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HomeMy WebLinkAbout2004-05-28 TNAKAKURA PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT May 28, 2004 A regularly advertised hearing on the application of SHAWN NAKAKURA AND SAM LEE (USE 04-002) was called to order at 9:04 a.m. in the King Kamehameha's Kona Beach Hotel, Kamakahonu Ballroom, 75-5660 Palani Road, Kailua-Kona, Hawai‘i, with First Vice-Chairman Earl Fujikawa presiding. PRESENT:Earl Fujikawa ABSENT AND EXCUSED: Fred Galdones C. Kimo Alameda Bill Graham Jeffrey McCall Francis Smith Hannah Springer Bill P. Thibadeau Ivan Torigoe, Deputy Corporation Counsel Chris Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately 13 people from the public in attendance APPLICANTS: SHAWN NAKAKURA AND SAM LEE (USE 04-002) Continued public hearing for a Use Permit to allow the operation of a cremation business within portion of a warehouse building situated within the Limited Industrial 1-acre (ML-1a) district. The property is located along the north side of Hulikoa Drive within the Kohanaiki Business Park Subdivision which is situated along the east side of Queen nd Kaahumanu Highway (Highway 19), Auhaukeae 2, North Kona, Hawaii, TMK: 7-5-9:25. FUJIKAWA:Item No. 2, the application is also a continued item, Shawn Nakakura and Sam Lee for USE 04-002, to allow the operation of a cremation business within portion of a warehouse building situated within the Limited Industrial 1-acre (ML-1a) district. Staff, ready? DARROW:Thank you, Mr. Chairman. First of all, I’d like to say please bear with my voice. It kind of comes and goes this morning. This is a continued hearing. At our last Kona meeting, we did have an application for a petition for standing in a contested case. We will need to address that at this time during the hearing. EXHIBIT A If I may direct your attention to the location map. The area of this application is going to be within the Kohanaiki Business Park. This red line here is the SMA line running along Queen Kaahumanu Highway, running in a north/south direction. This area down here is the previous Rutter application, if you recall that. And then this area here is the recently Clifto’s project that we had been dealing with. This area here is the Kaloko Light Industrail Park; and this area here is Kaiminani Drive, just to give you bearings on location where this is. As you come south towards Kona on Queen, you would take a left going mauka into the business park. This will be on Hulikoa Drive; and this little dot here in red signifies where the application location is at.The applicants in this case, Shawn Nakakura and Sam Lee, are requesting a use permit to allow the operation of a cremation business for both humans and animals. The application, the request is to allow cremation of human animal remains within EPA approved ovens that are built specifically for that purpose. There will be no funeral services held on-site. The reason for the request is that, at this time, there are two locations in Hawaii, the Big Island, where cremation of human occurs. This is located within East Hawaii. There is one facility for pet cremation, again, this is in East Hawaii. Having a facility in West Hawaii will both save time to be able to allow loved ones to have, I mean, residents of West Hawaii to have loved ones returned to them quicker and to save costs in transportation. Again, we have had a petition for standing in a contested case hearing from Mr. Edmund Wong. FUJIKAWA: Commissioners, any questions of staff? Ms. Springer? SPRINGER:Just to reorient me, could you please point out where the property owned by the petitioner for standing is situated? DARROW:Thank you, Commissioner Springer. Just to the north of the business park, there is this parcel here located between this larger parcel. It runs right along the boundary of the business park; and this is the property that the petitioners are associated with. SPRINGER:And, question, is the property owned by the petitioner’s family, does it share a border with the Lee and Nakakura property? DARROW:Yes it does. SPRINGER:Shares a boundary with the -? DARROW:Correct. SPRINGER:Thank you. FUJIKAWA:Any other questions, Commissioners, to the staff? 2 DARROW:This morning we have received witness lists and exhibit lists from both the petitioner and the applicants. FUJIKAWA:Now that we don’t have any questions from the Commissioners to the staff, will the applicant please step forward. You’re the owner, you’re the owner, right? NAKAKURA:I’m the applicant, sir. FUJIKAWA:You’re the applicant. You have a representative? NAKAKURA:Myself and my partner, Sam Lee. FUJIKAWA:Will you step forward, please. We have Mr. Wong in the audience? WONG:Yes, Mr. Chair. FUJIKAWA:Okay, you are the person who has applied for standing upon the contested case? WONG:That’s correct, Mr. Chairman. FUJIKAWA:You may come up forward. Okay, let’s start off with you there on the left. State your name and address, first. NAKAKURA:My name is Shawn Nakakura. My address is 77-110B Kalaniuka Street, Holualoa, Hawaii 96725 FUJIKAWA:You are the owner? NAKAKURA:Yes, sir. FUJIKAWA:Okay, next. LEE:Sam Lee, 73-4448 Holoholo Street, Kailua-Kona. FUJIKAWA:You are the owner? LEE:Yes. FUJIKAWA:Okay, next. WONG:Yes. Mr. Chairman, Members of the Commission, my name is Edmund Wong; and I am one of the several owners and a representative of the Estate, the family. 3 FUJKAWA:Okay, next. YUEN:Good morning, Mr. Chairman and Members of the Commission. I’m Chris Yuen, Planning Director for the County of Hawaii. FUJIKAWA:All four of you, will you kindly raise your right hand. Do you swear to tell the truth on this matter now before the Hawaii Planning Commission? TETIFIERS: I do. FUJIKAWA:Thank you. Mr. Wong, do you want to explain to the Commissioners why you are asking for standing? WONG:Before I begin with this, on behalf of the family, we wanted to thank the Commissioners for this opportunity to file for a continuance to be here today for this contested hearing case. Mr. Chairman, Members of the Commission, once again, my name is Edmund Wong, property owner and family spokesperson for who owns adjoining parcels of real property in the district of North Kona, Hawaii of Shawn Nakakura and Sam Lee, parcel of land identified as TMK: 3-7-3-58-28, and Edmund Wong, et al, parcel of land identified as TMK: 3-7-3-009-013. I come before you that we the family strongly oppose Shawn Nakakura and Sam Lee to allow the operation of a crematory facility. It would be an insult and disrespectful to our ancestors who I was told are buried there. If a crematory facility exists which would be against our strong cultures and religious belief, being of Hawaiian ancestry in that family- owned parcel of land that was handed down by our great, great, great grandfather, Hulikoa, it has become a very emotional and sensitive subject to us. I do have one of our witnesses to testify on behalf of myself and the family. FUJIKAWA:Okay, would the applicant, do you want to do a testimony right now? TORIGOE:Let me clarify. FUJIKAWA:Mr. Torigoe. TORIGOE:At this point, what we’re doing is we’re simply trying to allow the Commission to make a decision as to whether Mr. Wong will have standing for a contested case. Is that correct? WONG:Yes. 4 FUJIKAWA:Commissioners, do I hear a motion on this applicant for standing? TORIGOE:Maybe we should ask if there is a response from the owner as to whether, you know, they would object to Mr. Wong being granted standing at this point; And, also see if the Planning Director has a position on that. NAKAKURA:We have no objection. YUEN:No objection to granting standing and then proceeding into the contested case hearing. FUJIKAWA:Commissioners? SPRINGER:Mr. Chair, I move that we, Hawaii County Planning Commission accept Edmond Wong, et al. as parties of this hearing. FUJIKAWA:Second? SMITH:Second. FUJIKAWA:It has been moved by Commissioner Springer, seconded by Commissioner Smith, that we accept standing on this hearing. Any questions? Staff. DARROW:Thank you, Mr. Chairman. Commissioner Springer? SPRINGER:Yes. DARROW:Commissioner Smith? SMITH:Aye. DARROW:Commissioner Alameda? ALAMEDA:Aye. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner McCall? MCALL:Aye. DARROW:Commissioner Thibadeau? THIBADEAY:Aye. 5 DARROW:And Mr. Chairman? FUJIMOTO:Aye. DARROW:The motion passes. FUJIMOTO:Now you’ve been granted standing in this contested hearing. Do you want to testify, proceed with your testimony? NAKAKURA:Yes, Mr. Chairman. Excuse me for reading. I’m just going to be going along with my handout here. “In considering a Use Permit for any proposed use, Rule 7 of the Planning Commission relating to Use Permits, requires that such action conform to the following guidelines: “(A)The granting of the proposed use shall be consistent with the general purpose of the zoned district, the intent and purpose of the Zoning Code, and the County General Plan. “(B)The granting of the proposed use shall not be materially detrimental to the public welfare nor cause substantial, adverse impact to the community’s character or to surrounding properties; and “(C)The granting of the proposed use shall not unreasonably burden public agencies to provide roads and streets, sewer, water, drainage, schools, police and fire protection and other related infrastructure. Sam and I, “We are requesting a Use Permit to allow the operation of a cremation business within a portion of a warehouse building situated within the Limited Industrial 1-acre (ML-1a) district. The request is to allow the cremation of human and animal remains in EPA approved ovens built specifically for the purpose. We propose to have two full-time employees and operate from 10:00 a.m. to 10:00 p.m. daily. We estimate approximately 50 to 200 people a year and an unknown amount of pets that will utilize the service. “The proposed operation of a cremation business and accessory uses would meet the guidelines for approval of a Use Permit, for the reasons outlined below. “The granting of the proposed use shall be consistent with the general purpose of the zoned district, the intent and purpose of the Zoning Code, and the County General Plan. According to the Zoning Code, Limited Industrial districts ‘applies to areas for business and industrial uses which are generally in support of but not necessarily compatible with those permissible activities and uses in other commercial districts.’ Crematoriums may be permitted in the ML district, provided that a use permit is issued. 6 “The General Plan designation for this area is Urban Expansion, which allows for a mix of high density, medium density, low density, industrial and/or open designations in areas where new settlement pattern and mix of uses have not yet been determined. The proposed use is consistent with the intent of the General Plan designation. “The proposed cremation operation would complement the following policies of the General Plan: “Economic Element Economic development and improvements shall be in balance with the physical and social environments of the island of Hawaii. The County shall provide an economic environment which allows new, expanded, or improved economic opportunities that are compatible with the County’s natural and social environment. “Land Use Element The development of commercial facilities should be designated to fit into the locale with minimal intrusion while providing the desired services. The County shall encourage the development and maintenance of communities meeting the needs of its residents in balance with the physical and social environment. “At this time, only Dodo Mortuary and Homelani Memorial Park cremate human remains on the Big Island. There is only one pet cremation facility, which is located in Keaau. All these sites are in East Hawaii. Presently, there are no facilities located in West Hawaii. A cremation service in West Hawaii will benefit the residents on the west side of the island by saving them time and money by decreasing delays and lowering transportation costs. “Thus, the proposed cremation operation will be consistent with the intent of the Zoning Code for this district, with the General Plan designation, and in keeping with the policies of the General Plan. “The granting of the proposed use shall not be materially detrimental to the public welfare nor cause substantial, adverse impact to the community’s character or to surrounding properties. “The crematories to be purchased (Exhibits 1 & 2) must pass stringent environmental standards in order to be approved for use in the State of Hawaii -.” Should I go through all the exhibits at the end? Would that be better, Mr. Chairman? Should I go through all the exhibits at the very end after -? FUJIKAWA:You have exhibits, yeah. You have any more exhibits that you would present on this? 7 NAKAKURA:Yeah. It’s all in the back portion. Maybe I’ll thumb through it as I -. FUJIKAWA:You have any other added on to it? NAKAKURA:Yes, yes, I do. I guess I should just go through it, this first part, and then I’ll go through exhibits. So there must be, “must pass stringent environmental standards in order to be approved for use in the State of Hawaii (Exhibit 3). The emission from the crematories are below state and national standards and are not detrimental to the public (Exhibits 4 & 5). When properly operated, the crematories are smokeless and odorless (Exhibits 6 & 7). We will be properly trained & certified to operate the crematories by the manufacturer. “The subject property is 1.009 acres in size and is located in the Kohanaiki Business Park, Phase II. The nearly completed warehouse consists of six bays that are 1,875 square feet each. We will be located within the far southern bay nearest Hulikoa Drive (Exhibit 8). The immediate surrounding properties are zoned ML-1a within the Kohanaiki Business Park. To the north are large parcels zoned Open and A-5a. To the south within the business park is Hulikoa Drive and 1-acre sized lots that are zoned ML-1a. Beyond the business park to the south is a large open area zoned Open and A-5a. (See Exhibit 8) “All activities to conduct our business (eg. unloading & cremation of the deceased) will be within our warehouse bay (away from the public eye). Therefore, substantial, adverse impact to the community’s character or to surrounding properties will not occur. “The granting of the proposed use shall not unreasonably burden public agencies to provide roads and streets, sewer, water, drainage, schools, police and fire protection and other related infrastructure. The property is located in the Kohanaiki Business Park, Phase II. Hulikoa Drive is a two-lane, sixty-foot wide roadway with paved swales that provide access to the subject property. Traffic impact is expected to be minimal for the proposed use. No funeral services will be performed at the business site. Wastewater will be disposed of in accordance with applicable rules of the Department of Health and Department of Environmental Management. Water, telephone, electricity are provided at the new facility. Police and fire protection are located within four miles from the property. “Further, no valued cultural, historical, native resources, or any traditional and customary Native Hawaiian rights were practiced in the area. The property has been completely graded. It is also not anticipated that the proposed request will have any adverse impact on cultural or historical resources in the area. 8 “Based on the above we ask that our request to operate a cremation business be approve.” Going through the exhibits, Exhibit 1 is just the brochure from the manufacturer. Also, Exhibit 2, Exhibit 1 is the human crematory, Exhibit 2 is the animal crematory. Exhibit 4 is the Emissions Test Summary. And if you look at my handwriting, it says “Allowable Particulate Emissions,” it’s 0.3. And our machines will, on the average, produce 0.14, so about half of the allowable emissions for particulate matter. For carbon monoxide, the