HomeMy WebLinkAbout2007-07-20 TD-Bar
PLANNING COMMISSION
COUNTY OF HAWAI‘I
HEARING TRANSCRIPT
July 21, 2006
D-BAR RANCH, LLC (SMA
A regularly advertised hearing on the application of
06-000009)
was called to order at 1:10 p.m. at the King Kamehameha's Kona Beach
nd
Hotel, 75-5660 Palani Road, Kailua-Kona, Hawaii with 2 Vice-Chairman Rodney
Watanabe presiding.
Kimo Alameda
PRESENT:Rodney Watanabe ABSENT & EXCUSED: C.
William R. Graham
Jeffrey McCall
Fred GaldonesRene’ Siracusa
Andrew Iwashita
Alvin Rho
Allen Salavea
Ivan Torigoe, Deputy Corporation Counsel
Christopher J. Yuen, Planning Director
Norman Hayashi, Planning Program Manager
Phyllis Fujimoto, Staff Planner
Jeff Darrow, Staff Planner
And approximately 16 people from the public in attendance.
APPLICANT: D-BAR RANCH, LLC (SMA 06-000009)
Special Management Area (SMA) Use Permit to allow the 120-unit condominium project
and related uses. The property is located between Alii Drive and the proposed Kahului-
Keauhou Parkway (aka Alii Parkway), mauka of the Kona Magic Sands Condominium
nd
and north of the White Sands Beach Estates Subdivision, Pahoehoe 2, North Kona,
Hawaii, TMK: 7-7-8:21 & 23.
WATANABE:The next agenda item is D-Bar Ranch, LLC, SMA Use Permit
(SMA 05-00009). Staff?
HAYASHI:Thank you, Mr. Chair. This particular application is the SMA Use
Permit to allow the development of a 120-unit condominium project and related uses.
The subject property is indicated by this blue dot and it is situated between Ali`i Drive
and the proposed Kahului to Keauhou Highway or also referred to as Ali`i Parkway. The
subject property is currently zoned for Multiple Residential - 3,500 square feet. As a
matter of information, the Royal Ali`i project that we heard this morning is slightly off
the map in this particular location. We have existing single-family residential
subdivisions, first of all, the White Sands Estates Subdivision is located at this lower
portion along and off of Ali`i Drive, and the subdivision in the back of that or further
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mauka is the Keauhou View Estates Subdivision. The Keauhou Resort area is in this
particular location, south of the subject property.
The proposed 120-unit condominium project will consist of 15 two-story structures as
shown on this particular site map. And, again, as a matter of orientation, this is Ali`i
Drive going towards Keauhou and this would be in the Kailua direction. And the
Kahului to Keauhou Parkway is located at this location mauka of the subject property.
Each of the structures will accommodate 8 two-bedroom units. The maximum height of
the proposed structures would be 35 feet.Within the RM-zoned district, the maximum
allowable height is 45 feet. A minimum of 165 parking, on-site parking stalls would be
provided; and that would be in these particular areas.
The Applicant intends to construct the, complete the construction of this project by the
end of 2007 or in 2008. Also, extensive landscaping would be provided on the project
site. The estimated cost of the development would be $30 million.
Based on the current RM 3.5-zoned district, a maximum of 132 units would be permitted
on the property. So based on the current zoning and the proposed project of 120 units,
the development will be less than what’s allowed, based on the current zoning.
The property is currently overgrown and vacant. Access would be off of Ali`i Drive
going through a property which services the Wastewater Pump Station at this particular
location. That particular section of this particular lot, which is Parcel 23, currently has a
pavement width of 50 feet, so that’s where access would be gained from. There would be
no access to the Kahului to Keauhou Parkway.
The Applicant had received a water commitment of 239 units; therefore, the water is
available to the property. Wastewater would be by connecting to the County sewer
system.
We received numerous correspondence that was earlier circulated to you and there were
some other correspondence that we received today. There were four correspondence
which you don’t have a copy of, only one copy was submitted. The first is from Vonnie
Razo; and I’m going to be circulating these for your review. We also received
correspondence from Robert Milton, the Kona Magic Sands Board of Directors by Karl
Lizza. I believe you already have a copy of this particular correspondence.
And, finally, a Petition for Standing in a Contested Case Hearing was handed over to us
today by Alice and Robert Widmann; however, the form is not notarized and no filing fee
was submitted. It’s my understanding this Petition was submitted by Robert Milton on
behalf of Alice and Robert Widmann. I’m not sure as to whether they actually know
what they had submitted or it was basically filling out the form that was submitted. This
could be just general comments. So perhaps if Mr. Milton is here today then he can
testify as to, you know, the purpose of this correspondence that he had submitted from
Alice and Robert Widmann.
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The Planning Director is recommending approval of the request with conditions. Are
there any questions?
WATANABE:I have one question with regard to that Intervenor or potential
Intervenor. They didn’t meet the deadline aside from not notarizing the document and
not paying the filing fee, is that correct?
HAYASHI:That’s correct.
WATANABE:So, technically, it’s not a valid application for a Contested -?
HAYASHI:Well, based on your rules, it is not a timely submitted Petition for
Standing and it wasn’t notarized, no filing fee was submitted. So I guess the
determination would have to be made by the Planning Commission as to -.
WATANABE:However, they would be welcomed to testify?
HAYASHI:That’s correct.
WATANABE:Yeah. Okay. Thank you. Are there any other questions for staff,
Fellow Commissioners? Mr. Graham?
GRAHAM;Norman, I know on a prior one we’re doing today, like Samson,
we had to, we had a zoning ordinance back in ’90 and ’95 that we were doing a time
extension on. And I noticed, you know, this property already has the proper zoning and
the zoning ordinance is included here in our material; and it’s a ’94 zoning ordinance.
But when I read the ordinance I don’t see any time constraints on it at all. And I know
you were back in the process in ’94; and so I was just wondering, am I correct, there was
no time constraints on this zoning at that time? And do you have any background as to
why that was the case?
HAYASHI:Yeah, based on my reading of the ordinance, Ordinance No. 94-
124, there were no time requirements as to performance, as to when to submit plans for
Plan Approval, nor construction timetable.
GRAHAM:And do you, from having been working in this planning stuff back
then, was that the common situation back then and what we saw this morning from
Samson was unusual, or was this one unusual, or do you have any insight to that?
HAYASHI:It’s rather unusual. I wasn’t involved at that time with the
Planning Commission back in ’94, so I’m not too sure as to the reason why. But even
prior to that we did put in performance time conditions.
WATANABE:Are there any other questions for staff? With that, may I call up
the Applicants, please? Do you swear or affirm to tell the truth now before the Hawai`i
County Planning Commission?
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APPLICANTS: I do.
WATANABE:Thank you. Mr. Fuke, you’ve already stated your name and
address. But, Mr. Dickler, is that right?
DICKLER:Yes.
WATANABE:Yeah, would you please state your name and address for the
record?
DICKLER:Yes, thank you, Chairman. My name is Allen Dickler and the
president of Westpro Holdings, which is the manager of D-Bar Ranch. I reside at 75-399
Wehilani Drive in Kailua-Kona.
WATANABE:Thank you. Now, has the Applicant received the material from the
Planning Commission, I mean, Planning Director, and are you satisfied with the -?
FUKE:Sure.
WATANABE:Recommendations?
FUKE:Thank you very much. Again, for the record, my name is Sidney
Fuke. I’m a planning consultant, assisting the Applicant on this matter. Yes, we’ve had a
chance to review the staff’s Background Report and the proposed Recommendation. We
found the Recommendations and the Background Report very comprehensive and
acceptable. However, relative to the Background Report, there’s one minor correction
I’d like to suggest. And that is like on Page 4, Item No. 20, it’s the section that deals with
the archaeological, historical resources; and left, you know, it just seems to imply that
Dr. Rosendahl’s archaeological report was the report that was accepted by the State
DLNR-Historic Preservation Division; but, in fact, like there was a subsequent survey
done by Haun and Associates back in 2005, and that was the report that was accepted.
And so what I would like to suggest just in the interest of clarity is after the first sentence,
the inclusion of the following sentence:“A subsequent survey was then conducted by
Haun and Associates in 2005.” And the rest can remain as it is.
WATANABE:Any comments from staff or the Director? Is that acceptable?
YUEN:No, that’s fine.
WATANABE:Okay. Thank you. So noted.
FUKE:Mr. Chairman and the Commission, I’d like to just kind of like just
share, although the staff’s report was rather, presentation was rather comprehensive, I’d
like to just kind of share a few information with the Commission for their information.
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First, in terms of like a general background, as was noted by, pursuant to a question by
Commissioner Graham, the property was rezoned back in 1994. And the rezoning was
for 44 acres of land to Multiple Family-3.5 and RS- 7.5; and it was designed specifically
to allow a 310-unit project on the property, 231 of which would be Multiple Family and
79 of which would be Single Family Residential. At that point in time, the property was
one contiguous property. But since that time, however, the property was subdivided to
create the required right-of-way for the Kahului Parkway and, as a result, two lots were
created. And although the property has not been developed since 1994, obviously, some
of the major conditions of approval relating to the public infrastructure have been
fulfilled. And one of them, as I mentioned earlier, you know, relates to the subdivision of
the properties and the creation and setting aside of the Ali`i Parkway.
The other one was the conveyance of about 1-plus or minus acres of land on the makai
portion of the original property for the Wastewater Pump Station which, at this point in
time, is already operational.
So notwithstanding the fact that the property was, you know, is still vacant, those public-
related type of infrastructure activities were done by the former owners of this property.
The current owners of the property purchased, acquired interest in the property back in
October of 2004 and began plans for the development of this project. And I just kind of
wanted to share with the Commission like what goes through the planning process and
along the way then to hopefully have the Commission, you know, understand like the
different kinds of constraints and the different reports that were required for the project.
You know, contrary to popular belief, I mean, if you have a piece of land, it’s not like
you hire an architect and you tell him you want to put up a 120-unit condominium project
and he just kind of designs it accordingly. There are many, many constraints that have to
be taken into account before you even kind of like start to draw. And one of the major
constraints, you know, relates to the infrastructural, excuse me, what I term as like the
institutional constraints. You have to look at what the County Zoning Code says relative
to height, setback, parking requirements. You also have to look at, since this property
was zoned, what was the, what were the pertinent conditions of approval that may relate
to, you know, the development of this property.
