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HomeMy WebLinkAbout2008-06-05 TSULLIVAN PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT JUNE 5, 2008 JOHN T. AND MARY K. SULLIVAN A regularly advertised hearing on the application of (SMAA 06-000201) was called to order at 3:30 p.m. in the County of Hawaii Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii, with Chairman Rodney Watanabe presiding. PRESENT: Rodney Watanabe ABSENT & EXCUSED: Andrew Iwashita Lani Bowman C. Kimo Alameda Takashi Domingo Alvin Rho Shelly Ogata Rene’ Siracusa Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Christopher Yuen, Planning Director Norman Hayashi, Staff Planner Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Maija Cottle, Staff Planner And approximately 10 people from the public in attendance APPLICANT: JOHN T. AND MARY K. SULLIVAN (SMAA 06-000201) Review of the Planning Director’s decision in determining that the Special Management Area Assessment Application to allow the construction of a single-family dwelling and related improvements was deemed incomplete. The property is located along the northeast (mauka) side of Wai Opae Road within the Kapoho Vacationland Subdivision, Kapoho, Puna, Hawaii, TMK: 1-4-68:36. The Chair introduced the Commissioners and staff to members of the public. WATANABE: Today the agenda item we’re addressing is John T. and Mary K. Sullivan (SMA 06-000201). We just did a site visit today so I think we’re all fairly familiar with the property. But before we begin I think we should inform the applicant and the applicant’s representative that potentially this could be a contested case; and maybe I should defer to Mr. Torigoe to summarize for us. TORIGOE: Thank you, Mr. Chairman. Yeah, just as a matter of, I guess, technical understanding, although there is no adverse parties from the public because this is the kind of decision that is a final decision from the Planning Commission it is technically a contested case; 1 and the congested case rules do apply. They can be waived by stipulation. One of the rules that we recently had to pay more attention to was HRS Section 91-11 which basically says that when all of the Commissioners who are voting on the matter, the contested case matter, were not at all of the hearings then the parties have the option of having a form of a decision, a proposed findings and conclusions, before a final decision is made and the parties have an option of asking that the matter be continued to allow them to look at a proposal of a decision and then to file exceptions and ultimately to argue, have oral argument before the Commission before a final decision is made. So that is an option procedurally for the parties to think about as we proceed today. WATANABE: Okay. So maybe we can get your response when you set up -. WOODWARD: Mr. Chairman? WATANABE: Yes. WOODARD: If I could ask Mr. Torigoe a question. If none of the public contesting this, why is it potentially a contested case? TORIGOE: Because the Planning Director remains, I think, a party. WATANABE: Okay. So, Mr. Darrow, you want to start this off? DARROW: Sure. Thank you, Mr. Chairman. Good afternoon, Members of the Planning Commission. Just as a, earlier this afternoon we did conduct a site inspection. This is a continued hearing. At our last hearing the Planning Commission voted to continue this matter to allow the Planning Commission to conduct a site inspection of the property. That was today at 1 p.m. We were able to view the applicant’s property, as well as Wai Opae Road, the residences in the area, and also speak a little bit about a site inspection conducted by representatives of DLNR and the Planning Department yesterday. If I can direct your attention to the board, the applicants in this case, John T. and Katherine Mary Sullivan, have submitted a Special Management Area Assessment to be able to construct a single family dwelling on their property. This is a review of the Planning Director’s determination that the SMA Assessment that was submitted for the construction of the single family dwelling and related improvements is incomplete because it lacked a shoreline certification. The location of this property is within Vacationland Subdivision. Earlier today we had traveled to the site. This line running in a maka/makai direction is Kapoho Kai Drive. The line, the road running perpendicular or parallel with the ocean is Wai Opae Road, and the Sullivan’s property is identified with a black outline. Again we had mentioned at the site inspection that this is just a tax map and it identifies private property. There are smaller lots that are on the makai side of Wai Opae Road, as well as a large 50-acre property that is also identified makai of Wai Opae Road. This is an aerial photo that was taken in 2004 of the Kapoho area. This is a little difficult to see, but for reference the actual area is in this particular area of the subject property. We did reference this afternoon the brown circular dwelling and that’s located just mauka of this property. We do have a closer up of the property. You can actually see that brown circular dwelling. So the property that we are looking at is just makai of that property. Wai Opae Road is identified in this particular area here. We actually were parked right about in that area. This is 2 an aerial photo taken in 1976 just after an event that occurred, an earthquake, that apparently there was subsidence in this area which created a drop of approximately 10 inches. It shows, again, you have Kapoho Vacationland identified here. Wai Opae Road with several dwellings located both on the mauka and the makai section. If I was to kind of give you a general area where we’re looking at it would be approximately in this area. This is a subdivision map. All these exhibits are located within your packets. They can be th addressed there. This is, this was taken on May 29 of 1962 and it does identify the shoreline at that time, and as well as the ponds in the area. Again, for reference we have Wai Opae Road and the general location of the application. When a Special Management Area Assessment is submitted near the shoreline or along the shoreline the Planning Department requests that a certified shoreline survey be submitted with that. The Planning Director can waive the submission of that if he feels it‘s not relevant to the situation.In this particular case there have been problems in the Kapoho Vacationland for a period of time where DLNR, the Department of Land and Natural Resources, has not certified, has shoreline surveys that were submitted. And so to be able to resolve this dilemma the Planning Director had allowed topographical maps to be submitted along with the assessments showing, I believe, a tide of 2.8 feet. And in this particular application this was done. This is a topographical map that was submitted on June 12,2006 along with the application. Again, it was done at a later time on August 12, 2006. This may be incorrect, it might have been 2007, but I’ll reference that after we’re done here. This is a plot plan that we showed at the site inspection. Again, it shows Wai Opae Road down at the lower portion of the map. We have the single family dwelling identified here with a bridge coming across to the rear portion of the property and an office that the applicants propose to construct. It does identify the pond in the area. Again, this was, we were able to conduct the site inspection to about this area and be able to witness the ponding on the property. The Planning Director is recommending that the Planning Commission affirm his decision to require a shoreline certificate be submitted along with this assessment application. Before I finish the presentation I wanted to bring to your attention that we have received quite a number th of submittals since our last hearing. We have received a submittal dated May 30 from the applicants which has a number of exhibits attached to it. Additionally, we’ve received a letter th dated May 29 from Thomas Young, and this was passed out to the Commission. The Planning Department has also added an addendum to the background and recommendation which has three colored photos submitted along with those. These photos are shown on the board here. These were taken on December 29, 2007. This shows the applicant’s property. It shows the water in this particular area. Apparently there was a storm event that occurred on this particular day. At the site inspection we did ask where these porta potties were located on the property and we identified that; and the reason for that was to be able to show the location for these photos, again, December 29, 2007 photo, and then also one taken on December 30, 2007. Additionally this morning we have received quite a number of correspondence from the applicant, if I can just briefly address those. These appear to be, majority appear to be support letters. One is from Jewels De Loach and Myk Ahl, I don’t see a date on this one, Robert Emery, again, dated May th 30, Roberta Brashear-Kaulfers, June 4, 2008, David Deweese and Earl Dirgo and that’s dated June 4, 2008. We have a portion of the Shoreline Setback Rules, Rule 11-5 on and it also has a portion of 11-5 on the second page. We have a letter from Eric Schott and we have a letter dated December 19, 2006 from George Young, oh, I’m sorry, this is from the Planning Department to George Young of the Department of Army, US Army Engineer District and, again, dated 3 December 19, 2006. There is a letter from the Department of Land and Natural Resources, Office of Conservation and Coastal Lands, Sam Lemmo, administrator dated April 7, 2006; and there is a letter dated May 29, 1962 from the Planning and Traffic Commission to James Kuwaye. And I believe that was all the submittals that we received this morning from the applicants. That concludes the presentation. Are there any questions? WATANABE: Any questions? Yes, Ms. Siracusa. SIRACUSA: I was wondering, I mean, I was looking at all those other houses that are on the makai side of Wai Opae Road and I was wondering if those had, I mean, obviously they are closer to the ocean. And so I’m wondering if they had to do shoreline certifications also. Would you have that information, Jeff? DARROW: I don’t have that for all the properties. We’ve looked at specific ones and there were some issues with the ones we did look at in the sense of there were some violations that occurred. I’m just guessing that the ones that were approved and that are constructed were constructed at a time that did not require a shoreline certification at that time. They did appear to meet building codes, cause as you noticed they’re built at a higher level. But I didn’t take a look and find out. We can do that. SIRACUAS: I was just wondering if they were approved after the fact, if people had gone ahead and built and then, you know, applied for their permits afterwards. And since they at that point made an irretrievable commitment of resources their buildings were approved, whereas perhaps otherwise they would not have been. I was wondering if you had any information about that or perhaps the Director wants to answer that one? Chris, do you know? YUEN: Well, no, I can’t speak to all the houses. I believe that there’s only one house built makai of Wai Opae Road since I became the Director and that was with a shoreline certification. That’s relatively a house that was built in the last couple of years. DLNR did certify the shoreline on that house. WATANABE: Follow-up to that, that would be that Lot 21, I believe it was, that you’re referring to? DARROW: Correct. SIRACUSA: That big blue building? DARROW: Yes, the 3-story structure just to the -. WATANABE: Yeah, right, diagonally. DARROW: Correct. WATANABE: May I jump in here a second, a follow-up question on this. You indicated, Mr. Yuen, that that property would have a certified shoreline at I assume 2.8 feet? 4 DARROW: Well, I don’t know because that wasn’t, we used the 2.8 for the private surveys that we would accept as an indication of the shoreline and I don’t know what the tide was when they did that certified shoreline survey. When they do a certified shoreline survey that’s their, they’re handling that. So I don’t know. But I do know, all I know is they did have a certified shoreline survey. We looked at the site plan and they had a buildable site that met the setbacks when the house came in for approval. WATANABE: Okay. Mr. Domingo. DOMINGO: Thank you, Mr. Chairman. What would a shoreline setback tell you or enable one to do? Once that shoreline, not the setback but that shoreline, is determined, what will it then, how will it then impact on an application like this? DARROW: If I can use an example, if somebody had applied, let’s use one of the makai lots as an example. If somebody wanted to build on the makai portion of Wai Opae we would ask them to submit a shoreline certification because we’re aware of the fact that this area does have, the shoreline does come inland. And so they would hire a surveyor, they would get a shoreline certification to identify where that is. If in the case of the makai side there’s a chance that the actual shoreline certification would be mauka of the lot, it would prevent those people from being able to -. DOMINGO: Build? DARROW: Build, yeah, correct. YUEN: Mr. Chairman? WATANABE: Yes. YUEN: If I could just follow-up on that question. Except for certain kinds of things, the shoreline certification establishes where the setback line is that you’re allowed to build. So, for example, the typical shoreline setback is 40 feet established from the certified shoreline. And then there are provisions where if that reduces the buildable area on your lot along with the other setbacks to less than 50 percent of the lot size it becomes a 20-foot shoreline setback. Now if the person wants to build makai of the shoreline setback then they would come to the Planning Commission for a shoreline setback variance. So that’s the basic purpose of having a shoreline certification, is to determine how close to the shoreline you can build. DOMINGO: Because the State has indicated that, I guess, they’ll not do it at the present time and that