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HomeMy WebLinkAbout2008-01-03 tdoutoro PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT August 1, 2003 A regularly advertised public hearing on the application of DOUTOR COFFEE HAWAII CO., INC. (SPP 02-010)was called to order at 11:47 a.m. in the Ohana Keauhou Beach Resort, Kahaluu Ballroom, 78-6740 Alii Drive, Keauhou, North Kon Chairman Fred Galdones presiding. PRESENT:Fred Galdones Earl Fujikawa Bill Graham Florence Kubota Jeffrey McCall Aurelio C. Mina, Jr. Francis Smith Hannah Springer (Left at 3:59 p.m.) Bill Thibadeau Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Staff Planner Daryn Arai, Staff Planner Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Kiran Emler representing Department of Public Works And approximately 19 people from the public in attendance APPLICANT: DOUTOR COFFEE HAWAII CO., INC. (SPP 02-010) Continued hearing, including the Hearing Officer's Findings of Fact, Conclusions of Law, and Recommendation, and any exceptions and/or oral arguments of the parties, on the application for a Special Permit to allow public tour of the existing coffee farm, proposed retail sales of non-agricultural products, and related parking area on approximately 12 acres of a 28.47-acre parcel situated in the State Land Use Agricultural District. The property is located on the west (makai) side of Mamalahoa Highway, approximately 300 nd feet south of the Keopu Cemetery, Hienaloli 2, North Kona, HawaiÒi, TMK: 7-5-11: portion of 24. GALDONES:We are on Agenda No. 1. The Applicant is Doutor Coffee Hawaii Co., Inc. (SPP 02-010). This is a continued hearing which includes the Hearing OfficersÓ Findings of Fact, Conclusions of Law and Recommendation, and any exceptions and/or oral arguments of the parties, on the application for a Special Permit to allow public tour of the existing coffee farm, proposed retail sales of non-agricultural products and related 1 parking area on approximately 12 acres of a 28.47-acre parcel situated in the State Land Use Agricultural District. Commissioners, you have received the copies of the Findings of Fact, Conclusions of Law and Recommendation and the Certificate of Service. This is the Hearing OfficerÓs report. Procedurally, I will have Ms. Broder make a presentation on the Findings of Fact and Conclusions of Law and then ask if there was -. I did not receive any notice that the parties will be making an Oral Argument but I will give the opportunity for the parties who would like to present Oral Arguments. However, because of t are dealing with, Ms. Broder needs to catch a flight and itÓs pretty close to mid-day when weÓll have lunch, if the parties are acceptable and Commissioners are acceptable, what I will do is allow Ms. Broder to make a presentation, have the Com opportunity to question her, and then weÓll break for lunch, and then reconvene again with the hearing. Is that okay, acceptable by the Commissioners? COMMISSIONERS:Yes. GALDONES:Is that acceptable by the parties? PARTIES:Yes. GALDONES:Okay. Could we have the parties at the table. Please raise your right hand? Do you swear or affirm to tell the truth on the subject matter now before the Hawaii County Planning Commission? TESTIFIERS:I do. GALDONES:Could we have the parties please identify themselves for the record. Speak into the mike, please, your name and your residence. WeÓll hold up the testimony for later on. Just for the record, who is present at the table. D. ROY:My name is David Roy. I was born in Kona and my address be found as 78-6822 Kuakini Highway, Kailua-Kona. GALDONES:Thank you, Mr. Roy. Ms. Roy? M. ROY:Thank you. Mikahala Roy, Executive Director of Klana Huli Honua Foundation for the Search of Wisdom, and Intervenor in this case. My father is president of our corporation. GALDONES:Thank you, Ms. Roy. Sir? KRUEGER:Mr. Chairman, Members of the Commission, my name is Dennis Krueger. I represent Dean Yokoyama, who is an Intervenor in this action as well. GALDONES:Thank you, Mr. Krueger. Ms. Broder? 2 BRODER:My name is Sherry Broder and I am the Hearings Officer appointed by the Planning Commission for the County of Hawaii. GALDONES:Thank you. TSUKAZAKI:Ben Tsukazaki, I am the attorney for the Applicant. GALDONES:Mr. Yuen? YUEN:Go ahead. ARAI:My name is Daryn Arai. IÓm representing the Planning Department. Sitting next to me is our Planning Director, Christopher Yuen. GALDONES:Okay. Thank you very much. Mrs. Broder? BRODER:Okay. I have submitted a report to the Planning Commissi its Findings of Fact and Conclusions of Law and Recommendation. ItÓs 33 pages long so IÓm not going to go over all the details. I wanted just draw your attention to page, starting on page 28, which is the Recommendation and it includes the most part, I adopted the conditions proposed by the Planning Director and I added a few additions based on the testimony and the evidence that was p If you go back to page 4, it describes what the Applicant was willing to agree to itself. So the Applicant, which is Doutor Coffee, in its application indicated that it would follow these guidelines. So all of these guidelines are incorporated into the limitations on the permit. These include assigned days and time, a period of time the tours, the business hours, 9 a.m. to 4 p.m. The Applicant indicated that they would agree to a certain decibel level for the noises. They wanted to include, in No. 3 they said the guest arrivals will be no more than 80 per day. Item ÐdÑ wa retail non-agricultural items within two existing gazebos, not to exceed a gross floor area of 1,000 square feet, although with the possibility of future expansion. They said that they would turn on their water fountain feature which is actually quite a large feature, itÓs a big, big reflecting pool, only during business hours, and only when guests and visitors were present. They do serve food on the premises; they indicated that they would abide by family-style picnics, except on Sundays. They said that they would have special events directly associated with products grown on the subject property. Other types of functions such as weddings, farmerÓs market, craf permitted. They said large tour buses will be discouraged from property. I thought that, we did a site visit and I thought it was quite evident that thereÓs a traffic problem on Mamalahoa Highway, that the large buses were a problem for the residents and that -. We followed the route that the large tour buses would take in terms of dropping visitors off on an unimproved site at the present time where rocks were moved, back-and-forth, depending on whether or not the tour buses are there, and then go 3 down the highway, turned around in a cemetery, and then wait across the street in front of some mail boxes with the engines running. That seem to me to be totally unacceptable; and then the buses have to cross the highway in order to pick up the visitors when theyÓre done with the tour. So, youÓll see that, what the Planning Director recommended, and I accepted his recommendation, is that the large tour buses not be obvious from the common sense point of view that the Mamalahoa Highway is crowded and difficult to accommodate tour buses of that size, and that the procedure that they were following to disembark and pick up customers was not safe. They have a 20-stall paved parking area, and that is inside the premises. During the proceedings before the Hearings Officer Doutor had represented that no weddings have been held in the property and none were intended. I note that in their exceptions to the Hearings OfficerÓs report, they said that they want to have weddings there but not commercial weddings. During the proceedings, they represented specifically that no weddings were intended and there was no distinction made during the proceedings. So based on that I took no evidence on whether weddings, no evidence whatsoever on weddings because I felt that it wasnÓt an issue in the proceedin They said that they, they insist that they characterized this as owners that come, the owners from the evidence that was produced at the hearing, franchisees from Japan. So Doutor Coffee has the equivalent of what is like a Starbucks in Japan and so they have, the evidence at the hearing was that they had approximately a thousand outlets all over Japan. So I donÓt know how many owners that makes for the Doutor Coffee property or how many of those people would qualify. So I think to keep it simple and not have a lot of litigation later on, that the original representation that wa Officer of no weddings should be followed. Number 15 describes the current improvements on the property: two gazebos, the picnic barbecue area with kitchen, which is quite, which is good-sized, the restroom/storage building, tractor/storage shed, open pavilion and restroom with a reflecting pool and water feature. The reflecting pool is quite large and the water feature has water that comes up right, not as big as the, whatÓs her name, Dion at the Belagio in Las Vegas, but it still comes up pretty good. Then next door is a neighbor and his property is right close to the parking lot; and he testified that large tour buses had blocked his driveway access. And, of course, since heÓs the adjacent neighbor, he can hear and see the visitors and activities on the property. I note that another neighbor has also filed exceptions with the Planning Commission since my report was filed; and he says various neighbors are in different parts of the property but they also complain about noise on the subject property. There were, okay -. So it is my opinion, after I heard the evidence that and also saw the site, that the large tour buses cannot be accommodated on the property at the present time. Number 20 describes how the tour buses, the large tour buses, access the property, is as IÓve previously described to you. 4 Then 21 describes the soils in the area. While the, this area is classified as Grade C agricultural lands. Nevertheless, I think that itÓs a little bit ironic because this area of Kona is not just good for growing coffee but is, you know, one of the best places in the entire world to grow coffee. So while it may be classified as G by the StateÓs assessment be classified as Grade C, in actuality this is a prime agricultural area. And, as you know, most of the coffee that is grown in Hawaii is grown in the area. In the past, there were a lot of agricultural activities on the property. There were agricultural sites from pre-contact times; and the radiocarbon indicated that there had been agriculture on the property as early as 1400. So the property was also part of what they call the Kamehameha Great Fields; and they grew lot of things there. So there was a site that the Applicant was supposed to preserve. But then after the period of grubbing, the site was destroyed. So I think that this is something that I indicated in my recommendation, that in the future the Applicant should be more sensitive to Native Hawaiian culture and history in the area. I also took, added that the Applicant shall provide access in the event of documented gatherings that have been done in the past. There was no evidence submitted at the hearing but, obviously, native Hawaiians have used the area before. That statement is taken from the ApplicantÓs application. And because the applicant made that representation at the point in time, I included it in the recommendation. So I think that we could just skip now to page 28 and look at the recommendations. One other problem that came up during the hearing was that the Applicant didnÓt have the proper water usage calculation equipment and didnÓt have all the improvements that it should have for water usage. I think that the Applicant needs to immediately make those improvements. The applicants are obviously using a substantial amount of water in the reflection pool and the water fountain, obviously, using a lot of water. The property is, you know, in a dry area but it is very nicely green, and some of the foliage is quite attractive. Bananas, oranges, lemons, as well as coffee is grown there. So the applicants are obviously are using a lot of water and, you know, thatÓs a precious commodity in Kona. So I think the Applicant needs to make the improvements as soon as possible on the water usage. In No. 3, we request that the Applicant put in heavy landscaping to assist in reducing the noise and visual pollution for the neighbor. No. 4, public tours and retail sales of non-agricultural products should be conducted in conjunction with active cultivation on at least seven acres of coffee. This is proposed as a coffee farm within agricultural district. And while I note in the ApplicantÓs exceptions they seem to think that public tours without any coffee farms have somehow or other become the main emphasis, that isnÓt the way the evidence came out of the, at the hearing. The evidence at the hearing was that this was a coffee farm and in order to keep the coffee farm going as part of Doutor CoffeeÓs benefits to its franchisees in Japan, that these tours are offered and this is, you know, part of their efforts as growers of coffee. 5 IÓm later finding that they donÓt have any roadside stands. I noted in their exceptions they say they do that, where they sell the coffee is next to an improved road; but where they sell the coffee is within a gated area. You canÓt enter the area unless youÓre accepted for a tour by Doutor Coffee. So I donÓt think that tha according to the definition of a roadside stand. Then, okay, No. 5 is the hours, 9 to 4 p.m., limit to 80 visitors. ThatÓs what they said that they were going to do. Now I see that they want 80 visitors plus their companyÓs franchisees. I came to the conclusion that the 80 visitors was acceptable, but that the traffic was a problem. So I donÓt think it should be more than Again, no large buses, no excessive idling of vans awaiting passengers, no weddings and that noise levels should not exceed the decibels of 55 along the property boundary, except along the frontage of Mamalahoa Highway. And I think thatÓs, basically, the overall view of the recommendations. But if anybody has any specific questions, IÓd be happy to answer them. GALDONES:Commissioners -? Thank you, Ms. Broder. Commissioners, any questions of Ms. Broder? Commissioner Graham? GRAHAM:Hi. Thank you for all your work on this. One thing that has been brought up that is concerning to me is that, clearly, there are problems; and thatÓs why youÓve brought in all these restrictions and mitigation measures. Also, there is some background, like you said, about the heiau and the different parcels being grubbed away as far as compliance by this Applicant. It does feel like thereÓs not really monitoring things in place. So if this becomes suitable its because the noise level is below a certain amount, because idling of the buses is not excessive, because of a whole bunch of things like this where it seems that itÓd be unreasonable to expect the neighbors to be sort of, you know, monitoring this. On the other hand, I mean, I know as a neighbor to people in my vicinity, you donÓt want to just go out and be a bitch and complain about all kinds of little things. So, anyway, IÓm a little concerned about the whole idea that you have a whole lot of restrictions to try to hold this within an acceptable range, yet, it seems a bit unreasonable to me to expect these restrictions to all be met and to have the neighbors make sure that happens and all like that. So I just want you to comment on that if you would. BRODER:Well, I suppose in the ideal world that if the Applicant is granted the permit and restrictions are placed on the permit, that the Applicant would conform to the restrictions that are placed on the permit. You know, obviously, there are some indications that, in the, for the grubbing, as you were pointing out, one is the archeological site was destroyed. Actually, the heiau is on the immediately adjacent property which Doutor also owns, or at least that was the testimony that was received at the hearing. And the Applicant, of course, also was cited by the County for having 500 6 visitors a day. But I think itÓs impossible for me to say that the Applicant wouldnÓt conform to the restrictions placed on the permit. GALDONES:Commissioners, any further questions of Ms. Broder? Thank you for the work that you put into it and thank you for being here. KUBOTA:I have a question, and I donÓt know that I should ask Ms. Broder or Mr. Tsukazaki. But, procedurally, are we prohibited from asking questions of the panel there or specifically are we allowed to ask only the Hearings Of GALDONES:Well, for the moment, I will allow the questions to be directed to Ms. Broder only. KUBOTA:Okay. Then IÓll go through her. IÓm interested in this, the use of the bus, the limitation on the use of the bus. BRODER:Yes? KUBOTA:According to prior testimony, I guess, it seems that there was, there seemed to be an agreement, and I donÓt know that it was an agreement, but between Doutor and, I guess, it might have been Public Works, that they would be allowed to use the bigger tour buses if they made improvements on the disembark passengers. Was that taken into consideration? ThatÓs why I wa Mr. Tsukazaki where that knowledge came from, for me anyway. Bu somewhere in here. Yeah, here it is. Okay. ItÓs in your Findings of Fact on page 5. Wait now -. Yes, yes. And itÓs letter h, that ÐLarge tour buses will be discouraged from taking visitors to the subject property. But if an event requires the use of such large buses, the Applicant will improve that portion of the Mamalahoa Highway fronting the subject property to accommodate a drop-off area that will not interfere with the normal flow of traffic or access to adjoining properties.