There are also like the archaeological issues that have to be taken into account. And
pursuant to that, although there was an archaeological study prepared back when the
property was initially rezoned, what the Applicants did was they then hired another
archaeologist to kind of like do a more detailed inventory of that area, and that was
through Haun and Associates. And through that process they have approved an
archaeological inventory survey which showed that there were like three major features
that had to be preserved, like the burials, and there’s like a ceremonial heiau on the
property, and there’s also like a mauka-makai trail that bisects the southern portion of the
property that also was recommended for preservation. So those are the kinds of design
elements that had to be introduced when the architect kind of basically puts his pen or
pencil in terms of coming up with the scheme.
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Then also we had the other things like, you know, the flora and fauna studies done,
largely to see whether there are any endangered plant life or bird habitat in that area.
And, fortunately, in this particular situation, none were found. So, you know, that didn’t
become like too much of a major constraint.
Traffic while it is not, as pointed out in the staff report, is not directly an SMA “type of
issue,” nevertheless, you know, it does reflect some amount of like SMA considerations,
but more than that like a public concern because of the, you know, the congestion along
Ali`i Drive. And there’s also tied in with that the requirement for left-turn turning lane
along Ali`i Drive. And so these are the things that they had to, the architect had to take
into account.
When you look at also like the public recreation kind of component, there’s also things
like -- well, you know, there’s the White Sands Beach in that area, like others -- is there a
need to provide public accommodation for parking, so on and so forth?
So what came about was the plan that you have before you. However, you know, the
planning process is a really, it’s like an evolving thing.Like, you know, so this is like
where we are right now. But, you know, through the public hearing process and through
receipt of public comments as well as through -. If this Commission approves this
application, there will be Conditions of Approval; and based on those Conditions of
Approval there are going to be, there is going to be a need to further modify the plans
before the plans can actually be ultimately fulfilled. And one of the things that we’re
kind of like pleased about is that, you know, the whole issue about like evacuation,
because that is kind of like tied in with the SMA, as well as the community’s concerns as
evidenced by the number of written testimonies that have been sent to the Commission.
The way the plan is developed right now, it was predicated upon having no access to the
Parkway, and that was because the preliminary plans that the County had developed
along the way showed that there would be no access from the Ali`i Parkway to this area.
However, like if you look at proposed Condition 5 by the Planning Director, it provides
an opportunity where if the Department of Public Works so allows for that access, then
that would be a possibility; and from the developer’s standpoint, you know, they have
absolutely no objection to that. Because, I think, to that extent it would help facilitate the
immediate public concern about providing an alternate evacuation route. Even if it’s only
for emergency purposes, that would be fine; and the developer has no objections to that.
The other thing that we would like to kind of point out is just that in sitting in the
audience and listening to, you know, the concerns and issues raised on the earlier
Petitions, and particularly I think one of the things that Commissioner Graham may have
raised in relation to a project not, or one of the proposed conditions not having any time
condition in terms of when do you perform -. And I think that pursuant to that, what I’d
like to suggest, you know, for the Commissioners’ consideration in that regard is that you
add like a new condition that says something along this line that like “No land
disturbance permits shall be issued until the burial treatment plan has been approved by
the DLNR-Historic Preservation Division and the Hawai`i Island Burial Council and the
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site preservation plan has been approved by the DLNR-HPD.” So it makes it clear that,
you know, as a condition that you will not have any land disturbance activity on the
property, you know, short of hand clearing, for example, until those critical elements
have been approved by the respective agencies or entities.
So aside from that, you know, Mr. Dickler and I are prepared to answer any questions the
Commissioners may have.
WATANABE: Thank you. Mr. Salavea?
SALAVEA: Thank you, Mr. Chair. Thank you, Mr. Fuke, for your thorough
presentation. I’m not sure if you’re able to answer this but can you give us some
background. I understood what you were just saying is basically it took this long to get
all of the preparation to do the architectural work and figure out what is going to be on
the ground; and at this point Mr. Dickler is now ready to proceed and is coming in front
of the Commission for the SMA; and that’s the reason for the length of, it looks like
inactivity. But can you help me with that?
FUKE:Sure. Again, bearing in mind that, you know, Mr. Dickler’s group
acquired the property in October of 2004, what happened before then, you know, it’s
really like we have no specific answer for that. It could have been just market conditions,
or personal conditions between the, you know, the two former owners of the property.
But what I was just trying to share with the Commission was that, you know, since
October 2004, it takes almost like about a year, maybe a year-and-a-half just to develop
all of the basic information that one needs to have on the property like this to even come
to the level like where we are right now. And even where we are right now, this is
certainly a far cry from, you know, if the Commission approves it, a far cry from
ultimately what will happen on the ground. There is going to have to be modifications to
the design that you see there.
SALAVEA:Thank you.
WATANABE:Mr. Graham?
GRAHAM:I just wanted to comment on lack of preparation on my part and
maybe for other Commissioners. All this material, which is rather substantial, got mailed
out from the Planning Department on Tuesday, so I got it Wednesday afternoon; and so
the only a day between Wednesday afternoon and now is yesterday. And, you know, I
really need to go through the archaeological report closely and the marine resources
impacts, so I just wanted to tell you ahead of time, you know, I can’t vote on this thing
today because it’s a substantial enough project I don’t want to try to move forward
without really understanding everything myself. So, hopefully, from my perspective we
can bring up the issues of the places where we might really have to, you know, resolve
something where it might be an issue so that I got all that fresh in my mind, you guys
have it fresh in your mind, and then we can finish it at the next hearing. But other
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Planning Commission members may feel they had enough time to really go forward, I
don’t know, but I just wanted to say that up front.
WATANABE:Thank you. Mr. Iwashita?
IWASHITA:I join in Commissioner Graham’s comments in terms of, you
know, being able to thoroughly review all of this material and really not having a full
opportunity to do that, you know, before this afternoon. So, again, I, too, would not be
prepared to vote on it, you know, to do an approval; and I’m really looking at continuing
this matter at least, you know, to our next meeting here.
WATANABE:Okay. In light of that, then, you know, if two of you abstain then
we’re obviously not going to have the votes no matter what happens. However, the
second part of Mr. Graham’s statement was that, you know, he would like to give the
Applicant some idea or some notion of where this is headed and how they can prepare
better, and if we, you know, would request any additional information from them at the
subsequent meeting. And so that being the case, I would open it up to any of you that
have any concerns that maybe you can voice them now.
FUKE:Mr. Chairman, what I’d like to suggest, I can understand like -.
You know, because it is a rather lengthy document that was just given to the
Commissioners and it was through no fault of their own, I can understand the concern.
And so if that’s the wish of the Commission that they need to have this matter be
continued until the next available meeting in Kona, that would be fine. However, in
addition to getting the response from any of the Commissioners on this matter, if you
would get the public’s testimony today, then that would help us better structure -.
WATANABE:Yeah, I would like to proceed with that. Okay, so continuing is not
an issue with you. Mr. Rho?
RHO:Can I ask a question?
WATANABE:Mr. Rho.
RHO:In Exhibit 13, and you probably know the answer without even
looking at it, but it’s actually from Milton, I mean, not Milton, Sidney to the Director.
It’s Page 1 and it reads it’s in response to this Natural Resources Conservation Service
report, I guess, and that talked about the flood zone, Exhibit 11.
FUKE:Oh, okay. Got it.
RHO:And because I’m not familiar with this whole thing, can you
elaborate on your response?
FUKE:Oh, sure. You know, the Corps of Engineers designates like all the
lands in the County of Hawai`i to several, what you call, flooding categories; and the
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most benign, of course, would be Zone X, that areas would be outside of any floodway
area. Zone AE would suggest that it would fall within the floodway area. And E is like
the term that would say like for Elevation, what certain base elevation that you must
achieve or where the base elevation has been determined; and you can just kind of work
around that. What we kind of point it out over here is just the top portion, the
northwestern portion, only just a small section of the property falls within the AE zone.
So any structures or improvements in that area would have to, you know, from our
standpoint, would not be developed in that area. The only thing that would be developed
in that area would be like landscaping and other types of non-structural things. And I
think the Planning Director’s conditions also stipulate that, so -.
I don’t know if I mentioned -. And the rest of the property falls in Zone X, so they pretty
much would be free of like the flooding area. But notwithstanding the fact that it’s free
of flooding, the project will generate on-site drainage, you know, because of, through
added, you know, like impervious surface, whether it’s your parking area or your roof
tops and all that stuff. So there is an obligation that according to the County Code that
you must develop a drainage plan that contains all of this on-site generated water; and
usually that’s handled through a system of drywells.
th
RHO:You also have a letter dated April 10 that’s Exhibit -, there’s no
th
number on it, it’s dated April 10. At the end of that letter, it’s Item D, it talks about -.
FUKE:Correct.
RHO:Laaloa Street. So can you give us some information about that.
FUKE:Okay. The County, as you know, has been trying to develop this
mauka-makai connector. And the tentative plan is to extend Laaloa Street that would go
through, not this property, but, you know -. Laaloa Street is actually, if you look at the
map, on the right-hand side or the south side, you know, of this proposed area. So you
would extend a through mauka-makai, and then eventually cross over the Parkway, and
eventually continue all the way up to Kuakini Highway. And so the discussions we’ve
had like with the Department of Public Works was because of some concerns raised by
area residents, whether they could provide like an interim access through this property,
you know, in lieu of having that access go through the lower portion of that Laaloa Street
extension. You know, in other words, that area makai of the Parkway, rather than having
the traffic pretty much like travel through that area, to see whether there could be an
interim access through this property to, thereby, alleviate any concerns among the
existing residents who live within the Laaloa Subdivision. So that’s the discussion that
we’ve had with the County; and, to date, there has not been any resolution.
But as I mentioned earlier in the opening statement, that there is a condition that you’ll
note that the Planning Director is proposing that, subject to Department of Public Works
approval, would allow for a direct connection to the Parkway; and, to that, the Applicant
has no objections.
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WATANABE:I have a question, Mr. Fuke. You mentioned that the current plans
say we were going to extend Laaloa as a mauka-makai connector to Ali`i Parkway, right?
FUKE:My understanding is that the County’s plan is to have that Laaloa
Street extension, yeah.
