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HomeMy WebLinkAbout2004-09-03 TKona Oasis ' PRESENT:Fred GaldonesABSENT AND EXCUSED:Ren® Siracusa C. Kimo Alameda Bill Thibadeau Earl Fujikawa William Graham Jeffrey McCall Francis Smith Hannah Springer Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Planning Program Manager Jeff Darrow, Staff Planner Ki Emler representing Department of Public Works And approximately 10 people from the public in attendance. ' ' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 RECESSEDThe Chairman called a short recess at 12:26 p.m. RECONVENEDThe meeting reconvened at 12:41 p.m. GALDONES:The Hawaii County Planning Commission will be back in order. FUJIKAWA:Mr. Chair? GALDONES:Commissioner Fujikawa. FUJIKAWA:I'm requesting an Executive Session right now regarding the Sunshine Law pertaining to the site visit. GALDONES:Is there a second to his motion? MCCALL:I should mention first -. GALDONES:Commissioner McCall. MCCALL:I don't know if it's appropriate before we -. Do we need to deal with the first motion before we -, or can we hold off on the first motion while we take the second motion? I don't know how that works. FUJIKAWA:Obviously, it's the Executive Session. We have to explain why this is the reason regarding the Sunshine Law on the site visitation. 20 GALDONES:There was a motion for a site visitation, and there -, we had asked Counsel to review that, and I believe what Commissioner Fujikawa is asking for is that before we take a vote on that or -, that we have the opportunity to confer with Counsel regarding what does the law require before we make a motion, so we, as Commissioners, will be able to make the appropriate action without any violation of the law. I believe that's the direction he's going. MCCALL:I'll second. GALDONES:Okay. So it's seconded by Commissioner McCall. Commissioner Graham. GRAHAM:I would just like to know why do we need to go into Executive Session. I feel like before we go into Executive Session it should be clear why we have something to discuss that shouldn't be discussed in public. So does Corporation Counsel feel that there's materialtobediscussedthatshouldn'tbediscussedinpublic? GALDONES:Counsel? TORIGOE:IthinkthepointofMr.-,orCommissionerFujikawa'smotionistoget legal advice regarding some of the alternatives that have been proposed with respect to the taking of the site visit, whether to take it, whether we can adjourn today, or whether it needs to be put off to another meeting, and so I think those -, the questions that are going to be discussed would be whether the Sunshine Law requires us to defer to another meeting or whether it's within your discretion to just adjourn now and go -, and those are maters which may affect, you know, the legality of your ultimate decision and its defensibility in court, and so those would be appropriate questions to discuss in an Executive Session. GRAHAM:Okay. GALDONES:Any further discussion? Norman, does this go to a voice vote or does this go through a roll call? HAYASHI:I think you need to take a roll call vote because you need "X" number of votes to -. FUJIKAWA:Right. HAYASHI:Go into Executive Sessions. GALDONES:Okay. HAYASHI:Session. GALDONES:No further discussion. Norman? HAYASHI:Commissioner Fujikawa? 21 FUJIKAWA:Aye. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Smith? SMITH:No. HAYASHI:Commissioner Springer? SPRINGER:No. HAYASHI:Commissioner Alameda? ALAMEDA:No. HAYASHI:Commissioner Graham? GRAHAM:No. HAYASHI:Chair Galdones? GALDONES:Aye. HAYASHI:Motion -, there were three aye votes and four no votes, motion does not pass. GALDONES:Thank you. Then I would defer to Counsel for a ruling on the motion that we have before us. TORIGOE:Okay. I think there is a question as to whether it would be appropriate for the Commission to simply adjourn and go and make the site visit today. I have a concern regarding the posting of notice because the Sunshine Law basically requires you to have the notice of the meeting, including the location, posted six days prior, and so although for practical purposes, I really don't think there's a problem because, you know, anybody who was really concerned about this had notice to be here today. And for practical purposes, one could post a sign outside saying we have adjourned for an hour to go to visit the site. Still, there is -, there remains some question regarding whether the letter of the Sunshine Law was violated by not having the site visit location posted as part of the notice that was posted and published six days prior. And so for that reason, I have a certain reservation about your doing that. GALDONES:Commissioner Graham. 