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HomeMy WebLinkAbout2004-12-17 TPettuso A regularly advertised hearing on the application of DAVID AND SHARON PETTUS was called to order at 10:38 a.m. in the County of Hawaii Aupuni Center (SPP 04-010 Conference Room, 101 Pauahi Street, Hawai i, with First Vice-Chairman Earl Fujikawa presiding. PRESENT:Earl Fujikawa ABSENT & EXCUSED:Fred Galdones C. Kimo Alameda William Graham Jeffrey McCall Ren± Siracusa Francis Smith Hannah Springer Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Planning Program Manager PhyllisFujimoto,StaffPlanner Jeff Darrow, Staff Planner And 23 people from the public in attendance APPLICANTS: APPLICANTS: DAVID AND SHARON PETTUS (SPP 04-010) Special Permit to allow the establishment of a Wellness Center Retreat and related improvements on 12.157 acres of land situated within the State Land Use Agricultural District. The property is located along the southeast side of Velez Road, approximately 700 feet from the Velez Road ƒ Honokaa-Waipio Road (Highway 240) junction, Kaauhuhu, Hamakua, Hawaii, TMK: 4-7-2:15. FUJIKAWA:Commissioners, we are on Application No. 7, David and Sharon Pettus (SPP 04-010), Special Permit to allow the establishment of a Wellness Center Retreat and related improvements on 12.157 acres of land situated within the State Land Use Agricultural District. Staff? DARROW:Thank you, Mr. Chairman. Again, if I could direct your attention to the location map. The area of this permit application is in the Hamakua District of Hawaii, more specifically in the Honokaa-Waipio area. If you were traveling on the Honokaa-Wapio Road, from Honokaa towards Wapio Valley, you would turn left onto Velez Road, which is County-maintained road. We travel for a short distance and to the area that is identified with a small red dot here, the Pettus€ residence. EXHIBIT B Looking at the site plan of the property, as you€re coming from the Honokaa-Waipio Road, you will come, traveling in this direction, there is a driveway that will bring you onto the property. There are numerous structures on the property identified from A, A is the proposed structure. From B on to H are artistic structures. The Applicants in this case, David and Sharon Pettus, are requesting a Special Permit to allow a Wellness Retreat Center and related improvements on 12.157 acres of land within the State Land Use Agricultural District. This is in response to a warning letter that was issued by the Planning Department for having five unpermitted structures on the property. There is one structure, one dwelling structure, that is permitted but not final at this time; and there are structures that were permitted as sheds as well. ThePlanningDepartmenthasreceivednumerouslettersofsupportaswellasopposition in regards to this application. We have received, as well, two petitions for standing in a contested case hearing. One is from Gary Washburn, his property is identified on the makai side of the Applicant€s property. And we have a request from Cheryl Green, who is located adjacent on the mauka of the Applicant€s property. At this time, we are withholding the Rec based on the submittal of the contested case hearing requests. Are there any questions? FUJIKAWA:Thank you. Commissioners, any questions with the staff? SPRINGER:Mr. Chair? FUJIKAWA:Springer? SPRINGER:Yes, I have procedural question. The first item that we need to take up then is the matter of the contested case, is that correct? FUJIKAWA:Yes. SPRINGER:And, if so, could we proceed with the contested case today, or do we need to put it on the agenda for a future meeting? FUJIKAWA:Director? YUEN:The Commission has the option of hearing the contested case today as a body if they wish. SPRINGER:Do we need to, do we first ascertain, if the Applicants for Standing are approved, if they are prepared to continue today? YUEN:Yes, and I would suggest asking the Applicant the same. 2 SPRINGER:Thank you. FUJIKAWA:Applicant? Wait your chance yet. So do we call him now? YUEN:Yeah. FUJIKAWA:Would the Applicant€s representative, please step forward. You want to raise your right hand? Do you swear the truth on this matter now before the Hawai i Planning Commission? LIM:I do. FUJIKAWA:State your name and address. LIM:Good morning, Mr. Chairman, and members of the Commission. I€mStevenLimfromCarlsmithBall.Withmetoday,behindme,areDaveandSharon Pettus. We€ve received the copy of the Background Report and have no comments. With respect to the potential for going forward with the contested case hearing, we, on purpose, did not call our supporters to come. There was, I€ll give a little bit of a background as far as a community meeting that happened last week, and we€re basically trying to still work issues out with the Planning Director. SIRACUSA:Excuse me, will you please talk into the microphone? Thank you. LIM:Okay. Thank you. FUJIKAWA:Springer, you have any questions? SPRINGER:No. FUJIKAWA:Okay. Commissioners, any questions with the Applicant€s representative at this time? Siracusa? SIRACUSA:Yeah. Originally, there were -. Well, originally all of these buildings, well, one building when they bought the property that was not permitted, and then they added on quite a few others that were also not permitted; and I am wondering what the status would be. Do the buildings have to be permitted first, or would they automatically be permitted if we approve this? I mean, what happens with the buildings, and legalizing them, and getting them finaled? Does our approving this automatically make those buildings okay, or do we have to take that as separate issues? FUJIKAWA:Director? YUEN:No. If the Special Permit were approved, you€re only approving the use of the buildings. The buildings have building permit issues which are covered by 3 the Department of Public Works. They were not, they would still, in order to be used for residential purposes, they would have to get residential building permits and finalize those permits. So, and we would as, if the Special Permit were approved, we would recommend as a standard condition that the building permits be finalized for a residential use before any occupancy took place under the permit. SIRACUSA:I am also wondering about these buildings have been up there and they€ve been charging rent, and what about the taxes, the, you know, the rollback taxes that they haven€t been paying on that? Can we impose a condition? What I€m wondering is if we can impose conditions to make sure that their approval is contingent upon successful completion of the terms. Because they have not, I mean, they had lots of time and they have not complied, and I would really hate to grant a Special Permit. It would be like granting a pig in the poke, not knowing if they would continue to not comply. So, what I€m wondering is if we can say, well, if you pay the rollback taxes, if you demolish theunpermittedbuildings,ifyouremovethesign,ifyoupaythepenaltiesasperMr. Yuen, Director Yuen€s letter, and final Building A, then, you know, to possibly defer looking at this Special Permit application until those other things have been taken care of. I think there€s a question of trust here, and it has been violated. And I would think that the Commission would want some tangible show of good faith. YUEN:As I said, it€s a matter, if the permit were approved, we would require, we would recommend a condition that the building permits be finalized and the construction completed according to the building permit. As far as getting a building permit, to legalize any of these structures, there is a bit of a chicken and egg question. The structures, aside from the first home on the lot, would need approval to have additional dwellings on the property, would need either approval as additional farm dwellings, which is also an action by the, which is an administrative action by the department, or approval to, under this Special Permit, for the wellness retreat or center. So you could not, if you went in and applied for a building permit for the, to make dwellings of the additional, of the other unpermitted structures now, those permits could not be even