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HomeMy WebLinkAbout2003-10-02 TCLIFTO PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT OCTOBER 2, 2003 A regularly advertised public hearing on the applications of CLIFTOÓS KONA COAST, LLC (REZ 03-010/SMA 03-005) was called to order at 9:08 a.m. in the the Ohana Keauhou Beach Resort, Kahaluu Ballroom, 78-6740 Alii Drive, Keau 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 16 people from the public in attendance. APPLICANT: CLIFTO'S KONA COAST, LLC (REZ 03-010/SMA 03-005) Continued hearing on the following applications: a)Change of Zone from General Industrial 3-acre (MG-3a) to Project District for 83 acres of land. b)Special Management Area Use Permit to allow the development of a commercial Î residential complex consisting of offices, retail uses, multi-family housing, facilities for transient accommodations, and related improvements. The property is located along the west (makai) side of Queen Kaahumanu Highway (State Highway 19), approximately 2,100 feet south of the Queen Kaahumanu Highway Î nd NELHA Access Road, Ooma 2, North Kona, Hawaii, TMK: 7-3-9:22. FUJIKAWA:First on the agenda, the applicant is CliftoÓs Kona Coast, LLC. ItÓs a continued hearing of Change of Zone from General Industrial 3-acre (MG-3a) to Project District for 83 acres of land; and Item b) Special Management Area Use Permit to allow the development of a commercial-residential complex consisting of offices, retail uses, multi-family housing, facilities for transient accommodati improvements. Staff, you may proceed. HAYASHI:Thank you, Mr. Chair and Members of the Commission, good morning. The CliftoÓs application has been heard on two previous occasions, first, on stth August 1, then it was continued on to September 11, and now continued to today. EXHIBIT A Just as a matter of brief orientation, again, if I may direct your attention to the presentation map on the wall, this would be the overall location plan for the Kona area. The subject property is situated here along the makai side of Queen Kaahumanu Highway, indicated in this blue shaded area and consisting of 83 acres. In the immediate area are the Kohanaiki property which youÓll be hearing tomorrow. We have the Natural Energy Laboratory of HawaiiÓs project in this blue shaded area and the Kona International Airport. The SMA line is located here along Highway. And as the Chair had read, the Applicant is requesting a Change of Zone for 83 acres from General Industrial-3 acres to a Project District. Also requested is a Special Management Area Use Permit to allow certain types of uses within the project area. The Applicant intends to have some commercial uses generally in this location; and this particular location is in the center of the project. TheyÓre also proposing to have approximately 240 multiple residential units t and here. This would be along the northern side of the subject project. Also proposed are approximately 400 hotel units; and that would be located in this general location. The Planning Director is recommending approval of the Change of Zone from MG-3a to a Project District, subject to several conditions. As far as the SMA Use Permit is concerned, the Director is recommending that we defer, that the Commission defer action on the SMA Use Permit until the ordinance is adopted by the County Council. Are there any questions at this time? FUJIKAWA:Any questions, Commissioners, to the staff? Go ahead, Commissioner Graham. GRAHAM:IÓm wondering -. As far as the area immediately on the K Village side of the Kohanaiki parcel, itÓs all green up there. There are other applications going on with the State Land Use. And IÓd like, I believe, could you just point out what else is being proposed in that area? HAYASHI:You mean this general location here where thereÓs -? GRAHAM:Yeah, and going back towards Honokohau and all. HAYASHI:Oh, okay. First of all, we do have a, well, recently th Council adopted a Change of Zone for TSA for a Mixed Commercial Use District along, well, this would be the expansion of the existing Kaloko Industrial Subdivision. Adjacent to that in this green-shaded area, the State Land Use Commission recently 2 approved a reclassification from the Conservation to the Urban District for properties owned by Lanihau Properties; and this would be, again, also, for some Mixed Industrial Commercial Uses. GRAHAM:Thank you. FUJIKAWA:Is there any other question from Commissioners to the staff? Go ahead, Commissioner Kubota. KUBOTA:Thank you, Mr. Chairman. I have a question on procedural procedure of this SMA Permit being -. YUEN:Oh, youÓre there, sorry. FUJIKAWA:Go ahead. KUBOTA:Go ahead? FUJIKAWA:Yeah. KUBOTA:I thought maybe you were trying to play, run away from my question. IÓm questioning your recommendation to defer action on the SMA Use Permit application. In my five years as a Commissioner, weÓve processed both Change of Zone and SMA together concurrently. What is the rationale for this deferment? The Planning Director or the Planning Department does put out in the recommendation some rationale and I think theyÓre sound. But I feel that every one of those points could be relevant to all others that weÓve processed. So my question is why are we deviating from the norm on this particular one? It seems highly unusual. And I would like an explanation, besides the rationale here, because I donÓt think this rationale is any different. HAYASHI:I think itÓs, IÓll defer the question to the Director. I think he can more adequately explain the rationale for what is being proposed. KUBOTA:Thank you. FUJIKAWA:Would the Director Chris Yuen respond to the question? YUEN:Starting with the things that are, IÓll elaborate a little whatÓs written there. The planning, the SMA Permit has to be consistent with the zoning but processing can go concurrently. It doesnÓt have to go concurrently. So you can have a Change of Zone being processed at the same time as a SMA, but SMA. In this particular case, itÓs a large project that is still extremely unplanned as far as what the final outcome will look like. If the Change of Zone goes through a Project District, we have, the project could end up as a big box commercial center; the project could end up as an airport-oriented hotel; it could end up as a purely residential with up to 240 units. You could end up with any combination of those el 3 The Applicant is far from being ready to proceed and build, does not have firm site plans, construction plans or a development scenario that is very set. The County Council may make substantial changes to the ordinance as presented here; and I think itÓd be better to wait on making the decision until we have the ordinance in place. If the ordinance is passed in a way thatÓs substantially different than what the County Council proposes, I mean, IÓm sorry, if the County Council passes the ordinance in a way thatÓs substantially different than what the Planning Commission passes or expects it to pass, then we would, and we pass the SMA Permit the same time, then we would have, we rework the SMA Permit. I think if youÓll look at, there are a number of projects that have gone through a concurrent SMA Permit and zoning changes. If you look at those, I think that they were, the most recent one we looked at which weÓre still holding at the Planning Commission level is the Pepeekeo rezoning. And if, I think of the, the examples that I can think of are much simpler and much more set as to what the outcome would be of the rezoning. In that one, for example, the outcome would be two residential, the uncertain part of it, the uncertain part of the rezoning there is two commercial, I mean, two residential lots; and if the rezoning went through, they would have two commercial properties. So we wrote up the, we supported having the SMA Permit go, be granted subject to the rezoning taking place, and the rezoning would not take, the SMA Permit would not take effect for those two lots if the rezoning didnÓt take effect. But in that case we have something that we are very clear on what would happen and not happen in the rezoning at the County Council and how it would affect the SMA Permit. I donÓt have that confidence here. FUJIKAWA:Okay, is there any other question, Commissioners, to the staff or the Director? KUBOTA:Mr. Chairman? FUJIKAWA:Go ahead, Commissioner Kubota. KUBOTA:IÓm not done yet. IÓm still not satisfied with the explanation because I feel everything that our Planning Director has brought forth this morning is true and it applies to every other application that weÓve processed so far. And if those are the reasons for the deferment, then I think, I feel as though, and IÓm just saying this, I donÓt mean to be argumentative because I think you ought to know better than I. But itÓs just so very strange because this is the first time that I have come across a recommendation for deferment on the Special Management Use Permit, the SMA Perm processed concurrently. And I thought maybe there were other reasons other than the obvious that youÓve just related, which is in your Background Report, and I understand them clearly. But there has to be something different to be treated differently; and I want to know what that different variable is; and IÓm not getting it from your answer. So -. YUEN:I donÓt think youÓll be able, if you look back at the rezonings since IÓve been Director 2-1/2 years, I donÓt think youÓll be able to find a rezoning 4 accompanied by an SMA Permit where a rezoning was as wide open i as this Project District rezoning. You know, the, IÓm quite certain of that and that difference. I have to say that I think we should process things and look at things differently when you have a different kind of project. You canÓt take every project and take it through the same way. KUBOTA:So your basic, your basic reason is that the ideas are unformed at this point for this project? YUEN:The final outcome of what the project is likely to look like is very unformed. KUBOTA:WerenÓt they true of others? I mean -. YUEN:If it could be -. KUBOTA:The developers, excuse me, the developers could come in w ideas but theyÓre still in the nebulous stage where itÓs their idea and itÓs not cemented in concrete, yet, at that point. So it could change, it could fluctuate. And how is that different from this one? They come in with a set of ideas, as ideas that may seem to be; and, yet, they donÓt seem to me, at this point, to be any different than the ones that were brought up by other applications. YUEN:If you would, if you can give me an example of what project youÓre thinking of was treated differently -. KUBOTA:Well, -. YUEN:I could discuss that. I think I tried to give an example of the most recent one that involved a concurrent processing, which would be the Pepeekeo rezoning, quite a small-scale rezoning. KUBOTA:I canÓt think of one immediately. But, you know, in the years that IÓve been processing these applications, I find that these applicants come up with ideas that they want to develop on their property and, yet, it may or may not be the final product; and, yet, we do process the SMAs concurrently. And we have no guarantee from the applicants that it shall be as they submitted to us. And it may change at the Council level; and if it does, and the SMA needs to be changed, well, so be it. So, you know, I just canÓt, I just canÓt see the big deal in this one versus any other applications that come in. And IÓm really not convinced that these are the reasons as printed here that are the foundation for your recommendation for deferral. I may have to listen to more and I acquiesce at this point to what youÓre saying. But IÓm still not fully convinced that the reasons are valid enough to ask for a deferment at this point. FUJIKAWA:Is there any other question? 5 SPRINGER:Mr. Chair? FUJIKAWA:Commissioner Springer? SPRINGER:Thank you, Mr. Chair. If I may comment on the discussion. Past practice is not always best practice. And the Planning Director exercising discretion asking for a sequential approach to these requests rather than a concurrent approach, I believe, has merit for the reasons that he has cited, given the scale and scope of the two proposals before us. FUJIKAWA:Thank you. Commissioner Graham? GRAHAM:I wasnÓt sure if itÓs the time to do this discussion but it seems like itÓs what weÓre discussing right now. My sense is both for the benefit of the Commission and particularly for the benefit of the public. If weÓre going to be granting an SMA Permit which has a number of considerations and concerns that one considers when doing an SMA Permit, weÓd like to have the public hear what the project is truly going to be so that their testimony can be related to what the project is truly going to be. And I think what the Planning Director is saying is we donÓt really know what the final project is going to be, so the public doesnÓt have an opportunity if we do a SMA right now to comment on what the final project would be. And then in other instances where a project has changed markedly in the past, one example might be the KkiÒo project where it was originally scheduled to be an intermediate resort area with a couple of hotels and was granted an SMA Permit that the people came and testified about back in the late Ò80s. That project is very much turned around and somewhat reduced in scale; and the Planning Director Goldstein determined that it was not necessary to do a new SMA Permit just because of her feeling that the impacts would lesser. But, still, what that meant was the public never had a chance to come and testify on the actual project thatÓs been built at the KkiÒo as far as the SMA concerns. And, so, it sort of parallels this situation here. If we approved an SMA of something which is not particularly close to whatÓs going to be finally approved, youÓre always going to have the public not really dealing with the true information at the SMA Permit level. So thatÓs my feeling on it. KUBOTA:I, I -. FUJIKAWA:Go head, Commissioner. KUBOTA:Mr. Chairman, I guess what I cannot, what I cannot accept is that we sit here and say that this is not whatÓs truly going to happen or what truly is going to happen. I mean, the Applicant submitted something that was a pl we sit here and say this is not going to happen? I mean, isnÓt that, in essence, what weÓre saying, because we both think this is whatÓs going to happen, the SMA Permit doesnÓt reflect the use? FUJIKAWA:Director Yuen? 6 YUEN:If I can compare with some, most of