same question that Mr. Yuen had asked earlier, whether you are aware of any archaeological studies done for the particular site. FYFE:Of the 1.2 acres? ISHADO:Yes. FYFE:I'm not aware of any studies that have been done, no. I'm not aware that none were done. I'm just not aware. ISHADO:Thank you very much. GIFFIN:Thank you. And thank you, sir. Ruby McDonald. MCDONALD:Aloha. GIFFIN:Aloha. Your name, please, and resident address. 33 MCDONALD:Ruby McDonald, Office of Hawaiian Affairs, 75-5706 Hanam Place, Suite 107, Kailua-Kona 96740. GIFFIN:Thank you. You may begin. MCDONALD:Thank you. This is the Office of Hawaiian Affairs' testimony before the Hawai`i County Planning Commission, March 25, 2003. It says 9:00 a.m., but that's okay, Ohana Keauhou Beach Hotel. And this is relative to the SMA permit for Wayne Blasman th property, TMK: (3)7-7-04:26, Hlualoa 4, North Kona, Hawai`i. The Office of Hawaiian Affairs is mandated to "better the conditions of Native Hawaiians" under Chapter 10 of the Hawai`i Revised Statutes. Our mandate includes a charge to protect and advocate for the preservation of Hawaiians' rights to their traditional and cultural practices. This includes protecting those places where Hawaiians can still practice their culture. The SMA permit being heard today is for a parcel of land between the Keakealaniwahine Complex and the Keolonhihi Complex in Hlualoa, North Kona. The Keakealaniwahine Complex was the seat of power of one of Hawai`i Island's two ruling females, and houses extensive and significant cultural and historic artifacts. Keakealaniwahine ruled during a time of war between Kona and Hilo. Keawe, builder of the Hale O Keawe at Hnaunau, was her son. The Keakealaniwahine Complex, the Keolonhihi Complex, and the parcel in question today are together known as Kaluaokalani, or "the second heaven." The young Kamehameha trained in the arts of war here with his teacher and advisor, Kekuhaupi`o. Kaluaokalani contains heiau, educational and housing complexes and burial sites. Burials were once located on the parcel in question, although it is said they have been removed since the land has been significantly altered. The question facing the Planning Commission today is whether the benefits of a proposed development in the Special Management Area outweigh the harm to a significant historical site which belong to all the people of the State. OHA would argue that the SMA permit application submitted by the property owner is deficient in three areas. The first is that the archaeological report does not address possible effects of this development on Kaluaokalani as a whole. Rather the discussion centers around mitigating the effect of the development on the viewplanes from Keakealaniwahine Complex. OHA realizes that the parcel has been developed for some time, however, that does not absolve the developer from assessing the historical role of his parcel in view of the surrounding archaeological complexes. Secondly, the SMA does not provide enough detail to adequately address whether or not it conforms to the County of Hawai`i General Plan. In particular, OHA is concerned as to the type of apartments being proposed. The General Plan states that the County will strive for "diversity and stability" in its economic system. Are the apartments being proposed priced within the range of residents of the general Kona area, or are they targeted at the vacation rental market? 34 Finally, the SMA permit application fails to address the cumulative impacts of the proposal. Currently there are three single family houses on the property. Increasing the density to 13 units does not in itself impact County infrastructure, but there has been no analysis of the cumulative impact of 13 new units in addition to residences already in place. For example, will the additional traffic add to congestion on already crowded roads? Is there enough water in the County system for these additional units? OHA would argue that the SMA permit does not clearly show that proposal provides significant benefits to the County of Hawai`i in general, and to the Kona area in particular. Rather, the re- integration of the parcel as part of the Kaluaokalani grounds better provides for the long-term interests of Kona, Hawai`i County and the State as a whole. Indeed, the legislature has found that preserving the Kaluaokalani grounds intact is in the best interests of the State and has introduced Senate Bill 524 to ensure that Kaluaokalani remains intact for future generations. OHA urges the Planning Commission to deny this SMA permit in the interests of preserving a significant piece of Kona history for all the people of Hawai`i and ensuring that Hawaiians retain a few places to practice their culture unimpeded by the gaze of modernity. I think it's moderninity, or whatever. GIFFIN:Thank you. MCDONALD:Mahalo. GIFFIN:Hearings Officers, any questions? Ms. Springer. SPRINGER:I do have a question. I don't know if the testifier can answer as to whether or not Senate Bill 524 was introduced at this session. MCDONALD:Yes. SPRINGER:Thank you. GIFFIN:Mr. Togashi. TOGASHI:Would you be able to tell me if this, I can't pronounce it, it's -. MCDONALD:Spell it. TOGASHI:Kaluaokalani. MCDONALD:Oh, good. Good. TOGASHI:This area, is this synonymous with the Hlualoa Royal Center? Is the area the same in both descriptions? MCDONALD:Yes, it's quoted in Ellis. 35 TOGASHI:Pardon me? MCDONALD:It's quoted in Ellis. Ellis. TOGASHI:All I'm asking is -. MCDONALD:It's -. TOGASHI:I've heard this area being described as part of the Hlualoa Royal Center. Is this synonymous with the Kaluaokalani area, as well, or does the Kaluaokalani area extend -? MCDONALD:Kaluaokalani is the two complexes together in that area. TOGASHI:Including the parcel in question? MCDONALD:According to the testimony. TOGASHI:And it does not extend beyond that into -? MCDONALD:Not that I'm aware of. GIFFIN:Maile. Mikahala. ROY:Thank you. Mr. Togashi, in answer to your question, the Hlualoa Royal Center is a term that was coined by Mr. Joseph Castelli. It has never been used in any place in history. It was brought forward for the sake of helping people describe this area. But more appropriately, the true name is Kaluaokalani, as quoted in Ellis, as Ms. Keanaaina says. GIFFIN:Excuse me, Ms. McDonald, we're not through asking you que MCDONALD:Come back? Oh. GIFFIN:Mr. Vitousek. VITOUSEK:Yeah, Ms. McDonald, the one question I had is the statement burials were once located on the parcel in question although it is said that they have been removed since the land was significantly altered. Do you have any specific information on that, or where did that -? MCDONALD:Mr. Vitousek, the testifier is not the author -. VITOUSEK:Okay. GIFFIN:Oh. 36 MCDONALD:Of this. Mahalo. VITOUSEK:Okay, but I'm sorry, I guess the question -. MCDONALD:Yeah, our office -. VITOUSEK: Is whether you are aware of any -. MCDONALD:DoesnÓt -. VITOUSEK:Whether you are aware of any specific information on that. MCDONALD:No. VITOUSEK:Okay. Thank you. I have nothing further. GIFFIN:Any other questions of the testifier? Ms. McDonald, I have a question for you. In regards to your second to the last paragraph, where you make mention of Senate Bill 524 -. MCDONALD:Right. GIFFIN:Do you or does OHA have any information regarding the status of that bill, and perhaps could you give us some information about it? MCDONALD:Sure. GIFFIN:For example, is there money attached to that bill to purc MCDONALD:There is -. GIFFIN:Excuse me? MCDONALD:Through Mr. Vitousek's good graces, I have a copy of the bill in its entirety, with the status. Would you like to have a copy? GIFFIN:More than a copy, I'd just like to know if you know whether or not -. MCDONALD:No, I don't know. I'm not familiar with this bill, I just got it this morning. GIFFIN:Okay. And its status in the legislature as we speak? MCDONALD:Okay, let me read you the status. As of 3/24/03, it was reported from the Water Land (WLA) Committee, with recommendation of passage on second reading, and referral to the WAM, that's the money people, and the report was adopted, passed, second reading, and referred to WAM again. 37 GIFFIN:Thank you. MCDONALD:Ways and Means. GIFFIN:Mr. Vitousek, did you want to add anything to that? VITOUSEK:Well, yeah, actually, I think Ms. McDonald is referring to House Bill 179. GIFFIN:Right. MCDONALD:One seventy-nine. VITOUSEK:Which is a parallel bill. MCDONALD:Yeah, which is -. GIFFIN:I know. VITOUSEK:I think -. MCDONALD:Crossed over. VITOUSEK:I think Senate bill -. GIFFIN:Five two four. VITOUSEK:I think the Senate bill died. But I think the House bill, it's the same substance. MCDONALD:It's the same. VITOUSEK:Is still alive. GIFFIN:So 524 died? VITOUSEK:Apparently. I just learned of its existence yesterday, so I'm -. GIFFIN:Yeah. VITOUSEK:I'm trying to swing it from the floor on that, also. GIFFIN:Ms. McDonald. MCDONALD:So what did you want to do in that event? 38 GIFFIN:Excuse me? MCDONALD:About 524. GIFFIN:What about it? MCDONALD:Yeah, did you have anything else to say? GIFFIN:My question regarding that bill, no. MCDONALD:Okay. GIFFIN:Hang on one minute. Commissioner Springer. SPRINGER:Madam Chair, the testifier offered a copy of the docume been referring to. May we receive it, and could that be copied for us? GIFFIN:Certainly. You should know though that 524 has died. MCDONALD:I'm sorry, this is -, I was reading the status for HB 1 GIFFIN:Yeah. MCDONALD:Yeah, which is the same bill. GIFFIN:Thank you very much. MCDONALD:You're welcome. GIFFIN:But yes, if you would give a copy of that to -. MCDONALD:Sure. GIFFIN:Our Staff. MCDONALD:Sure. GIFFIN:Then we'll receive it on the record. ISHADO:Madam Chair. GIFFIN:Mr. Ishado. ISHADO:I'd just like to state for the record that the status of any sale negotiations, or sales, or plans to purchase the property is not really relevant to the issue before this Hearings panel. And basically what it comes down to is the panel and the 39 decision based on what the law is, you know. I don't know what the current status of that particular bill is. But there was a question by Commissioner Springer as to whether it could be received in evidence. And, you know, I'd like to state my objections to this line of questioning as not being relevant to the law on which this panel has to make its decision. I mean, if you look at the 205A-26, it does not state anything about sales as a factor in whether to grant an SMA or not. GIFFIN:Mr. Ishado, I think your comments are well taken. But in regards to Commissioner Springer's request for it to be received, I am going to go ahead and accept it. Mr. Vitousek. VITOUSEK:Yeah, I just, I don't want to waive our counter arguments to Mr. Ishado's position. I think that this issue will come up. And I don't know that this is the appropriate time for it to come up, but I -. GIFFIN:I -. VITOUSEK:But we'd -, but I'd just like -, just want to say that, you know, faced with the prospect of the Mayor of the County -. GIFFIN:Yeah. VITOUSEK:Testifying about his efforts to acquire the property -. GIFFIN:Right. Right. VITOUSEK:There's some relevance here. I don't want to hear an agency of the County saying it's irrelevant when the Mayor is going to testify about it. GIFFIN:Mr. Vitousek, thank you very much. I've already made my decision. Thank you. And thank you, Ms. McDonald. Kahala Gibson. GIBSON:Hello, can you hear me? GIFFIN:Yes, we can. Could you please give us your name and your resident address. GIBSON:Right. My name is -. GIFFIN:Thank you. GIBSON:Kahala-Ann Trask Gibson, and I live at -, I can see right here, it's wrong, it's 77-6386 Ali`i Drive, Kailua-Kona. And just to give you an idea of where you are, you are at like the five and a half mile marker; and my residence is at the three and a half mile marker -. GIFFIN:Okay. 40 GIBSON:About. So when you go down, you'll see three and a half, and after that I'll be on the right, the makai side. Then there's this development, `Alohikai, next door. I know there's, I think there's 13 lots that have sold in there; and only one home is there. And it's a two- story structure, and then Keolonhihi is next to it, so if you want to get an idea of what a two- story structure looks like next to a heiau. And of course, I don't know what they dumpe there, I think it was the rock from WalMart, I'm not sure, but they raised the entire area up. So you know it's significant to realize that sometimes when they are given building permits, other things happen. But Pua Kanahele had been very, very concerned when she testified on that area that the height was an invasion into the sacred lands that were there. Okay, so after you pass that, when you get to the three and a half mile marker, you're going to start, it's all going to be forest and jungle or whatever. There's nothing there, no structure there. And then as soon as you come around the rock wall area is where the driveway for the subject property is. GIFFIN:Okay. Thank you. GIBSON:And on the left is the Lyman Surf Beach. GIFFIN:Okay. GIBSON:So the -. I know that you have already in your possession the statement from the Police Department that this is a very serious traffic accident burden, if there's a 13-unit residence there. So when you drive, think about that. Look where you are and see how you come around the corner like that. And the congestion of this area will never change, from ancient times to now, because it's the surf, the surf. Everybody goes surfing with their surfboards. The subject property being directly across from Lyman Surf Beach, at high surf, there are at least 30 to 50 cars choking Ali`i Drive at this exact location, especially since a very small parking lot has recently been installed. I mean I don't know what the County can do. When they don't have parking, people park on the road. When the more cars. It's just a fact of reality, you know. This means that people will be crossing the street, as they do now, carrying their boards, watching the surf, and not paying attention to the traffic. Surfers stand in the street talking and not paying attention. And this 13-unit structure is surely, you know, a surf party beach proposal. Right now, the three structures in there all house surfers. It will impact the beach similar to Maui's Ho`okipu Surf Beach where the international championships are held; and that is only a beach park without any hotel or residences in sight. Now I observed, I read the documents that were presented, almost of all of them, you know; it was a lot. But my understanding is that the Applicant states in there at peak traffic he counted th 10 cars. Okay. On March 17, St. Patrick's Day, I sat in my vehicle and counted 170 cars in 10 minutes, starting at 3:50 p.m. I want you to know that this is not the peak traffic time, but it's, you know, starting from about 2:30 on when the children get out of school. There was no school; we are in break. So the school down around the corner doesn't have all the parents coming to pick up their kids. It was also a full moon, meaning that there wasn't any surf. So I'm just talking about traffic. I'm not talking about all the cars that can park there and anything that 41 happens when you have a surf. And then I went and stopped off at the Pupu Pantry; and the man said ÐIt's crazy on weekends. If you think this is something, you should see it on weekends.Ñ Now I've lived at that location approximately 10 years. And Harry Kim, way back 10 years ago when we had the tidal wave, and `Iniki, and all those things, those warnings, had said that there was 10,000 residents in the area; and if they had to get the people out of Ali`i Drive, there was no way they could make an emergency call to evacuate the area. And it has to have at least 20,000 people now living in that area on Ali`i Drive. Furthermore, this is a flood area. And during storms on Ali`i Drive, there's high surf because it's a storm and it pushes the water from the ocean up, and then the water is coming down from the mountain, and you have serious flooding. Sometimes you can't ev have to just stay there and kind of like put up with what's going on outside. So it will seriously impact Ali`i Drive. And we have all the subdivisions behind, up La`aloa, you know, which is the beach that is, used to be called, I guess it still is Disappearing Sands Beach, you know. It's really La`aloa, which is the long light of heaven. Because, as a matter of fact, the sand went from where you are here clear all the way down to the King Kam. But started building structures on the beach, they rerouted all the sand, which disappears, goes away, and it comes back. So once it disappeared, it didn't come back Jameson. That whole apartment house stopped the sand. Anyway, I wanted to ask, because I read the documentation and I' question is is the Planning Department of the County in bad faith? The County has stated that the area is Urban, which is clearly a mistake. It was proposed conservation because of the Keolonhihi State Historical Park and the Keakealaniwahine complex. And the State Legislature has promulgated several statutes and mandated directly to the State and County governments that the Native Hawaiian culture and traditions should be respected. These were cited earlier, and Maile David has all of those in her papers. The County should do more in an aggressive manner and attitude, through its own power, to take the initiative in helping the Applicant, such as Mr. Blasman, understand that his expectation of speculated development is not permitted. The argument that there is already no view, and that plants can hide a 36-foot structure planted 30 feet above the sea level in an area five feet from the back boundary is absurd and that the invasion of privacy, noise from a swimming pool, garages, and off street parking for 13 family units on approximately 1.2 acres is a desecration of sacred land. Everything promulgated and established should be a clear and cooperative mandate from the County that it will protect and encourage the preservation of our culture and heritage, which now belongs to everyone. thth I thoroughly support Exhibits E and F dated July 5 and July 9 from the DLNR to Mr. Yuen. And a simple examination as we can see from the maps there in yo complex and the subject property is part of this historical complex. In other words, if you just look at a map, you see how this thing juts into the sacred land there; you can see that it was a part of it. It was probably the debris when the County constructed, when they made, they cut Ali`i Drive that is on the surface of this property. The Keolonhihi, across the street, studies reveal dumping by the County when it made the road. This is in Kanahele's report of 1993, Pua Kanahele's report, which is in your possession. That's across the street. The State has not provided the funds yet, but the eight heiau listed on the National and Hawaiian Registers of 42 Historical Places and the extensive studies prove that this area should already be preserved, zoned Conservation, and absolutely no structure should be built on the subject property. I'm not really sure of the closing, the facts because they were not said to me directly. And out of respect for, I think, the statements about the contract negotiations which I didn't see and I didn't hear and I didn't take part in, it's only my assumption. So I'm not going to state it public here, but it's in my testimony. But I think it is clear that when you look at the structure, you can tell that it's a speculation for a developer. And I'm not saying that with a dirty mouth. I'm saying that all you have to do is look at this on a 1.2 acre piece of property and a three-story structure on land that's already 30 feet above the ocean, itÓll look right into the whole complex. So thank you very much. SPRINGER:Thank you. GIFFIN:Officers, any questions of the testifier? SPRINGER:No, thank you. GIBSON:Thank you. GIFFIN:The last person who signed up is Janice Palma-Glennie, and when you come up, I do need to swear you in because I think you were not in the room when we swore everybody else in. Thank you. Could you please raise your right hand. Do you swear or affirm to tell the truth before the Hawai`i County Planning Commission? PALMA-GLENNIE:I do. GIFFIN:Thank you. Your name and resident