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HomeMy WebLinkAbout2005-04-22 tHuggett (fka Soto SMA 03-007)2 PLANNING COMMISSION COUNTY OF HAWAI€I HEARING TRANSCRIPT April 22, 2005 A regularly advertised hearing on the application of WESLEY AND KELLEY HUGGETT (Formerly ERIC SOTO SMA 03-007) was called to order at 10:25 a.m. in the King - Kamehameha's Kona Beach Hotel, Islander Room, 755660 Palani Road, Kailua-Kona, Hawai¡i with Chairperson Fred Galdones presiding. PRESENT:Fred GaldonesABSENT & EXCUSED:Jeffrey McCall C. Kimo AlamedaRodney Watanabe Hannah SpringerAllen Salavea WilliamGrahamReneSiracusa Andrew Iwashita Ivan Torigoe, Deputy Corporation Counsel Christopher Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Kiran Emler, Representing the Department of Public Works And approximately 25 people from the public in attendance. APPLICANT: WESLEY AND KELLEY HUGGETT (Formerly ERIC SOTO SMA 03- 007) Continued hearing on a Special Management Area Use Permit application to allow the construction of a three and one-half story, 45-foot high, 12-unit multi-family residential development and related improvements on approximately 15,203 square feet of land. The property is located on the west (makai) side of Alii Drive, adjacent to and north of the Sea Village Condominium complex, Kahului, North Kona, Hawaii, TMK: 7-5-19:30. GALDONES:Will the Hawaii County Planning Commission be back in order. Commissioners we are on Unfinished Business Number 2, Wesley and Kelly Huggett, formerly Eric Soto SMA 03-007. This also is the continued hearing on a Special Management Area Use Permit application to allow the construction of a three and one-half story, 45-foot high, 12-unit multi-family residential development and related improvements on approximately 15,203 square feet of land. Norman. HAYASHI:Thank you Mr. Chair and members of the Commission. Going to the map on the wall, the subject property is indicated by this blue dot. It is situated along the makai side of Alii Drive and this would be the location that were at right now, which is the King Kamehameha Hotel. The property is situated adjacent to the Sea Village Condominium project, which is located to the south of the subject property. This particular request is a continued hearing of an application that was initially filed by Eric Soto back in 1993- the actual permit 1 EXHIBIT B conditionally accepted on May of 2003. It is an SMA use permit for 3-1/2 story building, 45 feet in height and consists of 12 multiple family residential units. The first public hearing on this particular request was held on August 1, 2003 and at that time there was a Petition for Standing that was requested by the Association of Apartment Owners of Sea Village Inc. That Petition was granted by the Planning Commission. Subsequently, the Association withdrew its request for standing in this particular Petition. They indicated that there were several issues that they have worked out or tried to resolve with the Applicant at that particular time and had withdrawn his Petition for Standing. Again the deadline for filing of Petition for Standing based on the Planning Commission Rule Number 4, Section 4-7A states that a Petition for Standing shall be filed 7 days prior to the first public hearing and that date was the first public hearing was August st 1, 2003. Besides the August 1 hearing there were 4 other hearing dates that- hearings held on this particular application. August 1, 2003, September 11, 2003, October 2, 2003, November 7, 2003 and January 30, 2004. Some of the issues that were raised at these hearings included the adequacy of the driveway access. There was representation by one of the residence of Kona that there was a gravesite on that particular property. Also concern relative to the 20-foot shoreline setback requirement for this particular property as well as concern regarding the obstruction of view from the adjoining property for the residence of the Kona Sea Village Condominium project. Now Mr. Huggett had purchased the property from Mr. Soto on July 26, 2004. On October 28, 2004 we received a letter from Mr. Huggett informing that they will continue with the application and the submittals by Mr. Soto. So basically the project remains the same based on the representation by the previous applicant Mr. Soto. On January 14, 2005 we received a letter from Mr. Greg Mooers who represents the Applicant, transmitting a letter from Vacation Internationale Inc. signed by Landon Estep, Secretary and General Counsel for Vacation Internationale indicating that the adjacent property owner Vacation Internationale intends to grant a minimum 4 foot easement for vehicular access to Mr. Huggett for both, excuse me, both for vehicular access and utilities. That would increase the current driveway, the width of that property from 16 to 20 feet. We did receive 5 requests late filing for Petition for Standing and all of you have copies of those correspondences. We informed these individuals that the filing deadline was back in August of 2003 and we had returned or its in the mail being returned as far as the check that they had submitted. These individuals include Charles Buscemi who submitted only a check with no Petition. Lowell Zimmerman, both Petition and check were received. Jack and Kelly Armstrong, check was received but no Petition for Standing. Mark and Kim Spangler who submitted a Petition and the check and Brian Haney who submitted the Petition and check- the filing fee. All of these individual are in the process of being notified or have been already notified that the filing deadline has passed. Are there any questions? As far as Staff, the Department is recommending that we grant this application and all of you have copies of the Planning Directors recommendation. Are there any questions? GALDONES:Commissioners any questions of Norman? I would like first to address the application itself and then having set that aside if you folks are clear no further questions then I would like to address the Contested Case applications. Any questions of Norman on the application? Commissioner Springer? SPRINGER:Norman are a number of those questions that were raised from the public taken up under Condition 2 with regard to the final Plan Approval by the Planning Director? 2 EXHIBIT B HAYASHI:That is correct. Some of the concerns would be incorporated as part of this process. SPRINGER:Im lookingin particular at the paved driveway access and fire protection measures. HAYASHI:Yes. SPRINGER:Thank you. GALDONES:Commissioner Graham? GRAHAM:Im wondering just as a background speaking of the 20 foot shoreline setback what is the, I know some places is 20 and some places thats 40, what isthe whole realm ofwhatwegenerallyseefromheregoingsouththatgoesthroughthisarea.Is20sortofthe standard or? HAYASHI:Yes many of these lots would fit in the exemption, where they would be able to get a 20 foot setback instead of 40 feet because of the size of the lot. Many of these lots along Alii Drive are less than a requirement that would- in a size where it will be less than what would require as far as the normal setback of 40 feet. And we did a calculation for this particular property and it does confirm that the setback would be 20 feet. GRAHAM:Thank you so what Im hearing is that generally the setback is 40 but when the parcels are too small and the 40 is really significant hardship that particular parcel will have only a 20 is that correct? HAYASHI:That is correct. GRAHAM:Thanks. GALDONES:Further questions? Mr. Yuen. YUEN:Theres a formula that takes into account the setbacks and if you apply all the other setbacks at 40 feet and the build away becomes less than 50% of the property then the shoreline setback goes to 20 feet. Most of the small lots along Alii Drive youll find a 20 foot. Lately they qualify for the 20 feet. GALDONES:No further questions of Norman on the application. Are there any questions of Norman regarding the Contested Case applications? Seeing none, will the Applicant or his representative please come forward? Mr. Mooers, will he be testifying also? MOOERS:Yes. 3 EXHIBIT B GALDONES:Okay, could I have him sworn in also. Could you please raise your right hand? Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? MOOERS:I do. GALDONES:Starting with you Mr. Mooers and then Ill have the gentleman swear himself into; I mean state his name and address. MOOERS:My name is Greg Mooers. Im the Planning Consultant for the Applicant, Mr. Huggett. My address is P.O. Box 1101 Kamuela. And this is the owner of the property, Mr. Huggett. GALDONES:State your name and address please. HUGGETT:Wes Huggett, 3841 North Hoyne Avenue, Chicago, Illinois. GALDONES:Thank you. Mr. Mooers you received a copy of the Background Report andtheRecommendationsandanycommentstothat? MOOERS:YesIhaveandiftheCommissionwouldindulgeme.Youknow,thishas been a very long, involved 2 year process and I would like to go through some things and summarize because theres been a lot of information some disinformation, a lot of confusion. Id like to try and clarify some things as much as possible. I recognize theres some people here today to testify and Id like to be able to respond once they have made their testimony. In reference to the Departments Recommendation Id like to point out several items that the Department has concluded after review in all public and agency comments on the bottom of Page 1 they state, ‚The proposed request will not have any significant adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interest.