this will be reverted to the County Planning Department to determine whether the application is acceptable or not, is that right? YUEN: No. At one time they were not doing shoreline certifications in this area, at least mauka of Wai Opae Road. So then as a result of that applicants would come in and they would be put in a bind because they could not submit a certified shoreline to us. So rather than say, well, you can’t build because you can’t get a certified shoreline we would accept a survey that they would have done privately at a 2.8 high tide which showed the extent of where the ocean reached at a 2.8 high tide. And if it connected with ponds on the property, if the ocean 5 connected with ponds on the property then we would consider the ponds to be part, to be the arm of the sea and the shoreline would be the edge of the pond. So we did probably, I don’t know the exact number, 1, or 2 or 3 situations like that where we ended up approving houses based on this private, this substitute for a shoreline certification. When we found out that in November 2006 while this application was pending with us that the State would do a shoreline certification of the property we did not want to continue doing this practice because it’s a variation from what the rules call for. If the State will do a certified shoreline, if the State would do the certification then we’re not going to accept a private survey, we’ll tell them go get the certification; and that’s what happened here. DOMINGO: Okay, so right now as it stands the applicant would need to have a private certification? No need? YUEN: No, what we’re saying, is -. We said, when we found this out, to go through the normal process of getting a certified shoreline survey. The certification is actually still done by the private surveyor but the State Surveyor oversees it and checks it. And when we were doing it before, one of the Planning Department staff would go out with the private surveyor to take a look and see what they were doing; but the State process, actually, we’re not directly involved in at all. It’s still, the survey is still done by a private surveyor but the State’s surveyor goes out and double checks the lines that are set. DOMINGO: Is it the Planning Department’s, well, have they accepted the survey done by the applicant with regards to the pools that they have in their property, and indicating by that survey that it’s not tied in to the ocean? YUEN: Well, I’m sorry, your question was have we accepted that? DOMINGO: Yeah, I think they stated that. And the question is, I think, I was reading something in here that it is normal or it is understandable that the ponds that exist above of the road is in effect connected with the ocean level. But their survey indicates that it is not tied in with the ocean. YUEN: Well, if your question is do I think that that’s an honest survey done at the time by the surveyor, yes. I would say, I’m not challenging that the surveyor accurately recorded what he saw at a 2.8 high tide. We have a letter from the DLNR saying that when they do a certified shoreline survey in this area they’d like to do it at slightly higher tide than that. So they wouldn’t necessarily accept that map. But, again, you know, as I said if your question is simply is this an honest depiction of what the surveyor found at that particular time, I have no reason to challenge that. DOMINGO: Okay, you know, the day those pictures were taken that showed, attached to the -. WOOODWARD: It’s December 2007. DOMINGO: Yeah. Are there any other pictures taken with regards to the adjoining lots and where the homes are built to show at what level -? 6 WATANABE: You would be referring to lots makai of the road? DOM8GO: No above the road because the picture that’s shown is the water had gone across Wai Opae Road into their property. And I was wondering if there were any other pictures taken of the water going into the newly built lots and how, you know, how it looked. YUEN: That I don’t know. Typically we would have pictures taken at some time of houses that have recently been built in Vacationaland, and so I can’t say we don’t have any photographs in the files. But I just don’t know. WATANABE: Okay, Mr. Woodward. WOODWARD: Thank you, Mr. Chairman. I have a couple of points to make. I think those pictures where the dog is swimming toward the porta potty, really cute. But that was in the storm condition. That’s like having a hurricane come in. That’s as far as I’m concerned immaterial. If we’re going to set a limit of high tide at 2.8 or 3.25 set it where you’re going to set it; but you can’t look at it in the face of a hurricane. Look at New Orleans and Katrina. You know, I mean, it’s the same kind of scenario. You have to set the limit somewhere. And those pictures were taken as Jeff was saying under storm conditions. That’s immaterial, absolutely immaterial, to what we’re talking about if you’re going to set it at 2.8 foot high tide or 3.25. And we saw when we were out there on out site survey today marks, there were 14 of them all along, where the high tide had been at 3.2 feet. And I don’t know who did it, I don’t know who did the survey, but I think Jeff measured and they were between 28 and 40 feet from the edge of the property if I’m not incorrect. So I think these pictures that we’re being presented with should have no bearing on our decision because, again, that was a storm condition and that’s not material to the application. WATANABE: Yes, Mr. Director. BOWMAN: I -. YUEN: Go ahead. WATANABE: Okay. BOWMAN: It’s just difficult for you to see us down here and the conversation, I’m sorry -. WATANABE: Sure, Ms. Bowman. BOWMAN: I have a question. And I totally agree with what Mr. Woodward said if they saw my house when it floods, I think it’s irrelevant. But my question is the Attachment 9 and, 9, the surveys, they were done were in August and July of 2006, is that correct? SULLIVAN: It was August -. WATANABE: Wait, wait, Ma’am. 7 BOWMAN: Sorry. Okay, it doesn’t matter. I’m just looking at the one that says August 2006. WATANABE: Yeah, I believe her application started in 2007 so 2006 would be wrong; and I think Jeff indicated that when he was showing some of the pictures. BOWMAN: Okay, I thought there was one in June of 2006 and another one in August 2007. I need to be clear on that. DARROW: Okay, if I could clarify this. They’re both done in 2006. That’s where I got those figures. It was on, if, they’re exhibits within -. BOWMAN: Attachment 9? DARROW: Right. And they’ll say the dates on there, 2006. The August 2006 I’ve been informed by the applicant was submitted along with the application. The applicant had subsequently had done another one in August of 2007. That’s where I was having the thinking that that might be incorrect. BOWMAN: Okay. So my question is this was done when DLNR was not certifying these, right? I think that you said that the State in November 2006, the DLNR said they would be doing shoreline certifications. But because they did this in August of 2006 why wasn’t it accepted? YUEN: We, the rule says that when the SMAA comes into the Department there are several options; and one of them is at the end of the 35-day period to return the application as incomplete because it does not have information that you need. And that was the option that we decided to take because we found out the State was certifying shorelines, so we would be able to find out where this property was in relation to a properly certified shoreline. BOWMAN: Okay so this, I’m sorry. So this application even though the survey was done in August the application wasn’t sent in till like November, December after? YUEN: The exact date is somewhere in the records. I believe it was in September. th The 35 days would have run out some time before November 15. The applicant did extend the th time to November 15 to act on the application at our request. BOWMAN: So basically it wasn’t approved because it wasn’t certified by DLNR? YUEN: They didn’t have a certified survey, that’s it, that’s right. BOWMAN: But they had a shoreline survey and other people prior to this that had that -- I’m just trying to be clear so I understand – probably had their applications approved because DLNR wasn’t certifying? YUEN: We had done applications before using a private surveyor’s determination of the shoreline at a high tide event, which was not a properly certified shoreline by the State. 8 BOWMAN: Okay, thank you. WATANABE: Okay, can I cut in here for a second. You know, we’re going back and forth about whether the State was certifying it at any given time, when the application came in, etc. And to some degree maybe we’re not being fair to the applicant because the applicant really is not allowed to join in to this conversation because they haven’t been sworn in yet. Nevertheless, yeah, I think we should also point out that we did take the time to do a site visit today, yeah, irrespective of whether we’re contesting whether it was a 2.8 or a 3.2. We do know that the shoreline was established at those 14 or so points with the white blocks and the surveyors were present today and we did establish that it was significantly further than 40 feet from the building site. So maybe, maybe, all of this is moot. So, you know, rather than look at, okay, who’s wrong or what came first, whatever, why don’t we consider all of these things first and try and contain some of these questions maybe that would not prejudice, let’s say, the applicants while they can’t respond. Yeah, and we can save those other questions for later when the applicant is sworn in. BOWMAN: I apologize but I do think it’s important that I got the information from the Director and I definitely want to hear the applicant; but I do think it’s important that we get the information. WATANABE: Okay. Yes, Mr. Director. YUEN: There’s something I wanted to say with respect to Commissioner Woodward’s comments. We can all have our opinions about how we think the shoreline should be certified. But as far as the State’s shoreline certification rules they will include high surf events as establishing the shoreline. They will not include where the water goes in a hurricane or other similar local heavy storm, which was not the case of the photographs that we took in th December 29, not that we took but the photographs we showed you of December 29, 2007. So as I said they will include, there are times in a year when you have, where water rushes in farther inland because of high surf events, because of strong trade winds and the like. They will include that kind of event in determining where the shoreline should be located, and that is pursuant to their rules. WATANABE: Yeah, okay. Ms. Siracusa. SIRACUSA: I have two questions, well, they’re sort of a pair because they both refer to how the shoreline is established. And one is at what point, and maybe it’s not any more, but the vegetation line was one of the parameters or criteria that was used. So I’d like to know if that is still germane. And the other question is if there are anchialine ponds on the property how does that affect, that presence of anchialine pond affect shoreline determination according to the rules? YUEN: I don’t know whether the DLNR, the DLNR does have rules on shoreline certifications. I don’t know what they say about anchialine ponds. If an anchialine pond is not connected on the surface with the sea, clearly, even though it’s connected subsurface and rises and falls with the tides, it’s not part of the ocean and has nothing to do with the shoreline certification. When we were doing the determination of the shoreline without a shoreline certification if the pond was connected with the sea at high tide then we considered that pond to 9 become an arm of the sea and then the edge of the pond becomes part of the shoreline. And I know that, either this is in the DLNR letter from November 2007 that we have or I was told this, that the DLNR agrees with that interpretation. I can’t tell you whether or not their rules specifically speak to that. But I know it’s either in that letter or something that I’ve been told that they would agree that if a pond, you know, and a place like Kapoho Vacationland, many other places on the island or even an ordinary tide pool, not necessarily an anchialine pond, there are areas of bodies of water that may be separated from the ocean at low tide, that then join up with the ocean at high tide. And, as I said, we would look at then the edge of the pond at the high tide as being the edge of the shoreline. WATANABE: Clearly though I think the significance here is that at that specific high tide, whichever high tide mark which shows 2.8 or3.2, it would be a surface connection and not subsurface, subterranean connection, right? YUEN: Yes, that’s right, that’s right, clearly. WATANABE: Okay. YUEN: And the other question I think -. WATANABE: Is that clear, because, you know, a number of the hotels have anchialine ponds, and I don’t believe that’s considered part of the shoreline. YUEN: Correct. The other question was vegetation. Vegetation is one of the indications of the shoreline. It still is, it’s not the only indication. WATANABE: Okay. Ms. Bowman. BOWMAN: Just a quick question. The photograph of the flooding, that was sea water? It wasn’t runoff from a storm? I misunderstood, because I thought it was raining and, you know, you can have runoff from -? But that was actual sea water? YUEN: That was sea water. It’s ocean water that gets strong trades and higher than normal surf pushed across Wai Opae Road, which it normally does not do. BOWMAN: Okay, thank you. WATANABE: Okay. Are we done with the questions for staff then? It looks like it. So maybe now we can call up the applicants. And I do have one testifier here but we’ll just call up the applicants for right now. Thank you for your restraint. I know you wanted to join in the conversation but, you know, we do have our procedures so -. SULLIVAN: I understand. I apologize. WATANABE: No problem, no problem. Okay, would you both raise your right hands so I can swear you in please. Do you swear or affirm to tell the truth now before the Planning Commission? 