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HomeMy WebLinkAbout2005-12-02 TVURICH PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT DECEMBER 2, 2005 A regularly advertised meeting on the application of JOHN AND JEANNE VURICH (SPP 04- 017)was called to order at 10:45 a.m. in the County Building, Councilroom - Room 201, 25 Aupuni Street, Hilo, Hawaii, with Second Vice-Chairman Kimo Alameda presiding. PRESENT:C. Kimo AlamedaABSENT & EXCUSED: Fred Galdones Hannah SpringerBill Graham Jeffrey McCallAndrew Iwashita Allen Salavea Rene€ Siracusa Rodney Watanabe Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director NormanHayashi,PlanningProgramManager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately 12 people from the public in attendance. APPLICANTS: JOHN AND JEANNE VURICH (SPP 04-017) Discussion and action on the Hearing Officer€s report on a Special Permit to allow the establishment of a self-storage facility with perimeter chain link fencing and landscaping on one acre of land situated in the State Land Use Agricultural District. The property is located at the th northwestern corner of Kaloli Drive and 14 Avenue, and adjacent to the existing JJŒs Self Storage facility, Hawaiian Paradise Park Subdivision, Keaau, Puna, Hawaii, TMK: 1-5-46:120. ALAMEDA:What we have before us is a discussion. We have John and Jeanne Vurich (SPP 04-017). This is a discussion and action on the Hearing Officer€s report on a Special Permit to allow the establishment of a self-storage facility with perimeter chain link fencing and landscaping on one acre of land situated in the State Land Use Agricultural District. The th property is located at the northwestern corner of Kaloli Drive and 14 Avenue. Staff? HAYASHI:Thank you, Mr. Chair, Members of the Commission. I€ll just give you a briefchronologyastothisparticularapplication.Asyourecall,thehearingonthisapplication was first heard on April 1, 2005. And at that time there was a request by a James Larry SchneiderandaSarahHarlanforapetitiontobecomeapartyinthisproceeding.Petitionswere granted by the Planning Commission. However, on August 12, 2005 Mr. Schneider withdrew hisrequesttobeapartyinasmuchashewasintheprocessofsellinghisproperty.The Commission also voted to outsource the hearing to a hearings officer; and Mr. Thomas Yeh was selectedasthehearingsofficerforthePlanningCommission.Mr.Yehconductedahearingon August 24, 2005 at which time all of the parties were represented. That includes the applicant, 1EXHIBIT B Ms. Harlan was represented by her representative, Mr. William Eger or Bill Eger, I€m sorry, and the Planning Director was also represented by legal counsel. th The hearings officer has since submitted his report, and that was dated on September 26. He th also submitted a supplement to his report dated September 28. And October 13, 2005 Bill Eger did submit the Intervenor€s Exception to the Hearing Officer€s Report. The Commissioners all received copies of these documents. Are there any questions? ALAMEDA:Commissioners, any questions for our staff? SIRACUSA:Yes. ALAMEDA:Commissioner Siracusa. SIRACUSA:Thank you. I thought that we were also going to get a copy of the County€s Exceptions to the Hearing Officer€s Findings of Fact and Conclusions of Law. LEITHEAD-TODD:County has no exceptions to the Hearing Officer€s recommendations and supports adoption of it. SIRACUSA:Okay, thank you. ALAMEDA:Mr.Hayashi? HAYASHI:Yes.Mr.Chairman,before,Ishouldhaveaskedthisatfirst.Iwasthe County€s witness on this particular petition when the hearing was conducted. And I think at this time, I think it€s kind of late, but if we could ask the parties if they had any objections to my giving you the background leading up today€s meeting. ALAMEDA:Thank you, Mr. Hayashi, for that. Any objections to Mr. Hayashi? LEITHEAD-TODD:No objection. MR. VURICH:No objection. EGER:No objection. ALAMEDA:Thank you. For the record, then. HAYASHI:Thank you. ALAMEDA:Okay. Just for the record, I wanted to just make note, all of the Commissioners, did you get a chance to read all of the, for example, the hearing officer€s report, the exceptions -? COMMISSIONERS:Yes. ALAMEDA:Okay. 2EXHIBIT B SIRACUSA:Excuse me, Mr. Chairman. ALAMEDA:Commissioner Siracusa. SIRACUSA:Yeah. All those photographs that we received, they were all in black and white and very unclear; and I know a lot of times we have colored photographs that are passed around to us for additional clarity. And I was wondering if there were any of those available today. HAYASHI:We will circulate them to the Commission. ALAMEDA:Okay, could you please circulate them, starting with Commissioner McCall. Any other questions for staff? Okay, I want to ask the parties to come forward. Could I swear all of you in at the same time. Willyoupleaseraiseyourrighthand.Doyouswearoraffirmtotellthetruthnowbeforethe Hawaii County Planning Commission? PARTIES:I do. ALAMEDA:Okay. I want to start with the applicant. If you could go ahead and state your name and address for the record, and you may proceed. MR. VURICH:Yeah, we€re John and Jeanne Vurich and our address is 13-1152 Kahukai Street in Pahoa. ALAMEDA:I wanted to ask Mr. Torigoe to explain the process for our new Commissioners as well as the public. Mr. Torigoe? TORIGOE:Thank you, Mr. Chairman. Basically at this point we€re at Rule 4-33 of your Planning Commission rules which states that after there have been exceptions filed, then the Commission may render its decision forthwith upon the record, or if oral argument has been allowed after oral argument, or it may reopen the docket and take further evidence, or may make other such disposition that is necessary. So, basically, at this point the contested case hearing has been concluded. You have the record before you. You can make a decision without any further proceeding, you can allow for oral argument. I don€t know at this point if any of the parties have requested oral argument in writing. HAYASHI:Yes. Mr. Eger had submitted a request to give an oral argument. TORIGOE:Okay. So then the Commission needs to decide whether to allow oral argument or not. And then you can have oral argument and then make your decision after that. Or if you feel that there€s a need for more evidence you can reopen the hearing and take in more evidence as well. ALAMEDA:I want to ask my fellow Commissioners, are there any objections for Mr. Bill Eger providing oral argument? Hearing none, then we€ll allow that today. 3EXHIBIT B WATANABE:Mr. Chairman? ALAMEDA:Commissioner Watanabe? WATANABE:I have a procedural question. Does it have to be an oral argument or could it be just like part of public testimony? I take it that if you€re going through oral argument then we€re going round robin, each party will have an opportunity to rebut. And I€m wondering if, you know, the same thing could be accomplished in public testimony. TORIGOE:Well, I think since there has been a formal request for an oral argument, you ought to, you know, follow that procedure. But you can also ask other questions. And, in fact, as part of the argument you get to ask questions. ALAMEDA:Okay.Sowe€lldothat.We€llstartwiththeapplicant.Youcangoahead and make your oral argument, and then we can ask questions at that time. And then we can move on to the intervenor and see if there are any questions. They can make oral argument as well. And then we can move on to the Department, kind of in that order. EGER:Mr. Chairman, the intervenor, I€m the intervenor. I€m the intervenor. ALAMEDA:Okay. Forgive me. I need to turn to my Corp. Counsel here for the procedures on this. TORIGOE:Generally speaking, under the rules, the applicant shall open and close when there€s a proceeding. Other parties shall be heard in such order as the presiding officer directs. So normally it€s, you know, the procedure under the rules is to allow the applicant to kind of set forth their argument or set the stage for that, and then the intervenor can come and rebut that and present your argument as well. And then the Planning Director makes his position known. And then again under the rules normally the Applicant closes. But there is discretion by the presiding officer to amend that, and also the parties can agree by stipulation to change any of these procedures. ALAMEDA:So let me ask the applicant first then if you want to go ahead and summarize your application, and then we€ll go to the intervenor. EGER:Okay, I€ll be very -. I€ve got a point of order. ALAMEDA:Go ahead. Microphone, use the microphone, please. TORIGOE:Mr. Eger, will you please the microphone, thank you. . ALAMEDA:Thank you. EGER:I€m sorry, I thought this was picking up. I can hear it was not. My only point of order was that I understood that Mr. Hayashi was going to give us a summary first; and I don€t know where Mr. Torigoe gets his authority for continued appearance by the applicant because there was no request for the oral argument today; and that€s what your agenda item 4EXHIBIT B requests. I don€t know what authority he would call for that. But I do think it€s appropriate that Mr. Hayashi gives you the background on it, and I thought that was going to be what he offered; and it sounds, makes good sense to me. WATANABE:Actually he already did. ALAMEDA:Commissioner Watanabe? WATANABE:I€m sorry. But actually Mr. Hayashi already provided the background report. He had already done that. And his only point was that he probably should have asked if there were any objections because he was a witness subsequent to already providing the background report. So that actually has been provided. EGER:Well, Mr. Watanabe, not to disagree with you but all I thought I heard wasasummaryoftheproceduresuptonowbutnorealdiscussionabouttheissuesbeforethe Commission. And if I€m incorrect in that, then I stand -. ALAMEDA:Mr. Hayashi? HAYASHI:Yeah, basically, all I did was, and all I was proposing to do was just give you a summary as to what had happened to date as far as procedurally. All of you had received your findings of fact, proposed findings from the hearings officer, and basically all of the