the SMAs that we looked most of the SMAs that we looked at and approved, we have a very clear project in hand that people are going to do. We could, a little later this afternoon weÓre looking at the Soto condominium on Alii Drive. We have an exact site plan, num of units; and this is whatÓs presented for approval. This one is still very wide open. The Applicant has agreed that the property is for sale, theyÓre looking for an investor, they donÓt have the wherewithal to do the project at this time. It is quite a bit different situation than -. And, actually, I think they are a relatively small number of, if weÓre talking about past practices, IÓm trying to jog my memory, but I think weÓre talking about a relatively small number of projects that have had a concurrent rezoning and SMA application in a very, and most of those were quite small scale. We should be careful about looking at the rules that we, or the practices that we have for something that may be a 6-unit condominium, a 10-unit residential subdivision versus something that does involve a, it is a major Change of Zone and a major application. And those are the reasons why IÓm making those recommendations. I had thought, actually, long and hard about recommending denial of the SMA and having them come back completely. ItÓs not my intention to have the SMA come back to the Planning Commission after the Council acts on the rezoning if the Planning Commission agrees with going through this procedure and deferring it, but to at least see how the rezoning comes out of the Council if weÓre acting on the SMA Permit. KUBOTA:Okay. FUJIKAWA:Any other question, Commissioners, to the Director or the staff? If not -. Before I call the Applicant or the representative, any one of you in the audience who would like to testify, can you raise your hand so the staff could give you a form to fill? If not, will the Applicant or his representative please step forward? HAYASHI:Mr. Chair, Mr. Hauanio in the back already submitted his -. FUJIKAWA:He already did, right. I do have it. Thank you. Okay, can you raise your right hand? Do you swear or affirm to tell the truth on this matter now before the Hawaii Planning Commission? FUKE:I do. FUJIKAWA:State your name and your address, please? FUKE:Mr. Chairman, my name is Sidney Fuke. IÓm a Planning Consultant. My business address is 100 Pauahi Street in Hilo, H FUJIKAWA:You may proceed. FUKE:Well, as your staff had pointed out, this is really like a continued hearing on both of the applications. And at the last Planning Commission meeting, at the 7 request of the Planning Director, this matter was continued to enable the Department to evaluate any forthcoming comments from the Department of Transportation. I believe their comments are in and pretty much, you know, weÓve given our presentation twice, so -. ThereÓs a lot of things that I would like to respond, you know, in relation to some of the discourse that went on earlier. But IÓd like to withhold the, you know, with the ChairÓs indulgence, any comments on that pending the public testimony portion and when the Commission is ready to decide on the Project District and the SMA recommendations offered by the Director. FUJIKAWA:Okay. Is there any question, Commissioners, to the ApplicantÓs representative? Okay, if not, we do have a testifier that would like to say something. You may sit on the side and -. Will the testifier please come f You may correct me. IÓm sorry. HAUANIO:No problem, Mr. Chair. FUJIKAWA:Go ahead. State your name and your address, please? HAUANIO:Aloha, Mr. Chair; aloha -. FUJIKAWA:After you give your name and address, I would like to swear you in. HAUANIO:Mahalo. Aloha, Mr. Chair and Commissioners. My name is Lunakanawai Hauanio. My mailing address, P.O. Box 871, Capt. Cook, Hawaii. FUJIKAWA:Could you raise your right hand, please. Do you swear to tell, affirm to tell the truth on this matter now before the Hawaii County Planning Commission? HAUANIO:Aye. FUJIKAWA:Thank you. You may proceed. HAUANIO:Thank you, Mr. Chair. IÓd like to express my testimony today to reflect the two agendized items and that my testimony be reflected on both. I have in my possession this textbook, itÓs entitled ÐHawaii Revised StatutesÑ annotated Volume 15, and in this textbook thereÓs a State Constitution. And in the testimony, I mean, the discussion that was held by the Commissioners relating to Ms. KubotaÓs inquiry about why this particular project is being, appears to be, being treated differently, and I appreciate the DirectorÓs caution in moving forward with their, I guess, approval process. And IÓd like to turn to the text for the State Constitution and talk to you guys about Article IX, Section 6, and itÓs entitled ÐManagement of State Population Growth.Ñ As you can see on my, my request for testimony today is relevant to Article XII, Section 7. And I want to address first the first article that I mentioned and it states, ÐThe State and its political subdivisions, as provided by general law, shall plan and manage the growth 8 of the population to protect and preserve public health and welfare; except that each political subdivision, as provided by general law, may plan and manage the growth of its population in a more restrictive manner than the State.Ñ The Commissioners are not aware of, if IÓm not mistaken, in the SetoÓs, correction, CliftoÓs application, they had some analysis on traffic, analysis on environment, analys on historic sites. Well, let me read State Constitution Article XII, Section 7. It says, ÐThe State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupuaÒa tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.Ñ That particular statute or mandate, letÓs put it that way, I have a little problem with that. The problem is, you have in this Constitution, State Constitution, under Article I, Section 6; and it talks about the right to privacy. And it says, ÐThe right of the people to privacy is recognized and shall not be infringed without the showing of compelling state interest. The Legislature shall take affirmative steps to implement this right.Ñ The problem that I have in Article XII, Section 7 is this part that says, Ðreligious purposesÑ and the part that says, Ðsubject to the right of the State to regulate.Ñ I donÓt know any other religion that is so regulated by its State other than the Hawaiian people. Somehow, I donÓt know who the hell had that idea that allows the State to take an inventory of our familyÓs graves and put them out on display for public scrutiny, and itÓs said to meet an allowable practice for some 30 years in this planning process. IÓm here to complain, and my complaint is this: No more violation of our privacy rights. If you have any documentations referring to our familyÓs graves, our family sacred sites, IÓm complaining, you guys take Òem off of you guysÓ counters, off of you guys, what you call, public scrutiny. ÒCause I think everybody should start following the law like people Springer was saying. Things have been going wrong by just letting people from the outside come to our island and come up with ideas, and then when get rubber-stamped, and when get all of our families and friends in our community se people working on projects talking stink about people who was contesting the projects, till today they mad with each other. This is a real pilau process. This is not aloha. This is not HawaiÒi if the process, yesterday, continues. IÓd like to also complain to this Commission that in the State Constitution there is no mandate that says the State shall provide highways, the State shall provide parks, the State provide, what you call it, condominiums, the State shall provide golf course. It doesnÓt say any place in the State Constitution that the State shall or its subdivisions, political subdivisions. Nowhere in here says that you folks shall protect or shall have, you know, these things, other than Article XI, Section 10. It says ÐFarm and Home Ownership.Ñ It says ÐThe public lands shall be used for the development of farm and home ownership on as widespread a basis as possible, in accordance with procedures and limitations prescribed by law.Ñ See, itÓs limiting, yeah? It doesnÓt allow you to go bigger. I donÓt know, as what IÓm reading. 9 This other one it says over here under Article XI, Section 9. It says, ÐEach person has a right to a clean and healthy environment as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulations as provided by law.Ñ You know, itÓs limiting, you know, this kind of growth. ItÓs protecting whatÓs now there. Article XI, Section 7, ÐWater Resources,Ñ and it says, ÐThe State has an obligation to protect, control and regulate the use of HawaiiÓs water resources for the benefit of its people.Ñ Okay. ÐThe legislature shall provide for a water resources agency which, as provided by law, shall set overall water conservation, quality and use policies; define beneficial and reasonable use; protect ground and surface water resources, watersheds and natural stream environments; establish criteria for water use priorities while assuring appurtenant rights and existing correlative and riparian uses and establish procedures for regulating all use of HawaiiÓs water resources.Ñ You know, what we have here, we have to protect; and when we use, we got to make sure itÓs replenished. I donÓt know, all I see is IÓm looking at paren -, and practice, not what the Statute is saying we have to do -. IÓm going to talk a little bit about one fisherman Òcause in Article XI, Section 6, it talks about marine resources. This project fronting the coastline, not too far, they have this thing called Ðcumulative,Ñ yeah. The problem Hokulia had, one of the problem was they when clear too much land too fast. Well, letÓs look at whatÓs over there. Are we doing the same thing, are we clearing too much land too fast? You know, sometimes I think about my self interest and I try to put that on the side. So that, itÓs hard, yeah, because I fish, you know, I love eating fish. I hunt, I love catching, you know, food. In my back yard I get my farm, yeah, I love pick coffee. ItÓs good stress release. But when I go down here to this place, you try taste the water. The water no taste like the way it when taste before. Cumulative, yeah? All these things building, building, building, not meeting any of these numbers I just referred to. There are some explosions going on down there. All of a sudden, where I used to suck water out of the stone, no more, gone. Whenever we level off one parcel of land so we can build our project, what you do with the underground waters? ItÓs not coming out. Never need take water before Òcause we used to pound opihi, whatever, up and down over there. No need put water, you can just suck the rock, and people laugh when we say that. ThatÓs what we used to do, Òcause the water come right out of the rock. Now no can. We need to make that known, Òcause IÓm concerned about that coral reef, the habitat replenishment that we trying to accomplish and fishery replenish It says Article XI, Section 6, ÐThe State shall have the power to manage and control the marine, seabed and other resources located within the boundaries of the State, including the archipelagic waters of the State, and reserves to itself all such rights outside state boundaries not specifically limited by federal or international law. All fisheries in the sea 10 waters are of the State not included in any fish pond, artificial fish enclosure or state- licensed mariculture operation shall be free to public, subject to vested rights and the right of the State to regulate the same; provided that mariculture operations shall be established under guidelines enacted by the legislature, which shall the protect publicÓs use and enjoyment of the reefs. The State may condemn such vest use.Ñ See, the public right they talk about it says, Ðfish pondsÈpublicÈsubject to vested rights.Ñ ThatÓs all Hawaiian rights, to our fish, to our ponds. The State is regulating our rights to subsist. These projects, I donÓt know of one of these projects that they going not only help us protect our ponds, help us protect our quality of our resources, but, I guess itÓs Òcause long standing attitude, yeah? Though, I appreciate Mr. Yuen is going to take Òem back to County Council. Hopefully, we can redraft the whole Planning Commission process because I want a place where I can complain, I want a place where the Commissioners going to ta going call me in the next couple of weeks and tell me that this permission, and when the hearings going to be held to bring forth the people that has done me wrong. ThatÓs what IÓm looking for. IÓm not looking for this kind Contested Case s putting the burden on me. And the Ka PaÒakai case says, this is your mandate, this is governmentÓs mandate. You guys protect my rights, whatever those rights are. Finally, under Article XIV of the State Constitution, it talks about Code of Ethics. In the Hokulia case, we only could prove one, one corruption; thatÓs all we could prove, one. People on the take, okay? We have corruption in our Planning Department, big time, big time corruption. Question is proving it. So, hereÓs another one, I guess, note to the Commission. ÐThe people of Hawaii believe that public officers and employees must exhibit the highest standard of ethical conduct and that these standards come from the personal integrity of each individual in government. To keep faith with this belief, the legislature, each political subdivision and the constitutional convention shall adopt a code of ethics which shall apply to appointed and elected officers and employees of the State or the political subdivision, respectively, including members of the boards, commissions and other bodies. ÐEach code of ethics shall be administered by a separate ethics commission, except the code of ethics adopted by the constitutional convention which shall be administered by the state ethics commission. The members of ethics commission shall be prohibited from taking an active part in political management or in political campaigns. Ethics commissioners shall be selected in a matter which assures that independence and impartiality. 