22 GRAHAM:I'd like to just give a little explanation about why I feel we need the site visit and, you know, kind of where I'm coming from on this whole thing. My general sense, even though I take to heart the gentleman's testimony about the traffic issues, my general sense is that I can favor a project such as this in this location and all but what, in fact, I am very bothered by is there's a couple aspects, that first I feel like this project should take into consideration the view planes and consequences to the neighboring apartment owner, neighboring condo owners. I don't feel they have any legal responsibility that they have to protect the view planes of the neighboring owners and all, I'm just looking for reasonable accommodation to the sensitivities of the community as far as impact on the surrounding parties. I haven't seen that yet. It looks to me like this is a highly dense project, and even though Mr. Fuke says before the Kailua Design Commission they are suggesting that we approve this, I certainly doubt his word on that, but he also spoke of additional issues and we haven't received any communication nor in testimony from them, so I'm concerned about that whole accommodating thing made for the neighbors. Andthenevenmorethanthat,Ithinkreallythebottomlineformeisthefactthatthewhole issue not of movement across the property but the whole issue of how this property ingress and egress is to Alii Drive. And Walua Road is a huge issue for me, and is made even greater by the traffic problems there now. It's made greater by the fact that Alii Cove project is coming up. I feel like this issue is an issue that impacts the SMA as well as the zoning, whereas in our Topliss versus Planning Commission court case, traffic issues per se are not legal tender for an SMA permit. The particular place we have the traffic issue that I'm concerned with, and I think does is on the Alii Drive intersection. Alii Drive is the primary access route for the people of Kailua- Kona to go to Kahaluu Beach Park for snorkeling, to go to White Sands for playing in the ocean, to go to Banyans to go surfing, so I feel like what happens at this ingress-egress to this property on Alii Drive causes a real access consideration for the SMA permit. I feel like that is very valid and relevant to air, and I'm really disturbed that the Planning Department has decided to sort of again put this into the domain of Public Works, Planning Office, and all like that. The particular condition we see is "Access to Alii Drive/Walua Road and Kuakini Highwayshall meet with the approval of the Department of Publics." And then they say, "Movement restrictions along Alii Drive/Walua Road shall be determined when final geometrics are permitted" or received. To me, I don't see anything about what's going to happen. I think when you have a situation where you have a major thoroughfare like Alii Drive, you have this Walua Road coming in at a funny angle, and this huge project being built here, and then when you have a smaller 93-unit condo project right here that's somehow going to go in and out of that intersection, and have this not been part of the total discussion of how that's going to come about is what makes me feel like that's all wrong. When we did -, at our prior meetings when we, you know, like regarding to that West Hawaii Business Park thing, the Planning Department put in a tremendous effort working on how the front road's going to work, how you're going to get in and out from the Queen K Highway. I feel like on all our projects we generally go to great lengths to figure out this thing, this concern of accessing the property, and here we are, right in the middle of Kailua town, they have a very difficult access problem, and it seems like we've almost sort of said, well, we'll approve the 23 permits and let Department of Public Works and the Planning Department whatever figure it out. And I feel like that violates the spirit of the SMA, which is to encourage public participation in the decision-making process. To me, I would be happy to hear what the Planning Department has to say about why they're not willing to reserve hearing this and going forward on this without actually resolving these issues. And I feel like a site visit would be very helpful to the Commissioners as well as the public to see the gravity of the issues involved. GALDONES:Any further discussion on the motion? The motion is to have a site visitation. Commissioner Springer. SPRINGER: I speak in