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HomeMy WebLinkAbout2009-11-06 TMALA MOHALA WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT NOVEMBER 6, 2009 A regularly advertised hearing on the application of MALA MOHALA (SPP 09-000088) was called to order at 10:22 a.m. in the County of Hawaii, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i, with Chairman Rell Woodward presiding. PRESENT: Rell Woodward Takashi Domingo Andrew Iwashita Zendo Kern Shelly Ogata Wallace Ishibashi Brandon Gonzalez, Deputy Corporation Counsel BJ Leithead Todd, Planning Director Norman Hayashi, Planning Program Manager Jeff Darrow, Staff Planner Maija Cottle, Staff Planner And 13 people from the public in attendance. APPLICANT: MALA MOHALA (SPP 09-000088) Special Permit to allow the establishment of an overnight retreat camp for youths on 7.8 acres of land situated within the State Land Use Agricultural District.The property is located along the north side of Kaala Iki Road, approximately 1.2 miles mauka of Highway 11 and Honuapo Park, Honuapo, Ka’u, Hawaii, TMK: 9-5-15:15. WOODWARD: We’re now on Agenda Item No. 2, applicant Mala Mohala, Special Permit to allow the establishment of an overnight retreat facility for youths on 7.8 acres of land within the State Land Use Agricultural District. Jeff. DARROW: Thank you, Mr. Chairman. Good morning, Members of the Planning Commission. If I can direct your attention to the presentation on the wall. Our applicant in this application is Mala Mohala. They’re requesting a Special Permit to allow the establishment of an overnight retreat, youth retreat camp on 7.8 acres of land. Just for clarification, we received testimony this morning that a survey was done of the property, and the survey identified that the property is actually 6.348 acres in size. So we will be amending that acreage to 6.348 acres. 1 EXHIBIT B The location of this application is within the Kau district. More specifically, we’re looking in between Pahala and Naalehu, Naalehu being on the bottom portion of your map. You have the Punaluu area right in this particular general location. You have the Hawaii Belt Road that runs perpendicular with the ocean, as well as Kaala Iki Road that runs in between Pahala and Naalehu. The subject property is identified in black. I just wanted to give you an idea of the location between Pahala and Naalehu. It’s approximately 4.5 miles from Naalehu and approximately 9 miles from Pahala. Looking at it a little closer, again, we have Kaala Iki Road running parallel with the ocean, as well as the Hawaii Belt Road. All the dark green zoning in the area is identified as Agricultural 20 acres. Along the ocean down here the lighter shade of green is Open zoning. This is located approximately just above the Honuapo area, Whittington Park, Beach Park. It’s in this general location. This is a site plan that was submitted from the applicants. We have Kaala Iki Road running through the upper portion of the map. There are two portions of this property. It’s been separated by this road. This is the makai portion of the property, and this is the mauka portion. You’ll see markings on the properties. Those are actually structures identified, proposed structures and existing structures. This issue of Kaala Iki Road is a little confusing, and I’m sure it’s going to come up during this hearing. But right now on this map it identifies an old government road running on the outside of the makai portion of the property. But on the ground we have a paved road that’s approximately 20 plus feet wide in a 60-foot right-of-way that goes through the middle of the property. This is identified as Kaala Iki Road. The applicant is requesting a special permit to allow the establishment of an overnight youth retreat camp on 6.34 acres of land. The retreat camp will host no more than 24 students or campers between the ages of 13 and 18 at any one time. The average length of stay for these campers will be 60 days or less. The project consists of two areas, the mauka portion and the makai portion. The mauka area has one dorm with 8 bunk beds, a kitchen and lanai. It has 17 small shaded study structures that are approximately 4 to 5 feet in height. And it also has one open covered structure for staff to oversee the activity on the mauka portion. On the makai portion we have one dorm with 10 bunk beds and a kitchen. We have 11 small shaded structures for study for the student campers, one bath house, one open covered structure for the staff to oversee activities, and also one carport for the camp shuttles. This is some site photos that we’ve taken recently of the project. This is looking towards Naalehu on Kaala Iki Rroad, so you can see the paved road. It’s actually in pretty good condition. This is looking towards Pahala. Again, the applicant’s property is on both the mauka and makai side of the road. This is on the mauka site. These are just some general photos. It shows the agricultural activity that’s occurring on the property, as well as the small shaded structures that it talks about. There also is, this is the bunk house. There was so much ag activity going on it was hard to get a real clear shot of a structure. So sorry about the -. This one I could take a little higher up. This is the lanai structure that the staff oversees the activity on the property and, again, some of these smaller shaded structures. Another photo of some of the agricultural activity occurring on the site. 2 EXHIBIT B This is on the makai portion of the property. This, again, is the lanai covering that oversees the activity, some of the smaller shaded structures. We have several that were lined out on the outside of the perimeter, and to your right we have the bunker structure. The Planning Department is recommending approval with a limited term life of five years for this project. After five years they would be required to come back to the Commission for an evaluation and a possible time extension to continue on with the life. If I may, we did have several late submittals. We had two comment letters, one from the Department of Environmental Management as well as from the Department of Land and Natural Resources, the no effect letter. We’ve received an email from Chris Manfredi dated November 4, 2009. He had stated several issues as well as had submitted an aerial map with a possible identification of lot lines on that map, and a transcript of the 2004 hearing transcript of the previous application that came in before the Planning Commission. th In response to that, the applicant has submitted a response letter dated November 5 which addresses the issues brought up in Mr. Manfredi’s email, as well as letters of support. Lastly, we received a letter from Mr. Jeff Silva, and just this morning we’ve also received an email from former Planning Commissioner Jeff McCall. Are there any questions? WOODWARD: Jeff, I have a couple of questions. There are existing structures, obviously many of them. Is that right? DARROW: Correct. WOODWARD: When were they built, do you know? DARROW: I’m not exactly sure when. I would believe the time period would be between 2004 and 2009. There was, in the background it identifies a violation notice that was issued regarding these structures. WOODWARD: All right, I’m aware of that. Are there, these are unpermitted structures? DARROW: Correct. One of the conditions in the recommendation is that prior to commencement of operations they’re going to have to receive and secure approval for building permits for all structures. WOODWARD: So these buildings were built after they had applied for a permit. It was not at that point granted and they were built anyway? DARROW: Correct. WOODWARD: Okay. DARROW: I’m sure the applicant is going to go into detail 3 EXHIBIT B WOODWARD: I hope so. Let me ask one other question. This survey that you said was just done, one of the written testimony we had received states that some of these structures actually are on State Land. DARROW: That’s what it appears according to their aerial photo. But, again, the th applicant has addressed that matter in their submittal dated November 5. And I would, if it’s okay, if I could defer to them to address the issue in more detail. It appears that there may be, it looks like the way that the aerial is laid out there are quite a number, but I don’t think this is accurate. It’s very difficult to overlay an aerial with precise lot lines. WOODWARD: Okay. Any further questions for staff? Commissioner Iwashita. IWASHITA: I guess my impression is that the activity that has gone on in the last five years required a Department of Health kind of licensing. DARROW: That would be if the facility that previously was being requested a special treatment facility, I believe at that point they would require a license from the Office of Health Care Insurance, which is under the Department of Health. The applicant at this time is requesting an overnight youth retreat camp facility which I don’t, I’m not sure if they require a license from the Department of Health, Office of Health Care Insurance. I’m sure they’re going to have to meet all Department of Health requirements for sanitation and wastewater. But I’m not sure if they’re going to need it for this type of a facility. IWASHITA: Okay. Well, I guess my impression is drawn from paragraph 3 in the background report, page 2, where it talks about licensed clinical social workers, therapists, special ed, naturopathic doctor, medical doctor and psychologists are on staff providing these services. It seems to me that if you have a facility providing therapeutic kind of services that you need some sort of, don’t they need some sort of licensing? DARROW: If it falls under one of their identified, whether it’s a special treatment facility or a group living facility or an adult residential care home, I’m not sure, again, if this particular request falls under that. I believe the applicant would be able to more specifically identify if they are going to need that particular license from Office of Health Care Insurance. IWASHITA: I’m sorry, Jeff, what I’m asking is not what they’re asking to do. My impression is that, and I guess if you don’t know the answer that’s fine, but my impression is that from the information in the application that the nature of the services provided, and I don’t know, but my impression is that it would require some sort of Department of Health approval to provide those services on this site. And whether or not there is an existing Department of Health approval -. DARROW: Not that I’m aware of. IWASHITA: Okay, thank you. WOODWARD: Okay, Commissioner Domingo. 