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HomeMy WebLinkAbout2006-08-25 D-BAR PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT AUGUST 25, 2006 D-BAR RANCH, LLC (SMA 06-000009) A regularly advertised hearing on the application of was called to order at 9:51 a.m. at the King Kamehameha's Kona Beach Hotel, 75-5660 Palani Road, Kailua-Kona, Hawaii with Chairman C. Kimo Alameda presiding. Kimo Alameda PRESENT:C. red Galdones F William R. Graham Andrew Iwashita Jeffrey McCall Alvin Rho Allen Salavea QdmdlRhq`btr` Rodney Watanabe Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately 20 people from the public in attendance. APPLICANT: D-BAR RANCH, LLC (SMA 06-000009) Continuation on the application for a Special Management Area (SMA) Use Permit to allow the 120-unit condominium project and related uses. The property is located between Alii Drive and the proposed Kahului-Keauhou Parkway (aka Alii Parkway), mauka of the Kona Magic Sands nd Condominium and north of the White Sands Beach Estates Subdivision, Pahoehoe 2, North Kona, Hawaii, TMK: 7-7-8:21 & 23 ALAMEDA:All right. Moving right along to Agenda No. 2, Unfinished Business, or actually 1.A., D-Bar Ranch. Staff? st HAYASHI:Thank you, Mr. Chair. This is a continued hearing from July 21. At that time, the Planning Commission voted to continue the hearing to allow the Applicant additional time to submit the Cultural Resource Management Plan. Just briefly, as far as orientation goes, the subject property, looking at the overall location map, the subject property is at this particular location. It’s across the White Sands or Disappearing Sands Beach Park, as well as the Kona Magic Sands Condominium project. This particular subdivision is known as the White Sands Beach Estates Subdivision as well as the Keauhou Estates Subdivision. This particular white alignment which would extend in this general direction from a north-south orientation is the EXHIBIT B 1 proposed Kahului to Keauhou Parkway, also referred to as Alii Parkway. Alii Drive is located here going towards Keauhou, and this would be in the Kailua direction. The Applicant is requesting an SMA Use Permit to allow the construction of 15 two-story structures, generally laid out in this configuration. Access would be from Alii Drive. Currently, no access is proposed from the Kahului to Keauhou Parkway. Since the last meeting, we had received three letters from the general public. One was from Verneta and Robert Milton; also, a Janet Topor-Bixler, as well as Mitzi Shepard, and all of you had received copies of these correspondences. th On July 28, we received a letter from Mr. Sidney Fuke enclosing a letter dated July 26, 2006 from Allen Hahn, who is the archaeologist for this project, with enclosures and, basically, addressing the Cultural Resource Management Plan issue. In his letter, and I’ll refer to Page 2 of Mr. Hahn’s letter, the second to the last paragraph; and I’d like to read that, “It is my considered opinion that the Archaeological Inventory Survey, Burial Treatment Plan, and Site Preservation Plan approved, provide the needed management program for the historic properties within the subject parcels.” Based on Mr. Hahn’s professional opinion, the Planning Director has agreed with the archaeologist that the document submitted does not conform to the requirements of the zoning ordinance. At this time, the Planning Director is again recommending approval. And we had submitted to you a proposed amendment; and, basically, the proposed amendment will give the Applicant the flexibility of providing a mixture of not only condominium but also to allow a mixture of Single Family Residential and Duplex uses, provided that the density doesn’t exceed what was originally proposed. And that amendment would be in the Background Report, excuse me, Recommendation, Page 5, and I’ll read that into the record, “It should be noted the applicant may reduce the density and product mix (i.e., allow for a mix of multiple-family residential units and single-family residential units of the project, provided that the development generally conforms to the proposed site plan.” And as a result of that, we are recommending a new condition, No. 3, that states, and that is on Page 7, that the applicant may reduce the density and product mixture, similar wording that I just read to you. And Condition 4, there’s no time condition recommended in the first draft recommendation. So we included a new Condition 4 basically stating that the construction of the proposed development shall be completed within five years from the approval of this permit. Are there any questions at this time? ALAMEDA:Fellow Commissioners? Commissioner Watanabe? WATANABE:Yeah. Norman, it seems also within that attachment that the State Department of Land and Natural Resources has signed off on the Historic Preservation Review Process and that the only other step remaining would be for them to approve, sign-off on their Preservation Plan? EXHIBIT B 2 HAYASHI:Perhaps that could be asked of the Applicants as far as exactly where they are on these plans. WATANABE:Thank you. HAYASHI:One other thing, there’s also the matter of the sign being posted too far in the project site, and the Applicant has relocated the sign to the front of the property abutting Alii Drive. ALAMEDA:Other questions? Commissioner Graham? GRAHAM:Norman, I just have a access question relating to the fact that access is proposed to Alii Highway, Alii Drive, as opposed to the Parkway. And couple of years ago I got a copy from you I think of the Keahole to Honaunau Regional Circulation Plan; and in that there’s a Alii Parkway Access Management Map, and right about this area there’s an access to Alii Highway proposed called Kingman property access. So I’m wondering whether that access has been sort of taken off the books and is no longer part of the plan, or why that access is not being used for this particular property. HAYASHI:This plan that, what was submitted to you, I vaguely recall providing that information to you. But I think that was a preliminary draft that was proposed as part of a study that was done for the Planning Department; and that was the, I believe the Keauhou to Honaunau Circulation Plan. GRAHAM:Yes. HAYASHI:As far as whether that plan is, well, that plan has never been adopted. That was just a working draft. And as far as I know it was never adopted neither by the Planning Commission nor the County Council as the circulation plan for the Kona area. It just basically gave general guidelines as to where the location of these access roads or a connecting road should be, or the roadway circulation plans for the Kona area should be. WATANABE:Mr. Chair? ALAMEDA:Commissioner Watanabe? WATANABE:Yeah, may I -. To chime in on that, I believe from the last meeting’s discussion, there was a planned access to Alii Parkway from a subdivision that was very close, I think the road was Laaloa. And my question at that time was, you know, are we requiring any connector to Laaloa from this subdivision so that that will be an alternate route out? And there were also discussions that are documented within the proposal that they’re in discussions about a temporary connection to Alii Parkway. So, you know, I don’t know if that connector road to Laaloa is possible at this point, because I don’t think it’s contiguous with this parcel. ALAMEDA:Mr. Director? YUEN:The major intersection off of Alii Parkway in this area would be the Laaloa intersection, which is shown on this map as eventually being a signalized intersection. EXHIBIT B 3 This map does show another intersection called the Kingman property access which is either shown as being on this property or the next property over. That’s shown as a right-in/right-out only intersection. Finally, on the question of a connection to, allowing this property to get to Laaloa, I believe that is not possible, that there’s a row of residential lots separating this property from Laaloa or from any street that would get you to Laaloa. ALAMEDA:Ms. Siracusa? SIRACUSA:So how would people living in this proposed development get mauka from there? All I see looking is, you know, roads parallel to the coast. And they would have to go considerably south before they could, along Alii Drive or Alii Parkway before they could get to that intersection on the right of the map to back-track to get up mauka, or am I missing something? Is there something more convenient that would be off the map on the left here? YUEN:Currently, the closest way to get out and to go mauka would be for them to go onto Alii Drive, go south to Kamehameha III and up Kamehameha III. The planning for this area involves Laaloa extending up to Kuakini Highway. There’s a project the County is currently working on, and, also, Laaloa connecting to the Alii Parkway. So that would improve the mauka-makai access in the area. SIRACUSA:Okay. I’m asking this because I’m concerned in the event that evacuation was required, how would people get mauka? It seems like an awful lot of development there would all be funneling from both Alii Drive and Alii Parkway, will all be funneling south, you know, and the only way people would be able get mauka -. It just seems like there would be a great big bottleneck. ALAMEDA:Okay. YUEN:The access is not good right now. That’s why these projects, these are the roadway projects that are being worked on. ALAMEDA:All right. Any other questions before we call the Applicant up? Seeing none, will the Applicant’s representatives please come forward? WATANABE:Thank you, Norman. ALAMEDA:Will you please raise your right hand? Do you swear or affirm to tell the truth now before the Hawai`i County Planning Commission? TESTIFIERS:I do. ALAMEDA:Thank you. Will you please state your name and address for the record? DICKLER:My name is Allen Dickler. My office address is 75-5742 Kuakini Highway. ALAMEDA:Okay. Mr. Fuke? EXHIBIT B 4 FUKE:Good morning, Mr. Chairman, Members of the Commission. Nice to see a full Member Commission today. My name is Sidney Fuke, I’m a planning consultant. My business address is 100 Pauahi Street, Hilo, Hawai`i. ALAMEDA:Thank you, Mr. Fuke. You’ve heard the discussion and some of the questions asked by the Commissioners. FUKE:Sure. ALAMEDA:I know you also received the Recommendation by our Department; and this is kind of like going on Round 2. So anything else to add or any comments to make? FUKE:Sure. Thank you very much, Mr. Chairman. I’d like, as a matter of fact, just to touch upon some of the issues that were raised at the last Planning Commission meeting relative to the archaeological cultural issues. However, before going to that, I think I’d like to publicly clarify, you know, contrary to what was published in yesterday’s West Hawaii Today article relating to this particular item, there was a statement stating that the project was adjacent to the Keakealani Wahine Archaeological Complex; and that is absolutely false. There are two ahupua`a that separates that complex from this property. This property is situated in the ahupua`a called Pahoehoe 2. As you move to the north, there’s like a Pahoehoe 1; and the next ahupua`a would be Kaumalumalu; and the Keakealani Wahine Complex is situated in the ahupua`a of Holualoa. So I just wanted to offer that for clarification. ALAMEDA:Okay. th FUKE:As your staff had indicated, on July 28 we transmitted, you know, a copy of the archaeologist’s comments relative to the Cultural Resources Management Plan. We also included in that the draft Burial Treatment Plan and the Site Preservation Plan. To answer partially, I guess, like Commissioner Watanabe’s question, the general process is that, you know, at this level you have an approved Archaeological Inventory Survey which was already provided; and we do have copies of the approved letter from the State DLNR Historic Preservation Division, I think, which was provided to the Commissioners earlier. Generally, like after the Archaeological Inventory Survey is completed, in that survey the survey makes recommendations in terms of how do you address all of the cultural and archaeological features on the site; and there are like usually three major components. One would be a Data Recovery Plan. The other one would be your Site Preservation Plan. In this situation here, the mauka-makai trail and the heiau, you know, would be preserved. For those activities you would need to have like a Site Preservation Plan. And the last one would be because there are burials, you know, on the site, then you need to have a Burial Treatment Plan. The Burial Treatment Plan would have to be reviewed and approved by the Hawai`i Island Burial Council and the DLNR Historic Preservation Division; whereas, the other two plans would be approved by the DLNR HPD. Before any land disturbance permit or physical construction activity can occur on the property, you basically need to satisfy all of those three components. We do have Dr. Allen Hahn, he drove in from Hilo, and, you know, he’s available for any testimony or questions that the Commissioners may have. EXHIBIT B 5 On the other issue, Commissioner Rho raised some very pertinent questions relating to the validity of the data that was used; and we did have the traffic consultant examine those questions. And basically what he said, and which I passed out and shared with the Commissioners earlier, was that, true, the year that was used was I think 2002 and it was not like, you know, truly dated, because the traffic has certainly increased since that period of time. But what they did was in the absence of any data from the State DOT, what the consultant did was to use the highest growth projection and use that as your ambient traffic forecast. And, likewise, also, in terms of why, you know, in terms of like the school, you know, having the traffic counts taken on non-school days versus like the school day, he recognized also the deficiency behind that approach and, as a result, took the higher projection. There was also like another issue, it was a written issue, and I believe a person testified also, about the potential effects that a project like this could have like on the marine life in that area, you know, it was the turtles, or opihi, or whatever have you. So we had both Dr. Dollar and Dr. Tom Nance evaluate the question, and we also provided a response to that. And essentially what Dr. Nance and Dr. Dollar pointed out was that many of the pesticides that was cited as being, you know, really deleterious to the environment are no longer sanctioned by both the DEPA as well as the State Department of Health. For example, like chlordane, which is very, you know, which was historically very popular for termite, ground termite treatment, but it’s no longer allowed. Finally, like in terms of the other issues, I’m just kind of reiterating some of the questions that were posed earlier relating to the traffic and the evacuation route, I realized that that has been like a concern for the community and the Commission, as well as for the Applicant. I think that if you look at the Director’s proposed condition, Condition No. 7, his revised condition, it requires the Applicant to provide a north-south and mauka-makai kind of connection; and the Applicant has absolutely no reason not to agree with that. A touchdown to the Alii Parkway could be had provided that the Department of Public Works allows that opening. And so if the County allows it, allows a breach to the Parkway for emergency access purpose, then the Applicant would, you know, definitely comply with that; and in that way and so doing it not only address the evacuation needs for this particular project but also for the general community. If you were to look at the staff’s, I mean, the Background Report and, you know, the Planning and Environmental Report on Figure 2, it provides, there’s like a tax map, you know, of that area. And I think that should enable the Planning Commissioners to get a better sense in terms of, you know, the location of this property relative to the Laaloa Street proposed mauka-makai extension and like how this property fits into the overall scheme of things. There’s also like a requirement that the developer provide a left-turn lane at Alii Drive, you know, into the property, as well as making all of the necessary shoulder and related improvements to allow for a continuous flow of pedestrian traffic along Alii Drive, ‘cause that is a relatively heavy traffic area. The developer is also proposing that where the entrance to their property comes off of another parcel of land, which is also the subject of this SMA, so about like 6 or 7,000 square foot of land, that also provides access to the County’s wastewater pump station. And so what the Applicant is EXHIBIT B 6 prepared to do is to kind of like straighten out that area and provide a more organized parking, you know, for the public who would then utilize that, well, who are using that area. But by making additional improvements, it would enhance and provide additional parking for the public who would want to use the coastal area, particularly the White Sands, Magic Sands Beach as well as Pahoehoe Park. And lastly, I think that, you know, relative to what the Director is proposing as an additional condition, I think the Director’s proposed Condition No. 3 -. And probably, you know, the genesis behind that is that, you know, there are going to be a number of, you know, should this permit be approved with the conditions as recommended by the Planning Director, there are going to be some site changes, site plan changes that may need to be done, you know, to accommodate possibly a mauka-makai connection to the Alii Parkway, straighten out the entryway for the public parking area, accommodation for the Archaeological Preservation Plan. And so what this does is that, and this may result in some measure of reduction in the density such that, you know, rather than having a proposed structure maybe adjacent to the major archaeological features, you know, there may have to be like a Single-Family dwelling to accommodate that interest. And so the other condition I think what the Director’s proposing is something that we would be supportive of. Because, if anything, it establishes, you know -. What you see right now is a cap, but what this does is that provides for some accommodations to lower the density without having to go back to the Planning Commission for further review. With that, Mr. Chairman, I think that pretty much sums it up from our standpoint. ALAMEDA:Okay, thank you. Commissioner Siracusa and then Commissioner Watanabe. SIRACUSA:Sidney, I’m looking at Page 4 of the Background Report, Item No. 21, Cultural Resources. And it says, the last sentence there at the bottom of the page, “If legitimate claims for gathering are made, the project will be designed and managed to accommodate such claims.” And I’m wondering, No. 