favor of the motion because any one of us may go outand have a look at the property on our own, but as the maker of the motion indicated, it would be better for us all to go at once and receive the same information at the same time. And when I say thatwe may do it on our own, I don't mean with authority, but in cursory driving past the site. So I think wewouldallbenefitfrombeinginthesameplaceatthesametime. GALDONES:Anyfurtherdiscussiononthemotion?Hearingnone,Norman? HAYASHI:Thankyou,Mr.Chair.Andtobesurethemotionisforasitevisitandto schedule the site visit and continued hearing at the next meeting? GALDONES:In Kona. SPRINGER:Kona. HAYASHI:Was that the motion? GRAHAM:Yes, the motion was -. GALDONES:At the next meeting in Kona. GRAHAM:Next Kona meeting. HAYASHI:Next Kona meeting. GALDONES:That is the motion. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Commissioner Springer? SPRINGER:Yes. HAYASHI:Commissioner Alameda? 24 ALAMEDA:Aye. HAYASHI:Commissioner Fujikawa? FUJIKAWA:No. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Smith? SMITH:No. HAYASHI:Chair Galdones? GALDONES:No. HAYASHI:Mr. Chair, motion does not carry. The vote was four ayes and three noes. GALDONES:That being the case, then there is a recommendation from the Department to approve both applications. The wishes of the Commissioners? Commissioner Fujikawa. FUJIKAWA:I make a motion to accept -, I'll start with the REZ No. 628, the amendment to Condition B, and to accept the amendment and the conditions, change of the conditions. GALDONES:Is there a second to the motion? SMITH:Second. GALDONES:It has been moved by Commissioner Fujikawa and seconded by Commissioner Smith that Kona Oasis, Inc. Change of Zone Ordinance No. 91 71 € REZ 628, this is amendment to Condition B, be given a favorable recommendation and be forwarded to the County Council with the amendments to Conditions D, L, and M. HAYASHI:That's correct. GALDONES:Discussion? Hearing no discussion, Norman? HAYASHI:Commissioner -. GALDONES:Commissioner -, hold on, Norman. HAYASHI:I'm sorry. 25 GALDONES:There's an oversight. Commissioner Graham. GRAHAM:I made a rather pointed comment toward the Planning Department about being premature and not bringing out into the open the discussion of the Alii Drive entrance and egress and also I certainly would like to offer an opportunity for the Planning Director to explain to me and to us why he's following this path. GALDONES:Thank you. Further discussions? Hearing none, Norman? HAYASHI:Commis -. YUEN:I mean he asked me a question. I'm going to answer the question, I'm thinking for a minute. HAYASHI:Oh, I'm sorry. YUEN:I'm not ignoring his question, I'm just trying to think how I'm going to answerthequestion.Thepropertyinvolvesabout-,I'mnotsure,howmanyunitsenteroffof Alii? HAYASHI:It's € may I respond to -? I have the information. YUEN:Okay. GHALAMFARSA:It's 30 -, I'm sorry, 30 -. HAYASHI:There will be 33 accessing from Alii Drive and 60 from Kuakini. GHALAMFARSA:Correct. YUEN:It's -, given the number of units, it's an issue that we feel can be deferred to the engineering level, that rather than having to map it out, having to map it out here. GRAHAM:Thank you. I also just wanted to -, and I have no idea how the Commission will vote on this, but I certainly don't want to see the Applicant prejudiced by the fact that we're not going for a site visit and I'm wanting to support a project like this if it's properly done by my -, but I don't want to see him prejudiced by some way where he can't reapply for a couple years if it doesn't get passed. Whereas, you know, a little extra work in the meantime might solve some concerns. So, I don't know, I just want to put that out. That's all. GALDONES:Commissioner McCall. MCCALL:I just wanted to make one point. I'm not sure, Commissioner Fujikawa seemed, if I understand him correctly, he seemed to think that we were looking for a site visit today, and the vote was on a site visit at the next, at our next meeting in Kona. Is that -, I'd like 26 to ask Mr. -, Commissioner if that was his -, I mean if he was voting correctly or if that was your -, if I'm mistaken. FUJIKAWA:My vote was today, but we needed the proper channels to go through for the site visit. MCCALL:But the vote was on a site visit to occur at our next Kona meeting because we were not able to do it today. It would -. GALDONES:Commissioner McCall, let me see if we can clear this up. If Commissioner Fujikawa has any reservations about the vote that he took, then I think Commissioner Fujikawa should raise the subject matter. MCCALL:Okay. GALDONES:If