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HomeMy WebLinkAbout2005-04-01 TVURICH PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT APRIL 1, 2004 A regularly advertised hearing on the application of JOHN AND JEANNE VURICH was called to order at 3:06 p.m. in the County Building, Councilroom - (SPP 04-017) Room 201, 25 Aupuni Street, Hilo, Hawaii, with Second Vice-Chairman Hannah Springer presiding. PRESENT:Hannah Springer ABSENT & EXCUSED: Fred Galdones C. Kimo Alameda Bill Graham Andrew Iwashita Jeffrey McCall Allen Salavea Rene€Siracusa Rodney Watanabe Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately 16 people from the public in attendance. APPLICANTS: JOHN AND JEANNE VURICH (SPP 04-017) Special Permit to allow the establishment of a self-storage facility with perimeter chain link fencing and landscaping on one acre of land situated in the State Land Use Agricultural District. The property is located at the northwestern corner of Kaloli Drive th and 14 Avenue, and adjacent to the existing JJ‹s Self Storage facility, Hawaiian Paradise Park Subdivision, Keaau, Puna, Hawaii, TMK: 1-5-46:120. SPRINGER:We€re now on Agenda Item 7, the Applicants are John and Jeanne Vurich (SPP 04-017), a Special Permit to allow the establishment of a self-storage facility with perimeter chain link fencing and landscaping on one acre of land situated in the State Land Use Agricultural District. The property is located at the northwestern corner th of Kaloli Drive and 14Avenue,andadjacenttotheexistingJJ€sSelfStoragefacility, Hawaiian Paradise Park Subdivision, Keaau, Puna, HawaiŸi, TMK: 1-5-46:120. HAYASHI:Madam Chair and Commissioners, going to the presentation map, thisistheoverallsite,locationmapforthisparticularsubdivision,whichistheHawaiian Paradise Park Subdivision. This would be the makai orientation and this would be EXHIBIT G mauka, down. The Pahoa Road is located at this general, oh, further down. This would be Kaloli Road that hooks up to the Pahoa Highway, Keaau-Pahoa Highway. The subject th property is indicated at this red dot. It is at the corner of 14 Avenue and Kaloli Drive. The entire Paradise Park Subdivision is within the State Land Use Agricultural District. th The Vurichs also owns another property which is situated at the 13 Avenue and Kaloli Drive intersection which they had established a Special, excuse me, their current self- storage facility; and that is this particular property. That was granted by Special Permit granted to the, by the Planning Commission back in, I believe, 2001, excuse me, 1998; and that was Special Permit No. 1015; and that was also to establish the property for self- storage facilities. There are four buildings on the existing property. The Vurichs would like now to utilize the abutting property for the expansion of their self-storage facility. They are proposing to construct four additional buildings. Initially, they would construct the first two buildings, excuse me, these two buildings as shaded in yellow and, subsequently, in the second, in the future would construct the additional two buildings that are shaded in orange. Access for this proposed facility will be taken from the existing driveway access off of th 13 Avenue. The current operations are, hours of operation for this particular facility is 8 a.m. to 6 p.m. daily and there are currently, and there would be no employees on the premises except that the maintenance security person would be frequenting the facility over a period of time. The closest dwelling is located two lots away and that would be also th along 14 Avenue. There are numerous letters in opposition to this particular request, as well as Petitions that were submitted by some individuals. Concerns were also expressed by the Hawaiian Paradise Park Owners Association relative to this particular facility or proposed facility. We had received two Petitions for Standing in a Contested Case Hearing. One is from a Mr. James Schneider, and Mr. Schneider€s property would be the one that is two lots away from the subject property. We also had another request from John and Sarah Harlan whose property is located at this particular location which is over 500 feet from the property, so approximately 600 to 700 feet from the property. The Applicant had requested that this particular hearing be continued; however, as far as thestaffisconcerned,wewouldliketoatleasthavetheCommissiondecideonthe Petition for Standing, if possible, today. Are there any questions at this time? SPRINGER:Commissioners? Commissioner Siracusa. SIRACUSA:Just a question about the map itself. Norman, could you tell me whythelotsacrossthestreetareinadarkgreencolor? 2 HAYASHI:Oh, okay. These are currently larger 20-acre lots owned by, I believe, the Watumull Corporation; and these properties are shaded the darker green colors. From a zoning standpoint, these are designated Open, the zoning for those properties are Open. These other residential, excuse me, one-acre lots are zoned Agricultural 1-acre by the County. SIRACUSA:Second question. Does the Paradise, does Paradise Park have a Community Development Plan on file with the Planning Department? HAYASHI:Yes, we do have a Master Plan that was adopted by resolution by the County Council, as well as the County Planning Commission. SIRACUSA:And if we voted to defer this, would we be able to see anything for the next meeting that€s in the plan that would reference this issue, I mean, how the CommunityDevelopmentPlanrelatestotherequest? HAYASHI:Yes,wecanprovideyoucopiesoftheapplicablesectionsofthe Master Plan relative to the Paradise Park. ALAMEDA:Madam Chair? Question for Norman. SPRINGER:Commissioner Alameda? ALAMEDA:How many parties are requesting for standing? HAYASHI:There are two parties that requested for standing. ALAMEDA:Okay. And it€s our role now, you€re asking us if we would take upon those two parties separately or together? HAYASHI:To take it separately. ALAMEDA:Okay. Thank you. SPRINGER:Commissioner McCall? MCCALL:Norman, before we get into the Requests for Standing, there€s been, some of the correspondence we have on the Request for Standing is talking about, I think, the Harlans€ distance from this thing being more than 500 feet. In Requests for Standing, there€s no rule about distance that the property needs to be? It€s only, I think as far as I understand it€s only, are they, is there need or, I forget what the word is, interest distinguishable from the general public, is that correct? HAYASHI:That€s correct. There€s no distance requirement. 3 MCCALL:Okay. I think the 500-foot distance was, if I recall, was just for notification purposes. HAYASHI:Yes. MCCALL:Okay. Thank you. HAYASHI:Just to let you know, initially the law firm of Carlsmith Ball sent the correspondence indicating that they would be the legal counsel for the Vurichs. However, we just received a recent correspondence from Mr. Lim indicating that they no longer will be representing the Vurichs on this particular issue. SPRINGER:Thank you, Mr. Hayashi. Commissioner Siracusa? SIRACUSA:Isthattheinstanceofareasonfortherequesttoextendonthis,to defer, so that they can acquire another representative? HAYASHI:I don€t know if that€s the reason for the request. The letter that they submitted to us was that, they indicated that they would like to see the full body as far as Planning Commission on board before they continued with the hearing. SPRINGER:Norman, what is the date of that correspondence to us? HAYASHI:From? SPRINGER:The Vurichs regarding a possible deferral? I don€t recall having seen that. HAYASHI:It was a recent correspondence. I don€t know if that was made available to the Planning Commission. SPRINGER:Yeah, I certainly have not received the copy; andlooking at my fellow Commissioners it doesn€t appear as though that has yet been circulated to us. I€d like to take a 5-minute recess at this time just so I can organize my thoughts for how we€re going to proceed through this matter. If there are no objections, I€d like to recess the HawaiŸi County Planning Commission for 5 minutes, please? RECESSEDThe Chair called a short recess at 3:16 p.m. RECONVENEDThe meeting reconvened at 3:23 p.m. SPRINGER:The Hawaii County Planning Commission will now come backtoorder.ThankyoufellowCommissionersandmembersforallowingmetoreview some of the background materials and get my thoughts in order for this section on this agendaitem.WehavereceivedwrittenRequeststoIntervene,andthisshallbetakenup at the first meeting on this matter, which is where we are now. We shall hold a hearing 4 upon that Request to Intervene. The movant shall demonstrate that: 1) His or her interest is clearly distinguishable from that of the general public; or 2) Government agencies whose jurisdiction includes the land involved in the subject request; or 3) That they have some property interest in the land or lawfully reside on the land; or 4) That even though they do not have an interest different than the public generally, that the proposed action will cause them actual or threatened injury in fact; or 5) Persons who are descendants of Native Hawaiians who inhabited in the Hawaiian Islands prior to 1778, who practiced those rights which are customarily and traditionally exercised for subsistence, cultural or religious purposes.