11 ÐEach code of ethics shall include, but not limited to, provisions on gifts, confidential information, use of position, contracts with government agencies, post-employment, financial disclosure and lobbyist registration and restriction. The financial disclosure provisions shall require all elected officers, all candidates for elective office and such appointed officers and employees as provided by law to make public financial disclosures. Other public officials having significant discretionary or physical powers as provided by law shall make confidential financial disclosures. All financial disclosure statements shall include, but not limited to, sources and amounts of income, business ownership, officer and director positions, ownership of real property, debts, creditor interests in insolvent businesses and the names of persons represented before governmen We only could prove one and weÓre working on the others. We want clean government, sick and tired of rubber stamping, people passing some shenanigans, going on behind the back doors of the community. So I said what I said. My father always tell me before I pau, kuka kuka, he said, if thereÓs anything that I said that I offended anyone in this room, ekalamai iaou. Mahalo. FUJIKAWA:Okay, thank you very much. Commissioners, you have any question to the testifier? Applicant representative, any question? None? If none, is there any other in the audience who would like to testify? None. Staff, you have any question or statement? HAYASHI:No questions. FUJIKAWA:Okay. Commissioners, I would like to make a motion to close the public hearing. Do I hear -? FUKE:Excuse me, Mr. Chairman. FUJIKAWA:We have a testifier? PUBLIC:IÓm here to testify on the Soto project? FUJIKAWA:Sorry? PUBLIC:The Soto project. FUJIKAWA:The Soto project? FUKE:ItÓs on the next application. HAYASHI:ThatÓs the next one. FUJIKAWA:ItÓs on the next agenda. 12 FUKE:Mr. Chairman, if I may like -. FUJIKAWA:Mr. Fuke. FUKE:As I, thank you very much. As I indicated earlier, I wanted to kind of defer making any comments relative to the discourse that occurred prior to the public testifier. But, if I may, IÓd like to, you know, use this opportunity -. FUJIKAWA:Go ahead. FUKE:I guess IÓd like to kind of preface the comment by noting t donÓt really relish having to take issue with the Planning Department; I think nobody wants to. Maybe thatÓs a reflection of the respect of the power of the office, but in many respects and, personally, thereÓs a lot of respect for the Director himself. But, however, in this particular instance, I must take issue because I think that the processing of this application has been highly unorthodox, have been very irregular. IÓd just kind of like to give you some background. When the Coa law was passed back in 1975, one of the provisions for the Coast under the Coastal Zone Management law, provided for like a concurrent processing of applications. The genesis behind that thought was that, the feeling was that, you know, the islands or the State was highly over-regulated but under-managed and, as a result, they came up with this concurrent processing. In my 25 years of dealing with this particular statute, there have been times when the SMA application and the zoning had not occurred concurrently; and that has always been at, as the Director has indicated, the ApplicantÓs choice. However, where the Applicant applies for both applications, as in this situation here, it has always been processed concurrently. The bifurcation of this process, like what, that is to say, like holding up this SMA and letting the zone change go through, has been recommended by the Department. From the ApplicantÓs standpoint, even like my evaluation, itÓs like this is the first time that it has happened. It has been done without any prior notice. ThereÓs no changes to the rules of the Planning Commission on this matter, which is to say that under what circumstances can an application where it had been filed for a dual application or multiple applications that the Commission or the Director can withhold one and not process another. I think that if there is going to be a system like that then the rule should clearly articulate that. Absent that, you know, you have rely on whatever has happened. Specifically, on this matter, too, like, you know, in addition, too, there has been no changes to the rules. Please understand that the department has had this application for well over six months and today is our third public hearing on this matter. If there was any indication that this item should be bifurcated, then the Applicant, out of due courtesy, should have been properly notified; and then maybe action can be taken accordingly. But to be saddled hearing after hearing with curve balls at the end to say like, weÓve got to 13 continue, weÓve got to continue, you know, for different reasons, to me it seems very highly irregular. The Planning DepartmentÓs position is that if the Council enacts the ordinance, that itÓs going to be different, it could be different for the SMA and so it really would necessitate the voidance of the permit. Well, that is true, that is true. But, again, every situation, if thatÓs the case, then what happens is that the Applicant has to come back again. If the, if whatever, if the Council, for example, if the Council passes the ordinance and they impose conditions that are substantially different than what has been represented here, what the Applicant can go through, vis-à-vis the SMA Permit, then obviously you have to go in for an amendment. On the other hand, if the County Council in its wisdom decides that the application should be denied, that is to say the zone change, then you donÓt have an SMA Permit. And thatÓs the way that an SMA Permit has always been structured in situations like this where you have the effective date of the SMA is the effective date of the zone change. So if donÓt get a zone change, then you wonÓt get a valid SMA, you donÓt have a valid SMA. If after the Council, letÓs assume positively that the Council passes the Project District ordinance; and if you need to have an amendment, then you go before the Planning Commission. If you donÓt need to have to go through, you know, amendment, then you just leave it and then you proceed based on the constraints thatÓs imposed on the Council, zone change conditions and/or the SMA co is more restrictive youÓd have to abide by. ItÓs the same way where you have the Land Use Commission and, also, like the County Zoning Code. If you have a restrictive condition that the Land Use Commission may impose over what the County requires, then you have to still comply. The DepartmentÓs position, so the question right now is, like, why do you necessarily have to mandate another round of hearing, another, you know, another opportunity for this matter to come before the same body on the fourth go-around The other point that was brought up and the reason was that it would not greatly inconvenience the Applicant. The Applicant strongly disagrees. It surely does, because otherwise we wouldnÓt be making this kind of position. But there is substantial costs associated with having to come before the Commission time after time, particularly when thereÓs very little public, you know, adverse public comments on that. You know, there are a few. But, you know, the Commissioners have seen a number of applications where youÓve had a whole wealth of, a whole litany of public testifiers coming before you that generate questions that must be answered. You know, the inconvenience comes not so much in terms of the costs that the Applicant has to withstand relative to having all these consultants coming in, but it also affects the cost relative to the delays in attracting interested investors, particularly in this climate when thereÓs so much anxiety over the status of permits. 14 The other point thatÓs brought up is that the Applicant is not ready to start the project, thereÓs no financing. ThatÓs true, thatÓs true. But I tell you, you ask every applicant that goes for an SMA Permit, you ask them if they have a construction rarely youÓll find an applicant ready to proceed once the SMA Permit is issued. The next applicant before you, you know, you have a conceptual drawing basically no different than what you have on the board there. And if you ask them, you have a construction plan? TheyÓre going to say no. More than likely theyÓll say no. Part of the reason why is that you donÓt what kinds of conditions may be imposed by the de Commission, which may force you to go back to the drawing boards and make some adjustments. If, for example like, you know, this project were three- or four-story high, like, you know, a 50-foot high building, for example, and the Commission requires as the Director is proposing that the height of the building not exceed 40 feet. Then youÓve got to go back to drawing board. You have to, you know, make some changes. But, alternatively, if you want to take the risk and prepare your construction plans, pay your architects, pay your engineers to do all of the structural and the civil evaluation to construct something predicated on a 50-foot high building and you got to make the changes, well, thatÓs all money down the drain. And, so, almost always, youÓll find situations where, and this is based on my 15 or 16 years of working with applicants, be it small or large, and thatÓs the situation. You, very rarely youÓll find someone coming in with construction plans at this level. And I think that part of the reason why is that, you know, thereÓs so much anxiety, more recently, you know, thereÓs so much anxiety, thereÓs so much, you know, controversy, thereÓs a lot of turmoil going on with the permitting system. And I cannot help but feel the way we are right now. I have a difficult time being in a position to advise clients like what is or what cannot be done, you know, just as a result of recent judicial decisions. And more than that, right now, if they ask me, can we or can we not do concurrent processing, IÓve got to tell them I donÓt know. The other question that was articulated over here is that what you see over there is probably maybe not what youÓre going to get. That is true, because we donÓt know what the conditions may come about. But, thatÓs why, you know, if yo conditions thatÓs been recommended by the Director for the Project District, you have all these envelopes that you have to kind of be, you have to massage the project. You have to massage the project to comport with it. Almost all the Project Districts, and thereÓs been a number of Project Districts that have been approved, youÓll find that they donÓt necessarily comport to exactly what you see over there. The most recent one I can think of which I was involved in is thwali project. The ManiniÒwali project, you know, right next to KkiÒo, you know, you were talking about a 174-acre area which is almost twice as large as this area. You talked about like a 900-room project, you talked about a golf course; and, today, we donÓt have that. 15 But in the process of approving the SMA and in the process of filing for the application, you know what we had to do? We had to come up with reports that the maximum impact related to the project that youÓre asking for. If you scale back, then you know that the impacts are going to be concomitantly reduced. So, like in the ManiniÒwali situation, they started off with the project for 900 units and a golf course, theyÓre going to end up with less than 200 units. But all of the other conditions that are non-density related, they still have to comply with. The setback, the open space adjacent to Kua Bay, the access conditions, they all have to meet. The only thing that they are deviating from, are like their project, their project goes. I think that in some, all I can say is that the Applicant, I think, is waiting very patiently. The first hearing could have been held in July but it was not. We had a hearing in August. Then in September, you know, with the request to defer indefinitely until DOT response, we got this hearing here. Now weÓve been asked, at least through the Commission, through the Department, rather, to say hold off until the County Council acts on it. And then like the Applicant now is wondering like so what happens? After the County Council acts, you know, is it now going to be another reason why weÓre going to have to defer this thing? And the other, you know, the Applicant has been following the rules. Unless the rules have changed, you know, theyÓve been following the rules that the Commission has established through your Rule 9. And, as a result, you can understand that they find, the request for having this thing continued or deferred, pushed back, is somewhat disconcerting. The Department has come forth with proposed recommendations and conditions relating to the Project District. Generally, we are supportive of, well, obviously weÓre supportive of the favorable recommendation. But relative to certain conditions, we do like to request some changes. If the Commission in its wisdom feels that youÓre comfortable in application, I do have, I prepared, like the last couple days, the reasons for the approval. ItÓs basically like a proposed Findings of Fact with the Conclusions of Law and all of the conditions. And the conditions, with a few exceptions, parallel the Project District ordinance recommendation thatÓs offered by the Planning Department. I go back again, one final point. The plan you see over there is the plan that the Applicant would like to develop; and that is what the environmental assessment, all of it, testimony, everything dealt like with the plan that you see over there. It did not deal with the Project District zoning with no plans at all. So, IÓd like to, I guess, with the CommissionÓs indulgence, just pass this, you know, for your consideration. If you decide to exercise it, then itÓs fine. If you decide to defer it, and, well, thatÓs the CommissionÓs prerogative as well. 16 FUJIKAWA:You may go ahead and present it to the staff. Go ahead Commissioner Kubota. KUBOTA:While weÓre in this process, in the event that the Commission decides to not defer, is the County prepared with our own set of conditions? FUJIKAWA:Maybe the Director could answer that. YUEN:IÓm sorry. Is the County prepared to -? IÓm sorry. KUBOTA:With the SMA conditions, are we prepared with our own conditions? We saw the ApplicantÓs conditions that heÓs proposing or submitting. But do we have our own in the event that the Commission decides not to defer? I mean, thatÓs a distinct possibility. YUEN:We would ask for a time perhaps a half an hour or so to rew conditions on the Change of Zone into the SMA Permit. KUBOTA:So we will be able to manipulate that in some fashion at point when the decision