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HomeMy WebLinkAbout2004-10-22 TAINALOA A regularly advertised hearing on the applications of AINALOA DEVELOPMENT CORPORATION (SPP NO. 827/UP NO. 106) was called to order at9:01 a.m. in the County Building, Councilroom-Room 201, 25 Aupuni Street, Hilo, Hawai`i, with Chairman Fred Galdones presiding. PRESENT:Fred Galdones ABSENT & EXCUSED:Bill Thibadeau C. Kimo Alameda Earl Fujikawa William Graham Jeffrey McCall Ren° Siracusa Hannah Springer FrancisSmith Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Sandra Song representing Ainaloa Development Corporation Sidney Fuke representing Ainaloa Development Corporation Ole Fulks, Intervenor Bobby Jean Leithead-Todd representing the Planning Department Christopher J.Yuen representing the Planning Department And approximately 10 people from the public in attendance APPLICANT: AINALOA DEVELOPMENT CORPORATION (SPP NO. 827/UP NO. 106) Discussion and action on the Hearing Officer's proposed Findings of Fact, Conclusions of Law, and Decision and Order, and any exceptions and /or oral arguments of the parties on the following requests: a.5-year time extension to Condition 2 (secure plan approval) of Special Permit No. 827, which allowed an expanded golf clubhouse, recreational facilities, and related improvements on 7+ acres of land situated within the State Land Use Agricultural District. b.5-year time extension to Condition 3 (secure plan approval), deletion of Condition 6 (intersection improvements), amend Condition 7 (roadway improvement), and EXHIBIT B Condition 9 (community benefit program) of Use Permit No. 106, which allowed the development of an 18-hole golf course and related improvements on 200 acres of land zoned Agricultural (A-1a). The property is located along Ainaloa Boulevard at the extreme northwestern (mauka) end of Ainaloa Subdivision, approximately 3.7 miles from Highway 130, Keaau, Puna, TMK: 1-6-04:21 and 57. GALDONES:Commissioners, on the agenda is Item No. 1, the Applicant is Ainaloa Development Corporation, and the counsel for the Applicant, Ms. Sandra Song, has requested that we hold this till she is able to arrive here this morning. She has been called to court. She had an 8:30 engagement at court so she asked that she be put on later on the agenda when the time comes that she arrives here. Are there any objections from the Commissioners? Okay. Any objections from the public? Hearing none, then, Commissioners, we will proceed with Agenda Item No. 2. (The Commission at this time, 9:02 a.m., took up the application of Spectrasite Communications,Inc.At9:33a.m.,theCommissionagaintookupthesubject application by Ainaloa Development Corporation.) GALDONES:Commissioners, we are back in order. Back to application No. 1, Ainaloa Development Corporation (SPP No. 827/UP No. 106). All right. This is to discuss and take action on the Hearing Officer€s proposed Findings of Fact, Conclusions of Law, Decision and Order, and any exceptions and/or oral arguments of the parties on the following requests: a.5-year time extension to Condition 2 (secure plan approval) of Special Permit No. 827, which allowed an expanded golf clubhouse, recreational facilities, and related improvements on 7+ acres of land situated within the State Land Use Agricultural District. b.5-year time extension to Condition 3 (secure plan approval), deletion of Condition 6 (intersection improvements), amend Condition 7 (roadway improvement), and Condition 9 (community benefit program) of Use Permit No. 106, which allowed the development of an 18-hole golf course and related improvements on 200 acres of land zoned Agricultural (A-1a). Norman? SIRACUSA:Mr. Chair, since we€ve only just received this submittal by Ms. Song, I would like to ask for a five-minute break to allow us time to review it. GALDONES:Okay. Why don€t I do that, Norman? Are we going to request, we€re on a five-minute recess. RECESSEDThe Chair called a short recess at 9:34 a.m. 2 RECONVENEDThe meeting reconvened at 9:43 a.m. GALDONES:The Planning Commission now will be back in order. Norman, would you go over the application? HAYASHI:Thank you. Mr. Chair and Members of the Commission, good morning. I€d like to give a brief orientation as to the subject property and what the permit consists of. The property is within the Ainaloa Subdivision and it€s indicated by this red dot. This is Ainaloa Drive going towards mauka; and I€m sorry I put this map upside down to have the same orientation as that particular map. This is the Keaau-Pahoa Road, this would be in the Keaau direction and this would be in the Pahoa direction. Across the street is the Hawaiian Paradise Park Subdivision. Also, Orchidland Drive is located in this general orientation, mauka-makai orientation; and the Wiki Wiki Mart complex is located at this location. The Applicant had requested a Use Permit back in 199-, early 1900, excuse me, 1990€s; and a permit was issued by the Planning Commission for a Use Permit to allow a golf course at this particular location. Also, as part of the request, the Applicant had requested to allow a, requested a Special Permit to allow the construction of the golf clubhouse and recreational activities on that particular property, on a portion of that particular property. That permit was also granted back in 1992 by the Planning Commission. Since that time, the Applicant has come in for a number of time extensions that were, first of all, administratively granted, then subsequently granted by the Planning Commission. At this time, the Applicant is requesting another time extension to both permits, as well as for amendments to certain conditions of Use Permit No. 126, I believe, 106. The conditions they€re requesting are, first, for the Use Permit, would be to Condition No. 3, which is the additional time in which to secure Plan Approval. They are also requesting to delete Condition No. 6 of Use Permit 106, which was to do the intersection improvement at the Ainaloa Boulevard-Pahoa Road intersection. That, those improvements have since been completed by the State Department of Transportation when they had improved the, this section of the Keaau-Pahoa Road. The Applicant is also requesting that Condition No. 7 of the Use Permit be amended. Condition No. 7 related to improvements along Ainaloa Boulevard; and, specifically, the condition stated that the Applicant would have to construct improvements or improve Ainaloa Road to County-dedicable standards. The approximate distance from this intersection, which is the Keaau-Pahoa Road, all the way to the property would be approximately 3.7 miles in distance. And, finally, for Use Permit No. 106, the Applicant is asking that some of the community benefit assessments that were required as part of Condition No. 9 be deleted. 3 As the Commissioners will recall, the Commission, there was a request for a Contested Case Hearing by Mr. Ole Fulks and the Commission granted the standing to Mr. Fulks. The Commission also requested that the Planning Director secure a Hearing Officer for, to hear the Contested Case Hearing. We had solicited the assistance of Mr. Colin Love, who€s an attorney-at-law, to be the Hearing Officer. Mr. Love had conducted a Contested Case Hearing and had presented its Findings, proposed Findings to the th Planning Commission; and that was submitted to our office on October 8. Unfortunately, and I take the blame for this, but I had scheduled the hearing today not knowing that the 15-day requirement for filing of exceptions was today; and this is why Ms. Song, the Applicant€s attorney, had filed the exceptions in a timely manner at today€s meeting. With that, I€d like to turn, unless there are any questions, I€d like to turn it over to the Hearing Officer to go over his report. GALDONES:Commissioners, any questions of Norman? None? SONG:Mr. Chairman, I€m Sandra Song and I represent the applicant; and I just would like to raise a procedural matter. I understand Mr. Hayashi wants to turn this matter over to the Hearing Officer. And I have not appeared before this Commission for many years. However, all I can do is look at the Commission€s rules; and as I read the Commission€s, a Hearing Officer is retained to, by the County, to conduct a hearing on behalf of this Commission and to prepare a report; and a Hearing Officer€s job is done when that report is submitted. And I might also note that your rules provide that even the exceptions that we can file in this matter are only to be served on parties, not onto the Hearing Officer. And I believe it would be improper for Mr. Love to get up today before this Commission and explain or defend his report. He has submitted it, it€s for you to take it and accept it or reject it. And if he does anything like I suggest, which is to comment on or present his report, he€s becoming an advocate and like a party; and that is, as I read the rules, totally improper. So I would object to Mr. Love participating in all of the proceedings today. GALDONES:Ms. Song, that will be taken it into consideration; and I will direct the Commissioners as to how we will be proceeding. And if you have any objections to the way we, I am directing the Commissioners to proceed, then you can raise that objection to that process. SONG:Thank you. GALDONES:You€re welcome. Ms. Leithead, representing the Department, you have heard Ms. Song€s objection, do you have any comments to her objection? LEITHEAD-TODD:We think that€s within the determination of the Planning Commissioners as to how they wish to proceed. 4 GALDONES:Thank you. Mr. Torigoe? TORIGOE:Thank you, Mr. Chairman. Having heard the objection, I think we do need to proceed with a little bit of caution since there was a formal objection raised with respect to Mr. Love€s participation. Now he is basically commissioned to provide the Commission with a report and proposed findings, which he has done. And I think, as Ms. Song had stated, the rules seem to indicate that the parties should have an opportunity to respond to the report. And I do feel a little bit uncomfortable with, you know, with just kind of opening the floor to allow Mr. Love to make further comments, and that may be in rebuttal or that may tend to support some of his conclusions. So, you know, I feel a little uncomfortable with just opening the floor for Mr. Love to further comment on his proposed findings and report. So I€m not sure exactly what, at this point, we€re asking Mr. Love to do. I suppose if he justwantstopresentthedocumenttoyouandseeifyouhaveanyparticularquestions about that authenticity of it, that€s not a problem. But I would feel a little concerned about going, you know, allowing him to make excessive commentary on the substance. GALDONES:Thank you, Mr. Torigoe. Commissioners and counsel present here, this is my instructions to the Commissioners as to the procedure, how we will be proceeding on this matter, and I€ll open it up for discussion so we all can be on the same page how we will be proceeding. The Commissioners have received three sets of Conclusions of, Findings of Facts, Conclusions of Law, and Hearing Officer€s Recommendation. We have received Mr. Colin€s; we have received, representing the Department, Ms. Leithead-Todd€s; and, also, we have received from the Applicants, Ms. Song€s. So those are the three sets of Findings of Fact, Conclusions of Law, and Hearing Officer€s Recommendation. These have been submitted to the Commissioners for your review and, today, we will be making a decision on those. In terms of procedure, we will be, I will be entertaining to accept Mr. Love€s Findings of Facts, Conclusions of Law and Hearing Officer€s Recommendations; and if the Commissioners have any questions for clarification purposes, now, we will be directing it to the maker, which is Mr. Love. Then we also will be giving the same opportunity to, for you to question the Findings of Facts, Conclusions of Law and Hearing€s Officer recommendation from Ms. Leithead- Todd and, also, from Ms. Song. This is for the purposes of clarification and not for further rebuttal. That is how we will be proceeding. However, there€s a little twist in this because of what Norman had mentioned, is that the, was that, the 15-day period in which they have a chance for rebuttal. HAYASHI:Yes. The deadline to file exception was today from the, that was 15 days from the date that the Hearing Officer filed his report with the department or to the Planning Commission. 5 GALDONES:So, then, we will also be acting on the exception that was filed by Ms. Song. And does the department have also an exception to file, Ms. Leithead? LEITHEAD-TODD:No, we€d like to just proceed with the hearing today. GALDONES:Okay, so, then, that would be the only exception that we will be dealing with. So, procedurally, being that this -. LEITHEAD-TODD:Mr. Galdones, I think you also have to ask Mr. Fulks his position, as he was the one that requested a Contested Case. SONG:Mr. Fulks. GALDONES:Mr.Fulks? FULKS:Sorry,Icouldn€thearwhatyouweresaying.Whatwasthat? GALDONES:Doyouhaveany,haveyoureceivedthecopyoftheFindingsof Fact, Conclusions of Law and Hearing Officer€s Recommendations? FULKS:Yes, I have. GALDONES:Do you have any exceptions to the report that was submitted? FULKS:No, I don€t. GALDONES:Okay. Thank you. Ms. Siracusa? SIRACUSA:Well, when I was reading the transcript, I noticed that there were quite a few typos and two of them, especially, may be substantive. And, so, I would like them corrected for the record, just so that we€re on the same page and for clarification, th and this is in the transcript. One is that the road is not 8 Road but 8 Road. And the other is that during Mr. Safarik€s testimony, it refers continually to communities‚ when the word should be committees.