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HomeMy WebLinkAbout2005-11-18 TIBBETSON PLANNING COMMISSION COUNTY OF HAWAI€I HEARING TRANSCRIPT NOVEMBER 18, 2005 DANIEL IBBETSON (SPP 05-015) A regularly advertised hearing on the application was called to order at 2:40 p.m. in the King Kamehameha's Kona Beach Hotel, Islander Room, 75-5660 Palani Road, Kailua-Kona, Hawaii with Chairman Fred Galdones presiding. PRESENT:Fred GaldonesABSENT & EXCUSED: C. Kimo AlamedaAllen Salavea Jeffrey McCall Rodney H. Watanabe Rene Siracusa William R. Graham Hannah Springer Chris Yuen, Deputy Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Ivan Torigoe, Deputy Corporation Counsel And approximately 10 people from the public in attendance. APPLICANT: DANIEL IBBETSON (SPP 05-015) Application for a Special Permit to allow a 2-unit bed and breakfast establishment on 0.722 acre of land situated within the State Land Use Agricultural District. The property is located along the west (makai) side of Mamalahoa Highway (Highway 11), approximately 120 feet south of the Kaohe Road-Mamalahoa Highway intersection, Kaohe 5th, South Kona, Hawaii, TMK: 8-7-9:14. ALAMEDA:Will the Planning Commission now come to order. Aloha everyone. Welcome. Thank you for staying with us. I appreciate your patience. At this time were looking at-. This is a contested case hearing in which were taking up an application for a special permit to allow a 2-unit bed and breakfast establishment on a .722 acre of land situated within the State Land Use Agricultural District. The property is located along the west (makai) side of Mamalahoa Highway approximately 120 feet south of the Kaohe Road-Mamalahoa Highway intersection. So I wanted the staff to remind us again about the site. Go ahead. DARROW:Thank you Mr. Chairman. Good afternoon members of the Planning Commission. If I can direct your attention to the location map on the board here. The area of this application is within the South Kona District of Hawaii. This white line running across the map in a north-south direction is identified as Mamalahoa Highway or the Hawaii Belt Road. This area here is identified as the Kona Paradise subdivision. The area of the application is identified in blue right off of Mamalahoa Highway. Theres a 10-foot roadway easement from EXHIBIT B 1 the highway through parcel 2, which is identified in this area to the applicants property. The applicant in this case, Daniel Ibbetson,isrequesting a special permit for a 2-unit bed and breakfast operation on .722 acres of land. The applicant has submitted a site plan identified here. As I mentioned earlierthe roadway easement travels through parcel 2, which is in this area up to Mamalahoa Highway to the applicants property. As you enter into the property there is a single-family dwelling thats been constructed. The 2 rooms identified by the color purple and pink are the room set aside for the bed and breakfast operation. At our last hearing the applicant identified 2 areas on the property identified as gravesite A and gravesite B that are located on the property. The applicant, the intervenor and the Planning Commission have all submitted witness th and exhibit lists. At are September 30 hearing the Planning Commission did vote to grant standing to Dean Kaiawe. Are there any questions? ALAMEDA:Thank you staff, Jeff. I would like to take some time first to introduce myself again. Im Kimo Alameda. Ill be the presiding officer for this contested case hearing and that just means that Ill be facilitating this agenda item. And, you know for those of you who are not aware of the process, this is a little more formal than our regular commission meeting and a little less formal than a regular court proceeding. But nonetheless it is structured. So I appreciate you all sticking to the structure as much as possible. I will be turning to my Corp Counsel every once in a while for advice. So if you see me talking in private thats just because I- you know I trying to get advice on making sure how you know that this process goes smoothly. So I not talking any secrets or anything. TORIGOE:Butyouknowifthereisanissueanyofyoufeelthatweshouldbe discussing on the record then just let us know and well deal with it. ALAMEDA:Let me share with you how we envision this process to work. I see that there is a testifier and what I wanted to do is maybe turn to the parties and you guys can give your brief opening statements and then let you guys sit back and let our testifier come up so that we can hear their testimony kind of right off the bat. And then have them sit down and then bring everybody up again and then we can just go from there. If anybody has any objections to that? Fellow commissioners? Okay. So, why dont we. So just to share the process again what well do is well go to the applicant first to your opening comments and then well go to the intervenor and then well go to the Department. And then well go back to the applicant. Okay. And then well call up the testifier and then regular public testimony. And then after that bring everybody back and then well start with the applicant again, present your case and witnesses that you might have and then. You know theres cross-examination then by the intervenor and the department. And then back to the applicant for final say and then well turn it over to the intervenor , their witnesses, same process. And then with the department, same thing. And then well end with closing comments and end with the applicant on that but everyone is going to have a chance for that. And well close it and make a decision. So thats how the process is going to unfold today. Okay any questions? TORIGOE:Thank you Mr. Chairman. I just want to say for the record that Mr. Alameda has graciously taken care of the presiding officer role here. Basically because the normal chairperson has a very busy, busy schedule. And so by consensus of the commissioners they basically delegated to him pursuant to 4-5 the presiding officer role, which says that the EXHIBIT B 2 Chairperson of the commission, one of its members or a hearing officer shallpreside at the hearing. So commissioners I just want to make sure on the record that we have your consensus that Mr. Alameda will preside over this matter and there are no objections to that. Okay, heads are nodding. And for the parties also I just want to make sure you have no objection to this procedure. Okay thank you. ALAMEDA:Thank you. I wanted to start with swearing our applicant and your representative in at this time. Go ahead. LEITHEAD-TODD:I have a question are you going to have public testimony? ALAMEDA:Yes. LEITHEAD-TODD:And when is that going to take place? ALAMEDA:Right after the opening comments. LEITHEAD-TODD:Okay. ALAMEDA:Okay can I swear you in? For everybody all the parties. How about the testifier?Onetime.Therighthand.Mrs.Haalilio? HAALILIO:Nancietta. ALAMEDA:Okay you can raise your right hand too, one time everybody. HAALILIO:Yes. ALAMEDA:Okay, do you swear to tell or affirm to tell the truth now before the Hawaii County Planning Commission. ALL TESTIFIERS:Yes. ALAMEDA:Okay, you may sit down. All right why dont you start with your name and address then you can proceed. KRUEGER:Thank you. Mr. Chairman, membersofthe commission my name is Dennis Krueger. Im an attorney for Mr. Ibbetson. My address is 75-5722 Kuakini Highway, suite 208, Kailua-Kona, 96740. ALAMEDA:Thank you. And if your opening comments is more of a kind of like how you are going to present and kind of keep it briefto the point. Go ahead. KRUEGER:Ill keep it very brief. Mr. Ibbetson purchased this property in 2003. He purchased it from the Hawaii Conference Foundation. He communicated with them, he contacted them to see if they would be interested in selling it. They told him they would EXHIBIT B 3 consider it and got back to him and did in fact sell it to him in 2003. Adeed was signed for the property in March of 2003. Mr. Ibbetson communicated with the State Historic Preservation Division. First he contacted an individual from the Hawaii Burial Council because he realized there were graves on the site. They directed him to the State Historic Preservation Division. He spoke to Keola Lindsey who came out to his property along with another woman from the State Historic Preservation Division, Maryanne McGrath. They told him what he was doing was acceptable in terms of where he was going to put his house. He acknowledged the existence of the graves, which were there at the time he purchased the property. He said he would agree to allow any descendants of the deceased to visit the graves to allow access to those graves, to maintain them and visit them. And, actually had his second visit from the State Historic Preservation Division several months later to see how he was doing with the construction. They signed off on it, they approved it, which is why at the, with the application today for a bed and breakfast they said that there was no, nothing that they. They had no opposition to the application because they had already been out there at the time that he was doing his construction andpriortothetimethathewasdoinghisconstructiontoviewthesiteandhadacknowledgedit at that time. Mr. Ibbetson built his home. He did what he said he was going to do in terms of the building permits. He didnt try to hide what he was doing from anybody. Matter of fact the State Historic Preservation Division commended him and thanked him for contacting them because they said a lot of people dont contact them before hand. He went ahead, proceeded, built his home and subsequently came to the County asking them to approve the bed and breakfast, which was at that point in time that Mr. Kaiawe came to him and objected to that particular use. We dont believe that Mr. Ibbetson has done anything improper in what he has done out there in the construction that he has done and the method hes used to build the property. He has a home there. Hes the only one living in that home at the present time. If a family were living there he could have any number of individuals living there as a family. To ask this commission to allow him to open it up to 4 other individuals as a part of the bed and breakfast we dont believe is going to have any noticeable impact upon any surrounding properties or upon the gravesites themselves. And so, we would request that the commission approve the application. Thats all. ALAMEDA:Thank you. Mr. Matsukawa. MATSUKAWA:Thank you members of the commission. Ill also be brief. ALAMEDA:Can you state your address? MATSUKAWA:My name is Mike Matsukawa. My address 75-5751 Kuakini Highway, Room 201, Kailua-Kona. I represent the intervenor Dean Kaiawe. ALAMEDA:You may proceed. MATSUKAWA:To expedite the hearing as I assured the commission we would last meeting. I had Mr. Kaiawe prepare written testimony in advance and if the Chair allows it during the time of evidence Id like leave to distribute the testimony, have the commission members read it. Ive talked to Counsel about it they have no objections. I think that would save time and keep the testimony focused. Basically, I dont think the parties have too much dispute EXHIBIT B 4 as to what the facts are. There may be some discrepancies on a few areas but essentially what I believe the evidence will show is that at some point in time after Mr. Ibbetson purchasedthis particular property he made a decision to construct a home. The question then is when he constructed the home atthe time, which is, the deed is dated March 2003. At that time was he already intending to use this place as a bed and breakfast? You know what was his intent at that time. The reason that becomes a critical factor is if he had submitted his application just like the Parker School situation before construction starts then the commission gets to see in a hearing format all of the facts. The commission can then render its decision, address issues relating to burial sites, graves, cemeteries, access, etc. before construction begins. But what the record I believe will show is that the application for a bed and breakfast or special permit comes in after the home is built. Theres some discrepancies that I believe will show as to exactly what was required of Mr. Ibbetson when he constructed the home. But there was a requirement for prior Burial Council approval even if the decision was to keep the burial sites in place. The statutes and the rules speak to burials in place still need to go to the Burial Council for review and approvalandtheresnosuchevidenceinthisincidents.EssentiallythenIthinktheevidencewill show were sort of working backwards here and the tendency I think of the arguments will be well the building is already there so whats your beef. That the commission is not here to decide whether the building permit was lawfully issued and thats true its not before you. That youre not here to decide whether a Burial Council approval was required. I agree that is not your jurisdiction. But you are being asked to look at what I believe seems to be an after the fact special permit application. The focus being limited from today forward from the day of the application which is April 2005. And I believe the applicant in essence is asking you not to look before April of 2005 and just look at what snapshot we have as of April 2005 the structures already up. Its where it is yes, who cares if its bed and breakfast cause 6 people could be there anyway. Who cares if they are tourists or family member? And I believe the commissions discretion is at stake here because Rule 6 and the Special Permit Law is not something that is an automatic. You know its not a ministerial thing. Its a discretionary permit and under Rule 6 you have certain criteria to follow. And we believe that the application either is not complete and in that case if its not complete you can continue the hearing or deny the application. Or the evidence is such that the application should be denied. One interesting point that wed like to emphasize is you will see a deed in evidence that says this property was given to Mr. Ibbetsons predecessor to be used as a cemetery. And since that, we interpret is a limitation on the use of the land regardless of what Mr. Ibbetsons position may be that limitation is on the property. And then the question to you and your council is a bed and breakfast allowed within that limitation? Thank you. ALAMEDA:Thank you Mr. Matsukawa. Bobby Jean? LEITHEAD-TODD:Deputy Corporation Counsel Bobby Jean Leithead-Todd and seated immediately to my right is Planning Director Chris Yuen. The Planning Department basically, its position is the same as stated in our recommendations that the bed and breakfast permit be granted. I want to just note briefly that in making that determination the Department took a look at the use of the property and the fact that the land is classified as D or poor in terms of agricultural productivity and it recognizes also that there are many lands within the agricultural classification that are not necessarily suited for agriculture. And I think thats recognized even in the State Land Use Hawaii Revised Statutes. If you have been here at any length of time you are EXHIBIT B 5 aware that there isnt a requirement that you come in and get a bed and breakfast permit before you construct a home. In fact there are many, I think the traditional way bed and breakfasts arrive here is the house is already constructed and then somebody comes in and gets a permit. So, Im not sure exactly what Mr. Matsukawa was getting at in terms of Mr. Ibbetson needed to get a permit before he built the house. Because I think usually what we see is the houses are already there and we have no requirements in the County rules regulations code that require that you come in and get a permit before you do construction. And even if you had seen Mr. Ibbetson come in and ask for a permit before constructing, even if you denied the permit that would not have prevented him from being able to get a building permit to build his house. So the house would still be there. Thank you. ALAMEDA:Thank you. Again the purpose of the opening comments was