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HomeMy WebLinkAbout2004-09-16 TCONTINENTAL A regularly advertised hearing on the applications of CONTINENTAL PACIFIC, LLC (as called to order at 10:27 a.m. in the County SLU 03-006/REZ 03-014/ SMA 03-009) w Building, Councilroom-Room 201, 25 Aupuni Street, Hilo, Hawai`i, with Chairman Fred Galdones presiding. PRESENT:Fred Galdones ABSENT & EXCUSED:C. Kimo Alameda William GrahamEarl Fujikawa Jeffrey McCallFrancis Smith Ren± SiracusaBill Thibadeau Hannah Springer 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 10 people from the public in attendance APPLICANT: CONTINENTAL PACIFIC, LLC (SLU 03-006/REZ 03-014/ SMA 03-009) Continued hearing on the following applications: a.Application for a State Land Use Boundary Amendment for 4.182 acres of land from the Agricultural to the Urban District. b.Application for a Change of Zone for 13.478 acres of land from Limited Industrial- 20,000 square feet (ML-20), General Industrial-5 acres (MG-5a), Village Commercial- 10,000 square feet (CV-10) and Agricultural 20-acre (A- 20a) to Single Family Residential-20,000 square feet (RS-20) and ML-20 districts. c.Application for a Special Management Area (SMA) Use Permit to allow the development of an 11-lot subdivision, including portion of a roadway lot, and related improvements. The area involved includes the former Hilo Coast Processing Mill complex and surrounding former sugar cane lands at Pepeekeo, South Hilo, Hawai€i, TMK: 2-8-07: portions of 1 and 53. GALDONES:Welcome. Commissioners, we are on Agenda Item No. 3. Applicant is Continental Pacific, LLC (SLU 03-006/REZ 03-014/SMA 03-009). This is a continued hearing on the following applications: 1 EXHIBIT C a.Application for a State Land Use Boundary Amendment for 4.182 acres of land from the Agricultural to the Urban District. b.Application for a Change of Zone for 13.478 acres of land from Limited Industrial- 20,000 square feet (ML-20), General Industrial-5 acres (MG-5a), Village Commercial- 10,000 square feet (CV-10) and Agricultural 20-acre (A- 20a) to Single Family Residential-20,000 square feet (RS-20) and ML-20 districts. c.Application for a Special Management Area (SMA) Use Permit to allow the development of an 11-lot subdivision, including portion of a roadway lot, and related improvements. Norman? HAYASHI:Thank you, Mr. Chairman, Members of the Commission. This particular application, these applications were heard several times over the past year-and-a-half. It has been continued numerous times. And the last time it was on the agenda was back in January of this year, at which time the Applicant and the community requested that the hearing be continued inorderthattheycouldironoutsomeoftheissuesthat,andcometosomekindofagreement regarding the concerns that the community had. As a matter of orientation, particularly for Commissioner Siracusa -. SIRACUSA:Thank you. HAYASHI:Ill go to this particular map, this would be the overall location map. This is the Kula€imano Subdivision, along the Hawaii Belt Highway. This would be in the Hilo direction, and this would be towards Waimea. The subject property is, or the areas under consideration is in this general area, which is the former Pepeekeo Sugar Mill and Pepeekeo community at the Pepeekeo Point. The Applicant is requesting that, one, a 4.182-acre area be reclassified from the State Land Use Agricultural to the Urban District. They are also requesting, simultaneously requesting, that this particular property, which is currently zoned Agricultural 20 acres be zoned to Limited Industrial 20,000 square feet. This is the old baseyard, sugar companys baseyard. There are existing structures on the property that were used for the baseyard. The Applicant is also requesting that this particular area shaded in orange be reclassified or redistricted from the MG-5a to a Single Family Residential-20,000 square foot zoned district. Also, this particular area, which is situated, indicated in this green shaded area, is currently zoned ML-20, Limited Industrial-20,000 square feet. The Applicant is requesting that this particular property be rezoned also to a Single Family Residential-20,000 square foot zoned district. Finally, the Applicant is requesting that this particular area shaded in blue, consisting of 1.1 acre, be rezoned from a CV or Village Commercial-10,000 square foot zoned district to a Single Family Residential-20,000 square foot district. 2 The Applicant intends to subdivide some of these properties which are situated within the Special Management area; and this would be the SMA line indicated in blue. The area that is under this particular application is located in this general area. This is the area that the Applicant is requesting the SMA Use Permit for (SMA Use Permit 03-009); and that would consist of 11 lots ranging in sizes from 2 to 5 acres. And just for your information, the Item No. 4 on the agenda, which is also Continental Pacifics application, would be this particular area where theyre requesting 11 lots to be created within the SMA, or portion of the lots to be created within the SMA. Are there any questions at this time? We are recommending approval on all of the applications with numerous conditions. Are there any questions? GALDONES:Commissioner Siracusa? SIRACUSA:Yeah,therewasaletterfrom,well,therewereseveralletters.Butthere was one, Im trying to find it right now, from some neighbors who objected because they said that it might block their view of the shoreline but they had, ‚Were willing to accept the development if there were certain conditions that were met,ƒ which they listed. I was wondering if those conditions have been negotiated yet with Continental Pacific, since that letter was written, and which one of these areas is that one -? HAYASHI:I believe one -. SIRACUSA:Which one of these permits is that one? HAYASHI:I believe one of the property owners owns Lot 45, and that would be this particular property here. SIRACUSA:Okay. So thats on the -. HAYASHI:Yeah. The area under consideration would be in this -. SIRACUSA:So thats on the northern area? HAYASHI:Yes. SIRACUSA:Yeah, okay. GALDONES:Hearing no further questions from the Commissioners, is the Applicant or the representative here with us today? Mr. Lim? LIM:Good morning, Mr. Chairman, Members of the Commission. Steven Lim, and with me representing Continental Pacific, LLC -. 3 GALDONES:Mr. Lim, may I swear you in, please, sir. Could you please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Hawai€i County Planning Commission? LIM:I do. HENDERSON:I do. GALDONES:Please state your name and residence address. LIM:Steven Lim at Carlsmith Ball. With me today to my left is Mr. Reynolds Henderson, whos the representative from Continental Pacific, LLC, whos the Applicant in both Agenda Items 3 and 4. GALDONES:Mr.Lim,didyoureceiveacopyoftheBackgroundReportandthe Recommendations? LIM:That is correct. We have no comments other than maybe to make some comments on the proposed Conditions of Approval. GALDONES:There also were additions to the different conditions. That was also acceptable? LIM:Yes, we have just one comment on one of the conditions. We can go into that later on if the Commission looks to approve this application. GALDONES:Commissioners, any questions of Mr. Lim? LIM:Maybe Ill, I know that Commissioner Siracusa especially is kind of new to this one so Ill lay out on the table the general map that were looking at today, and Ill also pass out our overhead photo that we passed out previously at the site visit, the last time the Commission had a site visit. And as you can see from the colored site visit -, the areas in consideration are Pepeekeo Point near that No. 6; and those areas to the south by the No. 3. Those are indicated on this map that Ive got on the table colored in yellow where the, what we call the north SMA lots at Pepeekeo Point and south SMA lots further towards Hilo. Each of those areas, thats 11 proposed lots, ranging from 1-1/2 to 5 acres total. What you also see on this map, which is a reflection of our discussions and settlement agreement with the Planning Department, is in pink. Well, first, in blue weve got the roadways that are leading towards the shoreline access. In pink, you will see the five separate public accesses that are coming from the roadway down to the ocean; and youll also notice that theres a pink lateral shoreline access pathway that will be done by public easement recorded against the lots for the whole frontage of this parcel, with the exception of the area still retained by the mill. So the net result will be that we will have public access across the entire frontage of the property that we own. 4 Over the past, I guess, three or four years weve been in discussions with the Pepeekeo Community Association. And as you notice from the continuances that weve had in this case, weve work with the community association to provide various assistance in terms of facilities, use of our men and labor, and their equipment, to clear certain areas, provide money for fencing with the community, and those things. And what happened during the actual permit process, the hearings process, was that certain members of the community felt that they wanted more certainty in terms of the developers willingness to contribute to the community and be a part of the community. And, so, we took a step back and that started, I guess, late last year continuing through the present day. And well have, I think, members from the Pepeekeo Community Association come to talk to you today about the fact that weve reached an agreement with them in terms of the developers mitigation of the communitys concerns. So I think that we feel that the, at least most of the community is now in favor of the project. This is basically a reconfiguration of prior lots. And pursuant to a settlement agreement with the PlanningDirector,wehavetoprocesstheseapplications.Itsessentiallyadown-zoningofthe potential densities, especially at the Point, which a large portion is zoned currently RS-7,500 square foot lots. So we are rezoning it for RS-20,000 square foot lots; however, there are covenants that are recorded against the properties; and our settlement agreement with the Planning Department limits the number of lots that we can develop. So were currently, like I say, proposing 11 lots at the north side and 11 lots at the south side. The comments relating to the letters from the concerned property owners, one is the -. SIRACUSA:I have it here if youd like me to read it. LIM:I have the records, also. We have one from Mr. and MrsHeissand . Mr. and Mrs. Maize, who own Lot 45 -. HAYASHI:Excuse me, Mr. Lim, could you use the microphone? LIM:Oh, excuse me. Thank you. Who own Lot No. 45, which is right mauka of the proposed north lots. And then the second letter that related to opposition was a letter from, in terms of the area residents, was a letter from MrsAnnette Barr, who purchased Lot No. 31, . which is the lot that is right immediately next to the 11 lots on the Pepeekeo Point north. I guess part of the, both letters note that they seemed unaware