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HomeMy WebLinkAbout2006-05-26 TSunstone PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT May 26, 2006 A regularly advertised hearing on the application of SUNSTONE KONA, LLC (SMA 05-005) was called to order at 3:32 p.m. at the King Kamehameha's Kona Beach Hotel, 75-5660 Palani Road, Kailua-Kona, Hawaii with Chairman C. Kimo Alameda presiding. PRESENT:C. Kimo AlamedaABSENT & EXCUSED: Jeffrey McCall Fred GaldonesRene€ Siracusa Bill Graham Andrew Iwashita AllenSalavea 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 21 people from the public in attendance. APPLICANT: SUNSTONE KONA, LLC (SMA 05-005) Special Management Area (SMA) Use Permit to allow the development of 289 Multiple-Family Residential units and related improvements, including associated commercial space. The property is bordered by Alii Drive and Kuakini Highway, approximately 1,040 feet south of the nd Lunapule Road-Alii Drive intersection, Kahului 2 , North Kona, Hawaii, TMK: 7-5-19:1. ALAMEDA:Final agenda item, Sunstone, Kona, LLC, SMA 05-005. Staff? DARROW:Thank you, Mr. Chairman. If I can direct your attention to the location map on the board, the area of this application is within the North Kona District of Hawai i. Just for reference, this white line running in a north-south direction is Alii Drive. We have Kuakini Highway with the red line, the red line signifying the SMA. The area of this application is identified with two red dots; and the reason for that is because it contains portions of the property being broken up through the proposed Kahului to Keauhou Parkway. Again, for reference, just to bring to your attention condominium units in the area, in this particular area we have the Kona Sea Ridge Condominiums. Up in this particular area, we have the Kona Sea Villas; we have Alii Park Place which we€ve received quite of bit of correspondence from people within that facility. And then in this particular area, we have the Alii Lani Townhouse complex. We might be referring to those throughout the hearing. This area identified in yellow which signifies the zoning is the Kahakai Estates Subdivision. 1EXHIBIT E The Applicant in this case, Sunstone Kona LLC, is requesting a Special Management Area Use Permit for 289 multi-family residential units. These will include several different types of structures, one three-plex, one four-plex, three six-plex and 33 eight-plex, which we have one elevation identifying what that particular structure will propose to be constructed as. Additionally, the Applicant is proposing recreational improvements, including swimming pools, pedestrian walkways, barbeque pits and open spaces on the property, and, lastly, a commercial area which is identified as Block C on the Development Plan. The Applicant is proposing to construct a two-story structure that will have approximately 45,000 square feet of commercial area. The zoning in the area identified, the lighter brown is zoned Multiple-Family 7,000 square feet. The darker brown is Multiple-Family 4,000 square feet and the light pink is the Commercial zoning on the property. These came into effect through Ordinance 87-47; and you€ll see that that has been referenced quite a bit in the conditions and in the recommendation. There are quite a fewapplicableconditionsfromthatChangeofZoneOrdinancethatareapplicabletothe conditions of this Special Management Area permit -- more specifically, Condition No. M of the ordinance which requires the Applicant to pay for the improvements to the drainage, to Waiaha drainage-way. Condition J requires the Applicant to pay for improvements to the proposed Keauhou to Kahului Parkway. Additionally, all the other applicable conditions of that ordinance will be conditions of this Special Management Area Use Permit. Condition No. 6, if I can bring that to your attention, speaks in great detail regarding the roadway improvements, as well as the phasing of this property. The access for this particular project is going to be from, at this time, from Alii Drive, it will be on Alii Lani Drive, which is identified in this white line which is just north of the Alii Lani Townhouse; it will come up to the proposed Keauhou, Kahului to Keauhou Parkway; and then on the southern boundary of the upper side of the property, it will connect to Kuakini. The Planning Director has made it clear that these three segments of improvements will trigger certain requirements as far as the improvements. Nothing can be constructed makai of the Parkway until there€s a connection either from Alii Drive to the Parkway and this Parkway is open for travel, or the Applicant will have to construct the road from Alii Drive all the way up to Kuakini Highway, and that€ll have to be open for travel for development to occur below, makai of the Parkway. Other than that, if development occurs above the Parkway, then the Applicant will have to provide access through Kuakini Highway. Additionally, there are quite a number of substantial drainage conditions that the Applicant will have to comply with. There is, we have sent out a revised recommendation with conditions. Hopefully, all the Commissioners had gotten that. And, additionally, last minute changes to Conditions 19 and 22 have been handed out to the Commissioners. It should be on a single yellow sheet. Lastly, it came to our attention this morning that there is one condition we€d like to just clean up; and that€s Condition No. 15. If you€ll notice at the beginning of the condition, we have a reference to, Prior to the issuance of any building permit,‚ and we had deleted the word construction.‚ We€d like to do the same change at the last sentence of that particular -. So 2EXHIBIT E where it says Prior to the issuance of construction permit,‚ we€d like to delete construction‚ and add in the word building.‚ The Planning Department has received one letter this morning. There were copies made and hopefully that letter has been passed out. It was a letter with several signatures from different people, petitions in the area. Additionally, originally we had approximately nine people submit the Petition for Standing in Contested Cases. Since things have been resolved, just to backtrack for a minute, originally the Applicant proposed that access be on the south side of Alii Parkway, which is right here of the Alii Park Place Condominium project. This was going to be a temporary access until the Parkway was constructed, and then they would have to construct a permanent access along Alii Lani; and this would be deleted. But at this time, because of such opposition from the Park Place residents, the Planning Director has worked out conditions with the Applicant to be able to begin constructiononAliiLaniDrive. Sosincethatoccurred,wehadtheApplicantnotifysurroundingpropertyownersfromthat particular area; and since then we€ve received two additional Petitions for Standing. We€ve had four people withdraw, correction, five people withdraw their Petitions for Standing. At this time, we still have four that are pending, and these include Malcolm and Virginia Scott, James and Karen Grimp --. ALAMEDA:Could you show us what the letter is? DARROW:Okay. Letter C, letter G, H and I. ALAMEDA:The reason for the others to withdraw? DARROW:The reason, I believe that the original, that these people had withdrawn, again, because they were occupants of the Alii Park Place and once the Applicant had agreed to move it further south that they had felt that that was accommodating to their needs. ALAMEDA:Okay. DARROW:The Planning Director is recommending that this permit be approved by the Planning Commission. Are there any questions? ALAMEDA:Yes. Commissioner Watanabe? WATANABE: I have a question regarding that mauka-makai connector. You had mentioned when we were at the south end of the parcel and we had, you know, these other five people petitioning for a Contested Case Hearing status, according to what you described, that it was going to be temporary. It was never considered a permanent mauka-makai connector? DARROW:Correct. That€s actually addressed in the ordinance. It talks about a temporary access and it addresses that in great detail; and then at such time that there was a permanent access constructed, that the temporary access would be deleted. 