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HomeMy WebLinkAbout2003-07-28 TBLASMAN (6) PLANNING COMMISSION CONTESTED CASE HEARING TRANSCRIPT WAYNE BLASMAN JULY 30, 2003 The contested case proceedings for WAYNE BLASMAN (SMA 02-03) was called to order at 9:10 a.m. in the Royal Kona Resort, Resolution Room, 75-5852 Alii Drive, Kailua-Kona, North Kona, Hawai`i, with Geraldine Giffin presiding. PRESENT:Geraldine Giffin, Presiding Officer Hannah Springer, Hearing Officer Grant Togashi, Hearing Officer Applicant: Wayne Blasman Randy Vitousek, Esq. Intervenor: Maile David Maile David Karen Eoff Intervenor: Klana Huli Honua Mikahala Roy David Roy Kahala Ann Trask-Gibson County of HawaiÒi Pat OÓToole, Esq. Christopher J. Yuen, Hawai`i County Planning Department Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Staff Phyllis Fujimoto, Staff And approximately 11 people from the public in attendance. APPLICANT: WAYNE BLASMAN (SMA 02-03) Î Application for a Special Management Area Use Permit to allow the development of a 13-unit project and related improvements. The property is located on the east side (mauka) of Ali'i Drive in the vicinity of Hlualoa Bay and across of the Keolonhihi State Historical Park at Kamoa Point, Hlualoa 4, North Kona, Hawai`i, TMK: 7-7-4:26. GIFFIN:Good morning, IÓd like to call this contested case hearing back to order. We are here because thereÓs an application for a Special Management Area Use Permit to allow the development of a 13-unit condominium project and related improvements. The Applicant is Wayne Blasman and the SMA No. is 02-03. 1 With me this morning are hearings officers Hannah Springer to my right, and Grant Togashi to my left. IÓm Geri Giffin and directly next to me is our Deputy Corporation Counsel Ivan Torigoe. The parties this morning starting with the Applicant. VITOUSEK:Good morning, Randy Vitousek representing Applicant Wayne Blasman who is also present. GIFFIN:Good morning. Maile? DAVID:Aloha, Maile David, Intervenor. To my left Karen Eoff. GIFFIN:Thank you. Mikahala? ROY:Aloha, Mikahala Roy, Executive Director Klana Huli Honua. To my right is Kahala Gibson. To her right David Roy, President of Klana Huli Honua. GIFFIN:Thank you. Pat? OÓTOOLE:Good morning, Patricia OÓToole representing the Planning Director, and the Planning Director Chris Yuen is here. GIFFIN:Thank you. And yesterday I forgot to acknowledge the presence of our staff. Sharon Nomura, Phyllis Fujimoto. Is that right, Phyllis? FUJIMOTO:Yes. GIFFIN:And Norman Hayashi. Yesterday when we recessed for the evening, I do believe we were cross-examination of the Director. So without any further ado, Chris, will you come up? And when we stopped, Randy was through cross-examining Chris. I Randy, if you had any more questions that you wanted to ask the Director or would you like me to come back to you later? VITOUSEK:Please come back to me later. GIFFIN:Thank you. Then in our usual procession of order, Maile, did you have any more questions that you wanted to cross-examine the Director? DAVID:Not at this time. We will continue with Mr. VitousekÓs questionings, right? GIFFIN:And heÓs, right now he is on pause, and so IÓm going to t you have any that you would like to ask, IÓm giving you the floor. 2 DAVID:Just one question. IÓm trying to get up to speed from where we left off yesterday. It was a long day. Your assessment of impacts and your recommendation for the solid screen, is it your position that that would satisfy all the impacts that was brought up throughout this proceedings, cultural impacts? YUEN:That that would take care of them, no. DAVID:Okay. Thank you. GIFFIN:Mikahala? M. ROY:Thank you. At this time, I donÓt have particular question; however, IÓd like to reserve the right after, IÓd like to hear attorney VitousekÓs questioning. And, perhaps, may I reserve my questioning then? GIFFIN:Oh yes, yes. Members of the panel, Mr. Togashi? TOGASHI:No questions at this time. GIFFIN:Ms. Springer? SPRINGER:No, MaÓam. GIFFIN:I have some questions. Chris I just, I had a very small detailed question. Yesterday you spoke of PuÓu. You said that you conferred and got some sort of definition of a man by the name of John who? I didnÓt get his last name? Am I incorrect? YUEN:What I had come across was in the, the records of the previous application for this property that Violet Hansen who was a local historian had spoken with a Hawaiian gentleman, I believe that his last name was Ako, who said that he lived, who lived on, at what was the units that were then, Snug Harbor, the rental units, and that the name of the area was PuÓu Nui. ThatÓs what, thatÓs what was in GIFFIN:And who is Violet Hansen or was? Is she still alive? YUEN:I donÓt think sheÓs alive. She was Î. GIFFIN:Did she live in the area? 3 YUEN:I donÓt know. I thought she lived in Kau, to tell you the truth. She was a kamaaina who was interested in Hawaiian history and studies, and was known as a local historian, fairly well-known individual in that, in that field. So thatÓs all I know about her. I donÓt think I , I donÓt know if I ever met her. But sheÓs, sheÓs known in the community as a person who tried to study and learn about Hawaiia GIFFIN:And she was quoted in the application, the former application as given credence to the fact that PuÒu Nui was an actual place? YUEN:This is, yes. I mean, this is somebody said Violet Hansen said that she heard that the name was PuÒu Nui. GIFFIN:Okay. Now did they give a date when, I mean, I know you mentioned the date of the former application. YUEN:Yes. GIFFIN:And this was in that background report or whatever it was for the application, is that what youÓre saying? YUEN:I think it was in someoneÓs testimony or in a letter, and I canÓt remember what. There was a fair amount of the same, some of the same kinds of things that weÓre talking about today at the time of that application, more in the sense of trying to, there was more about trying to determine where some heiau were that are mentioned in the old records. But I know this came up. I have the file in the car. I can try dig it out to get exactly what was said. But this is just something that came up in 1980. When she got the information, I donÓt know. GIFFIN:And then you said in 1936, the subject property received a separate tax lot, a tax map key number? YUEN:Some time, some time before 1936, because the first tax map have date from about 1936, and youÓll see this was already a one and quarter acre lot. I think that the size, I think there has been a slight change to the boundaries since then on the lower lot side. But, other than that, the lot itself must have been created before 1936. And the only, I was hoping that this would come out in some of the testimony. In the National Register Application, there is title, thereÓs a little bit of title information about the property after the award to Loe. GIFFIN:Yes. YUEN:It says that Loe passed away. And then it says that in the 1980Ós, Queen Kapiolani bought a 2/3 interest in Grant 7-2-2-8, thatÓs a larger property now; and that a man named MoÓe who is a descendant of Loe retained a third. And then it doesnÓt say anything. And notice, I mean, this is not, this property, that report is, of course, not 4 focused on the Blasman property. ItÓs focused on the Keakealaniwahine parcel. But in, and thatÓs the last that I know of it. Now we could do, what you have to do is a title search and find out at some point somebody sold or otherwise granted out an acre and a quarter. Now the Keakealaniwahine parcel of about 16 acres, the configuration of that changed over time. I looked that up, and I just, I canÓt remember that off the top of my head. But it was in the last few years. I think that, there were two TMKs. The larger part of 7-2-2-8, you know, at some point, 7-2-2-8 went, went way up mauka. And, at some point, subdivisions were made makai of Kuakini Highway. GIFFIN:Right. YUEN:Then at some point, what we now call the Keakealaniwahine parcel which is Parcel 11, there was a split of a lower part of this grant. But the parcel is not in this configuration. The configuration was changed in the early 1990Ós to the present configuration of Lot 11. GIFFIN:So is that when those subdivisions mauka of the subject property and the heiau were developed? Because I donÓt recall when those subdivisions came before the department, although I was not on the Commission at that time, that there was any kind of public testimony similar to what weÓre hearing over this application? Am I mistaken? YUEN:That I, you mean the subdivision thatÓs shown, and I donÓt of it, in Grant 7-2-2-8, makai of Kuakini? GIFFIN:Yeah. YUEN:I know nothing about that. I canÓt help you with that at al GIFFIN:Okay. Well, I was just astounded that here we are looking at a map that shows these existing subdivisions; and I think in public testimony Mr. Roy even talked about finding historic sites and/or features that were not even recognized by the State or the County. And I think that he spoke about a heiau that was being, I donÓt know, sold or auctioned because of tax delinquency. And I found that astoundi I also, Mr. Yuen, go back to this report that Maile David included as her Exhibit A which was, itÓs a report by the advisory committee, the cultural resource management report that Mr. Roy was the chairman of. And in the back of it, there is a statement by the chairman. Where, and I read with interest, he speaks of how this property was, you know, sold and subdivided, not subdivided, but divided. Did your research coincide with what is stated in his report, or his statement in Ms. DavidÓs Exhibit A? YUEN:Could I look at that? Could I look at that? 5 GIFFIN:Here, I can give it to you. I have it marked, IÓm sorry, but -. He speaks on page 4 of the guardianship of a trust company in Hilo of children, minor wards. And then from there he says that the trust company forced the sale, and Mr. Roy, correct me if IÓm wrong, of these lots for their support. And I wondered if your research coincided. YUEN:The only information that I can relate is that the, the Blasman property, on the earliest tax maps which are, roughly 1936, I believe the owner is shown as Frank Silva. GIFFIN:Okay, the man that weÓve Î YUEN:I canÓt remember who the owner of the, at that point in the tax maps, who the owner of the larger portion of 7-2-2:8 is shown as, so I canÓt help you with that, in the Keakealaniwahine parcel itself. As far as, you know, your earlier comment, sensitivity to historic, Hawaiian historical sites, in particular has changed and increased over time, I think thatÓs a fair statement. So youÓll see things that happened in the past that people would, would hate to see happen today. WeÓre really fortunate that this Keakealaniwahine property is still relatively intact, because it could easily, it was in private ownership from the Mahele, up until 1988, and easily could have been bulldozed out, sold. Somebody made a decision to not do that. And IÓm very happy that that happened. Whether th understanding and sensitivity to the importance of the site, or just because it never surfaced as a developed, as a piece of property that someone wanted to develop, I donÓt know. Certainly by the 1980Ós, anyone who owned the property would have been aware that the archaeology would, would be a major issue or constraint if they had come forward with a development plan or development proposal for the property. However, the legal protection really does not exist for property that just happens to be in an agricultural zone. Many sites have been bulldozed, or chain-dragged, or otherwise destroyed without any kind of land use permits. So thatÓs, thatÓs one of the things that weÓre very fortunate in, in this particular, in the property thatÓs now owned by the State. GIFFIN:So then the prior application for our subject property, at that time in the 1930Ós was there any sensitivity towards cultural, Hawaiian cultural sites and all of this that you just spoke of? Because I wondered if in the application there was any statement of a landscaping plan; and if so Î YUEN:In 1980, you said 1930Ós. GIFFIN:IÓm sorry, 1980, yes. Was there? YUEN:I donÓt think so. And, as far as, there certainly was testimony and concern about the effect of development on this site on, I think the testimony at the time was more in terms of Keolonhihi, because that was, Keolonhihi was very much in the forefront at that point with Friends of Kamoa Point. But there was, there were, there were letters of concern about this site. It was clear from the archaeological report that was done at, even 6 at that time, that the site, the Blasman property at that time in 1980, no longer had any physical features remaining on it. But there was still this, there were similar, I would say similar sentiments of concern. There was not, the Planning Comm decision one or two meetings to clear up some of the issues. There was not a contested case hearing requested, and the application was ultimately approved. I donÓt think there was any particular landscaping plan with that, no. GIFFIN:ThatÓs what I wanted to know. If so, what was the plan, and Î YUEN:And then the permit lapsed and was revoked around, there wa extension granted, and then it lapsed and was revoked within a few years. GIFFIN:So, at that time, would it have been a 10-year application for, time limit for the Applicant to act? YUEN:It was much less than that. I donÓt remember the exact timeframes, but it was much less than 10 years. GIFFIN:So it was in the Ò80s then when it lapsed? YUEN:It was in the Ò80s when it lapsed, yes. GIFFIN:Okay. And in all of that research, you didnÓt see, see any evidence of mention of plants that were germane to the area that were common during the period that you were speaking, 1778? YUEN:I donÓt think there was a landscaping condition with the 1980 permit. GIFFIN:Okay. Thank you. Mr. Togashi? TOGASHI:I do have a question. IÓm sort of, I guess maybe, sort of confused by your testimony. In your testimony yesterday, you spoke about the limitations of the size of this lot. And you mentioned that it was, in terms of mauka to makai, the length of the property is about 200 feet, you said in your testimony. YUEN:On the north end, which is the left-hand side here, the Kailua side of the property. I think thatÓs correct. Hang on a second. TOGASHI:ItÓs not mauka to, you werenÓt referring to a mauka to makai distance in terms of the length of the lot? I guess going from the, the east boundary to the west boundary, is that what you spoke of, 200 feet? YUEN:No, I was thinking mauka to makai. I might be wrong on thi here is blued out. I think it might be 260 feet. 7 TOGASHI:Oh, 260 feet. But anyway, never the less, you spoke about some current concern over the size limitations of this lot. And letÓs say had this lot been maybe two or three times in size, that you could conceivably, had it been two or three times the size of the existing size that conceivably the developer could have perhaps built his project on one end of the, furthest away from the Keakealaniwahine Complex. And yet, I guess, my concern is that you describe the, or spoke of the size limitation, but yet you did not feel that the scale of this project needed to be scaled back. And you felt that essentially the 13 unit or did you say seven building, is it seven-, eight-building complex is, is appropriate even for this, and any recognition of the proximity of this lot to Keakealaniwahine. And IÓm just trying to get a better feel of your, that statement the YUEN:I donÓt have an issue with the number of units per se in the sense of itÓs going to have too many people around the area, or too many cars, or too much activity. My, what I, when I spoke of the size of a lot, what I meant was that itÓs, itÓs very difficult to have a meaningful or effective buffer simply by distance. You know, the more typical thing is to try to, say you have a public beach area, and you have a development youÓre trying to buffer the public beach area from the development; and the person has a lot like in, along the north Kona coast. They might have a lot thatÓs a mile deep and are coming in for a development. Well, then you have a lot of space that they can, you can work with and create an effective buffer and they still have space to build on. On this site, itÓs difficult. I donÓt know that just based alone, if you pushed them, youÓre trying, I am trying to accommodate the economic desires of the owner. And itÓs very difficult to do that with space on this property. So that was the, so thatÓs the tact I took, was to try to do that with landscaping. I think you still need some space for landscaping, but Î. TOGASHI:So youÓre saying that the economic rights of the landowner does hold some weight in your decision. And, I guess, you spoke of that analogy of having development next to a public beach. And if you applied that same analogy to a smaller property like this of 1.2 acres, would it not be analogous to say to reduce the scale of this project here in the same analogy of a public beach next to a development, would it not be analogous to do that, too? YUEN:You might go through some of these same kinds of analysis. using that as an example of some place if you have a deep enough lot, you can use space as the buffer. In this case, they donÓt have a very, a very deep lot. And so my approach was to use landscaping as a buffer. And in regard to the first part of your question, yes, itÓs part of my responsibilities to take into account the economic interest of a private landowner. TOGASHI:Rather than just the landowner right to use his property? You know what IÓm saying? I mean, there are landowner rights, and economic rights, and -. 8 YUEN:Maybe because IÓm an attorney as well, I use the term econo rather than rights. The landowner has economic interests that have to be respected in a land use process. The right to develop this property is subject to regulation under, in this case, if the zoning, he has the zoning, heÓs subject to regulation under the conditions of the SMA law. However, in applying those conditions, we, in my r and say, ÐWell, lots of people in the public would like to see nothing happen on this piece of property at all, Mr. Blasman and his partner are perhaps the only people that really want to see a condominium built there; therefore, I am not going to pay any attention at all to his interests.Ñ His economic interest in being the landowner of the property is something that deserves and has, I think, I hope, received a great deal of consideration in this process. TOGASHI:You wouldnÓt deny though that he can still have an economic interest by perhaps even considering a single-family house? Would he not still have an economic interest? YUEN:ThatÓs, that would be Î. TOGASHI:That house would have some value attached to it. YUEN:As, as an economic use of the property in terms of that, that being a viable economic use, that is true. A single family residence would be a viable economic use of the property. It would not, it might cause him a financial loss in terms of what he wanted to do or in terms of what he invested in the property, but it would be, it would provide some economic use of the property. TOGASHI:ThatÓs about all I have. Thank you. GIFFIN:Okay. Hannah? SPRINGER:Just to clarify for myself, following on Commissioner TogashiÓs last question. In the same way that this panel should not nullify the ApplicantÓs economic interest, are we under any obligation to maximize it? YUEN:No. SPRINGER:Thank you. Also in that regard, very early in this process, Ms. Roy commented that the present buildings, although dilapidated, are less offensive because of their single story nature. The State Historic, or State Parks administrator Dan Quinn recommended the single story construction. Would not that single story construction have less, require less excavation and, again, offer some economic enterprise by the Applicant, but be less intrusive to the neighboring property? 9 YUEN:The excavation, I canÓt answer. The, I think that they testified, Mr. Bleck testified that they werenÓt going to excavate the basement, or their car, the garage thatÓs underneath the buildings, that that was built at, basically, at grade. I would agree certainly that a single-story building in the back would be less obtrusive and would also be easier. If the project came in with even with a single-story building, I would still recommend a landscaping condition. It would be easier, considerably easier, to shield the view of a single-story building than the multi-story building. SPRINGER:Thank you. GIFFIN:Thank you. Now, going one more time, the County, Mr. OÓToole? OÓTOOLE:Mr. Yuen, I understand that itÓs common to put in conditions of, in the SMA permit, that certain things would be taken care of at the plan approval level. Can you explain what your concerns would be if these kinds of conditions were put in this permit? YUEN:There are a number of concerns there. First is that itÓs, if a permit is approved with a particular site plan, and then also a landscaping condition, thereÓs the implication that the landscaping has to work around the site plan. And if then that the landscaping is not sufficient, then the site plan wins out over the landscaping. It then becomes a difficult matter of negotiation between the Planning Director and the Applicant, rather than being a firm condition. The second point is that if a Planning Director rejects a landscaping plan at the time of plan approval, the Applicant can appeal that to another body, the Board of Appeals. And if the Board of Appeals doesnÓt have perhaps the, the same desire as the Planning Director for the screen or disagrees with the Planning DirectorÓs analysis, then the Board of Appeals can overturn the Planning Director. This could, this could not be done if the Planning Director was enforcing a clear condition put in at the time of the SMA permit. Another concern that I have is that we tend to, and I hope IÓm not doing this here, we tend to sometimes, I think, in making land use approvals to paper over problems with conditions like -. And so if thereÓs an issue that comes up, we rather than say no, we put on a condition. And then the condition doesnÓt really work or get enforced because itÓs really very difficult. I donÓt want to do that here. I want to have a condition thatÓs clear enough to be enforced in the future. And I donÓt want to set up something that, that thereÓs a irreconcilable conflict between the development and the condition. 10 OÓTOOLE:Thank you. You were questioned yesterday, I think, about your recommendation for denial and how this would, might affect the price of the property in the event of any kind of condemnation action. Is your recommendation at all based upon a desire to affect the price? YUEN:No. This was an attempt to reduce the problem of the intru site, that this project presents into an important historic site. OÓTOOLE:Are you aware of any evidence that the State ParkÓs recommendations are made to affect the price as well? YUEN:No, at the time, and I only discuss this because this was argued by the ApplicantÓs attorney. At the time State Parks wrote that letter, IÓm sure they had no funds to purchase the site; and I, itÓs clearly written as a letter that is motivated by the same desire to reduce the intrusiveness of this proposed project. OÓTOOLE:Thank you. I have no further questions. GIFFIN:Mr. Vitousek? VITOUSEK:Thank you. Thank you. Mr. Yuen, as I understood your yesterday, I thought you said that, excuse me, I thought you said that when we were talking about 205A-26(2)(A) and your opinion as to the existence of any potential, substantial adverse environmental or ecological effect, that in your opinion, there was one potential adverse economic or environmental effect, and that was the visual impact of the project on the nearby Keakealaniwahine site. IsnÓt that correct. YUEN:Yes. VITOUSEK:Okay. So when you were asked by Ms. David whether ther whether the proposed mitigation measure was intended to address all impacts, what were you referring to? I mean, were you referring to other potentially substantial adverse environmental effects that you have not previously identified? YUEN:No. When you asked about substantial adverse effect, the visual effect is a substantial adverse effect. There are other impacts on the project. Noise is an impact. I would not, in the context of this application or the context of this site, I donÓt think the noise is a substantial adverse impact. VITOUSEK:So, I just want to be clear that, then based on your testimony yesterday and not withstanding your response to Ms. DavidÓs question, that the only potential substantial adverse environmental and ecological effect, which you have identified and on which you are basing your recommendation, is the visual impact of the project when viewed from the Keakealaniwahine Complex? Is that correct? 11 YUEN:Right. VITOUSEK:Okay. And just to follow up on some other questions, M property is currently zoned RM-1.5 under the County of HawaiÒi Zoning Code, isnÓt that correct? YUEN:Correct. VITOUSEK:And under the RM-1.5 zone and a 1.255-acre parcel, the Applicant, there would be a permitted density of up to 36 multi-family residentia that correct? YUEN:Yes, that is correct. I think that they would have to build smaller units than theyÓre proposing to get to 36, given setbacks and height limitations and parking limitations. But you could build up to 36 individual units, yes. VITOUSEK:Okay. And the property is in the State Land Use Urban district, isnÓt that correct? YUEN:Yes. VITOUSEK:And under the HawaiÒi County General Plan, the specific designation for this property is for urban expansion, isnÓt that correct, under the LUPAG map? YUEN:Let me, let me double-check that. I thought it was, could I see the background report. I donÓt want to be mistaken on this. I thou but I could be mistaken. I see the background report. ItÓs medium density urban. VITOUSEK:Okay. And so that, that would be consistent with the RM-1.5 zoning, isnÓt that correct? YUEN:Yes. VITOUSEK:And in the RM-1.5 zoning district, isnÓt the maximum permitted height of structures 45 feet? YUEN:Yes. VITOUSEK:So in the, the owner of the property would be within their rights under the Zoning Code if they were to propose a development of up to 36 units with up to 45 feet in height for each unit, isnÓt that correct? YUEN:Yes, that is correct. 