4 EXHIBIT B DOMINGO: Thank you, Mr. Chairman. In reference to Mr. Silva’s letter Point No. 2, you know, since the special permit is based upon it being an unusual, unusual but reasonable use of agriculture property -. Now if this is approved and the surrounding property owners are conducting a regular agricultural endeavor which involves spraying of herbicides, fertilizers and what not, would the burden be on those conducting legitimate agricultural pursuits to notify those with this, obtaining this permit for this unreasonable use, I mean unusual use? Whose burden would that be upon? DARROW: I’m trying to understand your question. You’re -? DOMINGO: I’m saying, what I’m saying is that at present with any agricultural use you’re entitled to spray herbicide, spray fertilizer or do whatever is necessary to take care of your farm. Now if I’m a farmer and the adjacent property would come in with a different use, yeah, a use such as described in the application, would I be restrained from doing anything as I would be usually doing as I farm on my property? DARROW: Based on the Right To Farm Act, there are no restraints on your part. The applicant or any person that does anything different than farming on other properties, B&B or whatever, they won’t be able to complain or to be able to retaliate against farmers. DOMINGO: I just wanted to know how the Department will look upon it. DARROW: Yeah, this would be under the Right To Farm Act. DOMINGO: Okay, thank you. WOODWARD: Let me just ask one question I didn’t really get an answer to. This new survey, do you have the actual survey or do you just have the change in the amount of acreage? DARROW: I don’t, unless the survey is within the packet, the one that’s identified as the site plan, I don’t know if that’s the survey they’re referring to or if there was another one that was done. If there was another one then we don’t have a copy of that. WOODWARD: Okay, all right. Thank you. Any further questions? All right, if we could have the applicant and/or the representative come have a seat and we’ll swear you in and get your testimony. Okay, if I can get everybody to raise your right hand. Do you swear or affirm to tell the truth today before the Windward Planning Commission? TESTIFIERS: I do. Yes, sir. WOODWARD: Okay. And whoever would like can start first. If you’d give us your name and address, and then you may begin your testimony. ZELKO: Okay, great. Jennifer Zelko from Torkildson Katzs. And I have with me Newton Chu, he’s also with Torkildson Katzs; and we represent the applicant. 5 EXHIBIT B WOODWARD: All right. You may begin if you’d like. Are you going to testify first? ZELKO: Actually, I would really like Mike McKinney who runs the day to day operations just to kind of explain what the camp is doing. You saw some photos. But there’s a lot of farming going on there, so I thought he’d be best. WOODWARD: Okay. If you’ll give us your name and address and then begin. MCKINNEY: Sure. My name is Mike McKinney. My address is 419 Huali Place here in Hilo. I’m happy to kind of give you guys an overview of what we do. I’m also happy to answer some of the questions that were brought up. We serve adolescents. It’s mainly a farming program, a lot of experiential education. We work with kids who are mostly coming from the mainland. These are kids of who have very minor issues, loss, grief. It’s more about building these kids up, having them connect with nature and the land. We typically work with these kids for about 60 days. It’s a real quick overview of what we do. WOODWARD: All right. Any questions? Commissioner Domingo. DOMINGO: Was a cease and desist order placed upon your -? MCKINNEY: No. DOMINGO: Land use and what you were doing in the past? Were you permitted to do it? MCKINNEY: Well, when we first came to the hearing in 2004 we applied for a special treatment facility. And some of the questions you guys have are questions we’ve had this whole time about how do we fit into the mental health area. We come from states where it’s more clearly defined. And when we came here there was really only one category that kind of met or was anywhere close to what we were doing. And rather than try and pick something that you’re not familiar with we thought it would be most appropriate to try and apply for a special treatment facility. At this time we thought we were operating as a farm and a campground. I believe that this permit was, we wanted to be proactive, we wanted to look into the future and be able to combine all the components that are in a farm like this. And when we went to the hearing some of the conversations were around the mental health issues; and would the Health Department even consider us a special treatment facility because we work with mostly voluntary kids. They are a very soft program. There’s a lot of testimony that maybe we weren’t appropriate for that level of supervision. So when we left the meeting we had a continuance and continued to operate as a farm and a campground. And to answer your question, sir, we were, later the Planning Department did make contact with us and said we were in violation and operating -. And that’s why I was a little surprised. I said we were operating a special use facility; and in my mind we were always operating the campground and a farm. And so at that, I could step back a little bit too. I had, I had received a survey. You guys have the survey. It’s a little confusing because I purchased the property and it was 7.8 acres. By the 6 EXHIBIT B time the survey was done I was down to 6.4 acres. I’m not exactly sure where that went. But that’s I think part of the confusion of the survey and why there’s a discrepancy. The survey is accurate. We received that in April of last year. In February of last year when I knew the survey was coming, much of what I was doing was waiting for the survey. It took over three years with a lot of conditions. For example a survey was one of them. And when we had, when I knew the survey was going to come, I contacted Jen and these guys and wanted to strategize how best to go back to the Commission, and what are we, and what do we need to be, to combine all these things that we do. ZELKO: Yeah, actually for the survey if you want to take a look at it, it should be as Exhibit E that was in our background report. It may seem confusing. It’s under the archaeological report. Rechtman Consulting who did the inventory survey and stated that there were no sites on this property does have a copy of the survey. So it’s, let’s see, Exhibit E on page 5, page 4. When they initially purchased the property their deed actually says 7.8 acres. And it wasn’t until after they survey was done that they, and as is the way in Kau they had lost over an acre at that point. WOODWARD: All right. I have one question with regard to this survey. There are no structures on the survey. It’s just a boundary map. Is there a survey that shows where the structures are? ZELKO: No. This survey actually was done because we needed to get an archaeological inventory done; and so in order for the archaeologist to know the boundary lines we had to have this done. So this wasn’t done as a site plan. This really was done to get the archaeological inventory that the previous Planning Commission had requested that we do. WOODWARD: All right. Thank you. Any other questions? Commissioner Kern. KERN: Thank you, Mr. Chairman. When you folks purchased the property was there any existing structures on it? MCKINNEY: There were none. There were a couple fence lines that were relatively inaccurate as we now know. KERN: Okay. Are there any permitted structures on there currently now? MCKINNEY: No. KERN: No. So there is approximately 11 plus structures unpermitted? MCKINNEY: A majority of the structures are under six feet. I believe there are only five unpermitted structures that we do need to get permitted. KERN: So just out of curiosity, you were deferred, you deferred action on it and basically said, well, we’re just going to go ahead and do it anyways and see what we’re going to deal with later? I mean -. 