‚ And I think that in order to understand what he€s talking about that should be corrected in the transcript. GALDONES:Ms. Siracusa, when we get to those documents, can you point that out to us, please? FULKS:Mr. Galdones? GALDONES:Mr. Fulks. FULKS:Actually,Idorecalltherewasoneerrorinthe,Mr.Love€s Findings of Fact, Conclusion of Law. Perhaps I stuttered in my testimony in the 6 Contested Case. But he states, I don€t know if it€s important but he states that Eight Road in Hawaiian Acres meets the, essentially meets the highway, the Volcano Highway; and that€s not quite true. It takes a jog, and A Road and then Kuauli or Kuauli Road, and then it meets the highway. And I don€t know if, you know, it matters but there is that error of how the road meets the highway there. GALDONES:Okay. So noted. Commissioner Graham? GRAHAM:I wanted to speak to Ms. Song€s commentary before, about procedure and whether the Hearing Officer should speak to us now, and all like that. Is it appropriate for me to sort of -? GALDONES:Yes, this would be an appropriate time. Because once the discussion has ended, we will be adopting the procedure and, so, all the parties will be on thesamepage.SoifyouwanttospeakaboutMr.Love€sparticipationinthehearings, you may do so at this time. GRAHAM:So I don€t, the basic place I€m coming from is I don€t understand what her concern is. And as a basis for that, it seems to me that Mr. Love is an impartial hearing officer who conducted the hearing and has seen the submissions from the three parties and has come with his proposal for us; and I haven€t seen anything, anybody claiming that he was other than impartial in his work to this date. So I would think that our questioning of him, like I would presume to question him about a few of the things that he has written, is based on our understanding of why this impartial person came to these specific Findings of Fact and Conclusions of Law. So my sense is that isn€t prejudicial to anybody in this proceeding, so that€s why I€m not understanding the concern. GALDONES:Mr. Love will have the opportunity to be questioned. His report will be questioned by the Commissioners and he will be allowed to respond to your question, if you have any clarity, clarification that needs to be done to his report. GRAHAM:So then the gist of the concern was that he shouldn€t be introducing additional testimony here, other than in response to the questions that we come forth with about what he wrote. Is that correct? GALDONES:That is correct. Yes, sir. SONG:Mr. Chairman, for the record, I just want to place an objection on the record to any testimony at this hearing or any statements by Mr. Love. I mean, this is for the record. Because any answer to questions that he might take to advocate his position or advocate against somebody€s objection, he becomes like a party and advocating, rather than an impartial hearing officer. In addition, your rules do not provide for Mr. Love to do anything more than submit his written report to you. So I€m just placing my objection on the record. 7 GALDONES:Commissioners and counsel -. Ms. Song, I€ve heard your objection and it is our desire, as Commissioners, to bring this to rest here today and do not want to put ourselves into a position where there€s continued litigation as to how we would be proceeding. So the Chair needs to proceed with caution, considering the objection that you have raised. Also, on the other hand -- there€s validity in your objection. However, on the other hand, I want to make sure that the Commissioners fully understand the documents that they are considering and will be making a decision upon. So taking both into consideration, the Chair will proceed with caution and, hopefully, that the parties will be able to accept the decision that we render today without any further litigation. Any further -? Commissioner Springer? SPRINGER:On this matter, then, what part of our rules are we looking at in Section 4 of the Planning Commission rules? GALDONES:Mr.Torigoe? TORIGOE:Thankyou.Rightnowweareatapointthatisgovernedbyyour Rule 4-33. We have received the Hearing Officer report; we€ve received one set of exceptions. I understand that the County is waiving the opportunity to file any further support of the Hearing Officer€s report. Mr. Fulks, are you planning to file anything else with respect to the Hearing Officer€s report? FULKS:No, I€m not. TORIGOE:Okay. So, then, you are at the point which you can do two things. You can, under 4-32, you can direct oral argument -. I understand nobody has specifically asked for oral argument at this point. SONG:Yes, no, I have. I€ve submitted a written request for oral argument, along with my objections. TORIGOE:You did. Okay. All right, I€m sorry. And, so, you need to consider whether to grant oral argument from the parties; and then under Rule 4-33, Subsection (b), since we have exceptions filed, Upon the filing of the exceptions and briefs or statements, the Commission may render its decision forthwith upon the record; or if oral argument has been allowed, after oral argument; or may reopen the docket and take further evidence or may make such other disposition of the case that is necessary under the circumstances, provided that where additional evidence is taken and has not been heard and examined by all of the Commission members who are to render a final decision, the Commission shall comply with the procedure in section 4-23 of this rule.‚ So, essentially, you have the Hearing Officer€s report before you as well as a piece of the other proposed Findings and Decision. You need to determine whether to allow oral argument regarding the adoption of a set of Findings and the Decision, and you also have a fairly wide discretion of whether you want to even taken further evidence at this point and then make a decision. 8 SPRINGER:Mr. Chairman, may I make another inquiry of Mr. Torigoe? GALDONES:Proceed. SPRINGER:I looked at, reviewed that section briefly that you just quoted back to us; and I take Ms. Song€s objection seriously as I looked literally at the document. I don€t see the provision for the Hearings Officer to make oral presentation before us. Can you give me some guidance there? TORIGOE:Right. And it doesn€t, well, let me just turn back -. SPRINGER:It doesn€t, I don€t see anything disallowing it, either. TORIGOE:That€scorrect;and,then,so,thisbeingaContestedCase proceeding, we do try to do substantial justice and we don€t necessarily have the same kind for formality it would follow in a court. But, of course, this is going to be reviewed by a court ultimately if one of the parties feels that€s necessary, so we do need to proceed with some caution. The normal practice has been to allow the Hearing Officer to come and to present to you the report and to take questions. I don€t think we€ve ever had a specific objection, such as Ms. Song as raised; but since she has raised it, we need to take it seriously. And, so, that is why my remarks were cautionary that, you know, I think the rules do reflect in what is written a basic preference that the parties have opportunity to respond in writing to the Hearing Officer€s Report. And, so, to the extent that we open up too much to the Hearing Officer, you know, presenting what may end up looking like argument in support of his conclusions and his report without allowng the parties an opportunity to respond to it in writing, then there will be arguments about this. Now, I think the Chairman is concerned that the Commissioners have an opportunity to make sure that they understand what the Hearing Officer has done; and there is a line that is difficult to draw between, you know, asking the Hearing Officer questions that ensure that you understand what happened and that is consistent with just what€s in the record. And the Hearing Officer may have a difficult time not going over that line and starting to justify what he has said, which some of the parties may not agree with. And, so, I would advise you to proceed with caution in your inquiry of the Hearing Officer. SPRINGER:Thank you. GALDONES:Further discussion? Commissioners, so that we€re clear, considering the objection raised by Ms. Song and the discussion that, or the instructions from counsel, the procedurally correct, I€ll use the terminology, procedurally correct thing for us to do is just to accept the reports, make the decision on those reports that are before us this morning. But the Chair was trying to be liberal and trying to be fair with all the Commissioners and allow you folks the opportunity in case you folks did have any questions regarding any of the reports, which is a fine line; and we need to proceed with caution if that is the procedure that we will be adopting. So this is where I will be asking 9 for some guidance from the Commissioners what comfort level are you folks willing to proceed with. Number one, to accept the reports, as presented, make a decision on the reports as presented to you, or do you want the opportunity to question the makers of the report? So I open it up for further discussions. Commissioner McCall? MCCALL:Maybe this would be, as I say, a question for the Commissioners. Do any of the, if the Commissioners have questions for Mr. Love, then we can proceed with that. If nobody has any questions, we can just, we can dispense with it at this point and we don€t need to, we don€t need to bother with this any further. So, maybe just, maybe if we could just ask all of the Commissioners -. I don€t have any questions for Mr. Love for myself. GALDONES:Ms. Siracusa? SIRACUSA:Well,IhavenoquestionsofMr.Love.Therearesomeissuesthat were raised in the transcript, but they€re also in the Background Report and some of the other submittals. So that means that we can still ask those questions, is that correct? TORIGOE:Well, you could ask those questions of the parties, certainly. SIRACUSA:Of the parties, yes. GALDONES:If we choose to allow, if we choose to adopt that process, yes, you will have that opportunity to do so. SIRACUSA:Okay. I would like to have that opportunity. Thank you. SPRINGER:I have no questions for the Hearing Officer. FULKS:No questions. GALDONES:Okay. Then, Commissioners, Ms. Siracusa has stated that she does have some questions that she may want to raise on the reports. SIRACUSA:No, no, no. You€re misunderstanding, excuse me, you€re misunderstanding me. Not on the report itself, on certain statements that were made in the report but they were also made in the Background information. So I don€t have to, I was asking, I don€t have to raise them regarding the report. There€ll be other places where I can raise those issues. GALDONES:Okay. Thank you for the clarification. If that is the case, yes, you€ll have the opportunity to raise that and I will allow that, at some point in time, for you to bring that up so we can adopt the report with the corrections in it. That€s fine. TORIGOE:Mr. Chairman? 10 GALDONES:Mr. Torigoe? TORIGOE:Yes. I€d like to just suggest that, see if we can have the parties come to an agreement on a procedure to follow today. Basically, as I said, one of the things that you have to do as a Commission is determine whether to allow oral argument. If you allow oral argument then you have to say, okay, we€re going to have oral argument. If you want to have questions of the parties, and maybe we should say we€ll have oral argument, then we€ll have a time of questioning of the parties by the Commission. And then we€ll have to have a period for any public testimony as well, and then you go into decision-making. I wanted to ask the parties if they had any suggestions or if that sounded like an acceptable procedure for today. SONG:Mr.Chairman,SandraSongrepresentingtheApplicant.Iwould, we submitted a request for argument. I also would like the opportunity to havealimited time to submit some evidentiary matters, a short statement by Mr. Fuke. Mr. Fuke has some testimony, and Phil Brazier from the community association. Also, I have a letter that I€d like to submit to the Commission. And the only, I would not normally ask for this, but it€s because, it€s basically because of the Hearing Officer€s report that€s submitted, and there are two significant issues. One is that the Hearing Officer€s report did not address what the consequences would be if the Commission adopts the report. But, most importantly, for the Commission, for the sake of this application and all other applications, this Hearing Officer is suggesting that this Commission does not have the authority to amend conditions in permits. And if the Commission adopts the Hearing Officer€s recommendations, essentially this Commission will be limited to amend any conditions in any other permits. And that is an issue that was not raised by any of the parties to the proceedings, it was an issue that was raised by the Hearing Officer alone. And that issue is a serious issue that needs to be addressed today. And I think if we have argument and if Mr. Fuke and Mr. Brazier can submit some limited testimony, I think that will assist the Commission in this matter. TORIGOE:Okay, Mr. Chairman, I guess that adds one more issue that needs to be dealt with, that is whether you€re going to accept further testimony and evidentiary matter today; and that is within your discretion to do so as a Commission. Looks like Ms. Leithead-Todd would like to comment on that? LEITHEAD-TODD:I was going to say if Ainaloa is going to submit additional testimony, then we would also like to have the opportunity to have the Planning Director submit or testify additionally, particularly if there€s any need for rebuttal testimony. GALDONES:Now the Chair is confused, but let me see if I can sort through this. Ms. Song, your initial objection is for the Hearing Officer to have the ability to further discuss this matter. So am I understanding you that as far as the parties and also the department€s representative, you want the ability to continue to provide further 11 testimony? Is that primarily your objection to Mr. Love€s presentationoffurther discussion on this matter? SONG:No, no. First of all, Mr. Love is aHearing Officer, so he€s not a party and he can€t advocate for any position. He has already submitted his report to you, you can accept or reject the report. I€m asking that, the Commission has the authority to reopen the hearing and allow some additional testimony. I€m asking that under the circumstances and, again, we don€t want to take too much time from the Commission, we would limit that testimony, we have no objection to allowing, you know, to having Mr. Yuen testify as well and I€m sure Mr. Yuen won€t be lengthy either, to take too much of your time so we can just address these issues. And, frankly, these issues, because Mr. Love raised this new issue on the authority of the Commission and he did not at all address the issue of the consequences of granting the permit in his report, I would submit that additional testimony, a brief additional testimony would assist the Commission in makingitsdecision. GALDONES:Thankyou.Givemeamoment.CommissionerSpringer? SPRINGER:AmIunderstandingcorrectly,then,thatifweweretoproceed from this point, we need to take, act on a motion, or act on the motion for oral arguments made by Ms. Song, and then move also to reopen the hearing to receive additional testimony? TORIGOE:Well, to clarify. I think Ms. Song was just asking to allow further evidentiary matter to be presented, so, yeah, that€s one thing you would have a motion on; and another thing would be to have a motion on whether to have oral argument so, both of those matters, yeah. And then go on to whatever decision-making you need to accomplish, and that would include, I think for the record, adopting some form of Findings of Fact, Conclusions of Law and a Decision and, also, rejecting the other presented forms to the extent they€re not consistent with what you adopt. SPRINGER:Do we need to take formal action on the Haring Officer€s report that has been presented to us, before we go into the rest of the matter? TORIGOE:No, I think that would be part and parcel of your decision-making. GALDONES:Commissioner Graham? GRAHAM:Addressing this to Mr. Torigoe. I€m wondering if there€s a separation between what we could call legal issues and what we could call substantive issues here. Ms. Song kind of brought up the, what I interpret as a legal issue that appears in the report of the Hearing Officer. So in order for us to properly question the attorneys here or whomever else about that legal issue, I don€t presume we need to open the hearing, reopen the Contested Case Hearing for any evidentiary kind of material. Is that correct? 