information is in there. So I was, I did not intend to go into the specifics of the hearings officers report, nor was I going to outline what the issues were. All of these documents have been provided to the Planning Commission. Unless the Planning Commission wants me to go into that -. ALAMEDA:Just to set the record straight, I wanted to just ask the fellow Commissioners if you have any objections to allowing oral argument, not just with the intervenor but with the applicant and the department as well. Any objections to that? Commissioner McCall? MCCALL:No objection. As far as the procedure, as I understand it, and how it has occurred before is if any of the, if the intervenor or anybody asks for oral argument, they€re asking for oral arguments from all the parties, so if it is opened up, then all the parties get to give their oral argument. And I have no objection. ALAMEDA:Thank you, Commissioner McCall. Mr. Torigoe? TORIGOE:Yeah, I think Commissioner McCall has basically stated what the practice always has been and for matters of due process really has to be. But for purposes of procedural purity I think, as the Chairperson has suggested, it€s a good idea to simply ask because the Commission has the authority to direct oral argument on its own motion. And, therefore, if at this point in time the Commission would like to make clear on the record that all parties will be allowed oral argument then, as the Commissioner has said, if there is no objection to that then, you know, you can do that. 5EXHIBIT B ALAMEDA:And hearing no objection to that, we€ll go ahead and do that, for the record. Now can we proceed with oral argument with the applicant first. Go ahead. MR. VURICH:Okay. As far as oral arguments, I€ll at this point, just make a brief opening statement and we€ll have to let it proceed from there, I guess, to respond to. It sounds like the hearings, we€ll do it. ALAMEDA:Okay. MR. VURICH:Okay, our brief statement is last year we requested permission to expand our business. We€ve been in business over five years and received many compliments and no complaints until this application of last year. The preliminary County report has recommended approval of our expansion, the hearings officer has recommend approval of our expansion. We have 21 conditions at this time imposed upon us. And we agree to these conditions and will go forwardifwereceiveyourapproval.AndIthinkthat€s,Idon€tknowwhatelsetosayreally. We€ve been working on this for a long time, we€ve gone through what we consider a fair hearing; and whatever else we have to do we€ll proceed. Thank you. ALAMEDA:Okay, thank you. Any questions? Intervenor, any feedback or response? EGER:I would like to make one comment, Mr. Chairman, because this is extremely important to my point and presentation. I have no personal objections to the generic use of storage sheds or their construction and use in appropriate places. I also have no objections to Mr. and Mrs. Vurich. We€ve been acquainted lightly through the years. And has, if you got a chance to read the testimony in the contested case hearing there were places where I found it possible to agree with Mr. Vurich; and one of which was that Mr. Vurich€s application was faulty; and being faulty it is a matter of consequence to the County because of a failure by the Planning Department to live up to its own rules. And that is the basis for my exceptions, because there are errors throughout. And I am here today to try to get some kind of assurance from the Planning Commissioners that they are aware of those errors and how they may impact on your problems with conditions. My suggestion gently is that the 21 conditions, or 50 conditions, or 2 are meaningless unless they are going to be enforced. Mr. Vurich is under notice from the Planning Department that he is in violation of one of the, or several perhaps of the 1998 conditions; and that would be relative to the landscaping not in th existence on the property. He was given until November 29 to completely correct that condition failure. However, as of yesterday afternoon, thereis no change; and I was told that the Planning Department has only received a note that he would change one plant bougainvillea for further jasmine; and I suggest to you that that has nothing to do with the greater problem. So if this Commission is interested in its credibility in our community and its credibility with the setting of these conditions on small parcels, small cases like this one, or large, then I submit that this is a crucial precedentthat needs examination. MR. VURICH:Can I respond to that please, I mean, he just said some things that I don€t believearecorrect;andI€dliketoclarifythem.Wedidget-. ALAMEDA:Letmejustcheckontheprocedures.IwanttomakesureI€mfollowing protocol. 6EXHIBIT B TORIGOE:Yeah, is Mr. Eger done with his argument at this point or not? EGER:That was our response to Mr. Vurich€s. I have not even started my argument, Mr. Torigoe. TORIGOE:Okay. At any rate, you need clarify that Mr. Vurich could finish his oral argument, and then Mr. Eger should take over the floor and finish his oral argument, and then the Planning Director, and then the applicant will have chance to respond after that. And at some point the Chairperson can allow for questions from the Commission. ALAMEDA:Can we ask the applicant just to hold that question until the intervenor has finished his oral argument or -? TORIGOE:Hastheapplicantfinishedwithoralargument? MR.VURICH:No,Ihaven€t. ALAMEDA:Oh,youhaven€t,okay. MR.VURICH:Ihaven€tevenstartedthat.Ijustwantedtorespondtohisstatements,and it won€t be long. ALAMEDA:Okay, could I ask the applicant to go ahead and finish their oral argument. Would you go ahead and finish your argument. MR. VURICH:Okay, great, thank you. We did receive a notice from the County saying that we were in default of our landscaping plan. We had previously contacted the County letting them know that some of our plants did not make it. And just to really quickly, our original landscaping plan was to cover our fencing to hide the place, basically. We planted jasmine on two sides. It is, I€ve got some pictures if you would like to see what it looks like as of six months or so ago and it€s getting, it€s almost completely there. It€s hidden. The other two sides, we were trying to be a nice neighbor. I mean these two sides were one piece of property that we now own to hopefully expand on; and the other is a vacant lot. We put, at the time we didn€t know that other property, so we put bougainvillea to try to be a nice neighbor. We tried to make it better than just covering the fence. We wanted something pretty. The bougainvillea did not do very well. We received a letter saying an inspector went and inspected and didn€t find any bougainvillea. We, and they also requested that we revise our landscaping plan which we had the architect do, and plant our plants after all this was done; and we did plant. And they are planted and fortunately we put soccer hoses down so they didn€t die during this nice drought period. So the new plants are all growing nicely. And he went back out and reinspected and did find the bougainvillea. We did do our plan as we had, we were told to do to begin with. The bougainvillea did not do as well. There€s only a handful of them left. We about a year ago had let the County know, and one of our contesteders, Larry Schneider, we let him know the bougainvillea didn€t grow very well and we wanted to plant the jasmine in place to cover those existing fences. And against, everything is used against you, I guess. We were 7EXHIBIT B trying to be good neighbors with the bougainvillea. That costs us a lot more than just buying jasmine and putting them down. The other issue is how did the jasmine do? Okay, this is about six months ago. Here is a photograph trying to show our existing entrance, and you€re welcome to pass this around if you want, what the jasmine has done. As you see, you cannot even see a fence in here anywhere. You can see a little bit at the top of a building and maybe the top of a fence if you look really carefully. The jasmine did its job. It covered our facility and made it not visible from Kaloli, the main street, and not visible in this other photograph showing from -, which is completely covered, and we feel it was a success. The neighbors had no idea, they figured they were weeds. The area in front of our property is the community association -. This is, I€m almost wrapped up here, is the community property, the community association property. We don€t have the right to landscape that. We can mow it. We tried that a couple of times and all it did was collect junk carsandlotsofgarbage.Sowedecidedlet€smakeitnatural,we€llletitgrowlikethisallthe way down that street. And that€s what it is now and that€s what this reflects. Okay, you€re welcome to see this closeup if you want to. But that€s our landscaping plan. We did get, again, the inspector went out and verbally called us back and told us that, yes, you€ve complied with the, he sees the plantings; and we€ve done everything we were told to do. So that€s the thing. Now if people had known up front that these so-called weeds are jasmine, that have little white flowers and do cover the fence because they grow up a fence, if they had known that, maybe this wouldn€t have all been so harsh on them. Then they looked like an unkempt area; and it€s a bunch of weeds. Well, they€re jasmine. We can plant some weeds if you want it to be. But we did it on purpose in our landscaping plan, and then we liked it. Thank you. ALAMEDA:Thank you for that. I wanted to ask our Corp. Counsel. I know that you€re showing us something I think that€s an exhibit of some sort. I wanted to follow up. Mr. Torigoe? TORIGOE:Yeah, that€s a good question. The applicant is holding up a panoramic photograph and I just wanted to see ƒ Is that an exhibit in the record? MR. VURICH:No, it is not. We were asked for colored photographs, and I was thinking for your own benefit. I mean, one more thing I want to say about exhibits and the photograph, we