address, please. PALMA-GLENNIE:My name is Janice Palma-Glennie, and my address is P.O. Box 4849, Kailua-Kona. And I appreciate the opportunity to provide my views on this issue. As development wracks our Islands, the protection of what remains as a cultural heritage of Hawai`i's indigenous people becomes more and more crucial. In your position as Hearings Officers in this important case, you have the opportunity to ensure that one of the most significant sites on this Island, though fragmented and in some ways torn apart, has the opportunity to be restored and reconnected as it was in the past. Integration of the physical site will, at the same time, provide the opportunity to protect and perpetuate the cultural richness of these Islands in a way that goes much deeper than the physical. At a time when so many people, especially our youth, are losing their way in a complex society, the value of so rich a cultural site is beyond measure and can only be known by allowing it to flourish in its entirety as it did long ago. By denying the Special Management Area permit for the developmen opportunity to prevent irreparable damage to the Keakealaniwahine and Keolonhihi complex and provide for its cultural integrity to be restored. Thanks very much. 43 GIFFIN:Thank you. Commissioners, I'm sorry, Officers, any questions? Thank you very much. Is there anyone else who came here this morning this agenda item? Ma -. DAVID:Maile. GIFFIN:Maile. DAVID:Yes, before you close the public testimony period, Karen Eoff has those testimonies that she wants to read into the record. GIFFIN:Sure. DAVID:Mahalo. GIFFIN:Could you just give us the order that you're going to do it in. EOFF:Okay. GIFFIN:So we can kind of get organized. EOFF:I have Duane Erway. GIFFIN:Hang on. Okay. EOFF:And then William Wallace III. GIFFIN:Yeah. EOFF:Kealoha Kaliko. GIFFIN:Hang on. EOFF:Rosemary Alles and Tricia Carroll. And thatÓs all. GIFFIN:Thank you. EOFF:Thank you. Most of them are pretty short. GIFFIN:Yeah. EOFF:So I'll just read. 44 "Aloha, Hearings Officers. Plan To Protect totally supports the Native Hawaiians who have filed contested cases. They are, more than any of us, conscious of the sacred nature of this site and its importance in their history and culture. "The applicants' SMA application ultimately needs to be rejected. "Your decision will protect the Keakealaniwahine complex and force the developer to seriously consider a land swap or a buyout that does not inflate the price over what the owner originally paid. Sincerely, Duane Erway, President, Plan To Protect Kona." This is from William Wallace III. "Aloha Kakou: ÐMy name is William Wallace III. I am the Director of the Jonathan Napela Center for Hawaiian Language and Cultural Studies at Brigham Young University-Hawai`i. I currently live on the Island of O`ahu, in the Moku of Ko`olauloa and the Ahupua`a of La`ie Wai. My residential address is 55-128 Naupaka Street, La`ie, and my telephone number is 293-3834. "I too, like many Kanaka Maoli, have ancestral ties to the area in dispute. My great- grandmother, Mary Napua Ka`ahu Haili Kekoa was born in Np`opo`o and many of my relatives still live in and around the North and South Kona parts of the Big Island of Hawai`i. "I am not able to appear in person at the hearing of this petition, but I respectfully ask that these written comments be accepted as my written testimony against the "The Kona area has experienced much growth and building over the last 10 years or more and many of these expansions have infringed upon areas which have historically been significant cultural sites for our people. "I support the argument that the historic Keakealaniwahine and the Keolonhihi Complex in North Kona are sacred Hawaiian sites which must be protected from the negative impacts of this and any other proposed condominium development. I believe that this Commission must look at the combined functions of the entire area and deny the SMA petition. This petition violates the cultural integrity of these sites and due diligence must be taken to protect the already diminishing Hawaiian historic sites from falling into further obscurity and non-existence. "These two sites are critical to each other and future planning must take that into account. The current pattern of development in the area has put both sites at risk. "As such, I respectfully ask that this Commission deny the SMA permit and I further urge that the State and County of Hawai`i make plans to acquire this parcel and that plans be made for its inclusion into the existing Historic State Park. Mahalo nui loa "Aloha paha `oukou. ÐThis testimony asks that you uphold your responsibilities as planning officers not only to protect, but to restore the integrity of Hawaiian historical sites, not only at Keakealaniwahine and 45 Keolonhihi, but for all sites. That means that you should instead purchase this parcel for inclusion in the Park. By issuing SMA permits, you legalize the destruction of Hawaiian history. "Why is preserving history so important? It gives us a window into our past. It gives us a sense of identity and purpose. Why did our ancestors live the way they lived? They lived so that we may be here today. All land in Hawai`i is precious to Hawaiians. It is our window to our past so that we may create a vision for our future. "Doesn't land mean anything more to you than a commodity? Is it because you have no true connection to the land that you don't care? Would you allow the destruction of your churches, temples, and institutions of the like? Even if no one is living at Keakealaniwahine/Keolonhihi, the land itself is a living and breathing entity, a waihona for our history. "Deny the issue of SMA permits. ÐMe ka ha`aha`a, Kealoha Kaliko." "I, Rosemary Alles strongly urge the following: ÐI support protection of this historic site. ÐI recommend denial of SMA permit. ÐI urge the State and County to acquire the parcel for inclusion in the Park. ÐSincerely, Rosemary Alles." And this is the last one. "As a member of the community and a tax payer of this State, I oppose the construction of condominiums at the Keakealaniwahine complex. Please support the protection of this and other historic sites. I recommend the denial of SMA permit. I urge the State and County to acquire this parcel for inclusion in the state parks. ÐMahalo, Tricia Carroll." Thank you. GIFFIN:Thank you. Once again, is there anyone who has come today to give public testimony on this agenda item? Thank you. Then I am going to close public testimony at this time and I'm going to refer back to the schedule that we agreed to earlier, and that is, I have just before 11:30, and I strongly suggest that we keep to our schedule, and that is to go ahead now to the site visit. We'll come back and members of the hearing body will then have lunch, and we're having our lunch brought in so that we can have a working lunch. But we will close the room so that we can go ahead and review the material that was delivered to us. Okay. Any other questions? Mr. Torigoe, did I forget anything? Parties? TORIGOE:No. DAVID:No. 46 ROY:No. ISHADO:No. GIFFIN:Okay. Then we will recess to go to the site visit. RECESSEDThe Presiding Officer called a recess to visit the site at 11:29 a.m. A site visit was held at 11:49 a.m. and concluded at 12:38 a.m. RECONVENEDThe meeting reconvened at 12:52 a.m. GIFFIN:I'd like to call the meeting of the Hawai`i County Planning Commission back to order. We have just returned from our site visit. This is Agenda Item 02-03, an application for a Special Management Area Use Permit for Wayne Blasman to allow the development of a 13-unit condominium project and related improve I have just going on one o'clock this afternoon. Our lunch is being picked up and the officers will be reading the information that the Staff got to us, that is the Applicant's submission of written testimony of witnesses; and we will be having lunch in here. So what I would like to do is recess for lunch until 2:00. All right? Mr. Vitousek. VITOUSEK:Yeah, if I may, I understand that the Hearings Officers have been provided with the written testimony. And I just want to be clear that, you know, what the Applicant intends is to submit the written testimony in lieu of direct testimony. GIFFIN:I see. VITOUSEK:In other words, this will be the testimony, our direct testimony of our witnesses. And so our plan will be to make the witnesses available for cross-examination or for questions by the Commission, but this is their testimony. In other words, this -, you know, so we're offering their testimony in writing -. GIFFIN:Okay. VITOUSEK:And, because we understand that's the intent of, you kn testimony when you submit it in advance. GIFFIN:Right. VITOUSEK:So I'm not going to be calling, for example, you know, the Applicant and have him walk through what's in -. GIFFIN:Okay. Thank you very much. VITOUSEK:The written testimony. 47 GIFFIN:We appreciate that. Okay. Mr. Togashi, any questions? TOGASHI:No. GIFFIN:Hannah? SPRINGER:No, thank you. GIFFIN:Okay. Thank you. Mr. Vitousek. VITOUSEK:Could I also say for the record that I'd like the record to note that Glenn Taguchi and Martha Yent have appeared pursuant to their subpoenas and, so they are present. And I just, you know, think that that's appropriate to note that for the record, that they have complied and that they have brought documents. I will say for the record that I'm, you know, we'll excuse Mr. Taguchi from the subpoena and not ask him to testify, although I understand he may have to stay around anyway. GIFFIN:Oh, okay. VITOUSEK:But I just, I think it's appropriate for the record to note that they appeared. GIFFIN:Thank you. All right. Until 2 oÓclock then. RECESSEDThe Presiding Officer called a lunch recess at 12:54 p.m RECONVENEDThe meeting reconvened at 2:00 p.m. GIFFIN:I'd like to call the meeting of the Hawai`i County Planning Commission back to order. This is a contested case. The Applicant is Wayne Blasman. The SMA number is 02-03. This is, as I said, an application for a Special Management Area Use Permit to allow the development of a 13-unit condominium project and related imp As per our agreement, the next item on our order will be the opening statements of all of the parties. And, Randy, we'll begin with you, and then we'll follo David's, and then Mikahala, and then we'll go on to the County. Correct? TORIGOE:Yes. GIFFIN:Thank you. Randy. VITOUSEK:Yeah, I'll try to be very brief. This is an application for a Special Management Area Use Permit by Mr. Wayne Blasman in seeking to de project of 13 units on a 1.24-acre parcel located just mauka of Ali`i Drive. We just came from there. The property is in the State Land Use Urban District. It's zoned for Multi-Family use. 48 There would be, there had previously -. I'm sorry. You could build, I believe, it's up to 36 units on the property under existing zoning. And it's slated for Urban expansion under the County General Plan. This is a property which has, which is fully developed. In other words, here's, this is a property which during the 1940s I believe it was owned by Julian Silva. He leased it to a group called ASA, a group out of Honolulu, who built, who came in and bulldozed the entire property and built what they called the Snug Harbor Motel. You know, some of us who were, you know, around in those days, I remember because that's the only place I ever saw the word motel before I went to the mainland. The others, all the other visitor accommodations in Hawai`i were hotels. That was the only place I can remember seeing motel. But at any rate, that was, that property was operated as the Snug Harbor Motel for a number of years until that ASA group, you know, was not able to agree and keep going forwar In 1980, there was an application for a SMA Use Permit to build another condominium project on the subject property. That application was for, I believe it was 30-some units. I'll have to check, but it was SMA Permit 137, which was approved by the Hawai`i County Planning Commission. There was also a PUD permit issued to develop that condominium project. That project was not able to go forward because they just didn't commence construction within the time specified in the permit; and in 1983 the permits were deeme Since that time, the property has been operated and essentially been functioning as a rental property. There are, I guess, up until today, we thought there were four units on the property. Mr. Blasman learned today that sometime over the last month another unit has been built. That was the one that's on a concrete pad and had the unpainted -. But at any rate, up until today, we understood there were nine families living on the property. Apparently there's 10 now. But at any rate, the point with respect to that is this is a property which has been in multi-family residential use since the 1940s, essentially. That has some legal significance as well as some practical signi must be considered fully developed for terms of applying PASH rights or Ka Pa`akai rights. There's a Hawai`i Supreme Court case called State versus Hanape, which interpreted the constitutionally protected cultural and traditional rights of Native Hawaiians, which said specifically we interpret PASH to say that when a property is fully developed, i.e. zoned for residential use and actually in residential use, then it is always inconsistent to permit the exerci of Native Hawaiian customary and traditional rights on the property. I'm not making an argument here. What I'm saying is that the legal standards we are applying here include the State versus Hanape case, which says that, this is the Supreme Court saying that, when a property is in residential, which was zoned for residential use and in residential use, that it is inconsistent to permit the exercise of Native Hawaiian customary and traditional rights. So that doesn't mean that these issues can't be considered, because they must be. But they must be considered in the context of SMA criteria. In other words, instead of looking to the whole panoply of Native Hawaiian customary and traditional rights under 1-1 and 7-1 and Constitution and PASH and Ka Pa`akai, we look at what criteria the Chapter 205A and Rule 9 of the Planning Commission Rules require us to use in assessing an SMA application. And those are pretty straight forward Section 205A-2(b)(2) in the objectives for the SMA asks that, and one of the objectives is to protect and preserve and where desirable restore natural and manmade historic and pre-historic 49 resources in the coastal zone that are significant to Hawaiian and American history and culture. So that's one of the standards to be applied. Under policies, there's 205A-2(c)(2), which says that it is the policy to identify and analyze significant archaeological resources; and (b) to maximize information retention through preservation of remains and artifacts or salvage operations; and (c) to support State goals for protection, restoration, interpretation and display of historic resources. Okay. The 205A-4 says that in implementing the objectives of the Coastal Zone Management Program, the agencies, that's the Planning Commission, shall give full consideration to ecological, cultural, historical, aesthetic, recreational, scenic, and open space values, as well as coastal hazards. So that's another standard that we're applying today. Then finally under the Planning Director's assessment under Rule 9-10(h) of the Planning Commission Rules, the Director has been asked to make a determination in terms of significance of potential impacts. This is usually the application stage. And the rule admonishes the Director to bear in mind that all of the following factors may be, may co effects. And one being, involves an irrevocable commitment to loss or destruction of any natural or cultural resource, including but not limited to historic sites and viewplanes outlined in the General Plan or other accepted plan. So what I want to do, you know, in terms of the Applicant's presentation, is really to focus, you know, to the extent that we're talking about cultural and historical values, to focus that analysis on the specific issues that are required to be dealt with by the Commission under the governing statutes; and I think that I've tried to set those out. Basically, where we stand is the application -. This is not a pristine environment. Clearly, the Keolonhihi area, the Keakealaniwahine area or however defined, the area surrounding the subject property, is of tremendous cultural and historical significance. I mean there's no disputing that. There's no effort to dispute that. The issue is, however, that there are developed properties within that same general area; and unless those developed properties are somehow acquired and removed, they are the existing conditions under which the application must be considered. And those existing properties do affect viewplanes, they do affect the integrity of the site. And it would be, and it's, you know, just improper and not fair to assume that they somehow don't exist or aren't there or that somehow they're going to be removed at some point, at some unknown point So it's the Applicant's position that when viewed against the actual conditions on the ground, and when viewed against the criteria under Chapter 205A and Rule 9, that this application does, in fact, meet the conditions for issuance of a Special Management A application has been clouded by the fact that there have been several references from the very beginning of the application to the StateÓs and the County's interest in acquiring this property. I mean many people have said a better use of this property would be for the State or the County to acquire it, to maintain the integrity, or to restore the integri visitors center, or to use it as a parking lot or other possible uses. And that, you know, that's very problematic because there, you know, unless and until someone ma property, or unless and until some government entity exercises the power of eminent domain to acquire the property, it is private property. And the owner of the property has legitimate, you 50 know, real property interests and legitimate property rights that they're seeking to exercise. And we submit that it is, you know, it is unfortunate if part of the issue involved here is a concern that if the owner gets a permit he may be entitled to, the value of t public entity may have to pay more to acquire it. Because that underlies a lot of this. There have been negotiations between the owner and The Trust for Public Lands; and they were talking about trying to set an option price that was essentially a floor price. In other words, they would agree that he would sell the property but for no less than a specified sum. And so it got to the point where Mr. Blasman offered to sell the property through the, you know, or to enter an option agreement where the floor price was $1.15 million net to him. And The Trust for Public Lands got a consultant involved and their consultant came back with a report. It was not an appraisal, you know, I'm not trying to represent that it's an appraisal. But what it said was if we looked at developing this property, the step one assessment would be what this property would be worth based on a development model if the developer could start construction within six months. And they came up with a value that was between $1.17 million and, I'm sorry, $1.19 and $1.27 million. In other words, this is where Mr. Blasman said he'll use a $1.15 million floor. And so the value that they got, if he could start construction in six months, was higher than what he was willing to sell the property for. But then they did a step 2 valuation which says we have to discount the value of this property solely because it's in a contested case hearing. In other words, they said because there's a contested case hearing, that means the developer won't be able to develop the property for between one year and four years and, therefore, we reduce the value of the property, the present value of the property to somewhere between $1.68, I'm sorry, between $680,000 and $1.1 million. Therefore, The Trust for Public Lands gets back to Mr. Blasman and says, oh, no, your property isn't worth, you know, what you think it is, therefore, we're not going to enter an agreement with you. And the only reason they say it isn't worth it is because we're in a contested case. And so the difficulty we have is the fact of the contested case reduces the value of the property and prevents us from being able to make an agreement to sell the property to The Trust for Public Lands. And so all Mr. Blasman can do in this context is go forward with the contested case hearing and try to establish his property rights so that, you know, in the event there is a condemnation or a further negotiation, the value will be, the value will be fair. And so every time we have a witness testify from the State of Hawai`i or, I donÓt know, we'll see about the County, I just learned about the subpoena to the Mayor the day before yesterday. But the State starts out by saying, well, you know, we think you have to do this and that. They first say, first we should get this property; we should acquire this property. And then they say you have to have this mitigation measure and that mitigation measure, and you have to do this and such; and the problem is that all those things they are suggesting reduces the value of the property. And so they say, well, we want to buy this, you know, but we don't have the money right now; but we insist that you do the following things which will reduce the value of the property so that we might be able to buy it at some point in the future. And that's really problematic, you know. That's one of the problems with being in a regulatory process at the same, with the agencies, with the governments that are interested in buying your property. And so that's an issue that we're going to have to deal with in the contested case, to some extent. 