12 TORIGOE:That€s, well, it depends on what, you know, the basisof the legal issue, too, because it€s very difficult to separate what you might term a legal issue from the factual basis for that issue. And I wouldn€t, not knowing what your legal issue is and what its relation is to what Ms. Song wants to present, I think it€s very difficult to say that because you have legal issue that doesn€t require further evidence, you know, that that necessarily should cut off presentation of evidence that the parties feel is relevant at this point. GRAHAM:I wasn€t speaking of any legal issue I had. I was speaking of the issue that Ms. Song brought up with regard to the Hearing Officer. And I was wondering if that is, you know, part of our decision of whether to reopen the hearing or not, or whether we could deal with that issue fairly and fully without reopening the Contested Case Hearing. TORIGOE:Yeah.Iunderstoodhertosayafewminutesagothatthematerial that she would like to present today, the new evidence that she would like to present is not related to her objection to Mr. Love€s testifying. Is that correct, Ms. Song? SONG:Right, that has nothing to do with him testifying. TORIGOE:Can you speak into the mike. SONG:I€m sorry. The evidence we wanted to present had to do with the impacts of this project, the impacts of adopting Mr. Love€s recommendation on the project itself. We also wanted to make arguments separate from the evidentiary matters. We wanted to make arguments on the legal issue that he raised for the first time. And I€m sure Mr. Yuen would want to raise, would have some comments on the legal issue of the authority of the Commission to amend conditions. TORIGOE:Yeah, I kind of -. I think, given the fact that this is, you know, there already has been Contested Case Hearing completed on this matter, you can limit the amount of time and volume of material that you€re going to receive at this point. And maybe it would be helpful if we could get an idea from the parties of what it is that they would like to present if you give them the opportunity. MCCALL:Chairman? GALDONES:Commissioner McCall? MCCALL:I€m just wondering if we€re opening ourselves up for more litigation by opening up evidentiary, you know, bringing in more evidence after they€ve had the chance to do it at the hearing under the Hearing Officer. And we have one party who is now saying they want to, they have prepared more evidence to bring in. The other parties are being, you know, this is being dumped on them at this point in time. I don€t think it€s fair. My general feeling is that all parties were given their chance at the hearing under the Hearing Officer to present their evidence. My assumption is that much of this 13 evidence has already been, is in evidence; and in their oral arguments they can revisit this evidence and give their arguments for it. But I€m not sure -. It seems to me we€re just making more trouble for ourselves if we do that; but I don€t know, let€s see what our Corporation Counsel says about that. GALDONES:Mr. Torigoe? TORIGOE:Well, you know, to the extent that the parties are willing to reopen the hearing then you€re probably, it€s probably safer to allow the parties to have their say. I understand the County is willing to reopen it. I don€t know if Mr. Fulks has any objection to that. FULKS:I would have no objection. GALDONES:Okay.So,then,Commissioners,I€mgoingtocounton,relyon our Corporation Counsel to try to keep us out of trouble. So if I misstate anything, Mr. Torigoe, please jump in. The matter before us, procedurally, we need to decide if we want to open up the hearing to accept oral arguments. Also, as Ms. Song had indicated, she would like the opportunity to present other evidence. SPRINGER:Mr. Chair, is the motion in order at this time now? GALDONES:Yes, ma€am. SPRINGER:Mr. Chair, I move that on the matter of Ainaloa Development Corporation, SPP No. 827/UP No. 106, that the Hawai`i County Planning Commission reopen the hearing in order to receive additional testimony, including oral arguments from the parties. GALDONES:Commissioner Siracusa? Is there a second to the motion? GRAHAM:Second. GALDONES:All right. It has been moved by Commissioner Springer and seconded by Commissioner Graham that we open up the hearing to allow oral arguments and further evidence be presented to the Commissioners. Discussion? SIRACUSA:At that time would the Commissioners be able to question the parties? GALDONES:Yes, you do. Any further discussion? From counsel, Ms. Song, do you have any comments on the motion before us? SONG:I just would request that it be granted. GALDONES:Ms. Todd, no comment? 14 LEITHEAD-TODD:No comment. GALDONES:Mr. Fulks? FULKS:No comments. GALDONES:Thank you. Commissioners, so, two out of three, you€re standing on your own. Anyway, just being facetious. Hearing no further discussion, all those in favor of the motion say aye. COMMISSIONERS:Aye. GALDONES:Opposed say nay. Okay, motion carried. Okay, so that is how we willbeproceeding.I€dliketo,atthistime,formallyswearinthepartiesbeforewegoon into further dialogue on the subject matter. Will you please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Hawai`i County Planning Commission? TESTIFIERS:Yes. GALDONES:Could the parties please state your name and residence address? Speak into the mike so that we can put it on record, starting with Mr. Fuke. FUKE:Good morning, Mr. Chairman, Members of the Commission. My name is Sidney Fuke. I€m a planning consultant, I€m here representing Ainaloa Development Corporation. My residence address is 1358 Mele Manu Street in Hilo. GALDONES:Ms. Song, will you be presenting any testimony? SONG:I€ll be presenting argument, but I don€t think I can testify as a witness. Did you want the attorneys sworn in? GALDONES:Just to be on the safe side, why don€t we swear you in, too? SONG:All right, that€s fine. GALDONES:Do you swear or affirm to tell the truth on this matter now before the Hawai`i County Planning Commission? SONG:I do. FULKS:I do. YUEN:I do. 15 LEITHEAD-TODD:I do. SONG:I€m Sandra Song. Good morning, Mr. Chairman and Members of the Commission; and I hope I€m not, I€m duly burdening you. And I want to thank you for taking me second since I was tied up in Circuit Court on a matter. I€m representing the Applicant, Ainaloa Development, in this matter. GALDONES:Mr. Fulks? FULKS:My name is Ole Fulks. I live on Ali`i Street in Orchidland. My home abuts the proposed golf course development. I brought this Contested Case. I guess that covers it. LEITHEAD-TODD:Good morning, members. My name is Bobby Jean Leithead-Todd. I€mtheDeputyCorporationCounsel,hereastheattorneyforthePlanningDepartment and the Planning Director. YUEN:Good morning, Chris Yuen, Planning Director, 101 Pauahi Street, Suite 3, Hilo. GALDONES:Thank you. Commissioners, you have the report from Mr. Love, who was the Hearing Officer, and it is my understanding that the Commissioners have accepted his report without any further discussion on this matter? Hearing none -. TORIGOE:What do you -? GALDONES:Mr. Torigoe? TORIGOE:I just want clarify, when you said the Commissioners have accepted his report, what do you mean by that? GALDONES:Have accepted it into the record on its face value. TORIGOE:Okay. So it€s just in the record for decision-making at this point, right? GALDONES:That is correct. Okay. Being that there is no objections stated, then, Norman, Mr. Love has been excused; and we€d like to thank him for sitting in as the Hearing Officer and for the work he has put in. Thank you, Mr. Love. LOVE:Thank you for the opportunity. GALDONES:Okay, the Applicant has submitted also a proposed Findings of Fact, Conclusions of Law and the Hearing Officer€s recommendation and, also, an exception was filed also by the Applicant. Ms. Song? 16 SONG:Thank you. Mr. Chairman and members of the Commission, I would like to call one witness, Mr.Phil Brazier, from the community association. GALDONES:Ms. Song, could you speak -. SONG:I€m sorry. Can you hear me? All right. GALDONES:Yeah, you have a low volume voice that€s why so -. SONG:Okay. I wanted to call one witness in this case. That€s Phil Brazier, he€s with the Ainaloa Community Association. I don€t believe he has been sworn in to testify, though. GALDONES:Would you like to have him make the presentation now? SONG:Yes. GALDONES:Could Mr. Brazier, please step forward. The chair next to Mr.Fukeisfine.Mr.Brazier,Ineedtoswearyouin.Couldyoupleaseraiseyourright hand? Do you swear or affirm to tell the truth on this matter now before the Hawai`i County Planning Commission? BRAZIER:I do. GALDONES:Could you please state your name and your residence address, and could you please speak into the mike so we can have you recorded. Thank you. BRAZIER:Yes. My name is Philip Brazier. I€m Vice President of the Ainaloa Community Association. I reside at King Kamehameha Boulevard, at 16-2194, Pahoa, Hawai`i. GALDONES:Ms. Song. You may proceed. SONG:Mr. Brazier, would you like to tell the Commission why you€re here and what you have to say about this project? BRAZIER:Yes, I€m basically here to give the Commission the results of the Board of Directors which I am associated with with the Association. The Board of Directors are totally in agreement, so I€m here to represent them. We also sent out a survey to some 3,300 members of the Association to ascertain the feelings of the extension of the permitting for the golf course; and we had an overwhelming majority of yes. So this is what really I€m here to let you know, that we have no opposition, we are fully in favor. And, also, the items that were mentioned a little while ago that should not be in there now, we agree they should be removed, and we do have the items that should be in. They 17 are to provide, the Ainaloa Development Corporation will providea water standpipe for community use on Ainaloa CommunityAssociation property, provide reasonable-priced green fees for residents of Ainaloa Association. These are the only requirements that we are really asking for. And I should mention it was discussed that Ainaloa Corporation offered to donate $1 million to the Association for the improvement of Ainaloa Boulevard. That€s now really becomes a non-issue as the Association is delegating or giving the Ainaloa Boulevard to the County. It is in the process of being finalized. We are waiting for one document to be concluded by the Department of, I believe, recorded anyway, recorded in the Department of Land Development. Once that is recorded, there will be a vote by the Council in which they will take over complete control of the boulevard which, basically, then takes Ainaloa out of the loop of the $1 million; and so the suggestion then is to donate the $1 million to the County. The th only concern we have is if the, this has to be concluded by December 6; and if it is not th concluded by December 6, then the $1 million to the County becomes moot. Thank you, sir. GALDONES:Ms. Song? SONG:I have no further questions for Mr. Brazier. If Mr. Fulks or Ms. Leithhead-Todd have any questions, I have no objections. GALDONES:Ms. Todd? FULKS:I€m sorry, I forgot your name. BRAZIER:Philip. Philip Brazier. FULKS:Oh, okay, Mr. Brazier. On the issue of the survey that was set up by Ainaloa, do you have the wording of the questions? BRAZIER:I don€t have it with me but I do have it in documentation form in the office. FULKS:Oh, okay. Well, I guess we can€t know exactly what the answer is then today. BRAZIER:I think Mr. Fuke has one right here. Here you are, sir. FULKS:Oh. The Ainaloa Development Corporation (ADC) is proposing an 18-hole golf course with related amenities, clubhouse, recreational center on 200 acres of land. The land is located at the end of Ainaloa Boulevard. As part of this project, ADC is proposing to contribute $1 million toward improvements to Ainaloa Boulevard, provide a water standpipe on one of the Association property for use by the community in timesofdroughtandfireprotection,andpreferentialaccesstothegolfcourseand 18 recreational facility. Do you support this project with the aboveunderstandings?‚ Okay. Just for the record then that€s what they answered overwhelming yes?