3EXHIBIT E WATANABE: Okay. Thank you. ALAMEDA:Any other questions? Jeff, my understanding is once there€s a Contested Case request, then that, basically, kind of like a, anybody has a right to, well, you have to be able to be within 500 feet. Or is that, who has the right to contest? DARROW:If I can refer that to our Corporation Counsel. ALAMEDA:Just for the public€s ƒ. TORIGOE:Thank you, Mr. Chairman. Your Rule 4-7 talks about Contested Case procedures. People who want to have a formal Contested Case have to apply no later than seven calendar days prior to the first meeting on matter upon receipt of a written request to intervene. The Commission, at the first meeting on the matter, shall hold a hearing on the written request. Ifthemovantcandemonstratethathisorherinterestisclearlydistinguishablefromthatofthe general public, or if it€s a government agency whose jurisdiction includes the land involved, or if the Petitioner has some property interest in the land or lawfully resides on the land, or No. 4 that the proposed action, they can show that the proposed action will cause them actual or threatening injury in fact, or No. 5 if there are persons who are descendants of Native Hawaiians who inhabited the Hawaiian islands prior to 1778, who practiced some kind of customarily and traditionally exercised rights on the land, then people with those kinds of special interests can be admitted as parties to the Contested Case. And the Commission shall grant or deny such written request prior to any further action on the matter. And, of course, if you grant standing to any of these parties who requested a Contested Case, then the Commission will then decide also whether to hear the Contested Case itself or whether to refer the Contested Case Hearing to a hearings officer, who will then hold the Contested Case Hearing and present a report and a Proposed Findings of Fact, Conclusions or Decision to the Commission. ALAMEDA:And so, Jeff, all these four parties that were granted or petitioning for standing, they all meet the qualifications that Mr. Torigoe just shared? DARROW:They€ve all received the letter from the Applicant so that would let us know that they are within the 300 feet. ALAMEDA:Okay. DARROW:I want to make one correction. Apparently, the Director is looking at me kind of funny so this reference to a temporary access was not from Alii Drive; and I apologize for that. That was a temporary access that was to be granted from Kuakini. So, if you could disregard that. That was not referencing this access off Alii Drive. ALAMEDA:Okay. DARROW:Thank you. ALAMEDA:Any questions for staff? So, Mr. Torigoe, do we decide on whether or not to grant standing before we allow the Applicants to come up, or could you review the procedures? 4EXHIBIT E TORIGOE:Well, basically, that should be the first order of business when you€re taking up an application, when you receive a Request for Standing in a Contested Case. ALAMEDA:Okay. TORIGOE:And essentially you€ll be bringing up those who have applied, asking if they have anything extra or anything to add to their application and, also, allowing the Applicant to respond. And then you need to make a decision as to whether the Applicants meet any of those four criteria that I mentioned from your Rule 4-7(b). ALAMEDA:Okay. So we€re talking about the Applicant then the, or the Petitioners first? TORIGOE:IthinkyouwanttobringupthePetitionersandbasicallyallowthemone- at-a-time to go through their petitions, see if they have anything to add, if there are any questions to them regarding their standing, then allow the Applicant also to respond to that, and make a decision on each one. ALAMEDA:Okay. So could I call, let€s see, Malcolm and Virginia Scott? Are you here today? PUBLIC:They€re not here. ALAMEDA:How about James and Karen Grimp? GRIMP:I€m Karen Grimp. ALAMEDA:Okay. We should make a decision on Malcolm and Virginia Scott, well, before moving ahead. Mr. Director? YUEN:I just wanted to say one thing in addition to the background that was given so far. Well, the question of the connector road between Alii Drive and the future Kahului- Keauhou Parkway was determined in a planning decision that was made by the County€s planning consultants for the highway, R.M. Towill, and it was established to be at Alii Lani. So this would be the major intersection in this area between Royal Poinciana and where the Parkway would cross the Kuakini Highway. Originally, Sunstone did come up with a proposal that it be relocated to the adjacent, to Alii Park Place, but the County said that we wanted to stick with a decision that had been made previously to have it next to Alii Lani. This design has been posted on the County€s website since 2001 or 2002. The connector road would be next to Alii Lani. ALAMEDA:Okay. Commissioner Watanabe? WATANABE: So, for clarification, then you€re saying that we€re back to the original plan, basically? 5EXHIBIT E YUEN:Right. But we€re back to the plan that was established some time, I think, about 2000 or 2001, to have the connector road come up from Alii Lani, along Alii Lani. WATANABE: Yeah. The only reason I bring that up is because, you know, it doesn€t seem as though the people I€ve heard from are in opposition to a mauka-makai connector. They all believe it€s, you know, fine. But I guess the confusion arises because originally it was, I guess, to the north of this in the subdivision plan and now you€re moving it back. And now so far five people bowed out, said no, I don€t need,‚ you know, to have standing established‚, and then we have other people jumping in because they are on this, I guess, the south end. YUEN:And I just didn€t want to leave it with the impression that because a group of people from Alii Park Place complained and filed Contested Case Hearings, then we decided, well, go to Alii Lani. That had been the designated connection location previously. WATANABE:Okay.Iappreciatethat.Thankyou. ALAMEDA:Allright.ButbeforewegotoMs.Grimp,Iwantedtoaskmyfellow Commissioners if they could take a look at Malcolm and Virginia Scott€s application to see if it warrants standing and if we could decide on that. GALDONES:Mr. Chair? ALAMEDA:Yes, Mr. Galdones? GALDONES:Scratch that. ALAMEDA:Okay. Fellow Commissioners, I still need your assistance in helping me -. Could we make a motion on this, Mr. Torigoe? TORIGOE:Yeah, at some point; and you can ask for background or other information. ALAMEDA:Yes, Commissioner Watanabe? WATANABE:According to their Petition, they live 15 feet from, I guess, it€s the southern property line of Alii Park Place. That€s what it seems like. ALAMEDA:That sounds like it fits the definition. WATANABE:Yeah. So it would seem to indicate that they should have standing. ALAMEDA:Okay. Make a motion? WATANABE:Yeah, I move that we grant standing to Malcolm and Virginia Scott. GALDONES:Second. 6EXHIBIT E ALAMEDA:Motion made by Commissioner Watanabe, seconded by Commissioner Galdones, that we grant standing to Malcolm and Virginia Scott. Just a second, we may be going ahead of ourselves. YUEN:Yeah, I just want to make it -. This is an individual who has asked for standing based on their location on Alii Park Place, at a time when the connector road was proposed along Alii Park Place, and the connector road is no longer along Alii Park Place. ALAMEDA:So then they wouldn€t fulfill the criteria of -? YUEN:It€s still up to the Commissioners. I just want to make it clear to the Commission that ƒ . WATANABE:Right. I understand that they were one of the nine original that did not withdrawtheirPetitionforStanding.Yeah,Iunderstandthat. ALAMEDA:Also,Mr.Lim,couldyoupleasecome-.WilltheApplicantorits representative, please come forward. I€m sorry, this is kind of new for us. We didn€t have so many contested cases in one or petitions in one application, so -. Mr. Lim, let me swear you in so we can get formal. Do you swear or affirm to tell the truth now before the Hawai i County Planning Commission? LIM:I do. MOOERS:I do. ALAMEDA:Thank you. Please state your name and address for the record? LIM:Steven Lim of Carlsmith Ball, in Hilo. ALAMEDA:Thank you. And, Mr. Mooers, your connection? MOOERS:I also am working on this project. ALAMEDA:Okay. Mr. Lim, would you like to respond to that Malcolm and Virginia Scott application? LIM:Yes. I understand they€re not here. Is that correct? ALAMEDA:Yes, they€re not here. LIM:We would, on behalf of the Applicant, Sunstone, object to the standing being granted to Malcolm and Virginia Scott in that we believe that the reason for their intervention was the location of the roadway adjacent to their residence. It has now been moved substantially south. ALAMEDA:Very good. Thank you. Did you get a chance to talk to Malcolm and Virginia Scott about that or -? Mr. Mooers? 7EXHIBIT E MOOERS:No, I made multiple attempts to contact them and I could not. I believe this conversation was with Mr. Allen, and he said that he would try to go by their unit. Apparently, they travel a good deal and they€re not always here in Hawai i. ALAMEDA:Okay. I gotcha. Commissioner Galdones? GALDONES:Either Mr. Lim or Mr. Mooers, with the new alignment right now, where would, how far away would their residence or their lot be from the driveway? LIM:Ballparking about a thousand feet. I believe the Scotts are the only ones from the original group who haven€t withdrawn. ALAMEDA:Okay. ALLEN:That€s not correct. LIM:Okay. I€m sorry. ALAMEDA:Commissioner Watanabe? WATANABE: I have a question for counsel. It seems that it would appear that Mr. Allen who has not been called up yet is you know, seeking standing in this, even though he is located in that same apartment complex that the Scotts are located in. ALLEN:The president of the association -. WATANABE: Yeah. I€m wondering, you know, if standing is, if we shouldn€t consider it because now the roadway is moved. Is there any guarantee the roadway is going to remain where it is now? Not that I didn€t have any objection to it being on either side but, you know -. Is there any harm in granting them standing when their only objection is the former location of the mauka-makai connector? TORIGOE:It€s up to the Commission to determine on a case-by-case, person-by- person basis, whether under the facts it seems like the petitioner has an interest clearly distinguishable from that of the general public. So, you know, if you want to call Mr. Allen up and ask him for further information, you can do that. It€s basically a ƒ. ALAMEDA:I know Mr. Allen is back there and wanting to come up. But are still working on Malcolm and Virginia Scott? ALLEN:I can help clarify that. TORIGOE:You are. But I think you have, you know, you have the ability to, it was testimony from people who are willing to come and provide it. ALAMEDA:Right. Okay. And to just stand corrected, the Petition for Standing by James Allen was not withdrawn. 