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HomeMy WebLinkAbout2008-09-04 TNORTH KOHALA CDP PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT SEPTEMBER 4, 2008 A regularly advertised hearing on the NORTH KOHALA COMMUNITY DEVELOPMENT PLANwas called to order at 3:30 p.m. in the County of Hawaii, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii, with First Vice- Chairman Rell Woodward presiding. PRESENT: Rell Woodward ABSENT & EXCUSED: Rodney Watanabe C. Kimo Alameda (left at 4:00 p.m.) Lani Bowman Takashi Domingo Frederic Housel Andrew Iwashita Shelly Ogata Ivan Torigoe, Deputy Corporation Counsel Christopher Yuen, Planning Director Norman Hayashi, Staff Planner Phyllis Fujimoto, Staff Planner L`hi`Bnsskd+Rs`eeOk`mmdq And approximately 10 people from the public in attendance NORTH KOHALA COMMUNITY DEVELOPMENT PLAN Review and action on the draft North Kohala Community Development Plan (CDP) submitted by the North Kohala CDP Steering Committee and its consultant, Townscape, Inc. WOODWARD: Let’s go with the North Kohala Plan first so we can take a vote. And we have Allen Salavea with the Planning Department, he has done a fine job here. SALAVEA: Thank you. WOODWARD: We don’t have anybody signed up to testify. So if you want to make a presentation, then go for it. SALAVEA: Do we need to get sworn in? WOODWARD: Sure, why not. You’re in the Planning Department so I don’t think that’s a problem, but we might as well do it anyway. It’s protocol. If you’ll raise your EXHIBIT C 1 right hand. Do you swear or affirm to tell the truth today before the County Hawaii Planning Commission? SALAVEA: I do. WHITE: I do. WOODWARD: Thank you very much. Okay, Allen, name and address. Well, we know who you are but give your name and address anyway. SALAVEA: Allen Salavea, 25 Aupuni Street. I’m the project manager for the North Kohala Community Development Plan, and we do not have a presentation here. Today we don’t have anything additional to add but I do have the Steering Committee Chair here as resource just in case. I can hand over the mike for her to introduce herself. WHITE: Aloha and good afternoon, Chairman, Planning Director and all of the Planning Commissioners that do such great work. WOODWARD: If you would give your name and address for the record. WHITE: My name is Fern White and my address is 54-2379 Kynnersely Road, Kohala. WOODWARD: Thank you. You may begin your testimony. WHITE: Okay. I do want to thank everyone for all of the work that they’ve done. I primarily would be happy to answer any additional questions that the Commission may have. I think that there are three points that the Steering Committee would love for you to consider. And those three points are that we do, of course, support the CDP and its move forward with a recommendation for approval. And those are because we entirely went though a community process that was lengthy because the plan contains comments, the community’s ideas and reflects its intent, and because the plan maintains a venue and a way for decision-making to consider our way of living and to make those decisions through consideration of our way of living at the core in the future. And granted there are points for consideration. You know, landowners have some concerns and have expressed concerns about what procedures, and how that might go, and how that might actually work out. Granted there are some concerns over taking, the term taking. Others have expressed concern over inadequate provision to prohibit growth. Or some folks have even raised concern over or take an issue with exact words that they wanted to be in the plan. But the SC was charged with taking. But the taking that we did is the taking in of all of the ideas of our community and the taking in of all of their thoughts and desires and intent, and then creating a package that compromises and provides a fair and reasonable guide for future land use decisions in our community. We believe we have done that given the timeframe and all the conditions. And we as a Steering Committee, we chewed, we chomped, we fully considered the contentious, the complementary, the ideas and proposals. We maintained the consensus-based procedure EXHIBIT C 2 and process; and our records show that. We voted unanimous at the end for this CDP to go forward. So we do continue to ask that you would affirm the work of our community through your moving it forward. WOODWARD: Let me just ask one question and then we’ll see if the other Commissioners have any. We received the revised wording for page 23, No. 7, one of the things that we had concerns with. And is the Steering Committee comfortable with changes in wording that were submitted? Allen, have you given them copies or –? SALAVEA: No, I have not. WOODWARD: Okay. Let me see if I can find mine. It’s in this pile somewhere. In the meantime if anybody else has any questions, shoot. No? HOUSEL: Mr. Chair, I had a question. I think you’ve done a marvelous job. This is a wonderful plan. And you’ve set up the vision of your community, you’ve defined what the important issues and concerns are. You’ve done a marvelous job. However, I do have a question. I like your Chapter 3.3 Environmental Cultural Concept, and then the action programs; and you identify who has the lead role in each of those actions. Now one of the principles that you state in your plan is to identify historic and cultural sites. And I looked at the Appendix D that says under Historic Sites a) Coordinate with the community residents of North Kohala to identify historical sites and buildings for protection and preservation. Now, but who owns that responsibility? WHITE: All right. I believe the answer to that is that as we progress with the action counsel the subcommittees will evolve out of that because that’s our directive in our plan. HOUSEL: Okay. Have you begun identifying those sites? WHITE: Not officially to my knowledge. HOUSEL: Okay. So the action committee will do that? WHITE: That’s what we intended. HOUSEL: Okay. I think that’s really important to be clear about those. Thank you. WHITE: You’re welcome. WOODWARD: Okay, I found the letter. It came from Townscape from Bruce Tsuchida and it addresses page 23, No. 7. And it says, “Minimize speculation that drives EXHIBIT C 3 up land values, property taxes, and the cost of housing; and encourage developers that wish to invest in the long-term health of North Kohala.” None of that changed. And then there are two bullet points below that and they did change; and this is satisfactory to me. If this is satisfactory to you it says, “County permits and approvals for North Kohala, including but not limited to zoning changes, subdivision approvals, and building permits, shall have expiration dates,” and then they added “for permit conditions that require actions by the applicant, and these expiration dates shall be adhered to. Any requested extensions of expiration dates for permit conditions shall be carefully evaluated.” And then the next bullet point it says, “The North Kohala CDP recommends the enactment of a special land speculation tax,” and they added “by the state legislature. The North Kohala CDP Action Committee should provide support to implement appropriate state legislation,” and they added the word “state.” This is the only thing that I really strenuously objected to when we had our first meeting. And if those conditions are acceptable, that modification -. It’s really a clarification and so therefore it’s not really an amendment, we don’t have to go through a whole process again. But if it’s acceptable then I think I’m ready to vote for it. WHITE: Thank you, Mr. Woodward. Those two, on Item 7, the wording that you have there in front of you represents what my recollection is of how we wanted to clarify the discussion that was at the very first Commission hearing that we had in Kohala. And I believe that’s when you raised that concern; and, well, we had the discussion. And these, I believe, represent the clarification of what the intent of Item 7 was or is. WOODWARD: Is that satisfactory to you? WHITE: Yes, yes. WOODWARD: Thank you. Anybody else have questions? All right, we have no public testifiers signed up. Does anybody want to testify? Okay. LUCE: Mr. Chairman? WOODWARD: Sir, I think we met before, but if you will give us your name and address and then begin your -. Mike Luce, yes, we have met before. LUCE: Yes, sir. WOODWARD: If you will give us your name and address, and then you’re welcome to begin your testimony. EXHIBIT C 4 LUCE: Mike Luce, Box 1299, Kapaau. It’s good to see you again. We met I believe it was at the Marriott hearing on the Kohala Community Development Plan. th I’ve asked staff to just pass out a testimony I submitted to the Steering Committee on 19 March of this year. It basically suggested some policy language whereby the Steering Committee might adopt consideration of landowners rights and property values as a policy in the North Kohala Committee Development Plan. The Steering Committee should be praised for all the work it has done, as did Allen Salavea and staff. An enormous amount of work was done in a very short period of time. The Steering Committee feels that they have acknowledged the preservation of property owners rights and land values within the document itself as a whole, even though they didn’t give a Section 3.3 proposed key policy to it. I just, the reason I passed this out today is I kind of wondered if you folks ever saw this. And the reason I ask you that is I can’t find in the public file any correspondence, or testimony, or anything submitted by the public to the Steering Committee, or by the Steering Committee to the Steering Committee, or by the Steering Committee back to the public. I went over to the file to look for the recently adopted language, I couldn’t find it. There was a letter from Surety at the last meeting, I couldn’t find it. I can’t find any minutes of previous Planning Commission meetings on this CDP Plan. And I’m, this is why I passed this out. There’s a lot of good testimony that went in. And I listened to your previous agenda item, and you were all very concerned about letters that were received and getting them filed, and being available and in the public file; and this is called the Sunshine Law. And I want to go on record, and that’s why I’m here today, just expressing my concern that this process because it was rushed, not because of malicious intent on anybody’s part, the public record is grossly inadequate. Continuing on two things I’d like to see changed in the current draft CDP, one has to do with the Cultural Section 4.1.7 that you mentioned earlier, sir. On page 47, it begins, I believe, let’s see, I’ve got to make sure, excuse me, 4.1.7 is page 37, I do believe. All that I’d like to see added to 4.1.7, I don’t think it’s a substantive change, is just would you please include the landowners, in consultation with the landowners. And it’s in all the public access action steps. And I’m going to look up my own doc here, Page 37. 4.1.7, “Action Steps, WHAT needs to be done - All steps should be done in consultation with the community, scientists, natural resource managers, and cultural experts.” What happened to the landowners? Wouldn’t it be nice to get their input, too, affected landowners? The Public Access Section of this CDP Plan has consultation with landowners in determining public access. I think the landowners should be consulted if something is going to be earmarked as a cultural, culturally relevant site and have a buffer around it. I think you need -. Anyway, that’s Change No. 1, small, just include “landowners” please. Another reason I’m concerned on this point is that as just was stated the question came to Fern, how, you know, who’s going to determine these things? The number two answer is - I don’t know if you picked up on it, the question was asked Fern, who we worked closely together on this, there’s no animosity or anything - it’s just that Fern’s answer was that’s the subcommittees of the action committees. Then someone else said you EXHIBIT C 5 mean the action committees, and she said yes. That’s two different answers. My understanding is the Action Committee will be subject to Sunshine Law. You know, meetings have to be noticed. The Subcommittees I’m not so sure. And I just wanted to share with you a small case that happened where we had a four-hour meeting on a Friday. Public and the focus groups and the Steering Committee did a round-robin session where the focus groups met with each other, hashed out their differences, found out what they could live with, reached consensus, and in this case was Public Access Committee and the Infrastructure Committee. You know, Infrastructure Committee added this, gave up that, did this and that. Public Access Committee gave up this, added that, put this there, did that there. Everything is fine. We come to our next meeting, four-hour meeting, the following Monday only to find out that the Public Access Focus Group has had, I call it Sunday in the park, a 4 p.m. Sunday meeting in the park pavilion with a handful people that recanted everything that was agreed to on Friday night in a duly published meeting. This happened. You know, we come back Monday all bets are off. And what you see here segue into my second point that I’d like to see changed is Section 4.2.5. This is Public Access. I praise them for including landowners. But we talked about at the last Planning Commission meeting at the Marriott, for which there are no minutes yet, the addition of, and now I go, it starts on page 47 and the list is on page 51, the long-term list of potential public access sites. We had quite a discussion on that, that when this plan is adopted by ordinance these becomes disclosable elements to real estate sales. If your property is potentially impacted there is a duty to disclose. And the Director confirmed that even those, these, and correct me if I’m wrong, that even those 2 ½ or 3 page list with 41 different items on it is long-term and suggestions, that when an application is received for a subdivision or probably a consolidation/resubdivision by the Department the staff will take this list into account, and it will be used in determining conditions of approval for a subdivision. This is not a light duty thing. This is not mamby pamby. This is the real deal. I would like to see that section, that list taken out, that long-term list. It creates more problems than it solves. And it was out for a while but it got put back in by