10 YEH: I do. SUILLIVAN: I do. WATANABE: And I don’t know which one of you would like to start, Mr. Yeh, but, obviously, before you start your testimony, please full name and address for the record. YEH: Yeah, I’ll go ahead and start first. My name is Thomas Yeh, attorney representing the applicant, Katherine Sullivan, who is present here today. My business address is 85 West Lanikaula Street, Hilo, Hawaii. And, first of all, I wanted to thank you all for taking another day out of your busy schedule to show up, because it’s not easy attending one day, full day, let alone two. So thank you for that. It is kind of hard sitting there listening cause it’s not like a point, counter point situation. But I did try to take some notes. And, first of all, just for the record today, those points that were measured I think it was 29 feet and 43 feet from the front property line that we looked at. Second of all, with respect to the first question, were improvements approved prior to November of 2006 by the Planning Department in absence of the certified shoreline in the Kapoho area, the answer clearly yes. And what we did is we submitted first of all with our May 2008 submittal several letters. There’s one Attachment B which is dated March 8, 2005. Now this is in the Kapoho Beach Lots area which is just north of the Vacationland area. And similar issue there, this happened to be my client at the time, John and Sandy Barsell, and basically they were asking for a request for approval of a dwelling on property which abutted the shoreline. And if you take a look at the second page of this exhibit, it’s interesting because we’ve been talking about a 2.8 foot tide and in this letter Planning Department agreed to accept the topo survey that showed elevations referencing the appropriate low tide datum. It had nothing to do with a high tide. WATANABE: I’m sorry, Mr. Yeh. I saw a 4-d. YEH: Well, this would be our Attachment B in our May 5, 2008 submittal. And if you take a look at, it’s a March 8, 2005 letter from the Planning Department agreeing, and this is page 2 at the top of the page, agreeing to accept the topo, well, “by our letter dated August 30, 2004, agreed to accept a topographical survey map that shows elevations referenced to the appropriate low tide datum of the subject area in lieu of a Certified Shoreline Survey.” So it’s pretty clear that that was done in that particular case. We represented another client who had been cited for certain violations for renovations of an existing dwelling that happened to be next to the Mayor’s house in Vacationland on the makai side of Wai Opae Road. And in that one there, that’s our Exhibit D to the same transmittal, second page, the 20-foot shoreline setback and the 20-foot shoreline, which we’ll get into a little bit later, applies when you have a lot that was created prior to the shoreline setback law. And as we know, and part of the submittals that we provided you today, was that the Kapoho Vacationland Subdivision was created in 1962, well prior to the shoreline setback law. The rule that we provided to you, which is the Planning Department rule, says that when you have less than 50 percent buildable area remaining after application of shoreline setbacks, building setbacks, then you’re dealing with a 20-foot setback. So we look at page 2 of this letter to me, June 29, 2006, now this is when the Sullivans submitted or had their first survey done, page 2 says “The 20-foot shoreline setback will be measured from the innermost inland projection of the 11 shoreline wall of the pond, parallel with the southwest facing wall of the existing dwelling”, again, in lieu of a shoreline certification. Now let’s go to Wai Opae Road which you walked on today. April of 2006 there wasn’t even a high tide survey that was done. Planning Department allows addition of a 6-inch addition to the existing grade of the road, speed bump additions, taking out of lava projections from the road to make it more level. The Sullivans on the other hand not proposing to change the grade of their lot which is mauka of Wai Opae Road meet with the Planning Department in June of ’06 and were informed by them that we will accept a high tide survey with a 2.8 tide. So in reliance on this representation the Sullivans go in they don’t get a shoreline survey because they can’t do it; and number 2, Planning Department says it’s okay. So consistent with these policies that were applied prior to November of ’06, they did what they were supposed to do. So now let’s move on because Mr. Yuen indicated that well, there was this 35-day period application period within which we could reject an application because it was incomplete. Well, we know that in September of 2006 when the application is submitted it is complete. That is the policy of the Planning Department. There is nothing during that time that says it was incomplete. The Sullivans were then asked, oh, gee, would you extend this deadline because we’re a little bit concerned about where the shoreline is? Now as of that time in October ’06 nothing had changed. We also know that in fact the rejection of the application did not occur on November 15, 2006 when they had extended their deadline to, but it was actually on November 21, 2006. So what are we talking about in terms of rejecting the application as being incomplete during the period for acceptance? This is the problem that we have here, is we had from the perspective of the Sullivans side an evolving changing application of policies that were not rules. We had a backdating of a letter to justify a rejection of an application that was in fact deemed complete when it was submitted for at least, what is it, 60 days, not 35 days but 60 days; and they couldn’t even do that. And then when you look at what did the Planning Department rely on in saying that this application was incomplete, they’re saying, well, we got word through email from the Department of Land and Natural Resources that they were going to start beginning to certify. Is that a rule or is it ad-hoc change in policy? And so our point is that you can’t rely on an email. If we look at the actual internal emails that we submitted, the problem is there too because Esther Imamura who actually drafted this letter didn’t really draft it until th November 17 after hearing from Larry Brown, not from DLNR but from Larry Brown through this heresy statement, that DLNR was going to start now certifying. The problem the Sullivans were then faced with in this situation is that, and I’ll show you this problem because even as of November of 2006 when they had done this 2.8 foot survey, well, now they’re being asked to go in to DLNR and get a certification for 3.2, our Exhibit J to our May submittal. Not until October 4, 2007 does DLNR say we’re now switching from a 2.8 to a 3.2. And so, again, even this begs a question as to whether or not DLNR’s changes in positions are valid rules by which a shoreline survey must be certified and what the surveyor, for that matter, needs to follow. So essentially the Sullivans have been caught in this regulatory trap. They just want to build a house. There are houses that are mauka and makai of the shoreline there. I agree these photos that were submitted to you of the December 2007 flooding, they were done for the purpose of being sensational. But if you look at what you saw today, the distance from that shoreline that these marks bore, from the property line that is, you take a look at the site itself, they are in fact left with less than 50 percent building area. So it’s not a 40-foot shoreline setback but it’s a 20- 12 foot shoreline setback. Their property line is way away from where those marks are. And so just from a basic fairness standpoint this is an issue. Now what the Planning Department is going to tell you is that, well, you know these applications, these properties that were approved back then before we had this issue as to whether or not DLNR was going to certify shorelines or not, they were done under those previous rules. We submitted to you copies of the Mayor’s house because if you look at the high tide, water goes under that house. And our point is this, when you at a certain point in time have submitted an application under the then existing rules, you’re entitled to get your permit. At the time that the Sullivans submitted their application they were in compliance. They shouldn’t be judged by what’s going on now, even though I agree it’s very clear that they were outside of the shoreline. But this is the whole point, you cannot retroactively apply and change the rules midstream while you’re going through this application process. In terms of the vegetation line issue in answer to Commissioner Siracusa’s question it’s pretty clear that when you look even at the DLNR policy that DLNR policy doesn’t talk about vegetation line. It talks about high tide line and nothing else. Because what they are recognizing is that Kapoho and Vacationland are somewhat unique. There is a barrier reef out there and it’s not a typical surf/storm scenario. The other thing, oh, this is the other thing, what does the Planning Department do in April of 2006 when it agrees that Vacationland people can do their improvements? They not only don’t require a survey of any kind but they tell the Volcano Vacationland Association for purposes of your application we’re going to treat the shoreline as the makai edge of the Wai Opae Road right-of-way. Now one of the things I wanted to correct is Wai Opae Road is 40 feet in width. So on the one hand they’re telling Vacationland that’s where the shoreline is and in the same breath they’re telling the Sullivans who are just mauka of that property, no, you have to go get a certified shoreline survey. So this is the basic problem, is fairness of treatment and understanding what the Sullivans had to do. We shouldn’t even be here today, sitting here today. Because if the Planning Department had been following its own policy at the time that they applied, they should have been granted this application. And even if, even if the Planning Department messed up and missed the deadline it failed to follow your rules which said if you missed the certified day deadline you’ve got to send it up to the Planning Commission. And had they done that in November of ’06, we’d be sitting here in December talking about a 2.8 and not a subsequently changed 3.2 survey. So you can understand that in this entire process the Sullivans have basically been met for reasons I’m still not clear on with oppositions from the Planning Department that makes no sense in relation to what it was doing with other parties and entities during that time period. And I still haven’t figured that out but that’s what they’ve been faced with. You know, they say we’re a government of laws and not of men, but in this case here those laws kept changing and those rules kept changing based on differing interpretations. Let’s do something that’s really fair that’s appropriate and measure this application as of the time it was submitted and allow the Sullivans to move into their retirement home basically. That’s all I have at this point and if you have any questions feel free. WATANABE: Well, Fellow Commissioners, do we have any? Yes, Ms. Siracusa. 13 SIRACUSA: When were down there and we walked onto the property and after we looked at where the pond was we walked up on the other serpentine part of the trail to the higher ground and Mary you said this is where we’re going to build the house, this is the high ground. Well, it looked to me that it was smaller than my kitchen, and it seemed to drop off on all sides. And I was wondering are you going to have a really tiny footprint and cantilever out on the second level, or how on earth are you going to manage to put a house on that one high point of land? So that’s my first question. And then my second question has to do with the bridge. And then my third question has to do with wastewater. But I’d like to just give it one at a time if I may. YEH: All right. And I think this would be a good time for you to introduce yourself and state your address. SULLIVAN: Oh. Hi, it’s Mary Katherine Sullivan, Kathy Sullivan; and I live at 13401 Prospect Avenue in Santa Ana, California.Anything else that I need to add to that? YEH: No. SULLIVAN: Okay. The 7.8, the 77.8 section is very small, as you saw when you were walking up there. What we had planned on doing is not disturbing the land at all but putting pillars up at different areas. Okay, so when I said, yes, that’s where we’re going to be, that’s going to be the main section but we probably will have pillars that will go down to the 6-foot level, just not even, even include those -. I love the latter, I wanted to keep it under my house. And so I’d like just to have the pillars going down cause we have to go up 15 feet above sea level, the pillars going down at whatever level that they’re going to meet so we don’t have to change anything of the underneath of that property. SIRACUSA: So in a sense I was right when I said you were going to cantilever out? SULLIVAN: Not necessarily cantilever, they’re going to be straight up and down. We’re not going to go out that way. There is room for a small house there. SIRACUSA: Oh, okay. All right. SULLIVAN: Okay, I think it’s like 35 feet across from the, like the 6-foot level to the 7- foot level back to the 6-foot level. SIRACUSA: Okay. It was hard to tell because of, you know, all the hau. SULLIVAN: Yeah. SIRACUSA: The second part of the question had to do with, you said you were going to run a bridge from the house where you were going to have a home office. And I was wondering whether you were planning on putting pilings in the pond. SULLIVAN: No. Now the Army Corp. Engineers told me they would allow one piling in the pond but the Planning Department told me they wouldn’t. Okay, there is a bridge of high 14 land that goes towards the back at which I never cleaned that section out, okay. So that bridge works as a dam between the one pond and the second pond. Okay. But in the center of that there’s a little section where the water flows back and forth. So we can actually, there’s actually places to put the pilings right along