were told in a preliminary hearing by the hearing, in the preliminary hearing we were told that the existing facility was not to be used as anything in this contested case hearing. It turned out to be the only thing, it seems like; and that was the main thing, it was the landscaping. So we in the preliminary thing, we did not submit any photos of the facility because we didn€t want to have to be confusing what we were told not to do. As it turned out there€s not much in the record on the landscaping because, on our side, only for photographs on the other side which were taken to make us look the worst. And it happened that way, we take our lumps, we objected to it, and we€ll go from there. ALAMEDA:There is a procedure about accepting new evidence, so I wanted to -. Mr. Torigoe, how would we proceed with that? TORIGOE:Well, in couple ways you could do this. One is you could just ask if the parties would agree to allow the use of photographs or diagrams, that sort of thing, for purposes 8EXHIBIT B of oral argument. If the parties are agreeable to that, then that€s fine. If the parties would like to have, or see if they would like to stipulate to allowing any further, you know, visualaids for oral argument. I don€t know what the pleasures of the parties area. ALAMEDA:Mr. Eger. EGER:Mr. Torigoe, if I could address that point. My understanding -. SALAVEA:Mr. Eger, could you use the microphone, please. ALAMEDA:We want to remind you. EGER:I€m sorry, I beg your pardon. ALAMEDA:Noproblem. EGER:Mr.Torigoe,ifIcouldanswerthatquestion? ALAMEDA:Sure. EGER:It€smyunderstandingfromreadingyourrules,RuleNo.4,relativeto contested case hearing that what is before this body today are those issues that were raised in the exceptions. There were no exceptions, except for mine. And I am disappointed that we are not keeping with your own rules. But that€s one of the reasons I€m here, is that rule keeping seems to have brought us into a difficult situation. And in the congested case hearing I raised this point and suggested, and Mr. Vurich agreed, that he was being damaged by this. I can be more explicit about that but perhaps it€s not appropriate at this moment. We€re getting in trouble if we do not follow your rules. ALAMEDA:Mr. Torigoe, taking that into account, should we discount the evidence that was presented? TORIGOE:Well, so, I don€t know if Mr. Eger is at this point objecting to the use of consideration of that photograph that was held up. ALAMEDA:Mr. Eger? EGER:Mr. Torigoe, I have no objections to however many pictures he wants to bring in. The point is that until you have an opportunity to really think about those jasmine, in the picture that he has, just to give you a quick example, that jasmine is down into the area and it th covers a part of the stop sign coming onto Kaloli from 13Street.Ithasblockedtheentirearea there, and you can see it in that photograph. I don€t know what Mr. Vurich thinks landscaping means,butitdoesnotallowjustawillynillyplantingofthisplantandthatplant,andgee,after six years it didn€t work so maybe I€ll changea couple. That is not a landscaping plan by any like ofreasons.AndsinceyoupassedyourownruleSection19,ithasbecomeexplicitwhat landscaping should be about. So we have a definition of that word. ALAMEDA:Excuse me. Mr. Torigoe? 9EXHIBIT B TORIGOE:Well, Ms. Leithead-Todd has a position. Maybe you should get that. ALAMEDA:Okay. LEITHEAD-TODD:I was just going to say that the discussion seems to be centering on the existing landscaping plan for theexisting facility; and what we have in front of us is an application for expansion of the facility. And perhaps instead of arguing about whether the existing landscaping plan is compliant for the existing facility, we should limit our arguments to whether the proposal for expansion of the facility should be approved or denied. TORIGOE:Okay, just to limit our discussion to the photo, it sounds like Mr. Eger has no particular objection to the use of the photo. In fact, maybe Mr. Eger you have actually referred to it yourself and would like to use it yourself. EGER:I don€t need to use it, Mr. Torigoe, but I am suggesting to you that your rulesaretolimitthisdiscussiontotheexceptionstothecontestedcasehearingwhichiswhatis on your agenda. TORIGOE:Right. And I think the Chairperson will try to do that. So at this point it sounds like there€s no real objection to the use of the photo. We€ll just proceed on that basis, on the basis of it being used for purposes of oral argument. So, Mr. Chairman, if we can have the applicant finish the oral argument and then allow Mr. Eger to proceed after that. MR. VURICH:Okay. Another reason this was brought up is, Mr. Eger brought up the landscaping right up, his first statement. ALAMEDA:Okay. MR. VURICH:And I, as I mentioned at the contested case hearing, I felt it was a great disadvantage because we couldn€t provide our visual aids to show what the property looked like. And what we got were some photos that were crawling through the bushes to find a bad area or whatever. And we were, let, my very first discussion with Larry Schneider was we needed to do something about the back landscaping. Even though nobody could see it, including him, we needed to do something before anybody had a, you know, changed it somehow. And then we notified the County and we were told we were going to do, and we were told by the County to give us in writing what we were going to do, and we did that. And we got back this letter from the County stating that we are in violating of our landscaping. And we did everything, we went th right, and twice the time, not November 29, but a month earlier we sent the County the final letter, the inspector came out and called us and said everything is fine. I just asked Mr. Yuen if therewasanyotherthingwehadtodooristhereanythingtheCountyisgoingtoletusknow that it€s all okay now. Asfar asplanting plants and having them grow fast, we did the best we could. EGER:Mr.Chairman,Ithinktheapplicantneedstoberemindedthatheisunder oath. MR. VURICH:What did I -? 10EXHIBIT B ALAMEDA:Mr. Vurich, go ahead. Could you finish your argument. MR. VURICH:Yes, yes, I will. The inspector did come back out and told us everything was okay. The plants are planted. And we don€t know what else to say except that€s what the objection the County had with the sides, that we tried to be good guys and put bougainvillea, and now we have put in all of the jasmine. If fact, we double-planted it in case some of them didn€t make it. That€s it. ALAMEDA:Okay, thank you. Now I€m going to turn it over to our intervenor for your oral argument. Mr. Eger? Hold on. We have a question, Mr. Salavea? SALAVEA:Are we hearing evidence, this is just a clarification, are we hearing evidence on what is existing or on the application? Cause it€s going back and forth and I€m gettingconfusedifyou€retalkingaboutyourcurrentapplicationoryou€retalkingaboutyour current business, commercial business that€s going on. And I just want to know for my own purposes as a Commissioner that I€m supposed to be listening, well, receiving information based on the current application and then I€m going to base my, well, decision on that information and disregard all information relating to the current commercial business that€s going on. ALAMEDA:Thank you. SALAVEA:Does that make any sense? ALAMEDA:That makes a lot of sense, Commissioner Salavea. As noted by Ms. Leithead-Todd that if we stick to the application we might move this a lot faster. Thank you. SALAVEA:Thank you. SIRACUSA:Excuse me. ALAMEDA:Commissioner Siracusa? SIRACUSA:Yes. There was some discussion in the hearing transcript related to the point that there was going to be consolidation of the two parcels and the whole thing is going to be operated as one business. And you can€t, therefore, disregard one part of it because the whole thing is going to be a single cohesive unit eventually if this will, gets approved and the whole thing goes through. So I don€t see how we can disregard what happened in the previous permit because that€s going to end up being subsumed. ALAMEDA:Thank you, Commissioner Siracusa. Mr. Torigoe, you wanted to respond to that? TORIGOE:Yeah, I think that€s a good point; and you need to exercise some care in, you know, making sure you focus on the current application but there may be some aspects of the operation of the existing uses that are relevant to your consideration of the current application. So I wouldn€t want to say that you should just cut off everything that has to do with 11EXHIBIT B what€s going on now, because there may be some relevance since it is, the current application is basically an extension of what€s there now. SALAVEA:Thank you, Mr. Torigoe. Mr. Chairman, I€d just like for the Commissioners€ sake, for my sake,for the applicant and the intervenor to identify what particular part they€re talking about when they start tossing around, where we€re not as familiar with this area as you are, you live there. So some reference to, this is, I€m talking about the application property, I€m talking about the existing commercial business going on, some reference for us to discern between what evidence you€re giving so that we can, you know, put that in proper context. ALAMEDA:Point well taken, Commissioner Salavea. Thank you. Okay, we€re going to move on to our intervenor. Mr. Eger, oral argument? EGER:Yes. ALAMEDA:Proceed. EGER:Thankyou,Mr.Chairman.IperhapswasclumsybecauseIwasn€t meaning to bring up the issue of landscaping. I was meaning to bring up the violation of the condition, because as I tried to make clear that is the substance of my problem and the problem of our community. We have a very good stack of petitions that were submitted. The property is described over and over again as an eyesore. Now if we want to talk about landscaping, I have very little to say because there is none. It is weeds along the entire face of, against Kaloli. There is no landscaping whatsoever on the other, on the backside, nor on the side away from Kaloli, whereas the requirement is that there will be perimeter