is made pro or con? YUEN:If the CommissionÓs wish is to vote in favor of the SMA Per with appropriate conditions, the Department could come up with t a recess of a half an hour or so. KUBOTA:Thank you. FUJIKAWA:Okay. At this time here, Commissioners, IÓm going to ask for a 5- to 10-minute break for you people to go ahead and review the paper that was presented to you. Okay? So, for the general public, you may take a break fo Thank you. RECESSEDThe Chair recessed the meeting at 10:13 a.m. RECONVENEDThe meeting reconvened at 10:26 a.m. FUJIKAWA:Will the meeting come to order. We are continuing the CliftoÓs Kona Coast, LLC. The meeting is now proceeding. Where ownerÓs representativeÓs testimony and, Planning Director, you have comment or a statement to make? YUEN:Yes. IÓd like to say that consultants, applicants and Commissioners should always feel free to disagree with me and argue with me. IÓm a little concerned about some things that were said because they seem to imply that weÓre 17 trying to create obstacles for this Applicant for some unknown reason; and thatÓs not the case. The obstacle that IÓm suggesting are for the reasons stated. This has been phrased as a question about concurrent processing, whether theyÓre allowed concurrent processing. They have been allowed concurrent processing. The only thing the Department is recommending is that the Planning Commission defer voting on the SMA Permit until after the County Council has voted on the rezoning. This would probably involve a delay of perhaps six weeks from the time of voting to get the matter back on the agenda, depending on when the Kona meeting is involved. My, procedurally I would suggest that the Commission, after voting on the Change of Zone recommendation to the Council, continue hearing on the SMA Permit. That will ensure that, this being a continued hearing, thereÓs no open opportunity for a Contested Case hearing to be requested. ThatÓs not something that weÓre trying to create here. What we were meeting, while we, in the meeting between our talk about this a few minutes ago, I was racking my brain to try to think of examples in this administration of concurrent processing of rezoning applications and SMA Permits. I can think of only two that have been brought to the Commission so far during this administration. Those would be the Pepeekeo one that I mentioned earlier, a very small scale rezoning, and Alii Cove, which was a rezoning of a project that was rezoned for 90 residential, single-family residential units to a 200-unit condominium in RM. In that, in Alii Cove, we knew what it was going to end up being. If the rezoning was approved itÓd be a residential project. We had no question of it being a mix of uses and not knowing wha would be. We had a site plan with, exactly out, of the buildings, and how it would be built. We had a great deal more information and a great deal mo final result would be than we have before us here today. As far as practices over 25 years, I cannot speak to those. I do feel strongly that we have to be very careful about the decisions that we make. I donÓt, itÓs not for me to sit here and criticize the way things were done in the past. I do think that we should and must try to do, make our decisions as best we can. If we take a while to make a decision, thatÓs fine. What we have proposed in front of us is a project that is considerably larger in ultimate square footage than the Keauhou Shopping Center. I believe itÓs larger than the Crossroads Center in Kona; itÓs considerably larger than the Wal-Mart Center in Hilo; itÓs larger even, I mean in total acreage its larger than Prince Kuhio Plaza. I donÓt know about the square footage of it being involved. So youÓre talking about a major, major decision. I do take exception to the phrase Ðcurve ballsÑ in talking about the processing thatÓs going on till this date. We did ask for two time, we did ask fo decision on this, awaiting comments from the State Department of Transportation, on the previous two hearings. This is a very important, this application has important implications for the use of the Kaahumanu Highway and the traffic is a major issue here. We had no comment or information from the department in charge of that highway, about how they wanted to handle this application. We are trying to, as best we can, coordinate land use planning with transportation planning. I make no apologies for asking for those 18 deferments. It would be highly irresponsible for us to proceed to make a decision without having heard from the State Department of Transportation on a project of this size and this potential importance of impact. On concurrent processing in general, thereÓs another example of concurrent processing that is allowed and the Department has, as a matter of practice, not allowed. And that is concurrent processing of matters that go to the LUC with rezonings. So we havenÓt allowed those generally for the same reasons that IÓve talked about here. There has been a concern on the part of the department that we donÓt know how the project is going to come out of the LUC and, so, it would be a duplication and a double effort to allow the rezonings to go through prior to the LUCÓs final action, although the statutes are, although the statutes do allow that. I bring that up as a parallel because what we have is something thatÓs closer to an LUC level action, not a typical kind of relatively small SMA/rezoning that you see in other cases in the past. On the question of giving notice to the Applicant, as I say we have allowed concurrent processing. This matter has been concurrently processed. WeÓre deferment in the hearing. I think about a month ago, I told Mr. Fuke that I was leaning toward recommending denial of the SMA application as a matter of being premature. On further reflection, I think that this is the right way to do it, to defer, to continue hearing on the SMA application until after the Council acts. FUJIKAWA:Mr. Fuke, you have a response to the DirectorÓs comment? FUKE:Just a couple. Maybe, IÓm sorry, Chris, we talked about Ðcurve balls,Ñ maybe this is the season, you know, since baseball, you know, but, the playoffs and all that stuff -. But if IÓm hearing correctly, one of the reasons -. And I can understand having to continue the hearing at the last meeting because you wanted to wait until Department of Transportation Highways provided comments to Òcause Queen Kaahumanu Highway is a major highway and it falls under the jurisdiction of the State. But you have that comment, you already have that The other thing is that, as I, just to reiterate, what you see is like what the Applicant wants to do at a maximum level. Whether that gets implemented or not is another thing. If they wish to exceed the Ðenvelope,Ñ other than what is presented here in this application, they have to come back before the Planning, you kno to request for an amendment. My question and, therefore, is that if you assume -. And then the Director is saying that they want to withhold a decision pending the outcome of the CouncilÓs decision. So, as I indicated earlier, if the Council decides to nix the Project District zoning, this thing is zero, you know, you donÓt have anything. ItÓs not really a waste of time because weÓve already been here three times already anyway. The other thing, if the Council elects to, letÓs make the assumption that the Council approves the Project District zoning, as recommended by the Planning Director. My 19 question then, you know, is that can you not then, therefore, look at this project and, on that basis of what youÓre recommending for the Project District, make your recommendation accordingly? ThatÓs all weÓre saying. The recommendation that I had structured, you know, for the CommissionersÓ consideration, is predicated largely on the DirectorÓs reason for recommending the Project District zoning. There are a few changes only in relation to the conditions; but aside from that theyÓre WeÓre not representing a project, you know, through conditions that would be significantly different from what you see on the board and whatÓs contained in the application. FUJIKAWA:Okay. Thank you, Mr. Fuke. Commissioners, you have an question with Mr. Fuke or the Planning Director? KUBOTA:Mr. Chair? FUJIKAWA:Go ahead, Ms. Kubota. KUBOTA:IÓd like to clarify my comments earlier in the morning to the Planning Director in regards to procedure. I guess, it didnÓt dawn on me what it was that was bothering me but it was something that was bothering me. An Mr. Fuke give his testimony, it brought to light the fact that we were operating under a set -- I hate to call it past practice because I donÓt think that holding to, solely to past practice is the right way to go -- but we have a set of procedures that we follow, like a set of past practice. Okay. Now, without making any changes to that, weÓre suddenly confronted with a, IÓm suddenly confronted with a recommendation from the Department that is entirely different from what I was used to; and I think that was really bothering me. Because the reasons for the deferral that the Planning Director postured in the recommendations are similar, that, that could apply to any that we considered before. So I wondered why this particular one was so different that it had to be deferred, other than the fact that the size and the conceptual design is there. And I donÓt see that that differs from any other applications that we received and processed. So I couldnÓt see any difference. And so I kept asking, what is the difference, what is the difference in this particular one that is different from all the rest that we processed? And part of the thing thatÓs bothering me, I guess, is that it came upon a Commissioner, I. And I donÓt know how you others feel, but I feel that I didnÓt expect this change in procedure without being notified because these are, I guess, rules that we have and our rules permit concurrent processing. And weÓve never had what I just heard as a nice word, bifurcation. So it bothered me, and I kept looking for a reason for it, and I still donÓt feel IÓm satisfied. FUJIKAWA:Okay. Commissioner Graham? KUBOTA:Wait a minute, wait a minute. Just before I leave, I wanted to ask the Planning Director, is it my understanding that, hereafter, hereafter, all, what shall I say, applications for SMA will be looked upon at, on individual basis? It will not be any, we will not, they will be bifurcated or they may not be bifurcated, they will not, we will not automatically process them concurrently? 20 FUJIKAWA:Planning Director? YUEN:ThereÓs no rule that requires concurrent processing. I would not say that we will always, that the department will always have concurrent processing. We would have a reason for not having, if we did. If we had a similar situation to this application, we would have concurrent processing, but we more likely would ask for a similar deferral of the final decision by the Planning Commission. There are likely to be much simpler applications where we would recommend that the Planning Commission go ahead and grant the SMA permit, subject to the rezoning going through. But, as I said, those would be in the simpler and less complex kinds of applicat FUJIKAWA:Is there any question, Ms. Kubota? KUBOTA:So we will have criteria for determining whether one ough concurrently processed or bifurcated, we will set up those for ourselves? Is that what youÓre saying, or the Planning Director will have them so that we can see -? YUEN:I can put that out in a memo, if I can put that out in a memo to staff. I donÓt think thatÓs a matter for a fixed rule. KUBOTA:Right now, as it -. Let me just get it out. Okay, right now it seems to me that youÓre the party that is the sole judge of whether itÓd be concurrently processed or bifurcated, itÓs your recommendation that we act upon. Right? And we -? YUEN:Well, letÓs -. KUBOTA:No? YUEN:LetÓs take this at two stages, all right? KUBOTA:Okay. YUEN:The first stage is whether the Department will allow the applications to move together, the SMA Permit. KUBOTA:Yeah. YUEN:My reading of it is that the Director does not have to allow the applications to be moved together, that the Director could hold or reject the SMA Permit application until the SMA, until the rezoning is granted. We did not do that in this case. KUBOTA:Yeah. YUEN:And I do not, I think that that would be an unusual situation. And, so, I think at that level itÓs up to the Director. And, as I say, we did not do that in this 21 case. As, what weÓre doing here is suggesting, IÓm recommending that the Commission not vote on the SMA Permit until after the Council has granted the rezoning, rather than issuing an SMA Permit on the expectation that the Council will grant the rezoning. That decision of whether to defer or not is up to the Commission. KUBOTA:Yeah. ThatÓs where IÓm asking you why, why, why are you us to defer it until the Council acts on the change, the other, what is it called now, itÓs, rezoning. Why are you asking us? I just want an answer, thatÓs all, other than whatÓs here. Because they apply to everybody else, is what IÓm saying. I find it very confusing. YUEN:IÓve done my best to explain that this application is, involves a great deal more uncertainty and a great deal more of a possible change of the use than the other applications weÓve gone ahead and said, well, the Planning Commission ought to go ahead and vote on the SMA Permit at the same time as the rezo the scale of the project, the different kinds of uses that are proposed and the relatively unformed nature of the application. If you, and IÓve tried to explain how that differs from the few examples that I can think of in my administration of concurrent processing of rezoning and SMA Permits so that we, itÓs not a question of there being some, that itÓs on some kind of personal level, or this particular applicant, or this particular consultant, or any other kind of improper reason for recommending this. KUBOTA:Okay. I guess, to bring this to a closure, Mr. Chairman, I, perhaps the Planning Director and I will, are looking at this project from a different perspective. He was looking at it critically from a trained plannerÓs perspective. I am looking at it from a lay personÓs perspective; and I find the conceptual design no different from the others that have come before us. ItÓs a conceptual design and others have been conceptual designs. I donÓt look at, upon this as any different. And the Planning Director seems to see it differently. And, forgive me, but I have a laymanÓs eye and I canÓt see that. FUJIKAWA:Thank you for your point of concern. Commissioner Graham? GRAHAM:Mr. Fujikawa, I have a question with regard to the Applicant but theyÓre not about this particular procedural issue. So if anybody else has comments about the, proceeding with this, it may be better to hear them first and then maybe you can get back to me about some other questions I have with the Applicant. FUJIKAWA:Complying toward the ApplicantÓs representative? GRAHAM:Yes. FUJIKAWA:Mr. Fuke? SPRINGER:With regard to the process -. FUJIKAWA:Oh, Commissioner Springer? 