that the lot frontage, the lots fronting, I guess, the land fronting their lots on the ocean side would be the subject of further SMA, and rezoning, and subdivision actions. And Ill read to you from the public offering statement at the Pepeekeo Point, which is the date of final registration of April 17, 2003. Its also quoted in the Heiss and Maize letter as their attachment. I think its the second attachment to their letter. And its, you know, we think its self-proving. But on the bottom part of that page youll see, when theyre talking about bulk Lot 70, and bulk Lot 70 runs from basically the, all the area that youll see thats not lotted out from the Mill Road towards Waimea, coming around and fronting the bend, all the way through to the Pepeekeo Point, was Lot 70. And, so, when we talk about any public offering statement, if you look at the Heiss and Maize letter, its disclosing that the bulk Lot 70 would be creating 11 additional lots, proposed Lots 21 to 30 and 41, which are the 5 numbers of the lots on this map in the south easterly portion of this bulk lot, which is basically where were proposing the development. So, I know that the, Mrs. Barr was an original purchaser, so she received both this map that Im showing you a smaller version and the public offering statement. The Heiss and Maize buyers are subsequent purchasers from our purchaser. So we dont know what was given or what was represented to them in that sale. But we do think that the public offering statement is clear, that the portion of the bulk Lot 70 fronting the Pepeekeo Point was going to be rezoned and subdivided to 11 lots; and thats what were proposing. GALDONES:Thank you, Mr. Lim. Commissioners, any questions of -? Commissioner Siracusa? SIRACUSA:Yes, the Heiss and I guess, Mays it looks like, letter, talks about 4pointsasfarasmitigation.Now,PointNo.3which,providingpedestrianaccessalongthe shoreline, including around the light house property, so access is uninterrupted, am I to understand from your earlier comments that that has already been worked out with the community association? And then I want to go on the other points, also. LIM:Well, theres, and Ill have the community association representative explain what their arrangement is. But, basically, our requirements from the settlement agreement with the Planning Director is that we do provide this 10-foot wide pedestrian public access, all along the entire shoreline where we own it. So its that pink line that you can see fronting the property. SIRACUSA:Okay. And then to the Point 4 about access within the SMA from Beach Road to the shoreline access easement, that is also included in there? LIM:I dont know where they want, where they mean that -. But there is public access right here at the Pepeekeo Point, and then from the Beach Road here towards the north. SIRACUSA:Im looking at the map very sideways, thats why its sort of skewed. LIM:Oh, sorry. Okay. SIRACUSA:Yeah. LIM:So the one access point nearest to the Pepeekeo Point project is right here where my finger is right at the south side of the project; then the further to the north there are two further, what they call mauka-makai accesses down to the lateral shoreline. SIRACUSA:Okay. Then they have Nos. 1 and 2, require a significant shoreline setback that is consistent with the 300 feet required for the rest of the project. 6 LIM:And I think that we couldnt do that, that basically what theyre reading from is mis-interpreting one of the provisions of the CC&Rs, which resulted from our negotiations with the Planning Director. Currently, on the north side of the project is a 300-foot wide band of Conservation District land. The Director wanted us to make sure that in the event that were able to either reclassify it to Agricultural, or something other than Conservation, or to move the line, have it interpreted further towards the shoreline, that it wouldnt have houses along the north side, closer than 300 feet from the shoreline. And, so, thats the provision that theyre mis-interpreting. SIRACUSA:Okay. And then the final one of their 4 is the height limitation of 12 feet. LIM:Right. I dont think we could live with 12 feet. I think, you know, there is a Zoning Code height limit in the Residential District. And as far as I understand the, I dont know the exact contour of their lots, but I understand that the land generally slopes down towardstheoceanintheareaanyway. SIRACUSA:Thankyou. GALDONES:CommissionerGraham? GRAHAM:Justacoupleofclarificationsfromyou,also,please.Whenwedidthe walk-through, when we did the field visit and all, you all took us first to the north to look at the public access points, and we walked down to the ocean and all, and then, thereafter, we went to the south parcel and also kind of viewed what was down there. Im just wondering, has anything of substance changed in the public access locations, or availabilities, or anything since we did the field trip? LIM:No. The public access locations and alignments -. The only thing that changed was the second to the southernmost alignment was originally located in a drainage area; and what they did was they moved that out of the drainage area up on to the lot so its easier to walk. GRAHAM:Okay. And then, as I recall, on the vehicular side, there was an agreement with the local fishing association that would have key entry at certain times, and all like that. Is that the same condition that were dealing with today? There has been no change on that? LIM:Theres a little bit of modifications there, but theyll discuss that today. GRAHAM:Okay. LIM:And, so, along with the public access easements, the mauka-makai easements, youll have parking areas that theyve cleared and mowed for the cars, for few of the parking, then walk on down. 7 GRAHAM:Thanks. And then, just for clarity. When I read over the details of the SMA on the south side, it was spoken of, you know, keeping it out of the Conversation District but within the Coastal Zone Management, Special Management Area. But on the SMA on the north side, thats not the case,right, thats somewhat in the Conservation District? Is that true or -? LIM:No, north side is all Urban. That was the prior camp -. GRAHAM:Oh, its all Urban from the -? LIM:Yes, thats correct. GRAHAM:Thanks. YUEN:Ijustwanttobesurewerecommunicatinghere.Bythenorthside,what were dealing with today on the north side is Pepeekeo Point, and thats all Urban. But then theres more lots to the north of Pepeekeo Point that were created as a result of the settlement agreement as pre-existing lots; and those are well, those are the setback, either 300 to 500 feet, depending on whether its to the Conservation line or the SMA line. GRAHAM:Thank you. GALDONES:Commissioner Springer? SPRINGER:Thank you. Thank you. Just Im wondering for purposes of discussion, are we taking the items one by one, or can we talk about any of the three? GALDONES:Any of the three. SPRINGER:Okay. My copy doesnt have a diacritical so correct me if Im pronouncing incorrectly but Kulaimano, Kula€imano, Kulai€mano? HENDERSON:Kula€imano. LIM:Ill be the last one to correct your pronunciation. SPRINGER:I wasnt sure if it was lai€ or la€i. Thank you. Kula€imano Park, where is that situated? LIM:Its off the top of the picture. The topmost darkest line is the highway and Kulai€mano Center is probably another maybe two inches above that. SPRINGER:Okay. And just to make sure that Im reading the explanation for proposed Condition No. 7, thatll be $15,000 from the sale of each of the lots. So $15,000 per lot or $15,000 total? 8 LIM:Our proposed modification -. Now, Ill be looking at Condition, SMA Permit Condition No. 7 which statesasagreed to by the applicant, the applicant shall then donate $15,000 upon the sale of each lot created by this permit,ƒand its similar for the 016 SMA, also. We were going to make a request that themodification be made to clarify that the $15,000 is upon the sale of each lot, up to a maximum of 11 lots. So whatever lots we develop, we would contribute $15,000. Its probable that we will do 11 lots on each side. But for whatever reason, maybe theres an engineering reason, we can only do 9 or 10, wed just like to pay the $15,000 for each of those, up to a maximum of 11. There may be additional lots created in the actual subdivision that we process because well have bulk lots, but those wont be development lots; and those will not be covered by this SMA. SPRINGER:Thank you. GALDONES:SeeingnofurtherquestionsfromtheCommissionerstotheApplicant,we have a total of six people from the community who have signed up. Mr. Lim, if you could relinquish the chair -. We have four chairs up. These are the people who had signed up. Susan ONeill, Lorraine Mendoza, Lennie Okano, Roy Skogstrom, Jeff Seafield and Claudia Rohr. If theres anybody else who wants to testify and who has not signed up, please let Sharon know, or fill out the form up by the door. Well call the first four individuals, Susan ONeill, Lorraine Mendoza, Lennie Okano and Roy Skogstrom. Roy stepped out for a little while so Jeff Seafield. SEAFIELD:Mine was for Item 7, not this item. GALDONES:Oh, okay. Then Claudia Rohr? PUBLIC:You said first four? GALDONES:Yes, but -. PUBLIC:Im sorry, I thought I heard just four. GALDONES:Yes, you heard correctly. But Mr. Skogstrom had to step out for a little while. Okay, could all of you please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Hawai€i County Planning Commission? TESTIFIERS:I do. GALDONES:Okay. Ill take to my left here. I believe youre Ms. ONeill. Please state your name and your residence address and you may begin your testimony. ONEILL:Thank you. My name is Susan ONeill. My address is 2390 Kaiwiki Road, which is above Wainaku. What was the other thing you asked? My name, my address and -? 