just to lay out for us as commissioners what we expect to see in the proceedings. Is there anything that youd like to respond to as the applicant with regard to that matter? KRUEGER:Mr. Chairman no I would second the comments from the Countyfor the CorpCounsel.IdontbelievetheresanyregulationthatImawareofthatrequiresanapplicant for a bed and breakfast permit to come in, even if they intended to do it at the time that they build, that theyre building the house. If that use is something, which is subsequent to the construction of the house, theres no reason why they have to come in and apply forthat permit at the time that theyre doing the construction. Mr. Ibbetson applied for the application, applied for the permit after, after the building permit was obtained for the house and is before this commission today asking for your permission to use that property for that purpose. So, thats all. ALAMEDA:Thank you. Were going to have to do some exercise. Im going to have to ask all you guys to take a seat and Im going to call up our testifier for public testimony if you dont mind. I would like to call up Nancietta Haalilio. HAALILIO:Its Nancietta. ALAMEDA:Nancietta. HAALILIO:Yes. ALAMEDA:Okay. We already swore you in but you can sit down. HAALILIO:Oh, thank you. ALAMEDA:If you can restate your name and give us your address and you can proceed with your testimony. HAALILIO:€Ae. Aloha no kakou. My name is Nancietta Haalilio. And I dont know theCountynumberofthehomethatIminwith,Istaywithmyson,wererightimmediatelyoff Mamalahoa Highway in Kealia 2. ALAMEDA:Thats fine. You can proceed. EXHIBIT B 6 HAALILIO:Oh thank you. I feel a little bit mixed emotionally right now because I had met Mr. Ibbetson prior to the sale of the property by the propertys predecessor, Hawaii Conference Foundation UCC, United Church of Christ. I also serve as the Pastor for Pukaana Congregational Church, which is a sister church to the Hoikeana Church, thats right across of the Mamalahoa Highway from the cemetery that were speaking about. I did not know the initial conditions of the sale of the property or the passing over of the property to the church for a particular use until such time as Dean Kaiawe had shared the detail through his great- grandmothers will with us. My immediate concern is that my husbands immediate family including my mother and father-in-law and their siblings and parents, quite a bit of my in-laws relatives are buried there and I prefer to call it my family. And our major concern and I just thank you for the public hearing. Everybody acknowledges your body, the commission. Everybody acknowledges those who are making the appeals to you. But I acknowledge my public which is my in-laws that was willing to stay from 9:00 this morning till now to be able to havevoiceeventhroughme.Onthewholethefamilyspeaksagainstthebedandbreakfast.On a personal note I do see this as a private business. You dont open up a bed and breakfast just to feed the stranger walking by its for the sake of income Im certain, for profit. I am not comfortable with that because it does not sit right with the original conditions of the use or the giving of the property. The church at Pukaana where I serve as Pastor became somewhat of the steward to that cemetery, that property all through the years, the 50s, the 60s, 70s, 80s we were still cleaning as often as we could. So even as a child I still remember going there to clean. After the congregation diminished my immediate, my in-laws kept maintaining the cemetery. As a Hawaiian I feel that we need to honor the original intent of the use of the property. Granted there is a dwelling there right now and its a beautiful dwelling but it should not change the fact that the property was still given over for the sake of having a cemetery. I was not aware of another parcel, a burial plot, makai side of the dwelling thats there right now. And it is my concern because the Kaiawe family descendants are down there. Mine are up in A, which is closer to the highway. The driveway on the left side is the one that used to be a trail and then went into a jeep easement and then after awhile someone had concreted partial of that stretch. Yeah, thats the one at the left. The A parcel mauka side of that I dont know whose property parallels that, right, and then the highway is right mauka side of that. We have always used the easement on the Kailua side, which is the one on the left. I am aware that Daniel has had another easement into his property pretty much where his name is down to the house. From Mamalahoa Highway down through that portion, yeah. And I dont know about how correct that easement is but this is the one that we used to use. He did mention some time back that he was going to anticipate running possibly a driveway from the highway for the one thats use and run it alongside the boundary of the cemetery the mauka side, yeah, and down to his dwelling. The layout right now is not too hunky-dory but anyways. I did like to speak up on behalf of myself and my family present and not present that we would not be in favor of having any more of a flow of people, nor traffic, nor parking now there. Granted we dont have the right to tell anyone how to use their own private dwelling. But we would not be in favor of the additional, our family comes in and theyre not aware that, from outer islands, and many of them are not aware that the cemetery is not a public cemetery, it sits on a private parcel that has been sold and is resided upon. So when they did come over they were a little bit awkward, the situations that we resolved as soon as I was able to, as far as the maintenance and use and access to the cemetery. My concern is that nothing would interfere whatsoever with my familys burial plots. And also EXHIBIT B 7 the concern that the Burial Council was never involved in any kind of a discussion at all regarding this. Mahalo. ALAMEDA:Thank you. Please be seated. Nancietta? We may have questions for you. HAALILIO:Oh, okay. ALAMEDA:Yeah. Commissioners? Commissioner Springer? SPRINGER:Just so that Im clear. HAALILIO:€Ae. SPRINGER:Istheobjectiontothecommercialactivityproposedfortheproperty?The bed and breakfast? HAALILIO:Yes. In general were opposed to it. SPRINGER:Because of the commercial nature of it? HAALILIO:And the anticipated flow of people or traffic, etc. SPRINGER:Thank you. ALAMEDA:Commissioner Watanabe? WATANABE:Are you aware of all of the conditions that were imposed on the warranty deed? Because according to the warranty deed there are 2 additional individuals that have the right to be buried on those premises. HAALILIO:I asked. Upon the sale ofthe property from Hawaii Foundation I was invited to sit in discussion with the Directors at that time, prior to the formal sale to Daniel. And I asked for the exception because my mother-in-law was still alive and her husband was buried there. I asked if there could be an exception made so that she would be allowed to be buried there with her husband and family and the exception was made and her name was Louisa Haalilio. And that exception is stated in the sale to Daniel. And I did feel comfortable in requesting that exception because Daniel had assured me that he didnt want to interfere with anything having to do with the cemetery. WATANABE:Are those individuals still alive? HAALILIO:No, my mother-in-law passed and shes buried there and Daniel was gracious in permitting us to go ahead and have her set. WATANABE:And that second individual that could be cremated and their remains-? EXHIBIT B 8 HAALILIO:The second individual did die. My mother-in-laws youngest brother but hes not inurned there. He asked to be inurned elsewhere. So as far as I know those 2 exceptions have already been fulfilled. WATANABE:Oh, okay. Thank you. ALAMEDA:Commissioners? Commissioner Graham? HAALILIO:€Ae. GRAHAM:Hi. I was wondering if there was anything that the applicant for the permit, Mr. Ibbetson could do to accommodate you folks if he were allowed to have a special permit for a bed and breakfast. Are there any other actions he could take that would sort of mitigateyourconcernsormakeitmoreacceptabletoyou? HAALILIO:Wehadntreallydiscussedoranticipatedanyotherconditions.Itwasjust an overall no were not in favor of it. Whether it was reason that were not is not for me to say. I can only state that this is the position that the family members are taking. GRAHAM:Surely. And one other thing for my own information. Are there other burials in that plot A aside from your family members and those known to you? HAALILIO:Yes. Theres quite a few. GRAHAM:All right. Thank you. ALAMEDA:Commissioners? Commissioner Siracusa? SIRACUSA:Im wondering if you have been in touch with the descendants of the other people buried there, the non-relatives of yours at all to find out how they feel about this or if they wanted to join with you in this action? HAALILIO:Okay, I need to have you understand that there was never such thing as a master list back then. When people died they were buried in the back yard or the front yard or wherever. And it just so happened that this church thats across of the highway did have this piece of property graciously given over to the church for burial purposes. There was no master list as to who was really buried there. Its just by knowledge passed down from generation to generation that so and so is over here and so and so is over there. And thats how it is with my in-laws, my immediate family. But theres also family members that have been taking care of their portions, their family portions, thats not here in Kona. Some are from Kau and Dean Kaiawes ohana were all scattered all over but as often as we are able we try to maintain those particular plots. But its not necessary that because my family is buried in A that I would know whos buried in B. Many of those plots were not marked or identified by name. EXHIBIT B 9 SIRACUSA:I see thank you for clarifying that. We and some of the paperwork we have it says that Mr. Ibbetson is willing to respect and maintain the graves and Im wondering if that poses an advantage for you and your family or if you would object to that? Would you feel that there for some religious or cultural reasons that he might not be the proper person or be unable or possibly unwilling to take on that job. Or that it might cut and your family out from being able to come and (inaudible)? HAALILIO:No, no. I have no doubts that Mr. Ibbetson would still stand good to the, his gracious offer to continue to maintain, permit the maintenance of the cemetery. My concern, my immediate concern would be the flow of traffic, the easement to the place. As far as I know, the driveway on the left is the only one that we know as being acceptable to entrance to those burial plots. I assume that it would also be acceptable as entrance to the dwelling of Mr. Ibbetson. However, Im finding that theres another easement on this other side that seems to be more frequently used. So, my concern is where that parallel line is toward the bottom of plot A onthatwholebottomportionabout1/3ofthataremyfamilymembers.Anditisjust immediately next, its inches away from the driveway. And inches away that Mr. Ibbetson did plant foliage and what not to set apart the portion thats closer to his house dwelling. But my concern is the flow of traffic it would side swipe the wall or whatever little retaining wall there is next to our, our familys plots. SIRACUSA:Well one of the reasons that I asked you about how you felt about Mr. Ibbetson maintaining the gravesites is because Im looking at some of these pictures and some of them look like theyre pretty overgrown. And Im wondering if thats an example of his maintaining or if its just because none of your family has had a chance to get there for a while and do some weeding or-? HAALILIO:It is not, as far as I know. The cemetery sits on his private property. SIRACUSA:Mm hm. HAALILIO:As far as I know, we had agreed as relatives of the deceased to maintain our family situations as best as possible okay. From the pictures I dont think, it kind of belies the fact that Mr. Ibbetson does have some beautiful plants. Beautiful foliage surrounding the edge of the cemetery lot. But it is in the middle of a forest area you know so no matter what photos you take you are going to catch brush and trees immediately surrounding because thats the layout of the place. And maybe on your way back to Hilo you can stop by and take a look at it so you would have a very actual visual feel of what it is. But it has been maintained pretty well, theres mostly rocks. But some of the other family members all of whom I am not totally aware as to whom they are do come on their own time. SIRACUSA:Would you feel more comfortable if the burial areas were set aside from the rest of the property by a fence? HAALILIO:Its pretty well set-aside by a stone wall all the way around. That A portion is all stone wall. Its just that down on the bottom portion its low, its very low. But Mr. Kaiawes concern is where his familys deceased, which is makai side of the dwelling, EXHIBIT B 10 which does not show on the layout. So you might say there is another plot ‚Cƒ that is not being seen. Where the pool, see where B? Come more makai side and it slopes and thats where we were not aware, I was not aware. No, where B is, you come down and to yourself. Where the pool is makai side of the pool. Yes down in there. Thats where Mr. Kaiawes family members are buried. And we were not, I was not aware of that prior to the sale. ALAMEDA:Mr. Watanabe? WATANABE:I dont want to open up a can of worms or anything because this is a different matter in many ways. But since we have you here and it seems as though you know a lot about the transfer of the property and the conditions that were imposed upon that warranty deed that actually transferred the property. I was wondering how did this property get to be sold in the first place? HAALILIO:Itwasgiven,thatMr.Kaiawecananswerthathehashisgreat- grandmothers deed. WATANABE:Well I meant, the church sold it right? The-? HAALILIO:No. WATANABE:Mr. Kaiawes grandmother donated the land? HAALILIO:Yes. WATANABE:Right, to the church. HAALILIO:Right. WATANABE:And the church sold the land-. Well actually transferred to another church and then-? HAALILIO:The churchs organization in the form of Hawaii Foundation, Hawaii Conference Foundation saw fit to sell the property. Hawaii Conference Foundation. WATANABE:Yeah. HAALILIO:Is the forerunners for Hawaii Evangelical Association that was mentioned in your document. Hawaii Evangelical Association was the existent church association at the time that that church was a member church of and it liquidated. It was make. WATANABE:Oh the membership? HAALILIO:and then? WATANABE:dwindled? EXHIBIT B 11 HAALILIO:The membership of the church dwindled but the association itself died and properties were transferred over to the trusteeship of Hawaii Conference Foundation, which is where Mr. Ibbetson had acquired the property from. WATANABE:Okay. And would you be able to tell us, and again I dont want to open up a can of worms but would you be able to tell us why they decided to sell that particular parcel? HAALILIO:No I will not even take a presumptuous answer, response to that. I will not speak here on behalf of the foundation Directors. I am here to speak only on behalf of myself and my family and our immediate concerns. WATANABE:Yeah, okay. ALAMEDA:Commissioners?Okay,thankyou.Youmaysitdown. HAALILIO:Thankyou. KRUEGER:Mr.ChairmancouldIaskthewitnesssomequestionssincethisisa-? ALAMEDA:Usethemike. KRUEGER:Mr. Chairman this is Dennis Krueger. May I ask the witness a couple of questions since she is testifying in the contested case hearing today? ALAMEDA:Its kind of strange. Shes actually a public testimony and shes not really a witness. Although the dialog has made it look like that way so I would prefer not and just let-? KRUEGER:I have just 2 or 3 very brief questions? ALAMEDA:Hold on? TORIGOE:Mr. Krueger what is the nature of your questions is this pertaining the testimony that shes given at this point? You know the Chairperson is