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HomeMy WebLinkAbout2003-10-02 TSOTO PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT OCTOBER 2, 2003 A regularly advertised public hearing on the application of ERIC SOTO (SMA 03-007) was called to order at 11:57 a.m. in the the Ohana Keauhou Beach Ballroom, 78-6740 Alii Drive, Keauhou, North Kona, Hawai`i, with First Vice-Chairman Earl Fujikawa presiding. PRESENT:Earl FujikawaABSENT & EXCUSED:Fred Galdones Bill Graham Jeffrey McCall Florence Kubota Aurelio C. Mina, Jr. Francis Smith Hannah Springer Bill Thibadeau Patricia OÓToole, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Staff Planner Kiran Emler representing Department of Public Works And approximately 6 people from the public in attendance. APPLICANT: ERIC SOTO (SMA 03-007) Continued hearing on a Special Management Area Use Permit application to allow the construction of a three and one-half story, 45-foot high, 12-unit multi-family residential development and related improvements on approximately 15,203 squ The property is located on the west (makai) side of Alii Drive, adjacent to and north of the Sea Village Condominium complex, Kahului, North Kona, Hawaii, TMK: 7-5-19:30. FUJIKAWA:Okay, Commissioners, weÓre going to go to applicant, Item No. 2, applicant Eric Soto (SMA 03-007). This is a continued hearing on a Special Management Area Use Permit application to allow the construction of a three and one- half story, 45-foot high, 12-unit multi-family residential devel HAYASHI:Mr. Chairman, may I have one second, oh, two minutes, on minute to replace the maps. FUJIKAWA:Okay. HAYASHI:Thank you. RECESSEDThe Chair recessed the meeting 11:58 a.m. EXHIBIT B RECONVENEDThe meeting reconvened at 11:59 a.m. FUJIKAWA:Okay, Norman? HAYASHI:Thank you, Mr. Chairman. In July, we received a Petition for Standing in a Contested Case hearing that was submitted back in July, on July 25, 2003. st The hearing on this application was first scheduled for August 1 in Kona. At that hearing, the Applicant had requested the hearing be continued in order to allow them to try and discuss the issues with the KonaÓs, the Sea Village Condominium Association. A th second hearing was scheduled for September 11. At that time, again, the Commission, at the request of the Applicant, had continued the hearing until today. The issue as to whether the petition should be, for a contested case hearing should be accepted is still up in the air and needs to be decided upon by the Commission. Just as a quick orientation since you already, IÓve already presented the Background Report and also the location of the subject property. I think, this would be an identification of the property -. The property is located along the makai side of the Alii Drive, and that is indicated in orange. It is situated adjacent to the Sea Village Condominium project; and, also, the Sun Terra Resort office is situated adjacent to the north of the subject property. This would be Kailua Village. The Applicant is proposing to construct a condominium project in this general configuration. This would be makai, or the ocean, and this would be Alii Drive. Are there any questions at this time? FUJIKAWA:Any questions, Commissioners? No? HAYASHI:IÓll also like to add there are several correspondences that we received and also were presented to the Commission. These correspondences were th received after the last meeting that was held on September 11. FUJIKAWA:Thank you. Would the Applicant or the representative, please step forward? VITOUSEK:Good morning, Mr. Chairman and members of the Commission. Randy Vitousek. FUJIKAWA:You wanted, yeah, IÓll have both of you just raise your right hand. And, meanwhile -. Okay. Do you swear or affirm to tell the truth on this matter now before the HawaiÒi Planning Commission? TESTIFIERS:I do. FUJIKAWA:Can you state your name and your address, Mr. Vitousek? 2 VITOUSEK:Yeah, Randy Vitousek. IÓm representing the applicant relative to the petition for standing. FUJIKAWA:Thank you. Mr. Tsukazaki? TSUKAZAKI:Ben Tsukazaki. My address is 142 Kapaa Street, Hilo. representing the Apartment Owners of Sea Village, Inc., the association of condominium owners next door to this project. FUJIKAWA:Thank you. Mr. Vitousek, you want to start off? VITOUSEK:Thank you, Mr. Chairman. My understanding is this matt before the Commission on a petition to intervene in a contested case hearing; and the position of the Applicant is that this is, that there was no properly-filed Petition for Standing. In other words, the rules are very clear. Rule 4-7 of the Planning Commission Rules say that a Petition for Standing in the form provided in Appendix A to the Rules must be filed no less than seven days before the, no less than seven calendar days before the first hearing in the matter; and that simply wasnÓt done. The form prescribes, thatÓs attached Exhibit A, prescribes that it has to be, what the content has to be; and that it has to be a notarized application, and this just wasnÓt a notarized application. In other words, they submitted a petition, it was not notarized and just plain didnÓt meet the requirements of the statute, IÓm sorry, requirements of the rule. So itÓs just, you know, I mean, even though the Court is clear that, that standing is to be liberally construed, the Commission has complete authority to enforce its own rules. And, so, if a petition is received that doesnÓt meet the requirements of the rules, it doesnÓt exist. Now, they recognized that this was a flaw, obviously, because th th amended petition that was mailed to the Commission on August 4, which was after the st first hearing on this matter. August 1 was the first hearing. And so the applicant and, the petitioner obviously recognized that they had not complied with the rules; and they submitted a notarized amended form after the first hearing, and thatÓs not timely. In other words, they didnÓt submit a timely proper petition. The first petition was not complete, it was improper. The second petition, which was notarized, was unt really a matter thatÓs, you know, open to a lot of interpretation. So itÓs the applicantÓs position that no proper timely request had been received and that there is no reason to initiate contested case hearing procedures. WeÓre talking about a condominium association which is a corporation, which is represented by counsel who is obviously very competent and very knowledgeable in terms of the rules. This is not a case where weÓre dealing with some community group that may be unsophisticated or rules or not have the funds available. This is, they just didnÓt do it right. I mean, they had every resource to do it right and didnÓt; and so thereÓs no reason to give them a break. I mean, itÓs not a situation where thereÓs any unfairness to anyone. The rules are obvious and well known and easy to follow, so thatÓs the position of the Applicant. FUJIKAWA:Mr. Tsukazaki? 