the Sunday at the park meeting, which concludes my testimony to you. We’ve come full circle. We were talking about public access, now we’re talking about cultural sites. If it’s up to the subcommittees of the action committee and there’s no Sunshine Law, there is no one to participate. You know, I can’t participate, I don’t get the notice. It’s all of very great concern to me, as is the Sunshine Law. One last example on a cultural site identification. Granted that the Courts have ruled that there is not a legal taking of property rights or landowner’s rights as long as something is left for the landowner to do with his property, i.e., 95 percent of the value could go away but 5 percent could remain. My example for, and concern for cultural sites and for property th values and rights from March 19 is if you take a hypothetical one-acre parcel, it’s got a knoll, it has got a puka, a knoll and a depression. Somebody pays $100,000 for that acre and is going to build their house on a knoll. The Committee, oh, excuse me, subcommittee that meets with no Sunshine Law has determined that there’s a tail end of a Kohala Field System wall right on that knoll, just stuff that was covered with kikuyu grass. But son of a gun it’s there, it’s special and it needs a 100-foot buffer. That EXHIBIT C 6 $100,000 lot now you’re only left to put your house in the depression. Well, you don’t want to do that so you go around to sell it. It’s worth what now? Fifty thousand dollars. Well, it’s not a taking, but where did that $50,000 go? You know -. I tried to cite a specific example but I don’t want to lose -. My overall testimony is please consider adding a landowner’s input to cultural assessments, please consider taking out the long-term list that’s going to create more problems legally for everybody than it gains, and I’m on record with grave concerns about the Sunshine Law. Thank you for allowing me to speak this long. WOODWARD: Thank you, sir. Do we have any questions or comments? LUCE: I’m asking for a consideration of two nonsubstantive changes. DOMINGO: Mr. Chairman? WOODWARD: Yes, sir. DOMINGO: I think those concerns are valid. WOODWARD: Well, yes, let me ask Mr. Torigoe if he feels they’re nonsubstantive. This is the thing we get ourselves into. TORIGOE: Well, I’d like to, I guess, have a specific, you know, motion or something to that, or suggestion to look at. IWASHITA: Mr. Chair? WOODWARD: Mr. Iwashita. IWASHITA: As to the concern raised about on page 37, Chapter 4, Strategy 1.7, I believe what’s being asked for in that particular instance is a language clarification. And I move to add to the current language, which is “All steps should be done in consultation with the community scientists, natural resource managers and” cultural groups, no, “cultural experts,” boy, I can be creative in how I read -. To add after the word community “(including affected landowners)”, to address, to make it clear that community would include landowners affected by any cultural designation. WOODWARD: All right, Mr. Torigoe, do you feel that is a substantive change or not, or just clarification? TORIGOE: You know, I could see that falling into the category of clarification, if that’s consistent with what the Steering Committee had in mind. I would also defer to the Planning Director, really. WOODWARD: Mr. Yuen? EXHIBIT C 7 YUEN: I would look at it as a clarification. As a practical matter, yes, you would have to include -. If in the end it has an effect on what the person does with their property, yes, you have to let them know. So it would include, it simply states something that would be required if there is any notion of due process of law. WOODWARD: All right. Well, I don’t have a problem with it.It says all steps should be done in consultation with, which is a good thing. It doesn’t say it shall be done such and such. Do you have a problem with that? WHITE: A problem? No. I have a lot of problems, but not on this one. But, anyway, with regard to the idea of community -. WOODWARD: Well, we’re not going to get into all your problems today. WHITE: Okay, no, I’m sorry. I’m just kidding. Okay, so in the sentence where it says “All steps should be done in consultation with the community,” the assumption is that landowners are part of our community. But if they feel that, you know, we actually have to spell that out, then what else do we have to spell out in terms of finite sections or representations of the community? I think that the intent of this one, particularly here, the community meant, you know, of all our land, that we’re talking about it in terms of landowners. Scientists, natural resources managers and cultural experts may or may not be within our community. So that -. WOODWARD: Well, again, the way I look at this, it says “done in consultation,” that just means taking in their opinion. It doesn’t mean you have to act on it. But it means taking in their opinion. And we may want to change it to “affected landowners,” if that’s acceptable to both of you. LUCE: Mr. Chairman, the rules of the Commission throughout are consistent that the interest of landowners, adjacent property owners impacted, affected property owners is clearly distinguishable from that of the general public. Those are your contested case standing rules; and that’s all I’m after. When I asked about including landowners during a focus group meeting, I was told that landowners equal community. And I don’t agree and I don’t think the Commission’s rules allow that either. The interests of the landowners are clearly distinguishable from that of the community or general public. WOODWARD: Well, we certainly recognize that you have a bigger stake in that particular area than the rest of the general community both financially and every other way. So I have no problem if that’s acceptable to both of you that we just add “and affected landowners.” And, again, it says “in consultation with.” It doesn’t obligate anybody to do anything. It just says bring them into the loop. So if that’s okay with you then I think that would -. Does that satisfy your question, Commissioner Iwashita? IWASHITA: I made a motion. EXHIBIT C 8 WOODWARD: Oh, a motion, okay. Is there a second? BOWMAN: I can ask a question now, can I? WOODWARD: Well, we need a second first before we -. BOWMAN: Second, first. WOODWARD: A second, first? BOWMAN: Second. WOODWARD: Okay. BOWMAN: Now do we have to vote on it or -? WOODWARD: Well, discuss it. BOWMAN: Because I just assume have everything in one motion; and there is another amendment that was proposed. WOODWARD: All right. LUCE: I have no problems with taking things one at a time. IWASHITA: Mr. Chairman, point of procedure. There’s going to be difficulty to do multiple things in one motion. BOWMAN: Okay. WOODWARD: All right. So we don’t really have a motion to approve the CDP. We just have a motion to change the wording on one part, right? IWASHITA: Right. LUCE: Clarify. WOODWARD: Yes, clarify. Okay? Is there any, and is that acceptable to everybody that we just add “and affected landowners,” at the end of that sentence? IWASHITA: Mr. Chair, my motion was to include the wording after community “(including affected landowners),” and then with the rest of the language. WOODWARD: All right. Mr. Torigoe? EXHIBIT