processed, because there€s no approval for the use of them as dwellings. The taxation question, we are not a tax-enforcing body. When you talk about rollback tax, I€m not sure that there are any rollback taxes that apply here. Rollback taxes are applied when somebody has an agricultural, has dedicated the property to agricultural use and then, and that€s dedicated for a set period of time. If they don€t fulfill that agricultural use for that set period of time, then the favorable tax rate gets roll backed to the beginning. So, and I don€t, I€m not aware that this property was under a rollback tax, was dedicated to agricultural use; hence, I€m not sure of the rollback tax. Jeff, do you know if there€s a, we should have a letter from Property Tax Office on the property -. SIRACUSA:Yeah, I was, what my concern was is that, you know, when they tax your property, they tax a certain amount for land and a certain amount for structures; and if these structures are unpermitted, then the Real Property Tax Office doesn€t know how many structures they should be assessing, you know. And, so, these people have most likely not been paying the, you know, what the tax should have been, given that 4 many structures. I€m not sure if that€s the case or not. Perhaps Mr. Lim would care to comment on that and let us know if they have been paying taxes based on, I don€t know if you€ve seen their tax bill, so -. LIM:I don€t believe that there is an agricultural dedication for real property tax purposes. Perhaps I€ll kind of go more into the, what we think the status is. The Applicants obviously have more unpermitted structures on the property that they should. And we€re working with the Planning Director to see if there€s an alternate way to do that, other than go for a Special Permit. They had a well-attended community meeting last Thursday, and that was attended by the Pettuses, and I suspect most of the people seated to my rear here. And I think one of the big concerns that came out of that community meeting was the concern that the agricultural nature of the area would be compromised. And that, the biggest concern, I think, was the concern over any kind of a precedent for a permit used for a non-agricultural use. So David and Sharon Pettus were there; and I think they heard the concerns and they understood;andIthinktheycommittedtothecommunitythatwe€reworkingwiththe Planning Director to see if there€s another way to skin the cat. I mean, frankly, they€re in a situation of having a lot of these unpermitted dwellings on the property because, frankly, like I told them when they first came to talk to me is I think they were too nice for their own good. But I think everybody is trying to reach a reasonable solution, and they€ve already committed to the community that they€re going to do that. So, I guess, my suggestion for today€s hearing would be we should take up the matters of the contested case request by Cheryl Green and by Gary Washburn, and the Applicant will take no position on those requests. And then if the people from the public would like to testify on the matter, we take that, and then we would be requesting a continuance of the contested case hearing. And, you know, issues of the, on the merits for an undetermined time, that we would be then trying to work with the community and the Planning Director to reach a good solution on this for everybody. FUJIKAWA:Corp. Counsel Torigoe? TORIGOE:Thank you, Mr. Chairman. I just want to mention something since Commissioner Siracusa mentioned the matter of trust. This has been spoken of before, but I just would like to remind you that when you issue these kinds of permits, basically, you€re not issuing it so much to the current occupant or the person but you€re issuing for the use of the land. So one way or another, please exercise care about, you know, the extent to which you are issuing or denying a permit, based upon your perceptions of the trustworthiness of the owner. Because if someone that you think is trustworthy gets a permit, they could sell the property to someone who€s less trustworthy. So you really need to issue these permits based on the appropriateness of the use in light of the law, and you need to condition that in a way that you feel will be enforceable on whether the occupant is trustworthy or not. FUJIKAWA:Thank you, Corp. Counsel. 5 SIRACUSA:Maybe I€m confusing this with one of the other cases but I seem to recall something about the conditions of sale when the Pettuses took over the property and that they were held responsible for, you know, as heir, successors and assigns for all the terms and conditions that the previous, everything the previous owner had done. They were there or responsible for the unpermitted dwelling and have delayed, and delayed as we can see from the record here and from Mr. Lim€s statements. And, so, you know, even though, yeah, I, what I was saying about matter of trust is that if we don€t, if the Pettuses were to decide at this point to sell the property to someone else, then they would be selling all the problems along with it. Those would be inheritable, so to speak. I mean, it would go on to the next owners, all the unpermitted dwellings, and that sort of thing and, also, the responsibility to abide by the conditions. But we can just keep passing this along, it runs with the land like a deed? I mean, I have problems with that, yeah. FUJIKAWA:Commissioners,anyquestionswiththeApplicant€srepresentative? You have something to say, Steve? LIM:Nothing further. I guess we should move onto the contested case request and -. FUJIKAWA:Okay. Commissioners? YUEN:I think you need to call the, call the people who are making the request for a contested case. FUJIKAWA:Before we continue, I€d like to call the people who€s making the request for a contested case. Who were the applicants? YUEN:Washburn and Green. FUJIKAWA:Mr. Washburn and Cheryl Green. Please step forward. You may sit down. Will you hand the mike over, Steven, to them. Would you like to raise your right hand. Do you swear to tell the truth on this matter now before the Hawai  Planning Commission? WASHBURN:Yes. GREEN:Yes. FUJIKAWA:Start with you, state your name and your address, Cheryl. GREEN:My name is Cheryl Green. My address is P.O. Box 307, Honokaa. I live above Velez Road. WASHBURN:Gary Washburn. My address is P.O. Box 2433 in Kamuela. I live right below the Pettuses. 6 FUJIKAWA:Thank you. Cheryl, you may proceed with your testimony. GREEN:Okay. Well, I€m grateful to have this opportunity to speak before you today as one of the many voices opposed to changing the agricultural zoning of the Kapulena area. As you know, the decision you make today will affect all of us in Hamakua. The Kapulena area is perfectly suited for farming and is now in the beginning stages of success. The small farmers here are developing and producing world-class agricultural products. The Land Use Commission knew what it was doing when it zoned Kapulena agricultural. The special use permits were intended for exceptional needs on agricultural lands, exceptional needs. I€m a farmer, I bought my land to farm. When I applied for a permit to build my house, the County asked me to sign a farm dwelling agreement. I thought about it, and I said thisisgood.Bysigningthisagreement,theCountyandmyneighborsneverneedto worry about my land use. In 1995, Mr. Pettus also signed a farm dwelling agreement. But from that day forward, Mr. Pettus ignored the commitment he made to the County and to his community. He chose to build a development of residential dwellings under the guise of storage sheds, fruit sheds and lean-tos to house his friends and members of his commune. He€s now asking for you to legitimize his actions. This special use permit is not the highest, best use of the Kapulena area. We have 100 signatures of neighbors and property owners in the area opposed to this special use permit; and I€m not sure if you all have that, but I have nine copies here for you. They€re hard-working people today who have taken time off from work to come here to ask you to deny Mr. Pettus€ request. If it€s okay with the Commission, I would like the people who oppose it to raise their hands (approximately 21 people from the audience). Thank you. There are other parts of this island more suited for this type of development. And history, as you know, has shown that when you break up Ag land by rezoning with variances, it always results in the loss of the Ag land forever. It is important to honor the wisdom of the Land Use Commission. The best zoning decisions have already been made for this area. Please vote to deny this special use permit and keep Kapulena agricultural, please. Thank you. FUJIKAWA:Any questions, Commissioners, with Cheryl? Commissioner Springer? 