1, have any such claims been made thus far to date and, No. 2, has the Applicant gone out of his way to do any outreach to find out if there are any such or would be any such claims were people to know about the development? FUKE:Sure. That’s a very pertinent question. In conjunction with the draft Burial Treatment Plan, it is the obligation on the part of the archaeologist, the preparer of that plan, to do outreach and consult with family members, or others who may have historical association with that area. And so through that dialogue, which would have to be captured in the Burial Treatment Plan, if there are such claims, then accommodations would have to be made. Definitely, accommodations to get access to the burial would have to be provided. Relative to native plants in that area, according to the botanist, the only thing that they found was the, but it’s not an endangered plant, was the ko`oko`olau, and others were all invasive species. So, but if there are claims, then they will have to provide accommodation. SIRACUSA:So just for clarification, you’re saying that thus far no claims have been made? Is that accurate? DICKLER:That’s correct. No claims have been made. And, in fact, the archaeologist and members of our firm have made outreach to the known descendants on this property. EXHIBIT B 7 SIRACUSA:And they no longer go to the burial sites to pay respects or to keep those sites maintained in any way? DICKLER:That’ll be a better question to ask Dr. Hahn. FUKE:Yeah, we have the archaeologist here; and I believe that one of your other testifiers, Mr. Tyler, who has some association with this area will be providing testimony in that regard under public testimony. SIRACUSA:Thank you. In the case, I’ll hold the question. FUKE:Sure. ALAMEDA:Thank you, Commissioner Siracusa. Commissioner Watanabe? WATANABE:Yeah. Mr. Fuke, I appreciate the Applicant’s concession for improving and possibly increasing public parking along Alii Drive. But I don’t believe it’s one of the stipulated conditions in this Recommendation; and I’m wondering if you all would have any objection for us to formally put that in? ‘Cause actually that was one of the things I had, I don’t know if you read my mind or not, this is one of the things I had noted down and wondered if we could add that in. FUKE:Sure, like in anticipation of that, ‘cause we had made that representation earlier and I do realize that it was not embodied as part of the staff’s revised Recommendation. But if the Commission and the staff so choose, I do have language. And basically it would read like, “Plans for providing public parking spaces on TMK 7-7-8:Parcel 23 and the County-owned parcel identified by TMK 7-7-8:115 shall be submitted in conjunction with the Plan Approval process and shall be implemented according to the approved plans at no cost to the County, together with the development of the subject proposed project.” WATANABE:That sounds very good. Thank you. ALAMEDA:Thank you, Mr. Watanabe. Any other questions for the Applicant? Commissioner McCall? MCCALL:Yeah. When we talk about evacuation, we’re generally talking, you know, tsunami evacuation. Do you know where the, like the Civil Defense Tsunami Inundation Zone, where that lines up with this property and, also, with Alii Highway? I believe some of Alii Highway is above the inundation zone. Is that correct? FUKE:I don’t know exactly where the inundation zone line is, but I do know the subject property falls within the evacuation area, yeah. MCCALL:Okay. ALAMEDA:Thank you. Commissioner Graham? EXHIBIT B 8 GRAHAM:Sidney, I had just a couple of brief things. One is with the report from Tom Nance on groundwater. It’s sort of brief, and I would like to note to the other Commissioners so many of these background reports like this are very difficult reading. But I always find Mr. Nance’s reports pretty easy to go through because they’re written in a very normal tone. However, in his Page 1 down in the section called “Domestic Wastewater Generation and Disposal” -. FUKE:This is on Tom Nance’s report or the -? GRAHAM:Yeah, that’s one of the appendices. FUKE:Okay. Go ahead. GRAHAM:It may be that I’m out to lunch on this one but he speaks of, says, “Wastewater collection, treatment, and disposal will be handled by the County’s existing sewage conveyance system and treatment at the County’s wastewater treatment plant on the north side of Keauhou Bay.” And “The treated effluent is and will continue to be reused to irrigate the Kona Country Club.” My sense was that the County system all runs north and winds up getting injected, you know, mauka of the harbor. And the Kamehameha Investments section is what deals with the Kona Country Club, and so this was all going in the County system and going north. But does the County actually have another system down there I wasn’t aware of? FUKE:I don’t know whether Mr. Emler can answer that question. But the point still is that, and I don’t know where the separation, you know, line is in terms of servicing line, whether the area would be serviced by the Heeia Wastewater Treatment Plant at Keauhou versus the Kealakehe one, I don’t have an answer to that question. I think what, you know, yeah, that could be. I don’t know, I don’t know to answer that question. The fact, however, remains that it’ll be hooked up to the County system. GRAHAM:Okay. And then the second question I had is more of a background thing. I know that we often deal with like public rights and public access based on this Highways Act of 1892, I think it is, which sort of says if, you know, the public was using and it exists on a map at that time as a public right-of-way that that perpetually is available to the public. So we do have this trail you speak of in this application; and apparently it doesn’t qualify in that sense and all. And I was just wondering for a little background from you perhaps and especially with your history as Planning Director, where’s the demarcation line of whether that actually comes into play and, you know, requires kind of a public access and ownership perhaps of a trail that has been in existence for a long time? FUKE:I think it’s a legal question that I would just as soon defer to your counsel. But we do have, you know, relative to the archaeological cultural aspects to that, you know, Dr. Hahn is here. So, you know, he may be able to address some of that, that component of the question. GRAHAM:Maybe shall I just direct it to Mr. Torigoe at the moment just to get it cleared up? ALAMEDA:Sure. Mr. Torigoe? EXHIBIT B 9 TORIGOE:Thank you, Mr. Chair. So your question exactly is -? GRAHAM:In this application there is a trail that the documentation lets us know was habitually used for mauka-makai, the main mauka-makai access trail within this ahupua`a. And, you know, I’m also aware of the Highways Act of 1892, I believe it is, which says that trails are rights-of-way that the public habitually uses on maps dating from that time, they continue to have a public interest and a public access. And I’m just wondering, you know, what is the demarcation line? Why is this particular trail not subject to some kind of public ownership or continued public access, and just using this as an example for me better understanding when that Highways Act comes into play and why it doesn’t come into play in this situation. TORIGOE:Yeah, well, I’ll have to pull up the Highways Act which is in the HRS which we have and take a look at it. I don’t know if there has been any kind of determination made by Mr. Hahn or some facts that might come to bear on that. So maybe we could get whatever background information we have on that. And I can pull up the HRS, and see if there’s anything relevant that we should look into at this point. GRAHAM:Oh, maybe I can just hold it for when Mr. Hahn comes forth; and if we need to pursue it more, we can. FUKE:Mr. Chairman? ALAMEDA:Yes. FUKE:If we may, I’d like to introduce Dr. Allen Hahn who did the archaeological report and possibly could answer some of those questions. ALAMEDA:Okay. Dr. Hahn, could you please raise you right hand? Do you swear or affirm to tell the truth now before the Hawai`i County Planning Commission? HAHN:I do. ALAMEDA:Thank you. Could you please state your name and address for the record? HAHN:My name is Allen Hahn. My address is HCR-1, Box 4730, Keaau, Hawai`i. ALAMEDA:Thank you, Dr. Hahn. You’ve heard the question, would you like to comment on that? HAHN:The trail that we documented during the inventory survey does not appear on any historic maps that we’re aware of; and it’s my understanding that at least one representative of the Applicant has made contact with the Na Ala Hele Trails Program staff, and they had actually made a visit to the site. And it’s my understanding that they didn’t have any jurisdiction over this trail, but we’re happy that at least a portion of it was, that the intent was to at least preserve a portion of it. EXHIBIT B 10 GRAHAM:Thank you. So perhaps the triggering mechanism is the existence on a map at that time. And the trail did not exist on the map at that time, hence, it does not fall under that Act? HAHN:That’s my understanding. GRAHAM:Thank you. ALAMEDA:Thank you. Commissioner Siracusa? SIRACUSA:Yes, I was holding a question; and now appears to be the appropriate time to lay it on you. And that is a question as to whether you did any outreach to discover if there were any families who had traditionally used that property for gathering, or to visit the burials, or to maintain the land around the burials at present. I noticed that there is ko`oko`olau growing on the property, and that is used medicinally. So I’m wondering if possibly anybody had been doing gathering of that. HAHN:Not in the way of, the outreach that we are currently involved in involves consultation regarding the Preservation Plan as well as Burial Treatment Plan which specifically address burial and ritual sites, as well as the trail. That process is ongoing and will continue as the Burial Treatment Plan is presented to the Hawai`i Island Burial Council in September. We anticipate being on the September agenda, at which normally there are additional individuals who may have an interest in this area are identified. But the extent of our outreach for this is being focused on these archaeological sites. I mean we have not, sometimes through that interaction other kinds of activities may come to light, none have. And with regard to any ongoing maintenance or use of the burial sites, visitation of the burial sites, during the survey work these sites appear to be completely undeveloped densely forested area and that we found no evidence of anyone maintaining them or visiting them within the past 100 years or so. ALAMEDA:Ms. Siracusa, follow-up? SIRACUSA:Thank you. Would you explain to me how you would go about doing outreach to find native Hawaiians who might use that property, who might have used that property for gathering or for visiting burials? How would you, would you put ads in the paper, or how do you do this? HAHN:First thing we do is contact the Department of, State Division of Land and Natural Resources, Historic Preservation Division, Burial Program staff; and we have done that, contacting them to determine whether or not any individuals have claim descent in this particular ahupua`a. And, in fact, they identified at least three individuals that we have subsequently sent copies of this plan to for comment. As part of the Burial Treatment Plan process, there’s additional efforts to notify potential descendants in the form of advertisements, legal ads, notices posted in West Hawai`i Today, the statewide circulation newspaper, in this case the Honolulu Advertiser, as well as the Office of Hawaiian Affairs, a monthly newsletter. Notices were posted in each one of those monthly newsletter for the OHA, as well as Sunday, Wednesday and Friday publication of the Legal Notice. And before the plan can be submitted for review by the Island Burial Council, you have a waiting period of 30 days. We’re reaching that 30-day period. EXHIBIT B 11 ALAMEDA:Commissioner Siracusa? SIRACUSA:Yes. So that answers the question about the burials. It does not answer the question about resource gathering. Do you also follow the same general procedure with notices in the OHA newsletter, for example? HAHN:I have not made an effort to, as part of the scope of the inventory survey, Archaeological Inventory Survey, that’s not part of the scope of that requirement. ALAMEDA:Commissioner Siracusa? SIRACUSA:Well, I was looking at the, I guess it was the Background Report and the part I quoted before about identifying whether under cultural resources, whether there was any attempt made to find out if the area was used for gathering. And there was only one item that I noticed was extremely traditional for gathering. Sure, plumeria blossoms people would go for leis that sort of thing; but I mean, ko`oko`olau was the one that sort of raised the red flag for me since it is used in traditional medicine. And the Background Report did state that, you know, there should be an attempt there to find out if there were native gatherers. I was wondering if you had made the attempt, that’s all. ALAMEDA:Okay. Fair enough. Other questions? Seeing none -. YUEN:I just want to make a comment. ALAMEDA:Okay. YUEN:Commissioner Graham asked a really good question on this Access Management Plan for the Alii Parkway, and I wasn’t aware that there was a possible right-in/ right-out, and this is referred to as the Kingman property access. This is the property that’s immediately to the south of the property that we’re looking at here; and it’s on the map in light green. On the map here it’s to the right of the property that we’re looking at here which has a blue dot. So it’s still zoned Agricultural 5-acres. I suspect that the reason that there’s an access shown here is that the property may not have an access. Once this property, the same ownership extends across Alii Parkway but it may not have an access for the part makai of the Parkway. Unless there’s some access allowed to the Parkway, we would probably not want to have that access. On the other hand, if it was allowed as a right-in/right-out, we would probably want there to be a cross access from this property so that the people in this property could get out on that access as well. We have this covered by a condition. We have a Condition No. 7 that talks about preparing an access and circulation plan for the review and, with providing for inter-connection of adjoining parcels and access to Kahului and Keahole Parkway through Planning Director and Department of Public Works. What I’m alerting the Applicant here, too, is that they need to look carefully at this situation with this Kingman property; and we all need to look carefully at this. If it turns out that it would desirable not to have this right-in/right-out on the Kingman at all, that it becomes essential that we connect the Kingman property through this property, the zoning condition on this property does require that at least one road in the property be public and County-dedicable. So it may be that the end result of this is that that Kingman property connects through this EXHIBIT B 12 property and neither property has an access to Kahului-Keahole Parkway. But given that there is some, the plans of the Parkway are in some flux now, there is a redesign going on, it’s premature to come to that conclusion right now. But I do want to say that, you know, Commissioner Graham does raise a good question here and that the Applicant, DPW and ourselves have to look at this carefully. And there may be an opportunity to interconnect the properties and have a better access, either not eliminate this right-in/right-out, or have the ability for all these properties to connect together. ALAMEDA:Mr. Director, did you want the Applicant to respond to that or you’re just putting it out on the table? YUEN:I noticed that you do have a, your road runs alongside that property. Your site plan shows a road running alongside your south property boundary, so it wouldn’t seem to be a big difficulty to connect it. FUKE:Yeah, actually, like any connection, of course, would have to be mindful of the archaeological features that may exist on the Kingman’s property. So -. YUEN:On either side, yes. FUKE:Yes, yes, so we’ll have to kind of like coordinate that information as well. YUEN:At least as far as your current site plan, you have a road running alongside that property boundary, no? DICKLER:No. YUEN:Am I mis-reading your -? DICKLER:No, you’re correct. I’m sorry, I was looking at the other -. ALAMEDA:Commissioner Iwashita? IWASHITA:I just want to get on the record when the sign, posted sign, was moved onto Ali`i Drive? DICKLER:It was Monday. The meeting was Friday. It was moved by Monday. IWASHITA:Okay. Thank you. And is Mr. Yamamoto, your traffic person, here? I have questions about the traffic issue. FUKE:Sure. Is there a need for Dr. Hahn right now? ALAMEDA:Okay. Any other questions for Dr. Hahn so we can release him? SIRACUSA:Well, I just wanted to refer him -. That part of the Background Report I was referring to when I was asking him about the gathering was Page 4, No. 21, the last sentence, “If legitimate claims for gathering are made, the project will be designed and managed EXHIBIT B 13 to accommodate such claims.” Therefore, it would seem to me that it would be important to find out if there are legitimate claims; and that’s why I was asking him if he had done any outreach in that respect. So I just, I didn’t have it in front of me when I was asking the question. But after that I found the citation, so I just wanted to point that out to you. ALAMEDA:Any questions for Dr. Hahn? Seeing none, you may leave. Thank you. Or you can stay. Going back to Commissioner Iwashita. FUKE:Mr. Chairman, I’d like to acknowledge the presence of Mr. Warren Yamamoto who is the traffic engineer and a consultant to M&E Pacific, the firm that was retained to do the traffic study. ALAMEDA:Thank you, Mr. Yamamoto. Do you swear or affirm to tell the truth now before the Hawai`i County Planning Commission? YAMAMOTO:Yes. ALAMEDA:Could you please state your name and address for the record? YAMAMOTO:My name is Warren Yamamoto at M&E Pacific, 841 Bishop Street, Honolulu, Hawai`i. ALAMEDA:Thank you. Commissioner Iwashita? IWASHITA:Thank you, Mr. Chair. Morning, Mr. Yamamoto. The questions I’m going to ask you are based upon the concern raised by the Police Department’s response to this application, which it raises traffic kind of concerns and refers to the County’s stated policy of concurrency, as far as any development. And this is an SMA application; and so as part of the SMA application, we consider the effects of traffic and whether, you know, there’s going to be an adverse effect on public access to, in this case, the recreational areas in the