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HomeMy WebLinkAbout2006-04-07 TAinaloa PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT APRIL 7, 2006 A regularly advertised hearing on the application filed by AINALOA DEVELOPMENT was called to order at 2:38 p.m. in the County Building, CORPORATION (USE 106) Councilroom - Room 201, 25 Aupuni Street, Hilo, Hawaii with Chairman C. Kimo Alameda presiding. PRESENT:C. Kimo AlamedaABSENT & EXCUSED: Allen Salavea Fred Galdones Bill Graham AndrewIwashita Jeffrey McCall 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 28 people from the public in attendance. APPLICANT: AINALOA DEVELOPMENT CORPORATION (USE 106) Further proceedings on remand from appeal to the Third Circuit Court from Planning Commission€s decision dated November 15, 2004, for consideration and possible approval of proposed settlement of the appeal, including amendment of condition nos. 7 (improvements to Ainaloa Boulevard) and 9 (community benefit assessments) of Use Permit No. 106 (development of an 18-hole golf course and related improvements), with executive session, as needed. ALAMEDA:Let€s take up Agenda Item No. 5, Unfinished Business. Application Ainaloa Development Corporation. I€ll let the staff give us an intro on this particular agenda item. So, Norman, whenever you€re ready. Staff? HAYASHI:Thank you, Mr. Chair, Members of the Commission. Back in the early 1990s, the Applicant, Ainaloa Development Corporation, requested a Special Permit to allow the establishment of a golf clubhouse on the property, the subject property, which is indicated by this red dot, as well as some related recreational activities. At the same time, the Applicant submitted a request for a Use Permit to allow an 18-hole golf course on 200 acres of land. EXHIBIT D Just as a matter of orientation as to location of the property, I have this map upside down to make it consistent with that particular map. ALAMEDA:Okay. HAYASHI:Anyway, this is the Keaau-Pahoa Road, also referred to as Highway 130. This is going towards Pahoa, and this would be in the Keaau direction. This particular blue-shaded area is the Orchidland Subdivision, which we discussed as part of the General Plan. Hawaiian Paradise Park is located here, across the street, and some of the lots along the mauka side of the highway. The Ainaloa Subdivision is located in this general configuration, and the subject property is a 200-acre property at this particular location. It€s approximately, I believe, sorry, I need my notes on this one here. I believe it was slightly over three miles from the intersectionwithAinaloaBoulevardandHighway130. Now,in2003,AinaloaDevelopmentCorporationcameinforanamendmenttothe Special Permit No. 827 for the golf course clubhouse and they requested that Condition 2 be extended as far as the time in which to submit or secure Final Plan Approval for the golf clubhouse facility. At the same time, they also came in for an amendment to Use Permit No. 106, which was the 18-hole golf course; and they requested that several conditions be amended or deleted. One was a request for a five-year time extension to Condition 3, which was a condition that they had to secure Final Plan Approval for the golf course within a specified period of time. The second request under the Use Permit 106 was to delete Condition 6; and basically Condition 6 related to doing intersection improvements with Highway 130 and Ainaloa Boulevard at this particular location. The third request was to amend Condition No. 7; and basically Condition No.7 required the Ainaloa Development Corporation to do certain improvements along this Highway. The Ainaloa Development Corporation requested that this condition be amended and that they would donate or provide to the County $1 million in lieu of the required improvements as spelled out in the Use Permit, originally-approved Use Permit. And, finally, the fourth condition to, requested to be amended was Condition No. 9, and that was a community benefits program; and basically Ainaloa Development Corporation had to do certain types of improvements, as well as donate, as an example, an asphalt paver and water tanker to the Ainaloa Community Association. They also were required to construct a bus shelter along the Ainaloa Boulevard. Since this particular, there was a request for a Petition for Standing in a Contested Case Hearing; and this particular request, which was honored by the Planning Commission, it was requested by Mr. Ole Fulks, an adjoining owner. And the Planning Commission 2EXHIBIT D voted to contract out a hearings officer for this particular hearing. The hearings officer that was hired was Mr. Colin Love; and he had conducted the hearings and also prepared his findings and recommendations to the Planning Commission. On November 22, 2004, the Planning Commission reviewed and acted upon the Petition; and basically the Commission adopted the Planning Director€s proposed findings with some modification. And basically the Planning Commission adopted the request to extend the time to Condition 2 to submit and secure Plan Approval under Special Permit No. 827. Regarding Use Permit No. 106, Condition No. 3, the Planning Commission also voted to extend the five-year time to secure Final Plan Approval. Regarding Condition No. 6, the Planning Commission agreed to delete that particular conditionsincetheimprovementstotheAinaloaBoulevardandHighway130 intersection improvements were already completed; and that was done by the State. Condition No. 7, the Commission voted to retain the language of that condition which was originally adopted. So, basically, they did not agree with the amendment to the condition as proposed by Ainaloa Development Corporation. And, finally, regarding Condition No. 9, the Planning Commission, oh, Condition No. 8 was not the part of the proposal for consideration at that time, it was Condition No. 9. And the Planning Commission agreed to delete the donation of the water tanker as well as the asphalt paver to be purchased and turned over to the Association. On December €04, 2004, the Ainaloa Development Corporation appealed the Planning Commission€s decision to the Third Circuit Court and indicated that the Planning Commission failed to accept the request to amend Conditions 7 and 8, excuse me, 7 and 9, as requested by Ainaloa Development Corporation at that time. The Court, headed by Judge Glenn Hara, urged the parties recently to enter into settlement talks amongst the parties. And as a result of those discussions, the settlement agreement was drafted; and the agreement is noted in the Planning Director€s April 6 €06 letter to the Planning Commission, which you all have a copy of. I guess that€s basically the background leading to where we are today. ALAMEDA:Okay. HAYASHI:Are there any questions? ALAMEDA:Fellow Commissioners, you can see there€s plenty history behind this agenda item. So, questions, clarifications? Commissioner Graham and then Commissioner Siracusa? 3EXHIBIT D GRAHAM:So, Norman, for us today is to agree with the settlement or not, that€s the issue before us? HAYASHI: Yes, I believe that€s the issue before you today. And, perhaps, legal counsel can better explain, you know, what the process that you would have to go through if ƒ. GRAHAM:Okay. Now, as I remember the process we had before the initial, it seems like the big horse in the barn here was Condition 7, which was all these road improvements, and that the Applicant represented to us in fall of 2004 that the cost of all these would be 6.