landscaping, that is around the entire area. Landscaping is also by its nature taken care of, pruned, kept away from danger. Because where th it is on the corner at 13 and Kaloli it is a site hazard for those vehicles coming out of 13th and turning, trying to turn into Kaloli one way or the other. You cannot see the traffic on Kaloli. Now those are clear matters that can be satisfied quickly. However, again and again, my issue before this Commission is that unless conditions are enforced that they do no good for the community, the Commission or the planning for this County. And I€ve heard some matters to that effect on your first hearing today. Conditions are set but there is no pattern for enforcement within the County. When this issue was raised about the landscaping to me early on by Mr. Schneider, I suggested that if he had a problem with the landscapingthathefileacomplaint.Thatisacomplaintwhichwasruledinviolationearlier. And when I inquired about that at the contested case hearing, if you had a chance to read that transcript,theysaid,well,wedonottestanyoftheseissuesonconditionsunlessthereisa complaint. Well, my suggestion to you, sir, is that people in general have no way of knowing whatthoseconditionsare.Thepublicdoesnotknowtheconditionsthatareplacedbythis Commission, by the Department of Planning on any of the, on the special use permits or on changeofzoning.Andtheyneedtobegivenmoreofachancetohavetheprotectionoftheir government when those conditions are placed. My suggestion to you relative to this concern and the way I want to bring it to your attention mostforcefully,acrossthestreet,acrossKaloli,thereisa20-acreparcelthatiszonedfor industrial. It is one of the few industrial zonings in East Hawaii. Now my suggestion is that 12EXHIBIT B when the Department of Planning was given the application in 1998 by Mr. Vurich that Ms.Goldstein who said, turned the application down, it came before this Commission and the Commission approved it. My suggestion is that that was perhaps an experiment that has failed because as ParadiseParkhasgrown it is becoming one of the nicer, in terms of financial investment in property and homes, neighborhoods in Puna. Puna in case you haven€t noticed is the fastest growing district in the State of Hawaii. Our fourth district of the state representative seat formerly stretched all the way from Pahoa to beyond Ocean View. It is now only lower Pahoa. It starts at Paradise Park. I give you that reference because that is a measure of the rate of growth. In ten years, that€s what happened. Paradise Park is one of the fastest growing districts. And you mustaskyourselves,please, if you would like to have a storage shed capability next door to your residence, because that€s what we face in Paradise Park, not a storage shed necessarily but any commercial application that wishes to come in and place its place next door in a residential community. My suggestion to you is that you don€t, and you particularly don€t, and you would pointquicklyacross the street and say to the Planning Departmentifyoufindaneedforthisthenplaceitwhereyouhaveputthezoningforthatuse. Whenyouchangetoaspecialusepermit,thentheburdenfallsontheCommissionorsomebody to enforce the conditions that might be laid upon it. And that€s not happening in our community, it€s not happening in our County. And my suggestion is that, when Mrs. Black was here earlier today she said people are losing faith in this Commission, the Department, I€m saying they€re losing faith in the process because it is not functioning. The County General Plan under which we presently work was written in, I believe 2002 it was first put out. Bobby Jean Leithead-Todd who€s down at this table was the committee for planning for the Council Chairman. In my opinion she did extremely good work in having hearings throughout the County for public input on the General Plan. The hearings generated 8 pages of names of testifiers, just their names and organizations, 8 pages. When the present Council this last February decided we had to have it now -. Our Planning Director is in the paper this morning saying that they couldn€t refer it back to this Commission because that would take a lot of time. It makes me wonder what was the hurry. Because what was left out was every word of that testimony that was given in every community in the State. And because of that and because of the requirements in State law for what shall be in the County General Plan, I€m submitting to you that that General Plan is faulty and conceivably extra legal, in other words, it€s not a valid document. Because the County Council that I€ve talked to had no awareness that those changes were not made before they passed it in February. Now if you can find a Council Member who knew better perhaps it would be worth talking to them. But the fact is that there are no changes in the document that you have before you today as your General Plan. There are no changes that were made as a result of that tons of public testimony. So when you have problems such as Mrs. Black was bringing to you this morning, I suggest to you that those problems are multiplied by the number of communities whose problems were not addressed in your plan. And the time that Mr. Yuen did not want to expend was time that would have been before this Commission to look at the changes that were brought to the government by the public in those hearings, two years of testimony that were discarded. To this date I don€t know where they are. ALAMEDA:Is that it? 13EXHIBIT B EGER:I€d like to pause for questions because I have another subject to go into. ALAMEDA:Questions? SIRACUSA:I havea question. ALAMEDA:Commissioner Siracusa. SIRACUSA:When the issue of passing the General Plan finally came up recently before the County Council,did you testify to this effect? EGER:Yes, I did. And I brought in this document. This is the document I had from day one which was from December 21, 2001 it was. I hope my markers indicate that it had some use. One of the real notices I got from the Council Members was when I opened it up and I showedthemthesecoloredmaps.BecausenotoneCouncilMemberhadseenthesecolored maps. And if you look at your copy, have you seen it? Do you have a General Plan with these colored maps on it? ALAMEDA:Yes EGER:That€s good to hear because without these colored maps, if you see the lack and white maps that were given to the Council or which were available to the public, you can€t tell what€s going on here. There€s no way to see what€s going on here. Now I€m submitting to you that there, you know, there€s something really wrong with the way that Council passed that General Plan without the advantage of this level of information. Without those colored documents, you don€t have it. Fortunately, this is the General Plan that was passed written in 2001 and passed last February. ALAMEDA:Mr. Eger, would you like to finish your oral argument at this time? EGER:The first part of my exceptions took up the question of the correctness of classification for land and soil types. ALAMEDA:Yeah, and we do have a copy of that. So I€m wondering if you could highlight, if you will, the exceptions. EGER:I€m going to go as briefly as I can, sir. Thank you very much. This is important for more than just this case. ALAMEDA:Well, let us stick to this case, now. EGER:Yes. ALAMEDA:Okay, thank you. EGER:Well, this case says that the Planning Director, although I€ve never found really where the Director said it, but in all the documents from the Planning Department and in the documents where the conditions are laid about the application that the land out there is called 14EXHIBIT B AAR, it€s aa and it€s designated as RLV. There is very little RLV land classification throughout Paradise Park. Those designations are placed in these maps. This is one-third of a quadrangle throughout the County of Hawaii. And those little classifications are placed in black in an overlay here. But what this Commission needs to know and what you€re not being told is when those classifications come down, they are from 1973, this document was never looked at by boots on the ground. This is an aerial survey in Paradise Park. There was never people that went out and examined whether these classifications made sense. And I can assure you that this discussion, the lava, this lava has almost, this is what the County Department says, this lava has almost no soil covering and is rough and broken. This is the description that you€ve been given about this property. SIRACUSA:Excuse me. EGER:This lava is bare vegetation except for mosses, lichens, ferns and a few smallohiatrees.I€mreadingfrommyexceptions. ALAMEDA:Excuseme,Mr.Eger,youhaveaquestion.I€msorry.Commissioner-? SIRACUSA:Justforclarification,areyoureferringtotheALISHsoilmaps? EGER:No.That€sthisone.Thesearefrom1963. SIRACUSA:Okay, what is the title of that big book that you€re talking -? EGER:This book is the Soil Survey of the Island of Hawaii, State of Hawaii.