7 SPRINGER:Thank you for your testimony, Ms. Green. Are you aware of the rights and responsibilities that go along with your request for Standing in a Contested Case Hearing? GREEN:I believe I am. And if we were to have a contested case hearing, I would request that I be allowed to bring my attorney; and he is not present today. SPRINGER:So you€ve heard the request by the Applicant€s representative that this matter be continued should the contested case hearing be approved, and would concur? GREEN:Yes. SPRINGER:Thank you. FUJIKAWA:Any other questions, Commissioners, with Cheryl? Graham? GRAHAM:Cheryl, I didn€t really have so much a question of you. But just whenyouspokeandyouwerespeakingof,youknow,ourvotetodaybeingimportant and all, I just want to just to put forth my sense, kind of in line with what Commissioner Springer said and what Mr. Lim said before about how things are likely to progress, just so that the rest of you who talk today can understand the situation as I do. And I will stand corrected if I hear otherwise. So we will hear both you and Mr. Washburn, and then we will make a decision on whether we will go ahead with you as Intervenors in a Contested Case Hearing, and that would take place at a further date, not today. And that would either take place where there€ll be one person hired by the County to conduct that hearing or else it would take place with us as a Commission altogether conducting the hearing. And I, also, believe that the other folks that are here today will get a chance to testify today regardless of whether we have that Contested Case Hearing or not. So, I just want to put all that out so that you all understand the procedure we€re looking at. GREEN:Thank you. GRAHAM:Thank you. FUJIKAWA:Go ahead, Gary. WASHBURN:Yes. I€ve lived in the area for 14 years, and I actually represent my family who bought the land. And we followed all the guidelines, all the rules regarding building our house and building our structure. We moved here and picked that piece of property for serenity, for privacy, for the benefits of rural living, so that we could grow our garden, and we could grow our indigenous plants and refurbish the area. And that was my whole concept in terms of wanting to live there. And what I€ve seen is somebody else can move into the same area and not follow those guidelines, and I don€t think that that is fair. I don€t think that that is what the law is for. If we don€t follow the laws, if we don€t enforce the laws, as a schoolteacher I feel like what I try to teach in 8 school is somehow negated, because that€s what I try, the way I try to run my classes. This is the law, this is the consequence of the law, and that€s what the laws are for. I hope that you deny this request, also. I€m assuming that all of you got a copy of my written testimony with pictures of the road that leads up there, shows the close proximities, 73 feet actually from my driveway to the first entrance to their property. I hope you understand from my written testimony that there is not a car that goes by there that does not, that I€m not aware of. And that€s, anytime you increase the population, you can guarantee yourself you€re going to increase the number of cars that go by. Thank you. FUJIKAWA:Commissioners, any questions with Mr. Washburn? Springer? SPRINGER:Thank you for your testimony, both written and oral. And I€ll ask thesamequestionaskedofMs.Green.Areyouawareoftherightsandresponsibilities that you have of having made the Request for Standing in a Contested Case Hearing? WASHBURN:Not really. SPRINGER:I€m wondering if, Mr. Director, if you could sketch those out for Mr. Washburn? FUJIKAWA:Mr. Director? YUEN:If the Commission grants you standing in a Contested Case Hearing, this then will go to a more formal-type of decision-making. If you had not had standing, if there was no request for standing and no, then they would not have a formal Contested Case Hearing, and the Commission would make a decision similar to what you may seen earlier today. People come up, they can testify, the Commission would have a discussion, and then make a final decision. If the Commission does grant the standing, then we will, given that both the Applicant and the other, Ms. Green, would want the hearing continued, then we would not make a decision today, and we would set a date for the formal hearing. The difference, the major differences would be that we would, that you have the opportunity to cross-examine the other side€s witnesses, that you can, and your witnesses can be cross-examined by Mr. Lim, that there would be a meeting in advance in which you€d be expected to disclose all of the exhibits, all the things that you wanted to be considered, and that there would be a more formal set of findings leading up to the decision. We would want each side to spell out the reasons why, in detail, why, in one case, in the case of the Applicant why the permit should be approved, and in your case why it should be denied. The Commission can decide to hear all this themselves, or they can decide to have the Department hire a hearing officer to hear this. It€s typically an attorney or a person that€s 9 knowledgeable in planning to hear this evidence; and then the hearing officer would prepare a report to the Commission. We would expect certainly you to attend the meetings, to meet the deadlines, and to present the paperwork that would be done before the final decision. And one significant aspect of the, having a request for intervention in a contested case is that if you€re not, if you disagree with the result, you can appeal that, the result to the Third Circuit Court. In a situation like we had earlier today where there is no request for intervention, only the applicant, if the applicant were denied, could appeal the result to the Circuit Court. A person just coming up and testifying would not have appeal rights. FUJIKAWA:Okay. Any questions, Commissioners? Siracusa? SIRACUSA:I have one question to Mr. Washburn. FUJIKAWA:Go ahead. SIRACUSA:Okay. I noticed that the Pettuses have stated that there would not beanysignage.Butthenwegotaletterwithaphotographthatshowedasignhadcome up. And since you€re so close, I was wondering if you could tell me the dimensions of that sign? WASHBURN:I€m not exactly sure what sign you€re talking about. SIRACUSA:The entry sign. WASHBURN:There€s an entry sign, I would say it€s maybe 4 inches by 3 feet. It€s a very narrow, long sign -. SIRACUSA:Okay. So it€s a size of a sign that would not require a sign variance. That€s what I was trying to get at. Thank you. FUJIKAWA:Commissioners, you have any questions with the Applicant€s representative, or Cheryl Green, or Gary Washburn? None? All right. SPRINGER:Mr. Chair, fellow Commissioners, I€d like us to consider Gary Washburn€s application for Petition for Standing in a Contested Case Hearing because we received it first on July 19th of 2004. And, to the staff, this was properly filed on the time and financial requirements were met? DARROW:Yes. SPRINGER:And we see that his home is adjacent to the land involved, less than 500 feet away on properties directly in front of your home. Is that correct? WASHBURN:Yes. It€s on the mauka side. 10 SPRINGER:Thank you. Mr. Chair, I move for the acceptance ofGary Washburn€s Petition for Standing in a Contested Case Hearing on this matter of David and Sharon Pettus, Applicants for a Special Permit No. 04-010. FUJIKAWA:Is there a second? MCCALL:Second. FUJIKAWA:It has been moved by