12 VITOUSEK:Okay. And doesnÓt that to some extent, doesnÓt the Zoning Code present the County of HawaiiÓs designation or judgment as to an appropriate use of a particular parcel? YUEN:To some extent, yes; but the SMA is an overlay on the zoning and thereÓs an additional set of criteria that need to be satisfied. VITOUSEK:Fair enough. But in terms of an ownerÓs reasonable expectation as to their ability to use and develop the property, if the property is in the urban district and general planned for medium density, and zoned for multi-family residenti have a reasonable expectation of some ability to develop their p those land use controls, isnÓt that correct? YUEN:I think youÓre not giving a complete picture of what I would need to know to say what the reasonable expectations of an owner are. Those are parts of what make up the reasonable expectation of the owner. In this case, I would also add some, I would add the fact that the property does have to clear, to develop a project like this, does have to clear through an SMA permit, and has a sensitivity due to neighboring properties. VITOUSEK:Fair enough. So if, if we add then the fact that a special management area use permit had been granted by the HawaiÒi County Planning Commission with respect to the specific property for a 32-unit project without any condition regarding the landscape buffer or screening from the adjacent property, wouldnÓt that also add to the ownerÓs reasonable expectations as to what they could develop on the property? YUEN:I would say that would be a factor, but that you, we also have to recognize that there has been a change in attitudes and increasing sensitivity to, I hope an increasing sensitivity, to Hawaiian cultural issues between 1980 and the present. VITOUSEK:Okay, fair enough. So coming in with a project, the proposed 13 as opposed to 36 units, and proposed maximum height of 36 feet as opposed to 45 feet, and proposed a significant landscape buffer between the environmental, between the cultural site and the property, may actually reflect some increase cultural sensitivity and increased sensitivity to concerns of density in proximity to a cultural site, isnÓt that correct? YUEN:ThatÓs correct. And I would say that the fact that the property, that the application was for less than its maximum density and less than its maximum height influenced my decision to try to handle the problems created by its intrusiveness into a historical site through a landscaping condition, rather than through other measures. I do think though that the Applicant is trying to max out the site by pushing itÓs, is not, is trying to develop the whole site. ItÓs not leaving, the site plan does not include substantial buffers along the perimeter of the site. 13 VITOUSEK:WhatÓs permitted in terms of the setback from the prope RMA-1.5 district? What is the permitted setback between a building and the property line in the portion of the property where the, where the Î? YUEN:Somebody, again, I have to ask is this an open book question? I have to dig out a copy of the Zoning Code to give you an answer to that, unless thatÓs in our background report. May I call on the much greater experience of Mr. Hayashi to help me with this. Rear yard minimum setback is 20 feet. Front yard is also 20 feet. VITOUSEK:Okay. And isnÓt it a fact that the proposed buildings are setback 38 ½ feet from the, the minimum of 38 ½ feet from the property line? YUEN:From, right. ThatÓs in the later site plan, yes. VITOUSEK:So thatÓs almost double the minimum setback established by the, and itÓs your opinion that the owner did not make an attempt to set it back further from the property line? Was that your testimony? YUEN:No, my testimony, clearly the owner have set it back farther than the minimum. My testimony though is that they are, theyÓre close to maxing, you know, I think I spoke a little imprecisely. But their site plan does not, as presented, does not involve any substantial area for planting, and to landscape or to buffer the adjacent property. VITOUSEK:Mr. Yuen, directing your attention to Exhibit 17 and to the mauka boundary of the property. And is your testimony that the areas shown on the property that, on the mauka boundary that are available for landscaping show that as being used for landscape and are minimal? YUEN:Just a minute. Not counting the access road, the width of the area is minimal. The width of the area shown on the property boundary for landscaping is 5 to 10 feet. VITOUSEK:So you have reached the opinion that a, have you reached an opinion that a landscape plan which effected a complete visual area could not be developed within the space shown on the site plan? YUEN:I doubt it very much. And I have, I havenÓt been shown a p convinces me that it can. VITOUSEK:And so what is the basis of your expertise that allows you to evaluate whether a particular type or suite of plants could be grown in the space indicated? In other words, do you have it, do you have any training in landscape architecture? 14 YUEN:To the last question, no. To the first question, having gone around and looked at lots of plants and lots of landscaping. VITOUSEK:And so having driven around and looked at plants and landscaping is what gives you the expertise to, to critic the landscape architectÓs testimony, is that correct? YUEN:Yes. VITOUSEK:So then based on the, on the recommendation that you made yesterday, that you were recommending denial of the application because of, because you doubted that the plan proposed by the landscape architect could effect a complete visual screening between the project and the Keakealaniwahine Complex, was that based on your, on your driving around and looking at landscape? Is that whatÓs the basis of your conclusion, that the plan was inadequate and that you would make a denial, or recommend denial because youÓve driven around and looked at landscape? YUEN:IÓve also stopped not just driven around, stopped, looked at various sites that are landscaped with native and non-native trees, and paced off the distances between trees, paced off distances of, that were planted and seen the visual effect. VITOUSEK:Have you offered any evidence as to the, as to those particular areas or issues, or what youÓve done, or this is just your own assessment conducted outside the record that youÓre relying on in terms of making a recommendation? YUEN:ItÓs my own assessment, yes. VITOUSEK:And itÓs not apparent on the record of this contested case hearing, isnÓt that correct? I mean, your assessment is, but the basis for it? YUEN:No. VITOUSEK:That is, no, it is not apparent on the record? YUEN:No. VITOUSEK:Mr. Yuen, in reaching your recommendation, and when we the sections of Hawaii Revised Statutes, Chapter 205A, you were relying on sections of 205A(2) which related to protection of cultural and historical sites, isnÓt that correct? YUEN:Yes, in part. VITOUSEK:Okay. And what else were you relying on 205A(2)? Were there any other parts of the statute that you were relying on? YUEN:There are parts that refer to recreational opportunities. 15 VITOUSEK:And that was based on your testimony that to some exten cultural sites is a recreational activity, isnÓt that correct? YUEN:Yes. VITOUSEK:So it really goes back to the cultural components, isnÓt that correct? YUEN:Yeah, it relates. VITOUSEK:Okay. And IÓm trying to get clear on what cultural resource of value is being protected by your recommendation and by the proposed mitig proposed condition. YUEN:The integrity of an important historic site and the enjoyment or the experience that a person has in going and viewing that site. VITOUSEK:And so letÓs focus on the component of the experience that the person has when they go and visit the site, okay? And, specifically, is this a, is this a concern that is directed towards preserving the experience of a native practitio YUEN:Among others. VITOUSEK:And who would the others be? YUEN:The general public. VITOUSEK:Okay. Is there any evidence that the general public is or, is now or will ever be invited into this site by the State of HawaiÒi who owns the property? YUEN:I donÓt know that the State has determined any kind of management plan. Typically there is some opportunity for public viewing of historic sites on State property. VITOUSEK:And isnÓt it, I mean, I guess what IÓm trying to reconcile is, is from the testimony that weÓve heard, there may be a conflict between public access to historic sites and the practice of native Hawaiian cultural traditions in those sites, isnÓt that correct? YUEN:IÓm not sure how public use will eventually be handled at Keakealaniwahine. There isnÓt a management plan. I donÓt think the decision has been made. I think, what IÓve heard, and certainly there may be conflicts over time of use and there may be ceremonies that are closed to the public. As to whether the site as a whole should be permanently closed to the public, I havenÓt heard that. VITOUSEK:Well, if the State of HawaiÒi is designing a public access plan, it could design, it could design and channel public access in a way that would not necessarily have the public in all areas of the complex, isnÓt that correct? 16 YUEN:That is true. VITOUSEK:So the State could design public access in a way that the public would not be channeled into a position where they would be impacted by any development on the Blasman property, isnÓt that correct? YUEN:That is true. ThatÓs a possibility. VITOUSEK:Okay. And so the potential impact on the public conceivably could be mitigated by the State in its own management of its cultural and ÐrecreationalÑ resources, isnÓt that correct? YUEN:ThatÓs correct. But I think it would be a shame if the State felt that it ought to keep people away from going to certain areas because of a decision that the County had made to allow a particular development. VITOUSEK:The, it wouldnÓt be a unique situation, would it not, for there to be a historical site in close proximity to other types of economic and residential uses, would it? YUEN:No, that is already going on in this, in this very area. And thatÓs, again, one of the reasons why rather than some more drastic recommendation, IÓve recommended handling this particular application through a landscaping screening rather than really cutting it down or banning it entirely. VITOUSEK:Yes, but the particular screening that you had proposed is a, is a particular type of screening. In other words, youÓve proposed, you said that unless there is a particular type of screening, you will recommend denial. IsnÓt that correct? YUEN:Yes. VITOUSEK:And that particular type of screening requires that the project not be visible from the historic site, isnÓt that correct? YUEN:ThatÓs my recommendation. VITOUSEK:Okay. And so are you familiar with other areas here, o anywhere where there is a specific development condition that says that the proposed project has to be invisible from a nearby cultural site? YUEN:No. VITOUSEK:So this condition would be unique then in that respect, isnÓt that correct? YUEN:As far as I know. 17 VITOUSEK:Turning to the exercise of cultural rights by native practitioners on the property and how that may, on the Keakealaniwahine property, and how that may be impacted by the proposed development, okay. Is it your position that the native practitioners on the Keakealaniwahine property would have any cultural right to a particular viewplane? In other words, would the constitutionally protected exercise of the customary and traditional rights include a right to a particular view from a cultural site? YUEN:IÓm having difficulty -. As with one of the previous questions, IÓm having difficulty with the use of the term Ðright.Ñ If by Ðright,Ñ you mean that the cultural practitioner has an absolute right that cannot be infringed, to have a viewplane unobstructed or unimpeded in any particular direction, I would say no. I would say that the desire of, and we have had testimony about the desire of the cultural practitioner to have a setting that is, that is like the setting of old in carrying out the cultural practices. I would say that desire is something. I donÓt like to use the term Ðright,Ñ because again as an attorney, when I hear that term I think of something that is, it may imply a right that it should not be impeded; and I donÓt think that exists. But I think that desire is something that should be respected in, and that we should try to accommodate in the process of approving SMA permits. VITOUSEK:In HawaiÒi law and in applying HawaiÒi law to the context of land use decisions, we have the opinions of the Supreme Court that say that the exercise of customary and traditional rights can pose limitations on a private landownerÓs use of their own property, isnÓt that correct? YUEN:Yes. VITOUSEK:And so what my question is directed to is, are you taking the position that the native Hawaiian practitioner on Keakealani, you know, do they have a right to a particular viewplane over the Blasman property which would pose a limitation on Mr. BlasmanÓs ability to use his property as he sees fit? YUEN:I would prefer to say that itÓs an interest and a consideration that should be taken into account. VITOUSEK:Okay. And what would be your assessment of how the Haw CourtÓs opinion in Hanapi would impact on the, on a native practitionerÓs customary and traditional right to a particular view posing a limitation on a developerÓs right to use a fully developed property? YUEN:Hanapi, what I take out of the State vs. Hanapi case, it is that on the property thatÓs fully developed, like the Blasman property, that you, there is no longer a right for a native Hawaiian practitioner to go onto the site and gather or to practice traditional practices. The interest that IÓm speaking of, what 18 as a native practitioner having, feeling that theyÓre in a setting like that of old HawaiÒi in going to Keakealaniwahine site, that interest is, the legal basis for trying to protect that interest is under Chapter 205A and those provisions that I cited earlier. ItÓs not arising specifically from sources cited by the HawaiÒi Supreme Court in the PASH case. So thatÓs why. And because of the Hanapi case, IÓm not citing, IÓm not using PASH as a basis for that, for that expectation or that right. VITOUSEK:But are you using the, the protection of cultural resources under 205A to impose a restriction that goes further than you would be entitled to do under PASH even if the property were not developed? In other words Î. YUEN:No, I think, I think if we were dealing with undeveloped property, that we would, we would have to do a PASH-type analysis. And then that analysis would extend outside the property boundaries as well to what people are doing on, on adjacent properties. And I think we have done that in other SMA permits. VITOUSEK:Okay. But if you were doing it with respect to a developed property, and if you were doing an assessment with respect to a developed property, it would be your conclusion that, and in the absence of an SMA context, right, wouldnÓt you have to conclude that there are no native Hawaiian customary and traditional rights which will impair a private landownerÓs use and development of their own developed property? In other words, isnÓt that the holding of Hanapi? YUEN:Right. If this were not an, if there were not an SMA permit involved here, certainly we, there would be no authority, because this is devel authority to bring in PASH and say that you had to accommodate native Hawaiian rights on the property. VITOUSEK:But wasnÓt the intent of PASH and the intent of Hanapi to try to reconcile the exercise of customary and traditional rights with the modern realities of fee simple property ownership in Hawaii? YUEN:ThatÓs part of it. I think the PASH, one purpose of the PASH case was to point out that these rights still existed. And then the court instructed agencies handling land use permits like the Planning Commission, like this body here of hearings officers, like myself to try to make a balance and accommodation of those rights. This analysis does not directly apply to this Blasman property because of Hanapi. However, under Chapter 205A, you still have a similar, youÓre still trying to make a similar balancing of rights and interests. VITOUSEK:The HawaiÒi Supreme Court cases that have evaluated the extent and nature of cultural and traditional rights are useful in determining what, what these rights are and what cultural values deserve protection in the context of land use development, isnÓt that correct? 19 YUEN:To the extent that particular practices have come to them, VITOUSEK:And so in, when you interpret HRS 205A and its specific requirements for preservation of natural and cultural, IÓm sorry, natural and manmade historic and prehistoric resources in the coastal zone, doesnÓt that to some extent involve an assessment of whether there is a constitutionally protected nati and traditional right involved? YUEN:Partially, yes. VITOUSEK:And so if youÓre talking about protecting the experience of a native practitioner as opposed to preserving a specific physical site, arenÓt you really talking about preserving a native Hawaiian customary and traditional right as opposed to a specific historical site itself? I mean, isnÓt it a right you are preserving, that is a right to a particular viewplane, as opposed to a feature or structure? YUEN:With the same caution that I expressed earlier about the use of the term Ðright.Ñ What IÓm trying to accomplish in imposing, in imposing development in this property is to protect the experience that a cultural practitioner and members of the general public may have, rather than the physical structures that are on the Keakealaniwahine property, yes. VITOUSEK:So you are saying that the exercise of the right to be on a cultural site and have a particular viewplane poses a limitation on Mr. BlasmanÓs use of his developed property, isnÓt that correct? YUEN:In my view that is something that should be, the use of his property should be limited to accommodate that, yes. VITOUSEK:And so somehow that, whatever that is, whatever that right or expectation is, limits Mr. BlasmanÓs ownership rights with respect to his property because the government may impose a condition on his use of his property to preserve those rights or practices, isnÓt that correct? YUEN:Yes. VITOUSEK:And yet you acknowledge that you could not do that directly under Hanapi or PASH or any other of the statutes other than 205A which protects the exercise of customary and traditional rights, isnÓt that correct? YUEN:I could not use PASH to require access to Mr. BlasmanÓs property under, because of the Hanapi case. VITOUSEK:And thatÓs because Hanapi and Judge Klein, the author of PASH and Hanapi said, to clarify PASH, we hold it if a property is deemed to be fully developed, i.e. lands zoned and used for residential purposes with existing dwellings, improvements, 20 and infrastructures, it is always, emphasis in the original, inconsistent to permit the practice of traditional and customary native Hawaiian rights on such property. IsnÓt that correct? YUEN:Yes. VITOUSEK:And yet you are limiting Mr. BlasmanÓs use of his property to protect exercise of customary and traditional rights on an adjoining property, isnÓt that correct? YUEN:Well, yes. And, because Chapter 205A specifically talks about protection of cultural resources; and in the SMA process, we always have to consider impacts on neighboring properties in granting or denying particular SMA permits. So in the interest of native Hawaiians and others who may come to the Keakealaniwahine site in having a view of the site thatÓs free from the obtrusion of a modern building is a consideration that is properly before us in this, in this application. And the Planning Commission can impose conditions intended to safeguard that interest. VITOUSEK:Do you feel that the terms, relative to preservation of cultural rights in the SMA, are in any way affected by the definition and delineation of those rights in PASH, and Ka PaÒakai, and Hanapi? YUEN:Well, I think that those cases are useful in knowing, in providing some guide to analyzing what native, what are native Hawaiian practices that may be protected because of specifics that are brought up in those cases, and recognized or not recognized by the court or by the government agency involved. So I think that -. VITOUSEK:So if thereÓs a, if thereÓs a claim of a native Hawaiian traditional and customary right to, as part of, practice at a historical site, to not be upset by activities on an adjoining property, and if that adjoining property is a fully developed property and is not burden by the requirement of protecting native Hawaiian rights, then wouldnÓt that pose a limitation on what the Planning Commission could do in its interpretation and application of the protection of cultural rights provisions under 205A? YUEN:No. VITOUSEK:So you feel that, itÓs your position that, that even if PASH and Ka PaÒakai and Hanapi say that there is no right of the government to limit the use of the Blasman property to preserve and protect the native Hawaiian customary and tradition, that you could require that under, you could nonetheless require limitations on the property to preserve native Hawaiian rights under Chapter 205A? YUEN:Absolutely, absolutely. Where there is a historic site under, on BlasmanÓs property, and there were already houses there as it stands and he wanted to develop a condominium, under Chapter 205A, we could require the protection and preservation of that historic site. ThatÓs routinely done based on, based on Chapter 205A. 21 VITOUSEK:ThatÓs not my point, Mr. Yuen. My point is that when you Î. YUEN:Well, IÓm missing your point. VITOUSEK:I think so. My point is that when you are protecting an individualÓs exercise of their right to a cultural practice, then you are, then you are protecting a native Hawaiian customary and traditional right as opposed to preserving a physical resource. And what you just told me is that you have the right in the context of the SMA to preserve a physical resource, and no one doubts that. But, but the question is whether 205A gives you the authority to require protection of native Hawaiian customary and traditional rights where the constitution would give you no, no obligation and no power to preserve those rights. YUEN:The statute can, the statute, there are obligations to the Planning Commission to respect and to try to protect cultural resources. And the statute can do that even if there is, even for a right that is not in itself constitutionally based. So what weÓre doing -. YouÓre strictly operating under, under the responsibilities under 205A. Had PASH, had PASH never been decided, had there never been a reaffirmation that traditional and customary rights exist over private propert still could have imposed the same kinds of conditions strictly based on 205A. VITOUSEK:And, to summarize, so your position is that under 205A, the Planning Commission could require an owner of a fully developed property to hold his property open for the exercise of native Hawaiian customary and traditional rights under authority of 205A, even if PASH said those rights do not exist, even if PASH and Hanapi say those rights do not exist under the constitution? YUEN:You mean to come onto the property? VITOUSEK:Yes. YUEN:And exercise those rights? VITOUSEK:Yes. I do. YUEN:Possibly. If there were, if there were testimony that their right was being, that this was being exercised, I think that itÓs possible that that would be a cultural resource under 205A and that could be imposed as a condition. You get into, at that point, you get into questions, you get into questions of physical invasion because of the constitution. And thatÓs one of the reasons why PASH was so important. That under constitutional law, the question about there being an easement for people to go onto your property is a little different than the question about providing setbacks, for example, which are routine in planning law, or even providing landscaping, which is routine in planning law and routine practice. So thatÓs, thatÓs the caveat I have on that point. 22 But I think under, as we talked about preserving a particular site under 205A and any particular historic site, yes, that can be, that can be required with an SMA permit. IÓm not sure on the issue, and itÓs reasonable when I say possibly on the issue of, say you had a historic site and you had people who showed that they had a cultural practice of going onto the site, but the site was fully developed. Whether you could require that access of a, as a condition of an SMA permit, I think so, yes, but subject to the possibility of this constitutional issue where you have an individual crossing over a piece of property. VITOUSEK:And how do you, how do you reconcile that with the stat Hanapi that if lands are fully developed, it is always inconsist traditional and customary native Hawaiian rights on such propert that with your statement that you could require, that the Planning Commission could require a landowner to permit, to continue to exercise the native Hawaiian rights on developed property? YUEN:On developed property, well, State vs. Hanapi is a criminal trespass case where the individual is trying to assert native Hawaiian rights in the context of, as a defense to a criminal trespass prosecution. The case does not tell us what are the outer limits of protection of Hawaiian cultural rights in an SMA permit. VITOUSEK:But, you know, in fact, what the interest is being protected here is not necessarily a physical intrusion but a visual intrusion, isnÓt that correct? I mean, arenÓt you saying that there are limitations placed on Mr. BlasmanÓs use of his land because of, among other things, a native Hawaiian right to have some sort of visual intrusion or visual easement into his property from adjoining property? YUEN:Yes; and itÓs routine in planning law and practice to have some kinds of conditions to shield neighboring property from visual intrusion of adjoining development. There are, landscaping is a routine condition of land use applications. I agree that this, that the scope of this landscaping condition is a bit unusual, but this is also a bit of an unusual situation in terms of the significance of the adjoining property. ItÓs, itÓs not at all unusual to put a condition on that limits either what people see when they look over at your property or what people can see when they look out from their property over to yours, in the context of a discretionary land use approval like an SMA permit or a rezoning. VITOUSEK:I think you did articulate that the issue that weÓre trying to eliminate here is that the, as you said, this is an unusual and extreme condition based on the culturally sensitive nature of the adjoining property, which is exactly what poses the issue of, of 23 whether this is a, whether this is a limitation being placed on the Blasman property as the result of an exercise of a customary and traditional right. And that, that really is the crux of the issue, isnÓt it? And the question of whether -. YUEN:No. -. VITOUSEK:IÓm sorry go ahead. YUEN:No, no. VITOUSEK:Okay, but the -. YUEN:First, first I certainly did not use the term extreme in dealing with this condition. VITOUSEK:You didnÓt use the term extreme. That was my term. You used the term unusual, wasnÓt it? YUEN:I said it was a bit unusual. VITOUSEK:Yes, okay. YUEN:And I would not agree that itÓs extreme. VITOUSEK:Fair enough. YUEN:I think itÓs, I think itÓs an attempt to accommodate your clientÓs interest in the context of the sensitive nature of the project. And you may disagree, but thatÓs my contention. VITOUSEKNo, whether or not I -. YUEN:I detect some feeling of the hearing officers perhaps that I havenÓt gone far enough, but this is my position and my contention here. And then the second point, I think this would be an appropriate condition with this property strictly as a historic site being viewed by members of the general public, by tourists, apart from the sensitivities and interests of native Hawaiian practitioners. I think this would be a reasonable and defensible condition and would follow from the kinds of things that weÓre supposed to look at and do in reviewing an SMA permit. VITOUSEK:Fair enough. And I, I understand that position. And what I am trying to eliminate in cross-examination is the extent to which the Planni empowered to impose limitations on the use of private property in order to protect the exercise of customary and traditional rights. ThatÓs the issue IÓm trying to build a record on. 24 YUEN:Okay. VITOUSEK:And we should be relatively straightforward. And so whether or not the Applicant will, you know, accept it and be able to perform that type of condition, thatÓs another issue. But, at this point, what IÓm trying to do is get at the legal foundation for your, for your belief that youÓre authorized to impose this type of condition to preserve historic sites. Fair enough? YUEN:And preserve the experience that people have and the integrity of historic sites on adjoining property. You could impose conditions and restrictions such as a 100- foot setback, such as donÓt build over one story. When there is an SMA permit involved that limit what they can do. The need for it is allowed by the VITOUSEK:Okay. Fair enough. I think the other, one of the issues that was discussed was the view from the units towards the cultural site, isnÓt that correct? YUEN:Yes. VITOUSEK:And how would that impact on members of the public if people who lived in nearby houses saw members of the public or tourists enjoying a cultural site? Do you think that would be an adverse impact? YUEN:Probably not significant. VITOUSEK:But thatÓs one of the -. IÓm sorry. Go ahead. YUEN:ThatÓs, the impact that was expressed on people wanting to conduct ceremonies and practice, and have cultural practices, I would think of that as significant. Whether, and I do think that the experience, itÓs hard to separate. I think that the, that the impact on the experience that a person has if they go to the site and they see these buildings is significant. ItÓs hard to separate if, as to whether that was, would be much more if they thought that somebody was looking at them through the window or not, I donÓt think that that part of it greatly increases the impact. No. VITOUSEK:That was an issue that was mentioned with respect to cu on the site, that they -? YUEN:Right. VITOUSEK:And so any limitation on the ownerÓs ability to have a view mauka from their property would be imposed as a means of protecting the exercise of native Hawaiian customary and traditional rights on the adjoining property, isnÓt that correct? YUEN:That is a cost to the landowner by having a condition like this, yes, and to the future occupants of the property, yes. 25 VITOUSEK:So removing, so basically this condition would allow the Planning Department or the County to take away a mauka view, in other words, to deprive the Blasman property, units on the Blasman property of a view mauka order to protect a native Hawaiian customary and traditional practice? IsnÓt that correct? YUEN:Yes. VITOUSEK:And so that, so again the native Hawaiian customary and traditional practice is placing a limitation on a ownerÓs use of a fully developed property in that context, isnÓt that correct? YUEN:Yes, thatÓs one of the interests thatÓs being protected. And by a condition of this nature, and what are the consequences of having that is, that the view mauka will be blocked. VITOUSEK:And so the exercise of native Hawaiian customary and traditional rights on an adjoining property is the legal basis on which the Planning Department would recommend reducing the Blasman property ownersÓ ability to have a mauka view from their property? Is that correct? YUEN:ItÓs part of it, yes. VITOUSEK:Was there another part? YUEN:The general public. VITOUSEK:But I think you said that the general public would not be adversely impacted by being seen by people from the Blasman property. YUEN:I think, no -. VITOUSEK:And that was an issue that was specific in native practitioners. YUEN:YouÓre trying to separate out the impacts Î. VITOUSEK:Yes, I am. YUEN:And present them as, as being separate. The purpose of the planting screen is primarily to, so that people visiting the site donÓt see modern buildings adjacent to it on the Blasman property. ThatÓs the purpose of the planting screen. And weÓve gone through that over and over again. One of the groups of the people entitled to some special consideration in this, one of the groups of people that are having their view out, protected is native cultural practitioners. 