‚ And these are the criteria that we€ll consider when we consider admitting anyone as a party. So, having read that, we have before us two Petitions for Standing. One was submitted by John and Sarah Harlan of Lake Oswego, Oregon; and the other was submitted by Mr. James Schneider. Do we all have those Petitions before us? ALAMEDA:Madam Chair, where€s Mr. Schneider from? SPRINGER:HawaiŸi, and he is in the room, I believe. IWASHITA:Madam Chair, which petition or request are we considering first? SPRINGER:Let me call and see if, are the Harlans in the room? And Mr. Schneider? SCHNEIDER:The Harlans have asked that I speak for them. SPRINGER:Thank you, sir. And Mr. Schneider was not at the podium but he did indicate to us that the Harlans, who have also submitted an application for a Petition for Standing in a Contested Case Hearing, have authorized him to testify on their behalf. So, perhaps, we should take up the Schneider€s first. Commissioners, do you have those documents before you? At this time, I€d like to invite the, Mr. James Larry Schneider to come forward, please. Mr. Schneider, we€ll start by swearing you in. Do you swear or affirm to tell the truth on this matter now before the HawaiŸi County Planning Commission? SCHNEIDER:I do. SPRINGER:Could you please state your name, your residence address and speak directly into the microphone and proceed. SCHNEIDER:My name James Larry Schneider. I am referred to as Larry. My th address, resident address is 15-1515 14StreetinHawaiianParadisePark;andmy mailing address is Post Office Box 520, Keaau. 5 SPRINGER:Mr. Schneider, we have your Petition for Standing in this contested case hearing before us now. Can you please explain to us how your interest is clearly distinguishable from that of the general public? SCHNEIDER:My property is 125 feet away from the proposal, the proposed expansion. It is also, from the corner of my lot, 125 feet away from the original storage facility. And I feel that the closeness of these proposed commercial facilities have a definite impact on my property value insofar as it is my major source of equity; and I do not wish to see it degraded by having more commercial facilities next door to me or within one lot, I€m sorry, within one lot of me. SPRINGER:Thank you, Mr. Schneider. Mr. Torigoe, do you have any additional citations that you might share with us to help us evaluate Mr. Schneider€s concern? TORIGOE:Only that you may want to refer to the rule that the Chairperson hasbeenreferringto,whichisyourRule4-7,Paragraph(b).It€salistofthosefive categories of basis for standing as a party. And the Chairperson was referring to (b) 1), which is that His or her interest is clearly distinguishable from that of the general public.‚ The other one that seems that might be applicable is No. 4, That even though they do not have an interest different from the public generally, that the proposed action would cause an actual them threatened injury in fact.‚ Also, just, again, that is the Petitioner€s burden to show that they do have standing. Generally speaking, looking at some of the recent HawaiŸi Supreme Court decisions, the Supreme Court has recognized that things such as diminished property values, deterioration of air equality, even aesthetic and environmental injuries, these can be the basis of standing; but you have to take each one, each case on its individual facts. And, so, you need to, you know, if you have any questions about the extent of the impacts, then you should be asking questions like that of the applicant. SPRINGER:Commissioner Siracusa? SIRACUSA:One question of Mr. Torigoe and then a question of the testifier. Would viewplanes be included in the impacts you€re talking about, Mr. Torigoe? TORIGOE:I would say that to the extent that there is some kind of substantial aesthetic harm, that you could take that into account. SIRACUSA:Okay. Zeroing right in on that one, can you see the current storage facility from your home or any part of your property? SCHNEIDER:Definitely from parts of my property. I could see it in its entirety from my upstairs lanai on the back of my home. However, I planted numerous plants, particularly areca palms, which I planted close together and, which has obscured most of the view of the current facility. But there are places from my bedroom window where I can see it, there are places walking around in the yard where I can see it. I have 6 photographs, and I believe I€ve sent some to the Commission and the Planning Department, which gives certain views of the properties in question. SIRACUSA:Yes, and I believe that we have those. SCHNEIDER:Yes. SIRACUSA:So, do you feel that the viewplane issue is one of the ways in which you have a special interest in this? SCHNEIDER:I certainly do feel that way. SIRACUSA:I mean, in your, that your interest differs from that of the general public? SCHNEIDER:Exactly. SIRACUSA:Okay. Thank you. SPRINGER:Commissioner Graham, and then Iwashita. GRAHAM:Mr. Schneider, I just want to kind of broach a subject in a sense of being helpful and not representative of the Planning Commission or anything like that. But I€m just thinking like probably your motivation is you don€t like this proposal and so you€d like to see it turned down by the Commission. And my, the direction I€m thinking in is like is the Contested Case Hearing process a worthwhile vehicle for you to undertake towards that objective; and, Mr. Torigoe, I€m sure could give you the, little details about what might be advantageous to you. But, essentially, it is a lot of extra work for you and for the Applicant, not too much extra work for us cause generally we have a Hearings Officer hear it and then it comes back to us for final decision. And so, to me, whether it€s objectionable or not, this is a relatively straight-forward kind of application so that the whole process of, you know, cross examining witnesses, and long testimonies and things like that that can take place in Contested Case Hearings might be, you know, less applicable to this particular application. So I€m just sort of bringing all this up in the sense of like I don€t know if you thought in depth or not about whether it is really worth it to you to do a Contested Case Hearing, because it may or may not be, you know, highly advantageous to you to do it. I don€t know the answers to those. But I just wanted kind of broach the subject to get you thinking about it. And if you wanted to ask the Corporation Counsel, or I could ask him about what are your advantages, you know, legally or procedurally with us, we can certainly do that. But I just wanted to bring that forward as something that occurred to me, so I wanted to bring it to you. SCHNEIDER:Well, I have given it quite a bit of thought, as a matter of fact. I€ve been concerned ever since 1998 with the building of four large 100-foot long, 30-foot wide buildings on a single acre in Paradise Park when, generally, we have a single-family residence. We all know that it€s zoned agriculture and we all know that approximately 7 2,500 or more lots have single-family residences on them and they€re not devoted to agriculture. There are about 10 percent of those built-up lots that are devoted to agriculture. There€s a few scattered churches, schools and a smattering of, I think, unapproved or perhaps approved businesses within the Park. My problem is that not only is it going to affect me personally but once the Commission has started down the road of approving commercial facilities in an area that is not designated for commercial usage, that it will just continue. This is an excellent example of how it happens. It gets approved one time and then in comes another request for another one to make another exception to put a commercial facility in a non-commercially zoned area. Now, in €98, I did not object to the first building of the facility, the current facility. And why? I did receive the letter from their lawyer which said that they were requesting a Special Permit to have a storage