22 SPRINGER:IÓm looking at our Rule 9-11; and thereÓs a section in there which reads: ÐAny such hearing shall, whenever possible, be held jointly and concurrently with other applicable hearings for the proposed development.Ñ So reading that part of the rule, I understand more clearly Commissioner KubotaÓs concern. I wonder if at some point the rule might be amended to erase the practice that the DirectorÓs now suggesting to read at any such, ÐAny such hearing shall be held jointly and concurrently or separately and sequentially.Ñ But I donÓt see a rule or, Ðshall whenever possibleÑ sounds softer to me. Then I hear the interpretation of Commissioner Kubota and also Mr. Fuke. But I do agree with Mr. Fuke that the planning process should have consistency and there should be predictability for the applicant, for the Commissioners, and also for the citizenry. Lunakanawai Haunaio spoke earlier about citizen anxiety and turmoil, juxta pose with applicant anxiety and turmoil regarding the lack of confidence in the planning process that the citizenry has. So we really have a, quite a jumble of concerns before us. And I hope that we can work together towards consistency and predictability through the process. Thank you. FUKE:Mr. Chairman, can I just make one comment on that? FUJIKAWA:Go ahead, Mr. Fuke. FUKE:I appreciate your comment, Commissioner Springer. I guess, just one comment, I guess, before I answer Mr. GrahamÓs question. ItÓs that if you fast forward like five or six months from now or whenever the Council takes action on the zone change and if the zone change thatÓs recommended by the Planning Director is approved with minor modifications, I guess, my question is like, and then what? You know, will the department be in a position to make a recommendat recommendation be any different than what it would have been if the property were already zoned, based on all of the information you have on file? concurrent processing is to really minimize duplicity of effort. And, so, if it comes to pass that the Council approves something that is radically, itÓs a radical departure from what we represent in this application before you, it is obvious we have to come back to the Commission for an amended SMA or possibly a new SMA. Alternatively, if what you see is approved by the County Council, you wonÓt have to revisit this issue. ThatÓs the whole essence of concurrent processing. I think that this whole issue of concurrent versus sequential processing, you know, if you want to, or not you, you personally, but if generically, you know, if you want to revisit this whole issue, then fine, it can be revisited. But it has to be, you know, comprehensively revisited, you know, by the entire Commission with the public. And check the State laws again; and if they donÓt want to have concurrent processing, then fine, eliminate that. ItÓs better than to saying that, ÐYeah, maybe this situation you can, this situation you cannot.Ñ What do we tell the applicant? What kind of applications do we prepare? And thatÓs the dilemma that we, as a consultant, probably, and a number of other people over here who are consultants, we face, Òcause we have to advise. And if we donÓt know what to advise, itÓs really hard. And if you ask your staff, what would they 23 advise, too, they wouldnÓt know. So it has to be clear. You need to have a predictable system. Whether we like it or not, cannot help. Until itÓs changed, what can we do? ThatÓs my point now. FUJIKAWA:Well, is there any question of the Director? YUEN:Very briefly. We are having concurrent processing and weÓre having concurrent hearings. IÓm simply asking that the decision-making be delayed until after the Council acts. FUJIKAWA:Commissioners? SPRINGER:No, thank you. FUJIKAWA:None? Go ahead, Commissioner Graham. GRAHAM:Can I, shall I go back to where I was before about wanting to ask the Applicant about some context questions about the project and all? FUJIKAWA:You may. GRAHAM:Thanks. Mr. Fuke, I know the last meeting we had, I mean comment to you that I was concerned about the community impacts of this project and other projects, and things like that; and that, you know, that will be on my mind at the next meeting. And I noticed today you did have a couple of the consultants along; and IÓm very appreciative of that. And, if I may, I would like to just ask them a couple of questions about this project and how it relates to others. FUKE:Okay. If I could just introduce like who are here -. GRAHAM:Thank you. FUKE:Just for information. We have like Dr. Steve Dollar and To Nance. They were consultants hired to evaluate both the groundwater and water quality impact. We have Ron Yamamoto of M&E Pacific who did the traffic study. We have Robert Rechtman, who did the archeological report; and we also have Scott Ezer from Halbert Hastert who basically prepared the environmental assessment. GRAHAM:Because IÓm largely interested in ocean and waters issues, IÓd like to just ask a question to Mr. Nance and then Mr. Dollar thereafter? FUKE:Sure. GRAHAM:Thank you? FUKE:TheyÓve been paid, so let them work. 24 GRAHAM:Pardon? FUKE:TheyÓve already been paid, so let them work. FUJIKAWA:Is there any other question from the Commissioners to either the Director or the ApplicantÓs representative? If not, you have heard both sides, the ApplicantÓs representative and the DirectorÓs -. GRAHAM:I have questions. FUJIKAWA:Oh, I see. Okay. The Commissioner wants to question the two fellows thatÓs coming up. Can you sign in. Staff, can you give application? FUKE:They actually are not public testifiers. FUJIKAWA:Oh, theyÓre not testifying. FUKE:TheyÓre part of the consultantÓs team. FUJIKAWA:I understand. Okay. Can you, first of all, raise your right hand? Both of you. Do you swear to tell the truth to the Hawaii County Planning Commission on the matter youÓre an expert on? CONSULTANTS:I do. FUJIKAWA:First of all, state your name and your address into the mike. NANCE:IÓm Tom Nance. My address is 680 Ala Moana Blvd. in Honolulu. FUJIKAWA:Okay. And then the next fellow? DOLLAR:My name is Steven Dollar. My address is 1039 Waakaua Pla Honolulu. FUJIKAWA:Okay, Steve, being that you have the mike, you may proc FUKE:TheyÓre here in response to possible questions by Commissioner Graham. So whatever question he has -. FUJIKAWA:Oh, I see. Commissioner Graham, go ahead. FUJIKAWA:Go ahead. 25 GRAHAM:Thanks. IÓd like to ask Tom Nance first. Before I go in specific, I really wanted to complement you on both the conciseness and specificity of content as well as the very readability of your work that we have. In the last month, I read this one about a month ago, and we also received the assessment on the Kohanaiki project, and so I just want to complement you and say I really enjoyed reading all this amount material, that I feel like I learned quite a bit. And I feel like you stood on top of it, and it was also easy reading for me. So thank you very much I have just a couple of sort of specific questions that will sort of help my understanding of things and may be useful for the rest of the Commission here. We have this large aquifer at high level up around Mamalahoa Highway that supplies this side of Kailua-Kona, supplies potable water. First, I wanted to ask in regard to all the other different developments around, is that supply and recharge of that aquifer enough that you feel that the withdrawal of this project in conjunction with the other ones is really not threatening the sustainability? NANCE:With regard to the high level aquifer and also the comment about a little bit of salty water that went on before, until we discovered the high level water in 1990, all the drinking water wells were tapping the basal aquifer, the lower elevation aquifer. And, unfortunately, in the Keauhou area, it has been over-pumped. Finally, in 1990, we just, working with Kamehameha Investment, putting some wells, we found the high level of aquifer. We know it extends from almost as far north as Keahole into parts of South Kona. The total recharge of that high level aquifer is in the hundreds of millions of gallons; so supply for this project really isnÓt itÓs really the infrastructure to get the better quality high level water into the system. We need to complete the mauka-makai link along Hinalani Drive so they can cut back pumping at Keauhou and start having more of the high level, higher quality water in the system. GRAHAM:Thank you. Also, in reading your report, there are a certain amount thatÓs going to be taken out of the high level aquifer by this project. Yet, the amount of that ground water flow to the ocean along the mile, do is much less. So I was just wanting to know, kind of the basis, conservation energy or conservation matter, how about conservation of water? Where is the rest of the reduction going to take place? NANCE:Well, part of my assessment youÓre referring to was based modeling results by the USGS that put in this as-yet unknown geologic feature as a band of lower permeability that creates a high level behind it and basically starves the base of aquifer below it. Because some of the water, rather than going through this feature, goes around it, both to the north and south; so there is a conservation of mass. WeÓre not making mass disappear or reappear. ItÓs just the amount that comes through directly makai is only a portion of that withdrawal; and the balance of the withdrawal which doesnÓt, wonÓt appear in the ocean is both to the north and to the south of this geologic feature. So the total draft or total movement of the groundwater of the shoreline will 26 change or be reduced gallon-for-gallon by the pumpage mauka. ItÓs just within the corridor weÓre talking about where that reduction is less than the total withdrawal. GRAHAM:Thank you. I had assumed that but I wasnÓt sure. And th question that I had, when weÓre speaking of the wastewater treatment, both as far as going into that Kealakehe wastewater treatment plant as well as the on-site treatment, before each, I think this was, your numbers here with regard to the Kealakehe treatment plant, before the wastewater reaches the ocean, that 80 or 90 percent of the nitrogen phosphorous somehow is not coming through. So i disappearing. So the gist of my question on that was, the background for my question is like whatÓs the long-term situation? In other words, if I had like a filter in my car, then IÓm filtering stuff out, after awhile the filter is more clogged or doesnÓt filter as well. So IÓm wondering if you understand what the process is all about by which there is what IÓm calling filtering removal of the nitrogen phosphorous and whether you have a sense for in the long term whether that process may not work so well or how that might go. NANCE:You need to take the filtering notion and put that on the side because thatÓs not whatÓs going on. I canÓt tell you all the processes. But what weÓre talking about is chemical changes of dissolved constituents, not physical filtering or absorbing or anything like that. So itÓs the same kinds of process that chemical changes on dissolved constituents ending up accumulating like matter on a filter, that, passing through in altered forms or theyÓre being degassed or whatever-. GRAHAM:Right. NANCE:WeÓre not cumulating -. GRAHAM:So whatever the process there is thatÓs making the chemical change on the nutrient level of the water, do you have an understanding such that you could say that that 80 to 90 percent removal or chemical change will persist over 20 or 40 years, or whether that the situation may evolve such that itÓs not so effective in the future? NANCE:As far as I would understand it, it would not be changed. It will continue to be what it is. I mean, itÓs fairly remarkable if you know where the disposal of the Kealakehe treatment plant effluent is occurring. ItÓs just on the mauka side of the highway in the fenced off area. And you have Honokohau Harbor w intrusion on the shoreline in a point sink for groundwater discharge and relatively short transit time between the two. That process has been going on for 10 years or so and remains the same today as it was initially. ThereÓs an incredible amount of removal going on thatÓs actually kind of surprising to me. GRAHAM:Thank you. FUJIKAWA:For record sake, your name was -. NANCE:Tom Nance. 