WATANABE:Yeah, which is, you know, directly, well, not exactly directly but in
close proximity to the subject property. But does that also mean that your project would
be able to have a north-south connector possibly to Laaloa so that there would be an
additional way out of that -? You see, I know that the County does not want to have an
abundance of intersections, they want to keep this as a highway; and I tend to agree with
that. But then in order to do that and in order for you, the residents of your subject
property, to have access to Ali`i Parkway, they’d have to have a north-south connector to
Laaloa. And maybe it’s not entirely within your capability to respond because, you
know, I don’t think it’s contiguous.
FUKE:But, nevertheless, in the interest of like connectivity, you know,
your Planning Director has been thinking along that line. Because if you look at
proposed Condition 5 that the Director has suggested there is a requirement that the
Applicant develop an access and circulation plan providing for inter-connection of
adjoining parcels. So that’s like a north-south type of connection.
WATANABE:Oh, that’s what this is referring to?
FUKE:That’s correct. That’s the condition that the Director is proposing
now. So there will be a requirement. And so it goes back again to my original comment
that what you see right now, you know, we’ve had to, it’s like an evolving thing. So what
you see right now is based upon all information we have. And then there’s public
comments, the agency comments; and if this project gets approved, there’s going to have
to be further massaging to reflect the kind of issues and concerns and the conditions that
the County will be approving.
WATANABE:Thank you. Mr. Rho?
RHO:Yeah. Also in this report, I’m not sure what to call it, but there’s
this Traffic Impact Analysis Report; and on Page 3, at the bottom of Page 3, it refers, that
whole paragraph talks about a State Department of Transportation traffic count that they
take every two years. And the period that I guess is used in your report is the period from
1982 to 2002. Am I reading that correct?
FUKE:Half correct, 1990 to 2002.
RHO:Oh, okay, 1990 to 2002, a 10-year period that they do this every
two years is my understanding. Right?
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FUKE:I don’t really have the specific answer to that question as I, you
know, like the Applicant had contracted separately with the traffic engineer. And, so, I’m
glad you brought that up, Mr. Rho, because if that’s the issue since this matter is going to
be continued, if you want to have that question directly answered, we’d be prepared to
have the traffic engineer here at the next meeting.
RHO:Well, the comments that I read that came from the community,
basically not all of it but a large number of the comments, are directed at traffic. So when
I read this report I was struck by the fact that they’re using this, or whoever wrote this
thing, is using 1992 to 2002; and I wondered why or if there was more current
information that the State Transportation Department gathered or has that could be used
to then calculate. ‘Cause after that the next page is, whoever did this report, starts to
calculate; and then I got kind of lost because I don’t really understand what they’re
calculating or how they’re calculating.
FUKE:Usually what they do is they have like a baseline information; and
in addition to that then they also discuss the, they have to take their own separate traffic
counts at different hours of the day.
RHO:Right. That’s what they did.
FUKE:Correct; and then based on that then they make a determination on
whether, what the level of service would be at different intersections.
RHO:Right. But if you turn to Page 4, it starts to discuss Figure 4. And
the way I’m reading that or as I understand that, there’s a discrepancy between what the
contracted person who observed the traffic on one day, June 24,2006 had versus what the
State Transportation Department reported even within, I think those, that 10-year period.
And, again, I’m not sure that I’m reading this correctly. So I need help actually going
through this report in more detail because it’s not clear to me what they’re actually
reporting and when. But that’s my take on it. My take on it is that the report that this
person did making observations for one day is not in line with what the State is reporting
over a 10-year period that ended in 2002.
The reason I bring up this 10-year period and this 2002 is my view is that traffic has
gotten worse since 2002. And so between 2002 and 2006, that’ll be where, to me, the
calculation should actually be and not, you know, those 10 years.
The other thing is when this thing was calculated on June 24, 2005, it was on a Friday
and I was kind of curious as to what date that was; and in subsequent documents it talks
about that date being a Friday and that date also is not when school is in session. And,
so, I think traffic is also reduced because school is not in session. But, you know, again,
I’m just guessing. I don’t know all the nitty-gritty details, and I really don’t understand
the way this, all these figures were calculated and the formulas used, etc., etc. So that
would be a concern that I would have at the next session when -.
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FUKE:Thank you very much for bringing it to our attention because even
for myself I won’t be able to answer the question you just asked. So thank you.
WATANABE:Are there any other questions for the Applicant?
RHO:I have one last one, and it relates to traffic again. That Laaloa
Street goes into, I don’t even know what subdivision that is, but it’s a new subdivision,
right?
PUBLIC:Ali`i Heights.
RHO:Ali`i View Estates or Ali`i something -.
PUBLIC:Keauhou View Estates.
RHO:Keauhou View Estates. And doesn’t that, the subdivision now,
extend up to Kuakini basically, although you can’t exit that way? Do you happen to
know how many homes use, I mean, are exiting out of that roadway? ‘Cause it’s also an
exit for White Sands Estates, yes?
FUKE:That’s correct.
RHO:So do you happen to know how many houses are in that
development? Are those developments combined?
FUKE:No, I don’t know.
RHO:Okay.
PUBLIC:Ali`i Heights is 450 homes and White Sands is about another 100.
RHO:Thank you.
WATANABE:Maybe you better bring some numbers on that ‘cause that
individual was not -.
FUKE:No, we will have the traffic engineer at the next meeting.
WATANABE:Yeah, yeah, ‘cause that individual was not sworn in. I don’t know
that we can just accept that for the record. Mr. Graham?
GRAHAM:Just one little small minor one. When I was looking at the GIS
maps of the area and all, there’s, aside from the two parcels we’re looking at today,
maybe there’s 115, I think another parcel there. Is that the one that went for the pump
station on this -?
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12
FUKE:Correct.
WATANABE:Is that all the questions? If that is all, you may be seated. And we
will move into testimony on this so that it will allow you further information on how you
can prepare the next go-around. All right, I had a request from Curtis Tyler if he could
testify first ‘cause apparently he has an appointment at 2:30, I believe it is. So now that
we’re accepting testimony, Mr. Tyler, you want to provide yours?
TYLER:Thank you, Mr. Chairman, and Members of the Commission. I
appreciate the courtesy; and I thank those who might have signed up before I did. I’m
going to my favorite place at 2:30, a dentist appointment and thank you for the
opportunity to keep that appointment.
Mr. Chairman, Members of the Commission, I received the Background Report and
Recommendations which I requested some weeks ago, and I think they arrived yesterday,
and I received them this morning. I was out of town so I wasn’t able to pick them up
yesterday.
I have reviewed them and I have some concerns I want to share with you. But let me say
that from listening to at least some of the comments from some of the Commissioners
regarding a possible continuation of this, I would certainly highly suggest that you do
that. While my reasons may be different than yours, I hope that this happens.
I have about three major concerns regarding the process here. And that is, the first one
relates to Condition M of the Zoning Code Amendment, Ordinance 94-124, which
Commissioner Graham referred to and which you have in your Background Report. And
if you’ll look at Condition M, you will note that it’s on Page 9 of the, I’m sorry, sorry,
it’s on Page 10 of the ordinance, and it says, “An intensive archaeological” inventory
“survey and report, including,” and I’m emphasizing this now, “including a cultural
resource management plan, shall be submitted in conjunction with a SMA permit
application for the development of the subject property.” I submit to you, gentlemen, that
there is no Cultural Resource Management Plan. It is a requirement of the ordinance and
it is not anywheres to be found in the Background Report that I have. It has been
represented, however, by the Applicant’s representative that the survey has been
completed when, if you look in your Background Report, indeed, the survey has been
completed. However, the Cultural Resource Management Plan was not included and,
indeed, never is included with an archaeological inventory survey. So I think you’re not
in compliance, this application is currently not in compliance with the County Code.
Second of all, I have reviewed the documentation relating to, excuse me, just a second,
let me get this up, so many different papers here. I have reviewed the documentation in
the Background Report which they believe is a complete application, contains a complete
application, to find “A written description of the anticipated impacts of the proposed
development on valued cultural, historical or natural resources on or in the vicinity of the
property to include:” in accordance with Rule 9, and this is just for your reference cause
I’m not going to read it, Section 9-10 Assessment. And this 9-10 B.6 that I’m referring
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13
to, Paragraph 6 and Sub-Paragraphs a, b and c, which talk about the identity and scope of
these valued resources, the extent to which they’re affected or impaired, and the feasible
action, if any, to be taken. And as I mentioned in an earlier case this morning, these are
requirements which were put into your SMA rules in January, I believe it was
st
January 21 of 2006; and these came and they were passed by this Commission. And
they were inserted in there as a result of two very important, three very important legal
actions that were taken. And one of them was the PASH decision regarding traditional
and customary gathering rights, I believe you know about this.
No. 3 was Act 50 passed by the Legislature relating to the cultural impact assessments.
And, No. 4, from which Act 50 partially emanated was the Ka Pa‘akai case. Both Ka
Pa‘akai and the PASH cases were adjudicated by the Hawai`i State Supreme Court. And
in those particular cases, there were certain requirements that the court mandated be part
of certain applications. And, indeed, the preamble to your current rules, Rule 9, Section
1, Purpose, takes that into consideration; and, so, I won’t refer to the numbers, you can
look at them yourself.
While Mr. Fuke and I, who know each other quite well and are friends, I think I regard
Mr. Fuke as a friend, may disagree on this, I want to caution you that the current
application for an SMA Management Area Permit does not fulfill the law, not even by a
long shot. And if you pass this, whether today, next month, two months, and you do not
have a Cultural Resource Management Plan, No. 1, which is required by law, by the
County law, and if you do not have a cultural impact assessment which is required by
your Rule 9, which emanates from the State law and also Supreme Court decisions, you’ll
be in deep trouble for this.
And let me tell you what the scope of the work for this assessment must contain, and I’m
going to put it on the record, and I’m reading this verbatim, are the OEQC guidelines that
were referred to earlier. I’m sorry, Mr. Chairman, I’m taking more than three minutes,
but it’s very important for you to know this, ‘cause there are new Commissioners here
who might not be aware of it.
