HomeMy WebLinkAbout2023-04-20 Leeward Exh A (Items 1 D&L Fujimoto PL-SMA-2023-000027) LEEWARD PLANNING COMMISSION
COUNTY OF HAWAI`I
HEARING TRANSCRIPT
APRIL 20, 2023
A regularly advertised hearing on the application of D&L FUJIMOTO LLC (PL-SMA-2023-
000027) was called to order at 1:04 p.m. in the West Hawaii Civic Center, Council Chambers,
Building A, 74-5044 Ane Keohokalole Highway, Kailua-Kona, Hawaii, with Chairperson
Barbara DeFranco presiding.
COMMISSIONERS PRESENT: Barbara DeFranco, Zaheva Knowles, Clement"CJ" Kanuha III,
Mahina Paishon-Duarte, and Michael Vitousek
ABSENT AND EXCUSED: Michael Dela Cruz
ALSO PRESENT: Sinclair Salas-Ferguson, Esq. (Counsel to the Commission), Jean Campbell,
Esq. (Counsel to the Planning Department), Zendo Kern (Planning Director), Maija Jackson
(Planning Program Manager), Alex Roy (Planner), Tracie-Lee Camero (Planner),
Clinton Mercado (Planner), Janice Hata(Zoom host), and Noriko Sauer(Commission Secretary)
And one public member in the audience.
APPLICANT: D&L FUJIMOTO LLC (PL-SMA-2023-000027)
Application to amend Condition No. 7 (public parking requirement) of Special Management Area
(SMA) Use Permit No. 51 (SMA 51)to clarify the management and use of twenty (20)public
parking stalls located on a 1.468-acre parcel situated within the SMA. The subject property is
located makai of Kuakini Highway, along the south side of Hanama Place, in Kailua Village, at
75-5722 Hanama Place, Keopu 3rd, North Kona District, Hawaii, TMK: (3) 7-5-007:033.
DEFRANCO: So, we are right at new business, okay. The introduction of the agenda item, so
this is the applicant, D&L Fujimoto LLC, PL-SMA-2023-000027, application to amend Condition
No. 7,public parking requirement, of Special Management Area, SMA, Use Permit No. 51, SMA
51, to clarify the management and use of 20 public parking stalls located on a 1.468-acre parcel
situated within the SMA. The subject property is located makai of Kuakini Highway, along the
south side of Hanama Place, in Kailua Village, at 75-5722 Hanama Place, Keopu 3rd, North Kona
District, Hawaii, TMK: (3) 7-5-007:033. So, we are going to have a staff presentation from
Alex Roy. Thank you.
ROY: Good afternoon, Commissioners. Today I'm here to present a Special Management Area
Use Permit Application, PL-SMA-2023-27. This is for D&L Fujimoto LLC.
Here is the location of the proposed request. It's a parking area right in the middle of Kailua
Village, as you can see it's Kailua there is the bay, and most of everybody should know where
that is roughly but right here in the center of Kailua Village.
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The applicant is requesting to remove Condition No. 7
DEFRANCO: Excuse me, Alex, will you put this closer to your mouth?
ROY: Oh, okay. The applicant is requesting to remove Condition No. 7 of the public parking
requirement of the SMA Use Permit No. 51, which was approved in 1978. Condition No. 7, for
your reference, states that the public parking, that parking stalls on the makai side of the proposed
building shall be clearly identified as being for public use. The applicant is still committed to
providing public parking at this location but is requesting to adequately be allowed to adequately
manage the use of those 20 public parking stalls located on the subject parcel. A little bit of
background, the Condition 7 seven was set as a requirement of approval for the SMA to develop a
commercial property. During that time, 1977-78, there was a lot of questions about parking in
Kona and for Kona Village, so the intent of the parking requirement was for economic
development. It is not tied to any resource, cultural or otherwise; the intent was to provide parking
for people to enjoy Kailua Village, specifically.
Here is the County zoning. We can see that it's Commercial, Village Commercial, mostly all
around the project area, with some Residential located mauka. The green is Open zone, and here
you can see Hulihehe [sic] Palace; this is the palace
KANUHA: Hulihe`e Palace.
ROY: Hulihe`e, sorry. State Land Use Urban. LUPAG has this as Resort Node, the subject
property, and then mauka would be a Medium Density Urban, and then, of course, you see along
the coast as typical Open for LUPAG.
Here is an aerial photograph. So, I know there is a lot going on here, so I highlighted the subject
property in the dashed line and then outlined the parking area in yellow, so you can get an idea of
roughly where it is within the larger, the larger area.
Here is another shot from the other direction. Again, there is an apartment building here, all
commercial development, with some residential but mostly commercial development surrounding
the area. And you can see, I'd like you to take note of all the parking; there is a lot of space down
here that's given up to parking. So again, outline of the property and then the outline of the
specific project area, essentially the parking, 20 parking stalls.
Here is a site plan that was provided. This is kind of out of the 1978 approval,just showing you a
basic outline, so this is in line with what I just showed you. Here is the parking, 20 parking stalls,
so this is kind of the area we are focused on today.
Here is a photograph from 2017. One exampleI have a few, I just put one example—of some of
the issues the owner has to go through. Here we can see this, you know, vehicle has no tire, it's
been lived in, destroyed, and I believe the landowner had to pay hundreds of dollars to get that
removed as a junk car. But this is one example. And I believe you would have gotten some
testimony showing you a very recent I believe it was on the 18th, yeah there was some damage
done to the vehicles, spray painting, things like that. So, as is often, when something is free and
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unfettered, it gets abused quite readily. Now, not to say that this is an enjoyed, you know,people
enjoy this. And obviously, every picture I've looked at, the parking lot has been full, so it's
definitely used, but we can see that there needs to be some measure of control, otherwise it gets
abused, and things like this will happen. And this is not even the worst picture.
Here is a,just a kind of up-close site photograph of the parking area, so you can see how close it is
to an apartment building. We received some testimony from people who live in the apartment
who noted, you know, issues with what goes on there the common drug deals, loud noises,
breaking in, entering, things like that.
Here is from the other side, so from Sarona Road. You can see the parking lot. I pointed an arrow
to show where that parking lot is, or the 20 parking spaces, essentially. So, the entrance off
Sarona Road, and then there is an entrance off the other side.
Here is the entrance from Hanama Place right at the end there. So, there's two entrances in and
out of this parking area.
So at this time, the Director is recommending that PL-SMA-2023-000027 be approved, with stated
condition, and I'd just like to say why did I not add an "s"because we removed the conditions
from the request and added only one that they have to adhere to all relevant laws that, you know,
they may come across in the future; the reason that we deleted those, all of the previous conditions
is that they have all been adhered to, they've all been completed conditions like, you know, Plan
Approval, other, other issues that would, to put them back up on this new request would,
essentially, they were moot, they are no longer really valid, because, again they've all been
adhered to. So, that's why we went ahead and just deleted all of the conditions along with 7 and
then added just the single condition that they'd have to adhere to all rules and regulations. I can
take any questions at this time.
DEFRANCO: Commissioners, do we have any questions for the County?
VITOUSEK: I'll wait till a motion is made so we can have a discussion.
DEFRANCO: Wise man. Okay. All right, thank you, Alex. Thank you, Mr. Roy. I think we
now are going to have a presentation from the applicant and his representative, Mr. Fuke. I just
have to swear you in and question if you tell the truth today in front of our Commission.
FUKE: Yes, I swear and affirm.
DEFRANCO: And state your name and where you are from.
FUKE: Sure. Good afternoon, Madam Chair, Members of the Commission. My name is
Sidney Fuke. I'm a planning consultant. With me tonight is the applicant—this afternoon,
rather—is the applicant Mr. Darryl Fujimoto, and he is just sitting in the back.
DEFRANCO: Okay, and you've received all the background and the recommendations
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FUKE: Yes.
DEFRANCO: —and do you agree with the recommendations?
FUKE: Yes, we've reviewed the staff's written background report and the recommendation, and I
reviewed it also with the applicant, and he is totally receptive and accepts the recommendation.
We found it to be very comprehensive, and the videos kind of like speak for themselves.
If I may, Madam Chair, I'd like to kind of like just digress a bit and talk about the whole project.