3 TSUKAZAKI:Just for the record, I received this, the ApplicantÓs Motion to Dismiss a few minutes ago. So I just, you know, wanted it to be clear that we havenÓt presented any written argument on this, but IÓll try my best to address the points that he has made here. The Association filed a document that is required under the rules to be filed for standing. The Association did that. To the extent that the signature wasnÓt notarized, that was because the president of the board, whoÓs normally authorized to sign these documents, was in Canada; and it was too difficult to go to an embassy which would, heÓd have to travel from where he was to get to the embassy. So a facsimile signature was used. He was able to fax back a signature. And, subsequently, we found the treasurer to be in Seattle and was able to get him to sign it and have it acknowledged there, and then sent back here. So, you know, to a certain extent, there hasnÓt been complete compliance with the rule regarding an acknowledgment. But I urge you to take a look at what the real issue is here. And that is that you have entity next door, a neighbor, who I think would clearly be recognized as having an interest which would allow standing to be conferred because that interest is obviously different from any interest of the general public. The Association is that entity, it represents all of those owners next door. The Association made a timely filing. And I think given that the law of standing in Hawaii is very liberal, I think it would be very dangerous, I think it would be reversible error if standing were denied in this situation for what might be seen as a technical non-compliance with that rule. Again, the document was filed timely, so all weÓre talking about is whe The purpose of notarizing a signature is to determine whether that person, in fact, has the authority to sign for the corporation, or for the association, or whatever organization it is. I can tell you that we have, our firm was retained by the Board to represent the Association. ThereÓs no doubt that the Association has authorized its officers, as well as counsel, to move forward with this. So, I guess, the other side of the coin is if a signature was originally acknowledged, does that, is that prejudicial error? Who has that prejudiced? You know, it hasnÓt injured anybodyÓs interest. And weÓre looking at the other side of the coin whether you would deny standing to an entity who would otherwise be entitled to standing because of the legal interest on the basis of that technical issue. So, again, we believe that the spirit of the rule was followed and there was a timely filing. And we believe that in the law of Hawaii thereÓs a very strong preference to favor standing when an interest can be demonstrated, which is different from that of the general public. So, in that context, we would respectfully request a standing be granted to my client in this case. FUJIKAWA:Mr. Vitousek? VITOUSEK:Yeah, just briefly. WeÓre not arguing about standing. Standing is not the issue here. The issue is whether they complied with the rules in filing a petition. So even if they had perfect standing, the issue is still, you know did they comply with the 4 requirements of the rule. ThatÓs a very different issue. ThereÓs nothing in the rules that says, ÐOh, gee, well, these rules donÓt apply if we can come up with some argument that say nobodyÓs hurt by it.Ñ ThatÓs really not what the rules say. ÒCause if they were, weÓll be sitting here arguing about meeting with every rule based on peopleÓs good faith. And, you know, Mr. TsukazakiÓs made a lot of factual representations to you about who had authority to act, and what he said when he talked to the board; and none of thatÓs in the petition. The only thing thatÓs in the, the reason that the notary is there is so that there can be proof that the person who signed it is authorized to do so; and that proof is lacking. ThatÓs the reason the notary requirement is there. In fact, when they filed, the next one has somebody elseÓs name on it. So what the notarization does is it requires some degree of rigor before you just drop a petition in here and put a matter in a contested case hearing, so that you can start arguing your own personal interest about viewplanes from your apartments and what not. So the only issue here is whether there was compliance with the rule. And if there was not a proper timely petition which met the requirements of the rule, then thereÓs no further argument. Thank you. FUJIKAWA:Commissioners, any question to Mr. Vitousek or Mr. Tsukazaki? Commissioner Graham? GRAHAM:Obviously, you know, the legal issue is very important here. Do st you remember the August 1 meeting when this was first brought up? Mr. Mooers was representing the client at that time and we had a discussion about Petition for Contested Case. And, as I recall, the feeling was that the deficiency wasnÓt such a big problem. st And by chance I happen to have the minutes of the August 1 meeting here with me. And I do notice after we had testimony by Mr. Mooers, I made a comment to Mr. Mooers saying and IÓll quote from the minutes, ÐJust to ask Mr. Mooers to verify that, in fact, this is not, the deficiency in the Petition doesnÓt represent any substantial adversity to you. Is that correct?Ñ And I had a long response by Representative Mooers. It starts out, ÐYeah, I would like to comment.Ñ I must acknowledge that I think Mr. Mooers was very clear to us at the time that he was not an attorney and he was not repres capacity of an attorney. However, the sense at that time was, I didnÓt have a sense that this applicant made any note of any sufficient adversity suffered by him by virtue of the fact that the petition had not been notarized properly at that time. So I do have the minutes here if anybody and the Commission would like to look at it. And IÓd just want to offer those comments as being, reading what transpired at that time. FUJIKAWA:Is there any other question from the Commissioners? KUBOTA:Mr. Chairman? FUJIKAWA:Commissioner Kubota, go ahead. KUBOTA:You know, on this first communication from Ben TsukazakiÓ office, July 25, 2003, the County accepted this filing for stand 5 recall the cover letter that says we are in receipt of your petition for standing. At that time, was the deficiency noted? HAYASHI:Mr. Chair, may I respond to that? I donÓt find any letter in the file to reflect that that particular petition was officially accepted, although it was presented to st the Planning Commission at the August 1 meeting. However, the amended petition was acknowledged, officially acknowledged, and the petition was also forwarded to the Planning Commission. FUJIKAWA:Norman, thank you. Go ahead, Director? YUEN:Did we get $100 for the first one? HAYASHI:It does say that, the letter from Mr. Tsukazaki does sta $100 check was also included. th YUEN:With the July 25 one? HAYASHI:ThatÓs correct. KUBOTA:Now, I go to -. FUJIKAWA:Go ahead. KUBOTA:Mr. Chairman, may I ask a question of Corp. Counsel? FUJIKAWA:Go ahead, you may. KUBOTA:There definitely has been a lack of, what is that, that seal. Legally, what are our obligations? Our County, I think, accepted in intent. The intent was there to file and the $100 was attached to the original one without the seal, a notary. The County accepted it, was passed on to us; and I didnÓt even notice that the seal was missing. And