Ñ Now, your recommendation says entirely. ItÓs a banning, okay. Was it because the Applicant said they donÓt want to improve it, or they donÓt want the space there, or how did that BRODER:Page 5, Section h, that was what the Applicant proposed. IÓm repeating what the Applicant proposed there. ThatÓs not something that was approved by the Department of Public Works or anything like that. There are some findings in here relating to some comments by some of the public agencies. And there was concern about that particular issue, the large tour buses; and, you know, basically, in order to make it safe that you would have to have a turn-around right there on that side of the street. But you have to give me a minute to find where that was but that was what the Applicant himself proposed. He proposed to leave it at one tour bus per day; and IÓm not exactly sure how that would work out, but IÓm sure that they probably do. But they proposed to do, to be allowed at least one tour bus per day. So thatÓs their proposal. I thought when I went to the site and had a site visit that it appeared that Mamalahoa Highway had traffic 7 problems already, that the large tour buses are difficult to accommodate, although can be accommodated but are difficult to be accommodated on Mamalahoa Highway, and that the access to the property, coming and going, was very problematic. KUBOTA:May I just follow up on that with one more question, just as a point of thought, information, Ms. Broder. You are familiar with, IÓve seen youÓre familiar with Mamalahoa Highway and the whole area. Are there any other, how should I put it, businesses that are on that highway that might encumber the flow of traffic by use of large buses? IÓm not sure. IÓm just curious. I donÓt know where the tour is, exactly, so -. BRODER:I think that would be a fair question to pose to the Planning Director because heÓs, you know, very knowledgeable about the details of the, every single location there. KUBOTA:Okay. IÓll ask him later. Okay, thank you. FUJIKAWA:I have a question. GALDONES:Commissioner Fujikawa? FUJIKAWA:To the Hearings Officer, I have a question. When you pinpointed tour buses, now, they canÓt be there -. But all day long, every day, there are school buses there. Now, how can you pinpoint that tour buses canÓt be there BRODER:Well, I think thatÓs a very good question. And I considered that school buses obviously are going to use Mamalahoa Highway; and because of the design of Mamalahoa Highway, they are on occasion going to be creating a safety issue. But in further reflecting on that, I felt that it wasnÓt, obviously, the kids have to go to school and there canÓt be an exception to that. And so while that may be something that goes on, I didnÓt think that that provided a justification for this situati FUJIKAWA:But in a situation like this, my concern like over on the mainland, they stress the use of buses for transportation. Now you say a 60-packed tour bus and if they all were to bring their own cars, say, two per car, thatÓs 30 cars using Mamalahoa Highway. I would much rather have one bus versus 30 cars. My other question was on your sound factor. Noise, you have 55 decibels. Now, according to itÓs ag land, you could go, sound factor, up to 70 to 75. How did you come about on the 55 being itÓs ag land? BRODER:I adopted a recommendation of the Planning Director on the 55 decibels. GALDONES:Are there any other Commissioners who wish to question Ms. Broder? Commissioner Kubota? 8 KUBOTA:While youÓre on the subject of decibels, what is, how lou 55 decibels? I have no idea what 55 decibels sound like. GALDONES:Well, perhaps the, since Ms. Broder is not able to answer that question, as it was a recommendation of the Planning Director, when we have him testify then maybe he -. KUBOTA:All right. GALDONES:If you have any questions, you can direct the question to him regarding the 55 decibels. Commissioners, any further questions of Ms. Broder? If not, Ms. Broder, thank you very much. BRODER:Well, I would just like to thank the Commission for the opportunity to serve on this very interesting case; and I would also like to especially thank the Commission for their consideration of my need to get back to Honolulu this afternoon. My mother is coming and she hasnÓt been here for eight years. She arrives 2 oÓclock, so I greatly appreciate the consideration. Mahalo. GALDONES:YouÓre welcome. Thank you. As to the parties, so that some idea, Ms. Roy, will you be presenting some oral arguments t M. ROY:Yes, sir. GALDONES:Mr. Krueger? KRUEGER:Yes, I will. GALDONES:Mr. Tsukazaki? TSUKAZAKI:Yes. GALDONES:Mr. Arai? ARAI:In response to any arguments they make. GALDONES:Okay. That being the case then, Commissioners and the parties, I would like to call for a lunch recess and reconvene at 2 oÓclock. RECESSEDThe Chair recessed the meeting at 12:17 p.m. RECONVENEDThe meeting reconvened at 2:00 p.m. GALDONES:Commissioners, the HawaiÒi County Planning Commission will come back to order. We are on Agenda Item No. 1, Doutor Coffee SPP 02Ï010. In moving forward, Commissioners, we have heard Ms. Broder or the 9 Hearing Officer give the findings of facts and conclusions of law in her report. I would like to ask the parties on the table if they have submitted exceptions to her report. Ms. Roy, was there an exception to the report that she had submitted? M. ROY:Chairman Galdones, we have not submitted in writing our objections. We would like to testify today to this body. GALDONES:You will be providing oral arguments to the report? M. ROY:Correct. GALDONES:Mr. Krueger? KRUEGER:Same for me. GALDONES:Mr. Tsukazaki, we have received your exceptions. Would be considered as your request for oral argument? TSUKAZAKI:Yes, Mr. Chairman. GALDONES:And, Mr. Arai, you have received the Planning DirectorÓs Support of the Hearing Officer? ARAI:That is correct. GALDONES:Okay. Commissioners, in light of there was no written requests for oral arguments from Ms. Roy and Mr. Krueger, if the Commissioners would like to entertain, hear oral arguments from both parties, then I would like, for the record, a motion be made to that effect. KUBOTA:A motion? GALDONES:Yes. KUBOTA:A motion to accept their -? GALDONES:Motion to allow oral arguments from Ms. Roy and also from Mr. Krueger -. KUBOTA:I so move. GALDONES:And for all parties. KUBOTA:For all parties? GALDONES:Yes. 10 KUBOTA:I move that oral arguments be allowed to be presented this afternoon by all participants. SPRINGER:Second. GALDONES:It has been moved and seconded, by Commissioner Kubota Commissioner Springer, that we allow oral arguments from all parties. Any discussion on the motion? Hearing none, all those in favor say aye. COMMISSIONERS:Aye. GALDONES:All those oppose say nay? Motion carried. Mr. Tsukazaki, I will allow you to proceed first and followed by and Mr. Arai. We have not set any time limits for the hearing so far on what we have been proceeding today. We can proceed one of two ways in that, like the Commission could just rely on your cooperation to maximize your time and try to keep it short, or we can set a time limit. The Chair is flexible. Is there any suggestion on how you folks want to proceed? I would like to provide everybody a fair opportunity to make their statements. Any suggestions? KRUGER:Mr. Chairman, IÓd like to have five more minutes than Mr. Tsukazaki will get (jokingly). IÓd really like to address the Commission with my concerns and perhaps respond to Mr. Tsukazaki, but I could certainly keep it to 15 minutes. GALDONES:Okay, Ms. Roy? ROY:I say the same, 10 to 15, no more than 15. GALDONES:Okay. Mr. Arai? ARAI:No more than 10 minutes. GALDONES:Okay. Fine. Then, Mr. Tsukazaki, excuse me. Mr. Tsukazaki? TSUKAZAKI:Mr. Chairman, if Mr. Krueger wants five more minutes than I said IÓd get, then I feel IÓm entitled to five more minutes; I donÓt want him talking longer than than me (jokingly). Just joking. Prior to, this is a little bit off so please donÓt count this as my 10 minutes. Mr. Ishado, Lester Ishado, I just want to recognize that, you know, he has passed away recently. And I just want to say for the record, he participated in this heari 11 death and I want to remember him as a good attorney, a very straight-forward, a gentleman; and I know I will miss him. So, in his memory, IÓd just like to acknowledge that, Mr. Chairman. As the Planning Commission is aware, we have filed a number of e Hearing OfficerÓs report. We support that report to the extent that it finds that there is a strong legal basis for the grant of this permit; and we believe that her report contains all of the findings that support, or provide legal support to the granting of the permit. And so we would respectfully request that this body grant the Special Permit in this case. At the same time, we have filed exceptions because we believe that some of the restrictions that Ms. Broder has recommended to be imposed will cause hardship; and we also believe on some of them, theyÓre not properly based on the proper basis. So, if I may, IÓd like to go through that. And, along the way, I will just highlight the exceptions that we feel are most important to our client. Along the way, I will making some comments regarding some of the statements that Ms. Broder made h because I feel I must take exceptions to some of them as well. Let me start, and if the Commission is going to attempt to follo st exceptions were filed on July 1, and what IÓm referring to right now is page 7 of those exceptions. And at the top of page 7 of those exceptions, we state that we take exceptions to recommended Conditions 2 and 3. And I would add in this category No. 6 as well. What Ms. Broder has done is, in those conditions, she has required that certain things be done, certain improvements be made, certain approvals be obtained prior to the conduct of the tour activity and the sales activity that weÓve applied for. As the Commission may recall, we believe that certain of those activiti themselves in the agricultural district, so those activities have continued on site. So to the extent that Ms. BroderÓs conditions will require us to stop those operations, we would object to those. We believe that the things that sheÓs requiring can be satisfied by our client within a time certain after the, if this permit is granted within the time certain after that. We will comply with the requirements that Ms. Broder has record, IÓve mentioned Conditions 2, 3 and 6. And she went through this with you but IÓll just, for the record, indicate the subject matter. Condition 2 pertains to the improvement, water system improvements; and we heard her say that she felt those should be done as soon as possible. WeÓre willing to do that within six months after the permit is granted or Plan Approval is granted. I will also comment that Ms. Broder was talking about the taxing of the public water system because of the agricultural activity, and I think she made reference to the water feature, the fountain, the pool, involving a lot of water. I think Ms. Broder must have forgotten that during the hearing the evidence was that all of t fountain, the pond, all of that is from a private well on this site. In other words, in addition to the public system, our client is providing water for that fountain for irrigation purposes, etc. So while there is water being used from the County system for agriculture, itÓs supplemented by a private source. 12 Condition No. 3, which, you know, we also would like revised so that it provides for a time certain for performance. This is the one dealing with Plan Approval. And this is also addressing or imposing the requirement for heavy landscaping along the east and west boundary, and that is to provide some mitigation of visual or noise impacts to Mr. KruegerÓs client. We would, again, object to the language which requires us to do that before establishing the use. As I said, the use is, establish the use is, in effect right now. There are tours. We are not selling non-agricultural products yet because we wonÓt do that until and unless the Planning Commission grants this per activities of which we feel are legal, that is happening. So we donÓt want to have to stop all of that and have to apply for Plan Approval. We want to apply for Plan Approval in the process. Condition No. 6 is another similar kind of thing where it starts off prior to the establishment of the public tour and retail sales operations, we must satisfy health requirements. Again, you know, weÓre in operation so we would like that one amended. We have no problem with satisfying Department of HealthÓs regulations. For the record, you know, at the hearing, we stated that the Department of Health had approved of the activities on site; and, so, there may be additional requirements that we may need to do if certain activities change, but we donÓt know that at this point. So we donÓt have a problem with that language, with those requirements. We only have a problem with the clause which requires that we must get those approvals prior to establishing uses. I think the critical part of our exceptions really deals with Condition 5 of Ms. BroderÓs report. And when she summarized those for you, I believe she wa her report. Now prior to getting into that, I think Ms., I want to clarify something. Ms. Broder said that some of these conditions were in the ApplicantÓs amended application so she just took what we had set forth in the application and had then incorporated a lot of that here. I donÓt know if Ms. Broder is aware of this but the Applicant had submitted a lot of proposed conditions as a result of settlement efforts that have And, so, as a sign of good faith, the Applicant had included those restrictions even before final settlement had been reached, but to show good faith. Unfortunately, settlement broke down. There was no settlement. And so the chief consultant and planner, whoÓs Mr. Sidney Fuke, then wrote to the Planning Director, I can cite that letter if need be, and advised Mr. Yuen that because the settlement fell through, the m he had included in the amended application were no longer valid and they would just be completely subject to whatever this body felt would be appropriate. So I donÓt know if Ms. Broder was aware that those have been withdrawn, but I just wanted to point that out for the record. Getting back to Condition 5 on page 30, we took exception with the language of 5.b which relates to the maximum number of visitors per day. By the way, for your information, in the evidentiary record of this hearing, evidence was provided to show that over a, approximately a two-year period, the average number of, average over the 2 to 2 13 1/2-year period, was something like 43 visitors a month. So I want you to be aware thatÓs the scale of the operation, okay, 43 people a month. And it goes down also to, it ranges down to, oh, during the last year, I think it was something like 23 people a month. So this is not a large-scale operation. Unfortunately, and I think some of the evidence, perhaps some of the parties will speak to it today, in fact, Ms. Broder has alluded to an issue regarding large buses, that there was an incident in late January and early February of this year wherein there was an event where over a three- or four-day period, there were hundreds of visitors to this site. Many large buses brought these visitors and it created a problem, a problem for everyone, a problem for neighbors, a problem for my client, a problem for th examined this issue in the evidentiary hearing, my client clearly stated that this was a mistake and it was recognized as a mistake, something that will not happen again. And it was a one-time occurrence; but it was an occurrence which, nevertheless, triggered a lot of strong feelings in the neighborhood, and rightly so. When I say it wasnÓt good for our client as well, itÓs because the nature of this property, the nature of the area within which the tour is shown is not designed to handle large amounts of people, so from bathrooms to, you know, vehicles or whatever. So weÓd like to consider that a very unfortunate incident. It has not occurred since that time. And our client, again, is on the record saying it wonÓt. Our client is agreeable to an 80, a maximum 80 person visitor count per day. As I said weÓre far from that. What we would take exception to is that, as Ms. Broder had indicated, there are franchisees involved in the parent company for our client. And they come over, we put them in the classification of having somewhat interest. And so when we talk about a maximum of 80 guests, weÓre talking about people unrelated to the project, public members; and I believe that Ms. Broder has used that word ÐpublicÑ as well. We just would like it to be clear because we donÓt want to have an argument about this later; and weÓre hoping that more franchisees will come. We donÓt envision, and, thereÓs nothing in the record indicating that, you know, a thousand franchisees would appear on the same day. But you donÓt think itÓs appropriate to include owners in that count. Then 5.c is probably the most critical issue for our client in that Ms. Broder in 5.c effectively prohibited the use of large buses. And the evidentiary record indicates that large buses seldom frequent the property. Perhaps, just at certain points it may be only once a month; so weÓre looking and talking about that level of impact in the past. Nevertheless, tour companies bring many of the visitors who come to this property. And although the tour companies usually use vans or smaller buses, because of other demands on their vehicles and because of the size of a particular group, it may be necessary and it may more economical for the tour company to bring a group in a large bus. And so we have asked that thereÓd be an amendment to this condition to allow the Applicant a maximum of one bus per day. Now we donÓt think on the record thereÓs any basis to say one bu because of traffic hazards or so on. As I indicated to you, we fully acknowledge that if 14 there were multiple large buses, then there would be a traffic issue at the highway because thereÓs not enough area for more than one bus currently to allow people to get off. In other words, with multiple buses some presence of a large bus on the roadway itself. However, with one bus and based upon the site visit and what is happening, there is adequate room off the shoulder, off the roadway for a large bus to be completely off and allows passenge move out. And to illustrate this even more, Mr. KruegerÓs client produced a videotape during the evidentiary hearing; and one portion of that showed a large bus pulled off the roadway in front of the property, and it clearly showed traffic going by unimpeded. It did not appear that it caused any kind of slowdown or whatever. So I would think of the record that exists right now in evidence, there is some indication that it would not be problem. Ms. Broder also cited the potential hazard of the bus as itÓs picking people up after the tour is pau. That bus would be possibly crossing the highway, pulling up in front of the property, again, off the roadway, loading people up and moving, and characterizing that as possibly a traffic hazard, you know, the movement across the highway. But, in effect, that is no different from making a left-hand turn. And looking at, based upon the traffic report, the level of service on this road is class, a level of service B, which is really close to being A, a very good level of traffic. The sight distance is indicated as being adequate, so the bus is not doing this on a blind curve or anything like that. This is a shoulder way, thatÓs whatÓs on the record. Oh, lastly, the reason itÓs important to have, for Doutor to have the flexibility of having a large bus occasionally bring a group is because there are times when, if they didnÓt have the opportunity to have visitors by a large bus, then those visitors would not be able to come. And thatÓs basically, again, because the tour bus, rather the tour company may not have all of the smaller vehicles that are needed. And so itÓs an economic issue as well with my client. I believe it was pointed out earlier, too, that, you know, without a large bus, if the alternative is smaller vehicles, cars, etc., then, obviously, you have more vehicles on the road. So itÓs, you know, looking at that issue from two sides. There are some benefits of a public nature to having one vehicle rather than several. We also asked that 5.d be amended regarding the larger bus issue. ThatÓs because of Ms. BroderÓs prohibition against large bus use. She has structured some of the parking provisions in 5.d to require embarking and disembarking just within the existing parking lot. That is not going to work if the Applicant is allowed one large bus because a large bus, as I think the parties are fully aware, thereÓs some evidence, will not be able to get into that parking lot. The large bus would only allow disembarking and embarking off the roadway at the very top of the property. And, so, we propose some language to allow that and, also, to allow those kinds of, any improvements relating to a pull-out area for the large bus to be approved by Public Works and Planning. 