9 GALDONES:You may begin your testimony. ONEILL:Oh, I can begin, thank you. First of all, I appreciate this opportunity to meet with the Planning Commission; and I would like to personally welcome Ms. Siracusa -. SIRACUSA:Thank you. ONEILL:Because we are very, very lucky to have another person in addition to the rest of you who cares deeply about this island; and Im glad that you are on the Commission. My testimony is two parts. One, I wish to extend my appreciation to Continental Pacific for their true willingness to postpone this hearing until community input has been fully heard. And I want to commend both Continental Pacific and the Pepeekeo Community Association for the very hard work over many months to reach some agreements which I believe is still an ongoing discussion.However,itsthekindofthingIhopethatotherdeveloperswilltakeseriouslyin terms of listening to and talking with affected community members. There were three public hearings, community forums along the Hilo-Hamakua Coast in the last few months. They were sponsored by the Rural South Hilo Community Association. Many people present today, as well as many, many community members, attended. I would like to mention to you the key points that have been raised at these forums and at other, many other community opportunities to speak, and Ill just say them very briefly. I plan to write this and have it in a written form for each of you. These are the points that continued to come up: Mauka-makai access; rising costs of property; real property tax increases; loss of Ag land; loss of open space; the beginning of gated communities; the loss of viewplane; the changing character of communities and lifestyle; infrastructure needs including roads; health and safety services; public transportation; impact on schools; lack of small commercial services near residential areas; concerns affecting the small farmer along the coastline; and the feeling that current residents are being priced out of the area with the implication being that future generations of families who have lived in the area for generations will not be able to afford to come back and stay on the family property. There is a great interest among the people who have been participating in these input opportunities for the development of something called ‚village communities,ƒ small communities where there will be development but where development is very, very carefully planned in a positive way so that newcomers, as well as current residents, will not have to travel so far for basic services. This is nationwide, this concept of village communities. And I urge all of you to consider this in the future. And I strongly recommend, in addition, that the communities involved in future development be brought in at the beginning of such planning so that there can be constructive, collaborative planning as a result as these changes and developments occur. Thank you very much. GALDONES:Commissioners, are there any questions of Ms. ONeill? Commissioner Siracusa? 10 SIRACUSA:Well, I would just like to know if Ms. ONeill is for or against this development, or for it with concerns or, you know, €cause you didnt say. ONEILL:No, I didnt. The best way I can respond to that is that I am very appreciative of the process that the Applicants have made. I wish that that communication was much, much earlier. Based on what I know now and knowing that there will be future conversations, I am generally in favor of this, but, because its gone through all sorts of steps already. Such a major impact on other coastal areas, I would be very, very, very cautious about saying I approve. Does that answer your question? SIRACUSA:Yes. ONEILL:Thank you. GALDONES:Hearing or seeing theres no further questions of Ms. ONeill, Ms.Mendoza.Ms.Mendoza,pleasestateyournameandyourresidenceaddress,andyoumay begin. MENDOZA:Lorraine Mendoza, 28-533 Kaakepa Street in Pepeekeo. Im here to represent the Pepeekeo Community Association and Id like to read testimony that I submitted th one year, one day ago. This is on September 15 ; and I also have one that I did for this particular hearing. ‚On behalf of the Pepeekeo Community Association, I would like to submit testimony in support of the request from Continental Pacific, LLC, for approval of SMA 03-009. ‚Being involved in addressing the communitys concern about retaining fishing access to various popular shoreline fishing grounds in Pepeekeo, I am impressed by the willingness of both the community and landowners to develop a working relationship,ƒ of willingness, ‚of collaboration. The common goal of acknowledging and honoring the values and identity of the Pepeekeo community has always been the guiding principal of the Association. It is this same principal thathaschanneledtheeffortsofaddressingthefishingaccessissuestoresultinawin-win resolution that both parties have agreed to. Participation and involvement in numerous discussions between community members and representativesofContinentalPacific,LLChasfosteredabetterunderstandingbybothpartiesof the character and uniqueness of our special community. It is always a heartwarming experience toseeopportunitiestoenhanceandpreserveourrurallifestyleresultinpositiveoutcomes.The invaluable example of collaboration and empowerment speaks volumes of the efforts of both parties.ItistothecreditofthemembersofPCAsFishingAccessCommitteeandContinental Pacific, LLCs representatives that a model of effective dialog has been established. Having demonstrated their high regard for our community, I am of the belief that the future concerns of our community will be adequately addressed by Continental Pacific. Keeping in 11 mind that efforts should benefit the community as a whole, we encourage your support of SMA 03-009 approval request.ƒ And today, I just wanted to add that: ‚It has been 1 year and 1 day since I presented testimony to you in support of the approval for Continental Pacific, LLCs SMA application. Requests for continuances have been granted and agreed to for the sake of allowing community discussions to occur among ourselves as well as with the landowner. For that courtesy and consideration, we thank you for your support and your foresight of allowing the healthy growth of our community. ‚We have since been involved in many meetings and discussions that have permitted the exchange of information, concerns, visions, values and respect for all parties involved. The knowledge, education and presentations of opportunities for individuals as well as community growthhasbeenbeneficialinidentifyingthestrengthandexpertiseofmanyvaluableindividuals in our community. ‚We have successfully made known the communitys desire for fishing access in perpetuity along the Pepeekeo Coast, the completion of Phase II of the Kula€imano Recreation Complex and the need for affordable housing. The willingness by Continental Pacific LLC to actively participate in many discussions and their financial contribution to assist in realizing the communitys priorities provides a credible basis that these priorities will be partially met. It is the expectation that continued discussions, concessions and compromises will take place to bring about the results that will satisfy the community. ‚We applaud the past, on-going and future efforts of our community to realize that change is inevitable. It is how we embrace or resist it that makes a difference. We have realized that by collaboratively working together for the benefit of the whole community is the way to efficiently effect change. This we are learning and implementing. ‚We commend the efforts of Continental Pacific, LLC, the Planning Commission, the Planning Department, our legal counsel and the COMMUNITY in these efforts. To that end, the Pepeekeo Community Association supports, requests and encourages your approval of SMA 03-009 and SMA 03-016.ƒ ‚Respectfully submitted, Lorraine Mendoza.ƒ GALDONES:Commissioners? Ms. Mendoza, you had mentioned that they were having discussions between the community association and Continental Pacific. And in those discussions have the parties reached some understanding, Im not sure if its verbal or written, that have met the, or satisfactorily met the concerns of the community? MENDOZA:We have an agreement that was presented and its in like Draft 2. So those concerns weve referred to legal counsel, and shes Sandra Song; and she has like enlightened us on what the processes and what the implications are. So weve had community 12 meetings; and these explanations and reporting back to the community has occurred. So we are still in the process but it is not final yet. GALDONES:Representing the community association, do you feel comfortable that you folks will be able to reach an amicable solution or an agreement between the parties? MENDOZA:Yes. GALDONES:Okay. I commend the participation of the community, as Ms. ONeill had mentioned, through this whole process. MENDOZA:We thank the patience of everybody. GALDONES:Ms. Okano, please state your name, residence address and you may begin yourtestimony. OKANO:MynameisLennieOkano,IliveonKulai€manoRoad,andImherealso representing the community association. I guess, my big part in these negotiations were to come up with some kind of estimate or price on finishing the recreational complex thats half done in Pepeekeo right now. Basically, given the financial gift that Continental Pacific was offering, I kind of wanted to see what we could actually do with it, if we could finish the master plan that the Parks and Recreation has for the area, that kind of stuff. Im a civil engineer so I kind of had that expertise to offer the community. Basically, when I did an estimate on the master plan the Parks and Recreation had, I came up with an estimate close to $800,000 to finish everything. If you calculate what Continental Pacific is offering us for the sale of 11, 22 possible lots at the most, that would give us close to $300,000, which is not really half of what we need to do the complex. To help alleviate that problem what they have offered us is their services as far as clearing and grubbing the area, and doing the grading for the rest of the Phase II, or Phase II of the complex. This cuts the price tag in about half. The site is kind of like on the hillside, and thats a major part of what the work would be to finish this whole thing. The rest of the work involves paving, additional parking spaces, basketball court, tennis court and tot lot for the younger kids to play in. So, basically, given that service to us, which I think is going to be written into their agreement with the community, and the financial backing, itll give us a really good head start on finishing up this complex that the community really needs, being that we have one park on the makai side of the community thats in limbo because the County doesnt want to take responsibility for it. And its the community thats maintaining that park right now. Given that, that may be taken away from us in 2008, leaving us with a rec center and ballpark, we felt that it would be really important to have the basketball courts and tennis courts for the kids to play in, not just in the existing community now. But if more families will be moving into the area, Im sure more people will be taking advantage of that, so -. 13 GALDONES:Commissioners? SPRINGER:Mr. Chair? GALDONES:Commissioner Springer? SPRINGER:Who will be responsible for maintenance of the facility when its completed? OKANO:The parcel, the Kula€imano Recreational Complex right now is a County facility. They own 20-plus acres in that area; and they have a master plan to finish it up, which is what I was explaining the basketball courts and stuff. It would be theirs, but they dont have the money to construct it. So this is where our community is trying to get the money, to the County, dedicatedtothatareatohelpusfinishthewholeplaceup. SPRINGER:AndthentheCountywillmaintainthefacilityoncetheworkisdone? OKANO:Yes. SPRINGER:Thankyou. YUEN:Excuse me, I have a question about the agreement on the extent of grading the site. We wrote up the condition, we had a meeting with Planning Department, Peter Kubota, Lorraine Mendoza, probablyMonday; and when I wrote up the condition that had been requested by the parties after that meeting, we wrote it up to say that they would be grading a site for a basketball court. Is the area that they have agreed to grade larger than that and if -? And then I need to make sure that we fix that so that it is what the parties have agreed to. OKANO:Under the master plan on file with the Parks and Recreation Department, they have outlined a Phase II area, which is more than just a basketball court. Its extending the two parking areas that are currently there. The basketball court, the tennis court and theres, I think, a flatter play area and tot lot area as well, they would need to grade all of that, as well as the slope into the mountain, I mean that hillside right near the complex. YUEN:Is the agreement, let me ask the Applicant. Is the agreement to grade the Phase II area, is that the way that it should be worded? OKANO:Just for clarification, that area was two acres, plus or minus. YUEN:Mr. Kubota, lets have you say it rather than just nodding. KUBOTA:Yes. Im Peter Kubota. And I was at that meeting -. CHAIRMAN: Mr. Kubota. 