the bridge. In 2006, 2008, you know, I’m not near as grandiose now as I was then. I want just a little retirement home; and if that bridge doesn’t work, it’s gone, you know. I just wanted a separate office. I’m a photographer, and I just wanted a place to put in an office and a photographer’s studio. SIRACUSA: I can understand that. I was just trying to visualize how you were going to do this because I was also concerned, you know, pilings in the pond and you’re impacting the biowater and that sort of thing. My third question though has to do with whether, you know, how you’re going to put in either a cesspool or a septic because when I, I was there earlier before some of the other people arrived and I walked out to the tide pools as you recall while I was waiting and I noticed that in some of the pools there was a lot of foamy stuff that looked like it maybe there was effluent escaping from some of the cesspools and things in the area. So I was wondering, I don’t want to say it on the record. But I was wondering how with the anchialine ponds right there on your property and where the water table is sometimes above your property level, how on earth are you going to deal with cesspool or septic effluent without contaminating the ocean that’s right there through the rise and fall, tidal rise and fall of your ponds and the water table? SULLIVAN: It’s a really important, important problem out at Kapoho. The Planning Department and Department of Health are requiring that we use an aerobic system. Now if you think when you go to the big cities and you think of those things going around mushing up all the – you got the idea? Okay, we have to put same thing in a smaller, in a smaller form, is the way I understand it. Okay, and then the water that comes out of that is supposed to be 90 percent clear water; I think it’s 90, and please don’t hold me to that because it has been a while since I’ve. looked at all the information on the aerobic systems. But it is totally different. It’s a very, very expensive system. It’s just not a septic system in a leach line. And, yes, there are leach lines but this aerobic system is continuously turning the solids, and it’s supposed to bring out just really clear -. It has to be checked every six months by engineers, by the health engineers. You know, I don’t think it’s Department of Health. I think it’s somebody that contracts. It has to be checked that everything’s maintained, the bacteria count is high, the way it supposed to be. And it would be lovely if everybody on the lagoon and on the makai side of the road have the same thing. WOODWARD: Mr. Chairman? WATANABE: Yes. WOODWARD: If I might just try and add a little something to your response. These aerobic systems have been approved by the Department of Health for use within a radius of 1,000 feet of the water wells in the State. So, they are evidently a very good system. And I think that would certainly be adequate. People that are building homes within a 1,000 foot radius of a water well have to put in that same sort of system to avoid ground water contamination; and evidently they work very well. 15 WATANABE: Okay, Mr. Domingo? DOMINGO: Mr. Chairman, then our responsibility and our task on this particular application is to determine whether the application submitted at that time is appropriate or not, well, incomplete or a complete one. That’s action we should be taking now, is that right? WATANABE: Pretty much. It’s really, you know, in the end because of the way the rules are stated, the way I understand it, the decision is really up to us now. It’s really in the, and we are the final body that approves or disapproves an SMA Permit. Yeah, so, from a technical standpoint, I think we could decide for whatever reasons, either which way. However, just to be fair, I notice that Mr. Yuen has been taking some notes. So maybe I should provide you with some time? You want to rebut on some of these? YUEN: Well, I’d like to wait till – there are quite a few things I’d like to rebut, but let me just confine myself to the last question. WATANABE: The septic? YUEN: No. The question about what is the Commission doing -. WATANABE: Oh. YUEN: What is the appropriate action for the Commission to take at the end of this. And so let me try to give the possibilities for the Commission. Our recommendation is that the Commission affirm that they need to do a certified shoreline, and then they can resubmit. And then there’s a number of possibilities which would include that. For example, if they presented a house site that was outside of the shoreline setback area, the Department could approve the application with, as either an exempt action or as an SMA Minor Permit if it’s less than a $120,000 in value. The Director, if they build outside, sorry, if they can build without violating their shoreline setbacks, the Director cannot actually deny a house. The only thing the Director can do at that point, if the Director feels that the project has a substantial adverse environmental affect, the Director can say that it should get a Major Permit and send it on to the, send it on to the Planning Commission. So, basically, at this level, our recommendation is that you simply return it to the Department, require them to get a certified shoreline survey. And those are the things that would happen after that. On their side, I believe what they’re asking, the possibilities are to – the project could be exempted because a single family home, single family dwelling, can be exempted. Normally, if the Department exempts a single family dwelling from getting a SMA Major, from being considered development and getting an SMA Major Permit, there are conditions that are placed on the exemption. 16 Second, the Commission could say that it’s not exempt, but needs an SMA Minor Permit. The Minor Permit, though, the Commission would have to find that the value of the development is less than a $125,000. The third possibility is that the Commission could issue a Major Permit for the development of the home with conditions. WATANABE: Okay. Now to clarify though, because you can hardly build anything for a $125,000 these days, a residence, single family residence, is exempt from an SMA Major. Is that not right? YUEN: It can be exempted, unless it’s found that it had a significant adverse environmental and ecological affect. And that is fairly common that we, you know, it’s very common to see homes, individual homes built in the SMA. So this is something that is, that we get these SMA assessments quite often in the Planning Department office, and we normally exempt the single family home. Normally, they do value it at more than $125,000. But normally we make a finding that it would not have a significant adverse environmental and ecological affect, and if they follow certain precautions and conditions -. And so that’s the normal course that these things take once, in a case of a home on the shoreline once the certified shoreline has been submitted, and it’s been, it’s shown that the home is outside of the shoreline setback line. BOWMAN: Question. WATANABE: Ms. Bowman. BOWMAN: I’m not a surveyor, but again, and just for clarification, I’m looking at the th survey that was done on August 12. It’s Attachment 9 in the Background and Recommendation. Could you, could someone tell me where the, well, the one that they certified, are they showing a shoreline here? Pardon my ignorance, but –. WATANABE: I don’t think so. I think they’re showing a topo map. BOWMAN: Okay. This is just a topo map? WATANABE: Yeah, and by that, you know, since we’ve been on the property – look, the 3.4 feet and 3.8 feet? BOWMAN: Right. WATANABE: Those would be like elevations of Wai Opae Road. BOWMAN: Okay. WATANABE: Then if you look further back on their actual property, you’ll looking at five feet, yeah, I believe it’s five feet, three feet, and of course by the ponding areas, 2.3 feet. And you got 7.8 feet. BOWMAN: Okay. So this is just a topo map? 17 WATANABE: Yeah, that’s all it is. It’s a topo map. BOWMAN: Okay. So, DLNR would have nothing to certify because they have to go do the actual –? WATANABE: Well, that’s kind of like what we saw today at the 3.2 tide. And that, roughly speaking, one of the marks as you recall was under the right driver side of the red, I forget what kind of car. BOWMAN: Yes. WATANABE: And it’s someplace around that 3.3 feet topo, so someplace in approximately that area. So it’s within six inches of height, between three feet and 3.6 inches, that’s where that high tide mark that we saw was. SULLIVAN: May I clarify something on this? WATANABE: Yes. SULLIVAN: Okay. The topo map was done August of 2007. After Mr. Yuen suggested we get a shoreline survey, I contacted the – I’m going to go into this when I talk. But thth I do not know why it’s dated the 6, but it was done the 7 as the prelim for the shoreline survey. And if Dan Berg did mark it 2006, then he messed up. WATANABE: What was in there, yeah, okay, okay. But it does, okay, fine. We’ll just keep that in the record. Okay. Yes, Ms. Siracusa. SIRACUSA Basically, this whole thing is revolving around the need or not the need for a shoreline survey, if I understand correctly. So, I’m wondering, bottom line, how much does a shoreline certification cost? How much are we talking about here? SULLIVAN: A thousand dollars. SIRACUSA: And if we have that information, and if it differs slightly from what we’re assuming now is your shoreline, then that would, would that make any substantive changes in the way that the Sullivans have to proceed in their building plans? Because what I’m thinking is if it, if you’re going to do the thing with the pilings and everything and you’re setting it backed up that much farther anyway and all of that, would that change at all, or are we just talking about adding costing going through the –? I can understand the points that Mr. Yeh is making –and the point that, which a lot of that legalees stuff to me is smoke and mirrors to divert us from the main course of, you know, like how do we keep the shoreline protected. On the other end, a lot of the Director’s legal comments are very similar on the other side. So my primary concern is the protection of the area. And so I’m wondering would there basically, if there was just a slight difference that doing a shoreline certification showed, and I would like to hear from both Mr. Yuen and Mr. Yeh here, would that really substantially alter the development plans? 18 YEH: Well, let me answer that first because I did also want to comment briefly on the issue of what the Planning Commission should be doing or has the ability to do. Basically, the Planning Commission rule says that when that 35-day period is missed, the application shall be forwarded to the Planning Commission for its consideration, meaning that the Planning Commission can issue the permit today. Okay? And that’s what we’re asking this body to do, to do what should have been done, basically, a year and a half ago. You can require conditions to avoid issues with respect to environmental issues that you may be concerned about, such as making sure that the septic system meets Department of Health’s standards, those kinds of things which I think are generally standard conditions anyway. See, our concern is this: We are here before you today. You have the authority to issue this permit that should have been done a year and a half ago. The Sullivans want to get this thing done. For them to now go back, hire the survey, get it certified, submit, leave this back in the hands of the Planning Commission, he may determine it’s a Major, they have to come back before you, we could be here three or four months later. There could be other people coming in intervening. I mean, I don’t know, and I don’t have a crystal ball. I’d like to think that it would be a simple process. But given what the Sullivans have been through so far, we want this to finish up today. They spent, and it’s not smoke and mirrors. Because I think if you consult with Mr. Torigoe and ask him what were the legal standards that should have been applied back at this time, whether due process considerations that the Sullivans had been essentially deprived of from either a substantive or procedural due process standpoint -. I have to beg to differ, there is not a smoke and mirrors thing. It has something to do with basic procedural rights that the Sullivans were entitled to be able to rely on, in which they did rely on a year and a half ago. And so we’re here having to argue this stuff, but the fact remains is they should have been determined to be complete and given their permit. Because there really was no reason not to, aside from setting conditions to assure that these environmental issues don’t get adversely affected. That’s why we’re here today, not to go back again and go through the same process and maybe end up here before you again. And meanwhile, where are the Sullivans at in terms of what they wanted to do a year and a half ago? That’s a basic practical, as well as a legal, problem. So, and I don’t know whether you wanted to say something. SULLIVAN: I do. Do you have time? WATANABE: Sure. SULLIVAN: I’d like to say something. I’d like to, like you said, humanize it a little bit, give you kind of an idea of what we went through. Okay? We bought the property in 2004. And when we purchased the property, we knew, because we did our due diligence, that DLNR was not doing shoreline surveys nor were the Planning Department doing any sort of shoreline surveys. They had a topo map, same map you’ve been looking at with a black line drawn in ink, and anything inside of that could not be built on. There was, since 1998 no building permits were given inside that line, until they decided to do this high tide survey that they allowed. When we found out that they allowed the high tide survey, we had it done. Mr. Larry Brown and the Independent Hawaii surveyors came out to do it. Mr. Brown, as Kathy Duman was going to tell you, said “Oh, good, there’s no water anywhere. There’s no water accessing your property. We don’t have to worry about it.” Do you not think as a group of intelligent people, that if you were doing a