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HomeMy WebLinkAbout2004-06-18 TFABYONIC PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JUNE 18, 2004 A regularly advertised hearing on the application of MARK FABYONIC (SMA 04-005) was called to order at 9:02 a.m. in the King Kamehameha's Kona Beach Hotel, Kamakahonu Ballroom, 75-5660 Palani Road, Kailua-Kona, Hawaii, with First Vice- Chairman Earl Fujikawa presiding. PRESENT:Earl Fujikawa ABSENT AND EXCUSED: Fred Galdones C. Kimo Alameda Bill Graham JeffreyMcCall Francis Smith Hannah Springer Bill P. Thibadeau Patricia O€Toole, Deputy Corporation Counsel Chris Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately 31 people from the public in attendance APPLICANT: MARK FABYONIC (SMA 04-005) Special Management Area Use Permit to allow the development of a 26-unit residential project with related recreational improvements. The property is located along the mauka side of Puako Beach Drive, immediately east of the Puako Beach Condominium complex, Lalamilo, South Kohala, Hawaii, TMK: 6-9-2:23 and 27. FUJIKAWA:We are on Agenda Item No. 1, Mark Fabyonic asking for SMA 04-005, Special Management Area Use Permit, to allow the development of a 26-unit residential project with related recreational improvements. Staff, proceed? HAYASHI:Thank you, Mr. Chairman. Good morning, Commissioners. If I may direct your attention to the wall, the plans on the wall. First of all, on the overall site location map, the subject property is indicated with this red dot. It is situated along the mauka side of Puako Beach Drive. If you look at this larger site map, this is Puako Beach Drive, and the subject property is located here. It consists of two parcels. The Queen Kaahumanu Highway is located here, and this would be the road that Puako Beach Drive, that goes towards Puako Beach Subdivision lots in that area. EXHIBIT A The subject property is zoned for Resort-1.25, meaning a density of 1,250 square feet of land area per unit. There is a small portion at the end, this corner here, which is zoned for a Single-Family Residential-10,000 square feet. The Applicant intends to develop the property into 26 residential lots. These lots would be approximately 6,000 square feet in size; and these would be created under a future planned unit development permit, which needs to be applied for and granted by the Planning Director. Also, as part of the development, the Applicant will have a common area which would be used for recreational purposes. There would be a pool and some other recreational amenities. The proposal is to construct single-family dwellings, which would be either one or two stories in height, as noted on this particular map. Theestimatedcostwouldbe$2million.PuakoBeachDriveisaCountyroadwhichhas a pavement width of 20 feet. The shoulders on the road are unpaved, except for a small portion on the mauka side of approximately three feet which is striped for walking purposes. There were a number of individuals and an association that submitted a request for a, or filed petitions for Standing in a Contested Case Hearing. I had prepared a list for you. th We received a request from L. Brian and Roberta McGann, which was filed on April 27; andthe McGann€s property would be in this general area, which is across from the subject property. We also received a request from Dr. and Mrs. Michael Kimball, another petition for Standing; and the Kimballs also own a property which is across from the subject property on the makai side of Puako Beach Drive. th There was another request from Nann Hylton, which was filed on June 10, received in th our office on June 10; and Ms. Hylton€s, the Hylton€s property is located in this general area across from the subject property. Another request was filed by the Puako Community Association by its president, Bob Momsen; and that was received in our office on June 10, 2004. th The deadline for submission of these Petitions for Intervention was on July 11, which was last Friday, seven days prior to the hearing today. WealsoreceivedanotherrequestwhichwasfiledbyaDr.Addario.Dr.Addarioalso owns a property which is CPR€d with the Kimball€s property and situated here. That th petitionwasfiledandreceivedinourofficeonJune14,whichwasafterthedeadlinefor submission of the seven-day requirement. 2 There were numerous letters that were received that were circulated to you. I believe there are also some additional correspondences and testimonies that were submitted this morning for the Commission€s, to the Commission. At this time, we are withholding the staff€s recommendation inasmuch as these standings, requests for standing needs to be dealt with. Are there any questions at this time? FUJIKAWA:Commissioners, any questions with the staff? If not, will the Applicant or his representative, you want to say -? I would like the Corp. Counsel to do the presentation on this, what the hearing is about. Thank you. O€TOOLE:Yeah, I€d just like to explain the procedure that we€re going to be following now. As staff pointed out, there are a number of requests for Standing in a Contested Case Hearing, so we need to determine which, if any, of these requests will be granted;andthatwilldeterminetheprocedurethatwe€llbefollowingthereafteronthe application. So, first, we€re going to ask each person who asked for intervention to explain why they believe that they should be granted standing. And, so, this means that not so much the merits of the case of why you€re objecting but just why you believe you have standing. So we€ll take that up. We€ll ask the Applicant if they have any position on each intervention request, then the Commission will vote on the request for intervention. Following that we will take public testimony, I think one person signed up. The Commission also will determine whether they will be hearing the Contested Case, whether they