Commissioner Springer and seconded by Commissioner McCall that Gary Washburn€s application for a contested casebe accepted. SIRACUSA:Excuse me. Can I ask for clarification? FUJIKAWA:Okay. Asfaras the ƒ go ahead. Wait a minute. Siracusa? SIRACUSA:We€re not talking about two separate contested case hearings,are we?OneforMs.GreenandoneforMr.Washburn? TORIGOE:Justtwointervenors. SIRACUSA:Just two intervenors. Okay. I just wanted to clarify that. FUJIKAWA:Yeah. Mr. Torigoe? TORIGOE:Again, just for the record. The Applicant is taking no position with respect to the granting of standing to these two intervenors. LIM:That€s correct. FUJIKAWA:So there had been a motion made. Any questions? Alameda? ALAMEDA:Real quick, then, for my own -. So does that mean then if we grant, if we approve standing, then we wouldn€t be voting on it today? It will be moved forward for a mediator type of case? YUEN:That€s the next step. Then after taking the votes on these two individuals, then the Commission will, should have a discussion about whether you want to proceed today, you want to hire a hearing officer, you want to hear it yourself. Those are the choices. FUJIKAWA:Any other questions? If not, staff? DARROW:Thank you, Mr. Chairman. Commissioner Springer? 11 SPRINGER:Yes. DARROW:Commissioner McCall? MCCALL:Aye. DARROW:Commissioner Alameda? ALAMEDA:Aye. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:CommissionerSiracusa? SIRACUSA:Aye. DARROW:CommissionerSmith? SMITH:Aye. DARROW:And Mr. Chair? FUJIKAWA:Aye. DARROW:The motion passes for acceptance of Petition for Standing in a Contested Case Hearing for Gary Washburn. FUJIKAWA:Commissioner Springer? SPRINGER:Mr. Chair, with regard to a request by Cheryl Green which was submitted on August 26, 2004, a Petition for Standing in aContested Case Hearing on this matter, David and Sharon Pettuses€ Application for a Special Permit 04-010, I move to approve the request for standing. FUJIKAWA:Do I hear a second? MCCALL:Second. FUJIKAWA:A motion was made by Commissioner Springer and seconded by Commissioner McCall that the Application for Standing be accepted. Any questions? Staff, go ahead. DARROW:Thank you, Mr. Chairman. Commissioner Springer? 12 SPRINGER:Yes. DARROW:Commissioner McCall? MCCALL:Yes. DARROW:Commissioner Alameda? ALAMEDA:Aye. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:CommissionerSiracusa? SIRACUSA:Aye. DARROW:CommissionerSmith? SMITH:Aye. DARROW:And Mr. Chairman? FUJIKAWA:Aye. DARROW:The motion passes for acceptance of a Petition for Standing in a Contested Case Hearing for Cheryl Green. FUJIKAWA:Commissioners, what do you want to do on this case? SPRINGER:Mr. Chair, leading us to a discussion on what our preferences are as far as how to handle the case, I€ll ask my standard question of the Director whether or not we should consider outsourcing this request? FUJIKAWA:Director? YUEN:Well, it€s up to the Commissioners as to the final decision. You usually ask about the funding, and we do have the funds to employ a hearing officer. It€s really a question for the Commission because it is, although -. Generally, I like the Commission to make the decisions, to hear the, it often is useful to actually sit and hear the testimony. It winds up, you wind up hearing a lot of it over again when you get the hearing officer€s report and hear the arguments of counsel anyway. There is a time commitment involved to it, and I know that the Commission already gives more than generously of its time. So I don€t try to prod the Commission in any one direction or the other as far as whether they have a hearing officer or they decide to do this themselves. 13 SPRINGER:Thank you. FUJIKAWA:Commissioner Graham? GRAHAM:Personally, I€m kind of inclined that we all hear this as a Commission because I think there will be a lotofpublic testimony. And although we can read the public testimony if we hire a hearing officer, a lot of the value of public testimony comes from one€s presence. In that regard, I also wonder, maybe I would ask our legal representative here, Mr. Torigoe, when would be the appropriate time to take public testimony here today? Do we need to dispense with all the issues regarding the contested case before we take public testimony, or might this be an appropriate time to take it right now? TORIGOE:The rule doesn€t really say, you know, one way or the other. So if youfeltlikeitwouldbehelpfultoyoutohearpublictestimonynow,youcoulddothat. GRAHAM:Yeah,I€dliketodothatifthat€samenable. FUJIKAWA:We€lldothatafterthis,whatyourdecisionsare.Whatdoyou want to do on the hearing? SPRINGER:I€m sorry? FUJIKAWA:What do you want to do on the hearing? SPRINGER:I believe that Commissioner Graham just asked if we could hear the -. FUJIKAWA:No, we€re going to hear them -. SPRINGER:Public testimony. FUJIKAWA:Yeah, right. Yeah, I think we€re going to have a public testimony right now. You have a question? SIRACUSA:Yeah, I€m concerned about Ms. Green€s right to be represented by counsel. And I€m wondering if we do the public testimony part now, can we then continue for the rest of the public hearing for another date so that she will have an opportunity to come in with counsel, rather than make a decision today? YUEN:Excuse me. I think what you€re talking about right now is whether to hear the public testimony before taking a vote on whether to have a hearing officer. SIRACUSA:Okay. 14 YUEN:You are required to take public testimony because theitem is on the agenda, whether or not you make a decision today. If you decided to, if you decided to hear it today against the wishes of the Applicant and one of the Intervenors, which I don€t expect you to do, then you would have to have the public testimony before you made, certainly before you made that decision. But I think all you€re talking about right this minute is -. I think, Commissioner Graham, youthought it would be useful to inform the decision of whether or not to take it to a hearing officer, to have the public testimony first? GRAHAM:Correct. YUEN:And I think, by this point, and that€s for the Commission to decide, you know, as to how you want to proceed here. The only thing I€d mention to the public isthat,doestheCommissionwanttoatleast-?CantheCommissionatleastsignalthe public whether or not it€s going to decide this today first? That might be useful to the public in knowing how much to get into this. FUJIKAWA:Commissioner McCall? LIM:Mr. Chairman, I guess that€s part of the reason why I did the little speech up in the front, because we feel that, you know, we hope to work it out without having to go forward with the Special Permit. But in the event that we don€t, we will be coming back to the Planning Commission, we will be bringing our witnesses. And I think whether the public testifies today, or at the Contested Case Hearing, or at the later on arguments before the Planning Commission, I think you€re going to hear both sides come out every single time. So I don€t think that it€s going to be a situation where because you didn€t hear them today that they, of course, you didn€t hear it before the full Commission today that you won€t get to hear all the people. Cause I know that people feel strongly from both sides, so I€m sure that they€re all going to come out every single time. We€ve told our side not to come out today in anticipation of this being primarily a procedural hearing. FUJIKAWA:Oh, you had a question? MCCALL:Yeah, maybe just to throw my opinion out along with everybody else. I have no problem with hearing the public testimony before we go to decision- making on the contested case, on where we want to go as far as a contested case. If the rest of the Commission don€t have a problem with that, we could take all the public testimony, and then do it. But as far as I understand it, what we€re, it seems to me, and I don€t want to speak for the rest of the Commissioners, but I believe, we are not, I don€t believe we€re looking at trying to do the contested case at this point in time. I believe we€re going to, we will either be, if we choose to hear it ourselves, we will schedule another meeting for it. If we choose to hire a hearings