26 Then as far as, and I think I said that this was a secondary interest, there is a secondary interest of and itÓs accomplished by the same thing, it blocks people from looking at the Blasman property out at people who may be on the Keakealaniwahine site. And of that group of people that might be affected by that view, I donÓt think that the affect on the native, IÓm sorry, on the general public is significant, in addition to a view they have of seeing the building. But I think that the blockage to the native practitioner, having the view blocked of the people from the building, may be significant. And one of the consequences of having that blockage is that the future residences of the Blasman property wonÓt have a mauka view, yes. VITOUSEK:I think you also said that one of the secondary considerations was, was noise from ceremony. I think drumming has been mentioned severa correct? YUEN:Yes. VITOUSEK:Does the, does the exercise of the customary and traditional practice of drumming pose limit on oneÓs property and pose, and give the government right to control uses of adjoining properties where that noise may be heard? YUEN:No, I donÓt think so; and I donÓt think IÓve done that. VITOUSEK:To give you a hypothetical, Mrs. Blasman is of native Hawaiian ancestry. ThatÓs not hypothetical. ThatÓs true. If Mrs. Blasman felt that it was important to her exercise of, of her customary and traditional rights to see from, to see, look mauka and makai from a property that she owns, how would that be reconciled with the limitation youÓre placing, or youÓre recommending with respect to a mauka view from this property? OÓTOOLE:IÓm going to object if weÓre going to go to every single hypothetical situation that might apply. VITOUSEK:That was the first one. OÓTOOLE:Well, I donÓt think so. I think some of those others were things that the Director isnÓt recommending; but this, you know, is really silly. If she wants to so testify, she hasnÓt done to this point. So I object to him having to answer just on hypothetical situations where heÓs not asking for these types of things, and it has not been presented to the Commission. VITOUSEK:May I respond to this? GIFFIN:Yes. VITOUSEK:The Planning Department which Ms. OÓToole is representing has made a recommendation with respect to a condition which would remove an entire viewplane 27 from this property. And so I am entitled to inquire as to the legal foundation, a legal right of the Planning Department to place such a limitation on the use of private property. And Mr. Yuen has given a number of hypotheticals in his responses to the questions. And I feel IÓm entitled to ask a hypothetical question. OÓTOOLE:Well, let me just say he already answered about the viewplane and the mauka view. But now heÓs saying, well, what if Mr. Blasman wanted to say this, I think -. You know, itÓs not necessary. He has already answered that he believes that you can, the Planning Commission could put a condition that would block the mauka view. GIFFIN:IÓd like to ask Mr. Yuen to answer that question, and then, because I donÓt view it as a hypothetical since it is on the record that the BlasmanÓs do plan to have a unit on the subject property and it was established that Mrs. Blasman is of native Hawaiian descent, too. OÓTOOLE:Yes, but she has not testified about her position on the view. VITOUSEK:ThatÓs Î. OÓTOOLE:ThatÓs your ruling. VITOUSEK:Hypothetical questions are completely appropriate. GIFFIN:Anyway, I would like to hear Mr. YuenÓs answer. YUEN:I think that her desire, or even if they were not Hawaiian, the developerÓs desire to have a good view for the occupants of the building is an interest that deserves respect and consideration. And I recognize that in making this recommendation, I am taking away something that is an amenity to the project, and may have been an amenity to Mr. and Mrs. Blasman if they chose to live in it. And I think that, like I spoke on other, of other kinds of concerns as being things that need to be taken into account. If she said that she didnÓt, she was unhappy because she wanted to be able to look mauka and makai, she related that, she related that she believed that was her, first of all, I would think that has to be taken into that account and considered, respected and tried to be accommodated. But it would not necessarily be something that co in the overall balance of interest. And the same thing would, well, I think, thatÓs my answer. GIFFIN:Thank you. Mr. Vitousek, do you have anything more, not hypothetical? VITOUSEK:Yeah, I do. GIFFIN:Oh, good. VITOUSEK:But not on this hypothetical. 28 GIFFIN:And not hypothetical, or on this subject? VITOUSEK:Right. In fact, IÓm going on to another subject. Mr. Yuen, in your assessment of the potential impact, visual impact, you used a reference point of an individual standing just makai of the, makai wall ofkiha, is that correct? YUEN:Yes, and let me just say because I thought about this last IÓve used that name as a matter of, itÓs in Kekahuna. IÓm not sure that thatÓs the right name. But for the sake of having a name and convenience, thatÓs what weÓll call it. But to move on to your next question, yes, thatÓs what I used as a reference point. VITOUSEK:And if someone were standing at that site now, what would they see? YUEN:The backs of two or three very old rundown houses. VITOUSEK:And how close are those houses to the property line? YUEN:About 20 feet. VITOUSEK:And if those houses were not there, I guess, theyÓll see the houses. But what else would they see? I mean, would they see things other than just the houses? YUEN:Yeah. Somewhere between the wall and houses, thereÓs a pretty big kiawe tree. TheyÓre small ekoa trees and bushes. Beyond the houses, you see the tops of some trees. You see some lava rock. I think thereÓs a junk car or two in there someplace. ThatÓs what you see. VITOUSEK:And if you look in the, is that northerly direction from the site youÓre using as a reference point, what would you see? YUEN:Well, if you look along the wall, you donÓt see that much. ThereÓs a patch of night-blooming cereus over the wall that sprawls a little bit makai. I think it obstructs the view. Then past the Blasman property itÓs overgrown with the scrubby kiawe trees and ekoa. The Casa del Sol is in front, but it doesnÓt go as far back as the Blasman property. I think it, I think that lot maybe goes a 100 feet back as IÓve seen today. I think Blasman is actually is about 260 feet deep. So thereÓs about 150 feet of undeveloped more or less, property with scrubby growth. VITOUSEK:And you testified yesterday that if youÓre standing at that location then the, outside the wall, the makai side of the Pkiha, you cannot see the ocean, isnÓt that correct? YUEN:No. 29 VITOUSEK:ItÓs because of the contours of the land and the houses Drive, isnÓt that correct? YUEN:I think itÓs because of the houses, the houses on Blasman, the vegetation, and the houses on Alii Drive. I think if all vegetation were cleared and all the houses were cleared, you could see Hlualoa Bay from that wall, I think. VITOUSEK:On the north side? YUEN:Certainly Î. VITOUSEK:Hlualoa Bay is located north of this property. YUEN:Yeah. If you looked, if all the vegetation were cleared, o from points near the south side of the wall, you probably could see Hlualoa Bay. Definitely from the north corner, again, if all the structures were gone and all the vegetation were gone, I think you would see the bay. VITOUSEK:The reason that you, what is the reason or reasons that you selected a site outside the walls of the Pkiha as the reference point for assessing the visual impact? YUEN:My, my expectation is that if people, assuming that people are allowed on the site, that they would be, certainly walking on the walls would be highly discouraged. So, and IÓm not sure if, how much access within the walls would be allowed or encouraged. If there is access in the walls, I think that there would certainly be access outside. IÓm not as concerned if youÓre inside the walls, because the walls themselves provide some blockage, provide some visual blockage when youÓre in there, in the enclosure. VITOUSEK:Then Pkiha is by, is by definition an enclosure, isnÓt that correct? IsnÓt that what portion of Î? YUEN:A ÐpaÑ is a flat place, I think. I donÓt know what Pkiha means. VITOUSEK:So this is a, this is an enclosed area, isnÓt that correct? YUEN:Yeah, itÓs a rectangular area enclosed by a stonewall. It varies in height, maximum being 11 feet. I think there are places where itÓs only, minimum is may be five feet high. And there a couple of entrance points, at least one entrance point. I canÓt remember if there are two. VITOUSEK:Okay. And I think you referred in your testimony yesterday that they were significant because they were high, high walls among other things. You felt that they are well preserved in high walls? 30 YUEN:Yeah, in places, yes; and among the other things that I mentioned. I mean, I donÓt want to go through it all, but I think the walls themselves in, certainly in places are quite impressive. VITOUSEK:And, so, I guess, what I was wondering is, you know, yo common sense yesterday. But it seemed that common sense would suggest that there would be an expectation of privacy and of limitation on visual intrusion from inside an enclosure, isnÓt that correct? I mean, isnÓt that at least possibly one of the reasons that something is enclosed, so that it is not Î? YUEN:Yeah, yeah. As far as say old Hawaiian days, yeah, this wasnÓt, say, a wall of a house. This is a, there was an enclosure and then there was a house platform within there probably. But the reason I focused on somebody standing outside the wall i that, you take care of the views from somebody standing inside the wall, too. The outside the wall is the worst case scenario as far as being on the Keakealaniwahine parcel. VITOUSEK:Fair enough. And so being a worst case scenario that would also mean that the limitation placed on the Blasman property is greater if you use a vantage point outside the wall rather than inside the wall, isnÓt that correct? YUEN:ItÓs easier, itÓs easier to screen Blasman if you take a viewpoint from inside the wall, yes. ItÓs, and as I said, if youÓre screening it from somebody standing outside the wall, it will effectively screen it from somebody standing inside the wall. VITOUSEK:I guess what IÓm, by selecting a vantage point outside the wall, did you, do you have any basis on which to conclude that it is, a cultural practitioner would be exercising a cultural practice outside the wall as opposed to inside the wall, and that they would have a reasonable expectation of some visual, a particular visual scape in exercising their cultural practice outside the wall? YUEN:If thatÓs your point, I accept it. The, I donÓt where a cultural practitioner would choose to have a ceremony on the site. I donÓt have any particular reason for thinking that it would be makai of the south wall. VITOUSEK:Okay. But by selecting a point makai of the south wall that enables you to, to require or recommend a significantly greater limitation on Mr. BlasmanÓs use of his own property. In other words, if you require him to be invisible from a site outside the wall, that will place greater limitations on his ability to use his own property, isnÓt that correct? YUEN:Well, itÓs harder to do a landscaping shield from, using the vantage point of a person outside the wall than from a vantage point inside the wall, yes. 31 VITOUSEK:And youÓve selected the point outside the wall because it, because it enables you to require a more, a more unusual planting screen, isnÓt that correct? YUEN:I disagree with the way youÓre asking the question, because it implies that IÓm doing this to make life difficult for the Blasman property owner. IÓm not making, IÓm not doing this to make this difficult for them. IÓm doing this to protect the view of a person that may, in looking at the Keakealaniwahine site, go completely around the wall and look at all parts of the wall. If, and thatÓs the only reason for doing it. It does, it is the point that if you use a different point, itÓs easier to do the landscaping. If you assume that nobody ever has to go or ever wants to go to that part of the wall, then it is easier to do the landscaping. VITOUSEK:I guess what I was interested in was whether there is any basis on the evidence of this contested case for you to conclude that people would be in that location and would exercise cultural practices in that location? YUEN:Well, I donÓt think thereÓs any testimony of that. People see this as a particularly important spot. Right now I have to say that if you go there, you definitely feel awkward. When I went there, I went around, completely around, and I came out, and I came to this spot. And you feel awkward about being there because youÓre looking at the back of someoneÓs house. So, and I think Pua Kanahele testified to something like this. I think thatÓs the experience that anyone would have. As to whether, just a moment, if I could look at the site map. KekahunaÓs map does show what is labeled as the entrance being a point three feet wide at the middle of the south wall, that is this wall facing the Blasmans, which would be directly across from the Blasman property. My, I canÓt remember from our examination whe gap in the wall at that point. I have to say that if that was the entrance there in, if thatÓs what Kekahuna identified as the entrance in the 1950s and if thereÓs a gap in the wall now, itÓs very likely that that would be the point that people would use to go into, into the Pkiha, if that were allowed by the State in the long-term access management of the place, or for cultural practitioners who are going in to have a ceremony. He also, the map also doesnÓt show any other gaps in the walls. There are sloped down places. I donÓt, IÓm, this would be a good point for somebody to look at. I donÓt recall there being any other obvious entrances in the wall. I did go in. I went in through a place where the wall had sloped down, but it was not, itÓs not a designed entrance. I think that thereÓs no question that in the time of this historical use, obviously there was an entrance. There was a passage way through the wall. And thatÓs that, all I can say is from whatÓs on this map, the entrance was directly across from the Blasman property. VITOUSEK:The, so your testimony is that, that cultural, if that is the only entrance, then cultural practitioners would use that to gain access to the site, is that correct, to the Pkiha? Has there been any testimony to that effect in the contested case? 32 YUEN:I have to say, look, I have to be conscious of not trying to set up myself as some kind of expert in Hawaiian cultural practices. As a lay person and as a matter of common sense, if a, if something has been identified by a, weÓve had testimony that Kekahuna worked with a very old and a very reliable informant, well knowledgeable in ancient Hawaiian culture. And Kekahuna labeled this as the entrance; and if thereÓs still a physical entrance there, my guess is that thatÓs where people VITOUSEK:Okay. Then following that thought, if Kekahuna did not show the Blasman property as being part of the Keakealaniwahine site, could we also accept that as a matter of common sense? YUEN:Well, no, I donÓt think you can do that. And let me explain why. Why he, why he choose to map out a certain area as being particularly important, I think I testified to this yesterday. Why he choose to map this area, I donÓt, why and only this area, I donÓt know. I, there was, we know in the 1950Ós the tax maps show that there was a 700-square foot house with a privy on the Blasman property. Whether it had been so altered by that time that he did not think it important to map, that would be a possibility. He, we know that -. And I donÓt know for a fact that he didnÓt map adjoining property. I do know for a fact that, that if you go south and north of what heÓs mapped here, there are more Hawaiian ruins. There, thereÓs, the Hikipaia. The Hikipaia Heiau that is mentioned I donÓt believe is on, on this map. ItÓs a little bit further. ItÓs a little bit further to the north. And I donÓt know, the final point as to whether this was, there has certainly been a great deal of testimony whether the Blasman site was part of the Keakealaniwahine-Keolonhihi Complex. There has been a great deal of testimony that it had to have been, from Mr. Roy and the like. Your, archaeologist, Dr. Rechtman says most likely it was part of this complex of buildings, but whatever features were on it have been lost and destroyed over time. There was, we know that in the time of Keakealaniwahine, there was a large area around here at Hlualoa Bay, call it whatever term you want, where the high Alii lived, played and worshipped. This included what we now call Keolonhihi and what we now recognize as the Keakealaniwahine Complex. The Blasman property is smacked dab within, in the center of this. What was going on there, particularly at that time, we d know, and weÓll never know. But I donÓt think that you can conclude from KekahunaÓs map drawn in the 1950Ós that the Blasman property was not at one time part of this area used by the high Alii, and that there were structures associated with their activities on, located on this piece of property. VITOUSEK:I donÓt think that was any effort to do that. I think my question was just directed towards your, what you seem to be very willing to draw inferences from, there was or wasnÓt on KekahunaÓs map when they benefited from the pos taking. And I just wondered how that impacted other aspects that, IÓm going onto another area. YUEN:I would, I would in so far as, and I think that the Kekahuna map does go, itÓs hard to say because it shows some property, it shows some structures that are makai 33 of the wall there. And IÓm thinking of these two structures that are shown as house foundation, house foundations. Those are, those are not on the Blasman property though. I think those are still on the state property. And then it shows a projection of, that he calls, he shows a projection that he calls modern wall as being the western-most feature there. So I think that to a limited geographical extent, we can say that this map covers a little bit of what is currently the Blasman property. And aside from possibly, I donÓt know. This modern wall doesnÓt extend though, the 50 feet to the boundary line. So, I mean, we can draw some inferences from the map; but I donÓt think the inference that you were trying to draw is correct at all. VITOUSEK:Oh, I donÓt think I was trying to draw an inference. I was just asking you what inference you were drawing, because IÓm not testifying. But, I guess, as you pointed out then this Kekahuna map does not, the limits of the map are not based on property ownership lines then. Is that correct? Because I think it doesnÓt show it, a demarcation between the Blasman property and what is now the state property. IsnÓt that correct? YUEN:It doesnÓt show property lines. But I think anything thatÓs mapped on, thatÓs showing on the map is within the boundaries of a one parcel that existed at that time, as a separate TMK. ItÓs also, I think anything thatÓs on this map is within the parcel 11 or the TMK thatÓs now owned by the State. Because I donÓt think that this modern wall shown that extends toward the Blasman property quite reaches the property line. I donÓt think itÓs, I suspect that had there been anything major on the Blasman property i the 1950Ós that Kekahuna would have mapped it, but I canÓt say that for sure. VITOUSEK:Okay, thatÓs really not the point, Mr. Yuen. In fact, in the course of this proceeding, the Applicant has clearly taken the position and offered a stipulation to the effect that the Keakealaniwahine and Keolonhihi properties were of the highest order of cultural significance, isnÓt that correct? YUEN:Right. VITOUSEK:And then the Applicant has never suggested or argued that, that they are not of the highest order of cultural significance, isnÓt that correct? YUEN:Right. VITOUSEK:So the issue that the, that the landowner is concerned about is what limitations on his right to use and enjoy his property seem to emanate from these significant cultural and historical sites and impact on his use and enjoyment of his own property. IsnÓt that correct? YUEN:I think that is the key issue in this SMA permit, right. VITOUSEK:Yes, I think it is. And I think that the key issue becomes one of if the PASH and Ka PaÒakai and Hanapi cases say that there are no rights to go on the property, 34 to exercise customary and traditional rights, the owner questions why there would be rights from adjoining properties that would emanate into his property. Do you understand that concern? YUEN:Well, weÓve been through this quite at length, and I said everything that I have to say about it. VITOUSEK:I guess my question is do you understand that concern? YUEN:I think that the, I think that itÓs fairly, in many, many planning decisions and for many different kinds of reasons, youÓll see conditions put in that include setbacks that may be beyond those strictly required by the shoreline setback law or by zoning setbacks, youÓll see landscaping conditions put in. We put in a, we had special landscaping conditions for a rezoning in Volcano recently to protect adjoining property owners from the effect of a light industrial zoning that went beyond the landscaping conditions normally imposed in the rule. And I think that the intent of it was fairly complete, not the term complete visual screen, but a visual screen to protect the adjoining property owner. So I donÓt, I donÓt agree with your attempt to limit the analysis strictly to the PASH case and rights flowing out of the PASH case. VITOUSEK:The, this landscape condition essentially is I understand a, or basically a position relative to landscaping -. Your position appears to be that if thereÓs a significant cultural site in proximity to the proposed development, the Planning Department will require essentially a complete visual screen so that the development cannot be seen from the significant cultural site. Is that correct? YUEN:It Î. OÓTOOLE:I object. He didnÓt say Planning Department. It has to be in the context of this SMA. VITOUSEK:I said a recommendation, I think the Planning Department is Î. YUEN:Well, in this circumstance, and there may be other circumst this is a good condition to put in. It really depends on the significance of the site, what other kinds of things you see when you look around. I wouldnÓt put this condition in where, if you look in two directions you see other buildings and then this, somebody wants to build a building in the third direction, and I put a condition in to block that. VITOUSEK:IÓm just trying to get an understanding of whether this is a going to be a rule of general application, or is this a rule that, you know, that is something that landowners can be aware of in advance and plan Î. YUEN:In a similar situation, in a similar situation, I would recommend this. And I think I made it clear from the outset that having a visual block was important in this application. 