51 The main issues remain does this application meet the criteria f written testimony. We're trying to move this hearing along as quickly as possible so it's -, I mean just to save time and to avoid taking a lot of extra time and testimony. So what our plan is for the balance of the hearing is to offer the public testimony into the record, I'm sorry, offer the, our witness testimony into the record and then to make those witnesses available for questions by the Commission and for cross-examination. We do not intend to repeat the written testimony orally. And so, at this point, you know, we conclude our opening statement and move the written testimony into the record. GIFFIN:Mr. Torigoe has directed me to ask if there is any objection to moving the testimony into the record. Mikahala? ROY:No objection. GIFFIN:Lester? ISHADO:Excuse me for one second. Yeah, if I could state the following objection. GIFFIN:None? ISHADO:And -. GIFFIN:Oh, you do? ISHADO:I do have an objection. GIFFIN:Okay. ISHADO:As far as the written statement is concerned, you know, and I am glad to see to see an effort being made to move this hearing along. I am troubled by the fact that included in that record is, are references to money being offered by The Public Trust, certain things not happening in the negotiations with The Public Trust. And, basically, what it comes down to is these are not relevant, and we'd like to have a continuing objection to any references. You know, if I could, for instance, refer to the, for example, you know, there's a reference to sale documents from The Public Trust, and this is Applicant's Exhibit No. 15. You know, first of all, I do agree that the Commission, the Hearings Officers, have to make a decision based on the law. The fact that, you know, these negotiations with The Public Trust did or did not occur is irrelevant. We do not see it as a factor or guideline under Chapter 205A. You know, that's the first objection to that. I also note, for the record, that there is a faxed letter from I believe it was Teresa McHugh, who is with The Public Trust, in which she states her objections to use of that document. You know, I would ask you to look at that document and see that it says that this is a preliminary document, it's not an appraisal, it's not intended to be used as an appraisal. It's for internal corporate purposes only, strictly for internal planning. And if you take a look at the document, you can see that basically, you know, I can see an argument being made that, oh, no, we have this valuation here and therefore, but, 52 you know, we have a second valuation, which we have not seen, but we have a second valuation which says we're discounting your price, your, the amount we were willing to pay because of this contested case proceeding. It may be a perception on the Applicant's part. But that perception, first of all, I believe is not accurate. If you take a look at it, what it comes down to is if there is any negotiation on the sale of this property and the parties can agree, fine. If the parties cannot agree, what it'll come down to is if a government entity is involved, they can go to court and begin condemnation proceedings. There's nothing there that says, oh, yes, the court has to accep position from The Public Trust as the reduction in price. I am sure if you ask the Applicant, they will say, you know, The Public Trust is wrong in that case. So, you know, irrelevant, there is an objection from The Public Trust. If you take a look at the language of the document, you will see that it's intended as a preliminary document, it's not intended as an indication of the value of the property. And we believe that the value of sale negotiations are not relevant to this proceeding. It's not relevant as to whether -. You know, we believe that the Commission, the Hearings Officers have to make a decision, but this is not part of those guidelines. So to the extent, Madam Chairman, Chair, Chairperson, to the extent that the statements contained references to negotiations, sale negotiations, whatever, we voice a continued exception to that reference; and for the rest of it, we don't object to the rest of the documents. GIFFIN:Randy, you were going -? VITOUSEK:Yeah. GIFFIN:To say something? VITOUSEK:Yeah, I was just going to respond to the objection, if that's okay. GIFFIN:Maybe not so much to his objection, but what I would like you to explain is the relevance, which is I think what he is talking about. VITOUSEK:Sure. GIFFIN:Right? VITOUSEK:Yeah. But I noticed his objection was he objected to any reference to acquiring the property and what not; and I just wanted to point out that the County's Exhibit F, you know, contains references to acquiring the property. The County's Exhibit I, you know, sorry -. The County's Exhibit F contains references to the State acquiring the property. The County's Exhibit E contains references to the State's acquiring the property. Every public witness who testified this morning, you know, seemed to think that the issue was very relevant. And I think the issue is relevant. I think, you know, I mean, you know, we've got summary witness testimony from one of the Intervenors saying that the Mayor is going to testify about efforts to acquire the property. We've got Teresa McHugh's letter -. GIFFIN:Yeah. 53 VITOUSEK:Objecting this morning where she said that she had met with the Department of Land and Natural Resources to -. She's saying, well, it's interesting. First thing she says is the negotiations are confidential and I'm wrong for offering evidence of them. The next thing she does is detail, tell us all about the negotiations. GIFFIN:Yeah. VITOUSEK:So, and she says that TPO was meeting with the staff of the Department of Land and Natural Resources to determine how we could work together in a conservation, purchase the land. Now Mr. Blasman wasn't included in that discussion so -. And then also it says TPO wanted to engage in a purchase to meet Mr. Blasman's needs as well as protecting the property as desired by the community, the Hawai`i County government, and the DLNR. So, you know, there's a lot of testimony in here already offered by other parties about acquisition of the property; and all I'm trying to do is make sure it's accurate. You know, I'm trying to make sure that we have real information in terms of what was actually offered and why it hasn't proceeded. So I mean it -. GIFFIN:Okay. VITOUSEK:Plus, this is, you know, this is an administrative hearing. GIFFIN:Yeah. VITOUSEK:And the scope of relevancy is up to the Commission. GIFFIN:Okay. Mr. Vitousek, thank you very much, and thank you for answering my question. And with that in mind, I am going to accept your written testimony into the record and move on. VITOUSEK:Okay. DAVID:Madam Chair? GIFFIN:Maile. DAVID:Yes. Thank you. Before we move on, I'd like to make just Mr. Ishado's reference to negotiations for acquisition as being relevant, I think I understand, or understood what he was saying as being -. Trust for Public LandsÓ assessment value of Mr. Blasman's value is what he's objecting to. And I don't believe that I would have any objections as to mentioning or bringing up efforts for acquisition. But I think what I can hear and what I concur with would probably be the fact that they're using The Trust for Public LandsÓ assessment value in evidence. So I just wanted to note that for the record. GIFFIN:Okay. I'm waiting, Maile, for your opening statement. 54 DAVID:I'm sorry. Does everyone have a chance to comment to or object to things that Mr. Vitousek is entering into the evidence, or you've already -? GIFFIN:I've already accepted it. And you may present arguments through with this phase. DAVID:I understand. GIFFIN:Okay. DAVID:I understand. I didn't realize you were waiting for my opening statement. I thought you were taking comments yet. ROY:May I ask a question? GIFFIN:Yes. ROY:Thank you. Just asking, when would be the cross-examination party? GIFFIN:When everyone is through with their opening statements? ROY:Thank you. DAVID:Aloha, my name is Maile David, and I am a lineal descendent of Keakealaniwahine. My genealogy is as follows: Keakamahana (w) noho ia Iwikauikaua, hanau ia o Keakealaniwahine, Keakealaniwahine noho ia Kaneikauaiwilani, hanau ia o Kalanikauleleiaiwi (w), Kalanikauleleiaiwi noho ia Lonoikaha`upu, hanau ia o Keawepoepoe (k), Keawepoepoe noho ia Kanoena, hanau ia twins, o Kame`eiamoku (k), Kame`eiamoku noho ia Kamakaeneikuli, hanau ia o Kepo`okalani (k), Kepo`okalani noho ia Keohohiwa, hanau ia o Aikanaka (k), Aikanaka noho ia Aukai, hanau ia o Kekoa (k), Kekoa noho ia Kailaa, hanau ia o Keaiai (k), Keaiai noho ia Apiipii, hanau ia o Kalua (w), Kalua noho ia Kalani Kaalele, hanau ia o William Kalani Kaalele, William Kalani Kaalele noho ia Waikulani Kewahe, hanau ia o Annie Kalani Kaalele -, Kaalele Kalani, I'm sorry, Annie Kaalele Kalani noho ia John Medeiros, hanau ia o makuakane Edward Medeiros, Edward Medeiros noho ia makuahine Christine Abril, hanau ia o Maile Medeiros, Maile Medeiros noho ia Russel L. David II, hanau ia o Shelly-Ann Leinani David, o Michael Kealoha David, Shelly-Ann Leinani David noho ia John Tavares, hanau ia mo`opuna o Kehaunani Christine Tavares. She is the th 15generation of Keakealaniwahine. Mahalo. My -, I would like to continue with my statement. My appearance in this case is compelled by a sense of responsibility to my ancestors, past, present and to come, to do everything I can to protect the cultural integrity of Keakealaniwahine Complex. Past historical injustices inflicted upon Native Hawaiians have alienated, disenfranchised and separated us from our history and practices. Among the injustices are land use decisions that have compromised the integrity of 55 sacred historic sites and, in most instances, completely erased connections to our culture that is critical to our social well being. I have personally involved myself to see that land use processes in Hawai`i do not further erode our cultural sites and deteriorate cultural practices. Over the past 20 years, although protected by law, Native Hawaiians like myself have consistently been required to come forward in land use processes such as this to protect historic sites and inherent rights. Unlike in any other state, certain rights reserved to Native Hawaiians are attached to real property in Hawai`i. Hawai`i Supreme Court cases PASH and Pilago v. Hawai`i County Planning Commission and Ka Pa`akai O Ka `Aina reaffirmed these rights and resulted in a law requiring preparation of cultural impact statements. These two landmark cases began in agency hearings such as this, in which myself, Ms. Eoff and others have vigorously pursued and succeeded. In both of these Supreme Court cases, there were compelling facts and issues which could only be resolved at the highest level of adjudication. Equally compelling facts and issues exist here. The courts have confirmed the need to mitigate and correct past wrongs. This case fulfills the the, criteria of law that compels protection of one of, if not most historic sacred site in Hawaiian cultural history. More importantly, inherent rights connected to this ritual complex of Keakealaniwahine and Keolonhihi are critical to the survival of our culture and future generations of our people. Historical wrongs and injustices should not be allowed to continue. The highest court in the State has ruled and there now exists an opportunity to be accountable and make some corrections here. This is a perfect opportunity for our County and State government to work together and acquire Mr. Blasman's property and make everyone Ðwhole.Ñ In closing, just because wrong decisions have been made in the past that totally destroyed archaeological remains upon this property and allowed inappropriate encroachments upon the cultural integrity of Keakealaniwahine and Keolonhihi chiefly complex, it does not justify any further encroachment. Do we continue this behavior and allow further deterioration or do we say enough and no more? This historic site demands that our State and County agencies do the only just and moral thing, and say, Ðenough and no more.Ñ Mahalo. GIFFIN:Maile. Oh, I'm sorry, Mikahala. The M's. ROY:Aloha mai kakou. GIFFIN:Aloha. ROY:My name is Mikahala Roy, Executive Director of Klana Huli Honua. My father, David Roy, is President of Klana Huli Honua. 56 In the documentation of one, William Ellis, "Polynesian Research Papa I`i, "Fragments of Hawaiian History," and records of the State Parks Division of the Department of Land and Natural Resources, it is established that the historical significance of Kaluaokalani is an ancient residential site and the habitation of ruling ali`i from ancient time, as far back as known to Lloa. Included therein is the land of Kalaiokamoa, the promontory of the young warriors, which is comprised of a complex of heiau in whathihi State Historical Park. This complex also includes the pu`uhonua of KaneikaheÒilani. The proposed development by Mr. Blasman and associates constitutes a visual and cultural intrusion into the integrity of this habitation and is for that reason totally acceptable. The majority of our board members are lineal descendents of Kona and my family, through our ancestor Kekauluohi, are lineal descendents of this property. We speak therefore from the heart of those who participate on our board and members from the Kona community. We serve in a capacity to represent those of our community who care and are concerned for the wellbeing of the identity of Hawaiian people. We say that this site is a paramount location for the safekeeping of same. Thank you. GIFFIN:Lester. ISHADO:Yes, good afternoon. Thank you very much. For our opening statement, I believe it is very important for me to note that the Planning Director, and we expect that this panel and the Commission will, rely upon what the law is, in making its decision, in making any recommendations, in making any decisions. Basically, we have a situation where we have significant historical cultural resources; and I don't believe that there is anyone who disputes that. And what a dispute really results upon is how does this apply to this particular property? Then we have some variations in the testimony of the people who did the studies for the Applicant and Department of Parks, or Division of Parks for the Department of Land and Natural Resources. We're looking at adverse effects that the site may have. And I believe there is some difference in the approach taken by various people. There is an approach taken by the Applicant where they are looking at the particular site and they're saying, well, there's nothing on the surface which indicates anything of cultural and historical value. You know, I do think that weÓd liked the ApplicantÓs experts to respond to what the Department of Land and Natural Resources is saying, you know. And if you can't find anything on the surface, what about subsurface? They have a lot of plants. And weÓre looking at the intrusion upon the view, the viewplanes on this particular site, the location of the buildings, the effect this will have on people on the neighboring sites, noise factors, whether, you know, excavation or test studies is or should be required by this Commission. And these are factors which we now believe that the Applicant has to address to the satisfaction of this panel before any SMA permit can be granted. Now let's not lose sight of the fact that, you know, there is some concern, let me put it that way, that, you know, what this does is drives the price of the parcel down. Well, I remind you that in any condemnation proceeding, it really is up to the court to decide what is a fair price. And I don't believe the court will be influenced by this particular proceeding. You know, let's depend upon the courts if it becomes necessary to be fair, open minded 57 And let me state emphatically to this panel and to the people here that, you know, the Director does have responsibilities to enforce the law as much as this panel has a duty to enforce the law. And, you know, we're not going to be sidetracked, so to speak, by any desire to set a price for this property. And, again, you know, it was for that reason that we objected to this line of questioning; and we do ask for a continued objection on, along these lines. We have nothing further to add at this time. GIFFIN:Excuse me? ISHADO:We have nothing further to add at this time. Thank you very much. GIFFIN:Commissioner Springer. SPRINGER:Madam Chair, if that concludes the opening statements by all of the parties, I'd like to move that the Hearings Officers go into Executive Session for the purpose of conferring with Deputy Corporation Counsel. GIFFIN:Mr. Togashi. TOGASHI:Was there a motion to that effect or -? GIFFIN:Did you move? I'm sorry. SPRINGER:I'd like to move that the Planning Commissioners go int Session for the purpose of discussing with Deputy Corporation Counsel. TOGASHI:Second. GIFFIN:It has been moved and seconded that this body goes into an Executive Session to consult with our Corporation Counsel. All those in f HEARINGS OFFICERS:Aye. GIFFIN:Opposed? Okay. Ladies and gentlemen, we are Executive Session. And I remind you once again, cell phones must be turned off. The Planning Commission went into Executive Session at 2:44 p.m. and came out at 3:13 p.m. RECESSEDThe Presiding Officer called a short recess at 3:13 p.m. RECONVENEDThe meeting reconvened at 3:19 p.m. GIFFIN:The contested case hearing will reconvene. This is on the application for a Special Management Area Use Permit to allow the development of a 58 project and related improvements. The property is located on the east side (mauka) of Ali'i Drive in the vicinity of Hlualoa Bay and across of the Keolonhihi State Historical Park at Kamoa Point, Hlualoa 4, North Kona, Hawai`i. Okay, we have concluded hearing from all the parties and their opening statements. And, Randy, I wanted to get back to you and see if you wanted to have any sort of response to, you know, generally, some of the opening statements. Because from there, what weÓre going to do is, then, go through the written testimony of your witnesses. VITOUSEK:Yeah, okay, just very briefly, thank you. You know, I did want to respond briefly to some of the comments from the Planning Department. I think that, to some extent, the characterization of the ApplicantÓs presentation as asking the Commission to look only at whatÓs on the property was not really accurate. I think