vicinity of this project. And so I’d like to ask you if your study -. And in reading your study, I didn’t get the impression that it addressed that particular issue. So I’d just like to clarify on the record whether or not your study addresses the issue of what impact this project would have on public access to the recreational areas in the vicinity of this project. I don’t think any part of it addresses that issue, ‘cause I, in looking at it I couldn’t figure out that it did or not. YAMAMOTO:Okay. In a letter that I wrote to Mr. Fuke I stated that additional traffic generated by the proposed project should not have any significant impact on the access to existing coastal recreational areas. IWASHITA:Okay. And what is the, what parts of your study did you rely on to make that conclusion? YAMAMOTO:By the amount of traffic that is expected to be generated by the project, the traffic impact, traffic level of service analysis that I conducted as part of the study. The results are in Table 2 of my report that you have very adequate levels of service with the project at the project access site. EXHIBIT B 14 IWASHITA:Were you given the public, written public testimony that we received that raised issues about the fact that there presently is congestion and over-use already for the facilities in the area and that this project therefore would almost by definition add to that existing problem? YAMAMOTO:I have not seen the public testimony. But my observation of tracking the area, or at least when I saw it was that there were no, traffic congestion was not, or I would not call it traffic congestion. There was traffic but I will not call it traffic congestion. ALAMEDA:Commissioner Iwashita? IWASHITA:Thank you. The second element that I wanted to ask you about is the, whether or not there would be adverse effect on, by this project, on the ability to evacuate the Ali`i Drive area in the case of a tsunami, or a severe earthquake, or some other natural hazard? Does your report address this issue? ‘Cause I couldn’t tell if it did or not. YAMAMOTO:We did not address the emergency access issue. Although depending on what type of emergency access, I mean, emergency evacuation you’re talking about, if it’s just for a tsunami, I believe all they have to do is get to higher ground, which is I think the Keauhou Shopping Center would be adequate elevation, that it’ll be above the wave height. Hurricane evacuation I don’t know the County’s plan in that area, so I cannot comment at this time. As for earthquake, I cannot address it at this time. I’ve done evacuation plans for Honolulu. So, again, it’s just depending on the type of emergency. But I don’t think that the additional traffic would be, would add any more to what would happen at that time. IWASHITA:I don’t think, well, I didn’t see in your report that there is any indication as to what the County’s existing plans are Civil Defense if they have adequate plans for evacuation for Alii Drive, did you research that? YAMAMOTO:You mean if I did, if I addressed any type of emergency evacuation? IWASHITA:No. I’m asking whether or not you know whether the County Civil Defense system has a plan that is adequate to evacuate Alii Drive, presently. YAMAMOTO:I did not look at the plan, County plan. IWASHITA:Okay. Thank you. ALAMEDA:Any other questions, Commissioner Iwashita? IWASHITA:No. Thank you, Mr. Chair. ALAMEDA:Thank you, Commissioner Iwashita. Any more questions for Mr. Yamamoto? Commissioner Rho? RHO:Mr. Fuke, according to the plan or the recommendation, and I know this is going to change or you folks are planning to make some changes, it says it’s a 120-unit condominium and you have a minimum of 165 on-site parking stalls. So I assume that out of the EXHIBIT B 15 165, there’ll be maybe 10, maybe 15 visitor stalls, what they usually have is visitor-designated stalls, and the rest are generally in practice assigned to each unit. So I assume one parking stall would be for each unit, so that comes to 120; and then the remainder is either for visitor or some units will have assigned a second stall. And all, you know, I think what is required by the County is that you have “x” number of stalls versus units, but I’m not sure about that. Do you really think that that’s enough parking? ALAMEDA:Mr. Fuke? FUKE:Well, what’s being proposed is slightly more than the minimum required by the County. In this situation here, you would be, if you’re asking me for my personal unbiased opinion, I think it would behoove any developer to provide the required on-site parking, particularly in areas like this, ‘cause you have no opportunities for off-site parking. And if you don’t have any off-site parking and there’s not enough parking, then it diminishes your ability to market the properties effectively. So, that is why -. RHO:So that 165 is just the minimum? FUKE:It’s one stall -. RHO:The planned minimum? FUKE:It’s like one, for each unit that you have, there is a requirement for 1.25 stalls per unit; and I think in this situation you have 1.5, yeah. I think it’s 1.5. But, you know, that may turn out to be insufficient relative to their overall marketing plan; and given the need to comply with, what the County is talking about like, you know, possible connection to Alii Parkway and all that stuff, the plans have got to be modified. And that is why like, as I mentioned in my prefatory comments, that there may be a need to possibly reduce the density to accommodate the very issues that you’re raising. I think that if you’re dealing with the project that has an opportunity for on-street parking, then the issue that you’re possibly alluding to could become a significant public issue. But in this situation here because there’s no public parking, on-street parking that’s going to be allowed on the Parkway and the parking along Alii Drive in that area, it’s going to be very limited to begin already because of the competing parking for the recreation activity at Pahoehoe Park and the Magic Sands; and besides it’s a little bit distant, you know. Because although the property abuts the Alii Drive, the bulk of the developable area is really like significantly mauka of Alii Drive. And so the opportunity for use of any of the on-street parking at Alii Drive would probably be, because of its location, somewhat diminished. RHO:Somewhat diminished but I think they still would park on Alii Drive if they didn’t have a parking stall. FUKE:Conceivably that could happen correct, yeah. RHO:I mean, they would actually do that. So my other question is whether or not you know how many stalls would be, not constructed but lined for that area that you guys mentioned at the beginning of this meeting, that the developer would pave or do -? EXHIBIT B 16 FUKE:Oh, you’re talking about the public access area? RHO:Yeah. FUKE:I mean, like on the lower parcel? RHO:Uh huh. FUKE:We haven’t done that evaluation right now because it’s, you know, would be a combination of both like 6-7,000 square feet that the Applicant owns, as well as any available land that the County may have, you know, that services the wastewater pump station. So that is why as a proposed condition in response to Commissioner Watanabe -. RHO:You have a ballpark figure like 10? DICKLER:I don’t have a ballpark for you, Mr. Rho, because it appears to me when I drive by that there’s probably 15 or 20 cars that park there today and we would not diminish that. So it would increase from there. RHO:Okay. Going back to Page 8, I’m not even sure what document this is called but -. SIRACUSA:Background Report. RHO:The Background Report that talks about the traffic again, and the levels of service and the delay, seconds per vehicle. FUKE:Are you referring to the traffic study? RHO:Well, not the traffic study itself but Background Report on Page 8. Oh, that is the Traffic Report, Appendix E. I’m sorry. I guess my first question is whether or not, well, whether or not I understand this correctly, on Page 8 it talks about the level of services or level of service. And between A and E, according to the report, it’s an acceptable level at an intersection. And I assume that intersection was, I’m not even sure where the intersection was that was studied; but at an intersection, Level A through E is acceptable. That’s the way I’m reading it. So is that right? YAMAMOTO:Yes. RHO:And based on the study, the Laaloa intersection would rise to Level C, I think in the morning and Level D in the afternoon. So you’re still below or you’re still within the acceptable threshold of A to E. That’s the way I’m reading it. Right? So, that study is looking at a car waiting to exit Laaloa Drive onto Alii Drive? YAMAMOTO:Yes. EXHIBIT B 17 RHO:So at what point do you think, I’m asking, I want to know when we get to F? Maybe I should just cut to the chase. YAMAMOTO:You mean, how many cars additional? You can have either cars being added to Laaloa Avenue or traffic on Alii Drive could increase; and I don’t know how many at this time. It’s a software program that we use to do it; and it can be done, you know, by parametric, an analysis. You could just add on theoretically cars and it results what, either way the traffic on the side street can be increased or the traffic on the main street can be increased. And if there’s no traffic increase on the side street, the level of service will decrease also. RHO:Laaloa Drive at this point services that big subdivision that’s still in construction, right? And then we still have that Alii Parkway, or whatever that road is going to be, and I know it’s still up in the air, and whatever’s happening there. But in the foreseeable future, in the next, let’s say, year or two years, and Alii Parkway is not built, all the traffic will exit out of Laaloa Drive. And therefore it’s fair to say that this thing will increase from D to E? YAMAMOTO:Probably with traffic, if traffic is added. RHO:Probably. And if you knew how many houses were being built and completion in two years you could actually estimate the, what is it called, delay in seconds per vehicle existing Laaloa? YAMAMOTO:If we were given the number of units, yes. RHO:Excuse me? YAMAMOTO:If we were given the number of units, yes. RHO:Yeah. Okay. Is there any consideration given to, I guess you’re just looking at that and that’s fine. But is there any consideration given to the traffic flowing just on Alii Drive, or is that just taken into consideration as you’re looking at that? YAMAMOTO:Yes. If the traffic were to increase on the Alii Drive without any changes to traffic on the side street, Laaloa Avenue in this instance, level of service would decrease, yeah, delay would increase. RHO:Right. So therefore it would go to either E or, C would go to D, etc., etc., it would go up? YAMAMOTO:There are ranges as shown on Page 8, yeah. So depending on the magnitude of change that occurs, it could or could not cause the change in level of service. RHO:So from your study, do you see it increasing? YAMAMOTO:We do show that there would be an increase from Table 2, you know, because of the ambient traffic growth, that there would be a decrease in the level of service from C to D in the afternoon. So, again, you know, that’s part of what the, you might say, the results of the growth of traffic that would occur. As for, we don’t, we do not calculate level of service EXHIBIT B 18 for the thru traffic on Alii Drive because they don’t stop on an unsignalized intersection. We add an unsignalized intersection. If the intersection were signalized, then we’ll be counting the level of service on the main street. Okay. RHO:Okay. Thank you. ALAMEDA:Thank you, Mr. Rho. Well, we have more Commissioners which means we have more questions which means we have, you know -. So I just want to acknowledge the very patient public, you guys are good behaving, good boys and girls. I wanted to take a 5-minute recess and we’ll come back and maybe ask more specific questions and then move quickly to testimony. Okay, so let’s take five. RECESSEDThe Chair called a short recess at 10:55 a.m. RECONVENEDThe meeting reconvened at 11:01 a.m. ALAMEDA:Will the Planning Commission come back to in order. Thank you. All right. Just for the rest of you who are waiting, you know, the agenda has already been pushed back, so we will probably take lunch after this. Okay? So it’s just for the rest of the potential testifiers and applicants to know. But picking up where we left off, I wanted to turn to Commissioner Iwashita or any other questions before we do have two testifiers today. NOMURA:Three. ALAMEDA:Oh, three testifiers, okay. So we do want to get back on track. Commissioner Iwashita? IWASHITA:Thank you, Mr. Chair. Mr. Yamamoto, the last area of question I have relates to our requirements in considering SMA applications to include adverse effects from potential cumulative impact of individual developments, not just this development but other potential developments and, you know, any adverse impact that it might have, those cumulative developments would have on, you know, both public access and the ability to evacuate this area. So I’d just like to know if your study addresses the impacts of this project together with other potential developments along Alii Drive of the undeveloped, currently undeveloped areas. YAMAMOTO:Yes, we did. Under the ambient traffic forecast, we increased the traffic by 68 percent, a very large percent which probably will not occur, but that was to take into account for the various growth in the area. IWASHITA:And in doing so, did your, does your study address the effect of that growth on the ability to evacuate the area? YAMAMOTO:Yes. Specifically about evacuation of the area? IWASHITA:Yes. YAMAMOTO:When we began the study, we talked to the State and County officials and none of them brought up about the impact of evacuation. Okay, that’s a very specific topic. EXHIBIT B 19 IWASHITA:I’m not asking you what other officials did. I’m asking you whether you did any investigation. YAMAMOTO:We did not look, we did not study evacuation, okay. IWASHITA:Okay. So your report does not address the evacuation issue? YAMAMOTO:No, it does not. IWASHITA:Okay. The last point that I wanted to bring is, I guess my understanding of your answer previously about my questions of public access was, your personal, you related your personal observations as to the flow of traffic, and you didn’t think that to be excessive. Does any part of your study address what the current conditions are as far as, and I take access to mean not just flow of traffic but actual available parking and those kind of things, did you consider those other factors in addressing public access to the recreational areas? YAMAMOTO:In terms of parking, I know that parking is very difficult there, and we did have the parking in the property access -. But, traffic, again, can be very busy there on weekends and weekdays it might be big, higher there on weekends than on weekdays. But I know parking is, but this project should not affect the parking on that, on the street itself. IWASHITA:Thank you, Mr. Yamamoto. ALAMEDA:Thank you, Commissioner Iwashita. Any other questions for Mr. Yamamoto? Commissioner Watanabe? WATANABE:Okay. All right. I have a question more for the Director. And I know that you, I think you were looking up the map that Mr. Graham referred to. But I thanked Mr. Fuke for volunteering or the concessions that they made for improving the parking along Alii Drive. And I was wondering if you were okay with adding that, he had some suggested wording, if adding that as one of the conditions to this SMA Permit -? YUEN:That’s fine with me. WATANABE:Okay. And then, certainly, I’m wondering ‘cause I -. I’m wondering if we should add in a requirement about a tsunami evacuation plan in conjunction with Condition 7, which is a circulation plan. ‘Cause it seems like the circulation plan itself is really in flux at this point; and so I’m not sure that they could, you know, do a good job of an evacuation plan without thorough knowledge of, you know, a firm circulation plan yet. And I’m wondering if we should include that as a requirement. Maybe I missed it but I don’t see where we have a requirement for any type of evacuation plan as a condition. ALAMEDA:Director? YUEN:I’m just not sure what an evacuation plan would be other than for a tsunami where you had, a typical tsunami where it’s generated on the Pacific Rim and you have several hours warning. The plan would be to get in your car and, you know, get on Alii Drive EXHIBIT B 20 and drive. I think it’s actually closer to Poinciana, but I know that Poinciana was very congested in the last evacuation. If I were them I would drive to -. WATANABE:Yeah. The only reason I brought that up is I do believe we did make some requirements of evacuation plans in other projects, and maybe my recollection is wrong. But I’m just wondering if, you know, we should document something like that. Or if it’s not necessary then, you know, I’m fine with that, because I agree, you know, the first order of business is get to higher ground. ALAMEDA:Okay. Director? YUEN:I can’t remember if we had required a specific evacuation plan before. You know, I just don’t remember. It seems like the plan would consist of giving people -- and it might be useful, especially if they might be occupied by people who don’t live or only live in the community part-time, that happens -- and it might not be a bad idea to have specific instructions, you know, in the lobby of the building as to what you should do. And, also, I believe, Sidney, this is not actually in an inundation area but it’s in an evacuation area, right? FUKE:I recall, I know definitely evacuation area, but I don’t know if it’s in an inundation area. YUEN:We should have that in. Does it say the property is not in the, I didn’t think it was in an inundation area. HAYASHI:The flood zone for the property is AE. It’s not necessarily within the tsunami inundation area. YUEN:The AE is just a regular flood zone. Where’s the flood zone on the property? It’s in the upper corner, huh? HAYASHI:The AE is generally in this, makai of this. So the remaining project is X, Zone X. YUEN:Okay. Well, the difference is the inundation area is the actual area where you expect tsunami run-up and then the evacuation area is much larger. If you open your phone book you’ll see the evacuation area.And part of the idea behind the evacuation zone is that if you actually have a tsunami, many neighborhoods will be cut off after the tsunami. Even if they may not be affected by the tsunami itself, there’ll be debris, telephone poles across the road, and you’d be stuck in your property, so they want you to evacuate. And they want to have control over the area, as well to make sure that everybody is out that is in the vicinity. So the evacuation area is much larger than the inundation area. But it might be useful to, for say in a multi-family building to