ƒ Later on that page it is included that ‚The proposed project will not create significant adverse impacts upon immediately adjacent properties, as surrounding properties are zoned V-1.25 and in residential and commercial uses. A single-family residence and the Sun Terra Resort office building is located on the north sideand the Sea Village Condominiums are located on the south sideƒ. Next paragraph, ‚The proposed project will not substantially affect scenic vistas or viewplanes of nearby residents nor have an adverse impact on coastal recreational or visual resources to the shoreline and coastal ecosystemsƒ. The bottom of the page, ‚There are no public recreational resources being affected by the projectƒ. The next page, ‚The proposed project is consistent with the objectives and policies as provided by Chapter 205A, HRS, and Special Management Area guidelines contained in Rule No. 9 of the Planning Commissionƒ. The bottom of the Page 3, ‚Conditions of approval will be included relating to wastewater, solid waste and public safety to ensure that impacts on coastal resources are minimized. And then on Page 5, ‚The proposed development is consistent with the County General Plan and Zoning Codeƒ. Based on this the following summary is based on findings, ‚It is determined that the proposed development and related improvements will not have any substantial adverse impacts on the surrounding area, nor will its approval be contrary to the objectives and policies of Chapter 205A, relating to Coastal 4 EXHIBIT B Zone Management and to Rule No. 9 of the Planning Commission relating to the SMAƒ. There are a number of conditions. The issues raised primarily related to an easement. The property presently has a 16 foot wide access to the highway and Public Works had made a comment previously and this became the source of the requirement or the suggestion that an easement be granted to 20 feet. So that grew out of a comment made by the Department of Public Works. At that time, we went into a series of negotiations with the AOAO that had filed the Contested Case and had come to an agreement on some basic concepts. When Mr. Huggett acquired the property or prior to acquiring the property he had extensive conversations with the representatives of Vacation Internationale to make sure that such an easement would be granted. And youll notice in your file there is a letter of intent to grant that 4 foot easement. I think the obvious question is why is that a letter of intent instead of the easement itself? And the answer is relatively simple. The attorneys have advised us that if the condition is granted or if this SMA is granted there would be conditions of approval some that are being proposed and some that may go out in discussions today. And its important that any negotiation of an easement that Mr. Huggett has withVacationsInternationaleshouldincorporateanyofthoseconditionswithit.Soitisclear that if the SMA is granted it is contingent upon the acquiring this easement as pointed out in this Condition Number 5 and Conditions 2 and 11. Condition 5 says that the Applicant shall connect to the existing sewer line on Alii Drive. Thats not possible unless we have that easement. So its very clear to the Applicant that this easement must be granted in order to proceed. Condition 2 states that the construction basically this is Plan Approval that has to meet with the approval of Public Works and then Condition 11 states that we must comply with all applicable County, State and Federal laws. So anything to do with the adequacy of that access for either utilities or vehicular access must be approved by these various agencies. There was issue raised of a burial. Dr. Rechtman did a survey of the site and found no resources on the site, no historic resources on the site. If youve seen it its been severely disturbed by developments on both sides and its a relatively small parcel. At a hearing Ms. Nagai did make an allegation that she recalls in her youth that there had been a burial on that site. We scheduled a meeting with the representative of the AOAO, their archaeologist Dr. Rosendahl and Dr. Rechtman and we made a site visit. We could not discover evidence of a burial on site. The area that Ms. Nagai indicated that there might be a burial, where she recalls a burial is outside of our building envelope and will be before or in front of any buildings that would be constructed. It was my understanding at the time that its policy of the Burial Council not to go digging looking for burials. So that if there is no evidence of the burial that we would simply assume that there could be one there and that there would be no ground disruption. If any ground disruption would be to take place in that area we would have a monitor on site. Its not the intention of this Applicant and he does not have any plans for that area for construction. And if youll notice Condition 8 which is your standard archaeological condition that it indicates that should any remains be encountered that all work would stop and we would have to seek a work concurage from State Historic Preservation Division. The next issue is the shoreline setback issue. Im glad that Mr. Hayashi pointed out that we are not requesting a variance. We have no hardship standard. There are Rules and the Rules apply to this particular lot are 20 feet. The Applicant is asking only to be treated like any other applicant in this case. No variance is being requested. 5 EXHIBIT B An issue of drainage was raised at one point. Youll notice under Condition 3 it states that all development runoff shall be taken care of on site. So that those issues will be addressed tothose standard conditions. I guess in conclusion I would say that I think the Department, particularly overa 2year period has done a very thorough job in evaluating this application and I would ask you to you know respect that evaluation. Mr. Yuen has made a recommendation and I would ask you to follow that recommendation. Maybe Mr. Yuen doesnt recall, but I recall myself about 4-1/2 years ago when he was appointed as Director he made a presentation to Hawaii Inter-Planning Conference. And he indicated that he would evaluate projects based on 2 issues one is limited impact on the environment and the second one, what is the impact on the quality of life? I think in the last 4- 1/2 years Mr. Yuen has been true to his word and I think the fact that he has indicated a favorable recommendation here should be taken with a great deal of weight. And with that I am open to any questions the Commission may have. GALDONES:Commissioners any question of my Mr. Mooers? Commissioner Graham? GRAHAM:I just want to be clear on the facts of the easement. I kind of remember all thesediscussionsbeforeandsoifyoucanjustkindofyouknowconnectallthedotsthatarestill left in my mind. You said first that there is currently, that you have a 16-foot easement. MOOERS:We own 16 feet, yes. GRAHAM:Okay, so why is getting an additional easement necessary for connection to the sewer line? What is the issue with connection to the sewer? MOOERS:There was some issue raised on whether the 16 feet was for access only or access and utilities. So the additional 4 feet that we are acquiring from Vacations Internationale would accommodate that issue for both utilities and access. GRAHAM:Okay and then on the ingress/egress of traffic as I caught your comment before Department of Public Works asked for 20 feet. MOOERS:Thats correct. GRAHAM:So, the additional 4 feet presumably would carry utilities underneath and could be used for expanding to 20 feet. MOOERS:Thats correct. GRAHAM:Okay. MOOERS:But that would then have to be approved by Department of Public Works under Condition 2 for Plan Approval. 6 EXHIBIT B GRAHAM:But at this point there is no requirement in your conditions that it be 20 feet for vehicular, its only the recommendation of the Department of Public Works? MOOERS:Thats correct. The Condition 2, I think addresses that when they talk about Plan Approval. And then also Condition 11, which states comply with all applicable County, State, Federal laws, regulations and requirements. GRAHAM:All right, thank you. GALDONES:Further questions of Mr. Mooers Commissioners? Commissioner Springer? SPRINGER:Either to Mr. Mooers or to Director Yuen, Im looking at the Kona Traffic th Safety Committee correspondence of June 25 and its from 2003, but Im wondering if those, and its noted as Exhibit Q. And in that they discuss ingress and egress from the site. They also discuss parking along Alii Drive and garbage and Im imagining delivery trucks also and how they come onto and off of the property. And, Im just wondering if this also will be taken up under Condition 2? MOOERS:Yes it would. SPRINGER:Thank you. GALDONES:Any further questions? Hearing none. Seeing that there is no further questions of the Applicants. Mr. Mooers and Mr. Huggett we do have some testifiers so if you relinquish those seats I would appreciate that. I have 4 seats here theres 5 here to testify. Ill take the first 4. Robert Kim, Brian Haney, Mike Kniss and Virginia Isbell. HAYASHI:Mr. Chair? I believe Ms. Isbell had to leave. GALDONES:Okay. Thank you Norman. Elizabeth Meyerson? Gentlemen and Maam your testimony will be recorded so we need to have you speakin the mike as clearly as possible. Firstwellhavetohaveyousworninsoifyoucouldallpleaseraiseyourrighthand.Doyou