that the Applicant has, from the outset in the application, recognized the significance of the surrounding properties and has not, in any way, tried to downplay or diminish the significance of the surrounding properties, but has asked the Commission in its consideration of the SMA permit to consider, you know, to direct its consideration to the potential impacts of this, this project may have on the surrounding properties. In other words, to look, you know, realistically, at what resources are on this property itself in terms of historical, cultural, or archeological resources and then to look, based on the SMA criteria, to what extent there may be impacts on the surrounding properties as a result of development of this property. And I cited for you the specific, the standards under Chapter 205-A and Rule 9. And, so, weÓre not saying that you should focus only on this property, but the application is for this property. And, so, to the extent that we look at what the potential impacts are, we have to look at not, generally, what the impacts are of allowing for, you know, recognition of Hawaiian cultural and traditional rights, or not generally what the value of Keolonhihi and Kekealaniwahine are but, specifically, what are the potential adverse impacts from this proposed development on the coastal zone, including on the surrounding properties. And, so, the other issue there is that, you know, this idea that, you know, itÓs really clear on the record that this entire property had been bulldozed. I think when we were there we saw that the topography of the lot is not natural topography. And itÓs really clear that thereÓs, no one is suggesting that there are archeological sites or burials on this property. The idea that there may be something under the ground is a little difficult to deal with in the sense that, you know -. The suggestion that we donÓt have a complete assessment until weÓve done systematic test borings throughout the whole property, thatÓs something that weÓll have Bob Rechtman address, or have addressed in testimony. But, you know, thatÓs not a realistic standard for this type of application. And I think there was maybe one other issue that I wanted to address there and -. Yeah, I think that it may have just been, it may have just been that Mr. Ishado mis-spoke; but I thought I heard him say that, ÐLetÓs depend on the courts if we need to be open-minded, fair and intelligent,Ñ because, you know, the Applicant is really depending on the Commission to be open-minded, and fair, and intelligent. You know, this is not something we want to wait to get to court to be resolved. This is a matter thatÓs pending before the Planning Commission; and we ask the Planning Commissioners to be open-minded, and fair, and intelligent in addressing this application. Thank you. GIFFIN:Okay. So, Commissioners, make sure you have before you the written testimony as presented to us by the Applicant. And, Randy, if itÓs okay with you, weÓre going to 59 start in just the order that it is presented to us; and, so, weÓre going to start with the testimony of Wayne Blasman. VITOUSEK:Well, actually, Madam Chairman, I think that, you know, itÓs kind of up to the Applicant to determine the order of presentation of witnesses. And, so -. GIFFIN:I thought that this was your order. VITOUSEK:No, no, IÓm sorry, it was not intended to be. GIFFIN:Oh -. VITOUSEK:If I could ask Mr. Mooers to testify first. I mean, I -. GIFFIN:Okay, you want to tell us the order, then, thatÓs fine. If itÓs not the same as -. VITOUSEK:No, itÓs not, IÓm sorry, IÓm sorry. GIFFIN:Okay, so you would like -? VITOUSEK:You know, frankly, itÓs because I just want Mr. Blasman to have the opportunity to see how the process goes before heÓs -. Basically, all IÓm doing is saying, my first, you know, witness is Greg Mooers, and Greg is going to get up there; and IÓm not going to ask him any questions. GIFFIN:Yeah, yeah. We might. VITOUSEK:Right. And, so, I just want Mr. Blasman to get a chance to see how that functions. GIFFIN:Okay. And then, is there an order, then? VITOUSEK:Oh, heÓs next, Mr. Blasman will be next. GIFFIN:Oh, okay. VITOUSEK:And then, I would, Paul Bleck, the architect, if heÓs -. GIFFIN:You want him to be next? VITOUSEK:Called, yes. GIFFIN:Okay. So, wait, heÓd be -. Hang on. Okay, so heÓd be three. And then? VITOUSEK:ThatÓs correct. 60 GIFFIN:And then? VITOUSEK:And then, Ron Terry. GIFFIN:Ron. VITOUSEK:Ron Terry who did the site line analysis -. GIFFIN:So heÓd be four. VITOUSEK:And the flora fauna analysis. GIFFIN:Right. VITOUSEK:And then, Bob Rechtman, who did the, whoÓs the archeologist. GIFFIN:Yeah, hang on. And heÓd be five? VITOUSEK:Yes, and then Fielding Schultz who is the -. GIFFIN:Yeah, in the back. VITOUSEK:He is the landscape contractor. GIFFIN:Wait. Okay, so heÓd be six? VITOUSEK:Right. And then thereÓs, the only other issue there, Madam Chair, is that, you know, we had subpoenaed Martha Yent from the Department of Land and Natural Resources and, just out of courtesy to her, IÓd like to put her on as witness today. So even though she wouldnÓt be necessarily in that order, if I get a chance to, for not progressing to a point where sheÓd be the next witness, IÓd like to call her out of order just to get her -. GIFFIN:Okay, so she would be seven? VITOUSEK:Yeah, but -. GIFFFIN:And then? VITOUSEK:Then, thatÓs all I have planned right at this point. GIFFIN:All right. Mikahala. ROY:Ms. Giffin -. GIFFIN:Yes. 61 ROY:If itÓs permissible, IÓd like to just respond to one statement that Mr. Vitousek spoke on, that being the irrelevance of subterranean archaeological sites. Truly, this is not the equal. But if I were to say CusterÓs Last Stand, Montecello, Stone Hench, these sites on earth, I daresay that if a portion of any of those sites I just mentioned were a development parcel that is to be considered for development, you and everyone would understand. This is what this is being shared. And this will be brought to light even more as we go on, but I did want to respond to what he brought up. GIFFIN:ThatÓs fine; and, so, without any further delay, IÓd like to go on with cross- examination of the witnesses. And as the ApplicantÓs representative has requested, letÓs begin with Greg Mooers. Greg? Maybe I should swear them all in, all at once. Could you please stand, all of you who are witnesses for the Applicant, so that I can swear you all in at once. Yent and -. Is that it? One, two, three, four, five, six. I thought we had seven? VITOUSEK:It doesnÓt appear that Mr. Bleck is here yet. GIFFIN:Okay, so weÓll do the six and IÓll put a note that Mr. Bleck hasnÓt -. Please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Hawai`i County Planning Commission? TESTIFIERS:I do. GIFFIN:Thank you. And let me put a memo here to myself that Mr. been sworn in. And, Greg, if you would go to the lectern, I think thereÓs a mike there for you. Maile, weÓre going to start with you in terms of questions of Greg, Gregory R. Mooers. DAVID:Good afternoon, Mr. Mooers. MOOERS:Good afternoon. DAVID:How many years have you been involved in the land use perm process? MOOERS:Oh, inside government, outside, since 1984. DAVID:And about many land use applications have you worked on? MOOERS:ItÓs in the hundreds. IÓm not sure, I donÓt have the number. DAVID:Would that be all in the Kona area? MOOERS:No. Predominantly, West Hawai`i but some in East Hawai`i applications, some in South Hawai`i. DAVID:Would you say the bulk would be in West Hawai`i district? 62 MOOERS:Yes, I would. DAVID:Okay. And, on the West side, in how many of these land us would you say citizens came forth and raised concerns regarding impacts on cultural resources? MOOERS:Maybe 15, 20. DAVID:Do you remember about the period of time? That has been, say, within the last 10 years, 15 or 20? MOOERS:During the entire time IÓve been processing -? DAVID:Okay. Since 1984? Since 1984, in your opinion, would you say that there has been an increase in Kona to protect natural and cultural resources? MOOERS:IÓm sorry, increase in concerns or -? DAVID:In concerns, in the land use permitting processes, since 1984 has the participation like, say, public participation increased somewhat or has it been the same? MOOERS:It really, it really is fluctual. I wouldnÓt say that it has increased or decreased. It really depends on the issues. Back in the 80Ós, I worked for the government. At that time, there were some very controversial issues that related to spaceport, radiation, geothermal. They were very, very well attended, lot of very spirited debate on the issues. It really is more a reflection of the particular project than a timeline. I have not noticed that there has been an increase or decrease in concerns. I would say in my experience, the concerns have been there for the entire time that IÓve been involved in land use. DAVID:And, in your opinion, how many of the applications that you processed have turned into and have become contested case hearings? MOOERS:Oh, IÓd say, eight to ten. DAVID:And in processing these applications, are you aware or do you consider the provisions of Article 12, Section 7 of the Hawai`i State Constitution that states the State shall reaffirm and protect all rights, customarily and traditionally exercised for subsistence, cultural subsistence, cultural and religious purposes? Do you include these considerations in your processing? MOOERS:Yes. ThatÓs the normal consideration, although it varies depending upon the nature of the property being developed. DAVID:The nature of the property. Can you explain that to me? 63 MOOERS:My understanding is that the PASH rights, particularly native and cultural practices, pertains to undeveloped property. Property thatÓs zoned Urban and has been used in Urban is not held at that same standard. DAVID:Are you familiar with the case in Ka PaÒakai O Ka ÒAina? MOOERS:Yes, I am. DAVID:And how is that, how do you apply that? MOOERS:That, again, is not a developed property. It does not apply in this particular case. But the issue is raised and in the application, where it applies, it is addressed. DAVID:In your experience, are you aware that despite these protective measures mandated by our Constitution and, Constitution and laws, that, a Hawaiians have suffered tremendous loss and injustices due to infringement upon and destruction of historic sites and cultural resources? MOOERS:Yes, I am. DAVID:Are you aware that past injustices inflicted upon Native Hawaiians have resulted an effort to uphold the laws to prevent further cultural deterioration? MOOERS:Yes, I am. DAVID:Do you agree that protecting and restoring sacred places, such as Keakealaniwahine, may or will help to rectify past wrongs upon the Hawaiian people? MOOERS:IÓm not sure if thatÓll help to rectify things or not, but IÓm aware that that is an issue, yes. DAVID:And IÓm sure youÓre very well versed in Section 226, the StateÓs policy to promote preservation and restoration of significant natural and historic sites? MOOERS:Yes, I am. DAVID:And do you, also, use in your processing these applications the policy of the Coastal Zone Management Program to support State goals for protection, restoration, interpretation and display of historic resources? MOOERS:Yes, I do. ItÓs an important part of any SMA application DAVID:Would you also agree and do you know that it is the objective of the Coastal Zone Management Program to protect, preserve and, where desirable, restore those natural and man-made historic and prehistoric resources in the Coastal Zone Management Area that are significant in Hawaiian and American history and culture? 64 MOOERS:Yes, I am. DAVID:Do you know or did you know that property in Hawai`i, unlike elsewhere, comes attached with protective provisions that guarantee the protection of cultural practices in history? MOOERS:To a certain degree, yes, thatÓs true. DAVID:Thank you, Mr. Mooers. GIFFIN:Mikahala? ROY:Thank you. Aloha, Mr. Mooers. I see by your resume, have you, in fact, worked with the development, the developer Nansay? MOOERS:Yes, I did. ROY:Would you describe briefly your assessment of cultural concerns with that project? MOOERS:Which project? Nansay had many projects. Which project? ROY:Kohanaiki? MOOERS:And what was the question? ROY:Again, the question is, can you hear me all right there? GIFFIN:Yes. ROY:Would you describe or assess your version of the elements contained with that case describing concerns of citizens for concerns of cultural impact of that development and anything related to that with regard to concerns for the natural and cultural environment of Hawai`i, in Kona there? MOOERS:IÓm not really sure. IÓm kind of getting the gist of the question, IÓm not trying to be, I donÓt hear a real specific question. Are you asking me what do I think Nansay was doing, did they do things right or wrong, or how did that project relate to this project -? ROY:No, actually, my question is, what is your assessment of the concerns of the people relative to that development? MOOERS:So youÓd like me to assess the communityÓs concerns? ROY:Yes. 65 MOOERS:I think the community has very legitimate concerns, both in that case and in this case. ROY:Thank you. I noticed, also, that you have been an education representative. Would you explain your understanding of the status of education in terms of prehistoric Hawaiian heritage in the State or that what youÓre familiar with, mostly? MOOERS:Well, IÓm not familiar with any education in that regard. If youÓre asking me how prehistoric history has been taught in the State, I donÓt know. ROY:As a representative or having known about, as I see, Steering Committee member for the National Center for Higher Education, panelist for GovernorÓs Conference on Education, another one would be Member of GovernorÓs Congress on Hawai`iÓs International Participation, Member of State Education Functional Plan, I see where, in my mind, this is a healthy participation in the field of education. And just could you comment on your understanding of the status of education of Hawaiian heritage? MOOERS:ItÓs a pretty broad issue there. A number of committees that you mentioned that I served on dealt with everything from Higher Education of the University of Hawai`i to the State Functional Plan, which primarily was looking at what the goals and objectives of the State education system was, very general in nature. As far as the education of culture in the State of Hawai`i, thatÓs an issue that IÓm not an expert in, donÓt pretend to be an expert in. ROY:Was it ever shared in any of these arenas? MOOERS:Yes. ROY:It was? MOOERS:Yes. ROY:And whatÓs your understanding of that which was shared? MOOERS:The goals and objectives was to advance and improve the understanding of the Hawaiian culture. ROY:Did they ever, was any challenge or any indicated, ever indicated in those forums that you were a part of with that topic? MOOERS:A challenge -? ROY:With the State systems? 66 MOOERS:There were a number of issues raised as to the inadequacies of the State education system, yes; and that would be one of the many. ROY:Do you recall in any specifics what were some of the reasons inadequacies? MOOERS:In most cases, the lack of funding, inadequate curriculum, a number of people felt that there were a number of issues that were not raised in the public education arena that should be. ROY:One moment, please. Mr. Mooers, can I ask you your personal views on the Admissions Act, if you can so speak on that. MOOERS:I would question the relevance here. But what would you like me to say? ROY:When one reads the statement that the StateÓs effort should be toward the betterment of the condition of the Native Hawaiian, what comes to your heart? MOOERS:Okay. I think thatÓs a true statement. I think thatÓs the goal, objective shared not only there but the Constitution of the State; and it appears throughout, you know, the codes and ordinances of counties and states. ROY:Would you say that the State would be justified in saying that itÓs their responsibility to protect that? MOOERS:I think thatÓs part of their responsibility, yes. ROY:Thank you. How did you conclude that the proposed project will have no direct adverse impact on any archeological resources regarding this subject? MOOERS:ThatÓs based on information from the archaeologist and references that are made by the Inventory Survey, comments back from State Department of Land and Natural Resources. And all of these things are made in the context of this particular site in relationship not only to the two important cultural and historic sites but, also, to the existing urban nature of the area. ROY:Thank you. And if PASH does not apply in this case, with respect to the protection of native rights, what would? MOOERS:I think Chapter 205-A has the various list of things that must be complied with that relate to cultural and historic sites. ROY:Anything else you can think of? MOOERS:I think thatÓs quite complete. 67 ROY:Thank you. GIFFIN:Lester? ISHADO:I think weÓve basically covered our concerns with other people who testified, so I have no questions of Mr. Mooers. GIFFIN:Hearings officers, Hannah and/or Grant? Hannah? SPRINGER:Mr. Mooers, IÓm looking at page 2 of your prepared testimony, the last paragraph on the historic sites element of the HawaiÒi County General Plan. That peaks my interest in inquiring whether you are responsible for identifying subject areas for subcontract work. Is it you who determines and identifies subject areas for subcontract work? For example, Dr. -. MOOERS:Did I hire Dr. Rechtman? SPRINGER:Yes. MOOERS:No. In fact, I think Dr. Rechtman was the first consultant that Mr. Blasman retained; and Mr. Rechtman referred Mr. Blasman to m to write the SMA application. So I did not select Dr. Rechtman. SPRINGER:I see. IÓm not asking so much about selection of individual but the subject areas that -. MOOERS:The Scope of Work? SPRINGER:The Scope of Work to conform, for example, to the historic sites element. MOOERS:Yes. SPRINGER:Can you help me understand the difference between archa historical and cultural assessments in order to meet that section of the General Plan? MOOERS:I think cultural has more to do with the actual use of the property. Archaeological and historic has to do with the physical features on the site. SPRINGER:May I continue, Madam Chair? GIFFIN:Yes, please. SPRINGER:So, Mr. Mooers, was it the consideration of the planning team that Dr. RechtmanÓs work satisfied all the requirements of 205-A and -? MOOERS:Yes. 68 SPRINGER:Thank you. GIFFIN:Mr. Togashi? TOGASHI:I donÓt have any further questions of Mr. Mooers. But IÓm just wondering for, in establishing on record, perhaps we should consider maybe establishing Mr. Mooers as an expert witness in the field of planning? GIFFIN:Is that something that you wanted to have us do, Mr. Vito VITOUSEK:Well, I think, might as well. I mean, IÓll offer him as an expert if you think thatÓs a relevant issue. HeÓs, you know, at this point, was being offered as the planner who was retained, and prepared the permit application, and testified as to his assessment of various issues. But, I think, you know, Mr. Mooers does qualify as an expert, so IÓd offer him as an expert in the area of land use planning. GIFFIN:Mr. Torigoe just told me that we donÓt need to vote on that and then I will go ahead and accept you as an expert. ROY:I object. GIFFIN:IÓm sorry, Mikahala. ROY:IÓm just saying I would object to that nomination as such and would base that on, for my understanding, I would need more information and wonder why that action would be taken. GIFFIN:Okay. Mr. Togashi, maybe you would like to explain a little. TOGASHI:The reason IÓm asking this, IÓd really would like to establish a good record in making a decision. And I know in previous contested case hearings in which I had been involved, we have, I guess even taken a motion to establish that certain people that come in and serve as witnesses are held as experts in their respective fields. So thatÓs the only reason I brought it up. ROY:My concern is that the party is a representative of the Applicant. GIFFIN:Mr. Torigoe? TORIGOE:Well, my understanding at this point was that the testimony of all of these witnesses had been admitted generally for whatever purposes and, you know, there are opinions that are imbedded in here. And, basically, itÓs up to the Commission to determine the weight to be given to each of these witnessesÓ testimony and opinions. 