35 VITOUSEK:Can you point to any written disclosed communication or communication on the record where you said that a, a complete visual screen would be required? YUEN:I discussed having a visual block with the ApplicantÓs consultant in the summer of 2002. When we had our last set of hearings, you were about to rest your case, and I told you if you rest now, I will recommend denial based upon the failure to have a landscaping. And I donÓt think I said the complete visual block, but I told you, I told you that that would result in a recommendation of denial, because of, and itÓs obvious that thereÓs, IÓve been -. I think IÓve expressed a concern about the blocking the views of the building from Keakealaniwahine. VITOUSEK:Sure, but I think that the point IÓm trying to, IÓm trying to ask is, is the, thereÓs a distinction, is there not, between a landscape plan that would provide a buffer and a landscape plan which would provide a complete screening. IsnÓt that correct? YUEN:Yes. VITOUSEK:And, you know, I am not aware of any communication which indicated that a complete screen would be required or the Planning Department would recommend denial. Are you aware of any communication that would, I mean, which you would have communicated that to the landowner? YUEN:Other than, let me think. Other than that and other communications about the inadequacy of the landscaping that had been provided to that point, no. VITOUSEK:Just a couple follow up areas. Do you have any degree architecture? YUEN:Asked and answered. And the answer again is no. VITOUSEK:Have you ever designed landscape professionally? YUEN:Other than my own home, no. VITOUSEK:I think you testified Î. YUEN:By the way, I should take that back. Actually I had been involved in, I have been involved preparing landscaping conditions and approving landscaping designs as the Planning Director for HawaiÒi County. VITOUSEK:Fair enough. YUEN:ItÓs not the first project that IÓve ever --. IÓve been involved and reviewed a lot of landscaping. WeÓve used landscaping as a condition to try to deal with esthetic 36 issues many, many times. And I do get paid as a Planning Director, so I think I can call that professional experience. VITOUSEK:Okay. But I guess what IÓm talking about is more technically in terms of being able to, have you any background or training in specifically evaluating what type of plants will grow in what space, and to what height, and with what nutrient and water requirements, as part of a landscape plan? YUEN:No. IÓve got a lot of experience trying to grow plants, but I donÓt have any specialized training. VITOUSEK:And so in assessing a landscape plan and saying that you donÓt think that it could be done in a particular space or in a particular method, what expertise are you relying on in reaching those conclusions? YUEN:In looking at places where you have, where you have native plantings that provide a pretty complete visual block and seeing how those were handled and the kind of spacing that you need. All the examples that IÓve seen involve quite a bit more, quite a bit more space for the plants to grow, roughly 40 feet of space for the plants to be grown in, exclusive of roads and pavement. And thatÓs the experience that I had, and in looking, and actually going around and looking at what works. VITOUSEK:Okay, but in going around and looking at what works, do understanding of what, the size of the excavated route pockets were, or whether thereÓs hydroponic nutrients or watering on any of those plants, or any other technical aspect of the plants which you are, of growing and maintaining the plants which you observed and would form the basis of your opinions? YUEN:No. VITOUSEK:Okay. In response to the question by Ms. OÓToole, I think you testified that if there was a condition imposed by an SMA permit which required the Planning Director to assess or, you know, compliance with that condition before issuing plan approval, that you, if the owner disagreed with you, that they could, that the appeal would be to the Board of Appeals, is that correct? YUEN:Yes, appeal of a denial of plan approval could be taken to the Board of Appeals. VITOUSEK:Yeah, but couldnÓt the Planning Director also initiate a petition to revoke the SMA permit for failure to comply with conditions? ThatÓs cl the Planning Commission rules, is it not? YUEN:Yes. 37 VITOUSEK:So the Planning Director, if the Planning Director felt that an Applicant did not meet the stated conditions of approval, the Planning Director has the, the discretion and authority under the rules to initiate a revocation of the SMA permit. YUEN:What youÓre saying is correct. It is an issue of timing here. The, the Applicant wouldnÓt be in violation of anything -. If the condition were that the landscape plan, the final landscape plan had to be approved at the time of plan approval and the Planning Director then, up until that point, they couldnÓt be in violation of anything. And then if the Planning Director rejected the landscaping plan and therefore rejected plan approval, the Applicant could then appeal that to the Board of Appeals. The Planning Director, at that point, would not, they would still not be in violation if they submitted a landscaping plan that the Planning Director didnÓt like. And so theyÓre, in effect, the end result is that they would proceed with their appeal. VITOUSEK:But there certainly are conditions imposed by the Planning Commission in SMA permits that require specific performance in some sort of, on the part of the Applicant, and authorize the and delegate to the Director the authority to approve the plan for compliance, isnÓt that correct? YUEN:Yes, and that would be necessary in any landscaping plan that is approved. VITOUSEK:Right. In other words, thatÓs common as dirt, isnÓt it, where the Planning Commission says that we impose a certain condition that, where you have to come up with a public access plan or a landscape plan thatÓs subject to approval by the Director? YUEN:Yes, I think we like to have some understanding of the outside parameters of the condition when, at the time of it being approved. And I think that, IÓve tried to explain why I would not be satisfied with just a condition of landscaping to the satisfaction of a Planning Director. And I think it should be specified in this application, and IÓm looking at the first instance to the Applicant to come up with a plan that would fill the bill. VITOUSEK:The condition could be written that would state the requirements of the proposed landscape plan? In other words, you testified you have done this professionally before. And so a condition could be crafted which, which would outline, your belief as to the appropriate requirements of a landscape plan, isnÓt that correct? YUEN:Yes, yes. VITOUSEK:And that condition could be approved by the Planning Commission, and then the Planning Commission could delegate to the Director the authority to approve that plan, isnÓt that correct? YUEN:Yes. If it were specific enough, that would be acceptable, yes. 38 VITOUSEK:And if the Applicant did not provide a plan that met with the Planning DepartmentÓs approval, then the Applicant would not meet that condition, isnÓt that correct? YUEN:Subject to the ApplicantÓs ability to file an appeal with the Board of Appeals. VITOUSEK:But, couldnÓt at that point, if the Applicant doesnÓt meet the condition of approval, the Director could move to revoke the SMA permit based on failure to meet the conditions, isnÓt that correct? YUEN:I think if the Director rejected a landscaping plan that, and the Applicant did not see fit to appeal that, if, assuming that no timeframes had run out, the Applicant -. The right thing to happen is for the Applicant to submit another landscaping plan, rather than the Director to revoke a permit because they blew the first landscaping plan. VITOUSEK:But the Director has the authority to petition to the Commission to revoke an SMA permit based on the ApplicantÓs failure to meet the conditions, is that correct? YUEN:ThatÓs right. VITOUSEK:In fact, thatÓs one of the conditions of an SMA permit, isnÓt it, that any violation of the conditions of approval will result in revocation, isnÓt that correct? YUEN:ThatÓs right. VITOUSEK:Now, under HRS 205A-26(2)(A), I think itÓs stated that the statutory foundation for your adverse, or for your recommendation of denial of one of the bases, that states no development should be approved unless the authority has first found that the development will not have a substantial adverse environmenta except that such adverse affect is minimized to the extent practicable and clearly outweighed by public health, safety, and other compelling concerns. Correct? YUEN:Correct. VITOUSEK:ThatÓs a relevant language youÓre using? YUEN:Correct. VITOUSEK:And so the condition of requiring a landscape plan which effected a complete visual barrier would be under this language of Ðexcept as such adverse affect is minimized to the extent practicable,Ñ is that correct? YUEN:No, no. WeÓve been through this. Substantial, if you had adverse effect, you can only go with the permit. If you mitigate and if the substantial adverse effect is outweighed by public health, safety or compelling public interest. The 39 landscaping condition is put in so that you donÓt have a substantial adverse effect. There will be a substantial adverse effect if you donÓt put in the landscaping. It may be sort of a chicken and egg thing here. But if you, the real way to do this analysis is that you, if you donÓt have a substantial adverse effect after doing the mitigation, then you donÓt have a substantial adverse effect. And then you donÓt trigger this, this clause. And then the authority simply finds that you donÓt have a substantial adverse effect because there are adequate conditions to prevent that adverse effect from happening, like you hook up to the sewer treatment plant or you lower the height of the building so that you donÓt block views, etc. VITOUSEK:Okay, fair enough. So is it your testimony then that a landscape plan which would effect a complete visual barrier between the Keakealaniwahine site and the project would be, would minimize the adverse effect to the extent practicable and prevent it from being a substantial adverse environmental and ecological YUEN:I would say it would prevent it from being a, from, that would prevent the construction of building from having a substantial adverse environmental and ecological effect. VITOUSEK:So if you could impose a condition on development which implementation of a landscape plan which effected a visual barrier between the Keakealaniwahine site and the proposed development, that would have the effect of placing conditions on development in the special management area, which would avoid having, the development having a significant adverse, an adverse environmental effect? Is that correct? YUEN:Try that again. VITOUSEK:Sure, if you, if the Planning Commission placed a condi approval which required implementation of a landscape plan which effected a complete visual barrier between the Keakealaniwahine site and the proposed development that, that would remove a substantial adverse environmental effect of, remove the only adverse environmental and ecological, potential adverse environmental and ecological effect of a proposed project, is that correct? YUEN:Well, simply imposing a condition doesnÓt do the job. And for that reason before I recommend approval, I would like to see a great deal more specificity in how this is going to be accomplished. In principal what youÓre saying is correct. For the reasons IÓve stated earlier, I would like to see a plan with a great deal more specificity, and one that I had confidence in being implemented before I could recommend approval. VITOUSEK:Okay. So that, I guess the concern I have is, is I read some of the cases like Topliss, they state that the purpose of the CZM is to control development with the SMA through the device of a special management area use permit, not totally prevent or 40 prohibit such activity. And it goes on to say it follows that where an administrative record indicates that the proposed development within the SMA would not contravene the StateÓs, the statutes, the policies, objectives or purposes, the Commission would exceed its authority in denying an SMA permit that might have been requested for that project. Are you familiar with that language? YUEN:Yes. VITOUSEK:Okay. And so if the record of the proceeding shows that the only potentially adverse environmental effect can be mitigated by requiring a, a landscape condition, wouldnÓt that meet the terms of the decision that says that where an administrative record indicates the proposed development would not contravene these statutes, policies, objectives, and purposes, the Commission would exceed its authority by denying an SMA permit? YUEN:No, the Commission could require more than just saying that you have to do it. The Commission, and I think, and my recommendations, and responsible thing to do in a situation like this is to require that there be a clear plan and a, a clear plan that could be implemented before, rather than just stating it as a bare condition and going on from there. And thatÓs, that is my objective. VITOUSEK:Okay, so fair enough. So if the record included evidence that there is a plan that could be implemented that would accomplish that object that would provide a sufficient record to demonstrate that the proposed development would not contravene the StateÓs statutes, policies, objectives and purposes, and that the Commission would exceed its authority by denying the permit? YUEN:It, itÓs not enough that thereÓs evidence in the record. In, if youÓre trying to overturn a decision later, that may be enough. But from the standpoint of what IÓm going to recommend as a Director and what I think is responsible for the Commission to do, you need, in something of this importance I think you need m this is what youÓre going to do, and a statement that you think you can do it. That would constitute evidence in the record, yes, I would admit that. But I donÓt think that thatÓs the way responsibly we should be, we should be handling this condition. VITOUSEK:IÓm going to another area. Mr. Yuen does, I believe the Mayor of the County testified in this proceeding that the County has a position relative to this application, isnÓt that correct? YUEN:YouÓd have to point out the testimony, because I think that thereÓs a number of ways that you can take what youÓre saying. And IÓm not sure that, that the way youÓre taking it is, is what the Mayor said. VITOUSEK:Okay, IÓm referring to the transcript from March 28, 2003, page 60 and the Mayor is asked what he saw his job was relative to the property. And Mayor Kim answered, ÐBeing that I discuss with people in the community, of Cindy and Trust for 41 Public Lands, that I felt that this was indeed, after being informed of the background of this property, indeed, they are special lands and that I felt that it was important that government pursue the acquisition of this is piece of property and not have it developed.Ñ YUEN:So the question is? VITOUSEK:My question was isnÓt it a fact that the Mayor of the County stated the CountyÓs position relative to this application to develop the property? YUEN:No, absolutely not. VITOUSEK:So when you say the Mayor says itÓs important that the government pursue acquisition of the property and not have it developed, that doesnÓt state the MayorÓs position that the property should not be developed? YUEN:Your question is with respect to this SMA application. What the Mayor is saying is that he thinks the government should use its powers of, to acquire land, to acquire this property and prevent it from being developed. This has no bearing on the recommendation or the CountyÓs position on this application. VITOUSEK:I, couldnÓt you read the GovernorÓs (sic) statement as saying that the government should pursue acquisition of the property and pursue not having it developed? I mean, how do you read, how do you read that? YUEN:IÓm sorry. Could you, what date and what page are you looking at? VITOUSEK:March 28, 2003, page 60. th YUEN:IÓm sorry, the set that IÓm looking at does not have March . GIFFIN:Maile? DAVID:Excuse me, Ms. Giffin, IÓm sorry. But while heÓs looking at that, could we just take a real break. GIFFIN:I want to go to. But I would like to wait until this line of questioning is over, not for Mr. Vitousek to be over, but just this specific line of question regarding the MayorÓs supposed plan for this property. YUEN:IÓm sorry, what page again? VITOUSEK:Sixty. YUEN:Exactly as I said. VITOUSEK:IÓm sorry? 42 YUEN:The position of the Mayor is to prevent the development of the property by pursuing the acquisition, by pursuing public acquisition. The Mayor is not making a comment either to the Planning Commission, and this of course is in response to your question, either to the Planning Commission or the Planning Director about how the application should be handled. That has to be handled under the terms of the SMA law. VITOUSEK:I didnÓt call Mayor Kim as a witness, isnÓt that correct? YUEN:This is in response to your questions. VITOUSEK:In cross-examination. I didnÓt call Mr. Kim as a witness, isnÓt that correct? YUEN:Yes. VITOUSEK:He was called by one of the Intervenors, isnÓt that correct? YUEN:Yes. VITOUSEK:And he was called because he had had personal meetings representatives of the Intervenors to discuss County acquisition of this property, isnÓt that correct? YUEN:I donÓt know why he was called. And I think youÓll remember, I think, our counsel objected to the line of questioning pertaining to discussions regarding acquisition. I think that my position on this has always been, is always clear that this is a parallel track, that itÓs not part of, is not part of this proceeding. I know that youÓre drawing inference or your client -. YouÓve made the argument that our recommendation or the recommendation of State Parks is affected by some desire to manipulate the price of the property. There are, if I were doing that, there are lots of ways to do it. But itÓs not. GIFFIN:Mr. Vitousek, at this point, as I said earlier to one of the IntervenorÓs, I am going to call a recess, and then weÓll come back. And I have by Mr. TorigoeÓs wristwatch 11:35. So letÓs take a 10-minute recess till 11:45. Maile? DAVID:Excuse me, before we do that, IÓd like to just clarify for the record that the Mayor did not meet with the Intervenors, meaning myself and Mikahala. His meetings were with Klana Huli Honua. VITOUSEK:IÓm sorry. IÓm confused. He didnÓt meet with the Inte with one of the Intervenors? 43 DAVID:Well, if youÓre including the Mayor meeting with me Î. VITOUSEK:No, I did not intend to Î. DAVID:Oh, okay, because you said Intervenors and -. VITOUSEK:IÓm sorry. I have to very specific. DAVID:Okay. Thank you. VITOUSEK:Mrs. Roy testified, page, I guess it was testimony, was the question, I guess. GIFFIN:Yeah, and thatÓs on the record. DAVID:Thank you. VITOUSEK:But thatÓs page 62 where it said ÐIn fact, that we appreciate Cindy Punihaole as our representative in speaking with him.Ñ DAVID:ThatÓs the only clarification. Thank you. GIFFIN:ThatÓs well taken. Okay, Mikahala? M. ROY:Thank you. In addition to that, may I say that we as mem public have numerous interactions with our Mayor. This was one. And I canÓt date exactly when that call to the Mayor initially was made. But it discussion of this very important place, but we did ensue after our initial meetings with the Applicant. We did further our discussions then. But as far concerns, the Mayor has been kept abreast really of my, of Klana Huli HonuaÓs concerns in West Hawaii. GIFFIN:Good. Thank you. RECESSEDThe Presiding Officer recessed the meeting at this time, 11:36 a.m. RECONVENEDThe meeting reconvened at 11:46 a.m. GIFFIN:Mr. Vitousek was still cross-examing the Planning Director. And I want to give everyone a heads up that we will be taking a lunch recess no later than 12:15. Mr. Vitousek? VITOUSEK:I donÓt expect to go that long. 44 GIFFIN:Oh, well, good. VITOUSEK:Mr. Yuen, in the MayorÓs testimony in the contested case hearing, do you recall Mr. KimÓs testimony that the, after he met with the IntervenorÓs representative, thatÓs singular Intervenor, and The Trust for Public Lands, he had a discussion with you and Mr. Takemoto regarding the SMA application? YUEN:Yes. VITOUSEK:And do you recall his testimony where he said that you do your job and he would do his job? YUEN:Yes, thatÓs his testimony. VITOUSEK:And, right. And his testimony was that his job was pursuing acquisition of the property and to not have it developed, is that correct? When he was asked what his job was he stated that he thought that was his job, isnÓt that correct? YUEN:IÓm not sure what, if I sat here and read through the testimony, I might be able to give a good answer of what he meant by that. But just seating here, IÓm not really sure what he meant by his job. VITOUSEK:Okay, so the question Î. YUEN:I would do mine, IÓm not sure what he meant by that. VITOUSEK:Okay, so when I asked him the question then, ÐAnd then as your job relative to this property,Ñ and his answer was that, ÐI felt that it was important that the government pursue acquisition of this piece of property and not have it developed.Ñ YUEN:Okay, thatÓs his explanation, yes. VITOUSEK:And so do you know as the Planning Director what he is doing to pursue the acquisition of the property and not having it developed? YUEN:No, I donÓt. VITOUSEK:And in terms of you doing your job, youÓre recommending application be denied because of what you have referred to as an unusual landscaping requirement, is that correct? YUEN:ThatÓs what IÓm doing in line with my responsibilities under the SMA law as I see them. 45 VITOUSEK:Okay, I had asked you before about this, you know, the rule or principle being applied if a development and special management area is lo significant cultural resource, the Applicant will be required to provide a complete visual barrier between the development and the significant historical site. Do you recall my question about whether this is going to be a rule of general application? YUEN:Yes, I hope you recall my answer. VITOUSEK:I do recall your answer. YUEN:So we donÓt have to go through again? VITOUSEK:No, we donÓt have to. Is there a rule or guideline written down anywhere where that rule or that requirement would be stated? Is there anywhere in the County rules or State rules where that requirement is stated? YUEN:No, itÓs the kind of thing that I hope the Director and staff are conscious of in reviewing applications. VITOUSEK:Okay. But in terms of whether, you know, someone who b of zoned developed, zoned and fully developed property with a prior SMA, how would they have notice of this, of this rule, so they could guide themselves in terms of their development of the property? OÓTOOLE:I object. ThereÓs no foundation that there is a rule or that it needs to be in the form of the rule. An SMA permitting process is a discretion we have a public hearing, that information is brought forth and an individual Î. VITOUSEK:Is this an objection to the question or is this Î? OÓTOOLE:Yes, it is. VITOUSEK:Well, then just make an objection. You donÓt need to argue it. OÓTOOLE:Well, itÓs the same as your questions, Mr. Vitousek. IÓm just saying thereÓs no foundation that there has to be a rule. GIFFIN:You know, Mr. Vitousek, I agree with Ms. OÓToole. I think that if you are going to go off in this line of questioning, you should lay some sort of strong foundation to do that. And if you did, then I apologize, cause I donÓt recall one. VITOUSEK:Yeah, I think I asked him whether the rule was written down anywhere; he said it was not. GIFFIN:Oh, yeah. 46 VITOUSEK:And so what I was asking him is how would someone who b zoned, a zoned and fully developed property become aware of this rule or policy of the Department? That was my question. GIFFIN:And he did answer that to some extent. VITOUSEK:I thought that was the objection. GIFFIN:No, he Î. VITOUSEK:I thought thatÓs where the objection Î. GIFFIN:No, he said he was hopeful that the staff and the Director -. Go on Mr. Yuen, what did you say? YUEN:Well, on the staff side, I hope that the staff and the Director would be conscious of and sensitive to the existence of historic sites and utilize, given an appropriate circumstance, the possibility of landscaping to reduce the obtrusiveness of a modern building next to that site in a situation where it would work and where the site was particularly important. ItÓs impossible to, itÓs very difficult to state all the considerations in advance and how you would handle them. I gave an example of a situation where you wouldnÓt try to put in any kind of a barrier where it really made no sense because of adjacent development. As far as what the landowner, what the landowner can expect, I think a landowner should expect that when applying to use property next to a sensitive historic site, the government will put in conditions that are meant to protect that site. And those may in the right circumstance be landscaping, they may be distant setbacks, they may be height limitations, when the landowner needs a discretionary permit lik proceed. As far as the understanding that thatÓs part of the development process, I do think that thatÓs not an unreasonable a thing for someone to, would expect that they would understand that. I think, I think someone, if someone hired a consultant, they could expect that there would be some difficulty, some sensitivity on, because of adjacent historic sites, just to give a couple of examples. VITOUSEK:But in terms of the, I guess what weÓre talking about, Mr. Yuen, is a landscape plan that would require a complete visual screen as opposed to a visual buffer between the sites, and whether thereÓll be any notice to landowners of what appears there may be a policy of the Planning Department that there is a particular type of landscaping that is required, or that the Planning Department will recommend denial of the application. In other words, I think we can, what IÓm trying to do is distinguish between the usual landscape condition and what you have described as this unusual landscape condition. 47 YUEN:I hope in a similar circumstance we would apply something s VITOUSEK:Okay, then my question is how will a landowner know what this policy is and how will they be able to learn in advance how to, what expectations they may have for the use and development of their own property? YUEN:Formally, I donÓt know. Informally, they can ask. VITOUSEK:Are there landscaping components to the Zoning Code? YUEN:ItÓs authorized in the Zoning Code, and thereÓs a rule of the Planning Department on landscaping. ThereÓs a general rule that applies to landscaping. VITOUSEK:And does that rule provide any guidance, or is that rule applicable in this particular context? YUEN:It would be, it would apply to any, thereÓs a partion of a rule that applies to any multi-family development. You, as I stated earlier, you can require additional landscaping in the context of a discretionary permit or a rezoning. VITOUSEK:And so the extent of landscaping youÓre proposing to be required here is as a result of the discretionary SMA permit, as oppose to any other legal basis? YUEN:Right. VITOUSEK:Okay, I donÓt have any further questions for now. Than thank you. GIFFIN:Thank you. This isnÓt to say that youÓre pau, Chris, but that there are other people who would like to continue the cross-examination. Bbut weÓre all hungry. So what IÓm going to do is -. TORIGOE:You should check and see if the parties are -. GIFFIN:I think theyÓre hungry, too. DAVID:Absolutely. GIFFIN:Hungry, yeah? DAVID:Absolutely. GIFFIN:See. Okay, Mr. Torigoe suggested that I check, so I have. 48 DonÓt you have further cross-examination? DAVID:Oh, yes. GIFFIN:Look at those faces. So, with that, it is just a few minutes after 12, and Î. OÓTOOLE:Did we ask about rebuttal also? Does anyone have rebuttal? VITOUSEK:Yes. OÓTOOLE:You know, just to plan the rest of the day. GIFFIN:Oh, you mean todayÓs schedule? OÓTOOLE:Yeah. GIFFIN:Yeah, I think that yesterday the Applicant asked, and I approved. OÓTOOLE:And what about the rebuttal from the Intervenors? GIFFIN:They didnÓt ask yesterday. OÓTOOLE:Oh, so they wonÓt have rebuttal? GIFFIN:I donÓt think so. DAVID:No, I wonÓt. GIFFIN:They have not indicated. M. ROY:None for Klana. GIFFIN:But the Applicant did. Okay, and so I would say letÓs return at 1:15 promptly. Okay. WeÓre in recess. RECESSEDThe Presiding Officer recessed the meeting at this time, 12:05 p.m. RECONVENEDThe meeting reconvened at 1:25 p.m. GIFFIN:IÓd like to call this continued, this contested case, this continued contested case back to order. The Applicant is Wayne Blasman. The SMA No is 02-03. 