8EXHIBIT E DARROW:If I could -. He had called and verbally had withdrawn. We had requested he submit a letter in writing, he did not. So, today, it appears that he is not withdrawing at this time. ALAMEDA:Okay. So you€re still on the agenda. We€ll get to you. So, but if we need more clarification on Malcolm and Virginia Scott and Mr. Allen is the only one who can provide that, should we allow him to come up? TORIGOE:Yeah. You could do that. In fact, it€ll probably be appropriate that if members of the public want to testify on any of the particular applications, you could allow that as well. ALAMEDA:Okay. TORIGOE:You know, for instance, if Mr. Allen would like to testify as a member of thepublic,that€ssomethingthatyoushouldallow,also. ALAMEDA:Okay,so,let€ssticktoMalcolmandVirginiaScott.CouldIinvite Mr. Allen up to the front. Mr. Allen? You guys can all sit there, yeah. So regarding Malcolm and Virginia Scott€s Petition, oh, please raise your right hand. Do you swear or affirm to tell the truth now before the Hawai i County Planning Commission? ALLEN:I do. ALAMEDA:Thank you. Please state your name and address for the record. ALLEN:James Allen, 75-6025 Alii Drive, Unit F-101. ALAMEDA:All right. Thank you. You have anything to add regarding Malcolm and Virginia Scott? ALLEN:Okay, the reason the Board had petitioned for the Contested Case Hearing was the indication that the road was going to be located directly next to Alii Park Place. If the road is going to be moved, the Board would withdraw the Contested Case Hearing; and I believe all of the owners within Alii Park Place would have withdrawn their application. I have not been able to reach Malcolm but the only reason why he submitted for the Contested Case Hearing was because of our recommendation that we wanted as many people as possible to, you know, fight for that road not being put there, which we had assurances from the developer, from the realtors, and actually letters I believe from Chris indicating that that road was not going to be put there and that the road would be located next to Alii Lani. And, as well, I believe that the developer of Alii Lani actually put it in the deeds that the road would be adjacent to that, to Alii Lani; and that€s where the County had the road originally designed to go. So if that€s going to happen, I would withdraw our Contested Case Hearing or the Petition to be in a Contested Case Hearing and, really, don€t object to the project. ALAMEDA:Okay. Commissioner Watanabe? 9EXHIBIT E WATANABE: So then,isit your testimony that, to some degree, you do have Mr. Scott€s authorization to withdraw assuming that the road is relocated? ALLEN:It€s my understanding that was his only objection to the project, was that it was going to be located along, the roadway was going to go along -. I have not had a conversation with him that specifically states that he wants to withdraw his Contested Case Hearing. ALAMEDA:Commissioner Graham? GRAHAM:My sense of the situation is that we can gather he probably wants to withdraw, but we don€t have any real concrete evidence he does. So my sense would be that we bypass him in our consideration for a moment and then if we approve others in a Contested Case Hearing so that we know we€re going to have a Contested Case Hearing, thenwe can go back andpickhimupandgranthimstanding,also.Thenhecanchoosetopulloutofit.Butifhe turns out to be the only one, then we€ve got a real issue to deal with; but we may not get to that point. ALAMEDA:Okay. Well, then, if we do that and we€re okay with that and there€s no objection to that, then we€ve got Mr. Allen standing right there; and you could tell us if you want to withdraw. ALLEN:Again, we will withdraw the Petition. And the only reason why that I attended this is that I understand that there€s a Contested or application for Contested Case for the location of the road now and I just didn€t want to withdraw my Contested Case application and the road moved back. So if I can get the assurances of that, aye, we€re good, we€ll withdraw. And I€m sure Karen would, I can€t speak for Karen but ƒ. ALAMEDA:Okay. Commissioner Galdones? GALDONES:Mr. Chair, thank you. In light of the statement that was made by Mr. Allen, I€m going to withdraw my second to Commissioner Watanabe€s motion to grant standing on the Petition that was filed by Malcolm and Virginia Scott. ALAMEDA:Okay. Commissioner Salavea? SALAVEA:Can I ask Mr. Allen, approximately how far is the road located in its present location away from where you folks live? ALLEN:Couple hundred feet, 200 feet, 300 feet, I€m not exactly sure. MOOERS:Four hundred. ALLEN:Four hundred. MOOERS:Four hundred feet. It€s, I mean, it€s right next door to it. SALAVAEA:Okay, thank you. 10EXHIBIT E ALLEN:Four hundred is the one. ALAMEDA:So -. ALLEN:Onthe map, it€s located right next to the property line. ALAMEDA:Okay. So with regard to, I heard all you need is assurances that the road will be in the place that we just said it will be. Mr. Director, how do we make assurances on that? YUEN:Well, their application is to put it next to Alii Lani. And if you wanted to have an application to put it next to Alii Park Place, you€d have to, you need a new application, and we€d renotice that, and people can re-apply for the Contested Case at that time. That€s about themostassuranceIcangiverightnow. ALAMEDA:Verygood.Doesthatsatisfyyou,Mr.Allen? ALLEN:Yes,itdoes. ALAMEDA:Okay.Thankyou. WATANABE:Based on that then I withdraw the motion. ALAMEDA:Okay. So, Mr. Allen, you may be seated. DARROW:I think a new motion is probably in order, right? ALAMEDA:Okay. Mr. Torigoe? TORIGOE:So, is Mr. Allen then on the record today withdrawing the motion, withdrawing his Petition for Standing? ALAMEDA:Mr. Allen? ALLEN:Yeah. TORIGOE:He indicates, yes. If he€s withdrawing that Petition, then there€s no need for you to take any action on it. ALAMEDA:All right. And we€ll skip Malcolm and Virginia Scott because -. Oh, no -. WATANABE:Actually, we can -. Well, okay. ALAMEDA:Because we€re going to take in Commissioner Graham€s advice, we€ll wait to the end? WATANABE:Yeah, okay. 11EXHIBIT E ALAMEDA:Okay. And we can get to Karen Grimp, your Petition for Standing. Go ahead. GRIMP:Actually, I€d also like to concur with Mr. Allen and withdraw, based on the fact that, we just wanted to make sure when we came to the meeting that we weren€t going to withdraw our Petition, that new Petitions be filed, and all of sudden we€re back to square one where it goes back over to running next to our property. ALAMEDA:Okay. All right. Excuse me? Did I swear you in? GRIMP:No. ALAMEDA:Oh. Please raise your right hand. Thanks for being so honest. Do you swearoraffirmtotellthetruthnowbeforetheHawai iCountyPlanningCommission? GRIMP:Ido. ALAMEDA:Youdo,youdid.Thankyou.Okay,sofortherecord,then,youwithdrew your application for standing? GRIMP:Yes. ALAMEDA:Okay. Thank you. You may be seated. So, then, that gets us to Raymond Rusalavich. Please come forward. May I swear you in, sir? Do you swear or affirm to tell the truth now before the Hawai i County Planning Commission? RUSALAVICH: Yes, sir, I do. ALAMEDA:Thank you, sir. Could you please state your name and address for the record? RUSALAVICH: Yes. Raymond A. Rusalavich, 75-6056B Alii Drive, Hawaii, I€m sorry, Hawaii Planing Mills Subdivision on the makai side of Alii Drive. ALAMEDA:Okay. Your Petition for Standing, do you want to share a little bit about it or your reasons for it? RUSALAVICH: I think it€s about privacy, safety and drainage concerns as stated on the application, and at this point I don€t have much more to add. ALAMEDA:Okay. Staff, did you receive the application in a timely manner and ƒ? DARROW:Yes. ALAMEDA:Okay. Fellow Commissioners, what€s your pleasure? Commissioner Galdones? 12EXHIBIT E GALDONES:Thank you, Mr. Chair. LIM:Excuse me, Mr. Chairman. ALAMEDA:Oh, sorry. Go ahead. LIM:Just for the record, I guess we€d liketo have a standing objection on all of the Contested Case Intervenors, that their interest is not clearly distinguishable from that of the general public. Thank you. ALAMEDA:Okay. Thank you, Mr. Lim. Hearing that, Commissioner Galdones? GALDONES:Mr. Rusalavich, where is your property located? RUSALAVICH:Approximately,lookingatthemap,withtheproposedrealignment,it€sthe second house on the makai side on the south side of -. There€s a road, directly across, where the new connector road abuts Alii Drive, going makai, I would be the second house on the right- hand side. GALDONES:Right alongside of the new connector road? RUSALAVICH: It€s sort of within a couple hundred feet of the end of where the road will terminate. DARROW:Could we ask you to come up and point it out for us? RUSALAVICH: Sure. DARROW:Thank you. RUSALAVICH: This map would be the easiest right here. But this is Alii Park Place right here and it€s not real clearly defined with their homes and things. This is where they originally proposed and this here is, right here, this is where I€m at. Right at this intersection -. ALAMEDA:Could you mark it? RUSALAVICH: Sure. ALAMEDA:Jeff, if you don€t mind, we can mark your map? DARROW:Yeah, that€s fine. Okay, here, I€ll put you over on our map. ALAMEDA:Okay. TORIGOE:For the record, Jeff, what kind of mark are you putting on the map to show where Mr. Rusalavich house is? DARROW:I€ll put a RR.