facility; and I took that to mean, dumb me, but I took that to mean a building, not four, which it turned out to be four. Well, by the time they builtfourofthem,itwasn€talldoneatonetime,itwastoolateformetocomedownand say, hey, wait a minute, you know. It was my own fault for being na³ve and believing the correspondence I received from their lawyer which said a‚ storage facility. I have learned my lesson and that€s why I€m here today. I€m here to object to the continued commercialization. I€m here to object to what is going to do to the value of my property. It is a very, very ugly facility, aesthetically. I have what I think is a very beautiful home, well-maintained and well-landscaped; and I would hope that the surrounding properties would be similar. There€s a home being built right next door to me on the Hilo side of my street, which is coming in right now, and a very nice job is being done of it. I just do not want to see, however, the logic used by the Planning Commission back in €98 when they overrode the recommendation of the Planning Department who said don€t let it happen. The Commission overrode them and granted approval; and now they€re coming in and asking for yet another approval. And I see no reason to grant it. I see no reason to allow this kind of expansion to continue. Therefore, I have requested a special hearing. And I would be more than willing to go to it and to ask for witnesses to come forward, and to present various issues, which I think need to be addressed. GRAHAM:Thank you. SPRINGER:Commissioner Iwashita? IWASHITA:Madam Chair, I have a clarification. One of the elements for standing includes an interest in property, in the property at issue. And in Paradise Park it€s my understanding, and I don€t know if it€s a matter of record on how it€s dealt with with the Commission, but all owners in Paradise Park have an interest in all of the roadways in Paradise Park, which is part of the issue that we€re dealing with this access and so forth. So, I€m just questioning whether or not, it appears to me that each owner in Paradise Park has an interest in the roads that they all share together to get to their properties, so whether if that€s sufficient interest in the property at issue here to basically have a clear path to a standing determination. 8 SPRINGER:Director Yuen? YUEN:Well, it€s upto the Commission to decide whether the individual in question€s interests are different enough from that of the general public to grant standing. The fact that a person may have some additional financial burden as a member of the, as the person that pays into a road maintenance fund is a factor that you could consider. You have to, also, but standing by itself, that would seem, in this particular case, to be a rather small factor, frankly. Because the additional amount that the Road Maintenance Corporation will have to pay for this, you€re probably talking a few dollars a year at the most. I don€t know what the total that they pay now is, but this would be a very slight increase. If it does increase or cause a burden on the roads, it€s shared among, you know, 9,000 owners. It€s a very slight burden to an individual owner. IWASHITA:Iguessmyreadingoftherulesand,wouldbethateachclaimto standing, the five that are listed, stands on its own. So if there€s an interest in, if it can be said that the undivided interest in the road equals, and in each owner€s deed has basically that undivided interest in the road now -. So if it can be said that by our proceeding we€re considering that interest as part of the application, then an owner in Paradise Park has standing just on that one separate status as owning an interest in the property, you know, collectively with the other 9,000 owners but they still own an interest in that. The th proprietary interest is the, that 1/9,000 Tenant-in-Common interest in the land, that€s owned jointly by all those people, right? SPRINGER:That wouldmake them distinguishable from the rest of the public. IWASHITA:No, it€s different. That€s the first criteria. You can have standing by having a distinguishable, an interest distinguishable from the rest of the community; but a separate claim for standing is, I have an interest in the property that€s at issue before the Commission.‚ And -. YUEN:But the, they€re not asking for a Special Permit for the use of the road. They€re asking for a Special Permit for the use of the privately-owned lots. IWASHITA:I understand. It€s just, my, you know, maybe it€s just, cause it€s a title kind of issue. Part of the interest in owning the land, because this is not an access on apublichighway,thisisaccessonaprivateroadownedby9,000ownersthatendsup hooking up to a public highway. The interest in the land, this one acre, includes this th undividedone8959 interest, or whatever it is, in the road; and that€s all a bundle of rights together. SPRINGER:And while that€s an interestingpoint, I€m not sure that that€s the onethatthePetitionerismaking. SCHNEIDER:No.ButoneofthereasonsthatIhaveaskedforthespecial hearing is so that numerous issues can be addressed, one of which is the road safety 9 problem. Our roads, as he has mentioned, are owned by all of the lot owners; and if th there€s an accident, and there€s just one waiting to happen on the corner of 13 and Kaloli, if and when there is an accident, then the homeowners are the ones who are going to end up having to pay through the insurance. And, so, there are, those are the kinds of issues that I think need to be addressed; and that€s why I€ve asked for a special hearing. There€s more, this is only one of many. SPRINGER:Thank you, sir. Commissioner Watanabe, did you have a comment? WATANABE:No, that€s all right. I think we kind of moved on -. SPRINGER:Okay. Other Commissioners? We€re still, we€ve now evaluating the request by Mr. Schneider for standing. SIRACUSA:While I understand Commissioner Iwashita€s points, it seems to methatMr.Schneiderhasmuchbetterargumentsinfavorofhavinganinterestthat differs from that of the general public, and that we don€t need to go quite as much of a stretch as, you know, one€s undivided interest in the roads in Paradise Park. I think because of his proximity, and his viewplanes, and issues like that, I think, it seems to me, and I will be voting accordingly, that he definitely would qualify to have standing. SPRINGER:Thank you, Commissioner. Is there any further discussion as we move towards a motion? Commissioner Graham? GRAHAM:Generally, I think we ask the Applicant if he objects and all before we do a motion on standing? TORIGOE:Yes. SPRINGER:Then if the Applicant could come forward, please. Hi. VURICH:My name is John Vurich. SPRINGER:Could you raise your right hand, please? VURICH:Okay. SPRINGER:Do you swear or affirm to tell the truth on this matter now before the HawaiŸi County Planning Commission? VURICH:I do. SPRINGER:Thank you, sir. Now, if you could give us your name and your address into the record, please? 10 VURICH:My name is John Vurich. I own JJ€s Self Storage with my wife, Jeanne. We live at 13-1152 Kahakai Street, right now, even though we have a residence in the Park. It was damaged by a storm. And we€re staying out of the house right now. That€s the address that we, we both -. We get our mail at another address in the Park, that doesn€t make any difference, I guess, for this. SPRINGER:Thank you, sir. You€ve heard the, of the application by Mr. Schneider, a Petition for Standing in a Contested Case Hearing on your application. You€ve heard the discussions by the Commissioners on the matter. Do you have any comments to make regarding this application, Petition for Standing in a Contested Case? VURICH:Well, yes, I have a couple. First of all, I did contact, by telephone, Mr. Schneider, and I thought we had a very amicable conversation about how to resolve it between us, and what his issues were, and what we could do. We did this before the firstscheduledmeetingandleftwithagoodnote.Andheaskedformyphonenumberso that we could continue the conversation. The first meeting got postponed so before the second meeting I did call him again and, unfortunately, he was tied up at the time doing some yard work or something; and I asked him to give me a call, we never got together after that, until just before the second postponement and, or just after the second postponement. And then called him, again, I think it was about the second week in March and wasn€t able to get through to him; but I left a message to ask to call me and see if we could resolve the issues. His issues at the time of our first meeting were primarily what he€s saying he doesn€t want the development to