-something or other million and wanted it reduced to one million because of inability to pay. And the Planning Director at that time didn€t think it should be reduced; and we, as a Commission, voted that it shouldn€t be reduced; and then it went to the Court. And, now, their reduction asked for reduction from 6.-something million to onemillion,sonowthere€sasettlementofahalfamillion,evenlessthantheonemillion they asked for; and now the Planning Director is agreeing to it. Is that all correct? HAYASHI:That is my understanding based on the correspondence that was submitted by the Planning Director. GRAHAM:So maybe we should hear from ƒ. HAYASHI:I wasn€t privy to the settlement meeting so perhaps either the Planning Director or his legal counsel could respond to that. GRAHAM:Yeah, so I don€t know who we should hear from first but ƒ. ALAMEDA:Should we swear, we€ve got to swear everybody in again? TORIGOE:You might as well. ALAMEDA:Before we start going forward, yeah? TORIGOE:Yes. ALAMEDA:Okay, please raise your right hand? Do you swear to tell the truth before the Hawaii County Planning Commission? PARTIES:Yes. ALAMEDA:Thank you. And then, Mr. Torigoe, in terms of protocol, what do you suggest, who goes first and all of that? TORIGOE:Let me just maybe add to the background a little bit -. ALAMEDA:Okay, sure. 4EXHIBIT D TORIGOE:Just to bring you totally up-to-date. First of all, one of the items that hasn€t really been mentioned, you know, and you should bear in mind is that although the settlement is down to half a million dollars, I think there€s some timing changes that have been made, basically, at this point, that payment would have to be made within one year of the action deleting the condition or upon issuance of the grading permit for the golf course. So the time frame is shortened and has to be paid within that one year time frame, or if there€s a grading permit. I€ll let the parties have their say with respect to the merits of the settlement and why they believe that the Commission should approve it. If you need to discuss that with me in Executive Session, we have, you know, stated that that could be an option on the agenda. Also, we just received today the filed Order of Remand from the Third Circuit Court which basically officially has sent it back to the Planning Commission under the statutes thatallowsforthesekindsofappeals,HRS91-14.TheCircuitCourtcanremandthe matter for further proceedings to the Planning Commission; and so that€s what the Court has done at this point. ALAMEDA:Okay. Commissioner Graham, follow-up? GRAHAM:So, Mr. Torigoe, the fact that the Court remanded it to us is effectively telling us that we mishandled it the first time around? TORIGOE:No, I wouldn€t put that spin on it. But it€s just basically saying that the Court, you know, Courts like to see parties settle and come up with a win-win, whenever possible. And in this case Judge Hara felt like he wanted the parties to try for something that they could agree on that would give everybody something. And, so, the parties came up with this proposal; and, basically, the Judge has just sent it down for you to consider and to approve. If the Commission does not approve it, then the parties will take it back up to Judge Hara and he will, I guess, if he€s not able to, he may further try to get the parties to work out something that everybody can live with or he may just go ahead and rule on the appeal. And if you want to hear from me, you know, on some of the, what I think are the merits and legal risks you take if we fail to approve the settlement, then we can have an Executive Session on that. GRAHAM:Thank you. ALAMEDA:Yes, Commissioner Iwashita and then Commissioner Siracusa. IWASHITA:Director Yuen€s letter talks about the actual settlement agreement being prepared today; and I€m just wondering if it has been -. Is there a draft of the proposed settlement that we can look at, written up, so we can look at? I ƒ. SONG:There€s an Order of Remand and, unfortunately, the Judge did not give that Order of Remand until, the Judge didn€t sign it until today. But as soon as I received it from the Court I brought it over; and I was hoping that your counsel would 5EXHIBIT D submit it to you. I understand there€s a letter from, to the Commission from Mr. Yuen. I have not seen that letter but I would assume the letter from Mr. Yuen restates what the agreement is. TORIGOE:Mr. Chairman? IWASHITA:Well, there are terms in here but it€s not, you know, in the form of a settlement agreement that I€m used to seeing. I€m sure --. Is there not going to be a separate settlement document? ALAMEDA:Mr. Director, go ahead. YUEN:There really --. What we agreed to do, the Department and the Applicant, was bring a revised condition to the Commission; and, so, if the Commission goesalongwithwhatwewant,theCommission,whattheactiontheCommissionwould take would be to amend the existing permit to change the language to require a payment of $500,000 within one year of the action today, or the issuance of a grading permit for the golf course, whichever came first, rather than the prior Condition 7. And, see, the Commission, this is the Commission€s permit. The Commission took action on this permit. The Department and, the Commission€s attorney is, represents the Commission at the Court, but the Commission has the final say on whether to change the permit. The Department has agreed, the Applicant has agreed, to support this as a compromise resolution of the dispute. It€s up to the Commission to accept this or not. If the Commission accepts this, it will amend the condition of the permit; and that will be the end result of that. If the Commission rejects it, then we go back to Court and we€ll continue to, the Corp. Counsel will continue to defend what the Commission has done, and the Department will continue to defend its position as to what the Commission had previously decided. ALAMEDA:Okay. And, also, Fellow Commissioners -. Well, Commissioner Siracusa, and then I have a thought. SIRACUSA:Yeah. Well, I have two things. One is a procedural question and that has to, well, we have two conditions here that we€re looking at, 7 and 9. And I€m wondering is it possible to, say, accept one and not the other, or do we have a packaged deal here, all or nothing? That€s one question. ALAMEDA:Mr. Torigoe? TORIGOE:Well, let€s see, I suppose --. Well, the Court has remanded it, let me see what the Order says, And at the hearing the parties recited the proposed following settlement,‚ which is basically what Mr. Yuen has written to you about. And it says that The case is remanded back to the Commission for further proceedings consistent with the approved settlement agreement; and it is further ordered that in the event the Commission takes any action other than to approve the settlement agreement as 6EXHIBIT D provided herein, any party may bring the subject action back to the Court.‚ So the Order as it€s written seems to indicate that it€s a packaged deal. ALAMEDA:Okay? Commissioner Siracusa, your second question? SIRACUSA:Yes. My second question is, looking at the Background Report on Page 3, under Permit Condition 8, Final Plan Approval for the proposed golf course and related improvements shall be secured from the Planning Department within five from the effective date of the second amendment.