officer, we will schedule another meeting in the future for it. So I don€t -. You know, what I think all we€re going to be 15 doing is we€ll be taking public testimony at some point, and we€ll be making a decision on what we, as a Commission, want todo as far as the contested case. FUJIKAWA:That€s right. So what, you want to make a decision -? MCCALL:I have no problem. If the rest of the Commissioners are okay with it, I have no problem with going with Commissioner Graham€s idea of having public testimony first, and then making a decision. So I€ll make a motion to that effect if that€s acceptable. FUJIKAWA:Mr. Torigoe, can it be done that way? TORIGOE:As I said, I don€t think the rules require you to do this in any particular sequence. At this point, if you feel it would be helpful to take public testimony beforeyoudecidewhatproceduretouseforthecontestedcase,youcandothatifyou want. If it€s a clear consensus that you€re just going to go ahead and hear it as a body or if it€s clear consensus you€re going to do something else, you just make that decision, and then have public testimony. So it€s really quite flexible at this point. GRAHAM:I second the motion. FUJIKAWA:What was that, Graham? GRAHAM:I second the motion, Commissioner McCall€s motion, to have the public testimony now. FUJIKAWA:So you want the public testimony now, okay. No objection? If there€s no objection, we can go ahead and do that. All in favor? MEMBERS:Aye. FUJIKAWA:Okay. Yeah, you may step back; and we have a total of eleven people signed up to testify, that€s including Cheryl and Gary. I guess, your testimony has already been submitted. GREEN:Yes. FUJIKAWA:Okay. GREEN:I just wanted to make sure that you all did receive the written testimony -. FUJIKAWA:We have everything, yeah. GREEN:And all the, because we were still getting signatures up through last evening -. 16 FUJIKAWA:Yeah. GREEN:Of opposing it. FUJIKAWA:I tell you what. Being that we have four seats up forward, Jason Worchel, Cheryl, Gayle Marquess, Ms. Anderson and Bob Shioji, please step forward. Is Bob Shioji available? All of you, kindly raise your right hand. Do you swear to tell the truth on this matter now before the Hawai i Planning Commission? TESTIFIERS:Yes. FUJIKAWA:Thank you. Let€s start off with your name and address, Bob, and work our way down. SHIOJI:Myname is Bob Shioji. I live at 1483 Hawai i Belt Highway, Hilo.IalsohaveafarminHamakua,inKalopa. FUJIKAWA:Thankyou.Next? ANDERSON:MynameisLisaAnderson.MyaddressisP.O.Box1338, Honokaa, Hawai i. MARQUESSI€m Gayle Marquess, P.O. Box 1816, Honokaa. WORCHEL:Jason Worchel, RR 2, Box 3907, Pahoa, but I own Mauka 13in Kapulena Orchids. FUJIKAWA:Thank you. Let€s start off with Bob. SHIOJI:Good morning. I€ve submitted a written testimony. But let€s go through it and if you have any questions, I€d be glad to answer. I€m here representing the Hamakua County Farm Bureau, to explain to you our position on the proposed Wellness Center Retreat project at Kapulena, Hamakua, Hawai i. The proposed project is located in an existing macadmia nut orchard. However, the prime use, the primary use of the land as proposed by the Applicant is contrary to the criteria listed under Planning Commission Rule 6.3(b)(5)(F and G). The Applicant€s primary objective for the use of the land is to build a Wellness Retreat Center, and there is no mention in the Special Permit Application Request that the 12.157 acres will be maintained in agricultural use, which is a blatant disregard of Criterion 5(F) that states The proposed use will not substantially alter or change the essential character of the land and the present use.‚ Criterion 5(G) states that the request will not be contrary to the General Plan and official Community Development Plan and other documents such as the Design Plans.‚ Most of the Hamakua Coast is designated 17 intensive agriculture land under the General Plan and the location of the proposed project is a prime‚ agricultural land because, basically, thelower Hamakua Ditch cuts right across the property and water, as you know, is essential to any agricultural endeavors. Obviously, this project changes the essential character of the land and the present use, and is not intensive agriculture. As an organization that is deeply involved in agricultural-related issues including the protection of good agricultural lands, the Hamakua County Farm Bureau urges the Commission to deny the request for a Special Use Permit for the proposed Wellness Center at Kapulena, Hamakua, Hawai i. Thank you. FUJIKAWA:Thank you. Any questions? Commissioner Springer? SPRINGER:Mr. Shioji, could you describe to me who comprises the Hamakua CountyFarmBureau? SHIOJI:We€refarmers,ranchers,agriculturists,anybodywhostrongly believes in the preservation of agriculture in the area. SPRINGER:Could you give me an estimate of membership. Is it a membership organization? SHIOJI:Yes. It€s a national organization, the National Farm Bureau Federation. We have a State organization, the Hawai i Farm Bureau Federation; and we also have a Big Island Farm Bureau organization. And we€re one of four chapters on this island, the Hamakua County Farm Bureau. And we€ve been involved in this land issue thing for a number of years, going back when the Hamakua Sugar Plantation went bankrupt and the status of the Lower Hamakua Ditch became a big issue in that area. And we€ve been actively involved in trying to preserve the Lower Hamakua Ditch as the primary source of water for any irrigation endeavors in Hamakua. And we€ve been also actively involved in trying to get the County Council, as well as the State Legislature, to try to identify and protect our best agricultural lands in the County of Hawai i. The State hasn€t done a darn thing since the LESA Commission presented a report to them back in 1983. So we€re now working with the County Council to try to get them off their butts to do something. We haven€t been successful with the last Council. We hope we€ll have better results with the new Council. And in Hamakua, the area that we€re most concerned with is the 6,000-plus acres below the Ditch, because these are irrigatible lands. And in this particular project the Lower Hamakua Ditch goes right through the project, if you look at the map. So we€re very concerned about that. SPRINGER:And the number of members? SHIOJI:I beg your pardon? 18 SPRINGER:Number of members? SHIOJI:Our chapter has 85 members. SPRINGER:Thank you. FUJIKAWA:Is there any other questions, Commissioners? SIRACUSA:Yes. FUJIKAWA:Commissioner Siracusa? SIRACUSA:Yes. I was wondering about how much, how many parcelsor how much acreage is downstream of the Lower Hamakua Ditch where it passes through this parcel? SHIOJI:Roughlyabout6,000acres. FUJIKAWA:Anyotherquestions,Commissioners,withMr.Shioji?Ifnot, Ms. Anderson? ANDERSON:Hi. Thank you for hearing my testimony today. I am the owner of Mauka 10, Kapulena Orchards, along with my husband. I submitted written testimony in th a letter dated December 5 to Mr. Yuen. Basically, we have been working as a community in Hamakua with Dwight Takamine to develop a plan for Hamakua. The vision I have written in my written testimony, what the community is looking for, as a farmer I think it€s important that we preserve agricultural lands. It€s what I want for myself and my husband, as well as our son. I believe that permitting special uses basically subverts the intention of having a zoning in the first place. I feel that it puts the interest of one person above the interest of an entire community; and I truly believe that theHamakuacommunityisinterestedinremaininginagriculture. AfterspeakingwithDarynAraiandRobertUsagawa,aswellasDr.Holschuhata meeting of our neighbors, currently the County has no enforcement of the SUP€s. They havenoonewhogoesoutandchecksonthingstomakesuretheyareincompliance,that they€re running their operations according to what the County grants. I think that€s amazingandsad.AndIjustreallywouldliketoseeHamakuaremainagriculture.I think that that€s what the County wants and if, or what the people want in Hamakua; and ifwestartpatch-workingitouttospecialinterest,wewon€thaveanyagriculturalland left. And if you€ll just refer to my letter I think in that you can see what our vision is for ourcommunity;andthatwasdevelopbyourcommunity.Thankyouverymuch. FUJIKAWA:Commissioners, any questions with Ms. Anderson? If not, Gayle, go ahead. 