7 EXHIBIT B MCKINNEY: Well, certainly I wanted to see what we were going to deal with later. Again, I believe I was operating as a campground and a working farm. I always thought that that’s what we were. and was a bit surprised to find out that I was operating an unlicensed special treatment facility. KERN: Right. Okay, -. MCKINNEY: I certainly do -. KERN: Well, yeah, whether or not it was a treatment facility or a farm, what was the concept of not getting your buildings permitted? MCKINNEY: Well, I think we made some mistakes. I was a little unsure how to work all of these incredibly different varying information and requirements. I think not having the survey made it very difficult for me to get the appropriate permits. And I’m certainly not happy about the way that the last five years has transpired, and we’ve certainly made some mistakes. But I also had every intention of doing things the right way. And I’m excited to have that chance today and certainly open to whatever conditions and whatever timeframes we need to meet, because we’re very committed to running an excellent facility and being responsible to the people and to the County. KERN: Okay. Do you currently have a survey in the works identifying where the buildings are located and setbacks and the rest of that? ZELKO: We are definitely in the works of doing that, especially after receiving that email on Wednesday about a building that perhaps straddles the State land. We would remove the building. I mean I think that’s -. You know, part of the thing, we understand there are going to be some tough conditions that are put against the special permit, including having to have everything permitted within six months. And, you know, at this point we are willing to do anything. So we’re on contact with different people, even in the Department of Health. Because a part of we’re running a camp, which Department of Health clearly doesn’t seem to want to regulate, is very different from a special treatment facility. And just going back, I think they didn’t have a clear idea of the type of business they were going to run when they came before the Commission; and, I mean, they will say they were just unprepared at that point. They do actually run a facility now at the Shirakwa Hotel, they run a camp there. And so they know what they’re doing and it works. They employ 42 people and, you know, the kids, it’s a great program. But, again, I think the main thing, and they do understand they’ve got to be permitted. They do have conditions. They’ve got to follow every rule, County, State, Department of Health. So all of those questions would be at some point addressed, otherwise we wouldn’t be able to utilize the permit. KERN: Correct. Thank you for that. It’s a little bit challenging when we, you know, we’re in Hawaii here and people build unpermitted buildings from time to time, to see all of them unpermitted is a little bit challenging, especially where you have the history in which it went through and been deferred. I think it makes it a little more challenging cause you look at it 8 EXHIBIT B from our position, okay, we said, you know, defer, it wasn’t us but a different body said defer, and wait on that and get it figured out, and then you can maybe move ahead and go forward. So in the meantime you said, okay, well, we’re just go ahead and build it out and do what we’re going to do there, maybe understanding or not understanding what the impacts of that would be. Now we’re in a position where we’re going to make a vote and we’re going to make a decision based on this. And we’re also going to be setting precedent. So what does it mean? If somebody else comes in front of us and we say no, you’re denied, you’re deferred or whatever it is, well, just go ahead and build all the buildings unpermitted and do it anyways? I think that was -. And I can see if you had one, you know, a house there that was permitted and a greenhouse, and maybe a bunch of other accessory buildings that weren’t permitted, you’d be in a little better position. So it just makes it more challenging from our side to not set precedence. And I want to make sure that if this approved that we are not setting precedence to go ahead and, and just go ahead with it anyways and thinking you’re going to get it passed. Do you know what I mean? That’s very sticky. And I also agree that giving the youth a place and a facility and services in that way is a great thing. It’s a very good thing. It’s just tricky when you’re in a land use situation and you kind of broke all the rules. So, thank you. MCKINNEY: I do understand that. And, you know, it’s difficult to wait over three years for a survey. We’ve looked at a lot of ways to try and do this the right way. So I also understand the position I’ve put myself in in this company. And that’s why I’m hoping that some sort of contingency, some sort plan where you can see our follow-through; and I would absolutely want to keep everyone updated and be, you know, leave a good legacy and run an excellent program. We are growing. I feel so blessed to have a program that’s growing and a company that’s growing in this economy. And, yeah, that’s it. Thanks. DOMINGO: Mr. Chair? IWASHITA: Mr. Chair? WOODWARD: Commissioner Domingo, then Commissioner Iwashita. IWASHITA: Thank you. DOMINGO: Thank you, Mr. Chairman. What I see is that you’re claiming ignorance to the fact that you didn’t know what requirements there were in order to begin such an endeavor, you know. And they say ignorance to the law is no excuse to it. To what extent have you taken any steps in acquiring those building permits for these structures? ZELKO: Actually I’ll speak to that. One of the reasons that none of the buildings have been touched or done anything with at this point or submitted a building permit, Planning would not sign off on something for the use that it’s now. We would have to have the special permit in order to get a building permit approved. And so that’s why in the interim after he came to us that you see nothing happening in the way of us getting a building permit in. We absolutely plan to do it. And like I said I see we have to do it within six months if this approved. We just, 9 EXHIBIT B there wouldn’t, it would not have been signed off. So we couldn’t -. I wish we could have brought permitted structures to you guys today. But we certainly plan on doing that. DOMINGO: Well, in actuality then, being realistic, all these buildings should be taken away from the property and then you can come in for an application for the anticipated use and consider it; and then, therefore, there wouldn’t be any problem with regards to acquisition or permits for this property. You stated that you’re working out of the Shirakawa Hotel. And then are you still using these buildings to conduct the retreat for those people? ZELKO: We still farm there. And the children, the campers do still go to the farm because it’s difficult at the Shirakawa Hotel, and there’s not a lot of area to farm. I don’t know, you may have started doing some farming there. But for the most part we do go out there and farm, and the kids do still go out there. It’s just they do not stay and they don’t use the facilities. DOMINGO: Not one bit? ZELKO: Except the things that are under six feet, and those aren’t in the, those are, you don’t have to permit those. Those are the in case it rains, really is what those building are because they look kind of silly. I mean, if it’s raining or it’s too sunny and the kids have to write about the plants. That’s kind of what they’re there for, it’s the shelter. DOMINGO: It’s unfortunate that you folks started on the wrong foot. And with regards to the survey that’s being done, you were waiting for the State to conduct that survey as to what was really on the premises? ZELKO: No. It was R.M.Towill, our surveyor. DOMINGO: What took him so long? Three years, I mean -. MCKINNEY: I really wish I knew. I was calling them every month. My best understanding or sense of it is they needed to survey all of the surrounding areas and instead of just doing ours they did everyone’s at once. WOODWARD: Commissioner Iwashita. IWASHITA: Thank you, Mr. Chair. In reviewing the history of this, right, I guess my, what I’d like you to address is, you know, in 2004 basically the Commission said, look, this archaeological assessment needs to be done, right? And I understand the concerns about the delay as far as the survey actually getting the work done. However, the reason, you know, and I would agree with the former Commission, right, that the survey needs to be done. And the reason is that you don’t want the sites destroyed, right? You went ahead and did work on the property, made these unpermitted building, right, and now the survey comes in and says we can’t find anything. Okay? As far as I know you may have destroyed them, just where the buildings are. We don’t know. Okay? There’s no way for us to know now. And that’s my concern. And so, you know, that is the difficulty you have placed us in, right? And my wife is an