In order to constitute appropriate, I’m not quoting yet, to constitute an appropriate
assessment, the scope of work for the assessment has to include, and now I quote,
“(1) identify and consult with individuals and organizations with expertise concerning the
types of cultural resources, practices and beliefs found within the broad geographical
area,” this has not been done, “e.g., district or ahupua`a.” “(2) identify and consult with
individuals and organizations with knowledge of the area potentially affected by the
proposed action”, this has not been done. “(3) receive information from or conduct
ethnographic interviews and oral histories with persons having knowledge of the
potentially affected area,” that has not been done. “(4) conduct ethnographic, historical,
anthropological, sociological, and other culturally related documentary research”, some
of that has been done for this area related to other projects but it has not been
incorporated nor has been considered, in my estimation, in the report before you. And
“(5) identify and describe cultural resources, practices and beliefs located within the
potentially affected area”, not been done. Some, there has been some identification of the
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14
resources but there has been no identification and description of the cultural resources,
practices and beliefs located here. To the contrary, it says it appears to be none. The
Applicant has told Mr. Fuke that, according to the Applicant, it appears to be none. The
Applicant is not qualified to assess this. And, finally, “(6) assess the impact of the
proposed action, alternatives to the proposed action, and mitigation measures, on the
cultural resources, practices and beliefs”, now, remember, practices and beliefs identified,
since none have been identified and they haven’t been identified because there have been
none of these studies, then you have not met the requirements of the law.
So I’m not here today to oppose this project. I’m only here today to insure that you
follow your rules and the law, and I’m not saying you’re not going to. You’ve got a lot
of materials before you and you have a lot to review here. I think at the very least you’ve
got to continue this for at least 30 days, perhaps longer. And I’m sure Mr. Yuen, who is
an attorney and understands what I’m talking about because he was instrumental in
getting these revisions and amendments to your rule put in, will be able to explain this to
you.
And I kind of want to leave it at that because you can’t really go on until you have taken
care of that. Thank you. I’ll be happy to answer any questions.
WATANABE:Okay, thank you. Do we have any questions for -?
IWASHITA:I don’t have a question of Mr. Tyler but I guess I have a concern
I’d like to express about the point raised by Mr. Tyler at this time. And that is that the
ordinance is clear in my mind requiring the inclusion of a Cultural Resource Management
Plan; and, you know, there is none here. The rules are clear that such study be done, and
it’s not included in the application. And I guess the rules, to me, are also clear that in
order to proceed to hearing, you first need a properly filed and completed application;
and it seems to me that we don’t have a complete application. So I guess, procedurally,
in my mind, what should be done is the application should either voluntarily be
withdrawn or a determination should be made that it’s not complete and it’s not proper
for hearing.
TYLER:Mr. Chairman, just one quick comment, I’m sorry. Mr. Iwashita is
exactly correct in my estimation, and I’m not your legal advisor. And this brings in, and
the reason this is important for you to think about and consider is that there are people in
the audience, and perhaps otherwise, who were unable to assess what the impacts of this
project might be because they didn’t get the materials in a timely fashion. You know,
two days before, when did you get yours, Monday, a few days? You know, this is
insufficient time. And second of all, if there are people who want to file a Contested
Case and the application is insufficient and incomplete and therefore should have never
been here, you open -, back up. So I would say be careful about that. Thank you.
WATANABE:Mr. Graham?
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15
GRAHAM:I think we can decide on whether the application is complete with
consultation with the Planning Director, and the Corporation Counsel, and Mr. Fuke, and
all here in a few minutes. But I’d like to catch Mr. Tyler for a second just before he
leaves. Curtis, this really came to my head in the last SMA application we had on the
Ali`i, Royal Ali`i project. These cultural impact assessments that we were looking at, our
real duty here is to come up with accepting or rejecting an application and making
appropriate conditions. And in the last one, I found a difficulty in myself of knowing
whether the real value of that assessment was in how we might make conditions that are
appropriate, or whether the real value of that assessment more is in documentation of the
history of the area and things like that, you know, and, you know, just sort of honoring
the history and keeping it alive, as opposed to how it relates to the particular decision
right in front of us. And since you know so much more about this, these assessments
than I do, I believe, can you just, you know, concisely give me a little idea of how I might
try to evaluate when I’m trying to make a decision on a specific application?
TYLER:Yes, very simply, you need to refer to the guidelines. Go on the
OEQC site and it’ll tell you that, what is sufficient and what is insufficient; and it’s pretty
straight-forward. I read them. I read them to you, but there’s much more information
there that’ll allow each of the Commissioners to assess this for themselves.
I neglected to mention, Mr. Chairman, that I have an interest that is separate and distinct
from the public because I am a descendant from this area and I am a recognized lineal
descendant for the property directly adjacent to this and to the south.
No matter what Mr. Fuke says, no matter what Mr. Hayashi says, no matter what the
Director says, your application is incomplete in accordance to your rules. And, I again,
want to say and emphasize, be very careful if you decide to move forward on an
incomplete application that is inconsistent with the Supreme Court rulings and State law
relating to valued cultural resources, be very careful.
Mr. Brooks, who also works with Westpro, and I have been talking about this project for
quite awhile. He has been very open, shared the information. Mr. Dickler, I know very
well. This is not an end-around. This is not an attempt to in any way subvert their effort.
This is only an effort to be sure that this legal issue, which has been so much in the news,
which has created so much problems for people in the future, does not become an issue
here; and it will become an issue if you do not heed the law. Thank you.
WATANABE:Okay. Well. Comment?
YUEN:Yes, Mr. Tyler may have a point on the Cultural Resources
Management Plan, and I have to look at that. I don’t believe that there was one submitted
with what we have so far.
However, on the other two items, we’re talking about two different things; and the
application is in compliance and is complete. The cultural impact assessment that he’s
talking about and referencing the OEQC guidelines is required when there is an
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16
environmental assessment or an environmental impact statement required. That’s the
trigger for that. So this project, not requiring an environmental assessment or
environmental impact statement, does not need a cultural impact statement under the Act
passed a couple of years ago as an amendment to Chapter 343 by the State Legislature.
Then in the reference to Rule 9 which talks about the amendments to Rule 9 which cover
the requirements of the PASH and Ka Pa‘akai case which requires a written description
of the anticipated impacts of the proposed development on the valuable cultural,
historical and natural resources on or in the vicinity of the property, that is included in the
application; and it’s dealt with in the Background and Recommendation. The written
description of the, in order to find out what the valuable resources are, in the case of this
application, you have a botanical survey that was done, you have an archeological survey
and you have a survey of the flora and fauna. And the botanical survey will tell you if
there are plants that may be valuable and used in Native Hawaiian culture. The
archaeological survey will tell you what historic sites may exist that are important as a
resource for Hawaiian, Native Hawaiians. There’s also a study of the potential for water
pollution arising from the project. That would tell you about the, you know, because
there is fishing and gathering, and the quality of the ocean is also a valuable natural
resource. So all of that, those are the kinds of information that’s in the application that
addresses all of those issues.
Then there is, you know, in analyzing this as a Department, in the Background
Report -. There’s a discussion of all of these issues in the Background Report, mostly on
Pages 3 and 4; and it talks about some of the resources on the property. Then in the
Recommendation, the rules and the PASH cases require us to make findings about the
potential effects on these natural and cultural resources, and those are contained in the
Recommendation. Starting at the bottom of Page 5 and going on into Pages 6 and 7, it
talks about the, there’s a paragraph showing what has been submitted as far as the
investigation, and then it talks about possible adverse effects and then the feasible actions
to protect it, which would include the protection of the historic sites and the fact that,
with respect to plants which I talked about earlier, there aren’t any rare plants. They
mention that there’s one plant, the kokoholau, which is used in Hawaiian culture; but it’s
not rare, or unusual, or unique to this site.
So all of that has been dealt with in both the application and in the proposed Findings and
Recommendation that was submitted; and this is pretty much what you’re seeing with all
SMA applications like this. You will see a discussion in our Background and in our
Recommendations of the requirements of Rule 9, and how it has been dealt within the
application, and what the actions that we’re saying should be taken to protect those.
WATANABE:So then, Mr. Director, you’re saying, you’ll be in discussion with
the Applicant and the Applicant’s consultant with regard to the cultural impact statement
if, indeed, it is something that you feel is necessary. But it also seemed like you said it
may not be necessary on this property because we didn’t need an EIA.
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17
YUEN:Well, the Cultural Resource Management Plan that’s called for in
the ordinance, that’s the question that I have. The cultural impact statement, they do not
need.
WATANABE:Okay, thank you. Okay, we have four more testifiers on this
application; and so maybe I can call up several of you at a time, at least two of you, let’s
say. I see Mr. Gimpel is there and I believe there’s Mr. Rollin Frost. Is he still here?
Yes, okay. Would you come up, please? As you’ve heard earlier, we’re accepting your
testimony, but this application is going to be continued, yeah, to some later date.
However, may I swear you in? Would you raise your right hands? Do you swear or
affirm to tell the truth now before the Hawai`i County Planning Commission?
TESTIFIERS:I do, yes.
WATANABE:Okay, which one of you is going to go first?
GIMPEL:I’ll go.
WATANABE:Okay. Mr. Gimpel, could you state your name and address for the
record, please?
GIMPEL:Sure. My name is Joel Gimpel. I live at 73-4686 Hinalani Street here in
Kailua-Kona, and I’m here as the Public Affairs Chair of the Kona Traffic Safety
Committee. Like Mr. Tyler, the Kona Traffic Safety Committee is not necessarily
opposed to this SMA. We do have a number of comments, and suggestions, and
concerns that I’d like to relate to you today.
First, as we’ve noted with respect to other SMA applications, we believe that the effect of
the increased traffic volume on the shoreline access must be considered in evaluating
these applications.
In that respect, the TIAR predicts that the development will generate 130 vehicle trips per
day during the peak hours, and that the large increase in ambient traffic forecast for Ali`i
Drive would cause a one-step decrease in the Level of Service to C in the morning and D
in the afternoon. Now, although those levels may be considered “acceptable,” we believe
that the project’s 120 housing units would generate far more than 130 vehicle trips, and
that the forecast of ambient traffic growth may be low, given the many new
developments being proposed along Ali`i Drive. Accordingly, shoreline access via Ali`i
Drive may be severely compromised, and this proposal doesn’t provide adequate
attention to recreational access and facilities. The plans are unclear as to what will
happen to the existing parking spaces within the 50-foot paved area at the entrance.
We have a few comments:
Level of service D is not acceptable for Ali`i Drive, which should be maintained
as a “showplace” oceanfront roadway; and while zoning requires that a turn lane
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18
on Ali`i Drive be installed “concurrently,” it should be placed in service before
the construction commences on site to avoid the effects of construction on the use
of Ali`i Drive.
There must be enough room along Ali‘i Drive to provide for all mandated traffic
lanes, two minimum 5-foot bicycle lanes and two minimum 5-foot pedestrian-
ways, as well as border areas for drainage, signs, mailboxes, hydrants and
utilities, and the like.