subsequent to that, after the first meeting on this agenda item, an amended form was sent to us. What are the, what do we have as legal recourse, what are our obligations now that it has been brought to our attention? How much does intent to file, the notion of intent, have on this decision-making? OÓTOOLE:Well, I think the issue is compliance with the rule and how strict compliance youÓre going to require. And perhaps, you know, intent and our acceptance might be factors youÓd want to consider in terms of how important that notary seal is. I think if you look at, well, there are several factors, I guess. You know, it was filed on time, there was notice to the Applicant that the request has been made and no objection apparently was raised at that time; and, in fact, they have been negotiating. It appears that they would clearly have standing unless, you know, this notary, lack of notary on the original thing is considered fatally defective. While IÓd like to see you be, follow your rules strictly, in most circumstances like, say, if they didnÓt file it on time and, you know, 6 then people didnÓt have notice and it would cause a whole bunch of problems. But as far as the notary goes, well it, this notary, all it says is that that person is that person. It doesnÓt say anything beyond that. I think there are some notaries that might say, you know, he has the authority to sign on behalf of the corporation or hereÓs the corporate seal or something. But this appears to be just a straight identity of that person; and I donÓt know that thereÓs any reason to doubt it. So I think youÓd want to look at people who filed it who probably clearly have standing and whether in the view of the purpose of having these administrative hearings, whether you want to stick to some technical defect like this. KUBOTA:Thank you. FUJIKAWA:Any other questions, Commissioners? Commissioenr Smith? SMITH:Yeah, it seems like, you know, Corp. Counsel we have two opposing views before you. If we had the scale of justice over there, which side would you be leaning? OÓTOOLE:Well, I, you know, I guess IÓm supposed to advise you on but I have not found any case where it said, you know, if a notary isnÓt there, thatÓs the end of it. And if I were balancing it, personally, like I say, I think, they, obviously, have standing, they filed on time. And, you know, what is the point of the notary anyway? SMITH:You didnÓt answer my question. I guess, thatÓs all right. OÓTOOLE:I thought I did. MOOERS:Mr. Chairman, can I make a comment? FUJIKAWA:Go ahead -. Let me swear you in first. Do you swear to tell the truth to the HawaiÒi Planning Commission? MOOERS:I do. FUJIKAWA:State your name and address. MOOERS:Greg Mooers, Box 1101, Kamuela. I just want to clarify s the comments that Commissioner Graham made about my representations at that hearing. I think I was very clear on a couple of points. One is that I was not an attorney. Two, we were not discussing the issue of standing. In fact, in the spirit of trying to reach an agreement in the last two hearings, we specifically avoided that issue. I was quite aware at the time that they filed the petition that it was defective. My point, and I think I made it at that time, is that I would like to see at the point that we discussed standing, I ask that they show minutes of the meeting in which they were authorized to take the position to request a contested case. So I think I was trying to break that issue at that time. So that should be in the minutes as well. I was very concerned about that but I did not want to 7 get into this discussion at that time because I was still hopeful that we would be able to reach resolution on the issues that they had raised. I still am but, unfortunately, we have not be able to accomplish that yet. But I didnÓt certainly, I felt that IÓve made every effort to not advocate our right to challenge this issue at that time. And, in fact, I recall Mr. Moore saying that, ÐWell, there was a defect but that there was a provision in the rules that if both sides waived that,Ñ and I made very sure that I did not waive my objection to that rule. FUJIKAWA:Commissioners, any question to Mr. Mooers? Commissioner Graham? GRAHAM:I certainly will not take issue of what youÓre saying here, Mr. Mooers. And, as you say, you were very clear that youÓre not representing as legal counsel. I do remember when, and I have in my minutes here, that Mr. Moore indicated that his sense was that you had no objection to the contested case. And I asked if you had adversity to it and all I can say is you didnÓt contradict us, but you never made any representation as to whether it was appropriate or not appropriate, or anything like that. So I certainly can -. MOOERS:ThatÓs correct. GRAHAM:I certainly go along with what you said here in that respect. FUJIKAWA:Mr. Vitousek, go ahead. VITOUSEK:Thank you, Mr. Chairman. Just briefly. You know, and th point out that what was served on the, what was given to the Commission on July 25 was a facsimile signature. IÓm not even sure that complies with the rules. I mean, what he said is that somebody somewhere in Canada faxed a piece of paper to him and he submitted it; and, so, you know, thatÓs another issue. I mean, thereÓs a facsimile signature, thereÓs no provision in your rules that allows facsimile signatures; and thereÓs absolutely nothing to authenticate the signature, you know. So weÓre at a situation where anybody could scribble anything on a piece of paper and send it in and youÓre just going to sit back and say, ÐWell, gee, if it wouldnÓt really hurt anybody, then, well, sure, weÓll give Òem standing,Ñ you know. And the reason you have rules is to require that a certain level of planning and rigor and caution go into requesting a contested case hearing, which is going to take a lot of your time and lot of money. And, you know, they want people to have to think about it a little bit before-hand and enough so that they actually have to go to a notary, which takes about five minutes, and authenticate their signature. You know, this is your rule. IÓm not, you know, this is your rule, this is your form. This is the rule you adopted, this is the form you prescribed. And now youÓre saying, ÐOh, gee, well, maybe we wonÓt require it,Ñ you know; and thatÓs really your choice, you know. But is the rule now that it doesnÓt need to be notarized? You know -. Or is it, gee, if itÓs okay, if Mr. Tsukazaki says itÓs okay, then itÓs, because I found somebody in Canada that would sign it, itÓs okay? And all weÓre saying is the rule is the rule, please apply it. It has absolute material implications because it delays by 8 months sometimes, and it costs thousands of dollars. And, you k required to at least go get, go comply with the rule, you know, pay the dollar, get a notary to authenticate the signature. Thank you. Or at least plan enough in advance that you can do that. FUJIKAWA:Any other question, Commissioners? I have a question with Corp. Counsel. Now, if IÓm in Canada and IÓm an American citizen, can the Canadian government notarize my paperwork or does it have to be American Consul? OÓTOOLE:Frankly, I donÓt know. But I