14 KUBOTA :Yes? GALDONES:Can you come forward, please. KUBOTA:Im Peter Kubota. GALDONES:I need to swear you in, Mr. Kubota. KUBOTA:Excuse me? GALDONES:I need to swear you in. KUBOTA:Oh, Im sorry. GALDONES:I want to make sure you tell the truth. Nah, just the process that we go through.DoyouswearoraffirmtotellthetruthonthismatternowbeforetheHawai€iCounty Planning Commission? KUBOTA:Yes, I do. GALDONES:Please state your name and residence address, and you may begin your testimony. KUBOTA:Yes, thank you, sir. Im Peter Kubota. My address is 35 Terrace Circle, Hilo, Hawai€i. Im an attorney for Continental Pacific; and I had worked with Lorraine Mendoza and the community association for a number of years on these matters. And what Ms. Okano says is correct. Continental had agreed, because thecost seemed quite high for what they wanted to do to complete the basketball, tennis courtsand the tot lot area, that Continental had offered through Peter Agliam to help with the grading and grubbing. And I believe under what Ms. Okano had said was its approximately two acres. I think thats the best that we can state, Chris, theres approximately two acres for the basketball, tennis courts and parking lot and tot lot site. YUEN:Okay. Is it fair to call that the Phase II improvements as a shorthand or, of approximately two acres? All Im trying to do is re-write the condition so that it correctly reflects the agreement of the parties. Im not trying to negotiate or extract anything out of you at this meeting here, but I just want to get the best description of what youre agreeing to. KUBOTA:All I know is two acres. I dont know what the rest of Phase II is, so I think approximately two-acre portion of Phase II would probably be accurate. I just dont know what the rest of Phase II might be. OKANO:Phase II is the completion of that whole master plan of the recreational complex. 15 YUEN:Is that approximately two acres? OKANO:Yeah. YUEN:Okay. Is it okay then to say ‚an approximately two-acre portion of Phase II of the park master plan?ƒ Is that agreeable -? OKANO:That would be the entire Phase II. YUEN:Okay. Thats agreeable to you guys? KUBOTA:Yes, thats agreeable. Thank you. YUEN:Okay.Thankyouverymuch. GALDONES:Furthercomments,questions?Ms.Okano,thankyouforparticipatingand I commend the work you folks have done. I appreciate that. Thanks. Miss Rohr, could you please state your name and your residence address and then you may begin your testimony. ROHR:Okay. Claudia Rohr, 369 Nene Street in Hilo. Im against the application for the change in the State Land Use Boundary. SIRACUSA:Excuse me, could you speak into the mike, please? ROHR:What? GALDONES:Could you speak into the mike, please. SIRACUSA:Louder. ROHR:Louder. Sorry, its very loud to me. I have a hearing problem. If Commissioner Springer could move her mike closer, that would help me when you speak. Thank you. Okay. Im against the Land Use Boundary Amendment for this reason. Theres no purpose given in asking for this amendment. They have no plans or use for the property particularly. The reason that they justify it is theyre saying the items in B, under this application, will be changed to residential, therefore, its some sort of trade. I say its no trade at all. Those items in No. B had a purpose at one time. They were businesses within the camp that had been in this area. There was a garage and, I think, a store; so those items were rezoned a particular way. Its not convenient to their subdivision plan to have to deal with those zoning, so theyre saying they would like to make it all residential, and I think that makes sense. But to say that they have some sort of credit is not correct. When the camp was moved uphill to Kulai€mano, they did create 16 some commercial areas up the hill, so I think the credit has been used. That land has not been used in those manners for decades now. Ithink its inappropriate to put industrial in that particular location. Its a scenic area, its obviously a beloved recreational area. There are properties being sold, people have expectations of quality of life. We have industrial parks that are left empty. I dont see a real need on this particular property to put more industrial. Okay, so Im against that. The second one is rezoning to residential. I have no problem with that. Okay, the Special Management Area permit for the 11-lot subdivision, I read over Chapter 34 and it appears to me that theres a requirement to have a public access between 800 and 1,000 feet along the shoreline in residentially-zoned areas. Thesettlementagreement,weallknowwhatthatmeans,right,theApril2002settlement agreement between Continental Pacific and the County of Hawai€i Board of Appeals? Okay, the settlement agreement says that certain things are going to happen; but when they come to this hearing, its up to this hearing to decide whats appropriate. Its not dictated by that settlement agreement. That settlement agreement doesnt mean they dont have to follow the law, okay. So right in the middle of that Parcel 70 is the lighthouse lot, Parcel 13. That lot also has a right-of- way down to Beach Road. Ive e-mailed the title report to the Planning Department. Its a 23- page title report dating back to 1917. The United States government condemned that property. It was back when, during the territorial days when they were starting to put up the forts and things like that. But they needed the light station. They condemned it and its, so its under, the military has control of it; and its being reserved as a light station. Its still Federal public land. Ive spoken to Commander Beverly Havlik and I will read a letter that I wrote to her yesterday and -. But basically, Id like to say that she said, ‚Listen, we dont full around. If we dont want people on our property, we fence it off. Youre free to take a stroll, youre free to go to the beach.ƒ She said its, theyre very clear when they want to fence a property. The man who manages the light facility called the manager for Continental Pacific, they had a discussion. I received a e-mail. The discussion was that Continental Pacific doesnt want to, is not trying to keep the public from accessing this property. Therefore, Id like to point out Step 2. Step 2 is theres a basic defect in the original subdivision that created Lot 70 and the other lots that were discussing here today. The defect is that theyre landlocked, Parcel 13. If you look at Subdivision 7644 or is it 7466, whichever one that is, the map thats up on the wall, and you look at the label -. First of all, Lot 70 is not clearly labeled on that. You have to go through a detail to find it. But the road lot, which we know as Beach Road, its labeled as 93, Lot 93. If you look in the table on the right, theres not a single listing under Lot 93. They mis-referenced it as Lot 83. It says its in favor of the association. Okay. I just sold a property up in Puueo Farms where the subdivision maps for that subdivision show access all the way up to pre-existing lots dating back to 1910; but nowhere on that map does it say its in favor of the pre-existing lots. My client cant get a loan because it has no, the title companies says it has no legal access to a public road. When I go to the County, Im told, no. 17 When we approved the subdivision map, we assumed these association roads would service the pre-existing lots. Okay. Thats not good enough. Assuming it, knowing its law is not good enough, it has to be in writing. You have to create it by survey or/and easement documents. But Im saying the County has an obligation to make sure these things are created by survey. So Im asking that we review whats wrong with Subdivision 7644, because these lots were a, a logical of, they were created during that subdivision. So I would like to go over some of the things -. First of all, I believe as a member of the public, I have a right to walk over Beach Road, down the road, and access the beach at Pepeekeo Point. Commander Havlik is looking into whether she can somehow give the public the right to drive there. So Im hoping to work out something with the National Park Service, or some other Federal agency where we can actually get some document in writing providing for a vehicular access to the lighthouse site. This is why, a lot of changes occurred up and down the coast, lands have been sold into private hands. The only opportunity to ever do anything in terms of public access, repairing public access that has been changedisinthesehearings.Butunlesstheresapieceofpubliclandinthemiddleofaproject like this, we really dont have the right to say you have to let people drive up to a convenient spot. Weve all been driving up to the lighthouse property, parking on the property and accessing the ocean. This is a perfect solution to all the complaints weve been hearing. Im going to ignore the issues with the Pepeekeo Association just for a moment because they are, they have a private agreement. At the moment, Im not a member but I could be a member, but at the moment Im not. Im just going to talk in terms of the public. Okay, so in the event that we do get some kind of documentation or were able to open that site, and, by the way, its a historic site. Its listed in the Coast Guards Historians List of Historic Light Stations, its also listed under the Federal Park Services list of historic light stations and unmanned aids. So theres a possibility that well have to consider down the road how, you know, how will the public get to this land; and, to me, its obvious. The developer has the option of manning the gate. If theyre so clear that they want to close the gate, then they can post a guard there to let the public through. In the meantime, Id really like to repair all of these easement issues, meaning access all the way to a public road, and I dont mean Mill Road. To me, thats not good enough. Theres nowhere that it says that that is a government road. You cant prove it to a title company. So you need to, you need to have a plan file that the title company can refer to when theyre doing title reports; and, so, theres a real need to correct this title report. But Id like to read, first of all, Id like to read the letter I wrote to Commander Havlik. ‚Dear Commander Havlik: ‚Im requesting a letter from the office of Navigational Aids to verify that the public