The developer should provide additional room, if makai side on-street parking
will be retained.
And if the County considers that round-abouts are suitable at Ali`i Drive or the
Ali`i Parkway, the developer should provide adequate right-of-way to avoid
further loss of utility and those recreational corridors.
The number of parking spaces that are currently available for beach users should
be reduced.
And Ali`i Drive should be improved adjacent to the development (and even
further if the developer is willing to enhance the safety of the community) using
parks and roads fair share contributions. This should include bike lanes and
pedestrian ways on both sides of Ali`i Drive.
Finally, there should be no additional parking within the Ali`i Drive right-of-way,
to retain sight lines and enhance pedestrian and cyclist safety.
Now, with respect to traffic safety, we do note with approval, the applicant’s indication
that because the dedicated left-turn lane on Ali`i Drive into the project was required by
the rezoning ordinance, it will comply. We believe that this lane is needed to maintain a
safe traffic flow, but reiterate that it be placed in service before, not after, construction
commences.
Because the internal roads must conform to County standards and meet the Public Works
requirements to be dedicated, which was stipulated as a condition under the ordinance for
the zoning, we have a number of additional recommendations:
The roadway should be reconfigured to meet the minimum standards for grade
and horizontal and vertical alignment. The terrain suggests an average grade
of six percent, which would meet the requirements of a collector road. The
proposed right-of-way must be wider.
And because impermeable surfaces like curbs, gutters, streets and so forth
may not necessarily promote drainage and protect the natural resources, their
use, especially near the shoreline, should be carefully studied before they are
required.
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19
The 90-degree on-street parking shown on the plans that were filed with the
application does not promote safety or efficiency and, nor is it permitted by
ordinance on dedicated streets and should be altered.
Sidewalks should be included and adequate room for safe bicycle operations
should be provided.
Furthermore, a single access within the tsunami evacuation zone is unconscionable for a
development with 120 units. Only one access for emergency equipment is not a
responsible design for a residential area of this size. And contrary to the applicant’s
statement, the development, as proposed, will place a significant additional burden on
Ali`i Drive. Therefore, the internal road should connect to Ali`i Parkway alignment to
serve as a mauka-makai collector.
The applicant further states and intends to widen the access from Ali`i Drive to at least 24
feet, with added shoulders on the access road and Ali`i Drive (which could be used as
parking spaces for coastal users). We urge that the Department of Public Works and Fire
Department evaluate the access route to assure that there is adequate space for emergency
vehicles and that shoreline access via Ali`i Drive will not be adversely affected in the
event of emergency.
And the second access point should be connected along the Ali`i Parkway corridor as far
south as Laaloa before units are occupied. The developer can use funds remaining after
the property values for the wastewater lift station and the Ali`i Parkway rights-of-way are
deducted from the fair share assessment.
And, finally, we urge that access that extends to the north and south property lines be
provided, in order to promote the connectivity to future development if the adjacent
agricultural lands are eventually rezoned.
Thanks for the opportunity to comment. I appreciate your opportunity and I’ll be happy
to answer any questions you may have.
WATANABE:Commissioners, any questions for Mr. Gimpel? I guess there are
none. Mr. Frost?
FROST:Good afternoon. My name is Rollin Frost. I live on Princess and
I’m probably five blocks from where this is happening. I walk Ali`i Drive every
morning. Everything he says is true, it’s much worse. I would plead with you not just to
look at vehicle statistics ‘cause there are thousands of people that run, walk, trot babies
and dogs on Ali`i Drive; and they’re part of the traffic mix. They’re going right by where
the entrance to this project is. It really needs careful attention.
My role here today, though, is, again, I was here three years ago with Jerry Rothstein on
the Kohanaiki project asking for your kokua on ground pollution. We pointed out to you
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20
folks that underground termicides are used when cheap buildings are put up that termites
eat. Some of you old-timers may know that kiln-drying lumber is not eaten by termites
and old-timers go around and collect the old lumber out of these old cabins. But today’s
modern construction saves a lot of money for builders and developers that it requires
injection of noxious chemicals into the ground regularly. These chemicals migrate.
Three years ago we had some discussions. Mr. Yuen came to my side of the argument
and agreed; and I gave you some handouts on some interview with him about this matter.
This whole area here that they’re going to build on, envision it like a 30-foot pad of foam,
volcanic foam, it’s full of holes, high-perocity cracks and tunnels. Anything put
underground goes right down. Where does it go? To the beach. It all drains to Magic
Sands Beach. I go there everyday. How many of you guys ever eat opihis? Nobody?
Okay. Here, I brought you a token. This is an opihi shell. I doubt that opihi shells and
opihis are on the list of your endangered birds. However, it’s a major problem. And in
your handouts, the last handout is an EPA report on Oahu. Dieldrin and chlordane is in
the fish, and the shellfish; and you can’t eat any of it in the streams and the lakes of Oahu
now. The reason? Underground termicide injection. The reason? People have allowed
buildings with poor materials. Why? You can just inject the little termicide around the
basement. Huh? It’s not like that, folks. I found that opihi next to the beach. About a
month ago, the sand was down at Magic Sands, a low tide came in and I saw a young
man out there diving right next to the beach on the shelf. I was amazed at what he was
doing. He came out and he had opihi for everybody. I picked those shells up. We ate
them a month ago.
If you allow this project to go in without the solid prohibition against underground
termicides, within a year or two there won’t be any more opihi at Magic Sands Beach
park. I guarantee you. Any opihi you find will be polluted. I’m here to beg you, again,
as three years ago, all these structures, there are alternatives to underground termicides if
you let permits also include a prohibition against underground termite injection, termicide
injection. They call this legacy pollutants, now they’ve got a new name for them. It’s a
legacy because it’s going on for decades, this pollution of our ground. You have a
chance to stop it. There are alternatives. I beg you to do it. It’s your children’s legacy.
Thank you.
WATANABE:Thank you. Well, do we have any questions for Mr. Frost?
GRAHAM:Could I?
WATANABE:Yes, Mr. Graham.
GRAHAM:Could I ask, you say you walk along Ali`i Drive everyday and I
know Joel knows more about it, about that area than I do. I live in North Kohala and I’m
coming down to Kona, you know, maybe once or twice a month, twice a month probably
at least, and often we’ve had meetings at the Keauhou Hotel so we come along Ali`i
Drive. I read and hear from everybody that traffic is terrible so I believe it so. But I just
have to say in my own experience, if I drive from here out to Keauhou or something like
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21
that, traffic always seems to move fine for me at the times of day I’m around. And the
only thing I see is what you all say that there’s surfers, dogs, joggers, all that stuff right
on the shoulder of the road. It makes us feel real dangerous so you’ve got to drive
relatively slowly. But I don’t see inordinate congestion. Is it ‘cause I’m there at the
wrong time of day or can you just give me a feel for where the real congestion issue is?
FROST:From my perspective, yes, I go down from 7, 8, 9 o’clock, it’s
terrible. It’s a killing zone. You have a lot of trouble just crossing the street. People are
in a hurry to go to work, zoom, especially if you’re crossing from the beach over to
White Sands condo because the road curves. If you’re on the inside of the curve you
cannot see either direction. Little better on the outside of the curve but they go through
there fast, really fast. It’s very hard to cross the street. You’ve seen the deaths we’ve had
on Ali`i Drive over the last few years. It’s a very bad traffic mix. There’s nothing to
slow people down. Five months ago, I applied for two crosswalks. They have to be
agreed on by the County Council ‘cause they’re not on the corner. But people cannot
cross the street there in the mornings and in the afternoons. You go through there during
the day, probably okay. But, boy, in the morning when kids going to school and all those
people out there -. And I regularly stop young ladies with babies now and I say, look,
you’re going to White Sands Subdivision where I live -- because the reason babies get
asthma is because in the first year of life they breathe toxins and particulates, and these
women are running them along the road and the traffic is going zoom, and the big trucks,
and all of it. It’s kind of a horror story in terms of safety and health. I guarantee you it’s
a hazard. But you don’t want to make it worse by adding another 200 cars. The fact that
you’ve seen some deception already on the part of the developer as to the number of cars
and etc. should make you suspicious. This is a disaster for those of us that live there. I’m
against this project for the traffic safety and because I don’t see anything included in
there about ground pollution. I’ll be back at the next meeting. Thank you.
WATANABE:I take it that’s it for the questions. You may be seated. I believe
we have MerryAnn Stone and Robert Milton, who also signed up to testify. May I swear
the both of you at the same time. Could you raise your right hands? Do you swear or
affirm to tell the truth now before the Hawai`i County Planning Commission?
TESTIFIERS:Yes.
WATANABE:Okay, which one of you would like to go first?
STONE:I’ll go first.
WATANABE:Okay. Would you state your name and address, please, for the
record.
STONE:MerryAnn Stone, White Sands Subdivision, 77-159 Kaipoi Place.
The first thing I want to mention was upon hearing about this project, my neighbor
received a letter from Sidney and called, “Gee, I didn’t get a letter. How come my
neighbor did,” and he said, “Well, they sent out a whole bunch.” Then he said there will
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22
be a sign announcing this project on Ali`i Drive. Well, I made a little mark, map for you.
Here’s Ali`i Drive. This is the 60-foot setback. The sewer treatment plant is there. The
sign was put here, so unless -. And, of course, there’s all trees on this side, and there’s a
house here. So unless you were looking for a sign announcing this subdivision, this
condo, you wouldn’t see it. And there were cars parked in front of it.
I also wanted to mention to the Commission, I don’t understand why Sidney on Page 3
identified the Ali`i Parkway, on 5 he identified Ali`i Highway; and on your map you’ve
got Kahului-Keauhou. I think that that’s a real issue for you guys to try to resolve.
Regarding this complex, the fact there’s 120 units coming in, Sidney said, this is
interesting, the same architect designed Kona Hawaiian Village, well, and he’s going to
be doing a lot of modifying of plans. I’m wondering if this is going to turn into a time
share, and we just haven’t got the whole story yet, like Kona Hawaiian Village did.
The idea that 165 parking spaces is going to serve 120 units is wrong. It will not. They
also indicated they may be putting 3-bedroom units in. It’s not just strictly 2-bedrooms,
it could be a combination of all, which means more parking.