DEFRANCO: Thank you.
FUIKE: But before doing so, I'd like to again offer congratulations to Mr. Vitousek for his
untiring service for the Planning Commission. And quite honestly, you know, he pointed at me,
but it's true like he gave me a lot of sleepless nights, you know, before, appearing before
Commission and even subsequent meetings, but I think that in the end, it forced us to really think
hard, and so in the end I think a lot of good things came about. So, thank you very much, Mike.
So, you'll be missed but in a different way.
DEFRANCO: From the friction comes the pearl, right?
FUKE: That's true. The other thing I'd like to kind of mention, and this is like full disclosure,
because when this permit was approved, I was sitting where Director Kern is sitting, you know, I
was a planning director at that time. So I kind of wanted to give you some background in terms of
how this thing came about, and such that, you know, I don't look like a hypocrite, you know, one
time I say this and now I'm saying another thing, but, you know, hopefully, as I go through the
presentation you'll have an understanding of why,you know, I've kind of like changed my
position, you know, relative to this application, because otherwise I wouldn't be here because it
would be too hypocritical. Anyway, like in 1975 the State passed the Coastal Zone Management
Act, and that was that kind of like emanated from the federal government; the federal government
said, look, State, if you pass this Coastal Zone Management Act, then we'll give you guys a lot of
funds to implement and so on and so forth. So, it was kind of like, like an incentive for the state to
pass the Coastal Zone Management, and so a number of coastal statesAlaska, California,
Maryland, Florida they all adopted the Coastal Zone Management Program. So, in 1975 the
State adopted it, and then it in 1976, which is a different matter now, as part of the planning
program, we developed and then ultimately was accepted by the Commission this Kailua Village
Design Plan. And in that Kailua Village Design Plan it had earmarked this particular area, not
necessarily this parcel but portion of this area, to be set aside for so-called public parking use, and
the reason being like, you know taking you back again into like the early 70's in Kailua that
area was bustling with a lot of tourists but never had any parking. Since that time the County
acquired some properties, and then they have a public parking area, you know, in the vicinity of
Kailua, but anyway, that's the Kailua [Village] Design Plan that was adopted in 1976. So then in
1977, pursuant to the State SMA law, there was a requirement that the county must establish
where these boundaries are going to be, your SMA boundaries, and establish all of those rules, and
so by June of 1977, the SMA boundaries were adopted. The boundaries, when they were adopted,
they had said like initially it could be like 500 feet or you could look at major highways, and so
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what happened was that when you looked at the major highway approach, you know, we had
this is when I was sitting where Zendo is sitting you know, we looked at Queen Ka`ahumanu,
and we said use that as a benchmark, you came into Kailua, and then you continued on to Kuakini
Highway, and you went all the way to Keauhou, and from Keauhou then the line kind of dropped
down, you know, to like about a thousand feet. So anyway, that's the SMA boundary in 1977.
So shortly thereafter, the landowner submitted their plans to construct a supermarket—actually, it
was Foodland—so Foodland wanted to build a supermarket over there, so they come in with their
plan, but to and behold now, they are in the SMA. Had they applied like before June of 1977, they
would not have had to deal with this kind of SMA type of issues because it was permitted within
the Resort Zone. But the rest is history, and SMA was required. So in June, excuse me, in
January of 1978, one of the first SMA, Major SMA Permits that were approved by the Planning
Commission was this project, and so, me sitting where Zendo is, and it's like, well, the Kailua
Village Design Plan talked about like we should have some parking, you know, here and there, so
I said, you know, that would be a good idea if we can convince the developer to provide parking in
that area, and so the developer said fine, you know, like on the makai side, we'll reduce the size of
our supermarket, and this makai portion which consists of approximately 10,000 square feet, we'll
set aside for public parking. Okay, so what happened was that when the SMA was approved, that
condition became part and parcel of the project. So, anyway, so if you look at the background
report, it says like the condition was the parking stalls on the makai side of the building shall be
clearly identified for public use. The rationale that was given for why it was that condition, was to
enhance the economic development of Kailua while providing partial solution of the parking
problems in the area; so, there was no direct correlation between the SMA objectives policies but
just say it's something that's needed in the community in that area. So anyway, like in 1979 the
project has completed, Foodland moves in, the 20 public parking stalls, and for over 40 years what
has happened is, like you've seen like some of the photos, you've had like abandoned vehicles,
vagrancy, homelessness, drugs, trash, security, vandalism, and then for some they've kind of
privatized the stalls. There's some condos over there, so even they park there assuming that that's
their stall, you know. So, anyway, so this is the situation where the prior and the current owner
have had to deal with all these 40-plus years.
The current owner acquires the property in September of 2021 that's about two years ago, and
then he still allowed the continued, you know, the continued use of that area. Then he brought up
all these issues to me, and he said like, you know, we've got to have some control, we cannot just
say let the public or whatever use, and then look at all of this, I've had to bear the problem of
removing these abandoned vehicles, I've had to pay the insurance, I've had to assume all the
liability and all of this, and I've had to pay the real property taxes, and the County has not been
paying me a cent. So, the question is like, was it fair? So, when he approached me and, you
know, told me in different ways, not in that manner I'm describing it to you, but he said like oh,
so, then I thought about it, I said yes, you know, since 1977 to 78 when that decision was made to
now, we've had a lot of judicial decisions made, which have kind of provided the focus in terms of
what discretionary bodies or agencies like the planning commission can and cannot do. And one
of the major ones that relates to the County Planning Commission activity was Topliss versus
County Planning Commission in 1993. So this is a property out, you know, by Kona Seaview,
commercially zoned, the guy comes in with the build but you remember I told you like that
SMA line was all the way up to Kuakini, so he was right at the corner of Kuakini and the Sunset, I
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forgot the name, but right in the commercial zone—he comes in with a two-story condo-
apartment complex. Well, the Commission hears all this issue about traffic, you know, from the
neighbors and all that stuff—this was before the traffic lights over there—and so, the Commission
denies it. So, on appeal, the Intermediate Court of Appeals basically told the Commission there
was no rational nexus between a traffic issue and your SMA objectives, and so basically said like,
Commission, you went beyond your boundaries. And so that was the Topliss decision again in
1993; it's a decision that wasn't there when I was the planning director. Then the other one was
like, you know, the second issue was like, you know, this whole notion about takings. Takings is
like when you require a public use of a private property without just compensation, and that would
be a violation of the Fifth Amendment of the Constitution. And since then, you know, like since
1978 there were two significant judicial decisions. The first one was what is called Nollan versus
Coastal, California Coastal Commission. California Coastal Commission is equivalent of the
Planning Commission all pursuant to the CZM law. So in 1987 this guy wants to build, get on an
old bungalow, it's a shoreline property, he wants to tear down the building and build a house, so
the planning commission said like, oh, you know what, there is a shoreline access and all that
stuff, but if you build that, it's going to block the view and it's going to have like a psychological
impact on people not wanting to use the shoreline because, you know, we cannot see. And so the
commission then essentially said like, okay, to offset this burden, we are going to require a lateral
public access on your property this is in Ventura, California—so the guy said like, oh, and went
all the way up to the Supreme Court, and the state,the U.S. Supreme Court said you know what,
there was a taking, there was no rational nexus in terms of what you required and, you know, the
impact of that project. So, that situation was pretty much similar to the Topliss one except that
Topliss related to the State of Hawaii; this one was in the State of California, so U.S. Supreme
Court decision. The other one was Dolan versus the City of Tigard in Oregon in 1994, and here
like it wasn't a shoreline property, but the guy was trying to build something along this public, you
know, this greenway along a riverside, and then the decisionmakers at the time of building permit
says like, you know what, you have to provide these public pedestrian pass all way along this
coast, you know, along this riverbank area. So, the guy appeals, and then the state, or the U.S.
Supreme Court, they say like, well, you know, I think there is some basis for like the drainage
issue but in terms of like the right for the public to get access all along the shoreline, I mean not
sure line but that greenway, it's kind of questionable. So, they introduced the concept of if there is
some impact, then it's got a, your exaction has to be proportional to the impact; you cannot just
require whatever, you know, but it has to be proportional. So those two are landmark judicial
decisions that essentially codified, not codified, established the principle of, you know, when it
relates to whatever you are going to require as condition, first of all, rational nexus, is there a
relationship? Secondly, then if there is a relationship, you can determine there is a relationship,
then what is the proportional obligation?