allowable limit, 0.12; and our machines will go .012, so about one-tenth of the carbon monoxide. For those three remaining nox -, VOC, SO2, the manufacturer told me that there was no limits to those and that it’s basically not a lot, yeah, anyway -. Emissions Test Summary for the animal crematory (Exhibit 5), again, we are way below. If you look at the allowable emissions and for particulate and carbon monoxide, it is below. Exhibit 6 is a graph, comparing a residential fireplace, a diesel truck, a restaurant cooking 100 hamburgers per hour and the B&L Cremator, crematory. So for particulate matter, the first graph is the residential fireplace, diesel truck, restaurant; and the B&L Cremator is very low. For nitrogen oxides, the big black pillar there, that represents a diesel truck. And if you’ve ever seen a diesel truck start up, you know, that’s nitrogen oxides, it’s not very good for you. And volatile organic compounds, if you ever go by a Burger King and see some smoke coming out on the top, that’s what that is; and a restaurant grill is very, very, it’s high emissions there. And we are very, very low. And, continuing, I won’t read through this (Exhibit 7). I read to you enough. But these are all descriptions of what is emitted from our crematories as well as the graph on the next page basically shows how our crematories put out. They’re very, very environmentally friendly. The EPA makes sure of that; and we must pass all of these tests to be able to operate our crematorium in the State of Hawaii. And, finally, Exhibit 8, the first photo on the top left is the, our building site nearing completion. It’s six bays. We are the far left bay, okay. The photo on the top right is the northern side of our site; and you can also see Mr. Wong’s property on the right side portion. Below on the far left, bottom left, it’s just some of the businesses that are within Kohanaiki Business Park. I thought that it was going to be an issue of value, us bringing the value of the place down. But, you know, there’s a stockpile and vehicle storage there, so, anyway -. Thank you very much, Planning Commission. 9 FUJIKAWA:Any questions, Commissioners, of the applicant, on any of their exhibits? Commissioner Springer. SPRINGER:Thank you. I’m looking on page 3 of your narrative where on the last paragraph in your discussion of no valued cultural, historical or native resources, who made that, or did anybody help you with that assessment? NAKAKURA:Yes. The information that I received for this was on a recommendation that I was given by the Planning Commission. That was before the contested hearing. So it’s, it would be a Planning, I’m sorry, Planning Department. SPRINGER:Thank you. FUJIKAWA:Any other questions, Commissioners? For the record, any objections on the exhibits? Parties, any objections on the exhibits? Now, let’s clarify. Mr. Wong, you have a property on, in the picture, is that the one on the lower side, the left side? That’s the one, exhibit, last page? WONG:That’s correct, Mr. Chairman. FUJIKAWA:That will be on the bottom left, Commissioners. DARROW:Top right. WONG:Top right. FUJIKAWA:Top right. TORIGOE:For the record, which, which exhibit is this? NAKAKURA:Eight. WONG:I’m sorry. TORIGOE:Exhibit 8? WONG:Yes. TORIGOE:And those are photos, and you’re looking at the one that’s on the top right? WONG:Top right. FUJIKAWA:Exhibit 8, top right. Any questions? If not, Mr. Wong and Mr. Yuen, you have any objections to the exhibits? 10 WONG:Mr. Chairman, can you repeat that again? I don’t follow you on this. FUJIKAWA:You have any objections to the exhibits? WONG:The objections, the objection to the exhibit would be the facilities that is located on the property. So would that be part of the exhibit that you’re talking about? FUJIKAWA:Any of the exhibits, do you have any objections to it? TORIGOE:Let me clarify. Just, Mr. Wong, basically, the Chairperson is trying to make sure for the record that we have these exhibits either admitted or not, as evidence for the contested case. So if you have a problem with, you know, the Commission even considering this matter then you should express that now. For instance, if you feel that the exhibits are just completely relevant, or any part of them are completely irrelevant, or if you feel that they’re not accurate, you shouldn’t be considering, you should not even be considering them at all. It’s not whether you agree with what they’re saying, it’s just whether you think there’s any fundamental problem with the Commission even looking at these things. WONG:Well, the only objection that I have would be how to, could I have a little short break here while I talk to my cousin here? FUJIKAWA:Yeah, let’s take five-minute break. RECESSEDThe Chair called a short recess at 9:31 a.m. RECONVENEDThe meeting reconvened at 9:36 a.m. FUJIKAWA:Will the Planning Commission meeting please continue. Mr. Wong, you were on the, you were doing the testimony right now. WONG:Yes, Mr. Chairman. FUJIKAWA:Go ahead. WONG:Yes. Mr. Chairman, for the record, the thing that we want to object to is the area where they talked about the value and the, I’m sorry, the cultural, historical, natural resources that they talked -. FUJIKAWA:What page are you on? WONG:Oh, I’m sorry, page No. 3. FUJIKAWA:Okay. Now this is the statement from the applicant, right? 11 WONG:That’s correct, Mr. Chairman. FUJIKAWA:Okay, Commissioners, page No. 3. What paragraph? WONG:That will be the last, let’s see. It’s the bottom portion of the paragraph. FUJIKAWA:Go ahead and read it. WONG:Okay, I’m sorry, thank you, “Further, no valued cultural, historical, native resources, or any traditional and customary Native Hawaiian rights were practiced in the area.” I’m sorry, I just lost my thought here. I think I had it somewhere, shucks. Oh, I’m sorry, okay, yeah. “It is also not anticipated that the proposed request will have any adverse impact on cultural or historical resources in the area.” That’s also on page number 3, on the same paragraph. FUJIKAWA:Commissioners? WONG:I apologize, Mr. Chairman. But, yeah, okay, that’s the section I was looking at. FUJIKAWA:Okay. Any questions, Commissioners, of Mr. Wong? Okay, I will admit the, for the record, I will admit this testimony, part of the exhibit. TORIGOE:Just to clarify, so are you admitting, well, we’re recognizing Mr. Wong’s objection for the record. But you’re admitting the testi -, the written testimony and the exhibits as -? FUJIKAWA:Yeah, right. WONG:That’s correct. TORIGOE:Okay. Is that correct, Mr. Chairman? FUJIKAWA:That’s right. WONG:Thank you very much. FUJIKAWA:Any questions, Commissioners. You are Mr. Lee, right? LEE:Yes, sir. FUJIKAWA:The other owner? LEE:Yes, sir. 12 FUJIKAWA:You have any testimony to present? LEE:No, they’re all in here. FUJIKAWA:You’re together. LEE:And then just to clarify earlier where Shawn got that from, it was from the recommendation on page 4, which was from the Planning Department to us. FUJIKAWA:Commissioners, you’re back to the recommendation, page 4, yellow page. LEE:So that’s where we got the information that Mr. Wong is objecting about. FUJIKAWA:Any questions, Commissioners? Commissioner Graham. GRAHAM:I guess, I would just say rather than fight, I mean, rather than chew on this too much, is that we could accept it as evidence, but accept it with the understanding that there is objection to the truthfulness of it, and that the basis of the evidence was from material supplied by the Planning Department and has no further substantive backing before us, other than the Planning Department’s recommendation. NAKAKURA:That sounds good. That’s good with us. FUJIKAWA:Okay. Hannah, you have a question? SPRINGER:I was just wondering if we could inquire of the Planning Department at this time or at some other time how they arrived at that conclusion. FUJIKAWA:Okay, Chris? YUEN:That will be in order when we, I’ll testify after the intervenor has had a chance to testify and offer his exhibits; and then I will be open for questioning by the Commission and by the other parties. FUJIKAWA:Very good. Okay, the applicant, you have any questions of Mr. Wong’s testimony? NAKAKURA:Not at this time. FUJIKAWA:Mr. Wong, are you done? Not yet? WONG:No, I have someone here to testify on behalf of the family regarding the cultural and religious beliefs the family has with the property. 