will hire a hearings officer, and when they would like to proceed with the Contested Case. So I think, at this time, we would like to deal with the requests for intervention. FUJIKAWA:Will the Applicant€s representative and the intervenors, please step forward. O€TOOLE:Or if their counsel, if the intervenors have counsel and the counsel -. FUJIKAWA:McGann, Kimball, Puako Community Association, Hylton. Okay, first of all, gentlemen, let€s see, there€s four of you, that€s it. Before I proceed, I would like all of you to raise your right hand. Do you swear to tell the truth, nothing but the truth, now before the Hawaii Planning Commission? TESTIFIERS:Yes. I do. FUJIKAWA:Would you state your full name and your address and who do you represent. Start with you, Roy. 3 VITOUSEK:Good morning, Commissioners. I€m Randy Vitousek. I€m representing the Applicant, Mark Fabyonic. My business address is 75-170 Hualalai Road, Kailua-Kona. FUJIKAWA:And you represent the Applicant? VITOUSEK:I represent the Applicant, yes. FUJIKAWA:Okay, next. MATSUKAWA:Michael Matsukawa, I represent the petitioners, McGann, Kimball and Puako Association. I also was asked by Dr. Addario to represent him this morning. My address is 75-5751 Kuakini Highway, Kailua-Kona. FUJIKAWA:Okay.Next? KIMBALL:Dr.MichaelW.Kimball.Myaddressis69-1634PuakoBeach Drive, Kamuela 96743, Hawaii. I would representing myself, my family, as well as Ms. Nann Hylton. FUJIKAWA:Okay, next? MCGANN:I€m Brian McGann. My address is 4 Puako Beach Drive in Puako, Kohala Coast 96743, and I€ll be representing myself and my wife, Roberta McGann. FUJIKAWA:Okay, and the last one? MOMSEN:I€m Bob Momsen, the president of the Puako Community Association and I live at 150 Puako. FUJIKAWA:Okay. Thank you. Mike, you want to proceed? MATSUKAWA:Since the other petitioners are here, they can explain any items that the Commission wish on their respectivepetitions. I would like to address Dr. Addario€s situation. When he called me, I was left with the impression that he was not in receipt of the mailing of notice until recently and, so, he€s -. I checked with Corp. Counsel this th morning. His petition did come in on the 14, which is late. But I think the circumstances, if his statements are true, warrant a waiver of the seven-day deadline. He owns a unit that he purchased from the Applicant€s controlling member, Mr. Mark Fabyonic, and also is an adjoining property owner across the street. I don€t know if the Applicants, in light of the fact that the other applicants are also, I mean, other petitioners are also in the same vicinity, whether they would waive the seven-day requirement. Thank you. FUJIKAWA:Okay. Any questions, Commissioners? Commissioner Springer? 4 SPRINGER:Just to Corporation Counsel, with regard to Mr. Matsukawa€s concern about his client€s untimely filing, has the Corporation Counsel had a chance to hear Mr. Matsukawa€s concern about notification? O€TOOLE:Yes. Well, I don€t know when they were notified, when he was notified. I mean, I think what was submitted regarding that, I thought maybe Mr. Vitousek can clear that up. But I would think everyone had been notified at the same time in the same mailing, but I don€t know that. VITOUSEK:You know, if you listen to what Mr. Matsukawa said he said that he€d heard representation from Mr. Addario that he hadn€t picked up or hadn€t seen it. He didn€t say when it was, I mean, it was mailed with all the other notices; and that€s what the rule requires. And, so, and I just frankly don€t know if it€s something you can waive.So,andourpositionis,really,it€suptotheCommissiontodecide. FUJIKAWA:Youunderstand,Mr.Vitousek? SPRINGER:Ido.Dowetakethisupnoworafterwe€veheardfromallof them? FUJIKAWA:I think we have to hear from everybody. O€TOOLE:Well, it€s up to you, but I think -. FUJIKAWA:We want to take it now? O€TOOLE:We€ll consider each application separately. Up to you. FUJIKAWA:Okay. Let€s go to Dr. Kimball. VITOUSEK:Mr. Chairman, may I ask a question first? FUJIKAWA:Yeah, go ahead. VITOUSEK:I was confused. Mr. Matsukawa, I believe, said he represented Kimball, McGann and the Puako Community Association, and then Mr. Kimball said he represented Nann Hylton. So I don€t know that Mr. Kimball can represent another party. She€s not here, and I didn€t hear Mr. Matsukawa say that he represented Nann Hylton. So -. O€TOOLE:Yes, I think if Mr. Matsukawa is repre -, whatever party he€s representing, I think he should speak for them, unless he needs to call them as witnesses. Well, I don€t think that Mr. Kimball would be precluded or, from representing Ms. Hylton. 5 MATSUKAWA:If it€s necessary, I would represent her because her request to Dr. Kimball was that either he or I would represent her for today, in her absence. O€TOOLE:Okay, why don€t you proceed, then. FUJIKAWA:Okay. Clear? It€s clarified? O€TOOLE:Well, I€m asking Mr. Matsukawa to -. MATSUKAWA:So I would represent her formally. Dr. Kimball can speak to her concerns expressed in her petition. O€TOOLE:Yeah, but I don€t know why he€s putting down the mike if he€s going to speak on the other petitions. FUJIKAWA:Mr. Matsukawa? MATSUKAWA:Okay. I think the other petitions are all self-explanatory, Mr.Chairman,membersoftheCommission.Eachofthepetitionershasexpressedtheir unique standing in that they live either across the street in the very near vicinity and believe that they would be affected by the impacts of the project. The Community Association, as the Commission knows, has a unique interest as well because it purports to represent a number of people who live in the area and, therefore, will be advancing their own concerns as to one or any of the various aspects of the project€s impacts on them. I think all of the requirements of standing have been met. They€re each here and are able to answer any questions that you may have to clarify any concerns. FUJIKAWA:Okay. Let€s