‚ 13EXHIBIT E ALAMEDA:Allright. Thank you. Mr. Galdones, do you want to continue in your questioning or ƒ? GALDONES:No, that answered my question. ALAMEDA:That answered your question. Commissioner Salavea? SALAVEA:So, thank you, Mr. Chair. Mr. Rusalavich, that would be directly across of the proposed roadway, is that correct? RUSALAVICH: Well, I wouldn€t say exactly directly across. The maps are a little deceiving. It€s approximately 10 to 20 to 40 feet to the north of where the connector road would terminate on Alii Drive. SALAVEA:That€s fine. RUSALAVICH: Okay. SALAVEA: Thank you. ALAMEDA:Fellow Commissioners, there€s a -. Commissioner Graham? Go ahead. GRAHAM:I want to make a motion to grant standing. ALAMEDA:Sure. GRAHAM:So I move to grant standing to Mr. Rusalavich on the matter before us for a Contested Case Hearing. SALAVEA:Second. ALAMEDA:Motion was made by Commissioner Graham, seconded by Commissioner Salavea. Discussion? Staff? DARROW:Thank you, Mr. Chairman. Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner Salavea? SALAVEA:Aye. DARROW:Commissioner Galdones? GALDONES:Aye. DARROW:Commissioner Watanabe? 14EXHIBIT E WATANABE:Aye. DARROW:And Mr. Chairman? ALAMEDA:Aye. DARROW:The motion passes to grant standing five to zero. ALAMEDA:So the question is if, I€m just checking if we have to, if now is the time to seek whether or not we€re going to outsource it or wait till the end. Wait to the end? TORIGOE:Yes. ALAMEDA:Okay,thankyou.Youmaybeseated. RUSALAVICH:Thankyou,Commissioners. ALAMEDA:There€salsoaJillFosari?Doyouswearoraffirmtotellthetruthnow before the Hawai i County Planning Commission? FOSARI:I do. ALAMEDA:Thank you. State your name and address for the record. FOSARI:Jill Fosari, 75-6056 Alii Drive. ALAMEDA:Okay, kindly proceed. Can you tell us where you€re located as well? FOSARI:I guess I€m actually right here. I€m on Alii. I€m directly across Alii -. DARROW:This is Alii Drive. So you€d be right around in here. FORSARI:Okay. DARROW:Just for the record, she put a JF on there, on the map, directly makai of Alii Lani Drive on Alii Drive. ALAMEDA:All right. Fellow Commissioners, any questions for Ms. Fosari? I know you all have her application and, any motion or --? Mr. Lim? LIM:Same objection, that the interests of the Intervenor are not clearly distinguishable from that of the general public nor will the proposed action cause them actual or threatened injury in fact. ALAMEDA:Okay. Commissioner Salavea? 15EXHIBIT E SALAVEA:Thank you, Mr. Chair. I make a motion to grant standing to Jill Fosari in the Kona, LLC case, Special Management Permit 05-005. ALAMEDA:Is there a second? GALDONES:Second. ALAMEDA:Motion made by Commissioner Salavea, seconded by Commissioner Galdones. Discussion? Seeing none, staff? DARROW:Thank you, Mr. Chairman. Commissioner Salavea? SALAVEA:Aye. DARROW:CommissionerGaldones? GALDONES:Aye. DARROW:CommissionerGraham? GRAHAM:Aye. DARROW:Commissioner Watanabe? WATANABE:Aye. DARROW:And Mr. Chairman? ALAMEDA:Aye. DARROW:The motion passes five to zero to grant standing to Jill Fosari. ALAMEDA:Thank you, Jill. FOSARI:Thank you. ALAMEDA:So that will bring us back to Mr. Malcolm and Virginia Scott, who was unreachable, unattainable. How do we proceed with that, Mr. Torigoe? TORIGOE:Well, they haven€t shown up today. You can make a decision one way or the other based on what they have represented and go with that. ALAMEDA:Okay. Commissioner Watanabe? WATANABE:I would move that we grant standing to Scott and, I lost my place. I make a motion to grant standing to Malcolm and Virginia Scott because it would appear that we€re going to have a Contested Case Hearing anyway and, you know, when they return they can decide whether they want to withdraw or not. 16EXHIBIT E ALAMEDA:Is there a second to that? GRAHAM:Second. ALAMEDA:Okay. Motion made by Commissioner Watanabe, seconded by Commissioner Graham. Discussion? GRAHAM:Yeah. ALAMEDA:Commissioner Graham? GRAHAM:I€d just like to, seems like by where they live and all, that they have the reason for standing. And the only question is whether they still have the intention to contest; and wecanonlyreallyanswerthatwhenwehearfromthem.Soit€sbesttoassumetheyhavethe intention they originally stated. ALAMEDA:Mr. Lim? Any comments again on this one? LIM:Same objection as we had for Mr. Rusalavich and Ms. Fosari. Thank you very much. ALAMEDA:Okay. Mr. Galdones, any thoughts? GALDONES:Thank you, Mr. Chairman. I have some reservations about the motion based on the statement that was made by Mr. Allen earlier. But I would err on the safe side and allow them the opportunity to withdraw later on if we grant them standing. I will be supporting the motion to grant them standing. ALAMEDA:Other discussion items? Okay, seeing none, Staff? DARROW:Thank you, again, Mr. Chairman. Commissioner Watanabe? WATANABE:Aye. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner Galdones? GALDONES:Aye. DARROW:Commissioner Salavea? SALAVEA:Aye. DARROW:And Mr. Chairman? 17EXHIBIT E ALAMEDA:Aye. DARROW:The motion passes five to zero to grant standing to Malcolm and Virginia Scott. ALAMEDA:Fellow Commissioners, now the question of outsourcing or hearing it ourselves? What€s your pleasure? Commissioner Watanabe? WATANABE:I would move to outsource this to a Hearings Officer. GALDONES:Second. ALAMEDA:Motion made by Commissioner Watanabe to outsource, seconded by CommissionerGaldones.Discussion?Mr.Torigoe? TORIGOE:Ijustwanttoclarify,istheintentiontoconsolidatethethree?Basically you€ve got three parties who are asking for a Contested Case. Is it your intention to consolidate all three into one Contested Case? WATANABE: I assumed that. I didn€t think of it any other way. I don€t know about the other Commissioners, but I assumed that it was just going to be one hearing. TORIGOE:Under your Rule 4-15, you can consolidate requests for hearings which may include two or more parties. And, so, I think just for the purposes of, you know, clarity, you should make clear on the record whether that is your intention; and, also, Mr. Lim may have some input on that. ALAMEDA:Okay. Commissioner Graham? GRAHAM:Yeah, I also feel like if any of the Petitioners would prefer not to have it consolidated, they could come forward and let us know now. LIM:We would prefer that all matters be consolidated for hearing. We€d also prefer that should the Scotts become difficult to contact, that we don€t have to take extraordinary measures to get them to participate in the scheduling of the hearings and those type of things. Thank you very much. ALAMEDA:You€re welcome. Okay. TORIGOE:Yeah, you should check and see if there€s any objection from the Intervenors. ALAMEDA:Okay. Is there any objections from the Intervenors about consolidation? No? Seeing none, thank you. WATANABE: So we need a separate motion for that? 18EXHIBIT E TORIGOE:Well, let€s just -. Youwant to just, if you can just have an amendment by consensus that, it sounds like the consensus is that the intent is to consolidate the cases. ALAMEDA:Okay. All those in favor of consolidating the cases, say aye? COMMISSIONERS:Aye. ALAMEDA:All those not in favor, nay? So noted. Okay. TORIGOE:You just asked about consolidating. Was there any action taken on the farming out? ALAMEDA:I thought that was the action. All right. We need a motion for farming out. WATANABE: The motion actually was made by myself. TORIGOE:Yeah. WATANABE:We just have to call for the vote. ALAMEDA:Okay. All right. Staff? DARROW:Thank you, Mr. Chairman. Commissioner Watanabe? WATANABE:Aye. DARROW:Commissioner Galdones? GALDONES:Aye. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner Salavea? SALAVEA:Aye. DARROW:And Mr. Chairman? ALAMEDA:Aye. DARROW:The motion passes to obtain a Hearings Officer and to consolidate the Contested Cases. ALAMEDA:All right. Thank you for your patience. That was a very interesting process. Okay, so given that, we have testimonies. We have several testifiers today. We have 19EXHIBIT E four chairs. Before you come up, let me explain that because this is now going to a Contested Case Hearing, meaning that there€ll be a Hearings Officer and all, we won€t decide today. We won€t vote on it. It€ll be kind of handled at that level and then, but we€ll get a recommendation later from the Hearings Officer on kind of the Findings, and then we€ll make a decision, hopefully in the near future when it comes back to us. But, you know, you€ll have different opportunities to provide testimony. You can provide testimony today or you could wait till the Hearings Officer gets all you guys together. So it€s up to you. Alfreida F. Fujita? FUJITA:Yes. ALAMEDA:David Sullivan? SULLIVAN:Yes. ALAMEDA:HowaboutDouglasDierenfield? FUJITA:Heleft. ALAMEDA:Helefttoday,okay.WhataboutLillianFox? FOX:Yes. ALAMEDA:Roger Kloepping. I€ll swear all of you in at once. Please raise your right hand. Do you swear or affirm to tell the truth now before the Hawai i County Planning Commission? TESTIFIERS:I do. ALAMEDA:Thank you. Starting from my far left, will you please state your name and address for the record, using the mike. KLOEPPING:My name is Roger Kloepping. I live in Kailua-Kona, 75-5919 Alii Drive, Unit H-4. ALAMEDA:Okay. I€m going to ask that you share your testimony. Again, you can€t backtrack on testimony. And if you can keep your testimony maybe 3 to 5 minutes, I would appreciate it. KLOEPPING:Thank you. ALAMEDA:Go ahead. KLOEPPING:I appreciate the Council (sic) giving me the opportunity to speak today even though it is late in the afternoon. Number one, the County Council has endorsed as part of the General Plan the Community Development Plan for Kona. The Council in their infinite wisdom has provided a half a million dollars of taxpayer money to initiate this plan; and it will be included as ordinance in the General 20EXHIBIT E Plan when it€s approved by the CountyCouncil. I have been involved in various levels of the public input into the Kona CDP. At this meeting I speak only on my, on behalf of myself and not on behalf of the community as a whole. The major position in those committee meetings in particular was do not, and I emphasize do not, have developments into either flood plain areas or into areas of major drainage. And if you look at the Plan, you€ll find in Section, I believe it€s labeled Part D, Block D, on the side of the Kona Sea Ridge area is a known drainage area. It€s got a stream bed in it; and at the end of that the County saw fit to put a couple of culverts under Alii Drive. So it is a drainage area. And in none of the presentations in the past for the ordinance was there any mention of that area being a drainage area; and I think it should be considered in the Special Management Area request. And we can see to the south of the development there is a drainage area, known drainage area, which the developer has also looked at. What I would like to point out is either of these areas, if you go ahead and mitigate those drainageareaseitherbyconcreteorbuilding,you€renowusingfloodwatersdirectedatsome time, especially silted waters, into the bay. So this is a major concern of mine that is an environmental concern that I think the Commission should look at. I€d also like to point out that if areas were not properly drained, especially in this Area D, you could damage structures. There€s one other area, we talk about ecology as being part of the ordinance that we have to look at. And that area in Section D, I have seen, and I have other friends that have seen, white owls inhabiting that area. So that certainly would be of concern to me; and I€m sure would be of concern to the environmental groups. Basically, in summary, so that we can get through this is that I would like the Commission to either hold off or look at the recommendations of the CDP that are already in place, or those that will be place in the near future. At best this project, in my opinion, is environmentally marginal. Yes, it does give us a connector road between Alii Drive and Kuakini Highway which is much needed. But if you really look at the map you could go through the, on that access road next to Alii Drive, put that, the County could put that in and up to the major project above it. So it could be done a lot cheaper; and I€m not so sure that this is of importance. So both on the environmental and ecological conditions or considerations, I would ask the Commission to not vote in favor of this proposal. Thank you. ALAMEDA:Thank you. Any questions for this testifier? Seeing none, Ma€am, please state your name and address for the record. FOX:My name is Lillian Fox. I live at 75-6081 Alii Drive, Unit Y-102. I€m a member of the Board of Directors of Alii Lani. It€s a condominium complex of approximately 367 units and about a thousand residents. I€m also the Disaster Preparedness Coordinator for Alii Lani. As you know, since Banda Acehand Hurricane Katrina, it has become even more imperative to develop disaster plans and be able to implement these plans. My committee and I plan for the worst and hope for the best. In that context, it has come to my attention that Kahakai Estates, the development directly above Alii Lani, has a permit to gate its community. This was done before Banda Aceh or Katrina. It€s imperative that the roads that Sunstone intends to build be in place and open before Kahakai 21EXHIBIT E Estates is able to gate. Otherwise you really do endup thousands of people on Alii Drive that are too far from Lunapule and too far from Royal Poinciana to evacuate. The proposed culvert that€son the north side ends at the proposed Alii Parkway. Mr. Mooers says that they are rare that there€s a flooding problem but that they, I€m quoting here from a newspaper: Don€t have to fix it, just not make it worse.‚ There are houses on the street across from this flood plain that are contesting this case that already floods. Let€s take care of those problems. In the revised recommendations, it indicates that a left-hand turn lane from Alii Drive up the proposed road may be included. I think this is a vital and necessary ingredient to Sunstone€s proposed development which will include a commercial aspect, also. I also didn€t read anything about affordable housing in the revised recommendations. Additionally, there are 103 acres, Hawaiian ancestral land in that area, two in the right-of-way. I hadtheopportunitytospeakwithKirk(sic)KindredwhoheadstheCivilDefenseDepartment. He says that both he and Mr. Kim have recommended that there will be no additional buildings on Alii Drive that require roads to enter or egress on Alii Drive. The Planning Commission, as Mr. Kloepping said, has hired and paid $500,000 of taxpayer money to a consultant to come up with a Community Development Plan. I€m also involved in this Plan. This Plan is within six months of being complete. Why are we not waiting for this Plan to come forth? Why are we rushing this development? In closing, in these revised recommendations I found about 20 red flags that I can see; and from previous testimony and future testimony, I€m sure there€ll be more. Thank you very much. ALAMEDA:Thank you, Ms. Fox. Any questions? Ma€am, could you please state your name and address for the record? FUJITA:I€m Alfreida Fujita, born at Holualoa, Kona and resided on 75-6052-B Alii Street on the Kaiolu residential subdivision for 40 years; and this is my personal statement that I€m doing. I thank the others for bringing up the other legal areas. And our group had sent in a written statement, but I will not go over that. This is my personal that I am presenting to the Board and to the members. Over the years we€ve had two floods and I have been within the flood zone. And, so, I am requesting the board members to truly look over their plans as to how they€re going to connect the connecting road. It is very important that we have a connecting road so that we can fly out. We could testify that many times in the past we€ve had tsunami warnings, also. And at that time I had a mother-in-law who was 90 years and we had to get out. Maybe 30 years ago the traffic wasn€t as horrendous as today. But can you imagine what€s going to happen to us? So it€s important that we have the most direct route to Kuakini. And as we see that you are changing it, it brings some concerns to me. However you are the expert, you know what you€re going. So I hope you€re not going to flood out to our area and then we get jam-packed, we can€t make a turn on that road to get out during the hurricane. 22EXHIBIT E To the developers, I have a very strong request that if they do develop, I would like for them to provide a baseyard for their trash pickup and parking for additional cars. Today, many of you will notice that our Alii Drive is like a parking lot. We have cars, trucks and even boats parked alongside. Recently I have noticed car seats, parts of the wheels and trash all dumped on the stonewall; and, to me, that is not the right way to do a development. And these are because many of the condominiums do not provide enough parking area for the additional tenants, and this is very important. I hope you will take that into consideration, not just have two parking lots. Also, I would like to point out the Pine Subdivision development. To me, their connecting roads are well done. Though it may be very short, it€s well done between Hualalai Road and Queen Kaahumanu. The roads have a wide buffer on each side of the road with lush greenery; and their private gates are gated on the connecting road and not on the main roads. This is something that I would really urge the Board members to consider when putting in any gated community, that theymusthavetheirownconnectingroadthatisopentothepublicanditdoesn€tendangerthe traffic. Talking about the trash thing, I€m not blaming the companies or anyone. But many of the condominium trash bins are out early in the morning on Alii Road at 5:30 to 6:00 a.m. I am very close to Alii on the makai side and I hear all this noise; and I€m not blaming the trash people, the trash companies or the condominium people. I think the developers should provide an area so that the trash bins could