‚ BRAZIER:Yes. FULKS:Thank you. Then I€d like to ask you further about the standpipe cause this is one of the things that I€m asking, that the water be shared with Ainaloa and Hawaiian Acres, now that Hawaiian Acres, well, now that the PEAR connects the two subdivisions and Hawaiian Acres is now also an access to the proposed golf course. I propose that the water standpipe be moved to the County€s connector lot adjacent to the golf course for use of both subdivisions and their fire departments. Can you speak for the Board in Ainaloa to say how they would feel about sharing the water with Hawaiian Acres in that manner? BRAZIER:I don€t believe we will have any problem as the Association. I cannotspeakfortheCountyregardingplacingitontheirproperty.Butasregardstothe Association, no, we would not have any objections at all. FULKS:Thank you. GALDONES:Ms. Leithead? LEITHEAD-TODD:Mr. Brazier, I have just been given a copy of this questionnaire and I note that it€s dated January, 2004. BRAZIER:That would be right, correct, yes. LEITHEAD-TODD:So there hasn€t been any questionnaire that has gone out since then? BRAZIER:That is correct. LEITHEAD-TODD:Do you recall out of the 3,000 that you sent out, how many responses you got? BRAZIER:On top of my head, no, I couldn€t tell you. I can obtain that information but I don€t have it with me. LEITHEAD-TODD:Actually, I believe this is the same questionnaire that was submitted in evidence at the hearing this on? BRAZIER:It could be. LEITHEAD-TODD:And I believe there may be testimony in the transcript as to those responses. 19 BRAZIER:Yes, it probably is. LEITHEAD-TODD:Okay. I note that the questionnaire,while it mentions that Ainaloa Development Corporation is proposing to contribute a million dollars, it has no mention of what is being deleted -- the water tank, the bus stops, and the asphalt paver, or that the earlier condition was full improvement to County dedicable standard. Was there anything that went out to the community association that mentioned what the earlier community benefits package was? BRAZIER:To the best of my knowledge, when the project first began, I believe it was in €95, I may be half a year or so, the, that all information was then mailed out to the membership, at which time they did vote, as I understand it, to accept the proposal that we are referring to. And this is, and then it was over the years extended to allowfurtherpermittingovertheyearstillitranout,Ibelieve,inthebeginningofthis year when it was decided that the items asked for in €95 were not practical and should be looked at, namely, that the leading road on 130 into the Boulevard has been completed by the State. Some of the other items were totally unrealistic. Basically, if the County does take over the boulevard, most of the items requested back in €95 would become non-in, basically moot. LEITHEAD-TODD:I have no other questions. GALDONES:Ms. Song, anything further? SONG:We have no further evidence -. NOMURA:Microphone -. SONG:Excuse me. And we have no further evidence, but we would like an opportunity to make argument. GALDONES:Ms. Todd? LEITHEAD-TODD:I have no other questions for Mr. Brazier. BRAZIER:Thank you, sir. GALDONES:You€re welcome, Mr. Brazier. Ms. Song, would you like to go into your oral arguments at this time? LEITHEAD-TODD:I thought Mr. Fuke was going to -. SONG:No. LEITHEAD-TODD:Okay. 20 SONG:Mr. Fuke has decided not to testify anything, with anything further at this moment. GALDONES:Okay. Before we go into any oral arguments, Mr. Fulks, do you have anything that you want to present at this time? FULKS:Well, perhaps I could mention that although I haven€t objected to the changes that Ainaloa wishes to make in the permit, I did bring up safety issues concerning the PEAR now that Hawaiian Acres roads are also part of the access to the golf course, proposed golf course; and now there€s a lot more roadway concerns here. And they€re asking for a reduction, what is it, $6.3 million to $1 million, although more than double the roadway is now access; and there are safety issues as I brought up in the hearing that, well, will cost them money to address. So I€m not sure that reducing that amounttoonemillionisactuallyfeasible.That€sanissuefortheCountytodealwith, really, not me. Thank you very much. I think that will cover it. Thank you. GALDONES:Thank you, Mr. Fulks. Ms. Todd, do you have anything in evidence that you€d like to present? LEITHEAD-TODD:No, we have no other evidence to add to the record. GALDONES:Okay. I will go into closing arguments. Ms. Song, I will allow you to go, be the first and the last, so you may proceed. Oh, I mean, first being that I will allow the other parties to also make arguments and they do also closing arguments -. SONG:I understand. GALDONES:Not to say that the others will not be able to argue, also. SONG:And I also know that some of the Commissioners may have questions; and if the Commissioners have questions of either me or Mr. Fuke or any other party here, I€m sure none of the parties would object to answering any questions. GALDONES:Yeah, would you like to, procedurally, would you like to do that first before you go to your oral arguments? SONG:I don€t know, maybe the Commissioners would rather ask questions first. Mr. Fuke should be back in just a minute. GALDONES:Okay, then, Commissioners, if you folks have any questions, I will entertain the questions at this time before we go into oral arguments and the closing. Commissioner Siracusa? SIRACUSA:Thank you. Since Mr. Fuke has left the room, I would like to start with Mr. Yuen. I have some questions of him. Mr. Yuen, I had been following, to some 21 extent, the Hokulia project on the Kona side and Judge, if I€m correct, Judge Ibarra€s decision was that the golf courses are not a valid use on agriculturally-zoned land. Is that correct? Would you please clarify that for me. YUEN:Actually, the law, State law, doeslist golf courses as a permitted use on agriculturally-designated, on agriculturally-districted land except on Class A or Class B soils. Neither this project nor the Hokulia golf course was located on Class A or Class B soils. The gist of the Judge€s decision, by the way, the County requires a Use Permit for golf courses. This is part of the County Zoning Code and not part of the State Land Use law. That€s why they needed a Use Permit for this golf course. They also needed a Special Permit because they wanted to use the clubhouse for more than strictly a golf course clubhouse. That€s the main reason for that. The Judge called into question the, a project that included residential, that included a large number of one-acre lots that would have residences on them associated with the golf course. SIRACUSA:It was that part of it that he felt was not an appropriate use of agriculturallands? YUEN:Right.Thegolfcourseitselfwastheonly,there€saninjunction against further development of the project at this time by the court there, but there€s no injunction against the construction of the golf course. SIRACUSA:I see, okay. I thought that possibly might have been a precedent that would apply here. And then I was going to ask if this was already grandfathered in, because in the testimony on Page 42, Line 20, it says, because golf courses were a conditionally permitted use within the County Ag Zone.‚ And I was wondering if it says were‚ does that mean was then but it€s not now, and how would that relate to any changes in law in the interim period between €92 and today? Mr. Fuke, now that you€re back, there had been several references to the funding of the developer and how he had initially planned to do this membership thing in the Japanese stock market. I know that also planned to make use of that funding Onoloa Onsen source. What is not mentioned here or on any of the other information is that the Japanese government eventually decided that that was not a legal use of the Japanese stock market, and that€s what put an end to this using this money scheme, this funding scheme, both for Ainaloa and for . So they determined, as I recall, that Onoloa Onsen that was not a legal use. So I€m wondering since Ainaloa is claiming that that€s one of the reasons why they needed the extension, because they€re funding source dried up, it seems to me almost as though you say, Well, I was going to rob a bank to get the money, but then I found out it was illegal so I couldn€t get the money, so I want an extension. And I€m wondering how you would respond to this? FUKE:Thank you very much. Sorry, I had to use the restroom while the question was asked, I guess. But what happened was after the permit was initially issued back in 1992, there was an appeal and it finally went all the way up to the State Supreme Court; and it was ultimately disposed of, I believe, in 1997. And that€s why during that 22 period nothing happened, you know, because it was under the judicial review. There was one time extension granted by the Commission right after that until I, I believe, 1998, I think; and then this is now, the subsequent amendment. I€m not conversant on the facts as far as like why they€re not using the same so-called method of financing the golf course, you know, as you are. But all I know is that that€s not the way that they wished to finance this project, so it€s pretty much going to be financed in the conventional way. And because they€re trying to finance it in a conventional way, unlike when it was at that time deemed to be financially profitable in the late 80s and early 90s, you know, in the Japan economy, that€s the reason why they€re not in a position, you know, to honor like many of the other kinds of commitments that they had made back in 1992. SIRACUSA:I have a few more. Shall I keep going? GALDONES:Proceed. SIRACUSA:Thank you. On Page 47 of the transcript, it talks about these time extensions,theonethatwasgrantedadministrativelybytheDirectorandthen subsequently two amendments which were granted by the Commission: one in €95, which took it up to €98; and the other one which was granted in €98, and took it up to the year 2003. So Plan Approval, as I understand it, has now totally expired; and that€s why we€re here today. What would be the ramifications if we did not grant Plan Approval today? Would that mean that everything would have to go back to the drawing board from the giddyup? I would like to know what, you know, what the results would be if we decided not to grant Plan Approval today. GALDONES:Staff? SIRACUSA:I mean, not to renew since Plan Approval has already expired. GALDONES:Is Norman or Jeff there? MCCALL:He just stepped out. SIRACUSA:Could the Director answer that question? YUEN:You have a request for a time extension here today. SIRACUSA:Yes. YUEN:If you deny the request for time extension, the permit is dead. SIRACUSA:Okay, cause what I€m asking is a time extension to something that€s already expired -? 23 YUEN:Yes. SIRACUSA:I mean, can we do that? Usually, time extensions are granted while something is still operative but moving towards the deadline; and here it€s already expired. FUKE:Except that the application for a time extension was made prior to this expiration. SIRACUSA:Okay. Okay, so if we deny the extension, then the project is dead; and if they want to go forward, they have to start off from the giddyup. Is that correct? YUEN:They would be allowed to reapply for a new permit, but this permit would be dead. SIRACUSA:Okay. One of the reasons I€m asking about this is because, asit hasbeenmentionedbefore,therehavebeenalotofchangessince1992wheneverything began. For example, a lot more houses have been built in Ainaloa, the Puna emergency access road has opened up and, so, there are a lot more building that has gone on in Hawaiian Acres as well. There have beenan awful lot of changes, possibly even some law or rule changes. And, so, things like the traffic studies, you know, which were based on traffic back then, with a lot more buildings in both of these subdivisions and a lot more happening, as we speak, there€s going to be even more of a traffic impact. So I€m, you know, I€m looking at these kinds of things and wondering if it wouldn€t be better to go back from scratch; and that way we would be able to look at all those changes that have happened and take them into consideration which, right now, we can€t do, if my understanding is correct. I also wanted to -. Mr. Fulks, you live right next door. Do you happen to know what the annual rainfall is up there? This was never brought up in any of the documents we have gotten. FULKS:Well, of course, rainfall will vary quite a bit from year-to-year, but approximately 225 inches. SIRACUSA:Thank you. I looked at the technical reference report for Puna the other day and it showed that area somewhere between 150 and 200 inches. I live on the other side of the forest from there and mine is 200 inches. I€m wondering about herbicide use on the golf course and the effects of high rainfall on polluted runoff. I had asked for, there was mentioned in here of the department€s guidelines for golf courses; and when I asked for a copy, all I got was just a layout. It didn€t say anything about how, you know, using integrated pest management would be required for designing the course in order to save large native trees, or anything like that. 24 Of course, Ainaloa is all the way at the top of the Ainaloa Subdivision; and if there€s a lot of polluted runoff, everything goes downhill, and that means that there would possibly be some major impacts to the community lying downstream. Do you have any comments you would like to make on that issue? FULKS:Well -. Is that me? SIRACUSA:Yes. And then I€ll ask the others as well. FULKS:I know this area very well, really; and although we have high rainfall there, there isn€t flooding. The runoff is, I don€t believe will be a significant problem. Let€s see, as far as that, well, I did study the EA quite extensively about 10 years ago when they first did it. There€s a lot of matters in there that I had forgotten probably now, but I know that they do intend to leave as much native foliage as is practical.Ofcourse,they€regoingtohavetotakeoutagreatdeal,buttheyintendto leave it as landscaping around the golf course. SIRACUSA:Thank you. Mr. Fuke, would you like to comment on that question? FUKE:Sure. The request is primarily like for a time extension and modification on two or three of the other conditions. And what I€d like to direct the Commissioners attention to is this, are some of the existing conditions that pretty much address the kinds of questions that you raised. Specifically, there is a Condition No. 2 under the Use Permit, and this addresses the drainage issue, and it requires the Applicant to prepare an erosion control plan, addressing a detailed drainage system meeting with the approval of the Department of Public Works, which shall be submitted at the time of Plan Approval review for the proposed development. As required by the Department of Public Works, all runoff generated from the proposed development shall be disposed of on-site. There€s also like another condition, Condition No. 12, which specifically deals with the integrated pest management system that you€re talking about. And it reads, The use of pesticides and herbicides in conjunction with all phases of operation shall conform with the applicable regulation of appropriate governmental agencies. Also, the applicant shall establish and maintain the golf course in an environmentally responsible manner based upon principles of Integrated Pest Management (IPM) system.