27 FUJIKAWA:Tom Nance. Sharon, you got it? NOMURA:Yes. FUJIKAWA:Okay. GRAHAM:I have a couple of questions for Mr. Dollar, but maybe th Planning Director had something -? FUJIKAWA:Planning Director, go ahead. YUEN:Just to follow-up with Dr. Nance, youÓve had a -. Do you k the flow, you had how long it takes for groundwater to flow from, say, from the Queen Kaahumanu Highway to the sea within your report. And I was wondering what the basis for that was? NANCE:Okay, itÓs a little technical but weÓll take a shot at it anyway. The velocity is multiplying the permeability co-efficient times the gradient, the groundwater, the slope in the groundwater. The permeability co-efficient may be something in the order of 5,000 feet per day. The gradient may be about one foot per mile or one over 5,000. So when you multiply those together you get one foot per day, as what we call the Darcy velocity. Water particles themselves actually move through the, not through the rock itself but through the openings, the effective porosity. We typically think itÓs about 10 percent. So you take that one foot per day, divided by the effective porosity point 1, you get a movement on the order of, particle movement of about 10 feet per day. So if youÓre going 3,500 feet to the shoreline, 350 days, about a yearÓs time. FUJIKAWA:Okay, any question now? Commissioner Graham? GRAHAM:Could I proceed with Mr. Dollar then? FUJIKAWA:You may. Go ahead. GRAHAM:Thanks. Still thereÓs a couple of issues that I want to Just to the first one, in your conclusions relating to the same issue that I was talking about with Tom Nance a second ago about the removal of 80 to 90 percent for nitrogen phosphorus, letÓs see -. Should I -? I donÓt have it marked at the present time. Essentially, in your, and in what I read in your conclusions, youÓre indicating that because of a small part of the feed from the high level aquifer into the basal lens is going to be removed, compared to the amount of water that is being brought down, that, actually, even though there will be no nutrients coming forth, the water itself, the flow will be larger. So that, essentially, I think thatÓs pretty close to that what you said. Even though thereÓs no nutrients moving through, the fact that the water discharges faster it will essentially compensate that because the nutrients wonÓt be there for it, as long because of the water flow being greater. Am I correct on that? 28 DOLLAR:Sort of, and actually thatÓs TomÓs data that I was just paraphrasing. What heÓs saying, and what weÓre saying, is that heÓs predicting that the actual amount of water that will flow through increases. GRAHAM:Yes. DOLLAR:And the amount of nutrients also increases but by a lesse than the water increases. So youÓre effectively diluting the wa concentrations. So the loading, the total amount of nutrients will rise a little bit but the concentration in one volume of water will go down. GRAHAM:Right, thatÓs the way I understood it. And then so the follow up to that was to say, since I asked Tom before about, you know, where does the extra water go -? The extra water goes to other places along the shoreline. So, consequently, I would infer that if the other places along the shoreline are putting in the same concentrations of nutrients, their water is also going to decrease. So that the, so the dilution property youÓre talking about here is going to work in reverse in areas outside of this model shoreline, meaning essentially the concentrations will be higher because some of the basal flow will be reduced. Does that not seem appropriate? DOLLAR:I think actually this is his answer. GRAHAM:Okay. DOLLAR:When we get to the ocean, I could talk about that. WeÓre about, your question is in regards to what to get into the ocean, so I will hand the microphone back to Tom. GRAHAM:Okay. DOLLAR:But I would like to address your other question about the 80-90 percent removal Òcause I can add to that a little bit as well. GRAHAM:Okay. DOLLAR:But thatÓs a different question. NANCE:IÓm sorry, that was a little convoluted to me to have understood what you were trying to say. GRAHAM:Shall I do it differently? NANCE:Or I could try to restate and see if IÓve got it correct. GRAHAM:Good. 29 NANCE:What I had inferred is that weÓre talking about the strip that is directly makai of the project; and thereÓs a nutrient loading increase but possibly a concentration in the ground water decrease. Whereas on other areas which would see somewhat of a decrease in flow, the loading would be less. The concentration wouldnÓt change one way or the other, but the total flow to the shoreline would be less. The amounts are very, very small but there isnÓt a change in -. You know, weÓre pumping high level ground water. Some of that would have gone around the bay and out at Keahole Point, for example. And because itÓs pumped from a well trek out to Keahole Point; but that, nothing in the process has changed its concentration. ThereÓs less water that will go in that direction, a very small amount, not a significant, but less; but thereÓs no change in the concentration as a result. The only changes in concentration weÓre talking about here are things that are happening within the project itself which impact groundwater beneath the project. GRAHAM:Yeah. I donÓt want to pursue this any further. Maybe we can talk partly about -. NANCE:Yeah. GRAHAM:But, anyway, IÓm concerned about more than just whatÓs in front of the project, IÓm concerned about the whole area. DOLLAR:Get back to the 80-90 percent that we see, for instance, removal from the Kealakehe business. WhatÓs going on there is a well documented geo-chemical process called denitrification. And what happens is that nitrate in a noxic environment, meaning thereÓs no oxygen, bacteria respiration, and they turn that nitrate into gaseous nitrogen which then goes up into the atmosphere which air about 80 percent nitrogen. ThatÓs where the nitrate goes. The phosphate is adsorbed what they call is actually stuck to rocks. So both of these processes which are too technical really to get into now are well documented; and thatÓs what the reduction is between what comes in as sewage effluent in this particular case which gets out into the ocean. The other point that IÓd like to make really quick is that, as Tom said, weÓre talking about very small amounts here and that whatÓs lost in these discussions is the understanding that the natural input of nutrients to the ocean from natural occurring groundwater is extremely high. WeÓre talking about really, really small changes with these projects. So I donÓt remember if in this particular report we talked about the overall background numbers but theyÓre huge as compared to the changes that weÓre seeing from the project. If you look at the percentage that theyÓre talking about, theyÓre one percent, things that arenÓt really within our ability to measure. GRAHAM:Okay. One further question. I was reading the PEW Oceans Report lately, the one that came out maybe six months ago when you were speaking of the condition of the corals off the Florida Keys. And one of the items they were talking about there is in the period of time since 1996, they find that over 70 percent of the coral 30 species have disease of some form. And, so, my question to you was do we have any evidence of disease in the coral in HawaiÒi and do you have any understanding of what might be the pre-cursors that allows that disease to take place? DOLLAR:I actually just have a paper in press now in the General Pacific Science that addresses coral reef changes here in HawaiÒi. ThatÓs really my other major area of research. And we, here, in Hawaii are absolutely, totally, distinctly different than whatÓs going on in Florida. We donÓt have any evidence of the kind of changes that theyÓre seeing there; and itÓs actually throughout the Caribbean, itÓs not just in Florida. And what theyÓre finding there, they donÓt really know whatÓs going on there, either, and theyÓre finding actually that the reefs closest to the shoreline are healthier than the reefs offshore. So itÓs -. The original implication was that these diseases were related to shoreline development. ThatÓs sort of falling apart right now. But to get back to HawaiÒi, our reefs here, in general, are in very good condition with some very localized areas that might be areas of concern. TheyÓre usually places where thereÓs restricted water flow and we donÓt have the wave activity that flush the water out. But, overall, our reefs here have not seen that kind of effect. I can say thatÓs coming out of a publication which IÓd be happy to get you a copy of. GRAHAM:Do we have some of these diseases in HawaiÒi though that are in the more recent past that youÓre aware of? DOLLAR:We have some diseases but theyÓre not, theyÓve been historical but they have not -. GRAHAM:TheyÓre not new? DOLLAR:TheyÓre not new and theyÓre not epidemic proportions. Just like any other population, you have some disease; but it comes and goes and itÓs not a problem. GRAHAM:Thank you both. FUJIKAWA:Commissioners, any questions? Okay. HAUANI:Mr. Chairman? FUJIKAWA:IÓm sorry, IÓll close the public testimony. HAUANIO:But you when add something to your agenda item so I want make some comments on the additions that the public didnÓt have the opportunity to review the changes. FUJIKAWA:Well, IÓll give you a couple of minutes on that, fast -. 31 HAUANIO:Mahalo. FUJIKAWA:Two minutes. HAUANIO:Okay, so since I get two minutes -. And I under oath, a Mr. Chair? FUJIKAWA:(Nodding affirmatively). HAUANIO:Okay. The experts was talking about the property that they going be building. Can I get clarification? FUJIKAWA:(Nodding affirmatively). HAUANIO:Okay. Now, I want you guys to come with me today, okay, right after this meeting, we go down to HoÒona, okay? HoÒona is right here, okay? You guys come with me to HoÒona. We have one opae puka over there. Okay? And how far distance is, you guys think Huallai is from HoÒona, from this point, Huallai to this point? Anybody got any estimates? Okay? ÒCause this is from traditional and customary practices, this is where this information is coming from. When you have this mass of thick heavy clouds, my father guys call Òem puapuaanui, puapuaanui okela, when you look up on Hualalai, when the bugga was really choking up here, our opae puka fill up, fast, brah. By the time lunch time come, we can oh, they, ready, hee, hee. So, you know, I no dig this stuff about take, what, one, ten, ten feet per day. Braddah, no way. You get one other over here, down at, whereÓs, Honokohau, no, where that place? Over here, yeah, Honokohau. Braddah, all inside here, same thing, get one right over here, right over here. You guys come with me today, okay? ÒCause you look up mauka, the bugga nui, nui ka, puapuaanui, look Òum. We go over here today, fast the water come, quick. And you no tell me no mo sick inside our coral reef. I been with the West Hawaii Fishery Council for a long time, I been with Western Pacific Regional Fishery Management Council, I know you guys know that, long time. Braddah, we get sick in our coral reef, we get. And you know what, I piss off. You know why I pissed? Because you guys gotta do something, you guys gotta stop Òem. ÒCause I getting, I getting pissed off, Òcause this is lies. You guys talking about my house -. FUJIKAWA:Excuse, could you properly place your wording -? HAUANIO:How you be proper when somebody is trying to pollute and kill your children. Because the quality of life, the quality of what we eat, the Òopihi, we gotta watch out. The kpeÒe, we gotta watch out. ÒCause our kids getting sick. Lead-based paint, our kids getting sick. How much more stuff you guys gotta put over here before somebody come over here and just turn this (expletive) tables all over? Get plenty pepa, you guys get choke pepa to look through. You know what, come my guys proof. All that stuff on top there, no make sense, not to 32 guys own house. You guys no, you guys no live with me. Maybe y donÓt know. But, man, when speakers come over here and start putting into this report, public record, and saying nothing wrong with our reefs, no more diseases - Bruddah, get choke Hawaiians, the bottom of this damn community, we the sickest people. That pisses me off. The other part is this place over here -. FUJIKAWA:Excuse me, can you summarize your -? HAUANIO:Yeah, this place over here, get plenty family graves. N those two features, get more than that. And you guys going be just like Hokulia, rubber stamp, rubber stamp. Huh, rubber stamp? Hey, thatÓs bull. No can already. Gotta stop. ÒCause you know why, this is the act, yeah? Why, get people worse than that act in our community right now, that they no can control themselves and they going look at all the white people and, yeah, going get chaos. We going start taking out the attorneys, Òcause we get their names, we get their addresses, we get their phone n what, thatÓs spooky that. But itÓs not emotion -. FUJIKAWA:Okay. Your two minutes is up. I must ask you to finalize that. Okay, Commissioners, any questions? Director? Mr. Fuke? None? FUKE:Well, the Department has provided the Commissioners with the recommendation on the Project District zoning. As I indicated in the beginning, we are appreciative of the favorable recommendation. We noticed, also, however, that there are like a number of conditions, conditions which somewhat go beyond change type of applications. But we can understand and can accept a good number of those conditions. Because they, as I mentioned earlier, they so normal thing, you know, particularly in relation to like the groundwater issue and, you know, monitoring and all that stuff, but we are, the Applicant is sensitive of this fact. The Applicant is aware that there have been other projects generally along this coastline, which somewhat addresses Mr. HauanioÓs concern. And conditions relating, for example, on Conditions M, N and O, that deals specifically with M, N and O as well as like K-K, they deal like with groundwater monitoring, a water quality monitoring program and how you treat on-site type of activities so as to minimize potential adverse impact to the coastal waters. And I think that, in that sense, while those would be like more appropriately within the SMA Permit, nonetheless, the Applicant has no objections in having that codified as proposed by the Planning Director. I think they, whether itÓs on this permit or the SMA Permit, we believe that itÓs a fairly responsible position. There are, however, like only two conditions that we would like to take exception to and, you know, would like to request the Commission and/or the Planning Director to favorably consider. One deals with Condition E. Condition E deals like with establishing the maximum number of hotel rooms from, to 200. The Applicant, and based on the environmental 33 assessment that was prepared, talked about wanting to have like reason why they wanted to have 400 rooms, they wanted to have 400 rooms maximum that would be possibly housed in two or three, and they represented maximum of three, small hotels. Now, I have been informed by the Applicant that 200 rooms would really not cut it because they would need to at least have, they would like to have at least two different type of hotels. In their conversation with different potential hotel operators such as Marriott Courtyard, the Holiday Inn Express, or even like Travel Lodge, the general rule of thumb is that you need to have at least like about 125, 150 rooms. And so if you have the first one coming in, even like a Pagoda, the first coming in and you have like 200 rooms or 250, you pretty much like max out or 200, rather, y max out the opportunity. So the project, as I mentioned earlier, like the traffic report, the environmental impact is all predicated upon like a maximum of 400 rooms in this area. The Director or the Department is recommending that 200 rooms only because of Ðthe speculative natureÑ of the market for an airport-oriented business hotel. You can recognize