obviously, correctly is very reluctant to open cross-examination of public testifiers. However I do recognize that this testifier is apparently a member of the family and purports to represent the family so you know I think its within the discretion of the Chairperson to allow very limited examination. But we want to be very careful about not going too far with this. HAALILIO:I do want to let you know I will not permit myself to be interrogated. I will answer a question if I am able to. If Im not I will let you know. ALAMEDA:Okay with that you may proceed. KRUEGER:Mrs. Haalilio I believe-. EXHIBIT B 12 HAALILIO:Nanciettas fine. KRUEGER:Nancietta I do not intend to interrogate you. HAALILIO:Thank you. KRUEGER:I just have a couple of questions to ask you. With regard to the property itself you and Uncle Billy Paris came to the property site after Mr., while Mr. Ibbetson was-. HAALILIO:We visited with Daniel. We three walked the property and thats when Daniel had shared what his anticipated vision for the use of the property was. He said this is pretty much where Ill be putting my home. And this is about where I believe I would be doing a driveway you know. But it was very informal, it was nice. KRUEGER:Andwereyousatisfiedwithwhathewastellingyouatthattime?In terms of his proposed use of the property? HAALILIO:At that time yes. But understand that Im not a decision-maker. I was just there to voice my concern regarding my relatives. KRUEGER:I understand. And with regard to site B on the map. First of all how many years were you going there to clean the property? You said you went there in the 60s, 70s-. HAALILIO:In 50s. KRUEGER:Did you ever know that site B existed? HAALILIO:We did but we didnt know who it was. KRUEGER:Okay. And when you say site B. Before you had mentioned a third parcel that you said was on the makai side of the pool. There actually are 2 sites where that site B is that are in the form of a figure 8 if you would. HAALILIO:Its like a boot. KRUEGER:Yeah, okay. And those are the 2 sites that you are referring to? HAALILIO:Thats the only 2, I knew of. Until I learned later. KRUEGER:And when did you learn that Mr. Kaiawes relatives were buried there? HAALILIO:I knew his relatives were buried there a long time ago but I didnt know exactly the spot that they were situated. KRUEGER:Okay, did you know that the church has said repeatedly that they didnt have any idea who was buried in site B? EXHIBIT B 13 HAALILIO:No, and I dont know where you got that from. KRUEGER:Its contained in their deed. HAALILIO:Oh, okay I dont know. I didnt read any of that. And when you say the church who would have been the representative of those? KRUEGER:The Hawaii Conference Foundation. HAALILIO:Oh, okay. Because the church dissipated a long time ago in the late 50s. KRUEGER:Thank you I dont have anything further. HAALILIO:Okay. KRUEGER:ThankyouMr.Chairman. ALAMEDA:Thankyou.ThankyouMrs.Haalilio, appreciate your time. All right. I want to ask if the parties can take your seats again up front? And we can proceed. Just to review again for the public how this is going to work. Were going to ask the applicant to state their case and then cross-examination by the intervenor and then the Director. And then theres going to be a re-direct which is going to go back to our applicant again. And were going to do that for each party. Okay. Mr. Krueger? KRUEGER:Thank you Mr. Chair. Mr. Chairman would it be okay if my client, Id like to call my client as a first witness. ALAMEDA:Sure, could I swear you in? KRUEGER:I think he was sworn in already. ALAMEDA:Okay, thats right. Go ahead you can-. KRUEGER:Okay and is it okay if he stays here to testify? ALAMEDA:Sure. KRUEGER:Okay.Thankyou.Mr.Ibbetsonwouldyoustateyournameforthe record? IBBETSON:Daniel Paul Ibbetson. KRUEGER:And Mr. Ibbetson how did you come to first find this property? EXHIBIT B 14 IBBETSON:Can you hear me? The property is listed in the TMKs and I called the Conference Foundation on Oahu and I spoke with Jon Derby. And I asked him if theyd be interested in selling the property. And he said, gosh he wasnt even aware they owned it. And he said let me call you back. And he called me back and said yes Ive spoken with the Directors and theyd be very interested in selling it to you. KRUEGER:Were you aware at the time that you spoke to Mr. Derby initially that there were graves onthe property? IBBETSON:No. KRUEGER:When did you become aware of that? IBBETSON:After speaking with him and his, how do I put this, sounding as if they wouldbeinterestedItoldhimthatIwouldgooverandtakealookattheproperty.AndsoI walked over, I shouldnt say walked, I drove over, I walked down. All that was visible at the time wassiteA. And so I discussed this with Mr. Derby. And he said, thats correct we have, and I you know took it from there and I made an offer and they accepted it. KRUEGER:Did Mr. Derby tell you that he had done anything to communicate or contact the relatives of the decedents who were buried on that property. IBBETSON:No, he didnt say anything to me one way or the other. It was none of my business. I just didnt know what their relationship was with the descendants. KRUEGER:At the time that you purchased this property was there an easement that went beyond the location of the gravesite A the mauka section of gravesite A? IBBETSON:Absolutely not. In fact this is the map. Do they have a copy of this? KRUEGER:Bear with me one second. Commissioners, Mr. Chairman if youd refer to exhibit E of Mr. Kaiawes exhibits. Mr. Ibbetson Im showing you a map that was done by John D. Weeks that shows the parcel in question on the lower left hand corner and it shows the graves in the upper, the mauka left hand side of the parcel. IBBETSON:Right. KRUEGER:It shows a small rectangular grave on the makai side. IBBETSON:Correct. KRUEGER:Was that the map that was shown to you? IBBETSON:Yes this is the map given to me. KRUEGER:Who was that given to you by? EXHIBIT B 15 IBBETSON:By the-? KRUEGER:Hawaii Conference-. IBBETSON:Hawaii Conference Foundation. KRUEGER:And on that map theres a line that is parallel with the mauka boundary of gravesite A. Was that the extent of the easement onto that property at that time? IBBETSON:Yes it was. KRUEGER:So there was no further easement going makai? IBBETSON:Absolutelynot.No. KRUEGER:Okay.Was,whenyoufirstwenttolookatthispropertycouldyoueven see gravesite B? IBBETSON:No, that was the interesting thing. I hiked and I hiked and I hiked and I hiked and the location of gravesite B that theyre showing on the original map was incorrect. B was actually up, when I say up it was makai of the location theyre showing there and off to the left. KRUEGER:Mauka, Im sorry, mauka. IBBETSON:Oh it was mauka Im sorry. But it was mauka and to the left of that and they had simply placed it in the wrong spot entirely. KRUEGER:Okay. When you purchased this property from the Hawaii Conference Foundation did the Conference Foundation ask you to abide by any special conditions? IBBETSON:No. In fact Im the one who approached them. And the one thing I told them, I would like to see that the cemetery itself, that area both gravesite A and B be kept in perpetuity. And that, and I, that they would be in charge of maintaining the sites, blah, blah, blah for liability and so forth. Well with no one knowing who had control over B Ive been maintaining it now for over 2 years. And, I keep it trimmed, it looks very nice. And as far as A is concerned, again, that was for them to handle on their own. KRUEGER:Did there come a time after you purchased the property from the Hawaii Conference Foundation in March of 2003 when you contacted someone from the Hawaii Burial Conference? IBBETSON:Yes. KRUEGER:And what was your purpose in contacting them? EXHIBIT B 16 IBBETSON:Uh, actually I called the State and discussed this with the State and they said youll have to call the-. Cause I went through a lot of different operations or different institutions and finally I got the number for the Burial Council. I spoke with them and they said anything that the archaeological or DLNR has to say were fine with anything they have basically is what they told me. That they would be acceptable to that. So, I called at that point, the DLNR and Mary Anne and Keoni came down and they looked at it and they said oh, looks fine. They said Dan, this is our first stop well be back. And I said okay. They complemented me on the fact that I even bothered to call them. They came down a second time and thats when Keoni said, looks great you know this is what we wanted and everything. I had jumped through every hoop that I was available, I thought was available. KRUEGER:Okay, let me slow you down here just a little bit. IBBETSON:Allright. KRUEGER:Youmentionedalotofinformationhere.KeoniyoumeKeolaLindsey? IBBETSON:KeolaLindseyIapologize.Yes. KRUEGER:Andwhoishewith? IBBETSON:Now hes with the State Land and Natural Resources. KRUEGER:State Historic Preservation Division? IBBETSON:Well, thats the division, State Historic Preservation Division. KRUEGER:And you mentioned Mary Anne. Is that Mary Anne Maigret? IBBETSON:Correct. KRUEGER:And is she in the same office with Keola? IBBETSON:Yes she is. She is his superior if Im not mistaken. KRUEGER:So the 2 of them came out to the property? IBBETSON:Yes thats correct. KRUEGER:And do you remember when they came out to the property? IBBETSON:They came out prior to my grubbing. KRUEGER:Would that have been in March of 2003? EXHIBIT B 17 IBBETSON:Yes. KRUEGER:Have you seen a memorandum. I refer the commission and the chairman to the, Mr. Ibbetsons exhibit D 1-2. SIRACUSA:Did you say G or D? KRUEGER:D, Im sorry. ‚Dƒ as in Dog. D-2. Its a letter dated March 17, 1983. IBBETSON:That was Keolas visit. KRUEGER:Mr. Ibbetson have you seen that document before? IBBETSON:Lord, lets take a look. Site visit, I see a 3/11. I cant honestly remember whetherornotIveseenthisdocumentornot.ButImsurethatIprobablygotitinmy documents. Im sure they mailed it to me. KRUEGER:Okay. In this document, its a memorandum from an individual Kai Markel, History and Cultural Branch Chief of the State Historic Preservation. Did you ever speak to Mr. Markel? IBBETSON:Yes I did. KRUEGER:And this is a memo to him from Keola Lindsey the Hawaii Sites Preservation Specialist I, the State Historic Preservation Division. You mentioned you did speak to Keola Lindsey as well. IBBETSON:Oh, absolutely. KRUEGER:And in this memorandum Mr. Lindsey is indicating to Mr. Markel that he visited the subject property because you had discussed your plans for the property with Mr. Markel is that correct? IBBETSON:Thats correct. Yes. KRUEGER:He indicates in here, he emphasized to you that this was a preliminary site visit. Did he tell you that? IBBETSON:Thats correct. KRUEGER:Okay. He said other issues discussed were recordation of sites with the Bureau of Conveyances, consultations with and access for lineal and or cultural descendants formalizing burial treatment plan prior to ground altering activities and Mr. Ibbetson seemed agreeable to these items and said he would contact SHPD again soon. Did you contact SHPD again soon after? EXHIBIT B 18 IBBETSON:Yes I did. KRUEGER:And what was the purpose of your subsequent contact with them? IBBETSON:That was for them to come out and give me my actual approval on the site. And the second time Keola came out and he approved it and said absolutely, looks great. KRUEGER:Did Mr. Lindsey indicate to you at any time that you needed to do any of the things hes mentioning at the end of that memorandum for instance formalizing burial treatment plan? Recording sites with the Bureau of Conveyances? Consulting with access for lineal-? IBBETSON:No, no. KRUEGER:Okay.WasMr.LindseyoftheconditionsinyourdeedwiththeHawaii Conference Foundation? IBBETSON:Im not sure. KRUEGER:Okay. Okay. ALAMEDA:Mr. Krueger? KRUEGER:Yes. ALAMEDA:I just wanted to interrupt real quick cause I noticed youre using a lot of the exhibits. I wanted to offer, to see if we could make a motion to allow all these exhibits to be on the record. KRUEGER:Mr. Chairman I believe at least as far as Mr. Matsukawa and myself we discussed earlier stipulating to the exhibits and not objecting to them. I did not have any communication with the County in that regard. MATSUKAWA:I agree. LEITHEAD-TODD:County has no objections. ALAMEDA:Hold on I also noticed this exhibit. What about D1-7? MATSUKAWA:No problem. ALAMEDA:No objection? LEITHEAD-TODD:No objection. KRUEGER:Thats my exhibit so no objection. EXHIBIT B 19 ALAMEDA:Okay so those documents will be received as evidence. Okay, you may proceed. KRUEGER:Thank you. Mr. Ibbetson Id like to draw your attention to exhibit D1-3. Thats a letter dated December 17, 2003 to you from P. Holly McIldowny, Administrator of State Hawaii, State Historic Preservation Division. Have you seen that letter before? IBBETSON: Im sure I received. Im sorry I sure I received it. KRUEGER:Okay. The last sentence of that letter says for this reason the SHPD requests that you contact our Kona Office to arrange for a follow-up site visit to access the current, to assess the current status of the aforementioned burial sites. IBBETSON:Right. KRUEGER:DidKeolaLindseycomeouttoyoursiteafteryoureceivedthisletter? IBBETSON:Yeshedid. KRUEGER:Anddidheacknowledgeatthattimethattherewasnoproblemwiththe construction that you were anticipating at that time? IBBETSON:Yes he did. KRUEGER:And he allowed you to proceed with construction? IBBETSON:Yes he did. KRUEGER:Did he tell you, you had to go to the Burial Council to get their approval beforehand at that point? IBBETSON:No. I had already contacted the Burial Council and they said they would be very happy with anything Keola and-, Mary Anne suggested. They were willing to accept anything that they had-. ALAMEDA:Speak in the mike. IBBETSON:Im so sorry. KRUEGER:So when did you complete construction of your property? IBBETSON:The exact date? You know thats a tough one. But lets give it-, well call it April, May of 2004. KRUEGER:Okay. And how many people live at the property now? EXHIBIT B 20 IBBETSON:Just myself. KRUEGER:And it is a single-family dwelling? IBBETSON:Thats correct. KRUEGER:And you did obtain building permits for the structure as well as the pool on the site? IBBETSON:Yes, thats correct. KRUEGER:And were there inspectors that came out from the County to inspect the construction of the site? IBBETSON:On a regular basis. KRUEGER:What about the pool? IBBETSON:Both, yes. KRUEGER:And did they pass those? IBBETSON:Yes. KRUEGER:And in order for the inspectors to come to the site do they have to pass gravesite A? IBBETSON:Yes. KRUEGER:Is there any access to gravesite B other than through your house at the present time? IBBETSON:Yes. You can just simply come down the driveway and the driveway ends mid-way at gravesite B. KRUEGER:Okay. Mr. Chairman, members of the commission Id like to draw your attention to the pictures, the photographs. Photograph number 1 in particular. Mr. Ibbetson is photograph number 1 does that depict the entrance to your property? IBBETSON:Yes. KRUEGER:And I notice on the mauka side of that entrance there is a concrete driveway do you see that? IBBETSON:Thats correct yes. EXHIBIT B 21 KRUEGER:Is that where your property line starts? IBBETSON:It starts a few feet below that. ALAMEDA:Mr. Krueger could I, for the record its exhibit D1-7? KRUEGER:Yes. Thank you. ALAMEDA:Okay. Proceed. KRUEGER:And you look at this picture its looking mauka from your driveway? IBBETSON:Thats correct. KRUEGER:And the gravesite A area is off to the right of that picture? IBBETSON:Yes. You can see the actual headstones. KRUEGER:Now behind the headstones that you can see in that picture, mauka of thoseheadstonesaretheremoregraves? IBBETSON:Oh yes. KRUEGER:And, the gravesite on the mauka side of those headstones is that enclosed with a wall? IBBETSON:Yes it is. KRUEGER:Are the headstones that you see in that picture enclosed with a wall? IBBETSON:No. KRUEGER:Okay. Now if you look at exhibit, Im sorry picture number 2 of exhibit D1-7, that, is that the driveway, same driveway that youre looking at in picture 1 but