‚ SIRACUSA:Thank you. And I have one final question for you, Mr. Fuke. Since the Puna emergency access road is now open, which is one of the big changes that has happened in the area in these intervening years, and there has been a benefits package which has been offered to Ainaloa, and I have a letter here from Hawaiian Acres Community Association in which they€re requesting either a rejection of request for the time extension or equal inclusion into the community benefits package, and I€m wondering how your client would feel about that, equal inclusion in the benefits package. 25 FUKE:Well, specifically in relation to, you know, I think partially, though, the question that, I mean, the comment that Mr. Fulks had raised regarding the location of the standpipe and making it available to the general community, the Applicant would have had no, has no objection in siting that standpipe at a location that the County determines to be, you know, more appropriate. You know, this is in relation to the water issue, because the original package of proposal called for the standpipe to be on Ainaloa Development Corporation, excuse me, on Ainaloa Association€s property, which was kind of like right down the road. Mr. Fulks had raised the issue that well, since the County acquired this property, what about putting it there, so, which is actually closer to the Applicant€s property. So relative to that end, you know, they would have had no objection. In terms of the -. SIRACUSA:ThepublicplayiswhatIwasmorethinkinginlinesof. FUKE:Yeah.Overall,theApplicantwasjusttryingtodevelopaprogram that would address not only the Ainaloa Community Association, but in terms of preferential rates really like for the, basically, the local rates. And if it needs to be, you know, if you€re referring also to the, making the community facility, you know, accessible or provide the same so-called preferential treatment that the Association, Ainaloa Association is granted, you know, to the Hawaiian Acres Community Association, my last conversation with the owner was that, you know, he didn€t have any objection -- Largely because the way that he had seen it is that the more activity there is of the land, you know, or of the facility, then it helps the project overall. So, specifically, to respond to your question we would have no objection. SIRACUSA:Thank you. I have no further questions, Mr. Chairman. GALDONES:Commissioners, any further questions? Commissioner Graham? GRAHAM:I have a couple of questions. I could start with Mr. Fuke or Ms. Song. My sense from attending the Contested Case Hearing and reading the material is that some of your current objection to the original conditions, especially, I€m speaking of Condition No. 7 and No. 9, which you€re asking for relief from, some of the problems there from your perspective is that really the magnitude of those conditions are, let me use the word, disproportionate to the project. And when I attended the Contested Case Hearing I was thinking that you might be providing information as to what the scale of the project was, you know, monetarily, or whatever otherwise is appropriate, so that we could sort of make this determination whether it was disproportionate. But, in fact, all that came forth, as I recall, was comparing it with the contribution by the developer if he chose to keep it in a sort of an Ag-Residential scenario. So, my question is I€m kind of wondering why, you know, you didn€t bring up the other half of the two parts if we€re going to try to scale the benefit package you€re offering to mitigate your impact along with the scale of the project. We don€t really have the scale of the project in mind to sort of do any kind of decision on whether it€s disproportionate or not. 26 And the only other situation I can think of in that regard was wedid have an individual in Puna, either Hawaiian Beaches or Paradise Park, I forget which it was before, who was going to do, I believe, was like an auto repair shop in his lot and he was being asked to improve the road from the main road to where his lot was. And, so, I remembered in my mind at the time trying to think was that a disproportionate asking, given the small size of his particular project auto repair. So, anyway, I wanted to put the same sort of thought process in mind on this one, but we don€t have anything from you folks about the scale of the project. SONG:Mr. Graham, you do have some things; and as I understand proportionate share has, doesn€t having a bearing on the dollar value of the project. It has a bearing on the impacts of the project. So, for example, this project, and Ms. Siracusa raised an interesting point that you don€t have a current traffic study, whether the traffic studywasdonein1992ortoday,theimpactsofthisprojectarestillthesame.Thereare approximately 50 -. SIRACUSA:Cumulative. SONG:Okay, well, but 50 vehicle trips generated by this project in the morning and 70 in the afternoon, that€s going to be the impact on the road. Now, there€s a cumulative impact on all the other matters, but that€s not changing; and that is substantially less than if this property were developed into a one-acre Ag subdivision, which it can be done without any permits from this Commission. So, the impacts of this project are, you€re looking at this number of vehicle trips. And if you have that number of vehicle trips, is it, is there a rational relationship or a reasonable nexus between a $6 million road improvement and those trips a day, considering the fact that there are 4,000 other lots in the Ainaloa Subdivision. And even if this were developed out, it would only have 175 lots. Even at developed out at 175 lots, a $6 million road improvement wouldn€t be a fair proportionate share out of all the total number of lots. GRAHAM:Thank you. So I understand better where you€re coming from, it€s not that it€s disproportionate to the scale of the project but you feel it€s disproportionate of the particular impacts of this project. SONG:That€s how I understand impacts and impact fees. GRAHAM:Okay. And then I had a question for the Planning Director. Mr. Yuen, could you give us just a background on these roads with regard to the emergency access road? Like the gentleman who testified before said something about, th well, it has to be done, the County has to take over this Ainaloa Road by December 6 else something is moot. And I kind of wanted to know where that€s going, what you see isthefutureof,youknow,howthat€sgoingtoturnoutwiththeCountytakingcontrolof this Ainaloa Boulevard and, furthermore, as far as the rest of the access through the 27 Hawaiian Acres side, where is that from the County€s perspective as to what the County will take over, what are the issues there, what€s likely to transpire in time, irrespective of this particular application, so that we can look at what€s being requested of this Applicant in light of how we can foresee events to go as far as County-control of these roads on that Puna emergency access road. YUEN:I believe the statements in the record of Councilmember Safarik are essentially correct. I skimmed those this morning. The County is planning to take over the length of the Puna emergency access road. It€s farther along on the Ainaloa side than on the Hawaiian Acres side. And the net effect of that would be, it€ll be a County- owned road and maintenance responsibility will fall to the County. It is unlikely that there will be really substantial upgrade or improvement to the road anytime in the near future. There are some budgeting for some upgrades and improvements. It would not be, you know, there€s no budgeting to improve it to what one would consider a County- dedicablestandard,asnormallythekindofroadthattheCountywouldacceptasbeing turned over from a private party to the County. GRAHAM:And just a follow-up on that, since we are looking at the existing condition which requires upgrade to County-dedicable standards of Ainaloa Boulevard, having been on Ainaloa Boulevard, you know, six or twelve months ago, it looks like a reasonable road. Could you give us some idea specifically what has to be done to make that County-dedicable that would require the $6 million, or whatever of effort. YUEN:I believe there is something in the record that generally describes this, but as far as -. The road would have to be widened. It has a right-of-way -. I believe the Ainaloa Boulevard would be classified as a collector street. The right-of-way for a collector street would be 60 feet. The right-of-way itself is sufficient. The travel lanes would be, the two travel lanes would be 12 feet wide in a dedicable road. I don€t believe the travel lanes are that wide. There would also have to be an improved shoulder and improved, probably, a paved shoulder. Whether, and the further pavement of the drainage swale would depend upon the grade of the road; and I€m not sure whether it would be necessary to pave the drainage swale or it could be left in gravel. There would be, it would be a major increase, upgrade on the road. There are also some bumps, there are small hills on the road. I€m not sure what, how many of those would have to be fixed or any of them would have to be fixed. I know that they€re not standard. Instead of cutting through, when the road was done instead of cutting through the terrain and making a relatively flat road, you go up these little bumps. And there may be sight distance issues with some of these bumps that prevent you from having adequate sight distance to see cars coming from the intersecting roads. That part I€m speculating on, you know, how much that€s a concern. But those are the kinds of things that you look at in accepting a County-dedicable road. There€s no question that it would be a substantial improvement from what you have presently. GRAHAM:Thank you for that. I think one reason that I was sort of bringing that up is because where you have two relatively disparate positions -- let€s say, the County€s position of a dedicable road which is quite costly to the developer and the 28 developer€s position to offer, you know, a million dollars whichmaybe like one-sixth or something of that in mind, you carry that -- well, maybe there€s some middle position. And, so, somehow I was carrying in my mind maybe there€s a middle position towards doing part of the County-dedicable work or something like that. But given that none of the parties have brought that up and that€s not on the record in any way, I think that€s probably not an option; but it€s certainly, it€s something that just comes to mind when you see a situation like this. Thank you. GALDONES:Commissioners, any further -? Commissioner Siracusa? SIRACUSA:Well, I thought I was finished but, obviously, Mr. Graham raised some questions in my mind. On Page 55, the transcript talks about and, so, here you have now the Applicant is saying, I€m willing to contribute not 120 or 180,000, but a million dollars. And, you know, which represents, you know, more than six times the, the applicant€ssharefromafairshareprospective.‚Actually,itshouldbeperspective,‚ they wrote prospective,‚ but we know what it means. But it€s my impression that our government has already picked up a lot of the tab on road improvements. It€s not too long ago that Ainaloa Boulevard was repaved, and then a lot of work was done on 8 Road and, yet, we€re not factoring that in, the County€s contribution already to the quality of the roads. And, so, that would have saved Ainaloa Development quite a bit of their $3 million because a lot of that has already been done by the County. So I€m wondering if maybe we shouldn€t be looking at, say, splitting the difference somehow, financially, more than that one million, you know, you want but less than the six million? GALDONES:Who are you directing the question to, Ms. Siracusa? SIRACUSA:Mr. Fuke, how would the developer feel about splitting the difference? And then I would like to know how the County would, you know, feel about that, about not accepting one million but looking at more than that. FUKE:Well, I€m not writing the checks so -. GALDONES:But you are representing the developer. FUKE:Correct, yeah, and all I know is that, you know, just given the change in the schemes of the way that the project is going to be financed, is proposed to be financed, that I was informed, you know, specifically by the owner of Ainaloa Development Corporation, who€s from Japan, stating that if the requirement is like, you know, more than a million dollars, you know, relative to the roadway exaction that in all likelihood the project would probably be aborted, because it would just certainly not pencil out at all. And he also kind of like raised the point, which I was trying to raise in the testimony, that, you know, if you look at the projected volume of traffic relative to this project, you know, you€re looking at as Ms. Song had indicated, anywhere from about 50 to 70 vehicles; and when you compare that in relation to the just Ainaloa itself, 29 you know, you have like about 3400, 3700 lots in that area and, you know, ifyou assume like one trip a day for each of those lots then, you know, and you compare that with 70 trips for this project, then it€s like less than 2 percent. And, so, to expect the project to have, you know, which would have less than 2 percent impact on the road, to be responsible for one, or three, or five million, or, you know, to pick up the whole tab, you know, it€s certainly disproportional. That€s why like what I was trying to point out in the testimony is that maybe if you just look at purely from an impact standpoint, then, maybe, you know, it should be less than, you