49 When we recessed for lunch Mr. Vitousek had just completed his cross examination of Mr. Yuen, not to say that he will not necessarily have more questions, but we will move along. Maile? DAVID:Thank you very much. GIFFIN:YouÓre welcome. DAVID:Hi, again, Mr. Yuen. Whose responsibility is it to obtain the necessary information so that an SMA permit application can be properly considered? YUEN:Under the SMA law, the Applicant has really what you would call the burden of persuasion or the burden of proof that their project will not create a substantial adverse impact, but the Commission has to make that finding. The Applicant has to present information enough for the Commission to make that findi Certainly, Planning Department in its role in advising the Planning Commission also contributes to hopefully supplying information and advice to the Commission for it to make its decision. But the Applicant does ultimately have to make enough of a showing that they can make those conclusions. DAVID:Thank you. Then if not through a contested case, other than the methods youÓve described, by what mechanism would the cultural information that was provided to this body have been included in this process? YUEN:Well, if there hadnÓt been an intervention requested in the contested case, the Planning Commission could have made a decision at that first hearing. People could have still come to the hearing and either orally or submitted written information covering the kinds of things that have been done in this contested case. They would not have the, the outside people would not have a right of cross examination. But people can without doing a formal contested case bring in documents and present testimony before the Planning Commission makes its decision. DAVID:And that would have to be done up front at the public hearing? YUEN:Yes, because had the contested case, had intervention not b the Planning Commission could have proceeded to a vote at that first hearing. DAVID:And they would have proceeded with what was initially before them at that point? YUEN:Well, they would have whatever information was there. Had been, had we not known that there had been a contest, that there was going to be 50 intervention, the Department would have furnished a background, would have furnished a written recommendation at that, before that hearing. But that was withheld because of the contested case. DAVID:In your opinion, would you think that the information at that point would have been as extensive as it would come in through a contested case hearing where people have requested standing? YUEN:Well, I think much, much useful and important information h forward in this, in these hearings. DAVID:Yesterday, I believe, Hearings Officer Hannah asked whether it was in your discretion to require an EIS, which in turn, I guess, in this situation would have triggered a cultural impact statement. Would that have been a consideration for this case because of all the new information that has come forth? YUEN:There is a statement in the rules that says that the application has to be accompanied by an EIS, when required by Chapter 343 or when requ I honestly, I donÓt understand what that rule means, because there is a Chapter 343 EIS process, and there are certain triggers. If there is a trigger, we will require the EIS. If there isnÓt a trigger, IÓm not sure what the Director is going to make them do. Because if youÓre not in that process, what is, what are we supposed to do with that EIS --. I understand what happens when you, when you have to prepare a formal EIS. You prepare it, you publish notice in the OEQC Bulletin, thereÓs a time for comment, thereÓs an acceptance of the EIS and thereÓs a time limit for people to this outside 343 EIS, what the whole process is there. And I havenÓt ever required an EIS under that provision. So would they have to do a cultural impact? If the Director said, I guess, if the Director says you have to do the EIS and then the Director says we want you to do a cultural impact assessment, then I guess you have to do it. But itÓs not trigger in this application. So thereÓs no need to do an EIS under that law which now includes cultural impact assessments. DAVID:Mr. VitousekÓs question earlier of whether you knew of any historic sites that exists here, or anywhere I would imagine, that required a total screen that youÓre recommending, a total visual buffer, landscape buffer. And you said that there wasnÓt, is that correct? YUEN:Not that I know of. DAVID:Right. And could this be because before this came, before Keakealaniwahine came into the picture, thereÓs no other site as significant as, as this? 51 YUEN:IÓd say that in my administration as Planning Director there has not been a project that had a potential impact to a site as significant as this. DAVID:Thank you. And it is your discretion to make recommendati those recommendations are as the Planning Director. But is it not the responsibility, regardless of their recommendation of the Hearings Officers, to either accept or reject your recommendations? YUEN:Yes, and then for the Planning Commission to make a final d on the Hearings Officers report and other input. DAVID:Another question regarding reasonable expectation under the General Plan, I believe, Mr. Vitousek was referring to his, Mr. BlasmanÓs reasonable expectation that he could build a 36-unit condominium, because of the urban designation. In Mr. BlasmanÓs due diligence or Mr. VitousekÓs due diligence should he not have also been aware of the standards that you were talking about yesterday for evaluating historic sites in the General Plan? YUEN:I think that they were, they should have been and were aware that there was a very significant historic site adjacent to their property. As to whether somebody should specifically be aware of what the General Plan says, I donÓt know. DAVID:Right, right. I understand what youÓre saying, but it seemed to me that the reasonable expectation that Mr. Vitousek is referring to, Mr. Blasman had is that he, regardless, heÓs entitled to build this 36-unit condominium, or he could be building a 36- unit condominium because of its designation, and in accordance with the General Plan. But then the General Plan does have other criteria that needs to be followed, is that correct? YUEN:The General Plan does, but itÓs really being effectuated through the SMA permit here. DAVID:ThatÓs right, because it has to conform to the General Plan, the permitting? YUEN:Right. DAVID:In the Hanapi case, wasnÓt that a criminal trespass case and not an agency hearing such as this? YUEN:ThatÓs correct. DAVID:And in an agency hearing, youÓve testified it is the ApplicantÓs responsibility to justify the proposal of what heÓs proposing to develop? 52 YUEN:They have to do that, yes. DAVID:And referring to a fully developed, Mr. BlasmanÓs property being fully developed, if in fact it was fully developed, why, and I think he has referred to the prior SMA permit, why would another application for an SMA permit be required here if the property is fully developed and -. I donÓt understand the definition of Î. YUEN:Well, in Hanapi they talk about, theyÓre trying to draw a line at which these cultural gathering rights no longer get to be exercised on the property. The line they draw, they said fully developed. And then they go on to say fully developed means zoned and actually used for residential purposes. ThatÓs probably their, it was known, and used for commercial purposes would also be fully developed. But, in that case, they are dealing with a piece of residential property, and they said thatÓs fully developed. So BlasmanÓs is zoned and actually used for residential purposes and itÓs fully developed in that sense. Now it doesnÓt mean that it has been developed to its absolute potential under the zoning. But thatÓs not what is required under Hanapi. ThatÓs why I use the term fully developed in reference to this property in its current condition. DAVID:Would that application then maybe be applied differently in an agency hearing as opposed to a criminal trespass case? YUEN:I donÓt think so. I think that the Supreme Court was clearly trying to give guidance both, to give guidance in the application of PASH and generally in the Hanapi case, on this question of when, when must you allow a person to come onto private property to exercise the cultural rights? DAVID:How do you differentiate your accommodation of Mr. BlasmanÓs economic desires, and the requirements of the laws of protecting cultural resources? How does that balance out? YUEN:The balance that IÓm suggesting is that it be done through, through a landscape screen. DAVID:And could you explain, let me see, why your recommendation strong, for lack of a better word, as the State Historic Preservation Division or State Parks, not to mention the kupuna and cultural practitionersÓ testimonies regarding the 100-foot setback and the building heights? YUEN:I think an adequate landscaping buffer, it wasnÓt clear to me from State Parks whether the 100 feet is from the wall or from the property line. If itÓs from the wall, there are at 89 feet. I think that an adequate landscaping buffer might be more than a 100 feet from the wall. 53 As far as a one story, IÓve made a decision that the appropriate balance to accommodate their economic interest with some of the other desires and wishes should be done by a landscaping and not by limiting them to a one story. From the testimony of Mr. Bleck, making the project one story on the back row would, it clearly would, clearly reduce the value of the site for the developer. IF you would cut down the number of units, it would, they would have a marginal v You might have some, IÓm not sure the exact testimony, but it would not have as good a view over the top, over the roofs of the top units. DAVID:So his proposal, basically, is not -. What heÓs proposing to build is not really guaranteed, itÓs just what would be permitted under the SMA application processes, is that right? I mean, what he wants to do and what he can actually do is Î? YUEN:ThereÓs nothing, thereÓs no guaranteed result in the SMA process that, in appropriate circumstances, the Planning Commission can completely or partial deny an application, even one that conforms to a zoning. DAVID:In your opinion, since the State required, I mean acquired Keakealaniwahine, and the fact that Keakealaniwahine will be potentially included on the State Historic Register and the Federal Register, I believe thatÓs coming up on Saturda nd the review hearing is on Saturday, the 2, could this possibly have an affect on future zoning and land use designations within this area because of that? YUEN:The significance of the sites in Keakealaniwahine have to be taken into account in any other rezoning application. I donÓt know that the, the inclusion of the register would validate or recognize a significance that is, I think, already widely known and recognized. So I canÓt say that just the fact of it being put in a register would make a great deal of difference. The properties around, around Keakealaniwahine are currently zoned agriculture 5 Acres, I believe. They are shown as future urban expansion in the County General Plan, and I expect that at some point there will be applications to rezone those to urban uses. DAVID:Thank you. Earlier in your testimony, when you were discussing how the Keakealani parcel 11, is it -? YUEN:Yes. DAVID:Got, or how the Blasman property got sectioned out of Parcel 11, and there was a question on when that happened and why it happened. Would it be, under normal circumstances, you said, or correct me if IÓm wrong, you said that an application would not require that the Applicant produce a deed to the property to verify that he is the owner because the records, or that fact is verified by the property tax office records? 54 YUEN:Correct. I should, you know in my last answer I should mention one thing, that what people normally refer to as the Keakealaniwahine Complex, what Kekahuna mapped here, is really in the lower part of that State-owned Parcel 11. There is a sort of natural buffer which, which is, does not have very many archaeological sites in the mauka part of that property. I just wanted to correct that part of my answer. But in response to your latest question, no, we normally would not ask for a deed. DAVID:Would it be helpful, in your opinion, that had, because the deed listed, was listed on ApplicantÓs list and then withdrawn because of this question of what happened to the parceling out into BlasmanÓs property, you think it would be helpful that a copy of the deed and even the title insurance policy be provided to the body for consideration? YUEN:I actually have seen Mr. BlasmanÓs deed. He has a warranty not contain any special encumbrances against title other than standard encumbrance of property taxes, and thereÓs mention of encroachment shown on a survey. I donÓt know exactly what that means. There may be some encroachment from ad encroachment from adjoining property either to the north or south, as thereÓs really no encroachment from, from the east or mauka. He has a purchased money mortgage with Mr. Silva. ThereÓs nothing in the deed that really tells you anything. It doesnÓt tell you, this question I had of how the parcel got subdivided. ThereÓs nothing, thereÓs nothing especially interesting in the deed. The question, I think the point, somebody raised this, that what if there is some kind of, deeds often have reservation of rights of native tenants. That is a standard encumbrance. I would not regard that as giving him special reason to be concerned about the developability of his property, just simply that there was a reservation like that. DAVID:In the deed, in the certificate of title or the title insurance policy, would there not be some sort of disclosures about whatÓs not covered or not insured in the title? YUEN:The existence of an off-premises important archaeological site would not be normally something that would be mentioned in title insurance as a problem or an exception. ItÓs just, itÓs just not part of title insurance. Things that may be development constraints, thereÓs no, thereÓs all kinds of issues in the development process that are not part of any title issue or title policy. Like thereÓs no water to your property or the zoning itself is not part of the title search. So, and I would be quite surprised if, not that I havenÓt seen the title policy, IÓd be quite surprised if the title policy bothered to mention an adjacent historical site. The title policy sometimes do mention on archaeological, main on premises archeological sites as encumbrances. DAVID:Then do you think that this, in the sale of property, isnÓt it a practice to disclose, a sellerÓs obligation to disclose anything that might affect the property youÓre selling? Is that something that would not be included in the certificate of title or title insurance, but is that another document that would give the buyer notice of whatÓs, of what to expect? 55 YUEN:There often are seller disclosures in real property transactions, yes. DAVID:And that would have any, that would disclose any, anything that would be affecting that particular property? YUEN:I think when you say any, itÓs really too broad. ThereÓs certain types of things, certainly, that are supposed to be disclosed, encroachments, unpermitted buildings or dwellings. But to say anything that affects the property, I think, is too broad in that sense, because, and especially if youÓre trying to tie it into this land use decision. The kinds of things that can affect a land use decision are and may, like I mentioned, availability of water, or the road is bad in front of the property, or the driveway doesnÓt have very good sight distance. All those may be problems in the zoning or other land use decisions, but they are not really the kind of things that are going to be -. ItÓs something that the buyer could sue about, if the seller didnÓt disclose it. DAVID:And then my last question is that such a disclosure would include, or could include the fact of the historic sites being adjoining? YUEN:The disclosure could have, the disclosure could mention it. I donÓt think that the disclosure would be faulted on a legal grounds if it did not mention it as off premises archeological sites. DAVID:I guess in the same sense as someone, like Mr. Blasman, ap permit of any kind, the adjoining landowners are not automatic parties, but they get notice anyway of whatÓs happening, or what his intention is? YUEN:They get notice, yes. DAVID:ThatÓs all I have. Thank you. GIFFIN:Thank you. Mikahala? M. ROY:Thank you. Aloha, Chris. Thank you. Leading on Ms. Dav question, do parties get, neighboring parties get notice, who would be the recipient for the sacred land? Who would get notice for development that impedes on a sacred property? YUEN:ThereÓs no formal way of doing that. If someone, though, w notice of planning actions that may come up to the Planning Commission, we have a mailing list and they can request to be put on the mailing list. TheyÓll get all the agendas and they can keep track that way. M. ROY:Thank you. Regarding an earlier application for this property by another owner, be it the case that I was not able to find that permit, is it true, was there a permit given for, it was a thirty some odd unit condo? 56 YUEN:Yes, there was a permit granted. M. ROY:IsnÓt it true that this is no longer relevant as this is not an issue at this time of this case, and it lapsed? YUEN:ItÓs, thereÓs some relevance to what happened in the previous permit. The permit itself has lapsed and is no longer in effect. The information in the prior permit may be relevant. M. ROY:Was there an application for an SMA? YUEN:This was an SMA application. ThatÓs what it was. ThatÓs what it was in 1980. M. ROY:Why did it lapse? YUEN:Passage of time without commencing construction. M. ROY:How long was that period? YUEN:I donÓt know. M. ROY:Thank you. Do you think thereÓs a possibility they could have found out of the property next door and decided to change their, to let that lapse? YUEN:I do know that there was discussion of neighboring historic sites in the permit process, and the Applicant went ahead and went through and got their permit, despite testimony somewhat like the testimony that we have here, not exactly the same, but raising concerns about historic sites. I do know that in applying for an extension of time in, and this would be about 1982, they referred to the extremely high interest rates that were, that were in affect at that time and were essentially stifling all, almost all real estate development in Kona and elsewhere in the country. There was a recession in 1981, Ó82, there was severe recession. So that was their stated reason. As to your suggestion that maybe there was concern about the historic sites that made them give up their permit, I have nothing to add beyond what IÓve just said. ThereÓs nothing that I read that would lead me to that conclusion. M. ROY:Thank you for elaborating. In your opinion, is it a possibility? YUEN:Anything is a possibility. But beyond that I canÓt, I canÓt lend any support to that, to that suggestion or possibility. M. ROY:Thank you for elaborating, Mr. Yuen. 57 Regarding your earlier testimony, switching gears back to the land area, your testimony of Mrs. HansonÓs assistance, may I just ask you, in your looking over if you could recollect; could Mrs. Hanson have identified this party as being a Mr. Akoni Ako, the informant at all? YUEN:I think the last name was Ako, but I -. I can go back and look and tell somebody, but IÓd have to pull the file to remember. M. ROY:Thank you. And regarding the Kekahuna map, could it be, is it possible that the fact that we donÓt see anything mapped on the Blasman, the current Blasman property, could it be that the bulldozing had occurred by the time that mapping was done? YUEN:ThatÓs possible, but the report, the 1977 archaeological report by Tom Dye says that in, that Julian Silva told Tom Dye that 92% had been bulldozed in the late 1950Ós to prepare for the construction of Snug Harbor. And whet bulldozed before 1959 or some point, I donÓt know. There has be disturbance at some time because we know from property tax records that there was a small house built there approximately in 1933. M. ROY:That seems to be a large matter in my mind because this is where I wish we had Mr. Silva before us, for one thing. And to discuss the actual time of bulldozing would be important in this matter for the mapping of these areas Kekahuna map from my observation is dated, the sketch reads 1950 Thanks, Mr. Yuen. My last question is, well, letÓs see, regarding the upcoming matter of suggested placement of this area on the State Historic Register, parties planning to make comment on that matter will be testifying as to the absolute connectedness of this region. Would that still render, for example, if that, if those changes were to be entertained at that hearing in Honolulu and they end up changing that in the end, too, make it very clear that it is one body, would that have an effect on the planning process here with the County at all? If, in fact, itÓs proven to their satisfaction that this region is one large connected area, not divided by a road, though it may be today at one time the original, if thatÓs proven by that register report, would that have an effect here? YUEN:If the Blasman property were actually included within the bounds of the, of a site on the National and State Registers, it would. As I mentioned in response to a question yesterday, IÓm not sure how the National Register works. On the State Register, they would have to go through, if they wanted to build a condominium, they would have to go through an additional process of clearance with the State Historic Preservation Department. It would not, in itself, stop them building the condominium within the boundaries. However, IÓm fairly certain that their property cannot be placed on, their TMK which they separately own, cannot be placed in the, certainly in the State Register without their consent. And I believe the same is true on the National Register, but IÓm not sure. Well, at least it canÓt be done with their actual opposition. I think if they donÓt, I think that maybe if they donÓt oppose, it can happen. But if they do oppose it, IÓm fairly certain that it cannot be placed on the State Register against their wishes. So regardless 58 of whether the people who are, the State Historic Places Review Board, whether they think it ought to be in the register or not, that canÓt happen with, over the objections of the owners of the property. M. ROY:Mr. Yuen, will you be taking part in that hearing Î? YUEN:No. M. ROY:From the County at all? YUEN:No. M. ROY:Thank you. May I take one minute please? I had just wanted to avoid asking you, one more time, a question that you have answered. But, to my satisfaction, would you please tell me your decision regarding this application, and have you denied this or accepting it on condition today? YUEN:IÓm only making a recommendation, and my recommendation is denial based on the ApplicantÓs failure to adequately screen the building with landscaping. They have not presented an adequate plan, an adequate proposal to do that. M. ROY:Thank you very much. Oh, one more question. GIFFIN:Sure, Mikahala. M. ROY:Regarding that subject property, Mr. Yuen, are the existing buildings there up to Code? YUEN:I donÓt know. You mean Building Code? M. ROY:Yeah. YUEN:I donÓt know. M. ROY:Do the people there pay rent? YUEN:I donÓt know. M. ROY:Thank you very much. No further questions. GIFFIN:Hearings Officers, any more follow-up questions? Commissioner Springer? 59 SPRINGER:Going back to the environmental impact statement and your discretion whether or not to require it, though you havenÓt used 9-10 B.4. Do you not understand how it might be applied? Does it need to be clarified or should it be amended? YUEN:I think it should be amended. Because if youÓre going to have, if you do Chapter 343 EIS, you know whatÓs supposed to be in it. You know how it gets reviewed, what the standards are for approving or denying it. This is, this one is, just floats out there. And I havenÓt researched where this came from, how long it has been there. There was a time in which there was a County EIS re kinds of buildings. A hotel needed a County EIS at one point, and this has since been taken out of the Zoning Code. So I think thatÓs something we should look at in the course of amending the rules. SPRINGER:Thank you. GIFFIN:Any other questions? Mr. Vitousek? Excuse me, Ms. OÓToole, I apologize. OÓTOOLE:Thank you. Mr. Yuen, about plan approval and the Board of Appeals, is it your understanding that anyone other than the Applicant could appeal whatever decision you might make on plan approval? YUEN:An aggrieved party can approve other than, I mean, can appeal other than the Applicant. There have been appeals in the past. The tricky part of it is that often itÓs difficult for somebody besides the Applicant to know when something like plan approval or subdivision approval has been granted, because there isnÓt any public notice in some of these processes. Well, thereÓs a public notice after the subdivision is approved, I think, IÓm not sure. But in plan approval, thereÓs no public notice at all. OÓTOOLE:So regardless of whether the Applicant were happy or unh else might come in and Î. YUEN:Someone else could conceivably, again, an aggrieved person, and they need to have standing, but it has happened. OÓTOOLE:Now Î. YUEN:As Mr. Vitousek knows. OÓTOOLE:Let me ask you about this issue about Mayor Kim and his desire to perhaps acquire the property. Can you explain what your role is or is not in terms of that? YUEN:Well, the only reason I want to discuss this is that it has been brought up and argued by the, at least insinuated by the ApplicantÓs attorney that the reasons for imposing certain conditions are to try to drive down the price and make it more difficult 60 for the Applicant because the County is interested in acquiring the property. In this, when this application originally came into the office, I recognized that it was, it was going to be a difficult and sensitive application. Although, I have to say that I didnÓt really expect or understand the depth of feeling about it. I did not initially look at it, and thereÓs always a potential range of choices in an application. It can be, you can deny for a bad project. You can approve just pretty much as is, or you can approve with the conditions. You can also, if you have a problematic application, one of the possible alternatives is public acquisition. I didnÓt originally look at this as something that I was going to talk to the Mayor about as a matter for public acquisition. I knew that if anybody was, it seemed to be more the responsibility of the State being that thereÓs, it adjoins the State Park. I know the State was not in an acquiring mode, at least through purchases. And given, and I also was acquainted with the CountyÓs financial situation. And I generally just donÓt go and try to solve problems, tough zoning problems or tough land use problems, with public acquisition. Later after, sometime after the first hearing as it has been tes with, and I'm not sure who he met with, I know her name was Cindy Punihaole, and IÓm not sure with who else. And after that, the Mayor asked me to come in and discuss the property, the project. He asked what my opinion was on, he said heÓd been asked to help on a public acquisition, and he asked what my opinion was on public acquisition by the County or someone else. And I said that in order to be definitely a worthy property for, to be put in to public hands and put in public domain, that it was next to this extremely important historic site, that development on the property would possibly compromise the future use and enjoyment of the historic site, that the property itself could be used as an access, possibly a parking area, possibly even a visitor center area for the enjoyment of the Keakealaniwahine parcel, that any final decision on whether to commit funds to it was beyond my, something I really couldnÓt advise, given I donÓt really have a good picture of the CountyÓs overall financial situation, except that itÓs a difficult one. I did also mention, I said to him that we have a pending SMA permit application, that I have a responsibility of making a recommendation to the Planning on that application. Although IÓm sure the Mayor understood this, I wanted to, I wanted to be made absolutely sure he understood this, that the recommendation might be for approval with conditions even, given all that IÓd said about the desirability about this being public property. If there was a way for the Applicant to meet the requirements of an SMA permit with appropriate conditions and safeguards, then that would be the recommendation. I also asked that I not be the individual, if the County were going to proceed toward acquisition, that I not be the individual who was primarily responsible for spearheading that. This, in this situation, itÓs obvious that when you have a, if the, if the public is going to try to buy it, the County is trying to buy it, the place is going to be a big issue. The, the recommendation, not the recommendation, but the final action on the SMA permit can play into a price. It lends my playing both roles of making recommendation to the 61 Planning Commission at the same time negotiating price of a purchase with a, with a landowner lends itself to the charge, which has, I think, been made that the County is taking unfair advantage of its land use powers. And so we ended it with that. And the Mayor has, I have not been responsible for being the one who works on the acquisition. And the Mayor, the Mayor has not given any directives or instructions on how I should handle this application. I have to say that the Mayor has said more times than I can count and probably 10 times as much as he has ever said anything else, that we must give every consideration and sensitivity to the feelings of the Hawaiian community in our decision making. He said this to me, and the other members of the cabinet, many, many tim particular input or involvement in my recommendation on this permit. And I think thatÓs a rather long way of explaining the testimony, which I think is really pretty clear from what was said, but thatÓs when they talked about the Mayor said my job and your job. OÓTOOLE:I just want to clear up --. I think Mr. Vitousek was asking you about things that were on the record or not on the record. Is your, do you believe your recommendation is based upon information in the record? YUEN:Absolutely. OÓTOOLE:Thank you. I have no further questions. GIFFIN:Thank you. All right, Mr. Vitousek? VITOUSEK:Just very briefly, Mr. Yuen. So in your discussion the Mayor, you, regarding the acquisition of the property, you told him you thought this property would be appropriate for public acquisition, is that correct? YUEN:As far as something that would be worthy of spending money important to the preservation of Hawaiian cultural sites, yes. VITOUSEK:And you acknowledge that the action of the Planning Department and ultimately the action of the HawaiÒi County Planning Commission, both of which are agencies of the County of HawaiÒi, will have or may have an impa of the subject value, is that correct? YUEN:It may have an impact on the market value, yes. VITOUSEK:And the most likely impact is that if the permit application is denied, it will reduce the value of the property as compared to what it wou approved, isnÓt that correct? YUEN:In the open market thatÓs, I would have to say thatÓs quite a likely possibility. 