looking in a makai direction? IBBETSON:Precisely. You simply turned around now youre looking the opposite direction. KRUEGER:Okay. IBBETSON:Or looking makai. KRUEGER:And those, I notice that theres a board in the middle of that driveway with an arrow pointing left. EXHIBIT B 22 IBBETSON:Correct. KRUEGER:Whats that for? IBBETSON:Thats, I have a parking area on the far end of the house. KRUEGER:Okay, and is that a parking area for you to truck down below on the makai side? IBBETSON:Yes. KRUEGER:To get to gravesite B do you have to go beyond your truck? IBBETSON:Noyouactuallygototheleftofitanditgoesdownahill.Itsasteephill there. And then gravesite B exists. KRUEGER:Okay. Moving on to photograph #3 of exhibit D1-7 is that the turnoff that the arrow was pointing to in picture number 2? IBBETSON:Yes it is. KRUEGER:And thats the makai side of your house? IBBETSON:Thats correct. KRUEGER:And pictured in there to the right of that is a carport for your car? IBBETSON:Thats correct. Yes. KRUEGER:Okay. Picture number 4 reflects an area, is that the same area as picture #3 but looking in the opposite direction? IBBETSON:See, youd be standing over here. Oh Im sorry youre standing here. No youre still wrong. See here youre standing in the initial driveway, here youre standing at the far end of the house, theres the carport. KRUEGER:So the picture that, picture #4 you would be standing-? IBBETSON:At the opposite end of the house looking towards the carport? KRUEGER:At the south end of the house looking north? IBBETSON:Thats correct, yes. EXHIBIT B 23 KRUEGER:Okay. And at the very northern most portion of that picture would be the arrow that we saw in picture #2? IBBETSON:Thats correct. Thats correct. KRUEGER:Okay and on the right hand side of picture number 4 are those the shrubs that Mrs. Haalilio was talking about that enclosed gravesite A? IBBETSON:Actually no. The shrub work on the picture above that photograph #3, those are the shrubs that hide the graves right there. Its a very small little graveyard right in there. Lets see, if you go to picture oh gosh-. KRUEGER:Lets go to picture #5, the next picture. Are those the headstones of the, and the graves in the area of gravesite A that is not enclosed with a wall? IBBETSON:Thats correct. KRUEGER:Okay. And if you go to picture #6 is that the area of gravesite A that is enclosed with a wall? IBBETSON:Thats correct. KRUEGER:And thats the entrance in gravesite, to gravesite A shown in picture 6? IBBETSON:Thats correct. KRUEGER:And that entrance is immediately off the access road entering your property? IBBETSON:Thats correct. KRUEGER:Okay. IBBETSON:Yes, off the easement. KRUEGER:Moving to picture #7 of exhibit D1-7. Are those the graves that are within thestonewallongravesiteA? IBBETSON:Yes. KRUEGER:Okay. And again I know that Commissioner Siracusa was asking Mrs. Ha alilio if this an example of your maintenance of the gravesites. Was it your obligation under yourdeedwiththeHawaiiConferenceFoundationtomaintainthegravesites? IBBETSON:No.Infactitwassupposedtobejusttheopposite.Thattheywould maintain it themselves and I wouldnt touch it. EXHIBIT B 24 KRUEGER:The deed says that you will allow access and allow them to visit and maintain-. IBBETSON:Absolutely, yes. KRUEGER:Okay. Moving on to picture #8. Is this the portion of gravesite B that you were talking about earlier that was trimmed down? IBBETSON:Yes, thats correct. KRUEGER:When you-. IBBETSON:Go ahead. KRUEGER:When you first saw the property what did this area look like? IBBETSON:You couldnt tell it was anything. It was, oh, it was just jungle and-. KRUEGER:Okay. IBBETSON:I mean I really had to work. KRUEGER:And does gravesite A, can you tell me approximately what, Im sorry gravesite B, can you tell me what the approximate shape of gravesite B is? IBBETSON:I think Nancietta had it best described as a boot. It just comes-. KRUEGER:So there are 2 sections to it? IBBETSON:Yes. KRUEGER:Theres a wall, like a circular section on the makai side and then a boot portion of it on the mauka side. IBBETSON:Right. KRUEGER:And both of those are encircled by walls? IBBETSON:Yes. KRUEGER:And are both of those areas completely overgrown like in picture 8? IBBETSON:Well no actually none of its overgrown. KRUEGER:Well in terms of the setter of the wall? EXHIBIT B 25 IBBETSON:Oh, inside its all, I keep it all trimmed at wall level across. Yeah. Lets see if we can find a better picture. KRUEGER:Okay. Moving to picture #9. IBBETSON:Thats a better one. You can see how I terrace it in 9 and keep everything trimmed down. KRUEGER:What youre referring to when you say terrace it is the area on the upper left hand side of that picture? IBBETSON:Yes. KRUEGER:Andthatwouldbetheshoeportionoftheboot? IBBETSON:Yes.Causeitsitshigherup. KRUEGER:Okay. IBBETSON:Itsonabitofaknoll. KRUEGER:Now in picture #9a portion of your pool is also noted in that picture correct? IBBETSON:Correct. KRUEGER:Does your pool actually use the wall of the gravesite as, for any support whatsoever? IBBETSON:No. The pool, the bottom of the pool wall is actually between 7 and8 feet away from the wall. So theres no connection there whatsoever. KRUEGER:And is that reflected both in pictures 9 and 10? IBBETSON:Yes. KRUEGER:In picture #11, does that reflect the area of the easement which is set forth in your deed which would need to be used in order to access site #B. IBBETSON:No, not really. If you look at the palm tree on the right hand, upper right hand corner. Presently the way it is showing the easement it makes a 90-degree turn there, comes across 27 feet and stops. KRUEGER:Is that, as we sit here today, is that accessible? EXHIBIT B 26 IBBETSON:No. Itd be a nightmare. KRUEGER:Since youve been at this propertyhas anybody ever used that as access to site B? IBBETSON:No. KRUEGER:And are you required to clear that as a part of your purchase of the property for use as an access? IBBETSON:No. KRUEGER:Since youve lived there has anybody been to visit site B as a relative? IBBETSON:No,never. KRUEGER:CommissionersandMr.ChairmanIdliketodrawyourattentionto exhibit D1-1. D I-1. Mr. Ibbetson have you seen this document #1 before? IBBETSON:Okay, limited warranty deed. Lets see. Oh of course yes. KRUEGER:Is this the deed from the Hawaii Conference Foundation to you thats by which you acquired the ownership interest in this property? IBBETSON:Yes. KRUEGER:And in this deed on page #2. Id like to draw your attention to paragraph # C, which is accepting and reserving to the grantor certain things. Paragraph C says, ‚As the identities of the persons buried at gravesite B are currently unknown and access to gravesite would involve entry onto the property any person desiring to visit gravesite B shall notify grantee in advance to coordinate the date and time of the visit with grantee to agree to the location of access to gravesite B and to provide verification of the visitors relationship to the deceasedƒ. Was that your understanding of what any decedents of, Im sorry any descendants of any of the decedents would need to do in order to access gravesite B? IBBETSON:Yes thats correct. KRUEGER:Has anybody ever come to you indicating that they are descendants of anyone buried in gravesite B and asked you for access as thats indicated? IBBETSON:Well no one other than Dean and he came just not, just a few weeks ago. He did. Oh I take that back he came and talked to me once several months ago, oh, a year ago. And, excuse me, Im sorry, just a minute. And explained to me that his great-grandmother was buried there. And we talked a bit and, very nice conversation and that was it off he went. And, then I havent talked to him since, until now, well this whole situation. EXHIBIT B 27 KRUEGER:Okay. Paragraph D on page 2 says the grantee shall bear no responsibility for maintenance or care of either gravesite A or B provided that the grantee shall maintain the current access to gravesite A and gravesite B in their existing condition but shall have no obligation to improve the accesses. Was that your understanding? IBBETSON:Thats correct. KRUEGER:Was there a survey done by Bobby Weeks which was stamped by Blane Ito that was attached as an exhibit to this deed. IBBETSON:Now, this gets interesting because I never that particular help me, map. The only map I was, had seen up until recently was this map, the original map. And then when Dean came over he brought the new map, which I hadnt seen. And we both sat there and looked at it and I said well this is odd, I dont understand all of, I dont understand all of this easement routinehere.AndatthatpointitwasDeanwhosaidhesays,well,hesays,Igotahunchthe church pulled a fast one and put €em in real quick at the last minute. Which is entirely possible. Unfortunately, I didnt know it. And I didnt know until just recently that they had actually extended the easement and had no idea what was going on and I blame myself I should have known. And if you look at my actual deed theres no deed, theres no map connected to my deed at all. KRUEGER:As you sit here today youre aware that the County has recommended as a condition of approval condition number, added condition number 7. That the applicant shall maintain a perpetual non-exclusive easement and right-of-entry over and for the visitation, maintenance and care of the existing gravesites located within gravesite A and B identified as easement 1 with the applicants deed to the property. Youre aware of that correct? IBBETSON:Correct. KRUEGER:And youre agreeable to that? IBBETSON:Sure. KRUEGER:Not withstanding the fact that that may not have been something you saw at the time you signed your DROA or the deed. IBBETSON:Regardless. Im totally agreeable to that. I wouldnt do otherwise. KRUEGER:Youve seen the conditions of approval that have been recommended by the Planning Staff correct? IBBETSON:Yes. KRUEGER:And are you in agreement with those conditions of approval? IBBETSON:Completely. EXHIBIT B 28 KRUEGER:Okay. Thank you I dont have any further questions Mr. Chair. ALAMEDA:Mr. Matsukawa would you like to cross-examine? Mr. Graham Im going to ask that we go through the line and then ask questions at the end for commissioners is that okay? GRAHAM:Its okay but I would like to just ask Mr. Matsukawa something before he proceeds because it would be helpful to me and maybe to the rest of the commission. ALAMEDA:Okay. GRAHAM:Would that be alright? ALAMEDA:Yup. GRAHAM:EventhoughImsomewhatfamiliarwithallthismaterialfromreadingit all when I heard the opening statements from the different parties I didnt hear any reference to all of this. I didnt hear you saying you were going to make a case for denial or anything else based upon gravesites and this and that. Now maybe I missed something but I understood you to be saying a totally different thing about you know the house was originally built with the purpose of being a bed and breakfast. I didnt remember you talking all about the gravesite situation and how that impacted on the special permit. So in that sense, I feel like Im kind of walking off in some ground paying attention but I dont really know which leading is to dealing with the granting of the permit at the end. So, if theres some way before you cross examine you can flush out a little more about what youre intending to show to us then at least I can put it in some framework. MATSUKAWA:Sure, sure. GRAHAM:Thank you. ALAMEDA:Thank you. Mr. Matsukawa. MATSUKAWA:Sure. Well, Commissioner Graham essentially the issue of the burial sites have 2 particular roles in this hearing. The first is its connection to the building permit that authorized the construction of the home in the first instance. And secondly its the conditions of approval that the Planning Director is recommending. And as I said in my opening statement, we believe the evidence as Mr. Krueger has already indicated the State Historical Preservation Division had issued a letter to Mr. Ibbetson saying that there are certain things that had to be done including Burial Council approval for maintenance of the graves in place. And your, our State Statutes say no permit shall be issued by any government agency for either a building permit or a discretionary permit until State Historical has in fact given its approval. So, in essence thats what I said, you may have an incomplete application before you. Because there is no written evidence of State Historical Preservation approval for Mr. Ibbetson to have EXHIBIT B 29 constructed his home on this property as he did. And thats where this burial issue becomes relevant. GRAHAM:Thank you. MATSUKAWA:Mr. Ibbetson, very briefly. Can you look, your attorney has our exhibits I believe. Can you look at exhibit C. Have you seen this before todays hearing. I mean in preparation of this hearing have you looked at exhibit C? IBBETSON:This is the. This isthe original deed by, was it your great-great grandmother? Yes, and I have never seen it no. MATSUKAWA:Were you aware of its terms where it says in the middle that Mikala had conveyed the property so that it may be used as a cemetery? IBBETSON:No. MATSUKAWA:When were you first aware of this fact? IBBETSON:When Dean came over to my house. MATSUKAWA:During the purchase did this fact become aware to you through a title report or disclosure by your seller? IBBETSON:No. MATSUKAWA:Now you refer, could you please refer to the DROA, which is intervenors G. ALAMEDA:Is that exhibit G? MATSUKAWA:G as in ALAMEDA:Go, okay. MATSUKAWA:Yes, as in go. IBBETSON:Youre talking about the deposit? MATSUKAWA:Its a standard DROA. IBBETSON:Yeah, DROA. MATSUKAWA:If you go to the back of the document after the signature page. IBBETSON:Im looking. Oh Im sorry. EXHIBIT B 30 MATSUKAWA:Theres a faxed page number at the top right hand corner, page 13. IBBETSON:Page 13. MATSUKAWA:Its the page after the signatures with the heading Addendum to DROA. IBBETSON:Ah, I see it. MATSUKAWA:Okay? Now you testified earlier that you had requested certain conditions be put into the sale. IBBETSON:Thats correct. MATSUKAWA:AndamItoconcludethatyourequestedtheconditionsthataresetforthin this particular addendum? IBBETSON:Ill have to read them, hang on just one moment. MATSUKAWA:Mr. Ibbetson I dont, Im just trying to get this fact clarified. Are these conditions the ones that you had recommended to your seller to be part of the sale or did the seller prepare this addendum? Or did you both work on it together? IBBETSON:No. This isnt necessarily what my recommendation was. I didnt write this first of all. Im looking at this, the easement and right to enter shall be in favor of the seller oh no Im sorry wrong page. MATSUKAWA:Okay Mr. Ibbetson, you know we have limited time. IBBETSON:I appreciate that. MATSUKAWA:You didnt write this? IBBETSON:No. MATSUKAWA:Okay. Now if you could look at item 1A, paragraph A of that addendum? IBBETSON:I look at it, I see it. The approximate locations of gravesite A and access to this site is shown. MATSUKAWA:It says, is shown on the map attached to this addendum correct? Now if you turn 2 pages theres a map. IBBETSON:Right. EXHIBIT B 31 MATSUKAWA:And this map is not the 1980 map you referred to and you said you never saw this map before. IBBETSON:Okay I dont remember seeing this map. MATSUKAWA:Okay, but your signature appears on the second page of the addendum does it not? IBBETSON:Thats what I dont get. Oh yeah its there. I just question whether or not this is the map that was there. I just dont get it. MATSUKAWA:Okay. I refer you now to the deed, which is exhibit H. IBBETSON:Okay. MATSUKAWA:The very next document. IBBETSON:Okay. Okay. MATSUKAWA:If you go to the, again the back of the document after you go pass the signaturepagesandthenotarytheresapagecalledexhibit1. IBBETSON:Yes. MATSUKAWA:Okay at the end of the first full paragraph. KRUEGER:Exhibit A or Exhibit 1? MATSUKAWA:Exhibit 1. IBBETSON:Oh, Im sorry, just a minute, okay. MATSUKAWA:It says exhibit 1 and first. IBBETSON:Yes. MATSUKAWA:In the first full paragraph at the very end, reference is made to a survey of Blane Ito, John D. Weeks, Inc. dated February 13, 2003. Did you ever ask your seller or the escrow company what map this was