continue in the Park and all that. And the second one was during the development in the preparation of the site, it€s not a, it€s crushing land, it€s not real pretty, and he didn€t like it. And there€s a fence around the area. Until the vegetation grows up, it€s not very pretty. And, in fact, our existing facilities still has some areas that the vegetation hasn€t grown up to make a green fence to cover the chain link, but it€s getting there. We talked about some possibilities to improve it, such as painting the fence black, along with the barbed wire on the top. We agreed that was a good idea; and we kind of left it at that and we never got any further. I want to make one more comment. And that€s that during 2002 and 2003, I was the vice president of the Owners Association of Hawaiian Paradise Park; and I had two major agendas for being there; and that was improvement and safety of the roads, the first primary one. In January of 2003, I got a unanimous resolution passed by the Board to pave all the intersections for safety. Because there are stop lights at all the, stop signs at all intersections and they€re dirt roads; and when you try to stop on a dirt road into a stop sign, you can slide through it. We have agreed with the Commission€s findings, as far as things we have to do and that€s, we€re willing to pave the road, even though, again, the Association was supposed to have done that as a top priority to their paving funds. They didn€t do that, and to this day they have not paved one intersection. They have paved the roads all the way to some of the previous directors€ houses. I resigned from the Board in 2003 because of that, the heat I was getting for my constituents on why this happened. And I still think the roads 11 are for safety, and I€m willing to pave our driveway. Now this isthe first time anybody ever asked me to pave, up to, from the highway up to it for safety purposes. I don€t want to talk too long and I lose track of time,but that€s basically where I€m coming from. We€re doing our best to work with the neighbors, we€ve triedto call and talk. We did have a good talk, but it ended; and now here we are. I also, one more thing, I had two items. One was safety in the roads. The second was commerce in the Park. We were fortunate to be probably the first commercial-approved unit for the Park. We now get five phone calls a day with a full building and nobody knows where to go. Call any self storage place in town, they€re all full. That€s why we wanted to expand. It€s very hard to turn down people. I was definitely trying to do the best of all this on the Board to get industry into the Park forthePark,samepurposethatGarySafariktalkedaboutthismorning.Idon€tlike driving 20 miles to get a sack of groceries, and that€s what has to happen, or gas tank, or whatever. So I€m still for that. And, I mean, yes, I can understand people do not want growth. In talking to Mr. Schneider, he also mentioned, the gentleman who sent two letters to our, to you folks against the thing, and that was the lot in between us, he had that lot on the market. At the time he wrote those letters he stated that he was going to be living on it and this was an inconvenience to him; and learning from Mr. Schneider, he sold it for $50,000, which is many more times than he paid for it. And the argument of losing property values because we€re here, that€s the lot next door to us. So, I guess I€ll shut up. Thank you. SPRINGER:Mr. Vurich, and also for the Commissioners, what our focus now is Mr. Schneider€s Request for Standing, not the merit of the application or any of the particulars of it. So if we can return our focus to Mr. Schneider€s Petition for Standing in the Contested Case Hearing. Are those your comments? VURICH:My comments are it€s not adversely affecting his property value. We€ve been there 4-1/2 years, we never had a complaint. I don€t know how to say it. He€s saying, we€re also right across from the industrial park, as you€re well aware. It has been zoned. At the time of our first permit, there was nowhere to go in the entire Park; and we chose a lot across from the industrial park on purpose to be a buffer because we don€t make noise, we don€t have barking dogs -. SPRINGER:Mr. Vurich, again, if we can focus our comments on the Petition for Standing rather than your circumstances. VURICH:Okay. Yeah. My primary one was his comment that it€s affecting his property values, and I€m saying I disagree. SPRINGER:Thank you, sir. Commissioners -. ALAMEDA:I have a question. 12 SPRINGER:Commissioner Alameda? ALAMEDA:This is more, I guess, directly -. Would you have a problem taking this, your arguments to a different level, you know, to a level of having a hearing officer and having witnesses, and do you have a problem with that, or are you okay with that? VURICH:Well, I hate to have to go to that level. We were represented by, we probably will have to be again, and it€s very costly, it€s very time-consuming. I was hoping the Corporation Counsel would go into it more detail, but our attorneys did. And we€ll do it if we have to, with or without an attorney, finances permitting, that it is abig procedure. I would prefer, as I tried to do it, on a neighbor-to-neighbor basis; but ifit doesn€t work that way, I guess we have to. ALAMEDA:Okay.Thankyou,sir. SPRINGER:Youcanstaythere,Mr.Schneider,ifyouwould.Imean,sorry, Mr. Vurich. Mr. Schneider, you€ve heard the Applicant€s comments regarding a meeting between yourself and him. Do you have any response to that? Is that a possibility if we were to continue this matter for another meeting? Might you folks meet away from a Contested Case Hearing, or would you like us to proceed with our consideration of your Petition? SCHNEIDER:Well, I did talk to Mr. Vurich at least twice; and I have indicated to him my opposition. When he inquired as to what he could do, I made some suggestions. As he said, painting the fence black. My fence is black so you don€t see it when you€re viewing it through the viewplane. But I don€t have three rolls of barbed wire on top; and I find that ugly. It looks like a concentration camp facility, and I don€t think it belongs in a residential neighborhood. SPRINGER:So, Mr. Schneider, would you prefer us to continue our discussion on your Petition for Standing? SCHNEIDER:Yes, ma€am. SPRINGER:Thank you, sir. Commissioners, there we have it. We€ve heard both from the Petitioner for Standing as well as for the Applicant in this matter. Do we have any more discussion to have before we have a motion on the Petition on Standing by Mr. James Larry Schneider? ALAMEDA:Madam Chair. SPRINGER:Commissioner Alameda. 13 ALAMEDA:Just real quick for the Applicant and Mr. Vurich. Basically, what will happen, if we grant standing, it€llgo to hearing and then the hearing officer will, you know, discuss it between both of you and then come back, come with a recommendation; then we review, and we can agree with the recommendation or not. So no matter what it€ll come back to this Commission, correct? SPRINGER:That€s correct. Other Commissioners, any questions on process or other matters? IWASHITA:I€d just like a clarification from Mr. -. SPRINGER:Commissioner Iwashita? IWASHITA:From the Applicant. So am I understanding you correctly that you don€tobjecttothisrequestforahearing,aseparatecontestedhearing? VURICH:Thatiscorrect.I€dprefernottohavetogothatwaybutifwehave to, I don€t object to it happening. I will continue through. IWASHITA:Thank you. SPRINGER:Thank you, sir. Commissioner Siracusa? SIRACUSA:Yes, regarding process. As I recall, there are two ways we can go on a Contested Case Hearing. We can take it out to a hearings officer or we can decide to hear it ourselves, is that correct? SPRINGER:That€s correct. First -. SIRACUSA:So we would still have to make that decision? SPRINGER:First we would take up the matter -. SIRACUSA:Firstly, we take up whether Mr. Schneider has standing, is that -? SPRINGER:First we take up the matter of his standing, and then whether or not to outsource, or hear it by the panel as a whole, or some portion thereof. SIRACUSA:Okay. That confirms what I was thinking. Thank you. SPRINGER:Good. You€re welcome. Commissioners, any further discussion? Okay. Our motion then is order on, a motion then is in order on the Petition for Standing in a Contested Case Hearing by James Larry Schneider. WATANABE:I€d be happy to make a motion. 