go back to Dr. Kimball. You may proceed. KIMBALL:You all, I believe, are in receipt of the letter that I filed with my, for the petition. I€ll just summarize briefly what I think are two pertinent issues which would affect me personally and my family. One is that as we are just directly across the street from the project and this project is in a flood zone that there is potential, as has been stated in various government agencies, that flooding will occur; and I think that this would have a direct negative impact on my property. I also feel that along with the whole issue of the potential for the destruction of the reef, the water quality issues, the fact that the water there moves freely back-and-forth is such that my, our enjoyment of the ability to use the beach, as well as from the public€s ability to use the beach, could be seriously affected. I would like to add one further issue. That is, as I am the safety officer for the Puako Community Association, we€ve done a lot of work in the last few years on maintaining, creating, providing an evacuation route in times of civil defense emergencies. And as I€ve noted in one of my last paragraphs that both the Police Department and the State Civil Defense Agency have commented on the difficulties that could occur if there is a 6 significant population increase because our evacuation route for Puako Beach Drive which, as you know, is a one-way street, could be overburdened. And we are working at this time with Representative Cindy Evans, both the State and the County Civil Defense Agencies, to develop adequate escape routes, additional routes, etc. And I personally don€t feel that there should be any involvement in the development of this magnitude until the civil defense measures are in place. FUJIKAWA:Any questions, Commissioners, of Dr. Kimball? None? You may proceed? You are who? MCGANN:I€m Brian McGann. FUJIKAWA:Brian, go ahead. MCGANN:I€llansweranyspecificquestionsthattheCommissionmembers may have of me, then I would like to defer to Mr. Matsukawa to speak, you know, to represent my petition. MATSUKAWA:As I mentioned earlier, Mr. Chairman, the McGanns are directly across the street. They are similarly situated with Dr. Kimball and the others. And they bear the burden of the wastewater issues, the draw on the groundwater, traffic, as well as just basic land use matters, which I think give them a unique standing different from that of the general public. FUJIKAWA:Thank you. Any questions, Commissioners? ALAMEDA:Mr. McGann, I was -. FUJIKAWA:Commissioner Alameda? ALAMEDA:Wondering if you have anything to add to Dr. Kimball€s concerns, or do you have anything more specific? MCGANN:Well, the items that were just added by Mr. Matsukawa are absolutely right on. Also, I mean, he has basically stated it for us. We are right across the street and there are just quite a number of issues, having to do with the groundwater, the sanitation, the effect of all of that on the reef, you know, many issues. FUJIKAWA:Any other questions, Commissioners? If not, you may proceed. Your name was? MOMSEN:I€m Bob Momsen, president of the Puako Community Association. FUJIKAWA:Go ahead, Bob. 7 MOMSEN:And Puako, as you all know, is a unique, historic and very diverse community and has various issues come up before the community, our little community association, regarding fire, fire breaks, flood, flood control, traffic, speed humps and things like that. The remarkable thing is that no one in Puako can agree on anything, on any of these issues. And this particular development, though, has been a galvanizing, has had a galvanizing effect on the community of Puako and is the one issue in Puako that the community has remarkable unanimity in being concerned about and opposed to. We€ve had a pole. Ordinarily, to backup, ordinarily the Puako Community Association, as a volunteer organization with no legal standing, tries to stay out of this kind of situation and just be a conduit for information to and from the community about what€s going on that might or might not impact the various residents, and be neutral, and not take a position, and not getting involved in anyone else€s business. But in this particular situation my phone and all of our phones have been ringing off the hook.We€vegottenletters,someofwhichwepassedontoyouandsomeofwhichI brought this evening, here this morning. And we took a poll. And the poll has been, again, remarkably unanimous in terms of being concerned about the density of the development, about the impacts on the reef, about the treatment of wastewater, about traffic and the, as nearly as we can tell, the plan for a narrower road than the Puako Road, which is already narrow in our view, and a variety of situations, or a variety of concerns like that, like those. So to summarize, I guess the, what I€ve brought here, the reason that the Puako Community Association has filed for this standing is that we discovered that this is something that is a uniformed concern to all of the residents of Puako who have responded to me and to us. And we wanted to take a formal stand as opposed to our normal neutral position. FUJIKAWA:Commissioners, any questions with the representative of the Puako Community Association? Springer? SPRINGER:Good morning. Is your association a voluntary membership organization? MCGANN:Yes. SPRINGER:And do you have members who live in close proximity to this who are not represented among those who have come forward? MCGANN:Yes. SPRINGER:Thank you. 8 FUJIKAWA:Any other questions? Graham? GRAHAM:I was just wondering, just looking ahead, you know, if you€re accepted as an intervening party and you spoke of your kind of usual, neutral role as just as a communicator and all, how will you exercise your role as an intervenor in this manner? MCGANN:Well, we were concerned about that. And one of the things that we did was we took a