survey and there was water anywhere near that property, that Larry Brown would 19 have gone out and told the surveyors to mark where that water was? So we’re out there at actually 2.91, not a 2.8 survey, and there’s no marks anywhere on that property of any water intruding on to Wai Opae Road. thth So, September 6, we submitted our SMA. And October 19, we called and made an appointment to visit, to talk to Larry Brown. We came into the office, and he said we came on th the 20, he said, we’ll give you your SMA if you’ll accept a 20-foot shoreline setback, now, from the road, so 20 foot -. And I’m sure you’re well aware that a shoreline setback is way different than just a setback, normal setback. You couldn’t, we couldn’t put our septic systems in it, no lanais can go over it, nothing. So, you still have a small area. The 20 feet left us with like a 350, 400 footprint to build on, and that’s all that would be left. And we, my husband, in fact, hit the ceiling. They had done the survey. Why were they telling us we needed to have the 20-foot shoreline? The answer was there is a channel somewhere on the road near your property. Why wasn’t the channel noticed when they were out there to do the survey? We said, no. Well, we didn’t even say no. We just said, it’s just not acceptable. It’s not acceptable to us. So, they said, okay we’ll th fix this by having an extension. So, we go home. I fly out again. November 9 we go out with Esther this time. Larry didn’t show up. It had been pouring rain all night long, absolutely pouring. We get out there. There’s a puddle on the road. Esther was just walking around it and walking around it, and walking around it. She can’t find where the ocean is coming into that puddle. I finally reached down tasted the water. Esther, this is rain water. This is not salt water. So, then we walked makai of the road, which is interesting, well, it’s an aside. Okay, interestingly, that’s 34 feet. We just measure the road. It’s 40, so I don’t know how it was only 34 feet when Esther was measuring it. So, we’re going across, out into that lava beyond, and we find the ocean water. She measures it as 34 feet. She’s holding the tape on it, and she comes back, and she says, well, if it’s okay with Chris, I think this is a go, I think we’re going to be able thth to give this SMA. So, then the 15 comes. November 15 is our extension. It comes and then it goes. I’m calling Esther, Esther, what’s going on? It’s on Chris Yuen’s desk waiting for it to be signed. Next day, it’s on Chris’s, he hasn’t signed it yet. And I finally said, Esther, is there a problem? She said, yeah, there’s a problem. And that’s when, it’s in one of the letters that’s in that group of your testimonies. I sat down, went through all of Hawaii County rules and regulations and found out that if it wasn’t done in the 35 days, that it was deemed approved. Okay, I sent a letter to Mr. Yuen before I’ve ever gotten an answer on the SMA, okay, telling him it was deemed approved, that we were going to go for a building permit. He sent back and said because it wasn’t, because the SMA is under a federal law, it has different, so it’s not deemed approved. Why, then, was Esther adamant about getting ours signed for our – we had to put an extension in. Like I said, we had to have it signed. I didn’t put it in right away. She called three times for the signature. Why was it so important? WATANABE: Okay –. SULLIVAN: I’ve got a lot more to add to this, if you don’t mind. WATANABE: Yeah, can I jump in a minute, please? SULLIVAN: Sure. 20 WATANABE: We could get into a lot of he said, she said, this happened, whatever. What I’m, to be honest with you, so that we can hopefully finish today, what I’m more interested in is, okay, will it really affect the environment? Today, we had an opportunity that was not available prior to this, where apparently at least an approximation of the shoreline was established at a 3.2-foot tide irrespective of what has gone on in the past. Yeah? We did measure that, and it’s clear that we have more than 40 feet to wherever your building would occur. I’m assuming residential setbacks, the front is like 15 feet and side pin? Is that correct? YEH: I believe so. WATANABE: And you’re planning to do 15 regular setbacks, 15 and 10 sides. So, it kind of addresses what Ms. Siracusa was saying. If you had the survey, would it change anything? If we can focus on that, then maybe this would be less of a trial than, you see what I’m saying? SULLIVAN: Right, yes. WATANABE: Yeah, so I’m more concerned about how do we go forward rather than where have we been. SULLIVAN: What I’ve gone through? WATANABE: Yeah. SULLIVAN: What it’s been like for the last four years. WATANABE: Yeah. Really, and I’m hoping that we can resolve this that way. I’m hoping. SULLIVAN: Let me, Chris Yuen sent me a letter that said that he was, like we already know, he was going to send the information to you, okay, which he never did and that I needed to follow certain rules. One of those rules said I had to apply for a Major use permit before I could even, even contact you. I didn’t understand that. I let it fly. I finally contacted the surveyors in January of 2008, 7 rather. Hold on, I’ll do this quickly. We were told that we didn’t have land that abuts the road, abuts the water, so there was no need to do a survey. I contacted them again in June. The topo letter that you see is the beginning of a shoreline survey. Chris Conger from DLNR, and Niels Christensen of Independent Hawaii Surveyors were out on our property in October after he had drawn that map. They got out to the land. There was, it was 2.87 high tide. There was no water anywhere near our property. Chris Conger said, told, I’m doing hearsay here, this is what Niels told me, that he said there’s no water on their land, they don’t need it at this point, and then he went back. And you’ll see then he raised the rate at that point after he was on our lot. That’s why we don’t have a shoreline survey, is because Niels sent our money back and he said I can’t do it until the County and the State get this thing figured out, I can’t give you a shoreline survey because the County is saying 2.8, the State is saying 3.25. And I got my – and there’s a copy of that letter in with your files. Okay? Now, they went out, the point I’m trying to say is that they went out on our lot and that’s when the rules changed. YEH: Let me, let me just try, this will be real quick. 21 WATANABE: Okay, wrap it up, maybe. YEH: Yeah. And I think, I think your point is well taken. But on these issues as to whether or not a shoreline survey was even needed, if you take a look at the rule it says when you have property which abuts the shoreline, then you need a shoreline survey. We know that in ’06 the makai edge of the Wai Opae right-of-way was determined to be the shoreline. We know that Wai Opae Road is between the property and the shoreline. I agree, your ability to go out today should have given you a pretty good comfort level that this is really not an issue for their application in terms of where the shoreline is in relation to their property. It’s well outside of a 20-foot, 40-foot, whatever is applicable, and really, let’s try to deal with how to get this thing done today. WATANABE: Okay. Do we have any further questions for the applicant or their representative? Yes, Ms. Siracusa. SIRACUSA: The question that I had asked about would it really make a substantive difference, I was asking that of both Tom and Chris. WATANABE: Exactly. SIRACUSA: So, and Chris never did answer that one. And I was wondering –. WATANABE: I was going to provide Mr. Yuen with an opportunity to rebut –. SIRACUSA: Thank you. Okay. WATANABE: As you recall. SIRACUSA: Good. That’s what I wanted to hear. WATANABE: Okay. YEH: And I think there is one person who wanted to provide some testimony. WATANABE: Well, yes, I have that person here, but we have to get through this part first. Then we go through the testimony. YUEN: The main point of disagreement is a statement that Mr. Yeh made that when they submitted their application, it should have been approved under the then existing rules. The then existing rules called for a certified shoreline when the property abuts, when a property abuts a shoreline; and that’s really an open question in this case. If it doesn’t abut the shoreline in this, they can get a certified shoreline. And if the property, if the state surveyor says that the shoreline is on the other side of Wai Opae Road or in the middle of Wai Opae Road, there’s no problem. 22 What happened here is that the Department made an accommodation so that individual lot owners would not be caught in a situation where they could not build because they couldn’t get a certified shoreline because the State wasn’t doing it. What Mr. Yeh is arguing is that we should have kept making that accommodation after the State would do a certified shoreline. And you know we, we made this accommodation because they weren’t doing the certifications. And once they found out, we say do a certification. And that’s still our response to this applicant. They started to do a certification on November, 2007. This question of this County says 2.8, or the State says 3.2, at this point, our opinion has nothing to do with it. The State controls the certification. If they want the certification in Kapoho Vacationland done at a 3.2 high tide, that’s up to them. And they can have it, they can have it done. There are dates when they could have had it done. And that’s what they need to do. I would caution you about something, and that is that we’ve talked a lot about marks on the side of the road that are painted on there that have been done, apparently, in the last day or so. Do we know what the person who did those marks intended them to mean? And I would be very, I would be very careful about that. And the final thing I’d like to say is that Mr. Yeh started by listing a number of actions that the Planning Department has taken in Kapoho involving other properties, with the intent of making you think that we act arbitrarily, capriciously, unreasonably, that we do one thing in one situation and another in another situation. This is, it’s a difficult area to determine the shoreline. There are issues with structures that have been built at different times when the rules were different. And so we could, we could spend a half an hour talking. Each of these was, each of these incidents, the three incidents we’ve talked about, is, well, with the exception of the parking lot, the other two are at least as complicated as what we’re dealing with today. We could go through these incidents and discuss in detail why we did what we did. In Barsell’s case, let me briefly say that if you read that a little bit further, first, this is in an area that is generally a higher area, and that we required the home to be built 45 feet from a four-foot elevation. This is, again, 2005. We did not require a certified shoreline. We did a high tide, they did a survey which showed the tide elevations. We took, as a conservative measure, and this is also a situation where generally the wash of the waves is not a big factor. It’s mostly a question of the elevation, and we said 45 feet from a four-foot elevation. So we can -. And maybe Tom can say something that, well, but look at this, and then I could say something like, well, look at that. But it’s a different situation. Had they come in, you know, as far as requiring a certified shoreline, had they, had we gotten –. And as you see from the emails that he submitted that we gave to Mr. Yeh, I had inquired with DLNR a couple of weeks earlier whether they would do a certified shoreline in the area, they didn’t get back. I emailed, emailed back and said, we’ll do it. If he had emailed back and said we wouldn’t do it, we would work with their, we would have continued this policy of working with their topographic survey. And then the other one just, the other situation that he brought up, we agreed to treat what we had, the evidence of an existing legal sea wall as the shoreline. The rules say that if you have an existing legal sea wall, you can consider that the shoreline. So, we did. We did not require a shoreline certification in that situation. 