educator, okay, and she always tells the kid, always tell the kids, you know the rules. Right? And they 10 EXHIBIT B may agree on the consequences for the rules, violating the rules, right? As far as I’m concerned you knew the rules and you went ahead and did what you did. What was your understanding or, I don’t know, you had any understanding what the consequences would be if you violated those rules as you did? You had no understanding? MCKINNEY: Well, again, I believed that we were operating as a working farm. To build -. IWASHITA: I don’t question that. What I’m saying is that your testimony is that you knew this survey needed to be done, the purpose of it was to identify whether there are any archaeological sites that needed to be protected in any way.Right. Notwithstanding that your testimony is that you went ahead anyway and built these unpermitted structures. Right? If these are all ag structures, I don’t think the Building Department would have any problems just in terms of that. I can see they would have a problem if they know that there’s a survey required, right, to make sure that these structures aren’t built on archaeological sites. So you would need to have had it done, I understand that. Right? The problem I have is you went ahead anyway. And you do good work apparently. You know, no one has contradicted that. Everybody says you do good work. That’s great. Right? We’ve got rules. And, you know, maybe you need to do it someplace else, at the hotel and rent some, you know, lease some little ag piece of property that I don’t think would cost that much for the kids to do what you need to do in the meantime. Right? You know, there are a lot of alternatives as I see it. So there needs, and I would like for you to go forward, you know, be able to do what you need to do. But there, in my mind there, you know, I’m asking you what you think would be an appropriate consequence for your violating these rules, your knowingly, as far as I’m concerned, knowingly violating these rules. MCKINNEY: Well, I have spent years and hundreds of thousands of dollars trying to st rectify this decision, our bad decisions, I guess. In November 1 we started sleeping our students in Pahala. And subsequently we’ve moved into the Shirakawa. So we have spent a lot of time and energy to try and move this project forward. It’s difficult because what I think and thought does have to do with my decisions. But I also understand at the end of the day what I did was wrong; and I am willing to suffer those consequences, and I will. But I also do run a good program. I believe in second chances. I work with a lot of troubled kids and would hope that we would be able to show you that we’re a valuable member of the community. IWASHITA: Follow-up, Mr. Chair? WOODWARD: Yes. IWASHITA: Thank you. You just said that from November of 2008 the children who come to your place had been staying, first stayed in Pahala and now it’s Shirakawa Hotel. Prior to November 2008, were the children staying on the property? MCKINNEY: Yes. Yes. IWASHITA: Okay, thank you. 11 EXHIBIT B WOODWARD: All right. Any further questions? Commissioner Ogata. OGATA: Can you, I know you gave a very brief overview of your program and your facility. Can you talk a little bit more about the target population? And then you mentioned, oh okay, well, just start there. I have a few more questions. MCKINNEY: Sure. Our students are typically 13 to 17 years old. They come from the mainland, mostly; and that’s because the idea is to bring a student into a place that they’re not real familiar with, kind of a different environment in which to start anew. They’re usually, they’re all screened. They’re referred to us by referring professionals, either therapists, or educational consultants. And they basically determine what program is best fit for a student and then they will refer them to us. The program works on just some basic concepts: reflection of the self, an awareness of what’s kind of going on around you, and being able to express yourself appropriately, you know, the gardening. We’ve come from, I’ve worked in Utah and Idaho where they have programs that are bit more geared towards survival and wilderness therapy. And we started this program because here in Hawaii, because we wanted a softer, gentler approach to working with kids.It’s not about scaring them, it’s not about putting them in really awful situations and requiring them to navigate around it with a smile on their face. The gardening has been, it was not something we initially planned; and for better or for worse this might be part of our problem. But we fell in love with the farming and the gardening and the metaphors for the kids. It was just something that I had never seen before. And the way they embrace the plants and the way that the metaphors are gentle and the way they can connect with the earth and see how they can grow parallel to what’s growing in the land, it’s just unbelievable. The climate here is safe and welcoming; and I think it inspires reflection. So we’ve really kind of started something that’s actually, we’re the only one in the country. And so that’s why it’s very hard even in our own industry for people to kind of understand what we do. I know it has been very difficult for us to understand and to be able to convey that to people that don’t necessarily have any background in what we do. They’re usually there for about 60 days and then typically they go home, maybe to another therapeutic environment or to a boarding school. And if there’s anything I’m missing, please feel free -. OGATA: Okay. No, that actually was a much better description of what, or giving me a better picture of what exactly is happening there. My other question is you often refer to these clients, or whatever you may call them, as students, so is there an educational program for them? MCKINNEY: And that’s a good point. We don’t actually call them students officially. We will at times either use distance learning programs to work with the kids. Often these kids are coming and academics are not the priority. However, some families really want that to be a priority. So we either can work with a distance learning program or we will often kind of continue the academics that their present schools have. But, again, it’s a small, very small piece of the program. WOODWARD: Any further questions? Brandon, do you have a comment? 12 EXHIBIT B GONZALEZ: Yes, Mr. Chair. WOODWARD: Mr. Gonzalez. GONZALEZ: Thank you. Ms. Zelko or Mr. Chu, if you could probably address the concern that was touched upon earlier by Commissioner Iwashita about certification from Department of Health. I’m specifically looking at HRS, Chapter 346, Child Caring Institution, any institution other than an institution of the State maintained for the purpose of receiving six or more minor children for care and maintenance not of common parents. If you think it’s applicable or, you know if you can just talk about that issue. ZELKO: Yes. Actually we are in contact with the Department of Health. And what they’ve said is when you get your special permit please come talk with us, and then we can work with them to get the permit. And I think that under the conditions if, in fact, we have to get the permit, which I’ve told them that will be part of the conditions of the special permit, is that we have to follow all rules, which would include that one, the Department of Health. And, also, I just wanted to make one other comment that had to do with Commissioner Iwashita’s comments about the archaeological survey that was done. Prior to us or prior to them coming before the Planning Commission initially they actually had submitted, as you can see, a no effect letter. And we did receive on August 12, 2004 a letter stating that they believe that there are no historic properties present because intensive cultivation had altered the land and that no historic properties will be affected by this undertaking. So even prior to that Commission hearing, we did have that letter. We had to go one step forward because of some things that had come up. And there had been, you know, talks about a cave, which we still, I mean, we just don’t know where it is. It’s definitely not on our property though. And that’s with the archaeological survey. IWASHITA: Well, if I can address that Mr. Chair? WOODWARD: Yes, please, go ahead. IWASHITA: Yeah, I’m aware of that, that letter. And notwithstanding that letter, the requirement was made basically in 2004. So, you know -. And in Waikiki, all right this is not Waikiki. But, you know, burials are, I think in today’s development environment that’s probably one of the key concerns. So, you know, you’re probably not going to do excavation or those kinds of things which ends up, you know, turning up iwi. But notwith -, you know, the requirement was there, that’s the main concern. And to address the last issue about the Department of Health and Chapter 346, it seems to me that the current operation at Shirakawa Hotel might require compliance with the Act. So, you know, it’s really troubling to me. Right? I mean, again, I admire what you do, right, and it’s a good thing obviously. So I’m not questioning that. But there’s a regulatory environment that seems like you need to