13 FUJIKAWA:Go ahead, do your presentation. WONG:Thank you. At this time I’d like to call a living treasure, Tony Vincent. FUJIKAWA:Morning. Could you raise your right hand, please. Your other hand. Do you swear to tell the truth on this matter now before the Hawaii Planning Commission? VINCENT:I do. FUJIKAWA:You want to state your name and your address, please. VINCENT:It’s (microphone) on? WONG:It’s on. VINCENT:My name is Antone Vincent. I live at 1115 Maunawili Road in Kailua, Oahu. And I represent our Vincent clan part of Kohanaiki. FUJIKAWA:Okay, you may proceed. VINCENT:We have Exhibit 1 that we have presented here. I’d like to read it to you on behalf of our team. “I would like to give you a little history of the property located at Kohanaiki. “In 1802, this property was given to Hulikoa, designated chief or guardian of this area at this time. Hulikoa was our great, great, great grandfather. “This area was designated by King Kamehameha to supply fish, limu and other ocean products to be distributed and traded with the people from the mauka (mountain region) area. “In 1832, Hulikoa passed away and his son Na Hulikoa took over the guardianship of the property. During this period, our ancestors had not been introduced to religion but they relied on their strong beliefs as their own religion. One kapu (law) stated that there would be no burning of bodies on the property. If a cremation has to be taken place, a curse would be put upon the land and it’s remaining owners,” or relatives. “In my research, valuable information found in Nana I Ke Kumu, Vol. I, by Mary Kawena Pukui, states that ‘The ultimate desecration was the complete destruction of bones. As Mrs. Pukui explains if the bones were destroyed, the spirit would never be able to join its aumakua.’ No prior records were available,” when we dug into it. 14 “Therefore, out of distinct respect to our ancestors, we are opposed to having a crematory in this area.” Thank you. FUJIKAWA:Commissioners, any questions? SPRINGER:Mr. Chair? FUJIKAWA:Commissioner Springer. SPRINGER:Aloha mai. VINCENT:Aloha. SPRINGER:I have some questions on your paragraph that starts, “In 1832.” Your second sentence reads that the ancestors had not yet been introduced to religion. Are you speaking of Christianity? VINCENT:Yes. SPRINGER:Thank you. VINCENT:Yes, because their belief was on their own. Now, as you know, in the history of the Hawaiians -. NOMURA:Microphone. VINCENT:Oh. As you go back into our history the Hawaiians did not have any Gods, other than what they believed in. Now they entered in the time of, before Capt. Cook. At that time that Capt. Cook came, he recognized in Kealakekua roughly about 200,000 people. Now it was only one shoreline. He had many shorelines right along the line, which how many more Hawaiians were in that area. But their belief was what they saw, was the sun, moon, sky, earth; and that’s what they believed in. So they started doing some sculpturing of making their own gods, Lono and Kapua and the rest of them. So this is what the, we’re referring to. SPRINGER:Thank you. And further down there’s this sentence discussing a kapu which stated that there would be burning of bodies. Was this the law of the land or, in 1832, or was this the law of the family? VINCENT:Well, before my grandmother passed away she and mother were always talking about the kapu and burning of bones on the property; and, at that time, I was only about maybe 13, 14 years old. Then grandma passed away and mother always did say that respect the aina and carry on our tradition. And from this, that’s what we went into that; and after reading Mary Pukui’s book on that, and this was how we put that together. 15 SPRINGER:Thank you. One last question, Mr. Chair? One last question? FUJIKAWA:Go ahead. SPRINGER:Thank you. Are there known family burials on the family land in Kohanaiki? VINCENT:Not that I know of. Back in, when that Queen K was being established over here, my son was working for the State under Hugh Ono. They had a survey made all in that area; and I think my son had those who were working for BishopMuseum go and make a fast inspection of the area. They found no bones on the property. However, if there’s any on there, I don’t know. In the old days Hawaiians would take their bones from the Alii and it was hidden where no one knew where they were. And this is where Kamehameha lies, somewhere along the coastline over here on Kealakekua. FUJIKAWA:Any questions, Commissioners? VINCENT:Now I’m not objecting to a crematory being put in on the East end over here. All I’m saying is that if he can keep it out of our ahupuaa, that’d be fine with me, right in there. FUJIKAWA:So you can, on record, show an exact location of where, where in that area that you can do the burning of the human body? VINCENT:Well, the -. FUJIKAWA:It’s a big area. VINCENT:Yeah, the ahupuaa, that means the section of Kohanaiki. And it goes all the way from the ocean all the way up to the top of the mountain. FUJIKAWA:That’s the whole -? VINCENT:Yeah, the whole area. Now I’m not objecting if they put the crematory down the old dump over there, close to that. That’ll be fine, yeah, if they needed one over here on this end. FUJIKAWA:Commissioners, you have any questions? Commissioner Smith? SMITH:None. FUJIKAWA:If not, Mr. Wong, you may continue. 16 WONG:I’d also like to put into exhibit the cover sheet of the book, the Volume I and Volume II, which is Exhibit, was that II and III, I believe, yeah, II and III, for the record. It explains everything what he has been talking about in furthering the culture of the estate. FUJIKAWA:Okay, are you done? WONG:Yes. FUJIKAWA:Will the applicant, you want to respond to Mr. Wong? Do you have any questions? NAKAKURA:Yes, I do, sir. Mr. Wong, so your family owned Kohanaiki, the ahupuaa? WONG:Yes. NAKAKURA:Okay. WONG:The dump, the mauka part of Queen Kaahumanu and the makai side of Kaahumanu. NAKAKURA:Okay. But you have sold all of that property except for -? WONG:We haven’t sold any of the properties. NAKAKURA:Okay. VINCENT:The issue, you want me to bring up the other issue? WONG:Yeah. VINCENT:This ahupuaa was, Kohanaiki was all the way up, from the bottom all the way up to the mountain. Now when mother was born, she was raised in that fishing village. Now that fishing village went from all the way down to Honokohau where the dives were. That was all fishing village areas supplying food up mauka. But mother at the time of her birth was called in by her grandpa from Honolulu to come over here; and grandma gave birth and she stayed here. Being the first child of the Hawaiians, the old folks, because of the younger set giving a hard time, they would keep the oldest and trained that oldest. Now my mother went to Kohala seminary; and on this she was trained to be a, what do you say, a guardian or assisted to the Aliis. But as time went by and, you know, we were told not to learn Hawaiian and what not. It was more in English. So after her schooling, somehow or another they went to a dance with my dad where he came back World War I, and they met, and that’s how they got hooked up. And that’s the story of my mother and how she would pass it down to us with grandma. So that area up there, she was in town, she went to Honolulu to get a better life. 17 Now the old folks as they were getting old they couldn’t afford to stay there. Now the ranchers up mauka saw the opportunity that they would put the cattle down there, so they came down. And Punihaole was one of the descendents, and he was transferred up mauka to that end by the ranchers. And when they went down there to, when