may continue using the open grounds on TMK 3-2-8-7-13, in Pepeekeo, Hawaii. Owner/site manager: U.S. Coast Guard. Light List: 28025. This light station has been included on the Coast Guard Historians Inventory of Historic Light Stations of Hawaii and the National Parks Service Inventory of Historic Light Stations, Significant Unmanned Aids. Members of the 18 public would like to continue to drive to the lighthouse, park, and access the beach off Aila Point as they have for decades without harm to the Coast Guards light station equipment. ‚The Planning Commission is reviewing the developers application for an SMA Permit to subdivide portion of,ƒ Im just going to say, I said portion of Parcel ‚01,ƒ but now its Lot 70, ‚surrounding the Coast Guards lighthouse parcel 13 tomorrowof which you should have received notice. Continental Pacific, LLC has purchased and gated hundreds of acres around the parcel owned by the Coast Guard causing members of the public hardship by requiring that they walk 1,200 feet along the pali edge to access this beloved beach and traditional fishing grounds. Members of the public have testified at the Planning Commission hearings on this matter that they have lived in this area their whole lives and driven to the lighthouse to park and access the beach and it is a hardship for them now that they are older to walk such a distance. Members of the public with small children complain that the walk along the pali is too far and have also objected to being denied access to the beach through inconvenience. ‚I have ordered a copy of an instrument dated March 27, 1912,ƒ which describes a perpetual right-of-way,20feetwide,infavorofParcel13.‚Iamassumingthatthisparcelanditsrightof way is federal public land reserved for a light station. My hope is that we can include a requirement for the developer to allow members of the public use of the established right-of-way to the light station. I would hope to protect the publics right to drive to the lighthouse in a hearing scheduled for Thursday. The developer always has the option of manning the gateƒ to the subdivision ‚to log in visitors to the lighthouse and the other historical sites in the development. ‚This property is lower than any other spot in the area and has recreational value in as much it provides the public parking and beach access, which I hope is compatible with the Coast Guards use of the land. If you need more time to research this matter, could you please write a letter stating such and fax it to me to use at the hearing tomorrow?ƒ She actually e-mailed me and said she has her lawyers working on it, but she cant get back to it until October. But there are several new laws that are mandating that the military consider these sorts of uses for their land and lighthouses, also. So theres sort of a precedence to consider this. Okay. So, then, Id like to read the letter. I did send you a letter requesting that you postpone any decisions today, and Im still asking that you do this. One is I hope that the Pepeekeo Association is successful in their writing up of their agreements. Its still my option to join the Pepeekeo Association. At the moment, there are no access, the access to the shoreline is only by this private agreement. The County hasnt implemented their rules so I cannot technically use the public access. So if I want to go to the shoreline, my only option is to join the association. I understand people from up and down the coast are joining. So, as a member of the public who may want to join and whose only option to gain access to the shoreline would be to join, Id like to look at the agreement and maybe make comment on it. And I think that you shouldnt rush this hearing. And Ill read my letter to you. I hope its not too harsh regarding todays current applications. 19 ‚The parcels being considered in the applications referenced above were created by a consolidation and resubdivision of pre-existing parcels pursuant to the Settlement Agreement for Board of Appeals and Subdivision of Continental Pacific, LLC lands dated April 12, 2002 by and between Continental Pacific, LLC and the County of Hawaii.ƒ Im going to call this the settlement agreement. ‚Subdivision 7644, was approved for recording on January 27, 2003. Continental Pacific, LLC and Hawaii County Planning Department (€Parties) failed to implement certain legal requirements of HCC Chapterƒ 13 (sic) ‚and certain terms of the April 2, 2002 Settlement Agreement, at the time of final approval of Subdivision 7644,ƒ which are ‚detailed below.ƒ ‚Continental Pacific, LLC and Hawaii County Planning Department have failed to officially open public shoreline access trails located in Continental Pacific, LLC Subdivision 7644. In doingsothesetwopartieshavefrustratedandcreatedhardshipformembersofthepublicwho are impatient to access their traditional fishing grounds and shoreline recreation spots. Due to these frustrations and hardships members of the public have been discouraged, beaten down, and manipulated into private agreements which requireƒ support (sic) ‚on the matter before the Planning Commission. This is an error or defect of this proceeding which has created a manifest injustice affecting the substantial rights of the members of the public. ‚In the interest of fairness to the public I am asking that the Planning Commission suspend the current application hearings involving parcels created by Subdivision 7644 until which time the affected public access easements are open to the public according to the terms of the HCC,ƒ Chapter ‚34 and the Negotiated Agreement between Continental Pacific, LLC and the,ƒ settlement agreement. ‚Ive summarized unresolved issues as follows: ‚1) Continental Pacific, LLC created some public easements by survey on its Subdivision #7644 Plan providing for parking, lateral trails to pali edge, and an undesignated ten foot wide trail along the pali edge but failed to provide a continuous connection to a public road,ƒ which would be either the ‚(Scenic Drive or Belt Highway, not Mill Rd.),ƒ thats a private road, ‚as required by HC Code 34,ƒ and maybe the Subdivision Code, Im not sure. I dont have time to look it all up. ‚2) Subdivision map 7644,ƒ which is an official recorded plan, subdivision plan, file plan and this is what the title companies depend on, ‚should beamended to correct mistakes in identifying access roads as parcel 93 [not 83 as in the table] and all access roads should include reference of being in favor of all preexisting parcels on the recorded subdivision plan since this is the official record the title companies use to determine title and legal access issues. ‚3) TMK,ƒ the lighthouse property, Parcel 13, ‚has been landlocked. In addition to the changes on the recorded subdivision map conveyance documents for the easements required to provide accesstoapublicroadfromthispropertymaybedesirable.Parcel13isownedbytheUnited 20 States Government and is public land under the control of the US Coast Guard and used for a light station. ‚4) Continental Pacific, LLC failed to file dedication documents for public easements from a public road to the shoreline with the Planning Director with its application for subdivision 7644 as required by HCC 34-8(a): €Upon review of a subdivision application, when it is determined that public access must be provided, the subdivider shall file the executed documents for dedication of the public access, free and clear of all encumbrances with the director. ‚5) Conversely, The Planning Director issued final subdivision approvals in violation of HCC 34-8(b): €Prior to final subdivision approval, the dedication documents shall be reviewed and approved as to form and content by the appropriate agencies. The director may thereafter grant approval to the subdivision in accordance with the subdivision rules and regulations of the County. ‚6) Please take note: Continental Pacific, LLC provided the one requiredvehicular access to theshoreline,ƒrequiredbythesettlementagreement,‚ataninappropriatelocation.Itislocated at the bottom of Mill Rd. (easement P-6) and the shoreline cannot be accessed from the pali at this point. The public has to walk approximately 1,200 feet along the pali edge from this parking area to get to a well known beach. Therefore this parking area is not significantly different from the pedestrian easements. Does this fulfill the requirement? This has caused hardship for those members of the public who are elderly or have young children. ‚7) The Planning Director and Continental Pacific have recently agreed on the location of the shoreline trail and certain hard,ƒ well, this one has been resolved today. Forget that. ‚8)ƒ Id like to point out, No. 8 is ‚Signs identifying Public access have not been posted. Gates and no trespass signs currently discourage the public. Signs should be posted on gates to indicate public access information and the hours the gates will remain open. General shoreline access signs should show publicƒ the ‚way to the shoreline. ‚9) Pedestrian access openings in the fenced areas are too narrow as currently constructed. ‚10. The Planning Director has failed to implement rules for public use of the shoreline access easements. The Planning Departments negotiated agreement with the developer states that shoreline access is not open for use by the public until rules for public use are implemented. The Planning Department and Continental Pacific, LLC have failed to officially open the shoreline to public access yet the Planning Director has issued final approval of at least two phases of the developers master subdivision plan in the past eighteen months. Continental Pacific, LLC continues to subdivide and sell land while the community is locked out of the traditional fishing grounds and shoreline recreational spots. The developer appears to suffer no consequences. 21 The legal requirements of HCC 34 are not discretionary and have not been met by the Planning Department andContinental Pacific, LLC. The only fair way to mitigate the harm caused to the community and members of the public and to assure therewill be no manifest injustice affecting the substantial rights of members of the public in this proceeding would be suspend this proceeding, and review of any subdivision applications or any relatedapplications for all parcels created by Subdivision 7644 until which time the requirements of Chapter 34 are met and any breach of the April 12, 2002 Settlement Agreement is cured. ‚Thank you for your time.