swear or affirm to tell the truth onthismatter now before the Hawaii County Planning Commission?Maam? MEYERSON:Ido. GALDONES:Sir? KNISS:Ido. HANEY:I do. GALDONES:Sir? 7 EXHIBIT B KIM:I do. GALDONES:Maam starting with you couldyou please state your name, your residence address and you may begin your testimony. MEYERSON:My name is Elizabeth Meyerson. I live at 74-5196 Kanai Place in Kailua- Kona. I am speaking on actually this issue and the next one coming up because I believe in fairness and theyre both going to be addressed by the same things that Im saying. Is thatall right with the Commissioners? GALDONES:However Maam your testimony will not carry on into the next subject matter. MEYERSON:I realize that, I realize. I just dont want to come up and say ditto again for thenextone. GALDONES:Okay,fine. MEYERSON:AswegoonIthinkyoullseewhatsgoingon.FirstofallIdontusually fling credentials around. But this time because of what Im goingto say I have to mention that Im a retired teacher of Environmental Chemistry and I taught it for 25 years. Ive also been very actively involved in many groups throughout the country not only here. There are 2 problems with both this and thenextarea thats going to come up. One of them is traffic. We now have only 1 way to get from North to South most times of the day that happens to be Alii Drive. We certainly cannot get anywhere on Queen Kaahumanu. Thats not going to happen. We are building many, many condominium residences down there, travel, time share residences which have a large number of people. They have no choice but to go out on Alii Drive. We have a tsunami zone. Do you realize that when those people have to get out of those buildings they have to go down towards the tsunami to get out? And were all told to run mauka so it puts them in jeopardy. And theyre continually building these condominiums down there that are a danger for people. And the responsibility will fall on the County if these people are hurt because of a tsunami. It may not happen but it may happen. The big problem that I see however is water. I think you all know the old saying water water everywhere not a drop to drink. Were getting there. Why are we getting there? Because our water is becoming so saline, so salty that its not fit for consumption. Within the next few years youre going to notice that everyone will have either bottled water or some kind of reverse osmosis filter. Our water supply department annually puts out a statement of the saliney of the water and they always say, oh, its not a danger. We arent even required to test this. Well it is a danger. One of the biggest problems in Hawaii is high blood pressure. And everyone knows, ask any doctor, tune into web MD on your computer and you will notice that it raises blood pressure. When we have an endemic situation here with blood pressure putting water into the supply of everyone who is drinking it here, people who cannot afford reverse osmosis filters and bottled water, is a problem. The latest figures on salinity were from 2003. Now I know weve built more and more of the shoreline and more and more consumption of water is occurring. What happens when you build at the shoreline is as you draw out the fresh water at the shoreline, salt water encroaches. I know this is happening because when I first moved here 10 years ago I called the water supply and I said my 8 EXHIBIT B water tastes salty. Remember chemistrys my area I can taste salt. And they said, well yes, we do have salt water encroachment. And I said well yes, what are you going to do about it? And they told me 10 years ago that theyre going to mix fresh water from above with the salt water below. And I said oh, great solution. Unfortunately 10 years have gone by, no mixing has occurred and I dont think, I could be wrong, I can be wrong, I dont think its going to happen in the next 10 years either. So what were doing is building all along Alii Drive, using up the fresh water thats there, allowing more and more salt water encroachment. There will come a time when we will say, water water everywhere but not a dropto drink. Thank you very much. GALDONES:Commissioners any questions of Ms. Meyerson? Thank you maam. Sir? KNISS:Yes, Im Mike Kniss, 75-5990 Alii Drive in Kona and Ill let Mr. Kim make comments for me. KIM:ThankyouMr.ChairmanandmembersoftheCommission.Irepresent Mr. Buscemi and Mr. Haney in this matter. What Id like to address first is the issue regarding the Contested Case hearing on March 23, 2005. Mr. Yuen by and through Mr. Norman Hayashi sent to all, had sent to Mr. Mooers on behalf of the Huggetts a letter in which they were informed that pursuant to Planning Commission Rules that they were to inform landowners and lessees of record that they have a right to request a Contested Case hearing and that should they seek to intervene they could do so. On March 31, 2005, Mooers Enterprises signed by Gregory Mooers had sent a letter to various landowners indicating a Notice of Special Management Area Use Permit Application. In that document there was no mention as directed by the Planning Director rd in the March 23 2005 letter to Mr. Mooers regarding the right to a Contested Case hearing. Fortunately for my clients the Planning Director had ‚ccdƒ Mr. Buscemi and Mr. Haney on his original correspondence. As a result of that, my clients timely filed a request for Contested Case hearing. In the presentation by the Planning Department they had indicated that these documents and fees which were properly submitted to the Department were untimely. I would humbly urge you that that decision is not to be made procedurally and under the law by the Planning Department. That decision must be made by the Planning Commission pursuant to your own Rules.AndinfactthatfoundationalbasisisestablishedbyMr.Yuensownletterandtherefore preliminarily I would ask the Commission to make ruling on the application for the Contested Casehearingsasamatterofeithermotionorbywhateverotherdecisionmakingformyouselect so that we can address that matter with the proper authority should you deny that request. My argument is as follows, the application pursuant to this SMA permit by the Huggetts is a new application as indicated in the letter by the Planning Director and as far as our position is concerned. We have the right as adjoining landowners when there is a new application and it is our argument that the application by substituting owners constitutes a new application. Thats our legal position. So we would ask you based upon our rights under the law for a Contested Case hearing to make a determination as to whether or not my clients and others have, will be able to obtain the right to a Contested Case hearing or is the Commission denying their right to a Contested Case hearing and the reasons therefore so we may have a record upon which we can seek redress. And, I say that because it appeared to me, and I could be wrong ladies and gentlemen of the Commission that the Planning Commissions, the Planning Departments position is that you need not rule on it. That basically they have determined, unilaterally, without submission to this Commission that it is untimely. And I dont think they have the legal 9 EXHIBIT B authority to do that and of course thats within your prerogative to defer to thembut I would request on behalf of my clients that you make a decision. Thank you. And once that procedural issue is decided I do have just brief comment on behalf of my client. Very brief. GALDONES:Thank you- Mr. Kim in consideration for the request that you have made I would like to have the Director or our legal Counsel give us some guidance. Mr. Yuen. YUEN:Point 1, this is not a new application. Its the same application with a different applicant and the application was never withdrawn, the application was continued and rd then the Applicant was changed but the application is still the same. Second, our March 23 letter was erroneous. We should not have told the Applicant to send that particular notice saying that there was a right to a Contested Case hearing because this was not the first hearing on the matter there had already been the opportunity to request a Contested Case. Third, I agree with Mr. Kim that the final decision on this should be made by the Commission. The Commission should take up the request for a Contested Case hearing. The Departments recommendation is that the Commission reject it as untimely. GALDONES:Mr. Torigoe, having heard the Directors comments is this proper before the Planning Commission to rule on those applications? TORIGOE:Thank you Mr. Chairman. First of all Id just like to note that for purposes of Contested Cases the Planning Director is considered a party so you know, in that sense he is free to put on record his position regarding these things. I would concur that the Planning Commission should take some kind of action to dispose of the, at least the actual applications that were submitted. I understand that there were a couple of people who sent in checks but did not send in an actual application. HAYASHI:Thats correct. GALDONES:Mr. Torigoe, in view of that statement that you made then do we, amongst thosewhohadsubmittedtheContestedCaseapplicationonlyMr.Haneyisheretheotherparties are not present. Is it proper for us, is it okay for us to act upon the others also or do we just act upon Mr. Haneys application? TORIGOE:Can we, is the record clear that all of these people had notice of the hearing today? KIM:Its not. HAYASHI:No, they did not get notice from the Planning Department. Somehow they were informed that there was this hearing. I believe Mr. Haney and Mr. Buscemi were notified of this hearing. As far as the other individuals I dont know how they were notified it could have been they were notified through the association. 