it, but nonetheless this is like a developerÓs risk. And so if the market conditions are such that, you know, there is no demand for a fam type of hotel, then it will not be built. If it gets built, however, you know, the community knows what is the maximum exposure. And, so, in that sense, you know, the Applicant would respectfully request that the Condition E be amended to restore, be restored to the original proposal of 400 rooms. And, concurrently, in the Findings of Fact you would have to delete, and if the Commission is receptive to that restoration of the 400 rooms, you would need to delete the sentence on page 2 of the Recommendation which states that ÐThe Planning Director is however recommendingÈÐ so on and so forth. The other change that weÓd like to request the Commission to con Condition K. Condition K essentially establishes like a minimum size of the initial increment, basically saying that you need to have a minimum, develop, your first increment has to be minimum of 30,000 square feet. ItÓs kind of unusual because normally you establish like a cap on the high side like, what is your, whatÓs the maximum number that can occur like within the first increment area. But in this situation here itÓs establishing like your minimum lower cap. So, in other words, if you have like a project that comes in, the first phase, maybe theyÓre going to do like a 20- or 22,000-square foot project, then that would not be possible because you need to have, based on this condition, a 30,000 minimum size, size of the project. We would request, and the DirectorÓs rationale is that, you know, you want to avoid, as itÓs stated in the report, to avoid creating a scattered strip development pattern along the Queen Kaahumanu Highway. Now, I think that, if that is the objective, then I think we have to recognize that the pattern exists not necessarily because of the plan that you see over there, the pattern exists because of your General Plan and your underlying zoning. If you donÓt want to have strip commercial developments, then, you have, you control it through zoning, and you say like this is where the zoning has to be. But once you have the underlying zoning, you know, -. For example, strip commercial would probably be 34 along the line, you know, weÓve all been to Vegas, for most of us anyway, well, again, Honolulu, you know, you see rows and rows of like automobile row But thatÓs done by zoning, thatÓs done by zoning. So if you want to, and in many parts of the mainland, you know, you have malls after malls after malls, but theyÓre all along the line, but thatÓs controlled by zoning. Now if the idea is to minimize the strip, strip, and then like the scattered development, I think that the underlying issue, you know, relates to the zoning. Now if you get back to the zoning issue, however, the basic underlying zoning on this property is already Urban, itÓs Industrial. So the Applicant is requesting to basically have it less in terms of, from a visual standpoint, less type of obnoxious than like what is conventional heavy industrial type of zoning use would be allowed in that particular area. And I think the other thing to consider is that the Director is also recommending, which is acceptable to the Applicant, that thereÓd be a minimum 150-foot buffer, natural buffer, from the edge of the Queen Kaahumanu Highway to the subject property. And then if you look at the project and the way itÓs landscaped, and itÓs also like a minimum 30 percent landscaping requirement. So all things considered, we believe that, you know, itÓs not really necessary, you know, to have this condition. It makes it very unrealistic for any developer to be able to fulfill. So there are a whole bunch of other conditions, many for which we believe should be more appropriately within SMA, but the Applicant is willing to accept them. And we respectfully request your consideration in amending just those two conditions, Condition E and Condition F, K. FUJIKAWA:Planning Director, do you have response to the ApplicantÓs request? YUEN:Yes. IÓve stood by my recommendations. On the 200 units t thatÓs a large project and it is quite a speculative market. If I were to state an underlying concern about this, it is that this would, that on the makai portion of the property which is currently zoned Conservation that they might, if they have a very high level of zoning for the mauka property, they will justify rezoning the makai based on moving some of the excess, the rezoning from the mauka to the makai. Now, thatÓs an underlying concern about approving too many units in the same area, apart from what I stated in the recommendation about the speculative nature of the 200 units as an airport- or a business- oriented hotel. On the minimum development increment, the purpose of that is to being developed just as a spot commercial out in the airport vicinity where instead of, once you have, right now you have a big area of open space. TheyÓre asking for a rezoning to do a major urban development out there. But once you have even a small project, it takes away from the open space thatÓs there. If youÓre going to be, if theyÓre serious about doing a major project, then letÓs have a major project, and not have a 7-11, 35 a small car rental facility, other kinds of small-scale development that could take place under this zoning if it goes forward. FUJIKAWA:Commissioners, any question to the Planning Director? Commissioner Graham? GRAHAM:I have a related question for the Planning Director. Actually, I have a number of concerns about the content of this whole application. I certainly appreciate the patience and the forthrightness and the completen and all we received. I recognize that Project District is, of this nature is reasonable within the General Plan designation of Urban expansion area. However, my concept of planning is that we have these more localized community plans which sort of refine the General Plan. They have sort of contradicted but they kind of refine it. And so, consequently, on this area when I look the Keahole to Kailua Development Plan which is about 10 years old, in that Plan they talk about how is the development, how the community wishes the development to proceed along the area within the Kailua and the Keahole Airport. And when IÓm reading this in the plan, they speak of three major development zones. The coastal zone, which is the low-lying areas makai of Queen K Highway, should be planned primarily for recreational facilities, parks, open space and resort development. And then thereÓs a lowland zone, a lower slope zone; and then finally thereÓs a third zone which is the upland zone from above the 600-foot elevation. This zone is planned primarily for residential development and related type schools and village centers. So, my sense is that this project, having the hotels and having the residences and even in regards to commercial to some degree, is way out of stuff with the K-to-K D have. So IÓm wondering how the Planning Director came forth wit recommendation. Maybe I missed something in the materials that I was given reading but IÓm trying to read up with it. FUJIKAWA:Planning Director? YUEN:I looked primarily at the Land Use Concept Map and the K-to Plan which calls, says this is on the border of between ocean-related commercial and resort residential. If you look at the Land Use Concept Map, IÓm not sure what page that is on the K to K Map. FUJIKAWA:Is there any other question, Commissioners? Mr. Fuke, you have any comment? FUKE:Well, specifically, in response to Commissioner GrahamÓs question, I think that just looking at the environmental assessment report that was prepared by Helber Hastert, on page 3-22, I donÓt have the K-to-K Plan before me but IÓll just kind of read it to you, the last paragraph. ÐGeneralized land uses show the makai nd portion of the ÒOÒoma 2 ahupuaÒa to be a combination of Ocean Research/Commercial/Industrial and Resort/Recreation. These specific uses proposed as part of the project development program are supportive of the K-to-K Plan in many respects: the project site is proposed for urbanization; they are elements of commercial 36 and resort use; and the commercial uses (retail and office) would support the ocean research, airport and university activities shown elsewhere on the plan.Ñ GRAHAM:I can certainly hear the words but I donÓt feel like it addresses, you know, what I saw in the plan. What I saw in plan has residential development mauka, considerably mauka. FUKE:Well, itÓs, youÓre talking about that plan? GRAHAM:IÓm talking about K-to-K Plan. YouÓre, what you just read, Mr. Fuke, I think sort of paraphrases and interprets the K-to-K Plan. FUKE:ThatÓs correct. GRAHAM:But I donÓt think it directly responds to the basic issue of where should the residential and where should the commercial areas be. FUKE:Well, I think, in many respects, just hearing what you had, know, what you shared as well as like whatÓs contained in the application, it kind of reflects like a combination of, like mixed use type of activities in that area, you know, resort, commercial, residential and recreation. And I would imagine like the recreational component is pretty much like geared, you know, towards the makai area, you know, the coastal area. So, in a sense, like this project is intended to be reflective of like whatÓs happening in the general area and trying to create like a community, if you will, a community of mixed uses which includes, which has residential components as well. And, at the same time, rather than doing exclusively what only the Industrial zone would allow, which is presently zoned for, and heavy Industrial zone, you know, this rezoning would further complement or fulfill the objective of the K-to-K present underlying zoning. FUJIKAWA:Does that answer your question, Commissioner Graham? GRAHAM:Well, I think weÓre just expressing how we understand things to be. ItÓs not like a -. FUJIKAWA:Right. GRAHAM:Yeah. So, thank you. FUJIKAWA:Okay. Commissioners, any other questions to the ApplicantÓs representative? Okay, Mr. Fuke? Director? YUEN:On the rezoning, there are a couple of things that weÓd like to add in this. One, the Department, because of, this allows the rezoning of more than 50 residential, multi-family residential units. The Department of condition should have been put in and we did not. And I would ask that we add a 37 condition to the rezoning, ÐApplicant shall contribute a fair share to schools, based upon the Department of Education standards.Ñ WeÓd also like to slightly rework condition, the road condition, IÓm not sure which one, dedicable road, T, Condition T. Okay. It begins, ÐAll internal roadways, main access roads, shall be constructed in accordance with the requirements of the Department of Public Works to dedicable standards, except for cul de sac roads serving residential uses only,Ñ and here IÓm going to add a clause, Ðas allowed under the Subdivision Code and shall be dedicated to the County upon request at no cost to the County.Ñ And then a new sentence, adding this: ÐOn private roads, any vehicular security gate shall be set back from collector streets to allow for storage of vehicles and a turnaround on the collector street side of the gate, meeting with the approval of the Department of Public Works.Ñ FUJIKAWA:Staff, have you written that down? HAYASHI:Yes. FUJIKAWAAny other comments, Commissioners? Mr. Fuke? FUKE:More like, I guess, just, just so that I know. On the DOE condition, it has been customary that the County has not imposed, you know, fair share assessment on State-related functions, with the exception of like roadway requirements like where the project would intersect with the State highway, for example. And I guess my question is more like a general one, whether this is going to be the policy or the practice on the part of the administration. FUJIKAWA:Director? YUEN:I think on the only rezoning that has come before us to which this is applicable and we did put in the condition, and the one IÓm thinking of is Alii Cove. FUKE:Okay. And relative to the other proposed conditions, that being the understanding, then the Applicant would have no objections to that because he understands thatÓs uniformly applied and itÓs the position of the Department that they will be uniformly applied on that. Condition T, as been recommended by the Director, we have no objections to it. FUJIKAWA:Okay. Any other comments or questions, concerns, Commissioners, to the Director or the Applicant? Okay. Do I hear a motion on this? I guess we have to go by the REZ 03-010. KUBOTA:Mr. Chairman? FUJIKAWA:Go ahead, Commissioner Kubota? 38 KUBOTA:I move that Change of Zone application (REZ 03-010) be given a favorable recommendation and forwarded to the County Council, along with the Findings and Recommendations and conditions, as amended. FUJIKAWA:Do I hear a second? SMITH:Second. FUJIKAWA:It has been moved by Commissioner Kubota that Change of Zone REZ 03-010 be approved, and seconded by Commissioner Smith. Any question? If not - FUKE:Mr. Chairman, can I have a -? FUJIKAWA:Go ahead. FUKElI just have a question. Just wanted to understand the moti whether like, as amended, like as the Applicant requested they be amended or as like only what the Director had recommended? KUBOTA:As the maker of the motion, I will speak to that -. FUJIKAWA:Go ahead, Mrs. Kubota. KUBOTA:As recommended, amended by the Planning Director. We have not really addressed, as a body, the amendments that were proposed by the Applicant. So, therefore, my motion speaks to the amendments as made, propo Director. FUJIKAWA:Is it clear, the rest of the Commissioners? SMITH:Yeah. FUJIKAWA:Mr. Smith, who seconded the motion, you agree? SMITH:Yes. FUJIKAWA:Okay. All right, staff? HAYASHI:Commissioner Kubota? KUBOTA:Aye. HAYASHI:Commissioner Smith? SMITH:Aye. 39 HAYASHI:Commissioner Thibadeau? THIBADEAU:Aye. HAYASHI:Commissioner Springer is excused. Commissioner Graham? GRAHAM:No. HAYASHI:Chair Fujikawa? FUJIKAWA:Aye. HAYASHI:Mr. Chairman, there are five, excuse me, four aye votes, and one excused. FUJIKAWA:Okay. So the aye vote took that on the REZ 03-010. The other motion would be applied toward -. FUKE:Mr. Chair, I think you need five votes. FUJIKAWA:We need five votes, thatÓs right. YUEN:Is Commissioner Springer returning? FUJIKAWA:I donÓt know. She had some commitment to take care. YUEN:Commissioner Springer -? FUJIKAWA:She had to meet someone -. SMITH:SheÓs returning she said. She said she was coming back. YUEN:I would suggest, in all fairness to the applicant, that we, I think the rules would say that this is an unfavorable recommendation. I prefer not to send, if the Commission, and because of the four to one vote, itÓs, it doesnÓt send a clear message to the Council because we would send -. And weÓre not, without getting hyper-technical about the process of voting on this, I think we should wait. If we could have a, and if she returns we could revote this matter, and weÓll give her an opportunity to vote. Does that sound like something that we can do? FUJIKAWA:Corp. Counsel, can you state your -? OÓTOOLE:Well, I agree. I think itÓs better to get five votes one way or the other. We could defer it till later on the agenda if Ms. Springer is coming back. Also, isnÓt the Chair supposed to -. Oh, but he hasnÓt participated, well -. 