ƒ GALDONES:Thank you, Ms. Rohr. Commissioners? Commissioner Springer? SPRINGER:I have some questions of the Planning Director regarding the testifiers comments. I guess, first of all, €cause thats the closest to the front of my memory, on the recommended suspension of these proceedings, do you have a comment on that with regard to the Chapter 34 and the settlement agreement? YUEN:Weve negotiated a public access, public access is open. I mean, in fact, people go down and use it, theyre not being blocked from using it. The settlement agreement did say that the official opening of public access, and by that I mean when we would have signs anditreallyisofficiallyCountyresponsibility,wouldtakeplaceupontheadoptionofusage rules. That part is my fault. I havent finished the usage rules. We have circulated a set of usage rules to public agencies. We havent put them out for public comment and rule-making yet. I expect to do that really soon. These are rules that say things like ‚No setting fires,ƒ ‚No littering,ƒ etc. Without those rules in place, the authority of the County on these public accesses is a little bit uncertain as to how people are supposed to behave themselves. So, at the moment, it is a matter of good grace by the landowner that the public access is physically open. We hope to get this squared away pretty soon and finalize the rules so that then when the County officially takes it over, then there are rules in place to govern how people act. We have processed the subdivision approvals, though. Theyve laid out the subdivision. Theyve laid out the public access on the ground so that it is, if there is any difficulty we do have, there isnt any difficulty with their being a public access and it being legally assured. ROHR:I disagree. GALDONES:Commissioner Springer? SPRINGER:Thank you. Furthermore, on the matter of the public road and the references to the Hawaii Belt Highway as compared to the Mill Road to satisfy conditions of public access, can you comment on that? YUEN:Yes. Both the settlement agreement and the subdivision documents, Mill Road and Railroad are, theres public right to drive those for use of the public access from the 22 Belt Highway. So you have vehicular access down both of those roads to the public parking areas, and then you have to walk from the parking areas. SPRINGER:Thank you. May I continue? GALDONES:Yes,you may. SPRINGER:There was some discussion by the testifier on, I guess, the difference between public as compared to the Pepeekeo Community Association access. Can you clarify that for me or us? YUEN:Yeah, Pepeekeo Community Association negotiated a preferential access for their community members on a private basis. And the maindifferences that I can recall on the Pepeekeo access are that on a couple of places where, on the public access you have to park andwalkroughlyathousandfeettotheocean.Thecommunityaccess,memberswillbeableto drive through there and park much closer to the ocean. And I think they have one additional access point thats a little bit on the Hilo side of the Pepeekeo Mill where they can drive and park thats not, thats not a public access at all. You can still get to that point on a public access, but you have to take another walking access and then walk to that point. SPRINGER:And my last question, there were several references to a variety of reservations in favor of particular parcels of property that were early on in the testifiers comments. YUEN:Im not sure what shes referring to. I think the subdivision map successfully gave access to all of their own lots. The question of the access to the Coast Guard lot, it looks like the Coast Guard lot has an easement. If you look at the map there you see the Coast Guard lot thats on the coast, theres an easement to whats called Beach Road in the subdivision plans. I dont know what the Coast Guards access is, rights are, on Beach Road or after Beach Road. However, from the standpoint of our doing the subdivision, we, I didnt see, we dont have anything that shows what their access was before we did the subdivision, either. ROHR:Now you do. YUEN:So, from that standpoint, its an interesting question; but I dont think the subdivision itself landlocked the Coast Guard. If it was landlocked, it may have been landlocked before that, or there may have been some kind of informal arrangement, or perhaps there is a formal easement over Beach Road, and that I dont know, on behalf of the United States government. But, as I mentioned, the subdivision itself didnt create any new access difficulties to the Coast Guard lot. SPRINGER:Thank you. Thank you, Mr. Chair. GALDONES:Commissioner Siracusa? 23 SIRACUSA:I have two questions. One is, is Mill Road paved? YUEN:Yes. SIRACUSA:Okay. And the second one is, regarding this preferential access and the general public access interest, does ADA get involved in this at all as far as the public access and distance from where you park your car to where you can actually get to the shoreline? YUEN:I dont think ADA is involved €cause this is not, it is not an improved access. We just have no improvements on these. Its a walk-in, its just a walk-in as-is access. It does not go to any facility. My understanding of ADA is that its connected to facilities; and there arent any facilities that are accessed by this, by these walk-in sites. SIRACUSA:So the lighthouse would not be considered a facility, then? YUEN:Well, were not giving access. The County access is not to get to the lighthouse.TheCountyaccessistogettothebeach,andtogettotheshore.Theresreference to a beach, there really isnt a beach here at all. In front of the lighthouse, theres a low point where on a calm day you could get into the water. Much of the coast here is a cliff and youd have to go down by rope to actually get to the water. In front of the lighthouse and a couple of other areas along the point there, theres a low area; but its all rocks and boulders right at the shoreline. But as far as that being a facility, sure, the Coast Guard Station, the lighthouse is a facility but thats not, our trails are not leading to that as a purpose of them. GALDONES:Seeing no further questions or comments, then -. ROHR:Id like to add something. I noticed -. GALDONES:Ms. Rohr, I have been very liberal to allow you to make your presentation. If you want to continue making comments, I would have to limit you to about three minutes, if you could wrap it up. Id appreciate it. ROHR:Okay. I spent hours looking at this subdivision map. Its very difficult to read but everything I stated today is correct. That parcel is landlocked. Ive sent the title report into the Planning Department. I stand by this. Two, I would like to say that although it all seems as though you just dont have time to do these things and its your fault, I still say that that has caused the public inconvenience and has discouraged us; and some of us may feel as though we may be trespassing. So your comment that its open, that the developer is cooperating, we have testimony where the developer changes his mind and suddenly locks people out if he doesnt like whats going on. Its still within his discretion. So, I dont think reliance on goodwill is whats required here. And I think theres a certain amount of duress in these proceedings because weve all waited now for two years to get back to the ocean, and we cant get there. So wed all like this to be over, but I dont think were going to get a fair hearing until you open the access and fulfill your obligations according to the law. If it requires a separate hearing, Id be happy to ask for a declaratory ruling on this matter, if youd like to give me time to do that. But I dont think 24 that this subdivision is a legal subdivision, youre dealing with lots that came out of an illegal subdivision. Youre not, I mean, the County laws dont provide for landlocking parcels. If youd like a separate hearing on this matter, Id be happy to pay the $100 and present my case. Thank you. GALDONES:Further questions, comments? Thank you, Ms. Rohr. One last speaker that had signed up, Roy Skogstrom. Mr. Skogstrom, you need to speak into the mike so we can have you recorded. I need for you to raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Hawai€i County Planning Commission? SKOGSTROM:I do. GALDONES:Could you please state your name and your residence address, and then you may begin your testimony. SKOGSTROM:My name is Roy Scopstrom. My residence address is P.O. Box 265 in Pepeekeo.ThereisnostreetaddresswhereIlive,butbasicallyIliverightinthemiddleofthis subdivision. Ill try to be brief. I know that you guys have been here for awhile. I came to testify in support of approving the SMAs as requested by Continental Pacific. Id like to preface that by saying that there have been three houses in the entire area of this subdivision for the 11 years that my wife and I have lived there. Two of them are rentals, we live in the third one, which means that my wife and I are the only long-term residents of this area where the subdivision is going in. Like I say, we live right about in the middle of it. And, so, I think I could safely say that I probably want this subdivision less than anybody else on the island. However, I also realize that I dont control all of the land on the island, much as I would like to, and, so, development is inevitable. And I think the best that we can hope for is that the development is done in an intelligent manner with a lot of community input and the cooperation of the developer. And I believe that thats what has happened in this instance for the last three to four years. First, there was the negotiation of the settlement agreement with the Planning Director and the Department which limited the number of parcels that were put into, probably far less than could have been under existing law; and for that I am very appreciative. Secondly, the Pepeekeo Community Association and the developer have met numerous times to work out shoreline access issues and other issues of importance to the community. I think that the developer has been very cooperative with the community in this regard. And, so, I applaud the developer for that reason, despite the fact that I would rather the development didnt exist. So I think, overall, the process has resulted in a much better outcome for the community than could otherwise have happened, if there was not this cooperation and if the developer just strictly followed the law and the Planning Department allowed them to just strictly do what they conceivably could have done under the law. 25 The other reason that I am in favor of these SMAs is that they are essentially a down-zoning. And I think a down-zoning in this area is a good idea because I would hate to see a house every 20,000 square feet along the shoreline there where these SMAs are. So, thats pretty much what I have to say. I support what Lorraine Mendoza said on behalf of the community association. What I wanted to provide was just a perspective from somebody who actually lives in the middle of this thing as to what has gone on. And there were a couple of other written testimonies submitted by people who had to leave the meeting because of time constraints. Im not sure whether you folks would like them read into the record or if you would just like them in the written form that they were submitted. One was by Ed Johnston, the other was by June Rabago. But I offer to read them if you so desire. GALDONES:We have copies of those, Mr. Skogstrom, so it would be entered into the record. SKOGSTROM:Okay.AndIthankyouforthisopportunitytospeakmypiece. GALDONES:Wait,Mr.Skogstrom.Yourenotgoingtogetoffthateasy.Arethere any questions of Mr. Skogstrom? Commissioner Siracusa? SIRACUSA:Yes, you said you live right smack in the middle. And Im wondering if that was on the southern portion or the northern portion. SKOGSTROM:Oh, Im sorry, I dont live in the middle of the SMAs. I live in the middle of the 69 lots that were previously approved before these two SMAs came -. SIRACUSA:And what lot number? SKOGSTROM:Well, on the map it shows it is other ownerships but its on Railroad Avenue just before you get to, well, right where Railroad Avenue meets Higa Road. Im not sure, let me look at the map here and see. It only said other ownerships on the map, but the closest parcel, I believe, is Parcel 89, is the closest one to where we live. SIRACUSA:Okay. Got you. Okay. GALDONES:Well, Mr. Skogstrom, the efforts and the participation that the community has put into this development should not cease and then it should continue as the development proceeds. SKOGSTROM:I agree. GALDONES:Thank you. Hearing no further comments. Thanks, Mr. Skogstrom. 