comply with. And what’s distressing to me is either you’re ignoring it intentionally or that you have no idea what the rules are. And it’s troubling, it’s really -. And I don’t, you know, I asked you about what the consequence could be but, you know, there has to 13 EXHIBIT B be a consequence. You know, this is, this is not second grade. Right? You don’t get to sit in a corner. You know, this is the real world and it seems to me there has to be a consequence. I don’t know what it is right now. But, you know, the conflict I’m having is I would like you to be able to proceed and do it legally, but there has to be -. We cannot, as my fellow commissioners say, we cannot do it in a way where there’s a precedent, right, that someone comes here and gets told this needs to be done and walks out and proceed anyway, and five years later come back and say, oh, now I want to get the approval and gets it. And then it’s like why did we do it in the first place? I mean that cannot be a result of this. So that’s why I say there has to be some kind of consequences that will deter, if we do approve this, there has to be some kind of condition that deters others from looking at this and saying, well, I can do what I want and they’ll give it to me anyway. WOODWARD: Commissioner Ishibashi. ISHIBASHI: Thank you, Mr. Chair. So we are a special treatment facility? ZELKO: No. ISHIBASHI: No? ZELKO: No, absolutely not. I mean we’re really an overnight youth retreat camp. I think they did not know the meaning of a special treatment facility. ISHIBASHI: Will you be out of Shirakawa or will you not, -? ZELKO: They -. ISHIBASHI: Where you’re working at currently? MCKINNEY: We consider ourselves a retreat camp at the Shirakawa. ZELKO: Because they still do camp on this, I mean they still do farm on this property. The kids still do go out there with a shuttle and they do farm on this. The Shirakawa is really for accommodations. Because that was one of the things, you’re allowed to camp and you’re allowed to farm in Ag. So some of what they were doing, and I’m not speaking to the unpermitted buildings which they absolutely know should not have been done. And, but what I’m talking to is that they actually were farming and camping, which was allowed. It was the overnight part of it that goes against the County Code. And that’s why they started renting in Pahala, Julia Niles rented to them; and now it’s Shirakawa. And I did get a several year lease at the Shirakawa; and I think they plan on continuing to lease there, even if this special permit is approved today. ISHIBASHI: So if the permit is approved we would have to go and work with the Department of Health to get permitted by them? For what? For planting and -? What are we doing that needs Department of Health’s certification? 14 EXHIBIT B MCKINNEY: I think that’s really the big question. ZELKO: That is the question. And they’re going to work with us on that. This is kind of a new thing, I think for Hawaii anyway. And so that’s why we’ve had a hard time fitting into something which is why initially I think they mistakenly put themselves into a special treatment facility which they never would have been able to -. I mean that was just not -. MCKINNEY: I’m not sure. I know the Commission had a lot of questions about that last time. And I think maybe -. It’s funny cause we really were trying to be regulated. And so we came in 2004 well ahead of probably where we should have been. I didn’t have an attorney, I filed everything myself, and still am trying to find out exactly what we are. There are numbers in terms of kids you serve and what you’re called. The Shirakawa offers us a commercial aspect as well. So we’re still really anxious to hear -. ISHIBASHI: Okay, the students we’re bringing in, what are they determined to be, what classification? Special ed, trouble makers, what, what -? MCKINNEY: We like to call them soft kids. They’re not trouble makers. They’re very compliant. Architecturally this is a voluntary program. So while they may be not all happy all the time it is on a voluntary basis. We call them participants. ZELKO: They do have a rather strict emissions policy. So if you have youths that have terrible drug problems they won’t accept them. Violent behavior they won’t accept them. So these are really, I mean, I know we talked about this. They are, they tend to be the people that maybe have been adopted and having a little issues about that, aggrieved, that kind of thing. ISHIBASHI: Being referred by whom, who’s referring this to -? MCKINNEY: These are all referring professionals. All of them therapists, or psychologists, educational consultants, people who work not just with troubled kids but then helping to place them outside of kind of out-patient therapy. ISHIBASHI: Mr. Chairman, thank you. WOODWARD: Commissioner Domingo. DOMINGO: Thank you, Mr. Chairman. The way I look at it, my concern is having unpermitted structures on the property. Could somebody from the staff come up, please. What’s the zoning on that property right now? DARROW: Agricultural 20 acres. DOMINGO: Twenty acres. How many structures are allowed on this property at this time? 15 EXHIBIT B DARROW: Well, as the applicant had mentioned the structures that are under six feet, those small shaded study structures, those do not require or trigger the need for a building permit. A farm dwelling would be allowed, an agriculturally- related building, or warehouse, or greenhouse. A special permit would allow other types of uses, such as what they’re requesting -. DOMINGO: Okay. DARROW: Dorms or those kinds of things. DOMINGO: So if they go into Public Works and apply for a building permit for the existing structures that need to be permitted, what would happen? What would be the initial requirement? DARROW: They would have to show that they have received a special permit from the County. DOMINGO: Okay. DARROW: If they were going to permit them as sheds or if they wanted to permit it as a dwelling they could permit one -. DOMINGO: One dwelling? DARROW: One dwelling. But they could also apply for an additional farm dwelling. DOMINGO: Okay. DARROW: Yeah. DOMINGO: How many structures are there right now on the property? DARROW: There were numerous small structures. As far as, I believe the applicant had mentioned there were five unpermitted structures that would need permitted, they would need permits from the Department of Public Works. These included, I believe, what would be considered a dorm structure on both the mauka and makai, but they were empty when we were there, two lanai structures, one on the upper and one on the lower to oversee activity on the property. And then I’m not sure what the fourth one, or fifth one, maybe the carport for the shuttle. DOMINGO: Okay. That would be on the basis that they acquire a special permit for this particular use? DARROW: Correct. 16 EXHIBIT B DOMINGO: But since they don’t have it and if they would go in Public Works and apply for the existing building permits for the buildings on that property they would be allowed only one dwelling permit plus another farm dwelling, just two? DARRROW: Possibly. DOMINGO: So what we’re saddled with, with additional six, a requirement for six building permits? DARROW: The other identified structures could be allowed, again, through the special permit. Without the special permit they could be approved as sheds or carports or, you know -. They weren’t very elaborate structures. They were just kind of lanai structures, I mean just like open, open-type structures, except for the dorm structures. DOMINGO: Well, you know, my concern here is that in fact we have another pending application to which there are two, two small little buildings with, I presume, with no building permits, you see, and they’ve come before us to apply for a special permit. Now, you know, this seems to be getting to be a widespread practice wherein you do what you’ve got to do, what you want to do, and then afterwards if you’re caught then you decide to abide by the requirements of the County. And that’s what I’m seeing right now. Okay, Mr. Chairman, thank you. WOODWARD: All right. Commissioner Kern. KERN: I just wanted to, I agree with Commissioner Domingo. It’s challenging. You know, there are people out there that do build unpermitted structures all the time but it’s usually a bit smaller and it’s not in relation to a business, or maybe it was. You know, a farm piece of property, they have their home there that was permitted, and next thing you know they need to build a shed, and then so it’s like going through the whole process. And they build a small shed and maybe they get caught or maybe they don’t. It’s still not, you know, the right thing to do. But it’s just, it’s really challenging when you’re running a business that’s credible and every structure on there is not permitted. Coming from the background that you already had, you know, you knew better, no matter how much ignorance there was there. You know, you knew the speed limit was 45 and you’re driving 60. It’s challenging. So I also agree that there should be some sort of penalty or some other than the basic penalty for an as-built permit, is double the permit fee. I know that cause I’m a general contractor. So people do