C 9 TORIGOE: Just for clarification. So basically this is going to be a motion to include that change in the recommendation that the Commission will be making to the Council. Is that really what it is? WOODWARD: Right. And you feel comfortable this is just a clarification and not a substantive change? TORIGOE: I’m okay with it. WOODWARD: If you’re okay with it, I’m okay with it. BOWMAN: I have a question. Why do we have to put “landowners” in parenthesis? IWASHITA: Well, that’s just my grammatical, maybe too lawyerly, way to do it. I mean that’s, it can be done with commas, I guess. To me, it makes it clearer that it’s tied just to community, but you can grammatically -. If it’s not grammatically correct, I will yield to the grammatically correct form. BOWMAN: I’d prefer the commas. There’s just a visual, and I think it doesn’t make a difference. IWASHITA: I agree. WOODWARD: Okay, we’re arguing about commas now. So I think it’s time to -. All right. Does anybody have any other discussion on this? SALAVEA: Chair Woodward, if I may. WOODWARD: Yes, sir, Allen. SALAVEA: Could we get a clarification on the exact wording so J can have that prepared? WOODWARD: Yes. On page 37 where it says “WHAT needs to be done –“, about midway down the page, it says “All steps should be done in consultation with the community, including affected landowners, scientists,” etc., etc., etc., and then the rest of the sentence remains the same. Is that correct? IWASHITA: Yes. WOODWARD: All right, any other discussion? BOWMAN: I just have to clarify -. Because we have a lot of absentee landowners that sometimes aren’t necessarily part of the community, this would then give EXHIBIT C 10 them a chance to be a part of this decision making? That was my whole idea behind taking the parenthesis out. WOODWARD: Well, if I might address that question. It says “in consultation with.” So if they’re absentee and there’s a meeting listed to develop a trail and they’re not there, well, then they’re not there.You know, they’ll be given due notice but my guess is that this is not going to seriously affect much of anything other than adds that the landowners into the loop in regard to making these decisions. So I don’t really have a problem with that at all. Okay. Any other comments? Okay Mr. Hayashi. HAYASHI: Thank you, Mr. Chair. Just from a, grammatically, perhaps it should just read that “with the community, affected landowners, scientists,” rather than including the “including.” IWASHITA: I understand the comment. I guess because there’s a concern procedurally that we not make a substantive amendment, to use the word “including” to me makes a very clear argument that we’re clarifying and we’re not making a substantive change. We’re not adding another group of people. Once you start adding another group of people then I think the argument that you’ve made a substantive change becomes, or that’s one point on that side of the scale, if you will. So that’s why I would urge leaving the word “including” in because then to me it’s as close to a slam dunk for a clarification argument as there is. HAYASHI: Okay. With that I’ll take the roll call that includes the word “including affected landowners” after “community.” Oh, it was moved by, was Iwashita and seconded by -? OGATA: Lani. WOODWARD: Bowman. HAYASHI: Commissioner Iwashita? IWASHITA: Yes. HAYASHI: Commissioner Bowman? BOWMAN: Aye. HAYASHI: Commissioner Domingo? DOMINGO: Aye. HAYASHI: Commissioner Housel? HOUSEL: Aye. EXHIBIT C 11 HAYASHI: Commissioner Ogata? OGATA: Aye. HAYASHI: And Chair Woodward? WOODWARD: Aye. HAYASHI: Motion carries. WOODWARD: All right. Now anybody have any questions for any of the people who have testified? Commissioner Bowman? BOWMAN: So I’d like to discuss another amendment, not amendment, clarification that the testifier submitted. And that’s “Following are 3 alternates of draft wording proposed to be finalized and adopted within the NKCDP as Section 3.3 KEY POLICY:.” LUCE: Excuse me, Commissioner. I resubmitted this testimony to the Commission as an example for questioning whether public comments were part of the public file, which they don’t appear to be. And I submitted this as an example. While I’d love to see a policy that recognizes land values and property rights I didn’t want to take your time with that today. The second thing I, you know, there’s another arena for that. The second thing I asked for was related to the public access long range list that I believe the Planning Department staff will be using in evaluating subdivision applications. It doesn’t have a proper map, it doesn’t identify where these trails are. You can’t find the trails listed on a map. And I don’t know how you can approve a list if you don’t know what you’re approving. And I think there are impacts to the real estate world in selling a property when these things have to be disclosed; and you don’t know when to disclose, when to not. And I just think it creates all, it will create all kinds of legal problems for the County government and for the real estate industry. And I ask that it be removed as it’s just a long-term plan that should be adopted. However, you know, it’s a “should,” it’s not a “shall.” However, the Director indicated that it will be used as criteria in conditioning subdivision approvals. That concerned me. You might ask Mr. Yuen to comment on that. YUEN: Well, I would recommend against making this change. This is something that came out of the plan as passed by the Steering Committee. It is a list of desired accesses and it is a direction to the Planning Department that in reviewing applications that come into the future the community would like to see public accesses in these areas. The landowner has the opportunity to contest that when applications come in. It doesn’t expand the powers of the Department in obtaining public access and other kinds of land use approvals. It merely gives a sentiment of what the community wants in terms of getting these in the future. So I have, you know, and I had some concerns about EXHIBIT C 12 this list myself when it went to the Steering Committee that I expressed. But I do think that at this point it has been identified as a list of desired accesses and it would serve a useful function to put it in. I think it would also, I do think, I’m jumping on perhaps the Chair’s lines here but it would be a major change from what was submitted and passed. LUCE: Mr. Chairman? WOODWARD: Yes, sir. LUCE: Would it be possible then by way of clarification to merely request or recommend that the Council or that the consultant prepare a map that’s of enough detail to show where these 41 bullet points, access points are so that people know what it is that’s being adopted in the CDP, and owners and buyers and sellers of real estate will know whether their parcel is impacted or not? That would address my concern, if it was just clarified. I’ve lived up there 38 years and I can’t find these things. I don’t know what they are. And it was discussed at the Steering Committee that the public access committees, at least some if not the majority, did not want to make that public information as to where these are, because then there was a concern over controlled access versus public access, versus community