15 The 5.c, IÓm sorry, 5.e, we just would like some clarification. ThatÓs why weÓve offered some language. Ms. BroderÓs Condition 5.e will prohibit weddings, concerts, conventions, other types of special events and activities. Okay? We do not believe that thatÓs warranted and -. Because what we said or what our intent was to say and, this, again, was related to some fears that neighbors had that this particular property would be used as a wedding place, a place to have weddings, commercial weddings, and there is no intent to do that; and we would agree to have that prohibited. We agree that commercial concerts, conventions, other kinds of special events that are commercial in nature would not be allowed. What would be allowed would be events that are related to the coffee industry. So if thereÓs something even on a commercial basis that promotes the coffee industry, we would like to see that be able to happen on the property and, arguably, you know, that kind of thing might be allowed under State law anyway. So our position on that is that there are many events. As you may know, the Kona Coffee Festival has been held at this property for years and thatÓs an example of the events that are related to the coffee industry and are appropriate to be held on this property. In talking, during the recess, IÓd also like to make clear that the Kona Coffee Festival is attended by over 100 people. And so we do not expect that the 80-person limit on public visits would be applicable to events like that. We donÓt consider the Kona Coffee Festival a tour of the property. ItÓs more of a celebration from, you know, Kona farmers and everybody else who supports the industry, who comes to the property once a year and has a festival to advance the industry. GALDONES:Mr. Tsukazaki, how much more time youÓre going to need? TSUKAZAKI:Am I at 10 minutes yet? GALDONES:You are 25 minutes already. TSUKAZAKI:I apologize. And IÓll try to wrap it up. GALDONES:Thank you. TSUKAZAKI:I think the last one weÓre looking at is noise because that has been an issue with neighbors for a long time. And what the Planning Director and Ms. Broder have recommended is that the maximum sound level at the boundary of the property is 55 decibels. That is a residential standard, by the way. This is an agricultural area and the appropriate sound level for an agricultural area would be 15 decibels higher, 70 decibels. That, in fact, was what initially was discussed with neighbors and then Doutor also agreed to lower that to 55. But itÓs an extraordinary thing, you know. I guess, if you can look at it in terms of fairness, neighbors would be able to create more noise, 70 decibels of noise at the boundary. At the same boundary, theyÓd be able to create 70 decibels of noise. My client can only go up to 55. So that is another significant standard here. 16 And as that relates to the prohibition against amplification devices, we wanted that clarified to allow amplification such as if thereÓs a, the background music. ItÓs still amplification but our position is that as long as it doesnÓt increase the decibel, it doesnÓt exceed the decibel level at the boundary, itÓs within keeping. The Applicant has no problem with the prohibition against voice amplification devices, blow horns, etc. thatÓs used during the tours. So we are agreeable to that; and the language we propose tries to distinguish between those uses. Mr. Chairman, thatÓs all I have. IÓd be happy to answer questions if you have any. GALDONES:Commissioners, any questions of Mr. Tsukazaki? Commissioner Thibadeau? THIBADEAU:How many in, under item b, youÓre talking about compan franchisees. Could you elaborate on that? How many franchisees do you anticipate? Do you have any idea on the number? TSUKAZAKI:I believe the number that was used on the record is that maybe a thousand or so franchisees, basically in Asia. THIBADEAU:Is that, obviously thereÓs a control on the number? Y to give the franchisee permission to make the tour? Is that the idea? TSUKAZAKI:Yes, the franchisees in the past have come to Hawaii t property and -. THIBADEAU:I understand that. But you can control the number? TSUKAZAKI:Oh, yes. THIBADEAU:Thank you. You will control the number? TSUKAZAKI:Yes, sir. THIBADEAU:Thank you. GALDONES:Commissioner Graham? GRAHAM:Ben, IÓm not sure if this question goes directly to you but since youÓre on the top half, thatÓs good to ask whoever is best able to answer as relating to the large buses, the tour buses. I donÓt know what the Department of TransportationÓs rules are. You know, like if IÓm a mainland travel agent and I want to bring a group over here, IÓd try the tour bus and I say IÓd like you guys to go up to the art shop in Holualoa or something, will they say, no, we donÓt go on that road or we can an Asian one, could I try to, the tour bus to go, are there any restrictions on tour buses 17 and is it really within our purview that we can make such restrictions as we have? I donÓt understand the whole area of law and rules. TSUKAZAKI:I will amply address that because IÓm trying to speak evidentiary record now, you know, IÓm trying to stay within that context. ThereÓs no evidence on the record that the Mamalahoa Highway is a restricted access highway. In other words, thereÓs no prohibitions for larger vehicles to be on that road and, in fact, there are, and I think that was pointed out earlier. And, so, we feel that it is very unfair to then discriminate, basically, against Doutor when everybody else on that road, including other coffee farms, are doing tours without permits, have tour buses bringing visitors. Now, on the record, what we described as our clientÓs tour operation was that Doutor would take reservations; and thatÓs the kind of a control mechanism, that if a tour company organizes a tour group, they have to call in and arrange for a certain time for the tour. Because on Doutor side, they just donÓt have tour guides, you know, standing by and waiting for people to walk in. So they have to, among their staff, assign certain people to help and guide certain tours. So thereÓs that control. So when the tour companies call, they indicate approximately how many people theyÓre bringing and thereÓs a way for Doutor to ascertain what type of vehicles are going to be used. So, but, you know, again, I would say thereÓs nothing on the record, Mr. Graham, that indicates to me that the Planning Commission has the authority to start determining what kind of vehicles can use the highway. You know, if anything, I believe it would be a matter for the County Council if, in fact, it wanted to restrict certain vehicle uses on that highway. It would take something like that. GRAHAM:Thank you. GALDONES:Commissioner Fujikawa? FUJIKAWA:Mr. Tsukazaki, on the waterfall, how loud is that waterfall? TSUKAZAKI:On the evidentiary record is a noise study that was done by our client. And with the waterfall activity, along with other activity, tour activity, agricultural activity, it was below the 55 decibel sound at the boundary. ItÓs not a very noisy feature. FUJIKAWA:Okay. Yeah, as far as that 55, IÓm pretty familiar wit factors. The common lawnmower is about 70; and so I can tell you right now where it stands. Thank you. GALDONES:Commissioner Kubota? KUBOTA:Mr. Fujikawa, did I hear you say the common lawnmower is 70 decibels? 18 FUJIKAWA:Yeah. KUBOTA:Okay. Thank you. That was the question that I had posed earlier. I wanted to know what 55 sounded like I canÓt make a comparison Okay. I have a couple of questions, Mr. Tsukazaki. In your presentation, you stated a couple of times the phrase, Ðprior to establishment,Ñ being a concern of yours and that you would have preferred time certain compliance? I think those were the words you used. Because, letÓs see, if not for time certain compliance, you implied that the activities that are now taking place would have to come to a halt. Am I co TSUKAZAKI:Yes. ThatÓs what I was trying to say. ThereÓs implication that these uses should not be commenced or established until those other requirements are met. KUBOTA:Okay. So, in essence, what the conditions are saying, then, to get my mind, my understanding very clear, is that these proposals for changes that are being conditioned, they are saying, we are saying, not we, but the conditions are saying that when they put in the phrase, Ðprior to establishmentÑ these things must be done, theyÓre saying that the business has to stop completely? TSUKAZAKI:ThatÓs what our concern is, because the language would indicate that the business cannot commence until certain things are done. KUBOTA:Okay. Mr. Chairman, may I ask the Planning Director to respond or is it out of order to do that now? GALDONES:I would prefer that the question be raised later on when Mr. Arai takes up his presentation. KUBOTA:All right. Okay. IÓll do that. Next. And getting back to Mr. Tsukazaki, if we remove Ðprior to establishmentÑ as a phrase, itÓll alleviate the concern that you have? TSUKAZAKI:Yes. KUBOTA:You are not contesting the, you are not taking exceptions to the changes that need to be implemented? TSUKAZAKI:Right. WeÓre not taking exception with the imposition of the requirements, such as obtaining other permits or complying with improvements that may be required by the Department of Water Supply. ThatÓs not the issue. ItÓs more the indication by the language here that there can be no operation until all of those things are done. ThatÓs what the concern is. 19 KUBOTA:Thank you. You also said it was not proper to include franchisees in the count of 80, 80 maximum visitation, visitors. It was not proper to include franchisees in the count, therefore, you want it to exclude the franchisees in the 80 count. Is that my understanding? TSUKAZAKI:Yes. I think I may have said something like that beca was trying to say is that the, our understanding and the intent of the limitation to 80, was to limit the amount of getting public visitors to the site. Oka in the category of public because owners have an interest in the operation that is related to the farm. So -. KUBOTA:So that was your rationale? TSUKAZAKI:That was my reason, yes. KUBOTA:Thank you. Okay. And I think somebody asked how many, h often do franchisees come, and that question has been labored over, right? You said you can control it -. TSUKAZAKI:Correct. Yeah, no. There has been a sporadic visitat franchisees -. KUBOTA:And not in the hundreds? YouÓre not talking about hundreds? TSUKAZAKI:But -. No. KUBOTA:Okay. Thank you. Why would you need, then -. Oh, no, l go down that path. Another one, on page 8, you talk about idling of vans, and thatÓs a minor point. You talk about excessive idling, you want the word ÐexcessiveÑ included in there. Well, you want Ðexcessive,Ñ what is it that you want in there Ðexcessive idling of vans awaiting passengers are prohibited?Ñ ThatÓs already in there. No, forget that. ThatÓs my notes, raw notes. Explain to me the difference a commercial and non-commercial wed TSUKAZAKI:If IÓm a homeowner, if IÓm a landowner and a friend, a member wants to use my backyard for a wedding ceremony, I sure h believe I can without violating any law. However, if I make a business out of allowing people to use my premises for weddings, that is an act of commerce. ThereÓs consideration, compensation, occurring for the use of my property for a wedding; and thatÓs what we mean, generally. KUBOTA:I see. So, in other words you are saying that the franchisees or whomever has interest of ownership in the company can have weddings performed if they choose to do so. Is that what youÓre saying? 20 TSUKAZAKI:Yes. KUBOTA:You want them to be able to, to be able to do that if they want to? TSUKAZAKI:ThatÓs right. KUBOTA:Is that where youÓre coming from? TSUKAZAKI:ThatÓs right. Just as we have employees, you know. But IÓll say this, though, You know, nothing on the record has been said to indicate that there has been any wedding by a franchisee. So I donÓt want you to get the impression that this has been ongoing or anything. It has not. KUBOTA:You just donÓt want the condition that says Ðabsolutely no weddingsÑ without making an exception for these owners or employees that choose to have a wedding, if they choose to do so? TSUKAZAKI:Correct. KUBOTA:Is that your intent? TSUKAZAKI:Correct. KUBOTA:Thank you. Next. You say Ðonly related to coffee industry,Ñ and you want to exclude weddings, concerts, conventions and other types of special events and activities that are not related to the coffee industry. But you want to include in there an exception for weddings, concerts, conventions and other types of special events Ðif they are related to the coffee industry.Ñ Is that your exception that youÓre taking in e? TSUKAZAKI: No. I think that now that you point that out, I think our wording is bad because -. KUBOTA:I think it is, too. TSUKAZAKI:Because the intent is Ðno commercial weddings, concerts, etc.,Ñ I mean, you know, letÓs just talk about weddings. ÐNo commercial weddings,Ñ thereÓs not, no wedding business up there, period. Okay? So, but the other part of it is that our client was willing to say, ÐNo commercial activity that has nothing to industry.Ñ So if there was a commercial activity that was related to the coffee industry, you know, that promoted the coffee industry, we would not want that kind of thing barred from the property. And, again, I said I believe under State law anyway. But, definitely, this is a coffee farm so, we, support the industry strongly through what has been said on the record about the Kona Coffee Festival, etc. We want to be able to continue to do things like that even if it means that an organizer is going to make some money off of organizing an event like that. We feel that itÓs consistent with the agricultural nature of the property and, of course, in support of the coffee industry. 21 KUBOTA:Going back to activities, the Hearing OfficerÓs language ÐWeddings, concerts, conventions and other types of special events and activities shall be prohibited on the subject property.Ñ What exceptions are you taking to that other than weddings? TSUKAZAKI:None. KUBOTA:None? TSUKAZAKI:ThatÓs a good point. So with the clarification on weddings, the rest of that is acceptable. KUBOTA:Then, Mr. Tsukazaki, where does that coffee picking thing come in? TSUKAZAKI:Well, itÓs not a revenue-generating event as I understand it. Okay? So it would be allowed, it will be allowed. Our intent is that it should be allowed. ItÓs a community event. KUBOTA:Would? Excuse me if I seem confused, but would not the condition set forth by the Hearing Officer exclude such an event without specifically including it by exception? TSUKAZAKI:Yes. The Hearing OfficerÓs condition says, ÐWeddings, concerts, conventions and other types of special events and activities shall be prohibited on the subject property.Ñ KUBOTA:Right. TSUKAZAKI:So that would cover, you know, charitable events, you this is a non-, the Kona Coffee Festival is a non-revenue-generating event that has occurred on this property and we want it to continue to occur on this property. KUBOTA:Yeah. DonÓt get me wrong, IÓm trying to help. IÓm trying to help you by having that included because I think itÓs related and I think itÓs a good activity to have. But if you take out ÐcÑ in its entirety, no, wait, now, n its entirety, are you not excluding the coffee-picking activity? Maybe IÓm convoluted -. TSUKAZAKI:You know what, why donÓt I do this, Òcause I can see that our language was poor, let me suggest to you how it would read this way. If we were to eliminate the words ÐCommercial weddingsÑ and just start out with ÐConcerts,Ñ ÐConcerts, conventions and other types of special events and activities that are not related to the coffee industry,Ñ okay, Ðand commercial weddings shall be prohibited on the subject property.Ñ See where that will be, we would rewrite that whole thing. 22 KUBOTA:But you get the flow of what IÓm trying to get at? TSUKAZAKI:I get the flow -. KUBOTA:Okay, thank you. TSUKAZAKI:From Flo. KUBOTA:Okay, you get the flow from Flo. Okay. Fine. Okay. Th GALDONES:Commissioners, any further question of Mr. Tsukazaki? If not, Mr. Krueger? KRUEGER:Thank you, Mr. Chairman. Let me begin by just seconding Mr. Tsukazaki said about Lester Ishado. I think he will be sorely missed. He was a gentleman and a very good attorney. During the course of my presentation, I may be a little bit rough on Doutor Coffee and that is not intended as any reflection upon Mr. Tsukazaki, whatsoever, who I respect. I just want to make that clear as well. I think, initially, the Commission should understand that this has been an uphill battle for my client from the start. HeÓs an individual, heÓs a carpenter. He doesnÓt have a lot of money. ItÓs kind of been a David and Goliath situation because he is an adjoining property owner. So we appreciate the Commission listening to our concerns and addressing them. A little history, I think, is appropriate in this situation as well, and this was brought out during the course of the testimony as well at the Contested Case Hearing. The Applicant applied first for a visitorÓs center on this same property for the coffee industry for a tasting room and a number of other events back in 1995. When that was contested and the contested case hearing was set up, the Applicant withdrew his application. Subsequent to that, they went ahead and put in the water feature, they put in the large pavilion with tables. And just so you get some idea, Òcause we donÓt have pictures here, the water feature is probably about as big as this room or close to it with a large fountain in the middle of that, and a cross which they can take out or put in at their pleasure. There are probably 10 tables under a very large pavilion where people can go to sit beside the water feature and drink coffee. There are two kiosks or pavilions immediately adjacent to that water feature, one of which is presently used for the sale of coffee. The other one is used for the establishment of whatÓs called Ðpoint cards.