‚ And it doesn€t say five what, five days, five weeks, five months, five years. And I think it€s a little housekeeping thing, but I think we want to get that clarified here. ALAMEDA:Five years permit, is that okay? HAYASHI:Yes. ALAMEDA:Verygood.Andintermsofaprocedureƒ. SIRACUSA:Isitfiveyears?Isthatwhathe€ssaying,fiveyears? ALAMEDA:Yes,it€sfiveyears.Mythoughts,intermsofprocedure-wise, because it seems like the parties have agreed and have come to a settlement on this already, now it€s more up for the Commissioners to either ask questions, get clarifications, so that we can move ahead on making a motion to accept this settlement. So that€s kind of what I€m thinking in terms of questioning. Or is there a more formal, we have to go through each party again and all that thing? SIRACUSA:Well, we have an Intervenor here, also. We should give him an opportunity to give us his mana o, yeah? ALAMEDA:Okay. Sure. Is that, in terms of protocol, how should we proceed, Mr. Torigoe? TORIGOE:I think you should give the parties an opportunity to address the proposed settlement to you. ALAMEDA:Okay. Sounds good. Mr. Director? YUEN:Yeah. I€d like to explain why the change here. As I€ve said before, I think this project is completely bogus and the golf course will never be built. The golf course costs about $20 million to be built. Almost all golf courses will lose money on a cash flow basis, meaning that even if you don€t count the money it cost to build them, they still lose money to operate, even in resort areas. The only golf course that has been, there€s one golf course I think under construction on the island and it€s being, at Kohanaiki, is being built has an amenity to resort-residential development. We have a number of golf courses that are also permitted in resort areas that are not being 7EXHIBIT D built, including golf courses at Mauna Lani and Waikoloa Beach Development. So why even haggle over the original condition which require them to spend, to upgrade Ainaloa Boulevard at a great expense without putting a dollar figure, multi-million dollar expense, probably in excess of the $6 million that was originally talked about? The developer originally came in and got the permit on the strength of making a number of promises about things that they would do, including this big improvement of Ainaloa Boulevard; and our feeling was that they should not try to back out of those promises at a later date. So we urge the Commission not to change that. What this settlement says is that whether you build, but the payment would only have to be, would only be due upon, in the original terms, upon receiving Plan Approval for the golf course. In other words, they have a five-year time frame to submit, under the terms of the time extension they have five years to submit for Plan Approval. At the end of the fiveyears,theydon€thavetopayanythingiftheydon€tbuildthegolfcourse.Ifthey submit for Plan Approval, then they have to pay the money. So they have five years to do that. This settlement says, this proposed settlement says that they have a year to pay $500,000, and there€s no time extension on that. If they should submit their, for a grading permit for the golf course before the year is up, they would have to pay then. If they want to keep their permit alive for the length of the time extension, there is only that time extension. This does not extend the five-year time extension that the Commission gave to get Plan Approval for the golf course. If they want to keep that alive, they have to pay $500,000 within the year. If they don€t pay the $500,000 a year, this, the permit becomes, will be dead because they€ll be out of compliance with conditions of the permit and there€s no time extension on the one year. ALAMEDA:Okay. Will you identify yourself for the record, then you can proceed. LEITHEAD-TODD: Deputy Corporation Counsel, Bobby Jean Leithead-Todd. I think I want to explain a little bit about what happens when you go up to the Third Circuit Court. You go up to the Court and when you go to the Third Circuit Court, you risk reversal, you risk amendment. You know, the Court has that discretion. And Judge Hara basically called us in to discuss settlement and really pushed us strongly to settle. Because he basically was looking at this, there had been a couple of things that had changed from when this originally came to the Planning Commission, and one was that the County had actually taken over ownership of Ainaloa Boulevard. So he was looking at it in terms of what kind of a condition would you imposed. And he was saying that, you know, the condition to improve the intersection at Ainaloa and Highway 130 had been deleted, because it was moot, because the State had done those improvements. So he was looking and, you know, he posed the issue that since the County had taken over Ainaloa Boulevard and the original condition was aimed at improving it -. Because it was a private road that was owned by the Ainaloa Community Association, that there had been a reason that he could see that you would impose this condition, because it was a private 8EXHIBIT D road; but that now that it was a County road, he questioned that basis. He also questioned the amount of even the million dollars, because looking at what the County did in fair share assessments, this would have been more than if you were coming in for a rezone. And, so, he threw that out there. And he basically did not tell us which way he would rule but he posted several different scenarios in which he might not only wipe out, you know, half a million, he might wipe out the entire contribution because the County now owned the road and he would say it€s the County€s obligation. So on one end he was saying that that€s a possibility. On the other end, he€s telling the developer that maybe he would cut the baby in half and go more. So he€s saying go sit down, try and figure out something. So, I think when we looked at it, the need to upgrade the road is not five years from now. It really is now. So if there is a promise to give us money sooner, then even if it€s less money it€s to the County€s benefit. Because then it would go into that special fund, there isanappropriationthattheCountyhas,andthenthatmeanswecoulddothe improvements sooner rather than later. So that€s kind of the offset. Again, you never know whether somebody will actually come in and perform on a condition. There could be an extension but the Planning Commission would have to grant the extension of that one year on the payment of the half million. It cannot be granted administratively was the agreement we had. But the person who has the Use Permit can always petition the Planning Commission for extensions. You know, that€s just the nature. And the Planning Commission or the Department can make a recommendation against, the Planning Commission can vote up or down either way. But what the balancing here was the possibility that we would actually see money much sooner and actually be able to put it into the road, versus maybe getting the money much later and in the meantime the road is not moving ahead. So there was some of that; also, the risk that if we went to the Judge, the Judge might just wipe out the condition entirely. ALAMEDA:Okay. Questions? Commissioner Graham had his hand up, and then we€ll go right down the line there. Commissioner Graham, questions for Ms. Todd? GRAHAM:I sense before I feel ready to vote on this thing, what we do, I think we€re going to go into an Executive Session. And this is somewhat related to an Executive Session question but it€s right on top with what you were just saying, so let me just ask you on this. The Judge is not, let€s say the Judge rules that he doesn€t like what we did. The Judge is not going to turn around and say, Okay, this is the way the permit should be. The payment should be this, this and that.‚ He€s going to just come, I believe, isn€t he going to come back and say, Planning Commission made a mistake by imposing these conditions that are unreasonable, given the permit, so I€m remanding it back to the Planning Commission to deal with this matter again; but when you deal with it you only make your conditions relevant to what they€re doing in such-and-such a way?