The other reason why I've kind of thought about it and think like why, you know, the staff's
recommendation is on point, it's like the whole notion of, and I've kind of mentioned this earlier,
it's about equity, fairness. So this guy, and it's not Foodland but it's Foodland then, big corporate,
and now this guy owns this building, but put yourself in their position, say you have the property
and 10,000 square feet of land, and the government tells you you cannot use it, you've got to pay
taxes on them, you've got to maintain it, you've got to assume all liability. And that's what, that's
what this condition did, that's what this condition-. So, I think if I put myself in that shoes for my
house, and they tell me I've got to do that, I would say that's totally unfair, you have to pay me,
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Government, if you want that established for the public, then somebody's got to pay me. So, but
the County hasn't paid. There is no relief in the real property tax; he pays the real property taxes
as though that's all commercially zoned.
So, anyway, the last, the last thing I kind of want to impress upon, you know, this body is the
whole notion of precedent. I know that, you know, when you look at all the decisions that
Commissions have made relative to coastal properties, they've addressed things like public access,
but public access for the most part to the shoreline have related to properties that are adjacent to
the shoreline. In this situation here, you've got to ask yourself like, you know, this is Hanama
Place, it's not a coastal, it's not a shoreline property. So, the question then is like there is really
like no need for a shoreline access over there. There is no historical trail that shows mauka to
makai that a portion of this historical trail goes through this property, no. So, a question is like
there is no public, you know, there is no access requirement—then the question becomes like,
well, what about parking then, you know? So, I said like, well, if you look at parking, you know,
will the Commission require parking for all shoreline, you know, all SMA applications whether
it's for single-family dwelling, commercial, condo, whatever have you, along the shoreline, you
know, will you require parking, and if so, how many parking? This is not to say that it's not
unusual to have parking as part of an SMA requirement. You look at all of the major resorts up
and down the coast, Mauna Lani, Mauna Kea, Kohanaiki, Kuki`o, Hualalai, they all have public
access, and even Hokuli`a, they all have like public access requirements, and they all have some
parking, but you've got to look at the magnitude of the project. So, that relates to the impact; what
kind of impact is that project doing that generates a need for access, that generates a need for
parking? So, I ask you all to look at this and ask yourself like what is it about this project that he
should be burdened without compensation10,000 square feet of land that you can put up a few
homes, you know, homes or maybe an office building and generate some revenue, you know
where is fairness in all of this? So, that's kind of like my pitch. And at the end of the day, you
know, he this is Mr. Fujimoto, and he can come up and affirm but he said he still wants to keep
it parking, but he wants to be able to manage it. Managing it means like it's going to put up like
whether it's going to be managed by Diamond or whomever, so there can be some control, and
there can be some amount of revenues generated to the point where he can help with the
maintenance, you know, of the, of that area. So, in terms of availability for the public, yes, it
would still be available. The question is like you might have to pay a little bit.
So, and with that, I say thank you and will be happy to answer any questions.
DEFRANCO: Thank you. I have a question for you, though. So, in all this time that they've had
it, they've never done anything themselves to protect the parking lot? Because it's public parking,
they can't put up paid parking right now? I mean what's stopping them from
KANUHA: [Inaudible microphone on mute]
DEFRANCO: But wait, I'm going to ask him.
FUKE: They haven't exercised controls
DEFRANCO: Yeah-
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FUKE: —because—
DEFRANCO: because you are not allowed.
FUKE: something that has to be available 24/7.
DEFRANCO: To the public.
ROY: I could speak to a little bit about that.
DEFRANCO: Okay.
ROY: I did a timeline kind of going back through, and starting in 1987 was the first time the
landowner requested, you know, some kind of measure of control, and throughout the years the
Planning Department and the Mayor's Office in fact reiterated that, and I'll just read some
excerpts. Here is a good one from September of 2000 from the Mayor's Office, "vehicles parked
in the area should not be towed away nor should patrons parking in those stalls be required to
pay." This is based on the condition, so, that was everybody's interpretation of the condition over
and over again up until 2017. Deputy Director Darrow wrote again, again, you know, the parking
stall should not be chained off, developed, and that, without coming back for an amendment. So,
the County reiterated again and again over the past 30 years that the condition stands, and the only
way to kind of change that would be to come back to where we are today. So, it really wasn't the
fault of the landowner; it was the County kind of reiterating that stance through official
correspondence that, yep, condition is unfettered free parking for the public.
DEFRANCO: Thank you. And so, one more question too just so I understand: The actual parking
lot, it sort of connects to a different road, right? This, isn't it sort of a connector that you can drive
through and get back to Ali`i Drive
ROY: Maybe we've got a map.
DEFRANCO: up to Kuakini.
FUKE: I think that road is called Hanama Place.
DEFRANCO: Yeah, Hanama Place, right, but then
VITOUSEK: And then on the back side Sarona Road.
DEFRANCO: Sorry, what?
ROY: Sarona Road.
VITOUSEK: It connects to Sarona Road on the backside
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DEFRANCO: Sarona Road on the backside
VIOTUSEK: Yeah.
DEFRANCO: Okay.
ROY: [Showing a map on the screen] So, this is Hanama Place here and then Sarona Road over
here—well, let me zoom in, I've got a couple. Here is Sarona Road, the entrance, it's a one-way.
DEFRANCO: Right, so the parking lot goes to the, Hanama to Sarona.
ROY: Yeah, it does, it spans and then goes all the way. And here is the other side at Hanama
Place, which is a two-way.
DEFRANCO: Right, so it's, become a useful thing for the community in a way of connecting
those.
ROY: Yeah, they can drive through the parking lot.
FUKE: Yeah, it's actually sandwiched between those two roads.
DEFRANCO: Yeah, thank you. Do we have any other questions at this time?
KANUHA: One question
DEFRANCO: Okay, yes.
KANUHA: —for the applicant in regard to parking and Diamond. Would you be willing to
entertain like what Parklinq did with the Kimi family? They gave 90 minutes free to the local
community, after that you are able to park in there, rather than just having a full-pay parking
situation. I know that's a lot of a big question of our community asking and taking back
something that's been there for so long. It's going to be, you know because I feel for what you
want to do, I see it, I see the vandalism, I see the people abusing that parking area, you know. Us
as patrons if you just want to go down to grab lunch, you can never get parking because I know
people in the condo use it as their extra parking stalls and whatnot. And would you be open to
that?
FUJIMOTO: For 90 minutes, it would be hard to police that, you know, because we don't have a
fulltime
KANUHA: Yeah, with Parklinq, they have the, they have the guys already set up. Same as
Diamond. Diamond is next door. I think you guys might use Diamond already on your guy's
property.
FUJIMOTO: Yeah, we currently use Diamond, but I'm not totally, you know, committed yet.
There is another parking, Parklinq,just came on board
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KANUHA: Yeah.
FUJIMOTO: —and they have like video cameras where it's policed a little bit better, so I might,
you know, consider them, too, so.
KANUHA: Yeah, that was just a question, because I know that would be a, you know, the
community would bring that up in a heartbeat, they would ask how come this guy, you know. I
commend what you did with that building. It looks a lot nicer than it's ever looked
FUJIMOTO: Yeah, I try my best.
KANUHA: Yeah, yeah
FUJIMOTO: This is one of the last things I need to do, so, yeah, I, it's going to cost me a lot of
money to repave it and stuff like that, and I know that, you know, that's going to be coming out of
my pocket, but I just wanted to try and keep it nice after that, you know, without having more
vandalism, is why we are asking for this, so, as much as, well,parking that we can charge to
subsidize that would be helpful for us.
KANUHA: Oh, yeah, definitely. I know that was something with the Kimi's when it came up,
they shut it down, and they brought the 90 minutes in
FUJIMOTO: Exactly, exactly.