If you look at the plans of this condominium complex, they said, again, the architect was
the man who designed Kona Hawaiian Village. That’s a real tropical, nice-looking
complex even though it is time shared. These projects that they’re building looks like
Ali`i Lani, Kona Sea Ridge, Ali`i Cove. There’s nothing Hawaiiana about them as far as
I’m concerned.
In coming by the parks, Pahoehoe and White Sands, this weekend there were like 26 cars
parked, I’m sorry, 21 cars parked along the street on Ali`i Drive; and I went home on my
lunch hour and there were about six parking spaces left at Pahoehoe on the makai side.
In this area, I believe that the development thinks that they’re going to use that as
parking. That is now beach parking. This 6550, which is by the sewer treatment, it’s
used all the time, and there probably were not more than about 10 parking spaces. He
talked about an access to the beach. Well, if they’re going to do that, does that mean a
sidewalk? Would they have a sidewalk for the people coming down to the beach, which
would be great? And then in looking at their project, I didn’t see any community issue or
a swimming pool or something that would give somebody in that condominium
something to stay in that condominium for. In other words, they’re utilizing the County
public parks to provide any and all recreation activities, the way I looked at it. And,
again, I got most of mine this morning as well.
They talked about a gate. I guess the gate is going to go back by the sewer treatment
plant. And, oh, I just wanted to say for the record, Ali`i Heights, Keauhou View Estates,
450 homes; White Sands Subdivision, I wish I knew, I think it’s about 80 or 90 lots. But
on my street alone everybody has multiple apartments within their house. So instead of
being single neighborhoods, we have bed and breakfasts, we have vacation rentals, and
we have multiple use. So if they say that there’s only 80 or 90 lots in the old subdivision
of White Sands, that may be true. But it’s multiple use. And so the amount of traffic
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going in - I go to walk every morning at 5:30, it’s fairly clear. I come back about 7, it is
as the other gentleman said, huge impact, people walking and jogging and cars going by.
And there’s already White Sands, well, of course, this is summer, people are parking at
the beach, and it’s really intense.
So if they could eliminate a couple of their buildings, create a recreation and swimming
pool, the people at their complex would have a nice place to enjoy, as well as our
beaches. That’s the problem, you cannot allow a subdivision or a complex to rely on the
County facilities at White Sands and Pahoehoe. We do not have the room. We’ll share
it, but don’t make it exclusive. I think that’s about it. Thank you very much.
WATANABE:You have any questions for Mrs. Stone? None? Okay.
Mr. Milton?
MILTON:Yeah.
WATANABE:Now, would you state your name and address, please, for the
record?
MILTON:Yes, I will. I’m Dr. Robert Milton. And my wife and I have
resided at 77-6452 Ali`i for the past 17 years, so we’ve seen Ali`i Drive with more
changes. I’m here somewhat under duress because I have always been pro-development
my entire life, and I still am. And so I do not wish to in any way suggest that I am
against this project going forward. What I am concerned about has to do with having a
connection to Ali`i Highway, or Parkway, for the purpose of an emergency. Because, as
you know, there are infinite possibilities; but I think that in terms of the laws of
probability, we’re pretty much in line for something to happen here that could be a
catastrophy for everyone. And we don’t want to have a Katrina here, I’m sure. But if we
continue to congest Ali`i, we could have something here that would make Katrina look
like child’s play
I deliberately talked to Dr. Widmann, who’s the one who wanted to contest this, and told
him that perhaps we needed to listen to see what happens today; and, obviously, this is
going to be postponed. And I’m sure there’ll be many others of my friends and neighbors
who will join in saying, “Look, we need to have some sort of safety access up the hill to
allow for emergency of fire, a hurricane, an earthquake.” All of those things could be an
incredible catastrophe here for us in this community.
I wanted to just end by saying that ARP, the Association for Retired Persons, did a
survey; and what they’re saying is 13 million Americans, age 50 and older, will need help
to evacuate their homes in a disaster. And I think if you continue to develop the
properties along Ali`i, we can count the number of victims will probably outnumber what
happened to Katrina. Thank you for your attention.
WATANABE:Thank you. Does anyone have any questions? Thank you. Will
the applicants please come back up? I think we’ve got a couple of things here that we
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need to clarify. And, for the record, it’s your opinion, Mr. Director, that the application is
complete?
YUEN:We have to look at that, ensure the Cultural Resource Management
Plan. But in the other two respects it is complete.
WATANABE:Okay, so, I guess my next question will be for counsel since we did
indicate earlier that, you know, the timeframe had, or the time for filing a Contested Case
Hearing had ended; but, technically, I guess it’s done. And if it’s incomplete, how do we,
we’re kind of in limbo here.
TORIGOE:Yeah. Maybe what we should do is, well, the application that was
turned in today it seems was deficient in a couple of ways. It didn’t have the filing fee,
for one thing. But I guess it’s possible that if the Department determines that the
application is not complete, that it would have to be refiled. I don’t know, it’s -.
WATANABE:I’m not trying to open a can of worms here but, you know, I mean,
that issue was brought up earlier by Tyler.
TORIGOE:Right. I don’t know if, Mr. Director, what would you foresee as
being the procedure if it’s determined that the application was not completed at this
point?
YUEN:Well, I think we probably determined the application was
complete, but that it should be supplemented with a Cultural Resource Management Plan.
But I still, you know, I haven’t heard from the Applicant on this point, but that’s my
sense right now, unless they’ve got something in there that I missed.
WATANABE:Okay. That said, Mr. Fuke, do you have any comments with
regard to, you know, supplementing the -? ‘Cause that would then walk, lead us right
into when we would reschedule this.
FUKE:Thank you very much, Mr. Chairman. First of all, I’d like to
reiterate my agreement with the Director’s conclusions relative to the second component
of what Mr. Tyler had to say in regards to the necessity for having like a Cultural Impact
Assessment, you know, pursuant to Chapter 343. I think what Mr. Tyler was quoting was
a quote from, if a person were to do like an EIS or EA, pursuant to 343, then those are the
criteria; but this is not like a 343 document. Nevertheless, the Commission’s rule does
require that you address like the cultural aspects; and, so, as the Director pointed out,
there is a finding both also in the Background of the report as well as in the proposed
Recommendation. Likewise, in the application that we filed in our report, we also did
have a discussion both on the cultural aspects as well as the findings thereto.
On the other component on the Cultural Resource Management Plan, as was kind of
outlined in the ordinance, we are truly aware of that. We had asked specifically of the
archaeologist, Dr. Alan Haun, to prepare a report that fulfills that requirement. In his
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25
investigation, and I don’t want to say what he said and, you know, this is like hearsay, but
I guess this is like just not evidentiary hearing, but I’ll just kind of repeat what he shared
with us. And to the best of my recollection it’s that when he conferred with the State
DLNR to see like what is a Cultural Resource Management Plan, he was informed that in
the DLNR-HPD rules there’s nothing that specifically talks about a Cultural Resource
Management Plan. All you have is like an archaeological inventory survey and, you
know, the process thereto. And then once you have the survey done, then it’s like one of
three things, or all three things would have to be done, pursuant to the approved
archeological inventory survey. One is you either have like a data recovery plan, the
other one is a site preservation plan and the third one is a burial treatment plan. But
relative to the specific Cultural Resource Management Plan, he said like, you know, there
was basically no articulation of what it is. And so that’s what he handed us, you know,
what he handed us with.
To date, I think that, you know, we’re looking for I guess like some guidance then from
somebody that tells us like what is like a Cultural Resource Management Plan because
the DLNR doesn’t, well, according to Dr. Haun, doesn’t have specific guidelines relative
to that. However, you know, we are prepared, we have already, Dr. Haun has already
completed the burial treatment plan. It hasn’t been filed yet but he has completed the
burial treatment plan. He has also completed the site preservation plan which discusses
the cultural components that, you know, Curtis Tyler was referring to. And I would
submit that by the submission of those that I think that directly or indirectly, you know,
you do have I think the archaeological inventory, excuse me, the preservation plan is
really like your management program for that area.
WATANABE:Okay, okay. Well, then -.
FUKE:And we’re prepared to submit that.
WATANABE:Yeah, it sounds like you want to comply, you’re just not sure how,
what it would take to comply, etc. And it also seems like we’re not really prepared to tell
you exactly what it would take to comply. Therefore, I don’t think it would be wise for
us to reschedule this for the next meeting in Kona, unless within the next few days you
and the Department -. Why don’t we leave it up to both, you know, the Applicant and the
Department to determine when? That’s within the rules, yeah -?
YUEN:Yeah, sure.
WATANABE:When we would next revisit this? I mean, we’re agreeing that it’s
going to be continued but I’m just looking at the date. And typically we would say the
next meeting in Kona, but it doesn’t seem like we can settle on that ‘cause we’re not sure
exactly what it is we’re going to ask of you.
FUKE:Yeah, I think from our perspective would be like, we would agree
to like having it subject to the Planning Director’s call, when it gets scheduled.
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26
YUEN:Yeah, well, that’s fine with me. I do want to say in response to
what Mr. Fuke said that what he is saying is correct, that within the DNLR rules there
isn’t something called the Cultural Resource Management Plan. It’s a statement in the
ordinance, I’m not sure what the background of that was. But given that it’s in the
condition that refers to an archaeological survey, it probably means how you’re going to
handle the archaeological sites on the property. And in that case the kind of information
that’s in a preservation plan and burial treatment plan would, I would accept that as being
the Cultural Resource Management Plan. So it sounds like they may be fairly close to
being able to submit that. I would look at that as a supplement to the current,
supplementary information to the current application, rather than something that
invalidates the application from the beginning, and that we would bring it back to the
agenda when we have that and have had a chance to look at that and make a comment on
it.
WATANABE:Okay, we’re in agreement then. Okay. Thank you.
IWASHITA:Mr. Chair?
WATANABE:Yes, Mr. Iwashita?
IWASHITA:Thank you, Mr. Chair. Mr. Fuke, I’m looking at Rule 9-4(8),
definition of “Cultural.” It states, “’Cultural’ pertains to traditional and customary
practices and usage of resources to fulfill responsibilities and rights possessed and
exercised by ahupuaa tenants who are descendants of Native Hawaiians who inhabited
the Hawaiian Islands prior to 1778.” In looking at the application submitted, Page 14, I
cannot discern from what’s presented there that what due diligence, or investigation, or
work was done in order to meet that definition. Can you expand upon that for me,
please?