it; and it’s like, okay, great I’m going, instead of spending $400 I’ve got to spend $800, not a big slap on the wrist. So my concern is that we’re not just dealing with a home that had a shed outside of it that was unpermitted, we’re dealing with the whole thing that was unpermitted. And so if we do pass it we are basically setting precedence that, fine, go ahead and do it again. So there needs to be something. And, you know, Commissioner Iwashita asked what you thought would be the proper penalty or, yeah, proper penalty, I guess. Do you have any thought on that? MCKINNEY: Well, I would certainly be open to paying a fine. I’m not sure if that really answers -. It’s difficult for me because I like to consider myself an honorable person, and this 17 EXHIBIT B has been really difficult. I’ve been put in a very difficult situation. I don’t come from lots of money. This has been a mom and pop shop. And so it’s really been this way or we just go away. And I feel bad. I mean this isn’t second grade and I understand the gravity; and I appreciate what you guys are saying. I don’t want to be that guy that you guys push away. You know, I’m trying to just think in my head what would be appropriate, something that would, you know, you’re trying to make a point to people not doing this. I don’t know whether I could do community service, or stand in front of these things and when people are coming in it’s like listen, I’ve been there, don’t, you know -. I’m not sure. I am open to consequences. I’m not trying to avoid them. I knew this day would come and I knew I made some bad choices. It’s unfortunate. I believe some of you are feeling like I went out of my way to disrespect this Commission and the decisions; and that’s not the case. And I do take responsibility for that. So I would be happy to sit down and discuss what the consequences would be. And I’m open to that. WOODWARD: Madam Director. LEITHEAD TODD: I just wanted to make some comments. Like we have many violations that come to the Department that never make it to the Planning Commission.And typically what we do is we tell people go make it legal. We rarely tell anyone tear it down. You know, I think I’ve got one case in my office now where I’m having to tell them because it’s an existing subdivision, it’s within the setbacks, and it, you know, clearly they should have known better kind of a thing. And there’s no way to make it legal. But typically what we do when somebody builds a house and they didn’t have a building permit, they built a structure and they didn’t have a building permit, and we find out about it, we say, look, go to the Building Department, make it legal. And then, you know, in our violations we may issue a fine or we may not. Because mainly what we’re trying to do is get compliance. We’re not trying to penalize people. And we’re just trying to make people go through the ropes; and that’s typically how we treat them. A lot of these structures on his property if they are below six feet in height they do not require a building permit. So it is not all of the structures that you see. It is just a few of them that are problematic. And when he goes to the Building Department to try and make them legal, he may, in fact, have to retrofit some of them, depending on how they’re constructed if they don’t meet Building Code. So there will be a cost to them. And I’m going to tell you, .like in some of the cases that we have dealt in our office that never make it to you folks, the cost can be substantial for people to bring their places into compliance. So that is kind of a penalty. And then the threat is that if they don’t make it legal then we go in and take more action, and we have put liens on people’s properties. You know, one of these days we may be going in with a bulldozer on some places. But we do have a progressive, you know, step that we take on things; and we’ve issued fines for some people. But usually if people try to work with us then that’s all we’re really asking. And so in this case I wouldn’t want to, you know, treat this applicant differently than the way we treat everybody else, which is basically go make the building legal. So I just wanted to state that. WOODWARD: All right. 18 EXHIBIT B CHU: Could I add -? WOODWARD: Yes, sir. If you’ll give us your name and address. I don’t believe you have. CHU: Newton Chu. WOODWARD: Okay. CHU: And I’m the partner in charge of our office over here. And I remember when the client came in and met with Jennifer and stuff, and I sat down and met with them and, you know, found out a little bit about the history and what was going on. It was very difficult for us at that time when you have a, what we call a pro se, someone who had done everything on their own but they maybe fumbled and bumbled their way into a mess and they come into your office. And, BJ, I know you, you know what I’m talking about. It’s hard to undo the past and sanitize or make it right. But what we saw in this project is that something that was a, we felt was a little unique because when we first heard about it we really didn’t know what it was, either a special treatment facility or whatever. And the more we talked with the State people, they didn’t know either. So it’s kind of a hybrid. It’s something that’s not being done in the State. But yet there were so many positive possibilities out of this to help the youth, not only on the mainland but also on our community, that we decided that, well, we will get involved with this and see if we can help them wind their way through the bureaucracy, both county and state. And it turned out you guys are the first. I mean we are taking it through you guys first; and there are other places that we’re going to have to go to make it work. But I think if you look at the big picture of what a program like this offers to our young people in our country, in our community -. In fact, part of our discussion this morning involves the granddaughter of my minister who was a runaway just this past week and just found, who’s kind of possibly a candidate for something like this so that she’s got soft issues that caused her to runaway. This is a type of treatment that would be probably better for her than going back to Hilo High. So we looked at the big picture when we evaluated the case and said, yeah, it’s a mess, yeah, they fumbled and bumbled a little bit and they’ve done something that, you know, maybe we should have spanked them a little harder. But we’ve got to start somewhere and we’re starting here to make it right. And we have told them that we have to do things to make it right, and they said they’re willing to do that; and hopefully we can keep it moving forward. It’s not, you know, it’s not a contested case.Right? It’s not something that people are saying take, well, there’s an isolated complaint which I’m sure you’re going to hear about from someone who lives somewhere else. But there are issues that we will be addressing, tough issues, and, you know, it’s my hope that we can move it forward because we do have a lot more hurdles after this Planning Commission. We do have a lot more hurdles, we understand that. But that’s the challenge. LEITHEAD TODD: Commissioners, I wanted to, you know, just point out that it was partially because of the history of this project and partially because it’s kind of unique that I had recommended a five-year limit with -. Basically by then I would assume they would have gone through Department of Health, there would be an opportunity to evaluate whether the building 19 EXHIBIT B permits had been in fact done and everything had been done, so that it basically brought them back in. Because typically when we do these special permits they run with the land and you don’t have time limits. I’m actually considering in many cases taking a look at time limits on special permits, because I think it’s an effective tool to review whether we made a right decision and whether it’s operating in accordance with the conditions that we’ve placed on some of these. Because once you issue them sometimes they’re very difficult. But in this case it was basically because I wanted to have the applicant have an opportunity to go get the rest of their, you know, ducks lined up so to speak because there are other things they need to do; and it would give the Commission an opportunity to come back and see whether they had in fact complied with all of the requirements. WOODWARD: All right, thank you. Let me just kind of explain where we are right now. We do have one person from the public signed up to testify. And Mr. Gonzalez would like us after we finish this part to go into executive session so he could discuss some legal issues with us. So if there aren’t any further questions, fine. We do have one person from the public to testify; and then if the Commission is in agreement we’ll go into executive session. Are there any further questions for the applicants? OGATA: Can I, just one more question. WOODWARD: Commissioner Ogata. OGATA: If it turns out that there needs to be Department of Health credentialing and certification, or whatever it is, and if it turns out that there needs to be Department of Education involved or whatever, then would, how would, I guess maybe I’m thinking aloud but – that would be a whole other issue as far as providing school to minors and minors under care of a program or facility. So -? CHU: Right. There’s a lot of other issues that -. This is, like I said this is Step A. We need to get through Step A and we will address Step B and C, if there is Step B and C. It’s probably not a school but there might be some Department of Health issues. WOODWARD: All right. Thank you. You all may be seated. And Mr. Jeff Silva has signed up by from the public to testify. All right, sir, if you’ll raise your right hand. Do you swear or affirm to tell the truth today before the Windward Planning Commission? SILVA: I do. WOODWARD: All right, if you’ll give us your name and address and then begin your testimony. SILVA: Hi, my name is Jeff Silva. I live in Wood Valley, Kau. My mailing address is PO Box 201, Pahala. I own properties approximately three-quarters of a mile from their property. There’s a large parcel that separates my parcels from theirs. I actively farm and I have an orchard on those parcels. So I am in that area quite regularly and actually farming. 