mother came down to claim adverse possession of the property, she couldn’t claim the whole thing. She had to settle with Huehue Ranch for one portion and one, and John Chinen was the one that helped get this adverse possession. And the Morrisons was the one that sold to Kamaaina Eight; and that’s the property that they bought and where this, adjacent to us. NAKAKURA:So as, but as far as rights of ownership, it is only for the portion on your Exhibit No. 2c that is highlighted as far as right, ownership and property rights? That is it only entails the yellow portion? WONG:I failed to put down the yellow color on the makai side of the Queen Kaahumanu. But there is, we own that land there, down that side, too. NAKAKURA:Okay. WONG:I just colored the upper part because it concerned us, because the crematory was there. NAKAKURA:Okay. WONG:Just to show but yeah, we own the makai side of the Queen Kaahumanu as well. At one time we used to own the whole portion of that district; but it was taken away or stolen by the, by the -. VINCENT:Well, you cannot say stolen. Because the old folks didn’t have the money for the taxes, so the tax money was paid by the ranchers, and the ranchers acquired that and took possession in due time. WONG:Okay, I stand corrected. FUJIKAWA:Any other questions you have? NAKAKURA:No, sir. FUJIKAWA:You’re okay? NAKAKURA:Yes. FUJIKAWA:Mr. Wong, you’re okay? WONG:Yes, Mr. Chairman. Thank you very much. 18 FUJIKAWA:Okay. Mr. Yuen, do you want to go ahead? YUEN:Just for the record, I think it would be in order to, Mr. Wong should ask for the admission for his exhibits, and then the Commission should rule as to whether those three exhibits should be admitted -. For the record, we have no objection to that. Go ahead and ask that your exhibits be admitted. That’s just a formality. WONG:Mr. Chairman? FUJIKAWA:Go ahead. WONG:Can we ask that you submit our exhibits? YUEN:Accept all your exhibits. WONG:Yeah, accept all of our exhibits for this contested case hearing. FUJIKAWA:Commissioners? SPRINGER:Mr. Chair, I move for the acceptance of the intervenor’s exhibits. FUJIKAWA:Second? GRAHAM:Second. FUJIKAWA:It has been moved by Commissioner Springer, and seconded by Commissioner Graham, that the exhibits be accepted. TORIGOE:Mr. Chair? WONG:Thank you very much, Mr. Chairman. FUJIKAWA:Mr. Torigoe? TORIGOE:Yeah. Actually it’s, under contested case procedure Rule 4-18(b), it’s the presiding officer that rules on the admissibility of evidence. So you don’t really have to have a motion. That’s something that you do. FUJIKAWA:Okay, great. Okay, so I’m the one that accepts that. SPRINGER:Sure. FUJIKAWA:Yeah, I’ll accept that. Okay, go ahead proceed, Director. 19 YUEN:Good morning Mr. Chairman, Members of the Commission, and the other parties here. I’ll be just making a brief statement as the Planning Director. First on procedure on what we’re doing today, the Commission is holding the contested case hearing as a body. At the end of hearing the evidence presented by the parties here, the Commission will make a motion either to grant or deny the use permit application. The motion would say, if the motion is to grant, the motion would say based on the evidence and the exhibits presented the Commission moves to adopt the recommendation of the Planning Director, that the, and approve the use permit for the property. If, on the other hand, the Commission would like to deny the use permit, the motion would be to deny, and then the motion should also state reasons that are based upon the criteria in a use permit. And, in either case, we would then have a more formal findings of fact, conclusions of law, decision and order prepared. If it was favorable to the use permit, the Department would do that with basically the same things that are in the recommendation, but put in the more formal kind of paragraph by paragraph findings; and then the Commission would adopt that at a subsequent meeting, the formal decision and order. That would be the procedure that the Commission would follow here. As far as the merits of this, we, based upon what we’ve heard this morning, the Department stands by its prior recommendation that the use permit should be granted. There are set criteria for granting a use permit; and the applicant has clearly demonstrated that they meet these criteria. The property is zoned light industrial. Then it goes on, the Zoning Code goes on to say that a crematorium can be allowed in a light industrial area, but with this additional level of scrutiny called a use permit. And a crematorium like certain other uses gets a further review by the Planning Commission to see if certain things are met. Among them, and the most important, really, the burdening of public agencies to provide services and the potential for adverse effects upon surrounding properties. On the most obvious level, the potential adverse effects on surrounding properties from a crematorium would be air quality, would be air emissions, first, and the handling of bodies second. The applicant has done a very good job in dealing with both of these issues in their exhibits. They have shown that there are air quality standards that apply, that the emissions from their facility would be much less than any commonly found and commonly accepted businesses that you might find in a light industrial area. And this is not just a matter of County regulation, this is a matter of State and Federal regulation for air quality. On the question of the handling of bodies, they’ve explained that all would take place within a screened area, within a warehouse area; and so this would not affect the surrounding properties or the neighboring properties. Now to turn to the issue raised by the intervenors, the question of their family’s beliefs and their family’s objection to the burning of bodies on site, the law gives a way that Native Hawaiian cultural practices are incorporated in our land use process. This is 20 based upon the PASH decision and PASH rights, Public Access Hawaii case. On, in this particular case, based upon the Hawaii Supreme Court decision in State vesus Hanipi, PASH rights do not apply; and that’s because this would be considered property that is already fully developed. State versus Hanapi is a case involving of a residential area with a home on a single family, on a developed single family lot. And the Hawaii Supreme Court said in that case such native rights of access, like gathering rights, simply do not apply to that type of property. And the same analysis would hold to this piece of property which is a property that is, currently has a warehouse upon it, is part of an industrial park, and has been grubbed and graded in the past. As a manner of doing the write-up and the work-up for this particular application, the Department did look at native Hawaiian gathering rights and PASH rights and, in particular, looked at the fact that there was a no-effect letter from the State Historic Preservation Division, again, based on the fact that the property has been completely developed in the past. I don’t know if we looked at the rezoning of this property. But given the fact that the property was zoned in 1990, it was zoned in the late eighties or early 1990’s, there would have been an archaeological study done at the time of the zoning; and sites would have been, significant sites should have been preserved at that time. But, at any rate, by the time this application came to us, the site had been developed and graded. It has gone through the subdivision and the full development of the site; and so the State Historic Preservation Division said that there were no historic sites and issued a no-effect letter. On the question of plants or other biological resources, again, because the site had been completely graded, we came to the conclusion that this does not apply. But even more, going beyond on that on a legal level, because the site would be considered fully developed, these PASH rights would not apply. The