had assumed for what Mr. T was saying is that he was going to an American Embassy to get it notarized, and thus it would be recognized here. FUJIKAWA:Thank you. Mr. Tsukazaki? TSUKAZAKI:Yes, thatÓs what I said. Again, the board members, the officers, who are, would be authorized to sign something like this are all out-of-state; and, at that particular time, Mr. Gilsdorf, the president, was in Canada. So there were problems. nd By the way, for the record, our firm was retained on July 22 and thereafter prepared this document, sent it to the Managing Agent to go ahead and make sure people signed, and it got notarized. And so it was, the difficulty arose when it was discovered that the president was not in California where he lives, that he was in Canada. So after it was clear that it was going to take several days to get something back from him, they went, you know, they went and got the treasurer to sign. For the record, see, I think what Corp. Counsel was saying was right. You know, whatÓs the real beef here? If thereÓs a question about whether the association authorized people to take action on this, that, you know, that can be substantiated right now or at the hearing. As counsel to this association, IÓm telling you that weÓve received written confirmation and instructions to proceed with this. I do have something in the file, in writing, that indicates that. I do have something in the file that indicates that the board had a meeting, that thereÓs minutes of a board meeting in which they authorized this action. So if the Commission would like, we can submit all of t record. But, again, the issue is whether an acknowledgment saying that Mr. Gilsdorf is Mr. Gilsdorf, how that stands in the face of what did this particular property ownerÓs legal rights are, I really donÓt see that a technicality can legally bar this association from participating. So we ask you to look through the arguments. And I believe that, you know, if there is serious concern about the legality, you know, what the, what HawaiÒi law is on this, that the parties be given a chance to submit something to you. However, I do believe that Corp. Counsel has, you know, laid out what, I think, is the appropriate course of action, the proper way to look at this. FUJIKAWA:Thank you. Director? 9 YUEN:Mr. Tsukazaki, do you have, did the board of the associatio before the deadline for filing the petition -? TSUKAZAKI:Yes. YUEN:For a contested case and decided to do so? TSUKAZAKI:Yes. The minutes from the board meeting that I saw, yeah. YUEN:ThatÓs not exactly the same as my question. If I understan happens oftentimes with boards -. Did they meet, before the filing of the Petition for th Contested Case, before July 25? TSUKAZAKI:For the record, IÓm looking at the Special Board of Directors th meeting minutes regarding a meeting July 14. th YUEN:July 14? TSUKAZAKI:Yes, 14, 2003 and the Board -. You know, this is, I f reluctant to state exactly what this says. But if I may read one portion of it? A Board Member -. VITOUSEK:I object to reading a document thatÓs not in evidence. I mean, these are documents that are not put in evidence. TSUKAZAKI:There is no evidence. VITOUSEK:Well, youÓre opposing, youÓre opposing a motion. If you do your basis on a document, it should be in evidence. FUJIIKAWA:I think the Director has some questions on that. TSUKAZAKI:These minutes permit the president of the Board to, with authority, to work with legal counsel in representation of Sea Village in the possibility of stopping the development. And thereÓs some other things that go along with it but these were the minutes which authorized Mr. Gilsdorf to find legal counsel. And, again, our firm nd received written confirmation on July 22 that we had been retained. YUEN:And where did they meet? TSUKAZAKI:I donÓt know but my guess is that this would be a telephone conference. The report of the quorum number of members are all listed here on the meeting, I mean, on the minutes. And, again, you know, it may b submit for the record if itÓs necessary. ItÓs just that I have not asked for any authorization from my client to do that so, and thereÓs some other stuff in here. 10 YUEN:I see. ThatÓs all I have. Thank you. FUJIKAWA:Thank you. Any questions, Commissioners? VITOUSEK:May I make one brief statement? FUJIKAWA:Mr. Vitousek. VITOUSEK:And then now we had an admission that they made a decis th the 14. So thereÓs absolutely no reason that they waited until, I mean, if you look at the Exhibit D, the top line of the signature page from Mr. Gilsdorf shows that it was faxed by th Mr. Gilsdorf to Mr. TsukazakiÓs office at 4:30 on July 25. In other words, you know, this is the last possible moment. And, so, basically, you know, made a decision, itÓs their representation they made a decision to file a contested case on th July 14. There was ample opportunity to comply with the rule; and they just didnÓt do it. FUJIKAWA:Any questions, Commissioners? Commissioner Graham? GRAHAM:If this is appropriate, we did hear from our Corp. Counsel. And since I know our Planning Director is also an attorney I wondered if, based on what weÓve heard since that time and whatever, if he had any particular opinion on this matter as to whether we should grant a contested case standing. FUJIKAWA:Corp. Counsel? OÓTOOLE:I think heÓs asking Mr. Yuen. FUJIKAWA:Yes, Chris? YUEN:IÓll leave this completely up to your legal counsel to avoid confusing the matter even further. You have three attorneys who have rendered opinions with three different opinion and youÓre likely to have a fourth if you ask me. So, but I say that, IÓm kidding. I donÓt have anything that anybody else has said. But I would suggest that on a matter like this that the Commission listen to their legal counsel. FUJIKAWA:Corp. Counsel? OÓTOOLE:Well, are you asking me to tell you how to vote or to reiterate what I have said about the factors that I would consider important or to look at? FUJIKAWA:Go ahead, Commission Graham. GRAHAM:I was just asking the Planning Director, so I donÓt need any further -. 11 OÓTOOLE:Well, he said he wanted to ask the Director. The Director doesnÓt want to answer, so -. FUJIKAWA:You donÓt want to answer. Any other question from Commissioners? KUBOTA:ThatÓs his position. OÓTOOLE:So you want me to say, again, what I had said, okay. I think I said that to look at the factors that seem to be involved, you know, one, you could just say, okay, thereÓs no notary, thatÓs it. Or you could look and say, well, what is the purpose of the notary, does it really add anything of significance to this matter? You know, is there any harm to the Applicant when they had noticed in a timely fash asking for a contested case, although they had not notarized their request, and that subsequently the notary was put in there. I think, you know, for the petitioners, they would have standing and there would be no question about that, except for this notary thing. So how important you consider that, I guess, itÓs up to you. But I distinguish it from other types of, you know, failures to follow the rules, suc like where they filed it after the first hearing or, you know, something else like that. FUJIKAWA:Sure. Question, Commissioners? KUBOTA:No. FUJIKAWA:No? Mr. Tsukazaki, you have anything? TSUKAZAKI:No. FUJIKAWA:Mr. Vitousek? VITOUSEK:Well, I guess, IÓm concerned about the Corp. CounselÓs statement. I mean like does that mean if you donÓt send in the money and you send it a day later, if you just filed a day later, then the rule requires that thatÓs okay if nobodyÓs hurt by it? I mean, thereÓs a reason for rules; and thatÓs all weÓre saying, you know. ItÓs not a question of whatÓs nice and right, and what should be, and whoÓs the good guy, whoÓs the bad guy. Your rules specify the requirements, they werenÓt followed. Thank you. FUJIKAWA:Thank you. So if thereÓs no other questions, Commissioners? You want to make a motion? KUBOTA:Mr. Chairman, I move SMA 03-007, ApplicantÓs Motion to Dismiss Association of Apartment Owners of Sea Village, Inc. Petition for Standing be denied. FUJIKAWA:Do I hear a second? 