26 SKOGSTROM:Thank you. GALDONES:Mr. Lim? LIM:I think perhaps the only clarification that I would make is on the Final Subdivision Plat Map Approval of our Subdivision No. 7644 that Ms. Rohr was referring to. The Subdivision Plat Map, and you can kind of see this on your colored aerial photo, you can even see the out parcel, the Coast Guard parcel outlined in red with a little squiggly access to the Beach Road. We do not know, I dont have the 1912 document in front of me but we do have the Final Subdivision Map that shows two access easements. One is a roadway easement for Liber 17617, page 279, and the other one, which is side-by-side, is a 20-foot wide right-of-way. And what I would expect that we would see, because this was all plantation lands before, is that the easement document would say, you know, 20-foot wide right-of-way to over and across parcel ‚blank,ƒ which would have been the big sugar cane parcel. So I dont anticipate that weregoingtohaveanyproblemswithlandlockingparcels.Thesubdivisionmaphasthosetwo references to the rights-of-way to the Beach Road. GALDONES:Hearing no further question, no further comments, Commissioners, there are three recommendations submitted to you. We shall take them, action on those separately. First is the Continental Pacifics State Land Use Boundary Amendment application (SLU 03-006); and the Department is recommending a favorable recommendation be forwarded to the County Council. Before we do that, Id like to enter into the record, also, the letters that Mr. Skogstrom had mentioned, one from June Rabago, of which you should have a copy, and her testimony is in support of the development; and from Mr. Ed Johnston, and he also is supporting the development. Both persons were here earlier but they had to leave. So, with that, Commissioners? Commissioner Springer? SPRINGER:Mr. Chair, with regard with the Continental Pacific, LLC State Land Use Boundary Amendment application (SLU 03-006), I move that the Hawai€i County Planning Commission send a favorable recommendation to the County Council for the reasons and with the conditions as recommended by the Planning Director. MCCALL:Second. GALDONES:It has been moved by Commissioner Springer, seconded by Commissioner McCall, that Continental Pacific, LLCs State Land Use Boundary Amendment application (SLU 03-006), be given a favorable recommendation and be forwarded to the County Council. Discussion? Hearing none, Norman? HAYASHI:Commissioner Springer? SPRINGER:Yes. 27 HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Siracusa? SIRACUSA:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Chair Galdones? GALDONES:Aye. HAYASHI:Motion carries. GALDONES:Thank you, Norman. Commissioners, the next application is the Change ofZoneapplication(REZ03-014).TherecommendationfromtheDepartmentistogiveita favorable recommendation and it be forwarded to the County Council. Commissioner Springer? SPRINGER:Hang on, Mr. Chair, Im out of sequence in my folder. Okay. Mr. Chair? GALDONES:Commissioner -. SPRINGER:With regard -. GALDONES:You may proceed. SPRINGER:With regard to the Continental Pacific, LLC, Change of Zone application (REZ 03-014), I move that a favorable recommendation be forwarded to the County Council for the reasons and with the conditions as recommended by the Director. MCCALL:Second. GALDONES:It has been moved by Commissioner Springer, seconded by Commissioner McCall, Continental Pacific, LLCs Change of Zone application (REZ 03-014), be given a favorable recommendation and be forwarded to the County Council. Discussion? Hearing none -. Commissioner Graham? GRAHAM:Yeah, I want to do some discussion if we could? 28 GALDONES:Hold on, Norman. GRAHAM:I had just two things I wanted to bring up. First, I noticed, I never kind of noticed any sort of certification that the roads were okay. Usually, you know, when were doing a rezoning or something, you know, we have all these road conditions to make all the roads fit. And I look at what the Public Works puts in here and they never really say its okay or not okay. And I know when, you know, when I rode down from the highway on the site visit, I mean, it seemed like a reasonable paved road to me, but I dont know more about that. So I just wanted to ask the Planning Department if, in fact, they are in conformance with the fact that the roads are as they should be for a rezoning of this nature? YUEN:Yes. And particularly on the MG, and ML, and CV rezonings to RS. This is going to result in, counting the lots that are outside of the rezoned area, 11 residential lots. The rezoning will permit two, possibly three, residential lots in the rezoned area. You cant, rightnowyouhaveMG-5azoningthere;andyoucantputahousethere,butyou-.Andany actual industrial development would be subject to an SMA permit, but it is zoned Heavy Industrial. As far as the quality of road itself, its a nice, wide road. It does have a, I do know a little more about it than just that. The Public Works Department had some concerns about the sub-bed in approving the subdivision of whats called the ‚Hawaiian Rainbows Project,ƒ which is mauka of the mill; and they did have an engineer go and examine the sub-bed. And I think they found quite a bit of, as would be the case of these plantation roads, quite a heavy sub-bed to it. It was a main mill road for decades where sugar cane trucks hauled down there. Currently, heavy coal trucks use it to serve the Pepeekeo Power Plant. If you were building this road today, there are a couple of, theres one curve on it near the top thats not the best, but not a highly- hazardous kind of situation. So, I mean, in terms of the width, its, Im not concerned about it supporting a few residential lots, lets put it that way. GRAHAM:Okay. Well, obviously your expertise is much better than mine, so Id certainly have no reason to question that. The second item I wanted to bring up, I know back when we did our original hearings like nearly a year ago, whatever, we brought up the coal ash left over from the power plant and its relationship to this stuff and all. And I think at that time you let me know that the, Im speaking of the Planning Director, that, you know, that was sort of being worked out at the time, and that when we came around to taking action on this that you would have a report on what the status of it was and all. So I dont want to see the leverage that the public has in the form of rezonings and SMAs lost if there is public interest still in what needs to be done with regard to the coal ash. So Id ask you to follow through, if you would, on just giving us as an update on things? YUEN:There isnt that much more to say on it. Theyre still discussing the, whats an acceptable disposition with the Department of Health. It looks like, I know that C. Brewers proposal is that they mix the ash with a soil layer and plant in it. GRAHAM:Is it your judgment, then, that the Department of Health has the authority and the ability in the current situation to bring this to an amicable resolution in the interest of the 29 public in a relatively brief, appropriate period of time without us needing to be involved in the permitting were doing now? YUEN:I dont think that the Commission needs to be involved at this stage. The coal ash pile isnt part of these applications. Its outside the SMA, outside any of the rezoned area and is within a large -. Its not being, lets say its not being cut off by itself into a, into a parcel that can be just abandoned, at least at this point; and we are watching out for that sort of thing happening. LIM:And someone else owns the coal ash piles, so -. Its another company. GRAHAM:Someone else unrelated to you folks? YUEN:Wait, who owns it? I thought you owned it. HENDERSONOh, we own it right now, but Hawaiian Rainbows is going to own it when thedealgoesthrough. YUEN:Yeah,okay.Butyouguysdo,youdoownitnow? HENDERSON:WecurrentlyownitbutitsaleaseoptionwiththeHawaiianRainbows. YUEN:Yes, okay. And as far as the jurisdiction, the Department of Health has jurisdiction as it has a solid waste facility and they need to clear Department of Health permitting, as far as the ultimate disposal. The Department of Health has primary responsibility over the safe disposal of this as a solid waste. GRAHAM:All right. Thank you. GALDONES:Further discussions? Hearing none, Norman? HAYASHI:Commissioner Springer? SPRINGER:Yes. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Siracusa? SIRACUSA:Aye. HAYASHI:Commissioner Graham? 30 GRAHAM:Aye. HAYASHI:Chair Galdones? GALDONES:Aye. HAYASHI:Motion carries. GALDONES:Thank you. Commissioners, Special Management Area Use Permit, SMA 03-009, comes with a recommendation from the Department that it be approved by the Planning Commission. Along with that, there are two additions, additions to Condition No. 6 and also to Condition No. 7. Commissioner Springer? SPRINGER:Mr. Chair, with regard to the Continental Pacific, LLC in their Special ManagementAreaUsePermit,SMA03-009,ImoveforapprovalbythePlanningCommission for the reasons and with the conditions as recommended by the Planning Director, and as further amended as part of this hearing. GALDONES:Do I hear a second? MCCALL:Second. GALDONES:It has been moved by Commissioner Springer and seconded by Commissioner McCall that Continental Pacific, LLCs Special Management Area Use Permit, SMA 03-009, be approved by the Planning Commission and the amendments as stated by Ms. Springer. Discussion? YUEN:And to just clarify that that would be an amendment, in No. 7, where it says ‚A graded site for basketball court,ƒ that phrase will be changed to ‚grade in approximately two-acre area of Phase II of Kula€imano Park master plan.ƒ Correct? LIM:Mr. Chairman, as an additional point of clarification. We had also requested that the second line be added with the phrase that, ‚Upon the sale of each lot, up to a maximum of 11 lots,ƒ to make it clear that it was limited to 11 lots. Thank you. GALDONES:Norman, you got those changes? HAYASHI:Yes. GALDONES:Discussion? Commissioner Graham? GRAHAM:With regard to the SMA permits, this one and the other one, it certainly seems that the major issue from SMA concerns is the public access. So, I just wanted to check out a few things. Lets see, Im not quite sure where the public access sits within our conditions. Is it all in a sort of subsidiary document, which is an agreement? 