beliefs of the family that’s here sitting next to me, their spiritual beliefs are entitled to the greatest respect by all of us; and by myself as well. The question before this body, the Planning Commission, is how do we incorporate that aspect into the decisions that you are going to make. And the simple fact is that if you read the law regarding use permits, the application before you meets the criteria of that law. There’s nothing in the law that would allow you to, in effect, give a veto to the family that owns the adjoining property that’s based upon their spiritual beliefs. There are, of course, to these, to them this is spiritually wrong that there be a crematorium on the property. To many other people in our society of different cultures and, in fact, to many people, I’m sure, of Hawaiian ancestry cremation is a culturally and religiously appropriate way to deal with the body. And, in fact, I’m quite sure to some people in some other cultures it is the preferred way of dealing with bodies. Given that we live in a society of people with many different beliefs, and that all need to be respected, that the kind of respect that we show to the family adjoins it cannot extend to the point of saying that they have the right to prevent the establishment of this business on property that their family no loner owns. So, and I’d be happy to answer any questions. But, in conclusion, we would recommend that the Planning Commission move to grant the use permit based upon the 21 recommendation of the Planning Director and upon the evidence that has been presented here. FUJIKAWA:Commissioners, any questions with the Director? Okay, let’s start off with Bill Thibadeau. THIBADEAU:Yeah, Mr. Yuen, I assume that the statement that the Department made on page 4, “The proposal will not have an adverse impact on the cultural or historical resources in the area,” this is based on the fact that it complies with the PASH decision? Is that basically what you’re saying? YUEN:If PASH had applied, we would say that, yes, that there are not resources on this property, there’re not cultural or historical resources on this property that would be adversely affected by the establishment of the crematorium. THIBADEAU:But this does not, PASH does not apply in this case, correct? YUEN:It does not apply, yes. THIBADEAU:And then the basis for the, it is not anticipated that the request will have an adverse impact on cultural or historical resources in the area, this is an opinion, not based on anything? YUEN:It’s an opinion based on -. THIBADEAU:If it complied with PASH I could understand it. But PASH does not apply in this case. YUEN:This was written up with the belief that PASH did apply. But upon further consideration, PASH does not apply.But if PASH did apply, this would be the conclusion. THIBADEAU:But originally you thought that PASH did apply -?. YUEN:Yes. THIBADEAU:And then decided it didn’t? YUEN:Yes. THIBADEAU:That it didn’t change the statement? YUEN:That’s right. THIBADEAU:Okay, thank you. 22 FUJIKAWA:Commissioner McCall. MCCALL:Yeah. My question, I guess, is primarily that when the property was originally rezoned and graded for this subdivision, they, is your opinion, since we don’t have the information from the archaeological report there, but your opinion is that there were no remains found on the property when it was developed? YUEN:My, there would have been an archaeological study done at the time. And it’s possible that then, in the course of development of the property that archaeological sites were allowed to be destroyed by SHPD because of not being significant, for example. But if I could, do you know if we, did we look at that, the rezoning, and see if, looked at the archaeological study at the time? DARROW:No, I don’t know that we researched it. YUEN:Okay. So, but knowing the process, that’s what would have happened. So I cannot say whether or not there were any sites on this particular location, but it would have gone through a process of review at the time that the rezoning was done. MCCALL:If there were, if I’m not mistaken, if remains were found, there would have been like a reinternment process, and something; and that would have been recorded somewhere. Is that correct? YUEN:I believe the burial rules were in effect at the time of this rezoning so that there would have had to be consideration and some kind of either preservation of the burial in place or a decision to, a decision approved by the Burial Council to move them somewhere else. FUJIKAWA:Commissioner Springer. SPRINGER: Mr. Yuen, in the discussion about valued cultural, historical or native resources, or traditional customary native Hawaiian rights, is the discussion limited to physical remains, archaeological evidence? YUEN:I would, no, I would say no. SPRINGER:Thank you. FUJIKAWA:Commissioner Graham. GRAHAM:Personally, my concerns are not particularly with PASH nor particularly with what has been done with the site, and the level of preparation it now has. However, in our set of exhibits from Mr. Nakakura and Mr. Lee where they speak of the conformance requirements to grant a use permit, and the second one where it says the proposed use shall not be materially detrimental nor cause substantial adverse impact to 23 surrounding properties, it seems to me the whole issue kind of rides on that, whether doing the cremation services adjacent to another property would cause substantial adverse impact to the surrounding property. And I don’t think it’s sufficient for the surrounding property owners to say, well, we think it’s adverse. However, I certainly don’t disregard it when the say they think it’s adverse. And, to me, the key would be based on Mr. Wong’s submission if, in fact, the burning of bones was a practice that was odious to the Hawaiian culture or abhorrent to the Hawaiian culture, and these neighboring property owners are practitioners and very much attuned to their Hawaiian heritages. Even though there’s not physical intrusion on their property as far as emission or anything else, I think that there is certainly a substantial case to be made that it is detrimental. But, in fact, the evidence that has been submitted in regards to how is the burning of bones viewed or how was it viewed in the Hawaiian culture is just the one sentence from the Pukui book. Taken out of any further context, I don’t feel like I’m aware or I could, that I could say I believe that it was abhorrent to a substantial degree that we should deny this. But I would certainly welcome any other input from Commissioner Springer or others who are more knowledgeable to the Hawaiian culture than myself, and I also would invite the Planning Director if he feels that my logical train of thought that I put forth here as to what I’m concerned about is off based or unwarranted in a way to please let me know. Thank you. FUJIKAWA:Any other comments ? Commissioner Springer? SPRINGER:In light of Commissioner Graham’s question to myself or others, I would ask that the Deputy Corporation Counsel if I may answer his question about the practice that we’re discussing right now? FUJIKAWA:Mr. Torigoe? TORIGOE:Yeah, that becomes, it appears rather difficult because, as you know, in a contested case the, your decision needs to based on evidence that is put on the record. And as decision makers the Commissioners really should not be in a dual capacity of testifying and providing, you know, decision-making information, as well as participating and voting on the decision. So, you know, I think you need to decide which role you need to take in this matter. If you feel that you need to testify then you should probably recuse yourself from the proceeding and do that. But if you don’t feel that, you know, there’s a, a moral or legal compulsion for you to do that and you’d prefer just to remain as a decision maker, then you should probably remain in that capacity alone. SPRINGER:Thank you, Mr. Torigoe. If I may step aside as a Commissioner and offer