20 EXHIBIT B I’m here essentially to submit testimony recommending the denial of this special permit. I had a prepared statement which I submitted in writing and they’ve asked me to not repeat that. But I’m going to try to get catch some of the major issues as well as some of the ones addressed in the previous testimony. Most importantly as the Planning Director pointed out is when we run into this situation with building unpermitted structures, typically it’s with a residential application. This is a business, okay? Businesses, it’s a whole other thing. They’ve got to be on the up and up. Their website proclaims that they charge $450 a day for these students. They’re making money at this. They need to be compliant with the laws. They’re making money, they have the income to be able to follow the rules that the rest of us have to. So, anyway, that was one of the main things, that this is a business. It’s not a, it’s not just your average Joe building a house and a little shed and a greenhouse. The main points that I’d like to cover quickly, summarizing, is that they purchased this property knowing full well that it was zoned Agriculture. What they’ve done is they’ve essentially gone ahead and done whatever they wanted to do.They’ve housed a bunch of people there. They’ve put up a latrine; and that was a, actually that was a serious concern of the previous Commission. They were concerned about the possibility of the latrine leaking into Waiabata Cave and damaging the archaeological significance of that cave. Has this been addressed? Is that latrine even on their property? I don’t know. Do the applicants know? I don’t know. They’ve continued to not have building permits as they’ve already discussed. But probably the most important issue that I see is the water. Where is the water going to come from? I sit on the Board of the Water Cooperative. We’re a public drinking water system. And if you’re serving more than 25 persons more than 60 days a year you fall under the purview of the EPA and the Department of Health as a public drinking water system. Now if you have water running to one tap in a kitchen and there’s 25 people living there more than 60 days a year, you’re a drinking water system. You’ve got to test it, you have to have an operator. It’s incredibly involved and it’s a whole new facet that they haven’t even addressed in their plan. They are essentially, they should be running a public drinking water system as well as their youth retreat camp; otherwise they’re putting their students at risk, at a health risk. So water is definitely a much larger issue than they proclaim. They will need to do some form of treatment. They will need to do some form of filtration. And they’ll probably have to have a licensed certified operator managing the system and on record with the Department of Health. The other main issue that they have in their application is they claim that the property will be farmed and gardened much like the surrounding properties. There is not a home for five miles. We’re talking about something that’s the density of Hilo or Puna in the middle of an agricultural land. It’s productive land. It’s being actively used. And they’re essentially proposing a huge residential development in the middle of that land. And I do want to read the final statements in my written testimony because I think that it really sends the message home. “Mr. McKinney, Mr. Kaiser, Preacher Creek LLC, Pacific Quest, and now Mala Mohala have acted with impunity, disregarding the rules the rest of us have to follow. When the Planning Department acted to protect their neighbors - me included and actually I 21 EXHIBIT B submitted, I was the one who submitted the complaint - the applicants withdrew their application and subsequently filed the application now before the commission. The applicants have already negatively impacted their neighbors by building their facility and operating it without oversight for five years already. Granting the application today would reward them for their poor behavior, unusual when they claim to teach minors values.” “The applicant’s lack of attention to all of these issues brings question to their ability to operate such a facility. Their qualifications should be carefully scrutinized as their acts on the ground bring question to the credibility of their statements and their true intent. And I just also want to note that the Kau community is currently working on their CDP; and as far as I know they have not considered this type of residential development inside the agriculturally-zoned land. Regarding the conversation prior to this, without a survey how do they know what the setback is? But yet they’ve built these buildings. They don’t even know if they’ve met any of the rules. Are they over the boundaries, are they too close to the boundaries? They don’t have any idea cause they just went ahead and built. They didn’t even know where the line was. The archaeological issue, that’s an important one. They went ahead and built. And who knows what is under those buildings.I was present at the prior Commission meeting. The Commission was very concerned about agriculture or, I’m sorry, archaeological issues and they were also very concerned about Waiabata Cave and the effect of a septic system on that cave. One of the other issues that came up is Mr. McKinney claimed that professionals refer the students to them. Do these professionals know that they’re sending these kids to an unlicensed unpermitted facility? What are their requirements? That would be a good place to start. If they’re supposed to be sending them to a licensed facility and that’s what their parents think they’re going to, I think that’s a very important issue. The other issue that I didn’t bring up in my written statement is their insurance. If they failed on all these other issues, do they have proper insurance to cover the surrounding landowners in case there is an issue with one of their students, and do they carry the proper insurance for their operation at all? If they do, how did they get insurance without having permits or a license to operate? And then I just, other than that I wanted to thank you guys cause I know as volunteers you guys have to work pretty darn hard. Thank you. WOODWARD: Thank you, Mr. Silva. Any questions for Mr. Silva? IWASHITA: Yes. WOODWARD: Commissioner Iwashita. IWASHITA: Are you familiar with the location of Waiabata Cave? 22 EXHIBIT B SILVA: It’s makai of the makai portion but I don’t know exactly where it is in reference to the boundary. IWASHITA: And I guess my question was unclear. Are you referring to the entrance to the cave? SILVA; The entrance to the cave is below the property and it was -. I have never been there but people I know who have been there, including one of the prior commissioners who submitted written testimony, has been to that cave. And that cave does project mauka but it’s unknown whether it projects underneath the boundary of the property. Does that answer the question? IWASHITA: Yeah. It’s like a lava tube, right? SILVA: It’s a lava tube with petroglyphs. IWASHITA: Okay, thank you. WOODWARD: Any further questions? Okay, thank you, Mr. Silva, you may be seated. Is there any objection to going into executive session? GONZALEZ: You need a motion and a second. WOODWARD: I need, okay, a motion. Who would like to make a motion? DOMINGO: Mr. Chairman. WOODWARD: Yes. DOMINGO: I move that we, the Planning Commission, go into executive session with regards to, to consulting with our attorney. OGATA: Second. WOODWARD: All in favor? COMMISSIONERS: Aye. WOODWARD: Any opposed? Okay, it’s unanimous. We’re going to be in executive session. If you all could leave for just a few minutes. It shouldn’t take too long; and then you’re welcome to come back in. EXECUTIVE SESSION - The Commission went into executive session at 11:41 a.m. The Commission came out of executive session at 11:55 a.m. by a motion made by Commissioner Iwashita, seconded by Commissioner Domingo, and unanimously carried by a voice vote of all Commissioners in attendance. 