Ñ The point cards are used in Japan to purchase items at the franchiseeÓs shops when they go back to Japan. ItÓs more of a commercial enterprise than anything else for the people who visit this particular Doutor Coffee Farm. But weÓve been opposed from the start to the use of this particular coffee farm for the kind of commercial activities that Doutor is attempting to undertake there. One of the initial questions, I think, that the Commission needs to address is whether or not this 23 application for a Special Use Permit is something that should be considered by the Land Use Commission as well. The Applicant has indicated that he is asking for the Special Use Permit for 12 acres out of a total of 28.47 acres. All of things that I just described, and that the Applicant has described as having on the property, the water feature, the pavilions, the tractor shacks, are all part of the 28 acres, theyÓre contained within the 28 acres. There has been no survey done of the area that has been suggested as being 12 acres, there has been no metes and bounds proposal. The most that was done at the Contested Case Hearing was the ApplicantÓs representative drew on a tax map by hand certain areas that he said were a part of the 12 acres. And when questioned in cross- examination if roads were included in that, he said, ÐOh, no, we should include those as well.Ñ Pretty soon the whole map began to take on the color of the 12 acres. And Ms. Broder said, ÐWell, are those areas all of the 12 acres?Ñ and Mr. Tsukazaki said, ÐMr. Krueger has kind of confused the situation by asking my client to include other areas, but really weÓre only talking about these particular areas.Ñ But thereÓs nothing that will allow you, as the County, to enforce that Special Use Permit with respect to any specific 12 acres. And I think that the most you could do would be to grant a Special Use Permit as to the entire 28.47 acres, in which case I believe, under Section 205-6(d) of the Hawaii Revised Statutes, that matter would then need go to the Land Use Commission for their consideration as well. The Section 6-3 of the Planning Commission Rules of Practice and Procedures requires that the Applicant include in its Petition a description of the property in sufficient detail to determine its precise location. And I think the Applicant has totally failed to do that under the circumstances in this case. The most they have you before you is a tax map which includes the entire 28.47 acres. I think Commissioner Graham raised a good point which I intended to raise as well, and that is with respect to enforcement of the conditions that Ms. Broder has suggested. I donÓt think thereÓs any way for the Commission to monitor all of the conditions that have been suggested, the hours of operation, the limitation on public tours to 80 persons a day, the limitation on vehicle transportation, embarking and disembarking of passengers, etc. And I think that does become then the obligation of adjoining property owners to report that type of activity to the County. In this particular case, it was my client who reported to the County the numbers of people who were coming to the Doutor property in January and in early February of last year. There were at least four or five buses in the morning the first day, another three or four in the afternoon of the first day, and upwards of 500 to 600 people a day disembarking from there. The County did come out, they did cite Doutor Coffee, they did tell them to cease and desist by March. That operation is still continuing, buses are still coming to the property. They have not shown good faith in not conducting these public tours between that time and now, notwithstanding the fact that they have submitted this application to the County and notwithstanding the fact that the County cited them previously. 24 So I donÓt think you can rely upon Doutor to voluntarily agree to refrain from doing the things that have been set forth in these conditions without some kind of monitoring and some kind of enforcement. The Conditions of Approval Nos. 2, 3 and 6 that Mr. Tsukazaki talked about which require that certain conditions be met prior to the commencing of operation of the proposed public tours and retail activities doesnÓt prevent them from doing whatÓs allowed in an agricultural zone such as the farming and undertaking of the farming. What it does preclude them doing is conducting public tours. The testimony at the hearing was clear that they advertise in hotels, they have flyers that they send out to the hotels encouraging people to come to their property for these public tours. And the retail activities that theyÓre talking about are the retail activities that theyÓve requested that, for the sales of hats and other types of paraphernalia that are not produced on the property which would require a Special Use Permit. So I donÓt think itÓs unreasonable to suggest that they meet the Conditions of Approval that have been recommended by the Hearings Officer before they c theyÓre continuing with these public tours, but before that comm theyÓre asking the Commission to give them the approval to do. And, yet, at the present time, they shouldnÓt be conducting the public tours and they shouldnÓt be selling retail merchandise which they are asking this Commission to give them the authority and approval to do. That should be stopped. That should have been stopped a long time ago. And my client, Dean Yokoyama, has asked the County repeatedly to do something about that even after the March date. But, to date, nothing has been done and those activities continue. As far as the franchisees being included in that number of 80, there was no testimony during the course of the Contested Hearing that these franchisees are, in fact, owners of this property. Doutor Hawaii, Inc. is the owner of this property. Franchisees, to the best of my knowledge, are people who have a license given to them by a company to use their name in the marketing of these coffee products in Japan. I donÓt believe that you would say that Starbucks franchisees here in the State of Hawaii or in the mainland have a right to tell Starbucks Hawaii, Inc., or a larger corporation, how to deal with their property or what to do with that property as an owner would. They simply have a license to sell products which are using the Starbucks name to promote the coffee industry for that particular franchisee. But they are not owners from the standpoint of being on title to this property and, as such, should not be excluded from the count of the public that have the right to come forward and use this property as a part of these tours. I think that even if the numbers are limited, they still should be counted as a part of the people who are coming to this property and potentially creating the problems that are associated with what the neighbors are objecting to. If we allow 100 franchisees a day to come and 80 other individuals to come, we still have a problem in terms of the numbers of people attending their property. 25 The reason why buses were objected to at this Contested Case Hearing and are still objected to is because there is no way for these large tour buses to come into the parking lot on the property. They will bottom out as they come over the the parking lot is so steep. So theyÓre required to disembark and re-embark on Mamalahoa Highway itself. And unlike school buses, they donÓt have the blinking lights and the ability to stop traffic while the people embark and dise concerns that was voiced by the Hearing Officer at the time of the hearing was that, first of all, the bus pulls off the road and they have to move back planters in order for the bus to be able to just barely clear the edge of the roadway, and the people come off on the makai side of the road when they disembark. But, perhaps Mr. Tsukazaki and I werenÓt watching the same video at the time of the hearing but I saw a lot of traffic with a lot of red lights when these buses were embarking and disembarking. But the bus continues on down the road, down Mamalahoa Highway, it turns around at the cemetery, comes back and parks adjacent to the mail boxes at Hualalai, canÓt remember the name of the development, on the mauka side of the street; and they sit there and wait for two to three hours while these public tourists go through the property. And then at the time that they come back out of the property, the bus crosses the Mamalahoa Highway in a northerly direction, crosses over onto the southerly side of the road, crosses two lanes of traffic, pulls over to the same place where they originally disembarked and have the people come around onto the mauka side in the lane of traffic to get back into the bus again. And then the bus once more crosses the two lanes of traffic to go back onto the northerly traffic lane to move, and to leave the property. ThatÓs one of the Findings that was made by Sherry Broder in the Findings of Fact. And it was for that reason that she felt that it was not safe to even have one bus embarking. And disembarking on the highway, and thatÓs why she has a recommendation in there that the vans be told to park in the parking lot and to embark and disembark from the parking area, for the safety both of the public as well as of the passengers inside those buses. And I think the excess of idling comes from the fact that the buses would sit there for a couple of hours waiting for people to come back out from the tou I agree with Ms. Broder as far as the roadside stand is concerned. I know Mr. Tsukazaki has said, you know, in this particular district, roadside stands are allowed and has attempted to, in some manner, indicate that the use of these gazebos, a thousand feet below the road behind the gated lock that is inaccessible to the public, somehow qualifies as a roadside stand that you and I know as something up on the roadside which has fruit in it that people can purchase. These things are a thousand feet below the road, immediately adjacent to this water feature and larger pavilions. So I donÓt think those are what the Code intends as a roadside stand. Questions were raised, I think, about weddings. The representation made to the Hearing Officer prior to the hearing was that there were no weddings that were taking place on the property. And I asked the ownerÓs representative, Sidney Fuke, at the time, he suddenly started using the word Ðcommercial weddings.Ñ And I said ÐAre y 26 distinction between commercial weddings and weddings,Ñ and he said, ÐYes, I am.Ñ But he admitted at the hearing that they had had a wedding at the property where he previously indicated to the Hearing Officer that there had been no weddings. And then they started distinguishing between, well, we thought you meant Ðcommercial weddings,Ñ you know, where people pay to actually use the property. The same thing was true of the serving of alcohol beverages at their barbecue facility. Prior to the hearing, they indicated that there had been no alcohol beverages sold at the barbecue facility. When questioned about whether or not alcohol beverages had been served, they admitted, yes, they had but they donÓt even serve to their franchisees at the barbecue area, and that they have no liquor license or anything of that nature. We questioned whether or not a barbecue facility really has any bearing upon the agricultural use of that property. I can see tours perhaps of the areas used for the growing of coffee. I donÓt know what benefit a barbecue has which can be set up for groups of ten or more at any time upon their request; and the food is prepared, I believe, off-site, brought to the site. No question about where, no indication about specifically where the food is kept or for how long. ItÓs served by the Doutor employees. The Doutor employees clean up afterward. ItÓs not a certified kitchen but it is a part of the services that they provide to the tour companies that come there. And they do have contracts, at least they had prior to this Contested Case Hearing, contracts with various tour companies to provide that service, including the barbecues, for which they charge a fee and for which they are compensated. And itÓs not just the fee to cover the cost of the barbecue. ThereÓs a profit that Doutor receives from this barbecue as well, which, again, links all of this to the commercial use of the property. And thatÓs the objection that my client has as an adjoining neighbor. HeÓs immediately adjacent to the parking area at the mauka side of the property. So when these buses come in, when these vans come in, when these go down, there are two ways you can get to this, go through this area. One is a walkway on the south side of the property and thatÓs where the tours begin. ThereÓs like a box office, if you would, up there where people begin their tours walking down through the property. Half of the property is planted in various trees, pineapple plants. ItÓs not coffee, itÓs not harvested. The fruit was on the ground when we did our walking tour through there and I said, ÐDonÓt you guys harvest the fruit?Ñ And they said, ÐWell, no. If the tourists come through, we sometimes will give it to them.Ñ But itÓs there strictly to show the people what these particular types of plants look like and has the name of the plant in front of them. The tour ends up at the water feature and the pavilion, for the most part. And if thereÓs a barbecue function involved which the tour includes, the tour subsequently moves on further makai down to a large barbecue area which has another pavilion with tables and a barbecue area where they entertain their guests at the barbecue. The barbecue is immediately adjacent to people who live on the south side of this property. My client lives on the north side of the property. But Maryl, Mark and Cheryl Richards and other people who were originally parties, I think, I believe still are parties of this but theyÓre 27 not participating, live in those houses along that side of the road. And there was some evidence or testimony about noise on a couple of occasions that they were complaining about coming from, appeared to be coming from that barbecue area, which is where Mr. TuskazakiÓs client would like to have the music that would be allowed to entertain the guests in the barbecue area. The special events that Mr. Tsukazaki is talking about, again, I coffee farm and the purpose of the tours is to show people what a, an operating a coffee farm looks like and to give them the opportunity to purchase coffee, why do they need the ability to conduct weddings on site? I know theyÓve been conducting the Kona Coffee Festival for several years and I donÓt think my client has any objection to that. ThatÓs a one-time a year function. But as far as other types of conventions related to the coffee industry, I donÓt know what those are and I donÓt know how many there would be. And I think if the condition is approved, I think it should simply say the Kona Coffee Festival, and not leave it open to discuss what other events might be related to the coffee industry. ThatÓs something that can be argued about in another enforcement issue that would need to be addressed at some point down the road. I donÓt think itÓs reasonable to conduct weddings on the site and I donÓt think thereÓs any reason why weddings should be conducted there. I think that itÓs unlike you or me opening our house up for a wedding. This is a much larger area, itÓs 28 acres. The numbers that people could be attending these weddings is unrestricted. If itÓs a franchisee, it could be any one of a thousand people coming from Japan for that purpose. If itÓs an employee of the company, you know, they could have a well. I think this is not the kind of thing that we want to see in an agricultural district. ItÓs not the kind of activity that should be conducted in an agricultural district. GALDONES:You have much more, Mr. Krueger? KRUEGER:No, IÓm almost done. Thank you. As a matter of fact, thatÓs all I have say, Mr. Chairman. I do appreciate the CommissionÓs time. GALDONES:Thank you, Mr. Krueger. Commissioners, any questions? Commissioner Fujikawa? FUJIKAWA:Yeah, my question with you is that, have you seen their tee shirts, caps, mugs? You havenÓt? KRUEGER:No, I have not. They didnÓt present those at the time of the hearing. FUJIKAWA:Okay. Mr. Tsukazaki, may I ask on this same, have you tee shirt, mugs? TSUKAZAKI:I wanted to respond to a number of comments he made and I was going to ask to reserve that right to do it at the end but I can answer it now. 28 GALDONES:Could you hold it to the end, then? TSUKAZAKI:Sure. IÓll answer that question at the end. FUJIKAWA:Okay, thank you. GALDONES:Okay. Any other questions, Commissioners? If not, Mr. Krueger, thank you. Ms. Roy? M. ROY:Thank you, Mr. Galdones. As my father would like to also today, I will certainly try to minimize my portion and turn, if I may, give the mike to, share the mike, also, with my father, the president of Kulana Huli Honua. Would that be permissible? GALDONES:Yes. If you could combine all of it within a certain timeframe that would be appreciated. M. ROY:Thank you. I will. I am the Executive Director of Kula Honua, Foundation of the Search for Wisdom, a community 501C-3, non-profit organization, whose mission is to promote the culture and history of Hawaii, especially by means including activity to research and protect sacred and historic sites of Hawaii by establishing Hawaiian land inter-active archive libraries. It is our purpose to promote the education, perpetuation and practice of HawaiiÓs cultural heritage in our Òlelo makua hine, mother tongue, other oral traditions, and hana noÒeau, physical skill practices. It is further our purpose to promote the life and care of Ahuena Heiau and the surrounding environment at Kamakahonu. To my right is my father, David Kahelemanu Roy, Jr., kahu of Ahuena Heiau and president of Kulana Huli Honua. Other members of our board are George Naope, Charles Nahale, Jim Medeiros, Sr., Kimo Schuwer, Joseph Nahele, Edita Santos and Jack Kelly. Mr. Jack Kelly has been our representative in these proceedings, the Contested Case, he is our secretary. He was not able to be here today so may I speak in representation for Kulana Huli Honua today. The full representation will be in writing and would be forthcoming to you. We come to this proceeding acting as the public in safeguarding law and process of laws that protect historic sites, burial sacred sites of extremely high value to future generations of Hawaiians in their homeland and to the bank of true knowledge of the identity of the Hawaiian lands for the world. We would urge the denial of this application. It is clear that one of the main concerns this organization has with this Applicant is the integrity of the members of this application. In the first place, the historic site was destroyed. Ninety percent of the site that, if you will look at Condition, I believe itÓs, well, itÓs listed as one of Ms. BroderÓs points where, in fact, the site was destroyed, almost the whole of it. This was a part of the Mahinaai system, which is by history so important to Kona. This was what Captain 29 Manzies of Captain CookÓs crew commented on predominately mauka in Kealakekua area but, truly, and he, may I say that he remarked that this was the most remarkable example of cultivation he had ever seen in all of his travels. Now, going north, where we are in Hienaloli, and my father has confirmed that his testimony in the contested hearing that this, in fact, this area was the area wherein Kuahewa, KamehamehaÓs garden, was, that this site that was leveled was actually a part of Kuahewa. When Hawaiians name anything, you can understand that thereÓs absolute sacred importance to the person who named that entity and the entity itself. This was KamehamehaÓs personal garden. As my father is kahu of the site that KamehamehaÓs, which was KamehamehaÓs personal heiau. There actually is a structure at the heiau that is called the Halenana mahinaai, House to See the Garden. What garden? Kuahewa. Where is this garden? Up in Hienaloli. It actually extends from Keopu through the lands of Kahaluu and Keauhou, it is our understanding, and my father gave testimony to this. He also, for the record, he will talk more on this aspect, but this is called the Mahinaai system to us. One would think that, with an application at hand, this business would want to be a very good neighbor and not do, perform any activities that would be against the confines or what is acceptable in the process that is at hand. TheyÓre involved in a Contested Case and, yet, this party, this business continued in practices that actually called for citings by the County. This is a concern to us as community members. Beca cannot be trusted, what are we left to? WeÓre left to the bodies that make decisions to protect our lands. And so as Ms. Broder pointed out, on page 17, ÐGoals specified within the General Plan states that the County shall ÒDesignate and allocate land uses in appropriate proportions and mix and in keeping with the social, cultural, and physical environmentsÓ and Òidentify, protect and maintain important agricultural lands on the Island of Hawaii.