69 I donÓt know if, I guess itÓs really up to Mr. Vitousek whether he wants to formally offer any of these opinions as expert opinions. VITOUSEK:I think I did. I think I offered him as an expert witness. I also would like to point out that if any party, you know, questions, you know, Mr. MooersÓ qualifications to give the testimony which he has given, that now is the time for them to cross-examine him. And, so, you know, if there are any questions and they question his ability to make a certain statement or a certain opinion, now is the time to raise those questions. You canÓt, canÓt do it later. So I am offering him as an expert just to meet Hearings Officer TogashiÓs suggestion. GIFFIN:And based on that, thatÓs why I went ahead and felt that there was no objection. Because in the questioning of this witness, you did not raise any questions regarding his level of expertise as a planner. Maile? DAVID:The only question that I would have, if you qualify him as some reason, expert witness, if for some reason down the line in the hearings I need to call someone to rebut his testimony, would I need to call an expert? GIFFIN:Mr. Torigoe? TORIGOE:Well, you know, that, ultimately, would be up to you as a party. One can try to encounter an expert with non-expert testimony. But, obviously, you know, if you feel that there is a particular expert opinion that you would like to counter then, you know, probably an expert would be the best way to do that. DAVID:ThatÓs generally speaking. ThatÓs all I wanted to know. GIFFIN:Mikahala? ROY:Totally, with no disrespect to Mr. MooersÓ -. GIFFIN:Oh, absolutely. ROY:Qualifications, totally, thatÓs not -. GIFFIN:Yes. ROY:My issue here. GIFFIN:Yes. ROY:But itÓs just a little too close to home. Then I must say that is not there, any other resources available that we can, as an entity, look to regarding planning consultations and so forth. GIFFIN:Mr. Torigoe? 70 TORIGOE:Basically, we are in a formal Contested Case procedure and itÓs really, you know, for each party to choose whatever witnesses they want to present. And, so, basically, thatÓs what the record will consist of, is the witnesses that each party feels is in their best interest to present. So itÓs not for the Commission to tell the parties what, you know, other witnesses they should bring forward at this point. ROY:ItÓs just that I donÓt, I was not aware that you would be choosing from our witnesses expertise levels that will be now desired or looked to for matters concerning us. Please enlighten me if IÓm, where IÓm awry. TORIGOE:Well, you know, yeah, thereÓs not necessarily -. IÓm trying to recall if thereÓs anything in the Contested Case statutes or rules that talk about qualifying experts, and I donÓt think that there is. So this is, in a way, not really a necessary kind of a determination. The fact that someone has been so-called Ðqualified as an expertÑ doesnÓt mean the panel or the Commission is adopting them as, you know, an impartial advisor. All itÓs saying that from the point of view of offering certain kinds of opinions, if youÓre in a court of law, if youÓre qualified as an expert that enables you to offer certain kinds of opinions which a lay person would not be able to. But it doesnÓt mean that, you know, the panel or the Commission has adopted a particular expert as somebody who is their own or expected to give impartial kinds of advice or opinions. ItÓs just recognizing a certain status in a particular witness. GIFFIN:Mikahala, are you looking at weight, weightedness? ROY:IÓm just unfamiliar with the practice of determining a cultu excuse me, an expert in this case. And your movement at this time to bestow that title on Mr. Mooers, IÓm wondering why it comes up. TORIGOE:I think it came up because one of, Mr. Togashi raised the issue. But, you know, itÓs really not something that will necessarily have to do with each witness there. GIFFIN:No, no, but we have in others. ROY:Well, Mr. Togashi, for your desire, has the County not found people that you can actually deem planning specialists for your purposes? ItÓs just that I find it irregular, at this point in time, that you would ask to have this person, Mr. Mooers, given this title. It just doesnÓt fit with what weÓre trying to work on here, and I wonder why this is brought up at this time. GIFFIN:Mr. Togashi, do you want to respond? TOGASHI:Well, as I mentioned, yeah, I know in previous hearings ÐbestowedÑ this title on certain witnesses and it makes for, I guess, an effective record should the decision perhaps be challenged down the line. But itÓs really not, and I guess, you know, as, I see very much what Mr. Mooers has put together as far as his written testimony and I do 71 appreciate his comments; and, as a result, I thought maybe this would be a suggested way to further pursue down on this hearing. But then -. ROY:Thank you. TOGASHI:Go head, go ahead. ROY:Thank you. I can appreciate that and IÓm not trying to hold up the proceedings here. But, again, I just have to stress with force that I feel itÓs irregular. I think itÓs a title that I, for one, have not had a chance to read fully and to give you an opinion if I agree with this. An expert is someone who has, who has handled, in my opinion, the gamut of all matters that come to the planning process, which includes commun TOGASHI:And I donÓt want this to be a really major point of contention and, for that reason, perhaps I may suggest to the, to Madam Chairman that. H GIFFIN:IÓm listening to you. TOGASHI:And perhaps we should just move on and, unless Madam Chairman has any other comments youÓd like to make. GIFFIN:IÓm not necessarily, you know, either for or against granting Gregory R. Mooers as an expert witness, but I donÓt see any reason, at this point in time, that we need to do that, procedurally. And I donÓt know, Mikahala, if thatÓs where youÓre coming from. I, like, Mr. Togashi, had been a party to contested cases where we did do that. It didnÓt necessarily mean that that person had greater weight than another testifier. I think all it did was validate that that person had had experience, and like in this instance, in planning. But itÓs not worth it to me to spend any more time on an issue like this; and, so, I agree with you and I appreciate your objection. And, so, Randy -. TOGASHI:And I agree with you as well. VITOUSEK:As long thereÓs understanding that Mr. MooersÓ testimony is admitted in the record -. GIFFIN:Absolutely, and thatÓs -. VITOUSEK:For whatever purposes that the Hearings Officers and Commission decides theyÓre appropriate thatÓs -. GIFFIN:Yes. And, please, no offense on Greg. VITOUSEK:ThatÓs fine. DAVID ROY:Excuse me. IÓve been sitting here all day struggling to hear whatÓs going on. Are you folks afraid of being too loud to some people? Can you speak a little louder for me? 72 GIFFIN:You know what, maybe the speaker can be turned towards hi to -. Norman, Norman. Hang on. Norman canÓt hear right now. HAYASHI:Yes? GIFFIN:Norman, do we have another speaker? I mean, we need to b as well, so I donÓt want to give up our only speaker. But maybe -. PUBLIC:Can you hear me okay? SPRINGER:I can hear you. DAVID ROY:I can hear you now. GIFFIN:And at this point, Hearings Officers, do we have any other questions of Greg Mooers? Thank you very much. Wayne Blasman. VITOUSEK:Mr. Blasman is testifying as the owner and the Applicant, and weÓre not offering him as an expert witness. HeÓs a percipient witness, whoÓs the owner. And then, basically, again, weÓre not, you know, weÓre offering his written testimony as his testimony and subject to cross-examination. GIFFIN:Thank you. So, with that, Maile? DAVID:Good afternoon, Mr. Blasman. BLASMAN:Good afternoon. DAVID:I understand you live on the mainland, in California? BLASMAN:ThatÓs correct? DAVID:Okay, you have not moved to Kona yet? BLASMAN:No. DAVID:Okay. BLASMAN:No, itÓs not, not yet. DAVID:Okay. And I know you say you visited Kona many times. Ho have you come to Kona to visit? BLASMAN:In the last, IÓve been coming here for 30 years, little over 30 years, since Ó71, and probably at least once a year; and in the last 10 years probably four times a year. My 73 brother-in-law and sister-in-law with my nieces and nephews live here, and so we come over and visit quite often. DAVID:Do you spend a lot of time on your visits? Do you take va just spend time with family, two weeks at a time or longer than that, extended? BLASMAN:In the last four years we spent a month in the summertime and then the holidays, kind of trade off the holidays. And then ProService, which is the business that IÓm involved in which is here in Kona and in Honolulu, and then another business I have, Bridgeport Benefits is in Honolulu, so we have combined three offices that I do have to come and work every quarter. DAVID:I see. And besides ProService, you mentioned, I donÓt see Bridgeport, or do I see Bridgeport? BLASMAN:No, I donÓt think itÓs in there. ItÓs Bridgeport Benefits, Inc. DAVID:What kind of business is that? BLASMAN:ItÓs an insurance agency. DAVID:Is that life insurance? BLASMAN:No, itÓs employee benefits. DAVID:I see. Who runs that business for you in Hawai`i? BLASMAN:A gentleman by the name of Doug Raulson runs Bridgeport Benefits of Hawai`i, and I believe itÓs an LLC, is the makeup of it. DAVID:Is this the first type of development proposal youÓve done in Kona or have you developed other properties elsewhere? BLASMAN:This is the first development in Kona. DAVID:In Kona? BLASMAN:Yes. DAVID:Do you have other developments, say, in California -? BLASMAN:No, not, you know, other than single-family homes, no. DAVID:That youÓve developed? BLASMAN:Yes. 74 DAVID:I see. When did you purchase this ÐSnug HarborÑ property? BLASMAN:I believe it was, I think closed escrow the end of January or the beginning of 2001. DAVID:Can you remember what you paid for the ÐSnub HarborÑ prope much you bought it for? BLASMAN:Yes, for $685,000. DAVID:How do you hold title to that property? Just yourself or BLASMAN:Yes, just myself. DAVID:Just yourself. You said you used an escrow, it was in escrow. Do you know what escrow company handled this escrow? BLASMAN:No, I donÓt. I donÓt remember. DAVID:When you purchased this property, in your escrow transaction, were you provided with a seller disclosure statement? BLASMAN:Yes. DAVID:Is the disclosure statement in the exhibits? BLASMAN:I donÓt believe so. DAVID:No? Can you remember what disclosures were made? BLASMAN:I was aware of the property that the State Parks owned, that owned on the point, on the LymanÓs Point and behind the property; and that there also was an already approved in the Ò80s SMA for 32 units. And that the property had been developed and is currently developed for, you know, 40 or 50 years. And that, we felt that since yesterday, itÓd been approved in the early 80Ós and, that archaeologically, that the property had, would pass in the SMA. DAVID:Aside from the sellerÓs disclosure, are you aware of any other encumbrances that were listed on either a preliminary title report or your title insurance? BLASMAN:As far as the title it was clean. DAVID:So at the time you bought this piece of property, you didn there, about the significant historic sites around? 75 BLASMAN:I knew that the State had acquired the property on the point and developed a plan for development in the future but had no funding. I knew that they had the property behind my property but had no funding to even develop a plan; and that it was way, you know, it was not, at the time, based on funding, an important site financially with the State. DAVID:YouÓre saying that because the State, is it your feeling that because the State did not proceed to develop the historic park -? BLASMAN:IÓm just saying that financially, in the StateÓs priorities, this was not as a financial priority. I was aware of that. If they had their wish list and had finances, I donÓt know where this would fall on the list. But they were spending their money on other projects and resources. So this was not, apparently, financially at the top of the list. DAVID:So did that have any persuasion for you, because the State proceeded with any development of the historic park, was that so go ahead with this particular piece of property and not look elsewhere, possibly? BLASMAN:No, I donÓt think it had -. I think, you know, as we looked up in that Ali`i Drive for property to develop or build a single-family home or town home, you know, complexes, and we looked at possible pieces of property, that this property was the most, had the most benefit based on location, you know, all the criteria that you use to purchase a piece of property. You have to remember that this piece of property thatÓs developed, or this town home development, is something that my family is going to live at. ItÓs not just speculation for money. ItÓs something that we have designed and planned on living on. So I donÓt want you to lose sight of that. DAVID:And what is your understanding of, weÓve been speaking almost all day about the StateÓs duty to protect Native Hawaiian cultural rights and practices. What is your personal opinion on that? BLASMAN:IÓm actually kind of glad you asked that question. I think that my consultants, I think after I bought the property, shortly thereafter, I invited several architects to walk the property with me, because I wanted to build something n something that was user-friendly to Kona and Ali`i Drive. When you drive up in that Ali`i Drive and you see the amount of small condominiums, multi-family condo built and, in my opinion, almost not attractive to the landscape, that I wanted to develop something that was actually very user-friendly to the landscape and that I can be proud of Ali`i Drive. Because there are a lot of stuff that I would not be proud of in building, or developing living in. DAVID:And with that intention, were you aware of the, now youÓve been saying that your property has no archeological sites. But are you aware that your property in question was part of the Keolonhihi and Keakealaniwahine complex as a whole? BLASMAN:Correct me if IÓm wrong because IÓm not an expert, the way I was led to believe, it is, my understanding is the property, all the trails and everything actually go around 76 my property. Even though at one time it may seem that it was included, it looks like all the trailheads and everything went around my property, and not actually on my property. DAVID:Are you, yourself, aware or have you been informed of certain past injustices, whatever they are, upon the Hawaiian, Native Hawaiians with respect to loss of their cultural resources? BLASMAN:I donÓt know that. IÓm not, surely not an expert and donÓt intend to be, other than what you read in the paper on past history of Hawaiians. ItÓll just be general knowledge. DAVID:Okay. I know that you cite your wife is of Hawaiian ances gleaned any information on the Hawaiian culture and what it means from your wife? BLASMAN:We, you know -. DAVID:I donÓt want to put -. BLASMAN:Yeah -. DAVID:You know, I just want to understand what is your understanding of the Hawaiian culture and the sensitive issues around it. Has someone, you know, told you about that or informed you? BLASMAN:Other than general knowledge, you know, general knowledge of Hawaiian ancestry and what has happened in the land through kings, missionaries, getting the land. ItÓs just general knowledge. DAVID:So -. BLASMAN:More hearsay than expert testimony. DAVID:I understand. I just wanted to find out what your personal knowledge was about it, the Native Hawaiian culture. Do you agree that protecting and restoring sacred places such as Keakealaniwahine is important to you? BLASMAN:I think the two pieces of property that the State own and when were developed, I think they are very culturally important, yes. DAVID:Will restoring these properties, in your opinion, help to rectify -. I know many of the injustices IÓm talking about that you would not be aware of. Generally speaking, do you think that would rectify some of those past wrongs in restoring our sacred complexes? BLASMAN:I donÓt think IÓm qualified to answer that. DAVID:Thank you. I have no more questions. 77 GIFFIN:Mikahala? ROY:Thank you. Aloha, Mr. Blasman. BLASMAN:Aloha. ROY:Would you describe to date your efforts to learn the cultural, spiritual practices of Hawaiians? BLASMAN:Like I testified earlier, I think other than general readings and experiences being on the Big Island for on and off for 30 years, other than that, that would be it. ROY:Could you please give me your definition of home land? BLASMAN:Mikahala, excuse me, if you want me to testify in regard to expert -. ROY:Yeah, just your definition. BLASMAN:IÓm not sure that my definition is relevant, IÓm sorry. I think that I am just trying to develop a very user-friendly piece of property with a small development on Ali`i Drive. And I think that going through the processes of SMA application is something that, is something that we , the processes, what weÓre supposed to do and weÓre going through a contested case hearing, and I think that, personally, the way that I feel about Hawaiian culture, truthfully, is not necessarily that relevant. I think the project is whatÓs relevant. ROY:Mrs. Giffin, would you assist us with, I asked the question and his determination is what he just said. GIFFIN:Regarding relevancy? ROY:Yes. VITOUSEK:I guess IÓll, you know, IÓll object to the question on the grounds of relevance. ROY:I do have, I can say that it is relevant for this establishes, for my mind, the ApplicantÓs efforts to understand the home land culture of our land. GIFFIN:IÓd like to have some input from my fellow officers. Mr. Togashi, regarding the questioning of the Applicant in regards to relevancy, or Ms. Springer? Specifically home land, I think, is where we stopped, right, the definition of home land. Hannah, is that an issue with you? Do you think that this line of questioning should continue regarding relevancy? Grant? I need your help. 78 TOGASHI:Well, I guess, if he, you know, if he could perhaps give, even though, not, heÓs not qualified -. He claims heÓs not qualified to provide an answer. I think it helps him in assessing perhaps his sensitivity to Hawaiian issues. And it really doesnÓt have to be, you know, a very professional type of answer. I mean, itÓs just a statement of how you, your sensitivity to, your answer may be an indication of your sensitivity to Hawaiian matters. GIFFIN:Wayne? BLASMAN:I think thatÓs a different question. If you want, if the question is am I sensitive to Hawaiian culture, Hawaiian, the areas surrounding the property, the project in itself, thatÓs a different question than trying to question me in regard to my expertise into Hawaiian culture. I think thatÓs a different question. I would be glad to answer your question. GIFFIN:But I think, like you said, that isnÓt what Mikahala asked. BLASMAN:Correct. GIFFIN:And, so, if youÓll just allow me to give Commissioner Springer just a chance to give some input, then IÓm going to rule. Hannah? SPRINGER:I appreciate the, GrantÓs sensitivity both to the Intervenor and to the present testifier. I might ask the Intervenor if she can swing her question with regard to the Chapter 205-A which is the authorizing statute for this case that might help us all out. ROY:Thank you. For the record, it was just my asking this man his feelings on the subject of that word; and, for the record, it was avoided. The next question I have is, would you describe your efforts, of you and your associates, what efforts have you taken to resolve this dilemma with members of the Kona community? BLASMAN:In regard to the contested case? ROY:Correct. BLASMAN:We gave, we are more than willing to give the community of time to either trade or purchase the property; and we spent months with the Trust For Public Land to work out the potential purchase. They never, it was not a guaranteed purchase but potential purchase of the property. The problem with the Trust For Public Land is their number kept shrinking. They gave us a document to sign, which we were more than willing to sign; and then they withdrew it. We tried to enter into another document, and then they wouldnÓt execute that document. I tried up until, I believe, a month ago or two weeks ago to offer plenty of scenarios that we would be willing to either trade, sell or divide the piece the property and sell the zoning. And other than, basically, you know, other than financial hardship, there was no deal. It was only potential. They werenÓt real deals, they werenÓt guaranteed deals, they were only potential deals on the table. So we worked very diligently to work with the community to come up with an alternative solution. 