access. So I think as a public document and for conscientious Commission and Council Members they should know where these places are. And they should be shown on a map so that the position is defensible that the owners and potential buyers and sellers and licensed agents who are bound by law to disclose, and sellers who are bound by law, so that we know what we’re doing here. I would be happy with that; and I think that’s just a clarification. The places stay in there, you just need better maps. I think that’s only clarification and a nonsubstantive change. WOODWARD: I don’t have any good answer for you there. WHITE: Mr. Chair, may I? WOODWARD: Yes. WHITE: Thank you. I’d like to take a look again that, I believe you’re referring to page 51, Long Range Plan Access Elements, Mr. Luce? Am I correct? LUCE: Right. WHITE: So if you look at this sentence there -. LUCE: It’s preceded by the rest of the section on 47, 2.5, page 47. WHITE: Okay, am I in the wrong place? Because I believe the list of elements, the intent here, and it says here “The trails and accesses listed here are based on community desires,” as Mr. Yuen pointed out it’s a wish list of sorts, “and recommendations and are not necessarily the access ways that have been negotiated by EXHIBIT C 13 the County Planning Department in their permit requirements.” That’s an important point, I think, to consider with the list. And, also, with regard to your comment on the maps, yes, there were some reservations by some individuals that had been working on maps for a number of years to -. There were several cautions on that side, and that is the accuracy of the map and what land court documents, etc. they have. So those were issues that were raised. Also, with regard to the list, I believe the Planning Department and the Director took a look at the list and pointed out specific ones that would be more problematic or had some serious questions; and those were clarified or taken off of the list, that we took a few off of the list I believe to keep it, because there were some additional concerns, I believe. So while I understand your concern over how powerful you believe the list to be, again, we have other parts of the document that speak to the idea of community involvement of processes wherein everyone is involved. So it’s not just going to just happen because that list is there. If it’s in consideration, yes. And these are the wishes of the community, which is what a community development plan should do. WOODWARD: Okay. I might just ask Director Yuen, because we’ve brought this up before and we’ve discussed this before. There are mandates, that is you shall do this; and then there are recommendations. And this one says “accesses listed here are based on community desires and recommendations and are not necessarily the access ways that have been negotiated by the County Planning Department in their permit requirements.” So my understanding is this is what the community would like to have but there’s no mandate, no legal mandate, to do any of theses. And I might get the Director’s comment on that. YUEN: Correct; and in brief I would not recommend making a change to this at this time. WOODWARD: All right, thank you. HOUSEL: Mr. Chair, I have a question for Mr. Torigoe. WOODWARD: Commissioner Housel, yes, sir. HOUSEL: If these trails are listed in the CDP does that imply the public’s right to access these trails? YUEN: Can I answer that. The thrust of some of my comments to the Steering Committee was to make sure that the CDP was worded so that people understood that these were not necessarily public at the present time. That’s intended to be there. You know, you cannot help the fact that sometimes people will still misread and misunderstand things; but that is certainly, was, there were changes made so that it would be clear that this was a desired list and that we’re not declaring these to be public. WOODWARD: Mr. Torigoe, you had a comment, I believe. EXHIBIT C 14 TORIGOE: I think Mr. Yuen’s comments are consistent with what, you know, basically in my mind -. I often am asked the question from various quarters since I work with the Department of Public Works whether a trail or a road is open to the public and is a public road. And it’s a really, really difficult question to answer. It has to be taken on a case-by-case basis, looking at the history of the road, who built it, you know, what the history of it is. So it’s just, you know, basically if it’s just a wish list, I would say that it would have very little, if any, relevant implications for legal access on the part of the public. Each one would have to be looked at very carefully on a case-by-case basis. WOODWARD: All right. Any other -? HOUSEL: Okay, thank you. DOMINGO: Mr. Chairman? WOODARD: Mr. Iwashita. Oh, Mr. Domingo. DOMINGO: Mr. Chairman, thank you. Are these recommended accesses already being used today? Are they widely used by the public? SALAVEA: To my knowledge, some access ways are used with landowner’s permission. Some accesses, some of the trail ways are used not so much with permission but for whatever reason are still used somewhat. And to clarify or expound upon what Mr. Torigoe said it is really a case-by-case basis; and to make a sweeping statement regarding all of the access would be, it was the focus group’s intent as well as the Steering Committee’s intent to make sure that this is just the starting point of beginning to formalize the accesses. DOMINGO: Yeah, I only asked that question because of the statements that Mr. Torigoe made. And there are legal accesses at this time based on those accesses being used, established accesses used many, many years ago by the public, and there are accesses which are seldom being used. And, you know, I don’t know if we should add some clarity to this as I cannot visualize this going back to the community and having it rehashed again, you know, in the interest of the time constraints, and reworking -. But that is a point because accesses established by many years of use will be recognized. I think we’re looking at the legal aspect of all of this, and from that legal aspect it’s workable, you can establish a public access. But others can be granted only if the owner of the property would come for a permit, and then that can be used as a point of, qualify for demanding that access is a requirement by granting of the zoning or a permit. So there are several implications involved in this; and it’s very complicated, yes. WOODWARD: Yes, Director Yuen. YUEN: Yeah, I just want to say many of the accesses listed are public right-of-ways and well recognized as such.And the point of working on the plan, some EXHIBIT C 15 of the points on working on the plan was not to imply for ones that, in the previous drafts there were some listed and implied to be public in a way that we couldn’t support or substantiate; and so that was important. But, you know, for example, Keokea County Park Road, that’s the road to Keokea Beach Park, it’s a County road. And I do think that at this stage there is a reasonable differentiation between which ones are -. There are statements about which ones are public and then where it doesn’t say that they’re public they’re not, or you can’t prove that they are and so you’re