poll, and the polling place basically was the Puako Store, where we asked community members whether they were opposed or in favor of this development and whether they were opposed or in favor of the Puako Community Association raising money, spending monies and taking a position in this. And we have only positive responses to the issue of should the Puako Community Association raise money and take a formal position on this particular issue. And so, you know, what we tried to do is say wedon€tknowwhetherthecommunityreallywantsustogetinvolvedhereandallofthe information that we€ve got from the community is that the community very much wants a central organization to represent the whole community in dealing with this particular issue, if that is responsive to your question. GRAHAM:It€s probably appropriately a response at this point of time, so thank you. FUJIKAWA:Any other questions, Commissioners? If not, Corp. Counsel, you want to say something? O€TOOLE:Yes, I wanted to say something about Dr. Addario€s filing. I think we€re going to proceed now to ask that the petitioner his position on each of the th interventions. But as staff stated that June 11 would have been the day to file and thth June 11 was a holiday. So, I guess, the issue is do you go to the 10 or you give them a th break and go to the 14. Your rule on computation of time talks about not counting a holiday or if something falls on a Sunday to go to the Monday, but that€s in counting forward. It doesn€t say anything about counting backward. But I think it is not clear that thth it is late if you say that he should have filed on the 11, but the 11 was a holiday so he filed it on the next day when the office was open. And, so, I bring that up now so that Mr. Vitousek and Mr. Matsukawa canaddress that in terms of that particular petition. FUJIKAWA:Mr. Matsukawa and Mr. Vitousek, is it clear? Any questions with the Corp. Counsel? VITOUSEK:Was the petition delivered or mailed? O€TOOLE:I believe it was, well, I€ll ask staff. I just was told that it was file- stamped on that day. FUJIKAWA:Commissioners,anyquestionswiththeCorp.Counselonthis matter? If not, Mr. Vitousek, you want to go ahead? 9 VITOUSEK:Yeah, I guess I would be interested in knowing if they, I€m presuming the staff saved the envelope to see when the, it was postmarked -? O€TOOLE:Are you checking, Norman? Norman, are you checking? HAYASHI:I€m sorry, I stepped out. O€TOOLE:Oh. Mr. Vitousekwants to know the Addario petition, was it mailed or brought in personally? HAYASHI:We don€t have the envelope, but I believe it was mailed. It was th date-stamped in our office at one, a little after 1 p.m. on the 11. th VITOUSEK:On the 11? th HAYASHI:Imean, 14. th FUJIKAWA:On the 14. VITOUSEK:Well, you know, on behalf of the Applicant and with respect to that petition, I think that€s a relevant concern of the Applicant. If it wasn€t mailed until after th the 11, then it€s hardly timely. But, you know, what we don€t want to do is create an issue that may complicate the Contested Case or any reviews, so we really will not take a position on that. We€ll defer it to the Commission in terms of the, accepting that petition. With respect to the petitions from Kimball, McGann, Hylton and Addario, they all live immediately, you know, in these new CPR units immediately across the street. They were, you know, developed over the last couple of years; and it€s hard to see why we need four, rather than, you know, I mean in terms of representing their interests. And the PlanningCommissionrulesdoprovidethatiftheyarenecessarilyduplicativethatyou don€t want to complicate the process; and, so, again, that€s a matter that we defer to the Commissionon.Imean,we€renotgoingtoaskthatoneoranotherbedeniedstanding because we don€t want to leave any issues. We want to go ahead and get this matter decided. But we would point that out. And we€re talking about four of these, I think there€s eight units there; and we have four of the eight units in there all just these new oceanfront luxury CPR€s; and they€ve basically all the same interests. So with respect to the Puako, so, I mean, our position is, you know, we understand that they are nearby property owners, and the nearby property owners are entitled to standing. The only issue is whether we need all four. And then the next concern with respect the Puako Community Association, I thought I heard Mr. Momsen say that the Puako Community Association doesn€t have any legal standing. I think he was referring to whether it was, what type of entity it was; and, so, that leaves me with some concern as to how, what this entity is, and how it makes decisions, and how it goes forward. And that€s relevant in terms of how the Contested 10 Case Hearing is conducted because somebody has to make decisions aswego along. And I have a very unclear picture of how that€s done. I mean, if it€s just asking people at the Puako Store, then, you know, that€s makes it very difficult to conduct a Contested Case. If there€s a Board of Directors and if they have some structure and there€s a board or some incorporated association that has a way of making decision, then I€d like to have that disclosed to the Applicant and to the Commission so that we can know what that means going forward. I€d also be interested in knowing whether the Board voted in support of filing, if the Board did vote in support of this, in other words, whether this is an authorized act and, if so, whether it was unanimous. Because he has been representing that everybody is in favor of this. And, so, I€d be interested in knowing if whether everyone on the Board voted in favor of intervening. So that€s our position. FUJIKAWA:Anyquestions,Commissioners,withMr.Vitousek?Ifnot, Mr. Matsukawa -. O€TOOLE:Hannah raised her hand. FUJIKAWA:Oh, Hannah, you did? SPRINGER:Not of Mr. Vitousek, but I€m wondering about a response to