FUKE:Sure, if you were to look at the archaeological inventory survey as
prepared by Dr. Haun under the Scope of Work, Item No. 1 states, and I’ll just kind of
read it for the record, “Conduct background review and research of existing
archaeological and historical documentary literature relating to the project area and its
immediate vicinity -- including examination of Land Commission Awards, ahupua’a
records, historic maps, archival material, archaeological reports and other historical
sources.” And that was kind of the basis that, you know, this report is prepared. I think
that absent the archaeological inventory survey, then that would be very germane, I mean,
the question that you raised.
IWASHITA:I didn’t follow that last comment. What you mean, “absent” what?
FUKE:If we didn’t have like an approved archaeological inventory survey
which, you know, examined the kinds of issues that you just cited, I think that your point
would be well taken.
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27
IWASHITA:I don’t have a problem with archaeological. This is the definition
of “cultural,” and it says, “it pertains to traditional customary practices.” And I don’t
know of any other than really marginal kind of deductions that you can make from a land
patent grant or those kinds of documents where you can say it would have any reflection
on traditional customary practices and usages of resources in any particular ahupua’a.
So, is that the extent -?
FUKE:Except that if you look at the items that were discussed in
Dr. Haun’s reports, you know, specifically relative to each archaeological find, there is a
description of each archaeological feature, and the archaeological as translated from a
cultural perspective. Like, for example, the mauka-makai trail, there is a discussion as far
as like what that trail was used for in relation to the heiau, there’s a discussion relative to
the ceremonial purposes behind that heiau. So although it’s called an archaeological
inventory survey, one should not necessarily dismiss the fact that there are cultural
discussions in that report.
IWASHITA:Is there any place you can point to me in the application that goes
beyond review of documents? In other words, Mr. Tyler testified that he is a descendant
of Native Hawaiians from this particular area; and, you know, I guess my impression
from his testimony is he was not consulted about any current use, or so forth, or any, you
know, family historical backgrounds. So was any of that done?
DICKLER:Mr. Iwashita, I think your assumption is incorrect, that he wasn’t
contacted. It’s stated that Mr. Bill Brooks, who works with us, had extensive
conversations going on for almost a year now with Mr. Tyler; and Dr. Haun has
contacted three lineal descendants in the furtherance of the Preservation Report and the
Burial Treatment Plan.
IWASHITA:Is that in the report?
FUKE:I don’t believe that’s necessarily, you know, stated that there was
discussion with Curtis Tyler in the archaeological inventory survey. However, in the -.
IWASHITA:Preservation Report?
FUKE:The one in the Preservation Plan and the Burial Treatment Plan,
you’ll find references to those, which you don’t have right now.
WATANABE:Yeah, yeah, correct. We’ll have that, well, it was agreed by
Mr. Yuen that he would accept that as supplement to this; and we did have some
discussion about whether, you know, the application itself needed to be supplemented or
not. Now, whether it needs to be supplemented to the extent that you have a pamphlet
like this, it is different.
IWASHITA:I guess my concern is that we comply with our rules, and
especially when there’s an indication for someone filing a Contested Case Hearing, right?
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28
If there’s an argument, there should not, we should proceed in a way where there cannot
be an argument that the application was incomplete in any way, so that the notices sent
out for this hearing are valid under our rules.
WATANABE:I understand what you’re saying. I think, though, you know,
Mr. Iwashita, that we have discussed this pretty much at length. And I asked the Director
on a number of occasions whether he felt the application was valid or not; and the
Director did state that in his mind the application was valid, but possibly deficient in that
it needed some supplements to it, the supplements of which we just discussed with the -.
IWASHITA:I understand that and I appreciate that. My concern is that the
Director may be wrong in that if there’s a, if we go forward in this way without
renoticing, okay, is basically what we’re talking about, and give people an opportunity to
properly file a Contested Case application, an application to intervene, that if a court in
the future rules that, in fact, even though we think that it’s a completed application -.
WATANABE:Maybe we can -.
IWASHITA:Can I finish?
WATANABE:Okay.
IWASHITA:If, in fact, it’s a completed application, the developer loses, we’ve
lost in how we proceed. And, in my mind, it’s much better to proceed with caution and
do it in a way where we close those kinds, you know, shut the doors on those kinds of
arguments. Thank you.
WATANABE:Okay, that’s fine. But maybe we should cross that bridge when we
get to it because we haven’t determined that it’s not a valid application. You indicated
that, our best indication at this point is that it’s a valid application. If in the process
Mr. Yuen and counsel determines that it’s not a valid application, we can then say we
should open it up for the Contested Case Hearing. But I don’t see where we have to be
concerned about that just at this point.
IWASHITA:Because the person who filed the Contested Case application may
not want to proceed? The problem is that the person who filed that Contested Case
application in the incomplete form, but wait, that’s not the only person we have to worry
about. If, in fact, this is an incomplete application, the rest of the world out there can -.
WATANABE:Exactly.
IWASHITA:The rest of the world can attack this. So it’s not, to me it’s
germane now, that the issue is now, that it needs to be decided. Maybe we need to
review records more. But, for now, I’m not comfortable that this is a complete
application and that, because there are arguments, you know, that we haven’t complied
with our rules. It’s rather clear to me that we can try and do a semantical run-around on
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29
what the ordinance requires, but, you know, that is really subject to attack. What do
those words mean? And if you don’t fulfill that requirement, clearly, we cannot proceed.
So, you know, it’s a really substantial concern I think that has been raised procedurally
and it really needs to be addressed in a way, as far as I’m concerned, where, you know,
we don’t cut off any kind of possible attack on how we proceed with this development.
And, again, I’m not saying that, you know, the development shouldn’t go forward. It’s
just that you don’t want another Hokulia.
WATANABE:Okay. Mr. Graham?
GRAHAM:Commissioner Iwashita, I have what to me is kind of a clarifying
sense on this issue. Going by the Planning Director’s initial comment where he felt that
our rules were fulfilled, but that the rezoning ordinance required a Cultural Resource
Management Plan, that’s something he needed to look into further perhaps. To me, it
feels a little bit like a three-party dispute. Like if you’re the County Council and I make a
deal with you that says, okay, I’ll do something rather before something else, but here’s
the Planning Commission over here, and the Planning Commission says you have to
come up with this or that, well, they’ve come up with this or that. So if there’s any
dispute, it’s not with us, it’s with the Council’s rezoning ordinance. So, to me, it feels
like that’s not really our direct worry at this point. If the applicant feels that he wants to
continue with this project, he may be in a risk of losing his rezoning which would be a
bad deal for him; but it doesn’t feel to me like that’s our problem because he is in
conformance. Judging by what Mr. Yuen said initially, he is in conformance with all our
rules. So I feel like in that regard we are safe, and that, you know, if the Applicant wants
to proceed without fulfilling the rezoning ordinance, which he may or not have fulfilled,
that is his responsibility and not our responsibility.
IWASHITA:On the point about our rules, I, you know, my sense right now is
that if the definitions are met, as represented by Mr. Fuke, you know, we’ll go through
that and make sure, that’s fine. As far as the ordinance is concerned, the ordinance
requires it, as part, to be included as part of the SMA submission, right, this Cultural
Report, right, and or Management Plan? And the fact that, I mean, the developer bought
the property with this condition on it, right? It’s not acceptable to me, you know, for now
anyone to come in and say, well, we don’t know what that is, we don’t know what we
bought, so we don’t want to do it. You’ve got to do it. And I don’t think, as a
Commission, we’re empowered to deal with the SMA permit approval process when we
know that that’s a condition, an expressed condition, this Cultural Resource Management
Plan that the Council has placed upon us to obligate. The Council is not third party
anymore, right? SMA, we approve it, right? The Council in approving the rezoning said,
“When you apply for the SMA permit, you have to include this Cultural Resource
Management Plan.” If somebody had a question about what that meant, somebody
should have asked that, right? But it has to be done. I don’t think we can say, “Well, you
don’t have to do that,” and it doesn’t have to be, you know -. To me, I’m not comfortable
doing a semantical game and saying, “Well, what has been done, we’ll consider that the
Cultural Resource Management Plan.” That’s not, right now it’s not acceptable to me,
unless it can be clarified. But it’s a problem, I see that as a procedural problem. The
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easy fix to me is not easy. But the shortest fix is do the, label it that, to come with
something to call it that, put it in the application, republish; and there can be no really no
question then that it has been done. All right? And that’ll take a couple of months to do,
something like that; and then we can go forward without any doubt. I wouldn’t have any
doubts then. But if we just try and play semantical games and say, “What has been
included meets that requirement, right,” or “Thank you, Mr. Tyler, for bringing it up,” or
“but it has been done,” right, that is to me clearly subject to attack, lots of different ways.
WATANABE:Please, Mr. Director?
YUEN:First, the ordinance says that a Cultural Resources Management
Plan shall be submitted in conjunction with the SMA permit application. We’ve already
put it on the record that there will be a further submission that will satisfy that. It will be
done then in conjunction with the application and brought to the Commission before any
further action is taken.
I would like to say that I appreciate the idea that applications and this process should be
insulated from attack as much as possible, but it is not possible to completely close off all
potential lines of procedural attack or doubt that may be raised. I think we’ve, I’ve been
on the Commission long enough to see all kinds of procedural arguments raised, but that
the decision on accepting an application as complete is administrative with the
Department. And as far as if we’re following the correct procedure, that’s also
administrative with the Department. I’m also always open to the comments of the
Commission’s attorney as far as whether we’re following the correct procedure.
GALDONES:Mr. Chair?
WATANABE:Mr. Galdones.
GALDONES:I’m not an attorney and I’m not officially with a legal mind.
However, the Commissioners are afforded counsel and that is the job of Mr. Torigoe to
advise the Commissioners whether what we are doing is legal or not. Now, he has not
said that what we are doing is illegal; and so, therefore, I believe that the action that we
are taking is defensible. There’s no way that we can stop anyone from raising a charge
against what we’re doing. But whether we can defend our position or not, that is the
advice that we get from counsel. Short of hearing that, I believe then that what we are,
the direction that we’re heading for to have a continuance on this matter I think is a right
one. And I think that’s, I don’t think we’re going to resolve it here today, so I think that
we should head in that direction. However, in the meantime, while Mr. Yuen checks into
certain matters, this will also indicate whether through the process something is wrong.
And if something is wrong when we meet again when this item is agendized then the
Commissioners will be advised what is the proper route to take in order to make it correct
and make it legal so that it can withstand any charge.