23 And, in the Wai Opae Road situation, I, you know, there are types of construction that can be done, relatively minor construction and not building a house, that can be done within even the shoreline setback area. And if you can’t see the difference -. I think the Commissioners, I’m sure, can see the difference between a relatively minor work on Wai Opae Road which provides the, which is the access road to all these properties, the parking lot for the public shoreline access parking area there, and knocking down lava protuberances that make it hard to park in the parking area, and a permit to build a home. I mean I think the differences are obvious. WATANABE: Okay. That was – yes, Ms. Bowman. BOWMAN: I have a question. Wai Opae Road is, and I’m just, just from my, I’m not trying to tit for tat. But you had mentioned that somebody wouldn’t, they said you didn’t need the survey because it does not abut the ocean. Who, just from my knowledge? SULLIVAN: Niels Christensen, Independent Hawaii Surveyors. BOWMAN: Okay, surveyor. WATANABE: You have a follow up to that? BOWMAN: Yeah. And Wai Opae Road is a, it’s just a private road. It belongs to Vacationland. But they applied, just so I know, they applied for a permit to take out the lava and repave it, their homeowners association is doing that? YUEN: Correct. BOWMAN: So, does the County recognize it? I mean, what’s the difference? Is it recognized by the County as a road even though it’s not a dedicated road? YUEN: Well, the reason that they, they needed to file –. Work in the special management area of even relatively minor things requires the filing of this form called an SMAA, and that’s the form that’s supposed to be acted on in 35 days.So, they filed an SMAA; and we issued a Minor Permit for the work that they were doing under that. At the end of the 35 days, that’s one of the things that the Department can do, is issue a Minor Permit for that work; and that’s what we did. It had nothing to do, really, with it being a private road or a public road. It’s just that this type of work would need an SMAA. Even if the County did certain kinds of work in the SMA they would file the same kinds of things. BOWMAN: Okay, so actually, the surveyor was not, was not giving the correct information when he said that because there’s a road that it doesn’t need a certified shoreline, right? I mean, he gave them the information that because it does not abut the shoreline, it abuts a road? YUEN: Well, that’s a statement of opinion as to, the surveyor’s opinion that it doesn’t abut the shoreline because the road is in between. There are places where the water regularly crosses Wai Opae Road at high tide. 24 BOWMAN: And if it was a County road, I mean, if there was another situation and it was a County-dedicated road, would that change things? WATANABE: May I answer? YUEN: There are -. SIRACUSA: It’s not a County Road so it’s irrelevant. BOWMAN: Yeah, well it’s not, it’s not irrelevant. YUEN: No, it’s not irrelevant. The reason why I’m pausing to answer that is that there are exceptions for certain kinds of work that are, and I’d have to go to the exempt list, the things that are considered exempt. Generally though, the County would still have to file an SMAA; and it might, the end result might be an exemption, it might be a Minor Permit. BOWMAN: I didn’t mean that. I meant that if it was a County dedicated road, that this property would not be abutting the shoreline. It would be abutting the road. That’s all I’m trying to -. YUEN: No, not necessarily, you know. It could be, it is. I can’t think of any instances, but it’s, it is possible that a shoreline could be certified that, you know -. But let me give you an example. Say there was a big earthquake, and one of the County’s road dropped and was covered by five feet of water, I mean, I’m giving you a real clear example. You would end up certifying the shoreline mauka of that road even though there’s still a County road there someplace under water. So, the fact that, the fact that there’s a private road versus a County road, I don’t think affects where you certify the shoreline. BOWMAN: Okay. Thank you. That’s just for my own clarification. Thank you. WATANABE: Okay. Just for clarification, if I bring up some things that, Mr. Torigoe, if I bring up some things that, you know, like I was speaking to the surveyor there present today when we were on a field trip to clarify such things such as what the white dots represent, is that against the rules because I’m testifying? TORIGOE: Generally, we discourage that because you would be functioning, then you would be a witness, unless the parties would stipulate to doing that. But it appears that the Applicants might have someone who’s going to be testifying on that. YEH: We should be able to tie that up pretty easily. WATANABE: Okay, okay. Good, then. With that, you’d like to -. YEH: Just a very, and I know you’re all getting tired. But basically, you see, I think what the surveyor was talking about is not whether it’s a road or it’s another lot. Road, this is a road lot essentially. As we know, there are also lots on the makai side of the road lot. And it’s not something that the surveyor said. But I think what he was referring to is the fact that if you even looked at your own Commission Rule 9-10 B.9, the shoreline survey requirement 25 comes up specifically, and it states a shoreline survey, when a parcel abuts the shoreline. And so our position has been, as well as I think this is what the survey was referencing, is that this whole issue of whether or not a survey is required begs the question as to whether or not the parcel abuts the shoreline. And our position is that it does not because you have a road lot that is between that you saw today, and you even have portions of the property on the makai side of that road. That’s one issue. Responding briefly to what Mr. Yuen said, what he told you there today, at the very beginning of this hearing, is that they determined that the application was not complete during the period of time that they had to determine this application. Because within that period of time, there had been this change. But we know that this determination was made by them after the deadline. That’s the point that we’re making as to why it should have been deemed complete at a certain point. WATANABE: On the other hand, Mr. Yeh, I’m still trying to focus on where we’re going, not where we’ve been. YEH: Yes. WATANABE: And, with that, because of the rules on whether a Commissioner can testify or not, I would like to clarify or have someone clarify on the record what those white lines represented by the surveyor. Because that is information that, in my mind, was not available to anyone of us prior to this at a 3.2 tide. And again, it’s a matter of interpretation as to where that line would have been on any given day, especially in reference to, I forget what exhibit it was, but with the luas and the water actually crossing the road. And if you, if you take this all in context, yeah, it’s possible, we don’t think it’s probable now, but it’s possible that at a 3.2 tide the ocean actually could have crossed the road. And if we can establish that, then maybe we can move on. YEH: All right. Why don’t, this may be a good time for, well Ms. Sullivan can talk about that issue, because she was there yesterday with both the surveyor as well as the DLNR representative, and then Ms. Duman later can verify that if that’s necessary. SULLIVAN: Mr. Young is involved with getting the road repaved. Okay. The homeowner’s association hasn’t had – not done. It hasn’t been fixed since 1962. So part of the 3.2 problem is the fact that we have a lot of deterioration on that road from the traffic that you saw how it was out there. Okay. That’s on the side. I was there yesterday with Mr. Chris Conger, Larry Brown, Esther and Niels Christensen and Dan Berg of the Independent Hawaii Surveyors, who Mr. Young hired. And they, and Mr. Berg went out while the tide was ebbing and, while the tide was at its highest, and went and marked each one of those spots that we saw. So all 14 of the spots that he marked were where the water was at its highest. And hemarked them so that he could come back today, as you saw, and survey, and bring out the surveyors and the, you know. Okay? WATANABE: So that’s where it was? SULLIVAN: Yes, that’s how it happened. 26 WATANABE: Do we have any further questions? Yes, Mr.Yuen. YUEN: I just want to briefly move forward to the point raised by Mr. Yeh of saying that this lot doesn’t abut the shoreline because there’s a road in between. We have to disagree with that argument and say that the question is whether the lot abuts the shoreline has to be determined by the physical issue on the ground of whether the water is coming up to the property or not. Because by that, if you look at this picture here, if you remember the tax map, there is a lot with something like 50 acres between -. WATANABE: We were informed. YUEN: Yes. That is entirely, almost entirely in blue here. By that argument that if you have a lot shown on the tax maps that is between you and the ocean, then you are no longer a shoreline property. But even the lots on the makai side of Wai Opae Road, including properties that are under water all the time, would not be considered shoreline properties; and so that’s an argument we simply can’t accept. WATANABE: Okay, okay. But do we have any further questions for the Applicant? SIRACUSA: Yes, one question. WATANABE: Ms. Siracusa. SIRACUSA: And that is, if the road is sometimes under water, for example, those photographs with the porta potties, when it was high surf conditions or storm conditions, does that qualify the road as submerged lands then? Or does it have to be submerged all the time to meet that criteria? YUEN: This is where, this is what the certified shoreline is for. And so if I can’t, I can’t sit here and tell you that those photographs prove that the property, that the parking lot should be considered, that the shoreline should be considered mauka of the parking lot. At this point, because the State is willing to do a certified shoreline, we will take what their, what their results are. So if they say that that’s an event that should, that the water going across and that storm event is something that should be discounted and not considered, that’s fine. That’s fine with us. But if they do, you know, if they find that a portion of the road is under the shoreline, then those are the rules that apply to it. WATANABE: Mr. Rho, I believe you had something? RHO: In the background and recommendation, on page 2, it’s exactly the first paragraph and it begins with “to get past this dilemma.” And it’s my understanding that to get past that dilemma, the Applicant could do a survey in lieu of a certified shoreline survey, yes? YUEN: Yes. RHO: And then on the next the paragraph, the Applicant had such a survey done. And then, I think, they had a discussion and they were asked if they would agree to a 20-foot setback. And my understanding it’s from the property line, at the road, 20 feet in. And they 27 could not agree to that. So the next step was to ask the Applicant to agree to extending the th processing deadline to November 15 so that they could go to the site again. Is that all correct? SULLIVAN: That’s correct. th RHO: That’s my interpretation of it. And that November 9 date, they saw a puddle in the middle of the road, and I’m saying the middle. I’m not sure where the puddle exactly was. That was approximately 29 feet from the front property line. And somewhere I read that that water was certified or determined to be rain water. So, my question is if you stop at that point and don’t read further, what would have been the outcome or the decision made by the Department? And I’m asking you to speculate, but -. YUEN: I believe we would have exempted the construction of the house on the site with certain and protective conditions for the environment. Had, and I said this a minute ago, if there had not been the, if we had continued, if there were not the ability to get a certified shoreline, we wouldn’t have made him, told him to get one; and we would have had to make a decision based on the information that we had in front of us. And that information, I don’t know if it would have included, and I can’t tell you right now whether it would have included a 15-foot front yard setback or a 20-foot front yard sideback. RHO: Well, what would require a 20 foot if, in fact, let’s say the puddle was sea water and it was 29 feet. So you add 29 feet plus another 15 would still give you 40 or more than 40, right? Is my addition correct? YUEN: Right. The rules do allow the, the setback is a minimum, and the rules do allow the Department to require a larger than minimum shoreline setback. And I’m sorry, I can’t -. th RHO: Well, I understand that, but I guess it’s like something happens on the 15, ththththth 16, 17, 18 or 19 or 20 or whatever, that impacts a decision that should have been made on ththththththth the 14 – 15, 14, 13, 11, 10, and including the 9. And if the decision had been made on ththth the 9 or 10 or 11, and the letter written, I mean, it would just be speculation on my part that it would be that you could have your 15-foot setback, it’ll meet the 40, in fact, it’s a little bit over 40, go with it. I don’t know. I’m just saying that the way this thing is written, if you stopped at that point, then, I would speculate that they, the Applicant would have received approval. YUEN: Yes, I do think that the, there would have been an approval. I’m not sure what the exact conditions would have been for, would have been for the house. And so I can’t tell you if it would have been approved with a pod and a bridge. I can’t tell you if it was approved with a 15 or the 20. There would have been, there would have been an aerobic system. I’m not sure that that’s a Department of Health requirement. We have been putting it in into the approvals that we have. But, yes, that is. And I said this much not that long ago that if we, if the opportunity had not been there to get a certified shoreline, we would have had to, we would have made a decision based on the survey that was given to us. And rather than saying, no, you can’t build a house or, actually we couldn’t have said, no, you can’t build a house, rather than send it to the Commission as a Major Permit, I believe we would have issued an exempt determination with some conditions to protect the environment. 