know, less than half a million dollars. But, nonetheless, the owner is willing to commit, you know, because he wants to be part of the community, up to a million dollars to make these improvements. In the beginning, the discussions focused with the Ainaloa Community Association, beingintheearlypartofthisprojectlargely,becauseAinaloa,theAssociationownedthe roadway. But since that time since the County has made an effort and will be, you know, accepting conveyance of that roadway, the contribution now will be, instead to the Association, would be made directly to the County; and that€s how, you know, the Applicant wishes to proceed. SIRACUSA:Thank you. May I ask how the figure of 70 trips per day was arrived at? FUKE:That was done based on the original traffic study prepared for the Use Permit; and, you know, the basic components of the project have not changed. So, relative to this, you know, this particular use, it was between 50 to 70. So -. SIRACUSA:No further questions. GALDONES:Being no further questions, then are the parties prepared for closing arguments? SONG:Yes, Mr. Chairman. GALDONES:You may proceed, Ms. Song? SONG:Okay. Thank you, Mr. Chairman and Members of the Commission. And I want to thank you for all of your time, and thank you for your diligent efforts with reviewing the record. It€s obvious you€ve gone through the materials very carefully. I first want to address the Hearing Officer€s report because we are urging you to reject this report. Just to summarize the Applicant€s request -. The Applicant is, first of all, to summarize the Applicant€s request, Ainaloa is requesting another time extension for five years to obtain Plan Approval for this golf course project. It is also requesting deletion of 30 the condition requiring channelization of the intersection at the Keaau-Pahoa Road and the Ainaloa Boulevard intersection because the State already channelized the intersection. The Applicant is also requesting an amendment to the conditions of the Use Permit which require the Applicant to improve 3.2 miles of Ainaloa Boulevard to dedicable standards; and instead of that to contribute $1 million to the County for the County to determine where those road improvements should be made. Finally, the Applicant is requesting an amendment to the conditions regarding the section or the provision of community benefits, to delete the requirement for an asphalt paver or water tanker truck from its obligation, although it remains dedicated to providing public play as originally proposed in the golf course and to provide a water spigot for fire and other emergency water uses. And, also, Ainaloa is willing to locate that spigot or standpipe in an area that is accessible both to Hawaiian Acres and Ainaloa Subdivisions. Going to the Hearing Officer€s report and, again, I apologize for the delay in submitting myobjections;however,thereweresomanyproblemswiththeHearingOfficer€sreport that my objections became lengthier than I anticipated having to make them. The most serious objection, and I€m asking that this Commission reject the report in its entirety and adopt the Findings of Ainaloa. The most serious objection to the Hearing Officer€s report are the Hearing Officer€s Conclusions of Law. And the Conclusions of Law and, specifically, his Conclusions 1, 3, 5, 7 and 8 basically say that the Planning Commission has no authority to amend conditions in permits, use permits. But what the Hearing Officer goes on to say is the Commission might have the authority, but if they do they have to have guidelines, and then he makes up guidelines that make no sense at all. The Hearing Officer is wrong; and he€s wrong because the Hawai`i Supreme Court in March of this year in Morgan versus the Planning Department of the County of Kauai, basically addressed the issue of a Planning Commission€s authority to amend conditions and permits. And in that case, which was an SMA Use Permit, and it was done because the Commission had authorized a seawall, construction of a seawall, the Applicant didn€t build the seawall right, it was damaging other property; and the Commission came in on its own to amend the conditions. They had a hearing but they wanted to amend the conditions to correct this. They went to the Circuit Court and the Circuit Court Judge said, no, you can€t amend these conditions; the Supreme Court reversed and said, yes, the Commission does have the power to amend its conditions. So I submit to you that under the Morgan case and under the law, anyway, this Commission, without the Morgan case, this Commission has the power and authority to amend conditions in permits it issues. I might also point out that the procedure an Applicant must follow to amend conditions is the identical procedure to any initial application. You have to submit the application with all the justification, the number of copies, you have to give notice to all the adjoining property owners, the matter is subject to a Contested Case Hearing where everything is thrown open so that all sorts of matters are considered; and a decision is made just like in an original permit. 31 So, again, I submit that the procedure is there; the guidelines for you are there; the guidelines you have to follow in amending your conditions are the same guidelines as in issuing the permit. And I might also point out that if this Commission accepts the rationale of the Hearing Officer in this case, then the conditions that Mr. Yuen suggests when amendments are, come before this Commission, would also have to be rejected. And it€s my understanding that many conditions are amended when time extensions are granted, or there are many conditions amended in the course of your business as Commissioners. To accept the Hearing Officer€s position that you don€t have this authority is, in my opinion, a drastic step and one that is totally inappropriate. So for that reason, that reason alone, I suggest that you reject the Hearing Officer€s report. Relatingtotheothermatters,Ainaloahassubmitteditsrequestforamendmentof conditions. The reason for doing that is Ainaloa does not, cannot afford to make the improvements originally proposed in 1992. As you are aware, in 1992 there was a big bubble in Japan and the value of money in Japan was great, and Japanese could afford to spend much in the United States. The developer at that time offered many improvements for this subdivision, for this golf course. Those improvements, whether they had a relationship to the project or not, they were improvements and benefits that the developer proposed and thought that he could do which -. And, just as an example, I have a client that had a golf course membership in 1982 that she bought for $20,000 and by 1992 it was worth $240,000, and she bemoans today that why didn€t she sell it in 1992 because she wouldn€t be in a state she€s in right now. So that€s why the Japanese had so much money to spend in the United States at that time, but a $240,000 golf certificate is not worth $240,000 today. But Ainaloa Development is proposing in lieu of that to at least contribute a million dollars. If we look at the conditions of this permit, conditions have to have a reasonable relationship to the permit, there must be a reasonable nexus to the permit. The conditions, most of these conditions proposed in the original permit have absolutely no relation to the permit or to the project. Now, an asphalt paver to a community association is a very nice thing to give. But how does that relate to a golf course project or the impacts of the project? So it€s like a water tanker to a private community association is a very nice offer or gesture, and I€m sure if the developer could afford it at this point he would be doing that; but it doesn€t have a rational relationship or a reasonable nexus to the project. During the testimony and the evidence submitted at this case, we gave examples of what would be a reasonable relation, what would be a reasonable fee, if, to try to find a reasonable relationship for a fee because there are no set fees for golf courses. So what we showed the, at the hearing, was that if this property was subdivided into 175 lots, which it can be without any permit from this Commission, just administratively through subdivision approval, if it wasn€t subdivided, for example, and it was rezoned to 175 lots, 32 the impact fee for roads for that project today, in 2004, would be $4,100 a lot. So $4,100 times 175 lots is less than a million dollars being proposed. Now,granted,this is not a rezoning of property. But if we€re trying to find a fair amount,we€re suggesting that the million dollars being proposed in lieu of the substantial improvements recommended, contained in existing permit, is reasonable and is much closer to having a reasonable relationship to the project than what was originally proposed. Mr. Yuen and the Planning Department in their Background Reportnotes that this permit still meets, it€s consistent with the General Plan and basically meets the same criteria as originally issued. But their opposition to the amendments proposed is only because this was proposedto the community, and the community wanted it, and you have to live up to the obligation of the community, to the commitment made to the community. The Ainaloa community is willing to accept less because they want to see this project. Althoughtherehasbeendiscussionthatnoteverysinglelotownerknewallthedetailsof this project, the details of the project were never really discussed with all of the lot owners. They were discussed with the Board of the Ainaloa Community Association back in 1992, and they were discussed again back in 2003 before this amendment was filed. And the Board and the owners are supportive of this change. The bottom line, Commissioners, is the developer has requested this because this is all that they can bear at this time. To deny the request means there won€t be a golf course. To deny the request means chances are this property will be sold, it will be subdivided into 175 lots. The County legally will have no authority to require off-site -, although Mr. Yuen may suggest some, the legal basis for the County requiring off-site improvements on a subdivision is very tenuous, so the County would get no improvements. More significant, the Puna community would lose the opportunity to have a recreational feature which it does not have. This golf course, especially because it€s going to be providing public play, will finally, if this is developed, bring some, another recreational facility to the Puna area; and there are no recreational facilities to speak of other than the pool in Pahoa and the soccer fields in Keaau. The Puna community needs more recreation. This will actually be a good use of land. The existing conditions in the permit regarding environmental concerns have to, that the project will have to address environmental concerns. So I submit to you that the Findings proposed by Ainaloa are reasonable, they€re supported by the evidence, and we€re requesting that you adopt our proposed Findings of Fact and Conclusions of Law, that you grant the time extension and that you amend the conditions as requested by Ainaloa. GALDONES:Thank you, Ms. Song. Mr. Fulks? FULKS:Yes, thank you. Well, there are three parts really to my Contested Case issues. One was, very briefly was the Puna community access road; No. 2 was the standpipe, No. 3 was timber on the golf course lot. 33 Before I talk about them, I€d like to mention, also, that Hawaiian Acres did not receive notification of the original Planning Commission hearing. Therefore, when they found out all about it, it was too late for them to go through their procedure with their Board and enter into the Contested Case. And I think this was an error on the part of the developers, that they should have been notified when other affected landowners were sent out notification, such as myself. And, therefore, I would liketo also just read you the last paragraph of this letter that, you probably should have received what Hawaiian Acres€ recommendation is, the Hawaiian Acres Community Association. HACA hereby requests your rejection of ADC€s  request for a Time Extension and Modification of Conditions of Use Permit 106 and Special Permit 827, or equal inclusion into the community benefits aspect of the original conditions put upon ADC. Your attention to these concerns is greatly appreciated. I € won€t give you the whole letter but that€s their conclusion. And if they had entered into theContestedCase,perhapsitwouldhavebeenquitedifferent. Now,asforthe,No.1,thePEAR.Ihadsignificantsafetyconcernsonthatroad.Oh,I might mention, too, Mr. Graham asked about the County acquisition of the PEAR; and as far as the Hawaiian Acres portion is concerned, my understanding is that the County and Hawaiian Acres Community Association are negotiating for an easement instead of outright acquisition of the roadway. At least that€s what they€re looking at now. And I€m not sure how that affects everything as far as liability or whatnot, of easement over acquisition of the roadway. But, either way, whether the roadway belongs to Hawaiian Acres or the County, the safety concerns are still an issue; and, of course, Ainaloa is not altogether responsible. There€s traffic on the roadway. Some of it will be from Ainaloa golf course; and, of course, a lot would be from the other, the rest of the community. But there are blind hills on that roadway, and it€s a narrow road. I believe there are two 10-foot lanes, 20-foot paving. There are no shoulders. Now, in that situation, if you have joggers, pedestrians, little children, bicycles, animals on the roadway, well, the car comes up on them suddenly on the blind hill; and being there€s no shoulders, there€s no way to get them off the roadway. So you€re looking at a dangerous situation there. And if the County acquires it, well, the County will acquire a dangerous situation that hopefully they will fix; and it€s up to them whether they want to get the money to help, some of it from Ainaloa Development Corporation or if they want to foot that bill; but, anyway, that safety issue should be addressed. I think we€ve already talked about the standpipe here when someone, the gentleman from Ainaloa was testifying. And the timber issue, well, we see that there€s going to have to be a lot of trees taken out in