14 SPRINGER:Please, Commissioner Watanabe. WATANABE:Yeah, I€d like to move that we acknowledge Mr. Schneider€s standing in this matter. SPRINGER:Mr. Torigoe, is that sufficient language? TORIGOE:Yeah, I think it€s clear. Basically you€re you saying you€re making a motion to grant standing as a party in a Contested Case? WATANABE:Grant them standing, right, exactly. IWASHITA:Second. SPRINGER:Thankyou,both.Andthat€sasecondbyCommissionerIwashita. Is there any discussion on this matter? Mr. Hayashi, we€re ready for a vote. HAYASHI:Commissioner Watanabe? WATANABE:Aye. HAYASHI:Commissioner Iwashita? IWASHITA:Aye. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Salavea? SALAVEA:Aye. HAYASHI:Commissioner Siracusa? SIRACUSA:Aye. HAYASHI:Commissioner Alameda? ALAMEDA:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Chair Springer? 15 SPRINGER:Yes. HAYASHI:Madam Chair, motion carries. Mr. Schneider has been granted standing. SPRINGER:Thank you. Now we take up the matter that Commissioner Siracusa drew our attention to. The matter of hearing the Contested Case may either be done by us as a full panel, or some portion of us, or it may be outsourced. Commissioners, any discussion on this matter? Commissioner Graham? GRAHAM:Commissioner Springer, I know the prior meeting where we were dealing with the Parker School, we had a little bit of a convoluted situation going where we had two applications. And where I€m aiming with this is I don€t know whether it€s propertodotheotherpartybeforewedecidehowwehandthemoutincasethere€sany kind of way to merge or, and stuff like that. So -. SPRINGER:Okay, thank you, Commissioner Graham. Let€s inquire then of Mr. Torigoe if we should consider granting the Harlan party, their Petition for Standing, and then proceed to either outsource, or take care of the matter ourselves, or if we should handle them one at a time. TORIGOE:I don€t think it really makes a difference. There may be some linear economy to be had in dealing with both questions of standing first, and then seeing if you want to farm them out. Because essentially it€s only one application, unlike the Parker School thing where you had two separate things going on but which had some related facts. So you probably, you know, even if you have two parties that you grant standing, you basically would just have one hearing. SPRINGER:Okay. Commissioners, having heard the Deputy Corporation Counsel€s response, how would we like to proceed? We€d like to take up the matter of John and Sarah Harlan€s Petition for Standing? WATANABE:Yeah -. SPRINGER:Commissioner Watanabe? WATANABE:In actuality, I would prefer to do that, especially since those people do not reside here, and I don€t know if that would present some other logistic problems, and if that in turn would create additional burdens for the Applicant of the, what is that, the Special Permit. SPRINGER:The Petitioner. Okay. Thank you for that, Commissioner Watanabe. Commissioner Iwashita? 16 IWASHITA:Yes. I guess, did I understand the early representation that you also are representing the Harlans? SCHNEIDER:They asked me to, yes, sir. IWASHITA:Okay. So,Madam Chair, is it appropriate perhaps ask Mr. Schneider, as a representative of the Harlans as to whether or not they continue to wish to proceed with their request or not, since we already are going to have a Contested Case Hearing? SPRINGER:Please proceed. IWASHITA:Mr. Schneider, you understand that the Commission has granted you standing to proceed with the Contested Case Hearing. So given that understanding, isit,theissuethatwe€rediscussingnowiswhetherornotweshouldhaveafurther hearing on the Harlans€ request for a Contested Case Hearing. And since you€re representing the Harlans, I wanted to ask you whether or not you think the, on behalf of the Harlans we should go ahead with that or they would just forego, we€ll have just one hearing on your Petition? SCHNEIDER:I have a feeling that the Harlans would be more than willing to go along, sort of on my coattails, rather than having a Contested Case Hearing for themselves. They do live in Oregon, they have indicated that it€s very, very difficult for them to be here on a specific date, simply because past experience has been that the meetings get cancelled like the day or two days before they€re scheduled to be held, and that puts them in a very awkward position. They did forward to the Planning Department and the Commission nine copies of their reasons why they felt they should have standing. But, frankly, it might be too late at this point, but they would probably like to have the $100 back since I have been granted standing. SPRINGER:Mr. Schneider, then do I understand you correctly that where you have been granted standing, they may withdraw their Petition for Standing and perhaps come in as a witness or participate in some other fashion? SCHNEIDER:Yes, ma€am. SPRINGER:Thank you. Commissioners, any questions for Mr. Schneider? I thought I saw a hand. Commissioner McCall? MCCALL:Yeah, I guess, either to Mr. Schneider or just to the rest of the Commission, my concerns with this is that, you know, we have been told by Mr. Schneider that he represents the Harlans but we don€t have anything per se in writing about this. And I would be much more comfortable with our looking at the Harlans€ Petition if they, if we, for instance, grant them standing, they can at a later point appoint Mr. Schneider to represent them, or they could go together if they€re going to hire a lawyer, or whatever. But I would prefer that we look at this. Since the Petition is in 17 order, we have not been asked by the Harlans to remove it, that we should look at it on its own merits and then they can decide on their own later since it€ll be basically a one-on- one situation anyway that they can decide how they want to proceed with the case later. So -. SPRINGER:Thank you, Commissioner McCall. Mr. Schneider, do you have any objection to that course of action proposed by the Commissioner? SCHNEIDER:Not really. I do have an e-mail; but, of course, e-mail is being e-mail, you know, I don€t know where that stands in a legal sense. But I do have an e-mail wherein they€ve indicated that, they€re talking about sending in this written testimony, and to all of the persons who received the Objection,‚ from their lawyer. instead, we merely have to have you as our authorized representative present at the March 3 hearing in order that all questions relative to the request may be clarified.€‚ So, ineffect,youknow,butIdonothaveapieceofpaperspecificallyauthorizingme,other than their request that I do it, an e-mail request. SPRINGER:Commissioners, we€ve heard Commissioner McCall€s concerns. Do you have comments on that? Commissioner Siracusa, then Graham. SIRACUSA:Would it be out of line for me to request that Mr. Schneider pass that e-mail along to staff and have staff run off copies for us so that we have a copy, at least until such time as a proper affidavit or other type of legal document from the Harlans could be presented to us, so we have something to cover us in the meantime? SPRINGER:Is there staff here? Norman, can we have that done -. I don€t think Commissioner Siracusa wants it, you don€t want it immediately, do you or -? SIRACUSA:No, it doesn€t have to be immediately, no. SPRINGER:Okay. Thank you. SIRACUSA:Actually, I think just one copy for the file, for the records. SPRINGER:Thank you. Commissioner Graham? GRAHAM:I certainly concur with all that Commissioner McCall said, so I feel like we can move forward in that vein; and I also had a question for the Corporation Counsel. Since the Harlans€ residence is not quite as close as Mr. Schneider€s, I do recall from Contested Case Hearings by other bodies from years past that once the Contested Case had been granted, the body who was granting, I don€t recall, you know, exactly what this was but they couched their language in the acceptance of other parties that they feel that it would add to the record and be beneficial to the hearing of the matter and such things as that. So I€m wondering if it is of any lesser standard necessary to admit a second party than if it were the only party being admitted. 