28 WATANABE: Satisfactory? Okay, I believe we’re done with the questions for the Applicant. I do have two people who have signed up to testify, so Mr. Yeh and Ms. Sullivan, you may be seated so that I can bring up the testifiers. And so, I’d like to call up Katherine Duman and Thomas Young. Would both of you raise your right hand, please. Do you swear or affirm to tell the truth now before the Planning Commission?? TESTIFIERS: I do. WATANABE: Okay, thank you. Now, would you like to start Katherine? DUMAN: Yes. WATANABE: Okay, then name and address prior to providing your testimony. DUMAN: Katherine Segovia Duman, RR2 Box 4079, Pahoa, 96778 WATANABE: Thank you. You may begin. DUMAN: My involvement in this is that I’ve worked in the construction industry for a little over 20 years, working on the other side with the Hapuna Prince when that was under construction. So the whole SMA process I’m not new to. Fortuitously, it was pouring rain one day when Mrs. Sullivan was walking through my neighborhood in Kapoho, and she came and stood under our porte-cochere with her husband, and we started talking. And I started giving her some information because they wanted to build a house. I was like a builder. It was a match made in heaven. Having been aware of all the issues that have transpired -. And you’re also missing two letters that were sent, so you might want to check on that. But having been aware of all the issues, what I can continue to see is sort of issues of unfairness, but I’ll let Mr. Yeh deal with those. If I may address Ms. Siracusa’s issues with the environment; you obviously know Roberta Brashear, and she’s been out there on the lot. We’ve had long involved conversations. Kathy Sullivan has had them with her. And we really would like to work with her. Roberta was appalled at the condition of that area, specifically when we walked around in there after the person in the octagon house just came in and cut everything so that they would have a view. In addition to that, I’ve worked with a gentleman by the name Brandon Chapin (phonetically) who’s just, he’s also my hanai son. So, I drag him out there a lot. And we tested the salinity of the ponds. He was looking at what species were in the ponds that should be there, that shouldn’t be there, how to basically manage those ponds. Mrs. Sullivan also had a quite a large access to that information. And Brandon also said that he would, he has moved to San Francisco, but that he would help her out with getting those ponds cleaned up. To be perfectly honest, Brandon and I went out there one day when we were doing the salinity testing, and found dirty diapers in the ponds. Now, I know you’ve been out there and seen all that stuff in there. I cannot see how Mrs. Sullivan building a house will be a worse environmental effect than what’s out there now. Because she’ll have the ability to, she can put up construction fencing around the ponds while she’s building. She could put up construction fencing in the front to keep any debris out. If for some reason we do have a big storm, there are lot of ways to mitigate all those problems. Also, with those floodings, she’s not going to be building on the ground. She’s going to be building 15 feet in the air, because it’s the sea level base plus 15 feet; and that’s what’s required now. So it’s not like she’s on a two-foot post and pier. 29 So, there’ll be a lot things that will be incredibly much more beneficial to the environment with Kathy Sullivan building a house there. She’s also looking at building a small house. And working with a lot of custom home planning, I could tell you right there, you have a whole number of houses where these people have built houses that are 40, 50 percent of the lot size or more in three of the cases right there. What she’s looking at is less than 10 percent, the actual living space is going to be less than 10 percent. So while there are lots of issues that Mr. Yuen and Mr. Yeh can fight out, the environmental issues are that it will be beneficial to have someone living there taking care of that area. She’s going to be up in the air. It’s going to have to meet the building code standards which are going to require probably 16-inch diameter columns or chimney block columns. They’re either round or square, or something to that affect. This is not going to be a less-than-substantial foundation. But there are ways to work with all that foundation and keep it from affecting the ponds, the open oceans. WATANABE: Okay, is that your testimony? DUMAN: That’s it. WATANABE: Okay. Do we have any questions for Kathy? No? Okay, thank you. Mr. Young, name and address, please, before you provide your testimony. YOUNG: Okay. Thomas Young, 529 Kukuau Street in Hilo. I own a property just mauka of the Sullivans. We’ve been down there, well, actually I think the first time I went down there was in the early ‘60s and then early ’65.In fact, I worked on the house that was destroyed across the street, Mr. Crawford’s house. That house is still in the subdivision. It was moved a few feet up, you know, the street above after it got slapped around by the hurricane. I’m on the board of directors of the Vacationland Subdivision’s board anyway, and I’m on the road committee. And I joined that committee because I was not happy with the inactivity of the road committee to do their duty of repairing roads. At first I thought it was maybe mean spirited, but after a while I found out the process was too daunting for the people that were trying to do this thing. So, they’ve been spending their money on other roads in the subdivision trying to upgrade them over time. The Sullivan’s problem is exacerbated by the fact that the road committee has allowed the road to degrade in some places two feet to one foot in front of their home. There should be a road that is one foot higher, at least, in front of the Sullivan’s house. Now, who surveyed yesterday? Okay, as an association member and as a committee member for this particular project, I hired Christensen. And he arranged to have Chris Conger who is the consultant to DLNR who is the shoreline certified person. Okay? And he not only did his job yesterday, but he literally described the full process to us, which is a lot more than I had, that I understood in the first place. But, anyway, in doing his certified shoreline, those little marks that you saw will be the basis of that certified shoreline that’ll be contracted for by the association. Now, that would be for the association. But it should have an impact on the Sullivans, because you can see by those marks that that certified shoreline will be, really ahead of their property 30 towards the sea. Now, when we go back in to get back our road repair permitting which is another daunting process, the subsidence study that is on file has recommended and also Larry Brown has recommended that the road be elevated another six inches. So, plus one foot, plus six inches puts the shoreline at least to the outward edge of that road; and that would really be an impact to what the Sullivans have now. It has been suggested because this is a problem that is facing everyone in the state. And there was a conference of surveyors this year that said these problems need to be solved. Now, this is a smallest one to be solved, and it may be the first one to be solved. But it is evident that all of the different agencies are holding their responsibilities very close to their chest, and they need to get together and have an over-arching strategy on this. And this is a good example, now, of how this could happen and benefit, you know, both the environment and the long term sustainability of this, of this subdivision. Now, I’ve been doing a lot of talking to a lot of visitors, and evidently we’re getting a lot of people from Europe. We’re getting people from all over the place that really love to come down there because it’s highly, you know, we have a lot of brochures, a lot of different things. I think the first brochure I ever saw was in the early ‘60s in Sunset Magazine that told all about this place. Okay. The point is the threat to the environment is, is not like the State – most of the State’s problem is having shorelines wash away. The problem here is ill-maintained properties or ill-maintained roads that are eroding, and then the material is going out into the ocean. So the more the road is fixed, the more the properties are secured and well maintained, the environment will be taken care of better, because there is that threat. And we’ve done studies out there that have shown that the biggest thing in these ponds is the gravel and debris from homes that are not being protected. So, my point of view is a well-maintained subdivision here with homes that are being taken care of all the time would be better for the environment, and it would fit the needs and the plans of the State of Hawaii much better than just leaving this thing go to nature, because it’ll just totally degrade. So, I would encourage you to really look at this process; and because of the, you know, there’s a lot of confusion about it, you need to wade through that. But I really believe that the Sullivans would be a benefit to this area. Thank you. WATANABE: Thank you. Do we have any questions? Okay, you may be seated, then. Okay, well, we’ve heard quite a bit of testimony and rebuttal. Does anyone care to make a motion? Yes. TORIGOE: Mr. Chairman, just housekeeping real quick. I just want to make sure that the parties have put any exhibits they want into the record and is there any need to do anything more formal than to say all of the exhibits that have been submitted are in the record at this point? YEH: Thank you for that. I believe we have all the pertinent exhibits in the record already. And just one final thing, I think is that if the Commission chooses to go ahead and consider granting the permit and exemption for the construction of the single family dwelling, that what it can do probably is incorporate just standard conditions that are usually provided in these kinds of circumstances. And maybe Chris can fill you in in what some of those are. Thank you. 31 WATANABE: Mr. Yuen? YUEN: In answer to Mr. Torigoe’s questions, yes, we have everything in that we would like. TORIGOE: Okay. Just another one, is that question of HRS 91-11, are the parties okay with the Commission going ahead and making a decision at this point, without having a form of decision for you all to look at and argue over and deal with at this point? YEH: If you can ask me that question later? TORIGOE: Well, we should get that answered before a decision is made here. YEH: Well, it’s kind of hard because it just depends on what kinds of conditions are there and how the Commission is even determining how it’s going to go about rendering that decision. So, I just, it’s hard for me to respond right now and waive something. WATANABE: Well, maybe I could make this easier for you, if we were to do this, and we made a decision, because there’s a final body theoretically it’s final. But it is appealable, is it not? TORIGOE: I assume so. I mean, we’ve never done this particular thing, but I assume so. WATANABE: So, you know, I guess what I’m trying to say is that I understand you’re reserving your right. And I don’t think by granting that, that you are losing your right to appeal. YEH: Right. It’s just that what Mr. Torigoe is asking is whether or not we feel that there’s a need to comment on a draft form of a decision at which this would occur at another subsequent hearing, or just waive that and allow this decision to be issued in writing beforehand. So rather than put us in the prospective of later on trying to decide to appeal, we’d rather have some ability to provide input if that’s appropriate, depending on what the Commission decides today. And so that’s why I’m saying we don’t need to make that decision, I don’t think we need to make that decision right now, as opposed to once the Commission makes some basic form of decision. TORIGOE: Okay. Well, what you could do is you could entertain a motion if it is going in Mr. Yeh’s direction, and you can have some discussion as to conditions at that point. And if Mr. Yeh could waive 91-11 for purposes of that motion, I suppose, and see if that flies. YEH: For that purpose, that would be fine. WATANABE: Okay. SIRACUSA: I have a question? WATANABE: Yes. 32 SIRACUSA: Mr. Young testified that the surveyors who were there were surveying for Vacationland Hawaii Community Association, and that they were doing a shoreline certification, if I understand him correctly. Does it really matter who’s doing the shoreline certification if it’s being certified in front of the Sullivan property? Does it matter who’s paying for it? WATANABE: That’s been my point all along. YUEN: I believe that, that if the State certified the shoreline being somewhere on or makai of the road, both the State, well, we would accept that as being valid for the standpoint of the Sullivan property. WATANABE: That has been my point all along. SIRACUSA: Okay. I’m just so, I’m used to us agreeing on anything, that I was surprised. WOODWARD: If I might? WATANABE: Yes, Mr. Woodward. WOODWARD: We all know where those spots are. We saw every one of them. WATANABE: Exactly. WOODWARD: And we exactly measured them. And the closest one was 28 or 29 feet from the front of the property, and they were some 40 plus feet back. So I don’t think we need to wait. I think these people have been jerked around enough, to be honest with you. As a wise kupuna once said, there’s pono. Pono is what’s right in your heart and what’s right in your belly. And there’s pono-le. And that what’s, that’s what all this legal garbage is all about. That’s what is written in the law. But what we want to do is what’s pono, not what’s pono-le. I think we know where the, we know where the line is. We were out there. We saw it. Let’s get on with it. WATANABE: Yeah, well, I need a motion to get on with it. DOMINGO: Mr. Chairman? WATANABE: Yes. DOMINGO: In light of the discussion and the chronology of events that were stated by the applicant in the discussion of John T. and Mary K. Sullivan application for an SMA Permit, I move for its approval. WATANABE: Okay, so it would be SMA Permit 06-000201? DOMINGO: Yes, sir. Yes, Chairman. WATANABE: Do we have a second on this? 33 WOODWARD: Second. I assume you mean a Major SMA Permit so that they could build a house bigger than $125,000 or whatever? WATANABE: Well, let’s clarify this because I think we can approve the SMA with an exemption because it’s a single family house, so we don’t have to go through a major permit. Yeah, so we could exempt because it’s a single family residence. Now that said, we also did hear testimony that typically we would afford conditions to this that would help to protect the environment, two of which are, or one is the septic meeting with the Department of Health’s approval; and we heard testimony that it probably will be an aerobic system. I’m not an expert, I don’t care. If it meets with the Department of Health’s approval that’s good enough for me. The other one though is with regards to being a minimum of 15 feet above sea level, I believe, because it is in a tsunami inundation zone; and that does strike me as something that is critical in the area. But aside from that, I’m just a lay person so I don’t know enough. The setbacks typically I believe we were talking about a standard 15-foot setback from the front and 10 from the sides; and I believe that was acceptable to you. I didn’t hear any objections when I first brought that up. YEH: Mr. Chair? WATANABE: Mr. Yeh, is 10- and 15-foot setbacks acceptable? YEH: I believe that’s the appropriate standard and I was going to -. WATANABE: I think it’s the standard, you know. YEH: Actually I think