have clear instructions, you know, of where you should go and things like if you feel -. What a lot of people don’t realize is if you feel a very strong local earthquake you could have a big tsunami within seconds, so that you need to get to higher ground by walking in that situation, don’t worry about your car. If you’re in a low lying area you walk to wherever you can get to as fast as you can. So we could have a condition requiring a plan. It wouldn’t be something really elaborate. It would probably just be something like I just stated. EXHIBIT B 21 ALAMEDA:Any questions for Mr. Yamamoto before I let him sit down? SIRACUSA:No, I just wanted to add that I noticed that the Civil Defense Agency did not come forth with a comment on this application. WATANABE:Well, it’s good then. So maybe we’re in the clear then. SIRACUSA:And I don’t know if that’s good, or bad, or -. ALAMEDA:Okay. Mr. Yamamoto, you can -? Oh, you’ve got one more question, Commissioner Iwashita? IWASHITA:Thank you for your indulgence, Mr. Chair. I wanted to ask Mr. Yamamoto, you know the projected 68 percent increase that you used, how much additional development does that or is that based on? YAMAMOTO:We used that 68 percent because we could not get any clear picture of what level of development was expected when we asked the County that question when we started the study last year. But it’s a very large amount of development that would be occurring. IWASHITA:So how many additional living units does 68 percent represent? YAMAMOTO:At least several hundred. IWASHITA:Two or three hundred, or eight or nine hundred? YAMAMOTO:Probably below five hundred. IWASHITA:Below five hundred units. So, basically, three more projects like that, three more projects like this? YAMAMOTO:Within the timeframe of the study. IWASHITA:Okay. And so that’s two years down the road, right? So you’re not looking at if we, when this is fully developed? According to what the current zoning is, you didn’t look at that? YAMAMOTO:No, I did not. IWASHITA:Okay. Thank you. ALAMEDA:Any questions for Mr. Yamamoto? Seeing none, thank you, Mr. Yamamoto. You may be seated. Any other questions for the Applicants? Seeing none, you may be seated. All right, we have three testifiers. Mr. Curtis Tyler, Merryanne Stone and Richard Draeger. Please come forward. Please raise your right hand. Do you swear or affirm to tell the truth now before the Hawai`i County Planning Commission? EXHIBIT B 22 TESTIFIERS:I do. ALAMEDA:Thank you. You may be seated. We will start off with Mr. Tyler, if you don’t mind. Please state your name and address for the record. TYLER:Good morning, Mr. Chairman, Members of the Hawai`i County Planning Commission, Mr. Yuen, Mr. Torigoe and other staff. My name is Curtis Tyler. My residence address is 73-1305 Hiolani Street, Kailua-Kona. I appreciate the opportunity to present some further comments this morning. I wanted to let you know that I have met with Mr. Fuke subsequent to the meeting, past Planning Commission meeting on this subject, also with Mr. Dickler and one of his associates, Mr. Brooks, regarding some of the concerns I had, as well as some of their specific plans. And they were very cordial productive meetings, I might add. I appreciate the questions that Commissioner, well, all the questions that the Commissioners have posed this morning to the Applicant and their representatives. I especially appreciate the questions by Commissioner Siracusa. It’s very nice to see you, you’ve come all the way from Puna and, also, Mr. Graham who touched on some of the cultural resource issues, which I very passionately touched on at the last meeting. I continue to have ongoing concerns about the process that is, is or is not being followed with respect to SMA applications. And while I agree that, while I understand that we have a difference of opinion, some of us may have a difference of opinion, the fact is that no cultural impact assessment was done for this project. Archaeological inventory survey was done. Outreach was made to the possible descendants. But no outreach, no assessment, no study was done to address the existence or nonexistence of any traditional and customary gathering practices. And I would note, I want you to note that at the bottom of Page 5 of the Planning Director’s Recommendations, it says and I quote, “In view of the recent Hawaii State Supreme Court’s ‘PASH’ and ‘Ka Pa`akai O Ka `Aina’ decisions, the issue relative to native Hawaiian gathering and fishing rights,” and it’s much more than that, I might add, it’s traditional and customary practice, “must be addressed. These rights must be addressed in terms of cultural, historical, and natural resources and the associated traditional and customary practices of the site.” This has not been done. Dr. Hahn has done an outstanding job of assessing the archaeological inventory. He has contacted myself, and I believe a couple of other people, regarding our connection to this land; and I greatly appreciate the fact that he has been really proactive, as has Mr. Brooks and Mr. Dickler, have Mr. Brooks and Mr. Dickler. However, the issue covered under, which is covered in Rule 9 of your SMA Permits, and it’s very specific in there and it’s addressed again here in the Director’s report, has not been done. And so the questions that Commissioner Siracusa asked were absolutely pertinent questions. And I say this not because I’m opposed to this project. I say this because the process is not correct; and as long as the process is not correct, we’re going to have problems. I don’t anticipate major problems with respect to this particular one because there are large preservation areas, and I think you know about that. But those of you who’ve been around these meetings for a while know that my position has always been pay attention and be proactive upfront. If you don’t then you have problems. As an EXHIBIT B 23 example, how is Mr. Dickler going to re-design his project after it’s built when it comes to light that people are going to come in the middle of the night to that heiau, a very important heiau, and leave ho`okupu or go to their ilina, their burials, and leave ho`okupu, or utilize the trail? As for Commissioner Graham’s question about the trail and its applicability with respect to the Highways Act of 1892, I would point out to you that this trail predates the construction of the Kuakini Wall. It goes underneath the Kuakini Wall. The Kuakini Wall was completed around 1840, that’s quite a few years before 1892. Dr. Hahn in his report clearly states that this was a major mauka-makai route for access to and from the makai and mauka areas. So this is not just some little dinky trail; and I think Dr. Hahn would confirm, as with the folks from Na Ala Hele, that this is really quite a spectacular trail, almost one of a kind; and I applaud the Applicant for wanting to, and for agreeing to preserve this. When we get to the top portion, that’s not the kuleana of today, and that was determined in my meetings with them. And so I come to you not to be critical of this but to point out that the wall is very clear and your rule is very clear, and it just needs to be followed. Because if it isn’t, some time there’s going to be some real problem and we’re going to have another Hokulia. And I don’t espouse that, I don’t want that to happen, and I can’t imagine anybody in this room wants that to happen. So with that in mind I would like to make some recommendations and a couple of short comments. I believe that the, and I spoke to you about this with some specific numbers last time, but the heiau, the buffer around the heiau on that large complex, preserved complex, needs to be as large as possible. And I think the roadway needs to be shifted north, roadway and the parking lot. I’ve spoken to Mr. Dickler about this and he said he’s going to do exactly what they, as much as they can to make it closer to the northern boundary so there is a big buffer around there. Normally there’s a 100-foot buffer, I say normally. On a number of occasions along Alii Drive where there have been heiau, the State Historic Preservations put a 100-foot buffer around there. If we put a 100-foot buffer here, I think it’s clear that some of this couldn’t happen; and I’m not going to be so draconian as to say that that’s absolutely what has to happen. But Mr. Dickler is being, you know, sensitive to this. I think it’s extremely important, there has been quite a bit of discussion today, rightfully so about evacuation and flooding, both from mauka and from makai. And those of you who are familiar with this area know that’s exactly what happens. And these people, there’s no way for them to get to Royal Poinciana, there’s no way for them to Laaloa when the tsunami comes, or a hurricane comes, or the flooding comes from mauka because they’ll be surrounded. I know this from my own personal experience, I’ve seen it. So there was discussion today about a parkway access plan which shows a right-in and a right- out access on the adjacent Kingman property in Pahoehoe III. That road will not be built. And how do I know that and how can I make such a definitive statement? Because the property is loaded with burials. And I am a recognized lineal descendant, my third great grandparents were buried there along with other members of the family, and the Burial Council has made a decision, which was appealed but which decision was upheld by the Appeals Board, none of those burials can be moved. It’s a very narrow parcel and it’s virtually impossible. Furthermore, the abruptness of the slope, unlike the subject property, is not going to lend itself to a connection very well. So while it may show on some plans, the better choice, in my estimation, gentlemen, lady and gentlemen, is to have a one-way and make this a condition, rather than saying in the EXHIBIT B 24 condition numbered at, let’s see what was the number here, that they can’t -. Here, it’s Condition No. 5, “An access and circulation plan providing for interconnection,” and then it says, it goes on to say, “No access to the Kahului to Keauhou Parkway shall be permitted unless approved….” I would suggest that you be more proactive and you say that, a one-way emergency access road, “A one-way road for emergency access only to the Kahului-Keauhou Parkway shall be permitted” and that it be, “and it have a lock on it for emergency personnel only.” And this is done quite often; and it is feasible, it is possible. But to depend on going through the Kingman property is a problem ‘cause you’ll be crossing two historic trails, one on this property and one on the Kingman property, and the burials. A number of burials are very prolific. And I realize you don’t know that, but they are. I’ve been working on this for over 15 years so I know exactly what I’m talking about here. Additionally, and I thank you for the leeway, Mr. Chairman, to make these comments. I hope they’re very pertinent. I had concerns about the cultural resources in the Parkway right-of-way; and Mr. Dickler has told me that title has already passed to the County. I don’t know if that’s, I assume that’s true. If it has then that’s the reason that none of those resources was covered in the Archaeological Inventory Survey. If it isn’t, then there may be other items -. And I also found out that this SMA application does not include properties above the Great Wall of Kuakini. That’s a separate parcel. It would be handled on another matter so I won’t -. And I did bring this up last time I was before you, so we won’t be discussing that. So the next condition would be to restrict any grading changes, elevation changes so they’re minimal. We don’t need these 50-foot cuts and 50-foot fills. Mr. Dickler has told me that there aren’t going to be those kind of major cuts and fills. But I would hope that you’d put it in as a condition because it just lends itself to more runoff. And two more, and that is add a condition, to which you’ve already spoken about and which I agree with, to augment and provide public parking at the makai end where the flood, the AE area is. It’s very important. And to work with, and to combine it, to do it in concert with the County land which is where the pump station, sewage pump station is. This should have been done many years ago and has not been done. There’s plenty of space there for a lot more than, you know, ten parking places. And we really need the parking there because the on-street parking is very dangerous. It’s just a matter of time before somebody gets killed down there, with people coming in and out of cars. And it’s every day it’s congested down there, not just Saturdays and Sundays. And lastly here, that the, any claims for traditional and customary practice which are constitutionally protected will be honored. And I hope that they do this, they find this out before they build, design and build their project. Because if they build it and then they find out, they’re not going to be able to redesign it, obviously. And so that’s the reason one needs to do these things upfront. And, let’s see, did I request a copy of the Parkway Access Management Plan? Mr. Chairman, did I already ask you that? ALAMEDA:Yes, you did. EXHIBIT B 25 TYLER:Okay. And I’d like to have that if I can because I think it’s very relative, it’s very relevant to what this Steering Committee of the Kona Community Development Plan has; and I don’t think we’ve ever seen that. ALAMEDA:Sure. TYLER:And make sure, please, you are paying attention to the evacuation flooding; and I think this mauka-makai road, but only one way. In other words, you don’t want it opened. Just, it’s only in time of emergency, and that’s it. Thank you very much. I’d be very happy to answer any questions. ALAMEDA:Thank you. Any questions for Mr. Tyler? Commissioner Salavea? SALAVEA:Thank you, Mr. Chair. Thank you for your testimony, Mr. Tyler. So is it your contention that these sites are actively being used or recent, in recent history have been used? And that’s the reason for the need to identify what type of uses, how frequent and so on, so that they can be considered in the design of this project? TYLER:Well, let me say that, yes, perhaps. I’m not a, I’m not an expert on who may or may not be going on that property or have specific lineal descendancy. I don’t claim lineal descendancy to this property at this point in time. I do claim and will be formally claiming cultural descendancy, which is why Dr. Hahn sent me this stuff. But it’s not enough that somebody is, has done necessarily, just has done it or might be doing it. It has to go much beyond that; and I gave you folks at the last meeting specific information about what was required. I read to you right out of the OEQC Guidelines. And I did this not to create a problem for Mr. Dickler or Mr. Fuke. I did this because I want to be helpful to this Board, to this Commission, excuse me, to make sure that you, that you have an opportunity to consider those things which are legally required to be considered so that we don’t end up in an adversarial relationship; and I’m not suggesting that I’m going to be in that position, Mr. Salavea. I’m just saying it’s much better to be proactive than it is to be reactive, ‘cause then it costs a lot more money and time. So it’s like the trail, you know, whether the integrity of the trail out there is not, is immaterial as to whether or not it’s going to be traditional customary gathering rights, or traditional customary practice would be allowed. And it’s, there are people from this area whom I know that I know, I feel fairly certain, I can’t say I know, but I feel fairly certain would exercise their traditional and customary rights or practice to cultural resources located on this property, as well as above it and in the area. Thank you. SALAVEA:Just to follow-up -. ALAMEDA:Sure, follow-up. SALAVEA:So, and I guess the point I got from your testimony is that the archaeological resources and the cultural practices and resources are related but still, they’re interdependent, but they’re also independent and studies need to be -. Well, we know the archaeological sites have been identified. But the cultural aspect and component of what has been practiced and what might still be, being practiced is independent, and needs to be identified and specified. Is that what -? EXHIBIT B 26 TYLER:Yes, sir. You hit that nail right on the head, I believe. And the reason is because the inventory survey deals with what’s actually there. It doesn’t deal with the intangibles that can’t been seen. And so this is what happened in the Ka Pa`akai O Ka `Aina case, which I think you have some familiarity with. And this is also the reason, as clearly stated in your revision of your rules of last January, I believe it was, no, excuse me, 2005, it clearly stated that the purpose was to comply with the Ka Pa`akai as well as the Public Access Shoreline Hawai`i decisions. And I don’t know whether any of you have read them but there’s some pretty good stuff on the website available through the OEQC as well as other places. I can’t explain this very simply. I’m not an attorney so I can’t do that. ALAMEDA:Mr. Salavea, does that answer your question? SALAVEA:Yes. Thank you. ALAMEDA:Okay. Any specific questions for Mr. Tyler? Commissioner Siracusa? SIRACUSA:Yes. Mr. Tyler, I have always been very impressed with your attention to detail -. TYLER:Thank you. SIRACUSA:And, once again, I’m impressed. I had been considering offering a condition regarding the cultural resources which would require the Applicant to do outreach through ads in the OHA newsletter and West Hawai`i Today to see if we could generate any legitimate claims for gathering on that parcel. What are your thoughts about such a condition? TYLER:Well, I was, may I answer? ALAMEDA:Sure. TYLER:I heard you speak, ask this question earlier of Dr. Hahn. I thought that was a very novel idea and one that I don’t think has been done.All that’s required under 6E is the publication for a possible descendancywith respect to the burials. And as Mr. Dickler and I were talking at the break, you know, he can’t be expected to know all of these intricacies of the cultural resource protection laws, but you are required as part of the SMA to do this. So perhaps that’s an idea. I think my real answer is, well, if they had done the Cultural Impact Assessment to begin with as required by your rules, we wouldn’t be having this discussion because there’ll probably be people here who would be coming to speak to you about the protection of their traditional and customary rights. I can’t say that unequivocally, but that’s what’s happening in past situations, assuming they’re notified. Thank you. SIRACUSA:That’s a big assumption; and that’s what my concern was while I was considering a possible condition to be required to publish notices to do that kind of outreach to see if we could get that information. TYLER:I