KANUHA: brought the 90 minutes back in just because they did have a hard time, and they
were required by, to provide public parking. With public parking, it can be paid, but, you know,
they heard the cries from the community, and they went to that 90-minute, and that was just
something I was wondering if you are open to
FUJIMOTO: Ninety-minute is a little bit too much, you know. I'd be like open to maybe 20
minutes, you know, for somebody to come and grab lunch or something like that, but 90 minutes
like somebody come in there and park and they come back for another 90 minutes, you know,
what I mean? It's really hard to police that.
KANUHA: Yeah.
FUJIMOTO: I'd rather not have any restrictions, if possible, but I'm going to still open it to the
public so that the public can park, you know, there. Because it's really close, you know, it's only
300 feet away from Ali`i Drive, and once you come out of Ali`i Drive to Sarona, and you walk
that backway, you are in the center of, Kona Inn is right there, so it's a really convenient place for
the public to park, and we have no objections to it. And the public has been parking closer to the
road, Ali`i Drive, as much as possible because they don't want to walk up on the hill, even though
there is parking around that area that controlled by Diamond, there is a lot of parking, but not too
many people park on the upper side because, you know, people don't like to walk up hills. So, our
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place is really convenient, so for the convenience factor, I think that would, you know, would be
feasible for them since it's closer, and I'm going to open it up for them, too, you know.
KANUHA: This is a question I want to ask. They know that would be
FUJIMOTO: No, no problem, no problem at all. I do think that's, you know, a win-win situation
for both. I try to look at win-win situations for all, you know, the public and us.
KANUHA: Thank you.
FUJIMOTO: You are welcome.
DEFRANCO: You are planning to keep it as parking.
FUJIMOTO: Yes, I am planning to keep it parking and open to the public, you know, I want to
because, you know, the restrictions in the parking like how Uncle Billy's a lot of parking went
away from there, and a lot of people got mad, and a lot of people work in the, you know, the local
people, so I want to, you know, leave it open to the local people also. And if they want to do like
monthly passes if people work there, you know, I want to give them a good deal on it, too. But I
also don't want to be taken advantage of after 40 years of free parking. That's a lot of parking for
40 years, and we've been maintaining, you know, the property for that long and paying property
taxes for 40 years and never got exemption not me, but, you know, the prior owner, but I'm
doing it, too, now. So, we are just trying to minimize the effect but maximize the use.
DEFRANCO: Thank you.
FUJIMOTO: Sure.
VITOUSEK: But you did buy it, knowing this condition existed, correct?
FUJIMOTO: I did buy it knowing this
VITOUSEK: Okay.
FUJIMOTO: condition existed, yes.
DEFRANCO: Commissioner Knowles.
KNOWLES: Just in my experience even the paid parking lots there are struggling with this issue
of public safety and vandalism. What is your theory on why this change would have an impact?
FUJIMOTO: Well, I'm going to put security cameras now. We just got vandalized a few days
ago. So, being that I'm going to have cameras on both sides of parking lot, I think that would
discourage more vandalism now that we have people on camera. There is no security out there
whatsoever right now. So, I'm planning to put cameras on both sides of the parking lot so we can
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see people going in and out at all times 24 hours. So, if any vandalism occurs, you know, we'll
have them on tape.
DEFRANCO: Do we have more questions? [None] All right, so then we are going to needoh,
one more question.
KNOWLES: And are you thinking about sort of comparable market rate
FUJIMOTO: Yes, it's going to be comparable.
KNOWLES: of what downtown KonaI think I parked there a couple weeks ago, and it cost
me twelve dollars for half an hour.
FUJIMOTO: In our place?
KNOWLES: No,just like in the
FUJIMOTO: Yeah
KNOWLES: in the public parking lot in Kona.
FUJIMOTO: —it's not in our place, so. We are going to be competitive whatever the market is.
KNOWLES: Okay.
DEFRANCO: Okay, there is no public testimony still? Okay? So, we need a motion for action to
discuss.
KNOWLES: I move that the application for amendment to Special Management Area Use Permit,
Docket Number [PL-SMA-] 2023-000027, be approved based on the Planning Director's
recommendation, which shall be adopted.
KANUHA: Second.
DEFRANCO: Second by Commissioner Kanuha. Okay, now we can discuss it, with questions.
Commissioner Vitousek.
VITOUSEK: Thank you. Okay, I use this parking, along with lots of other people who are using
this parking in order to access the coastal zone, surfing, fishing, those other things where there
isn't a long time period, long, I mean heavy fees for parking for a long time. You can park here,
you can go down to surf, fish, in the bay when Honl are in. I'm concerned that if you look at this
as assessing it against the SMA criteria of adverse effect, this would meet [Planning Commission
Rule] 9-10(h)(2), which could curtail beneficial uses of the environment. So, for us in the
community who are using this to access the ocean, which as you stated is 300 feet away, along
what I consider a historic trail, Sarona Road, I see that there is a profound benefit to the
community and to the coastal zone to having free parking for community members. That said, I
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EXHIBIT A
wouldn't fault you on trying to regulate that. I just would want to know more about the plans that
will be put in place to regulate that. In other properties we usually see something like a public
access and parking plan that would indicate what the strategy would be that will maintain the
beneficial use of the coastal zone but also providing the control that the landowner needs. Is that
something that you guys would be willing to consider, preparing a parking plan?
FUKE: Well, as Mr. Fujimoto had indicated, like in terms of the ability to control, manage it, I
guess he is just like whatever is the prevailing, you know, like parking controls that's in this area,
you know, in this particular area. You know, I think in response to Commissioner Kanuha's
comment about whether it's going to be, you know, 60 minutes or 90 minutes, you know, gratis
for 20 minutes, I mean, these are the, you know, the so-called devil-in-the-detail kind of stuff that
he still has to kind of work out balance write-off against in terms of, you know, if he is going to
hire someone like Diamond or put in those lights, he has to figure out what the cost is, you know.
So, it's kind of like a work in progress in terms of like how he is going to be implementing it. I
think the critical thing is like whether this area is going to be set aside for public use, whether you
have to pay or not, for public use, and then he is already made that commitment; it's going to be
for public use. You know, it doesn't say like whether, you know,paying or not paying.
I think the other thing, you know, it goes back again to my earlier presentation about, you know,
the rational nexus. Twenty parking stalls, 10,000 square feet in perpetuity for public use without
any compensation, where is the equity in that?
VITOUSEK: Yeah, I mean I look at it as the entire area being within the SMA and being
developed. We are looking at cumulative impacts from individual developments that have created
so much development in an area where it has limited the public's ability to utilize the coastal zone
because there is limited parking. And so, for this particular one, which you had the foresight of
approving back in those days that created public parking to allow peopleI mean the stated
intention at the time may have been for economic reasons, which may exist—but it also has served
the purpose of allowing parking for residents to access the coastal zone, which, whether stated or
not, is a beneficial use of that area. And as you stated, in other areas where you have development
in coastal zones and public access, there is generally a public access plan that is followed.
FUJIMOTO: Could I say something?
VITOUSEK: Of course
FUJIMOTO: Okay
VITOUSEK: up to the Chair.
FUJIMOTO: the reason why we want more controls is, yeah, it was meant for that, but because
of things that have changed with the homeless, the drug addicts, and abandoned cars, the people
who are supposed to access don't have access. The condo next door takes up sometimes half of
the stalls, so the Kona Plaza uses half of my parking lot most of the time. So, the people that was
meant for doesn't even have the access to the parking. So, what you are trying to do and do free
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EXHIBIT A
parking, it would still be abused unless I have the control over it. So, that's the whole thing we are
trying to get away from.
VITOUSEK: Sure. And what I'm suggesting is that you guys create an actual plan, you know,
Mr. Fuke said the devil is in the details, and I think those details
FUJIMOTO: The plan, the plan would be just, be just like
VITOUSEK: Hold on, hold on.
FUJIMOTO: Okay.
VITOUSEK: I think those details are important. So, I think that being able to identify how you
are going to control the parking, who is going to have access, how are you going to be able to do
that, that's important for landowner, and I get that, I think you should have that. But it's also
important for the public access. So, I would want to have a condition in here saying that you
would prepare a public access and parking plan that would be approved by the Director.
KNOWLES: Can I jump inhere?
DEFRANCO: You can in just a minute. Are you finished, Mike?