62 VITOUSEK:And so at a time when the County is, is pursuing acquisition of the property, other agencies of the County are taking action which can directly impact the value of the property which the County wants to acquire, isnÓt that correct? YUEN:Well, I donÓt really see, unless there was some law forbidding the County from seeking to acquire property while there was a land use application pending, I donÓt see any way around, around that. So that, that situation can exist. VITOUSEK:Did you see any potential for a conflict of interest in that context? YUEN:I donÓt think the phrase conflict of interest is correct. I would say that there is a potential for misuse of power in that context. And IÓve tried to avoid that by separating myself from any, from being directly involved in an acquisition. And the Mayor has, I donÓt know who or what, if anything, is going on with respect to the acquisition of this property, if thereÓs, if anybody is working on it, if thereÓs any money, etc. But the government has different arms, and sometimes thereÓs need to act, they do need to act with some degree of separation. And this is one of them. VITOUSEK:And I think in questioning yesterday when you were asked about other potential uses of the property, including a single-family home, I think your testimony was that you would have the discretionary review to the determine whether an SMA major permit would be required even for a single-family home on the property, isnÓt that correct? YUEN:Yes. VITOUSEK:In fact, is there any development of the property, which would not be subject to other than leaving it in its existing condition, which would not be subject to discretionary review by you, as Planning Department, under the SMA statute? YUEN:The SMA law is pretty board. And says, IÓm not sure if wha is in the law and what is in Rule 9, but theyÓre both the law, all right, I mean, whatÓs in Chapter 205A and whatÓs in Rule 9. But at least, under Rule 9 it says something like anything is development unless itÓs, the Director determines that itÓs not development. And any development can, it also says something like even exempt activities like, exempt from the definition of development, like construction of a single- family home thatÓs not part of a larger project, can be, the Director can determine that they are development if they may cause a significant environmental or ecological effect. They may have that effect. So, yes, quite a range of things could be defined as development and subject to there being an SMA major permit. VITOUSEK:Leaving on the side for the time being the issue of whether Rule 9 is, can go beyond the scope of 205A, at least itÓs your interpretation that you have the authority to conduct a discretionary review of any application to do anything on this property other 63 than continuing the existing uses? In other words, under the SMA statute, you as the Planning Director have the discretionary to decide whether or not that is development which must be subject to a special management area use permit, is that correct? YUEN:ThereÓs a standard of abuse of discretion. Certainly when you say, IÓm uncomfortable with the word ÐanyÑ. You know, clearly if the Director said having a picnic on the property has a significant environmental and ecological effect, you need an SMA major permit, that could be challenged as an abuse of the DirectorÓs discretion, and IÓm sure it, the challenge would succeed. But I think the general point that youÓre trying to make, I would say I agree with it. The law gives the Director a lot of authority to, you know, subject to abuse of discretion, to say that certain activities even those exempted from the definition of development may be development. I know that for sure the statute says that. The statute definitely, 205A says that if the Director determines that an activity may have a significant environmental or ecological effect, that it will be considered development and permit. VITOUSEK:YouÓre referring to the section that says whenever the authority finds that the excluded use, activity, or operation is or may become part of a larger project, the cumulative effect of which may be a significant environmental or ecological affect on the SMA, that use, activity, or operation may be defined as development? Because IÓm not aware of any other similar language under 205A-22. YUEN:That wording, what version, I think the wording has been changed on that particular section. Do we have the latest on that? VITOUSEK:Yeah, I donÓt know, itÓs not -. The point is, the point is simply, Mr. Yuen, that you, your interpretation of the law is that if Mr. Blasman was proposing a single- family home or was proposing subdivision of the property into four or fewer units that even though those are excluded from the definition of developmen that you could nonetheless conduct a review to determine whether they are indeed exempt and have the discretion to find them non-exempt and to require an SMA major permit, isnÓt that correct? YUEN:ThatÓs correct. Just for the record, you were reading the older version which says that. And the newer version says that Ðprovided that whenever the authority finds that any excluded use, activity, or operation may have an significant environmental or ecological effect on a special management area, that use, activity, or operation shall be defined as ÒdevelopmentÓ for the purpose of this part.Ñ So it no longer is only when itÓs part of a larger development. They did change that in 2001 or 2002 to the wording that I just gave you. VITOUSEK:Okay, and then, so, again, going back to that, that new definition of the new language, who is the agency? 64 YUEN:The authority is delegated Î. VITOUSEK:I mean, the authority. YUEN:By Rule 9, the authority is, the Planning Commission has delegated this to the Planning Director. VITOUSEK:So the point being then that under the, I guess, the point was already stated that do you feel you have the discretion to decide whether or not a single-family home or subdivision of four or fewer units even though those are stated as exempt may, in fact, not be exempt, is that correct? YUEN:ThatÓs correct, yes. VITOUSEK:And you may require a major SMA permit and that would give rise to the opportunity for a contested case hearing, isnÓt that correct? YUEN:ItÓs within the range of the DirectorÓs discretion, yes. VITOUSEK:So, basically, with respect to this issue on the CountyÓs interest in acquiring the property, what the bottom line is, is that the Mayor has expressed a direct interest in acquiring the property so that it wonÓt be developed. And it just so happens coincidentally that youÓve made a unique recommendation that the, that the application be denied based on essentially previously unannounced requirements in terms of visual buffers, isnÓt that correct? YUEN:When you donÓt like the recommendation, you can make whatev arguments you want against it. A recommendation is made for the the integrity of an archaeological site. And I would make exactly the same recommendation were the County to announce that it had absolutely no interest in acquiring the property. Same ditto the State. VITOUSEK:I understand thatÓs your testimony. I just think that itÓs important to understand what the, what the effect of that is in terms of the -. I mean one of the areas youÓre entitled to inquire into with respect to a witness is do they have any other possible motivation for the position that theyÓre taking. And thatÓs what I was exploring. YUEN:I hope youÓre satisfied with my answer. VITOUSEK:ThatÓs all the questions I have right now. GIFFIN:Okay, then IÓm going to -. IÓm sorry, Mr. Togashi? TOGASHI:May I just follow up on what Mr. Vitousek was asking. I know among your exhibits is an Exhibit E; and this Exhibit E is entitled, Portion of Proposed Revisions 65 to the General Plan, page 124, Ramsayered version, new course of course of action being proposed is to establish suitable visual buffers for the Keakealaniwahine and Keolonhihi Complexes as a condition of rezoning or special management area permits for nearby properties. Can you tell when this proposal was actually, I guess, put forth on the original revised General Plan? YUEN:Thanks for asking. This was, it was well before this application came in. As the Commission will remember, during the public review of the General Plan, there were, there was a lot of testimony about the importance of the Keakealaniwahine site and there was a proposal, there was a public proposal that, I believe it was for an establishment of a 1,000-foot open designation around the site as a buffer. I recommended against adopting a fixed buffer space like that in that it would affect, if you took it seriously, and you then did not allow construction on these parcels, it would take away the economic use of a fair number of small parcels, ac number of large parcels as well. My recommendation was to, the Commission asked for something about this, and asked for a recommendation. And this recommendation in, I think this particular wording came out of the Department. ItÓs not, it shows, I think, the interest of the Department and the recognition of the site. I think it was meant to also, it was also meant to recognize that there are different circumstances with different parcels in close proximity, viewplanes and the like, that you canÓt spell out necessarily in advance. So this was to put it out there that this is an interest and a concern, something that should be looked at in applications. A reason for putting it in as an exhibit or as a reminder of this being a statement of intent or policy by the Department, and in fact by the Planning Commission that ultimately ratified or supported this amendment, it hasnÓt, itÓs not law. It has not, this has not passed as law. And so it canÓt be cited as law, but it is a statement of policy that had been adopted and, well before this application. TOGASHI:Can you tell me before the word Ðsuitable visual buffersÑ, this phrase came into being about the 1,000 foot number, where that 1,000 number, is that in response to input from public interest groups? YUEN:Well, the 1,000 foot was a suggestion. I believe, IÓm not exactly. I know Mr. Erway was involved in the 1,000 foot, but it wasnÓt, it wasnÓt something, the 1,000 foot did not come from the Department. The directly from people from the general public. TOGASHI:No further questions. GIFFIN:Mikahala? M. ROY:Ms. Giffin, I have just one question remaining. Thank yo 66 Mr. Yuen, if the Applicant appeals in the process, do this, do the Intervenors have a way to appeal also, and will we be notified? YUEN:You mean at this plan approval stage? M. ROY:Excuse me Î. YUEN:If the permit is granted Î? M. ROY:If the permit is granted or if Î? YUEN:Well, if the permit is Î. M. ROY:Excuse me. YUEN:Well, thereÓs all kinds of possibilities. If the permit is conditions that the Applicant doesnÓt like, the Applicant can appeal. The IntervenorÓs can appeal. I mean, thatÓs one possibility that is the Planning Commission grants the permit and nobody likes the outcome and as a matter of legal right, yes, the Applicant can appeal, the Intervenor can appeal, the Planning Director can appeal. So thatÓs, that is a possible outcome. And you will, in that kind of situation, you would have notice that the Planning Commission voted, the effective date of the permit, thereÓs a timeframe for appealing. And you would, you would all have, you would have notice of that. M. ROY:Thank you very much. GIFFIN:Mr. Vitousek? VITOUSEK:One question. Mr. Yuen, I have only a dim recollection of this, but didnÓt that issue of the 1,000 foot setback come up in the context of the CountyÓs proposed road alignment through that area or -? YUEN:No. th VITOUSEK:Is there a proposed road alignment that goes Hlualoa 4? YUEN:Directly mauka of TMK, the approved alignment for Alii Park directly mauka of the Parcel 11, TMK 11. And I can tell you though, and this was before my time though, that the planning for the road, the alignment of Alii Parkway was shifted to jog, specifically shifted. ThereÓs a big jog in the road to go around the Keakealaniwahine site, but there is an approved SMA permit. And it was approved before the, you know, we were taking the General Plan out for hearing that approves the alignment of Alii Parkway. 67 VITOUSEK:Is there any, would Alii Highway be visible from any portion of the Keakealaniwahine Complex? YUEN:I donÓt know. VITOUSEK:If it was, would the County take action to implement a complete landscape barrier between the highway and the, between the County highway and Keakealaniwahine? YUEN:ThereÓs about, I believe thereÓs about 400 feet of separation between the highway and the area shown here on KekahunaÓs map as the main pa There are, thereÓs some landscaping conditions with the Parkway. What they are exactly, I couldnÓt tell you. There are some landscaping conditions that are meant to deal with the archaeological sites. But this is something, this is an example of something thatÓs buffered by distance. VITOUSEK:I have no further questions. GIFFIN:Ms. OÓToole? OÓTOOLE:Is it also an example of somewhere where the public interest comes into play in terms of traffic improvement in this area? YUEN:It would, itÓs a kind of, itÓs the kind of project that is, that could conceivably fall under significant adverse environmental effect extent feasible, and the adverse effect is outweighed by a compelling public interest. How, what the permit exactly says, I donÓt, I couldnÓt tell you, because it was done before I was a Director. IÓm generally familiar with it; but down to that exact point, IÓm not sure. OÓTOOLE:Thank you. GIFFIN:YouÓre welcome. Okay, weÓre clear then. We can excuse th Thank you, Mr. Yuen, for your patience. Mr. Vitousek, I think we go back to you regarding your request for a rebuttal witness. VITOUSEK:Yeah, I think we, what IÓd like to do is try to initiate a discussion of where we are and how do we proceed from here. Basically, the Applicant would like to call Richard Moore as a rebuttal witness, but with the understanding that Mr. Moore, you know, that this proposed, or this requirement or the position of the Planning Director only became known in terms of requiring a complete visual barrier yesterday afternoon. And so what Mr. Yuen is saying is that the, heÓs going to recommend denial unless the Applicant can present a more adequate plan. ItÓs essentially impossible for the Applicant to present an evolved plan or a plan that 68 appears to be, has evolved to the extent that the Planning Director apparently will consider overnight. And so IÓm prepared to have Mr. Moore testify with respect to the, with respect to his ability to prepare such a plan and the feasibility of such a plan. In other words, a plan that would provide a complete visual screen, but he canÓt present such a plan, you know, I mean -. And so he cannot present a fully evolved landscape pl selections and heights and depths and what not overnight. ThatÓs, thatÓs just not feasible. And so IÓm prepared to present Mr. Moore for rebuttal testimony, but IÓm also going to request that the hearing be continued to give the Applicant the opportunity to present this plan. You know, this hearing has been continued at the request of the Intervenors a couple of times based on availability of witnesses or other issues. And we feel that it is a very appropriate request because this is, as Mr. Yuen has said, a unusual or unique condition or requirement that he is imposing. And we feel that the Applicant should be given the opportunity to address it. In other words, the point of the SMA use permit process is not to stand as a barrier to development, but to explore whether there are means of mitigating potentially adverse impacts so that they will not be adverse impacts. So I donÓt think we, you know, in this context, particularly, I think we can demonstrate and we have demonstrated through cross-examination that it is a different condition. It is a more extensive landscaping condition than had been previously required in any other project. And I just think, you know, the appropriate thing is to give the Applicant some time to address that. And IÓm perfectly prepared to put Mr. Moore on to provide a factual foundation for the fact that, that in his opinion it can be done, and how he would approach it, and what he feels would be the result of that. But in all honesty, you know, if we came forward and said hereÓs a new plan and pinned it on the wall, that would not show the depth of effort and a real sincere effort to try to meet that condition in a way thatÓs going to be feasible. And so what weÓre asking for is a time, we donÓt need much time, even in that 30 days in that range would be sufficient. But as Mr. Moore would testify on direct examination and will testify again, he wants to get the consultation with respect to native plants. He doesnÓt pretend to be an expert on, on the specific technical aspects of cultivating certain native plants. And he wants to be real in his, in his presentation to the Commission, because thatÓs whatÓs Mr. Yuen is saying, you know. I mean, at this point of the proceeding what IÓm, you know, I am not contesting Mr. YuenÓs recommendation. I mean, I may do that eventually. At this point, IÓm trying to meet it. IÓm trying to say if, if Mr. Yuen is saying that the application is deficient for want of a landscape plan that effects a complete visual screen, we want the opportunity to present that. Because our application was submitted quite a while ago with a landscape plan. And, you know, IÓm not trying to be critical of Mr. Yuen, again, but we havenÓt said this doesnÓt effectuate a complete visual screen; and thatÓs what IÓm going to need. 69 So what IÓm asking for is an opportunity to supplement the application in an effort to meet that requirement; and thatÓs, so thatÓs where we stand. ThatÓs, so I will ask the Commission how they want to proceed with our request. Our requests are, one, offer rebuttal witness to show the feasibility of that type of plan and what it would take to produce that type of plan, and then a continuance of limited duration to allow us to do that. GIFFIN:I think what IÓm going to do is get input from the various parties and, in particular, from the other hearings officers and go from there. Hannah? SPRINGER:I guess I have a couple of questions with regard to procedure. If this hearing is on the application as presented, is that a limiting factor given the Planning DirectorÓs testimony, and the opportunity to rebut it? IÓm not sure how, what it constitutes, an amendment to the plan, is that part of the evidence and testimony included in rebuttal, or -? IÓm just not sure what it is that weÓre supposed to be acting on, the plan as presented or the plan as may be amended through rebuttal. GIFFIN:I donÓt understand your question. SPRINGER:This hearing, as I have understood it, is on the plan that has been presented to us, an application that has been, sorry, an application which has been presented to us. If during the course of rebuttal additional evidence is presented to us that in effect amends the application, is, IÓm wondering if thatÓs proper? GIFFIN:Mr. Torigoe? TORIGOE:Thank you, Madam Chairman. I think that you will almost always have certain changes made in the projected, the proposed project in terms of trying to mitigate impacts. And thatÓs what conditions also do. So, and there are obviously these kinds of changes which are meant to mitigate impacts. As long as they do nature of the project or do not increase the impacts, then itÓs probably something that can be considered in context of the original application. I would also defer to the Planning Director in terms of any of his observations that he may have with respect to the appropriateness of considering the kinds of landscape screening that had been proposed in terms of this application and whether he feels that thatÓs something that should be looked at as something different in scope. But generally speaking and I think youÓve all experienced this, that changes that are made to try to mitigate impact are probably as a whole something you can consider in context of the original application, as long as, again, the scope is not significantly changed and the impacts are not increased. 70 GIFFIN:Mr. Yuen. YUEN:I agree with what he just said. We donÓt have any problem with their presenting a new plan. ThereÓs, itÓs procedurally, I think, fine to do that in rebuttal. I donÓt know that thereÓs any point in having Mr. Moore testify this afternoon. And then from our standpoint future scheduling is up to the hearings officers. GIFFIN:One minute. Mr. Togashi? TOGASHI:I really would like to hear from the Intervening parties before I really make a decision one way or the other. GIFFIN:Hannah? SPRINGER:In that case then, just looking at what the process would be, at some future time, weÓll be hearing from Mr. Moore, then do we go back to the Planning Director? GIFFIN:Mr. Togashi? Mr. Torigoe? Would you repeat your question? SPRINGER:IÓm wondering in light of what Mr. MooreÓs testimony will presumably be, which will be a fully involved and articulated landscaping plan especially a green buffer between the subject property and the Keakealaniwahine Complex, at the conclusion of his testimony, will we then hear from the Planning Director and whether or not he accepts this as meeting his recommendations? GIFFIN:Procedurally? SPRINGER:Procedurally. TORIGOE:I think you could call in the Planning Director just to see what his reactions are. Yeah, I think you could inquire that with him. GIFFIN:Mr. Yuen? YUEN:IÓm willing to do that. GIFFIN:Good. I personally, IÓm very happy, because I would not want to spend all this time and then for not, and you refuse -. YUEN:Not for not -. But IÓm happy to review additional plan or GIFFIN:Thank you. Let me just go ahead and ask Maile? DAVID:IÓll go after Mikahala. She can go first. 71 GIFFIN:Okay, Mikahala? M. ROY:Klani Huli Honua strenuously objects to the Applicant through his attorney presenting his case anew with new evidence, because denial recommendation -. All along weÓve all agreed that Mr. Yuen would testify to his recommendation after the Applicant had presented his case and also the Intervenors. But I object that after hearing the recommendation, Mr. Vitousek, for the Applicant, is now entering or cares to add new evidence. Mr. Yuen testified that along the way in the process, this Applicant has been told and advised that an adequate buffer would be necessary. He has been given adequate opportunity. I think this is highly irregular, and I strongly am opposed to this, to having an additional time. It forces other actions on our part. This is highly irregular. This is why I asked the question of Mr. Yuen, let me understand your ruling today. And this is just exactly why I asked that question - Is this a denial and yet, or is this an approval with changes? And what this is allowing is the changes to be made and entered as new evidence, in my book. This is not rebuttal. This is not in your procedure. This is new evidence. If you allow these changes and continue this way, I cannot see the propriety here. And our issues have been denied, if that is the case, in the process. GIFFIN:Maile? DAVID:Thank you. I would have to agree with Mikahala on this. And my reason is along the same lines as hers. My concern is that it was my understanding that everyone presented their case and closed their case, it was over. WeÓve prepared our closing arguments and we all knew that the Planning Director was going to be last. So, in that respect, weÓve come here prepared to close and weÓve had to, I donÓt understand what the procedure will be after this. And to me that, I donÓt know how itÓs wrong, it just feels wrong. I donÓt have a reason for it, but thereÓs a lot of issues that were raised. And I think it needs to end. And if thereÓs anything that has to be done, a process should follow, a separate process. GIFFIN:Okay, Mr. Vitousek? And then I need to interject. I do need to call on Pat first? VITOUSEK:Oh, IÓm sorry. I thought that the Planning Director had -. GIFFIN:I know the Planning Director did, but I didnÓt know if Ms. OÓToole wanted to add to the -. OÓTOOLE:No, he stated what I would have. GIFFIN:Thank you. Okay, Mr. Vitousek? 72 VITOUSEK:Just so I can be clear, Madam Chair. The Planning Commission rules of practice and procedure Rule 4 provides, and Rule 4-13, that ÐEach party shall have the right to conduct such cross-examination of the witnesses as may be required for a full and true disclosure of the facts and shall have the right to submit and so we have a right by the rule. The Applicant has a right by the rule to submit rebuttal evidence. ThatÓs a direct pickup from the Hawaii Administrative Procedures Act which is 91-10-3 which says, ÐEvery party shall have the right to conduct cross- examination as may be required for a full and true disclosure of the facts and shall have the right to submit rebuttal evidence.Ñ So I would also point out that in our, when we submitted our list of witnesses, pre- hearing conference, we listed rebuttal witnesses. We said we may call rebuttal witnesses. But I also point out that Rule 4-11 of the Hawaii County Planning Commission Rules says that the Applicant shall open and close the hearing. So I, and then so basically what this is is a request, well, actually, I donÓt even know if I have to submit it as a request, this is for rebuttal evidence. But itÓs a notice that we intend to call rebuttal witnesses and a request to the Chair under Rule, excuse me a second, IÓve got to find this rule, a request to the presiding the officer to continue the hearing under 4-5(c) to allow us to prepare adequately to submit the rebuttal evidence. In other words, to give us adequate time to submit the rebuttal evidence and 4-5(c) says, ÐThe presiding officer may postpone or continue any hearing to ensure the orderly and just conduct of the hearing.