think that’s a wonderful idea. I believe that it should be applied across the board to all, not just this applicant; and that’s where, you know, one has to be careful. Because you just don’t do selective, you know, selective conditions and then don’t put it on EXHIBIT B 27 someone else. The law is clear; and maybe in addition to what the law says, maybe Hawai`i County needs to have a policy for these kinds of things. And I would certainly support that because, again, the more you can do this upfront instead of on the back end, be proactive, it’s helpful. Thank you. ALAMEDA:Commissioner Siracusa, follow-up? SIRACUSA:Yes. Actually, this is to the Director -. ALAMEDA:Is there any more questions for Mr. Tyler? SIRACUSA:That, on what Mr. Tyler’s recommendations were. ALAMEDA:Okay, so you can remain there still. We might have questions, I’m not sure. Okay? TYLER:I don’t mind sitting here, sir. SIRACUSA:I was wondering if the Director would care to comment on some of the conditions that Mr. Tyler proposed. ALAMEDA:Director? YUEN:Well, I think it’d be useful for me to just talk briefly about what is in the record and the kinds of things we typically do look for and get to assess whether there’s an impact on gathering rights, or other traditional and cultural practices in an SMA Permit application. First, we will, we require an archaeological study or clearance from the SHPD that there aren’t any archaeological sites. This gives you a study of the physical cultural remains of the Hawaiian culture that may be on the site; and here we have a thorough study. We have an assessment of the significant sites; we have a condition requiring the physical preservation of those sites. The actual site buffers will be set. The process is that SHIPTA will look at a preservation plan prepared by the applicant and will ultimately agree on what the site buffers will be. So we have that; and so we have protected the physical integrity of the archaeological sites. Then, if you, also, the Burial Treatment Plan will discuss access to burials. The preservation plan will, may or may not, depending on the type of site, may or may not discuss whether the people will have access to the site itself. Then you have the question of gathering. Gathering, there are some extremely rare things like red dirt that may be gathered, typically there, that are not plants or animals. Okay? Typically the archaeological study if there’s evidence of this will mention that. Then you have plants and you have animals. And this here, this application is, as in typically with our, at least our larger SMA applications, we have a botanical study which shows that the site has, dominated by introduced plants that are typically not gathered. They did mention that the ko`oko`olau is there. There’s no indication from the study itself whether that it is gathered. They do say that it is much more common in the Kailua area than thought and, so, I’m not recommending any specific actions to be taken with the ko`oko`olau.There is a faunal study. There’s no, there are no animals that are typically gathered or used culturally listed in the faunal study. It’s not a EXHIBIT B 28 shoreline property, otherwise there’d be, you know, major issues with the gathering along the shoreline. So we have all that in. There’s also, as to finding out what kinds of human uses are being made on the property at the present time, we don’t always have this. But I see that there was a world history done with Mr. Tyler. And very often these kinds of practices, if there are ongoing practices, they come out in the oral history where the person doing it tries to find kama`aina of the area to ask some questions about present and past use. So that’s what we have; and that’s what we’ve looked at to fulfill these requirements about protecting cultural resources and protecting cultural practices. The last thing I’d like to say is, well, a couple of more things. I would not suggest that the Commission put a specific access condition into this, because this needs to be done in an overall context of the Parkway planning. When the Parkway is built, the evacuation will greatly improve. Even if there’s no access from this property directly to the Parkway, they’ll be able to go onto Ali`i Drive, right around the corner to La`aloa, and then from La`aloa up to the Parkway; and there’ll be another access point a little bit to the north at Lako Street. So people should be able to get off of Ali`i Drive much more quickly than they can presently. Now I’m not saying that it’s not a good idea, but it may not be a good idea to introduce a newer emergency exit on to the Parkway where people who normally drive the road are not used to having people come in and out. That, it may or may not be a good idea; and I don’t think we should do it on the fly here as a matter of the Commission. Finally, we have put, we didn’t put a condition on the elevation of the building pads. That’s, I have no problem with having a condition like that. We have done that in a couple of cases in the past where it seemed like there was a potential that they might really build up the site, elevate the site and block the mauka-makai view. So I don’t have a problem with doing that. I don’t know what the Applicant’s plans are. Something on the order of prohibiting the elevation of by more than five to ten feet above natural grade I think would be, I’ve certainly no problem with that. I’d invite the Applicant’s comments. ALAMEDA:Further questions for Mr. Tyler? TYLER:Mr. Chairman, I have to make one comment here in light of the Director’s comments. ALAMEDA:Can you be brief, please? TYLER:I will. ALAMEDA:Thank you. TYLER:But this is not a brief matter; and the Director touched on the studies that you have. But I have to say again and reiterate as emphatically as I can, you do not have any studies in front of you because none were done about the presence, existence, absence of traditional and customary practice. This is required by your rule. It is not part of any Burial Treatment Plan, it is not part of any Preservation Plan and it is not part of any Archaeological Inventory Survey. I realize that this is something new, since 19, what, since 2000 when the EXHIBIT B 29 Supreme Court upheld the Ka Pa`akai decision, but you are obligated to do this. And, you know, if you can’t follow your rules with respect to SMA, you potentially have a problem; and I’m not trying to create a problem. I’m just pointing out to you what your rules and what the law requires. And while I respect Mr. Yuen a great deal -. The comment was made that there aren’t any known ones; and there aren’t any known ones because no one asked, including Dr. Hahn. And, indeed, we did have some discussions, both over the telephone, by email and in person, but those questions were not asked. And you should ask Dr. Hahn if he ever did anything along the lines of trying to determine whether or not any traditional or customary practice has existed, could exist and what it might be. Furthermore, all of the sites that Mr. Yuen mentioned pertain to burials. They did not pertain to Alanui or Na Ala Hele trails, nor did they pertain to heiau, both of which there are major examples on this. And one has to only know and read the history books, which I don’t expect you to have done. And this is why the Impact Assessment has to be done. And, again, I don’t know what else to say except it’s right there in your Rule. You should read the Rule if you haven’t. I’m talking about the revised Rule. Thank you. ALAMEDA:Thank you. Okay. Moving right along. Thank you, Mr. Tyler. You can be seated or you can stay there, up to you. TYLER:Thank you. ALAMEDA:Ma’am, could you please raise your right hand? Oh, I did already. STONE:Aloha. STONE:Pardon me? ALAMEDA:I asked did I swear you in? STONE:Yes, you did. We did all together. ALAMEDA:Yes, I did. Could you state your name and address, please? STONE:My name is Merryanne Stone; and I live at 77-159 Kaipoi Place, and I’m actually at the top. If you were to go across, my property backs up to the Kingman property. And from my understanding the Kingman property is land-locked, so that’s kind of an issue for that landowner; and that’s where that leads. First of all, I want to thank you for the opportunity to speak. I want to talk to Mr. Ashida (sic) and tell him how much I appreciate the fact that he made mention of having the developer move the sign; and I want to thank the developer for doing the sign moval very fast, he did. And I had many people mention to me that they were unaware this was happening and with that sign’s presence. Unfortunately they’re working and they can’t be here. My first problem that I have with this project is that every condominium should have two parking spaces. The way I understood it from last week’s meeting was that Mr. Fuke thought that part of that sewer treatment channel was going to be sort of an overflow for some of the condominiums, but he didn’t mention that this time. And I’ve been, I live, I have to come down Princess K, come down La`aloa -- by the way, I’m on the CDPD panel and I’m also going to be EXHIBIT B 30 on the advisory for La`aloa. They’re now saying that La`aloa connection, they don’t even know where it’s going to connect up at the top; and it’s a two-year process working with C2H Hill or somebody. So there’s a series of meetings on La`aloa. We’re not getting La`aloa very soon, if whenever. Anyway, I’ll go to the meetings. But as far as two parking spaces, that parking lot right now with the sewer treatment plant, sometimes has 20 people, 20 cars in it. Last night at 7 o’clock there were 13 cars; and then on the weekends, of course, the whole Pahoehoe Park and White Sands Park beach parking is totally filled. The way I understand it, the County is going to come in and take away some of those parking spaces at White Sands because of cultural aspects, I guess. So not only are you going to lose some parking spaces at White Sands, but in the process there’s going to be a lot of confusion and more impact there. To say that Alii Drive is not, I’ve lived on Alii Drive for 16 years. I love Alii Drive. I hate to see what’s happening to Alii Drive, one of the reasons I’m here. So we need more parking spaces. And I suppose what that means is that the developer is going to have to make his subdivision, his development smaller so he can accommodate those. The other thing that I wanted to mention is that in his letter Mr. Fuke said, well, first of all, that 15 buildings I don’t see a swimming pool. I don’t see anything of any recreational aspects for that complex. So what it means is everybody is going to utilize Pahoehoe and White Sands Beach as their big pool, apparently. And so it said in Sidney’s letter, he said the goal of the Applicant is to create a pedestrian-oriented complex with paths leading to Alii Drive and the parks in the vicinity. Well, if you’ve got another 120 condos that are coming into this area, those parks can’t take the responsibility and the burden of the recreation for this new complex. And, basically, that’s all I have to say. So I hope that you, oh, and I also want to say I appreciate this committee; and I think this committee is a great way to slow down the process in Kona. And I applaud you for asking questions and finding out more about Kona, because I know it’s difficult. And so if we can slow it down a little bit and do smarter growth, that would be wonderful; and keep the traffic safe on Ali`i Drive, please. Thank you. ALAMEDA:Thank you, thank you for your testimony. Any questions for this testifier? Seeing none, thank you very much with testifying today. Sir, please state your name and address for the record? DRAEGER:Good morning. I, too, thank you for the opportunity to make a comment today. My name is Richard Draeger. My residence address is 511 McClay Road in Novoto, California. For those of you that are unfamiliar with that, it’s about 30 miles north of San Francisco. My roots, or I shouldn’t say roots, but my observation of Kona goes back to at least 1960 when my parents opened a business here; and they were here until 1985. They have owned a building, have owned a condominium at 77-6467 Alii Drive, Unit B-1, since the building was built in 1964; and they resided there as their permanent residence through about 1985. I and my family have acquired that condominium when they died in 1998; and, so, that has brought me to Kona, frankly, a lot more times since 1985 and since their death then before that time. So what I bring to you today is some perspective and some bits on the ground sort of observation, if you will, of what’s going on on Alii Drive. Because in Unit B-1, which is on the second floor, I have a wonderful view of the beach and the road, and the people that go along that road, and the numbers of people that go along. And while I freely admit to you that I’m not EXHIBIT B 31 there every day, I think I probably observe it more than the Traffic Department does if they don’t think it’s congested. So let me comment on a couple of those things. First, I would say about this development that I would, a native Californian in a place where infrastructure has lagged development, period, end of story. And, unfortunately, Kona has fallen into that. It wasn’t that way when my parents were here but it sure is that way now. And so in my view this development is taking up capacity, particularly with respect to traffic and congestion; and that shouldn’t be. This development shouldn’t happen until capacity can at least be maintained, not allowed to degrade further. And so if Alii Parkway is a solution to that, perhaps you ought to carefully consider some pausing and some delay until a certain amount of the infrastructure can be put into place. Secondly, and, frankly, and let me say, I’m also representing the Kona White Sands Homeowners Association as its president here. There’s only 10 of us but my views are their views as well. I would tell you that I am far more concerned, and the Homeowners Association has no objection to this development per se; and Mr. Fuke has been very cordial and helpful in terms of our understanding. I’m more concerned, frankly, about public safety. I don’t know whether there have been, and I haven’t done the research to know whether there have been serious injuries as a result of pedestrian-auto collisions along the stretch of White Sands Beach. But if there haven’t, there are going to be; and somebody, someday, is going to be seriously injured there. And it comes, in my opinion, from allowing parking on the ocean side of White Sands Beach. Parking is pretty well not allowed on the mountain side, but on the ocean side, it is allowed; and people are darting in and out amongst the cars. And if the ingress and egress from this development is going to come out of the development along Alii Drive, over to Laaloa, and up to a major highway, you’re putting more cars in exactly the position that will cause them to hit people coming out of White Sands Beach. And there are people at White Sands Beach from six in the morning until seven in the evening, in fact before that. So while the congestion isn’t much at those hours, there are people there all the time. And so I’m just trying to put the County, in you that make the decisions, on notice that you have a serious public safety issue; and if it were me, I would be getting rid of parking so that there’s more visibility for the drivers that drive along Alii Drive. It has been done on one side but not on the other. That means that somebody is going to have to provide more parking. And maybe it’s an assessment district, but we all pay more taxes to have that done. Maybe it’s the new developments that provide more parking; and that’s what I would suggest in this case. There’s a letter on file that I have sent to you, and it’s in the file; and I won’t go through that letter in detail, but it makes some specific recommendations as to what might be done. Finally, I am concerned that I didn’t see anything in the record with respect to fire. I’m very conscious, because of the area I come from, with respect to fire and fire equipment, and how it can operate, and whether developments are too crowded for it to turn around. And I just didn’t see any comment from the Fire Department and I was surprised. Because where I come from fire equipment needs to be able to operate easily and quickly, and get in and out; and it looks like we’re creating a big peninsula here where that’s not going to happen. And I would second the motion that in this development with two-bedroom units, you’re going to need two parking spaces. One-and-a-quarter simply isn’t enough. And, furthermore, I would be willing to bet you EXHIBIT B 32 that a number of those people that live in that development, if they have kids in the upper reaches of the development, when they drive their car down to the beach or down to the Laaloa parking lot and park there to go there, they won’t walk.So with that, I’d like to stop and see if there are any questions that you might have; and thank you for the opportunity to express my opinions. ALAMEDA:You’re welcome. Questions from the Commissioners? Okay. Seeing none, you may be seated. Thank you very much. All right. Will the Applicant and his representatives, please come forward? Mr. Fuke, I know, and you heard the discussion and the testimony, your thoughts, feedback? FUKE:Sure. Thank you very much, Mr. Chairman, I’ll be very brief. I think there were kind of like three issues that were still kind of like simmering, one deals with the cultural archaeological resources, the impact on the coastal recreational resources, and relatedly the emergency access issue. Specifically, as it relates to the cultural archaeological resource, I, again, would reiterate our concurrence with the Planning Director’s explanation as far as the necessity for a separate “Cultural Impact Analysis Report.” I think it’s critical that in all SMA applications there’d be, that particular component be addressed. But whether there is a necessity for a separate Cultural Impact Analysis Report for this or any other application, I think it’s a function of an independent judgment on the part of the reviewing agency as well as the respective department. I just noticed today that you also have like another SMA application coming up; and, so, if that becomes like a standard like, you know, we need to address in an SMA application, for example, like traffic, the question is do you necessarily need to have a commissioned traffic impact study for each and every SMA application that goes before the Planning Commission, and likewise with the CIA. Having said that, I think, nonetheless, I think the question is like will the archaeological and cultural resources of the property be adequately addressed and taken care of prior to the development of the property. And I think that just given the