go in. The exits are so well done that you cannot make a nice, you know, a turn for the big truck. It€s only for nice-looking cars that you can go in. But when you have a big, heavy truck, they can never go in and out very easily. And I would like to have the developers take it into consideration. These may be just minor things but it does make a big difference to us. And, also, I think the planning and the buildings on the papers might look very nice but I do hope in the future that they will have some kind of buildings that would blend into our atmosphere that have our lifestyle; and thank you very much. ALAMEDA:Thank you, Ms. Fujita. Any questions for Ms. Fujita? I appreciate your testimony. Thank you for coming today. Sir, could you please state your name and address? SULLIVAN:David Hardy Sullivan, Alfreida€s neighbor, 75-6052, House D, Alii Drive. ALAMEDA:Okay. Your testimony? SULLIVAN:And if you wouldn€t mind, may I go up and point, and talk? ALAMEDA:Sure, you can point. SULLIVAN:Thank you very much. Our properties are in this area right here, the Hawaii Mills Subdivision, which seems to be not included on any of the plot plans, but it€s directly across from the proposed new connector road. All property owners on the street have a th 1/16 interest of the roadway. It€s a private roadway, so I do own a small slice of the road connectingtoAliiDrive.Ididnotgetanynoticeabouttheproposedchange,Alfreidadidget. Only Mr. Rusalavich and Ms. Fujita received letters from the developers. I, myself, would also 23EXHIBIT E like to also contest this, but that date is past because we didn€t find out about it until last week. So if that€s possible, if there€s going to be another hearing or going toa special committee, I€d like to also do that. But my main objections would be, if we€re going to have an evacuation route, why would it go, you know, 500 feet up, 400 or 500 feet, you know, parallel to the ocean and then connect on up. It€s going to be quite a headache. It seems it would be a lot more direct if the evacuation route is straight up, as was originally proposed. When we talked with Civil Defense, they didn€t know that had been changed from, with what you said was temporary; but my understanding is they had no notice of it either. But that, in addition to the flood plain, Alfrieda mentioned that her home was flooded twice, mine has not yet. I€ve been a 10-year resident, 36 years on the Big Island but 10 years at this property. But that whole area is a flood plain. They should at least have a survey to take into considerationourpropertiesthatarehere.Becauseiftheroadwayisbuilt,watercandirectly come down, it just expedites it right into our properties. Also, one other concern would be the safety of the intersection. They don€t line up. If, for anybody turning left or right out of our property would come up directly against people that are coming down. If I was coming down the roadway, made a right, and then to pull in my property I€d make an immediate stop to turn left; and I€ve already been rear-ended about two years ago in that area, so it€d be a very major concern of mine. Anyway, if it could be kind of passed on for your consideration for that survey -? Thank you. ALAMEDA:Thank you. We may have questions for you. Any questions? Commissioner Salavea and then Commissioner Graham. Commissioner Salavea? SALAVEA:Thank you, Mr. Chairman. Do you know if anyone from your subdivision did receive notice? SULLIVAN:Only two residents. My understanding, Mr. Rusalavich, who filed a Contested Case, and -. FUJITA:I got. SULLIVAN:Ms. Fujita. We have 12 property owners on the street and nobody else had any information. I€d like to say it€s less than 75 feet from the proposed intersection. ALAMEDA:Commissioner Graham? GRAHAM:Well, we can ask Mr. Torigoe if it€s possible for you to get in at this last date. But the only comment I might make is that if it€s easy for you to work with these other folks who are intervening, you can certainly get your concerns and probably participate in the Contested Case Hearing which will take place. SULLIVAN:Okay. Will it be possible to add to Mr. Rusalavich€s Petition? And I would just be listed as, you know, also one Petitioner on his, legally, so that it would ƒ? 24EXHIBIT E GRAHAM:I don€t believe so. I was just thinking as far as helping them do the work they need to do. But wecan ask Mr. Torigoe if not getting notice gives you an extra opportunity. SULLIVAN:And it€s just not myself, there are others. Mr. Dierenfield who could not be here today was not notified, Dr. Dierenfield; and otherproperty owners on the street would have other concerns with that. So it€s not just myself who didn€t get the notice. ALAMEDA:Okay. TORIGOE:Yeah, Mr. Chairman. As you know, the rules provide for notice to be given to people who own properties within a certain radius of the subject property. So if those rules were followed then, basically, the time for any further applications for Contested Case standing is passed. But if for some reason there was some breakdown in the giving of proper notice, then we would have to look at, you know, possibly allowing further intervention, I think. ALAMEDA:Commissioner Salavea? SALAVEA:Mr. Torigoe, so is the roadway, the new proposed, well, the roadway consideredthat€sgoingin,that€salsoconsideredpartoftheproperty.Andsowithin500feetof the roadway would mandate getting or receiving notice of the application? TORIGOE:You know, that€s something that we have, well, I don€t know, we would have to look at the circumstances. I don€t know that ownership in the roadway, in a private roadway that is not itself going to be more heavily burdened because of the project, I don€t know if that would necessarily provide a basis for standing. SALAVEA:That€s not what I meant. I meant the roadway that€s going in, if the roadway itself being done by the project, if I live within say 500 feet of that but the project is somewhere else, similar in this situation, it seems that that€s what might have caused some of the residents not to -. And maybe we can have Mr. Lim address that. LIM:We€re going to try to make it easier on the Commission. As the Applicant, we€re willing to allow and waive any procedural defects that might have occurred from the, is it 12 lot owners on the roadway who did not -? Many of those people who did not receive notice whether, you know, having interest in roadway lot is sufficient to claim standing, we€re willing to let them in as Contested Case Intervenors at this time. WATANABE:Oh, as long as it€s all one Contested Case Hearing, yeah? LIM:That€s correct, under the standard conditions that we agreed to on the consolidated case. ALAMEDA:Mr. Director? YUEN:Yeah, I just wanted to comment on this. As a matter of administrative practice, we€ve been advising people that they don€t have to notify owners of roadway lots in multiple ownership. You get into a situation, I mean, to take the extreme situation, Hawaiian Acres, the roads are owned in common by something like 3,000 lot owners. So we€re taking it as 25EXHIBIT E owners of residential lots rather than as roadway lots. But with the Applicant being willing to concede that, thatbecomes a moot point. I just wanted to mention why the notice only extended to those lot owners who are within the 300-foot radius rather than the owners of the roadway, other than notice going to the owners of the roadway lot. ALAMEDA:That€s a good clarification. Thanks for bringing it up, Commissioner Salavea. That was good. Any other questions for our testifiers? Thank you all. Thank you very much. You may be seated. Fellow Commissioners, we do have one more testifier but I wanted to just have this conversation real quick. With Mr. Kloepping wanting to be part of the Contested Case Hearings it kind of leaves it open for -. TORIGOE:Yeah. ALAMEDA:Anybody who lives on that road then. So, I don€t know, it feels a little bit uncomfortable.Justlikeweshould,howdoweƒ? WATANABE:Thepubliccantestify,right,attheseContestedCaseHearings, Mr. Torigoe? TORIGOE:Yes. GALDONES:Is that, well, he sat down already. But then, you know, is that sufficient, you know, voice from the public even though maybe technically they don€t have standing? TORIGOE:Well, the big difference is that, you know, if you€re a party in a Contested Case then you can actually be involved in the Contested Case Hearing, which is a trial-like proceeding. You can present witnesses, you can cross-examine, and you can present exhibits, and you have the right to appeal to the Circuit Court if you are aggrieved by the decision. So there€s a significant difference. GALDONES:So there are rights, then. TORIGOE:Yeah, oh, yeah, there€s a big difference between just being a witness and being a party. At this point, we€re in a rather unusual situation where it seems the Applicant is willing to allow for further applicants to be received today. Mr. Kloepping I think has indicated that he would like to -. No? SULLIVAN:No. TORIGOE:Oh, I€m sorry. Not Mr. Kloepping, Mr. -. SULLIVAN:Sullivan. TORIGOE:Sullivan, yes, I€m sorry. Mr. Sullivan has indicated that he would like to intervene if he can and, so, I think some action should be taken on that. And if there are other lot owners within that subdivision, which the Applicant has conceded, you know, they should be 26EXHIBIT E allowed