12 GRAHAM:I second. FUJIKAWA:It has been moved by Commissioner Kubota and seconded b Commissioner Graham that the application for the contested hearing be denied, correction, be accepted, dismissed, sorry. So do I have any other question? For clarity? OÓTOOLE:Right, yeah, the Motion to Dismiss be denied. FUJIKAWA:The Motion to Dismiss be denied. Any question? Staff? HAYASHI:Just to be clear -. KUBOTA:Shall I re-state my motion? HAYASHI:I think I got your motion. Perhaps, the Chair sort of confused me. But I think the motion is to dismiss the ApplicantÓs motion that basically, to dismiss Mr. VitousekÓs motion that was submitted today. Is that correct? OÓTOOLE:Be denied. HAYASHI:Be denied. Okay. With that, IÓll take the roll call. Commissioner Kubota? KUBOTA:Now, I want to make my motion very clear again. The motion is for SMA 03-007, the ApplicantÓs Motion to Dismiss the Association of Apartment Owners of Sea Village, Inc.Ós Petition for Standing be denied. FUJIKAWA:Is it clear? The seconder? GRAHAM:Yes. FUJIKAWA:Okay. Commissioners, any question? Go ahead, staff. HAYASHI:Commissioner Kubota? KUBOTA:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Commissioner Smith? SMITH:No. 13 HAYASHI:Commissioner Thibadeau? THIBADEAU:Aye. HAYASHI:And Chair Fujikawa? FUJIKAWA:Aye. HAYASHI:Mr. Chair, four ayes, one no. Motion does not carry. FUJIKAWA:Okay. So, Mrs. Kubota, your motion has been accepted o part. KUBOTA:It has not been -. OÓTOOLE:No, it didnÓt have enough votes. FUJIKAWA:We didnÓt have enough votes. So what do we do, the same thing -? YUEN:I suggest go on and take a vote on the petition for standin where that comes out. KUBOTA:Petition for standing? YUEN:ThatÓs what you have on the agenda. FUJIKAWA:Yeah. VITOUSEK:Yeah, I think, Mr. Yuen is right. I think, you know, thereÓs a Petition for Standing that was filed; and the Commission has to vote on whether or not to accept it or deny it, the application. And we filed the Motion to Dismiss it which, I guess, didnÓt, you know, itÓs kanalua -. FUJIKAWA:Right. So we have a motion for -. VITOUSEK:But the Commission still have to decide whether or not deny the Petition for Standing. FUJIKAWA:Right. YUEN:And the Commissioners can vote whichever way they want on whether to grant or deny the Petition for Standing, based on perhaps even the same reasons that were discussed on the Motion to Dismiss. FUJIKAWA:Okay. Do we have a motion, Commissioners? 14 KUBOTA:Well, I guess -. Wait now. Well, I move the Petition fo filed by the Owners of Sea Village, Inc. for SMA 03-007 be grant FUJIKAWA:Is there a second? GRAHAM:IÓll second. FUJIKAWA:It has been moved by Commissioner Kubota that the standing be accepted and approved, seconded by Commissioner Graham. Any que staff? HAYASHI:Commissioner Kubota? KUBOTA:Aye. HAYASHI:Commissioner Graham GRAHAM:Aye. HAYASHI:Commissioner Smith? SMITH:No. HAYASHI:Commissioner Thibadeau? THIBADEAU:Aye. HAYASHI:And Chair Fujikawa? FUJIKAWA:Aye. HAYASHI:Mr. Chair, again, motion does not carry, four to one. FUJIKAWA:Not carried again. So what do you do? OÓTOOLE:Well, I donÓt know if we want to continue again or -. FUJIKAWA:Well, I guess, weÓre not here again. So, Commissioners, what shall we do? TSUKAZAKI:Excuse me, Mr. Chairman. FUJIKAWA:Go ahead, Mr. Tsukazaki. TSUKAZAKI:If there is a possibility that youÓll be having more members this afternoon -. 15 FUJIKAWA:We donÓt know. TSUKAZAKI:I would like to move to, for a recess so that we could after lunch and see if you have any other members. FUJIKAWA:Mr. Vitousek, you feel the same thing? VITOUSEK:Well, you know, I donÓt think thereÓs a Contested Case right now. So, you know, we would, weÓd just proceed. And, you know, if so back, weÓll have to make the whole argument again in front of them, so -. FUJIKAWA:Sure. So itÓs up to the Commissioners. What do you want to do? KUBOTA:So, please, please tell me now where we are. If we just proceed, as suggested by Mr. Vitousek, there is no standing granted so we donÓt have a contested case? FUJIKAWA:ThatÓs right. KUBOTA:I mean, talk about convoluting the procedures -. YUEN:Well, as I see it, the Commission has the following choices event, I am hungry -. KUBOTA:YouÓre a what? YUEN:I am hungry. OÓTOOLE:Lunch, he wants lunch. YUEN:The Commission can go on and hear this matter as an ordinary agenda item and make a decision today, having denied the Contested Case. The Commission can take it up and not decide; or the Commission can defer right now completely for the rest of the day; or the Commission could take up Mr. TsukazakiÓs suggestion to break for lunch. And if another member or members, I think Mr., Chair Galdones is not coming, apparently, today. If the Commission wants to reconsider the Petition for Standing in a Contested Case with another member present, the Commission also can do that. Those are the choices. FUJIKAWA:We donÓt know if Commissioner Springer is coming back. HAYASHI:We tried calling her home and her daughter doesnÓt know where she is, so we donÓt whether sheÓs coming back today or not. 16 FUJIKAWA:Yeah, all I was told was that sheÓll be leaving to meet her, I donÓt know, someone, a guest. HAYASHI:So itÓs quite possible that she will not be here this afternoon. FUJIKAWA:ThatÓs true. WeÓll be here all night. So itÓs up to you, Commissioners. What you want to do? Can we continue? Commissioner Graham? GRAHAM:IÓll just speak off the top of my head and primarily spea Mr. Vitousek at this point. We had a problem with quorum earlier today on a different agenda item. Even though at this stage of having read the material and all, I think IÓm inclined towards supportive of the SMA amendment. However, given the procedural issues weÓre dealing with now on the contested case and all, I donÓt think I would likely go forward with a positive vote based on the kind of procedural issues weÓre dealing with now. So I think it would be well to wait, and maybe we should stop by breaking for lunch. VITOUSEK:Thank you, Commissioner Graham. I think, you know, I certainly have no objection to breaking for lunch. And, you know, a lot can happen over lunch in terms of discussions or in terms of another Commissioner coming; and I think thatÓs very reasonable. I have no objections to that whatsoever. FUJIKAWA:Can we also continue to the next hearing, too? YUEN:You can do anything you want. FUJIKAWA:We can do anything we want. We can also continue to the next hearing if we feel strongly about it. KUBOTA:He gave us that option, didnÓt he -? FUJIKAWA:Yeah. KUBOTA:To continue till the next meeting? FUJIKAWA:Hopefully thereÓs more body. KUBOTA:Mr. Chairman, IÓd like to move -. OÓTOOLE:No, but there might be public testimony. FUJIKAWA:Is there? No one signed in. OÓTOOLE:Oh, no one signed in for public testimony? 