testimony to this body, I would like to take that opportunity to do so. FUJIKAWA:Okay. 24 TORIGOE:For the record, so, Ms. Springer, are you asking to formally be recused from the proceedings as a decision-making member of the Commission? SPRINGER:Yes, I am. FUJIKAWA:Commissioner Springer, you may be dismissed. TORIGOE:Okay. So, at this point, then is Ms. Springer going to testify as a member of the public or on behalf of any of the witnesses? FUJIKAWA:Commissioner Springer, are you going to testify as the public or -? SPRINGER:I have no prior knowledge. FUJIKAWA:Director. YUEN:Can I offer something? FUJIKAWA:Go ahead. YUEN:I think it is not a good idea for the Commissioner to disqualify herself as a member of the Commission in order to offer quasi-expert testimony on Hawaiian customs. This is a, the Commissioners are appointed to bring a knowledge and a background from their experience to the Commission, and you can’t separate the things that you know from the decisions that you make. However, in a formal contested case, as the Deputy Corporation has said, the information that is presented and the Commission makes a decision on is to be offered on the record by the parties. And I think the Commissioners, the first responsibility of all the Commissioners and the reason why you’re selected is to sit here and make decisions and vote on the decisions, rather than to switch hats and come out here and be witnesses, which may be the case in, possibly in other situations where, for example, a Commissioner may be a contractor and knows something about how construction practices are handled. The Commissioners can ask questions to try to illicit the information from the witnesses, the Commissioners can suggest written information if that, if the Commissioner believes that it’s essential to have other information to make a decision and that information is, for example, in writing somewhere. The Commissioner can suggest that the Planning Director get information, and suggest where it can be found, and put it on the record for the Commission to make a decision. But, otherwise, the procedure, I think what we’re looking at here is something that is, that can come up again and again and would take away from the Commission’s role in being the decision-making body, rather than in these formal contested cases the body that brings, rather than bringing information. It’s a little different when there isn’t a formal, where we’re not in a formal contested case mode with an intervention. That’s my comment on this. FUJIKAWA:Thank you. Any others, Commissioner Springer? 25 SPRINGER:Sorry to put us into this position. I guess, perhaps, I may need to question the party that came forward this morning, or any of us may. TORIGOE:Okay, so, for the record then, for the time being you’re going to, I guess, continue on as a member of the Commission and seek to see if you can by questioning illicit some of the information that you think is relevant? SPRINGER:Can we take a five-minute recess? FUJIKAWA:Sure. Okay, let’s take a five-minute recess. RECESSEDThe Chair called a short recess at 10:21 a.m. RECONVENEDThe meeting reconvened at 10:33 a.m. FUJIKAWA:Will the Hawaii Planning Commission please continue. Where did we leave off, we left off with the Director’s recommendation. And, also, before I proceed, you have any more exhibits to present? YUEN:Thanks for reminding me that we should, we would like to move our exhibits into evidence, that’s simply the background and the recommendation. FUJIKAWA:Okay. Any objections, parties? Are there any other questions? SPRINGER:Mr. Chair? FUJIKAWA:Commissioner Springer. SPRINGER:First of all, I’d like to apologize to all of the parties and the members of this hearing for my indecision; and thank you for the time granted to me to collect my thoughts and also to digest the various recommendations that I’ve received. And so, Mr. Chair, if any other Commissioners have any other questions, I’d welcome letting them proceed; and then I do have some other questions. FUJIKAWA:Before I proceed, I would like to accept the Director’s exhibits into the record. TORIGOE:So you’re receiving the Planning Director’s exhibits into evidence at this point? FUJIKAWA:I am. It’s recorded. Okay, Commissioners, any questions? None. The applicant, do you have any questions with the Director’s, Mr. Yuen’s, at this time? NAKAKURA:No, sir. FUJIKAWA:Hannah, you have a question? 26 SPRINGER:I defer to Commissioner Alameda. ALAMEDA:My question is more around the bones. I was wondering if it also pertains to pets, you know, pet bones, or is it specifically animal bones when you talk about, I mean, specifically human bones when you refer to Pukui? I was just curious. VINCENT:She may have had other things in the book. I didn’t go that far as for animals, but this was mainly for the human bones on that. SPRINGER:Mr. Chair? FUJIKAWA:Commissioner Springer? SPRINGER:Thank you. This is to the family members, if I may, -? FUJIKAWA:Go ahead. SPRINGER:Either Mr. Wong or Mr. Vincent, do either of you reside on or near this property? VINCENT:Would you repeat that. SPRINGER:Do either of you reside on or near this property? VINCENT:No, we don’t. We’re not on there yet. We haven’t decided what we’re going to do with the property. And -. FUJIKAWA:No. Do you live there by the property or on the property? Is that what you’re asking? SPRINGER:Yes. VINCENT:No, no. FUJIKAWA:Mr. Wong? WONG:I’m sorry, Mr. Chairman, but I cannot answer that question at this time. We do have families all over the island; and I think it would be inappropriate to say yes or no to this right now. SPRINGER:Regardless of place of residence, does the family continue to maintain cultural practices on the land? WONG:I cannot answer that. 27 VINCENT:We don’t know. SPRINGER:Okay. Often times as Commissioners we’re presented with physical evidence of practice, as through archaeological reports. But not all practice is physically bound. It includes intangible elements. Does the family maintain any practices on this land? VINCENT:Mother did, but not us. We grew up being more English than Hawaiians. And only now that we’ve taken up more Hawaiian and tried to learn the language a little better. SPRINGER:Thank you. And within your family practice, you maintain the kapu on the iwi of your family, is that correct? VINCENT:Yes, we do. SPRINGER:Thank you. Are you familiar with the Hanapi case that the Director referred to? VINCENT:No, I don’t. SPRINGER:Mr. Yuen, I’m wondering in light of the family’s concerns that they brought forth to us, would it be in the best interest of this proceeding for copies of Hanapi to be made available to them, in your opinion? YUEN:We would be happy to do that. However, I can explain the Hanapi case; and I don’t have a, I’m pretty sure I don’t have a copy here. SPRINGER:If I may, to the family, we’re grappling with a difficult issue before us, as you can sense. And we’ve had a well articulated expression of the reasons why this application before us is a proper application before us. You’ve raised some elements that have expanded the discussion here; and I want to make sure that you understand the boundaries that this Commission works under. Most importantly, following the Public Access Shoreline Hawaii case and decision, which fortified the protections of Hawaiian rights and practices, came another case involving a family on Maui, on Molokai, the Hanapi family. And we are bound by the case law that was developed in Hanapi. So if we may ask Mr. Director to give us a synopsis of the Hanapi case. YUEN:Where this starts is in what’s called the PASH case. The Hawaii Supreme Court said that whenever a Commission, like the Planning Commission, looks at a land use permit, they’re supposed to consider the potential effects of that land use permit on native Hawaiian cultural practices on the property in question, things like gathering rights, things like archaeological sites, things like shrines, possibly even natural features