to intervene at this point. Ifthere are others who are present, then they certainly should be allowed to come forward. ALAMEDA:Yeah, it€s just ƒ that€s a lot. It makes me feel uncomfortable. Go ahead, Mr. Darrow. DARROW:This would be for Corp. Counsel. So is this that these testifiers would be altogether into one Contested Case, or would they have tofile separately? TORIGOE:I think the intention is that they will all be under one Contested Case and not -. And, basically, this is limited to those who are in that one subdivision that would be affected by the new road. GALDONES:Yeah, the only question I have is, okay, if we did that, then are we now saying,well,theother11lotownerswhoweren€tpresenttoday,andthisonlycameuptoday,so you don€t have the opportunity, or would it be better -? You see what I€m saying? I€m wondering if we€re setting ourselves up here. I€m wondering if Mr. Sullivan would be willing to, you know, join in with just testifying at that so that we don€t open ourselves up to criticism regarding the other 10 or 9 roadway lot owners. ALAMEDA:Mr. Sullivan? SULLIVAN:Would it be possible if I filed one Petition with the other 9 names, in addition to myself, and, so, there would be really three Contested Cases but they would consolidate as far as hearing? GALDONES:Mr. Chair? ALAMEDA:Mr. Galdones? GALDONES:Maybe the remark made by Director Yuen, there is a procedure that already has been established, a practice has been already established which has been followed. And I don€t believe that we should be setting a new precedent here in making certain exceptions because we€re going to open ourselves up for other problems because of that. So I will have some discomfort in making an exception in this particular case. If the procedure is that this being followed by the Department is incorrect, then the procedure has to be challenged. But otherwise I think we should stick with the procedure if the procedure is technically and legally correct. Now this does not bar Mr. Sullivan from testifying at the Contested Case Hearing. It€s just that he will not have the broader rights as a Petitioner. But he will have an opportunity, along with the others within that complex, to attend the Contested Case Hearing and submit their objections or provide testimony at that time. So I have some, I would have some problems in making an exception in this particular case. And the concerned individuals will have an opportunity to voice their opinion on this matter at the Contested Case Hearing. ALAMEDA:As stated, I tend to agree. Commissioner Watanabe? 27EXHIBIT E WATANABE: I agree because I don€t think we can look at it just at this case where the Applicant has been very gracious to extend that right over to Mr. Sullivan. But what if we have this similar situation in Hawaiian Paradise Park, are we then inviting, you know, another 3,000 people to join in where normally they would not have been noticed because, you know, they each own one portion of the road? I think, you know, down the road we may be inviting ourselves in a lot of trouble. ALAMEDA:Right. Commissioner Graham? GRAHAM:Yeah, I think the sense is if the notification went out properly, probably the Commission would not want to open up for additional Intervenors even if the Applicant is willing. So the question is if Mr. Sullivan should have received notice and he was prejudiced by not getting it, that€s one issue. But if he didn€t receive notice and it wasn€t required, then maybe the Commission doesn€t want him to join at this point. So can I get a factual answer to that, whetherhedid,infact,hewasnotrequiredtoreceivenotificationwhichhesaidhedidn€tget? ALAMEDA:Mr.Mooers? MOOERS:Mr.Sullivan€shouse,asfarasIknowisnotwithin300feetofthe intersection. The roadway is. We€ve been advised in the past that partial ownership of roads is not, we€re not required to mail to those. If, you know, all I can tell you is we€re following the procedure that€s outlined to us. But what I think Mr. Yuen just explained is that that has been the policy, is to mail to lot owners within the prescribed area. In this case, it€s 300 feet. ALAMEDA:Okay. Commissioner Salavea? SALAVEA:And that€s the concern I had, was whether or not the house, the residence, was within the 300 feet, not per se the roadway. If the lot owners within 300 feet of the proposed roadway were notified and procedure was followed, then that€s fine; and I think, like Commissioner Galdones said, we followed the standard procedure. But if someone within the residence, within the 300 feet wasn€t notified, then I wouldn€t want to exclude them just because of oversight. And I understand, from what I understand, the road switching back-and-forth could have caused some of the confusion. But if everybody within the proposed roadway is notified within the 300 feet, procedure was followed, I think that is the safest course to follow. MOOERS:Commissioner Salavea, could I, I€d like to just respond to one thing about notification. When we filed the application, we noticed about 450 people. That was based on the location of the road being further to the north. At the time that we were instructed to relocate the road, we noticed then over another 600 people; and that was in January. And then the most recent mailing in which we identified when the hearing would be made was over 1,100 people that were noticed. That list is developed, and it was given to the Planning Department. When we did the mailing, the U.S. Postal Service certifies that every one of those people on the list did receive the notice; and, so, it€s very clear from the record as to who received notices. Now, I can€t tell you the number of times we get testimony, people say, well, we never got notice, we never got notice; and all we can do is provide the notice from the U.S. Postal Service. I€ve had a conversation with the Director in the past and I would say, again, that I think it would be wise if at some point in the future we changed the rules and have the Department do the 28EXHIBIT E notice, charge a fee to the developer, or the Petitioner, whoever it may be; and so then there is no question that somebody tried to withhold names or not notice people. Because we sent over 1,100 notices on this application, I think it would remove the issue. It€s, obviously, not a cheap thing to do when you consider the postage and then 30 cents each for certification of mailing and then, of course, the clerical fees to put it all together. So if the Director or the Commission would like to amend your rules and take on that responsibility, it might solve some of these types of problems in the future. ALAMEDA:Mr. Director? YUEN:Yeah, I€m not going to directly address it. I€m sure that Mr. Mooers did a good job of notifying the people that had title to individual pieces of property aside from this road lot. What I suggest here is, and I understand why, actually, Mr. Lim is willing to, he has already got a Contested Case Hearing involving people who live on this road and are going to raiseissuesrelatedtotheroad.Thereissomegrayareainthisastowhetherthepeople,you know, the remaining people of the roadway were to be notified. I suggest that, and the concern of eliminating people from a Contested Case Hearing who maybe they should have gotten notice and maybe they should have had a chance to be Intervenors is that they can make you go back to square one. So I suggest that we, the Commission give Mr. Sullivan an opportunity to sign up people who are owners of the road lot for a two-week period, submit them as Intervenors. They should be represented by one person, that would be my suggestion, rather than have a group of individuals, and allow that individual representing the non-notified lot owners to be an Intervenor in the Contested Case Hearing. ALAMEDA:Okay. Mr. Darrow? DARROW:It€s my understanding that at this time we have two people that have filed Petitions. Is that true or just one, one person that€s already a lot owner, Mr. Rusalavich, so -? FUSARI:No. DARROW:At that point --? ALAMEDA:Wait -. FUSARI:Two. DARROW:You€re also a lot owner? FUSARI:Yes. DARROW:Okay, so at that point -. YUEN:We already, we do have two allowed Intervenors. And my suggestion is the Commission make a motion that would allow a third Intervenor as a representative of the other roadway lot owners to participate by filing a Petition within two weeks, and that the Commission essentially do approve the Petition so that it doesn€t require coming back here for 29EXHIBIT E another meeting to vote on it. And inthat way the people can go forward with the Contested Case Hearing. ALAMEDA:Mr. Lim, Mr. Mooers, is that okay? LIM:That€s acceptable to us; and we€d like to make sure that there is a firm deadline on them applying so that we don€t have to wait for further delays. ALAMEDA:Okay. Can I entertain a motion? Commissioner Galdones? GALDONES:I have a question to Director Yuen. How does this affect us moving forward? Should a situation like this arise again, do we make an exception, or this is going to be just the one time ruling that we are going to be making? Because there are some procedural and administrative changes that we are making, the concern I have is how do we treat future situations. YUEN:Ithinkweneedtolookatthis,andI€mgoingtotalkwithCorporation Counsel about whether we should be