10 EXHIBIT B YUEN:Are they individuals who were supposed to get notice? HAYASHI:I have not checked our file as far as Mr. Zimmerman, Mr. Armstrong and Mr. Spangler, as to whether they were supposed to get a notice from us. I can check that. YUEN:Well, my question is, is everyone thats an adjoining property owner whose entitled to get notice do we have a record that shows that all those people got notice? HAYASHI:We would have a record yes. YUEN:Yes, all right. Andif that is the case, the fact that somebody who either they are on that list and they got noticed and if they are not on that list but they filed a Contested Case hearing then its up to- if theyre not people who areentitled to get notice but they requested a Contested Case hearing I believe its up to them to come to the meeting and make theircase. KIM:Mr.Chairman,mayIsaysomethingfortherecord? GALDONES:Mr.Kim? KIM:Thankyou.InresponsetothePlanningDepartmentsrepresentation- GALDONES:Mr. Kim could you increase your volume please? Thank you. KIM:With regard to the representations of the Planning Department regarding notice I would want to state on the record that pursuant to information from my client the adjoining landowners have new tenants, new people who own property at the condominium next to the adjacent property and therefore they did not get notice, not everyone got notice of this meeting. With regard to the issue of notice itself, remember, even though they had submitted Contested Case hearings the notice submitted by Mr. Mooers in his March 31, 2005 letter did not contain notice of the Contested Case hearing. So it not only affects those who submitted the right to Contested Case hearing but those people who were never notified of their right to a Contested Case hearing as set forth in the March 23, 2005 letter from Mr. Yuen. With regard to Mr. Yuens comments that the letter is erroneous, the letter has never been withdrawn or corrected by the Planning Department. The letter itself which has been sent to my clients Mr. Buscemi and Mr. Haney constitutes a right upon which they could rely which was created by the Planning Director to file a Contested Case hearing. For the Planning Director now to unilaterally now withdraw his letter after Contested Case hearing requests were properly follow pursuant to the Planning Directors own direction is a deprivation of their Constitutional Rights of Due Process. And I would like to state that on the record before any vote. My feeling is and of course I defer to the wisdom of the Commission is that the matter should be deferred so that proper notice can be given not only to all property owners who are adjacent properly with whatever the correct information of the department is, but also to those who submitted Contested Case hearings so that the matter and the record can be properly set for whatever relief may be sought following the decision of the Planning Commission. Thank you. 11 EXHIBIT B GALDONES:Thank you Mr. Kim. YUEN:If I could just comment briefly. There wasnt a requirement to tell people that they had a right to a Contested Case hearing, because they didnt. So the notice that went out was proper. As far as the list of who was noticed we can double check that the notice went out. It does occur sometimes that people dont get noticed because the applicant is entitled to rely on the real property tax records, which are not continually updated. The final question, the final thing is that an erroneous letter on our part that said that you can request a Contested Case does not create such a right in violation of the rules of the Planning Commission. KIM:Mr. Chairman may I respond? GALDONES:Mr. Kim. KIM:WithregardtotheissueoftheContestedCasehearingIwouldjusturgethe members of the Commission to consult your own conscience as well as the rules in a dispute between my clients and their position relative to this application the Planning Director is also a party should a Circuit Court determine that this is properly a Contested Case hearing and so you must weigh all testimony with a grain of salt as to what information you can rely on and what information may be controverted. In terms of my legal position, it is that they, that they do have a right under the law to the Contested Case hearing, in this fact pattern and we assert that right and we would ask the Court, would ask this body to make a determination on the record and issue an order to that effect. HANEY:Mr. Chairman can I also add something to that? GALDONES:Proceed. HANEY:My name is Brian Haney. My primary address is 1000 Bourbon Street, New Orleans, Louisiana 70116 but Im a part time resident of the Sea Village Resort at 75-6002 Alii Drive in Kona. I just want to add onto the question that Director Yuen brought up. I checked the Hawai¡i Property Tax.com website and the addresses for the Armstrongs, the Spanglers and myself at 1000 Bourbon Street were all on the website as of the date that that letter was sent out, within a week afterwards. That is not the problem here. There is an outdated mailing list thats being used. My letter was sent to an address that I havent been at since 2001 and the Armstrongs and the Spanglers when I talked to them on the phone they said they received nothing on this. They are brand new owners, they have a right to be involved in this process and they should not be denied that right. They purchased before and after the Huggetts purchased the property. This has been dormant for a year and a half and we deserve our right to be heard. Our Board dropped its Contested Case but as you see we have many real issues that need to be dealt with on this and I personally think theyre best dealt with within a Contested Case but if you want to go through them today Ill be happy to go over them with you. Thank you. GALDONES:Commissioner- Commissioner Springer? 12 EXHIBIT B SPRINGER:I just have a question. Could you give us the rules- the rulenumbers per notice and filing for Contested Cases so we can refer to our rule packet? Mr. Torigoe? TORIGOE:Yes. In fact I was about to ask if Mr. Kim had any particular citations or rule that assuming that just for the sake of discussion assuming that this is not a new application that its a continuation of the old one where in the rules does it require a further mailed notice of the continued hearings? KIM:Would you like me to? GALDONES:Mr. Kim? KIM:Thank you. With regard to Corporation Counsels inquiry, the letter dated March- IWASHITA:Mr. Kim can you hold the mike closer to your mouth so we can hear cause werenotpickingup. KIM:Sorry.Inanswertoyourletter,Mr.Torigoe,yourquestion,itistheletter dated March 23, 2005 from the Planning Director to Mr. Mooers which instructs him as a duly authorized representative of the County government in the capacity of the Planning Director seat that he is required pursuant to his application which is in the letter and I would ask you to consult this letter which I have right here which he tells them is a new application. And my clients received this letter saying it was a new application. It directs Mr. Mooers and I will read it into the record. It says, and this letter now is dated March 23, 2005. Dear Mr. Mooers. This is to inform you that the above Special Management Area Use Permit Application has been scheduled for a continued public hearing by the Planning Commission. Now, on the letterhead itself it shows the applicants not being Mr. Soto but it says it is the Huggetts formerly Eric Soto. In the letter it says that the notice shall include the name of the Applicant and the other relevant information on page 1. On page 2, the Planning Director specifically informs Mr. Mooers that they must inform the landowners and lessees of record that they have a right to request a Contested Case hearing under the applicable procedures. Now my client got this letter and we prepared for today to request a Contested Case hearing. Are not the members of our public and citizens authorized to rely on a letter from the Planning Director as to their respective rights and remedies to come before this Commission? And so in answer, thats the basis and because this triggers that right the applicable rules as you have in your Commission Rules trigger for Contested Case hearing. That is my analysis. TORIGOE:Mr. Chairman. GALDONES:Mr. Torigoe. TORIGOE:So basically your clients are relying upon that March 23, 2005 letter from the Planning Director. My question was though, if- if you assume that this is considered a continuing application and not a new one is there a rule that says that the surrounding property owners are entitled to a, a mailed notice of the continued hearing. Because I think the 13 EXHIBIT B assumption of the rules is that if you have an ongoing application then people who wanta Contested Case would come in no later than 7 days prior to the first hearing, they would make their application for intervention, if the Planning Commission decides that they have standing then they will be admitted as parties at that point and then the Contested Case will go on from that point with those parties being constantly, being given notice. But the surrounding