19 MARQUESS:I own 52 acres just above Cheryl Green,and we have cattle and macadamia nuts, and we use Velez Road when we want to. And I€ve never been involved in anykind of County planning until people in our community started applying for these special use permits. And it€s not with the nature of the community; and it tears the community apart to try to say why one person could have, say, six dwellings on a 12-acre parcel and somebody else couldn€t have at least six on 50 acres. I don€t understand, and I couldn€t explain it to my neighbors. So I think if this is granted, everyone is going to apply for a special use permit and we€re not going to have any Ag land left. Thank you. FUJIKAWA:Any questions, Commissioners, with Gayle Marquess? None. Go ahead, Jason. WORCHEL:Good morning. I€m a neighbor of Lisa, and a neighbor of Gayle, and stone throw from the Pettuses, if you throw real hard. And I€ve never been involved inanythinglikethisbefore;andIthinkthisspeakstothepassionthathasbeengenerated in our community by a number of special use permits and people waiting in the wings to apply for special use permits. You may or may not be aware but we had one of our neighbors apply in a similar circumstance with unpermitted illegal buildings wanting to make them legitimate through this special use permit; and it really galvanized portions of our community and split it apart at the same time. We have spent countless hours attempting to put together a vision for how to preserve agricultural land in Hamakua under the leadership of Dwight Takamine, and maybe you have all heard some about that. And we hope to present that with regard to the Draft No. 3, I think, that€s currently out. One of my concerns is there€s Ag land and then there€s Ag communities. You can designate agricultural land and lease it out, and no one lives there. So you could live in a community and drive out to your Ag land and do agriculture. And, so, you might be preserving agricultural land, but there€s something unique about agricultural communities like Kapulena. We chose to live there, rather than live in a tourist spot or perhaps a more beautiful spot, not primarily just for the serene beauty and tranquility but because of the people who live there, and the values of those people, and the ability to get to know our neighbors. Now, we have problems. We have drag racing, we have ice deals going down all around us. We are attempting as a community to galvanize and to begin to work with each other in an inter-dependent way which can concur in an agricultural community. And it doesn€t occur in tourist destinations, and it doesn€t occur in cities where you really don€t know who your neighbors are and they€re transient. This special permit, like all of them, I think it was addressed earlier, is not personal. It doesn€t really have to do with the Pettuses who may be stellar community representatives. It really has to do with the use of the land, it has to do with the future generations, it has to do with the vision of what is going to occur in the future with Hamakua. It runs with the land. In our own neighborhood the special use permit was 20 applied for by a non-profit corporation who didn€t live on the land and hada transient number of managers; and that could easily happen. And I think counsel was correct in saying you don€t know what the future owners may or may not do. But once it€s granted it runs with the land, it€s forever. So this isn€t just something whether or not you like or approve of the current people. It really has to do with the community. I want to reiterate just a few things, and I€ll try to be very brief. The County cannot monitor the special use permits. And what that does and what it has done in our community is it forces neighbors to spy on neighbors, it forces neighbors to report neighbors. And that is incredibly divisive, particularly in small communities who rely on trust. And, so, if you see something going on, we€ve had tremendous tension, do we report it, do we want to, you know, create on-going conflicts which, you know, could and will go on for a long period of time? We don€t want it. We wanted the County to maintain its agricultural use designation so we don€t have to be in the position of fighting eachotherandspyingoneachother. Inthisparticularsituationlikeinanotheroneinourcommunity,therearealreadyillegal buildings that are there that have been for illegal purposes. Once you then legitimize that through the special use permit, you are setting a precedent. Whether or not it€s a legal precedent, it is definitely a practiced precedent that people who end up getting caught‚ can then turn around and go through this particular process to get an illegitimate, illegal operation permitted and approved. And that happened in our situation, and clearly it€s happening here, and I€m sure it could easily happen again. I think, and I€ll stop at this. We don€t really want an every man for himself kind of mentality. We are trying to create a cohesive, coordinated, long-range vision that would allow the type of growth where it needs to occur, what type of growth can be accepted in concert with the community and cultural values. The special permit process is a zoning variance under any other guise; and it has tremendous impact on the community. So please use your collective wisdom wisely. Help us save Kapulena, which has always been agricultural, and which is why the people who have bought there and still live there are there. Thank you. FUJIKAWA:Commissioners, any questions? Commissioner Springer? SPRINGER:Thank you, sir. You commented on we are doing some visioning for the area. Who is we?‚ WORCHEL:Well, there have been multiple meetings and either Bob can comment on that or some of the other speakers. Under the leadership of Dwight Takamine, he has been calling community meetings, and we€ve had multiple, and hundreds of people have attended those. They€re actively working in subcommittees, Lori Beach is here and others, looking at a whole variety of different issues from the commercialization and development to cultural values, to land use. I mean, it€s a wide ranging vision with specific plans and recommendations that we hope to prepare for the County in response to Draft No. 3, so it can be considered and included. Thank you. 21 SPRINGER:Thank you. FUJIKAWA:Commissioner Graham? GRAHAM:Just a brief question. You speak of Kapulena like a community and all. Since I don€t know that Hamakua area that well, can you give mea sense of what Kapulena represents there ƒ acreage, or people, or whatever? WORCHEL:If you don€t mind, I would like someone who€s informally known as the Mayor of Kapulena‚ to speak to that a little later. GRAHAM:Okay, fine. WORCHEL:Hehashad80yearsofexperiencethere.I€mobviouslysomewhat of a newcomer and wouldn€t begin to try and tell you. Thank you, though, forasking. FUJIKAWA:Commissioners, any questions with any of these testifiers? If not, thank you very much. Staff, could you set up another seat? We have five people coming up. Kiyoshi Miyashiro, Lori Beach, Brenda Hall, Richard Walker and Alan Suzuki, please step forward. HALL:Sorry, I didn€t realize I signed up to testify. I prefer not to. FUJIKAWA:And what is your name? HALL:Brenda Hall. FUJIKAWA:Yeah, you did. We got Alan Suzuki, Richard Walker, Brenda Hall, Lori Beach, Kiyoshi Miyashiro. Brenda, you signed up to testify. SIRACUSA:She didn€t mean to. HALL:I didn€t realize I was going to be called to testify. I wasn€t planning on it. FUJIKAWA:So you want to scratch it off? HALL:Please. FUJIKAWA:One, two, three, four. One more person. Richard Walker, are you Richard Walker? WALKER:Yes, I am. FUJIKAWA:And we have Kiyoshi Miyashiro. That€s you? 22 MIYASHIRO:Yes. FUJIKAWA:Alan Suzuki? PUBLIC:He had to leave. FUJIKAWA:Okay, three of you, raise your righthand,please. Do you swear to tell the truth now to the Hawai i