79 ROY:Are you still willing to work that out? BLASMAN:We have always been open to that, but we do need to proceed with this hearing because we canÓt wait forever. And the only party that contacted us in regard to either trade or purchase was the Trust For Public Land; and they were only willing to do something at a significant financial hardship, which weÓre not willing to do. ROY:IsnÓt it true that you have received calls from certain residents of the community with, though they were not worthy responses in the whole of it, did you not get calls from other individuals with attempts for settlement? BLASMAN:I think we received early on a call from a worthy person, and I donÓt remember her name but I do believe that she called. And when I talked to her, she really just wanted to list the property to sell it. ROY:Very good. And for the record, Mr. Blasman has met with mem Klana Huli Honua who, we know it very, very well the process. As a matter of fact, Trust For Public Lands became involved as a result of our meetings. Do you represent an investment group? BLASMAN:No, I have a partner in the project, Jim Fox, heÓs here. ROY:And this is a one single dwelling, then, that youÓre proposing, your development? BLASMAN:I donÓt understand the question. ROY:In other words, it is, you are, you do not represent an investment group? You have an associate, is that right? BLASMAN:ThatÓs correct. ROY:And the units that you will be building, wait, will they be your private residence? BLASMAN:Yes. Not all thirteen. ROY:Not all thirteen? BLASMAN:Two of them will be. Mr. Fox and myself will own one of units. ROY:Would you call yourself a speculator? 80 BLASMAN:I donÓt think so. I donÓt even know that IÓd call myself a developer, other than this is a development. This is a small development so the family can have a home in Kona. ROY:What, again, IÓll repeat and rephrase Mrs. DavidÓs question. What other developments have you been involved with? BLASMAN:In Kona or -? ROY:No, in general? BLASMAN:Just single-family homes on the mainland. ROY:Were they your personal property? BLASMAN:Yes. ROY:Could you please explain, how do you view the subject of cultural integrity? BLASMAN:As it refers to the project? ROY:In general, cultural integrity. It could mean any culture, the words. If you could just explain your view on what those words mean to you? BLASMAN:Well, thatÓs a pretty general question. Is it in regard to development, is it in regard to -? ROY:Cultural integrity, the integrity of a practice, culture, as time in memorial. BLASMAN:Do you want me to answer as it relates to anything or just in general? ROY:In general. BLASMAN:I think, cultural integrity means that you want to keep the integrity of that culture intact, in general. ROY:Thank you. I know that IÓve had the pleasure of meeting Mrs. Blasman and that she is of Hawaiian ancestry, as you say. What is your feeling on the significance of Hawaiian language? BLASMAN:In general, you know, should language, I can answer is language important? Yes, language is important. Multi-languages old and new are important. I believe that language has a lot to do with the culture of the population. Language is very important. 81 ROY:What degree of importance do you place on correct pronunciation of a native language? BLASMAN:Well, since I only speak English, itÓs, I think that in English thereÓs a tremendous amount of slang Òcause we do not speak proper English. ItÓs still very important to use language in the right context. ROY:And to pronounce it? BLASMAN:I think you should pronounce it to the best of your abil ROY:Would you please state the drive that your development is on? BLASMAN:Ali`i Drive. ROY:Would you say it again? BLASMAN:Ali`i? VITOUSEK:IÓm sorry, I object to the line of questioning. I donÓt think thatÓs really relevant. I think she just established the point. We donÓt have to, you know, go over and over ROY:I wasnÓt trying to. I am merely saying that a language of any culture is the core of its living quality; and, today, Hawaiians face very, very challenging situations for the living of the true language. We are in a state that is bilingual. By rights every sign we see should be in English and Hawaiian. It is not. And, so, therefore, we have to protect our places from deterioration from incoming entities that do not respect. And what I am trying to get to is to ascertain Mr. BlasmanÓs true attempts to understand our culture and our language. He has children that are of Hawaiian ancestry. I think my questions are pertinent. I have one last question and thank you. Again, knowing the historic qualities of the property, what prompted you to still buy? BLASMAN:ItÓs a piece property that is currently developed and I thought that I would not have a lot of trouble developing it and it is a very wonderful location off LymanÓs Point. My children all surf and it was important to be near the ocean. ROY:Just one last point. And were you aware that for many years Department of Land and Natural Resources and cultural experts have recommended that this piece of property be acquired for the inclusion in the State Historic Park? BLASMAN:I learned after I purchased the property through Mr. Silva, who I purchased the property from, that the land had been for sale for a number of years on and off and that he felt that, in his own words, that he felt the State would never buy it. ROY:Thank you. No further questions. Thank you. 82 GIFFIN:Lester? ISHADO:I think weÓll reserve our testimony for the experts on archaeological and line of sight. GIFFIN:Fine. Thank you. Officers? Hannah? Question? SPRINGER:Yeah. Mr. Blasman, as part of your due diligence, prior to purchasing the property, did you discover the development of the Snug Harbor Motel and the 1980Ós SMA application initiative? BLASMAN:Yes. SPRINGER:As part of that due diligence, did it come to your attention trends and public opinion and statutories or cases in statutory law regarding the protection of constitutional and statutory provisions for traditional and customary practices, including Native Hawaiian religion? BLASMAN:No, I did not. SPRINGER:Thank you. GIFFIN:Mr. Togashi? TOGASHI:None. GIFFIN:Thank you. Thank you very much. Randy, you wanted to ca Mr. Bleck? VITOUSEK:Yeah. IÓd like to ask if I could take Martha Yent out of order. And IÓm sorry to do that, but sheÓs here under subpoena, and looks like weÓve got about a half hour before 5 oÓclock -. GIFFIN:ThatÓs fine. VITOUSEK:And I think just out of courtesy to her. GIFFIN:Sure. And itÓs Marsha? YENT:Martha. GIFFIN:Martha. Did I swear you in? YENT:Yes. One of the six. 83 GIFFIN:Okay. Would you please state your name and your resident address, and your capacity, since we donÓt have your -. YENT:Yeah, I have no written testimony. GIFFIN:Right. YENT:Correct. My name is Martha Yent. IÓm at 1303 Ulupii Street in Kailua, on Oahu. I work for the Department of Land and Natural Resources, Division of State Parks based in Honolulu. GIFFIN:Before you go any further, could you please say what your capacity is there? YENT:When I first started working for State Parks in 1977, I was archaeologist. In 1992, I took over the State Parks Interpretive Program, so IÓm now overseeing the Interpretive Program. But I guess just to clarify, in both capacities, I have been involved with the planning and the management of cultural properties in the State Park system. GIFFIN:Great. YENT:Okay. GIFFIN:Do you want to begin? Is she going to go ahead and -? None -. Okay. All right, Randy. VITOUSEK:Okay. Thank you. So, Ms. Yent, in your position as, with the State Parks, are you familiar with the property which is the subject of this application? YENT:IÓm familiar with the location. I have not actually walked the property. VITOUSEK:Okay. And, are you aware of any point in time in the past, and letÓs say, before this application for an SMA permit was filed in, I think it was July, 2002. Were you aware of any time before July of 2002, when the State of Hawai`i had any interest in acquiring this property, the property thatÓs now owned by Mr. Blasman? YENTNot that particular property, no. VITOUSEK:Okay, so, letÓs see, you were involved, were you not, in all the planning stages with respect to the Keolonhihi complex? Is that correct? YENT:Correct. VITOUSEK:And, so, you were involved at the time that the State acquired that Kamoa Point property that includes Keolonhihi? Is that correct? 84 YENT:Correct. VITOUSEK:And were you responsible with respect to receiving on behalf of DLNR the study done by Ms. Kanahele? Is that correct? YENT:Correct. I oversaw that consultant contract. VITOUSEK:And did you oversee the environmental impact statement accepted in 1995 with respect to the proposed Keolonhihi complex which was actually done by Mr. Ron Terry? IsnÓt that correct? YENT:Correct. VITOUSEK:Okay. And, so, in that plan by Ms. Kanahele, and in that environmental impact statement, and at any time in the StateÓs planning process relative to the Keolonhihi, is there any reference made to the acquisition of Mr. BlasmanÓs property? YENT:Not to that particular property, no. VITOUSEK:Okay. Now, the State has also acquired the property wh Keakealaniwahine complex, isnÓt that correct? YENT:Through a donation, correct. VITOUSEK:That was a donation from First Hawaiian Bank as I recall. IsnÓt that correct? YENT:It went from Dillingham Partners to First Hawaiian Credit C VITOUSEK:Okay. When did the State accept that donation? YENT:Nineteen ninety eight. VITOUSEK:Okay. And, Ms. Yent, since 1998, has the State of Hawai`i appropriated or spent any money on the Keakealaniwahine complex? YENT:No, we have put in appropriations but they have not been approved by the Legislature. VITOUSEK:Okay. So since the State acquired this property, it has appropriated and spent absolutely no money on the Keakealaniwahine complex. IsnÓt that correct? YENT:Correct. VITOUSEK:Okay. Has the State developed any plan for the Keakealaniwahine complex? 85 YENT:No, that was part of what the appropriation was for, was to existing General Management Plan and EIS to incorporate the Keakealaniwahine complex. VITOUSEK:And, so, even the planning money was not approved as pa appropriations. Is that correct? YENT:I should correct my statement. It was approved but it was dependent on funding being available; and that funding was not available so the monies lapsed. VITOUSEK:Okay. Fair enough. And then with respect to both the Keakealaniwahine and the Keolonhihi areas, and I donÓt mean to, you know, necessarily say thereÓs two separate areas, but just with reference to those two parcels owned by the State of Hawai`i, what has the State done on the ground with respect to those two parcels? In other words, what has been done physically to manage, preserve, protect those properties? YENT:The only really visible thing we did was in 1989, we removed some of the large banyan trees that were impacting the cultural sites that were physically on the ground. VITOUSEK:And that was on Keolonhihi? YENT:Correct. VITOUSEK:Not on Keakealaniwahine? Is that correct? YENT:No. Just as a point of reference, too, Keakealaniwahine has not been set aside to State Parks -. VITOUSEK:Fair enough. YENT:So itÓs still under the Land Division agency. VITOUSEK:Okay. But with respect to, so, other than removing large banyan trees in the Keolonhihi complex, has the State done anything on the ground to preserve, protect, manage, interpret these properties? YENT:ItÓs basically, then, planning documents today. VITOUSEK:Okay. So that the State had done planning documents bu doing anything on the ground, the answer is no, nothing? YENT:Just the tree removal. Correct. VITOUSEK:And in the terms of the StateÓs timetable for improvement of the Keakealaniwahine component of the project, do you have any idea what that timetable is? 86 YENT:No, I donÓt. If you look at our EIS, I believe we said the park, referring to Keolonhihi, would be opened in 2005. Obviously, thatÓs probably not going to happen, at this point. VITOUSEK:Okay. So in terms of being able to predict for us when taken on the ground, for example, in the Keakealaniwahine area, which would make open or accessible to the public or to Native Hawaiians for, you know, use, study, whatever, can you make any projection as to when that might occur? YENT:Not at this time, no. VITOUSEK:Okay. Now, there is a bill pending before the State of appropriate funds to acquire the Blasman property. YouÓre familiar with that bill? YENT:I am. VITOUSEK:And have you been asked to testify with respect to that bill? YENT:I prepared the testimony on behalf of the Department of Lan Resources. VITOUSEK:Okay. And did the Department, what position did the Department of Land and Natural Recesses, excuse me, I canÓt talk, what position did the Department of Land and Natural Resources take relative to this bill? YENT:We supported the intent; but because the bill does include a proviso for a million-dollar appropriation, we were instructed by the Administration to not support the bill because of its impacts on the biennium budget. VITOUSEK:Okay. So the Department is not supporting the bill because of the potential impacts on the budget, is that correct? YENT:ThatÓs kind of a two-sided. We support the intent but we canÓt support -. VITOUSEK:The bill? YENT:The money aspect of it. VITOUSEK:Okay. Has the State made any plans to acquire this, th that youÓre aware of? YENT:No. Just as Mr. Blasman mentioned, there have been discussions with Trust For Public Lands. We never, we, as the State, never met f Mr. Blasman. Trust For Public Lands was basically an intermediary in the process. 87 VITOUSEK:Okay. And, so, you had discussions for Trust For Public Lands but Mr. Blasman did not participate in, is that correct? YENT:Well, Trust For Public Lands talked to Mr. Blasman, Trust For Public Lands talked to State Parks, but State Parks and Mr. Blasman did not talk together. VITOUSEK:Did the State Parks agree to fund any purchase negotiated by the Trust For Public Lands? YENT:This was always a concern that we had. Because Trust For Public Lands, if they purchased the property, the understanding is that the State will come up with the monies to buy it eventually back from Trust For Public Lands. You know, just knowing what the StateÓs financial situation is right now, we did have some reservations and expressed that to Trust For Public Lands. The other -. VITOUSEK:So you would, oh, IÓm sorry. Go ahead. YENT:Excuse me. No, I was just going to say the other option for us is land exchanges; and those have not been pursued very vigorously by ou the ceded land issues. VITOUSEK:Are you aware of any overture that has been made to Mr. Blasman or anyone acting on his behalf for a land exchange with the State? YENT:Not directly to the State, no. VITOUSEK:Has the State made any inquiries with respect to, I mean, has the State initiated any effort to do a land exchange with Mr. Blasman? YENT:No. VITOUSEK:Did the State Parks Division comment relative to this SMA application? YENT:We did. VITOUSEK:And do you recall what your comments were? YENT:Well, we raised the concern that the property is a land link between the two complexes that are State owned. ItÓs situated right in between the two parcels. It does provide the only, well, not the only, but it would provide a land link between the two complexes that doesnÓt currently exist. Therefore, we did raise questions about the integrity of a major development that was being proposed on the integrity of the cultural sites, including the possibility of impacts on the visual corridors. VITOUSEK:Did you have any information as to whether the property had historically served as a physical connection between the parcels? In other words, any evidence of trails or 88 anything else on the ground that would indicate that the property had been used to effectuate a physical link between the two areas? YENT:If you go back to John PapaiÒiÓs description, he talks about a royal chiefly residence at Hlualoa, and the sites he discusses suggest that residence ran all the way from the shoreline up mauka. So it would suggest that that property is included in this larger chiefly complex. VITOUSEK:Has the State ever looked at the Pokobo property as containing a physical link between the Keolonhihi area and Keakealaniwahine area? YENT:I donÓt remember how many years ago now but when the proper held by Maryl Development, there were some initial discussions about a possible donation of the property along Ali`i Drive that would provide us that link. VITOUSEK:And that would provide a physical link -? YENT:Yes. VITOUSEKIs that correct? And that property is undeveloped, isnÓt that correct? YENT:Correct. VITOUSEK:And isnÓt there evidence of trails on the ground on that property? YENT:I believe so. VITOUSEK:And, so, thereÓs actually evidence of historic Hawaiian trails on the Pokobo property which run in a mauka-makai orientation, isnÓt that correct? YENT:Well, and the other important thing with the Pokobo property is that itÓs still part of Hlualoa 4; and our general feeling is the royal chiefly center was Hlualoa 4, possibly Hlualoa 3. VITOUSEK:Okay. And when you were referring Hlualoa 4, Hlualoa 3, those are reference to ahupua`as, isnÓt that correct? YENT:Correct. VITOUSEK:Okay. Are you aware of whether any notice was given to Mr. Blasman relative to the bill to appropriate funds to acquire his property? YENT:No, and since we did not introduce the bill, we were not aware of it either. VITOUSEK:Okay, so this bill was not introduced by the Department of Land and Natural Resources, is that correct? 89 YENT:It was not a State-introduced bill, no. VITOUSEK:Okay. You know who did introduce it? YENT:IÓm not sure, no. VITOUSEK:Okay. I have no further questions. Thank you. GIFFIN:Thank you. Maile? DAVID:Yes, IÓd like to, with permission, defer questioning to Mikahala only because Martha Yent has been listed on her exhibit list; and I will question Ms. Yent after Mikahala. GIFFIN:Mikahala. ROY:Thank you. Aloha, Ms. Yent. YENT:Aloha. ROY:When the State, in fact, purchased Keolonhihi, was the State aware of the presence of Kaluaokalani? YENT:It is referenced by Ellis, so I was aware of it in regards to the reference from Ellis. ROY:Were you aware of the whole quality of that? YENT:To be honest, I donÓt know when I really became aware of the entire complex. I think early on thought we did recognize the connection with the Keakealaniwahine and the fact that the property, in terms of a cultural complex, did extend mauka. ROY:Were any resources of the State ever expended to study same? YENT:To study -? ROY:Same, this discussion. Were any resources spent to study this entire area? YENT:When Holly McEldowney did the historical research in 1985, we did ask her to look, you know, at the cultural settings. So it would extend beyond the existing park boundaries of Keolonhihi. ROY:And for the record, she is an archaeologist? YENT:I believe her degree is ethnoarchaeology. 