40 FUJIKAWA:No, he hasnÓt. In the meantime, is it permissible that we take a lunch break, to be an hour, and sheÓll be back. OÓTOOLE:You could take up the SMA. FUJIKAWA:Yeah, why donÓt we go to the -. LetÓs hold off on the weÓll end up with the same situation. Right? YUEN:I donÓt want to be, I donÓt want to sound like IÓm taking advantage of the situation. But at the moment we have a vote being taken for an unfavorable recommendation for the Change of Zone. I donÓt know that we should vote on the SMA Permit, given that we really do not have the votes, we donÓt have the votes to make a favorable recommendation on the change of zone. I think, and, again, I think in all fairness, letÓs wait until, you know, it seems like Commissioner Springer is returning. LetÓs wait until she returns and then vote on those matters. KUBOTA:Is she returning? Is she returning? FUJIKAWA:Commissioners, how do you feel on that? Are you comfor with the DirectorÓs -? KUBOTA:Mr. Chairman? Is Commissioner Springer returning this afternoon? FUJIKAWA:It appears to be. Her stuff is here. KUBOTA:We also have the Chair Galdones joining us this afternoon. FUJIKAWA:Chair Galdones wasnÓt in this hearing so -. KUBOTA:I stand corrected. FUJIKAWA:So, I guess, I could -. FUKE:Mr. Chairman? FUJIKAWA:Go ahead, Mr. Fuke. FUKE:Do we know whether Commissioner Springer is returning or not? FUJIKAWA:I was told that she has to meet someone for a short bit and returning. FUKE:Could we, would the, the department -. I realize, you know SMA portion, will the Department be in a position, you know, having gone through all of 41 the discussion today and receipt of the ApplicantÓs proposed Findings and the recommendation, you know, would the Department and/or the Commission be in a position to make a recommendation on the SMA application at its next meeting? The next meeting, the next Kona meeting. FUJIKAWA:The next Kona meeting? FUKE:Correct. FUJIKAWA:You want to say anything to that, Director? FUKE:I realize the DirectorÓs position is that he wants to, you know, like, pretty much like wait until the consummation of the zoning process. I guess, trying to see whether, you know, because, obviously, the Applicant is at a severe disadvantage right now because, you know, weÓre not dealing with the full deck. And, so, what weÓre looking at is that whether itÓs possible for the Commission to defer the action on the SMA application until your next Kona meeting, and that meeting will be exclusively just for decision-making. FUJIKAWA:Corp. Counsel, can you answer to that? OÓTOOLE:Well, I think itÓs the CommissionÓs pleasure on what they want to do on that. FUJIKAWA:Commissioners? Commissioner Kubota? KUBOTA:Mr., Mr. Chairman, would there be any other alternative to handle this situation, other than to postpone it to the next meeting for decision-making, or take a vote now and go, leave it in limbo? FUJIKAWA:Well, itÓs the CommissionersÓ decision. KUBOTA:Is there another alternative? FUKE:Well, the Applicant would prefer not having a decision on the SMA today because if for some reason, you know, you fail to have of votes, itÓs my understanding that the application is essentially denied. FUJIKAWA:Right. FUKE:And this is like a risk, you know. Having come this far, y and to risk having one person essentially having the, you know, the right for a veto, I think it puts the Applicant, as the Director had indicated, at a very severe disadvantageous position. Yet, we can understand that we donÓt want to have any one of the Commissioners feel bad and, you know, make another decision, would be incongruous with his or her position. So all things considered, I think, you 42 know, it might be fair and the Applicant would probably be in a better position to have this matter either continued to your next Kona meeting until where thereÓs a little bit fuller deck on the Planning Commission and dispose of the SMA portion accordingly. FUJIKAWA:Commissioner Graham? GRAHAM:I certainly have no objection to whatever procedural thing gives the Applicant a fair share on what he wants to do there. IÓm just voting my conscience. I think we all understood that. I did notice a little discrepancy in what Mr. Fuke is proposing with what I think I understood from the Planning Director. I think the Planning DirectorÓs recommendation was that we deal with the SMA after the Council has acted. And now Mr. Fuke is suggesting that we donÓt need to deal with it today where we have a small group but maybe we could deal with it at our next meeting. And IÓm only concerned that we could wind up going to our next meeting and then following the Planning DirectorÓs recommendation to when the Council is finished and youÓre going to feel like youÓve been put off again and again. So I think thereÓs like two different factors in play. I just wanted to bring it out in the open. FUKE:I appreciate that comment, Commissioner Graham, except that rules provide that the Applicant on its own can make the request. And in this situation here, I think that weÓre asking that it be continued, as opposed to like having it continued for, by virtue of the DepartmentÓs or the CommissionÓs position. So weÓre asking that it be continued. FUJIKAWA:YouÓre asking for the hearing to be continued? FUKE:Well, on the SMA portion. FUJIKAWA:On the SMA portion. FUKE:Correct. FUJIKAWA:Okay, what about the other portion of the REZ? FUKE:Well, as the Director had indicated, if the votes stand as it is, then the recommendation to the County Council will be basically a recommendation on denial for lack of five votes one way or the other. And then all of the material that has been presented to date and all of the discourse contained in the public hearing transcript, will all be provided to the County Council; and ultimately theyÓre going to have to make a decision. Now the concern that the Applicant would have is that if, in fact, the Commission agrees with the Planning DirectorÓs position relative to the SMA, what it means is that if youÓre going to hold off on the decision or the recommendation on the zone change, then we donÓt know when that position is going to be had. And I think at some point in time, you know, weÓd like to see some measure of closure, you know, on this application. So, in 43 that sense, like if it has to be the way it has to be where, you know, since the recommendation on the Project District zoning is not a final thing, the SMA decision, however, is finality, you know, short of having it appealed; and so thereÓs a little bit more apprehension on the SMA. FUJIKAWA:Go ahead, Director. YUEN:Can I make a suggestion? I always think that we should try to make our decision, the decision should be made by a majority as much as possible. I have no objection or problem with their delaying. TheyÓre asking to delay the vote on the SMA Permit because, currently, we have five members here. I suppose after lunch we may have six. And a vote of less than five under the rules is a denial although there is a possibility for a reconsider -, under the SMA rules, very specific, there is a possibility for reconsideration vote at the next meeting. All right. If the denial is less than one body of, if the denial is because no side has five votes, thereÓs a possibility of a reconsideration vote at the next meeting. But as I say, I have no, I have difficulty with the request that this be deferred. On the rezoning, we donÓt know how Commissioner Springer is going to vote. Rather than leave this at a four to one, I would suggest that we continue the hearing, either go on to the Soto item, or go after lunch and hope she comes back; and then see if there are five votes to be able to send this up to the Council with a definitive recommendation. FUJIKAWA:Commissioners? FUKE:Mr. Chairman, if I can just add a comment. We donÓt know, know, like how Commissioner Springer is going to vote; and it may still end up like with a four-two vote. And, so, weÓre going to be right back where we started from. FUJIKAWA:ThatÓs right. FUKE:And then, again, you know, she could recommend favorably. from the ApplicantÓs perspective, you know, we would just as soo already. FUJIKAWA:Okay. All right. FUKE:And, you know, going up with the negative recommendation. the Council will be fully aware of whatever happened today and that, you know, Mr. Yuen will be in a position to advocate, you know, his position to the entire County Council. FUJIKAWA:I understand. Commissioners, understand that? KUBOTA:Yes. 44 YUEN:Let me ask the Commissioners if they approve of doing the following, as far as what weÓre sending to the County Council. And that will be to, this will be the letter that we would send, we send them a letter explaining that there was a four-to-one vote, that per the rules say this is a negative recommendation, that the Applicant asked that no further processing take place at the Planning Commission but that the Planning Commission did vote in favor of, four-to-one in favor of a recommendation with a draft ordinance with certain conditions as stated. And then we would append, this would not be the recommendation of the Planning Commission, but we would append what the Planning, the recommendation of the Planning Commission solely on, including the conditions, and send that to the Council. FUJIKAWA:Commissioners? Commissioner Graham? GRAHAM:IÓm not sure I fully understand Mr. FukeÓs concern but my would that we best go to lunch now. And since Ms. Springer was testimony, it would be good for her if she comes back and if she wants to vote against the project as I did then we could follow through with what Mr. Yuen suggested. If, in fact, if she wants to support the project, then it has a positive vote and none of this extra stuff has to happen at all. It feels to me like the air could be cleared by just going to lunch now and coming back and see if she shows up. So thatÓs what I would prefer to see happen if thereÓs not any more substantial problem with that. FUJIKAWA:Is that a motion or what? GRAHAM:Yes, I would like to make that motion. Thank you. FUJIKAWA:Do I hear a second? OÓTOOLE:Let me ask you, what is the timeframe here? Within 90 days after receipt, the Commission shall transmit the change on the ordinance, unless the Applicant agrees to a longer period. So unless he agrees, I donÓt know if weÓre in that 90-day frame. Do you know, Chris? YUEN:WeÓre outside of it. ItÓs my understanding that the applicant is reluctant to agree to a longer timeframe. So I think if they want to send it up after today, they can do so. If we donÓt go any further, IÓd like the Commission to approve what I just suggested. If the Commission wants to wait and let Commissioner Springer vote, thatÓs fine with me as well. I would rather have, see if we can get five votes and send it up with a recommendation. FUJIKAWA:We have a motion out there. Commissioner Graham, we ha motion. Can you repeat on your motion again? GRAHAM:The motion was that go to lunch at this point and that way we can wait until after lunch and see whether Commissioner Springer has returned. If she has we can dispose of it now with six votes instead of the five votes. 45 THIBADEAU:Second. FUJIKAWA:So moved by Commissioner Graham and seconded by Commissioner Bill Thibadeau. Any question? FUKE:Mr. Chairman, can I just ask, more for logistic purposes. to understand the Commission, you know, if the Commission agrees with this motion that the Commission would break for lunch, reconvene at one and if Commissioner Springer is here, then youÓll take a vote again. If sheÓs not here then youÓll go along with the recommendation that the Planning Director has offered. FUJIKAWA:Is that what the -? GRAHAM:That was my intention. FUKE:Correct. Thank you very much. FUJIKAWA:Okay, so no other questions? Staff? HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Commissioner Thibadeau? THIBADEAU:Aye. HAYASHI:Commissioner Kubota? KUBOTA:No. HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:Chair Fujikawa? FUJIKAWA:No. HAYASHI:Motion does not carry. There are three ayes and two noes. FUJIKAWA:Well, the motion fails. So is there someone else to make another motion? 46 KUBOTA:Mr. Chairman, are we now back to the motion as passed, that we send a negative recommendation, with -? FUJIKAWA:Right. KUBOTA:Oh, I can make a motion that we incorporate into it the suggestion made by the Planning Director to accompany the recommendation that we send up to County Council. FUJIKAWA:ThatÓs a motion, do I hear a second? GRAHAM:I second. FUJIKAWA:It has been moved by Commissioner Kubota and seconded b Commissioner Graham. Do I hear a question? If not, staff? HAYASHI:Commissioner Kubota? KUBOTA:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:Commissioner Thibadeau? THIBADEAU:Aye. HAYASHI:And Chair Fujikawa? FUJIKAWA:Aye. HAYASHI:Mr. Chair, motion carries, five to zero. KUBOTA:Mr. Chairman, I also move -. FUJIKAWA:Okay, go ahead. KUBOTA:I also move that SMA 03-005 be deferred to the next Kona meeting. FUJIKAWA:Do I hear a second? 47 SMITH:Second. FUJIKAWA:It has been moved that 03-005 SMA would be moved to the Kona hearing by Commissioner Kubota and seconded by Commissioner hear a question? When is the next Kona hearing, tomorrow? th HAYASHI:Next Kona meeting November 7. FUJIKAWA:Okay. No question? Staff? HAYASHI:Commissioner Kubota? KUBOTA:Aye. HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:Commissioner Thibadeau? THIBADEAU:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:And Chair Fujikawa? FUJIKAWA:Aye. HAYASHI:Chair, motion carries, five to zero. FUJIKAWA:Okay. Thank you very much. The discussion ended at 11:56 a.m. Respectfully submitted, Sharon M. Nomura, Secretary 48