18 TORIGOE:I don€t see any lessening of the standard in your rules and I don€t know off the top of my head of any, you know, case law that would legitimate that kind of consideration. So that€s not something that I would encourage you to do it at this point. GRAHAM:Thank you. SPRINGER:Other Commissioners? Any discussion at this point? We€re still treating the Harlans€ request, their Petition for Standing in a Contested Case Hearing, as a live application or an active application before us. IWASHITA:So, then, would Mr. Schneider be presenting evidence to support that request? SPRINGER:Mr.Schneider,doyouhaveanythingmoretopresenttousin addition to their written comments? SCHNEIDER:No. Just the written comments. SPRINGER:And that includes that 9-point correspondence that you referred to previously? SCHNEIDER:Yes. It€s their letter, I believe, dated February 16, 2005. SPRINGER:Commissioners, do you have that before you to refer to? thth SCHNEIDER:Actually, it€s February 18. I€m sorry, it was the February 18 letter. SPRINGER:Commissioners, do we, what discussion do we have then on the Petition for Standing in a Contested Case Hearing by John and Sarah Harlan? And we th have before us their February 18 written correspondence, as well as the hard copy of this e-mail that Sharon Nomura is circulating presently. ALAMEDA:Madam Chair? SPRINGER:Commissioner Alameda? ALAMEDA:Are we now deliberating whether or not to make a motion for Mr. and Mrs. Harlan€s standing? SPRINGER:We€re evaluating whether or not they meet the criteria that we have for standing. It seems to me that their primary concern is as nearby residence that there€sthe,astheysayintheirpetition,thisvisualeyesorewillbedetrimentaltothe value of our property.‚ 19 ALAMEDA:Okay. SPRINGER:Commissioner McCall? MCCALL:Yeah. In general, I don€t see a whole lot of difference between our acceptance of Mr. Schneider€s Petition for Standing and the Harlans€. I mean, there€s a few hundred feet of difference in their distance. But if they have a perceived devaluation of their property, I, if it€s appropriate, I would move at this point to accept their Petition for Standing. SIRACUSA:Second. SPRINGER:Thank you. It has been moved by Commissioner McCall and secondedbyCommissionerSiracusathatweacceptthePetitionforStandingfromJohn and Sarah Harlan in the Contested Case Hearing on Special Permit 04-017. Is there any discussion on the motion? Seeing none -. HAYASHI:Roll call. Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Siracusa? SIRACUSA:Aye. HAYASHI:Commissioner Watanabe? WATANABE:Aye. HAYASHI:Commissioner Alameda? ALAMEDA:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Commissioner Iwashita? IWASHITA:Nay. HAYASHI:Commissioner Salavea? SALAVEA:Aye. 20 HAYASHI:Chair Springer? SPRINGER:Yes. SPRINGER:Mr. Vurich, we were in decision-making. I saw you raising your hand, but once we call for the vote to be taken, we proceed with that. You had a comment, sir? VURICH:I€m sorry, I thought you were voting on giving him, I wantedto object on him. I thought you were voting on his position for standing, and I didn€t get a chance to object to it. SPRINGER:Thank you, Mr. Vurich. Corporation Counsel is advising me that I did err in proceeding with the vote. So I would ask the Planning Commissioners and CorporationCounselhowwecanamendthis.Canwehaveamotiontoreconsider? TORIGOE:Yes,amotiontoreconsider. SPRINGER:Ifwecouldhaveamotionthentoreconsidertheactiontaken,we can take action on that and then give Mr. Vurich the opportunity to voice his objection. GRAHAM:My only question to Corporation Counsel is should we maybe take his testimony, and then one of us agree to makeamotion to reconsider thereafter and see whether that motion fails or not, or do we need to do the motion first? TORIGOE:Well, you know, at this point, I think it€s clear that we should have allowed him to rebut. And, so, I€d recommend that you go ahead and have a motion to reconsider; and I€d recommend that you pass that motion and give him a chance to present his position. SPRINGER:Thank you. MCCALL:As the maker of the original motion, I would be happy to -. Is it rescind my motion or -? SPRINGER:Move to reconsider. TORIGOE:Move to reconsider. MCCALL:Make a motion to reconsider. I€m not sure what I€m reconsidering, I mean -. SPRINGER:The action previously taken. MCCALL:Reconsider my action. Okay. 21 SIRACUSA:As the seconder, I will second. SPRINGER:Thank you. We have a motion before us to reconsider the action previously taken. Is there any discussion on that? HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Siracusa? SIRACUSA:Aye. HAYASHI:Commissioner Watanabe? WATANABE:Aye. HAYASHI:Commissioner Alameda? ALAMEDA:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Commissioner Iwashita? IWASHITA:Aye. HAYASHI:Commissioner Salavia? SALAVIA:Aye. HAYASHI:Chair Springer? SPRINGER:Yes. HAYASHI:Motion to reconsider the action, previous action, granted. SPRINGER:My apologies to you, Mr. Vurich. You may have the floor. VURICH:Okay. First, if I may, I€d like to ask the Planning Director a question, and that€s concerning who can have standing. Can anyone or is there a 500- foot, or 600-foot, or 1000-foot area? Cananyoneon this island have standing in, or, Petition for Standing on the same -. Hawaiian Paradise Park is very large. And anybody from, what you just said whether it€s 100feet, or 500 feet, or two miles, it simply says to 22 me that that€s grounds. But Mr. Harlan is giving, because he€s outside an area, that€s grounds that anybody can give standing to any action with not only within Hawaiian Paradise Park but anywhere else on the island. Is there, is there some kind of limit to where standing ends? Is it 10 lots down, is it 5 lots down? I was under the impression there was a 500-foot area. Is that, and my question to you is is that really true or not? YUEN:No, and this was asked earlier. There isn€t a set distance for standing. There is a set distance for people to receive notice. But an individual that can show that they€re affected by this in a way that€s different from the general public can be granted standing by the Planning Commission; so that€s really the question before the Planning Commission. Now, if somebody said that it, theywere, they should have standing because it affected their view and they lived two miles away, and it didn€t affect their view, then the Commission can take that into account and vote to deny standing. But there is no set distance limit. VURICH:So is it view, then, is that what the -? I€m trying to get to the bottomofwhat,howthislotcanhavestandingoveralotamileawaythathasasecond story deck who can look down on anybody€s back yard, including our facility. SPRINGER:Sir, we€re basing our discussion on those applications that came forward to us. If an individual in the circumstances that you described came forward with a petition, then we€d evaluate that petition as well as the others. VURICH:Okay. I guess, I€m just objecting to a lot that far away having standing and something with -. I mean, if you have to evaluate, what if you got 20 requests or 100 requests, you€re going to go through all that because they€re all different circumstances and further away? Okay. I rest. That€s all I want to say, I object. SPRINGER:Okay. Commissioners, we€ve heard the Applicant€s objection to this Petition for Standing as compared to the Schneider€s Request for Standing. Do we have any questions of the Applicant, having heard his comments? Do we have any questions for Mr. Schneider as the Harlans€ representative? WATANABE: Madam Chair? SPRINGER:Excuse me, Commissioner Watanabe? WATANABE:I realize it€s only 500 feet or whatever, but with regard to viewplane and the Harlans€ lot, how much of it may be affected? SCHNEIDER:The Harlans€ viewplane, to my knowledge, would not actually be affected -. WATANABE:By his proposed or existing? 23 SCHNEIDER:By his proposed -. It would only be because they drive by toget to their lot. They would see it every time they drove down Kaloli Boulevard or Drive to the th 13 Street, which is where their lot is located. And I think if you read the content of their letter, it is the visual impact of the facility that bothers them. Their 500-foot thing, Mr. Yuen has commented on it. The corner of their lot is four lots from the road and the lots are 125 feet wide. So they€re 500-foot, feet from the road, and the only thing there is the road and his facility. So it€s 500-and-some odd feet away from the corner of their lot, you know, give or take 60 feet, the width of Kaloli Drive or whatever it is. SPRINGER:Commissioner Siracusa? SIRACUSA:It seems to me that whether or not the Harlans are granted standing, there is going to be a Contested Case anyway. And it really wouldn€t make any kind of a difference as to whether Mr. Vurich was facing, Virich? SCHNEIDER:Vurich, thank you. SIRACUSA:Vurich, was facing one Intervenor, or two, or three, or whatever, because the issues would still be the same; and it would still be just one hearing. Is that correct, Ivan? TORIGOE:Well, no, you know, you have to bear in mind that if, basically, therewouldbeonehearingbuteverypartywillhaveanopportunitytocallwitnessesand participate as a full, you know, Contested Case party. And, so, it may make a difference. The number of parties, it may make a difference in the length of the hearing, the number of witnesses called -. SIRACUSA:But if the Harlans are going to allow Mr. Schneider to be their agent and representative, then he would be asking the questions anyway. TORIGOE:Well, there is that possibility. SPRINGER:Other Commissioners, questions or comments? Commissioner Graham? GRAHAM:I€d just like to hear from Commissioner Iwashita, because I think this was all kind of a top decision for us and I know he voted different than the majority, so I€m sure he has good reasons. So I wish he could just share with us any thoughts he might have that we haven€t brought up already. IWASHITA:The burden is on the Harlans to establish that they€ve met one of the criteria for establishing standing under the rule; and, basically, as Mr. Schneider has indicated, there are basically two points they€re making. One is they have to drive by this and they don€t like what they see. That€s not a basis for standing. That€s basically the same as any person in the general public, you know, that€s the same problem with any person of the general public could have. So the only other possible basis that I see is the, 24 that the proposed action will cause an actual or threatened injury in fact.