‚ SIRACUSA:Okay. EGER:It is being renewed by the Soil Conservation District. They€re presently -. SIRACUSA:Okay, I€m familiar with it. I just wanted to -. Because you didn€t say what the name was; and when you held it up a little bit it wasn€t facing me. I couldn€t see it. EGER:I€m sorry. I€m sorry. Thank you. SIRACUSA:All right. I just wanted to see what you were referring to. EGER:Thank you very much. The same is true with these soil types. Because over and over again when we see these things it says soil according to the surveys by the State is very poor. This is a map from that soil survey. They don€t have very poor. They have A, they€ve got A, B, C, D and E; but in the Big Island there are no A soils. This is still from 1963. It is also still from only an aerial survey. So when an applicant comes in for any purpose, certainly in Paradise Park, asking for a special use permit or asking for some change from Ag, and you€re being told that the lava is bare of vegetation except for mosses, lichens, ferns and a few small ohia trees, on this property the ohia are 30 to 40 feet tall. In other sections of this you€re told that there are no wildlife at risk. And yet since 2003 there has been a bird survey and they have found bird species which they thought had retreated, native Hawaiian birds they 15EXHIBIT B thought had retreated from these elevations and from this area only to the upper highlands. It just isn€t true. So -. ALAMEDA:Mr. Eger, I€m just looking, I want to make sure that we, the applicant in the back mentioned an 8 o€clock flight. I€m getting a little bit nervous cause you have 11 exceptions and I€m just wondering are you going to go through each exception like how you€re doing with Exception 1? Because if so, I€m going to have to ask you to speed it up. EGER:If Mr. Torigoe could answer a question it would help me a lot because I don€t know what these exceptions bring. Because I had requested for reason that Bobby Jean Leithead-Todd be recused from further action on this subject. And apparently that is not something that goes before the Commission or how does that work? Because here she sits. ALAMEDA:Mr. Torigoe, you care to respond? TORIGOE:Thank you. If there is a formal request basically, I guess you would, for a disqualificationorarecusalofcounsel,thenitissomethingthattheCommissionoughttodeal with at some point. But, you know, you need to have a proper basis stated for that. It€s rather strange because we€ve, I don€t know that we€ve ever seen this before and then last meeting in Kona we saw a request like this as well. So I don€t know exactly what form this request is in, at this point. ALAMEDA:Could I ask you, Mr. Torigoe, what constitutes a formal request? TORIGOE:Well, is there a writing request, has it been stated in writing somewhere or -? ALAMEDA:Staff, is there any formal request to recuse Ms. Leithead-Todd. EGER:Well, it€s my exception 5. HAYASHI:That€s in the exceptions that were filed by Mr. Eger. ALAMEDA:Making note of that exception Mr. Torigoe? TORIGOE:Well, I think what we should do is, I guess Mr. Eger at this point is raising that issue. You could, there€s some options. You could stop at this point and try and take it up quickly on the record. Let the parties state their positions regarding this and then you make a decision, the Commission makes a, actually, since it€s a non-dispositive kind of a motion then the presiding officer would have to make some kind of decision on that. EGER:Mr. Chairman? ALAMEDA:Go ahead. EGER:If this is in order, it€s possible that we could take a, or is possible that you can take break and hear that case that has a time problem because Mr. Torigoe seemed to indicate that needed to be done, there needs to be a consideration of this exception 5. 16EXHIBIT B ALAMEDA:Every applicant right now there€s going to be time crunch. So we have a time problem for every application before us. So I€m trying to, my role is to make sure that we proceed in a judicially and expeditious manner. So -. EGER:I€m willing to be perfectly cooperative with that goal. I€ve been a commissioners or board member here. But I brought a picture since you€ve taken one from him. This shows that corner where you can€t see around. It shows the, from Kaloli -. ALAMEDA:Mr. Eger -. EGER:Since we€ve got one coming in, here€s another one. ALAMEDA:Let me backtrack a little bit. I don€t want to go too ahead of ourselves. In regardtotherequestthatyoubroughtforwardaboutMs.Leithead-Todd,Iwantedtoask,again, Mr. Torigoe, how should we proceed with that? TORIGOE:Well, I think you need to deal with it in some fashion. I think you can probably do it, you can attempt to do it fairly quickly at this point since Mr. Eger is going through his exceptions and this comes up as one of the exceptions. Mr. Eger could take a break from his oral argument and allow the parties to state their positions regarding the request for recusal or disqualifications; and then, Mr. Chairman, you make a decision on that. Okay. EGER:I would happily agree to that. ALAMEDA:Mr. Eger, can we look at that issue at this time? EGER:Yes. ALAMEDA:Could I ask the parties your thoughts on that? Could I ask the applicant first and then the Department? MR. VURICH:Stating the, I€m sorry, stating the use -. ALAMEDA:The recusal of Ms. Leithead-Todd. MR. VURICH:Oh, I don€t think that€s fair. I think she was very, she stated as best as I can tell the situation and I don€t think that€s fair for -. ALAMEDA:Thank you. The Department or -? EGER:Mr. Chairman, I misspoke, it€s in 5 and 7, but the request for recusal is in 7. ALAMEDA:Okay, so noted. TORIGOE:Actually Mr. Eger should be given a chance to state the reasons why -. 17EXHIBIT B ALAMEDA:You want to go ahead and state your reasons why, Mr. Eger? EGER:Well, it€s in Exception 7. If you€d like me to read it. ALAMEDA:No. EGER:I€m not supposed to bring anything that€s not included in these exceptions, that€s your rule. ALAMEDA:Okay. EGER:And I€m content with what I wrote there because this is carefully done. ALAMEDA:Okay, thank you. Department, Ms. Leithead-Todd, your thoughts? LEITHEAD-TODD:As I understand Mr. Eger€s objection, he is basically objecting to the fact thatIpointedoutthattheGeneralPlanhasproposedindustrialforoneofthe20-acrelotswhich is closer to Ms. Harlan€s property than Mr. Vurich€s proposed use. He also objected to me pointing out the location of Ms. Harlan€s property in relationship to Mr. Vurich€s application and in relationship to the future proposed industrial area. And as I understand it, he seems to be saying that that was somehow an inappropriate argument. He has not raised any violations of any rules, any professional conduct. He just was unhappy with the argument that I tendered and in particular he seems to be inferring that I was questioning standing; and I was not questioning standing. I was addressing the issue of impact on the intervenor€s property because of its location in relationship to the application and its location to the future industrial piece of property. ALAMEDA:Thank you, Ms. Leithead-Todd. EGER:Then I need to read my two paragraphs to you, sir, of that Exception 7, the final two paragraphs of that. ALAMEDA:Exception 7. Okay. I€ll allow you to do that. Commissioner Salavea. SALAVEA:Can you summarize it for us rather than, because we€re getting, personally I€m getting lost on a technicality of the jargon. I mean, I need a summary of what your basis of why you object to her participating. EGER:When you considered giving standing to Sarah Harlan, Ivan Torigoe told you as a Commission that there was no consideration about the distance or location of a property to become a person at a contested case hearing, to have standing at a contested case hearing. It had nothing to do with the 500 feet. The 500 feet only has reference to those who must be notified of the request for a change. There€s nothing that indicates, and Mr. Torigoe said that in his Commission meeting to you, that would require her to live closer. ALAMEDA:Commissioner Watanabe? 18EXHIBIT B WATANABE:I€m sorry, but I believe you already heard testimony from the County that it had no regard to standing so I don€t understand where this is going. EGER:Pardon me, I€m getting there. During the contested case hearing, Mrs. Todd on several occasions brought in highly personal complaints about Sarah Harlan based on the position of her property, whether it was going to be across the street from an industrial area, and I raised an objection. The hearing officer did not admonish her. So I€m saying that -. SALAVEA:Can you point to those in the minutes from the hearing for us to review? EGER:Well, they€re right here. They€re on page 116 which was the summation as the representative of Chris Yuen at the contested case hearing; and I have a hard time believing that he would agree with that summation. It was mostly personal against the client. ALAMEDA:Whileyou€relookingatthat,letmeask-.Mr.Torigoe,soinresolving this matter, is it on the protocol then to kind of hear what the intervenor has to say and then just bring it back to the Commission, or do I have the final authority on that? TORIGOE:As the presiding officer, since this is a non-dispositive motion you as the presiding officer would make the decision. ALAMEDA:Okay. Fellow Commissioners, I€m inclined to deny the objection and allow Ms. Leithead-Todd to proceed. Is there any objection to that? MCCALL:No. ALAMEDA:Commissioner Siracusa? SIRACUSA:I, well, not objecting to it. Actually, I read the transcript very carefully and I read the exceptions very carefully and it€s my impression that Mr. Eger is misinterpreting what Ms. Leithead-Todd was doing. And I feel that if we say she can€t continue now then we are denying the County their right of representation. I don€t feel comfortable with that either. And although I must admit that I am not favorably disposed towards the applications of the Vurich, which I€ve made clear previously, I do believe that, I would support your decision if you wanted to rule that Ms. Leithead-Todd could continue on. ALAMEDA:Okay. I€d like to ask Corp. Counsel if I could make that now, for the record? TORIGOE:Well, if the parties are done with their presentations on this matter, yes. ALAMEDA:Okay. EGER:May I just mention, Mr. Chairman -? ALAMEDA:Go ahead, Mr. Eger. 19EXHIBIT B EGER:You said that the County needed to be represented. She is here as a representative for Chris Yuen. So the reason I€m pressing this is because I would like to get Mr. Yuen at the table rather than Ms. Todd, that€s my point. ALAMEDA:I understand. EGER:That€s her standing before the contested case hearing. ALAMEDA:I hear you. As the Chair, I still think it€s important that Ms. Leithead- Todd participate and I€m inclined to deny your objection; and I would like to move on to your other exceptions. But, again, I€m checking with my Commissioners to see if there€s any objections to that. SPRINGER:I concur. ALAMEDA:Okay. Objection denied. Mr. Eger, could you move on to your other exceptionsandfinishyouroralargument? EGER:Mr.Chairman,intheinterestoftime,andIappreciatethat.AndIhave filed these, those were written very carefully. They have references to the, both to the contested case hearing pages, they have references to the recommendation by the hearing officer, they complain about specifics such as the hearing officer never took up any of our points which I felt in the contested case hearing testimony were well taken. Mr. Vurich agreed to some of those because in many of the places I suggested, and this is where I will close, that the failure, the chief failure as I see for the future of this property is that the Planning Department failed in building these conditions to state how they would react with the newly consolidated properties. There is no clarity in that. And so if you and when you act on this application, that needs to be taken into account because they will be consolidated. That€s part of the plan. But how that will affect his existing from 1998 conditions needs to be handled explicitly. ALAMEDA:Thank you. EGER:And I think, Mr. Chairman, I can stand for questions but I will close my testimony. ALAMEDA:Thank you, Mr. Eger. I appreciate that. EGER:Did you want these, you do? ALAMEDA:I€m not sure if we can, is that evidence that we don€t have already? EGER:May I offer this to you, it€s more recent. ALAMEDA:It€s a similar situation with the applicant there, so -. TORIGOE:Yeah, we€ve allowed the applicant to use the photos for purposes of argument, so if you would like to do the same thing for Mr. Eger that would be appropriate. 