ÓÑ In addition, while this has not been our thrust, our thrust has been to remark on the illegal activity that has gone on and resulted in the annihilation of Site 20847. To this day, we cite both the State and this Applicant as fault in this area. And, again, we move forward to safeguard our lands for the public. But, in addition, we would view the approval of this application affects land values, promoting the business of a more effluent newcomer rather than promoting the way of the local traditional coffee fa witnessed this morning, new farmers of North Kona, this is farming in evolution, but itÓs more in keeping with what we have in mind for the heritage of Ko IÓm a teacher, I provide guided tours, especially upon Kona lands. As a guide, I can report to you that visitors are most interested in our traditional Hawaiian history and are heartened when they see ongoing traditional practices, such as the use of land in traditional agriculture, not in newly brought in styles of highly commercialized activity in agricultural areas. We concur with Mr. Krueger that this is not the kind of activity that is desired for this area. Further, if we were neighbors in this area, we would be concerned about the 30 activity of buses on that highway. We are concerned about the safety of the children in the area as well as all components of the community. I will conclude my portion here by saying we would, that we would urge the total deferment of this matter at least or the denial of this application. D. ROY:I guess I should talk about my first impression of the view of this coffee farm as it was pointed out to me before I got there. To been born here in HawaiÒi in Kona and was familiar with the trad agricultural small coffee farmers, this was an eye-opener for me all, where itÓs located was high on the Kona Hills, and the Mamalahoa Highway was winding around this mound, ridge. And the coffee field that had been, is the subject of this hearing was the area that had been bulldozed from the roadside all the way down to a point where, looking at it, IÓd say, this is a beautiful vista. And yet as I looked at it, I realized that no coffee farmer, no ordinary coffee farmer could ever duplicate anything like this. This required money, it required the assistance of a good promoter and it required the renovation and modification of the land that it was located on to a fantastic extent. What a beautiful place it was. But when my car parked at the edge of it, I looked down, the first thing that came to my mind was that this was sub failure, human error, whatever you might want to call it. But once it happened, theyÓd be no end to the day, I mean, to the fatalities and injury to the people who are involved in this traffic, method of transportation, namely, a bus. But the front area of this area, place, close to the roadside was completely concreted all over as a par Now, if you could view this from the roadside where the whole area in front of you was a matter of concrete and if you would take your vehicle over this to go down to this parking lot, you will then realize what a danger this could be. Okay, thatÓs only one aspect of it. But, then, as I went down, I looked around to see the modification on the land that was around. And when I thought back to the fact that agriculture in this area was practiced to produce the maximum of agricultural growth that I would see, I saw here an example of the modern-day type of approach to agriculture and the promotion of the product, and typical of whatÓs in America; and this belongs up in America, not in Kona. This area is a place where, to begin with, the roads have been modified over the years as the traffic increased. Today, weÓre at the very top of our mode of traffic; and itÓs nothing to sneeze at. Yet, I saw this, when I saw there were buses that went in loaded with passengers who stopped at the edge of the road and here some type of approach where the traffic continued, with the vehicles that traveled by were faced with this congestion as people got off the bus, it was something that was not meant for Kona. agricultural community and the roadside was something that was m traffic than animal or any, or mechanical. And, yet, with this kind of activity going on there, it would be faced with modern advancements. And the fact that we have school buses, we have o transportation on Mamalahoa which are not supposed to be there, but then we were faced with huge buses that had to stop whenever other cars came by, I would say that this is the farthest thing from what you want to preserve in this area. 31 At one time it was bad enough where the plantation invoked -. But where the roads are narrow like they are in Kona, it requires a different attitude. And I looked at this here as a variation in the mode of agricultural and business practices. Unfortunately, we in Hawaii weÓre subject to an overthrow and a tremendous hope that was placed on this population to the extent that they made us believe that we had been annexed for over 250 years. And the fact is that in that 250 years we were subjected to constant bombardments of economical activity from America. And what you see today is nothing but a product of America that should be kept in America, not in Hawaii. But there are, of course, people who are now coming in who feel otherwise perhaps. But as an oldtimer in HawaiÒi, I would like to see our traditional methods of agriculture maintained. As I read the book of Captain CookÓs arrival, he had a botanical party that had traveled up in through the district of Kona, in the South Kona district mostly. However, the person who was in this group was a botanist, his name was Manzies; and it was, to him, a sight to behold. And as he puts it, it was an indication of an industry and an industry of people who had farmed in that area so that it was the most beautiful organization in the field of farming that he had ever seen anywhere in the world with any people, and it was most advanced idea of agriculture as he could imagine. However, this place they called the Kona Field System because an archeologist coined the phrase. Actually, itÓs known as the Mahinaai, not a mala, not a piapai, but a mahinaai. And when Kamehameha returned to Kona in 1812, he foun economic trouble. They were in famine because of their support his primary concern in coming back to Kona was to bring his people back to economic stability; and in doing so, he created this massive garden called Kuahewa. Northern extremity of this garden was Keopu and it ranged as far down as And to give you an idea of what was grown there is something that is not grown today. ItÓs called Òili Ò. ItÓs a taro, a variety of taro that measured 18 inches in diameter and about 18 inches or more inches in depth. With that size or form, itÓs no wonder that Kamehameha was able to pull his people out of famine into economic stability within a year. By the end of the makahiki season of that following year, 1813, his people were back in stability. And so I look at this as an indication in todayÓs terms that this method of agriculture or promotion of the product is something typical of what should be Yes, I can see that. But when it creates a hazard for the community, traffic-wise, and when it means that it, to our County government, a huge financial situation where we would have to create improvements to our highways for the sake o eliminated the safety hazards, I would say that perhaps it would not be worth that much of a gain to us. I would think that this kind of activity would be perhaps favorable in places where it is conducive, but not where we have a traditional mode that we are trying to preserve as a Planning Commission. And, so, therefore, I have a dim view of this project. Thank you. 32 GALDONES:Thank you, Mr. Roy. Commissioners -. Commissioner Springer? SPRINGER:IÓm wondering if in the transcript, is there reference to Khewa? While you were testifying, I scanned through there and I found no reference to it in the transcript. Is there any? M. ROY:Correct. Thank you for citing that because I told Ms. Broder today that she will receive in writing our concerns about the lack of her naming or providing in her writing, her recommendations today -. Oh, in the transcript, yes, yes, definitely. SPRINGER:Could you tell me what page thatÓs at? M. ROY:The transcript of the Contested Case Hearing, I do not have my copy here and it would take a minute, Commissioner, to find that but IÓm sure I can. SPRINGER:I didnÓt find it in the index but I -. GRAHAM:I found Khewa here on page 154. SPRINGER:Thank you. th GRAHAM:On March 18 transcripts. SPRINGER:Thank you. I was going to check it. You can get questions from somebody else. GALDONES:Okay. Any other Commissioners who would like to raise a question of Ms. or Mr. Roy? If not, Mr. Arai? ARAI:Thank you, Mr. Chairman. Good afternoon, Commissioners. I just want to state for the record that the Planning Director has forwarded his recommendation of approval regarding this Special Permit application and is also in support of the Hearing OfficerÓs report and recommendation, including itÓs Conditions of Approval. Speaking of Conditions of Approval, IÓd rather focus our arguments on the exceptions to those Conditions of Approval as outlined by the Applicant in the Statement of Exceptions st dated July 1. So if you could look at that document, turning to page 7. IÓll try to quickly go through these. But Item No. 1, the Applicant does take exceptions to Conditions 2 and 3 regarding the timing of water system improvements, Final Plan Approval and landscaping. Re Final Plan Approval and the installation of landscaping is required, we want to see that required before establishing the proposed use. Plan Approval looked at the adequacy of parking, the availability of, say, accessible stalls, the installation of appropriate 33 landscaping in which there is a condition about visual and noise mitigation. So those things should be in place and approved by the Department before the use is established. We have, however, no objections to the improvements, water system improvements being tied to within six months from the date of approval of the permit. The Applicant initially stated their concern is that they do not wish to shut down operations before, I mean, not having to shut down operations in order to comply with these requirements before a Special Permit has been issued by the Planning Commission. We have an agreement with the Applicant that we would allow fran property but there was never an agreement to allow public tours on the property while, prior to a decision on the Special Permit. So that being said, and this all goes back to things like the condition regarding the Department of Health requirements. Part of the tour is to provide food for the visitors. We want to make sure the requirements of the Department of Health are satisfied before that portion of the tour operation is available, made available to the public. Simple. And that is why we will still require or recommend that Conditions 2 and 3 be maintained, with the exception of the water system improvements being completed within six months. Item No. 2 regarding Condition No. 4 and that is based on, they believe that itÓs based on an erroneous assumption that uses allowed under the Special Permit must be subordinate to and supportive of ag activities. This all goes back to the requirement, the Condition 4, which states that they have to maintain at least seven acres in active cultivation. The Director support of approval, recommended, recommendation for approval of the Special Permit to allow a tour on this property is based on its association with coffee being grown on the property. That validates why we believe a tour is an usual and a reasonable use of the land in that particular location of North Kona. In the absence of coffee that has been grown on the property, we reason why a public tour should be established on that very piece of land. So we believe that it is wholely appropriate that this condition be maintained requiring at least seven acres of land in active cultivation, and those seven acres were something that was clearly represented by the Applicant in testimony during the Contested Case proceedings. Item No. 3 regarding Condition No. 5, looking at Condition 5.b, the Applicant will not agree to excluding company franchisees from the maximum 80 visit visitors per day was a number that was provided by the Applicant; and we feel itÓs, basically itÓs a number that weÓll be able to monitor and manage. At this point in time, they did mention there are about a thousand franchisees currently at Doutor Coffee. Who knows how many franchisees will be available years down the road. At least this way, with 80 visitors maximum, we are able to control and manage the number of people that do go on to the property and, likewise, you can then manage the potential impacts. 34 So we recommend that the condition be maintained, including comp the total 80 visitors. Item C, we would not agree to amending that condition to allow the use of 60-seat passenger buses. As I explained further, Condition 5.d, as in David, we are recommending that all parking be provided on site, including the loading and unloading of passengers. During testimony, the Applicant indicated that a large tour bus cannot negotiate the driver access going down to the parking area because itÓs so steep. So that by default would preclude the use of large tour buses anyway. And thereÓs also testimony, I think, not testimony but information provided by the Department of Public Works that did mention that Mamalahoa Highw designed for such large buses. So that was also taken into consideration. Condition 5.e is a condition that would exclude commercial weddings, I mean, IÓm sorry, weddings, concerts and conventions and other types of special events. We would ask that the condition be preserved as recommended by the Hearing Officer, with the exception of allowing special events associated with the Kona Coffee Festival Condition F is the applicant wanted to exclude or prohibit only amplification devices. We would recommend that the Hearing OfficerÓs recommendation that all amplification devices for speech and music be prohibited. And Condition 5.i, the Applicant recommended that access from th with the approval of the Planning Director be struck out. We would recommend that that condition still remain. Again, part of Plan Approval is making sure that thereÓs adequate and appropriate access to and from the subject property. The current access is, will probably be the same access that will be used to accommodate this tour operation; but, again, we want the opportunity to make sure that -. For example, weÓll be looking at the parking layout, making sure thereÓs adequate parking, as well as the location of the parking stalls. We just want the opportunity to make sure that access to the highway meets with the approval of the Planning Director in consultation with the Department of Public Works. The Applicant also wanted to modify the remaining portion of Condition 5.i regarding encroachments, having to remove encroachments within the Mamalahoa Highway right- of-way prior to establishment of the proposed uses. I would recommend just leaving the condition as recommended by the Hearing Officer. Our understanding is that the only encroachments are landscaping elements, so I donÓt see that as being very difficult for its removal within a timely manner. I think thatÓs all I have at this point, so I stand ready to answer any questions you may have. GALDONES:Commissioners, any question of Mr. Arai? Commissioner Kubota, you still want to raise a question regarding the 55 decibels? 35 KUBOTA:About what? GALDONES:The 55 decibels? KUBOTA:No, no, no. GALDONES:YouÓre okay with that? KUBOTA:IÓm okay with that, except that, now that I have the microphone again -. You started it, I didnÓt ask. Mr. Arai, so, therefore, youÓre saying that the CountyÓs position is that they will stay with all of the conditions set forth by Ms. Broder, except the one, the verbiage about the wedding? All else stays intact? ARAI:Everything stays intact with the exception of allowing the Kona Coffee Festival to be the only special event allowed. KUBOTA:Yes. ARAI:Also, the condition regarding completing water system improvements within six months from the issuance of the permit v establishing the proposed use. That was, the water system requi KUBOTA:No. 2. ARAI:Right. Those were the only two. KUBOTA:Thank you. GALDONES:Commissioners -? Commissioner Sprigner? SPRINGER:Thank you. IÓm wondering if the County is familiar wit boundaries of the Kuahewa, and if the County then takes them into consideration when analyzing requests such as this. I see it in the transcripts itÓs written in the lower case, as if it were a descriptive term like mahiai or mala. But itÓs a proper name, itÓs a proper place. And it is a significant place in its relationship, as has been described to the Ahuena and the Chief Kamehameha in particular. Now looking at this application, it looks as though the site is built out, massive water features are already in place and thereÓs quite a bit of infrastructure already there. But IÓm wondering if, for planning purposes, the County takes the Kuahewa into consideration and, if not, perhaps should be acquainted with it. ARAI:IÓm personally not aware of the entire boundaries at the Kuahewa in its entirety. IÓm generally familiar with the location of it as it affected this property knowing that a large percentage of it has been altered already. The Department of Land and Natural Resources did approve appropriate mitigation measure 36 destruction of portions of the site; and we accept that as adequate. However, the Applicant in testimony also indicated that no further improvements to the subject property were required in order to accommodate the tour operations. So in light of the fact that no additional improvements were foreseen, we felt that no special conditions or restrictions were necessary. SPRINGER:Thank you. While I appreciate the idea that has been articulated by some of the testifiers today, to farm in that way, to farm those crops in that way is certainly the prerogative of any of the landowners who own properties which now, now which once were a part of the Kuahewa. But because of its uniqu association with a historic figure, itÓs a named site rather than a descriptive term. I think that the County Planning Department might do well to have the boundaries articulated for it and to be mindful of it in processing applications in the future. Thank you. GALDONES:Commissioners, any further questions? Commissioner Graham? GRAHAM:Daryn, this is going not so much to a condition or anything like that but sort of a general justification for the project, you know, which I have some concerns. ThereÓs a number of conditions that a project must me Special Permit and, in particular, IÓm thinking of the Conclusio Ms. Broder. And on page 24, one of the criteria we use is, it says, ÐThe land on which the proposed use is sought is unsuited for the uses permitted within the district.