PD BACKGROUND REPORT (PL-SMA-2023-000027)

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Roy, Alex From: sidneyfuke@gmail.com Sent: Friday, March 24, 2023 5:46 AM To: Roy,Alex Cc: Darrow,Jeff, 'Darryl Fujimoto' Subject: D&L Fujimoto - SMA 51 Planning Dept. Follow Up Flag: Follow up ](h1It� Flag Status: Flagged Aloha Alex, As you begin to complete your review of the subject application, I would like to use this opportunity to clarify the applicant's position on this matter. In sum, due to public health, safety and corresponding liability and maintenance issues, the request was merely to enable the applicant to exercise reasonable controls over the "public use" parking area on its property as was required by condition of SMA 51. As noted in the applicant's report, the type of control (hours of use, reasonable fees, etc.) would be no different of parking areas owned and operated by government or many other private establishments. With or without this "public use" parking condition, the applicant is still committed to making this parking area available for the general public subject to some measure of controls. This position and/or commitment was articulated in the applicant's report wherein it stated: "The applicant will continue to make this area available as a public parking area with some measure of controls to address safety, maintenance, and availability to the general public." As such, this could be accomplished by your favorable consideration of the applicant's proposed condition or let alone, deletion of said condition. The latter option — deletion — however, is preferred for several reasons, some of which were already articulated in the applicant's request. For one, its legitimacy is questionable, as it was required as part of a condition to the SMA permit. Conditions must bear or have a reasonable relationship to the SMA policies, objectives, and guidelines. While parking conditions have been required of other projects, they were clearly associated with coastal or shoreline access. In this situation, it is debatable whether this public use parking requirement has a "reasonable" relationship to coastal or shoreline access. The original reason for its imposition did not discuss its need for direct coastal or shoreline access but instead was justified for economic development and a need to address overall parking problem in the area. The approval stated: "the provision of twenty (20) parking spaces for the general public will enhance the economic development of Kailua while providing partial solution of the parking problems in the area." (underscore added) As noted in the Topliss v Hawaii County Planning Commission decision, the Commission's actions (including conditions) must have a reasonable relationship to the SMA objectives and policies. The Intermediate Court of Appeals in 1993 in that case opined that "if traffic from a development within an SMA is not shown to have a substantial adverse effect on the coastal environment, such impact as the traffic may otherwise have on the existing roadway system in the area of the development cannot be the basis for denying an SMAP application." To add to that, as noted in the applicant's report, the condition could also be tantamount to a "taking" (i.e., requiring use of a private property for a public use without just compensation); and because of its inability to control the parking area required of the zoning code — a practice that is common for other public and private establishments — may also be inconsistent with the principle of "equal protection" of the law. The other reason to support its deletion relates to the matter of enforcement. The amendment suggested by the applicant would require some measure of enforcement by the Planning 1