landowners would not necessarily get new notice as the application and the Contested Case hearing goes on. In this case, there was, the Association was admitted as a party and they would have been getting continuing notice but I dont know that theres a rule that requires for the surrounding landowners to receive continuing mail notice of further hearings if they are not Contested Case parties and if it is an ongoing application. KIM:Yes, and let me be, if I wasnt clear, Commission Rule 9 and Commission Rule 4 would be triggered by a new application. If it is the Corporation Countys position and the Planning Directors position that the new application by the Huggetts as far as our position is, isnotanewapplicationandthattheContestedCasehearingisdeniedthenthatstheprerogative of the Commission. Thats your pitch to the members of the Commission and that denial triggers a right by my clients to take whatever redress and relief to the Courts to determine as to whether or not the new ownership does in fact defacto or as a matter of right create a new application. And so, all were asking and again you know we have the controversy here, all were asking for the Commission is to look at the facts, determine with your rules and make a decision and well take it from there. IWASHITA:Mr. Chair. GALDONES:Commissioner Iwashita? IWASHITA:Was a letter in fact sent to the owners by the Applicant pursuant to that instructions in the letter Mr. Kim is talking about? KIM:May I address that? GALDONES:Sure. KIM:I did indicate and I can provide a copy that my client, my clients did receive a letter from Mr. Mooers dated March 31, 2005- Notice of Special Management Area Use Permit Application which does talk about a hearing on Friday, April 22 at 9 a.m. before this honorable body. And I do have a copy of the letter and so it was sent to my client however no Notice of the Right of Contested Case Hearing and other information as set forth in Mr. Yuens March 23, 2005 letter were included. IWASHITA:I have a follow up question for the Applicants representative. GALDONES:Proceed. IWASHITA:Why was not the instructions in Mr. Yuens letter followed in your letter? 14 EXHIBIT B rd MOOERS:When I received the letter, March 23 letter from Mr. Yuen, which acknowledges the continued public hearing not a new hearing but a continued public hearing and then the representations that we should be identifying that there was an opportunity for Contested Case I contacted the Planning Department Staff, asked Mr. Hayashi I said, you know this is the thth 4 or 5 meeting and we have noticed the neighbors for all the other meetings and no notice or no mention of Contested Case rights were mentioned in those notices because it was our understanding that that was only applicable to the first hearing. He concurred he said yes it was a mistake it should not have beenincluded in the letter you do not need to include the notice regarding the option for Contested Case in your notice to the neighbors. So thats why my notice did not include the mention of the Contested Case rights. IWASHITA:Another follow-up question. Did you update your mailing list? MOOERS:Yes, the service I use- IWASHITA:Let me finish the question please. Did you update your mailing list, in other words go back and recheck the owners according to the maps and get current addresses before you sent out your last notice? MOOERS:I use a service that does that. They use the Real Property Tax Base to check the notices. The maps dont change because the number of people within 300 feet would be the same. The question would be the new ownership and the ownership is established by those records and thats what my service depends upon. IWASHITA:And you provided updated lists to the Department Staff? MOOERS:Thats correct. When we receive a letter like this that requires us to send out a notice we develop the list, we send out the mailings and we send to the Director a copy of the notice that we sent in addition to a certificate of mailing from the United States Postal Service which indicates who we sent those mailers to. IWASHITA:Mr. Haneys comments indicate that this last letter was sent to a very old address whats the name of the service you use? MOOERS:Its a service out of Waimea, out of RE/MAX Pacific Realtor. I use his office. So I mean, I can check. I dont have that list with me, I dont know if Mr. Hayashi has the list with him but thats how the mailings are done. So that whatever, whoevers receiving the list theres a certificate of mailing from the postal service that sends that to me, I send that to the Director along with the mailing that I send out. IWASHITA:So is there any indication, do you have any indication if an address is bad? MOOERS:No. I mean, did the, I dont know how wed get an indication. I mean, I know that, that just in filing applications people will come to me and say they want to file an application for a change of zone. Ill look at the Real Property County Website and theyre not listed as the owner. Its because theyve recently acquired the property and that site is not 15 EXHIBIT B updated as often as maybe it should be. So its quite often, so when I submit an application for somebody who has, whos not listed in the Real Property Tax site, I always ask for a copy of their deed so that I dont get the letter back from the Planning Department saying gee our records show that your client doesnt own the property. So the fact that theres discrepancies does not surprise me. But in this case, I think Mr. Buscemi and Mr. Haney obviously were very aware of the hearing. Not only that they also have an opportunity to file a Contested Case previously. KIM:Mr. Chairman, mayIjust briefly respond to- GALDONES:Mr. Kim. KIM:Number 1 is, if I could as point of personal privilege or request whether or not Mr. Mooers has put into the record that he received a private conversation with Mr. Hayashi indicating that he need not comply with the Planning Directors letter. And my question for, I wouldasktheChairtoaskiswhetherornotthisMarch23,2005letteronCountystationarywas ever rescinded formally by any letter or the like because thats- that would be important for our case and with regard to my clients and Mr. Mooers comments as to the mailing list, theres no question we got notice. We got notice through Mr. Yuens letter. However the question for the Commission is what about those other individuals who are adjoining property owners, who are not here, who did not get notice. Thats the question I think is not really focused on. Thank you Mr. Chairman. GALDONES:Obviously Commissioners and also the applicants here. We would like to do the right thing in moving forward. However, in light of the discussion, the ongoing discussion I know that I realize that there are seems to be some legal obstacles that we need to overcome in making some kind of decision in the direction we are going. In order to do that, Commissioners we would have to confer with our legal Counsel, however I am in no position to make a motion for an Executive Session that would be- however, the Chair is allowed to entertain that motion for the- the Commissioners feel comfortable with that. Commissioner Iwashita? IWASHITA:I move for a recess for Executive Session. GALDONES:And could you state the purposes for the record. IWASHITA:For purpose of consulting with our attorney regarding the issues raised presently before us by Mr. Kim. GALDONES:Is there a second? SPRINGER:Second. GALDONES:It was moved by Commissioner Iwashita and seconded by Commissioner Springer that we go into Executive Session. Commissioner Graham? 16 EXHIBIT B GRAHAM:Im concerned with the timing issue here. Itseems likes we will probably want to go into Executive Session before we take a vote on this but italso feels like a lot of stuff has not been flushed out yet enough for the moment. And then may- cause I dont want to go into Executive Session and come back and have a bunch more discussion and go into Executive Session again so my sense is that we should kind of- be a little more up front about the issues unless theres some risk I dont understand in doing that so that we have more tightly focus on where were going with the Executive Session is what the issue is. GALDONES:Point well-taken Commissioner Graham. Are there any other questions that you have or issues that you would like to raise before we do a deliberation with our legal counsel? GRAHAM:Sure. Why dont I just- Sure, and maybe I should just put them forth without asking a particular question of anybody just so that everybody can sort of see whats chewingoninmymind.First,itseemslikeitsclearthatweareinthehabitoftaking applications where theres been an ownership change without having it be a new application because the item right preceding this on the agenda was a perfect example of that. It does seem that, to me that, the Planning Directors letter, which went out as he says now is erroneously- could reasonably be expected to have some negative consequences for you folks as to what you were expecting here today. But it certainly doesnt seem to me that it would imply that the applicant who as far as I can see is (inaudible) and followed proper protocol should be burdened with a Contested Case hearing which is not based upon our standard rules as a result of this erroneous letter. Also I feel like theres a issue of- were kind of mixing 2 issues the timeliness issue and the ownership issue. You talked about the change of ownership as maybe being a reason why it should be a new application. But if there was no change in ownership and it was still continued application from 12 months ago or more, there would also be new owners in the adjoining condominium and I dont believe they would be required to be notified of a new hearing. So I feel like we got a couple of issues kind of all pushed together here and I guess what I also would like to focus on at some point is if, where I started, if you folks have come here and been prejudiced in some way by that erroneous letter that we at least look at is there any other way that you could be- well I dont want to say compensated but that you know your prejudice could be remedied by the Planning Commission, rather than granting a Contested Case hearing which seems to me kind of off the face at this point in time, kind of uncalled for given our standard rules. So those are all the issues that are kind of running through my head and I just hate to go to Executive Session and come back and deal with all this stuff and need to go to Executive Session again, which is why I bring it up right now. IWASHITA:Mr. Chairman. GALDONES:Excuse me, Commissioner Iwashita, in light of Commissioner Grahams concerns do you wish to defer the motion for the moment until such time that Commissioner Graham has a comfort level that these questions can be answered before we proceed into Executive Session. 