‚ I don€t like the way that€s worded but that€s what it says; and I don€t think that there€sa record sufficient to show that for the Harlans. SPRINGER:Thank you. Commissioners? Commissioner McCall? MCCALL:Yeah. I guess on these types of situations, I guess my vote has always tended to be to grant standing rather than not if I€m in question of it, simply by the fact that I€d rather allow people to have their, you know, their day in court or their right, you know, rather than trample on them and then allow them to, also, allow them to take it to a -. If they feel that we erred in this, it allows them to take it to a higher court, or to court if they feel their rights have not been addressed. So my tendency on this, while I do agree with Mr. Iwashita that their, they do not, they€re -. It€s a little more gray in their area, but my tendency and my thoughts would be to make a motion to grant them standinganywayand,becauseofwhattheirperceptionthatthey-.TomeI€dfeel,ifthey perceive that they have a distinguishable, something that distinguishes them from the general public, then that€s good enough for me. SPRINGER:Thank you, Commissioner. And, of course, any petitioner whose petition is denied does have the opportunity for appeal, should they choose that. With regard to meeting the burden of proof of injury, say, or financial hardship, we haven€t asked for comparative land values at this stage. Is that something we shouldn€t be looking at or, Planning Director? YUEN:It€s a really hard thing to prove, and you have to really look at it more on the common sense basis. It€s very difficult for people to prove a loss of property value from a neighboring business. So it€s really, this is really up to the judgment of the Planning Commission. And if you, using your common sense and knowledge of what people like and don€t like, feel that there may be harm to this individual€s property values, then that would be grounds for finding standing. SPRINGER:Thank you, Director Yuen. IWASHITA:Madam Chair, I have a question. SPRINGER:Commissioner Iwashita? IWASHITA:I have a question for you, Counsel. What is the standard of review for our decision on this issue, abuse of discretion? TORIGOE:I don€t have a specific case that deals with that in front of me. And, off the top of my head, you know, I think that it€ll probably end up being an abuse of discretion or clearly an erroneous type of a decision. So, basically, that means that as long as you have a reasonable basis for what you€re doing and it€s consistent with law, it probably would stand in court. 25 IWASHITA:Thank you. SPRINGER:Commissioners? Commissioner McCall? MCCALL:If there€s no other discussion, I€ll renew my motion to accept the Harlans in the Petition for a Contested Case. SIRACUSA:Second. SPRINGER:Thank you. It has been moved by Commissioner McCall and seconded by Commissioner Siracusa that the Petition for Standing in the Contested Case Hearing on Special Permit 04-017 be granted to John and Sarah Harlan. Is there any discussion on this matter? Seeing none, Mr. Hayashi, we€re ready for the roll call vote. HAYASHI:CommissionerMcCall? MCCALL:Aye. HAYASHI:CommissionerSiracusa? SIRACUSA:Aye. HAYASHI:Commissioner Watanabe? WATANABE:Aye. HAYASHI:Commissioner Alameda? ALAMEDA:Nay. HAYASHI:Commissioner Graham? GRAHAM:No. HAYASHI:Commissioner Iwashita? IWASHITA:No. HAYASHI:Commissioner Salavea? SALAVEA:Aye. HAYASHI:Chair Springer? SPRINGER:Yes. 26 HAYASHI:Madam Chair, motion carries withfive ayes and three noes. SPRINGER:Thank you. We€re now on the matter of how the Contested Case will be handled. At this time, Mr. Torigoe, this is a matter for the Planning Commission to decide. Do the Applicant and the Petitioner remain at the table through this discussion? TORIGOE:You can call on them. They may have some input. SPRINGER:Okay. Thank you. So if you can stay with us through this portion of our deliberations. Now comes that matter of whether or not we will hear the Contested Case ourselves or outsource it to a hearings officer. At this time I€d like to, before we go into discussion, ask the Planning Director if there are sufficient funds in the County coffer to be considering outsourcing. YUEN:Yes, there are. SPRINGER:Thank you. Okay. Commissioners? ALAMEDA:Madam Chair? I€ll be in favor of outsourcing. SPRINGER:Is that a motion? ALAMEDA:Not yet. I€m just wondering if my colleagues -. SPRINGER:Commissioner Siracusa? SIRACUSA:Well, having been through at least one case where we heard the Contested Case ourselves and one where there was a hearings officer who presented it to us, it seemed to me that it was really more expeditious for us to hear it ourselves because otherwise we have to go through the whole thing all over again anyway when the hearing officer is reporting, and it€s like going through the whole thing twice. So it seems to me a lot more efficient, besides cost-effective, for us to hear it ourselves. SPRINGER:Thank you, Commissioner Siracusa. Other members, right now we have one in favor of outsourcing and one in favor of handling the matter ourselves. Further discussion? IWASHITA:Madam Chair? SPRINGER:Commissioner Iwashita. IWASHITA:Yes. I just have a question about whether or not it€s common practice for a hearings officer to do a site visit on a case like this? YUEN:I think it€s pretty common. 27 IWASHITA:Thank you. SPRINGER:You€re welcome. Deputy Corporation Counsel Torigoe draws to my attention that how thick our dockets are also should be taken into consideration when we€re considering hearing it ourselves. If we have an already thick docket,it may not be any more expeditious. So, I guess,Ishould ask Norman, at this point, what do our Hilo dockets look like for the next couple of months? Like today, we€re hearing 12 cases. HAYASHI:I believe we have right now probably four applications. SPRINGER:For Hilo at our next meeting? HAYASHI:Yes. SPRINGER:And does that include the, no, that€s not till June. Thank you. ALAMEDA:Madam Chair, question? SPRINGER:Proceed. ALAMEDA:If we were to hear it ourselves then that means we€ll also hear, as with the hearings officers, witnesses and the whole thing. See, so in my mind that wouldn€t make it similar to us hearing it ourselves as if we would every other applicant. That would mean a little bit more intense, intensity. So that€s why I would still be in favor of outsourcing. SPRINGER:Thank you, Commissioner Alameda. Commissioner McCall? MCCALL:Yeah, in general, I am in favor of outsourcing. Maybe in the limited experience I€ve had with hearing them, my thoughts would be, I mean, this would be in my opinion a relatively, the issues are not that complex here. I don€t see that we€d be seeing that much, you know, expert testimony on different features. So I could see this being done in-house. But I do also see that this would be, if we are to do this in- house, I think it would take the better part of a day, you know, perhaps, you know, hopefully, we could get it done in a 6- or 8-hour day. But I wouldn€t think it would, it€s not something that we could deliberate and hear all the testimony and finish up in an hour or two, that€s not reality. So in my opinion, while I would be accepting of our hearing it ourselves, I would be more in favor of having a hearings officer hear it and then give us his report, and then we make a decision on that. SPRINGER:Thanks, Commissioner McCall. At this time, I€d like to ask the Applicant, did I hear correctly that you€ll be retaining counsel at this point? 