WATANABE:I tend to agree. Do I need a motion to continue it, no? We can
continue by consensus, is that -?
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31
TORIGOE:Yeah, you can do that; and this being a Contested Case matter,
actually, I think, I guess the Presiding Officer has the ability to just continue in the
interest of justice. If I may make a couple of comments at this point.
WATANABE:Please.
TORIGOE:Okay. Number one, the questions that are raised by Mr. Tyler and
Mr. Iwashita regarding whether, you know, there’s incompleteness of the application that
may result in having to renotice, these are good questions to think about; and, you know,
at this point, I’m not prepared to give you a solid opinion on that. But from what I’ve
heard so far it seems like, well, if there is a rezoning ordinance out there that says that a
certain type of assessment will be, or a report would be submitted in conjunction with an
SMA application, then that doesn’t necessarily mean that it is a necessary part of the
application. And, so, at this point, you know, I wouldn’t jump up and say, “No, you
know, I think the thing is incomplete, it can’t go forward.”
However, you do need, I think, to pay attention to what the ordinance is requiring in
terms of cultural assessment. And that becomes very relevant to your overall duty under
the PASH and Ka Pa‘akai cases to make the determination whether there are valid
cultural and natural resources that need to be protected, you know, what the impact of the
proposed development will be, and whether any feasible measures can be taken to
accommodate protection of the resources that are there.
So that’s, it’s kind of a long way of saying that “I think you can go forward but look,
watch carefully for the kinds of cultural resources that may be out there and need
protection,” and remember, also, that it is ultimately the Commission’s duty to make sure
that the proper investigation is done under the PASH and Ka Pa‘akai cases. It’s not
something that you can just throw back on the developer and say, “Hey, you guys better
take care of this,” because ultimately it will be your duty to make sure that that’s done.”
At this point, there was an apparently faulty application for the Contested Case. I don’t
know if Mr. Fuke has had a chance to talk to either the applicant or the person, I guess it
was Mr. Milton, who brought that application in. I don’t know if Mr. Fuke has any
indication of whether that application was meant to actually be a serious Contested Case
application or not.
FUKE:I don’t know. I didn’t even see it. I think it was just handed out
to your staff this morning.
WATANABE:Yeah. I believe from testimony that Mr. Milton’s main concern
and the person he was actually handing in the Contested Case Hearing application for,
their main concern was the mauka-makai connection. That was the extent of his
testimony, and there being a need for that so that they wouldn’t have any catastrophe.
And I believe that was Dr. Milton?
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32
YUEN:Yeah, right.
WATANABE:I don’t know if he’s still in the audience.
DICKLER:I did not receive it, either, but I understood when it was being
handed over that it was the person who asked Dr. Milton to deliver it. That’s the piece of
paper he had and he wrote, it was testimony to be read for the record as opposed to a
Contested Case application.
WATANABE:Thank you. Apparently so and, at any rate, you know, again, I
would tend to agree with the Director that, you know, whether it’s a completed
application or not it’s an administrative call. And on top of that your discussion after
that, you know, pointing out that concurrence does not indicate it has to be a part of the
application, would not disqualify this application as an incomplete application. And,
therefore, you know, in my mind, the application is complete, the time for filing any
Contested Case Hearing has lapsed. You know, unless something else comes up in the
future that definitely says this is an incomplete application, we should proceed; and I’m
inclined to just continue this and, as we discussed earlier, hopefully, we would continue
at the Director’s discretion. I think my main concern at this point is assuming we go
ahead and agree that this is a completed application then the timeframe, you know, is 90
days, unless the Applicant agrees. And I don’t know how long it’s going to take you to
develop all this, you know, and you may find that you may have to agree to a longer
timeframe than the stipulated 90 days that the Commission rule states.
FUKE:Sure. Based on, you know, like the earlier discussion, it’s kind of
like my understanding that with the submission of a Burial Treatment Plan and the
Preservation Plan, that would satisfy the “Cultural Resource Management” component
that was referenced to in the ordinance. Is that not correct, Mr. Director?
YUEN:I think that would, you might want to relabel it; but those would
contain the kinds of information that would be required by the ordinance.
FUKE:Okay. Having said that then, you know, from a protocol
perspective and in the interest of time, would we be able to submit that to the Planning
Department and to the Commission concurrently so that the Commission would have
those reports at the same time that the Planning Director has it?
WATANABE:That’s a procedural thing. Is that okay?
YUEN:Well, we could, no, there’s nothing in the ordinance that says I
have to approve it. So we could send that along because we’ve already furnished a
Background and Recommendation. We normally, you know, when we get supplemental
materials in a pending application, we send them along without having to be reviewed or
approved by the Department.
FUKE:Okay. Thank you very much.
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WATANABE:Mr. Iwashita?
IWASHITA:I have another concern, or question to ask the applicant.
Testimony earlier was that the sign that was required by the rule to be posted on the
property was about 60 feet from Ali`i Drive. Is that correct?
FUKE:I believe that if you look in the files, I don’t have a copy of that,
but I believe that Bill Brooks, who works for the company, did take a photo and erected a
fence, did take the photo and submit a letter to the County as required pursuant to that
sign notification requirement. Where exactly it was placed, I don’t know.
DICKLER:It was 60 feet from Ali`i because of the right-of-way for the
entrance for the parking for White Sands Beach and for the sewer treatment.
WATANABE:It’s a flag lot.
IWASHITA:I’m sorry?
WATANABE:It’s a flag lot.
IWASHITA:Is the boundary of this property on Ali`i Drive?
HAYASHI:I can respond to that. There are two properties involved in this
particular application, Parcel 23 which is this lot here, and the other parcel the remainder
of the parcel. The sign, according to the photo taken by our staff, is situated at this
location. So I think what needs to be done is have that sign moved back to the front
portion of the property.
DICKLER:Again, the location of the sign was based on the right-of-way. As
the Chairman stated, it’s a flag lot with a right-of-way paved at the entryway; and, so,
that it would be, to put it on would end up being on someone else’s property, not on our
property, in order to get to Ali`i Drive.
FUKE:Because people presently utilize that area for parking right now,
‘cause that whole frontage is all paved.So putting it on the front portion would mean
that you’re going to give up some stalls, or someone is going to knock it off, or whatever
have you.
IWASHITA:That rule says, “The sign shall be posted at or near the property boundary
adjacent to a public road bordering the property and shall be readable from said public
road.” I’ve seen these signs around. I have a hard time reading it with my bad eyes
sitting in my car, you know, 12 feet away; and it’s posted, you know, in substantial
compliance with this rule.
FUKE:The sign will be relocated.
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IWASHITA:Thank you.
WATANABE:I’m sorry, I got lost on that last part.
HAYASHI:The Applicant indicated that the sign will be relocated to abut the
property fronting Ali`i Drive.
WATANABE:Okay. And, you know, by your last statements about sending it out
concurrently to the Commission, etc., although that may not be necessary, is that an
indication that you would prefer to have this scheduled at the next Kona meeting?
FUKE:Yes, largely because we already have that information. We just
need to get it out, yeah.
WATANABE:Yeah, I seemed to gather that as the discussion was progressing.
Do you think we have space for that, we can allow that?
HAYASHI:I will be working on the agenda on Monday.
WATANABE:Okay. You know what, I’m going to leave it up to staff, yeah; and
you folks work it out. But we’re in agreement now, I think, by consensus that this
application will be continued to some future date. Mr. Graham?
GRAHAM:Just, since we did receive a piece of paper that speaks of Contested
Case, do we need to take a vote that we are not accepting that Contested Case piece of
paper we got before us today, Mr. Torigoe?
WATANABE:That was the point that Mr. Torigoe and I were discussing while
that conversation was ending up; and that’s why I missed the end of it. My opinion, and I
could be wrong, was that we had determined that it was a valid application, that the
Contested Case, the application for Contested Case Hearing was not filed in an
appropriate and timely manner, did not contain the fee and was not notarized in addition.
So it was, I thought it was technically disqualified, anyway, irrespective of our opinion
on that. However, if the Commissioners would prefer that we put it on the record and
vote on it, I would entertain a motion.
GRAHAM;As Mr. Torigoe wishes, it’s fine by me.
TORIGOE:Well, there should be some kind of determination, you know,
whether it’s by consensus or by a formal vote. I think you should dispose of it.
WATANABE:Okay, then, I’ll entertain a motion. Would you -?
GRAHAM:Yes, I move that the Contested Case application that
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Mr. Hayashi brought up to us earlier and the discussion of this application, I move that it
be rejected because it’s deficient.
WATANABE:Thank you. Is there a second?
SALAVEA:Second.
WATANABE:Okay. There’s a second by Mr. Salavea. Any further discussion
on this?
IWASHITA:By deficient you mean that it’s not notarized and the fee was not
paid?
GRAHAM:And it’s not timely. Is it also not timely?
TORIGOE:Yeah.
IWASHITA:I don’t want to say that.
TORIGOE:All right. That’s your decision.
WATANABE:Okay. If there’s no discussion, Mr. Hayashi?
HAYASHI:Thank you. The motion was to determine that the Petition for
Standing filed by Alice and Robert Widmann, which was received today without being
notarized, the Petition not being notarized and no filing fee, be determined deficient.
With that, I’ll call the roll call. Commissioner Graham?
GRAHAM:Aye.
HAYASHI:Commissioner Salavea?
SALAVEA:Aye.
HAYASHI:Commissioner Galdones?
GALDONES:Aye.
HAYASHI:Commissioner Iwashita?
IWASHITA:Yes.
HAYASHI:Commissioner Roe?
RHO:Yes.
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HAYASHI:Chair Watanabe?
WATANABE:Aye.
HAYASHI:Motion carries.
WATANABE:Okay. So I guess we’ll see you when you’re next scheduled.
Maybe we should take a 5-minute recess.
HAYASHI:Before you do that -.
WATANABE:Yes?
HAYASHI:Are you going to make a motion to continue the hearing or -?
CHAIR:Oh, oh, excuse me. We did a motion for, I didn’t realize, I thought
that was by consensus.
TORIGOE:You can just say, for the record, at this point it seems there is
consensus. Any objection to the continuance as proposed?
WATANABE:Doesn’t seem like there’s an objection.
IWASHITA:Including the Applicant.
WATANABE:Yes.
IWASHITA:They nodded affirmatively. Thank you.
The discussion ended at 3:20 p.m.
Respectfully submitted,
Sharon M. Nomura, Secretary
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