Ñ We got through hearing a short awhile ago Ms. Broder say, and IÓm quoting since I wrote it down, ÐThis area is one of the best places in the world for growing coffee,Ñ and she went on to say ÐitÓs actually a prime area for growing coffee.Ñ Now, when I look at what she has written in the thing here, looks like on the second or third sentence, it starts, ÐThe Planning DepartmentÑ or even going up above, again, this is No. 8 on page 24, ÐThe Planning Department feels that certain non-agricultural uses may be appropriate on lands that are suited for agriculture such as the soils found within the project site.Ñ Given that, if Ms. Broder is correct about this being one of the prime places in the world for growing coffee, I donÓt see why the soils found on the project site should make non-agricultural uses appropriate for it. And, furthermore Use Agriculture section of the County General Plan, I took, this is the existing General Plan, IÓll, just a second here, IÓm reading out, it, says, ÐIn addition to the agricultural land usage relating to the growing of the products, agricultural land uses also include those relating to the packing, processing and manufacturing of the products which may be more industrial in character but are nevertheless agricultural.Ñ However, it certainly doesnÓt say anything about promotion of the products. So I donÓt see why, based on the nature of this land, how Ms. Broder characterizes it and how the County General Plan characterizes what are acceptable non-agricultural growing uses, the County could feel that this is appropriate to have this promotional use in the middle agricultural parcel. ARAI:What it comes down to is balance. Again, part of it is the Applicant did indicate that no further improvements, alterations, I mean, no further improvements upon the land or additional land wouldnÓt have to b 37 agricultural uses in order to accommodate the proposed tour oper heavily. But, at the same time, because lands may be appropriat quality soils may be, may exist to support agriculture, it doesnÓt mean that every square inch cannot be dedicated toward non-agricultural uses, toward agricultural uses. We try to seek a balance between the use of land. And in some sense that in order to promote agriculture, there are certain types of non-agricultural uses that may be wholly appropriate, and this is a case in point. The lands are good for growing coffee, but it doesnÓt mean that certain non-agricultural uses like these type of tour operation being proposed is inappropriate, simply because of the value of the land for growing coffee. GRAHAM:I donÓt want to sound argumentative and I think I reached clearly -. My sense is the owner of an ag land is pretty much free to do wh land like any other owner, but we want to keep ag lands agriculturally productive if theyÓre well suited for it. So we donÓt want to open up commercial activity in non- agricultural ways on ag lands because then it promotes pulling lands out of agricultural activity if they have just as good or greater commercial value otherwise. And thatÓs what it feels like is happening here, to some degree at least, by having these commercial operations on this land. Thank you. ARAI:Well, sorry, were you expecting a response to that -? GRAHAM:No. ARAI:Or itÓs just a statement? GRAHAM:ItÓs just a statement. ARAI:Okay, thank you. GALDONES:Commissioners, any further question of Mr. Arai? Ms. Roy, you have a statement youÓd like to make? M. ROY:Yes, thank you, Mr. Chair. Just a short response. I thi Mr. Arai made mention of, that the Applicant did mitigate and fu requirements by the State for historic properties on his site. That is not the truth. They have failed in mitigation activities with the State. This has been our concern. If youÓll go to page 11.30, I read in the middle, ÐThe area of Site 20847 that was to be preserved was to be properly fenced off.Ñ GALDONES:Page 11? M. ROY:Page 11, yeah, ÐAn archeological monitor was to be present as a condition of receiving a Grubbing Permit and of acceptance of the Archeological Survey. No archeological monitor was present during the grubbing. Approximately 90% of the agreed-upon permanent preserve area for Site 20847 has been damaged and destroyed by grubbing and grading. The terrace face, that was to be the mauka boundary of the 38 preserved area is the only portion of the preserved area that remains intact. Dating of other features present on the parcel excluding 20847 indicate radiocarbon dating back to 1400 A.D.Ñ In addition, on a neighboring parcel owned by this Applicant, this is the Haleolono Heiau. We have, and the reason I made my earlier statement that the integrity of this Applicant, if they cannot in their processes for fairness in handling their agreements with government entities, what are we to expect within much more valuable site next to it, a haleolono? In Hawaiian perspective, one does not find a heiau, in, such a heiau which is given to honoring the God Lono, were not for a very important productive agricultural area; and this would be appropriate for this place, Kuahewa. GALDONES:Thank you, Ms. Roy. M. ROY:Thank you. GALDONES:Commissioners, if thereÓs no further questions, I would like to call for a short recess before we call upon testifiers from the public who have signed up. TSUKAZAKI:Excuse me, Mr. Chairman, I had earlier, I had reserved the right to make some clarifications based upon statements that have been made. Shall I wait to do that or should I do it now? GALDONES:I will give you an opportunity for closing statements a testifiers. TSUKAZAKI:Thank you. CARTER:Can I make a one-minute statement? IÓve signed up to talk but I have to leave at 4 oÓclock. I have to teach a class. Just one minute, thatÓs all it takes. GALDONES:Okay, begging the indulgence of the Commissioners, could you raise your right hand, please? CARTER:Yes, sir. Do you swear or affirm to tell the truth on the subject matter now before the Hawaii County Planning Commission? CARTER:I do. GALDONES:Could you please state your name, your resident address and you may begin your testimony. CARTER:My name is Matt Carter, 73-1238 Loloa Drive. My connection to all of this is as an interest in small businesses here in Kona and we want to work with Doutor in the tourist industry; and that I believe IÓm the person maybe the Roys were talking about. IÓve been here only 10 years. I do have a deep respect for the land and for 39 the way tourism goes. But I think the issue has been confused here between all this talk; and that is, this is an agricultural land, itÓs not intended to be Disneyland in any way, shape or form. It is a producing coffee farm and it will remain for the duration of its life. But thereÓs many ways to enjoy coffee other than growing it, other than drinking it. Especially itÓs a Japanese company, and you know how Japanese love their nature, and they love to sit by the trees or look at things grow; and theyÓve added this little section to walk through and see native Hawaiian fruits and flowers and plants. And of all these issues that have been brought up, all these stipulations and restrictions on the proposed permit, for example, no music? What kind of land d canÓt play music through a radio amplifier? ItÓs ridiculous. I can do that in a retirement home. What kind of land can I take my friends in and have a small wedding? You know, the noise restrictions up on the highway there -. As running tour companies for a long time here, weÓre only going to offer something safe. WeÓre not going to do anything to jeopardize the community, anything to jeopardize the guests, anything to jeopardize employees. And my basic point is this and just from your last comments, Mr. Graham, is the intention is this will stay a coffee farm. ItÓs a first-class operation, not in an exclusivity sort of way but in the way that they think about participating as a member of the community. ItÓs completely first-class, meaning every infrastructure thatÓs required will go in not because itÓs required but because thatÓs the way to do it, thatÓs the safest way, thatÓs the most logical way to do it. How can you restrict the big buses going down that highway? They go down there every single day. How can you say that a coffee farm can have some commercial aspect because UCC and Greenwell and every other coffee farm up and down the coast has commercial activity on a daily basis. Do they have this permit? I donÓt know that answer. But do they have it? So I just want to say that I strongly urge you not only to grant this permit today but to embrace it because youÓre accepting a beautiful, a wonderful place into the Kona community thatÓll help to create jobs, to promote Kona coffee, to promote agriculture, education and everything else. ItÓs a win-win deal all the way across the board in a first- class situation. Thank you. GALDONES:Thank you, Mr. Carter. Commissioners, any questions of Mr. Carter? Otherwise, the Chair will call for a five-minute recess. RECESSEDThe Chair called a short recess at 3:59 p.m. RECONVENEDThe meeting reconvened at 4:11 p.m. GALDONES:The HawaiÒi County Planning Commission is back in order. We have two and perhaps three from the public who have signed up to testify. Norman Sakata and Curtis Tyler, and IÓm not sure if Mark Van Pernis is still here. Norman Sakata and Curtis Tyler. 40 Mr. Tyler, you have already been sworn in. Mr. Sakata, please raise your right hand? Do you swear or affirm to tell the truth on this matter now before the HawaiÒi County Planning Commission? SAKATA:I do. GALDONES:Mr. Sakata, I will start with you. You can state your name, your residence address and you may begin your testimony. SAKATA:Thank you very much, Chairman Galdones, members of the Commission. My name is Norman Sakata. My mailing address is P.O. Box 307, Holualoa, HawaiÒi. IÓm the president and the General Chairman of the Kona Coffee Cultural Festival. In this position, IÓm here from the Festival to ask this body for your consideration to exempt the Kona Coffee Festival as one of the special usage on this permit thatÓs before your, before you at this time. IÓm very happy to hear that Mr. Krueger in representing his client and Mr. Arai, both, have no opposition to staging the Festival at your, staging here a coffee picking contest at our Kona Coffee, during our Kona Coffee Cultural Festival at the Doutor Coffee Company. I might add here that for the last five years, Mr. Toriba who is the president of the Doutor Coffee Company had been a sponsor of this event; and I might add that this is one of the highlight events of the Kona Coffee Cultural Festival. WeÓve been having more than 40 events going on throughout the 10-day affair. The Kona Coffee Cultural Festival is HawaiiÓs oldest food festival and the only coffee festival in the whole United States. So we attract not only national attention but we attract attention and sponsorship from various parts of the world. I might add that we have a huge sponsorship coming from Europe and a number of spons Far East, including Mr. Toriba and Doutor Coffee Company. For us itÓs very important that we have this body who have a very influential say in, to the County Council in this matter, to get this reply as soon as possible, considering that the Festival is only two months and one week away and we need to commitments by, we need to print 25,000 magazines to promote thi to find sponsors again. And IÓve already written to Mr. Toriba for his generosity to continue his sponsorship and, of course, I have not received a reply for the reason, I can, itÓs all this, that heÓs waiting for the final decision from this board, this Commission and the County Council. I hope that this decision can come as early as possible because we need to make our commitments, also. And the Festival, for your information, is a very, very large event. ItÓs a 10-day event which consists of more than 40 events. We work with more than 50 volunteers throughout the Festival. And I might add thereÓs one, another thing that Mr. Toriba hosts us during the Festival; and that is at the completion of the Festival, in appreciation for all the volunteers serving the Kona Coffee Festival, he hosts a luncheon for us, a sort of a mahalo luncheon and not a c anything. He just hosts this for us just to say thank you for the service that we do for the community. 41 I hope this Commission will take that also in consideration. But more important right now is that you also come up with a decision that this coffee picking contest as part of the Kona Coffee Cultural Festival will be one of the exempt, exempted event that can be held at the Doutor Coffee Farm. GALDONES:Thank you, Mr. Sakata. Commissioners, any question of Mr. Sakata? Thank you. Mr. Tyler? TYLER:Good afternoon, Mr. Chairman, members of the Commission, thank you for the opportunity to testify on this item before you. And, although I thank Mr. Sakata for attributing decision-making to the Council on this matter, I donÓt believe that that is the case. I think youÓre the final arbiters with respect to this request; and thatÓs one of the reasons IÓm here this afternoon. Over the last few years, IÓve had a number of calls from area residents who have expressed complaints, concerns, negative comments regarding this project and some of the activities that have been going on over there. IÓve had a number of meetings with Mr. Yokoyama over the years. So I have some familiarity with whatÓs going on although I did not attend, as you know, I did not attend the Contested Case proceedings. I have read the Findings of Fact, Conclusions of Law and Decision and Order and I concur with the Planning DirectorÓs recommendation. And, in addition, I want to also lend my support to the Kona Coffee Festival as a possible exemption. ThatÓs a very good program and I think we all know that, I wonÓt take up any more time. Mr. Sakata has already spoken eloquently about that. I do feel, however, that this organization, Doutor Coffee Company, has consistently shown that it is, seems to be above the law. And this, in it of itself, whether advertent, inadvertent, or otherwise, continues to create problems for people that I represent in this community, some of whom are in this room. I canÓt imagine that this esteem body would grant a permit when, in fact, it has been demonstrated to you that the illegal activities are going on despite the violation order and the Cease and Desist. I hope you will not open the door to anyone for committing illegal acts, especially as it relate to State Land Use law regulations. I disagree vehemently with Mr. TsukazakiÓs obj they will completely open the door for more and on-going continued illegal activities. And there was no basis, in fact, for them to be able to do that since, in fact, they have continued to do so despite what the Planning Director and his staff have told them. This is not a clear demonstration of acting in good faith on their part. And if we were nation of people that just called up and said, ÐWell, I know so-and-so and this and that,Ñ thatÓll be one thing. We are a nation of laws, on the other hand, most importantly, and that is what made this country great; and you need to adhere to that. The idea that we may strike a balance that Mr. Arai mentioned, I take exception to him unless I misunderstood him. This is not a question of balancing it with commercial 42 activity. I donÓt believe that you will find that commercial activity is allowed under 205, HRS 205. I could be wrong. As you know, IÓm not an attorney and weÓll have to rely on Mr. Torigoe, although he and I have had differences in the past. But, I think itÓs really important. Mr. Graham touched on, and others who have come and spoken today Intervenors, about the importance of agriculture, not only to the culture and history of this place but also to its well-being and its future. And our Constitution, which weÓve all taken an oath to support and defend, not only the national one but, in particular, the State one, addresses the importance of ag lands. And while the mandat lands and a mandate not to reclassify unless thereÓs a two-thirds, or a rezone unless thereÓs a two-thirds majority, it doesnÓt apply specifically to the permit that is being requested here. I think in the spirit and intent, you know, you would do well to consider what the Constitution says because that is your oath of office, mine. The idea that some of these activities are agricultural activities, I think as Mr. Krueger has pointed out and I know Mr. Yokoyama has pointed in times gone past, in my mind they donÓt meet the duck test. You, of course, are the final arbiters and youÓll decide that. But I just want to share with you my own thoughts because I had carefully, IÓve listened to the people here, and I think I do have some grave concerns about it. Mr. Carter said this was not intended to be Disneyland. However, if you go up there and take a look at this versus traditional and customary farming in Kona as it relates to a coffee farm, I think you will agree that this looks a lot more like Disneyland than it does farming; and with all due respect to Mr. Carter, whoÓs not here to rebut my comments. But I think youÓve been there, you know what itÓs like. This is an agricultural, predominantly agricultural and residential area. It has been for as long as I know, and I can remember over 50 years worth. This is activity. And your, the request before you is clearly, in my mind, to legitimize what are and continue to be illegal activities, as noted in the violation order and letter from the Planning Director. This morning, on the only other item youÓve heard, Commissioner Kubota made some very important and cogent comments regarding infrastructure, regarding planning, I believe some of it referred to highways, although I wasnÓt here for the early part of your hearing, as I said. And she passed on to the Council, the need for us to address because weÓre the final arbiter, the need to address these kinds of things with respect to roadways, infrastructure. And, indeed, I spoke to her afterwards and said, ÐWell, it needs to be a joint effort. It really is the Planning, and the Public Works, and the Council through the General Plan.