VITOUSEK: Sure.
DEFRANCO: You are saying that I just, you know, wanted to make it clear, Mr. Fujimoto, we
are here to really listen to everything so that we can understand it. So, respectfully, you know, we
are trying to make this correct also for Kona, for you, for the County, for everybody. So, you have
to bear with us a little bit to ask questions that are not easy
FUJIMOTO: Oh, no, no problem. Sorry [inaudible crosstalk]
DEFRANCO: sometimes. But, you know, our concerns is we sit here, we listen to what people
say, and we want to believe everything that we hear. But, you know, without a plan in place,
without some kind of commitment like that, you,we could say, oh, yeah, let's take this out, and
you could do anything with that parking lot that you wanted if we took it out of SMA like this, you
know. I'm, I think it is a good thing to question that we have to be careful here, so just bear with
us as we ask these questions.
FUJIMOTO: Sure.
DEFRANCO: Okay. Commissioner Knowles.
KNOWLES: Yeah, thank you. I agree. I think one of the concerns, too, on the, along the takings
argument, which is, I understand that application,but I think, you know, part of this access
requirement with parking and other coastal zones, obviously, that's something we should do to
preserve the public access, but this idea around the takings, I have a question because it seems like
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EXHIBIT A
he has a valuable piece of property that he's got parking stalls for, there is a benefit to the
landowner; theoretically, he is getting compensated for, I mean he is not getting direct payment,
but patrons of his business or his building parking stalls arguably. So, it's a little bit attenuated for
me. I mean not that we are tasked with that, I don't think, but I am, it's a little bit tricky, I think,
because you are basically saying he has no benefit in that lot.
FUKE: So, if I can respond just generally to that. Like if, if this were like part of the basic
parking requirement, then that's one thing, you know, to be able to control, even to be able to
assess, you are going to be wondering like why should you assess parking for something that's
already required. He already has the required parking on the mauka side of the building. This is
all extra. This is not, this is not part and parcel of the project's requirement. This is a requirement
that came about as a result of the SMA condition. So, it's, you know, if you want like, you know,
it's hard to come up with a specific plan right now, but, you know, because as I mentioned earlier,
it's kind of like evolving, you know, he has to look at the cost considerations. The original, when
we submitted the original request, the request was initially intended to enable him to exercise
control to the point of being able to have some fees assigned to that to neutralize the cost. He did
not want to have like the total deletion. And I spoke to him earlier, and he said like he is willing
to go back like to exactly what we had proposed in our application, and that application called for
the retention of that and just saying appropriate controls, which may include fees to address public
safety enforcement, and its maintenance may be instituted by the owner and/or operator of this
parking area. So, that makes it clear that, number one, it's going to be set aside for parking, so
fulfill directly or indirectly, you know, but, you know, Commissioner Vitousek was talking about
like coastal objectives, okay, so, and number two is the ability to exercise control that was
primarily what his primary intent was, as I think your staff, you know, Alex Roy kind of pointed
out, you know, up until 2017 he said unfettered control, and that led to all these kind of problems.
So, he said give me the ability to control, I'll still have it set aside for public.
KNOWLES: And I guess that is the question, right, because he owns the property, but he is not
able to enforce any controls.
FUJIMOTO: Exactly, exactly.
KNOWLES: Which is yeah.
DEFRANCO: Commissioner Vitousek.
VITOUSEK: Sure. I just want to reiterate that having a public access and parking plan is what
gives them control that doesn't step on the beneficial use by the public, having these mutually
agreed upon terms of a plan that we can all agree, says, okay, this is how they can regulate parking
and still provide the beneficial use of the SMA.
As far as the taking now, I'm not the attorney, maybe Sinclair would weigh in but I don't think
we can argue a taking in a case where the owner purchased the property knowing that the
condition exists, and that the condition was agreed upon by the previous owner. It's not like
something that was imposed on them.
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EXHIBIT A
KNOWLES: And we are not taking it away now.
VITOUSEK: But nothing is being added, right? This condition exists as was agreed upon
previously. This applicant purchased the property, knowing the condition exists. There is no
taking. This is an agreed upon condition of the SMA. It's just from here, can we make out a plan
that works for everybody? And I think that the best way to do it is through the plan.
Also, last thing I would add, as far as deletion of the other conditions, some of those conditions, I
think you can change the wording a little bit but not delete, like Item 3 calls for the petitioner shall
submit a landscaping plan to the Kailua Village District Commission for its review and
recommendation; I'm assuming they've already submitted that plan, so what we would leave on as
a condition is complying with the approved plan. Would that make sense to the Planning
Department and the applicant?
FUJIMOTO: As far as satisfying the conditions?
VITOUSEK: Yes, as far as continued compliance with the conditions, the existing conditions.
FUJIMOTO: We have no problem with that. We want to, you know
VITOUSEK: Yeah, yeah.
FUJIMOTO: —keep it looking nice.
VITOUSEK: Would that make sense to you, Director Kern?
KERN: I agree to what you are saying. I don't think it's necessary. I'm not, if it stays, it's not a
big deal for me one way or another on that one. He has to comply with our landscaping rules, all
the other rules and regulations that are currently in there, and if he were to come in to change
something, he would still have to comply with those rules. So, by deleting those doesn't take
away compliance with current rules and regulations or what was previously done.
VITOUSEK: But I mean my reading of it is there is a specific landscaping plan that was approved
for the property, right?
KERN: And that's in his Plan Approval.
VITOUSEK: That's in the Plan Approval, so they would have to continue to comply with that.
Okay, that's
KERN: That's right.
VITOUSEK: that's all, I think. And to me it makes sense to leave it in there in case they
decided to go cut the trees down for whatever reason or, you know, another, he sells it to
somebody else and the other applicant goes like, oh, I don't have any landscaping requirements, I
can do whatever I want.
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EXHIBIT A
KERN: And that's where the blanket condition at the bottom comes into place,just like if you are
dealing with a property that's outside of the SMA,they still have to comply with those rules even
though there isn't an explicit condition within an attach, adjoining permit.
VITOUSEK: Right. I just feel like, again, that having that as a condition, seeing that you have to
comply with your landscaping plan, leaves little doubt, and that it gives whoever would acquire
the knowledge that, okay, there is a landscaping plan that exists that I have to comply with.
KERN: Like I said, I don't, I'm good either way on that one.
VITOUSEK: Okay.
DEFRANCO: So,just that, you know, I'd like, Mr. Fuke, the proportional obligations that you
spoke of, and trying to understand like in the history of this, you know, I understand why it
happened, and I do understand that he bought it as is, but I do look at this as he is trying to also
look what's happened to the dynamics of Kailua-Kona and trying to make a parking place that's
safe, that's clean and is trying to come to some kind of reasonable conclusion, and I think that the
way that theyI'm not sure if there is a way to meet in the middle, I mean it's almost like if it's a
public place, then he can't,people can't, he can't charge for it because it's public, right?
FUJIMOTO: Right.
DEFRANCO: So, he can't do anything about the cars being left there or anything being done
there, because it's public, he can't do that. Now, he and the people before him and everything,
this has been offered to Kona this whole time as free parking, right, and now it seems like, it
makes sense to look at this again and to see if he gets what he is asking for is to take away this part
of commitment as a public parking and privatize it. Is that right? Am I on the
FUJIMOTO: That's correct. But still offer it to the public.
DEFRANCO: Yeah, and still have public parking
FUJIMOTO: Exactly.
DEFRANCO: coming from a private place. And it's right, you know, you go to have lunch
down there, and someone, some people charge twelve dollars for 30 minutes, you know, while you
are, you know. So, it is all of us trying to digest really what you are asking because those are
some of the few free parking spaces available down there. But we also have the vagrancy
happening and the vandalism happening and the drug addictions happening, without being able to
do something about it. I don't know, maybe the community has moved this to the place it is right
now that we have to look at changing it to protect the community.
FUJIMOTO: It's not safe over there. A lot of people are not, they don't want to walk down there.
But I fixed the lights, the lights were broken before, so they feel a little bit safer. But the people in
the condo right next to it, like you see
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EXHIBIT A
KANUHA: So,just a comment
FUJIMOTO: —sent a testimony
KANUHA: comment on
DEFRANCO: One at a time.