23 EXHIBIT B WOODWARD: All right, we’re back in regular session. Commissioner Iwashita. IWASHITA: Yes. Mr. Chair, for purpose of continuing the proceeding, can we call the applicant back. WOODWARD: All right, will the applicant come back and have a seat, please, and/or representatives. You’ve already been sworn in so we’re good to go there. IWASHITA: Thank you, Mr. Chair. My inclination now is, because of the concerns that I have, that this matter be deferred so that some of those things can be addressed; and so that’s what I wanted to bring up at this point.The main part of the concern I have is that, your current compliance with the law. You have an operation that’s taking care of kids now. And it’s not clear to me that you’re complying with Hawaii’s legal requirements for conducting that operation at the Shirakawa hotel presently, and so I really would want to defer. What I’m going to ask for is a deferral of this matter, continue this for a month or two, so that you can figure it out and come back and be able to clearly say one way or the other whether you’re in compliance with the law, Chapter 346 and other applicable statutes. And the gray one, I know Mr. Chu says DOE doesn’t really have rules that would apply to you. I’m not, you know, Hawaii has a mandatory, you know, child, every kid in school, right? So if you have a kid for 60 days it seems to me that that might be a situation here the law applies, even though the child is not a Hawaii resident, not a permanent Hawaii resident. But I’m not sure, but those kinds of things need to be addressed. So that’s where I’m coming from. And I’d just like to clarify on the record that, you know, a lot of concern, my concern, and shared by almost every other Commissioner that queried you about this, is based on the way that you’ve proceeded, you know, there are real questions about your credibility, frankly, and whether or not the representations you made in this application are ones that we can rely on, all right. So, you know, that’s really the concern that we have. Again, I’ll repeat, I would like you to succeed. You know, obviously, you do good work. So we just need to address the concerns that we have about really your current operation. And, because as I see it you’re asking us to allow the use of this Ag land, right, as an adjunct to your current operation which you’re claiming is proper, right? The record as far as I’m concerned is not clear on that. So, you know, so it really addresses, all of that I brought up before really addresses the fact, you know, that whether or not your representations can be relied on, and whether you have the integrity to do what you say you’re going to do. So that would be my concerns. And any comments you would have to address those, this is your opportunity. MCKINNEY: I’m not sure if there’s anything I can say that’s going to instill trust in you. We have spent a lot of time and money trying to figure this out and get to the bottom of it. But -. IWASHITA: Okay. Well, specifically, maybe I can ask you -. You know, I intend to move to have this matter put off at least to the next meeting. And if you think you need more than 30 days or so to address the concerns that have been raised and maybe put it off for, you know, for two meetings, and I’m not sure what the time requirements are for us to act in this 24 EXHIBIT B scenario -. But that’s essentially what I’m asking you, because you need to go do some homework and come back and show, you know, address those issues, is, in order for me to feel comfortable to proceed. LEITHEAD TODD: I think that there are a couple of things that we’d like some information on. before the Commission would proceed to a vote. And one would be, you know, what are the results or the current status of any discussions with the Department of Health on whether you need licensing. Two, whether you initiate or have entered into a discussion with the Planning Department and the Building Division of Public Works on what structures you have and what it will take to get them to be legal. And the other, I think, issue that I was kind of thinking of is typically when somebody is coming in with an application we have some idea of what you’re going to do with the property when you get the permit. So are the existing structures that you have on it and are planning to get legal, is that the extent of the structures you’re going to put on it? Are you planning to put up a dormitory? If you’re going to put a dormitory what size is it, where is it going to be located on the property. So we should have some kind of a plot plan that gives us some idea of what you’re actually going to be putting on the property. And that seems to be missing, perhaps because you were envisioning that you would continue to house the clientele at the Shirakawa Motel rather than housing them on the property. But we need some kind of indication of that before the Commission can proceed to approve this. WOODWARD: Commissioner Domingo, you had a comment or question? DOMINGO: I understand that Mr. Iwashita was going to make a motion. I will yield to his -. IWASHITA: Yeah, I guess I would like some kind of an idea from the applicant how long you want the continuance to be for, rather than me to just pick an arbitrary amount of time. ZELKO: Well, I think 30 days would be fine. IWASHITA: To do everything the Director suggested? ZELKO: Absolutely because I really don’t think there are a lot of plans to build anything else out there than what’s there. I mean it’s only 24 campers so you really wouldn’t need -. We’ve got a dorm out there already. We would have to bring it up to Code. And, again, we understand all of those things will have to be permitted after, I mean that is going to be a condition. You know, our hope was that we, you know, could have gotten this through and then understood the conditions and taken care of that because that truly -. I mean they know they have to. I mean, I think you absolutely have to follow the rules with the special permits. So -. IWASHITA: That’s fine. Mr. Chair? WOODWARD: Yes, Commissioner Iwashita. 25 EXHIBIT B IWASHITA: I move, as to Item 2, applicant Mala Mohala, SPP 09-000088, I think I’ve got enough zeroes in there, I move that the matter be continued to the next scheduled Planning, Windward Planning Commission meeting. DOMINGO: Second. WOODWARD: With any particular conditions on the continuance as far as what the applicant needs to satisfy, or just what’s in the record? IWASHITA: Well, based on the agreement. I’m making it based on the agreement of the applicant and, you know, with the understanding of the applicant, or that the applicant has reflected an understanding as to why we are continuing this for 30 days. LEITHEAD TODD: Mr. Darrow, could you tell us what the next date would be? th DARROW: The next date would be December 4. LEITHEAD TODD: Okay. IWASHITA: Thank you. WOODWARD: All right, it has been moved and seconded. Any discussion? DOMINGO: Mr. Chairman? WOODWARD: Commissioner Domingo. DOMINGO: I, you know, for my part, I’d just like to make it sure and perhaps in behalf of the Commission to so state that this decision to defer is based on the need for further information and the acquisition of information that’s needed for this Commission to make a sound and logical decision as to whether or not it should be approved. And it should not be interpreted as a retribution for what the applicant has done or has not done in the past. WOODWARD: Thank you. Any further comments? Okay, Jeff. DARROW: Thank you, Mr. Chairman. Before I begin, if I could just bring to the Director’s attention and the Commission’s attention, in the application just behind the write-up there were several pages submitted with a pretty detailed site plan. In the beginning of that it had referred to existing as well as proposed structures for the project site. So it looked like they had at least addressed Item No. 3. We had three items that were requested from the applicant to submit information regarding the licensing from the Department of Health, to be able to provide information from Planning and Department of Public Works what it will take to get the unpermitted structures legal, as well as provide information in regards to your proposed project description as well as site plan. So those will be the three items, it’s my understanding. Is that correct? 26 EXHIBIT B IWASHITA: Yes. DARROW: Yes, with that I’ll make take the roll call. Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Ishibashi? ISHIBASHI: Aye. DARROW: Commissioner Kern. KERN: Aye. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: And Mr. Chair? WOODWARD: Aye. DARROW: The motion passes six to zero. WOODWARD: All right. Thank you. We’ll see you back next month. ZELKO: Thank you. CHU: Thank you very much. GONZALEZ: Hang on. WOODWARD: Yes. GONZALEZ: Wait, wait, wait. WOODWARD: One second. We’ve got a legal question here. Yes, sir. GONZALEZ: Commissioner Ogata brought out about Department of Health. Under 343, it’s Department of Human Services. 27 EXHIBIT B WOODWARD: Okay. It’s not the Department of Health, it’s Department of Human Services that we’re talking about. Okay? ZELKO: Okay. WOODWARD: Very good, thank you. ZELKO: Thank you. The discussion ended at 12:08 p.m. Respectfully submitted, Sharon M. Nomura, Secretary Windward Planning Commission 28 EXHIBIT B