31 GALDONES:Mr. Lim, can you help us here? YUEN:Im sorry, its paragraph 3 of the proposed conditions. GRAHAM:Where it says ‚provision of public access to and along the shoreline?ƒ YUEN:Yes. GRAHAM:And those public accesses are spelled out, where? YUEN:In this settlement agreement dated April 12, 2002. In connection with this area, that would be specifically that, starting, if you want to take it all the way back, you have vehicular access along Mill Road, yeah. GRAHAM:Yeah, you dont need to go through all the specifics. I understand from oursitevisit,inregardstothepublicaccess-.Anditsonly10feetthatwerereallyrequiringin general along the shoreline, is that correct? YUEN:Yes. Its a pedestrian access. GRAHAM:Right. I know in the conditions with regard to house building on some of the lots, in the material I read, I dont remember where, there was some discussion about ‚no houses should be closer than 40 feet from the cliff edge in case of subsequent erosionƒ and all. So how does the public access move? Suppose the public access is 10 feet and theres erosion, does the public access get to move inland so that it is maintained? Were not going to lose any public access through erosion? YUEN:The settlement agreement says that if the cliff erodes, then the public access could be moved to a near safe location. Isnt that correct? LIM:Thats correct. GRAHAM:And it would be continuous along the shoreline? YUEN:Thats right. GRAHAM:Another concern is, I know in a few areas on the leeward side of the island, like at Mauna Lani or down near Kona Airport and all where theres narrow public accesses, high-priced property owners nearby kind of like built up a big stonewall or something to restrict that. Somehow that makes you feel like youre stuck in a foreign country or something. And, you know, if you want to go there, you know, youre allowed to do it; but we dont want any part of it, or something like that. So Im just wondering, is that a possibility that could happen in this situation? Is that something we should condition for so that we dont wind up having lot owners building a total wall screen that leaves the public with a 10-foot little 32 narrow corridor along the ocean? And along with that, Im also just wondering -. When I think of public access, I think of going from one place to another. But if, in fact, people are fishing along the cliffs here, 10 feet is a pretty small place to have a group of family, or something like that, try to sort of set up a, you know, a grill for the night, or whatever people might want to do. And Im just wondering, I mean, I still carry those concerns. And if the Pepeekeo Community Association is okay with it and all, theres some way, I dont want to just dig up the whole dirt pile again; but they seem like real substantial concerns. So, I would appreciate some commentary on those from the Applicant or the Planning Director. LIM:I think from the Applicants standpoint, we have stretched out, also, the Final Subdivision map that was approved by the County Planning Department. And in the middle of the area, you can see the yellow thats fronting the whole property? That was the subdivision map thats currently existing and recorded in the Bureau of Conveyances, and that already shows the 10-foot wide public access going across the frontage of the property. I think itsanexpectationbythedevelopersthatthe,whether,€causeincertainareas,thepublicaccess, the 10-foot wide public access corridor, will be located up on the, kind of on the bluff before it starts to go down the hill, down to the rocks below at the ocean. And its our expectation, I think, that once, essentially what youre going to have is, once you get on that 10-foot lateral public access going along fronting the property, then youre going to have, you know, free rein to go down to the water in that area. I think a lot of it you cant go down to the water. But in certain areas that you can, thats part of what the public access requirements are for. The Pepeekeo people certainly would be able to go down there. GRAHAM:That doesnt seem like it quite addressed what I was bringing forth, but, anyway -. LIM:Youre asking about the, like no walls or something like that? GRAHAM:Im not, yeah, not walling one from the ocean, but putting up a wall on the mauka side so that if Im walking along the ocean and I got a big black wall there and only 10 feet of cliff, it wont feel like Im in a little exclusion corridor. YUEN:There is a condition on the structures that say that no home or substantial structure shall be built within 40 feet from the top of the sea cliff. So, and thats -. GRAHAM:And that would include any rock walls or anything of that nature? YUEN:A rock wall will be a substantial structure, in my view, anyway. And, I mean, there is a, the 10 feet is within a 25-foot wide corridor, the 10-foot easement. GRAHAM:And what does the 25-foot wide corridor mean? YUEN:From the shoreline, its a, from the -. GRAHAM:Does it just mean that that 10-foot will stay within 25 feet of the cliff? 33 YUEN:Yes, yeah. And its meant to provide a workable area in siting the corridor. But, I think, were still, part of whats going on as were, we are working on the final -. Theres some difficult areas in actually walking this out on the ground, so were going to remap some of this so that works. And I think the end result is going to be that, its just, you go any place within the 25 feet. In other words, youre not held to, were not talking about fencing off a 10-foot wide path and then you go from -. Within 25 feet you go down to the ocean, thats what were talking about. And in some places it may be a little bit more because of the way the terrain is. But in -. GRAHAM:Is that the understanding of the Applicant what the Planning Director is saying here? LIM:Thats correct. GRAHAM:Thanks. And I wondered, also, Chris, if Debbie Chang, who I know is workingonaccessissuesalongthewestside,didshegetachancetolookthisoverandhasshe made input into what the Planning Department came up with finally? YUEN:I know she has looked at it. I dont know what, I dont think that there are any big problems with it. Its one of these things that you, we did a negotiation thats basically workable in verbal terms, and it has enough leeway on how it gets done on the ground. When you actually go out and walk a place like this, you have to make some adjustments on both sides. And weve, Ive had good cooperation, and I think were going to get it finalized. There are a couple of areas where there are little gullies that we need to cross, and were going to actually jog outside the 25 feet. There are areas where there are old field roads paralleling the shore that may be a little more than 25 feet out. But the most practical way to walk it is to walk along the field road, so those are the kinds of adjustments that were planning to make in finalizing the public access easement for here. But we have a workable agreement, and Im confident well finish it. I havent been able to put as much time into swaying this away as Id like to. Ive been out and walked it three or four times with the Applicants representatives to try to fine-tune these areas, particularly along the lateral shoreline area. And most of this actually is the areas that are outside the, what you have in front of you today. What you have in front of you today is maybe 2,000 feet of shoreline; and the whole area is good 2-1/2, 3 miles long. GRAHAM:Thank you. GALDONES:Commissioner Springer? SPRINGER:Yeah, Im looking at the settlement agreement, Section C-6, which is on page 9. And it says that ‚Lateral shoreline access shall be designated on the subdivision map as an easement for the lateral shoreline access, 10 feet wide, approximately 25 feet mauka from the edge of the cliff.ƒ So is that 25 feet mauka and then the 10-foot easement, or its within the 25 feet? 34 YUEN:No, its 25 feet from the top edge of the cliff. Its not adding 10 feet. SPRINGER:Thank you. GALDONES:Hearing no further comments. Commissioner Graham? GRAHAM:I just wanted to make one other thing. I know when we were reading the SMA application in there and we were reading about the Ka Pa€akai settlement with regard to the Hawaiian traditional gathering and all like that, it indicated that we should, in fact, make an explicit finding that those concerns were taken care of, and all like that. And I just wanted to be sure that when we, since we havent spoken of that at all today that in our record we are making an explicit finding to that effect, so it doesnt become sort of a faulty proceeding. GALDONES:Sonoted. GRAHAM:Idontknowifwe,Imean,thoseareprettygeneralwordsImsaying.I dont know if we need to say anything further. But maybe Commissioner Springer can just look for a minute in case she believes we should. SPRINGER:I thought that particularly this Applicants representative usually has a disclosure sheet that they submit with the application that indicates, that gives reference to Ka Pa€akai O Ka €Aina . YUEN:Well, I know that our, and this is just covers, again, this covers the point area here and which was extensively modified in historic times by the presence of the sugar mill and a camp of 150 homes. So there are customary Hawaiian rights being exercised along the shore; and we say that on page 3, at the bottom, fishing and gathering along the shoreline; and those rights are protected by the access to them. On the land itself, we have a statement that theres no evidence of traditional or customary native rights being practiced. LIM:In the application we discussed that at Section 3.1.4, page 30, the Valued Cultural, Historical or Natural Resources; and we go through that three-part Ka Pa€akai O Ka €Aina test. Weve gotten an archeological clearance for the project area. As you know, from some of the earlier photos we showed, this was basically very heavily used for industrial and residential uses up to the time that the plantation camp was moved. SPRINGER:I think with regard to Ka Pa€akai O Ka €Aina at one of the earlier installments, there were several members of the active Hawaiian community who came and made comments to us. But I think that the comments were general in nature and there was no specificity with regard to particular individual linked to particular practice, if my memory serves me from that early public hearing. 35 GRAHAM:Okay, so then its my understanding that with the action were taking today we are kind of relying on an agreement with the representations that the applicant made and just referred to. GALDONES:Any further discussion? Norman. HAYASHI:Commissioner Springer? SPRINGER:Yes. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:CommissionerSiracusa? SIRACUSA:Aye. HAYASHI:CommissionerGraham? GRAHAM:Aye. HAYASHI:Chair Galdones? GALDONES:Aye. HAYASHI:Motion carries. GALDONES:Thank you, Norman. Mr. Lim, you will be informed in writing of todays actions. LIM:Thank you very much. The discussion ended at 12:25 p.m. Respectfully submitted, Sharon M. Nomura, Secretary 36 37