KANUHA: Oh, sorry. Comment on what you are saying, too. I think there should be some
middle ground with that, because what he is saying is he is holding a lot of liability of what's
going on—we had an old lady that was beat up in Kimi's parking lot and abused and, she was, she
was beat up. One of our workersI own a restaurant that's opening in Kona Inn, I own a bunch
of different stuff—but they have a hard time, and they don't feel safe walking through their cars at
night because of what has happened in our town. And so just to be able to police it, with that, I
think that takes liability off the County. Am I correct? And liability from him just so he can
actually be able to take it on with that public parking. But seeing some middle ground what needs
to happen, and that's why we are on a discussion right now.
DEFRANCO: But did you ask Sinclair for
KANUHA: Correct? With his, would it be true, he retains all liability if anything was to happen
on there in those public stalls?
SALAS-FERGUSON: It's hard to make a general statement on that. There would have to be
facts to look at.
DEFRANCO: Commissioner Vitousek.
VITOUSEK: Thank you. So, what the applicant is requesting is deleting the requirement for
public parking with no replacement, right, which gives them there is a general commitment
saying we want to allow parking, so, to me, that's here, and our option of saying no is here, we are
keeping it exactly as it is. And to me, middle ground is a plan that gets prepared and submitted
and approved by the Director. To me, that's what the middle ground is.
KNOWLES: I agree, and I think there is this strange question about, there is this requirement that
it's public but then he sort of, then the County is saying we have no responsibility because you
own it, but it's public. It's a very, it's an interesting dynamic that we are because I'm thinking,
well, what would prevent the applicant from posting signs that you are, you know, you are towed
at your own expense and putting up a couple of cameras that's a minimal expense. I guess I'm,
I'm a little bit confused about exactly coming from this side all the way to this side and not saying,
well, I put some signs up, I put some cameras up, and that's it. You are basically wanting to
generate revenue to help you offset property taxes or other expenses or, I'm just
FUJIMOTO: Not only that but to clean it up, keep it nice like the rest of the building is. You
know I put a lot of money into the building; I painted it, I put new roof, remodeled the bathrooms.
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EXHIBIT A
And I want to continue to make Kona Center a nice place. It used to be an eyesore. Now, you
know, it's come up a lot. And this is the next step in order to move forward to complete my
renovations, you know.
KNOWLES: Excellent.
FUJIMOTO: And, and to make it safe.
KNOWLES: Then I agree, Commissioner Vitousek, that what we, what would be beneficial for
us, Mr. Fuke, is a plan from the applicant, not a theoretical sort of idea of what he has and is
thinking about.
FUKE: Maybe before I respond to that, can I I didn't quite understand, you know, your
response, Mr. Ferguson, you know, in response to Commissioner Kanuha's questionso, will the
retention of this condition expose the County in any liability?
SALAS-FERGUSON: So, that's, will the retention of this expose
FUKE: Existing condition. Assuming there is some issues, you know, like will the County
expose itself by the retention of—because the County is requiring this Condition.
SALAS-FERGUSON: It's been required.
FUKE: Well, it was like 30 years or 40 years ago, or even today the request is made, so, you
know, it's kind of like a reinforcement
SALAS-FERGUSON: Not really, I think I differ on your interpretation of, you know, the whole,
you know, whether all that case law you talked about applies retroactively. That's a whole, this is
all very complex areas of the law, and that's why I responded to Commissioner Kanuha's
question, saying that in order to make a legal decision based on a fact pattern, I need very specific
facts to make an opinion. And so, your question you are not my client, the board is my client I
don't really understand your question. I'll entertain your question, you know, as much as, so ask
the question again, and I'll give you a
FUKE: You know, like I know that
SALAS-FERGUSON: off-the-cuff opinion.
FUKE: on State Law, you know, when you require public access, there is some amount like, I
think there was a provision that absorbs the landowner of responsibility for the public access in
case there is any lawsuits associated with setting aside the access. My question is like does it
necessarily apply to a parking lot? There is a requirement that's imposed by the Planning
Commission.
SALAS-FERGUSON: Liability in what sense? Like if somebody falls down and gets injured, is
the County going to be liable for that person falling down [inaudible crosstalk]
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EXHIBIT A
FUKE: [Inaudible crosstalk] any control and all that stuff. They are the landowners. So, it's
like
SALAS-FERGUSON: Yeah
FUKE: if somebody comes to your property and then they fall down, you know, so
SALAS-FERGUSON: So, that's a very, yeah, as you knowI don't, you are not, are you a, I
don't know if you are a lawyer, I cannot remember, I know you are the former planning director
but legal minds differ on all of these very factual complex situation. So, the thing you mentioned
about, you know, who is liable for certain access issues and all that kind of stuff, that's a whole
separate body of law, and it depends on that whole area, this, you know, various categories
involved in that whole premises liability area of the law. So, with this, there is a lot of gray things
happening that had happened when you were the planning director at the time with this, and there
is a lot of great stuff happening today with this decision. But to answer your question whether or
not the County has liability, we don't know until something happens, and the lawyers and judges
will decide it at that time. Potentially, the County is always liable, but right now it's owned by
him, and there is a condition that he provide public parking. And in the past, as you said, and I
think Alex said that the County has interpreted that to mean that the county, the public, has
unfettered access to that parking. Whether or not that's true today, I don't know, I haven't looked
into it, I haven't provided a legal opinion on it. There is a different Mayor, there is a different
Corporation Counsel, there is different lawsI'm sure the laws have changed since three years.
So, I don't know is answer to your question. I have to look into it, but potentially, yeah, you
know, possible.
KERN: If I may, Chair?
DEFRANCO: Yes.
KERN: I think part of that question is, does the same State statute apply to this public parking that
would require, that would apply to a public shoreline parcel, right,public shoreline access? Jean,
would that be
CAMPBELL: I can jump in a little bit. I think what you are referring to is our recreational use
statute, and that is a, it's a, I think it's Chapter 520, although I will admit, I didn't open it up, I
think it's Chapter 520 in the Hawaii Revised Statutes, and it allows that—it was put in place
years ago to encourage landowners to open up property for recreational uses. I'm not aware that
any court has considered the recreational use statute for something like a parking lot. Its intent
was to open up, like Zendo said, shoreline access, mountain trails, those kinds of things. And so,
it talks about the public use for recreational purposes. And like I said, I think it's rather, the whole
chapter is rather untested in our courts, so there is a lot of uncertainty with regard to it, and so I
don't think any of us could answer nor do I really think it would be appropriate either for us to
answer about whether it would provide any kind of protections for a parking lot.
VITOUSEK: Okay, so
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EXHIBIT A
KERN: Thank you. That was as clear as
DEFRANCO: Yes
FUKE: It was like a two-part, I think like, you know, Commissioner Knowles has asked a
two-part question. So, the answer to the second question is that the reason I wanted to get at least
some clarity or some understanding from, from the attorneys, I guess, you know, your attorney, is
that if there is some culpability on the part of the Commission for this condition, then my
suggestion is that like since he's already committed himself to saying that I'll set aside for, this
area for public parking, then, you know, if to kind of like quote-unquote cushion the law, they can
just, you know, add a caveat to the beginning to say as represented by the petitioner, or by the
applicant, and so this is what he is representing and so he is going to keep that area, you know, the
balance of the language is going to be it's going to keep that area for public parking.
Then the other thing to enable him to exercise greater management of that area, you know, it's
easy to kind of craft the language that would essentially say that, you know, if he decides to
exercise control, that controls shall be submitted to the Planning Director, not, you know, for the
Planning Director, for public information. I don't know—and you can ask this question of the
Director—whether the Director would want to be in a position to say like whether you charge, you
know, one dollar or two dollars or twenty-five dollars, you know, per hour, whatever have you, to
be in that kind of position to negotiate what the appropriate fee should be, but the whole notion of
like how it's going to be structured, what kind of improvements are going to be made and all that
stuff, should he decide to exercise greater management, he can submit that kind of management
plan to the Planning Director for the information. Then, you know, it would be clear to the public,
clear to the Commission, at least there is kind of like a management plan in terms of what he is
going to do. I can see an issue becomes if the director is subjected to giving approval of that plan;
now like, you know, you are getting into the financing aspect of it, what is reasonable, how do you
charge, you know. And so, to remove that kind of like issue but nevertheless have the public and
the Commission aware that there is, you know, this kind of controls are going to be in place, it's
something that was part and parcel of the original request that we had made.