the questions that he has raised of the community association. May we direct the representative to respond? O€TOOLE:No, I want Mr. Matsukawa to respond. MATSUKAWA:The Puako Asociation has a structure and it has a Board of Directors; and the Board, to my knowledge, based on a communication that I had received, voted unanimously to file the petition. FUJIKAWA:Any questions? Springer? SPRINGER:Thank you. FUJIKAWA:Mr. Matsukawa, you€re concerned about the late filing? MATSUKAWA:Okay. I think Corp. Counsel accurately summarized what the law is. I think since we are dealing with a situation that€s somewhat ambiguous as to when the mail went out to him, if it did, and when it came here, and the timing of its receipt from Dr. Addario€s residence in the mainland to here, I think the benefit of the doubt should be given in his favor, that if the rules do allow for the next Monday as being the th official date of action that you should defer to that 14beingatimelydate. FUJIKAWA:Okay,Randy. 11 VITOUSEK:I€m sorry, Mr. Chairman, may I address one issue. There€s no issue that the notice went out. I mean, the notice went out to Mr. Addario on April 12, 2004. So that€s not an issue and that€s capable of being verified. The question of when he got is, you know, when he decided toopen it is something else, but it went out. FUJIKAWA:Okay. Any questions, Commissioners? Springer? SPRINGER:While I€m inclined to look perhaps generously upon Dr. Addario€s request, I wonder if we might have a discussion concerning consolidating the various inter-requests by the intervening parties, if that€s something that is proper for us to consider or not. FUJIKAWA:Corp. Counsel? O€TOOLE:Idon€tknowwhatyoumeanbyconsolidating. SPRINGER:IthinkitwasMr.Vitousekwhosuggestedthatwhilethereis similarity of concern among those who have come forward and requested standing from us, if we could take them as one intervening party rather than four separate ones. If we can have a discussion on that, or is that not proper? O€TOOLE:I would say that there€s nothing in the rule about that. I think you either accept or reject, unless they would agree. And if they€ve all hired the same attorney then, you know, perhaps it€ll be only one person speaking for them. But if each of them wants to be a party so each of them can decide on their own whether they want to appeal, you know, I don€t know how we can either decide only one is in, or one is out, or -. SPRINGER:May we inquire of them? O€TOOLE:Yeah. SPRINGER:Then I pose that question to those who have requested intervention. It seems as coming into this Mr. Matsukawa is already speaking for a number of you. We do have individual applications requesting standing. However, may we have your thoughts on the possibility of consolidating you altogether? MATSUKAWA:If I might answer that. I think before you can consolidate them, you need to first admit them as individual parties. Because we do intend for management purposes, I agree with Mr. Vitousek€s concerns, that we would probably be aligned on many of the issues. We may not be aligned, however, on one or, you know, that€s a possibility and it€s a reality. The reason I feel for case management purposes to admit them each as individual parties and then leaving us to align ourselves for efficiency has -. I€ve learned from experience, people die, you know. So what happens if your client dies and there€s no person left to, you know, if you have it a so-called consolidated thing, or someone moves away? That€s why I don€t know what you mean by consolidated. I think 12 what you mean is if we grant all the petitions, are the petitionerswilling to cooperate in aligning themselves so that it€s a more efficiently-managed process; and the answer is yes, to the extent that perhaps we may not even have to have separate lawyers for each of the petitions. FUJIKAWA:Go ahead, Springer. SPRINGER:Yes, thank you. My question was, I guess, although I didn€t realize it was two-fold if they were willing to consolidate as one beforehand. Mr. Matsukawa has been clear in his explanation. However, that they share our concerns of efficiency and expedience, so I€m satisfied. Thank you. O€TOOLE:Yeah, I just want to clarify. There is a rule on consolidation. But it€s if you have two or more proceedings with the same parties, then you can consolidate theproceedings.But,youknow-. FUJIKAWA:Anyotherquestions,Commissioners? O€TOOLE:Ithink,youknow,sincetheremaybedifferencesamongthe petitioners, you should, can take up each one separately and determine whether you will allow intervention or not. FUJIKAWA:Commissioners? You want to make a motion on that? SPRINGER:Mr. Chair, would you like us to take then each one individually? FUJIKAWA:Yeah, on the list, right. SPRINGER:Then, Mr. Chair, with regard to the request by Brian and Roberta McGann filed on April 27, 2004, I move that we accept their Petition for Standing in this matter? FUJIKAWA:Do I hear a second? MCCALL:Second FUJIKAWA:It has been moved by Commissioner Springer, seconded by McCall, that Mr. and Mrs. McGann€s filing be accepted. Any questions? If not, staff? HAYASHI:Commissioner Springer? SPRINGER:Yes. HAYASHI:Commissioner McCall? MCCALL:Aye. 13 HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:Commissioner Thibadeau? THIBADEAU:Aye. HAYASHI:Commissioner Alameda? ALAMEDA:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Chair Fujikawa? FUJIKAWA:Aye. HAYASHI:Motion carries. FUJIKAWA:Go ahead. SPRINGER:Mr. Chair, with regard to the Petition for Standing in this Contested Case Hearing by Michael Kimball, I move that we accept that petition. MCCALL:Second. FUJIKAWA:Again, it has been, motion moved by Commissioner Springer and seconded by McCall that Mr. Kimball€s application be accepted. Any questions? Any discussion? If not, staff? HAYASHI:Commissioner Springer? SPRINGER:Yes. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Smith? SMITH:Aye. 14 HAYASHI:Commissioner Thibadeau? THIBADEAU:Aye. HAYASHI:Commissioner Alameda? ALAMEDA:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Chair Fujikawa? FUJIKAWA:Aye. HAYASHI:Motioncarries. FUJIKAWA:Okay. SPRINGER:Mr.Chair,withregardtothePuakoCommunityAssociation€s Petition for Standing in this Contested Case Hearing, I move that we approve that. It was filed on June 10, 2004. MCCALL:Second. FUJIKAWA:It has been moved by Commissioner Springer and seconded by McCall that Puako Community Association be accepted. Any discussion? None? Staff? HAYASHI:Commissioner Springer? SPRINGER:Yes. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:Commissioner Thibadeau? THIBADEAU:Aye. HAYASHI:Commissioner Alameda? 15 ALAMEDA:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Chair Fujikawa? FUJIKAWA:Aye. HAYASHI:Motion carries. SPRINGER:Mr. Chair, with regard to the application by Nann Hylton for a PetitionforStandinginthisContestedCaseHearingwhichwasfiledonJune10,2004,I move for its approval. MCCALL:Second. FUJIKAWA:Commissioner Springer made a motion and seconded by McCall that filing of Hylton be accepted. Any discussion? If not, staff? HAYASHI:Commissioner Springer? SPRINGER:Yes. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:Commissioner Thibadeau? THIBADEAU:Aye. HAYASHI:Commissioner Alameda? ALAMEDA:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. 16 HAYASHI:Chair Fujikawa? FUJIKAWA:Aye. HAYASHI:Motion carries. SPRINGER:Mr. Chair, on this next one, the matter of Dr. Addario, Mr. Vitousek has been clear that the notification went out along with the rest of the notifications and the others who were so notified were able to get their application in in a timely manner. If there€s another, I€m not inclined to move in favor of it. If there€s another who would care to move otherwise, I€d defer to them. FUJIKAWA:Go ahead, Graham. GRAHAM:Asbackgroundtomyownthoughts,Ihavenotheardanything indicating that Mr. Addario has anything particularly new or valuable or different to offer to this proceeding, to a Contested Case proceeding; however, I also find the comments by thth the Corp. Counsel about the 11 being, in fact, a holiday and the 14 being the first Monday thereafter very important. And because of Addario€s standing by virtue of th where he lives andby virtue of the holiday being the day of the 11, I€m inclined to support the motion even though I don€t see, I haven€t heard a lot of particular extra interest that would make me in a judgmental situation rule in favor. Still, because of the specifics of the filing and the holiday, I would like to move that we do accept Addario as an intervenor in this action. O€TOOLE:Are you moving, Mr. Graham? GRAHAM:Yes, I am FUJIKAWA:Are you making a motion? GRAHAM:I did. FUJIKAWA:It was for or against it? GRAHAM:For it. FUJIKAWA:For it. MCCALL:And I€ll second it just, I think, for the purpose also of moving this forwardand,keep,Imean,keepingit,Ithink,cleanerandclearer. FUJIKAWA:Okay.AmotionwasmadebyCommissionerGrahamand seconded by McCall that Dr. Addario€s application be accepted. Any discussion? If not, staff,goahead. 17 HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:CommissionerSpringer? SPRINGER:No. HAYASHI:CommissionerThibadeau? THIBADEAU:No. HAYASHI:CommissionerAlameda? ALAMEDA:Aye. HAYASHI:Chair Fujikawa? FUJIKAWA:No. HAYASHI:Mr. Chair, motion does not pass. Vote was four to three. FUJIKAWA:Any questions, Commissioners? O€TOOLE:Okay. Now, you€re going to determine if you€re going to hire a hearings officer, you€re going to hear it yourself, when you want to hear it -. FUJIKAWA:Commissioners, what do you want to do about the hearings officer? Do you want to hire it, farm it out? McCall? MCCALL:I move we hire a hearings, or direct the Planning Director to hire a hearings officer for this. FUJIKAWA:Any second? SMITH:Second. 18 FUJIKAWA:There was a motion made by McCallto hire a hearings officer and seconded by Commissioner Smith. Any questions? Discussion? SPRINGER:Discussion? FUJIKAWA:Springer? SPRINGER:I pose my standard question to the Planning Director who directed us at our last meeting that there was perhaps a diminishing of funds for the purposes of outsourcing a hearings officer. YUEN:Well, at the last meeting, we, I don€t remember which meeting it was, but I did encourage the Commission to take up some of these, at least some of the, what seemed to be the simpler Contested Case Hearings themselves. And the Commissiondidaverygoodjobonthelasthearinginhearingthematterandgettingit through to a vote at the meeting. However, this one, given the number of parties and the involvement of attorneys it€s likely to be more complex. So if it is the Commission€s wish to have a hearings officer for this one, we€ll endeavor to find the funds; and I€m sure we€ll be able to do that. SPRINGER:Thank you. FUJIKAWA:Sure. Any questions, Commissioners, with the Director? None? Then a motion has been made to farm it out. Any other discussion? None? Staff, go ahead. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:Commissioner Springer? SPRINGER:Yes. HAYASHI:Commissioner Thibadeau? THIBADEAU:Aye. HAYASHI:Commissioner Alameda? ALAMEDA:Aye. 19 HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Chair Fujikawa? FUJIKAWA:Aye. HAYASHI:Motion carries. FUJIKAWA:Thank you, Mr. Vitousek and the rest of you fellows. You€ll be informed in writing. Thank you. Next on the agenda we have -. O€TOOLE:Public testimony. FUJIKAWA:Oh, I€m sorry, we do have a person who has signed up to testify. DavidBasque?Willyoustepforward?Isthereanyotherpersonwhocameuptotestify and haven€t signed in yet? Mr. Basque, you may go ahead and sit down; and let me first swear you in. Raise your right hand. BASQUE:What€s that? FUJIKAWA:Can you kindly raise your right hand. Do you swear to tell the truth on this matter now before the Hawaii Planning Commission? BASQUE:Yes. FUJIKAWA:State your name and your address? BASQUE:David Basque, Kealakekua, Kona. FUJIKAWA:Okay. You may proceed with your testimony. You€ll be on recording. Go ahead. BASQUE:Yeah, I would like to have the Commission know that I own a lot -. Could you point out my lot? That belongs to the Basque Trust which is for my family. And, also, adjacent to mine, the Applicant€s application for, I guess, have, to have a zoning changing from, same as mine, RS-10 to whatever they want up there. I would like to ask the, I€m not in favor or against the development. However, since I am directly in front of that, I would like to ask consideration from the Commission that if they do pass the zoning for at least the last two sections of this project, to grant or have the privilege of all the landowners in front of us or my case, my lot, to have it zoned so that I can build a condo for my family and give it to my kids. It€s a, my only objection is that it is direct, it€s right in the back of my backyard. And if they can be, have a different zone from RS-10, I feel that the Commission should put it in that they can grant -. I€m not talking for the other guy next to me because I don€t know if he€s going to object or what; but in 20 my particular place, all I want is to develop my lot for my future formy family. Any questions that you don€t understand? FUJIKAWA:Any questions, Commissioners, with Mr. Basque? If not, thank you very much, Mr. Basque. You are on record. BASQUE:Thank you, and I hope you consider my request. FUJIKAWA:Thank you. Is there anyone else who wanted to testify and have not yet signed in on this case? If not -. Okay, we are going to go to Item No. 2. VITOUSEK:Mr. Chair? FUJIKAWA:Oh, I€m sorry. Randy, in the microphone? VITOUSEK:Yeah, if I could ask to raise another matter. You know, I have somebadexperienceswithsituationswherestandinghasbeendenied;andwhere eventually they go to court and get a determination that there should have been standing; and it kind of undid everything that occurred in the seven years in between. And so, you know, given the fact that we have three other parties, and given the fact that there€s this issue or potential issue about the dates, and given the fact that this is a four to three vote, you know, I would like to ask on behalf of the applicant that the Commission reconsider its vote relative to Dr. Addario€s standing. And I don€t know if I€m entitled to request for reconsideration but I€m requesting it, because I would, you know, it€s important to have a clean record. And so, I know I can€t make a motion or anything, but if I could make that request, I€d like to make it here. And I€d to make another request after that, after we€ve gone through that. FUJIKAWA:Commissioners? Springer. SPRINGER:Mr. Chair, I would ask then how we would proceed the hearing of Mr. Vitousek€s statement? I have no objections. FUJIKAWA:Corp. Counsel. O€TOOLE:I think generally reconsideration should be made by, I guess, either you or Mr. Fujikawa, no, no, no, yeah, wait -. MCCALL:Or actually Commissioner -. SPRINGER:Commissioner Thibadeau. MCCALL:Or Commissioner Graham. FUJIKAWA:Mr. Graham. 21 O€TOOLE:Well, it€s supposed to be made by the prevailing side,which is no intervention, so that is Ms. Springer or the Chair. So -. MCCALL:Or Mr. Thibadeau. SPRINGER:Mr. Thibadeau. O€TOOLE:Or Mr. Thibadeau also, yeah, okay. SPRINGER:So is it a two-part process? Do we ask for a motion to reconsider and then take the vote? FUJIKAWA:Yeah. SPRINGER:Mr.Chair,ImoveforreconsiderationinthematterofDr.Addario. FUJIKAWA:DoIhearasecond? MCCALL:I€llsecond. FUJIKAWA:Okay,itwasamotionmadebyCommissionerSpringerand seconded by McCall that this be a reconsideration. Any questions? Staff. HAYASHI:I missed who seconded the motion. FUJIKAWA:McCall. HAYASHI:Thank you. Commissioner Springer? SPRINGER:Yes. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:Commissioner Thibadeau? THIAEAU:Aye. HAYASHI:Commissioner Alameda? ALAMEDA:Aye. 22 HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Chair Fujikawa? FUJIKAWA:Aye. HAYASHI:Motion carries to reconsider. FUJIKAWA:Okay. SPRINGER:Mr. Chair? FUJIKAWA:Go ahead. SPRINGER:In the matter of Dr. Dominick Addario€s Petition for Standing in a th ContestedCaseHearingwhichwasfiledonJune14, I move that we accept that petition. FUJIKAWA:Do I hear a second? MCCALL:Second. FUJIKAWA:A motion made by Springer and seconded by McCall that we accept Dr. Addario€s application. Any questions? None? Staff. HAYASHI:Commissioner Springer? SPRINGER:Yes. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:Commissioner Thibadeau? THIBADEAU:Aye. HAYASHI:Commissioner Alameda? ALAMEDA:Aye. 23 HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Chair Fujikawa? FUJIKAWA:Aye. HAYASHI:Motion carries. FUJIKAWA:Okay, Mr. Vitousek. VITIOUSEK:Thank you. My second request to the Commission is a little bit unusualandmaybe,atleastinmyexperienceit€sunusual.ButwhatI€dliketorequestis that the Commission do a formal or semi-formal referral to mediation. In other words, you know, this is the type of matter given the parties that mediation may be a fruitful thing. And very often in court, you know, the Judge has the authority to refer a case to mediation. A mediation isn€t binding in any way; but it€s just asking the parties to make a sincere effort at mediation on a short time frame at no expense to the Commission. In other words, we€re not asking the Commission to hire a mediator or anything; but essentially to give a direction to the parties, to all the parties, to participate in a mediation session before the first contested case hearing. And, you know, as I€m saying, it€s not binding, it€s not evidentiary. In other words, if there€d be an agreement to what we say in mediation, it doesn€t get to be in evidence in the contested case. But I just think the weight of authority of the