17 FUJIKAWA:No one in signed for public testimony. Go ahead, Commissioner Kubota. KUBOTA:IÓd like to move, every day is so iffy, if they come back and if not, and since we -. BUSCEMI:IÓm Charles Buscemi and IÓd like to testify -. FUJIKAWA:Must we hear the testifier first? OÓTOOLE:Yeah, if youÓre intending to continue the hearing I think you should, you know, let the public testify. KUBOTA:Would you like me to move? My motion was to postpone it to the next meeting, to continue it to the next meeting rather than coming back after lunch, hoping that another Commissioner would be around. FUJIKAWA:With that in mind with the idea that itÓs going to be continued one way or the other, we do have a testifier in the audience that would like to testify. BUSCEMI:I wouldnÓt mind waiting till after lunch. FUJIKAWA:Well, weÓre hearing a motion right now so -. BUSCEMI:Well, IÓm ready to testify any time you want me to. FUJIKAWA:Yeah, you may step forward, Charlie. Is that your name BUSCEMI:Buscemi. FUJIKAWA:Buscemi, getting good. Okay. Kindly raise your right you swear or affirm to tell the truth on this matter now before the HawaiÒi County Planning Commission? BUSCEMI:I do. FUJIKAWA:State your name and address. BUSCEMI:Charles Buscemi, 75-6002 Alii Drive, Kailua-Kona. Thank Commission members, for allowing me to speak with you today. I hope IÓm not at a disadvantage because of our stomachs; and IÓll try and keep my comments brief. Last th time I appeared before you on September 11, I was joined by Mr. Haney and Ms. Nagai and we had some concerns about driveway, another driveway access to the project, and of a potential gravesite on the project site, and also about problems with the application. At that time we asked that you deny the application. 18 IÓm here today because I understand this may be our last chance for public input. And IÓd like to bring to your attention three potential conditions that IÓd like, that I would like to ask you to add on to the Soto SMA application and to any future Planning Department permit applications. IÓm here today representing the owners of about 50 single-family homes and condominiums adjoining, abutting the Soto property. Altogether there are nearly 100 owners, so itÓs not just me that is talking to you today. I apologize for the package that I submitted to you this morning having 30 or 40 pages. In fact, it turns out that about 35 of those are letters that I received over the past several weeks from new members, new Sea Village members and new single-family owners in the area tha represent them. ThereÓs also three letters there, two of them I hope that you received earlier by fax. One is a new letter that you have not seen yet and itÓs from Sun Terra; and IÓll talk about that later. Lastly is a short description of what IÓd like to talk to you about today called conditions. The first of the three conditions is probably the simplest one to talk about. It concerns the artificial beach that was submitted in the original SMA application. The last time we th spoke to you on September 11 we described environmental concerns about the artificial beach; and Mr. Mooers, Mr. SotoÓs consultant, testified to you that the beach was actually just contained in earlier plans and that was no longer being considered. We respectfully request that as a condition of SMA permit approval and any subsequent Planning Department permit approvals that the artificial beach be prohibited. Since the beach is no longer planned by Mr. Soto, we doubt that this condition would have any concern to him. Moving on to the second condition, we request that a shoreline setback of 40 feet be added as a condition to this project. Due to the unique configuration and the small size of the parcel, we understand that Mr. Soto intends to declare hardship and asked the Planning Commission to request that you grant him a 20-foot shoreline setback rather than the normal 40-foot shoreline setback. This is new information for me. It is not included in the application that Mr. Soto gave to the Commission. IÓm not sure if youÓre aware of it yet. IÓm here to give you our view of why SotoÓs project does not qualify for the hardship case. There are four reasons. The first two reasons are contained in Rule 8 of the Planning Commission Rules. The Planning Commission Rule 8 states that a 40-foot setback can be waived if Ðit deprives the applicant of reasonable use of the land.Ñ We believe that a 40-foot setback does not deprive Mr. Soto of reasonable use of his land. It may deprive him of the most profitable use of his land. It may deprive him of his desired use of the land, but it does not deprive him of a reasonable use of the land. For example, Mr. Soto is proposing a 12-unit condominium complex which will b and would compose four buildings, each with three stories. That If the last of the four buildings were not part of the project, the Soto condominium project will be nine units and it would have no need to encroach within 40 feet of the shoreline. 19 Alternatively, if Mr. Soto wants to keep the maximum 12 units, h building by just five feet. Four buildings times five feet each would be over a 20-foot reduction in the total length of the building. Our contention is that removing five feet from each unit, from the floor space of each unit, does not depr Ðreasonable use of the land.Ñ The buildable area of this parcel is between 40 and 52 percent, depending on side-yard widths that are used. Just this morning it was faxed to me the latest Planning Department calculations. I see the map of the Soto project is gone. But if you can look here, the ocean, makai side is at the bottom of the page. The Parcel No. 12 is a road easement, it is not Alii Drive. ItÓs a road easement only that fronts the mauka side of Mr. SotoÓs parcel. The calculations that were done were done, that were done originally here by the Planning Commission, and IÓm not sure if theyÓre final or just first a shot, but it includes a 20-foot setback from Parcel 12. That, I guess, would be normally considered a typical setback form the street. Well, in fact, Parcel 12 is a 25-foot wide roadway easement already. It is not allowed to be built on, itÓs a non-buildable parcel. On the opposite side of Parcel 12 is the Sun Terra Long House office, thatÓll be the closest property, the closest building to Mr. SotoÓs project on the mauka side of his land. So we already have a condition where Parcel 12 creates at least a 25-foot buffer between Mr. SotoÓs neighbor in the Sun Terra property. In order to get a less than 50 percent buildable area, one technique is to use the 20-foot street setback abutting Parcel 12. While, this