Planning Commission? TESTIFIERS:Yes. FUJIKAWA:Yeah, go ahead and lower your hand, and we€ll start off with you. State your name and your address. WALKER:My name is Richard Walker. My address is Box 45, Papaaloa. MywifeandIliveandfarmintheNorthHilo-. FUJIKAWA:I€msorry.Andyournameandaddress? BEACH:MynameisLoriBeach.Myaddressis46-1020KinimakaRoadin Honokaa. MIYASHIRO:Good morning. My name is Kiyoshi Miyashiro. My address is P.O. Box 930, Honokaa. FUJIKAWA:Thank you. Richard, you may proceed. WALKER:Thank you. My wife and I live and farm in the North Hilo district near Papaaloa and would not be directly or immediately affected by the proposed changes to this one property. However, we feel strongly that given the growth in the area, that is entire coastline, we and you would soon be hearing more of these requests for exceptions to the law. As you know, Hamakua is a rural, agricultural region and a collection of small communities; and we feel that an unwise precedent set now will act as the narrow end of the wedge whose leverage we€ll come to regret. It is not yet too late. Indeed, this is an opportunity to show that our vision reaches beyond the immediate. For a group to come into a community, determine it to be perfect for their ends, and then change that community irrevocably and to the detriment of its quality of life in seeking those ends may seem foolish. But for those in a position of oversight, to condone it, would seem closer to negligence. With the benefit of hindsight it€s sometimes possible to identify a past moment from which something forever after became better or worse, the moment which forever after is seen with pride or regret. The opportunity is yours and we trust you to choose well for the future of Hamakua. Thank you. FUJIKAWA:Commissioners, any questions of Richard? If not, go ahead, Lori. 23 BEACH:Aloha, thank you for hearing our testimony this morning. You€ve heard people talk about the community coming together to develop a plan to protect agricultural use on Ag land, our rural lifestyle and a lifestyle that goes along with agriculture in Hamakua. I€ve been one of the, leading that charge so I can speak to that a little bit. This has been a community grassroots-based plan; and one of the main issues that has been identified by the community is keeping Ag-zoned lands in Ag use. You know, historically, we have a lot of properties, on this island in particular, that are not being used for Ag use even though they are zoned for Ag. And as a community we€re looking at ways to have the County enforce Ag use on Ag lands and to prohibit some of these. You know, these special use permits are the exact things that we don€t want to see on Ag land. It means that it€s not going to be used for Ag. And, especially in this case where there€s,itreallyappearstobeablatantcircumventionofthezoninglawsbyhavingthese illegal buildings on this landand then coming in for a special use permit to legitimize something that they knew was illegal to begin with. The community has spoken up very strongly against this issue. And we would like to see the County support the community in this and in keeping Ag lands for Ag use in Hamakua, and the whole island for that matter. Thank you. FUJIKAWA:Commissioners, any questions with Lori? If not, Kiyoshi? MIYASHIRO:Good morning, everyone. As you know, I€m a long, I€ve lived in Hawai i, Kapulena, all my life, 70 years; and I know that place pretty well. And as far as agriculture in our district, maybe the best known secret is that when Honokaa Sugar started the macadamia nut industry about 65 years ago in Haina, the orchard was in Kapulena. Okay, so the first orchard, macadamia nut orchard in the world, let€s say, was in Kapulena; and Kapulena is half way between Honokaa and Waipio Valley. And right now, I worked, in the past I started working in the macadamia nut orchard picking nuts when I was 12 years old. Honokaa Sugar used to hire us kids, you know, school kids, to work on Saturday and during the summer vacation. So, and after that, I worked for the macadamia nut industry for 30 years, both with Honokaa Sugar and later on Hawaiian Holiday until it went bankrupt. And as far as the orchard, it was divided, you know, when the company, Hamakua, went bankrupt, it was divided into 40-acre lots, I believe; and it€s still thriving. So you can see agriculture has been very active in our area. And all, what you call, this diversified Ag you hear about, Hamakua is one of the last places, you know, where, really, it€s really thriving; and we want to keep it that way. Thank you. FUJIKAWA:Commissioners, any questions with the testifier, or all the testifiers, at this time? If not, thank you very much. Will the Applicant€s representative, please step forward? 24 LIM:Thank you, Mr. Chairman. I was speaking with my client, Dave Pettus, and he thought maybe a short statement by him as an introductory matter would be, if it was okay with you guys, he€d like to give one. FUJIKAWA:Yeah, would you hand over the mike over to them and I€ll have them sworn in. Both of you, could you raise your right hand. Do you swear to tell the truth on this matter now before the Hawai i Planning Commission? DAVID AND SHARON PETTUS:I do. FUJIKAWA:State your name and your address for the record. D. PETTUS:My name is David Pettus and my address is 47-383 Velez Road, Honokaa,intheKapulenacommunity. FUJIKAWA:Thankyou.Isthatyourwife? D.PETTUS:Yes. S.PETTUS:MynameisSharonPettusandIliveat47-383VelezRoadin Honokaa. FUJIKAWA:Thank you. You may proceed with your testimony. D. PETTUS:Should we start by just seeing what questions you would have for us? FUJIKAWA:Commissioners? Graham? GRAHAM:I just would suggest that if you have any comments in response to the testimony we just heard, that€s generally the way we go. So anything you€d like to have to say -. D. PETTUS:Okay. Very good. We€d like for the record to be as clear and as accurate as possible. And, so, I€d like to state, to repeat what Mr. Lim said, that we have asked him to be in touch with the Planning Commissioners to see if there€s another way that we can accomplish our goals without the major problem associated with a special permit, which would be that even though I think there is a degree of trust with our neighbors that we would not intend to do anything that would be damaging to the community or alter it significantly in any way. It is true that if a later owner of the property wanted to take advantage of the existence of a special permit as a wellness retreat center, they could actually make a business of it, and that could bring about changes. So, at the meeting last Thursday night, as we listened to people€s concerns, we understood their feeling that this could be a future problem. So we are pursuing that, and we would hope that there€ll be another way; and that if we can succeed maybe by getting 25 farm workers€ dwelling agreements or something, we can withdraw the special use permit. Because our preference would not be to tie up the future in any way that could jeopardize the future of Kapulena. As to what we have been doing and do intend to do, we both hope and we have committed ourselves seriously to doing what we can within the scope of our resources and our abilities to make a contribution that makes things better for Kapulena, for Honokaa, for the Hamakua District and for the Big Island. Actually, when we got here we were only thinking of enjoying our retirement and continuing to grow and sell the macnuts that were on the property that we bought; and we have done that. I don€t think that in our special permit application we said a lot about the agricultural activities, because we don€t plan to change anything about that. We€ve been growing and selling macnuts for about 10 years. It has been quite a struggle, but we do intendtocontinuewiththat.And,infact,overthelastfewyearssomeotheragricultural activities have developed. Primarily we invested tremendous time, effort and money over a period of 10 years to create one of the signature agricultural products for the Big Island. That€s our Hawaiian chili pepper jelly that continues to be an agricultural