existing conditions that you have and the process that’s already in place, the answer to that question is yes. And I say this in this kind of context is that one of the conditions require that before they can submit your plans for Plan Approval that we need to have like a Traffic Circulation Plan. I would like to also propose that prior to the submittal of plans, you know, for a Plan Approval, that you have an approved Burial Treatment Plan and your Archaeological Mitigation Plan also be approved. And through those two processes what you will have is like an indirect way of addressing much of these cultural resources, because I think Commissioner Siracusa and others may have talked about like how you show access to potential archaeological features in that area or likewise maybe the ko`okolau. And so through those separate generated reports, those things will be directly or indirectly addressed; and they will have specific mitigation in terms of how far your setbacks are, how you provide access, so on, and so forth. And these are all, those are all very important components that have to be included in any site plan for that area as well as your north, south, and mauka-makai kind of connection. And so from my estimation I think that it would be adequately accommodated. In conjunction with that, then, I would like to suggest that in addition to the original, I mean, the initial proposed amendments that there’d be an additional amendment for the Planning Commission’s consideration and that is that “No land disturbance permits,” but there’ll be like a grading or grubbing, “and Final Plan Approval shall be issued until a Data Recovery Plan, the Burial EXHIBIT B 33 Treatment Plan and Site Preservation Plan have been approved by the DLNR-HPD.” And I think that in so doing, that you will address the issues that have been raised by the Commission and the public. In terms of the coastal recreational resources and whether this property, you know, this project would have like an adverse impact on the SMA objective for coastal recreation, we would say no because it’s not blocking any access, it’s not a coastal property; but, as a matter of fact, through the proposed condition as like what we suggested earlier in terms of providing and improving additional public parking spaces on the makai portion of their property as well as the County- owned wastewater treatment pump station site, that it will actually enhance opportunity for further recreational uses of that area. And, in addition to that, there is already an existing zone change condition that the developer has to comply with, and that is they must pay a recreational impact fee in the amount of approximately $4-5 -, about $4,000, you know, per unit, and that would all be translated to the County’s coffer; and then you can improve the direct or indirect access program in that area, whether it’s hiring a new lifeguard, or whatever the County deems it appropriate for that area. Finally, in terms of the emergency access issue, I did review the reports again; and I would affirmatively state that this property is not in the tsunami inundation area. It is in the tsunami evacuation area. But, true, the County right now, if you’ve been keeping up in the news, they’re looking at trying to develop an overall evacuation plan, you know, for this entire area. We cannot offer, this project cannot offer to be like, you know, the solution to this evacuation issue. However, through appropriate mitigation, it can be a player in terms of how you address it. And the condition that the Director has proposed, Condition No. 7, which provides for an opportunity for an emergency access through the property to the Alii Parkway, I think is a measure to how you can address it. We tend to agree with the Planning Director that, you know, if you mandate that connection right now, when the Public Works Department, you know, reviews it with the Police and all the other agencies it may not necessarily be prudent. And so if that’s the case, and we’re stuck with it, we have to go back to the Planning Commission and then have that condition lifted. You know, alternately, if it’s left as to where the Director has proposed which would still be subject to the Department of Public Works’ approval, I think you can accomplish that. So having said that, I think that, if there are any other questions then we’d be happy to answer. ALAMEDA:Commissioner Watanabe? WATANABE:I have one question, and that’s in regard to any limitation on building pad buildups that was brought up; and I have no idea what the topography is like. It seems Mr. Tyler had indicated you don’t plan to build it up excessively. But I’m wondering if you’d be amenable to adding a condition that would somewhat restrict that. DICKLER:We would be amenable. Mr. Tyler is correct, we don’t plan on buildup. There isn’t a mass of buildup, except at the very mauka part of the property. There will be some cut and fill necessary at the very mauka side of the property. So as long as, I think Mr. Yuen suggested 5 to 10 feet, as long as it’s in, we get the higher side of that, not the 30 or 40 feet that Mr. Tyler was requiring, we’d be acceptable to that. ALAMEDA:Commissioner Watanabe? EXHIBIT B 34 WATANABE:Is it something you’d want to maybe add in, seeing that we can envision Alii Parkway or whatever you want to call that road going through there, you know, for our future viewplanes, maybe something to the order of 15 feet or something maximum? YUEN:Well, I think for us to say that the building pad shall not be elevated more than 10 feet above natural grade would take care of it. WATANABE:That will be sufficient, okay. ALAMEDA:Commissioner Iwashita? IWASHITA:Thank you, Mr. Chair. I would like to ask a follow-up question of Dr. Hahn, Mr. Hahn? I’m not sure how to address -. ALAMEDA:Dr. Hahn? IWASHITA:Dr. Hahn. Thank you for staying, Dr. Hahn. I’m looking at your letter dated July 26, 2006, and I’m trying to mesh that with Mr. Tyler’s expressed concern about complying with our rule regarding 9-11-f. Are you familiar with that rule? HAHN:No. IWASHITA:No? So your report does not address the requirements of Rule 9-11-f, is that correct? I’m sorry, 9-11-A-1-f. Is that correct, Dr. Hahn? HAHN:I don’t know the content of that rule. IWASHITA:Thank you, Dr. Hahn. Thank you. ALAMEDA:Other questions? Commissioner Salavea? SALAVEA:Yes. Dr. Hahn, in your letter dated to Mr. Fuke on July 26, you assert that the, and I’m quoting the last paragraph on the second page. “It’s my considered opinion that the Archaeological Inventory Survey Burial Treatment Plan and Site Preservation Plan approved provide the needed management program for the historic properties.” Does that also include the cultural aspects that these sites may encompass or represent? HAHN:When I’m talking about cultural resources in this context as well as historic properties, I’m talking about as defined by the rules.The Historic Preservation Division rules define historic properties as any building structure, object, district area or site including heiau and underwater site which is over 50 years old and has been evaluated to meet one or more of the significant criteria. So it’s a -. SALAVEA:It’s a physical description of what is on the ground -? HAHN:Yes, it’s a physical thing. EXHIBIT B 35 SALAVEA:Is that a correct -? Okay. So, and therein, I guess therein lies some of the issues I have, is because how I define cultural is practices that may exist and are intangible; and I’ll give you an example. As someone with roots that go back generations on this island, we have platforms and areas that we regularly use, that we have to traverse a private property to get to. However, the people who own the private property, and we’ve been doing that for, since I’ve known of the sites, and the people who own the property that we go over have no idea of what our cultural practices are; and that’s something innate to our family and, yeah, our family. And, so not defining what those are, or having the ability or that knowledge of what those cultural practices are, could lend someone to believe that there are none. And I am having a problem with using the, these three, the Burial Treatment, the Archaeological Inventory Survey and Site Preservation Plan, as a cultural management plan, because a cultural assessment in my view also includes going out and doing, like Commissioner Siracusa was talking about, surveying the people and finding out what kuleana exists in that area of the people who not only reside there but come from there, so the lineal aspect where they could have moved away, but traditionally may revisit the site three, five, ten years from now but have been practicing, and that practice was established by family members before them. So I’m having a problem with saying that this, those, these documents represent a cultural management plan and, as specified like Mr. Tyler. That’s what needs to get done, and I’m not saying it’s anyone’s fault. I’m just saying maybe SHPDA and DLNR have different requirements from what the Commission sees. And I see part of being as a Commissioner, a sitting Commissioner, that I have to represent these rules that Commissioner Iwashita has been, is referencing. So I don’t know, that’s not more questions, it’s more of a statement, but thank you. ALAMEDA:Any more questions? And we’ll save the statements for a discussion. Question? Commissioner Iwashita? IWASHITA:Yes, thank you, Mr. Chair. Mr. Fuke, it’s my understanding that the Applicant is relying on Dr. Hahn’s report and his letter basically to meet the requirements of Rule 9-11-A-1-f.Is that correct? FUKE:Can you, since I don’t have the benefit of the rule, can you recite the rule so I can -? IWASHITA:Yes. It says, “A written description of the anticipated impacts of the proposed development on valued cultural, historical or natural resources on or in the vicinity of the property, to include:” and then it goes down to one little “i,” “The identity and scope of valued cultural, historical or natural resources in the petition area, including the extent to which traditional and customary native Hawaiian rights are exercised in the petition area.” FUKE:Yes. The reason being that it’s, well, I need to qualify that. It’s together with, he’s not the one responsible to preparing the Environmental Report or the report that addresses all of the different components. It becomes like my responsibility to use the reports that were prepared by Dr. Hahn, the traffic consultant, the floral and fauna people, and put it into the report that’s before you. And it becomes then if there are any questions relating to a need to amplify it, then, you know, we’ll provide amplification as we have today and the last meeting. IWASHITA:So -. EXHIBIT B 36 ALAMEDA:Commissioner Iwashita? IWASHITA:Thank you, Mr. Chair. So that it’s clear in my mind, as far as meeting the rule requirements for identifying and establishing the scope of valued cultural resources, is the Applicant relying solely on Dr. Hahn’s report? FUKE:No. IWASHITA:What other parts of the application can you point to me to show what was done to meet the requirement of Rule 9-11? FUKE:Through the study done by the botanist. IWASHITA:And what part of that study identifies cultural resources as defined under the rule? FUKE:I think if you look on Page 14 of the report that I prepared, there is a description and a discussion on the valued cultural resources in the area. There may be a disagreement, you know, relative to different individuals looking at that component, but there is a discussion on the valued cultural resources. IWASHITA:Okay, so this is the section in which it’s specified as the mauka-makai trail, three burial sites, admission that there is no knowledge about the use of the property for gathering of native plants or gathering plants by native Hawaiians, and a reference to the ko`okolau, existence of the plant on the property? Is that the section you’re talking about? FUKE:I’m referring to the same section, correct. IWASHITA:Can you point out to me, maybe I didn’t see it, but can you point out to me anything in this section that talks about the cultural kind of practices that Commissioner Salavea was talking about? FUKE:There’s no specific discussion on the cultural practices per se. What I did allude to, however, was that in the, when you look at the archaeological features, I think what Commissioner Salavea was talking about is like, you know, you have like archaeological features and then they translate to, and they’re there because for cultural reasons; and, so, associated with that you have a Site Preservation Plan. And in conjunction with the Site Preservation Plan, the access questions that Commissioner Salavea was referring to, this Site Preservation Plan still has to be prepared, I mean, a draft has been prepared, has to be approved by the DLNR-SHPD which discusses access issues. IWASHITA:So, as I understand it, Mr. Fuke, basically, you’re holding yourself out as the expert on this cultural issue in accumulating these different studies and then interpreting them to comply, in your interpretation by doing so, you’re complying with Rule 9-11-f? FUKE:I’m not attesting to be the expert on that regards. I’m stating that I provide an interpretation of the reports, you know, to, for the benefit of the reviewer, people like yourselves and other agencies. And if there are unanswered questions then I think it would EXHIBIT B 37 behoove the Commissioners or the, you know, inquirer to ask those questions. I think as Commissioner Siracusa said that maybe, you know, like relative to the ko`okolau, you know, have there been any outreach. And I think that we’ve all kind of like definitely stated that there has been no direct outreach. And perhaps the suggestion that she was making, you know, may be an appropriate one, in a sense that if it can eventually embodied into the Commission’s rule so that it doesn’t necessarily be unique only to this property, but for that matter all other applications that go before the Planning Commission. IWASHITA:It seems to me the rules already require it, right? Rule 9-11-A-1-f basically says you have to have as part of this application the written description of the cultural resources. And it seems like, I mean if you’ve extrap -. FUKE:And I’m saying -. IWASSHITA:I understand that you’ve extrapolated, you know, certain assumptions about what may be there, right? But that’s all it is, basically a speculation, maybe, one, based on certain avenues. But it’s just speculation as to what may be related to that. But there’s no, I don’t see anything in this record that says anything other than that was done to identify any other types of cultural practices, as Commissioner Salavea has discussed and as Mr. Tyler has put on the record. Isn’t that correct? FUKE:Not in the, perhaps, like not in the context of like what a cultural impact analysis report as defined by, in my mind, the Chapter 343, which doesn’t apply in this particular situation here. IWASHITA:We’re talking about complying with the Ka Pa‘akai decision from which Rule 9-11-A-1-f is our effort to meet the requirements of the Supreme Court’s ruling, right? FUKE:Correct. IWASHITA:Okay. So -. FUKE:You may disagree relative to the findings, yeah, so -. IWASHITA:I do. I do. ALAMEDA:Let me to go to this side of the table. YUEN:Could I ask at question. Dr. Hahn, in doing an archaeological study, if you or your staff found evidence of active use of other than an archaeological site, like a heiau as evidenced by people coming to the site or things like hookupu ti leaf wrap offerings and the like, would you make mention of that in your archaeological report? HAHN:Certainly. YUEN:Did you make any such observations on the site and you have an estimate in your report of how many man-days were spent, person-days were spent on-site doing the study? EXHIBIT B 38 HAHN:Correct. YUEN:Yeah, what is that? HAHN:Sixty-person days. YUEN:The reason I ask these questions is that it bears on this, is that the kinds of things that Commissioner Salavea is talking about is, they are very difficult to get at. It’s very, they’re usually not recorded somewhere. There may be a family practice, they may be not done, they often may not be done openly. You may put a notice in the newspaper and the family may choose not to respond. You may interview ka`amaina in the area, who may, in fact, -. Probably the best way to do it, to get about it is to interview people who are familiar with the area. They may or may not be aware of these kinds of practices. So, and the reason I ask those questions is that there is some work-up that’s done in the archeological study that would lead you to this. They might miss it, but with anything, with any kind of investigation or study, you may miss, you may miss this kind of information. So it’s -. Well, the point I’m trying to make is that there has been an investigation, the law requires you make an investigation of cultural practices and cultural resources on the site. There has been this investigation. The different consultant reports contain the basic information, and Mr. Fuke summarizes it on page 14; and that’s why we accepted this. The Department accepts this as being an adequate survey of the site; and we feel that we have the conditions in there that adequately protect what has been found. ALAMEDA:Commissioner Siracusa? SIRACUSA:Yes. I just finished re-examining the botanical survey; and I did note that there is no reference at all in the survey to gathering of cultural resources. It’s strictly a botanical survey, which is what it purports to be. However, something, for example, like ko`oko`olau or pretty much any plant that is gathered is traditionally gathered only at certain times of the year. Perhaps in the spring when new leaves come out, the leaf would be gathered or when the flowers are in bloom. And someone could be for 60 days at a site and if they’re not there at the right time of day, they will not see people come and gather plant material because it just won’t be the right time of year. And this why I feel that although what was an interesting, you know, question that the Director raised about how many man-hours Mr. Hahn was there, the fact is that the question of whether or not anyone has been using the property for native gathering rights still remains unanswered for us here. ALAMEDA:Commissioner Watanabe? WATANABE:Yeah, I recall at the initial meeting last month that I think we spent the better part of 2 to 2-1/2 hours debating whether we even had a completed application. And now we’re spending another 2 hour-plus, who knows how long more, on whether a cultural assessment is required or to what degree the preliminary investigation has to extend to determine whether it’s required or not. I think much of this is covered in the Background Report I believe that’s on page 5 and 6, I think it is, and