Ñ And so what we are asking is that the hearings officer, IÓm sorry, that the presiding officer grant us a continuance of the hearing in order for us to present appropriate rebuttal evidence which weÓre entitled to present under Chapter 91. GIFFIN:Mr. Togashi? TOGASHI:I did hear what our Corporation Counsel suggested, but that was before his, Mr. VitousekÓs reading of that certain rule. Is a revised landscaping plan, is that considered new evidence, or is that considered rebuttal evidence, which would fall under the, his rule that Mr. Vitousek cited? GIFFIN:Mr. Torigoe? HeÓs asking you. TORIGOE:Well, I think it can be considered rebuttal evidence in Planning Director had presented a position and the basis for that position, which had not been presented in full before. And so it is basically the IntervenorÓs right to be able to respond to that. GIFFIN:Any other, Mr. Togashi? TOGASHI:IÓm satisfied with his answer. Thank you. GIFFIN:YouÓre welcome? Hannah? 73 SPRINGER:Again, procedurally then, once this is introduced, does it then become a part of the main body of the application? GIFFIN:Mr. Torigoe? TORIGOE:Well, itÓs part of the entire record on this application case. SPRINGER:So while itÓs a part of the record of this hearing, does it then become an addendum to the application or does it take the place of what is in the application presently? TORIGOE:You have to look at these applications not as something that is something static, that, what you, what the Applicant first puts into any application. And I know youÓve all seen this in other applications where they put down a certain specific project that they are proposing, but that isnÓt necessarily the way it comes out at the end of the application when itÓs granted. There may be mitigating measures that are agreed to, conditions that require certain changes -. GIFFIN:Input from public. TORIGOE:Yeah, in response to the public sometimes. GIFFIN:Hannah? SPRINGER:So, for example, that piece of evidence Exhibit 17 refl to the application as presented based on what the Applicant heard here. So thatÓs an example of where weÓve already done this in this proceeding. Th GIFFIN:Yes. Mikahala? M. ROY:Does that not then allow for new information with regard IntervenorÓs cases, with regard to the overall admission of rebuttal evidence? GIFFIN:Mr. Torigoe? TORIGOE:IÓm not sure exactly what the question was? M. ROY:Regarding the new rebuttal evidence, regarding IntervenorÓs response and through this, these new evidence, are we given that opportunity adequately in extension of time? In other words, this opens up total new arenas and more contest of this because we were denied or appears to be -. All of these issues, you can understand that we will continue our argument in the furthering of his rebuttal evidence. TORIGOE:I think that would have to be part of the process, that if there is in the rebuttal some material which, you know, is new to you and which you feel substantially 74 changes the nature of the impacts of the project, then you should have the right to respond to that as well. And youÓll get a chance to cross-examine, obviously, whatever witnesses come up. M. ROY:We just find it highly inappropriate, Mr. Torigoe. IÓm not a lawyer, as you know. But based on youÓre limiting us in way of, from what IÓm procedure to act as, I donÓt understand. VITOUSEK:Mr. Torigoe, isnÓt it correct that all parties can call rebuttal witnesses? TORIGOE:Yeah. VITOUSEK:ItÓs not something thatÓs limited to the Applicant. Any Î. M. ROY:Well, weÓre prolonging this whole procedure, Randy, totally months. GIFFIN:Excuse me, we need to stop the bickering amongst the part Mikahala, are you through? You asked a question, right? And youÓre waiting for an answer from Mr. Torigoe, right? M. ROY:Right. GIFFIN:Okay. TORIGOE:Again, I think what weÓre going to make sure we do is to make sure everybody has had a chance to respond to whatever is presented. And if that requires giving enough time for, say, Mr. VitousekÓs information to be given to you ahead of time, that can be done as well. GIFFIN:ThatÓs a very good idea. ThatÓs a very good idea. Did y what Mr. Torigoe just said? M. ROY:Can you repeat that? GIFFIN:Yeah, I didnÓt think so. TORIGOE:Well, I guess, what weÓre contemplating now is that Mr. Vitousek will call Mr. Moore to basically present how he would meet Mr. YuenÓs needs in terms of the planting screen. So you would have that testimony here today. And also weÓre thinking about Î. GIFFIN:Maybe not. TORIGOE:Well, if thatÓs what Mr. Vitousek wants to do. And we can also require that the Applicant provide you with, again, written testimony and a plan, a proposed 75 landscaping plan that you can look at and then be prepared to respond to when we reconvene again if a continuance is granted. M. ROY:Mr. Torigoe, in the event my issues are with Mr. Yuen, will I have that opportunity? At the cross examination today, my questions were related to exactly trying to ascertain the scope of his denial, his recommendation anyway, for denial of this application. That was purposefully to understand if the issues involved enough what issues IÓm bringing forward. And, to my satisfaction, that wasnÓt answered; and thatÓs why IÓm still asking what was agreed to from him. And, frankly, by this outcome at this time, or this disclosure, I feel that my, I have much more to work, to interact and ask Mr. Yuen on the basis of that, that answer from him, rather than with Mr. Vitousek. GIFFIN:So if I understand you correctly, what youÓre saying is that your cross examination of Mr. Yuen is not pau, and that you would like to continue that cross examination of Mr. Yuen? Do I Î? M. ROY:ThatÓs right, in part. ThatÓs right. GIFFIN:Okay. Mr. Torigoe? TORIGOE:I would expect that if we recall Mr. Yuen to respond to any new plans, again, that would allow you to cross examine him and get to the bottom of what his position is with respect to any new information. GIFFIN:Yes, I would too, procedurally. TORIGOE:Yeah, bear in mind also, this is just one more thing to keep in the back of your mind, is that whatever recommendation is made by this panel will go up to the full Planning Commission. And, normally, there is not continued hearings there, but there is a possibility also, if thereÓs a necessity for additional information to be provided there one way or the other. M. ROY:My question is why did the Director deny the levels of public input today? And my questions were not really, I did not have a freedom to express adequately to him because of not being aware that -. ThatÓs just why I asked the question of him, whether this is a denial, in other words, what does this mean? And I just feel that itÓs, that our issues that we have taken months to bring forward and to bring forward testimony, I donÓt feel that Mr. Yuen has adequately defended, that he actually denied our, or at least what Klana is bringing forward, and I think in line with Mr. DavidÓs as well. These other issues are far greater than just buffers and landscape. GIFFIN:Mikahala, I think in response to your statements, the only thing I can say is a reiteration of what Mr. Torigoe said, that the rebuttal of a witness or witnesses through the request of any party can be done. Okay, thatÓs numb 76 Number two; at that time if you would like to, and IÓm sure you will have the opportunity because part of the request by the Applicant is to try to meet the denial reasons that the Director came up with. So, therefore, it would be logical that the Director will be called up, you see; and at that point, your issues may be raised as well. M. ROY:Correct me if IÓm wrong. I think it was Mr. YuenÓs testi likelihood, in the timeliness of this hearing, these changes, this level of change could not be accommodated to this application. So Commissioner SpringerÓs appropriate in my mind. And I guess youÓre defending for me your process, which allows new evidence to come in at this stage. GIFFIN:Essentially I am because I am governed by our Rule 4. An immediately agreed to the rebuttal witness yesterday afternoon was because of our Rule 4-13. Okay? Now, the request for the continuance is also in our rules, and it is under Rule Î5C, 4-5(c). Are there any other questions? So, procedurally, this is what I am bound to. Maile? DAVID:I would like to request that since weÓre going to be continuing this hearing, and it is a lot to absorb right now, what the situation is, you know, whether the case has been completed and now weÓre keeping it open, or -. If weÓre allowed to, could we submit our written either comments or about the continuance and the introduction of new evidence before the time of the new hearing? GIFFIN:Mr. Torigoe? TORIGOE:IÓm not sure exactly what you plan to submit. DAVID:Well, I think just a statement because the process here se itÓs in the rules that itÓs in your discretion, but it just seems to be that it, the Director comes back or the Applicant would come back knowing that it was already denied, because of one visual impact. And in our minds, in my mind, tha satisfied by the Applicant then this is a done deal, because that is, that has been satisfied. So what IÓm thinking is, okay, if that comes in and this is done deal, then what about the rest of the evidence that we have placed before this board and that IÓm saying a visual impact is just totally inadequate. And thatÓs my concern. GIFFIN:If I understood what youÓre saying, youÓre saying that, I think we have to go back. You have to understand that what Mr. Yuen gave yesterday and substantiated today is a recommendation. Okay? It is not a done deal. HeÓs really recommending to us and to the Planning Commission. So because it is a recommend deal. We have not made our recommendation to the Planning Commission yet. And thatÓs not a done deal. 77 DAVID:I know, I understand that. But -. GIFFIN:The deciding body is the Commission, okay. And I think thatÓs what Mr. Torigoe was alluding to earlier where when we have in the past received a recommendation from a hearings officer or a panel, we have allowed public testimony at that point, too. Okay? DAVID:And IÓm just saying this because Mr. Yuen has testified that this would be his only requirement of, that needs to be satisfied. So the denial, it just kind of forces my position that in foresight, itÓs going to, this has to be, this is going to be an appealable case. Who appeals is going to be depend on whether thereÓs enou after the close of this hearing today. GIFFIN:Mr. Torigoe? TORIGOE:Just going back to what you were requesting earlier. You were requesting to submit some kind of statement with respect to this situation. You can do that. Nobody, nobody will prevent you from submitting Î DAVID:I just did. I was trying to collect my thought, and I , but, no I donÓt need to submit a statement. I just said it now. GIFFIN:Hannah? SPRINGER:Madam Chair, may I request a brief recess in order to confer with the Deputy? GIFFIN:Would you like an executive session? GIBSON:No, no. GIFFIN:IÓm asking Hannah. SPRINGER:Yes. I would just like to ask him a question off of the record. Is that a ligitimate -? May I? GIFFIN:IÓm happy to do that. It might be better to do that on the record. TORIGOE:Well, if you want to move for an executive session in order to confer with counsel with respect to, you know, legal liabilities and options, you can do that. SPRINGER:Yes, it does pertain to our legal liabilities and options. Please? GIFFIN:Executive session? SPRINGER:Please. 78 GIFFIN:There is a motion, and I need a second. TOGASHI:IÓll second that. GIFFIN:All those in favor of going into executive session. OFFICER:Aye. GIFFIN:All those opposed? We are in executive session. EXECUTIVEThe panel went into executive session at 3:02 p.m. SESSIONand came out of executive session at 3:17 p.m. GIFFIN:IÓd like to call this continued contested case hearing back to order. The Applicant is Wayne Blasman and the SMA No. is 02-03. As you know, we went into executive session, and there was some concern as to whether or not there could be some discussion prior to us going into executive session and we did not think that that was appropriate. And it left us with the opinion or the feeling that there was some misconception as to what the nature of the executive session was going to be about. And with that, I would like to call on Commissioner Springer since she requested the executive session. SPRINGER:Thank you, Madam Chair. I wanted to inquire of the Deputy Corporation Counsel, Ivan Torigoe, the extent to which I could make a request particularly of the Intervenors to argue and question with regard HRS 205A, in particular. WeÓve had quite a bit of discussion from the Applicant and from the County as to the relevant sections of that HRS. ItÓs important for us to ground our decision when it comes time to decision making in the rules and authorities by which weÓre conducting these proceedings. So, for example, County Planning Commission Rules particular with regard to the SMA, and 4 with regard our procedures for contested case hearings, in particular, the Statute 205A, the State correlate to the SMA. WeÓre going to need to base our decision firmly in these rules and statutes. So remarks, rebuttals, testimony needs, should link back to this for the soundness of our record and our decision making, and any actions which may flow from this. So I wanted to inquire of Mr. Torigoe if it was appropriate for me to make a statement to this effect. And that was the reason for my request for an executive session. And thank you for your patience while we had that discussion. 79 GIFFIN:Regarding the ApplicantÓs request for a continuance, is there any other comment that the party, any party would like to make or a hearings officer would like to make? Mikahala? M. ROY:Yes. ThereÓs, first of all, thank you Ms. Springer for your elaboration. I appreciated it very much. IÓd like to request that we absolutely have the transcripts for todayÓs session. And is that possible for, and as soon as possible, for everything, actually? GIFFIN: Absolutely. What I wanted to do once I make the ruling regarding the request for the continuance is to then set up a calendar which would also contain the date when the staff could get the record, records to everyone. Okay. In addition to that, I want to establish a date when the Applicant would provide all parties with their proposed landscaping plan. And by that we mean something complete, but IÓd digress. So letÓs go back to what the Applicant has requested which is, first of all, the first request was to have the rebuttal witness, which was Mr. Moore. And I concur with Mr. Yuen, I donÓt think itÓs necessary for Mr. Moore to speak today. And thank you for being here, I appreciate your presence; and I know it has been a long day for you as well. And regarding the second request by the Applicant for the continuation, continuance of this hearing; and, I approve it. And so we will be having a continuance of this contested case. Now we go into the task of trying to determine a calendar. M. ROY:Ms. Giffin? GIFFIN:IÓm sorry, Mikahala, I didnÓt see you, your hand. M. ROY:Sorry. What I wanted to ask is, in this process, is it the case then that the Planning DirectorÓs recommendation can be altered in the course of this proceeding? GIFFIN:It is my understanding that because of how the DirectorÓs recommendation was worded, that can be done. But I think IÓm going to refer back to the Director since he made it. Mr. Yuen? YUEN:Yes. GIFFIN:I thought so. Did you want to go further? 80 M. ROY:The question again I was asked, the question again is, I asked if the Planning DirectorÓs recommendation can be altered in this process, in our continued process? And his answer was yes, Mr. Yuen. May ask a question of Mr. Yuen or no? Without the transcripts, I canÓt Î. GIFFIN:Yeah, IÓm going to go into that. Okay? M. ROY:But itÓs just that I want to verify something that was said earlier by him to my understanding today, and if thatÓs factual or not. GIFFIN:You mean for clarification? ROY:Yes. GIFFIN:Yes. Mr. Yuen, one of the parties is going to be asking you a question for clarification. M. ROY:Mr. Yuen, it was my understanding that you expressed today that you, and again, I could defer to the transcripts, but it made me understand that your expressed decision today or what you are recommending today made it the case that there would not be an ability for this application to be altered to the satisfaction of changing your recommendation with regard to the timing of this application. Did I misunderstand? YUEN:I donÓt think that question came up. And I stated a recommendation. The Applicant can present rebuttal, including more evidence. I could change a recommendation in view of whatÓs presented on rebuttal. M. ROY:Again, I, just for the record, I expressly recall one of the statements that made me think I was clear was that you said that there would be no, at this time, in this application, there would be no way of presenting new evidence to, this was this application, at this time. Another application would be another application in another time. But this one could not be altered in the timing process for this application. And this is what brings me again to the question of new evidence, what constitutes new evidence versus rebuttal evidence. In the rebuttal, this to me is new. Rebuttal, I can see for understanding of the term. But it conflicts with the word for me new evidence, which alters what I was given to understand from Mr. Yuen was his decision based on this application at this time that we were completing today. GIFFIN:I hope, Mikahala, that the records will reflect your concerns, and then when we do reconvene that that issue should be further explored. But the most important thing is that you will have, everybody will have copies of the record. Earlier when Mr. Vitousek was asking for a continuance he did say 30 days. Okay, now I need to ask staff. Where is Norman? Norman, 30 days where are 81 consult my calendar which I donÓt have. And our staff said that the records, the transcripts will take 3 weeks. Okay. So, now, if weÓre talking about four weeks to schedule the continuance, that gives one week to review the records of 3 days. And I know it takes me days. But, Norman, where are we a month from n no, thatÓs now. The end of August, IÓm gone until, what is that last Monday in, okay, I th donÓt come back till the night of the 25 of August, and IÓm already committed to the thth 28, on the 28, IÓm sorry. And then that brings us into, I think, Labor Day weekend. And so weÓre into September. And I donÓt mean to be, you know, th scheduling process but I truly am not expected home until the 25. And to try to prepare, thth for this hearing on the 26 or 27, I cannot do it. And like I said, IÓm occupied on the 28. Thank you for your calendar, Ivan. My calendar is at home. So that bring us in to September. And you need to tell me staffÓs availability and, yo thth HAYASHI:September 4 or 5 would be okay. GIFFIN:Excuse me? thth HAYASHI:September 4 or 5, but IÓm not too sure as to what the DirectorÓs calendar looks like. GIFFIN:I know. But first I thought I would find out from you. When is the September PC meeting? thnd HAYASHI:September PC meeting would be on September 11 and 22. th GIFFIN:Oh, unusual. Okay. And Board of Appeals is on the 12. Okay. Mr. Yuen, what does your calendar look like? YUEN:IÓm sorry. I donÓt have it. I think that those days would be all right. Why thth donÓt we proceed on that assumption, the 4 and the 5. GIFFIN:Parties? th SPRINGER:Madam Chair, the 5 is not good for me. thth GIFFIN:The 5 is not good for you. Okay, so we need to eliminate Friday the because thatÓs not good for Hannah. SPRINGER:Wednesday or Thursday though are good, the rest of that week is very good. GIFFIN:Grant, what about you, would Wednesday/Thursday -? TOGASHI:Wednesday/Thursday is fine. 82 rd GIFFIN:Wednesday/Thursday. Okay. How is Wednesday the 3 and Thursday th the 4? th M. ROY:So that means that we would get the transcripts on the 20 of August? GIFFIN:Is that three weeks from now? M. ROY:Yes. The reason I ask is if itÓs any later it runs into, too close to this date. GIFFIN:Oh, yeah, I agree. I mean, IÓm looking at this and sayin know, itÓs crash time for homework. The following week we cannot because thereÓs just too much for staff, yeah? Kona, PC meeting, Board of Appeals, all during this? And rdth then she gets into a time jam with all the transcripts, too, doesnÓt she. Is the 3 and 4 okay with you? thth DAVID:September 17 and 18 is good with me. thth M. ROY:It doesnÓt give us very much time. So 17 and 18? DAVID:Yeah. thththth M. ROY:Can we suggest, may I suggest 17/18, September 17 and 18? GIFFIN:Yeah, I was looking at that, too. Much more positive attitude. YUEN:Excuse me, 3 and 4 are out now? What are we -? rdth GIFFIN:We donÓt know. ItÓs just that the 3 and 4 just doesnÓt give me a lot of time to prepare, only because IÓm coming back from the mainland. Norman, howÓs the thth 17 and 18? HAYASHI:ItÓs okay. GIFFIN: Mr. Vitousek? VITOUSEK:I, thatÓs three weeks out that they would get the transcripts. GIFFIN:The record. VITOUSEK:So, basically, you know, what I said was we donÓt need the transcript in order to prepare the findings. GIFFIN:Yeah. VITOUSEK:So IÓm looking -. 83 M. ROY:We do. VITOUSEK:Yeah, I understand. IÓm not arguing with you on that. that we could do it by the, I mean, we should probably, whatÓs this 30, we get it about stth 21, maybe the 30, whatÓs the date around then? th DAVID:The 29. th GIFFIN:Yeah, 29. th VITOUSEK:The 29, is that a Friday? DAVID:Yes. VITOUSEK:ThatÓs fine. So -. GIFFIN:Ms. OÓToole, how is that with your calendar, all of these dates? OÓTOOLEI havenÓt checked, but as long as itÓs not on the same day of the Board of Appeals meeting, thatÓs fine. th GIFFIN:I think Board of Appeals is on Friday the 12 of September. OÓTOOLE:Yeah, yeah. GIFFIN:Okay, and then the following week should give you time li homework. Grant? TOGASHI:ThatÓs fine. GIFFIN:Norman? HAYASHI:Okay. GIFFIN:So Mr. Vitousek -. VITOUSEK:Yes. GIFFIN:Your rebuttal plan, not only just the landscaping, but will it include written testimony? VITOUSEK:Yes, it will. But I may have the witness read the testimony into the record. I donÓt want to run into any other problems. 84 GIFFIN:Sure, and read at hearing. Anything else? Did I forget anything? Everybody is okay? Mikahala, your hand is up? M. ROY:I would like to ask again for the second meeting or rather the September thth 18 and 17, will we then look at another three-week period for those transcripts? GIFFIN:Oh, Sharon? Sharon, Mikahala is asking if the hearings are continued to thth the 17 and 18 of September, when can we receive the record? NOMURA:Two weeks. GIFFIN:Oh. M. ROY:YouÓre the best, Sharon. NOMURA:No -. Thank you. M. ROY:You are. DAVID:When did she say? M. ROY:Two weeks. Then, Madam Chair, when would the case for the rebuttal for Intervenors take place? GIFFIN:At this hearing. M. ROY:At which hearing? thth GIFFIN:The 17 and 18, you may present them as well. th M. ROY:So for both days, 17 Î ? GIFFIN:Shall we ask another day? M. ROY:Oh, absolutely, actually, theyÓll be, I canÓt, havenÓt even began to think. ththth GIFFIN:So 17, 18 and 19? VITOUSEK:We have no objection, we have no objection to setting three days. But, Madam Chairman, could I say that if the Intervenors or anyone else is going to call th rebuttal witnesses, could we have those disclosed and, in other words, maybe August 29 should become the date when all rebuttal witnesses and exhibits are disclosed. GIFFIN:To react. Mr. Torigoe just raised a very important Î. 85 VITOUSEK:ThatÓs fine too. I donÓt care. But I just want to have a date after which all rebuttal witnesses are -. GIFFIN:Okay then, I think we better go back to the Intervenors. Mikahala and Maile, Mr. Vitousek requested, and I agree, that we need to have a date when your rebuttal information and/or witnesses, with transcripts, will be presented in thth written form to us before the hearings on the 17 and 18. And I know you need to have th his material, so it would be subsequent to the August 29 date, correct? DAVID:Correct. GIFFIN:Okay, so letÓs take a look at when you can have all of your written material ready to be circulated amongst us, and give me enough time to do homework as well. th M. ROY: September 12 for Klana. GIFFIN:Could it be earlier that week so that I have more time to prepare, like the thth 10 or even the 9? th M. ROY:The 10 is fine. th GIFFIN:Okay, so then all material will be circulated on the 10, because actually when you give it to the Planning Department it takes them a day or two to get it to us. VITOUSEK:Is there any, usually we file things to the Planning Department, then itÓs distributed. I know weÓve had an issue with that particular written testimony. Can we get a stipulation that we could mail things directly, additional copies directly to the hearings officers? Is that possible? GIFFIN:Yeah, and you can have it return request, or whatever, so that we Î. VITOUSEK:These would be just additional copies. Is that okay? GIFFIN:Okay, thank you. IÓd love it. Okay, so now 9, 10, all Intervenors Î. th DAVID:The 10 is fine with me, Madam Chair. GIFFIN:Thank you. Written rebuttal, IÓm going to say material, circulated. M. ROY:Ms. Giffin? 86 GIFFIN:Yes. M. ROY:Mikahala speaking. We will be subpoenaing witnesses. GIFFIN:ThatÓs possible, right? TORIGOE:Yes, of course but she must make sure she follows the ru GIFFIN:Oh, okay. Mr. Torigoe said, yes, of course, but make sure you follow the rules. M. ROY:Thank you. GIFFIN:And, Norman, should we allow for three days? Just hearing what was going on, should we say Wednesday, Thursday, Friday? HAYASHI:We know we can get the rooms for Thursday Î Wednesday, T th We need to check on the 19. GIFFIN:IÓd appreciate that, only because I donÓt want to be short. Hannah, then on th the 19 also just per chance. Randy? VITOUSEK:Okay. GIFFIN:Chris, Pat? OÓTOOLE:Okay. ththth GIFFIN:Okay, so IÓm going to put 17, 18 and 19. I guess it should be noticed. ththth HAYASHI:WeÓll notice that as the 17, 18 and as needed 19. GIFFIN:Good. Yes, Maile? DAVID:I just have a question for clarification. These rebuttal witnesses are not only to rebut Mr. YuenÓs Î? (Individuals in the audience were having their own private conversations.) GIFFIN:I really need to have order. I canÓt even hear the person asking me a question. DAVID:The rebuttal witness, just to clarify, itÓs not only, we can call rebuttal witnesses for any of the prior testimonies, and not only to, for Mr. Yuen? GIFFIN:No, no, no. Mr. Torigoe, better clarify that. 87 TORIGOE:Yeah, this is not a wholesale reopening of, you know, testimony from anybody on any subject. This is basically in response just to whatever the Applicant is going to be representing that is new. So it should be narrow in scope that way. GIBSON:No, no, just like heÓs rebutting Mr. Yuen, we want rebuttal. TORIGOE:Okay, what you would be able to do is, whatever Mr. Yuen has in response to what Mr. Vitousek may present, you would have an opportunity to respond to that. And if you, if you look at what is coming out of Mr. VitousekÓs office, and you feel that you want to have some witnesses there to respond to what you think Mr. Yuen is going to say, then that would be appropriate. M. ROY:Mr. Torigoe, Mikahala speaking. No, the whole issue was to, for the opportunity for contest or rebuttal to Mr. YuenÓs earlier testimony in this case today, because that was denial by his recommendation as, you know, to the material that we brought forward in our case. TORIGOE:What would be the nature of the rebuttal that you would bring? M. ROY:To further examine Mr. YuenÓs assessment, his analysis of the other issues at hand on his testimony. TORIGOE:What other issues are you talking about? M. ROY:Oh, thereÓs so many. You know, he only talked, we were centering in on buffer, right? But according to the transcript, youÓll see by some of my questions, they showed the defense of the very issues that IÓm bringing forward as an Intervenor. The historical importance, the sacredness, all of the testimony that my witnesses, and our witnesses have testified to, this is the element I want to question of Mr. Yuen. ThatÓs rebuttal, isnÓt it? GIFFIN:Pat OÓToole? OÓTOOLE:Well, I recall that I was asking this morning what rebut to be; and the Intervenor said none. And, at that point, Mr. Yuen was up there. So I think theyÓve indicated they did not want rebuttal, that only Mr. Vitousek intended to call rebuttal. M. ROY:For the clarification, we didnÓt understand that Ms. OÓToole. So that was not an answer to that, with an incomplete understanding of what there is rebuttal. Now there is full understanding, so there is rebuttal to what Mr. Yuen said. TORIGOE:Just to clarify, you would be calling, well, what kind of witnesses will you be calling? Would you be calling witnesses to try and rebut some of the things that Mr. Yuen said with respect to sacredness or that sort of thing? 