not asserting it in the plan. BOWMAN: Mr. Chair? WOODWARD: Okay, Commissioner Bowman. WHITE: I -. WOODWARD: This is really a situation where we’re supposed to be asking you the questions. And we’re getting into a little bit of a kind of debate, and that’s really not what we want to do. So, Commissioner Bowman. BOWMAN: Okay, I’ll preface this with a question. I do believe that some of these were traditional accesses during the plantation era when there was only a landowner and they were able to use them when there was only one landowner. I see the quagmire that we’re in right now, is that there are multiple landowners. So what people think of as traditional access in today, 2008, it’s not. So is that what the problem is? WHITE: Okay. So I’d like to address that, and I think it’ll answer everything in terms of how you might be able to decide. And again, I refer you back to the plan on page 48 where it says “WHO will take the lead.” You know, the background is real clear here about the long-range access plan will take many years to implement, cause someone asked that question. And then “WHAT needs to be done,” and here you have the CDP clearly saying that this is a collaboration, “With the assistance of the Public Access Planner, the CDP Action Committee will develop an inventory and database of existing traditional public accessways identified by the community to be used as a planning tool in the County’s actions….” So this is down the road. And it says “will then work with the County, with other public agencies, and with the Kohala landowners to implement specific accesses for controlled public use.” So this is not, you know, I mean we’ve already covered what it is that we’re concerned about here in the discussion. LUCE: And, Commissioners, my big concern is generated by the Director saying that the Planning Department will use this list in conditioning subdivision approvals. If that is not the case, if Corporation Counsel had said that this is just a recommendation, if it’s not going to be used in analyzing subdivision applications and used as a tool to implement public access, then it’s kind of neutered. Where the rubber hits the road is where the staff refers to the wish list and mandates public access on private property when an owner is subdividing. That’s my problem. WOODWARD: All right, I think we’ve heard what you had to say, Mr. Luce. EXHIBIT C 16 IWASHITA: Mr. Chair? WOODWARD: Yes. IWASHITA: I have a clarification to ask the Director, cause it’s my impression, and I’m asking the Director to correct me if I say the misimpression. And that is it’s my understanding under current law during the subdivision approval process and zoning change in process that the Department reviews any access issues, public access issues, in the course of reviewing and approving such applications. Is that correct? YUEN: Basically correct but not all. Subdivisions of six lots or more under Chapter 34, Hawaii County Code, that are between a public road and a shoreline will be reviewed for public access and public access can be required. Also, lots between public roads and mountain forest reserve or recreation areas can be reviewed for such purposes. And then you would also review subdivisions that require, that might have an SMA minor permit requirement. So it’s not free floating; and there are limits to what you can require based on those ordinances. So what we would -. IWASHITA: In those situations -? YUEN: Yes. IWASHITA: Where the Department does process those, it is in a normal course of reviewing those applications that questions are raised about access and location and so forth, and whether or not those need to be addressed somehow with conditions in those applications? YUEN: Right. And we would take what’s in the CDP as a community recommendation -. IWASHITA: No, no, I don’t want to go there yet. YUEN: Okay. IWASHITA: That is without the CDP, right? YUEN: Yes, we still do that. IWASHITA: Without the CDP? YUEN: Yes. IWASHITA: Okay. So my impression then is by including this list in the CDP that it will not change that process, or add to it, or create any more burdens on a private EXHIBIT C 17 landowner than already exists under the present way that these applications are processed? YUEN: It doesn’t increase the Department’s power under existing law. It provides an idea of what the, when you are reviewing an application for public access what the community has expressed as wanting in the area. IWASHITA: Okay. For public access, the concern that I’m hearing expressed is that somehow this list increases the burden on a particular private landowner, you know, where these trails are identified or these access areas are identified. And my impression or my understanding is that it would not have that effect. Because under those situations where access would be addressed, those applications, these trail or access issues that already, they don’t identify anything new. They’re out there, they’re real, and so they would be brought up in the course of reviewing such applications anyway, without this list. YUEN: The Department is, you know, under the circumstances I outlined, the Department, in looking at subdivisions, are supposed to look for public access. Without this list, I mean this list provides them a guidance as to specifically what the community would like in the area. Otherwise, it’s a matter of staff or the Department trying to figure out what people might want to do. IWASHITA: I understand. Okay, thank you. LUCE: Mr. Chairman, I’m ready to withdraw my request at this time, in the interest of time, and let you folks move forward. I have another arena to take my concerns to. I just wanted to point out that -. If I can draw your attention to page 46, Action Steps in Section 2.3, page 46, the Intended Outcome of 2.3 is at Chapter 34, which was cited by the Director, “will be amended, clarified and improved. County decisions and requirements…will be more consistent as a result.” When this is adopted as ordinance, Mr. Chairman, this is Chapter 34 and Rule 21, it’s not a should be considered, “will be amended.” This list is a plank in the platform of moving forward an agenda of a small group that has been working quite a while to impact property owners, and it does. If there’s no list, you don’t have to disclose it. If you don’t disclose it, if it’s disclosed it puts a cloud over your title because the buyer would not know what would happen. It does impact the way it is now. If there’s a specific trail, it’s known, a buyer can say this is on the map, it’s a good map. It’s clarified like I asked for. I only asked for clarification on the map. But if it’s left as it is, it is a hardship. But I’m willing to withdraw my request and take it up at the County Council. But I do want to point out that adopting this plan by ordinance does call for changes to Chapter 34 that the Director was hanging his hat on as to what we do now. This plan intends to change that. Then, Mr. Chairman, in the interest of time I’d like to just withdraw my request. And thank you for adding consideration of landowners in the designation of cultural sites. WOODWARD: Yes, sir. Do we have any other questions or comments from Commissioners? Commissioner Iwashita? EXHIBIT C 18 IWASHITA: No. WOODWARD: Commissioner Bowman. BOWMAN: Okay, I move that we send a favorable, a favorable recommendation be forwarded to the County Council for the North Kohala Community Development Plan, as amended. WOODWARD: With the inclusion I assume of the -. BOWMAN: With the clarification. WOODWARD: With “including landowners,” and the changes to page 23, No. 7, correct? BOWMAN: Correct. WOODWARD: Okay. Do we have a second? IWASHITA: Second. WOODWARD: All right, discussion. SALAVEA: Mr. Chair? WOODWARD: Yes, sir, Allen. SALAVEA: Just to clarify, there were some additional corrections submitted by the Fire Department, the language that was submitted by the Planning Director on behalf of or in lieu, you know, for the Fire Department. Would that also be part of the motion to approve the North Kohala CDP? WOODWARD: If that’s acceptable to you, yes. Do you accept that as another addition to your motion? th BOWMAN: That is this August 20 that we received? SALAVEA: That would be a letter from the -? BOWMAN: Darryl Oliveira? SALAVEA: Yes, correct. BOWMAN: So it would read that with five personnel, that would be changed from six to five? EXHIBIT C 19 SALAVEA: That’s the first of two. BOWMAN: Okay. SALAVEA: And the other would be on the personnel, the two personnel going to or servicing the emergency medics, medical emergencies, and then also responding. I can’t remember the wording right off the top of my head. BOWMAN: Okay. Cause he doesn’t say this in a succinct way. I mean he’s just making changes so we need to put those in with the appropriate language. YUEN: I think that we can, if you simply make the motion to amend it we can make the proper language. BOWMAN: Okay. So taking into account the Fire Department’s comments. WOODWARD: All right. Is that acceptable to, I believe it was Commissioner Domingo that seconded? DOMINGO: Yes, it is. WOODWARD: Okay. So we actually have some clarifications, that’s what we’re going to call them, adding the word “including affected landowners” on page, whichever that was, 47. BOWMAN: Thirty seven. WOODWARD: Thirty seven. Changing Item No. 7 on page 23, and Sharon has a copy of those changes. And then making the changes suggested or the clarifications suggested by the Fire Department. Is that correct? SALAVEA: I think so. LUCE: Mr. Chairman, point of order then I can go home. That document isn’t in the public file. It hasn’t been discussed by the Steering Committee. I just use it as yet another example of the problem I have with the Sunshine Law. And I’ll just let you go with that but I couldn’t go back to my seat without saying what’s going on here. IWASHITA: What document are you talking about? th LUCE: The Fire Department of August 20. No one has seen that. No one in the community has seen that that I know of, nor has the Steering Committee talked th about it, nor is it in the public file; and this is September 4. It’s just, all I’m saying is there’s, you peel the onion, there’s a lot of things in the last year and half that have been like this and it’s concerning me. I love the Fire Department. We wrote the infrastructure EXHIBIT C 20 section to put them in there. It’s just, it’s the process. I’m just speaking that I’m scared by this process. Thank you. IWASHITA: Where did you go look for this? LUCE: Right there, sir. It says “PUBLIC FILE,” right there “PUBLIC FILE” in 3-inch letters. IWASHITA: Oh, right there on the desk. Okay, thank you. LUCE: We had the same problem at the Steering Committee level. The “PUBLIC FILE” didn’t have public documents. Sorry, to -. But it’s in the transcript, and I’ll take my battle up on this. WOODWARD: All right. Any further discussion? BOWMAN: I have a question, sorry, because there was another submittal. And it says that it is important that the North Kohala CDP formally recognize this effort in th writing. I’m not sure if something should be included. Do you have this August 25, probably not, to the Planning Commission from the Kohala Ditch Project Steering Committee Members, “Testimony Prefinal North Kohala Community Development Plan regarding the Kohala Ditch and associated trails?” WOODWARD: We just got that today. HAYASHI: That should have been provided to Mr. Salavea. Any correspondence that came into our office was transmitted to Mr. Salavea as well as to the Planning Commission. BOWMAN: Okay. So have you taken this into consideration in your last meetings? SALAVEA: In regards to the Planning Commission correspondence I have not been taking that back to the Planning, sorry, the Steering Committee for comments. That would entail a lot more than what I would be able to do because the testimony is coming in piecemeal as received. And in order for the discussion to happen at the Steering Committee I need to file an agenda in advance. So it’s difficult to say what do we put on the agenda, and then review, and then provide testimony in terms of what you folks want to hear from the Steering Committee. WOODWARD: My impression of this, if I could just interject this, is that this was a day late and dollar short. They submitted it three weeks after the Draft of the North Kohala Community Development Plan came out. And they go on this with long diatribe that it needs to be included.Well, I’m sorry you’re a bit late. You know, and this is not a document that is unchangeable by any means. But you can’t expect to have a document EXHIBIT C 21 submitted three weeks after the draft comes out and have it included in the draft. It’s just not going to happen. BOWMAN: Thank you, Mr. Chair. IWASHITA: Mr. Chair? WOODWARD: Yes, sir, Mr. Iwashita. IWASHITA: I would like some clarification about, you know, the public record, that I guess my impression right now is that the, it appears things that we have that we’re considering were not in there. So if staff can explain that, in fact, it’s in there or, you know, what the situation is with that to allay my -. WOODWARD: Of which do you do speak? IWASHITA: Well, I’m thinking about, in particular, the Fire Department’s comments, just as one example I can think of right now. WOODWARD: All right. When did that letter come out? th IWASHITA: The Chief’s letter is dated August 20, the Department’s response rd is September 3. WOODWARD: Okay, well, the reason is that was only two weeks after the final, the draft came out. IWASHITA: Well, if it’s part of our record, then I would like an explanation of why. I guess it’s my understanding it’s supposed to be in that book there, that’s supposed to show the same record for the public. So -. WOODWARD: Well, you’re probably correct in that regard. But as far as being in the printout of the CDP, as I say, that was at least two weeks after we received it. We th had our first meeting on August 7 and we received the CDP probably a week before that. So that actually the Fire Department’s recommendation came in three weeks after this arrived to us. So, I mean, I’m not trying to defend the Planning Department by any means, believe me. But I think that’s the explanation. IWASHITA: Can I have staff address that please. HAYASHI: Sure. I guess your question is whether these documents have been provided in the public record at the desk. IWASHITA: Yes. EXHIBIT C 22 HAYASHI: They are supposed to be in there. All of the information that you have is the same