he feels comfortable that the vote he took he's clear in his mind what he wasvotingon,thenthat'shispurviewtowhetherhewantstoraiseitornot. MCCALL:That'sfine.Iwasjustsayingwhathetoldme.Thankyou. GALDONES:InreferencetoCommissionerGraham'sconcerns,Ithinkperhapswe should have it cleared so that the Commissioners understand what the action will, whatever action we -, obviously if the Commissioners approve it, then the project moves forward, but if it is not approved by the Commissioners, then what would happen then, so that you have a better idea where you want to vote. And I'm not so sure who would be the proper person, Norman, to address that question. HAYASHI:Yeah, as far as the change of zone, it's a recommendation to the County Council, so say if the vote passes, then it will go up to Council. If it does not pass, then it still can go up to the County Council, like we did a previous application, which was West Hawaii Business Park. There were not enough votes, but -, and that would constitute based on the rule and the statute, as a unfavorable recommendation by the Planning Commission. As far as the SMA, if that's denied, then it's denied. It can be appealed. YUEN:Yeah, if I can just elaborate on that. What Norman said is absolutely correct. If there are five votes in favor -. Let's take the change of zone. There are five votes in favor, it'll go to the Planning Commission, I mean to the Planning -, to the County Council with a favorable recommendation. If there are five votes against it today, it will go up with an unfavorable recommendation. If there are fewer than five votes in favor, or fewer than five votes against, the Applicant can decide to wait and have it heard again and get five votes, favorable or unfavorable, or decide to have it sent up to the -, just send it up to the Council with an unfavorable recommendation that results from having fewer than five votes in favor. On the SMA permit, that is a final action by the Commission. It would take five votes to pass it. It would also take five votes to kill it. If you have an inconclusive vote, then we would -, fewer 27 than five for or against, we would recommend that it be scheduled for the next Kona hearing to take another vote. GALDONES:Are we clear? Commissioner Springer. SPRINGER:This is on the rezoning, that we're moving now? Thank you. HAYASHI:Yes. FUKE:Mr. Chairman, would I be -? Staff? Would it be in a position to just make a comment or a suggestion? I mean I know you're in deliber -. GALDONES:Anything would help us to -. FUKE:Well-. GALDONES:Makeitourdecision. FUKE:AndifIunderstandCommissionerGraham'sconcern,likeheraisedtwo concerns, one relates to the not having a clear understanding of how the traffic would -, you know, if it's approved, how the traffic would flow along, particularly along Alii Drive, and the other one relates to possible accommodation to the surrounding neighbors, you know, in terms of design. Relative to the latter, I think that as Mr. Ghalamfarsa had indicated, I think he's done as much as he, you know, he could. You know, we've had meetings with the adjoining condominium owners and have made some adjustments as a result of that. I can understand, you know, the issue relating to not exactly knowing how the traffic would flow, you know, along Kuakini Highway, I mean, excuse me, at the Alii Drive intersection, and if that is the only residual issue, and the Commission pretty much just wants to understand like well, what is the ultimate design going to look like so that, you know, you would be in a position to share that with the public or whomever, you know, would it be possible for that condition to be amended such that, you know, when the specific geometrics and all that stuff are developed, that a report be given to the Planning Commission? GRAHAM:I'm afraid that's not acceptable to me because (indiscernible) for public participation not so the public could -, I mean not the public being advised, it's the public to participate, and I feel, I'm sorry, but I appreciate your offer. GALDONES:Okay. So are there any other questions or concerns? Now refresh my memory, Norman, where are we? We have a motion on the floor? HAYASHI:We have a motion to recommend approval with proposed conditions as amended for the amendment to Ordinance No. 91 71, and that's where we are right now. GALDONES:Okay. 28 SPRINGER:Mr. Chair? GALDONES:Commissioner Springer. SPRINGER:Given the Applicant's representative's offer to the PlanningCommission, I'm wondering if we moved ahead on the time extension on the rezoning if the Applicant