notifying roadway lot owners. I think, clearly, we€ve looked at it from a standpoint, as I mentioned, of a Hawaiian Acres situation where you have 3,000 owners of roadway lots. So somebody comes in, within the subdivision, they want a special permit, they have to mail notice. If we say, well, you notice all the lot owners, you mail notice to 3,000 people that have 1/3,000 interest in the road, this may be different from when you€re talking about a roadway lot that€s owned by 6, 8, 10 people. And given that, well, we do have a Contested Case Hearing with people along this road that€s going to go forward, I think to deal with this one, this is what I€d advise; and, as I say, we€ll just take a close look at this issue on permits going forward. ALAMEDA:Okay. Follow-up? GALDONES:I have a follow-up question to Counsel. If we take into consideration the suggestion made by Director Yuen, will that put the Commissioners in a very uncomfortable situation that we will not be able to defend? TORIGOE:No. I think at this point, again, because you have a Contested Case going, this is a little different from your normal situation, because I understand that what€s happening is that you€re putting a connector road and evacuation road in close proximity to a small subdivision with a private road. So, in that sense, it€s kind of a unique circumstance. WATANABE:Yeah, I think the other thing is you did limit them to one representative which, you know, at the very worst, in a subdivision with 3,000 owners and 1/3,000 interest, they would only have the right to one if they follow this strictly as precedent, right? ALAMEDA:All right. Do I hear a motion? GALDONES:Mr. Chair? ALAMEDA:Yes. 30EXHIBIT E GALDONES:I don€t think I€d be able to articulate what was mentioned by Director Yuen, but I would like to incorporate that into a motion. WATANABE: I€ll second. ALAMEDA:Motion made by Commissioner Galdones, seconded by Commissioner Watanabe. TYLER:Mr. Chairman, point of order. Before you take action on this motion, I€d like to have an opportunity to give public testimony, as you€ve afforded other people. ALAMEDA:Sure. TYLER:Thank you. Good afternoon, Mr. Chairman and Members of the Hawai i CountyPlanningCommission.MynameisCurtisTyler,I€vebeenswornin.Idosweartotell the whole truth, nothing but the truth, so help me God. There has been quite a discussion here regarding the status of the 14 lot owners in the Hawaii Planing Mill Subdivision, of which I represent former owners of 8 of the 14 lots. We are not current owners of that property. However, I have first-hand knowledge of what these people are talking about; and it is my firm belief that all 14 lot owners of this subdivision have an interest, individually and collectively, that is separate and distinct from the general public. You have already granted two members standing. You have heard from the developer€s attorney, the Applicant€s attorney, that they are willing to admit the other 12 individuals if they so desire as long as it€s under one collective Petition, and you€ve heard that also from the Director. I think that makes very good sense. The fact that you may not have granted standing to any of the roadway lot owners in Hawaiian Paradise Park or any other subdivision where there is joint ownership actually flies in the face of equal protection and access under the Constitution. If you are a 100 percent owner, or a 50 percent owner, or a 10 percent owner, what difference does it make? You€re an owner under the laws of the United States, the State of Hawai i and the County of Hawai i. Whether I agree with the, those who have applied for and granted standing or not is immaterial, and the same is true for you folks; and I would air on the side of caution. As Mr. Yuen has indicated, you probably need to go back and review this policy. If, in fact, it ever was adopted as a policy, I suggest that, I suggest it was probably not because I think it€s unconstitutional; and I don€t think anybody here would want to do anything unconstitutional. So I think Mr. Yuen has come up with the proper solution and the Applicant has certainly not objected. And I think the fact that these would be done in a collective fashion makes a lot of sense, makes it more efficient and would be proper. I don€t know whether they were properly notified or not and, but they do have an interest that is separate and distinct; and every single one of them has an interest in property that is within 300 feet of this proposal. Thank you. ALAMEDA:Thank you. Any questions? Okay? Returning back to the original matter, Fellow Commissioners, you remember what that was? Okay. Commissioner Salavea? SALAVEA:I thought we had a motion on the floor. 31EXHIBIT E ALAMEDA:We had a motion. All right. WATANABE:It was moved and seconded. ALAMEDA:Okay, any discussion? Staff? DARROW:Thank you, Mr. Chairman. Just so I€m clear on this motion, this is a motion to grant standing for a period, for the remainder of the lot owners within a two-week period under a single Petition and joined in the existing Contested Case Hearing. If I could get the name of subdivision for my, just so I€m clear on -. TYLER:Hawaii Planing Mill? ALAMEDA:HawaiiPlaningMill. TYLER:Subdivision. ALAMEDA:HawaiiPlaningMills.Andfromwhenthetwoweeksstarts,thedate? MARUSHIGE:Thedateofthelettertheyreceived,orthedatefromtoday,orwhat? WATANABE:I would suggest from today. RUSALAVICH:Today is sufficient for us. Thank you. DARROW:Thank you for that clarification. Commissioner Galdones? GALDONES:Aye. DARROW:Commissioner Watanabe? WATANABE:Aye. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner Salavea? SALAVEA:Aye. DARROW:And Mr. Chairman? ALAMEDA:Aye. 32EXHIBIT E DARROW:The motion passes five to zero to grant standing to the remaining lot owners at the Hawaii Planing Mills Subdivision within a two, give notice within a 2-week period starting from May 26, 2006. ALAMEDA:All right. Corp. Counsel, could you just share with us how this all ends? Okay? TORIGOE:So at this point we have admitted parties to a Contested Case and the Planning Department will go ahead and procure a Hearings Officer; and the Hearings Officer then will go ahead and set up the Contested Case Hearing. We€ll contact the parties and it€ll go from there. ALAMEDA:So you all will be identified, I mean, notified. Sorry, you€re already identified. Okay, thank you. TORIGOE:Unless Mr. Lim or any of the others have other business -? ALAMEDA:Mr. Lim, Mr. Mooers? Are you going to testify or -? BOUCHARD:Well, I want to ask about the ruling. ALAMEDA:Okay. I€m afraid cause you€re going to ask and anybody else might want to ask, too, and we€ll never get out of here. BOUCHARD:Well, it€s the concern about the Kuakini Wall that they have to go through to build this roadway. And that€s all I wanted to find out about. ALAMEDA:Okay. You can come up. Have a sat then. I have to swear you in. BOUCHARD:Please. ALAMEDA:Do you swear or affirm to tell the truth now before the Hawai i County Planning Commission? BOUCHARD:I do. ALAMEDA:Okay. And state your name and address for the record. BOUCHARD:My name is Roland Bouchard, I live at 75-6104 Akoa Street, Kahakai Estates. And can I point to the map? ALAMEDA:All right. BOUCHARD:I would assume this straight line is the Great Wall of Kuakini, that€s part of the historic preservation. And I own a Lot 12 at Kahakai Estates; and northbound from the Kuakini Wall, it travels this way, which is spectacular. There€s a farmer€s wall or dividing wall that runs all the way up to Kuakini. Of course, Kuakini has got a real sharp bend, right here. And there€s obviously a real heavy flood plain traveling through there. 33EXHIBIT E Well, I€m not sure what this measurement would be from this wall all the way to where they want to put the road. But I looked at the wall several times, and if you look at it carefully you€ll see there€s two small breaks in the wall. They€re almost like footpaths, they€re not broken down. But if you travel more towards the end of these existing homes that are already built, there are obvious breaks right in this section here. And rather than have a lot of destruction to the wall, you€d think it would be very feasible since they want to build this road, or did I understand or misunderstand Mr. Yuen is saying this is going to be a temporary road? YUEN:No. ALAMEDA:The answer is no. BOUCHARD:Oh, that€s a no. Well, you would think it would behoove everybody it€s nottodisturb,iftheyjustdidtheextensiontoAli iParkwayanduseitastheir,youknow,inand out of the properties. ALAMEDA:Okay. BOUCHARD:Thank you very much. ALAMEDA:You€re welcome. KLOEPPING:Mr. Chairman? ALAMEDA:I was afraid of the second question. KLOEPPING:Well, no, this is a procedural question. Just, you know, a bunch of us testified. ALAMEDA:Right. KLOEPPING:Is that testimony going to be kept on record? ALAMEDA:Yes, sir. KLOEPPING:And then it goes to the next, when you make your final decision after the contested case? ALAMEDA:Yes, everything is on record. It€ll go to the Hearings Officer. We€ll have all of that information; and it€ll all come back to us. KLOEPPING:Thank you. ALAMEDA:You€re welcome. Thank you all for staying with us. Thank you very much. PUBLIC:Thank you for staying. 34EXHIBIT E The discussion ended at 5:05 p.m. Respectfully submitted, Sharon M. Nomura, Secretary 35EXHIBIT E