88 M. ROY:We need the transcript for me to understand his statements more clearly. Because, frankly, remember yesterday afternoon when I said it was getting towards the close of the day and I wondered if I needed to defend the cultural aspects in the line of questioning from Mr. Vitousek? That continued today. And I was right. I needed to pay close attention, which I have; but I need right at this point, I need that transcript to be really clear and to see what Mr. Yuen was saying. Because, we need to rebut. TORIGOE:Do you have any estimate of how much time that you would M. ROY:You know, frankly, this is the crux of my entire case, is refuting or rebutting the basis on which if, the value of the status of these sites and the nature of all of our witnessesÓ testimony really. ItÓs the crux of the case, so itÓs vitality important to us. TORIGOE:Okay. I just want to see if we can come to some kind of about what is appropriate in rebuttal. It would not, I mean, basically, you have spent a good deal of time presenting witnesses to present, I think, what has been the crux of your case, the basis of that, your belief that this site is so sacred and so special that the proposed project should not be allowed to proceed on the subject property. So youÓve laid a great deal of foundation of evidence already along those lines. So you would not be repeating that, correct? You would be adding something new in response to what Mr. Yuen has said? M. ROY:ThatÓs correct. TORIGOE:Okay. So then it shouldnÓt take, you know, that much ti M. ROY:ThatÓs for us to decide, that IÓm judging by the basis of what we presented to date. There are many, we couldnÓt say at this time. Frankly, the whole issue of the rebuttal of Mr. YuenÓs remarks today, really, I need to, really look at to analyze properly, because it opens a whole new world for my consideration. TORIGOE: Okay, I guess, really all parties would have to bear in mind that the Planning Commission and the panel needs to admit all relevant evidence and competent evidence, but limited by considerations of that they not be repe M. ROY:Absolutely. TORIGOE:And that it be material. And when I say not repetitious, that means, it not only means the same person saying the same thing twice, but it a numerous witnesses who are saying the same thing. So there needs to be consideration by all the parties of the need to avoid repetition. M. ROY:Well, how -? Does Mr. Moore get a chance to repeat and bring, I understand, new testimony, but built on, in other words same res 89 TORIGOE:Yeah, and I think thatÓs what I was saying, is that if thereÓs going to be rebuttal, then it would have to build on what has been there and not repeat whatÓs already been Î. M. ROY:Absolutely. VITOUSEK:Mr. Torigoe, Madam Chair, if the parties here, I think what youÓre stating is that youÓre asking the Applicant who is submitting rebuttal testimony and exhibits, and the other parties who may want to submit rebuttal testimony or exhibits, to disclose those by specific dates, both by giving copies of the exhibits and by giving copies of the proposed testimony. I think with that, with that kind of procedure in place, thereÓs, we really donÓt have an objection to going forward on those grounds. I think that if thereÓs disclosure in advance of what the testimony is or what the anticipated testimony is, then we can start out the hearing by talking about what might be relevant or not be relevant without having to go through a lot of Î . What IÓm saying is trying to help you. IÓm trying to say that if we follow that kind of procedure then that gives us an opportunity to look at each otherÓs testimony in advance and Î. GIBSON:No. M. ROY:But IÓm not contesting your, IÓm rebutting Mr. YuenÓs. VITOUSEK:No, IÓm not arguing that. I agree with your point on that. I agree that youÓre, you know, Mr. Yuen went after you Î. GIBSON:Just say no. VITOUSEK:Mr. Yuen, Mr. Î. GIBSON:We agreed to . Î. M. ROY:IÓm sorry. GIFFIN:We need to have one spokesperson, first of all. So, Mikahala, since you you were determined to be the spokesperson for your party, I would appreciate having one voice. If, would you like to repeat what you just said? VITOUSEK:Sure. GIFFIN:Because it might not be full understanding and it is to their advantage. VITOUSEK:Yeah, what I said was, my understanding of rebuttal is that, is that you are entitled to rebuttal to rebut the testimony of the witnesses of either parties who testified 90 after your case. In other words, I get to rebut what Mr. Yuen said because the Applicant offered their case, and you did your case, the intervenors did their case, and then Mr. Yuen did his case. And there are things that Mr. Yuen said that I want to rebut, so because he went after me, I am offering rebuttal testimony. So what IÓm saying is I donÓt disagree with you that you can rebut what Mr. Yuen said. What IÓm saying that the Chairman said is that she wants anyone who wants to submit rebuttal evidence to do so, to exchange that in advance. In other words, that weÓre supposed to identify whatever exhibits we have and whatever testimony we have. IÓm th supposed to give mine to you on the 29. And youÓre supposed to, get it to you and the th Commission on the 29, and the Planning Department. And youÓre supposed to give thth yours to me and the Planning Commission on the 10, or 12, or whatever it is. th GIFFIN:The 10. VITOUSEK:Right. So, Mikahala, then if you have the, if you think that something IÓm offering, if you think that something IÓm offering isnÓt actuall st the Commission on the 1 day of the hearing and say, I donÓt think this is proper rebuttal because this is such. And so thatÓs what streamlines the -. GIFFIN:The process. VITOUSEK:The process. GIFFIN:And I have to make it very clear to you, I am going to hold everybody to these dates. So if your material is not stamped by the Planning Department by you thth Randy the 29, and you Intervenors by the 10, that I will not accept them. Okay. So thth IÓm going to hold firm. The dates will be posted for the 17 and 18. And if needed, the th 19, right Norman? HAYASHI:Correct. GIFFIN:And I would like to see closure. M. ROY:We expected that. But would you please take some time today like you did last time, Mr. Torigoe, to make sure I understand, okay, by the end of today. Thank you. GIFFIN: Mr. Torigoe, will you explain one more time? M. ROY:In the case of subpoenaed witnesses, does that affect the process Î? TORIGOE:For subpoenas, please refer to Rule 4-14. You do have copies of the rules, now? Is that affirmative? 91 M. ROY:Yes. TORIGOE:Yes, okay. Intervenors have copies of the rules and Rule 4-14 sets forth the request for subpoenas. VITOUSEK:Mr. Torigoe, itÓs also the case, is it not, that if youÓre subpoenaing a witness, you wouldnÓt be able to submit written testimony from them because you wouldnÓt have the opportunity to do that. So all, generally, all we do with respect to those witnesses is disclose our intention to subpoena them. So at the due date, when you disclose witnesses, you say so and so will be subpoenaed to the hearing. And then we understand that we canÓt see written testimony from them because Î. GIFFIN:Thank you. VITOUSEK:If you could get written testimony from, you wouldnÓt h them. TORIGOE:So, you know, basically you can read these rules. And if you have some kind of questioning about it, I guess you could call me and IÓll try and clarify for you. I think I just want to make clear that, in this case, it says, in subsection D, it says a subpoena may be issued by the chairperson of the Commission, a presiding officer or a commission member. Now in this case the presiding officer at this level is Ms. Giffin. And Ms. Giffin may be away during certain time periods, so in that case, I wonder if we can have agreement among the parties that the chairperson of the Commission as it says in this rule could issue a subpoena for this hearing. GIFFIN:Mr. Galdones. TORIGOE:Mr. Galdones. VITOUSEK:The Applicant has no objection to that. M. ROY:Klana Huli Honua, no objection. GIFFIN:I can give you my list, would you like to know when IÓm l DAVID:No objection. GIFFIN:Thank you. TORIGOE:Bear in mind also that, as a general rule, you have to service subpoena in a reasonable time. DonÓt, you know, if you service subpoena, IÓd say a few days with -. You know, certainly, if you service subpoenas a day or two before a hearing, that is very likely to be considered unreasonable. So, and I canÓt tell you exactly where that cut off 92 is, but bear in mind that that it is something that you shouldnÓt, donÓt wait. Do that reasonably early. And please take note of the various requirements for fees and mileage, etc. GIFFIN:Intervenors? Questions all answered? Clear on procedure? M. ROY:Yes, thank you. GIFFIN:YouÓre welcome. Mikahala? M. ROY:I may have to ask you some questions after today. GIFFIN:Feel free. ThatÓs fine. And those of you should know that IÓm leaving for thth the Mainland on August 19, and I will not return until the night of the 25. Okay? And I donÓt know my new telephone number, but directory assistance will have that. We need to talk about exhibits, yes, yes. Mr. Torigoe reminded me. Make sure that all exhibits that have been presented that you want in evidence, have been entered. You may do that today, and I strongly urge you to do that today. Get that out of the way. So you might want to check with Norman. Yeah, check with Norman to mak exhibits have been entered. Any other -? Is there anyone here who has come to give public testimony on this agenda item? Hearing none, thank you. But remember thatÓs another issue that we do have to entertain any notice of public hearing, I mean contested case, we have to present time. Patricia? OÓTOOLE:I just wanted to move all our exhibits into evidence if they have not been so moved. GIFFIN:Okay, Norman, IÓm turning the microphone over to you. I want to be sure they offered all of their exhibits into the record. HAYASHI:County has Exhibits A through I. GIFFIN:A through I, yeah. HAYASHI:A, B, C, D, E, F, G, H, I. OÓTOOLE:So are they in or Î? GIFFIN:Out? OÓTOOLE:No. 93 HAYASHI:We do have the exhibits. OÓTOOLE:YouÓve received them. So now IÓm moving them into evide GIFFIN:Applicant? DonÓt forget 17. VITOUSEK:Are you accepting? GIFFIN:We did. VITOUSEK:Okay. IÓm moving all our exhibits into evidence. GIFFIN:Is there any objection to any of the CountyÓs exhibits being entered in? M. ROY:Yes, there have been. GIFFIN:Which do you object to? M. ROY:On the record, I objected to the Cordy exhibit. Norman, maybe you can help me with the number or letter. GIFFIN:Oh, I have them with me. ItÓs D and G, I think. M. ROY:D and G, correct. D as in delta and G as in girl. HAYASHI:D and G as in George. GIFFIN:Mr. Torigoe has asked me to please ask you to state the reason for your objection. M. ROY:The objection is that they are written by non-Hawaiians and they are presented with that background. They are not of the blood line, so that they may not offer what is, in my opinion, in our opinion, information of a living history. OÓTOOLE:Well, I would just say that I think theyÓre recognized as scholars in the field, and that wouldnÓt be a ground to not admit it. Of course they can argue whether it should be given as much weight as perhaps something that they mi it should be admitted. GIFFIN:Then we will admit them subject to argument. M. ROY:For the fact, Ms. OÓToole, that the argument is acknowledged by whom as scholars in their field, by whom? Are they Hawaiian people or non-Hawaiian people? This is the argument that the Hawaiian people Î? GIFFIN:ThatÓs fine, but she doesnÓt have to answer that now. 94 M. ROY:Okay. GIFFIN:And so, if you will prepare. Okay. Any other objections to any of the CountyÓs exhibits? The Applicants? VITOUSEK:Yeah. I just moved into evidence. If our exhibits have not already been entered, itÓd be 1 through 17. GIFFIN:Is there any objection to the ApplicantÓs exhibits 1 through 17 being entered into the record? HAYASH:I - . GIFFINS:Norman, do you have an objection? HAYASHI:I have a question. It appears that we donÓt have all of the exhibits on file. And if I can go over them, those that we donÓt have? Your Exhibit No. 2 which is the County Planning Department files on 7-7-4:26. It says documents have been subpoenaed and will be produced upon receipt VITOUSEK:Well, weÓll withdraw that one. GIFFIN:Two? VITOUSEK:Two is withdrawn. HAYASHI:Okay. Exhibit No. 3? VITOUSEK:Three is withdrawn. HAYASHI:Withdrawn. And you previously withdrew Exhibit 7? VITOUSEK:Exhibit 7 was -. HAYASHI:Deed to property. VITOUSEK:ThatÓs correct. ThatÓs withdrawn. HAYASHI:Exhibit 9, maps of the area? VITOUSEK:LetÓs see. I guess the question Mr. Hayashi is whether -. 95 NOMURA;Please use the microphone. GIFFIN:Mike. VITOUSEK:IÓm sorry. LetÓs see, I guess, I will withdraw Exhibit 9 because Exhibit 9 was intended to pick up any additional maps which weÓre submitting in addition to those that were contained in Exhibit 1. Exhibit 1 was the application. So there are no additional maps under Exhibit 9. HAYASHI:Also Exhibit 10 which is the Department of Health record VITOUSEK:ThatÓs withdrawn. We subpoenaed documents and no docum produced; and therefore no documents are being offered. HAYASHI:Likewise Exhibit 11? ThatÓs the Department of Land and Natural Resources records. VITOUSEK:Documents were subpoenaed and produced, but I have not offered any into the evidence. So Exhibit 11 is withdrawn. HAYASHI:That would be withdrawn? VITOUSEK:ThatÓs correct. HAYASHI:Exhibit 12 also, which is DLNR State Parks DivisionÓs plans? VITOUSEK:That was also withdrawn. HAYASHI:Withdrawn? VITOUSEK:Withdrawn. GIFFIN:Which number? VITOUSEK:Twelve. HAYASHI:Exhibit 13, Records of Community Advisory Council proceedings? VITOUSEK:Those were admitted through another partyÓs exhibits. HAYASHI:So your, thatÓs withdrawn? VITOUSEK:So itÓs withdrawn from ours. M. ROY:Say again, please, Norman. 96 VITOUSEK:Thirteen. HAYASHI:Thirteen. M. ROYAnd the title? HAYASHI:Records of Community Advisory Council proceedings and recommendations. M. ROY:And IÓm sorry thatÓs -? HAYASHI:ThatÓs being withdrawn. M. ROY:Withdrawn? HAYASHI:Yes. VITOUSEK:Because that was produced by other parties. HAYASHI:And Exhibit 14, which is photographs of site and thatÓs in Exhibit 1? VITOUSEK:ThatÓs correct. HAYASHI:Okay. VITOUSEK:So 14 is withdrawn as a separate exhibit. What, what I had done was I, some of these I had labeled separately because if IÓm going to produce a big map, then I will give it a different exhibit number. And so the only photographs that in the record are those in the application, which is Exhibit 1. HAYASHI:Exhibit 17, all exhibits listed by other parties? VITOUSEK:That Exhibit 17 has been substituted by, that is now Exhibit 17, the revised landscape plan. And so -, right. HAYASHI:So what happens to exhibit, all exhibits listed by other parties? VITOUSEK:That just sort of sits there at the end of the exhibit list. HAYASHI:Eighteen? VITOUSEK:Yeah. In other words, IÓm not offering any, any docume category now. ThatÓs just a reservation of the, itÓs essentially a reservation to say that I may include in my exhibits, exhibits which were listed by other parties. 97 GIFFIN:For safety. VITOUSEK:ItÓs for safety, right. HAYASHI:And similarly -. VITOUSEK:Same with the next one. HAYASHI:For 19, or 18? VITOUSEK:Eighteen, I think we leave the number 18 there because I may, I may be offering rebuttal. So right now thereÓs no document in number 18. ThereÓs no exhibit. HAYASHI:Okay. But that would be new exhibit 19? VITOUSEK:That would, I donÓt think I have an 18, do I? HAYASHI:Eighteen would be all exhibits listed by other parties? No? VITOUSEK:No. HAYASHI:Okay. VITOUSEK:Actually, there shouldnÓt be numbers on those. So, at any rate, I donÓt have an exhibit 18 now, but I will offer one as part of our rebuttal testimony, or rebuttal exhibit. So other than those, may I move these into evidence? GIFFIN:Is there any objection to the Applicant entering those exhibits as stated into the record? DAVID:None. None, thank you. GIFFIN:Mikahala? M. ROY:None. GIFFIN:Thank you. They have been entered. Maile, your exhibits? DAVID:Yes, I would like to request that they be moved into evidence also. GIFFIN:Is there any objection to MaileÓs, Ms. DavidÓs exhibits being entered into the record? Norman, do you want to go over them with her, so weÓre all clear? 98 rd HAYASHI:Unless there is something more recent that I missed, this is dated July 23, 2003. And the amendment exhibit list would be: No. 1. Genealogy chart. No. 2. Map and photographs of complex. No. 3. Copies of relevant statutes and regulations for convenience purposes. No. 4. DLNR State Historic Preservation Division correspondence. DAVID:Excuse me, is that my exhibits? GIFFIN:Yeah. HAYASHI:Yes. DAVID:Are you reading from my table of contents on the Î? HAYASHI:No, IÓm looking from the -. DAVID:Oh, on my amended. HAYSHI:Page 2 of your Î? GIFFIN:Amended exhibit list dated March 3rd. HAYASHI:IÓm sorry. This is dated, received in our office on Mar DAVID:Thank you. I see it now. Thank you. HAYASHI:And finally, 5, exhibits listed by all the parties, similar to Mr. VitousekÓs. DAVID:Yes. HAYASHI:Those are the five exhibits. GIFFIN:Is there any objection? Hannah? SPRINGER:Just a question with regard to what are presented under, in this document, entitled exhibits. DAVID:ThatÓs the one I was looking at. That was my initial submission. SPRINGER:So is this list 1 through 5 meant to replace this collection of 1 through 18? 99 DAVID:ItÓs not a replacement. ItÓs just to, itÓs an additional. Yeah, because my initial one was, is that booklet that you folks have. And then the amended list heÓs rd reading from is, that was submitted March 3. SPRINGER:So it would be 23 exhibits then? DAVID:Yes. GIFFIN:We have those. HAYASHI:Okay, so that being the case weÓll number the five that I read accordingly starting from after Î. GIFFIN:Nineteen. DAVID:Right. SPRINGER:Madam Chair? GIFFIN:Ms. Springer? th SPRINGER:Is there a supplemental list of exhibits that was received July 25? DAVID:Yes, thatÓs the only other, I shouldnÓt have said list of exhibit. ItÓs a supplemental exhibit that I submitted which is the Cultural Resource Management Report for PuÒuhonua o Keolonahihi. GIFFIN:Yes, yes, that I received today. DAVID:And that should be numbered also. HAYASHI:I think IÓm getting confused here. There are some Exhibits A and perhaps it may help if Ms. David would submit the new amended list of ex DAVID:Okay, IÓll do that. Thank you. GIFFIN:Thank you. Mikahala? M. ROY:Thank you. Waiting for Mr. Hayashi. Thank you for your Mr. Hayashi, though weÓve added to our exhibit list. No. 1, IÓll wait till you get there. Is it my understanding that I need to submit the, does the County have the full report of Pua Kanakaole Kanahele conceptual plan, March , 1993 with all of its additions? 100 GIFFIN:I think so. SPRINGER:The five reports? M. ROY:Yes. SPRINGER:The five reports going from 1993 back, I think? M. ROY:Actually the added 1994 additional comments to her report. I think Mr. Ishado, bless his soul, told me that you were not up to date on that. If so, I will make those available. Is that Exhibit 1, Norman? HAYASHI:The only one we have on file from the Department, Planning Department was the Planning Department Exhibit B. And this is for the Keolonahihi study that Ms. Kanahele had prepared. M. ROY:Is that dated 1993? HAYASHI:ThatÓs correct, February 16, 1993. GIFFIN:Hannah? SPRINGER:And that includes reports that go back to the second progress report which is dated 1991, but itÓs all under one cover. M. ROY:I show one of the latest additions in my compilation as 1994, so it appears thatÓs not the same as what you have. Is it possible that the County can request of the State for this? Martha Yent sent me this. May I make a request to have that mailed to you? Thank you. ThatÓs Exhibit 1, then? Is it KKH 1? Or is i HAYASHI:Well, these are the exhibits that we have for KHH, Exhibit 1, and this is the list that you have provided us. Basically it says Klana Huli Honua, Table of Contents. I assume thatÓs your exhibit list. M. ROY:No, exhibit list of Intervenor, it would be submitted with my statement of issues. HAYASHI:Okay. The first one would be then, so you had, okay -. One would be Puna, Pua KanaheleÓs conceptual plan for the, from the prospecti March, 1993, and you would supplement that with the Ó94 study? M. ROY:I will provide the latest study, up to date for that. It is entitled the 1993, yeah. GIFFIN:Ninety three or 94? 101 M. ROY:I will, for clarification, Norman, letÓs make that March 1993 Î Ó94. GIFFIN:Oh, okay. HAYASHI:The second was listed as all maps by Henry Kekahuna on this complex area. But I think you had identified it as Exhibits. Well, the next one is Exhibit 3, maps and photographs of this complex area, and we have several Exhibits. ThreeA, 3A which is the Keolonahihi map and 3B which is the Keakealaniwahine map, and those are now on the board. M. ROY:Yes. HAYASHI:No. 4, Act 50 which is the cultural impact statement. M. ROY:I need to provide that. GIFFIN:Hannah? SPRINGER:On that, what I have in my packet is an unofficial version. So IÓm wondering if we have the, a copy of what was passed by the Legislature, that was distributed previously. So if -. GIFFIN:Oh, you were going to ask it, yeah. M. ROY:ThatÓs right. GIFFIN:ThatÓs right. SPRINGER:Perfect timing. So if we could have the, the accepted copy by the legislature. M. ROY:Thank you very much. That would be provided -. GIFFIN:Thank you. M. ROY:The accepted copy by the legislature of Act 50; and thatÓs Exhibit 4. GIFFIN:Yeah. VITOUSEK:Mr. Hayashi, IÓm sorry, I didnÓt understand. Was there, was there anything, any content to Exhibit 2? In other words, Exhibit 2 are maps of Henry Kekahuna, but then Exhibit 3 appeared to be the maps of Henry Kekahuna. So was there anything in Exhibit 2 or? M. ROY:Can I help, Norman? 102 HAYASHI:Yes, go ahead. M. ROY:Thank you, Mr. Vitousek. ThatÓs actually right. Whatever would be easiest at this point since theyÓre labeled as 3A and 3B, I was going to suggest that we just make No. 2, No. 3; No. 3, No. 2, because if it were No. 2, we could place in the exhibit that, I think IÓve distributed to all the drawing by Mr. Castelli for the, and I did not get to make comment today. I wanted to bring attention for the, the intent of this submission is to call to attention the mark at the top right of the picture where the sketch for the cave, his notation of a cave. This is his research. Not so much the drawing do I draw attention to, but to the drawing of sketch by his record of the existence of that cave. In addition, oh, so, Norman -. VITOUSEK:IsnÓt that Exhibit 6 though? M. ROY:No. Norman, we gave these, IÓm sorry, another number, bu could go easily in Section 2 in point 2 if we made that change. VITOUSEK:Then just withdraw 2. M. ROY:Or just withdraw 2? GIFFIN:Yeah. M. ROY:Okay. HAYASHI:Okay. So youÓll be withdrawing 2. M. ROY:Okay. All right. And then, so actually then we are, the other is the photograph of the -. HAYASHI:Wait. So the map that you just referred to which was previously labeled as KHH 7 will remain as KHH 7? M. ROY:Yes. GIFFIN:I donÓt have 5. WhereÓs 5? M. ROY:ThereÓs no 5. GIFFIN:Oh, okay. ThatÓs fine. But I have 6, 7 and 8. M. ROY:Yes. GIFFIN:And 9. 103 M. ROY:Yes. VITOUSEK:WasnÓt 5 a written -? HAYASHI:Five according to my list, is the exhibit list listed and submitted by other parties. You know, like the general -. GIFFINOh, okay. HAYASHI:Then No. 6 I have Noenoe SilvaÓs written testimony. M. ROY:I have a question. Regarding the videotape, is that, constitutes Î? GIFFIN:I know. WeÓre going to get to that. So letÓs do 6, 7, 8 HAYASHI:Okay. Eight, 7 was that map that we previously discussed. Eight is the historical society map or -. GIFFIN:Picture. HAYASHI:Photograph. IÓm sorry. Exhibit 9 is the large tax map key map thatÓs on the board -. GIFFIN:Okay, now, what about that video? HAYASHI:So weÓre up to 9. M. ROY:I would like to provide the necessary departments with the section of video that you saw within the proceeding. HAYASHI:And thatÓs Ms. SilvaÓs testimony? M. ROY:Correct. And my question is, may I just submit one to th HAYASHI:Mr. Torigoe? M. ROY:Regarding the videotape, Mr. Torigoe, may I submit one copy to the County for the purposes primarily that would be, I can imagine that that testimony can be written down and that provided by the County to the parties? TORIGOE:What do the other parties feel? Do they feel you want a copy of that video? GIFFIN:No. 104 VITOUSEK: As long as, you know, this is the applicant, on behalf of the applicant as long as thereÓs a copy of what was seen in the record, thatÓs sufficient for our purposes. We would have no objection to -. GIFFIN:Just available, yeah. TORIGOE:So apparently -. Ms. OÓToole no problem with that? OÓTOOLE:No. TORIGOE:And I guess Î. DAVID:No problem. TORIGOE:Ms. David has no problem either. Okay, so, yes, you can just submit one copy of that to the Planning Department to keep in the record; and that will be Exhibit, what? HAYASHI:Ten. GIFFIN:Ten. M. ROY:Thank you. Thank you, parties. HAYASHI:ThereÓs one more, the photo, the painting that was presented. GIFFIN:Oh, yes, yes. HAYASHI:I donÓt know whether you were going to admit that as, introduce that as an exhibit Î. GIFFIN:Remember the velvet painting? DAVID:Naluahine -. GIFFIN:That wasnÓt an exhibit? M. ROY:No, that was presented in Î. GIFFIN:Okay. VITOUSEK:We have no objection to that just being there. It was offered for purposes of display and it doesnÓt need to be included as an exhibit. I think youÓd want to keep that. 105 GIFFIN:Okay. So, Norman? HAYASHI:Yes. GIFFIN:Is there any objection to any of the IntervenorÓs exhibits being entered into the record? Hearing none Î VITOUSEK:I think Ms. David was going to give, provide a list, was that right? DAVID:I was just going to -. VITOUSEK:IÓm really not sure whatÓs in and whatÓs out. DAVID:IÓm just going to provide an amended list only. GIFFIN:Yeah, yeah. DAVID:So that all exhibits are on one page -. GIFFIN:Right. DAVID:Instead of supplemental. VITOUSEK:Okay, then let me just say with respect to Ms. DavidÓs proposed exhibits, you know, weÓve had this continued problem with offering copies of cases, and copies of statutes as exhibits, because theyÓre not evidence. Generally, exhibits are evidence. And cases and statutes are not evidence, they are the law. GIFFIN:Right. DAVID:I understand that. VITOUSEK:And so we just have that objection. GIFFIN:Right. Okay. VITOUSEK:My understanding is that theyÓre being offered just for the convenience of the, of the hearings officers and -. GIFFIN:Oh, not to worry. VITOUSEK:In other words, so that theyÓll be available to the hearings officers to review as the law as opposed to being evidence. DAVID:And I think I made that remark in my supplement that thatÓ purpose was for. 106 GIFFIN:Okay. Mr. Torigoe? TORIGOE:I guess, at this point, are you going to wait until thereÓs a new clean exhibit list to pass on these or -? GIFFIN:Just Ms. DavidÓs. MikahalaÓs weÓve already accepted. Okay. Anything else, housekeeping wise? And so weÓre here for when we meet again? HAYASHI:Pardon me? GIFFIN:WeÓre here when we meet again? HAYASHI:Yes. Not this particular room. But just to let you know, and I want to make the public aware that thereÓs also going to be a council meeting being held at, simultaneously on the premises for two of the three days. GIFFIN:All right, any other issues or business that we should do? Okay, then we th will go into recess once again until September 17. VITOUSEK:Thank you very much. M. ROY:Thank you. DAVID:Thank you. GIFFIN:YouÓre welcome. The discussion ended at 5:45 p.m. Respectfully submitted, Sharon M. Nomura, Secretary A T T E S T: Geraldine M. Giffin, Presiding Officer 107