Ñ But, in this particular case, you are the final arbiters. You canÓt pass this one off to anybody. And I would strongly urge you to, as IÓm sure you will do, despite the lateness 43 of the hour, give very careful consideration to everything youÓve heard so that you will not set a precedent for an area that is clearly rural in nature. This is not an urban area, thatÓs why there are no commercial activities allowed, no industrial type things. And keep in mind, with all due respect to Commissioner Fujikawa, that although school buses do go on there, 80-passenger tour buses are not appropriate on this road. You heard from me probably well over a year ago, I think, when this matter first came up, I was very concerned about public safety on Mamalahoa Highway 180. And there have been relatively few improvements there; and the kinds of activities that have been chronicled in the Findings of Fact clearly show you that, you know, there were improper activities going on. And if you, my personal feeling from the bottom of my heart is that if you allow this permit to go forward, as Mr. Tsukazaki envisions, you will compromise the public health and safety and the lifestyle of the people that are here now. I urge you not to do it and I urge you not to weaken the recommendations of the Hearing Officer with the one exception that I mentioned, that was asked for also by Mr. Sakata. And, finally, Mr. Chairman, and I certainly have contributed to some portion of this but, itÓs 4:25 in the afternoon, almost 4:30, youÓre not even through item No. 2; and you have some extremely important business before you. It is important not only to you, sir, and members of the Commission, but it is very important to the members of this community. And I would respectfully request that when youÓre done with this matter that you continue these other matters to a future meeting in Kona unless thereÓs some legal reason why you cannot do so. Because the issue of SMA 03-007 has some significance, Hawaii Hospitality Group also has significance, itÓs a 76-room hotel right in the middle of Kailua-Kona; and, finally, the fifth is Kona Coast, LLC has about as big an impact as I can imagine in one particular application. There are members of the public who cannot be here today because of the length of this hearing and the fact that these are not being heard in a time as it was announced. I realize thatÓs not your fault, you need to hear it. But may I respectfully request, Mr. Chairman, that you seriously consider and take a vote, maybe, of the majority of the members to see if you can continue these so that members of the public as well as some members of your Commission will, all members of your Commission will be able to hear these. Thank you, sir. GALDONES:Thank you, Mr. Tyler. Commissioners, any question of Mr. Tyler? Otherwise, thank you very much, gentlemen. IÓd like to call back the Applicant to the table for closing statements; and, Mr. Tsukazaki, if you could wrap it up within the quickest time possible, hopefully within five minutes, it would be appreciated. TSUKAZAKI:IÓll start with Councilman TylerÓs comments. He compl the illegal activity going on on this project. If heÓs concerned about illegal activity, then he should get together with the Planning Department and go enforce the law against all the other coffee farms in North Kona and South Kona who are doin offended at this point by the various partiesÓ attacks on my clients as being dishonest, etc. Give my client some credit, of all the coffee farms during tours in Kona, my client is the 44 only one before you. That counts for something. TheyÓre not doing things intentionally to be illegal. TheyÓre trying to get legal. They may have a different understanding of what you think or what the Planning Director thinks as to what is legal. Councilman Tyler says, ÐYeah, weÓre a nation of laws.Ñ LetÓs look at the law, then, okay? LetÓs look at the law. The problem is, as we tried to argue to this body earlier, the myth is that the agricultural district is for agriculture, or only for agriculture, primarily for agriculture. ThatÓs wrong. The agricultural district, as defined in Chapter 205, Mr. Graham, clearly states it includes marginal lands, lands that may not be good for agriculture. So itÓs kind of a holding district, okay? So 205 provides that in this agricultural district, you can have public -. This is in Class A and B soils. State law lets you have public and private open area types of recreational uses, including day camps, picnic grounds, parks, riding stables, etc., okay? I mean, thereÓs little stuff that allows energy production, and so on and so forth. Class C, D, E and U, this property is Class C. What does State law allow you to do? Open area facilities including golf courses and golf driving ranges, uses that are accessory to agriculture. And so we have argued from day one, u public visitations to the property, to observe the agricultural activity going on, thatÓs a permissible use. And with all due respect to Mr. Yuen and whomever else is out there, this is what we believe, State law provides this. This is at the very least an open area recreational use. Picnic grounds, we have a picnic ground. Park, we have a park. Your County Code in the agricultural zone allows you to have botanical gardens. So are you willing to tell me that you can have a botanical garden as a per can come there? You canÓt have a tour? You canÓt let people come and see the garden? So, itÓs ridiculous. LetÓs get it real on this, okay? And, again, the problem is and the myth is perpetuated by the Planning Department saying, ÐGee, you that you can get a Special Permit is if youÓre going to be accessory or support an agricultural activity.Ñ ThatÓs bull. This Commission has granted Special Permits for churches, industrial facilities in the ag district. Obviously, that has nothing to do with agriculture. Okay? So letÓs stop the bull, letÓs stop the bull. And if someday we can agree and theyÓre going to continue to try and violate my clientÓs rights, then maybe a court has to decide. But IÓm asking this body, I know you guys can read, okay? ItÓs right there in the law, okay? IÓm not making this up, I can cite you to it. Look at Chapter 205-2, Chapter 205- 4.5, it has everything that I just said. So, in that context, that the agricultural district is kind of a multi-use district, true, agriculture is a big objective within an agricultural district. But there are many other uses which are not related to cultivation of crops or raising a livestock. TheyÓre permitted with no permit. Okay? So IÓd like to reiterate that point because it really bothers me that this continual discussion goes on about how this has to be ag and thatÓs the only way you can have anything here, no commercial use in an ag district. What do you think a commercial farm is? ItÓs a commercial use. Okay? Excuse me for getting a litt 45 I wanted to really, quickly, do I have one minute left, Mr. Chairman -? GALDONES:You have -. TSUKAZAKI:Comment on what Mr. Krueger has said. He has said alcohol is being served there. Evidentiary record says alcohol was served at an employee party, once, okay? Alcohol was not served -. Mr. Krueger says my client is illegally selling non-agricultural products on site. False. No coffee mugs, no tee shirts, no nothing. Coffee grown? Yeah. HeÓs selling coffee. Okay? So I donÓt know where people start getting off making these allegations. The reason that they applied for this permit is to get approval to sell mugs, tee shirts and all of that because they felt that that wasnÓt clearly allowed under the law. So thatÓs why they came in and filed the application. Okay? He says then in Sherry BroderÓs report, Sherry Broder says when the large bus comes back to the property to pick people up, thereÓs people loading, embarking in the lane, in the roadway. I looked at her report, doesnÓt say anything like that. Her report says that when people come back and people load onto the bus, they load on the mauka side, which is the highway side. But she doesnÓt say theyÓre in the lane as theyÓre getting on the bus. Okay? I need to make all these things clear because IÓm just afraid that the Commission is getting a picture much different than what was presented in evidence. I think, again, I said, you know, Mr. Arai has indicated that weÓre not entitled to do the tour until we get the permit. We respectfully disagree. He quotes the 80 visitors being our number. If you look at our application, we say 80 guests, okay? So guests does not mean on our own franchisees, people who have an interest in the business. So, yeah, if you want to use our words, letÓs use our words and say they are guests, public guests. Lastly, last point, the large bus again. I submit to you nothing on the evidentiary record indicates that any traffic hazard itself is caused by one large bus. ThereÓs no evidence of any accident there. In fact, the traffic study is the opposite way. It indicates that with the tour activity, the level of service on that road remains at Level Service B, which, you know is a fairly high level of service. But there isnÓt anything in the record to really support the idea that having one bus a day is a traffic hazard in and out. And, again, I appreciate that the Commission understands that itÓs somewhat discriminatory to tell my client they canÓt even have one large bus a day when there are heavy vehicles, heavy equipment, including buses, going down that road at all times, including two other coffee farms who are doing tours without a permit. And, by the way, you know, if you wonder why the Planning Depart addressed those is because the Planning Department doesnÓt want to enforce any of that, even though weÓve given them in evidence 20 or 30 different farms who are doing the tours. They donÓt feel that they can enforce any of the laws against those farms unless somebody makes a complaint. Now we do not want to bring that upon other coffee farmers so we have not filed a complaint. But itÓs on the record, in the evidentiary 46 record, how many other coffee farms are doing tours. So, please, if youÓre going to lay something on my client, letÓs lay it across the board. All my client wants is a fair, is a level playing field and not to be discriminated against. Thank GALDONES:Thank you, Mr. Tsukazaki. Commissioners, any question Mr. Tsukazaki? Commissioner Kubota? KUBOTA:Not of Mr. Tsukazaki. But I would like to hear from our Director in response to what Mr. Tsukazaki said. Because I find it quite important to me in my decision-making in regards to the many other tour buses that are in operation, and such and so, every allegation that Mr. Tsukazaki just mentioned, that I would like our Planning Director to respond, because IÓm in the dark about it. GALDONES:Okay. The Chair will allow Mr. Yuen to provide that information. Mr. Yuen? YUEN:Sure. A few months ago, the Planning Commission dealt with this question of whether an agricultural tour with facilities like that, weÓre talking about in Doutor Coffee, is a permitted use. And the Planning Commission important and supported the DepartmentÓs view that itÓs not an automatically permitted use, that it needs a Special Permit. You took a vote on that. The reason I say thatÓs very important is that if itÓs a permitted use, you can just go and do it. Remember the 500 people a day that Doutor concedes as a mistake? If itÓs a permitted use, they can have the 500 people a day come, they can have the buses stop all day long, and thereÓs nothing we can do about it. ItÓs a permitted use. WhatÓs before you today is really the way the system is supposed coming in for a permit, weÓre glad that theyÓre coming in for a permit with certain conditions that are necessary to take care of some of the problems that can come up. WeÓre comfortable with our recommendation, and we Commission passes the permit with those conditions and that Doutor does well in the future. Your question as far as other activities, other uses, if we have a complaint, we will investigate and we will treat them the same as we treat everybody, the same. I donÓt know of having a complaint that we received or are investigating regarding other agricultural tours. KUBOTA:Please repeat the last sentence? I lost it because -. YUEN:If we receive a complaint about an operation, weÓll investigate it and IÓm not aware of any complaints that we received about any other tours. IÓm not aware of any investigation going on of any other operation. What is going on with other operations, I donÓt know. KUBOTA:You donÓt know because you have not had any complaints? 47 YUEN:That weÓve investigated, right. KUBOTA:That youÓll investigate? YUEN:Right. KUBOTA:And the law says that you cannot go up there and investigate until such a complaint is made by a person or a group of people? YUEN:No, we could investigate a complaint on our own motion. Bu generally, almost all the investigations we do are in, are in response to complaints. And thereÓs a reason for this, is that most of things we are concerned about. And we give first priority to things that are bothering people in the area, that are bothering them and they make complaints about; and thatÓs where we put our investigative resources, for the most part. KUBOTA:I see. Thank you for your explanation. But this doesnÓt mean that there arenÓt things that are going on that Mr. Tsukazaki alluded to. YUEN:There may be. KUBOTA:You donÓt know that, do you? YUEN:I donÓt know that. KUBOTA:Okay, okay. But neither do you know that it is there. GALDONES:Commissioner Graham? GRAHAM:Ben, excuse me, I donÓt mean to be argumentative. I can understand where your emotion could come from if you see thereÓs a lot of other people doing the same thing that are not applying for permits and your client is. However, in this particular case, you are applying for a Special Permit, and the State law says the County Planning Commission may permit certain unusual and reasonable uses; and, so, weÓre here in that respect. And we have our own rules, as well as the County General Plan, and other things we must go by. And when I speak to a rule which tells us one of our criteria is that it must be unsuited for the agricultural use, then IÓm going to question whether this land is unsuited for that use; because thatÓs the rules we go by. And there are other of our rules that weÓre going by that I also feel are problematic for this application; and I donÓt think itÓs appropriate for me to do anything different than go by the mandate that I received from the rules of the Planning Commission. So I donÓt think youÓre hoping or wanting that I do different than that. If you do then just let me know. TSUKAZAKI:Have you read the exceptions that we filed? 48 GRAHAM:I have read a lot of materials, a lot of those, including your exceptions and the full transcript of all the hearings. TSUKAZAKI:Did you see the portion of our exceptions where weÓre pointing out that the rules that you say you want to follow are inconsistent with the State Supreme Court case and the Land Use Commission rules? GRAHAM:I believe it was your finding where it had the Neighborhood BoardÓs Supreme Court case, which I read in its entirety. TSUKAZAKI:Right. You know, what weÓre saying is thereÓs a misinterpretation of your rules that all of these criteria have to be satisfied. ThatÓs contrary to State law, itÓs contrary to that case. That case is saying that all of these statutory criteria are guidelines to be considered by you, but not that each one has to be satisfied. So thatÓs what we were trying to point in our exceptions, okay. So the duty of the Commission, in our view, is not to go down each one and go, yeah, yeah, yeah. ItÓs to determine, of all those criteria or guidelines that are set which are applicable, you know, and the extent to which the proposed use is consistent with those. Okay? So I think you would be doing a disservice to yourself and probably doing something improper if you only look at Special Permits in the context that they can occur in situations where land is unsuited for agriculture, Òcause thatÓs not the law. GALDONES:Commissioner Graham? GRAHAM:Yeah, just one point first. I donÓt believe I made any representation nor do I have in my mind that every condition must be met. There are a number of conditions, and I pointed to one of them which I felt was not met. And I asked Daryn why the County Planning Department felt that it wasnÓt met, and I do have other conditions that I will bring up. I think, Mr. Yuen, maybe had a comment on that, also? YUEN:I did want to say that the Department would agree with Mr. Tsukazaki that, in this respect, you can get a Special Permit on lands that are good for agriculture, that are suitable for agriculture. It generally is, you would say that the fact that the lands are suited is a strike against getting a Special Permit. If theyÓre unsuited, itÓs a count in favor of getting a Special Permit. But it does not, the fact that these lands, for example, are good for agriculture does not disqualify it. I think that in our write-up, we may not have made this point sufficiently clear. The lands are, in fact, suited for agriculture. GALDONES:Commissioners, any further questions? If not, Commissioners, I will be closing the discussions and the debate and go into decision-making. Okay. What we have to deal with before us is the Findings of Fact and Conclusions of Law that was prepared by Sherry Broder. Also, I would like to mention at this time that Mark Van Pernis wanted to speak but he had to leave earlier, but he has provided to us a written testimony for our consideration, also; and IÓm sure you folks have received that and have read that. Commissioners? Commissioner Kubota? 49 KUBOTA:Mr. Chairman, in rendering a decision on this application, what is the procedure that you want us to follow? Do you want us to go with the motion to approve or deny first and then go through the conditions as presented to us by the Hearings Officer one-by-one with amendments if there are any that are necessary? Or, if there is an amendment that the maker of the motion wishes to mak offer that amendment at that point or before the motion is made? GALDONES:Thank you, Commissioner Kubota. The process weÓll be following is the maker of the motion shall incorporate the motion, along with whatever amendments that the maker would like to make. And if further amendments are introduced by any of the Commissioners, that we will deal with t whatever amendments are introduced. And having disposed of all of the amendments then we will go back to the main motion. KUBOTA:Thank you. Having had that information -. TSUKAZAKI:Excuse me, Mr. Chairman, I forgot to -. Earlier in the hearing, we discussed the condition regarding weddings, concerts, conventions, and that kind; and I acknowledged that our proposed revision was faulty. During the recess, we came up with additional language which weÓll try to clarify it, clarify what we were talking about. I can give that to staff or I can read it into the record. But we would like, if the Commission is going to consider possibly looking at amendments to Condition 5.e, we would like you to consider this language as being clearer than the language that we had talked about earlier. GALDONES:Okay, Mr. Tsukazaki, could you hand that over to Norman itÓs considered, then he can enter that into the record. Norman, could you read out the amendments introduced by Mr. Tsuk HAYASHI:Okay. This would be Condition 5.e, as in Edward, and the proposed revised condition by the Applicant reads as follows: ÐThe site shall not be used for group functions (such as commercial weddings, parties, craft fairs, etc.) that have no direct bearing to the agricultural activity on the subject site. With that understanding, the coffee-picking contest and gathering (Kona Coffee Cultural Festival) held at the site the past few years will be deemed appropriate.