referring to? IBBETSON:No I did not. MATSUKAWA:Did you read the deed before you approved it? EXHIBIT B 32 IBBETSON:You know I did. Im like anybody else running under the assumption that these are the correct coordinates. If these are different from what coordinates I had been given the impression they were then I was not aware that they had been changed. MATSUKAWA:Okay. Now, could you look at exhibit I, which is-. IBBETSON:Yeah, Im looking at it. MATSUKAWA:-a memo you testified to this earlier its a copy of, the same copy as your exhibit. After Keola Lindsey made a site visit you said you contacted him a second time. IBBETSON:Thats correct. MATSUKAWA:When was this second time in reference to this March visit? Was it one monthlater? IBBETSON:ItwasmorethanthatbecauseIreceivedaletterfromtheburial. MATSUKAWA:Okaysothesecondcontactwasafteryoureceivedaformalletterfromthe State Historical Division? IBBETSON:No, I dont know if it was the State Historical I thought it was from the burial. MATSUKAWA:Okay, lets put it this way. After the site visit with Keola Lindsey, you obtained a building permit did you not? IBBETSON:Thats correct. MATSUKAWA:Did you meet with Keola a second time before obtaining the building permit or was it after the building permit? IBBETSON:I cant remember. MATSUKAWA:Okay, thats fair. Can you turn to exhibit J? Its a building permit for your house. Its dated, it has the permit date anyway, April 23, 2003. Did you inform the County Building Division when you applied for your permit that you had this prior site visit with Keola Lindsey? IBBETSON:I doubt it. MATSUKAWA:So you never informed the building official of that visit? IBBETSON:Lets put it this way, when I went down and pulled my building permit I simply signed the necessary forms and that was it. When they came out the first time-. EXHIBIT B 33 MATSUKAWA:Did you give the building permit official when you applied for your permit a copy of your deed? IBBETSON:I dont know. Would I have? Do they require it? MATSUKAWA:Did you inform them that you had some gravesites on your property? IBBETSON:No. MATSUKAWA:Nor of Mr. Lindseys communication with you? IBBETSON:No not at that time. At least I dont think I did. MATSUKAWA:Okay. Now could you turn to item L? This is the same letter you testified toearlier. IBBETSON:L? MATSUKAWA:L.TheletterfromHollyMcIldowny? IBBETSON:Imlookingatit.ThisisfromHolly. rd MATSUKAWA:You testified to this earlier. If you look to the 3 paragraph. IBBETSON:Okay, yeah, yeah, yeah. MATSUKAWA:This letter was addressed to you. IBBETSON:Revised statutes blah, blah, blah. Provide that the appropriate island burial counsel shall determine whether to preserve in place or relocate. Identify the-. MATSUKAWA:Okay so. Well to receive this letter I presume you were already building your home. th IBBETSON:That would have been? When did I receive this March 11? MATSUKAWA:Look at the very top, December. th IBBETSON:Oh, December 17, 2003. Oh, no question. Yeah, I was building the house. MATSUKAWA:And you saw, you did, did you not read what she said? IBBETSON:Well this must have been when I had Keola. No, I already had Keola, gosh.IcantrememberifIhadKeolacomeoutagain. EXHIBIT B 34 thth MATSUKAWA:And the 4 line, 4 paragraph, youre urged to refrain from any activity. IBBETSON:Right, I see this. MATSUKAWA:Okay. Now, you said earlier you had then a second contact with Keola. IBBETSON:Right. MATSUKAWA:So would that have been after this December letter? IBBETSON:It had to, oh of course it was because our-. Yes, it was. MATSUKAWA:According to you Keola said everything was fine. IBBETSON:Yes. MATSUKAWA:Didyoureceivesomethinginwritingtothateffect?FromHolly McIldowny or Keola saying that it was okay? IBBETSON:No, nothing. Nothing. MATSUKAWA:Did you ask for a writing? IBBETSON:We had Keola scheduled to come in today and unfortunately at the very last minute it seems he wasnt able to make it. MATSUKAWA:No, Im saying did you ask Keola for a writing that-. IBBETSON:Right, for something in writing. MATSUKAWA:-that he said-. IBBETSON:No, I assumed that that went directly to the County and so forth. MATSUKAWA:Okay. Now, at the time you received this letter in December were you planning to use your home as in your application you say you were under a medical disability and needed to make an income and that was the primary reason for a bed and breakfast. IBBETSON:That was not the primary reason but if, if I needed to have a B & B it would be there and ready and I could use it as such. MATSUKAWA:So when did you have in your mind an intention to use your home to produce income as a bed and breakfast or vacation rental? EXHIBIT B 35 IBBETSON:That would have been in late- oh, no, no, that was in. Oh gosh. Yeah it was late 2004 when I started thinking seriously about it. In fact I requested a permit from Jeff Darrow, which Jeff sent out to me. And-. MATSUKAWA:Didnt the County-? IBBETSON:The application, Im sorry. ALAMEDA:Sorry to interrupt, our Commissioner Springer had to leave us so I just wanted to make for the record that Commissioner Springer has left the building. Continue. MATSUKAWA:Mr. Ibbetson did you have a visit from a zoning inspector for the County of Hawaii to investigate complaints that you were using your home for a bed and breakfast or some kind of a rental activity before you filed for special permit application? IBBETSON:No, not that Im aware of. MATSUKAWA:So, am I to assume that you just decided on your own to submit this application. IBBETSON:Yes,thatscorrect. MATSUKAWA:And if we call Jeff Darrow to testify he would say he had no knowledge of a zoning inspector conducting some investigation for you using your home as a bed and breakfast? KRUEGER:Im going object its calling for speculation on his part as to what Mr. Darrow might say or not. IBBETSON:Well, wait a minute. ALAMEDA:Hold on. (Conferring with counsel). I wanted to allow the question so that means Im going to overrule the objection. IBBETSON:Can I finish what I was saying? I applied twice. My first application was back in 2004. Shortly after that I had a bad seizure I was tied up in the hospital I would like I say, I was hospitalized and I wound up on the mainland it was not a pretty scene. Came back, I took it easy didnt do anything. Later, Jeff contacted me and said hey Daniel. Thats it. MATSUKAWA:Okay, just one final area Mr. Ibbetson in your application I believe you submitted the site plan that was, thats been posted up there on the board. IBBETSON:Thats correct. MATSUKAWA:When did reference to item area A and area B go on there? EXHIBIT B 36 IBBETSON:At our last meeting. MATSUKAWA:Was it on your application? IBBETSON:No. MATSUKAWA:Is there some reason why you omitted reference to the gravesites in your application? IBBETSON:I didnt see any reason to include them theyve been approved by the State as being not archaeological. MATSUKAWA:In your application you make no reference in Item 3F on archaeological resources is that correct? IBBETSON:That may be. There is no archaeological resources, it was not considered archaeological. MATSUKAWA:Andsimilarly-. th IBBETSON:Ithinkthisisthe4 time I told you this. MATSUKAWA:And similarly in your application item 3H under valued cultural resources you say none exists. Is that right? IBBETSON:Cultural resources? I may have. MATSUKAWA:No you said none exist. IBBETSON:Oh then none exists. MATSUKAWA:So as of today even after hearing Nancietta-. IBBETSON:I didnt realize that the graveyard was constituted a valid natural resource. MATSUKAWA:Okay thank you no more questions. ALAMEDA:I wanted to-. Go ahead. Whats your question? Commissioner Galdones? Everybody were in agreement? Lets take a short recess, 5 minutes. RECESSED:The Chair called for a short recess at 4:15 p.m. RECONVENED:Themeetingreconvenedat4:20p.m. ALAMEDA:PlanningCommissionisnowbackinorder.ForpublicrecordIdjustlike to make a note that Commissioner McCall has also left due to some prior commitments. So that EXHIBIT B 37 means we have 5, which is still quorum. Okay let us proceed and allow opportunity for Ms. Leithead-Todd to cross-examine. LEITHEAD-TODD:The County has no questions for Mr. Ibbetson. ABBETSON:Moving right along, Id like to ask our intervenor to follow the came process. MATSUKAWA:Yes Mr. Chairman Id earlier inquired with your Counsel if to expedite matters I had as I said earlier, had Mr. Kaiawe prepare written testimony and I think it will keep the matters focused and moving along if I could submit that to the commission. It could take a few minutes to read it and then Ill ask Mr. Kaiawe just to summarize and rest my case. ALAMEDA:Before I move on let me just ask if the applicant is finished with your case?Ifyouhaverestedyourcase. KRUEGER:ThankyouaskyouMr.ChairmanIwasgoingtoinquireaboutthatina minute. Up until last night at 5:30 we were led to believe by the State Hawaii Preservation Division that Keola Lindsey would be allowed to be here today voluntarily to testify. Ive had conversations with Mr. Lindsey as well as his supervisor Melanie Chinen in Honolulu to that effect and was told last night at 5:30 by Melanie Chinen his supervisor that he would not be attending today because they were short-handed and they had a lot of work to do. And that we had their paperwork and that therefore that he would not attend. And given that and because of the short timeframe from last night until today if this issue with respect to the State Historic Preservation Division is a issue that the Planning Commission feels is a critical issue to a decision in this matter I would request a continuance of the hearing for the sole purpose of calling Keola Lindsey pursuant to a subpoena so that we can exactly what the State Historic Preservation Division approved and didnt approve. And I would again address the commissions attention to the fact that as a part of this application the State Historic Preservation Division has responded as one of the Departments responding and said they have no objection to this. Thats argument on my part but Im just raising that because thats something you should consider later. But, that would have been the only other witness that we would have called. So to the extent that the commission feels that its necessary to hear from them if thats part of your deliberation at the end you feel that its important to hear from them then I would request a continuance of the hearing for the sole purpose of calling Keola Lindsey and I would request that the Chair a subpoena for that purpose. ALAMEDA:Mr. Matsukawa, any response to that? MATSUKAWA:Uh yeah. Dennis and I addressed the issue. I have no objection to what hes suggesting. I would like to put on our case anyway and leave that issue open at the end. ALAMEDA:Okay. Counsel? TORIGOE:Thank you. Just to clarify then. Mr. Krueger you want to reserve the right to call or to ask for a continuance to call Mr. Lindsey. If it seems that that is an issue that the EXHIBIT B 38 commission deems important to their decision making. Okay and Mr. Matsukawa has no objection to that at this point. Does the County have any objection to that? LEITHEAD-TODD:No objection. TORIGOE:And so Mr. Matsukawa would like to go ahead and present his case at this time is that correct? MATSUKAWA:Yes. TORIGOE:Yeah okay. SIRACUSA:I have a question. ALAMEDA:CommissionerSiracusa? SIRACUSA:Ihaveaquestionasamatterofdefinitionshere.Imlookingatthe HistoricPreservation response and also some of the other papers. When youre talking about historical properties how old does, I dont know who knows the answer to this, how old does something have to be before its considered historic? MATSUKAWA:50 years. KAIAWE:50 years. SIRACUSA:And would that mean that some of these graves are older than that? KAIAWE:It was deeded in 1915. Prior to that there were burials on the property. Excuse me. SIRACUSA:Thank you. KAIAWE:The deed from my great-grandmother was deeded in 1915 but theres evidence to show that prior to the dedication of this property as a cemetery there were burials within that area already. SIRACUSA:So then it would appear that the, not only the applicants application, which said there were no historic property but also the response from Historic Preservation Division which said that thus we believe no historic properties will be effected by this undertaking. Does that mean that they ignored that? KAIAWE:Well that was my question at the beginning of? SIRACUSA:Is that relevant? EXHIBIT B 39 ALAMEDA:Mr. Kaiawe could you identify yourself for the record so they know who, whos responding. Oh, hold on. Counsel? Hold on. Director? YUEN:Might I suggest that the Commissioners ask the questions of the witnesses after theyve testified. (inaudible) ALAMEDA:Commissioners are you okay with that? Commissioner Graham? GRAHAM:Yeah just dont ask any of the testifiers any questions but just the very issue which Mr. Krueger brought up about Mr. Lindsey not being able to attend. And I just want to, we heard representation from Mr. Ibbetson that Mr. Lindsey essentially signed off saying it was okay his plans. Is that really all we need him to testify to, that in fact he did give that sort of verbal okay or is there more involved? KRUEGER:Icanmakeanofferofproofofwhathestoldme.Mr.Lindseyindicated to me that if questioned at todays hearing with regard to the approval by the State Hawaii Preservation Division. He would say that he was satisfied with the conditions of the deed as far as the maintenance of the graves and access to the graves. The fact that they were being considered and cared for was all he was concerned about with respect to the house. He also questioned whether or not the State Hawaii Preservation Division had jurisdiction in this matter because they are supposed to have jurisdiction over historic graves. In this case because there have been recent interments as shortly as one year ago. And because pursuant to the deed they are still able to put cremated remains in that cemetery or in that burial area site A, he questioned whether or not the State Hawaii Preservation Division would-, State Historic Preservation division would even have jurisdiction. So, but as far as his testimony, his testimony would be that he went out there, he did view the site that he approved what Mr. Ibbetson was doing. That he was assured of his concerns based upon the conditions of the deed and that thats the reason why the State Historic Preservation Division submitted the document that Commissioner Siracusa was talking about dated April 28, 2005 because they had already made that determination previously when they had gone out at the time of construction. So that would be my offer of proof as to what he would say and that would be the basis for calling him as a witness. ALAMEDA:Okay. Fellow commissioners let me just remind you then of the order. Were going to ask Matsukawa to present the case. Ask the applicant to cross-examine. Planning Director to cross-examine and then were going to redirect back and then were going to have a chance to ask questions. So make mental notes of your question for that part. Mr. Matsukawa? MATSUKAWA:Yes Mr. Chair as I said I have the prepared written testimony and I was looking for a ruling if we could proceed in this fashion. ALAMEDA:Any objections? You may proceed. Hello? Commissioners, parties, I would like to take a 10-minute recess to allow us to us the opportunity to review the document. Is that okay? EXHIBIT B 40 RECESSED:The Chair called for a recess at 4:35 p.m. RECONVENED:The meeting reconvened at 4:45 p.m. ALAMEDA:The Planning Commission is now back in order. Okay for the record I wanted to admit for the record exhibit R which is a written testimony of Dean Kaiawe? MATSUKAWA:Yes. ALAMEDA:Okay. Any objections from the other parties on this admittable? LEITHEAD-TODD:The County has no objections. KRUEGER:We have no objection. ALAMEDA:As you know that this is subject to cross-examination? MATSUKAWA:I have a few follow-up questions with Mr. Kaiawe. Thank you. Mr. Kaiawe on your written testimony page 6, line 23, reference was made that you spoke to a Mary Anne Maigret. Youve indicated this was an erroneous reference. To whom