‚ So it comes back to us again as to how we want to do it. Am I correct? 9EXHIBIT D ALAMEDA:Ms. Todd? LEITHEAD-TODD: I think you may want to ask Mr. Torigoe but the Court has more authority than just sending it back to you on a remand. GRAHAM:Okay. Thank you. ALAMEDA:Commissioner Siracusa. SIRACUSA:You know, Ainaloa Boulevard definitely needs work and it needs ongoing maintenance, too; and yet the additional $1 million, my feeling was, was probably not enough to do the job. And, now, we€re looking at chopping it in half and yet the road has gotten worse in the interim and the prices for doing, the cost for doing the road maintenance and repairs have gone up. How would you balance those factors out? LEITHEAD-TODD:Well,Ithinkthebalancingherewasthat,one,theCountynow owns the road, it€s no longer owned by the community association. And, two, we balance this in terms of trying to, if there is actually going to be a payment that we would get the money sooner because then we could put it, the County appropriated, I can€t remember whether it was $3 or $4 million towards improvements, that this would then add to that pot and we could do the improvements sooner. Ongoing maintenance would be a County obligation, you know; and the County kind of, by taking on the road took on that obligation. ALAMEDA:Okay. Follow-up then, Commissioner McCall? MCCALL:None. ALAMEDA:Then I€ll bring it back to this side. Follow-up, Commissioner Siracusa? SIRACUSA:Yeah. I€m looking at this and I€m saying, okay, they don€t have to make the improvements to where Ainaloa Boulevard comes out to the highway cause the State has done that already, so they€ve saved a lot of money there. Now, they€re, you know, the County is going to take over the road and the maintenance, so they€re saving money there by asking for the $500,000. And yet it seems that that€s still not good enough for them. They€re looking to delete it, if I€m correct, to delete the requirement to purchase the asphalt paver and some of that other community benefit stuff. LEITHEAD-TODD:No, those were deleted already. SIRACUSA:Pardon me? LEITHEAD-TODD:The asphalt paver was deleted already by the Planning Commission. It was just the bus shelters that were still in. 10EXHIBIT D SIRACUSA:And bus sheltersare really manini. Fred Blas built a bunch of them for free in Hawaiian Beaches. It was on the front page of the paper recently. So it seems to me like we€re just giving and giving and giving. And, as Chris said, a golf course is a, it€s a bogus thing because that area gets, it€s a rain forest, it gets over 200 inches of rain a year. You€d be playing with galoshes on, you know, if at all. And somehow I just feel very uncomfortable about this. It feels like there€s something behind here that we don€t know about, because it doesn€t seem to make sense. ALAMEDA:Response? Mr. Director and then Commissioner McCall. YUEN:I€m trying to be as candid as possible on my thinking on this. My thinking on this is, let€s put this thing to bed. This is not going to happen. We put to them, pay $500,000 in a year if you want to keep your permit alive. If they pay the $500,000,Ithinkweshouldtakeitandbehappy,becauseIstilldonotthinkthat anybody is going to build a golf course at the end of Ainaloa Boulevard. And if they don€t pay it, I will strenuously urge the Commission, I hope they will not come back and ask for another time extension because the whole, that€s the whole idea behind this, is put it to bed. This is a project that for whatever reason their client in Japan wants to keep the permit alive. I hope nobody in Orchidland is thinking or in Ainaloa is thinking that this golf course is some day going to fix the highway, it€s going to fix Ainaloa Boulevard, because it€s just not -. It€s dangling out there but it€s not a realistic option. So that€s, the whole purpose of this is to have a put up or shut up payment date on this permit. So I would not focus on it being a million. You know, if a million never happens, that€s still zero; if $10 million never happens, that€s zero; if $100 million never happens, that€s zero. SIRACUSA:Then I don€t understand why they€re going through all this trouble going to Court and everything else. Why don€t they just, you know, drop the whole thing? I mean, they€re talking about stuff like legal challenges, global economic malaise, that happens all the time everywhere, residual effect of the Sars epidemic that never happened in Hawai i, worldwide threat of terrorism. I don€t see, I mean, it seems like such bogus reasons, you know; and I would love to see it go to rest. I would like to see that rain forest, you know, be preserved and the County Open Space Commission decide to buy that parcel for preservation. So I don€t understand why we have to go through, through all this. ALAMEDA:Okay. We hear you. Let me just hear other Commissioners€ thoughts. Commissioner McCall? MCCALL:Yeah, my question like, maybe, Chris, I€m not sure -. Just as a procedure, since now this is sort of bouncing between us and the Courts, a year from now if they ask for an extension and we deny a time extension, does it immediately go back to Judge Hara or -? SIRACUSA:Does it go away? 11EXHIBIT D MCCALL:Or is this something I need to ask our counsel? YUEN:I think you should ask your counsel about that cause it€s a scenario, frankly, that I have not thought through. We had looked at this as a time certain in which they should pay. ALAMEDA:Mr. Torigoe, can you answer? TORIGOE:If the question is if the permit is kept alive and a year or more goes by and they want to come in and ask for another time extension, and they fail to get it, then will we end up in Court, then that€s, it€s up to the Applicant basically. They can appeal the decision to the Court, you know, that they€re not happy with. YUEN:I would point out, though, that the Applicant is here agreeing to a one-yeartimeconditionattheendofwhichtheyhavetopay$500,000.And,so,for them to appeal a denial of an extension, I just don€t know what their basis for that would be. ALAMEDA:Can I turn your attention to the Applicant now. And if you could just state your name and address for the record, and then if you have any comments about our discussion? SONG:My name is Sandra Song, I€m an attorney for Ainaloa Development. You want my address, my address is 101 Aupuni Street, Suite 238 in Hilo. You are here for approval or rejection of a settlement. This settlement was entered into good faith, in good faith by all the parties. It was my understanding and, each party entered into this in good faith; and it was my understanding from counsel that all parties, all attorneys and all parties, were going to use their best efforts to encourage this Commission to accept the settlement because all parties felt that this was fair. I€m not so sure that I€ve heard those good faith efforts today. But all I can tell you is that this settlement, Judge Hara encouraged the parties to settle. The settlement was entered into, into good faith. I would encourage you to accept this settlement on which everybody felt until this hearing today was fair and reasonable under the circumstances considering all of the factors. I strongly urge you to meet with your attorney in Executive Session so he can explain the consequence, legal consequences and answer your questions as an attorney-client, in your attorney-client relationship. However, if this Commission does reject the settlement, we will ask the Court, we will go back to Court and we€ll ask Judge Hara to rule on this case. And I feel confident Judge Hara will rule the way I believe