17 EXHIBIT B IWASHITA:How would you answer this? See, I guess based on the concernshe, Commissioner Graham expressed we can have a discussion about those concerns within the context of deciding you know, discussing the motion to go into Executive Session. GALDONES:That would be- IWASHITA:Yeah, I think we can just go forward- GALDONES:The Chair can entertain it- proceeding that way also. IWASHITA:Yeah we can discuss those things as part of the motion to go to Executive Session, is what Im suggesting. GALDONES:Okay. Mr. Kim? KIM:Yes, I just wanted to clarify my position Commissioner Graham. Yes, everythingyousaidaboutourpositioniscorrectbutIwantedtoclarifywithregardtoourlegal position, which we have a controversy with the Planning Director that in addition to the letter the fact is our position that the change of ownership does constitute a new application. And so having given all the prejudice it is our position in conformance with the March 23 letter that it is a new application and thats why we are legally entitled to it. I know how business has been conducted in previous administrations and in this body but the question legally is, is it a new application or isnt it and thats what were, were saying it is. GRAHAM:Without going into any kind of you know, citing legal cases but do you have any sort of supporting- do you have any supporting testimony as to why, that we can understand as to why this should be a new application even though we havent been treating such applications that way in the past? KIM:Ive researched it. Its a novel area of the law which has not been addressed by Hawai¡i Case Law. And you know, were a young state and so our position is- is that the Courts will determine whether or not it does, under the applicable laws and rules, constitute a new application or not. It is our position that it does. I can find no controlling authority as Vice President Gore once said to support the position but my legal education, in my mind, creates an argument that it is and it is supported by the Planning Directors letter. Cause otherwise when he read the letter or when Mr. Hayashi read the letter they would know that it was patently false. That this is purely not true. And I cant imagine that Government officials would sign such a letter and cavalierly just send it out and then tell the representative in a private meeting that its totally bogus. And so, from a, just a superficial level, we feel that it is a new application. GRAHAM:All right thank you for that. I just might add my own sense is that if Planning Director sent out a letter like that erroneously it wasnt in a cavalier attitude it was under a lot of pressure with a lot of other things hes dealing with. Thank you. HANEY:Mr. Chairman. Can I add 1 piece of history to the Contested Case issue? 18 EXHIBIT B GALDONES:Mr. Haney? HANEY:Yes, thank you. Actually 2 issues. One regarding, in speaking as an engineer and Im not a lawyer, I could see that if there was a case, this was a specific case out in the rural area where the ownership does not change and a permit was filed and it was continued for 5 years and none of the parties in the permit had changed that hey you might just say lets let that slide and well continue the permit. Thats not the case in this case, its been a year and a half, at least 20 units have sold at Sea Village in that period. Two of them are the most affected units in our building. One of them is going to lose 50% of its viewplane. These people are outraged, theyre incense and they have not been informed about this. So I ask you to consider them when youre making your decision. The other issue I wanted to respond to Mr. Mooers about mine and Mr. Buscemis chance for a Contested Case, yes we did get a chance and our Sea Village Board was negotiating with the previous owner Mr. Soto and Vacation Internationale. WewereaskednottofileaseparateContestedCasebecauseitwouldmuddythewaters.And we said fine, well let our Board handle it theyll take care of us so none of the owners filed their own Contested Cases. Two months later our Board decides that due to legal reasons that they cant represent us so now were left high and dry with no Contested Case. Now I know thats not your fault, its not Mr. Huggetts fault but what Im asking that you consider the fact that 18 owners signed a letter to you that said we are still concerned about this whether our Board agrees with us or not. I would be happy to send our Board a hundred bucks and Ill pick up their Contested Case just the way the Huggetts picked up the permit. Thank you. GALDONES:Commissioners are there any further questions or discussion? Commissioner Springer? SPRINGER:A question for either the Planning Department Staff or Director Yuen, st when was the error realized regarding the March 31 letter? HAYASHI:As soon as I believe Mr. Mooers received the letter he had contacted me by telephone andhe brought that to my attention. And at that point in time I told him yes, it was an error on our part by including that particular section in the letter. And, I need to confirm that yes, we did not send a subsequent letter over to Mr. Mooers indicating that- that this, that portions of the letter was incorrect. SPRINGER:Either to Mr. Mooers or to anyone else on the circulation list? The copy ofthisletter,Idontseemtohaveitinmypacket,wasdirectedtoMr.Mooerswasit?The st March 31 letter? HAYASHI:I cant quite hear you Im sorry. st SPRINGER:The March 31 letter was directed to Mr. Mooers? HAYASHI:That is correct. And we also copied, out of courtesy to Mr. Buscemi and Mr.Haney,theAssociationofApartmentOwnersattheSeaVillageandIbelievealso,theKona office and Mr. Huggett. 19 EXHIBIT B SPRINGER:So acknowledgement of the error took place verbally, between the Planning Department and Mr. Mooers but those to whom the original letter had been circulated as a courtesy copy were not informed? HAYASHI:That is correct. And, I take the responsibility for that. SPRINGER:My concern with this matter before us now is that the letter of the law I think has been amply clarified for us. But there has been this expectation that was created by the County authority to a portion of its citizenry. And I just, as we continue with the discussion that thats the concern that I have that this perhaps unrealistic but nonetheless expectation was created. Thank you. KIM:Mr. Chairman Im sorry could I clarify one thing? GALDONES:Mr. Kim? KIM:I want the record to be clear that the letter from Mr. Yuen is March 23, 2005andthattheletterfromMr.MooerstothepropertyownersisMarch31,2005.Justforthe record. GALDONES:Thank you. SPRINGER:Thank you. GALDONES:Any further discussion? Commissioner Alameda? ALAMEDA:Thank you Mr. Chair. Im just, given the further deliberations and what Ive heard from the applicants, are we still considering the need for Executive Session or ? GALDONES:The motion is still on the floor. ALAMEDA:Okay. IWASHITA:Mr. Chair. GALDONES:Commissioner Iwashita? IWASHITA:Thank you. I just wanted to get a clarification from I guess, Mr. Mooers on the most recent mailing list. My understanding is that you relied on this service that you used to update it? MOOERS:Thats correct. IWASHITA:You dont have any- do you have personal knowledge as to what efforts were made by your service to update the records? 