did you speak? KAIAWE:Cathy, Cathy Dagger of the Oahu DLNR. MATSUKAWA:Okay, thank you. Now for the record Mr. Kaiawe what we have had admittedasExhibitCwhichisadeedfromMikalatotheHEAofthisparcelwiththestatement ‚so that it may be used as a cemeteryƒ. Just to emphasize once again is it your opinion that this is some kind of a condition to the use of this parcel. KAIAWE:Yes to my understanding that was described to me by my grandmother that before when Hawaiians would say something it was paa, like I mentioned at the earlier-. KRUEGER:Mr. Chairman Im going to object at this point to statements made by his grandmother to the effect of what this condition meant. Number 1 its hearsay and I realize the rules are more lax but number 2 it may be hearsay on hearsay in terms of how it came down to Mr. Kaiawe. And I dont think we can rely upon him to interpret this document. ALAMEDA:Mr. Matsukawa your response to that? MATSUKAWA:Im just asking what his understanding is of the statement. ALAMEDA:Department your response to that? LEITHEAD-TODD:County doesnt have an objection to Mr. Kaiawes testimony and I think the commission is able to weigh its value. EXHIBIT B 41 KRUEGER:Mr. Chair if hes just asking for his understanding I think wed object as irrelevant too. ALAMEDA:I would like to-, Counsel first. I would like to hear the matters, I want to object, objection overruled. MATSUKAWA:Mr. Kaiawe could you just explain-, no dont go into who told you what and thats hearsay but whats your, is it your under-, whats your understanding of this? KAIAWE:That when this property was deeded by my great grandmother that was the intention therefore this should have been grandfathered in. That no other use should be made on this property. MATSUKAWA:Okay. Now this deed was dated 1915 correct? Do you know when Mikaladied? KAIAWE:Shediedin1915. MATSUKAWA:AndtoyourknowledgeshesburiedintheareacalledsiteB? KAIAWE:Thatiscorrect. MATSUKAWA:Now, theres been some testimony that the building is already there. In your view is that a relevant concern as to whether or not this application should be granted. KAIAWE:In my view, that the house should not have been there in the first place under the conditions set forth by my great-grandmother in her deed to be used as a cemetery so I found out about this situation after the house was built. Not, not, we werent notified prior to the sale of this property by the seller or the buyer. And after the buyer took possession Mr. Ibbetson, we were never notified once as to any plans or what would happen to these graves or his plans in the future. MATSUKAWA:Now to your knowledge after this December 2003 letter was sent by State Historical to Mr. Ibbetson did Mr. Ibbetson have any contact with you about the contents of the letter. I see the one from Holly McIldowny, Exhibit L. Did Mr. Ibbetson contact you after December 17, 2003 concerning this communication that he received from the State? KAIAWE:No he did not. MATSUKAWA:Now, Mr. Kaiawe. Just to summarize could you set forth your basic objections for the commission? KAIAWE:My objection is-. I believe that this Special Use Permit should be denied on the basis that the use of this land was set aside way back in 1915 to be used as a cemetery and those buried there during that time had that understanding that it was going to be a cemetery and nothing else. My understanding and my belief is to change the use of this to a bed and breakfast EXHIBIT B 42 or commercial property is in violation of what the deed states. I also believe that Mr. Ibbetson had a choice to build his house on the cemetery between the graves or elsewhere. He chose to build it on this property. Okay, our ancestors and lineal descendants that are buried there had no choice. They were laid to rest there knowing that this was forever to be a cemetery. Now had they had a choice after Mr. Ibbetson decided to build his bed and breakfast and say okay well lets up our coffin and move to a different grave it would be a different story. They did not have that choice. MATSUKAWA:Okay, Mr. Kaiawe one follow-up question. You heard statements that the, Keola Lindsey anyway apparently said it was okay that the State Historical Division had no objections. Do you have a different opinion? KAIAWE:Yes, I do. After the last hearing that I was granted standing in this case a lot of research was done with different agencies. I also tried to contact Mary Anne Maigret again withtheHistoricPreservationDivisionwhichshedidnotreturnmycall.Soontheletterhead they had the address of the Honolulu Office which I contacted and I spoke with Melanie Chinen who refers to him as an Administrator. MATSUKAWA:Okay now just a minute, when you said Melanie Chinen, on exhibit L theres a post it fax note it says from Melanie Historic Preservation to Dean Kaiawe is this the Melanie youre referring to? KAIAWE:That is correct. MATSUKAWA:And did she then fax this letter to you? KAIAWE:Yes she did along with the other exhibit. MATSUKAWA:Exhibit I. KAIAWE:Exhibit I. MATSUKAWA:And did you receive any other information from her that is consistent with what Mr. Ibbetson stated that Keola said it was okay. KAIAWE:No I did not. But after receiving these documents, well after talking with Melanie she told me that she would look into the files to see what she could find. About a week later she contacted me to tell me that she found some letters. And that she wanted to fax it to me and, cause they were some concern to her. And in her opinion was that KRUEGER:Mr. Chairman I-. MATSUKAWA:Dont say what she said, okay you cannot say what she said. Okay, after your conversation again did she submit to you any other documents other than I and L? KAIAWE:No she did not. EXHIBIT B 43 MATSUKAWA:Anything to confirm that Keola or Keolas administrator, supervisor said it was okay for Mr. Ibbetson to construct without burial council approval. KAIAWE:No she did not. MATSUKAWA:Okay. Thank you. I have no more direct questions. ALAMEDA:Thank you. Applicant? Cross-examine? KRUEGER:May I use this microphone and have the witness? This ones not stretching far enough. Okay. Thank you. Thank you, sorry. Im sorry I have this one. Thank you. Mr. Kaiawe can you refer to that exhibit C the deed from your great grandmother to the Hawaii Conference Foundation? KAIAWE:Sure. KRUEGER:Mr. Matsukawa asked Mr. Ibbetson to read the language. Can you read thelanguageapproximatelyalittlemorethanhalfwaydownthepagestartingwithtohaveand to hold the said premises, you see that? KAIAWE:Yes. ‚To have and to hold the said premises with the appurtenances so that it will be used as a cemetery to the said Board of Hawaii Evangelical Association, its successors and assigns foreverƒ. KRUEGER:Does it say it must be used as a cemetery? KAIAWE:It says so that it may be used as a cemetery. KRUEGER:May. May be used. Correct? KAIAWE:Correct. KRUEGER:And it doesnt say may never use it for anything else? KAIAWE:No it doesnt state that but it says to be used as a cemetery. It doesnt say to be used as a bed and breakfast. KRUEGER:Does it say? Does it say it must only be used as a cemetery? KAIAWE:No it does not. KRUEGER:And in fact it is still being used as a cemetery today right? KAIAWE:Part of it. EXHIBIT B 44 KRUEGER:Okay. When did your grandmother first tell you that your great grandmother was- well start that- in your statement you indicate that your grandmother gave you directions to the site where your great-grandmother was buried and you followed those directions and came to this site correct? KAIAWE:Correct. KRUEGER:When was that? KAIAWE:This was in the 1980s. KRUEGER:And how often have you been to visit this site since then? KAIAWE:Before the house or before the property was sold I would say at least once in2months. KRUEGER:Howlongintotalsince1980?Howmanytimesroughlysince1980? KAIAWE:Iwouldsayabout25to30times. KRUEGER:Anddidyoudoanythingtotrytoclearthegravesiteduringthatperiodof time? KAIAWE:Yes I did. I took a chainsaw down and I cut around the graves after I located it where my grandmother had told me. I also had contacted James Richards who was the Executive Secretary at the Hawaii Conference and wrote him a letter as to my concern as to the neglect the cemetery had and asked the conference if they would survey this property if they could do the pins so that we can identify the boundaries and we could go down to clear the grave. KRUEGER:Okay. When was the first time you spoke to Mr. Ibbetson about his purchase of the property and what he intended to do with the property? KAIAWE:The first time I contacted Mr. Ibbetson was after the house was built. Okay the house was already up. Whether it had final inspection I dont know but it was already built, the house was already up. KRUEGER:Do you know approximately when that was? KAIAWE:Based on the documents from the DLNR it would be between that letter, nd the first letter went out and before the letter that when, Keola Lindsey went out to visit the 2 time. KRUEGER:Soitwouldhavebeenbeforethe-ImsorrytheKeolaLindseyletter? KAIAWE:Correct? EXHIBIT B 45 KRUEGER:Uh, Holly McIldowney? KAIAWE:Yes. KRUEGER:So you would have met with him before that letter? KAIAWE:Yes. Yes. KRUEGER:So you were aware of what he was intending to do at that point? KAIAWE:Not really aware. But I was informed by other family members in site A as to, theres a project being constructed on the cemetery itself. So I went directly down and thats when I met Mr. Ibbetsonwho I asked if he was the owner of this house. He says yes he was. I asked him you know who did he buy it from? And he mentioned the Hawaii Conference andJonDerby. KRUEGER:Anddidhetellyouanythingaboutabedandbreakfastuseatthattime? KAIAWE:Icantrecall. KRUEGER:Okay.DidyoudiscusswithKeolaLindseyorMelanieChinenfrom Honolulu the statement that the State Historic Preservation Division filed on, in regard to the application being made by Mr. Ibbetson for a bed and breakfast today? KAIAWE:Uh, could you repeat the question? KRUEGER:Yes, did you discuss with Keola Lindsey or with Melanie Chinen the document which the State Historic Preservation Division filed in this case, thats the April 28, 2005 letter where they said we believe there are no historic properties present? KAIAWE:No as I said earlier I did not make contact with Mary Anne Maigret, I left about 3 messages there. And because I could not contact her I contacted the Kapolei office and spoke with Cathy Dagher. KRUEGER:When you spoke to Melanie Chinen did she, was she aware of the document that was filed by the State? Im sorry the State Historic Preservation Division in response to Mr. Ibbetsons request for a bed and breakfast? KAIAWE:Yes she was aware because I mentioned a log number and a doc number on this, this item. KRUEGER:Did she ever tell you that that was a mistake? KAIAWE:What she did was, was, she said she needed to look into her files as to what happened cause you see this is what triggered everything to me when she had signed this that there were no historic sites properties would be affected. And that was why I wanted to talk EXHIBIT B 46 to her directly to see what was her interpretation of that. But like I said there was no communication back from her until I spoke with Cathy Dagher. KRUEGER:And did they ever withdraw that statement that they made with respect to the historic significance of the site? KAIAWE:If that had withdrew this, no, Darrow from the County had contacted me because I went into the County to obtain the application for Mr. Ibbetson for the bed and breakfast. Okay after reviewing the application there were some concerns to me that there were questions that needed to be answered and one was this document that youre mentioning to me now. And after providing evidence to Darrow that this was a burial site and he stated that the County of no records or even was aware that there was burials it was a cemetery. But after I showed him documents that I had with a deed from my great grandmother to be used as a cemetery, the surveyors map from John Weeks, it was evidence enough to him that there was burialshere.SohetriedtocontactMaryAnneMaigrettoobecausehewasconcernedthatthis document seemed to be false at that time. Okay this was when I was still in Hilo. When I left to come back to Kona, Darrow had left a message and I called him back and he did speak with Mary Anne. And at that time Mary Anne cleared her, explained what this sheet was and what it was, was this was just based on the bed and breakfast itself. She mentioned that the house was already up and it wasnt based on the graves itself but the effect that this house would have on the bed and breakfast. Okay so to add to that my concern, I understood what Darrow was saying his explanation as to why she had signed this document after he explained himself I understood that. My concern was prior to this or prior to even the building itself something like this should have been done prior to the excavation or any ground work. And thats why I was calling DLNR to find out what was the process. And today I pretty much have a clear vision as to what happened and why were here today based on the documents that was provided to me. KRUEGER:You dont have anybody here from the State Historic Preservation Division today to testify that this was not properly approved do you? KAIAWE:No I dont. KRUEGER:Did you ever ask anybody to come here today to give the commission that information that youre saying for instance that it was never approved? KAIAWE:If, did I ever say it was never approved? KRUEGER:Did you ever ask anybody from the State Historic Preservation Division to come here today to tell this commission that this use by Mr. Ibbetson was never properly approved? KAIAWE:No I did not. KRUEGER:You mentioned in your testimony that you believe that the dwelling that should be on this property should be a farm dwelling. Is that correct? EXHIBIT B 47 KAIAWE:Correct. KRUEGER:And thats based on what? KAIAWE:Based that a farm dwelling is based on a house where the farmer would live that farms the land. Im not aware of anything that Mr. Ibbetson is farming on, on a cemetery place. I do not know of any other farm dwelling that has a swimming pool. KRUEGER:So, your understanding of the zoning for this site agriculture is that the only thing that can go on that site would be a farm dwelling not a single family dwelling, is that correct? KAIAWE:Could you repeat the question? KRUEGER:Certainly.Youresayingthatthisneedstobeafarmdwelling.Areyou saying that it would be illegal for him to have a single-family dwelling that was not a farm dwelling? KAIAWE:Well, Im not sure what the restrictions are but based on what I see his house looks like I would not consider that a farm dwelling. KRUEGER:Would you consider that a single-family dwelling? KAIAWE:Could you describe a single-family dwelling? KRUEGER:A dwelling in which a family can live that does not engage in agricultural activity. KAIAWE:I would not be able to answer that cause I have, I had not walked through his house to see or state that thats what it is. KRUEGER:Okay. Okay. Thank you I dont have any more questions Mr. Chair. ALAMEDA:Director? Department? LEITHEAD-TODD:County has no questions of Mr. Kaiawe. ALAMEDA:Redirect? Mr. Matsukawa, you have-? MATSUKAWA:No further questions. ALAMEDA:Mr. Matsukawa do you have any other witnesses? MATSUKAWA:Well, I had listed a bunch of people but we represented to the commission we would keep this expedited so I would not have any further witnesses. But if the commission were to call Keola I would like to have him as my witness as well. EXHIBIT B 48 ALAMEDA:So for now you rest your case? MATSUKAWA:Yes. ALAMEDA:Okay. Department? LEITHEAD-TODD:In the interest of expediting this County has submitted its background report and recommendations. Mr. Yuen do you have anything that-, in response to the evidence and testimony presented today that you would like to clarify? YUEN:Just a few things. First we definitely think that the graves should be protected in the special permit process. Weve written 2 additional conditions number 7 and number 8 that talk about the protection of the gravesites. I am still really