he should rule. That€s all I have to say. ALAMEDA:Thank you, Ms. Song. Let me ask, sorry, Mr. Director, let me ask Mr. Galdones if he has any thoughts or questions, since he has been patiently raising his hand. GALDONES:Mr. Chairman, I would like to take up her suggestion that we do go into Executive Session. It seems to be a complex issue that if may decide to go in a 12EXHIBIT D particular direction that we might worsen the situation that we are in, instead of resolving this. So I€d like to know the legal ramifications of whatever action that we take; and I would like to make a motion that we go into Executive Session. ALAMEDA:Motion made by Commissioner Galdones to go into Executive Session. MCCALL:Point of order, point of order. I think it would fair to let Mr. Fulks have a say first before we -. ALAMEDA:Sure. MCCALL:Since he was one of the parties. ALAMEDA:Verygood.Yes,thankyou,CommissionerMcCall. GALDONES:Onething,Mr.Chair,I€dliketocautiontheCommissioners,the discomfort I have is some of the discussions that we may have, with additional discussions with the parties, may put us in a compromising position, too. So that is the discomfort I have in furthering the discussions, but I€ll leave it up to the Chair and the Commission ƒ. ALAMEDA:Okay, further -? Commissioners, you€ve heard Commissioner Galdones€ remarks on his discomfort level. Commissioner McCall, do you still feel it€s a -? MCCALL:My point would be that I feel that we€ve seen, we€ve heard from two of the three parties that were involved. We need to hear from the third party. It might be a good idea that the Commissioners refrain from asking any more questions, just let the third party make a statement, then we go into Executive Session, then we can ask questions later. ALAMEDA:Okay. I see a lot of heads nodding. I€ll move forward with that. Mr. Fulks, you€d like to share any comments within our discussion? FULKS:Okay. Thank you, very much. My name is Ole Fulks. I€m an Orchidland resident and my home abuts the proposed golf course project. Now the settlement that the parties have been speaking of was agreed upon between the Planning Department and the developer, Ainaloa Development. I was not a part of that settlement. I€d like to start out by just, you know, giving you a few numbers. Back in €92 or €94, whenever it was when the permit was first granted, the developers agreed to pay around $6 million for road improvements to Ainaloa Boulevard which was 3-plus miles. So that would come to around $2 million a mile; and, of course, if you adjust today for inflation, well, that would be like $12 million in improvements today, but --. Okay, well, since then, the biggest thing that has happened is the Puna Emergency Access Road has gone 13EXHIBIT D in, sometimes called the pair.‚ Now that roadis 8 miles-plus long, and it connects not only to Highway 130 but also to Highway 111; and the project is approximately in the middle. So either one is good access for the golf course project. But now underthe original settlement of $6 million, that would be about $800,000 per mile. It will now, though, Ainaloa Development has asked to have that original $6 million reduced to $1 million. That would be around $120,000 per mile. Now $800,000, you could get some bit of road improvements; $120,000 per mile, well, not too much. I used to be the president of the Hawaiian Acres Road Committee, so I know a little bit about what roads cost. You don€t get a lot of improvements for $120,000 per mile. But now the Planning Department is recommending cutting that in half to $500,000. Now, that comes to $60,000 per mile; $60,000 per mile isn€t going to give us much road improvements on 8- plus miles. Now, currently, most of that roadway has no shoulders; and that means pedestrians and bicyclesmustsharetheroadwithcarsandtrucks.Thereareblindhills,whichisanother danger for the pedestrians and bicycles. So the roadway really does need improvements for safety sake. Of course, traffic is increasing whether they do the project or not. A lot of homes are being built. There€s a lot more traffic than it was 12 years ago when we first came here with this. Well, now, my only feeling representing the community, and loosely representing the community, is that, well, we need improvements for safety on that roadway. And I know that the project isn€t going to generate a tremendous amount of traffic in there but the traffic, the additional cars will be significant and --. ALAMEDA:All right. FULKS:Well, I think for the community, I don€t think we can agree to $60,000 per mile because it€s not going to give us the safety improvements that the community really needs. ALAMEDA:Okay, we hear you. Commissioner Watanabe, before we revisit that motion -. FULKS:Oh, another thing I€d like to mention, too, that in this Order of Remand, it mentions only some earmark for improvements to Ainaloa Boulevard; and as I stated now, it€s not just Ainaloa Boulevard but the part that needs the improvements even more is the Hawaiian Acres portion. ALAMEDA:Okay. Thank you. Commissioner Watanabe. WATANABE:Yeah, I have one question to ask Bobby Jean Leithead and that would, and watch out for the liability -. It€s strictly about when did the County, you know, accept dedication of the road? LEITHEAD-TODD:I can€t recall the exact date -. 14EXHIBIT D WATANABE:Approximately. LEITHEAD-TODD:But it was after the Planning Commission had issued its ruling in this case. Subsequent to that, the CountyCouncil accepted dedication of Ainaloa Boulevard and it is now a County roadway. And that acceptance of the roadway occurred before we got to the settlement discussions with Judge Hara, and so he was aware. And we all acknowledged that that was, you know, factually correct that the County had accepted dedication of the road, so the Judge was aware of that. ALAMEDA:Okay. Thank you. Very well, Fellow Commissioners -? Commissioner McCall, does that satisfy your initial request? MCCALL:Yes. ALAMEDA:Thank you. Fellow Commissioners, there€s a motion on the table togointoExecutiveSessionbyCommissionerGaldones.Isthereasecond? SIRACUSA:I€llsecond. ALAMEDA:SecondedbyCommissionerSiracusa.Discussion?Seeingnone, go ahead, Commissioner Graham? GRAHAM:Could we also take like a five-minute recess somewheres before we do the Executive Session, or after, or something like that? ALAMEDA:Sure. Right after staff does the roll call. We€ll take a five-minute break and then we€ll come in and close the doors up. Mr. Torigoe? TORIGOE:Yeah, before we do it, I just wanted to ask Mr. Fulks a couple of questions to see if we can clarify where he is exactly at this point? Is that okay? ALAMEDA:Sure. TORIGOE:Mr. Fulks, you stated earlier that you were not a party to the proposed settlement. Do you recall Ms. Song or anyone else basically letting you know what the terms of the settlement were going to be like before we got back here? FULKS:Was that before today? TORIGOE:Yeah. FULKS:Yes. TORIGOE:Okay. And you were, you came to Judge Hara€s chambers at least once to discuss the possibility of settlement, right? Remember that? 15EXHIBIT D FULKS:We discussed the possibility of a settlement but not the $500,000. TORIGOE:So, and at this point in time, you don€t actually represent any community group, do you, I mean, as far as this particular case goes? You€re just an individual intervenor, correct? FULKS:No, it€s not entirely true because Hawaiian Acres Community Association has asked me to represent them in this matter. TORIGOE:But in terms of the appeal to date, aren€t you just an individual intervenor? FULKS:What€s that? TORIGOE:In terms of being a party to this Use Permit condition amendment