28 VURICH:We€re not certain yet. We have unexpectedmedical expense right now and, that€s why we are present. Our previous counsel is now on an advisory basis with us but wejustcan€t, we don€t know what we€re going to do yet. Thank you. SPRINGER:Okay. Mr. Schneider, do you anticipate having legal representation? SCHNEIDER:No, I do not. SPRINGER:Okay. Thank you. Mr. Torigoe, maybe you can explain that to the panel and the applicants this matter of simplification of procedure. TORIGOE:Right. Just very briefly, you should both get copies of the Planning Commission Rule 4, which spells out the Contested Case procedures. Among thoseproceduresareprovisionsthatyou,theparties,canagreetosimplifyprocedures. So, you know, that€s something that you both, if you want to not have to hire counsel and you have some ideas of how you€d like to make a simplified hearing, and you can agree to that, that will work also. SPRINGER:And, Mr. Torigoe, that could occur whether or not this panel hears it or outsource it? TORIGOE:That€s correct. SPRINGER:Thank you. I don€t believe any of us, or the majority of us have not sat as hearings officers. Could you sketch out for us, Mr. Torigoe, what that would involve if the Planning Commission did take that up as a hearings officer? TORIGOE:Sure. Very briefly, that would entail a trial-like procedure; but, again, the parties can agree to a simplified procedure. It would generally involve the making of some opening arguments or statements, presentation of witnesses, cross- examine of witnesses, presentation of exhibits and other documentary evidence. Then the answering of any questions from the Commission, and some closing arguments perhaps, and then a decision-making. There could also be some written briefing of certain issues if the Commission deems that necessary. But, again, it€s basically, you know, a trial-like kind of a proceeding that can be simplified as well. SALAVEA:Madam Chair? SPRINGER:Commissioner Salavea? SALAVEA:Just to clarify. This would, the Contested Hearing, if the Applicant and Intervenors would agree, they would all, all three parties would have to agree to the simplified version, right? TORIGOE:That€s correct. 29 SALAVEA:So if, and my question is if one party chooses to bring legal counsel, then it wouldn€t be, that wouldn€t be possible? TORIGOE:Well, counsel itself would not necessitate, you know, a really formal procedure. Counsel can also be part of that agreement. SPRINGER:Commissioner Watanabe? WATANABE:Well, but I think he brings up a good point because, you know, we€ve now granted standing to the people in Oregon and yet we don€t know whether they would agree to a lower standard. So we would have to actually wait for that, then, decision or -? TORIGOE:Right.Well,atthispointwe€renotreallyatthepointofsettingout what the procedure will be. At this point we€re just trying to decide whether you€re going to take it as a Commission as a whole or if you€re going to farm it out to a hearings officer. WATANABE:I understand. But, I guess, what I€m getting at is if they€re going to agree to something that is simplified, then we might be more apt to hear it on our own. But, if not, then I€m not sure that we qualify even, even if we wanted to hear it on our own. TORIGOE:No, you would. WATANABE:We would be? TORIGOE:Yeah, you would be. Yeah, the Commission has heard Contested Case Hearings in the past and, you know, the Planning Director and myself would help the Chairperson -. WATANABE:Guide us through? TORIGOE:Yeah. WATANABE:Oh, okay, okay, because -. SPRINGER:Mr. Torigoe, from a process standpoint, in the pre-trial meetings, who would represent the Planning Commission? TORIGOE:If there€s necessity for the Planning Commission to represent, I would do that. SPRINGER:Thank you. In case the Commissioners were wondering if we had to come together as a body to participate in the pre-trial meetings? 30 TORIGOE:Normally, those kinds of things can be handled by the presiding officer. SPRINGER:The presiding officer? TORIGOE:Which normally, if the Commission is going to hold the Contested Case Hearing, normally it would be the Chairperson. SPRINGER:Thank you. TORIGOE:But not necessarily. ALAMEDA:Madam Chair? SPRINGER:Thank you. Commissioner Alameda? ALAMEDA:If my fellow Commissioners have no other comments, I€m ready to makeamotiontooutsource. SPRINGER:Isthereanyfurtherdiscussion?Wecanalsomakeadiscussion under the discussion part of the motion. Commissioner Alameda? ALAMEDA:I€d like to make a motion that, in regard to this application, that we outsource for standing. WATANABE:Second. SPRINGER:It has been moved by Commissioner Alameda andseconded by Commissioner Watanabe that in the matter of Special Permit 04-017 the role of, that we will outsource for a hearings officer and that hiring will be done in accordance with all the County hiring practices. Discussion? Norman? IWASHITA:This applies to both contested matters, I mean, both parties that we€ve granted standing to. SPRINGER:Thank you, Commissioner Iwashita. Do we need to express in the motion that it is our intention to combine these two? TORIGOE:Well, it doesn€t hurt to clarify that. Was that the intent of the motion? ALAMEDA:The motion, that is the intent of the motion, to combine these two and to outsource. SPRINGER:Is that sufficient, Mr. Torigoe? 31 TORIGOE:Yeah. And as I said, basically, there€s one application here, and so it really should be just one hearing. SPRINGER:Thank you. Is there any further discussion or need for clarification on the part of the Planning Commissioners? Thank you. Norman? HAYASHI:CommissionerAlameda? ALAMEDA:Aye. HAYASHI:Commissioner Watanabe? WATANABE:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Commissioner Iwashita? IWASHITA:Aye. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Salavea? SALAVEA:Aye. HAYASHI:Commissioner Siracusa? SIRACUSA:Aye. HAYASHI:And Chair Springer? SPRINGER:Yes. HAYASHI:Motion carries. SPRINGER:Thank you. Mr. Director or Mr. Torigoe, how then does notification to the Applicant and to the Petitioners proceed? 32 TORIGOE:At this point I think you would be issuing notice,awritten notice, of what happened today and then the Planning Director would proceed with procuring a hearings officer; and that person would take it from there. SPRINGER:Thank you. Please feel free to call the Planning Department with any process questions, should you have. But as it has been explainedto us, you will be notified of today€s action, as well as the process for setting up meeting schedules. PAWU:Is that atthat time that we would decide if we could use an expedited process or -? TORIGOE:You can talk about that right now outside the door if you want and start making -. PAWU:Isee.Allright.Thankyouverymuch SPRINGER:Okay.Thankyou,CommissionerMcCall,goodafternoon.I€m sorry, Commissioner Graham? GRAHAM:Just wondering if there€s any public testimony on this item before we move on. SPRINGER:There are, thank you, Commissioner Graham. In addition to James Schneider and John Vurich, from whom we€ve heard, there€s Joyce Adkins? PAWU:She left. SPRINGER:Who has left; and she was the only other person who had signed up for public testimony. Is there anyone from amongst the public who would like to give testimony on this matter? Seeing none, thank you -. Oh, ma€am? If you can just find your way to a seat, and if one of the gentlemen can pass a microphone to you. First I€ll swear you in. Could you raise your right hand? Do you swear or affirm to tell the truth on this matter now before the Hawai€i County Planning Commission? LUNDQUIST:Yes, I do. SPRINGER:If you could please give us your name, your resident address -. LUNDQUIST:Marlene Lundquist, 15-1558 Kaloli. SPRINGER:Thank you. You may proceed. LUNDQUIST:I just wanted to speak as a resident of Kaloli. When we first saw John put the storage areas up, I must say that I didn€t think they were pretty. But after going back-and-forth on Kaloli, we finally got used to the looks of them. I would like to see a solution made between these two people because I know John has put a lot of work 33 into his storage place. And if there was any way of beautifying it, maybe that€s not possible, but maybe if it could be beautified where it€d be easier on the eye, maybe our gentleman neighbor here would be a little happier with it. As far as living on Kaloli, I don€t have any objection to what€s gone up. Thank you. SPRINGER:Thank you, ma€am. Are there any questions for the testifier? Thank you for joining with us. Thank you, gentlemen, also. The discussion ended at 4:44 p.m. Respectfully submitted, Sharon M. Nomura, East Hawai Secretary 34