Commission in asking the parties to participate in this stage like that would be helpful; and it€s kind of a case that€s kind of, you know, appropriate for that, I would hope. So that€s my request, request to be, that the Commission request or direct the parties to participate in a mediation session no more than, not required to participate more than one day, no expense to the Commission. Thank you. FUJIKAWA:Planning Director, Mr. Yuen, will you respond to that? YUEN:I have no problem with the Commission taking a vote on whether to recommend that to the parties. That€s all it would be, is a recommendation. We can€t force people to engage in mediation. It€s a voluntary effort. I would, on the Department€s side though, since it has been taking us some time to get our contested cases going because of procurement law problems, we would simply go ahead because of the mediation. It wouldn€t change the time frame. VITOUSEK:Good. Thank you. That€s what we€re asking. We don€t want to change the time frame. We€d like to move quickly. Thank you. FUJIKAWA:Okay. 24 SPRINGER:Question. FUJIKAWA:Springer? SPRINGER:In the mediation, would the Planning Director representthe interests of the County, or is it between Mr. Vitousek and Mr. Matsukawa? FUJIKAWA:Mr. Director? YUEN:We€d be willing to participate but it€s up to the parties to see whether they think the Department€s participation is necessary. FUJIKAWA:Graham? GRAHAM:Ijustwanted to ask Mr. Matsukawa if he had any comment, not on thewillingnessofthepeopletodiscussbutontheappropriatenessofthePlanning Commission making such a suggestion? MATSUKAWA:In reality, some form of mediation precipitates or precedes the contested case hearing because the attorneys, at least, confer with each other to identify issues and see what can or cannot be done. What I understand Mr. Vitousek is asking is whether the participants themselves would be willing to engage in a more formal session, nonbinding. I think it€s healthy to the procedure. As to the second question, is it within your authority, I think Mr. Yuen correctly states that you can€t force us to go, but you can certainly recommend it to be done. FUJIKAWA:Any questions? Mr. Alameda? ALAMEDA:So just for my understanding then, it sounds like there were no informal talk story or mediation, if you will, with the applicant and the community. VITOUSEK:There were a number, there had been meetings. The applicants met with representatives of the community. There have been a number of meetings. It€s just that once you get to the point where parties have entered into a contested case and you have a defined number of parties, that€s a good time to sit down and see if we can€t cut through the issues and find some kind of resolution. And if we can€t, fine. But, you know, it€s a very cost-effective approach sometimes. FUJIKAWA:Any other questions, Commissioners? Do you have anything else to say, Mr. Matsukawa? MATSUKAWA:None. FUJIKAWA?Mr. Vitousek? 25 VITOUSEK:No, thank you. FUJIKAWA:Okay, thank you very much. Is there a motion to recommend mediation? SPRINGER:From the discussion that I€ve heard, it seems as though that that€s a standard operating procedure for the parties to engage in discussions such as that. O€TOOLE:Well, I just don€t, they may go ahead and do it anyway. I guess what I€m hearing is that they would like some kind of statement from the Commission that the Commission would also like to see that happen. SPRINGER:Okay. Mr. Chair, I move that the Hawaii County Planning CommissionencouragethepartiesinthisapplicationbyMarkFabyonic,SMA04-005,to enter into mediation before the formal contested case proceedings begin. FUJIKAWA:Do I hear a second? ALAMEDA:Second. FUJIKAWA:Motion made by Commissioner Springer, seconded by Alameda, that this will be going through. Any question? Graham? GRAHAM:I just have one extra comment. I certainly support this motion, but I just want to indicate that from my own perspective of one who is really interested in the coastal resources and water quality that what we€ve received so far on this application is certainly not sufficient for me to proceed to any granting of SMA Permits. So that if the parties here all resolved it, yeah, it€s okay that we have a development of such and such a size and density, that wouldn€t answer all my questions by any means. So I think the extra information to evaluate what has to happen in order to make this palatable to the Ocean community is going to have to come forward anyway. MATSUKAWA:Right. That€s correct. GRAHAM:So the mediation would not suffice. MATSUKAWA:That€s correct. FUJIKAWA:Okay. Thank you. VITOUSEK:Yeah, just by clarification, that€s absolutely understood. The Commission retains separate discretion to grant or deny the permit, regardless of what happens in mediation. FUJIKAWA:Springer, you have a question? 26 SPRINGER:Well, I just wanted to thank Commissioner Grahamfor bringing that comment to us; and that€s quite in keeping with the memorandum we have from the Mauna Kea Soil and Water Conservation District dated April 26, 2004. They raised questions regarding flooding and water quality also. FUJIKAWA:Mr. Thibadeau? THIBADEAU:I can€t talk -. I just wanted to comment I just don€t feel it€s appropriate for the Commission to tell a group of adults how to run their business, and I don€t think it€s necessary that we tell them to mediate their problems. I just don€t think it€s appropriate. For that reason I would be against the motion. Thank you. FUJIKAWA:Any other questions or discussion? Staff. HAYASHI:Commissioner Springer? SPRINGER:Yes. HAYASHI:Commissioner Alameda? ALAMEDA:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:Commissioner Thibadeau? THIBADEAU:No. HAYASHI:Chair Fujikawa? FUJIKAWA:Aye. HAYASHI:Motion carries. VITOUSEK:Thank you. 27 The discussion ended at 10:01 a.m. Respectfully submitted, Sharon M. Nomura, Secretary 28