proceedingand,youknow,whatwentbeforeJudgeHara,youwerejustanindividual intervenor in this case, correct? FULKS:That€s basically correct. Yes, I€m basically representing myself. TORIGOE:And, so, I€m just trying to get clear, because before I talk to the Planning Commission, you know, that at this point in time we have an agreement basically between the Planning Director and Ainaloa Development Corporation to propose a settlement for the Commission. And, so, I think the Commission really needs to have a sense of whether, you know, you are in some sense objecting to this settlement at this point or -. Because I haven€t, I think you€ve had opportunities to be involved in the discussions prior to this but we€ve never heard any objections from you. FULKS:This number of $500,000 was never discussed in our meetings. Ms. Song, Sandra, informed me of the agreement between the developer and the County. TORIGOE:And she sent you a copy of the proposed Order of Remand to look at, correct? FULKS:I have a copy here that she gave me. TORIGOE:Okay. Before the Judge signed the Order, you had an opportunity to review the Order which states the $500,000, right? FULKS:Not that I€m aware of. TORIGOE:There was a, Ms. Song --. Did you receive from Ms. Song by mail a copy of the proposed Order for the Judge to sign? FULKS:Pardon? 16EXHIBIT D TORIGOE:Did you receivefrom Ms. Song by mail a copy of the Order of Remand that she was sending to the Judge for him to review and sign if he agreed with it? FULKS:I€m not certain of that. My mail thing is little bit shaky so I may have received it, I may not, I€m not certain. TORIGOE:Okay. I just wanted to see where exactly you people were. And, I don€t know, I€d like to see where Ms. Song and Mr. Yuen are with respect to, you know, whether we can go forward at this point, given --. ALAMEDA:Are you requesting further questioning by the parties or ƒ? TORIGOE:Yeah, I -. SONG:Mr. Torigoe, we have -. TORIGOE:Can you use the mike? SONG:Excuse me. ALAMEDA:Ms. Song, use the mike, please. SONG:This was ordered by the Court. If Mr. Fulks was unhappy, first, I sent the Order to him by letter, by memo when, at the same time I sent it the County for signature at his address, that he€s received all documents. I also then, when he didn€t respond, sent a proposed order as required by Rule 23 of the Circuit Court Rules and Mr. Fulks had time to respond. In fact, the Judge held the Order long beyond the time that he should have in this case. That€s why this morning when you had asked me if the Order came, I called the staff and they said, yes, it has been sitting there and it€s beyond the time to sign the Order, so they had the Judge sign the Order. In addition, I might point out that I have made every attempt, I mean, the settlement came down very fast. However, throughout the proceeding and the appeal, I€ve made sure that Mr. Fulks had notice although he never filed any brief in this case. He may not technically be an Appellee in this case. I mean, he has done nothing in the case but I€ve made sure to include him as much as possible. And, Mr. Torigoe, if you€re saying that this Commission cannot proceed, I look at that as not being good faith on your part. ALAMEDA:Thank you, Ms. Song. Would you like to respond? TORIGOE:No, I just wanted to, I just wanted to get the positions of the parties on where we are at this point. I don€t know if we --. LEITHEAD-TODD:Mr. Alameda? ALAMEDA:Sure, Ms. Todd. 17EXHIBIT D LEITHEAD-TODD:I just want to point outthat in your record, I€m assuming, well, at least in my record that it notes that there was a letter of transmittal with the, you know, st the proposed order and that was dated March 21; and it shows that it was to be sent to Ivan Torigoe, to myself, as well as Mr. Fulks. And then, you know, I think subsequently, thth another certificate of service was filed for March 28. And, again, on that March 28, Mr. Fulks is noticed on that as this having been, you know, mailed out to him. So at least on two occasions the record shows that Ms. Song did include Mr. Fulks in the mail. I also want to note that in the appeal, Mr. Fulks did not file an appeal and did not, you know, file any documents in the appeal. The other thing that I want to point out is that while Mr. Fulks is talking about he wants money for Hawaiian Acres, money for Hawaiian Acres improvements to their roads has never been part of this, it has never been a condition of the Use Permit at any point in time, not the original permit, not the extensions and was not even part of the amended order as approved by the Planning Commission. So if Mr. Fulks is now asking and saying that he wants some money from this to go to Hawaiian Acres, that was never part oftheconditionshereandwouldbefarbeyondthescopeofanythingonthetablebefore the Commission. You can ask Mr. Torigoe but that goes well beyond anything that€s in the existing permits. ALAMEDA:Thank you, Ms. Todd. I feel we have enough information to perhaps move forward into Executive Session. Motion made by Commissioner Galdones, seconded by Commissioner Siracusa. Seeing no further discussion, staff? HAYASHI:Commissioner Galdones? GALDONES:Aye. HAYASHI:Commissioner Siracusa? SIRACUSA:Aye. HAYASHI:Commissioner Watanabe? WATANABE:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Commissioner Iwashita? IWASHITA:Aye. 18EXHIBIT D HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Chair Alameda? ALAMEDA:Aye. HAYASHI:Motion carries. ALAMEDA:Also, with Commissioner Graham€s request, we will take a five- minute recess and then we€ll come back and go into Executive Session. Thank you. RECESSEDThe Chair called a short recess at 3:35 p.m. RECONVENEDThe meeting reconvened at 3:45 p.m. EXECUTIVEThe Commission went into executive session at 3:45 p.m. SESSIONThe Commission came out of executive session at 4:40 p.m. by a motion made by Commissioner Galdones, seconded by Commissioner Siracusa and unanimously carried by a voice vote of all Commissioners in attendance. ALAMEDA:Thank you for your patience. We did have a fruitful discussion. Fellow Commissioners, any proposal, any motion, any discussion or closing comments? SONG:I have nothing to add. ALAMEDA:Okay. How about Ms. Todd? LEITHEAD-TODD:I just want to say that, you know, one of the reasons I recommended a settlement in this is that it was my belief that if this went to Judge Hara that there was a significant risk that he would essentially wipe out the condition because the County had acquired the road. You know, so it€s kind of like I€ve always kind of advocated that, you know, whether you collect or not, you know, a bird in the hand versus the risk of nothing is -. You know, there€s still the potential that you can collect, youknow,andIwouldhopethatithappens.AndIalsothoughtthattheone-yeartime frame, that if there was actual performance on the condition that it would give the County money,youknow,inamoretimelyfashionandperhapshelpusinactualworkon Ainaloa as opposed to some speculative five-year period out there. Anyway --. ALAMEDA:Thank you, Ms. Todd. Mr. Director? YUEN:I just want to say that I do urge the Commission to amend the permit,followingthelinesofthesettlementthatwasworkedoutintheCircuitCourtfor 19EXHIBIT D the reasons that I stated earlier. My expectationis that the money will not be paid within a year and my hope then would be that the permit would terminate. ALAMEDA:Thank you. Commissioners, any questions for any of our party members? Commissioner Galdones? GALDONES:Thank you, Mr. Chair. Question to Ms. Leithead. In reference to the $500,000, are there assurances that after one year, if there€s no performance on the golf course that occurs, that we will, the County