20EXHIBIT B ALAMEDA:Any objections to allowing this photo as part of Mr. Eger€s oral argument? Okay, then so let it stand. EGER:I€ll bring it to you. This is dated. ALAMEDA:Thank you. I€ll move now to the Department. Ms. Leithead-Todd. LEITHEAD-TODDBasically, the Department stands by its recommendation for approval. There is an existing facility. This is an expansion of it and we support the hearing officer€s recommendation which basically comports with the recommendations of the Planning Director and is included in the background report and the recommendations. ALAMEDA:Okay, thank you. I believe we, in terms of protocol, Mr. Torigoe, we go back to the applicant now for final comments? TORIGOE:Yes. ALAMEDA:Applicant? MR. VURICH:Do you want me to respond to every one of his things along this way? ALAMEDA:Actually this is your closing argument. Is that correct? TORIGOE:It€s your opportunity to have a final rebuttal, yeah. MR. VURICH:For what he said? TORIGOE:Yes. MR. VURICH:Okay. The only thing I want to say is on the soil issue is that there wasn€t one drop of soil on this property. And I can€t speak for the new one, but when we graded the other one, it was solid rock. We had to bring in soil to plant our landscaping and we brought in more soil to plant the new landscaping. That€s all I had to say about that Condition No. 1. ALAMEDA:Okay. Mr. Torigoe, is there an opportunity for closing or was that the closing argument? TORIGOE:Well, that should have been their closing argument and so -. ALAMEDA:Okay. TORIGOE:You proceed on to decision making. ALAMEDA:All right, well, fellow Commissioners -. TORIGOE:If there are any questions -. ALAMEDA:Commissioners, any questions before we take a motion? 21EXHIBIT B WATANABE:Yeah -. SALAVEA:Of the -? I€m sorry. ALAMEDA:Commissioner Watanabe? WATANABE:Yeah. I€m sorry, Allen. SALAVEA:No -. WATANABE:This would be the appropriate time to ask the parties questions, am I not right? ALAMEDA:Sure. WATANABE:MyquestionwouldbetowardstheCounty,theDirector,the recommendations refer to Rule No. 17 with regard to landscaping. It€s my understanding that it€s a little more comprehensive landscaping requirement than was previously set in the original approval for the existing storage shelter. You know, as a follow up to that, I believe on page 24, Item No. 6, I believe that the recommendation also requires that landscaping be completed on both parcels, 120 and 91. I take it that€s the existing plus the proposed and that certificate of occupancy will not be provided unless this landscaping is complete. Am I correct in that? ALAMEDA:Mr. Yuen? YUEN:Yes, that€s correct. That€s all correct. And the landscaping condition along Kaloli Drive, it says what would be required to separate an RS, a single family, from a limited industrial zone under Rule 17; and we have a copy of Rule 17 here. But that€s actually, within Rule 17, that€s the most stringent landscaping. WATANABE: Thank you. ALAMEDA:Commissioner Salavea. SALAVEA:Follow up to that, Director Yuen, is, I guess I€m asking your opinion just for my own reference -. In the picture provided by Mr. Vurich, which is the current landscaping of the commercial business now underway, does that meet Rule 17? YUEN:The Rule 17 allows the use of existing woodlands as a buffer for landscaping; and I believe along Kaloli it€s either in compliance or there€s a small area that€s not in compliance where the building is visible. I can€t vouch for the other phases of the building. I know that I did look at this, I know I looked at the Kaloli frontage at one time and it was, most of the screening is done by the existing ohia trees that are there and to the extent -. Along Kaloli it would either comply, at the time that I looked at it, would either comply or be very close to complying along Kaloli. I can€t speak to the other faces of the building. 22EXHIBIT B SALAVEA:All right, thank you. And I understand it€s a very subjective call, and I don€t mean to put you on the spot in any way. But I€d like for us to if, just for purposes of argument or discussion, if the permit was approved that we have some sort of reference to place in the conditions that it would meet, you know, at least meet what we see on these pictures to make sure that, you know, the buffer is doing what it is intended to do in meeting the requirements. The follow up to that is if the application, if an applicant for a special permit does not comply with Rule 17, is there a possibility of revoking the permit or what is the process for one of the intervenor€s concerns of enforcing the conditions that we place upon the applicant? YUEN:Initially they would receive a citation or warning letter. If there was continued noncompliance, it could be brought to the Commission for revocation. There is a, well, that€s a possibility in any of these applications, that if you don€t meet the conditions it can be brought for revocation. SALAVEA:Sothereissometeethtotheconditionsintheenforcementasopposedto something like the, a rezoning where it kind of falls through the cracks? There is something that the Planning Department, I mean, the immediate County has something that they can respond with that would be significant? YUEN:There potentially are consequences; and it could be severe to the applicant. SALAVEA:Okay, thank you, Director. ALAMEDA:Thank you, Commissioner Salavea. Other questions? Commissioner Siracusa? SIRACUSA:Yes. As I recall, there was a similar statement in the 1998 applications and yet Mr. Vurich has not been in compliance of the landscaping there. The pictures that were passed around, the colored pictures, I noticed that secropia and albesia which are both weed trees, in the, Mr. Vurich has stated here, and then at the hearing in the record that he, after a while he got sort of disgusted with it and he couldn€t get anything to grow and he left it natural. But it seems to me that he is not making a distinction between what he calls natural and weeds. What I saw, the ferns, the bamboo orchids growing there, those are weeds. That€s not leaving it native forest. It€s a far cry from native forest. The bougainvillea, I mean, I see all over Paradise Park people are growing plants and they€re managing to make things grow and thrive. The bougainvillea, I took one look at it and I said it has never been pruned and it has never been fertilized. And I would suggest to Mr. Vurich that if he has a black thumb he hire a yard work person to take care of his landscaping. Because the problem isn€t that you have no soil. Basically, the whole island has no soil and yet everything grows fantastically well. So if you€re having trouble getting things to grow obviously you ought to get somebody to do it for you who is better at it. You might want to try the experiment with your bougainvillea, pruning it back drastically and then fertilizing it. That€s why it looks straggly, that€s why it looks terrible. I don€t even know if you know the difference between weeds and natural growth, but I have had occasion to pass the area since I live in Puna and have a lot of friends in Paradise Park. I€ve had occasion to pass by there for years and I€ve noticed it, I certainly never filed a complaint and most people in Puna will never file complaints. And you heard a testifier this morning saying she was having 23EXHIBIT B problems getting her community, although among themselves they€ll talk about things. People don€t like to make official complaints. They don€t like to confront other people. It doesn€t mean that they like what you€re doing. It just means that they don€t want to confront you and make a personal statement about it. So I would tend to ignore the comment about he has never had any complaints before. My feeling is that this whole business about, oh, you know, you tried and you tried and you couldn€t get anything to grow, I think that, to me, it sounds like just a whole lot of excuses, because landscaping is more than just sticking a plant in the ground. It€s maintaining it also; and if you don€t know how to do it, then you find out or you get someone who does. I think a lot of the questions about the previous structure and the previous permit also, you know, the issue is one of credibility as far as I see it. So Vurich has put up a sign on the highway. It was up there for years. In his sworn testimony at the hearing, he said that he had no idea that wasinviolationofanyordinances,butweallknowthatignoranceofthelawisnoexcuse.He said it was a temporary fold-up sign. It was not a temporary fold-up sign. There€s a picture of it; and that€s not the kind it was. It was up there for many years. Mr. Vurich did not do his landscaping the way he was