order to build the golf course. The developers want to leave as much as possible for landscaping. This is admirable. But there€s a lot of old growth, ohia and kukui in that, on that lot; and this is going to have to come out, a lot of it. So we see a community 34 benefit in possibly the community acquiring those trees when they come out, andperhaps they can have some sort of arrangement to, well, getting the timber value from them, instead of the trees just being hauled to the dump or ground up into the soil or something. The developer, Sidney, said there will be no objection to that. No one has really objected to the standpipe moving. And then so there€s really just the issue of maybe changing the permit to include the entire PEAR as access to the development. So, I guess, that€ll conclude what I have to say. I€ll pass it to Bobby Jean. GALDONES:Thanks, Mr. Fulks. Ms. Leithead-Todd? LEITHEAD-TODD:First, I€d like to address the issue of the Planning Commission€s authority to amend and, as Ms. Song has referenced, there is a Supreme Court case that took a look at the inherent authority of Planning Commission€s; and we agree that the PlanningCommissiondoeshavetheauthoritytoamendconditions.However,inlooking at whether you amend conditions, I think you need to look at the same types of analysis that you would have applied if this were an original application, if you were taking a look at this as this were Day 1 and somebody were coming forward and proposing the golf course, as opposed to the golf course as a done deal and we€re just going to tweak a condition. I think you need to apply the same analysis. And in that analysis you need to look at whether the amended permit would meet the standards for approving that original permit. Now, one of the areas that I do take issue at is the representation that the community at- large in Ainaloa supports these amendments. I think the community at-large is unaware of exactly what the amendments represent. And that€s because the questionnaire that was mailed out to them merely stated that we€re going to get a million dollars towards improvements of Ainaloa Boulevard, they€re going to provide a water standpipe and we€re going to have preferential access to the golf course. It did not indicate what was being deleted, which was the improvement to County-dedicable standard of the entire Ainaloa Boulevard, providing a asphalt paver to the community and providing the water tank to the community. It also did not mention that they were going to delete the construction of bus shelters for people to have some shelter from the elements while they waited for buses. Now, it may be that the Board was fully aware, but I don€t think that you can say the community was. And I wonder if the questionnaire that had gone out to the community informed them of what the earlier conditions were and the earlier community benefits package was, versus what was being proposed now, whether you might have had more of a reaction and more community participation. So, I think you have to take that out of the mix and really look at whether what they€re proposing and the amendments that they are proposing are consistent with the original purposes for granting the Special Permit. As to the question of whether they could develop this into 175 one-acre lots, that€s their zoning, but they would have to comply with the Subdivision Code. And if you are familiar with the Subdivision Code they would have to improve within the property to 35 County dedicable standard the roadways or they would have to get a variance from the Subdivision Code. They would have to put in a County water system or get a variance from the Subdivision Code. And if you are familiar with other subdivision approvals, because of the subdivision getting access, this is not some off-site improvement. Ainaloa Boulevard is the access road that serves this property, the County regularly asks for improvements to the access road. I believe that this project has a negative impact on the surrounding properties and the community. When you balance whether you are going to grant amendments to the conditions, you are balancing whether the conditions offset the negative impact. And I think that€s really the question before the Commission, whether these amendments offset that; and I think this is going backwards rather than forward in terms of what the amendments propose. AinaloaBoulevardissubstantiallybelowwhatyouwouldconsideradedicableroad. There are sight distance problems, there are shoulder problems, there are all kinds of problems. And I think that the original conditions made sense in terms of what we were asking for because of the traffic that was going to go to this because of the changed use, because of the change in the character of the neighborhood. Whether the developer can go ahead with the project without the amendments I don€t think is a factor in your decision. The factor should be whether this is consistent with the original reasons for granting it, whether the project makes sense, and whether the amendments to the conditions makes sense. We have no objection to the deletion of the improvements to the Keaau-Pahoa-Ainaloa intersection, but we note that that€s one thing that the developer didn€t, doesn€t have to live up to. We note that it has been 13 years since the original granting of the permit and yet the developer has not done anything among that which was requested of the original conditions. In looking at this, my recommendation would be to view this as if this were coming forward for the first time, and would you approve this with these proposed amendments if this were coming before you for the first time, and would it make sense to you. GALDONES:Thank you, Ms. Leithead-Todd. Ms. Song, you have the final arguments? SONG:Yes. GALDONES:And could you keep it within three minutes? SONG:I will try my best. GALDONES:We would appreciate it. SONG:I will try my best. Mr. Chairman, members of the Commission, I do agree that the Commission must follow the conditions for granting a permit, a Use Permit, under the Zoning Code. Those conditions are as follows, and I have noted them 36 on my objections on Page 3. The 25-2-60 of the Zoning Code provides, and I must say that a Use Permit is a permitted use that needs special attention, so it is a permitted use in the zoning district, and a golf course is a permitted use. The conditions for granting a permit are that it will not unduly burden public agencies to provide services. So if there€s some burden it€s okay, it just can€t be an undue burden. And, secondly, it cannot cause substantial adverse impacts upon the surrounding community. So if there€s some adverse impact, it€s okay. The only way it can be denied is if the Commission finds that it€s a substantial adverse impact. The Planning Commission rules also help this Commission in its standards; and the Planning Commission rules provide the Use Permit should be granted if it€s consistent with the purpose of the zoning district, the intent and purpose of Zoning Code and the County General Plan. There€s no issue in dispute in this case about that. Mr. Yuen and the Department agree that this is consistent with the Zoning Code and the General Plan. Thesecondconditionisthatitwillnotbemateriallydetrimentaltothepublicwelfarenor cause substantial adverse impact to the community€s character or surrounding properties. Again, you€re looking at a material detriment or a substantial adverse impact, not just any old impact. And, again, it has to not unreasonably burden public agencies to provide roads and streets. So you have to find that this project causes an unreasonable burden, not just a burden; otherwise, you must grant it. I might point out that the Commission can impose conditions under Section 25-2-64 of the Zoning Code, Subsection (b). It says that in approving Use Permit applications, the permit may be issued subject to conditions, including hours of operations, but the conditions imposed are to bear a reasonable relationship to the Use Permit granted. All right. In due respect to Ms. Leithead-Todd and to the community, community opinion is not the basis for granting or denying a permit, a Use Permit, or amendment to conditions. The basis are these conditions that I just read to you. And whether or not the community, all of the community is supportive or not, you have to base it on these conditions. I submit to you that this request complies with the conditions for issuing the permit, and it should be granted. GALDONES:Thank you very much, Ms. Song. Commissioners, at this time, the Chair is prepared to entertain a motion to close this public hearing, I mean, this Contested Case Hearing. SIRACUSA:So move. GALDONES:Do I hear a second? MCCALL:Second. 37 GALDONES:It has been moved by Commissioner Siracusa, seconded by Commissioner McCall, that we close this Contested Case Hearing. Further discussions? Hearing none, all those in favor of the motion, say aye? ALL:Aye. GALDONES:Opposed, nay? Motion carried. Commissioners, we€re going into decision-making, and I would like to call for a five-minute recess. Thank you. RECESSEDThe Chair called a short recess at 11:42 a.m. RECONVENEDThe meeting reconvened at 11:52 a.m. GALDONES:Before proceeding further, I would like to mention to the public, especially those who are here for Application Nos. 3, 4, 5 and 6 and also for the Doutor Coffee, in terms of procedure, we will go into this decision-making on the application of Ainaloa Develoment Corporation and we will be taking just one more Agenda Item, that would be Agenda Item No. 3, I think it€s pronounced Fay Machielse and Mark Dziatko, we€re just taking that application, and then we would be breaking for lunch. And, hopefully, we can break at 12:30 and return here, reconvene at 2 o€clock, and take up the remainder of the agenda items. So those of you who are in the Agenda Items No. 4, 5 and also Doutor Coffee, we will be proceeding with those after lunch. Hope to convene again at 2 o€clock. Okay? Okay, Commissioners, I€ll call this Hawai`i County Planning Commission back in order, and we are in decision-making on the applicant, Ainaloa Development Corporation. Now youhavereceivedbeforeyouthreeFindingsofFact,ConclusionsofLawandHearing Officer€s recommendation. I would like to call upon Mr. Torigoe to give us some instructions as to how we can, what our options are in proceeding further on those three documents. Mr. Torigoe? TORIGOE:Thank you, Mr. Chairman. Basically, you€ve closed the Contested Case Hearing, and now you have before you those proposed Findings. You may reverse, modify or adopt the recommendations of the Hearing Officer, or you, basically, can work with these proposed Findings as you see fit based on the record. For instance, if you wanted to adopt any one of them with changes, someone could make a motion to do that, to adopt one of these with specified changes, and then list what the changes would be. You could adopt any one of them as is, and if you need to ask legal advice from me, you can also ask for a short Executive Session to ask about your legal options and liabilities and powers. GALDONES:Thank you, Mr. Torigoe. Commissioner Siracusa? SIRACUSA:Yes. The question that Ms. Song raised about the Hearing Officer€s Conclusions of Fact about the Planning Commission cannot make changes, that we don€t have the, that if we agree to accept this in its totality we will be setting a 38 precedent that the Commission does not have legal authority to amend, alter or delete permit conditions. And, so, I€m wondering if we should decide to sort of line item our approval of this Hearing Officer€s recommendations so that there€s no question whatsoever, that we are retaining that privilege? GALDONES:If that is the wishes of the Commissioners as -. SIRACUSA:Can we do that? GALDONES:As mentioned by Mr. Torigoe, you have that option to do that. It€s much more time-consuming if you go through that process. You could also adopt any one of the three and make amendments to that one, so trying to either incorporate the other two into it, or just make amendments as you see fit. Commissioner Graham? GRAHAM:Iwouldsuggestasacoursemaybethatbeforewemakeany specific motions that we kind of hear out the Planning Commissioners on how they feel about what they€ve heard and what direction they€re leaning to on this thing. And in that way we can maybe point ourselves directly at where we want to go rather than get into a situation where we€re making motions that do or don€t pass and we don€t know, you know -. I feel like we have a possibility of getting into a little bit of a procedural issue of what€s the right motion; and if we all speak a little bit about how we feel about different aspects of this first then we can probably point more directly at where we would like to go as a body. GALDONES:That would be in line, Commissioner Graham. Right now we are in discussion. There has been no motion yet introduced. However, the Commissioners have the ability, at this point, the opportunity to voice their opinion. Commissioner Springer? SPRINGER:Thank you. Question for Mr. Torigoe, following up on Commissioner Siracusa€s comments. If we go right to the Hearing Officer€s recommendations, is that permissible, or do we need to go through the Findings of Fact and Conclusions of Law? TORIGOE:If you€re asking whether you can just go and start discussing particular parts of the recommendation, I think that€s in order. SPRINGER: Thank you. With that in mind, then, the Hearing Officer€s recommendations seem to be in line with the Planning Department€s recommendations with regard to approval of the request to amend Condition 2 of Special Permit No. 827 and Conditions 3 and 6 of Use Permit 106, and that the request to amend Condition Nos. 7 and 9 of Use Permit 106 be denied. And following Commissioner Graham€s comments, that€s, that these things are in alignment, it seems to me that might be a good place to begin discussion. And I€m heartened that the recommendations of the Hearing Officer is in keeping with the recommendation of the Planning Department. 