puzzled by the SHPD roleinthis.ButitsclearthatSHPDdoesnotconsiderwhatshappenedaviolation.Theres some, theres these early letters that say, that talk about having to go to the burial council. But then in response to this particular application they did send us a letter saying that they did not see any effect on historic sites. We, after we found out-. We did not know about the graves until Mr. Kaiawe came into our office and thats when we put these conditions on. After he came into our office Mr. Darrow who is handling the application did get in touch with Mary Anne Maigret from SHPD. We werent sure why we had gotten this no effect letter, which is normally what we get if theres no, there are no historic sites on the property or they feel theres, there are no historic sites on the property. Were thinking that they were simply unaware of, at that point were thinking theyre unaware of the existence of the graves. I point out that there had been this long process that had already happened and that they, they were certainly aware of the graves. But the gist of now this is second hand but the gist of what Mary Anne Maigret told Mr. Darrow was that because it was an active cemetery they do not look at those the same as a, the ancient type of graves that go the burial council you know. And so but be that as it may we do wish they had told us in response to the inquiry. In response to our sending the application to them for comment they sent this letter saying that theres no effect. We do wish that they had told us that they were aware that there were, there was a cemetery on the property because we would definitely whether its 50 years old Hawaiian, Japanese, whatever. If we knew that there was a cemetery on the property that did not have some other kind of protection then we would put a condition on to protect the cemetery in connection with the special permit. And the last thing Id like to talk about would be this question of the deed. We sometimes get, in the commission here we sometimes get applications where theres some kind of deed restriction on the property like a restrictive covenant. And you could say that this, this is not exactly restrictive covenant but you would say it something like that. We have not been enforcing those restrictive covenants we look at those as being private matters between the parties to the covenants. So in other words what were saying is that we are not going to interpret the deed and decide-, its not, we dont think its our role or the commissions to interpret the deed and decide whether it prohibits the use of this property for a home or for a bed and breakfast or for any other use. Theres, if, people who are part, who have a right to enforce something like this, their recourse is to go to court over it. We have criteria for a special permit. We look at those criteria. If the property meets those criteria then the commission should grant the special permit and basically for the reasons set EXHIBIT B 49 forth in our recommendation we think this does meet those criteria with the conditions that include protection of the gravesites. ALAMEDA:I wanted to ask the applicant if he had any responses to our Director or our Department? KRUEGER:No, no response. ALAMEDA:And then Mr. Matsukawa? MATSUKAWA:I just have argument not questions so Ill reserve my statement for argument. ALAMEDA:Okay. Now fellow commissioners do you have questions for our Director?CommissionerGaldones. GALDONES:Mr.ChairmanIwouldliketo-,Idontknowifithastogothrougha process of a motion or a request for a Executive Session for the commissioners to meet with Counsel because after hearing the testimony theres, in my mind, a lot of legal questions that Im not clear with. And I would like to know what my options would be as a commissioner. ALAMEDA:Let me ask our fellow Commissioners do you think we-, how do you feel about that going into Executive Session to deliberate a little bit. TORIGOE:Not to deliberate. ALAMEDA:Oh, not to deliberate? TORIGOE:No, even before deliberation it would be, it sounds like Commissioner Galdones would like to ask some questions about your legal options and authority and liability, possible liabilities, things like that. ALAMEDA:Commissioner Graham? GRAHAM:Im certainly okay with an Executive Session at some point. Im just wondering where were at and the process we just got presentation by the County of Hawaii. So Im kind of, if were going to do an Executive Session Id like to have it happen when the issues are sort of crystallized and you know we can restrain ourselves to specific points around those specific issues or something. So it seems like it could be a little premature now but maybe you could just re-advise us on what still remains to go from this point in time. ALAMEDA:Well we, were at the kind of like the last leg if you will of the proceedings. WATANABE:Closing arguments I think huh? EXHIBIT B 50 TORIGOE:Theres a reservation of the right to ask to, for a continuance in the event that it seemed that the testimony from the SHPD officer, what was his name, Keola Lindsey, was something that the commissioners felt was relevant in importance. So thats one more thing to keep in mind. At this point basically the parties have all finished presenting their cases I believe and so unless theres a need to call Mr. Lindsey that would be the end of the presentation of evidence. GALDONES:Mr. Chair? ALAMEDA:Commissioner Galdones? GALDONES:The question of whether Mr. Lindsey should be making a, should be addressing the commissioners is also a question that I would like to have a discussion with Counsel. Certain questions that I have will help me determine whether I would like to request testimonyfromMr.Lindsey.Theresapurposewhy-.BeforeIgointoaskingquestionsofthe parties because some of the questions Im asking, Id like to ask, are some legal questions but Id like to know where we are legally. What our options are and what kind of liabilities we may be facing pending on the situation or the direction that wed like to go. ALAMEDA:Commissioner Watanabe? WATANABE:Well, based on that maybe we should take an Executive Session, so that we can at least clear it up. ALAMEDA:I agree. Let us-, can we take a motion then for that? Commissioner Galdones? GALDONES:I will incorporate that into a motion Mr. Chair. ALAMEDA:Is there a second? WATANABE:Ill second. ALAMEDA:Thanks. Staff? DARROW:Commissioner Galdones? GALDONES:Aye. DARROW:Commissioner Watanabe? WATANABE:Aye. DARROW:Commissioner Graham? EXHIBIT B 51 GRAHAM:Just um, Im in agreement but just clarification the purpose of the Executive Session is specifically what Mr. Galdones said just a minute ago is that correct? ALAMEDA:Thats correct. GRAHAM:Aye. DARROW:Commissioner Siracusa? SIRACUSA:Aye. DARROW:Lets see we got-. Oh, Mr. Chairman? ALAMEDA:Aye. DARROW:Thats 5 to 0 the motion passes. ALAMEDA:Thank you. EXECUTIVEThe Chair called an Executive Session at 5:40 p.m. SESSIONThe Commission came out of executive session at 5:43 p.m. by a motion made by Commissioner Galdones, seconded by Commissioner Siracusa and unanimously carried by a voice vote of all Commissioners in attendance. ALAMEDA:I wanted to take this time to just acknowledge the patience of my fellow commissioners. Theyve been waiting to ask questions and to fill in some of the pukas that we have at least in our minds. And so I really appreciate the patience of my fellow commissioners. At this time if I could move to the questioning of our commissioners to the parties before us. Commissioners? Commissioner Graham? GRAHAM:Sure Ill start. Let me just for the purpose of those here just say that we just did have our executive session. Right away it was obvious, I mean this is my interpretation thattherewasfewlegalissuesbuttherewerealsoabunchofotherissuesthateachofushadin our minds that were key to our, where we go with this. And we realized that really that didnt belonginexecutivesessionitbelongedouthereintheopen.SoIthinkthatswhatImtryingto do now is just put out some issues that to me are relevant issues that I believe should go in the open.AndIthinktheothercommissionersherewoulddothesame.Andtheideabehindthatis that when you give your closing statements next, your closing argument, you can at least be knowingthatyoureaddressingthekindofthingsthatarerunningaroundinourmindsatthis point. Im always pulling for, trying to pull out of the detail and trying to come back to the structureofwhatweredoing.Itseemslikemaybethis,soletmejustsummarizewhatIseeas whats going on and what were doing is that Mr. Krueger and Mr. Ibbetson have sort of indicated that Mr. Ibbetson followed a very reasonable path to get where he is now. He purchased the land, hes got a valid deed for it. He knew that there were graves on the property, he contacted what he believed to be appropriate authorities about that and nobody told him that you may not build your house. He got a building permit for the house. He built his house and EXHIBIT B 52 now hes asking for a special permit so that without any extra building he can just allow some other people to come into his house and operate as a bed and breakfast. So, thats what I see from that side. And, from the intervenors side I see maybe a couple of directions. From the opening remarks Mr. Matsukawa indicated that there was some question aside from all the burials about whether this is a proper bed and breakfast application. In that he thought that the purpose of the building was for bed and breakfast rather than being a private home that was being turned into a bed and breakfast. Along with that came a thrust of all the testimony weve gotten which sort of has, from Mr. Kaiawe and all has been that maybe the whole sequence of events leading to now has been faulty. That the house should not have been built and that certain go aheads that came forward you know should not have been there and that if we go ahead and go farther in this and say okay now you can do a bed and breakfast what were doing is really compounding something thats not quite right. And the Planning Director is telling us that all that things that go with the covenants are really not our purview to be in the land, a land judicial body to the decide that the covenants preclude this and why that and all. But we should look at thefaceoftheapplicationinfrontofusandwhatourrulesareandactonthat.Asfarasthe whole chain of events it certainly came to my mind right away why isnt the Hawaii Conference Foundation here and it seems like in Mr. Kaiawes written statement it is indicating that Mr. Matsukawa was a Director of that foundation at least in 1991 in his letter to him so, if that is a real key element about why Mr. Kaiawes great grandmother deeded it away for use as a cemetery and now the Hawaii Conference Foundation has sold it to Mr. Ibbetson without any such restriction. I mean that feels like if you want to really follow through on that case that would seem to be an integral part. And then on top of all that Mr. Haalilios commentary to begin seemed to be based, I mean shes representing the public and not part of the contested case but to me the sense of her testimony was that if whats there now becomes a bed and breakfast its not really okay, that particular change is not really okay to the descendants of those who are in the cemetery. Maybe because its disrespectful, maybe because its more trafficking and what should be a (inaudible) thing. But, as far as I can see the intervenors in the contested case have really not tried to make anything of that at all so in some sense we have the publics interest here which has not been brought in as a part of the contested case. So, those are all issues that are running through my head and Id like to try to crystallize them one way or the other. And right now Id like to just pass on to the other Planning Commissioners to go from there and see whatever is on their minds. ALAMEDA:Thank you Commissioner Graham. Id like to first make sure that we check with the Department to closure. Is your case closed? LEITHEAD-TODD:Yes. ALAMEDA:Okay, thank you, for the record. Fellow Commissioners? Commissioner Watanabe? WATANABE:Generally, I would defer to the wisdom of the Planning Director. I think theres great thought being given to most of the decisions and I think hes right in-. ALAMEDA:Excuse me the mikes? EXHIBIT B 53 WATANABE:Its on yeah? ALAMEDA:Testing. WATANABE:Yeah its on. Like I said generally I would defer to the Planning Directors recommendations. I think hes right in that you know we cant do anything about determining there are really restrictions on the deed although in my mind there should be or it was intended to be. I think whereImhaving a real hard time with this is-. I want to be consistent throughout and so you know-. But these are really marked graves and clearly you know, in my mind clearly it was intended that it would remain a gravesite and etc. And so Im not sure that adding or having 4 to 12 people a week celebrating right above my grandmothers grave is acceptable or not you know. Im really, Im not settled with that and on the other hand if there were inadvertent finds you know I-, Im not sure that I would stop any given projects. If anybody could give me guidance on that Id be-, thats what Im looking for. ALAMEDA:Commissioner Watanabe that question was directed to? WATANABE:I think more so the Director than anyone else. You know I guess what Im sayingisItendtoagreewithmostofwhatyousaid.Itjustdoesntfeelfullyrightthough.If you know what I mean. Im really not comfortable with you know, more people-. ALAMEDA:Director would you care to respond? YUEN:There, this is a difficult question because there are a lot of cultural attitudes bound up with how one, what one considers proper respect for a cemetery area. We, the owner does have the right and did build a home, a single-family dwelling on the property quite close to the graves and from all that we have that was not a violation as far as the State Historic Preservation Division is concerned. Theres no other kind of law that tells you what is a proper right or distance from a graveyard. So, that being the case its my judgement that having the home then used for bed and breakfast is not markedly different than the ordinary single-family use of a home. Thats underlying a lot of our recommendations in favor of bed and breakfast. That its just not that different that the level of activity is typically comparable to the range of activity in a family. You know it may be more than there is in a small family less than there is in a large family. So for that reason we typically have been recommending approval of a bed and breakfast and without a lot of additional special conditions. And that still remains our opinion on this. If weve-. This is a question on which theres not say a set rule as to how one should decide this and it does come down to there are these issues of what is culturally, what is really culturally appropriate. But you know in the, I go back to that the landowner can legally build and the bed and breakfast just adds this additional level of activity that is not markedly greater than that of a-, associated with a home. WATANABE:Okay, I guess what I was kind of pointing out was that you know, yeah Im. Whether we agree with whether the transfer should have occurred or not, you know the entitlements are there the house is built and really whether you grant the bed and breakfast or not does not diminish his current entitlements to any extent. Not in my mind anyway cause you would still be able to use the home as a single-family home. And to some degree you answered EXHIBIT B 54 my question that theres no real rule. I guess where Im really having the real issue with this you know whether its appropriate to have that type of activity given that close proximity to a grave or graves. Thats what Im struggling with. ALAMEDA:Commissioner Siracusa? SIRACUSA:Im having trouble with the same thing. Basically I feel that, the house is already built. Even though I feel, it seems to me that a lot of the conditions that preceded the building of the house were not exactly what we could call pono like leaving out