that have a spiritual significance, and that the Commission is then supposed to minimize, first, to discover what those resources might be; and then to decide what feasible steps can be taken to minimize adverse effects on those resources. And it is a 28 balancing test. And it’s a balancing between the rights of the private property owners and the continued use of the property by native Hawaiians. The Hawaii Supreme Court though then followed this up. There was a later case called State versus Hanapi. State versus Hanapi was a trespassing case, actually a criminal case, where Mr. Hanapi was arrested and charged and convicted of trespassing on a piece of property that was owned by a gentleman who had built a house on the property many years before. Hanapi raised the defense that he had a right to be on the property because, in order to exercise native Hawaiian rights, like gathering. The Supreme Court said that the PASH rights do not apply in a case of fully developed property. And, in this case, they said that a residential lot with a house on it would be considered fully developed. And so the same thing would be true for the Kohanaiki Business Park. It’s a fully developed piece of property. So whatever native Hawaiian rights might have existed on this particular piece of property are no longer in effect. FUJIKAWA:Go ahead, Hannah Springer. SPRINGER:Thank you, Mr. Chair. To both sets of parties, one of our other Corporation Counsel that sometimes sits with us reminds us that one of the opportunities, one of the rights that you receive when either of you come before us with an application or you are accepted as having standing in a contested case is the right to appeal the decision of this body. So I just wanted to articulate that for both of the parties, whichever way the vote may go. By being accepted as parties to this case, your right to appeal the decision of this body is preserved. Thank you. MCCALL:Is there more discussion? FUJIKAWA:Go ahead, go ahead, Springer. SPRINGER:If any of the other Commissioners have comments or questions, I don’t want to monopolize the microphone without sharing. FUJIKAWA:Commissioners? SPRNGER:Mr. Chair? FUJIKAWA:Go ahead. SPRINGER:What we’re grappling with is difficult. It seems as though many cases in Kona draw us to this place of where we’re having to evaluate where as a society we’ve established laws to protect traditional and customary practices and the extent to which the private property rights and laws are protected by the process. So this is the venue where the debate properly occurs. That’s all for now. FUJIKAWA:You have any questions? NAKAKURA:No, sir. 29 FUJIKAWA:Mr. Wong? WONG:Mr. Chairman, not at this time. VINCENT:Mr. Chairman and panel, I thank you very much. Thank you for listening to us and see if it is, will, you will do what you’ve got to do for your job. Thank you very much. FUJIKAWA:Okay, Commissioners? Any other arguments that you want to make? If not, the public have anyone signed up for this? NOMURA:No one signed up. TORIGOE:Just to clarify, this is the time in which if anyone has signed up to give public testimony on this agenda item, now is the time to do that. Apparently, there are none, so I don’t -. FUJIKAWA:Okay. So if none, none, okay. Commissioners, what is your decision? Okay, I’m closing the hearing, public hearing at this time. Your motion? Go ahead. MCCALL:I move we close the public hearing at this time. FUJIKAWA:Do I hear a second? THIBADEAU:Second. FUJIKAWA:Who’s the second? THIBADEAU:Second. FUJIKAWA:There has been a motion by McCall, and second by Thibadeau, that the public hearing be closed at this time. All in favor say aye? COMMISSIONERS:Aye. FUJIKAWA:Oppose? Got it recorded? NOMURA:Yes. FUJIKAWA:Okay, Commissioners, your decision. What do you want to do? Springer? SPRINGER:I’d prefer someone else to make the motion. 30 FUJIKAWA:Okay. Graham? GRAHAM:I don’t want to make a motion at this point, but I just want to express where I am with the concern I’ll put forward. I don’t feel like I have enough evidence brought before us by the intervenor to convince me that, in fact, that the burning of the bones was, you know, is just an onerous thing, and especially considering that the bones in question are in the future and are not part of the, you know, Hawaiian people. So given the evidence I have before me now, I don’t feel like I can assert that this would be a substantial adverse impact to the neighboring owners. That’s from what I understand so far. FUJIKAWA:Okay. According to the, Mr. Torigoe, on a hearing case like this, a contested hearing case, can the Commissioner ask for a continuance? TORIGOE:I suppose any of the Commissioners could request or move to continue. At this point in time you’ve closed the public hearing, however. ‘Cause, you know, ordinarily you would entertain a motion to dispose of it one way or the other. FUJIKAWA:Okay. Well, you’ve heard the Corp. Counsel, so what do you want to do? Commissioner McCall? MCCALL:Maybe just to put my opinion out, I agree with Commissioner Graham that at this point in time I don’t see enough evidence or enough reason to deny the use permit here. So based on the information I have at this point, I would be, you know, looking to favorably approve, excuse me, approve the use permit for the crematorium. FUJIKAWA:Is that a motion? MCCALL:If, I’ll, sure, I’ll put that in the form of a motion if that’s comfortable with the rest of the Commissioners. I move then that on the matter of Use Permit Application 04-002 it be approved -. FUJIKAWA:Be accepted. Do I hear a second? SMITH:Second. FUJIKAWA:It has been moved by Commissioner McCall and seconded by Commissioner Smith that the application be accepted, that’s Use Permit 04-002. Do I hear any questions? SPRINGER:Discussion? FUJIKAWA:Go ahead, Springer. 31 SPRINGER:Mr. Chairman, I will be voting in favor of the motion. I believe that the application has been well articulated. The Director has indicated to us both the County ordinances and the case law that clearly defines our parameters and what we need to take into consideration. But I do so with reservations because I’m not sure that the process has adequately developed a place for traditional and customary practice that is not evidenced by archaeology or other physical remains, although as the Director did mention there has been reference to biological communities and sometimes geophysical formations. But I do have those reservations, that we may still have a way to go as a culture, as a society, to embody some of these concerns brought for us today into the ordinances and laws under which we do our business. Thank you. FUJIKAWA:Thank you. Any other questions or comments, Commissioners? Graham. GRAHAM:Just in consideration of the Planning Director’s original instructions to us, I just wanted to indicate that my understanding of the motion is that it is, in fact, identical to what the Planning Director brought forth at the beginning whereby the motion would read that based on the evidence and the exhibits presented that Commissioner McCall is moving that the Commission adopt the recommendations of the Planning Director and grant this use permit. And if that’s incorrect, then Commissioner McCall could so advise me. MCCALL:That is correct. FUJIKAWA:Okay, any other comments or questions, Commissioners? If not, staff, go ahead. DARROW:Thank you for that, Commissioner Graham. Commissioner McCall? MCCALL:Aye. DARROW:Commissioner Smith? SMITH:Aye. DARROW:Commissioner Alameda. ALAMEDA:Aye. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner Springer? 32 SPRINGER:Yes. DARROW:Commissioner Thibadeau? THIBADEAU:Aye. DARROW:And Mr. Chairman? FUJIKAWA:Aye. DARROW:The motion passes seven to zero. FUJIKAWA:Thank you applicant; and you’ll be hearing in writing from the County on this approval. Thank you. NAKAKURA:Thank you, Chairman. Thank you, Commissioners. The discussion ended at 10:51 a.m. Respectfully submitted, Sharon M. Nomura, Secretary 33