20 EXHIBIT B MOOERS:No I do not. I dont get involved. IWASHITA:Thank you. GALDONES:Commissioner Graham? GRAHAM:Im about ready for Executive Session but I just wanted to make another comment was that at this point in time, Im making this now just because Id like to be public for people to hear and all but- if the erroneous letter in any way caused the, or was a cause for the applicants to miss some right that they could exercise then I would treat it very seriously in that sense but- if in fact this is not a new application and they dont have a right for intervention then the letter didnt cause them to miss any opportunity that they would have had minus the letter so- to me that is kind of a, a strong feature in my thinking about whether a Contested Case should be grantedatthistime. IWASHITA:Ihaveoneotherclarification.Mr.Haney,wherehastheRealProperty Tax Office been sending your Real Property Tax Bills in the last year? HANEY:They send it to 1000 Bourbon Street. Thats the address thats been on there for years. IWASHITA:And where did you- where was your letter sent to? HANEY:It was sent to- IWASHITA:Let me finish- the March 31, 2005 letter. rd HANEY:It was sent to- excuse me the March 23 letter was sent to the 1000 Bourbon Street. Thats the letter that came from the Planning Commission so the Planning Commission has the correct address. The letter from Mr. Mooers went to an address in Chesapeake, Virginia. IWASHITA:Thank you. GALDONES:Further discussion on the motion? Hearing none, Norman does this go through a roll call vote or is it by majority? Roll call vote? HAYASHI:Yes. GALDONES:Theresnofurtherdiscussionso,Normanforthevote? HAYASHI:ImsorryIdidntgetwhomovedandseconded.Oh,Mr.Iwashita? IWASHITA:Aye. 21 EXHIBIT B HAYASHI:Ms. Springer? SPRINGER:Yes. HAYASHI:Mr. Alameda? ALAMEDA:Yes. HAYASHI:Mr. Graham? GRAHAM:Yes. HAYASHI:Chair Galdones? GALDONES:Yes. HAYASHI:Mr.Chair,motioncarries. GALDONES:NormancouldyouseethattheroomisclearedforExecutiveSession? HAYASHI:Yes. GALDONES:Thank you. EXECUTIVE The Chair called an Executive Session at 12:04 p.m. SESSION The Commission came out of executive session at 12:07 p.m. by a motion made by Commissioner Iwashita, seconded by Commissioner Springer, and unanimously carried by a roll call vote of all Commissioners in attendance. GALDONES:The Hawai¡i County Planning Commission is now in order and continuing on the subject matter on application Number 2. Commissioner Graham? GRAHAM:Much of the gist of our discussion in Executive Session was that you know acting with impatience would not be proper for us and based on that Id like to make a motion that we continue this hearing to the next Kona date. And one of the primary reasons for continuing the hearing would be because of the improper notification issues, which arose during the discussion. And we feel its best that we do a notification as good as possible and we would ask the applicant to put extra diligence in trying to get the notification as proper as possible with current addresses for all those people who should properly receive notification. And also at our nexthearingwewillbetakingupthePetitionforStandinginContestedCase.Andsowewould invite any of the parties who wish to be prepared for that meeting to make the arguments in regardtothatandalsoanywrittencommunicationstheydliketomakeaheadoftimewewould certainly be happy to accept. So on that basis Id like to move that we continue the hearing till it canbeschedulednext. 22 EXHIBIT B GALDONES:For clarification Commissioner Graham and thenotice is for a continued hearing and not a new hearing? GRAHAM:Thats correct. The notice would be for a continued hearing of this agenda item were dealing withtoday. GALDONES:Is there a second? IWASHITA:Mr. Chair can I get a additional clarification which I anticipate and that is that this process be without prejudice to either parties, either the applicant or the other parties making claims in this proceeding? GALDONES:Is that? IWASHITA:I suggested that- that also be part of the motion. GALDONES:Do you accept that as a friendly amendment? GRAHAM:IthinkIacceptthespiritofit,Idontknowthewordsofit.ImeanImake this motion with no intention that there be any prejudice to any of the parties. GALDONES:Do I hear a second to the motion? SPRINGER:Second. GALDONES:It has been moved by Commissioner Graham and then seconded by Commissioner Springer. Further discussion? Clarification by Counsel? TORIGOE:Just to pick up on what Commissioner Iwashita was saying I think- I think the intent is that for the time being the new notice go out as a continued application not a new one however, the question of whether this is a new application or not is still open and that will be- that will be part of the hearing next time with respect to standing for the Contested Case applicants. So the continuance and the nature of the notice at this point is without prejudice to the attempted Intervenors rights to claim that this is a new application. Is that the? GRAHAM:That is my understanding. MOOERS:Mr. Chairman. GALDONES:Discussion? Mr. Kim would you like to come forward too in case there are any questions that you would like to ask? Mr. Mooers I will entertain your question. MOOERS:The question I have is this notice is- is this the notice that I indicated previously that just the hearing or do I have to indicate that they have rights for a Contested Case? 23 EXHIBIT B GRAHAM:My motion is- was intended to be just a motion that there be a hearing not that there be a Contested Case. MOOERS:Okay, I just wanted to make sure so were not back here with- GRAHAM:Correct. MOOERS:Okay. GALDONES:Mr. Kim if you have any questions for clarification purpose I will allow the question. KIM:I understand what this Commission is doing. We dont waive any rights and remedies you know, weve presented it,the Commission has acted and well be present at the next hearing. Thank you. HANEY:Mr. Chair. GALDONES:Mr.Haney. HANEY:ImnotsureifIllbeabletoattendthenextmeetingornotandIhada couple of items I wanted to cover- I was wondering if that would be all right. GALDONES:That would have been part of your public testimony? HANEY:It was supposed to be part of my testimony before we called the Executive Session so- Ill make it brief. GALDONES:Proceed. HANEY:Okay, thank you. Just to address a couple of the issues that are in the letter and I know Mr. Mooers has some contention on some of these and thats part of our reason why we think we need a Contested Case because it is a very confusing project. It involves 6 different parcels of land, 3 of them which are going to be used, one for the project, one thats jointly owned with Mr. Kniss and then- Mr. Mooers stated that they owned a 16 foot easement. Im not sure if somethings changed but the last time I looked that 16 foot piece of property was owned by Lilly Ako who is a woman who passed away several years ago and theres a driveway easement only on that which I think thats the one thats- not owned, the easement will be used by both Mr. Kniss and by Mr. Huggett for his project. Just wanted to clarify that. As Mr. Mooers acknowledged the easement has not been granted yet and we have spoken with VI who is also a part of the Sea Village Board, they own a third of our units, makes for an interesting situation. Theyve said that they will be negotiating on their own behalf and hopefully Sea Villages behalf as well to resolve some issues regarding viewplanes, the driveway and- those are probably the two main issues that theyll be negotiating on. Our concern though is that if an SMA permit is granted before the easement is in place that- its a little bit like the last 24 EXHIBIT B project you all were looking at. Is that „ then that puts us in the boat thatif they for some reason negotiations fall through then were back in front of you again and now the onus is on us to show that the SMA permit needs to be repealed. So we would- we would prefer that the negotiations and the easement be obtained first and then once everything is in place for the proposed project then we should come back to you and get the SMA permit approval. Thatll help to avoid that problem. On the issue of shoreline setback, I remember this used to be some confusion about this. I thought what Mr. Yuen said earlier was correct. I thought that there was a 50% rule and that if you calculate the build-able area and its less than 50% youre allowed to go within 20 feet of the shoreline instead of 40 feet. This is a real kind of a funny spot in the way the codes written- is all it says is required setbacks. And the way I did the calculations if you did a 1 or 2 story building with required setbacks that might actually not qualify and might be required to do 40 feet. Thats just my understanding of it, Ive worked with Norm a little bit on that and I think theres still some issues surrounding how those calculations are done. Its again the spirit of the law. Rule 8 it says is supposed to protect the shoreline. And if were selling- telling me that a 1 or 2 story building would not be allowed to encroach on the shoreline but a 3-story building would be allowed to encroach on the shoreline that seems to be a pretty funny law we have there. So, the thing that wed like to explore and I was talking with Mr. Huggett, who seems a lot nicer than the last owner outside during the break and one of the issues wed like to address with them, is theres a huge setback thats being applied on the mauka side. Theres a 25-foot jointly owned parcel and I think the plans have like another 14 feet in front of that. Id rather see us get a variance on the mauka side where we wont impact the shore. So lets move the building back 14 feet, well get the exact same build-able area and you wont be impacting the shoreline. That would seem like a win-win situation to me and it would help us meet the criteria in Rule 8 that were supposed to protect the shoreline. There were also some discussion about view impacts. There is not on a lot of units, but there are some units that are going to be significantly impacted losing- when I saw the viewplanes it looked like 40 or 50% of their, their view. It wouldnt take much movement to correct that problem and what I just mentioned about shifting the building mauka would also solve that