90 ROY:Did she do a site inventory of Kaluaokalani? YENT:No, that was not part of her scope. She was looking at the literature in regards to the Hlualoa complex. ROY:And as the party in charge of interpretation for State Parks, would you please let me know what your, what is your interpretation on the significance of oral Hawaiian history? YENT:ItÓs very important. We have a number of references in regards to this Hlualoa district that come from oral traditions. If you look at StokesÓ work in 1906, it came from the informant John Bole. Likewise, Kekahuna and Kelsey used Naluahine and then later Pinihaka. So, I think oral traditions are very important part of what we do know about the site today. ROY:And why would that be? YENT:Again, because oral traditions are how the culture has been passed down traditionally in Hawai`i. The written record, at least for Keolhihi, I believe, begins only in 1823. So to understand how the site was used prior to that time, you need to know what those oral traditions were. ROY:Has the State made diligent effort to link with those oral s resources in our communities in your experience with this property since the beginning? Has the State made effort to connect with oral history, locations and resources? YENT:We did have a proposal to do a formal oral history project. That never did happen. But I would just state that our advisory committee that David Roy was part of in 1981, 1982, many of the people that probably are knowledgeable about Keolonhihi were part of that advisory committee. So I feel like the report that they provided does provide some of that oral history. IÓm not saying itÓs everything but itÓs a start. ROY:And how would you determine their choice to be on that commi were in the department at this time, correct -? YENT:Correct. ROY:When this advisory committee was established. How was that determined? YENT:I wasnÓt involved in the selection. A planner was involved at that time so I was more staff support, so IÓm not real sure I know exactly the details. But my understanding, it was the people who were involved either through the Friends of Kamoa Point or other networks that were active in bringing the site to the StateÓs attention. 91 ROY:So, may I just ask then, was this a place that was generated to the StateÓs attention by the State parties then or the community? YENT:The community. ROY:Thank you. And in December of 1982, in fact, the cultural r management report for the Division of State Parks, Recreation and Historic Sites, worked on and, in fact, was guided by a State advisory committee. If I may read from this report, it further states that ÐAlthough that it has not been sacrosanct since 1820 when Hawaiian State Religion and Kapu were abandoned by royal decree, it must remain sacred to 28 generations of Hawaiian history. It marks the beginning of the Hawaiian dynasty with Paau and Keolonhihi, the beginning of the monarchy with Kamehameha. Its presence must be preserved and improved as a tangible evidence of Hawai`iÓs unique heritage.Ñ This committee brought to light the importance. Would you say this is true? Did this committee bring to light the importance of the entire area as a whole? YENT:I believe so. ROY:And in March 1993, the conceptual plan for the prospective of the Hawaiian community for Keolonhihi State Historical Park written by Mrs. Pua Kanahele prepared for DLNR expresses and I quote: ÐThis large site includes the residence of ali`i wahine Keakealani, MoÒipe Heiau, Hualani Heiau, a burial site, a mahiÒai or planting complex and other significant sites of interest. This mauka site is an integral part of Keolonhihi ma kai and should function as one.Ñ In your interpretation of her words, was she expressing that this complex should be looked at as a whole? YENT:Correct. ROY:In August of 1994, the Draft General Management Plan for Keohihi State Historical Park, DLNR, was prepared. The advisory committee included Mrs. Maile Akimseu, Mr. Thomas Cummings, Mr. David Roy, Mr. Herb Kane, Mr. Al Kolea, Miss Frances Schobel and Mr. Jerry Shimoda. In it it states: ÐDuring the State Land Use District Boundary review conducted by the Office of State Planning in Ó92, itÓs recommended that Keolonhihi be classified from Urban to Conservation and that the Keakealaniwahine complex be reclassified from Ag to Conservation.Ñ Also, in this report, they state: ÐThe unification of these two complexes is integral to the interpretation of the interpretativ Ali`i residence.Ñ Would you state that youÓre familiar with this report? In 1994, this is. YENT:This is the General Management Plan, or youÓre referring to the zone change? ROY:These are comments from, well, made with reference to the Draft General Management Plan. YENT:Okay, yeah. YouÓre talking about the County document as opposed to our State Parks General Management Plan. 92 ROY:I see. Thank you. YENT:ThatÓs why IÓm getting confused. ROY:And pertaining to that and in this report, would you say that those words are true, their recommendation, the unification of these two? YENT:ThatÓs how State Parks is proceeding, the relationship of the two complexes as one. ROY:And yet, initially, this was not the case, is that correct, when you first became acquainted with the property? YENT:Well, the problem is Ali`i Drive has split the, you know, the Hlualoa Royal Center into two complexes. The State purchased the Keolonhihi portion, makai of Ali`i Drive, because that was an existing parcel that the community really wanted to see the State purchase to avoid the proposed development. The same was not true of Keakealaniwahine at the time. ROY:In your acknowledgment of the importance of oral history and thereby definition of this entire site as a whole, what importance would you say is the fact that only part of this was deemed or was purchased and divided, in essence, the parcel knowing that in, oral history has always defended the parcel as a whole? In your words just now, it was, your purchase of the Keolonhihi sector, in fact, at that point, as you were saying earlier, you just, in those early years the State did not acknowledge that this was all part of one complex. IÓll rephrase the question that -. Again, just to confirm that youÓre saying when the State purchased Keolonhihi, that, in fact, you did not know amply of Kaluaokalani, and yet you state that oral history is always important in your task, in your management of the park? YENT:IÓm not quite sure how to answer that except, again, to say that our purchase of Keolonhihi was based on our modern division of parcels, and what was being proposed at that parcel at that time. ItÓs not to say Keakealaniwahine is not important as part of the complex. ItÓs just it was not threatened with development at that point in time and, unfortunately, thatÓs how the State was responding at that period. ROY:Thank you. Thanks for helping me out there. YENT:I hoped I understood. ROY:I want to ask if the State has ever defended this entire property, made action, taken action to defend the entire complex as you know it or as you knew it when you did become knowledgeable of it? YENT:I might just mention, when the Keakealaniwahine parcel was Dillingham Partners, there was a proposal for development; and not so much State Parks at that 93 time as the State Historic Preservation Office started looking at what that development would mean to this very important complex. And there is a 1993 report by the State Historic Preservation Division pushing for the StateÓs acquisition of that parcel as an alternative to a private development. ROY:You spoke of Holly McEldowneyÓs work. Did she ever survey or cause the State to engage in contracting of surveying of sites to delineate the extent of Kaluaokalani? YENT:No, actually, the survey of the Keakealaniwahine was done b landowner prior to the StateÓs acquisition. ROY:And would you say they have expertise in this cultural, the expertise that would be necessary to study same? YENT:Well, it was only a surface survey by archaeologists. It did not involve oral history, it did not involve subsurface archaeological testing. So -. ROY:In your position, how important are those elements? YENT:They are important. The subsurface testing, I guess, knowing that we do have subsurface deposits at Keolonhihi suggest to me that there should be subsurface deposits in the mauka portion of the entire Hlualoa Royal Center as well. ROY:Given the StateÓs responsibility to protect the well-being of history and the integrity of Hawaiian culture, could you comment on the fact that these things were not looked into -. YENT:At Keakealaniwahine? ROY:Or, not looked into, but they were not ordered, in other words, studies, surveys, oral histories and so forth. If youÓd care to comment. YENT:At Keakealaniwahine? ROY:The whole Kaluaokalani. YENT:Well, on our part and with the State, I think Pua KanaheleÓs report was a good first step towards understanding the Hawaiian perspective of the site. Again, it wasnÓt considered an oral history project in the true sense of the word. The research up at Keakealaniwahine was done, I believe, in 1994. And IÓm not saying that there wouldnÓt have been more work done later if that owner wanted to do something more or if they had gone in for a County permit and the County hadnÓt required something more. ROY:In fact, could you get the same interpretation and study information today that you would have amassed from, say, Naluahine Kaopua that you 94 YENT:Could you re-phrase that for me, please? ROY:Would you easily be able to ascertain the level of integrity of information today that the State had received or Hawai`i had received from informants such as Tutu Naluahine Kaopua? YENT:Are you asking about his integrity as an oral informant? ROY:IÓm asking that when you mentioned his name, IÓm asking for understanding of what he brought to the study of these sites and the land. YENT:His information was the basis of the Kekahuna and Kelsey ma understand it. So much of his information is recorded on their maps as well as in their, the reports that they wrote. So I would say his information is critical. You know, weÓre still, through archaeology, through other research, trying to add to whatever he has provided and continue to learn more. ROY:I want to ask you -. For example, today, in fact, are, our oral historians are very precious to us for the reasons of what they hold. IÓm asking you that in even your Ó94 study, was such information available and was it sorted out? YENT:Was this Keakealaniwahine? ROY:Yes. YENT:We did not do that work, so it was not sponsored by the State. ROY:I see. Has it ever been sponsored by the State? YENT:No. I have feeling, in part, it has not been set aside to State Parks. That would necessarily stop us from doing research or starting to plan for including it into the park. But that may be one reason we havenÓt been more active in soliciting funding. ROY:Thank you. YouÓve been very kind to take the time. May I ask you, what is the status, has this site ever been listed on the Historic Register? YENT:Keolonhihi was listed on both the Hawai`i and the National Register in 1983. We will be submitting a nomination this year to register lualoa Royal Center which would include Keolonhihi and Keakealaniwahine. ROY:Thank you, Ms. Yent. GIFFIN:Lester? Oh, IÓm sorry. Excuse me, Lester. IÓm still go Yes, Maile? DAVID:Aloha, Ms. Yent. 95 YENT:Aloha. DAVID:Is it your information that Keakealaniwahine and Keolonhihi was always one complex that included the subject property? YENT:I believe so. DAVID:And although the State, prior testimony states that the State has no funds or youÓve testified that the State has no funds and thatÓs why they havenÓt proceeded with anything or improving the park, the historic park. In your opinion, does that eliminate the StateÓs duty to preserve and protect such a historic site such as this, the fact that they have no funds to do it? Is it your opinion that -? YENT:No, itÓs often used as an excuse but it is still our responsibility. DAVID:Thank you. And you spoke of the efforts to include the Hlualoa complex on the, both the State and National Historic Registers. Can you explain that, how that process works? ItÓs an application that the State has made to include Keakealani or to include the entire historical district as a -? YENT:ItÓs only going to be the State-owned properties. DAVID:Okay. YENT:The Register does need consent from landowners before they will put a property on the register; therefore, IÓm pretty much restricting it only to our State-owned properties at this time. DAVID:And you said that youÓve, the application for that is just being done? YENT:It has been drafted. Unfortunately, the Review Board meeti Hawaii Register is meeting this Saturday; and I was not able to make the deadline, which was I th believe February 12. DAVID:I see. YENT:So IÓve prepared it in preparation for the next meeting, which I believe will be around June. DAVID:I see. So you initially, this application was initially prepared when, that missed the deadline, was it prepared this year or last year, the application? YENT:I initiated it last year. DAVID:I see. 96 YENT:But just to back-step, there was a push to put Keakealaniwahine as part of the Hlualoa District on the register much earlier. It was just a matter of staff time and resources to do it. DAVID:I see. So the intention was to put it on at an earlier point in time? YENT:Yes. DAVID:I see. Thank you. The Historic Register District that you speak, the Hlualoa District, does the district include all of the property in between as a whole, as a district? YENT:No, weÓre only registering the State-owned properties. DAVID:The State-owned properties. But will you, will the, youÓre registering the State-owned, historically, the historic district will be Keakealaniwahine and the historic sites that are not privately-owned, is that my understanding? YENT:Correct. We talk about it as the Keolonhihi complex and the Kekealawahine complex; and together they comprise the Hlualoa 4 District. DAVID:In your opinion, IÓm not sure if youÓre aware of -. I know youÓve done a lot of research into this. But thereÓs an archaeological assessment thatÓs part of this SMA application. And, although I think earlier testimony said itÓs not required, in your opinion, doesnÓt this archaeological assessment contain all the necessary information regarding impacts on cultural and historic resources, an assessment document? YENT:I would have to defer it to the Historic Preservation Division. TheyÓre the ones that make that judgment. DAVID:Thank you. Has the State adopted recommendations of the A Council and that of Pualani Kanakaole Kanahele regarding the significance of Keakealaniwahine and Keolonhihi and their inter-relationship as one complex? YENT:We have addressed her recommendations in the Park General Management Plan that we did in Ó95. DAVID:I see. Were there any other recommendations that the State made for further studies? YENT:In terms of cultural -? DAVID:IÓm sorry, yes. YENT:IÓm trying to remember exactly what was stated in the docum the questions that we had to the Attorney General was, ÐCan we restrict public access to certain 97 portions of the cultural site for sacredness?Ñ And the Attorney General came back and said, ÐThe State cannot do that based on sacredness, although we can do it for resource management.Ñ So that was one of the concerns when we were laying out the facilities for the park, including the pathways. I would say for interpretive purposes, there should be more research, both archaeological/oral history, so that we do interpret the sites correctly and to the best of our ability. DAVID:And these would include interviews with cultural experts and oral historians, cultural historians? YENT:Right. Again, you know, we feel like some of the people ha opportunity for input through the various planning that has been done, but no formal oral history project has been done. DAVID:Thank you. GIFFIN:Now, Lester. ISHADO:Thank you very much. Ms. Yent, I just have a few questio understand you have to catch a flight back to Honolulu. Mr. Vitousek had mentioned the bill thatÓs in the Legislature this year. And he had mentioned, I guess, something a little bit hard to understand, that you basically were told that you cannot support the bill because of its fiscal significance, but, yet, and that you would support the bill in the billÓs intent regarding architectural, archeological cultural significance. Is that basically a fair statement? YENT:We support the intent of the bill in the sense that when we provided our testimony on the SMA or our comments, that we did feel like this, this parcel does provide a crucial land link between the two complexes. But, again, the million dollars that was in the original version of the bill meant we could not support it because the Administration said we could not support bills that had monies involved. ISHADO:Well, the fact of not having the funds, though, that does not change the opinion of State Parks as far as the historical/cultural significance of the subject parcel? YENT:No, it doesnÓt change the fact that we believe itÓs an important parcel. But if the Legislature is not going to give us the resources to acquire the parcel, then it does create limitations for us. And I believe we stated that in our comments on the SMA that, you know, our acquisition of the property would be the ideal situation but we know our resources are limited. So thatÓs why we took a stand of providing some mitigative measu ISHADO:And youÓve also stated the belief of State Parks is that the subject parcel was a land link between the two complexes? YENT:Correct. 98 ISHADO:And you made certain recommendations, and I refer to your letter of July 5, 2002. This is a letter from Daniel Quinn, State Parks Administrator where he makes three recommendations as mitigative measures. His first recommendatio development to single-story construction, require a greater setback, and require a landscaping plan. Is there anything that has happened or been told to you since then that has changed the recommendation of State Parks? YENT:I would say, no. If there are no options for us at this point to acquire the property, we would still stand behind those recommendations. ISHADO:And, also, I believe in one of the letters, either the July 5, 2002 letter or the July 9, 2002 letter, there was a finding, I guess, that the archaeological study was, well, for lack of a better term, incomplete and not addressing the issue of subsurface cultural deposits. YENT:If IÓm not mistaken, that was from the State Historic Preservation Office. I donÓt believe it was in our comments, was it? I know I talked to the State Historic Preservation Division on that issue; and I believe it was going to be their concern that they addressed in their comments. ISHADO:But youÓre not aware of anything thatÓs happened since then to change the mind of the Department of Land and Natural Resources, the Historic Preservation Division? YENT:IÓm not aware of anything, no. ISHADO:Thank you very much. GIFFIN:Officers? Mr. Togashi? TOGASHI:Thank you, Madam Chair. You mentioned this subject property as being a crucial land link, thatÓs the terminology you used. And my question to you would be, the fact that maybe not having this subject property here permanently foreclosed, options on establishing this land link -. Because I know that, I heard that Mr. Vitousek mentioned or you answered Mr. Vitousek in reference to the Pokobo property, that there was also a link being investigated as part of your planning documents. And my question, again, would be, itÓs a rather long-winded question, but would not having this piece of property really foreclose on your options to establish this land link or could other parcels that are located between the two complexes be used as land links? YENT:Maybe if you look at the map, the lower one there on the le subject parcel is in yellow, to the south is the Pokobo property, so they do meet up with Keakealaniwahine to the mauka side of the Blasman property. So, I mean, there are some options there at the Pokobo development company, or whatever their title is, if they would be willing -. TOGASHI:Would this also include the, IÓm sorry, would this also include the Muller piece of property as well which is adjacent to the subject property as another land link? 99 YENT:ThatÓs the little parcel just along -? TOGASHI:The Pokobo and the Muller property is one in the same? YENT:I donÓt believe so. If I could just add. The subject parcel, my concern there, also, is, one of our recommendations for setbacks was the proximity of the development to what I consider one of the most monumental construction features that IÓve seen in Hawaiian archaeology, which is the Pekiha enclosure which is supposed to, or was the residence of Keakealaniwahine. The maps that were included in the SMA, I was not able to tell exactly what the footage was from the subject parcel to the Pekiha enclosure but, to me, it seemed close. And because the subject parcel is on a high ground, I think it just made my concerns a little greater because of the three-story proposed development in such close proximity to this enclosure, that -. These walls are, I mean, they are nine-ten feet high; and itÓs a very impressive feature. TOGASHI:Well, thatÓs fine. IÓm not sure whether you answered the question but -. YENT:Well, no, IÓm -. Okay. In answer to your question, no, itÓs not the only land link available. But, I guess, because itÓs happening at this time, it opened our eyes to that possibility. TOGASHI:Maybe as a follow-up, how big of a land link is, are the planning documents really? Have they identified in terms of parcels or -? YENT:You know, part of our problem is our Park General Management Plan and our EIS were both done prior to Keakealaniwahine being donated to the State. So, in those documents, we talked about the need to acquire Keakealaniwahine but, to be honest, we didnÓt really get into a lot of those issues that youÓre raising about how weÓre going to tie the sites together. So, you know, thatÓs our deficiency, is we didnÓt really think this through perhaps as well as we should. TOGASHI:Okay. Thank you, Madam Chair. GIFFIN:Mr. Torigoe, did you want to enter in something in the record? TORIGOE:Just for the record, the map that Ms. Yent was referring to in her testimony was the Exhibit 2 from the -. What is this, what is that from? VITOUSEK:I think thatÓs Figure 2 from the Archaeological Report. TORIGOE:Yeah, from the Archaeological Assessment in -. VITOUSEK:Exhibit 1. TORIGOE:Exhibit 1. 