information that’s provided in that public record. IWASHITA: At this point though the representation is the Chief’s letter is not in there? Is that -? HAYASHI: The representation is the Chief’s letter is in there. That was from a rd memo that was transmitted from Mr. Yuen dated September 3 with the recommendation that these concerns expressed by the Chief also be included. IWASHITA: Similarly the Townscape’s revised language? HAYASHI: That is correct. That was also transmitted to the Planning Commission and also should be in that public record. IWASHITA: And it is, in fact, in the public record? HAYASHI: I haven’t checked what’s in there. I’m assuming that whatever is provided to the staff as well as to the Commission is in that document up by the desk. IWASHITA: So is it? I just want the record clear that it is. HAYASHI: I can take a minute to take a look in there, to look at the record. IWASHITA: What I don’t want is for us to act on this and for our action to be challenged because we didn’t make proper disclosure or have a proper record. WOODWARD: Well, fortunately, we’re only making a recommendation. This is actually a decision for County Council; and we have to act on the information we have at the time. And, admittedly there may be things that come in after this is printed up and even things that come in between now and the time it goes to the County Council. So, you know, we are sending a recommendation to Council. We’re not approving this. IWASHITA: Thank you, Mr. Chair. I guess my concern is that if there have been some omissions that they be addressed and that, you know, so that they’re really somehow addressed. And I’m not sure, you know, I would really like to take action today, and I don’t want it to be challengeable. WHITE: Mr. Chairman, can I just say one thing? WOODWARD: Yes. WHITE: Okay. So I’m not sure what the content of the Kohala Ditch letter is. I really am not. I did not see it. I heard some discussion about it. But because of the Sunshine Law obviously I don’t get to meet with the other Steering Committee Members. The Kohala Ditch in some of the original drafts out of the Focus Group in terms of EXHIBIT C 23 infrastructure and other areas of the plan was mentioned. But after consideration by the Steering Committee and discussion with the Focus Groups, the decision was to equally be neutral with all water sources. So I’m not sure what that letter is asking, but I just want you to understand that the Steering Committee and Focus Groups had Kohala Ditch identified as a specific water source, but identified in a generic, for lack of better term right now, but in a very neutral way so that we’re not naming a specific entity in terms of the plan and considering all water providers and sources. So I’m not sure what it’s asking you, but just to let you know that. Thank you. HAYASHI: Mr. Chair, staff. WOODWARD: Oh. HAYASHI: I did have a chance to take a look at what was up there for the public’s information, and this is usually provided for the public’s information. The two nd correspondence from the Director dated, first of all, the first letter dated September 2 to the Planning Commission from Christopher Yuen transmitting the Planning Consultant’s, Townscape’s, letter is not in this file. The second letter from the Planning Director th transmitting the Fire Department’s comments of August 10 also is not in here. So Mr. Luce is correct, they are not in this file. IWASHITA: Mr. Chair, in order to avoid any kind of challenge to what we’re doing, what I would recommend is that we approve or send a favorable, vote to send a favorable recommendation to the Council without any of the amendments suggested, because then, and the Council can take care of it at their level. HAYASHI: Yeah, let me just finish however. The official file that we have do, I mean we do have those letters. So this is the official file. This is just for the public’s information on all of the applications that we’ve heard today. Many of them only includes the background and recommendation. It doesn’t include the complete file. IWASHITA: Okay. So maybe I -. YUEN: No, let me say this. Okay, there is no chance that a legal challenge to this plan can be made based on the fact that a binder that is up on the counter here is missing two letters which have been discussed for hours at this Commission. That would be an overabundance of caution. Second, what Mr. Hayashi is saying is there’s a file that’s available to the public and then there’s a binder that’s made and placed at the counter here at the Planning Commission meeting. The file, the official file, which is available to the public has those things in it. The binder which is on the counter unfortunately does not. IWASHITA: Is the binder an accommodation not a legal requirement? YUEN: Yes. EXHIBIT C 24 IWASHITA: Thank you. I withdraw my suggestion. WOODWARD: All right. Well, I think we already have a motion and a second. Do we have any further discussion? Thank God. Okay, so the motion would be that we send a favorable recommendation to the County Council with the amendments we had discussed, adding “including affected landowners” on the appropriate part of page 37, the changes that were sent to us by Townscape on page 23, No. 7, and the recommendation or clarifications from the Fire Department. YUEN: There were also clarifications in an earlier letter, the clarifications from the, weren’t those already done, the errata, I’m sorry, yes, the errata. That’s not an amendment, I’m sorry. I think you already have that here. SALAVEA: That was assuming that that was what the Chair was referring to on page 23. WOODWARD: Okay, Mr. Hayashi. HAYASHI: Okay, are we ready for the vote? SALAVEA: I’m sorry -. WOODWARD: I guess not. SALAVEA: If I could, if I could. Regarding the errata sheet that was submitted by Townscape for the PC review, there are two clarifications; and that would have been part of the letter you received from the Planning Department, on page 20 and page 84. Do you folks recall that, Mr. Chair? This was the errata sheet forwarded by the Planning Department that was part of the initial or the revised, that’s what it is, it’s part of the revised background report. There were two background reports forwarded to you folks. One was the full version. The second was a very brief version. On the front it just specified the need to incorporate these changes recommended by the Steering Committee; and then on the back there was a memo from Townscape, and it pointed out the two areas to clarify, page 20 and page 84. YUEN: I see Commissioner Bowman is looking at it -. BOWMAN: Yes. YUEN: So that’s included in her motion. WOODWARD: Mr. Hayashi. HAYASHI: Okay. Main thing we got it now. And that also includes that errata th sheet that was submitted dated July 10. Commissioner Bowman? EXHIBIT C 25 BOWMAN: Aye. HAYASHI: Commissioner Domingo? DOMINGO: Aye. HAYASHI: Commissioner Housel? HOUSEL: Aye. HAYASHI: Commissioner Iwashita? IWASHITA: Yes. HAYASHI: Commissioner Ogata? OGATA: Aye. HAYASHI: And Chair Woodward? WOODWARD: Aye. HAYASHI: Mr. Chair, motion caries. WOODWARD: Thank you; and thank God. WHITE: Next arena. Mahalo. The discussion ended at 4:54 p.m. Respectfully submitted, Sharon M. Nomura, East Hawaii Secretary . EXHIBIT C 26