where it lists, you know, what type of report, such as the botanical report that was referred to by Commissioner Siracusa. EXHIBIT B 39 My suggestion is, ‘cause, you know, from past experience when we get into deliberation, we’re going debate this again; and I’m going to listen to the same thing all over again, yeah? My suggestion is we make a motion, see where we stand. Because, yes, I agree that there are some Commissioners that feel that maybe insufficient research has been done. There may be others that feel that sufficient research has been done. So why don’t we make a motion, take a vote and see if we have to continue with this. ALAMEDA:Okay. Before that, I want to make sure that there’s no other questions for the Applicants so they can have a seat or give any other -. FUKE:Mr. Chairman, I’d just like to just kind of, following up on Commissioner Siracusa’s comment, that the Applicant has no objection in having it published, you know, in the, what you said, the OHA News Bulletin. And was there another publication? SIRACUSA:I said West Hawai`i Today because that’s this side. FUKE:Oh, okay, correct, making such publication; and then appropriately incorporating them into the site preservation plan. Because then you’ll afford like, if it is like, if there are people or individuals with legitimate claims and utilize that area, then it would have to be, you know, we would have an obligation to provide the protection and also access; and so then that can be incorporated into the site preservation plan. So with that, then, you know, we would have no objection to expanding the so-called scope of the site preservation plan to include that component. ALAMEDA:Okay. Seeing no further questions, you may be seated. And, also, since the audience is waiting for the Agenda Item No. 2, James and Madeline Budde, and the J.R. Kona Acquisitions, also the Applicant, Big Island Country Club -. Is that being withdrawn, Norman? HAYASHI:Yes, Big Island Country Club has been withdrawn. ALAMEDA:And then we have the Planning Director initiating the potential change of the definition of family. So we’re looking at, and we’re going to take lunch after this, so we’ll have lunch at 1 o’clock. So we’re looking at starting no later than or no earlier than 2 o’clock. So the following agenda items you can expect probably at 2 o’clock, so just so you know. All right? Commissioner Graham? GRAHAM:Yeah, I’m listening to what Mr. Watanabe said. It feels a little bit like there are two issues here; and I want to be sure we’re fair to the Applicant. I personally haven’t pitched in much under discussion. In the general outline of what the SMA requires, I cannot support the project. So from what I see I’m not going to vote for the project, I’m going to vote against it. But I think Mr. Watanabe’s point is there may be other Commissioners that would potentially vote for the project but they feel something is missing. So maybe we don’t want to just pile everybody into the same pile. In other words, if something is missing and that could be remedied, you know, then we don’t want to have those people just vote against the project. Whereas, there’s others maybe like me that feel like the basic SMA requirements are not properly met. So the missing is not the main issue for me. So if there’s some procedural way you want to address this so that the Applicant doesn’t get caught in a whip-saw over two EXHIBIT B 40 different issues, we probably should try to do that. I think that’s what Commissioner Watanabe was looking to a minute ago. ALAMEDA:All right. Let me turn to our Corp. Counsel. Mr. Torigoe, hearing Commissioner Graham’s proposal, what are your thoughts? TORIGOE:Thank you, Mr. Chairman. Let me just back up a bit. Sounds like Mr. Watanabe was basically proposing that you have a motion, probably a motion to approve on the floor, and take a vote, and see how that shakes out, basically, to see if you need to go any further with this other discussion. WATANABE:Yeah, and I’m thinking that during the discussion, ‘cause generally you have discussion once a motion is, assuming that a motion is live, yeah, that some of this will shake out during that discussion. And then we’ll understand that, okay, I’m opposed to it no matter what happens, or if you do these things then I’m not opposed to it. Who knows, maybe a publication in West Hawai`i Today and the OHA paper will sway Commissioner Siracusa to say, okay, I’ll go along with it. I don’t know. You see what I’m saying? But what I was trying to get at is rather than debate the issue of whether you need a cultural resource plan, how many pages that cultural resource plan has to be, to what extent, how many people you have to, rather than continue with the discussion, just get to the point so we can find out what it is we’re actually -. ALAMEDA:Mr. Torigoe? TORIGOE:Yeah, toward that end, let me just throw out a couple of things. First of all, I’d just like to reiterate that the Planning Commission, as Mr. Tyler has stated, has a duty to investigate and require any physical protective measures for any ongoing cultural practices. As is required under your Rule 9-11-D, which basically says that you may permit the proposed development only upon finding that, among other things, the development will, to the extent feasible, reasonably protect native Hawaiian rights if they’re found to exist. The underlined question being whether there has been enough of an investigation to determine whether they are ongoing native Hawaiian cultural practices. There has been discussion about the existing archaeological reports and botanical reports and other information, whether that would have in all probability flushed out any existing cultural practices, whether these studies would have shown evidence of any that exist, whether the signage would have notified people here to come out and testify about these things. That’s a determination that you have to make, you know, whether you really feel that what has been done so far really should have flushed out anything, any practices that are going on. If you have some doubts about that, for instance, whether you feel some of the kama`aina whom Mr. Tyler has mentioned he believes exists, if he can identify some of those, if you feel that perhaps those people should be interviewed, there are a couple of ways you can approach that. You could say, before we go any further, you want to have those people interviewed and report back here before you actually make a decision. Another way to approach that would be, as Commissioner Siracusa mentioned, possibly a condition that would require that to happen. I have some, well, I have a word of caution about conditions, though, in that part of the problem with the PASH and Ka Pa`akai cases was that the Land Use Commission was thought to be trying to delegate investigatory duty onto the developer. So you don’t want to be delegating that EXHIBIT B 41 wholesale to the developer. You want to, you know, make sure that it actually is done. So if you’re going to have a condition, then you’ve got to make it really clear and specific as to what you expect to happen and/or require the developer to come back to the Commission if there is evidence found of ongoing practices so that the Commission can actually make sure that feasible protective measures are put in place as further conditions. And, of course, you want to have all this done before any ground altering activity occurs. So those are some options that you can proceed with. ALAMEDA:Okay. Commissioner Watanabe? WATANABE:Yeah, I have a question for Mr. Torigoe, and I’m not trying to skirt the issue by, shall we say, delegating the duty over or the responsibility over to the developer. But would it be appropriate to, because we have certain State, I’m sorry, agencies that are considered experts. I wouldn’t consider myself an expert in a cultural assessment or preservation plan. I would have to rely on the input from the experts like, you know, Land and Natural Resources, or whatever. Could we within the condition say if there’s any response to those ads in the paper, you know, where we have to meet with the approval of those specific agencies? Like how we do with, you know, for example, Department of Public Works, you know, access is going to be subject to approval by Department of Public Works, kind of deal. Okay, we do that. And then it’s still not considered delegating to the developer? ALAMEDA:Mr. Torigoe? TORIGOE:Well, if the Commission will be requiring approval by an appropriate State agency, I suppose if that agency does very specific duties or authority then that would do. I’m not sure that SHPD, off the top of my head, has, I’m not sure what they do with respect to native Hawaiian ongoing cultural resources and that sort of review. I don’t know if somebody else has information on that as opposed to archaeological matters. In any case, I think, though, you should bear in mind that the Commission bears an ultimate and primary responsibility to make the investigation and determine whether feasible protective measures are being put in place. ALAMEDA:The thoughts that I have right now is kind of like what constitutes “an investigation.” It’s kind of like the issue. YUEN:Well, you know, the Commission -. Don’t interpret what Ivan just said to mean that the Commission has to go out and do something. But the Commission has to see that the investigation has happened. And what I’ve been discussing has been what is, what’s out there before you that shows the investigation has taken place. ALAMEDA:All right, but there seems to be disagreement. Can the Commission disagree on the fact that what you call an investigation we may not call an investigation? YUEN:Well, the Commission ultimately takes a vote on this. I make a recommendation. And I’m just trying to point out, because we do look at these things repeatedly what’s happened here and what you have before you, to show that an adequate investigation has taken place under the standards of the PASH and Ka Pa`akai cases. ALAMEDA:Commissioner Siracusa? EXHIBIT B 42 SIRACUSA:I would like to make a motion. ALAMEDA:Sure. SIRACUSA:I move that the application for Special Management Area Use Permit, SMA 06-000009, be denied based on the following reason, that the application is incomplete because it lacks a cultural resources investigation and report, pursuant to Rule -. What was that rule number again, Ivan? TORIGOE:Well, the rule that Commissioner Iwashita was referring to is 9-11-A-1-f. ALAMEDA:Motion made by Commissioner Siracusa. Is there a second? SALAVEA:Second. ALAMEDA:Seconded by Commissioner Salavea. Discussion? Commissioner Graham? GRAHAM:Well, again, I’m still stuck in this cross thing here. Like am I suppose to only vote for denial if I think that is the reason for denial? And if I have other reasons for denial which, to me, are the compelling reasons but they are not in that motion, how do I vote? WATANABE:Why don’t you ask to put in a friendly amendment? ALAMEDA:Commissioner Graham, your response? GRAHAM:Because I think we are of two minds here. I am certainly of a mind where when I read Hawaii Revised Statutes, I don’t think this makes, cuts mustard. And if they remedy what is perceived as a deficiency with the cultural research, it doesn’t change where I’m at. However, I have no idea how many other Commissioners may agree with me. So if the idea of the motion is to have this be remedied, that’s fine. So, anyway, I don’t -. You understand where I’m at. I don’t know what the proper course to take is here. SIRACUSA:Well, I agree -. ALAMEDA:Commissioner Siracusa? SIRACUSA:With you, also, Commissioner Graham; and I would be willing to accept that as a friendly amendment. IWASHITA:State your other grounds. SIRACUSA:If Mr. Salavea, who seconded it, is also willing to. GRAHAM:Well, let me state in the broadest possible terms then. When I read the law, it says, “Grounds for Approval of Special Management Area Use Permits: The Authority EXHIBIT B 43 may permit the proposed development only upon finding that:” and I’m just reading No. 1 here, “The development will not have any substantial adverse environmental or ecological effect except as such adverse effect is minimized to the extent practicable and is clearly outweighed by public health, safety, or compelling interest.” So, in that case, we do have in my mind some substantial adverse environmental or ecological effects. They haven’t been minimized somewhat. And then the question is is it, as stated here, “clearly outweighed by public health, safety or compelling public interest.” I haven’t heard anybody speak about how this development is important to public health, safety or compelling public interest. So given that I find substantial adverse environmental or ecological effects, and I don’t find any compelling interest that outweigh them, I have to vote against it. WATANABE:Well, that said, that means, that implies that you would vote against this no matter what happens, so I don’t see a problem with that. I mean, if that’s your opinion, that’s your opinion. GRAHAM:Okay, so then, my amendment to broaden the motion is that it has not met this test that I first read about any substantial adverse effects being outweighed by compelling public interest. SIRACUSA:And I said I would be willing to accept that as a friendly amendment ‘cause I agree with you on that as well, and if Mr. Salavea, who seconded the motion, would be willing to accept it as also -? ALAMEDA:Mr. Salavea? SALAVEA:Certainly, I’d be willing to accept that. ALAMEDA:Mr. Director? YUEN:Could I ask Mr. Graham what he sees as the significant adverse environmental or ecological effects? ALAMEDA:Mr. Graham? GRAHAM:Well, sure. One is the access and use of the shoreline facilities at Magic Sands there, and we spoke of the complications to access that would be brought about by the people in this development and the traffic from this development. We have a report on groundwater quality where if you spread the groundwater from this 400-foot wide parcel out over 800 feet, you’re adding 2.4 percent to the nitrogen coming in the groundwater. While we shouldn’t spread it out, we should allocate it as it is, which is 400 feet, so then you’re talking 5 percent. And this development, along with all other developments which may come in this area, have to be spoken of cumulatively. So is that a substantial adverse effect? I think it is. The SMA rules ask for preservation of open space. When I look at all the developments, especially on this map I have, that we looked at the roadway map, these are intense, you know, intense developments. There’s not a lot of public spaces set aside. So, again, I feel like that it’s the obligation of the Planning Director to somehow plan for this whole area of Kona between Keaauhou and, you know, up to Walua Road, and all like that, which is somewhat, some portion EXHIBIT B 44 densely developed and some portion wide open. I believe it’s his responsibility to come up with a large open space areas so that the people who live in this area have some public facilities; and I see each development that comes in like this, it doesn’t have it. So I feel like the, there’s continuing adverse effect to the open spaces which are really needed and the recreational facilities which are really needed. Those are some of my concerns. ALAMEDA:Thank you, Commissioner Graham. Other discussion? The friendly amendment was accepted by our second, Commissioner Salavea. Any discussion on that? Commissioner Iwashita? IWASHITA:Thank you, Mr. Chair. I would add to the basis for the amended portion of the motion that my view of the record is that the Applicant has not established a sufficient basis for showing that there really is, you know, evidence to contradict, I guess, our concluding that there will be these adverse impacts. If anything, the record is very deficient by the Applicant in showing that, you know, there won’t be these adverse impacts; and, so, I think that that’s also important. I will be voting in favor of this motion; and my basis is based on Commissioner Graham’s line of thought and reasoning. ALAMEDA:Any other discussion before we call the motion? Commissioner Salavea? SALAVEA:I’d like to make sure, thank you, Mr. Chair. I’d like to make sure that my reasons for voting in favor of this motion is made clear for the record, as well as provide to the Applicant, Mr. Dickler and Mr. Fuke, something tangible that they can use to get their application through. It’s not my intent to simply say deny the application. I want them to go away with tangible things that they can say, okay, if we knock out A, B, C and D, this application can come before the Commission and have the possibility of passing. So my whole thing is with, I just want to make sure that an assessment of the cultural resources as defined by Mr. Tyler where an inventory of who comes from this area, who the lineal descendants are, what uses were done and are there anyone still practicing in using the area. And the reason, Mr. Fuke alluded to that, if we’re going to do this for this application, we should do it for everyone. The significance for me is the heiau; and the heiau signifies that there is a cultural, there once was a cultural importance for this particular ahupua`a and, therefore, and it wasn’t specified in the archaeological report. I only got site and physical description of what it is. It didn’t tell me what was the uses, who the uses were for. Except for a very short reference to Lono, there wasn’t much there. So I want to, I’d like to just know that there, the descendants were contacted, they were interviewed, and this is what we found, whatever it may be. And I don’t think that’s too much to ask of the Applicant. This is a, as I read it, a $30 million project, so spending a little bit on a cultural assessment isn’t too much to go in the presence of the heiau, the burial sites, the house pad. To me, that’s significant. That shows that the area was used.So that’s what I’d like to see the Applicant come through with; and I think I’d be, for the most part, satisfied with that. Thank you. ALAMEDA:Commissioner Salavea, let me just mention that you did second Commissioner Graham’s point on his issue regarding the whole fact that it doesn’t even probably meet the, some of our own guidelines. So in addition to perhaps what you might be needing, you did acknowledge Commissioner Graham’s point even further. So I just wanted to put that on the table. Are you aware of that? EXHIBIT B 45 SALAVEA:Yes. And that the reasoning is I think we’re of similar minds but maybe not directly like what you were saying. We may have issue with the application as a whole but not particularly the exact same issue. And I think if we vote on it, you know, if I’m satisfied with what I have, I think another motion would, if it came up, we could still vote our minds and accomplish what we want to see