might like to take the time to bring the report to us for the SMA and not take action on the SMA today. FUKE:If I understand the question correctly, to take action on the rezoning time extension and to defer action on the SMA until maybe like the next month, and to give us that additional time to provide you with the more specific, I guess the details relative to the traffic flow over there? SPRINGER:AndIwouldofferthistomyfellowCommissionersfordiscussion,also,if that would satisfy -, Commissioner Graham has raised the concern, so I wonder if that satisfies his concern. GRAHAM:I think it's a good creative approach, and obviously the project cannot go forward without an SMA approval so, yeah, I still think it would be helpful for this Commission to go look at the intersection, to look at what we're proposing for Alii Drive there, but the Commission chose not to do a site visit but, yeah, I'm certainly okay with that. FUKE:Hearing the discourse and as well as conferring with Mr. Ghalamfarsa, the Applicant, I think that's a very wise move. I think that between now and the next -. You know, so if the hearing is continued on the SMA component, we would be in a position to provide you with the appropriate graphics and maybe further engineering report that would -, in coordination with the Department of Public Works and coming forth with a study that specifically addresses that issue by the next meeting, and that would obviate the need for a field trip. GALDONES:Norman, how does one affect the other? HAYASHI:Well, you need to have this condition, this permit, I mean this ordinance amended before they can even submit a SMA use permit application so -. Well, actually, you need to have a time extension, which would allow them to submit their SMA use permit application. GALDONES:Thank you. Okay. HAYASHI:Because the -. GALDONES:Any further discussion? Any further questions? HAYASHI:I notice the Director have a strange puzzled look, and the reason why I say that is because technically the ordinance has -, the time has expired, it's hanging up there, unless -. 29 YUEN:No, the puzzled look -. HAYASHI:Unless there is -. YUEN:Was because you said that to submit the application for the SMA permit, but they have the application. HAYASHI:Well, yeah, I mean -. YUEN:In, but for it to take effect. HAYASHI:Correct. YUEN:Is-. HAYASHI:I'msorry. YUEN:Yeah.That'sall.It-,what'sgoingtohappenisif-,ifyou-,actually,if you delay the SMA permit, it really does not, it does not really delay anything because the SMA permit, if you had acted today, the SMA permit would not take effect until the change of -, the time extension had happened on the change of zone, all right. So if you -. And if you act on the change of zone today, it still goes up to the Council, and it'll take a couple of months to go through Council. So assuming that the action on the SMA permit, if it happened at the next meeting, it would actually not cause any effective delay in the taking, in when the SMA permit would become effective because, as I said, it's going to take a couple of months for the time extension to clear Council. GALDONES:Any further discussion? Hearing none, on the motion, Norman? HAYASHI:Again, this is the motion to amend Ordinance No. 91 71, Condition B and subsequent amended conditions that we had recommended. Commissioner Fujikawa? FUJIKAWA:Aye. HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:Commissioner Springer? SPRINGER:Yes. HAYASHI:Commissioner Alameda? ALAMEDA:Aye. 30 HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Chair Galdones? GALDONES:Aye. HAYASHI:Mr. Chair, motion carries. GALDONES:Thank you, Norman. Commissioners, on the Special Management Use PermitSMA04-006. SPRINGER:Mr.Chair? GALDONES:CommissionerSpringer. SPRINGER:With regard to SMA 04-006, I move that we continue this application until the next Kona meeting. MCCALL:I second. GALDONES:It has been moved by Commissioner Springer and seconded by Commissioner McCall that Kona Oasis, Inc. Special Management Area Use Permit (SMA 04-006) be continued to the next Kona meeting. Discussion? Hearing none, Norman? HAYASHI:Commissioner Springer? SPRINGER:Yes. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:Commissioner Alameda? ALAMEDA:Aye. 31 HAYASHI:Commissioner Fujikawa? FUJIKAWA:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Chair Galdones? GALDONES:Aye. HAYASHI:Motion carries. GALDONES:Thank you, Norman. FUKE:Thank you very much. GALDONES:You will be informed in writing of today's action. GHALAMFARSA:Thank you. GALDONES:You're welcome. Janet L. Kama, Transcriber 32