2003-09-11 Planning Commission Minutes

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Mr. Masuda said it was his opinion that what is actually requested of the Commission is a motion to amend the conditions of the special permit, to which Mr.Tsuakazaki said that would mean the Sunshine Law has not been complied with for todayÓs meeting and, therefore, any action taken today would not be valid. He then stated at this time that because his client is concerned about an even playing field, they would withdraw this request if there is a commitment from Mr. Yuen to send cease and desist notices to all the coffee farms that are doing coffee tours, along with those who use the large buses, within 90 days, during which time his client can still operate his tours with the buses. As to the propriety of doing that, he said the Planning Department has done this with regard to bed and breakfast operations. The First Vice-Chairman asked for a motion to properly agendize this application. Mr. Krueger said Mr. TsukazakiÓs request was agendized exactly as he stated it and properly noticed for todayÓs hearing. He said the question is whether or not there is any motion to rescind the previous action, which would need to be properly agendized and for which, at this point, there is no motion. Mr. Krueger said the only reason the Hearings Officer allowed Exhibits 4-14 into the record were to indicate that there were other people in Kona conducting tours and it was not to indicate the level of playing field because issues such as the number of people allowed on a tour, whether buses are allowed, etc. were never addressed. He added that the Hearings OfficerÓs findings does indicate that people touring the Doutor facility do board the buses from the street side. Mr. Tsukazaki questioned the ruling of the First Vice-Chairman o properly agendized as it has to do with whether anything being done today is valid. Commissioner Graham said it appears todayÓs meeting has been properly agendized as it states exactly what Mr. Tsukazaki is requesting; therefore, the Commission can proceed with whatever action it feels it needs to take on the request and, also, the public could also comment on the agendized item. Mr. Masuda said if the intent is to change the conditions of the special permit, then that has to be properly agendized for a future meeting; and what is currently before the Commission is whether to rescind its prior action, in which the public should be allowed to provide testimony in that regard. Adjoining property owner Mark Van Pernis apologized for his outbursts. He urged the Commission not to rescind its decision and to reject the level of playing field argument, which is a shibai, as the applicant is the only coffee farm tour operator that is using a public highway for private use by loading and unloading passengers, noting the highway is unsafe as it has no shoulders on the mauka side and a drop on the makai side. He questioned the credibility of the applicant and said he was conned out of a contested case as after the deadline for filing a contested case the applicant changed their agreements that they would not conduct any weddings except for Hawaii employees, not have liquor on the property, and only have public gatherings related to the Kona Coffee Festival. He stated that this past Labor Day weekend there were two large buses on the highway despite the applicantÓs promise they would obtain approval from the 8