seems redundant to us because it would, in fact, create a 45- to 50-foot buffer on the mauka side of Mr. SotoÓs property if you include the 25-foot non-buildable road easement of Parcel 12. We have a very unusual circumstance here of Mr. SotoÓs property having a 50-foot buffer from the nearest building on the mauka side but only a 20-foot shoreline setback. It seems to us that in order to keep with Rule 8, we ought to be interested in keeping a 40- foot shoreline setback and having a narrower setback on the mauka side. ThereÓs plenty of room there for variances on the mauka setbacks so that we donÓt need to encroach on the shoreline. I spoke with Corey Foulk, Mr. SotoÓs architect, he was very willing to show us the viewplanes for the project, and I thank him for his help. I believe we discussed this at the meeting or perhaps in a subsequent telephone conversation about how side-yard variances could give Mr. Soto a 50 percent buildable area. He said, I believe his idea is that thatÓs irrelevant because with a 3-1/2 story building, 14-foot side-yard should be used. What it entailed here is that the owner of a single-family home using 10-foot side- backs on Mr. SotoÓs property would have his 50 percent buildable area and would not be able to ask for a 20-foot shoreline setback. But because Mr. Soto has a 3-1/2 story building and is using wider side-yard setbacks, his buildable area comes out less than 50 percent. 20 Considering the intent of the Planning Commission Rules on shoreline impact, it would seem to us that itÓs illogical to allow a 3-1/2 story building within 20 feet of the shoreline when you wouldnÓt make that same allowance for a single-family h Now the variance of the shoreline setback is just one alternative that could be considered in order to increase buildable area for Mr. Soto. And Rule 8 states that Ðother alternatives should be considered,Ñ and that includes besides reducing shoreline setback. The question is, ÐAre there other alternatives that could be considered to increase buildable area for Mr. Soto?Ñ The answer is, ÐYes, there are.Ñ As I said to you earlier, the unusual land-lock configuration of the property actually runs itself to a much better setback variance on the mauka side and would still create at least a 25-foot buffer from the Sun Terra building on Alii Drive. Also, some minor variances for side-yard setbacks would give Mr. 50 percent buildable area. One of the letters that you have is from Mr. Haney, he used the Muncy Plot Program which he got on the internet. He went back and redid all the other original calculations that the Planning Commission has to see. Whether or not he thought this program could be used, he came up with all this, basically the same calculations that the Planning Commission had in the first case. His letter says that with the 10-foot side-yards rather than 14-foot, Mr. SotoÓs buildable area is greater than 50 percent. So there are plenty of alternatives for variances of setbacks; and it would seem like the worst one in this case is a shoreline variance. Rule 8 also states that we should seek alternatives best, the alternative which best preserves shoreline open space and reduces tsunami flood risk. Well, part of the reason that the Applicant is having a problem with the buildable area is that the shoreline has eroded significantly since the last time the certified shoreline survey was done. The original SMA application showed a 40-foot setback. Mr. Soto is now asking for a 20- foot setback in part because the new certified shoreline has eroded so much that itÓs basically right up against the property. We would like to ask you if it is logical to grant a waiver of the normal 40-foot setback at the shoreline in a location where the shoreline is already known to be eroding rapidly. Finally, on the flooding issue, Mr. SotoÓs property is lower lying than surrounding properties and neighbors in the area know that it has had historic flooding problems. During Hurricane Iniki, the storm surge reached half-way up the property to Alii Drive. Mr. SotoÓs property, heÓs planning on having underground parking. Well, I would ask you what happens the next time we have a storm surge like that? ThereÓs going to be all kinds of automobile fluids swept out to sea, hopefully no automobiles themselves. Rule 8 states clearly that erosion and flooding problems must be considered when reducing the shoreline setback. Finally, in regards to the shoreline setback, I spoke with Dr. Paul Rosendahl yesterday. HeÓs an architect. He and Dr. Rechtman, who is Mr. SotoÓs architect, interviewed Ms. Nagai last weekend at her home on Alii Drive. I spoke with Mr. Rosendahl yesterday, and he said that Ms. Nagai related to the two architects, Mr. Soto and himself, 21 that her cousin, also, remembers and corroborates her story about the gravesites being on SotoÓs property. Ms. Nagai and the two architects visited the gravesite area. I understand that Mr. SotoÓs consultantsÓ concerns that itÓs possible that the gravesites have already been moved out of there because of the extensive grading but, in fact, the location that Ms. Nagai took the archaeologists has not been graded. ItÓs, in fact, in the zone near the shoreline, and is probably between the 20-foot and 40-foot shoreline setback. Now thereÓs no way of knowing exactly where the gravesite is unless we do some trenching or some investigation. But, at this point, it appears that the gravesite is located within the 40-foot shoreline setback area. In somewhere regarding the shoreline setback, we believe that reducing the shoreline setback is the worst alternative to increasing buildable, increasing buildable area for this project. It decreases shoreline open space, it increases tsunami and flood risk, and it also increases the risk that an ancient gravesite will be disrupted. There are other more practicable ways to increase the buildable Rule 8 says that we should take those into consideration. We respectfully request that the normal 40-foot shoreline setback be attached as a condition for approval of the SMA permit application and any further Planning Department permits. IÓd like to finish up with a little bit more about the driveway situation. I know you heard plenty about it last time, but there is something new there. You know that there currently is a16-foot wide easement. The DPW had sent a letter to the Planning Commission on th June 15 recommending at least a 20-foot driveway, and a 24-foot driveway preferably, with pedestrian walkways and flares onto Alii Drive. All of Mr. SotoÓs neighbors, including we at Sea Village, Mr. Kniss to the north, Ms. Nagai on Alii Drive, and Sun Terra Pacific on the mauka side are extremely concerned about traffic and safety problems with this narrow driveway, as is the Kona Traffic Safety Committee. The Fire Department apparently prefers a 20-foot wide driveway but they have said that they might okay a 16-foot driveway if the building is fully sprinklered. That apparently is a concession that -. It would be harder to get fire trucks in with the driver as it is currently configured. I ask the Planning Commission what about other emergency