required to by his €98 permit. I see no reason to believe that he will continue, you know, that he will not continue to disobey any conditions that are placed on him. And I feel a very strong lack of credibility on this applicant; and that€s why I will not be voting in favor. ALAMEDA:That sounds like, Mr. Torigoe, then are we moving towards a motion? Is that in order in terms of the protocol? SALAVEA:I have some more questions. ALAMEDA:Oh, go ahead. Questions, Commissioner Salavea. SALAVEA:For Mr. Vurich, the setback on the fence for the current business allows for about one car to be waiting to enter the property. The setback you have for the fence for the application here today has said that two, or one of the conditions states that it should allow for at least two cars waiting to be, to enter the property and they€ll be off of the street. Do you have any plans to make modifications to the current business you have? MR. VURICH:Yes, we do. There€s three, we submitted to the County this letter, it€s probably in your file that there€s -. There are three options or three alternatives that we had in mind. Right now there is room if we just pour more concrete. The gate is wide enough for two cars to be off the road. SALAVEA:Well, what I mean two cars off the road, -. MR. VURICH:Side by side. SALAVEA:I mean not side by side, but parallel behind each other. MR. VURICH:Right now we can€t do that on the existing entrance. That€s why we offered alternatives. One was two cars side by side. One was move the entrance, because of the 24EXHIBIT B buildings and the fence and the requirements of the traffic flow, so that no one aisle is blocked. There is always a way out if somebody is loading goods or whatever. The fence, we can€t just move the fence in. It will block off two arteries. So we recommended the alternatives; and one th was move the entrance to 14 Street where we can redo it and design it as long as we need to. th We can have a semi. I mean, we can do what we want if we have it on 14 Street. The other alternative in this letter we sent suggested that we move the entrance to Kaloli, as the Chief Fire Inspector recommended we do if we ever expand; and the reason is it€s easier for everybody to thth get in and out. The local 13 Street and 14 Street aren€t affected. They can€t complain of cars going in and out or anything because it€s on the main road; and it would make more sense. And we€re willing to do any of these things. I mean, we just need to know what to do. We can€t physically saw off the buildings and expand it inward right now because the buildings are in the way. But if we€re going to put new buildings in, we can make the modifications necessary to comply; and we will. And we€re willing to move our entrance, we€re willing to do what you want us to do. SALAVEA:Thank you. ALAMEDA:Commissioner Salavea? SALAVEA:For the intervenor, Mr. Eger, do you know, I€m not sure if you are aware of, but do you know of any condition or covenant in the Paradise Park Subdivision where it mandates or makes any commercial business in that area has to support the needs of the immediate Paradise Park residents or to some extent the Paradise Park Community? EGER:I think it€s safe to say -. ALAMEDA:Mr. Eger -. EGER:Paradise Park is not -. EGER:Mr. Eger, talk in the mike please. SIRACUSA:Microphone. ALAMEDA:And could you answer the question, go ahead. EGER:ParadiseParkdoesnothavecovenantsorconditions,asfarasIknow.But at the contested case hearing the issue was raised about a possible entrance on Kaloli. And as I recall,itwouldbeinthetranscript,asIrecall,BobbieStutsmanwhoistheexecutivedirector-. ALAMEDA:LetmejustcheckwithMr.Salavearealquick.CommissionerSalavea, did, I don€t want us to go off track, so Commissioner Salavea, are you satisfied with that answer orwouldyoulikemoreclarification? SALAVEA:Ifithasdirect,Imean-. EGER:Well, she raised a point. She raised a point that may be germane to your question about his comment. 25EXHIBIT B SALAVEA:All right. I mean, if it has to do with the question I asked about -. EGER:Oh yeah, it is. Because Ms. Stutsman I thought said that you cannot have an entrance for that purpose on Kaloli. In other words, along the long side. There are no protections. The only protections that we have are through your conditions. And it was one of the places where Mr. Vurich and I agree that thecondition that€s placed on the present th application on which you€re hearing would close the entrance on 13. And I thought Mr. Vurich and I agreed that that may not make sense, that it might make better sense for everybody concerned if that were allowed to be kept open. But all that is is an indication that these conditions on which you€re voting approval today are not well considered. ALAMEDA:Commissioner Salavea, are you satisfied with that answer? SALAVEA:Yes, thank you. ALAMEDA:Fellow Commissioners, any other questions before we proceed? Commissioner Springer. SPRINGER:May I ask a question of the Planning Director in his capacity as the Planning Director? ALAMEDA:Let me check with Corp. Counsel. TORIGOE:Yeah, if it€s relevant to the issues before you. SPRINGER:Yes. ALAMEDA:Commissioner Springer, go ahead. SPRINGER:With regard to the discussion of Condition 17, could -? WATNABE:It€s not 17, right? SPRINGER:I mean, not Condition 17 but on the landscaping requirement -. WATANABE:Condition4. SPRINGER:InCondition4usingRule17.Doesthejasmineconformtothat?I€m looking at page 59 of the transcript. And is the requirement of Rule 17 that plants fight off all of theirlocalplants-?I€mnot,I€mnotsurehowweapplyRule17. YUEN:Thebestwaytoanswerthis,letmegetRule17ratherthanshootingfrom the hip on this. SPRINGER:Thank you. 26EXHIBIT B YUEN:The quick answer is that the Jasmine will handle the lower, the requirement of a lower opaque portion; and I€m going to read the rule. But the basic rule is that you have alower area that€s supposed to be completely opaque, and then you have trees that provide intermittent screening above. So the Jasmine, if I understand how Jasmine grows, it€s going to grow to scrub that€s 6 or 8 feet high and itwill block the lower view. And then you have to have something else that blocks the upper view. And this is the MG to RS standard I€m going to read To exclude all visual contact between the industrial and residential uses and to create a strong spatial with concomitant lessening of the noise intrusion, the landscape buffer shall be opaque from the ground to a height of at least 6 feet with intermittent visual screening from the opaque portion to a height of at least 20 feet. Compliance shall be determined on the basis of the average mature height and density of foliage of the subject species or field observation of existing vegetation.‚ And what that means is that your landscaping doesn€t have to be mature when it€s put in, that you have a landscaping plan, you put in the landscaping; and if the tree will grow to provide the cover at maturity then it will be approved for occupancy. But letmegoonwithreadingtherule.Atmaturity,theportionofintermittentvisualscreening should not contain any completely unobstructed openings more than 10 feet wide.‚ And then it says, Options that presumptively achieve the standard include small trees 20 feet at maturity planted 30 feet on center with a 3-foot solid fence or wall, small trees 20 feet at maturity planted 20 to 30 feet on center on top of a 3-foot high seeded earth berm, tall trees taller than 40 feet of maturity planted with branches touching near the ground. So one way you can do this is you can have, just to give an example, a hedge type planting of something that€s going to grow very thick and provide a visual, complete visual barrier up to the 6 feet and then you have intermittent trees. And there€s, let me read the part, there is a definition that says that existing trees that provide the same function as new plantings can suffice for your landscaping. SPRINGER:May I continue? ALAMEDA:Commissioner Springer. SPRINGER:I€m looking at 17(2)(d) of the rule before you which discusses the promotion of ecological and cultural values. In this region where there are some native species would the Department recommend say use of uluhe rather than Jasmine or recommend the use of the ohia as one of those trees which are planted intermittently? YUEN:We haven€t gotten into very particular requirements. I€m just being really candid about this. We haven€t gotten, it talks about, the rule does talk about encouraging this but as a matter of requirement no. SPRINGER:So in encouragement does, especially with the presence of these species going into the application process it doesn€t require an importation of native species. Would you anticipate that encouragement? YUEN:We€d encourage it. I can€t say that we€d actively do much with this. I mean, in reality, yes. SPRINGER:Thank you. ALAMEDA:Commissioner Watanabe? 