DEFRANCO: Thank you.
VITOUSEK: To me, it makes sense that a management plan would be approved by the Director at
a minimum, by the Commission as a whole as a maximum. It's determining how that coastal zone
will be used. And for me, this is, this is strictly in terms of SMA criteria. The presence of public
parking adds to the beneficial use of the coastal zone. And what capacity that would be in, I think
we can work that out. I'd be comfortable that you guys could work that out with the Director, so
that's something that I would be comfortable saying. As a Commission, I don't think we need to
have you go back and prepare a plan and then come back to the Commission. I'd be comfortable
saying why don't you guys work that out and make a good deal that works for the community and
works for you. Because to me those are our options is, do you, do we send you back now and say
come back to the Commission with the plan, or do we approve this with the condition saying work
it out with the Director. What do the Commissioners think about that?
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KNOWLES: I think it sounds reasonable. I just have a question, I guess. When we are thinking
about parking in the context of the SMA or, you know, attendant to a development, for example,
like Mauna Kea Beach Hotel and the parking stalls, public parking requirement there, this notion
of whether the parking is free or not, does that come into play? I'm a little bit,just don't totally
understand those parking lots are required to be free? Is that correct?
VITOUSEK: That's because their
KNOWLES: If we are applying that same principle.
VITOUSEK: That's because their management plans determine that they are going to be free,
right? That's part of their condition.
KNOWLES: Right, to protect access. But that same argument theoretically applies here.
VITOUSEK: It could, I mean if you look at the development of an area like Mauna Kea Beach
Resort or another big resort where they have a large development that encompasses a large
shoreline area and triggers the need for shoreline access and the delegation of a public access for
shoreline access. Here in this area, we don't have a large resort; we have lots of small
developments that have cumulatively reached the point of causing a larger adverse effect to the
environment. One of the ways that adverse effect is mitigated is by enhancing the beneficial use
of the coastal zone through parking and access. And this particular parcel has a condition on that
that mitigates that impact for the surrounding areas. It's free for the community, so, I mean for me
I wouldn't have a problem charging tourists or that kind of thing, but I would rather see it have
reasonable enforcement and reasonable public access free for local families, local people.
DEFRANCO: Director Kern.
KERN: To add to the conversation.
DEFRANCO: Yes.
KERN: So, it's determined that requiring these with case law now would not be appropriate in the
Planning Department's opinion, but because this condition exists, that we are going for a greater
discussion. I want to make sure thatobviously, this is a little different because this condition
exists, we are just talking about that. However, this conversation can get much larger if this is the
road that we are going down, and what does that look like? For example, Holiday Inn is right
across the street from that; do they have a requirement? Do we start doing that? Do we start
going, how far mauka do we go? And this is a challengeI am a surfer, I want to access the
coast, I grew up here where, you know, same thing, where it's changed a lot, right—so there is a
lot of challenges that we face, and so, how do we, you know, find that balance? But I'm also
trying to have some guardrails on this and also maybe even get a little from our legal side that,
because this condition was there, and curious, too—Sid, was this condition essentially agreed to or
was it imposed?
DEFRANCO: Is that a question? Mr. Fuke?
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KERN: That's a question. Yeah, when this condition was put into the SMA at this time, was it
agreed to or was it imposed?
FUKE: That was imposed.
KERN: And so, then I wonder—and again, this is a greater conversation since we are going to get
into it—if there was a condition that was imposed that later case law said would not be rational
nexus for that, does that nullify that imposition of that condition? Or does that maintain it even
though it was not necessarily imposed appropriately?
CAMPBELL: You know, I don't know. And I'm not sure I entirely understand the question. Is
the question
KERN: So, if we were, if this were to come in today, the question is if this were to come in today
in this place, and Holiday Inn is the best example of that because it's right there, imposing a
condition like this, I don't believe, would
CAMPBELL: Would pass the test—
KERN: would pass the test based on case law.
CAMPBELL: You know, I don't, I don't know entirely whether it would be evaluated under
today's standards or whether it would be evaluated under the standards at the time. I will offer
that some courts have recognized that a takings claim can pass from a previous owner to a
subsequent owner and still be valid. So, had it been a taking at the outset, the fact that the current
owner bought it with that in place does not absolutely nullify the problem. It is something that
some courts have recognized as something that passes from one owner to another. But that is in
no way offering an opinion as to whether we have a takings today or not.
KNOWLES: But also, that doesn'toh, go ahead.
KERN: I'm just, I'm trying to figure out where, what framework we are working in here and
where do we go with this framework, right? Based on it having been approved, I think the
conversation is different. If we are going to open it up to a greater conversation around this based
on the interpretation of that SMA rule, we start going all over requiring public access for parking
that's not based on the shoreline.
KNOWLES: But this doesn't necessarily set a precedent like that, I don't think, I mean, I'm not, I
don't know, I defer to corporate counsel for those things, but I think that if we are really getting
back to what our role is as Commissioners, it's really to think about, you know, do we strike the
condition or not strike the condition, do we maintain the condition with in an amended form. I
think one of the problems here is that the County hasn't taken, doesn't seem like the County has
taken any responsibility for the parking when there is a problem but is continuing to require the
parking anyway. So, we are putting the owner, solely on the private property owner to provide the
public parking without support from the County to help manage and control it. I, that's where my
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mind continues to go. So, what it is, as Commissioner Vitousek suggested, that we ask the
Planning Department to work with the applicant to come up with some middle ground plan that
addresses both needs that makes the most sense in terms of our role here as Commissioners. The
question of sort of what kind of can of worms it opens, I think, is something we are not
empowered to determine or equipped to determine.
KERN: I will say, though, every action we take as a Commission sets a precedence and moves us
forward in that direction
KANUHA: Yeah
KERN: there is a cumulative impact, the decisions that bodies like this make. That's yeah.
DEFRANCO: Commissioner Vitousek.
VITOUSEK: Thank you. No, and I think that this sets a good precedent for considering
cumulative impacts within the SMA, because I feel like there are lots of small parcels in that area
that have cumulatively impacted the coastal zone a lot bigger than, you know, one large
development would have. So, to me, I think it's a good precedent that should be considered in
future development within this area to create a proportional mitigation for the impact that's being
created, and that, you know, requires work and planning from the Planning Department and
figuring out what that proportional access and impact is going to be. But in the meantime, we
trust you and your judgment to work out a good deal with that—at least I would. So, I think if, in
the interest of moving forward, if I could, I'd like to make a motion.
DEFRANCO: CJ, Commissioner Kanuha wants to say something, and then make a motion
KANUHA: [Inaudible crosstalk] Mike finish up.
DEFRANCO: Okay.
VITOUSEK: Well, I'd just like to make a[inaudible crosstalk]
FUKE: Madam Chair?
DEFRANCO: Mr. Fuke.
KANUHA: There is a motion on the floor.
FUKE: Oh, there is a motion on yeah, okay. After hearing all of this dialogue and, you know,
kind of talking to Mr. Fujimoto and, you know, hearing what Commissioner Knowles had to say
about like, you know, how do you rope in the County so that they would be, indirectly, in a
position to kind of help manage the situation, and I thought that was a very good point because,
you know, if the Director or someone approves the plan, then, you know, you have greater
culpability and, you know, if we call upon you guys to kind of help enforce them, you've got to
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help enforce unlike today, you know, there is absolutely none, he is standing there all by himsel-
lonesome.