what’s shown on the plan is actually an 8-foot setback. WATANABE: On the side? YEH: Yeah. And so whatever, I would say for that particular issue, just say whatever the standard building setbacks are for RS -. WATANABE: Standard zoning setbacks? YEH: Yes. WATANABE: Okay. I think there was another really big issue out here, and that’s with regard to any pillars within the pond within the property; and I believe the Director’s position was you will not put in any pillars within the pond. And I would expect to have that as one of an acceptable condition? YEH: That is acceptable. WATANABE: There’s just a small trench to traverse, am I not right? The typography right now is such that there is land for the most part almost clearly across to the studio that you’re planning to build also within that site plan, is that correct? You may come up. 34 YEH: You can come up. Thank you. On the 15-foot height, that would be a requirement that the Building Division, would -? WATANABE: Right. And so in my notes I said “acceptable to the Building Department.” They obviously have to get a building permit, right? YEH: Yes. WATANABE: Mr. Yuen, in light of all that has transpired, are there other things that you could assist us with so that we can then protect the environment? YUEN: Well, if the Commission is going in this direction I would first ask that it specifically refer to an aerobic system because I’m not sure what the, I know the Planning Department has been putting this in as a requirement. I’m not sure that the Department of Health is. The other conditions you mentioned are fine. You should reference a building height meeting, I think it should just simply say “meeting with the approval of the Department of Public Works.” Because if we were approving this, we would have sent it to the Department of Public Works and have gotten a height line that they have to build to because of the tsunami inundation situation. No pillars in the pond is something that we would have put in as a condition. I would also, you know, and I don’t have these here. I would say that there are -. YEH: Other standard conditions? YUEN: Well, other reasonable conditions to protect the environment that do not make the building of a house infeasible. WATANABE: Okay, okay. Is that acceptable to you, Mr. Yeh? YEH: Yes, it is. It is. It’s a little vague but -. WATANABE: So it is a little bit vague but I think he made it, how should I say it, I think he expressed it in such a manner that it would not preclude you from construction. WOODWARD: Mr. Chairman? WATANABE: Yes. WOODWARD: If I might ask Mr. Yuen, who would be the arbiter of what is going to cause environmental problems? I think that should be spelled out. WATANABE: Oh. YUEN: If there’s a disagreement about this the applicant, I’d try, if the applicant wants to bring it back to the Planning Commission, that’s real -. In a situation where there’s a disagreement over the terms of the permit, ultimately it can be brought to the Commission. I think of the first instance we would do it administratively, though. YEH: That’s acceptable. 35 WATANABE: Okay. So to be clear now, the height building at a level with the approval of Public Works because of the tsunami inundation. We’re going to be more specific with regard to septic which means that it’s strictly aerobic. Okay? YEH: Yes. WATANABE: That’s going to be spelled out. We will definitely spell out that there are no pillars to be placed within the pond on your property. You previously agreed to this. SULLIVAN: Yeah. WATANABE: And other conditions that may mitigate any environmental factors within reason, right? YEH: Yes. WATANABE: And generally speaking, and they’ll conduct the rest? YEH: Yes. And if there is any disagreement -. WATANABE: So, now, with that framework are you now willing to, what was that, rule -? TORIGOE: Yeah, waive the HRS 91-11. YEH: Certainly. WATANABE: That sounds good to you. Okay, I just understand, I just wanted to make sure we have a clear understanding what the motion is. Yes, Ms. Siracusa. SIRACUSA: For the record, do we want to reference the Vacationland Hawaii Community Association’s shoreline survey as applying to this application? WATANABE: I think it’s all over the record, I think. I believe it’s all throughout the record already. SIRACUSA: I just wanted to make sure that that’s -. YUEN: If I can sort of -? WATANABE: Yes, Mr. Yuen. YUEN: What I heard here is that their surveyor put marks on the ground as to where their surveyor thinks that the shoreline should be certified. A State Surveyor has to accept that survey. I am quite sure that that has not happened, so we don’t know that that’s where the shoreline would be certified. 36 SIRACUSA: In that case can’t we word it in such a way to say that when the State Surveyor confirms or adjusts the shoreline for Vacationland Hawaii Community Association according to whatever then that official shoreline certification for the Wai Opae Road will also apply to the Sullivan property? WATANABE: That’s kind of convoluted and, you know, the timeframe may have -. How long with the State take, 15 years? I don’t know. Here’s the other thing, I believe Mr. Yeh testified that they did have one of the experts for the shoreline certification present, as Mr. Yuen has testified, that Mr. Brown or some other representative from the County had been there when they did previous surveys to establish a 2.8 foot tide survey. So I think given those things and what’s on the record, it’s relatively safe to assume that what we saw is a very close approximation to where the shoreline will eventually be served by. WOODWARD: Mr. Chairman? WATANABE: Yes. WOODWARD: I think, and also my understanding is that it was Mr. Conger from the DLNR that was out there also the same time that they were doing the survey. So I can’t imagine that those spots are going to change by more than a couple of inches. And to be honest with you, what difference would it make? WATANABE: Yeah, at that point it would not abut the property anyway. OGATA: I -? WATANABE: Yes. OGATA: I’m not an expert with shoreline certification and I don’t understand their process yet, cause nobody has been really able to talk to it very much. Other than seeing the white marks on the ground, I’m not sure what other factors a shoreline certifier would take to make the call on where the shoreline is. So, I don’t know, I’m kind of confused right now. And, secondly I have also a question about the roadways. Where are you talking about the road being eroded and all of that stuff? And with construction and materials going back and forth over the roads, I’m just a little bit worried about that, too. So if somebody can talk about that I would appreciate it. YEH: Let me first, yeah, on the construction techniques, you know, I don’t think the applicant has any problems with being required to take mitigation measures to avoid construction debris, or other kinds of materials from going into the pond during the construction phase, taking reasonable steps to do that. WATANABE: Yeah. I don’t think that was her question. YEH: Oh, okay. OGATA: That was my second question. 37 YEH: Yeah, yeah, that was the second question. OGATA: That was part of my second. YEH: Yeah, on the first one, the reason for having the State surveyor out there while the surveyor is also marking is because in conjunction with each other they make the determination to mark a location with this consensus amongst them. And, in fact, as I understand what the State Surveyor does is he actually tells the surveyor go in and mark it right here. So there is this consistency of opinions so to speak amongst those two players. And then the map is then drawn based on those field measurements or locations. And then based on that map it then gets stamped and certified. That’s the overall process. YUEN: I -. WATANABE: Yes, Mr. Yuen. I think you feel it’s a little more involved than that. But -. YUEN: Well, there’s a process for doing a certified shoreline survey, and until the State Surveyor has stamped the map, that’s not what it is. You know, if the Commission is making a decision that they feel now it should be granted and not wait for the certified shoreline survey that is within the, the Commission can do that; and I’m not trying to argue this point to infinity. I just am trying to keep saying something that I said quite some time ago, is that you cannot jump to the conclusion that the marks on the ground are where the shoreline is ultimately going to be certified. YEH: Yeah, so maybe that whole point may be unnecessary cause you’re allowing the construction. WATANABE: Well, I wasn’t really thinking of putting this condition on what is certified and whatever. But, you know, to address that point though, Mr. Yuen, in the past we have in lieu of holding people hostage through the State that was not providing a surveyor we have gone out and surveyed at a 2.8-foot high tide. And subsequent to that we at least have, although it may not be the certified, we have the markings of where the 3.2-foot high tide waterline is. You’re not disagreeing with that, are you? YUEN: No. WATANABE: So, in essence we’re kind of doing what you’ve been doing in the past except that, at the very most we’re doing what has been done in the past. YUEN: Yes, except that it hasn’t been certified. WATANABE: Yeah. YUEN: Yes. WOODWARD: Mr. Chairman? 38 WATANABE: Yes. WOODWARD: If I might make two points. One is we made a site visit. We know a lot more about where that high waterline is than if we saw it on the map with somebody’s surveyor’s stamp on it. And the other thing, it gets back to the old question I brought up about pono and pono le. We want to do what’s pono, what’s right, morally right, not fiddle around any more. And I can’t imagine that when the certified survey comes up it’s going to vary significantly. Even if it does and we’d never been out there, all we’d have is a map to look at. We actually were there. We measured it off with a tape measure. We know. And it’s not going to be off, like I say, more than a few inches at all. And if, you know, Mr. Conger from DLNR was out there when they were doing it, what more can you ask for? I don’t need to see the final, you know, certified copy myself. BOWMAN: Mr. Chairman? WATANABE: Yes, Ms. Bowman. BOWMAN: I just want to say, you know, in the Shoreline Setback Rule 11, it says that the Planning Department “may,” okay, require a certified shoreline. So we are approving it, I assume, without the certified shoreline survey. So why are we talking about it? WATANABE: It has obviously been a bone of contention. But, anyway, we have a motion that is live, seconded, with the conditions as stated with regard to, you know, how the building permit, and who approves a building permit -. BOWMAN: But not with the certified shoreline, right? WATANABE: No, no, no. BOWMAN: Okay, so -. WATANABE: Nothing to do with anything certified; and we also are looking at, the motion is to approve an SMA permit using a single family residential exemption, subject to the conditions that will help protect the environment and also to protect the applicant in the event of a tsunami. WOODWARD: Mr. Chairman? WATANABE: Yes. WOODWARD: Are those conditions acceptable to you? DOMINGO: Yes, my kahu. WOODWARD: Kupuna. Yes, they are acceptable to me, too. WATANABE: Okay, good. So do we -? 39 SIRACUSA: Mr. Chairman? WATANABE: Yes. SIRACUSA: I just wondered, did we have a condition in there about removing the organic matter from the pond and maintaining the pond? WATANABE: No. But that could be covered under -. SIRACUSA: The general environmental -? WATANABE: Yeah, because we said environmental whatever, and I don’t know that you want to craft that on the fly. And I trust that that is going to be something that is economically feasible and reasonable. WOODWARD: Mr. Chairman, I have no doubt that the applicant is planning on doing this. WATANABE: Okay. So are we all clear on this? Do we have any other matters to discuss on this? Okay, Jeff. DARROW: Just two simple points of clarification. No. 1, there were some disagreements on the setbacks. Just for clarification it appears the setbacks are 15 front and rear, 8 feet on the sides; and this is based on the property being 8,000 square feet in size. WATANABE: Those are actual County setbacks? DARROW: Correct. WATANABE: So that would be 8 feet and 15 then. DARROW: Okay. The second point of clarification is that this is, just so I’m clear on the record, that this is an approval for an SMA exemption with conditions, correct? WATANABE: Right, right. And the exemption is based on it being a single family residence. DARROW: Correct. With that I’ll take the roll. There are four conditions. These conditions have to do with the aerobic septic system meeting with the approval of Department of Health, the height limit meeting with the approval of the Department of Public Works, that there will be no posts located within the pond, and a general condition that states that any other pertinent conditions to protect the environment shall be conducted, that will allow the construction of a home, or something to that matter. Does that sound -? WATANABE: That sounds good. DARROW: Okay, with that I’ll take the roll. Commissioner Domingo? DOMINGO: Aye. 40 DARROW: Commissioner Woodward? WOODWARD: Aye. DARROW: Commissioner Bowman? BOWMAN: Aye. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Rho? RHO: Aye. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: And Mr. Chairman? WATANABE: Aye. DARROW: The motion passes seven to zero. YEH: Thank you very much everybody. And again, thank you for your time today. WATANABE: Okay, thank you. The next question brought up was who’s going to write this. Mr. Darrow? DARROW: Are you asking or telling me? YUEN: The Department writes it. WATANABE: Yeah, no problems on that then? YUEN: The Department writes it. WATANABE: Okay, thank you. SULLIVAN: Is that sent to us? WATANABE: Yes, yes, it will be sent to you in writing to confirm the conditions and hopefully everything is reasonable. Yes? Okay? 41 SULLIVAN: Thank you so much everyone. The discussion ended at 6:09 p.m. Respectfully submitted, Sharon M. Nomura, East Hawaii Secretary 42