27EXHIBIT B WATANABE:I have one quick question for the Director. With regard to this ingress- egress, are you comfortable with the condition that is set forth now? I take it you probably are, but there was some mention about Kaloli Drive, etc. YUEN:Yes. It€s very important that there be no entrance from Kaloli Drive. The entrance from the side roads are manageable. WATANABE:Okay. ALAMEDA:Fellow Commissioners, are there any other questions for our parties to help us make this decision? Commissioner Siracusa? SIRACUSA:Yes. You just raised a question of trees when you reading off from the landscapingplan,Rule17;andasIrecalllookingatthephotosthatwentaround,otherthan albesia and secropia which are both weed trees, I didn€t notice any trees, although I hear that there are some ohia there. Maybe I didn€t get a picture of that or it wasn€t clear what it was. Would you care to address that, Mr. Vurich? MR. VURICH:Of course, I€d like to. First of all, you have to understand that the original application there was no Rule 17 around. We had -. SIRACUSA:I understand that. MR. VURICH:Okay. And as a result, we submitted, we went to an architect and we submitted an agricultural plan. Okay? And that€s what we did and we succeeded in doing that with the exception that the bougainvillea did not grow very well. Nobody can see the bougainvillea by the way because you have to go through the woods to see it. You can€t see it from the road because it€s against the vacant lot that you can€t even walk on cause it€s the forest. Our plan, just one more quick one, and I had mentioned this in the transcripts and you did read it, but what we want to do with the new facility, our fencing right now is 5 feet inside the property line all the way around. The Association owns about the first 40 feet. We don€t want to cut any of that down. There€s a lot of ohia trees, there€s a lot of, all the way along there if you drive that, what you do, it€s a beautiful drive. It will look essentially the same. There will be a few places because of the dip that you€ll probably see our buildings before we even have our other landscaping in. But we want to use the existing ohia and everything else that€s there and not th crush any of that, including the 5 feet. We want to leave that all existing so it will look from 14 Street and from Kaloli, it will look like, well, from all sides actually, it will look like the existing drive. We€re trying to not, we more than anybody will not want our place to be seen so that, for purposes of complaints. And we want it to look pretty, but pretty is in the eye of the beholder. I reallythinkthoseferns,andyou€vedescribedthemasweeds,andtheorchids,Ithinkthoseare pretty all along that drive. I do that drive every day and I go all the way down to the ocean becausewe€vegotinterestdownthere. ALAMEDA:Mr.Vurich,Iwantedtojustask-. MR.VURICH:Yeah,that€senough. 28EXHIBIT B ALAMEDA:Sorry to interrupt you. MR. VURICH:Okay, that€s enough. ALAMEDA:Commissioner Siracusa, did you get your question answered? SIRACUSA:Yes, I got my question answered long ago already. MR. VURICH:Oh, I€m sorry. I€m sorry. ALAMEDA:Okay. Other Commissioners? Commissioner Watanabe, then Commissioner Salavea. SALAVEA:Well, maybe you should let Mr. Salavea go first cause I€m actually ready toentertainamotion. ALAMEDA:Okay. SALAVEA:Onequickfinal. ALAMEDA:Sure. SALAVEA:For Mr. Vurich, real quickly. I know you submitted a list of names of clientele. But real quickly off the top of your head, can you give me percentage of clients from the Paradise Park area and percentage that are non-Paradise Park residents. MR. VURICH:Okay. I try every time I sign somebody up to figure out what€s going on, are they moving here, are they going away, where do they live. Everybody has a post office box. It€s pretty hard to tell; and lots of them are in transition. But I would say at least, at least 75 percent, when you say of our business is within the Park; and that€s why we put it in the Park. It€s right in the middle. You know, we choose the location, we bought that property prior to have the permit because it€s right cross from the industrial area. And what better place for a commercial non-intrusive type of business that€s closed during the evening hours, doesn€t have barking dogs, or kids with cars, or anything else. What a perfect buffer for that? We couldn€t do it in the industrial area, and that was agreed upon in our lifetime that Watamull will probably never do it. What we did is make a buffer. We couldn€t put it anywhere else in the Park. It would have probably been more objectionable. We tried to find a place that was least objectionable. ALAMEDA:Let me check. Commissioner Salavea, are you satisfied with that? SALAVEA:Yes, thank you. ALAMEDA:Okay. Any other questions before we take up a motion by Commissioner Watanabe? TORIGOEMr. Chairman, I€d just like to remind the Commissioners of something you have discussed before with respect to credibility; and that is the credibility may be relevant 29EXHIBIT B when you€re considering the merits, that is, you know, what is being represented about the nature of the project and it€s impacts, that sort of thing. But credibility as to whether someone is going to violate conditions in the future is generally not something that you should be considering. Because what you should be doing is setting up conditions that can be enforced regardless of who the owner is. You know, because what you€re doing is going to run with the land, even if you trust the current applicant the project could be sold to somebody else. ALAMEDA:Okay. WATANABE:Just a follow up comment to that. ALAMEDA:Commissioner Watanabe. WATANABE:You know, I do believe that the conditions set forth in the hearing officer€s findingsdorequirethatthelandscapingisinplacebeforeacertificateofoccupancyisprovided. So I, you know, I don€t know that the credibility issue really is germane. ALAMEDA:Commissioner Siracusa? SIRACUSA:Yeah. I€m looking at the hearing transcript, page 51. Mr. Yeh€s second comment, and he said, he€s responding to Mr. Vurich, and he says, I mean part of the process obviously in terms of reviewing an applicant€s ability to comply with conditions, you know, people will try to attempt to raise issues of what compliance existed before as being relevant. So just understand that that€s the context in this hearing, too.‚ And that€s what I was looking at when I made, you know, that comment. ALAMEDA:Point well taken, Commissioner Siracusa. Thank you for sharing that. Okay, let€s move forward. Commissioner Watanabe, is there a motion in order? WATANABE:Okay, thank you. I move that the Hearing Officer€s recommended Findings of Fact, Conclusions of Law, and Decision and Order for SPP 04-017 be accepted and the subsequent Special Permit be approved subject to the conditions set forth within the findings. ALAMEDA:Before us is a motion by Commissioner Watanabe. Is there a second? SPRINGER:Second. ALAMEDA:And a second by Commissioner Springer. SALAVEA:I€d just like to clarify the motion. ALAMEDA:Sure. Commissioner Salavea. SALAVEA:Thank you, Mr. Chairman. Was there any modifications to any of the conditions, the existing conditions that were made? I know we had kind of a lengthy discussion; and if none, then I just wanted to clarify that for the motion€s sake. 30EXHIBIT B ALAMEDA:Thank you, Commissioner Salavea. Not that I recall. Can I ask staff, was there any -? HAYASHI:There were none, none discussed. ALAMEDA:Okay. Thank you, Commissioner Salavea. SALAVEA:Thank you, Mr. Hayashi. ALAMEDA:There was a motion made by Commissioner Watanabe, seconded by Commissioner Springer. Is there any further discussion? Commissioner Springer. SPRINGER:Yes. The shortcomings of the process, the past practices of the applicant have all been set forth in the record. And in this instant case we€ve been reminded that we€re to baseourdecisionmakingonthemeritsoftheapplicationbeforeus.Therehasbeenchallenge made based on the accuracy of soil designation and biological descriptions and the intervenor has well represented and documented those, and discussion has continued. I€m looking at an attribution to Ms. Leithead-Todd that begins on the top of page 118 in the transcripts. And in that discussion our attention is drawn to the fact that this like so many other areas in Puna are indeed tremendously large, fully articulated subdivisions that are not fully developed. And there€s a sentiment when we come into these places that in their semi-developed state that that remoteness, the pristineness of what remains of the natural order is pleasing to us; but we still need to recognize that these are fully articulated at least on paper subdivisions. And those are some of the things that went into my thinking as I came forward to second the motion; and I will stand by that second and speak in favor of the motion. ALAMEDA:Thank you, Commissioner Springer. Other discussion points before we roll call? TORIGOE:Mr. Chairman? ALAMEDA:Sure. Mr. Torigoe? TORIGOE:This is something that I think we should be doing with all cases in which deal with a proposed finding and with exceptions. We should have some finding that says to the effect that Commissioners have considered all proposed findings and conclusions and the exceptions thereto; and to the extent that the proposed findings and conclusions are inconsistent with this decision, they are rejected; and to the extent that the proposed findings and conclusions are consistent with the decision, their intent is captured in this decision with the specific language of the decision to cover, something along those lines. That would satisfy certain legal requirements. WATANABE:I would accept that as a friendly amendment to the motion. SIRACUSA:You can€t because you didn€t make the motion yet. Oh, he did. WATANABE:I already did. 31EXHIBIT B SIRACUSA:I€m sorry, I€m sorry, sorry. ALAMEDA:Can we accept that as a friendly amendment, Commissioner? WATANABE:Yes. ALAMEDA:Do we need a second for that? SALAVEA:I second. ALAMEDA:Okay. EGER:Can I have a citation for that, please. TORIGOE:There€snospecificcitation.I€mjustbasicallylookingatwhattherules say about having a specific statement of disposal of proposed findings that have been -. EGER:I€m sorry, but you said the rules say. Is there a rule number? SALAVEA:Mr. Eger, if you could use the microphone, please, for the record purposes. TORIGOE:Yeah, I€m looking at the Rule 4-25, 4-25. ALAMEDA:All right, there€s a motion made by Commissioner Watanabe, again, seconded by Springer. Hearing no more further discussion, staff. HAYASHI:Thank you, Mr. Chair, and the motion is to approve the hearing officer€s report with the suggested wording included by the Deputy Corporation Counsel. Withthat, Commissioner Watanabe? WATANABE:Aye. HAYASHI:Commissioner Springer? SPRINGER:Yes. HAYASHI:Commissioner Salavea? SALAVEA:Aye. HAYASHI:Commissioner Siracusa? SIRACUSA:Nay. HAYASHI:Commissioner McCall? MCCALL:Aye. 32EXHIBIT B HAYASHI:Chair Alameda? ALAMEDA:Aye. HAYASHI:Mr. Chair, motion carries five to one. ALAMEDA:Thank you. MR. VURICH:Thank you. ALAMEDA:Applicants, you will be informed in writing of this decision. Thank you. The discussion ended at 12:25 p.m. Respectfully submitted, SharonM.Nomura East Hawaii Secretary 33EXHIBIT B