So, I kind of like have this suggestion then. So, if you keep the condition and you kind of, it
would read something like this, "As represented by the applicant"you know, this is to make it
clear that it's nothing come directly, that the Commission is just being draconian about this
condition but it's kind of like, "As represented by the applicant, the parking stalls on the makai
side of the proposed building shall be clearly identified as being for general public use. A parking
management plan, which may include reasonable fees to address public safety enforcement and its
maintenance, shall be submitted to the Planning Director for review and approval." And in that,
like, it gives him a chance to say, and, you know, following up on what Commissioner Vitousek
was saying, you know, there is a nexus, the question is like the proportionality, is like is his
requirement like 20 stalls, you know, like proportional to the project? And like the nexus
question, maybe it could be like four or five, and then maybe you can have like a variation of like
fee structure to accommodate certain time for certain users, you know, that kind of stuff. And I
agree like it's, you know, it's like the devil is in the detail, and he needs some time to do it, but all
of these can be incorporated into a plan that eventually gets submitted to the Planning Director for
his review and approval. Once he gets approved, and as Commissioner Knowles has said, then
you have some ownership, the County has some ownership; if there's violation, he can call the
County to tell you guys got to help us enforce.
VITOUSEK: I love it when you do that—
KANUHA: And I agree to that 100 percent—
VITOUSEK: I love it when you do that. That's perfect, thank you. Mahalo.
KANUHA: my thing was I would commend the owner. I've seen what he has done to the
building
DEFRANCO: Yeah.
KANUHA: you know, we are trying to clean up this town.
DEFRANCO: I know.
KANUHA: —and that's part, that's one step, right, they are bringing people back, creating great
things with the property, and, you know, like he said, policing that area that's, it's, you know, it's
an eyesore, and his property is great. Thank you said for that because that was spot on.
FUJIMOTO: Thanks.
DEFRANCO: So, I think we have to restate the motion.
VITOUSEK: Yep, I will, I'll make a motion to include a condition that states
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DEFRANCO: What he said.
VITOUSEK: Would you mind reading that for me?
KNOWLES: Mr. Fuke,please read your
FUKE: I'll try to restate it then, okay, so, "As represented by the applicant, the parking stalls on
the makai side of the proposed building"—maybe you can eliminate "proposed"because the
building is there—"of the building shall be clearly identified as being for general public use. A
parking management plan, which may include reasonable fees to address public safety,
enforcement, and its maintenance, shall be submitted to the Planning Director for review and
approval."
DEFRANCO: Thank you.
VIOTUSEK: I will also add a condition in Condition 3
DEFRANCO: Wait, what?
VITOUSEK: I'm considering my motion.
DEFRANCO: Yes.
VITOUSEK: So, that's one of the conditions that I have in my motion. The other condition is for
Condition 3 that will say instead of"submit," "shall adhere to the landscaping plan approved by"
whoever that was approved byKailua Village District Commission.
DEFRANCO: So, those two. Thanks.
VITOUSEK: Yes.
DEFRANCO: Yes, okay.
VITOUSEK: Those two conditions. And then, in addition to the last condition that was proposed
by the Department. So, there will be three conditions.
DEFRANCO: Do we need to restate the whole thing or do we all understand? We all understand,
okay.
FUKE: Well
DEFRANCO: So
KANUHA: I'll second you, Mike.
VITOUSEK: Mahalo.
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EXHIBIT A
DEFRANCO: Okay. Is there a discussion on this or do we vote?
KNOWLES: I just want to make sure, because as I was hearing the motion, that part of this
consideration is what is the County's responsibility vis-a-vis the parking lot. I don't know, you
know, that—
DEFRANCO: That's a different conversation.
KNOWLES: Okay, but it kind of came about as
DEFRANCO: But this is
KNOWLE: being part of what the Planning Department would be considering.
DEFRANCO: But the motion that we are looking at right now, it has three parts to it.
KNOWLES: I, definitely.
DEFRANCO: All right.
KNOWLES: Putting it out there, because I think that is part of what is important in this dynamic.
VITOUSEK: Well, I think that would be fleshed out in the approval of the plan between the
County attorneys and
KNOWLES: Thank you. I just don't want it to just not be outstated on the record.
PAISHON-DDUARTE: I agree with you, Commissioner Knowles, that it should be considered in
the development of this plan.
DEFRANCO: Okay.
VITOUSEK: Conceptually, I really like your suggestion of having a few stalls that are available
for residents and then a few stalls with fee structure to offset parking and all that. Just, that'll be
between you guys, but I do like that proposal.
FUKE: You really make me work hard.
VITOUSEK: Well, you do your best work.
KNOWLES: It's almost over, Mr. Fuke.
DEFRANCO: Okay. So, we are going to vote now to amend the main motion, right?
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JACKSON: I'm sorry, Chair, can I get a clarification on the amount of parking? Mr. Fuke spoke
to the makai parking, and there has been some discussion of flexibility on the amount of spaces.
Is that the understanding or not?
VITOUSEK: I think that we won't specify an amount, and we'll let that be developed in the plan
that's proportional to the impact and that the Department can approve.
FUKE: Then that's kind of like our understanding. The makai side right now has 20 stalls, and
then we are going to try to figure out like what is the so-called the proportionality question, maybe
introducing a local rate versus like the evening rate and, you know, so on and so forth. So, these
are the variables that he is going to have to kind of like look at, but giving us time to, you know,
look at these variables and submitting something that addresses the concern, that's the objective,
and that's what the Planning Department would have to review it, and this is our representation.
VITOUSEK: Even potentially having like a shoreline stalls, like shoreline access stalls, where
you've got limited a few of them for shoreline access only, it's not for shopping, and then the rest
of them market rate shopping stalls.
FUKE: Yes, thank you.
DEFRANCO: Okay, so, we are voting on the amended motion at this moment. Is this a roll call?
ROY: Are you sure? You don't want a special parking spot to surf?
KNOWLES: Don't tempt him.
ROY: Okay, calling to a roll call vote for PL-SMA-2023-27. This would be approved with the
amendments, so the two additional conditions that were stated plus the one that was already on
record.
KERN: Alex, we've got a point of clarification. Because there was an original motion that was
opened by Commissioner Knowles for an approval, and then there was a secondary motion by
Commissioner Vitousek to amend it. Can we go right to the main one or can we, do we have to
take the first motion, second motion to amend?
VITOUSEK: We have to complete the motion to amend.
ROY: Okay, so the first motion was to approve as recommended.
KERN: Right, so what we are going to be voting on right now is the amendment, which would
specify those three conditions. It's amending the main motion, with the first by Commissioner
Vitousek and second by Commissioner Kanuha.
ROY: So, this would be . Commissioner Knowles?
KNOWLES: Aye.
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ROY: Commissioner Paishon-Duarte?
PAISHON-DUARTE: Aye.
ROY: Dela Cruz is excused. Commissioner Kanuha?
KANUHA: Aye.
ROY: Commissioner Vitousek?
VITOUSEK: Aye.
ROY: And Chair DeFranco?
DEFRANCO: Aye.
ROY: Motion carries, five to one, or five and one excused.
DEFRANCO: Now we are going to move to, we are back to the main—and we can still discuss
it—we are back to the main, the first motion, which was an affirmative motion to approve.
KERN: So, now—correct me if I'm wrong the motion would be to approve the SMA as amend,
as just recently amended.
KNOWLES: I'll renew the motion—still alive? Okay.
DEFRANCO: Is there any discussion about this or shall we do the vote? No discussion.
ROY: I'm sorry, who moved the motion?
KNOWLES: I originally made the motion.
ROY: [To Commissioner Kanuha] And you seconded, okay. And this is for the amended
KERN: This is to approve the SMA. The last motion we just had that we voted on was to
approve the, was to agree on the amendment. So now the motion that's before us to approve the
SMA with the three amendments that were made, the three conditions. And now this vote will be
to approve or deny the SMA application, as amended.
ROY: Okay. Commissioner Paishon-Duarte?
PAISHON-DUARTE: Aye.
ROY: Commissioner Vitousek?
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VITOUSEK: Aye.
ROY: Commissioner Kanuha?
KANUHA: Aye.
ROY: Commissioner Knowles?
KNOWLES: Aye.
ROY: And Chair DeFranco?
DEFRANCO: Aye.
ROY: That motion carries, five and one excused, five ayes and one excused.
DEFRANCO: All right. So, you'll be notified in writing from the County, and you can begin
your discussion.
The hearing ended at 2:27 p.m.
Respectfully submitted,
Noriko Sauer, Secretary
Leeward Planning Commissions
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