100 VITOUSEK:Okay, no, not from, so it would be from Site, the Viewp from Exhibit 1. TORIGOE:Okay. GIFFIN:Ms. Springer? SPRINGER:Madam Chair, I just want to check with you. ItÓs 5:15 now. I have about five questions. May I proceed? GIFFIN:I think itÓs really important that we finish this witness. Excuse me, and I donÓt mean to say it in that way but, so that itÓs not necessary for her to have to return on Friday. SPRINGER:Okay. Thank you. Ms. Yent, can you identify for me wh background is. Is it in archaeology, cultural anthropology, history or something else? YENT:My degrees are in archaeology. SPRINGER:Thank you. I inquired of Mr. Mooers earlier the difference between archaeology, history and culture. They seem to be used sometimes interchangeably, sometimes distinctly in Chapter 205. Can you give us your definition of t YENT:IÓm not real familiar with 205, but archaeology are the phy are left on the ground that can include subsurface deposits that will tell you about those surface structures or remains that are left behind. Culture is the belief systems, the traditions, the ideas that are carried through from generation to generation. And these traditions may be reflected in the archaeological sites in terms of how the sites were used, when they were used, who built them. Is there anyone, in history? SPRINGER:History. YENT:History has been a hard one for us, I guess, to deal with because oftentimes weÓll make that distinction between pre-history, being pre-1778, but then when you talk to the Hawaiian people, itÓs like, no, we had a history prior to 1778. So, then you have to think about, you know, written history versus oral history. And, so, I think a lot of us have started to use the word pre-contact, referring to Western contact in 1778, and post-contact because history, pre- and post-history just donÓt seem to make a whole lot of sense. th SPRINGER:Thank you. Do you, as the Division representative, stand by the July 5 written testimony that was submitted on behalf of the Division? YENT:Yes. SPRINGER:By Daniel Quinn? 101 YENT:Yes. SPRINGER:Thank you. Are investigations, whether of archaeology, culture or history, regularly conducted to meet the objectives, policies and guidelines of Chapter 205? YENT:Is this in regards to the SMA or -? SPRINGER:In general and with regard to the SMA is, for example, oral testimony which may be collected informally, are there industry standards that reflect the 205 objectives, polices and guidelines? YENT:IÓm aware of the cultural impact study guidelines that refer to the EIS-EA process; but IÓm afraid IÓm not that familiar with your County g SPRINGER:Okay, and IÓm referring to them again because thatÓs the authority under which these hearings are occurring. As Commissioners, would it be your opinion that we should look for any investigation that is presented to us to meet the objectives, policies and guidelines of 205? YENT:I would think so. SPRINGER:I have one more question. ItÓs a hypothetical. Can you speak to the DivisionÓs possible prioritization of effort, using this example, to acquire property, to make the Kaluaokalani site whole or to plan and develop property already owned? And itÓs a hypothetical. YENT:Yeah, and I was going to say, I canÓt really answer this without being somewhat frustrated, I guess. Because the State Parks Division has basically had to put their priorities towards repairing, maintenance, maintaining parks that we have. And when it comes to new parks, you look at this park we purchased it in 1980, here we are 23 years later and we donÓt have a lot to show for it; likewise, Kealakekua Bay, about the same time period. I donÓt know what the answer is. I know I have talked to some people in the community who are willing to come forth and consider a, something like a management lease where a community group might work with State Parks. They might go out and get grant monies. possibilities. Maybe we donÓt have to just look at State monies. WeÓve been trying to pursue a land exchange in North Kohala for the buffer lands around Mookini heiau and Kamehameha birth site. That has been ten years and nothing has happened. Again, the ceded land issue seems to really stall us on land exchanges. So, you know, I really do believe we do need some connection between these two complexes a ourselves in a very reactionary situation. And thatÓs why I think this project is hard for me to respond to because, you know, I see the potential for it to benefit the park in some way but, yet, you know, we havenÓt really planned for it in terms of getting acquisition money. There has been no park acquisition money since 1992. So, you know, thatÓs just somewhat of a statement of the situation weÓre in, I guess. 102 We were very fortunate with the donation of Keakealaniwahine. If we didnÓt get that as a donation, we probably wouldnÓt have it today. Did I answer it? SPRINGER:Thank you. Yes, maÓam, thank you. GIFFIN:Before we excuse you, I have a few questions. YENT:Sure. GIFFIN:And it goes back to what you were speaking of earlier when Randy was questioning you about the sequence of, for want of, you know, a better word for The Trust and The TrustÓs actions with Mr. Blasman. And if I understood you correctly, The Trust would, via his legal representative or directly with him, deal with Mr. Blasman. The Trust, then, would deal with the State. Is that what I heard, but that Mr. Blasman and the State never once got together and -? YENT:We didnÓt in this case. ThatÓs not to say there couldnÓt be a situation where that did work that way. Trust for Public Lands in this case, you know, weÓve kind of let them take the lead because theyÓve stepped in and, you know, wer our concern had always been Trust for Public Lands, well, they had to feel comfortable on the one hand with the money they were going to pay for the property. The State had warned Trust for Public Lands that we would do our own appraisal and we would only pay our appraisal cost. So Trust for Public Lands didnÓt want to be in a situation where they were going to lose money, where they were putting out more money upfront and the State wasnÓt going to reimburse them that total. So I think thatÓs why we ran into some of this -. GIFFIN:Why didnÓt the State ever negotiate or speak directly to Mr. Blasman? Is it because of the nature of The Trust? YENT:Partly our resources. I mean, we didnÓt have the money, I mean, we, as the State, werenÓt prepared to negotiate directly with Mr. Blasman because we didnÓt have the monies to pursue a purchase. Again, our Land Division was very reluctant to pick it up as a land exchange, so we really didnÓt have too many other options. To be honest, we never really sat down and talked to the County which may be -. GIFFIN:That was going to be my next question. YENT:Should have happened at some point which, I believe, which I believe Glenn Taguchi may have had a meeting with the Mayor recently. But I personally have not met with the County on this project in terms of any options that might be on the table. GIFFIN:So, then, the State did not, if I understood you correctly right now, pursue any discussion with the County either? YENT:No. 103 GIFFIN:Okay. Is it the nature, I donÓt know The Trust at all and what they do. Is it the nature of The Trust to just be a holding company and, so, the amount that they may with the landowner is an amount that they had to feel comfortable about committing to that a buyer will bail them out of, and in this instance, the State. YENT:Basically, theyÓre buying for public purposes so theyÓre looking for National Park Service, State Parks, you know, some other public entity to eventually buy the parcel back from them. The thing, too, is they want it done fairly quickly because land values are going to change and, again, they could end up taking a loss. GIFFIN:Do you know that, whether or not The Trust explored any other avenues of funding besides the State, since you said there are other agencies. YENT:They did talk to the Mayor. Again, IÓm not aware of exactly what was said, but I know they did have meetings with the Mayor. GIFFIN:What about other entities, other agencies, National Park, ta da ta da, whatever? YENT:National Park would not get involved in this case because it is a State park already. But, like Trust For Public Lands just completed with a project with the National Park down at PuÓu Honua O Honaunau where they purchased the property. So I know they do a track record with the National Park. GIFFIN:Okay. On behalf of all of us -. TOGASHI:Madam Chairman? GIFFIN:Mr. Togashi? TOGASHI:May I ask just one more question? GIFFIN:Sure. TOGASHI:You mentioned, if I heard correctly, that, and your statement was, because of the existence of subsurface deposits in Keolonhihi, that you believe that there are subsurface deposits in the subject property? You believe or the -? YENT:I believe thereÓs the potential for subsurface deposits in the mauka area. I know this subject parcel has had bulldozing in the past. You know, just my response as an archaeologist would be put in a couple of test bits and just verify it. I mean, I donÓt think itÓs a huge -. TOGASHI:And that was my question because early on today Mr. Vito mentioned, made a statement that, and I believe the statement was that it would be unreasonable for the developer to go to the extent of doing these test borings on the subject property. And as 104 someone who is, I guess, trained in the filed of archeology and whose background is in archaeology, do you feel, in your opinion is, would that be unreasonable for the developer to undertake test bores of sub-? YENT:Well, if I might, maybe, I know youÓre going to be talking archaeologist and maybe you could ask him what kind of cost factor -. To be honest, I donÓt see a lot of the contract archaeology proposals in terms of how much they budget for various types of activities. And, again, how many -. TOGASHI:So youÓre mentioning itÓs probably some kind of a cost benefit analysis that has to be done -? YENT:My guess is thatÓs how theyÓre probably proceeding. Part of the concern is the cost factor, but if I could IÓll defer that to the archaeologist. TOGASHI:I see. Thank you very much. GIFFIN:Hannah? SPRINGER:No. GIFFIN:Okay. VITOUSEK:Excuse me. GIFFIN:Mr. Vitousek? VITOUSEK:Yeah. Ms. Yent, I think the question that I asked you was relative to the statement in the July 9, 2002 letter from Don Hibbard that suggested that thereÓs a need to conduct systematic test excavations. Did you see any distinction between systematic test excavations and making a couple of test holes, which is what youÓre referring to? YENT:When they say systematic I would guess they want to put those test units where perhaps thereÓs no house now where thereÓs less likelihood of disturbance. Again, that wasnÓt, you know, my response; so IÓm not quite sure what they m VITOUSEK:So you didnÓt suggest systematic test excavations throughout the property? YENT:ThatÓs the State Historic Preservation Committee. VITOUSEK:Okay. And then thereÓs one other question I want to as the map over there? GIFFIN:Sure. 105 VITOUSEK:Ms.Yent, you talked about this property providing a crucial land link between the Keakealaniwahine area and the Keolonhihi area, is that correct? YENT:IÓm not sure if I said crucial. VITOUSEK:Okay. YENT:But it does provide a land link, yes. VITOUSEK:So what about these houses here? ThereÓs four houses located here. TheyÓre also intervening between the subject property and Keolonhihi. Would you have to acquire those as well? YENT:In Pualani KaneheleÓs report, she did recommend acquiring those four parcels. I guess my only reservation at this point is the State does not normally pursue the acquisition of house lots where thereÓs obviously, you know, a house and people are living there. I think in this subject parcel, there was a discussion these houses are old, they were going to be demolished, so, maybe thatÓs why we were thinking of this a little differently than we would a normal houselot. VITOUSEK:But my question was, if you acquired this property, that still would not provide a link to State-owned property, isnÓt that correct? Because arenÓt there still other privately-owned properties in between -? YENT:There are. VITOUSEK:These properties? So it would not link the two, is that correct? YENT:No, it would. Because if you look at Hlualoa 4 as the entire complex or the entire Royal Center, at one point in time, it provides that link. I agree, it may not, you know, in terms of how you would get park visitors from one complex to the other. You still have to deal with Ali`i Drive no matter where you are. So, but I think the elevation of that parcel and the proximity to Pakiha, you know, again, it sparked, I think, an awareness in our minds that, you know, maybe this parcel did have something to add to the complex VITOUSEK:Let me ask that question in another way. Does any part of the subject property abut on the parcel which is owned by the State where the Keolonhihi complex is? YENT:No, no parcel would because of Ali`i Drive. VITOUSEK:Is there any portion of this property where immediately across Ali`i Drive to the property would connect to the Keolonhihi complex? YENT:Not presently. 106 VITOUSEK:So, in other words, there would still be private properties in between this property and Keolonhihi, is that correct? YENT:Correct. VITOUSEK:I have no further question. ROY:Ms. Giffin, IÓm sorry. GIFFIN:Mikahala? ROY:Thank you very much. Does not the Ala Kahakai belong to the State, that which is the base of Ali`i Drive? YENT:IÓm not sure. Is that considered the Ala Kahakai? GIFFIN:Where? YENT:I know, historically, on the maps it shows, you know, a very old road but IÓm not sure about the Ala Kahakai. ROY:Thank you. In light of the fact that the State has not moved forward to purchase, as you very honestly speak in terms of your testimony today, Mrs. Yent, would this not, would the carriage of this site or such sites not be, and, this is a hypothetical question, not be better handled in another department of the State, if you can answer that, rather than State Parks? YENT:There have been discussions whether OHA might potentially be a better entity. Is that what you mean? ROY:Thanks. And the second prong of that question is, how do yo department view the role of community non-profits in terms of management for such properties? YENT:We do have examples of that already occurring in our Park System. ROY:Would you say thatÓs favorable in that regard, your departmentÓs view of same? YENT:Again, just realizing the StateÓs resources and our ability to generate new positions to actually, you know, operate a historical park in this area, a management raises a very feasible alternative. ROY:Thank you very much. Thank you. GIFFIN:Parties, any more questions? Lester? 107 ISHADO:Just for information. Just so that you know that I did talk to the parties and we are in agreement to have Mayor Kim testify -. GIFFIN:No. May I, excuse me for just a minute. May I excuse this witness until we get into that? Mr. Vitousek, sheÓs your witness. Is there anything else you want her to do? VITOUSEK:No. I think I need to note that she did produce a number of documents, you know, pursuant to the subpoena that she has brought with her and that we havenÓt had a real opportunity to go through page by page. So what IÓm going to ask is that you make arrangements for a court reporter to make copies of the documents and then we can go through it and make offerings into evidence as that may be appropriate. So, but IÓll arrange that with her. But I also just want to tell her that so she doesnÓt leave before I have a chance to talk to her. GIFFIN:With that said, then I think you are excused and thank you very much for coming. She is going to be their last testifier that weÓre going to hear today. And then when we reconvene on Friday, weÓll start with Paul Bleck Òcause he was No. 3 in your sequence. VITOUSEK:Yes, yes. GIFFIN:I asked Mr. Torigoe if we could convene earlier on Friday and he said, no, because the notice of 9 oÓclock. So we will reconvene back here on Friday morning at 9 oÓclock. And before we recess, Lester, would you like to make your announ ISHADO:Yes, IÓd just like to confirm that, you know, I did talk to the parties and the parties are in agreement that on Friday at 11 oÓclock, weÓre going to set up a phone conference with Mayor Kim so he can testify by phone. GIFFIN:Mr. Torigoe has asked me to ask you, whoÓs getting the phone? ISHADO:WeÓll have to check with Planning on that. GIFFIN:Okay, any other questions? All right, then -. ISHADO:Thank you very much. GIFFIN:YouÓre welcome. We are in recess until Friday at 9 oÓclo VITIOUSEK:Oh, could I -? GIFFIN:Mr. Vitousek? VITOUSEK:Yeah, one more question. Is there any chance we could try to have another hearing early next week or is that, another day or -? How are weÓre going to go about figuring out another day here? GIFFIN:Oh, I thought that the parties were going to meet -. 108 DAVID:We were going to discuss it amongst ourselves and -. GIFFIN:And have some sort of consensus, the three of us? VITOUSEK:Okay. WeÓll try to do that, then. Thank you, but I guess -. GIFFIN:And the three of us were going to meet as well to -. VITOUSEK:Yeah, as we do that, can we try to look for an early date? ThatÓs all IÓm asking. SPRINGER:Early in the month? VITOUSEKPardon? SPRINGER:Early in the month? VITOUSEK:As soon as possible. GIFFIN:Well, the only reservation we have is the problem of notice. VITOUSEK:Is it do the full public notice on a continued hearing? I didnÓt know that was required. GIFFIN:Norman? HAYASHI:Yes. GIFFIN:Did you hear Mr. VitousekÓs question? HAYASHI:No, I -. GIFFIN:ItÓs addressed to you. VITOUSEK:You have to do the full public notice on a continued hearing? I thought that if the hearing was scheduled, it could be continued -. HAYASHI:ThatÓs correct. ItÓs my understanding that we will need to publicize. GIFFIN:Yeah, but do we need that time is what heÓs asking. VITOUSEK:May I ask that we look into that. I thought, my understanding was that we could, if itÓs a continued hearing, in other words if a hearing continues from day-to-day, I thought that by announcing the date, time of the subsequent hearing that the added duly noticed hearing, the continued hearing can proceed. 109 TORIGOE:I can look into that. VITOUSEK:Thank you. GIFFIN:Okay. Thank you. See you all Friday, 9 oÓclock here. The discussion ended that 6:12 p.m. Respectfully submitted, Sharon M. Nomura, Secretary A T T E S T: Geraldine M. Giffin, Presiding Officer 110