done. ALAMEDA:Okay. SALAVEA:So, even though it’s similar, it’s, you know -. ALAMEDA:Okay. Commissioner Galdones? GALDONES:Thank you, Mr. Chair. I would have to vote against the motion as stated. As you hear the discussion from the Commissioners, and Commissioner Watanabe had alluded to it, in the first hearing that we had, we had certain concerns that we had raised and we had asked the Applicant to consider that; and so he went back and considered that. Now if there are certain things that we would like to see in the development and in the application, then we, as Commissioners, can set that as conditions. Now if the archeological and the cultural practice thing is not being addressed, I think what we can do is set a condition that that be part of the application, and let the Applicant decide whether they can live with that or not; and if he can’t live with that, then they can pull back their application. But to vote it down after we had the discussion the last time, at the first meeting, saying what we wanted and here, again, we come here and we’re going to vote this application down because it still hasn’t met certain conditions, I think it’s not fair to the Applicant. I think we should set it as a condition if we are having some problems with that and we wanted to see it in there. That would be my reason why I would have to vote against the motion, because it’s not being fair to the Applicant. And the Applicant had indicated that he is willing to consider Commissioner Siracusa’s suggestion. It’s a little out of the box, but he’s willing to consider that where if there is someone out there that we missed through a publication, if they can come forth and say that they do have some cultural practices that they want to protect, that the Applicant was willing to consider that. So on those basis, I think, this is just my opinion, we’re not being fair to the Applicant; and I will have to vote against the motion. ALAMEDA:Thank you, Commissioner Galdones. Anybody on this side? None? Commissioner Iwashita? IWASHITA:I guess my view is that our rules are clear. Ka Pa`akai decision has been out there a while. And, you know, I view my job as Commissioner to apply the rules to each application; and it’s clear to me on this record that the rule, you know, has not been complied with as far as cultural practices. And so I don’t think it’s a fairness issue to this particular Applicant or to any Applicant in general that we apply our rules as they should be applied; and, you know, and in this particular case, this is a rule mandated by a Hawai`i Supreme Court decision. So if we choose to ignore this rule -. And I guess the difficulty, as a practical matter, I have a difficulty in trying to set conditions because, basically, the Director has indicated as far as he’s concerned the rule has been met already. So I’m not inclined to give the enforcement of that condition back to staff when basically, you know, the indication was it’s done. I wouldn’t expect any further requirements would be needed of the Applicant if it was done that way. So, to me, at this point, the proper application of the rule is a denial of the application. EXHIBIT B 46 ALAMEDA:Mr. Rho? RHO:At the last meeting, Mr. Tyler talked about the requirement in his mind, anyway, a requirement to have a cultural impact assessment, that’s what I wrote down, and he said that the cultural impact assessment as required by Commission rule, etc. And it’s my recollection, and I also wrote this down, that that cultural impact assessment is only required when an environmental impact statement is required. That’s my understanding as of the last meeting. So now this is changing. So it’s like there isn’t really a requirement, it’s just a matter of whether or not, I guess, the Commission wants to see that study or that assessment. So that’s No. 1. No. 2, I am having trouble with this project proposal, but not just this specific proposal. I think it began at my first meeting in Kona in the same, well, same building, different room. We approved a project that had cultural resources on it; and my assumption is that there was a cultural impact assessment made for that project. So I guess once you have a heiau on site, you have burial grounds on site, I think we should automatically, if there’s such a way of doing that, automatically get the Applicant to actually do a cultural assessment and make that requirement upfront and known and publicized and whatever, so that we don’t have this situation happening today. That’s No. 1. No. 2, as I said just a few seconds ago, the project, and I guess all projects along Ali`i Drive have to be controlled. What we have is that road in Kihei, Maui and then they built a highway mauka of that road parallel. The only difference that I’ve been thinking about this a lot, the only difference if you have driven on that Kihei Road is that they have parks along the way that stretch maybe two city blocks, maybe less but basically two city blocks. What do we have between the pier and that hotel at the very end, the Sheraton? We have very little. And let me just remind all of you, we have very little from 1972 when I arrived in Kona. That was the first thing I noticed as I drove along Ali`i Drive, there was no traffic, or very little traffic. But there were all these homes already built in existence; and where there where wasn’t a home, there was Magic Sands and Kahaluu Beach Park, or a home that got ripped up by the surf and torn away. It was shameful then and it’s shameful today, as far as I’m personally concerned. Bill talked about wide open spaces. So I thought, okay, well, you can’t do anything with the land that’s on the makai side, it’s already spoken for. I’m not in favor of condemning private property as such. But on the mauka side of the road we’re now going to develop all of that, all the way to Alii Parkway whenever that’s built, and we’ll jump the highway and build on that side of the road, too, without any green space in between because of our poor planning. We didn’t assess the developer, tax the people, whatever. I’m not sure how you get this money. But we don’t have the money to actually buy open space. So we all try to fit in to Magic Sands when there’s sand. Anyway, I guess you kind of know where I’m coming from, hopefully. Thank you. ALAMEDA:Seeing that, I think we’re ready for vote. No? More discussion? Seeing none, Norman, could you remind us about the motion? HAYASHI:I guess the motion is to deny the request. With that, I’ll call the roll call vote. Commissioner Siracusa? EXHIBIT B 47 SIRACUSA:Aye. HAYASHI:Commissioner Salavea? SALAVEA:Aye. HAYASHI:Commissioner Watanabe? WATANABE:Nay. HAYASHI:Commissioner Galdones? GALDONES:No. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Commissioner Iwashita? IWASHITA:Yes. HAYASHI:Commissioner McCall? MCCALL:No. HAYASHI:Commissioner Rho? RHO:Yes. HAYASHI:And Chair Alameda? ALAMEDA:Aye. HAYASHI:Mr. Chair, six aye votes, three noes, motion carries to deny the request. ALAMEDA:Thank you. RECESSEDThe Chair recessed the meeting at this time, 1:10 p.m. RECONVENEDThe meeting reconvened at 2:27 p.m. ALAMEDA:The meeting will come back to order. Getting back to the earlier application, I’ll have our Corp. Counsel, Mr. Torigoe, to explain a little bit about what we were talking about in the deliberation at hand. Go ahead. EXHIBIT B 48 TORIGOE:Thank you, Mr. Chair. I understand that the applicant on the last agenda item would like to be recognized and ask a question about a possible reconsideration. ALAMEDA:Will the applicant’s representative please come forward. Mr. Fuke you have already been sworn in and so you may proceed. FUKE:Thank you very much. I’ll be very brief. What we were asking is whether it’s appropriate for the Commission at this meeting to be able to reconsider its previous action. While we were seated back there we kind of sensed that there may have been like different reasons why certain votes were taken, I mean, because basically you’ve just got to say yes or not without qualifying the yes or no.It appeared that one or two of the Commissioners may have been in a position to vote no largely because of maybe like the alleged discrepant information, or whatever have you. And so in that light, you know, whether it’s at this meeting or at the subsequent meeting we would ask like your office, I mean, this body to hopefully enable a reconsideration of that motion and possibly, hopefully, have this matter be reconsidered to enable the applicant to provide whatever information considered deficient, rather than having us refile everything and having to go through the entire process all over again. ALAMEDA:Thank you. Mr. Torigoe, in light of what Mr. Fuke is stating, what’s our best next recourse? TORIGOE:Well, I think the Rules do allow for reconsideration under Rule 4-27 which applies to any kind of contested case, that the Commission can reconsider, but it has to be done on the effective date of the decision. I think if you did that today it would safe. It has to be made by one of the prevailing Commissioners on the last vote, that is one of the Commissioners who voted to deny. It can be seconded by anybody.But I would recommend that if there is such a motion and if it succeeds that we not take up the merits of any change in the decision until we reagendize it and renotice it to make sure that members of the public are able to participate in that. ALAMEDA:And like any motion, Mr. Torigoe, do we have to vote on it as well, and does it have to get a majority approval? TORIGOE:Correct. ALAMEDA:Okay. Fellow Commissioners, you’ve heard Mr. Fuke’s request to possibly reconsider. The motion has to be made by those who have voted in favor of the motion, previous motion. Okay, I understand. Okay, Commissioner Galdones, you had a question? GALDONES:Thank you, Mr. Chairman. I just want to understand the instructions that we were given by counsel. So if it prevails that it would be reconsidered no further discussion will be entertained because it has to be agendized again, and then the discussion can take place thereafter? TORIGOE:That would be my recommendation because some time has elapsed since, you know, the end of the last session where the vote was taken and members of the public who may have been interested might have left. EXHIBIT B 49 GALDONES:Thank you. ALAMEDA:Mr. Torigoe, will it also be up ready for discussion after the motion, like every other motion? TORIGOE:On the motion for reconsideration itself, but not on the merits. ALAMEDA:All right. Fellow Commissioners, you’ve heard -. GALDONES:Mr. Chair? ALAMEDA:Oh, Commissioner Galdones. GALDONES:One more question, so that I can understand where we are. If the vote that we had taken today prevails if the applicant decides that they would like to resubmit an application, what is the timeframe for them to resubmit another application? TORIGOE:Under your Rule 9-11 E.4 whenever an application for a Special Management Area Use Permit has been denied, no new application on the same matter can be accepted two years from the effective date of the denial, except that upon a showing of substantial change of circumstances the authority may permit the filing of a new application prior to the expiration of the two-year period. GALDONES:Thank you. ALAMEDA:Other questions on this particular matter? Seeing none, I guess then the question for us as Commissioners is there any of the six voters willing to make a motion? Commissioner Salavea? SALAVEA:Mr. Chair, if I could. In the matter of D-Bar Ranch LLC Special Management Area use Permit to allow the development of the 120-unit condominium project and related uses, SMA 06-000009, I move that we reconsider the motion to deny and agendize the item for discussion at a later date. WATANABE:Second. ALAMEDA:I think the second has to be from somebody -. TORIGOE:No. ALAMEDA:No? Can be -? TORIGOE:Anyone. ALAMEDA:Okay. Motion made by Commissioner Salavea for Reconsideration, seconded by Commissioner Watanabe. Discussion? Commissioner Salavea. EXHIBIT B 50 SALAVEA:Thank you, Mr. Chair. I just want to clarify, at lunch I kind of decompressed and I was thinking about the events; and initially I had no problem with us compiling and having all of the issues in the denial lumped into one big motion. But as I thought about it, I think we need to vote on the individual merits of the application rather than just lumping it into one big pile and saying, well, I’ll deny it because of A, you deny it because of B, you deny it because of C, Point A, Point B, Point C, and because we all disagree about something on the application as a whole consensus is reached and that’s how we arrived at that decision. I wasn’t comfortable after replaying the vote with how my issues may, although parallel with other Commissioners, didn’t speak exactly, wasn’t exactly individual. So that’s my motivation behind entertaining this motion. I don’t want to reopen this and rehash the issues. I just want to make sure that it’s clear. And I think I made it clear prior to or after the motion was made in the previous discussion that my issue was with the cultural resource management plan; and if I could be shown that, you know, these descendents were contacted, interviewed, and there is no cultural practice, I’d be satisfied with the application. So I just wanted to put that on the discussion table for everyone. Thank you. ALAMEDA:Thank you, Commissioner Salavea. Anybody else who would like to share their thoughts on this particular reconsideration and not the merits of the application? Commissioner Siracusa. SIRACUSA:Well, I have seen a lot of times when there were more than one reason why we voted against something or voted for something; and some of those items were more pertinent to some Commissioners than others. But I think that in the overall, you know, for one reason or another whatever those reasons may have been, this body has decided to deny the application. And so I will not be supporting a motion to reopen. ALAMEDA:Thank you, Commissioner Siracusa. Any other feedback? Commissioner Graham. GRAHAM:I would only say that the reason I won’t be supporting the reconsideration is I think we, at least I certainly tried to air that problem before we got going. So I think everybody was kind of aware of it at the time. Thank you. ALAMEDA:Thank you, Commissioner Graham. RHO:I have a question. ALAMEDA:Sure. RHO:Does this mean that one of those, I’m not even sure, I put my stuff away, but that report is going to be completed, the cultural resources study or their assessment by within the next month or two months? Is that what will happen at least in part? ALAMEDA:Mr. Torigoe? TORIGOE:Not necessarily. Basically at this point the motion is simply to reconsider the matter, that is to bring it back on the agenda for further discussion. So if the applicant chooses to submit such information, you know, then that could be on the table. EXHIBIT B 51 ALAMEDA:Commissioner McCall? MCCALL:If we choose to pass this and reconsider it, could we make additional requests of the applicant, such as to do a cultural study? ALAMEDA:Mr. Torigoe? TORIGOE:Yeah, you could do that. You could either do that by way of motion or just, you know, by way of discussion making it clear that that’s what you would like to see. ALAMEDA:Commissioner McCall, follow-up? MCCALL:No. ALAMEDA:Well, motion on the table to reconsider to put this on the next agenda item, made by Commissioner Salavea, seconded by Commissioner Watanabe. Commissioner Iwashita? IWASHTIA:Just cause I’m a lawyer, I’m looking at Robert’s Rules as it applies to reconsideration, and which is my understanding we follow Robert’s Rules. I’m not clear about, and counsel maybe you can clarify for me, but there’s a portion here that says the vote that adopted the motion to reconsider is also presumed to have carried out the reconsideration and to have reversed the vote that is reconsidered. That is the previous question is not presumed to be rejected and is not voted on again. For this reason in such a case only members opposed to the previous question would vote to reconsider it after it had been adopted. You know, I’m not getting this. It seems like there is going to be limitations on who can vote on the proceeding if we go down this road. So, you know -. ALAMEDA:Mr. Torigoe? TORIGOE:Thank you, Mr. Chairman. This is one of those curious definitional issues in the Robert’s Rules of Order. What Commissioner Iwashita was looking at is some information or some rules about a motion to reconsider an affirmative vote on what is called the previous question. The previous question is a term of art. It’s defined as a previous question is the motion used to bring the assembly to an immediate vote on one or more pending questions. So what he was looking at, and this can be really confusing, but it seems to me that what this applies to is when you have a particular question, basically it’s like a motion for the question, which is not what we had, I think. So I don’t think that applies to what we’re dealing with at this point. ALAMEDA:All right, Mr. Director. YUEN:Well, I think if the, the way that I’ve normally seen motions to reconsider is that you first have a motion to reconsider, and then that sets the stage to take a second vote on whether you’re going to actually reverse the previous decision. If that’s the sense of what the Commission wants to do, the Commission can simply say that that’s what they’re doing. And if EXHIBIT B 52 that’s a variation from Robert’s Rules of Order, the Commission’s Rules also permit that kind of a variation. ALAMEDA:Mr. Torigoe? TORIGOE:Yeah, I think that’s basically consistent with what is on the table now, is that we’re just saying we’re going to reopen discussion on that, on the vote on the SMA application; and that, as I said, it should be done at a later meeting. YUEN:Right. So I think they can go ahead and vote on what’s on the table, which is only to have it open for a revote on the merits at a later time. ALAMEDA:Okay. GALDONES:Mr. Chair? ALAMEDA:Commissioner Galdones. GALDONES:Question. Then the vote is a majority of the Commission Members? TORIGOE:Yes. GALDONES:Thank you. ALAMEDA:Any other questions? Okay. Ready? HAYASHI:Thank you, Mr. Chair. And the motion is to reconsider the motion to deny and agendize this matter at a later date. Commissioner Salavea? SALAVEA:Aye. HAYASHI:Commissioner Watanabe? WATANABE:Aye. HAYASHI:Commissioner Galdones? GALDONES:Aye. HAYASHI:Commissioner Graham? GRAHAM:No. HAYASHI:Commissioner Iwashita? IWASHITA:No. HAYASHI:Commissioner McCall? EXHIBIT B 53 MCCALL:Aye. HAYASHI:Commissioner Rho? RHO:No. HAYASHI:Commissioner Siracusa? SIRACUSA:No. HAYASHI:Chair Alameda? ALAMEDA:No. HAYASHI:Motion does not carry. FUKE:Thank you very much, and sorry for the time. ALAMEDA:No -. Thank you. The discussion ended at 2:43 p.m. Respectfully submitted, Sharon M. Nomura, Secretary EXHIBIT B 54