will get the $500,000? Is there any other way that they can get out of this? LEITHEAD-TODD:Basically, if they don€t pay within a year, because there€s no administrative extension of that one year to perform, they would have to seek permission from the Planning Commission to extend that one year; and then it would be up to the PlanningCommissionwhethertheywouldgivethemanextension.And,atthatpoint, you know, let€s assume worst case scenario the money does not come and then it comes forward, it€s a new year, it€s a new condition, the Commission can do what it will in terms of approving an extension or denying an extension. And the standard of review if it were to go up to Third Circuit Court on a denial of the time extension, I think would be substantially different than when you€re looking at whether a monetary condition is reasonable under the circum--, it€s a different standard because you are not required under the law to give the time extensions, you know. So it€s just, but that€s really speculative. I think that the one year is a reasonable time frame. You know, frankly, it€s my hope that the property owner, the developer, actually is able to come through with that half million, that the economy is doing well and he can come through, and we can put the money in, you know. That may or may not happen, that€s something I don€t have control over. ALAMEDA:Follow-up Commissioner Galdones, and then Commissioner Watanabe. GALDONES:Yes. Then I would like to direct the question over to Ms. Song. Speaking for your client, do you believe that there will be, if they will not make the golf course materialize, that they will pay the $500,000 within the one year? SONG:I can€t speculate one way or another. This is, this was an agreement my clients agreed to. All I can tell you is what the agreement said, that my client agreed to it, that my client understands that either he has to pay $500,000 within a year or when he applies for a grading permit, whichever occurs first. He understand that and he said he€d agreed to it, and that there is no time extension administratively, which, in all likelihood means there would no time extension. And either the money is paid for and the project can go ahead, or the money is not paid for and the project dies. ALAMEDA:Mr. Galdones, follow-up? 20EXHIBIT D GALDONES:That€s fine. So in linewith this statement that you have made earlier that they were doing this in good faith, that you believe that they would be doing this in good faith, that either they€re going to do the project or they€re going to be coming up with the $500,000 within the year? SONG:I doubt that you are going to see my client come back for any further time extensions at this point. ALAMEDA:Commissioner Watanabe? WATANABE:No. I think my question got answered. So to clarify, though, your client understands that if within a year the $500,000 is not paid that the permit is dead? SONG:Essentially the permit is dead because they haven€t complied with thecondition.TheremightbesometechnicalrequirementsthatthePlanningDirectorhas to do to nullify the permit but my client understands that it€s essentially dead. ALAMEDA:Ms. Siracusa. SIRACUSA:Yes, it would greatly aid my comfort level if I could have some assurance that if that happened and your client decided not to go ahead and the permit was not extended that, and then later on your client decided to apply for another permit for another kind of project, that that $500,000 would not be considered part of the fair share for a future project? Am I making myself --? I look at all the confusion on everyone€s faces at the table and I€m thinking I€m not making myself clear. ALAMEDA:Who are you directing your question to, or you want to rephrase the question and direct it directly to someone, some party, or it€s --? SIRACUSA:Yeah. Say, all right, say your client decides not to go ahead with this after all and then a few years down, and has paid the $500,000. And a few years later down the line he decides to do another, he still owns the property so he decides to do a different type of project, applies for another permit and then says, Well, I already paid $500,000, that€s the fair share. I shouldn€t have to pay anymore for another project.‚ I would like to make sure that this $500,000 is key to this particular permit and would not be transferable to any future permits. ALAMEDA:Who€s the best person to answer that? Ms. Todd? LEITHEAD-TODD: I don€t think that anybody could guarantee that. And I don€t know that it would necessarily hold up to legal scrutiny under the idea that if you have to pay money for certain impacts and if you have another project and you€ve already paid money towards an impact and unless that other project is going to create more of an impact than the first one, I cannot promise you that there wouldn€t be some kind of a credit for that payment. Cause, you know, if you came in and let€s say, you know, instead of a golf course he was looking at doing 50 lots, okay, that€s 200 acres. Well, on 21EXHIBIT D 50 lots, frankly, there is no fair share. Because if it€s within his existing zoning, the County currently does not impose fair share and he wouldn€t need a permit for that. He could, you know, he could do a subdivision under his existing zoning. If he came in for rezoning, I just don€t know because it would depend on if the County passed an impact fee ordinance which we don€t have right now; and under their existing policy, they€re not even imposing fair share on anything that€s larger than one acre. So I think it€s just too speculative. ALAMEDA:Mr. Director? You€d like to comment on that? LEITHEAD-TODD:You€re asking if he paid the half a million, right? YUEN:Yeah, you know, the scenario would be if he paid the half a million and then did not eventually develop the property and then came in with a completely differentproject,thatIcan€tseehowitwouldbecreditedagainstthecompletelydifferent project. There€s no, not only there€s no mechanism for it -. And there€s no, you€ve paid money toward an impact of one project and then you have a completely different project, that I don€t see any credit for it. We haven€t negotiated that there would be a credit. And there€s, if anybody comes in for, you know, what fees are required depends upon on what kind of, a fee itself is a little bit unusual, it€s more typically that you have to make an improvement. As far as if the County passed an impact fee ordinance, it might apply to the subdivision of this property; but I don€t think that -. The impact fee would not credit something that was paid for the golf course of the property, if there was a subdivision. So I just don€t really see a credit against a completely different project. And if, Ms. Song, do you see a scenario? I don€t really see a scenario. SONG:I can€t speculate. But if my client decides to pay the money to keep his permit alive and doesn€t want to start the golf course in the next year, essentially the money is paid, he can€t get that money back. That€s it. The County gets the money and hopefully they spend it on Ainaloa Boulevard, or whatever they want to do for the road improvement, but that€s money he has lost. So ultimately if he decides not to do the golf course, the County still has that money. YUEN:I believe actually he has, if he paid the money, he would have more than a year because he would then have the full time period of the permit that was granted, but --. SONG:Right, right. But I€m saying --. YUEN:But in a scenario where then that lapsed and there was no further time extension and the permit lapsed, I don€t really see a scenario where they would be credited against a further project. ALAMEDA:Okay. You may have answered Commissioner Siracusa€s question already. 