problem as well. On the issue of the gravesite- we, you know, Ms. Nagai did come and testify about that, we submitted a letter from Dr. Rosendahl who said its possible that the gravesite is there. I was real happy to hear Mr. Mooer say that they werent going to be building on that area because I thought that they were- and if theyre not building on it then the building maybe its further back than I thought it was. I guess what Id like to see though is a map that shows where Ms. Nagai said the gravesite was, relative to where the buildings going to be so that we can clarify that issue. As far as the safety of the driveway. To me this is the most important issue and I know this is not part of the Planning Commission SMA permit process. Itll be dealt in the Plan Review but I do think that its worth bringing up. Theres a 16-foot easement right now, which has property lines on either sides. Theres a (inaudible), theres a 2-foot property line setback on either side 25 EXHIBIT B which yields roughly a 12-foot driveway. The ITE national standards recommend 30 feet for a building of this size. So theres a big difference between 30 and 12. Nowthey said that you- thats the recommended- they say you can go to a minimumof24 feet with 20-foot flares. That is actually coincides with the recommendation ofthe DPW, they recommended 24 foot with 15- foot flares. Now thats- but they said but well go even lower than that, well go down to 20 feet with 15-foot flares. So now were- were down below what the national standards are. Now, if you get a 20-foot easement you still have to take off the property line setbacks at least on one side. So, you know, youre down to 18 feet. So, to me that there seems like we need to get this driveway design down on paper, lets see a picture of it. I went out there and measured it this morning. Theres 26 feet between the Sea Village property line and the Sun Terra Office Building. The Sun Terra office building is on a very narrow skinny lot and essentially they have a non-standard setback so theyre right up on the road. When you come out of that driveway its nearly impossible to see down to the left towards town. Weve had 2 accidents, I personally, I witnessed one of them with a 2-year old girl bleeding from the head. It was very sad incident and the other one, a car went through the front of the building. The big white building next down to, where the surfers are down there. If one of those cars goes- and nobody got hurt fortunatelybecausenobodywashome.ButifsomebodysailsintotheVIofficebuildingand theres people in there 8 hours a day and somebody might get killed. We also have customers walking back and forth across that driveway all the time. So, theres real concerns about the driveway and I hope that we can reach something thats agreeable to everybody but I dont want people to think that thats a done deal and its been resolved already. There are some environmental concerns as well. This is a very low-lying lot. During Hurricane Iniki this lot was under quite a bit of water and I think the current design for the building has underground parking, its- not I shouldnt say underground, but its below grade level and- or is very low and were concerned that if we get a flood during something like that you might end up with cars in the water or at least automobile fluids in the water and thats an environmental concern as well. You know like I said these are very complicated issues, Im not sure we need a Contested Case to resolve it. Speaking with Mr. Huggett you know, maybe, who knows, maybe well figure something out but our concern is that these issues need to be heard and addressed somewhere and were just hoping that gets done. Thanks for your time. GALDONES:Thank you Mr. Haney. Commissioners any questions of Mr. Haney? Commissioner Iwashita? IWASHITA:Yes, Im glad theres discussion going on and I guess my question is one month sufficient? I would like to encourage that. One month sufficient time to work that out or not? HANEY:Im not sure I have an answer to that question. But I mean, its definitely something good to get started on I guess. Im going to be back on the island for June and most of July so- Im not sure when the next meeting is but I can always try to skip over a couple of days early too. 26 EXHIBIT B HUGGETT:Yeah, I- I think that we should continue this process. Obviously this project has been inthe cue for a- little over 2 years, 2 and a half years. I spent probably the vast part of last year working on an easement agreement with Vacation Internationales because it was my understanding that that was what we needed to do. So, I dont want to continue to drag this on and on and on and on. Im more than willing to sit down with- with Brian and whoever wants to talk to me and we can make discussions but at the end of the day you know we need to try to move this thing forward. GALDONES:Thank you. Commissioner Springer? SPRINGER:Im just wondering then if it would be appropriate for us to continue this until such time as we are notified by the Applicants representative that it should be scheduled before us. MOOERS:Could I respond to that? GALDONES:Mr. Mooers? MOOERS:Thatwastheinstructionsthelasttimeandwedidcomebackthistimeand we do have a letter of intent for that easement so I dont know that further discussions, I mean- In a perfect world Mr. Haney and Mr. Huggett will reach some solution but at some point we have to- the people that own that property are Vacation Internationale and they are agreeing to grant the easement and at some point we have to try to move forward. And consensus is wonderful but I dont know that we can continue to delay pending resolution of every issue raised by every neighbor. So my request would be is that we delay no further than the next hearing. GALDONES:What well do for the parties is to leave it to the Department to determine when they can put it back on the agenda again. Any further question of Mr. Haney? Any further discussion? If not, there is another individual who had just signed up to testify. Mr. John Gallant. GALLANT:Thank you, if its going to be continued I can go ahead and make the next one instead, probably more efficient. GALDONES:Thank you very much Sir. If theres no further discussion on the motion, Norman? HAYASHI:Thank you Mr. Chair before I call the roll call. Theres a couple of issues that- or information that I need. One is that, are we requesting the Applicant to notify the surrounding property owners of the next meeting is that the directive? Okay. And secondly, regarding those request for- or Petition for Standing that we received to date, do you want us to rescind those letters that we sent out to them? 27 EXHIBIT B TORIGOE:Yeah, I think part of the purpose of this is to inform those who did submit their Petitions that they will be heard at the next hearing. So some letter to that effect will be appropriate. HAYASHI:Okay. Third thing is that- related to the issue is that 3 of these individuals did not file a Petition in accordance with out rules. One is Mr. Buscemi who sent only a check with no Petition for Standing, also Lowell Zimmerman also sent a Petition but no check. The Armstrongs submitted the check but no Petition. So the only 2 that did file a Petition with the checks are Mark and Kim Spangler and Brian Haney. TORIGOE:Those that sent in no Petition, was there a letter that indicated that their intent was to-? HAYASHI:One of them had a letter with the intent. Mr. Buscemis check was attached to a note on a so-called tablet like this that he was forwarding the check over. TORIGOE:You know under the circumstances of this case I think itd probably be prudent to- for the Commission to dispose of all of these applications just to make sure everythings clear on the record. HAYASHI:Okay. TORIGOE:Or these attempted applications. HAYASHI:With that Ill call the roll-call for continuance of this hearing. Mr. Graham? GRAHAM:Aye. HAYASHI:Ms. Springer? SPRINGER:Yes HAYASHI:Mr. Alameda? ALAMEDA:Yes. HAYASHI:Mr. Iwashita? IWASHITA:Aye. HAYASHI:And Chair Galdones? GALDONES:Aye. HAYASHI:Mr. Chair motion carries. 28 EXHIBIT B GALDONES:Thank you. Mr. Mooers you will be informed in writing of- MOOERS:So I will receive a letter that will instruct us to do the mailing? Thank you. TORIGOE:One brief housekeeping matter, I think, part of the motion was to invite feedback or information regarding your positions on whether this is a new application or not. Can we have some consensus as to when this would happen- like perhaps 10 days before the hearing or- is that something that we can agree on? MOOERS:Youre asking to submit a legal brief as to why this is not a new application? TORIGOE:Basically yes. MOOERS:Yes- 10 days prior to hearing is fine. KIM:RobertKim,thankyou,10-daysisfine.AslongasIdidsignupthatthe notice of the new hearing is sent to either my client or myself. Because you see I dont know when this hearing is, my client lives on the mainland. I would comply with that request if the Planning Department would send me the notice directly and Ill leave my address. TORIGOE:Okay. Norman is that any problem? Can we send notice directly to Mr. Kim as well? HAYASHI:What, Im sorry? TORIGOE:Can we send a notice of the next hearing directly to Mr. Kim as well? HAYASHI:Oh yeah, sure. TORIGOE:Thank you. KIM:Thank you, nothing further. GALDONES:Thank you gentlemen. The discussion ended at 12:30 p.m. Respectfully submitted, Lynette Sanemitsu, West Hawai¡i Secretary 29 EXHIBIT B