Ñ That is the proposed revised condition. GALDONES:Thank you, Norman. Commissioner Kubota? KUBOTA:Mr. Chairman, let me see if I can do this in a very cogent manner. I move that Special Permit Application 02-010 be approved by the Planning Commission, subject to the following conditions, as submitted by the Hearing amendments. Can I just go by No. 2, say No. 1 is okay, No. 2 which has to do with the daily water usage be amended to reflect -? 50 GALDONES:Ms. Kubota -. KUBOTA:Yes? GALDONES:Your main motion will accept all of what is produced by Ms. Broder except for the amendments that you will introduce? KUBOTA:With, except, that I propose at this point? GALDONES:Yes. KUBOTA:Okay. In No. 2, insertion of the six months be added. No. 5.e, the language to be inserted as read by staff. Deletion of Condition f. Excuse me, rewording of Condition f an amplification devices. I would like to delete the word ÐspeechÑ but leave in -. No, excuse me, the way itÓs worded, I would like to have it read like this: ÐUse of amplification devices for speech shall be prohibited throughout the subject project.Ñ That leaves in music. It doesnÓt say, so I do I add in Ðmusic,Ñ Ðexcept music?Ñ ÐMusic shall be allowed.Ñ ThatÓs my intent, okay? And IÓll speak to that later. I think thatÓs about it for now. Thank you. MCCALL:Second. GALDONES:It has been moved by Commissioner Kubota and seconded b Commissioner McCall that Application SPP 02-010, with the Findings of Fact and Conclusions of Law and Recommendation by the Hearings Officer Sherry Broder be approved with the amendments to the Recommendations, No. 2 to ad proposed by the Applicant; amend 5.e as earlier read by Norman, and amending 5.f to allow amplification for music. Discussions? FUJIKAWA:Yes. GALDONES:Commissioner Fujikawa? KUBOTA:Wait. Let me speak to my amendment first? GALDONES:Okay, I will allow you to do that. KUBOTA:Thank you. The reason I am taking the liberty of proposing that we delete the prohibitive use of amplification devices for speech only is that music is, the decibel, the loudness is already controlled by the 55 decibels limit that is already set in one of the conditions, oh h, the noise level. So, therefore, I feel that although speech by 51 bullhorns are maybe unpleasant to hear, music canÓt be that disruptive; and I think it ought to be allowed. GALDONES:Commissioner Fujikawa? FUJIKAWA:Yeah, question on, the Applicant requested the one bus per day. Now the problem arises, where is the bus going to be parking? Now would it be okay if we grant them a one bus per day and with a drop-off and turn aro out of the area and using the cell phone to call the driver back to pick up the people? GALDONES:An amendment to the main motion -. FUJIKAWA:Yeah. GALDONES:Is in order. FUJIKAWA:Yeah, itÓs an amendment to the main motion. But this is to approve the request of the Applicant to one bus. I guess that would be under 5.c, passenger vehicle used to transport visitors to the site not to exceed 15 passengers. GALDONES:Commissioner Fujikawa, are you referring to -? FUJIKAWA:The Hearing OfficerÓs, page 30. GALDONES:Okay. And what, your amendment would be the exception was introduced by Mr. Tsukazaki. And would that be on his page Item d? No, I donÓt think that was it. KRUEGER:`Page 8.c. GALDONES:Page 8.c. Thank you, Mr. Krueger. ÐThe use of 60-passenger buses (Òlarge tour busesÓ) to transport visitors to the subject site shall be limited to one per day,Ñ is that your amendment? FUJIKAWA:Limit it to one, with the exception that they would do a drop-off, and turn around and leave the area, and then be called back to do a pick-up. GALDONES:Okay. That would be an amendment to the Recommendation Okay. Is there a second to that amendment? KUBOTA:Can I second it? GALDONES:Yes, you can. KUBOTA:IÓll second it for the sake of discussion. 52 GALDONES:Okay. It has been moved that the motion be amended to in the Recommendation be amended to read as proposed by Mr. Tsukazaki and the language is contained in his exception page 8, identified as c, and it reads: ÐThe use of 60-passenger buses (Òlarge tour busesÓ) to transport visitors to the subject site shall be limited to one per day.Ñ Discussion on the amendment? Commissioner McCall? MCCALL:Yeah, I do not approve of this amendment to the, to this think that we need to hold this, you know. I mean, IÓm willing to allow a Special Permit, to vote for a Special Permit with some fairly strong restrictions. I donÓt think large buses should be allowed up there for this, making something like this where weÓre going to say that they can drop them off but they canÓt park or whatever. ItÓs another thing thatÓs just going to make it more difficult to police. My feeling is if, you know, if weÓre going to allow them, we need to allow something concrete, small and enfor donÓt know what the procedure is but I would prefer that this amendment not go on the original motion. GALDONES:Any further discussion on the amendment? Commissioner Fujikawa? FUJIKAWA:Yeah, I donÓt want to discriminate against the tour buses but there, again, on the other part, every day there are concrete trucks, dump trucks, semi-rigs and all of that, with a PUC license on it. So I donÓt want to discriminate against tour buses. GALDONES:Commissioner Mina? MINA:But the thing is that, you know, the tour bus going to cause a safety hazard for the visitors in walking across the street, I mean, ca weÓve just got to stay away from that. If theyÓre going to use a van, the van would be good because you can get into the parking lot and drop off the g bus, I think itÓs a, to me, is a safety hazard. I would go against that. GALDONES:Any further discussion? Hearing none, we will vote on the motion, as amended by Commissioner Fujikawa. Commissioner Graham? GRAHAM:ShouldnÓt we vote on the amendment first and then later w the motion? GALDONES:Yeah, thatÓs what IÓm going to do. GRAHAM:I thought you said youÓre going to vote on the motion, as I donÓt want to do that. GALDONES:As amended by Mr. Fujikawa. GRAHAM:Just not vote on the motion, letÓs just vote on the amendment. 53 GALDONES:Okay. The Chair stands corrected. MCCALL:Could I have a point of clarification? So what we will b is whether to insert this amendment into Ms. KubotaÓs original motion? Is that correct? GALDONES:That is correct. GRAHAM:Okay. GALDONES:Okay. WeÓre clear? MCCALL:So a motion in favor, or a vote in favor would be to put this amendment on to the original motion, okay? GALDONES:That is correct. MCCALL:Thank you. FUJIKAWA:Before we continue, can I say something to Commissioner MinaÓs statement? GALDONES:Yes, weÓre still in discussion. FUJIKAWA:Yeah, because your tour bus doors open on the right. So what IÓm getting at is the tour bus will pull on the right and drop the people off, then heÓll leave the area and heÓll return to pick the people up, the door will still be on the right, they donÓt cross the street. MINA:The people still got to cross the street to get to the right of the bus. GALDONES:Any further discussions, Commissioners? Hearing no further discussion on the amendment, Norman? HAYASHI:On the amendment, Commissioner Fujikawa? FUJIKAWA:You want to hear my amendment? HAYASHI:No. GALDONES:Your vote. HAYASHI:WeÓre taking a vote of your amendment. FUJIKAWA:Yeah, IÓm for it. HAYASHI:Commissioner Kubota? 54 KUBOTA:No. HAYASHI:Commissioner McCall? MCCALL:No. HAYASHI:Commissioner Mina? MINA:No. HAYASHI:Commissioner Smith? SMITH:Yes. HAYASHI:Commissioner Thibadeau? THIBADEAU:No. HAYASHI:Commissioner Graham? GRAHAM:No. HAYASHI:And Chair Galdones? GRAHAM:Aye. HAYASHI:Mr. Chair, five no votes and three aye votes, so motion does not pass. GALDONES:Commissioners, are there any further amendments or discussion on the original motion? Commissioner Graham? GRAHAM:I feel really out of place and I can sense the need of the Commissioners probably to pass this Special Permit. However, I do find, I donÓt want to throw mud at some people when I do, but I do find some other ways which I feel it is contrary to our mandate as to the criteria we should use. So IÓd like to just bring them up one time, if thatÓs appropriate. GALDONES:You may. GRAHAM:Thank you. I got a list here of which I spoke of one ite with Daryn. The item before was that in our rules for when we should grant a Special Permit listing numerous criteria, and Mr. Tsukazaki pointed out that we donÓt see a requirement that every criteria must be met -. I spoke to one criteria before about the 55 criteria being that the land is unsuited for the uses permitted now, which I donÓt believe is correct in this case. Another one of the criteria says, ÐIt shall not adversely affect surrounding properties.Ñ We had Mr. Yokoyama and his representative, Mr. Krueger, today speaking about how they are an adjacent property and they are opposed to it. WeÓve had Mark and Cheryl Richards in opposition to it who are adjacent. We had Ms. Goody speak before the Contested Case Hearing about her problems with the sound, with the loud noises coming. The Van Pernis is contrary to this. And, also, Mr. Tsukazaki, himself told us they were unable to reach agreement with the surrounding property owners. Given all that background without speaking on the merits, it doesnÓt seem to me that we can reliably say, ÐThis Special Permit allows a use which will not adversely affect the surrounding propertiesÑ given weÓve heard from surrounding property owners. One other item is that it must not, it shall not unreasonably burden public agencies. When I read Ms. BroderÓs comments on page 21 in her Findings of Law, she speaks of, weÓre all talking traffic here, too, of a traffic impact analysis report and how the analysis report said, the analysis report essentially said there is not a concern to us from increased traffic levels. However, IÓm going to make a few comments about that. When I looked at that, when I read the transcript, looked at the report, first the report was speaking of 50 instead of 80 a day. Second, the report was asked to prepared for the sale of non- agricultural products, was not asked to prepare for permitting o And, finally, I think most tellingly, Ms. BroderÓs comments here speak especially to traffic levels, is the level of service going to remain a Level B, is the traffic volume, reasonable and okay given the road; but I think it shows two different sides talking different issues. Mr. Roy today and Mr. Tyler, both today and a year ago, were speaking of the safety on the road. The safety of the road is not solely a question of the level of traffic. And Mr. TylerÓs commentary said, this is from a year ago, the highway is clearly an unsafe one with poor sight distance, non-existent shoulders, non-existent guardrails, blind multiple driveways, some of which are blind corners, and n significant improvements. I find that to be accurate. Actually, my sister about 1980 was the librarian in Holualoa, and she lived in Holualoa and IÓd come visit her; and so IÓm quite familiar with that road drove that road, I find places on the road where not only is there missing a shoulder, but when you look at the pavement on the makai lane of the road, the white line marking the line, not the edge of the pavement but the white line marking the edge of the lane, itÓs so close to a fall-off. If you are two feet off of that white line, you may not just go off the road, your car will huli, just Òcause of the nature of that road. So I feel public agencies cannot provide safe access and, by adding tour buses, vans, any extra considerable volume of traffic to whatÓs already a very unsafe road is very much against our mandate, as well as against this specific requirement that we must find in order to grant Special Permits. So I wanted to say on the record that IÓm very concerned about it and IÓm surprised thereÓs not a larger concern amongst the Commission. 56 GALDONES:Thank you, Mr. Graham, Commissioner Graham. Commissioners, any further discussion? Commissioner Kubota? KUBOTA:Not to belabor the point any longer but to Mr. Graham, your concerns are very valid, I think. But if you would look at the, what is it, IÓm so tired, the COL, what is the COL, I have it marked. GALDONES:Conclusions of Law. KUBOTA:Conclusions of Law, thank you, Conclusions of Law and the Recommendation that came from Sherry Broder, our Hearings Officer, and the conditions that she set forth which are in agreement with our Planning Director, with the minor modifications that I proposed, is quite tight. And I think your concerns, as I said, were well taken; but I think with the tightness of the conditions and placed upon the Applicant, I think I can comfortably support it. GALDONES:Commissioners, any further discussion? M. ROY:Mr. Chair? GALDONES:Ms. Roy, we are in discussions, we are in decision-making so I have to stop the discussions from the public. IÓm sorry, Ms. Ro M. ROY:May I? GALDONES:IÓm sorry, I have to cut off any public debate or discussion. M. ROY:But you did not receive our written comments. And I want to her that Point 8 -. GALDONES:Ms. Roy, could you use the microphone? M. ROY:You have not received the written comments. If you had, you would have seen in detail how we do not agree. Point 8 for the regard of history does not apply to how they have broken the law. Ms. Broder does not address that and we are totally against this recommendation. So she is not tight in her recommendation, and IÓm sorry that I donÓt have before you our full response to these findings, but I must tell you that this not tight. GALDONES:Ms. Roy, you had the opportunity to make that presentat M. ROY:Thank you. 57 GALDONES:Okay. Commissioners, if thereÓs no further discussion, Mr. Torigoe has an amendment that he would like to introduce which is of a legal matter for us to consider. TORIGOE:Thank you, Mr. Chairman, very quickly. Under the Conclu Law in the proposed Conclusions of Law No. 1, just the introduction where it says, ÐIn considering a Special Permit for any proposed use, Rule 6 of the Planning Commission relating to Special Permits require that such action conform to the following guidelines.Ñ I would recommend that instead of saying Ðsuch action conform to the following guidelines,Ñ that itÓs a, Ðthe Planning Commission address and consider the following guidelines.Ñ Similarly in No. 2, where it says, ÐIn addition to the guidelines detailed above,Ñ I recommend that it state, ÐIn order to approve the application, the Planning Commission must find that,Ñ not Ðnot also find that.Ñ So it would read, ÐIn order to approve the application, the Planning Commission must find that the proposed use:Ñ and then go into a and b. GALDONES:Norman, you have the changes? HAYASHI:Not quite. Could you repeat it again? TORIGOE:Okay. No. 1 would say at the end, instead of Ðsuch action conform to,Ñ I would recommend that it say that Ðthe Planning Commission address and consider.Ñ And, No. 2, instead of ÐIn addition to the guidelines detailed above,Ñ it should say, ÐIn order to approve the application,Ñ and then strike out the ÐalsoÑ before Ðfind that the proposed use.Ñ And this is, these are just to be more consistent with the Planning Commission rules. HAYASHI:Thank you. I got it. GALDONES:Okay. GRAHAM:Could I ask a question? GALDONES:Commissioner Graham? GRAHAM:Ivan, when you say, Ðaddress and consider,Ñ to me, that gives no implication that our decision is based upon how well the application conforms to those things which is what I think is what, I think youÓre trying to avoid us saying that it must conform to every one. But when you say Ðaddress and consider,Ñ I donÓt think you imply any degree of conformity. TORIGOE:What IÓm looking at is your Rule 6.6, Grounds for a Spec Permit. At the end it says, ÐThe Commission shall also consider the criteria listed under section 6.3(b)(5)(A) through (G).Ñ And that section 6.3(b)(5) says that ÐThe following 58 criteria shall also be addressed.Ñ That is why IÓm using the language that is in the rule, Ðaddress and consider.Ñ GRAHAM:I defer to your expertise. GALDONES:Commissioners, any other discussion on the amendment as proposed by Counsel? Commissioners, in order for us to incorporate that into the main motion, we need to have somebody move to accept the proposed ame seconded, and have a discussion on the subject matter. Commissioner McCall? MCCALL:Yeah. I move to accept those amendments, as long as I do to read them. KUBOTA:Second. GALDONES:It has been moved by Commissioner McCall, seconded by Commissioner Kubota that the amendments that were introduced by Mr. Torigoe relating to Conclusions of Law in No. 1, an amendment also in No. 2, be approved as amendments to the main motion. Discussion? Norman? HAYASHI:Commissioner McCall? MCCALL:Yes. HAYASHI:Commissioner Kubota? KUBOTA:Aye. HAYASHI:Commissioner Mina? MINA:Yes. HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:Commissioner Thibadeau? THIBADEAU:Aye. HAYASHI:Commissioner Fujikawa? FUJIKAWA:Aye. HAYASHI:Commissioner Graham? 59 GRAHAM:Aye. HAYASHI:Commissioner Springer is excused, and Chair Galdones? GALDONES:Aye. HAYASHI:Mr. Chair, motion carries. GALDONES:Thank you, Norman. Commissioners -. KRUEGER:Mr. Chair, may I ask a question just for clarification. Is the motion that the Commission is considering at this point as to the 12 acres but not as to the entire 28.47 acres? I just, just for clarification. GALDONES:The Commissioners are acting upon the Findings of Fact and Conclusions of Law and Recommendation from Ms. Broder. If thereÓs no other amendments, then we will vote upon, no amend discussion, then weÓll vote upon the main motion as made by Commissioner Kubota. Norman? HAYASHI:Commissioner Kubota? KUBOTA:Aye. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Mina? MINA:Aye. HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:Commissioner Thibadeau? THIBADEAU:Aye. HAYASHI:Commissioner Fujikawa? FUJIKAWA:Aye. HAYASHI:Commissioner Graham? 60 GRAHAM:No. HAYASHI:Commissioner Springer is excused, and Chair Galdones? GALDONES:Aye. HAYASHI:Mr. Chair, motion carries. GALDONES:Thank you. You will be informed in writing of todayÓs TSUKAZAKI:Thank you very much for your patience. M. ROY:Thank you, Mr. Graham. The discussion ended at 5:20 p.m. Respectfully submitted, Sharon M. Nomura, Secretary 61