22EXHIBIT D SIRACUSA:Yes. ALAMEDA:Okay. Commissioner Graham, any thoughts? No? GRAHAM:No. ALAMEDA:How about this side? Commissioner Galdones? GALDONES:There being no further discussion, I€m prepared to make a motion if you€ll entertain -. ALAMEDA:Sure. GALDONES:I€d like to make a motion that we support the proposed settlement. WATANABE:I second. ALAMEDA:Motion made by Commissioner Galdones, seconded by CommissionerWatanabe.Discussion?CommissionerGraham. GRAHAM:Well,IhavetoacknowledgethatIthinkthethreeattorneyssitting in front of me here probably know a good deal more about this issue than I do so it€s difficult for me not to go along since they€re all in agreement. But I sense that there€s sort of, to use a crude word, kind of a gaming‚ going on; and when there€s a gaming‚ going on that I don€t know too much about, I feel reluctant to join. So I feel like my duty is to the people of Puna and my duty is to doing things in a proper way. And, to me, for the Judge to say that a charge to the developer of less than $1 million, or half a million, or even less than a half a million, as Ms. Leithead-Todd indicates is possible, is really at odds with the facts of the case, even though I certainly can understand there€s merit that the existing conditions may also be at odds with the facts of the case as being too much. So I don€t feel proper juggling the future of a golf course for the people of this district based on a settlement that a Judge may impose without the factual basis that we have. So I just am too uncomfortable to go along with this settlement. ALAMEDA:Other Commissioners, discussion? Commissioner Iwashita. IWASHITA:I just want to say I share Commissioner Graham€s concerns. I understand that, you know, settlement is not being imposed by the Judge. I think all the parties and, for the record, I€d like to say all the Commissioners have given consideration of this settlement in utmost good faith in, you know, trying to resolve it in the best way we feel is possible for the County as well as the developer. And, again, you know, I tend to agree with the Director€s impressions and opinions about whether this golf course ultimately will be built. But, on the other hand, you know, I guess if you want to call it the risk that if it actually gets built then, you know, the County has really got the short end of the stick on all of this. So, I just want to make a record that that€s, you know, I share Commissioner Graham€s concern; and I€m all for settling cases --. 23EXHIBIT D ALAMEDA:Okay. Other Commissioners want to make a comment for the record? Motion was made by Commissioner Galdones, seconded by Commissioner Watanabe. Seeing no further discussion, staff? HAYASHI:Thank you, Mr. Chair. The motion is to support the proposed settlement. Commissioner Galdones? GALDONES:Aye. HAYASHI:Commissioner Watanabe? WATANABE:Aye. HAYASHI:CommissionerGraham? GRAHAM:No. HAYASHI:CommissionerIwashita? IWASHITA:No,withreservations. HAYASHI:Commissioner McCall? MCCALL:No. HAYASHI:Commissioner Siracusa? SIRACUSA:No. HAYASHI:Chair Alameda? ALAMEDA:Aye. HAYASHI:Mr. Chair, motion does not carry. There were three aye votes and four noes. ALAMEDA:All right. Corp. Counsel? We need counsel. TORIGOE:Well, let€s see. You have a split vote here. It doesn€t seem like it would get five votes one way or another at this point. So you can continue it to try and get another vote if you feel like there are -. Or if there€s more information that you think might help you to evaluate it better, make the situation better for the parties, you could ask the parties for more information. ALAMEDA:What€s another option? 24EXHIBIT D TORIGOE:Well, let€s see, I don€tknow if the parties have any desire or position at this point on whether the parties would, if the parties would just say, Well, no, we just rather go back to the Circuit Court at this point‚ or if the parties would like to have continuance. That might be worth hearing from them about. ALAMEDA:Ms. Song or Ms. Todd? LEITHEAD-TODD: How many members are sitting on the Commission right now? Just the seven? ALAMEDA:We have eight. LEITHEAD-TODD: Who€s the eighth person? ALAMEDA:Commissioner Salavea. Commissioner Springer just left us. We€ll bereplacinghershortly. LEITHEAD-TODD:Yeah,Idon€tseeareasontocontinue.Ithinkwecouldjustsend this back to the Third Circuit Court that the settlement was rejected. Cause I, even if you have Mr. Salavea, if he goes aye then it€s a four to four; and if he goes no, then it€s a rejection anyway. So, you know, I think that we just should take it back to the Judge. ALAMEDA:Commissioners? Commissioner Iwashita? IWASHITA:Point of information. When is Ms. Springer€s replacement projected to be sworn? ALAMEDA:Mr. Hayashi? HAYASHI:I€d like to defer that question to the Planning Director. YUEN:The Administration does have an individual that we€ll be sending the name up to the Council very shortly, then it still takes a confirmation. ALAMEDA:Okay. IWASHITA:Is that more than a month then? GALDONES:Yeah. YUEN:The confirmation probably, yes. ALAMEDA:Commissioner Iwashita, you want to continue with your train of thought? 25EXHIBIT D IWASHITA:Well, I would, you know when that person sits, obviously, you know, that€ll be two other votes in so --. ALAMEDA:The option right now I think that I€m leaning towards is just to move this forward to the, back to the Court. Any objections or any discussion on that matter, Fellow Commissioners? Commissioner Galdones? GALDONES:Could you repeat what you said, I€m sorry, I didn€t get that. ALAMEDA:Basically taking Ms. Todd€s, I guess, recommendation to just move it forward and, I guess, that€ll mean back to the Court. WATANABE:I don€t see how it€s going to be resolved here; and you€re not going to get, my experience you€re not going to get the replacement in time anyway. You don€t wanttowaitthatlong. ALAMEDA:CommissionerGaldones. GALDONES:Mr.Chair,Ithinkthatiscorrect.Ithinktheactionofthe Commission today has to move forward from here on. I don€t see it, unless any of the other Commissioners who voted no, two of the Commissioners who voted no, are willing to change their minds. If that€s not going to happen, what Ms. Leithead-Todd had mentioned is, that€s the direction I think needs to go -. ALAMEDA:Okay. Further discussion? I mean, how do we act on that? TORIGOE:Well, I guess at this point, if that is what you want to do, I suppose that you can have a motion to close the hearing and return it to the Circuit Court. ALAMEDA:Motion is in order? Ms. Song. SONG:With all due respect, since the Commission has not approved the settlement as required by the Order of Remand, I will file a motion next week to have this case reinstated in Court. ALAMEDA:Thank you, Ms. Song. Fellow Commissioners, a motion is in order? GALDONES:Mr. Chair? ALAMEDA:Commissioner Galdones? GALDONES:I make a motion that this agenda item of the Planning Commission agenda be brought to a close. ALAMEDA:Thank you. Is there a second? 26EXHIBIT D GRAHAM:Second. ALAMEDA:Motion made by Commissioner Galdones to bring this item to a close, seconded by Commissioner Graham. Discussion? Seeing none, Staff? HAYASHI:Commissioner Galdones? GALDONES:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:CommissionerIwashita? IWASHITA:Aye. HAYASHI:CommissionerMcCall? MCCALL:Aye. HAYASHI:Commissioner Siracusa? SIRACUSA:Aye. HAYASHI:Commissioner Watanabe? WATANABE:Aye. HAYASHI:Chair Alameda? ALAMEDA:Aye. HAYASHI:Motion carries. ALAMEDA:Thank you very much for your time and for your patience. The discussion ended at 5:00 p.m. Respectfully submitted, Sharon M. Nomura, Secretary 27EXHIBIT D