vehicles, what about ambulances, delivery trucks, garbage trucks, etc. A 16-foot wide easement theoretically might only be a 12-foot wide driveway if the normal 2-foot setback from either side on the property lines is given to the driveway. We could have a situation where A 12-foot driveway Is being used to conduct two-way traffic in and out of the 12-unit complex, and a 12-foot wide driveway is all the access that ambulances and fire trucks and garbage trucks have. At the last hearing when I brought this up the first time Mr. Mooers testified to you that the applicant realizes that without the 20-foot easement that the project would probably not go forward. Mr. Soto has been attempting to get a 4-foot extension of his easement 22 from Sun Terra who owns the building at Alii Drive just to the east or mauka of Parcel 12 behind his plot. One of the letters in the package I gave you today is written by Sun TerraÓs secretary and general counsel to the president of the Sea Village Board; and it states that Sun Terra is very concerned, is very concerned that the above Soto project will significantly and inversely, adversely impact the use and enjoyment of our units. It goes on to say that itÓs not the development itself that they oppose but the development on a scale that materially diminishes the experiences for their owners and guests at Sea Village. I would read this Sun Terra letter to say that without significant reductions in the scale of the project, the Applicant is unlikely to get the extra 4-foot easement that heÓs trying to get from Sun Terra. We urge you to add a third condition that the Soto project follows the DPW recommendations for a 20-foot wide minimum-sized driveway, 24-foot preferable, that it conforms to the minimum safety standards that the DPW feels is necessary at this location, including pedestrian walkways and flares out to Alii Drive. So, in summary, please consider three conditions to the application for both the SMA permit and for future Planning Department permits: One, no artificial sand beach should be built on the property. Two, require the normal 40-foot shoreline setback. This is not a hardship case. There are plenty of other alternatives available to increasing property, buildable property area. And, finally, please add as a condition to follow the DPW recommendations that the driveway conform to minimum safety standards for a project of this size. Mahalo. FUJIKAWA:Any questions, Commissioners to the testifier? Commissioner Graham? GRAHAM:Mr. Buscemi, just a very brief specific question. Natura want to have uniformity in what we do, so I just wanted to ask you, and Norman could confirm if you had any question, this 40-foot shoreline setback is also what is enforced for the neighboring properties in the immediate vicinity? Is there nobody else there whoÓs working on a 20-foot only setback? IÓd like to know that ahead of time. BUSCEMI:I understand that Sea Village was built before this issue. And IÓm not sure about this but before this issue was a concern with the Planning Commission, that is quite possible that Sea Village is within 40 feet of the shoreline. Sea Village was built in 1975. To the north, Mr. KnissÓs property is a very small plot, less than 10,000 square feet. I believe he asked for a 20-foot shoreline setback because of the width of the property from the ocean is so narrow that thereÓs no reasonable way for him to build his house on that property without the 20-foot setback. In other words, thereÓs plenty of buildings when you drive down from Kailua, if you drive down Alii Drive, thereÓs plenty of houses that are right up on the shoreline. These are, generally, very shallow parcels that only come maybe 60 or 80 maybe feet inland from the ocean. ThereÓs no way that person could put a house on there if he has to conform to the 40-foot shoreline setback. 23 So I think Mr. Kniss also has a 20-foot shoreline setback. But in Mr. SotoÓs case, I donÓt see it indicated as the best possible way for him to get his buildable area. GRAHAM:I understand. Thank you. FUJIKAWA:Any other question, Commissioners to the testifier? If not, thank you very much. BUSCEMI:Could I make one comment, please, IÓm sorry. If thereÓs going to be some rebuttal, IÓd like to have a chance to come back up and speak again. Last time there was some concern about a tree that was cut down and Mr. Mooers rebutted my testimony, the meeting was adjourned; and I think afterwards we all found out that it was true that, what I had said, and I hadnÓt a chance to defend myself from that allegation. Thank you. FUJIKAWA:Thank you. Mr. Tsukazaki and Mr. Vitousek, you may com forward. Before we had the testifier come up, there was a motion that was introduced. I believe that was Commissioner Kubota. TSUKAZAKI:Excuse me, Mr. Chairman, just point of order. I wanted to ask for a clarification on what was offered as a motion and thatÓs, I want you to take this into account thatÓs why IÓm interrupting now. I think on the issue of whether my client is going to be allowed to intervene as a party and have standing, that both failed, right, for a lack of five votes? FUJIKAWA:Yes. TSUKAZAKI:If this case is continued or deferred, whatever word you want to use, itÓs important to me to know whether that procedural issue is also going to be continued or deferred to your next hearing. Because if itÓs not, if itÓs not included as part of the motion to defer, it would put my client in a difficult position of having to go, to appeal to Third Circuit Court, probably prior to your next meeting. You know, under the law, denials of standing can be appealed immediately. And so if the intent was to have that, to have consideration, further consideration of that at your next meeting then I would like that, to have a clear understanding of that. Thank you. KUBOTA:Mr. Chairman? FUJIKAWA:Commissioner Kubota? KUBOTA:IÓd like to clarify that as the maker of the motion. My motion was clearly to defer any more, continue this application to the next Kona meeting with the specific intent to revisit the question of standing. FUJIKAWA:Understand, Mr. Tsukazaki? 24 TSUKAZAKI:Thank you. FUJIKAWA:Okay. There was a motion, is that a motion, Mrs. Kubot KUBOTA:I beg your pardon? FUJIKAWA:ThatÓs a motion? KUBOTA:Yes, I so moved it. FUJIKAWA:Okay. Do I hear a second? GRAHAM:Yes. FUJIKAWA:Okay, Commissioner Graham. It has been moved by Commissioner Kubota and seconded by Commissioner Graham. Any question? SMITH:When would that next meeting take place? FUJIKAWA:Staff? HAYASHI:I believe the next Kona meeting, other than tomorrow, is th November 7. th FUJIKAWA:November 7 is the next Kona meeting. Okay. If thereÓs no other question, staff, go ahead with the roll call. HAYASHI:Commissioner Kubota? KUBOTA:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Commissioner Smith? SMITH:How did I vote? Aye. HAYASHI:Commissioner Thibadeau? THIBADEAU:Aye. HAYASHI:And Chair Fujikawa? FUJIKAWA:Aye. 25 HAYASHI:Mr. Chair, motion carries. FUJIKAWA:Motion carries to carry it to the next meeting in Kona, th November 7. Thank you. The discussion ended at 1:17 p.m. Respectfully submitted, Sharon M. Nomura, Secretary 26