39 GALDONES:Commissioner McCall? MCCALL:Yeah, maybe this, I€m not sure who I should, maybe I€ll address this to our Corporation Counsel for lack of a better thing. But in comparing the Planning Department€s recommendation and the Hearing Officer€s recommendation, again, you know, the recommendation are basically the, as I see the conditions, are approximately the same. I was going to say if, you know, I mean, Mr. Torigoe, what do you see as being the primary differences if we, you know, to give us a choice, if we were going to choose A, B or C? I mean, could you give us a difference between what you see as the primary differences between the Planning Department€s recommendation and the Hearing Officer€s? Probably unfair, but I€ll dump it on you anyway. TORIGOE:Yeah, you really don€t have any better place to go, do you, at this point (jokingly)? MCCALL:You got it. TORIGOE:Well, you know, I haven€t done a line-by-line on this; and, so, I€m reallynotpreparedtogiveyouanythingreallyusefulexceptinthemostgeneralway,you know, that -. MCCALL:That€s all I€m asking. TORIGOE:Well, and I think, well, essentially, as has been already stated, the Hearing Officer€s recommendation seems to fairly closely follow the Planning Department€s or vice versa; and the Applicant€s, obviously, is asking for fairly substantial changes in some of the contributions that are being asked of it. And, so, you know, I think that€s probably the major area of contention that you need to grapple with. MCCALL:I mean, could I continue asking? TORIGOE:Well, let me, and just -. In addition, that issue of whether the Commission has the authority to make the changes is one that you also need to address. And I think I can say on the record that I agree with the position that€s taken by the Planning Director and with the Applicant that the Commission does have authority to make those changes. GALDONES:Hearing no further discussion -. Commissioner Graham? GRAHAM:I was making a few notes so maybe I€ll just, regarding the substantive issues today, just to throw out, you know, where I feel about it. As far as the questionnaire that went around, you know, it is unfortunate that the questionnaire did not speak of the true choice that is here before us today, which I think it did not. But I do feel like the questionnaire probably indicated that the community is not opposed to a golf course. I think if they were opposed to a golf course, we€d have known it through public testimony or through results of the questionnaire. So if the community is not opposed to 40 the golf course and the Applicant is willing to make community benefits available, it seems like, you know, something could be workable. However, the Applicant is indicating that the conditions that went the first time around are perhaps unreasonable, given the impacts, but I haven€t really seen much to justify that. They were deemed reasonable at one point the only real new information that€s kind of up -. The only basis I€ve seen, really, is the traffic impacts from a long time ago; and I think that€s really insufficient to establish what the true impact of this development would be now. So given the lack of that, I have to assume that probably they were deemed reasonable before, and I don€t have any reason to believe that they are unreasonable now. I also feel like the Hawaiian Acres issue is real in my mind. What has changed since the original is that the intersection has been improved on the main Keaau-Pahoa Road, so the Applicant really should not be required to fulfill that condition, of course. But the other condition changes, we do have an emergency access road so there will impacts to the HawaiianAcres,andIhaven€treallyseenthemaddressed.AndtheonlyplaceIdidsee them addressed is in the County€s submission to us as Findings of Fact where they say if the Applicant is required to improve Ainaloa Boulevard, then the County will have the ability to use the $3.5 million earmarked for the Puna emergency access road on the Hawaiian Acres portion of the road. So it does feel to me that, you know, that€s a plus in that the real needs of Hawaiian Acres will be addressed in that way. I guess that€s my, that€s my sort of take on it. Thank you. GALDONES:Hearing no further discussion -. Commissioner Springer? SPRINGER:May we ask a question of the Planning Director as Planning Director or as a party? Because we closed that section, may we not inquire anything of him? GALDONES:Mr. Torigoe? TORIGOE:Well, do the parties have any objection to the Planning Director being asked a question? What€s the nature of your question? SPRINGER:With regard to the concerns that Mr. Fulks raised regarding safety and liability issues, I€m wondering if the Director believes that retaining Condition 7 addresses those concerns? TORIGOE:Do the parties understand what the question is? Mr. Fulks, do you have any objection to the Planning Director answering that question? FULKS:What was that again? TORIGOE:That you have any objection to the Planning Director answering the question regarding whether, what was it, whether -? 41 SPRINGER:Whether Condition 7, which has been recommended to be retained addresses Mr. Fulks€ concerns of safety and liability, Condition 7 of Permit No. 106? FULKS:I have no objections to Chris Yuen answering. I would reserve the right to comment after hearing what he has to say. TORIGOE:Ms. Song, do you have any comment on that? SONG:I have no objection, providing we can also comment. So it€s your decision. GALDONES:I understand that we do not want to open up the Contested Case Hearing again, that we just want to go into decision-making. But if -. SPRINGER:Okay,that€sokay.Idon€tneedto-. GALDONES:Thankyouverymuch,CommissionerSpringer. SPRINGER:I€lljusthavemyownlittlethoughtshere.Thankyou. GALDONES:Thankyou.Iftherearenofurtherquestionsorcommentsfromthe Commissioners, we are prepared, Chair is prepared to entertain a motion. No? Discussions that I€ve been hearing is that the Planning Department€s recommendation is pretty much in line with the Hearing Officer€s recommendations. They differ, the difference between both of them, however, is the ability as, the inability that€s stated in the Hearing Officer statement, the Conclusion of Law, that there is to be some conflict there. And the Applicant and the department are in line that the Planning Commission has the ability to make those changes. So, in looking at that, it seems to favor the Planning Department€s conclusion, Findings of Fact, Conclusion of Law and Hearing Officer€s recommendation. That is what I gather in line with the discussion, and that is what I see out of the three documents. So, in those lines, Commissioners, the Chair is prepared to entertain a motion. SPRINGER:I have a question. Would the motion be to, and maybe this is to Mr. Torigoe, can we make changes to his Conclusions of Law, when we move to accept his recommendations? TORIGOE:You can make whatever changes, you know, the Commission feels appropriate. SPRINGER:So it would be possible to adopt his report striking his first Conclusion of Law? Would that be necessary, or does the discussion that€s already on the record discuss our disagreement with that first Conclusion of Law? GALDONES:Commissioner Springer, that would be just Paragraph No. 1 on the Conclusion of the Hearing Officer€s report. 42 SPRINGER:Under Conclusions of Law? GALDONES:Just delete that. SPRINGER:Yeah, I€m wondering if we can do that. TORIGOE:Yeah, although I think you may want to go beyond that actually because the discussion of the lack of authority seems to go on further -. SPRINGER:If you could give us the pages, please? TORIGOE:Well, Conclusion of Law No. 1 is on Page 15 and onto Page 16. GALDONES:CommissionerSpringer,itseemslikethere€smorethanjust Paragraph No. 1. There are several other paragraphs that make reference to that. SPRINGER:Yeah, I see that. SIRACUSA:Question? GALDONES:Commissioner Siracusa? SIRACUSA:It seems like we would have to make an awful lot of changes and deletions there. If we, however, accept the Department€s recommendations, does that automatically preclude us accepting the Hearing Officer€s recommendations? That might be a lot less convoluted way of doing it. GALDONES:In accepting, if the motion would be that we would adopt the department€s document, then the motion will also include that we are just filing or objec-, I€m not so sure what the terminology would be, but we will take exceptions to the other two documents. We will not be accepting that. TORIGOE:Yeah, if you were to do that, I think -. SIRACUSA:I would support that if somebody would make that into a nicely- worded motion. TORIGOE:Yeah, if you were to do that, I think based on the wording that€s in the rules, it would be along the lines of moving to adopt the Planning Department€s proposed Findings of Fact, Conclusions of Law and Recommendations and, I guess, rejecting the other two proposed Findings and Recommendations. GALDONES:If that would be the general consensus of the Commissioners, then what I can do is direct Mr. Torigoe to frame the motion for us, and one of the 43 Commissioners can incorporate that into a motion. Mr. Torigoe, could youassist us with that, please? SPRINGER:Mr. Chair? GALDONES:Commissioner Springer? SPRINGER:Should I take a, have a go at a motion? GALDONES:Excuse me? SPRINGER:Shall we have a go at a motion? GALDONES:Yes, Mr. Torigoe is trying to put the -. SPRINGER:She€s ready to try she said. GALDONES:You€d like to try that? Otherwise, I€m going to have Mr. Torigoe putsomethingtogetherforus. SPRINGER:Sure,ifImaythen.Ifhecarestorefineit,wecan-? GALDONES:Fine, sure. That€ll work. SPRINGER:Okay. With regard to the Ainaloa Development Corporation, SPP No. 827/UP No. 106, I move that the Hawai`i County Planning Commission adopt the Findings of Fact and Conclusions of Law and Recommendations made by the Hawai`i County PlanningDepartment and reject the Findings of Fact and Conclusions of Law presented by the Applicant and the Hearings Officer. GALDONES:Do I have a second? SMITH:Second. GALDONES:It has been moved by Commissioner Springer, seconded by Commissioner Smith, and I won€t try to rephrase your motion but I guess all of us do understand what the motion is. ALAMEDA:Could I hear it again? Sorry, yeah. SPRINGER:Sure. That the Hawai`i County Planning Commission adopt the Findings of Fact, Conclusions of Law and the Recommendations made by the Hawai`i County Planning Department and reject the Findings of Fact and Conclusions of Law presented by the Applicant and the Hearings Officer. ALAMEDA:Thank you. 44 GALDONES:Further discussion? Commissioner Graham? GRAHAM:So we have this motion before us. The only thing that€s still, one thing that€s still on my mind with regard to this is we did hear from the Hawaiian Acres Community Association whose Board was in favor of deleting the community benefit provisions in favor of the thousand dollars to go to the County so, excuse me, not Hawaiian Acres, the Ainaloa Community Association in favor of the million dollars in lieu of the road improvements. It makes me feel that maybe the community benefit of the asphalt paver and the water tank are, which were to go to the Ainaloa community group, is maybe not necessary, given that the County will be taking over that road. So, I would just throw out as a possibility for the consideration of the Commissioners that we could, as an addition to this motion that is before us now, also indicate that we are removing the requirements for an asphalt paver and a water tanker from the Condition No. 9, I believe itis. GALDONES:CommissionerGraham,areyouintroducingthatasan amendment? GRAHAM:Well, I certainly, yeah -. In the interest of expediency, I€ll just throw that in as a proposed amendment. If somebody wants to second it and we€ll vote on it as an amendment, fine; if not, that€s fine. So I will move that we amend the County€s recommended course of action, Conclusions of Law, with this particular change to remove those two items. SPRINGER:So that would be to delete 9(D)? GALDONES:Mr. Fuke, just a question. GRAHAM:That€s correct, 9(D). GALDONES:Okay, 9(D). Is there a second to that amendment? SPRINGER:Second. GALDONES:There€s a second. Discussion on the amendment? Hearing none, we shall vote -. SIRACUSA:What -? GALDONES:Commissioner Siracusa? SIRACUSA:Yeah. I€m wondering how much that, those funds were translated into actual dollar amount and if it can be shifted to something else? Anybody? MCCALL:If I recall, there was informa -. Pardon me. 45 GALDONES:Commissioner McCall? MCCALL:Yeah, yeah. If I recall, there was information. I€m, I€m just going to throw out some numbers, it was somewhere in the range of $300,000. I seem to recall $125,000 for the, might have been more, it might even have been as much as half a million dollars. But my, in discussions of this my recommendation would be that we, if we delete this, we delete it, we do not add it to something else. If we could get the, you know, $6 million for road, I think that would be nice; and this is something to give back to the developer a little bit, not much but a little bit. GALDONES:Further discussion on the amendment? So the amendment would be to also grant the amendment to Condition No. 9, which deletes the requirement to purchase an asphalt paver and water tanker? Am I stating it correctly, Commissioner Graham? GRAHAM:Correct. GALDONES:Okay.Weshallvoteontheamendment,andvoteintotalityonthe motion. Any further discussion on the amendment? Norman. HAYASHI:Commisssioner Graham? GRAHAM:Aye. HAYASHI:Commissioner Springer? SPRINGER:Yes. HAYASHI:Commissioner Alameda? ALAMEDA:Aye. HAYASHI:Commissioner Fujikawa? FUJIKAWA:Aye. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Siracusa? SIRACUSA:Nay. HAYASHI:Commissioner Smith? 46 SMITH:Aye. HAYASHI:Chair Galdones? GALDONES:Aye. HAYASHI:Mr. Chair, the vote was seven to one, motion carries. GALDONES:On the, that was on the amendment. So on the total motion as amended, Norman. HAYASHI:On the motion -. GALDONES:MotionwasmadebyCommissionerSpringer. HAYASHI:CommissionerSpringer? SPRINGER:Yes. HAYASHI:CommissionerMcCall? MCCALL:Aye. HAYASHI:Commissioner Siracusa? SIRACUSA:Nay. HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:Commissioner Alameda? ALAMEDA:Aye. HAYASHI:Commissioner Fujikawa? FUJIKAWA:Aye. HAYASHI:Commisssioner Graham? GRAHAM:Aye. HAYASHI:Chair Galdones? 47 GALDONES:Aye. HAYASHI:Mr. Chair, seven to one vote, motion carries. GALDOES:To the parties, we will reduce this in writing and inform you of today€s decision. Thank you. The discussion ended at 12:18 p.m. Respectfully submitted, Sharon M. Nomura, Secretary 48