certain information in your application, that sort of thing. But, its built its there but I dont feel comfortable taking it one step further and it has nothing to do with degree or amount of activity but a fact that its a commercial activity and that tends to cheapen and, something that should be sacred ground. And, I dont believe that sacredness is, should be for sale. So, my feeling is that I would feel a lot more comfortable just saying okay well were not going to make you tear down thehousebutIwouldntfeelcomfortablesupportingtheapplication. ALAMEDA:CommissionerGaldones? GALDONES:ThankyouMr.Chair.Asthepartiescanseethecommissionersare addressing this with some difficulty for obvious reasons and for myself also Im struggling with this. Because a sacred ground is a sacred ground, a deed is a deed. However, as a commissioner I need to put my emotions aside and deal with the rules that are before me in making a decision. I dont know if this question is a fair question but I would like to ask Mr. Matsukawa, this action that is being brought before the Planning Commission is this just to stop the cancer or the cancer still has to be operated and taken out? Meaning that, if we commissioners favor the intervenor and deny the application for a bed and breakfast the house being there based on the testimony given by your client, the house being there still does not make it right. Does the house still have to be removed? And like I said I dont know if its a fair question that Im asking. But if you would be able to respond I would appreciate it. MATSUKAWA:Sure. ALAMEDA:Mr. Matsukawa? MATSUKAWA:I had the same discussion with Mr. Kaiawe several months ago because I told him at some point in time this question will be asked. Essentially our answer is if Mr. Kaiawe did not appear before the commission on this specific application which is directed to the commercial use of the structure I guess the law would deem that he waived any rights or his family would waive any rights. So, its almost mandatory for him to step forward now. If in fact the commission were to deny the application what happens to the dwelling, its used, if there are any ramifications with the conference seller thats something that lies outside the commissions jurisdiction or purview and well just have to address them as best as we can outside this arena. GALDONES:Thank you. With that statement then I would have to reiterate that my decision will have to be governed by the rules that the Planning Commission has to deal with. EXHIBIT B 55 And Id like to have the intervenor understand that and I sympathize like I said with the sacred ground that you are talking about or dealing with. ALAMEDA:Commissioner Graham any other thoughts or comments? GRAHAM:I very much carry a feeling similar to Mr. Watanabe, Commissioner Watanabe but I want to be consistent. So you know it does seem to me from what weve heard today that Mr. Ibbetson is taking care of the graves in a reasonable way of keeping the heavy vegetation down but not messing with them and all. And he has a certain level of proximity. So it feels to me that if we were going to deny this from lets say a respect and sacredness aspect that maybe that should be a precedent for ourselves. That if there is an active small cemetery somewhere were not going to let people build any commercial buildings near it. And that feels to me thats not ground weve really tread on before so Im a little reluctant when we already have a gentleman here who from all Ive heard today is respectful of them. To set a precedent forgravessayingyouknowhecannotuptheactivitylevelthissmallamount.So,thatsmy concern. ALAMEDA:As far as myself and then we can go to Mr. Watanabe. I of course theres mixed thoughts you know like I mentioned earlier. And, for me it kind of comes down to I think I read it somewhere I dont want to be part of making an error on an error. You know and compounding it. So Im kind of leaning towards just feeling uncomfortable with the whole application in general but thats my thoughts right now. Of course you know were hearing each other cause we want to make a real good decision yeah so I appreciate your guys feedback. Commissioner Watanabe? WATANABE:I was wondering if it would be appropriate and correct me if Im wrong to continue this because Im not sure that you know I can wrestle with these issues sufficiently in my own mind, in one short period of time. And like I said whatever-, Id like to think that whatever decision I make is supported by something that I would support in the future for any future projects. And thats where Im kind of struggling you know. ALAMEDA:Commissioner Watanabe you bring up a good point there is a request on the table for a continuance to bring specifically Keola Lindsey as a party? As a witness? TORIGOE:As a witness. ALAMEDA:How would you guys like to proceed on that commissioners? SIRACUSA:I would be willing to do that if we also included that person from the church, I forget his name. KAIAWE:Jon Derby? SIRACUSA:Yeah (inaudible). KAIAWE:Jon Derby. EXHIBIT B 56 ALAMEDA:Commissioners? Commissioner Graham? GRAHAM:Should we do the continuance if were going to do one before we have the oral arguments from these folks Im not sure. I also feel like its quite likely with only 5 of us here we would have a split vote and not come to a solid decision so that it probably should come up again anyway. So, Im sort of asking for direction maybe from the Corporation Counsel as to whether we should hear any final argument based on what theyve heard from us or whether we should wait do a continuance now or at least vote on whether we want to do that now. ALAMEDA:Thanks Commissioner Graham. Counsel? TORIGOE:Thank you Mr. Chairman. Basically if youre going to be asking for other witnesses to be brought forward it makes no sense to close the hearing. So you know you may as well,ifthatsyourintention,youmayaswelljustaskforcontinuanceandaskthattheparties issue subpoenas for whatever witnesses you want to see brought forward. ALAMEDA:Anybody, any commissioner prepared to make a motion on that very nature? Commissioner Siracusa? SIRACUSA:Yes, Ill move that the public hearing on the application for a use permit docket number 05-015 be continued to the next Kona meeting for the purposes of hearing additional witnesses naming-. ALAMEDA:Could you state the names? SIRACUSA:I cant remember the names somebody fill in the gaps for me please. KRUEGER:Keola Lindsey and Jon Derby was the one you had indicated. SIRACUSA:Thank you . ALAMEDA:Thank you. Is there a second? Oh excuse me Norman? HAYASHI:We wont be able to accommodate this matter on that particular time. So it would probably would have to be in the January meeting. SIRACUSA:I will then amend my motion to make it to the January meeting in Kona. ALAMEDA:Could I have a date for that meeting? HAYASHI:We have yet to set the schedule for next year. Were waiting for the Council schedule before we set our, we are able to set our schedule. ALAMEDA:Okay thats good. Thank you. EXHIBIT B 57 KRUEGER:Mr. Chairman before the commission considers the motion. Jon Derby is in Honolulu and I dont know who would be responsible for paying for his cost to attend if we subpoena him. I know Commissioner Siracusa is the one who wants him present. Keola Lindsey is here in Kona as well as Mary Anne Maigret at the State Historic Preservation Division so I just throw that out to make you aware of that. GALDONES:Mr. Chairman is there a second to the motion? ALAMEDA:Not yet, let me consult with Counsel. TORIGOE:I think the question was raised as to whether the parties might be amenable to having a telephone conference for Mr. Derby to testify? Were thinking about the possibility of having a telephone, having Mr. Derby testify by telephone is that something that the parties would be amenable to? KRUEGER:Thats fine with me. MATSUKAWA:Thats fine. TORIGOE:Department do you have position on? ALAMEDA:Norman. Excuse me. Norman? HAYASHI:Yes, as far as a telephone conference call I dont know whether thats possible or not. It all depends on the facility were meeting at. A facility like this probably will not be able to accommodate a conference call. GALDONES:Mr. Chair? ALAMEDA:Chair? MATSUKAWA:Mr. Chairman may I interrupt? Mr. Derby was named, as our witness so maybe Ill represent the intervenor would undertake the cost of transporting him if he were subpoenaed. And if I might, since there are 3 separate people who offered letters for State Historical, Margaret or Mary Anne Maigret, Keola Lindsey and McIldowny, maybe we should ask all 3 to be here. Thank you. GALDONES:Mr. Chair? ALAMEDA:Chair Galdones? GALDONES:A question of Counsel? What Im leaning with is instead of, we have heard Mr. Krueger mention Keola Lindsey but perhaps the parties may want to bring other witnesses and maybe Mr. Krueger may decide that he does not need Mr. Lindsey if its appropriate to have the motion amended to say that the parties be allowed to bring other EXHIBIT B 58 witnesses that they see fit to support their cause. Would that be appropriate? Or do we have to name individuals specifically? TORIGOE:Well at this point its just like another, its (inaudible) conference I guess. We need to discuss this with the parties and see where you want to go. Are the parties interested in bringing other witnesses and if so maybe we should set a date for naming them or something like that? MATSUKAWA:I would think this, I think the focus is on the State Historical witnesses so if we just limit it to those people, thats just my view. But if you want-. Like Jon Derby is not the State Historical but if Commission Siracusa wants him I have no objection to that. But I think it should stay focused otherwise well just have another hearing as opposed to a continuation on a focused subject for a re-hear. Thats just my opinion. KRUEGER:IagreewithMr.MatsukawahoweverIbelieveweshouldnamespecific individuals. I know at least as far as the State Historic Preservation division is concerned that we will need a subpoena from this commission for them to attend. I say that because I spoke with Melanie Chinen who is the supervisor of that department on Tuesday and was led to believe that Keola Lindsey would be allowed. And after several phone calls between Tuesday and yesterday, the last being at 5:30 last night, Ms. Chinen told me oh Im sorry hes not going to attend and I said when were you going to tell me that. So, and I did tell her if she had concerns about that that I would ask the commission to issue a subpoena and she put that off like I said and so I finally got a hold of her at 5:30 last night. So I think we do need a subpoena for them to attend. GALDONES:Mr. Chair? ALAMEDA:Sure, Mr. Galdones? GALDONES:The purpose for my statement for the parties, counsels, is that I dont want as a commissioner to dictate how to tell you to present your case. You understand the concerns raised by the commissioners and so you will have to work around the concerns. And I dont want to tell you to bring John Doe when John Doe is not going to help the cause at all. And thats the reason for my making the statement. And yes I agree with Mr. Matsukawa, Im not interested in another long drawn out hearing. I just want to get to the point. I want to be comfortable and I guess the rest of the commissioners want to feel the same way too. That theyre comfortable that they have the information they need to proceed forward in making a decision. Because right now theres a lot of, Chairman had mentioned a lot of voices going through their head right now. ALAMEDA:In addition I would like to suggest-. I know you-. On the table are 3 of the folks from the Historical Society. That would-, I have a concern about that being that might be the whole staff. I think 1 person would be sufficient. Commissioners? Commissioner Siracusa? SIRACUSA:Well I would be willing to accept Commissioner Galdones friendly amendment that we dont state any specific names but just ask the appellant and the intervenor to EXHIBIT B 59 bring any witnesses who they feel can provide relevant information pertinent to the concerns that we have stated. TORIGOE:Well. ALAMEDA:Counsel? TORIGOE:Yeah I just, yeah I just want to-. Maybe we should just say though what the pertinent concerns are. It sounds like at least one from SHPD. SIRACUSA:I thought we did when we just went around the table and talked about what we you know our concerns were. TORIGOE:Okay, so-. SIRACUSA:That is on the record. TORIGOE:Are the parties, are the parties comfortable with that? Do you feel that the commissionershaveexpressedtheirconcernsandtheirissuesatthispointsothatyouhavean idea of what witnesses would be helpful to bring to deal with those? ALAMEDA:Mr. Krueger? KRUEGER:Yes I know, I know who I would like to have present to address the concerns or issues that you had indicated. However as I mentioned previously I would like to ask the commission to issue subpoenas for certain individuals to be sure that we have them here at the next meeting. So with that understanding Id be happy to address that to the commission or to someone at a later point in time for the issuance of the subpoena. TORIGOE:Yeah. And I think too, I would encourage the Counsel to speak with each other and see if you can come to some, you know agreement as to which witnesses are most helpful to call and not duplicate. ALAMEDA:Okay. Any other thoughts before we move to a second on the motion? Commissioner Graham? GRAHAM:Do you need to take some affirmative action on Mr. Kruegers request about subpoena or can that be done by staff or whatever? TORIGOE:Thatll be done-. MATSUKAWA:Theres a procedure. TORIGOE:Yeah theres a procedure for that. The parties can request subpoenas from the commission. EXHIBIT B 60 ALAMEDA:Okay is there a-? Commissioner Watanabe? WATANABE:Ill second. ALAMEDA:Second. Okay would you like to restate the? Jeff before you do a call could you restate the motion? DARROW:The motion is that this application or this contested case hearing be continued until our next, until our January Kona meeting to allow the subpoena of witnesses that will be able to address the concerns of the commission. ALAMEDA:Commissioners? Commissioner Graham? GRAHAM:Can I-? I just want to be clear. With only 5 of us here today I presume thatatournextmeetingtherearegoingtobedifferentpeopletheresoIguessifwehavea transcript available the additional commission members can step right in and act as if they were here today is that correct? ALAMEDA:Staff is that correct? DARROW:Yes. HAYASHI:I just spoke with Lynette and she probably can get the transcript within 2 or 3 weeks. So that should be made available to the commission, the other commission members, the commission in good time. GRAHAM:Thank you. TORIGOE:And also. Yeah I just want to check so, thats basically the procedure. The parties in agreement that it would be acceptable procedure if a transcript is available and all of the-. If there are other commissioners that are here that were not here today for the whole hearing would it be acceptable if these other commissioners were able to read the transcript and basically master the transcript and the exhibits and then proceed to make a decision on that basis? ALAMEDA:Mr. Krueger? MATSUKAWA:I have no objection. I just have a technical question. For those who are not present do we have to make a duplicate set, I mean another set of our exhibits for those who are not present? HAYASHI:Staff will make the materials available for the other commissioners. MATSUKAWA:Okay, I have no objection. ALAMEDA:Mr. Krueger? EXHIBIT B 61 KRUEGER:I have no objection. ALAMEDA:Thank you. Staff? DARROW:Thank you Mr. Chairman. Commissioner Siracusa? SIRACUSA:Aye. DARROW:Commissioner Watanabe? WATANABE:Aye. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:CommissionerGaldones? GALDONES:Aye. DARROW:AndMr.Chairman? ALAMEDA:Aye. DARROW:The motion passes 5 to 0. ALAMEDA:This meeting is-, well continue in January. Thank you so much for all your time. KRUEGER:Thank you very much. This discussion ended at 6:15 p.m. Respectfully submitted, Lynette Marushige, West Hawaii Secretary EXHIBIT B 62