product that we created and nursed along for 10 years; and you can find it at KTA and everywhere else; and there are a few other agricultural activities as well. Bromeliads are being grown and sold on our property, as well as breeding of purebred puppies. That all will remain the same. And although I heard that we, it sort of sounded like we came with a plan, and came with a commune, and wanted to plop that all into the middle of Kapulena. What really happened was really just one thing after another. When we bought the property, there was, the previous owners were living in a house that had not been permitted; and we figured that would have to go as soon as we built our own house. However, we decided to let it stay for a while because we found out that the people we were buying the property from were having financial hard times. In fact, I think that€s why they had to sell the place. So we made an agreement with them that they could just stay in the house for one year to get their affairs back in order; and, hopefully, they€d be able to move on and have a better life. So during that year, Sherry and I lived in a tent, and began to develop plans for building our own house. Before we got very far with our house, Sherry€s Uncle Steve came to visit for Christmas from Denver. He was in very sad shape so we decided to let him stay. We only had plans for a 2-bedroom room house, one for ourselves, one for our son. Uncle Steve showed up and was in very poor condition; and rather than let him go back to his bachelor€s apartment in Denver, we decided to keep him with us. And we moved our son into the 7x9 ft. room that was going to be our office as a temporary setup for as long as Uncle Steve lived, which we didn€t think would be very long. But we did our best to take good care of him, and he lived longer than anybody thought he would. And during that time as his health declined we realized we needed help. We engaged a young lady to come over a couple of mornings a week to help us, and she became very close to the family, and we got to know her family. And when they announced one day, very 26 tearfully, that they had lost their house in Hawi and after many struggles to find a suitable place for themselves and their children they said they€d really like to stay at our place because it was, they loved UncleSteve, they loved us, and we cared for them. We said we love you, too, but we don€t have any more houses. At that point, they offered to just build themselves a house. And after some thought we said, well, you know, would be okay with us but we don€t have a permit for any more houses, we don€t know how we would get a permit, and this will sooner or later become a problem. They said that€s all right, we want to be here, we want to do it, we€ll help solve the problem when it arises. And it seems like, okay, we were sort of in a dilemma between responding to the tradition of aloha on the one hand and being straight with the County on the other; and we just made the choice at that moment to put aloha first, and get things straight with the County as soon as we could. We didn€t do it too quickly. But it has always been our intention to do so. We can get to that in a minute. And,then,let€ssee,whathappenednext?Oh,okay,whentheoriginalownerswere ready to move out at the end of their year, some friends that we€d known for a long time called us up, asked if they could stay in that house for just three months. We said, okay, another three months we€ll leave the house standing. They were about to get a job in the Cook Islands and they didn€t want to renew the lease for one year where they were staying. So we said, okay, a few months is fine. They came in. And during that time, well, anyway, to make that long story short, they were still there 6-1/2 years later because the job in the Cook Islands didn€t come through and they didn€t really have a better option, and maybe we were just being too hospitable. A friend of theirs came to visit for Christmas for one week, her name is Barbara Simmons. And while she was staying in the guest room in that little original bungalow, she became ill. We told her don€t worry, Barbara, stay until you€re better. It took her about a year to get better. And at the end of that time we told her we€d really like to have our guest room back and besides we figured that house was going to have to get demolished pretty soon. She said, Can€t I stay? I like it here.‚ And she was, she€s 65 years old, she has serious health problems. Although she was not in serious health danger, she was unable to work and didn€t have anywhere to support herself, so we just caved in once again and said okay; and she volunteered to build herself a little place. And we explained the same things to her: We love your company; if you build the place, it€s going to put us further out on the limb that we€re already out on; we don€t know right now how we would get a permit for it; that is going to give us a bridge we€re going to have to cross one day. She said I don€t mind, I don€t mind taking the risk that I might be wasting my money putting this house up. I think she spent about $12,000 putting up a 400 square foot -. Well, first, we had it in mind to be in agricultural, she had, in fact, until she ended up wanting to have a place for herself. So people came to be there in that way. I would hate to be characterized as somebody who, for greedy, personal gain, came in with the intention of scoffing the law, to make a personal profit, and to harm the community in which I live. 27 In fact, I€m reluctant to talk too much about good works, but I hope our efforts speakfor themselves in having created the Hamakua Music Festival. We were the founders of it because one day talking with Gary Washburn over the fence in our first few weeks there, he explained to me that he is the band teacher at Honokaa High School and that he had 220 students -. It€s just so wrong, he had a budget of $900 a year. That€s not right. And we had already had the idea of putting on a concert at the people€s theater because we knew some friends who were good musicians who we thought would be, well, we also learned shortly after moving there that Hamakua Sugar was closing down. And everybody was so upset, and dispirited, and discouraged, and pessimistic that we felt that bringing in some good music would, number one, provide something that people can enjoy and, number two, just create a little optimism behind the demonstration that something new could happen. Because mostly when we talked to people about what was possible after so many people lost their jobs, mostly people just thought nothing was possible, and that the good times were gone for good, and that it would never be good again.And,so,wethoughtthatputtingonthesetwoconcertswouldbegoodforthe community in those ways. And we didn€t exactly know how we would make them work because we were still living in a tent and hadn€t figured out how we could afford to build our house, but it just seemed like the right thing to do to get behind it and see if we could make it happen. Then when Gary told me this information, I thought that, well, really, maybe these couple of concerts could be grown into an actual festival that could happen year after year, and keep on bringing good music and encouragement and optimism to town, and raise some money that could go to helping the future of music education for kids on the island. So, we added three more concerts and had, let€s see, well, we had a great classical concert, and a great jazz concert, and three great Hawaiian concerts. Eddie Kamai came, and Martin Pahinui, and Naleo Pilimehana; and we were just personally out on a limb taking on responsibility for this. In fact, when we went to meet with, well, anyway, we won€t go into that. We were just way out on the limb, financially, having taking on responsibility to make this happen. And it, by some miracle it did happen and we were able to after the dust settled, hand Gary a check for $1,004 that was left after the bills had been paid to go towards his activities with the kids, which we greatly admire. We continue to admire what Gary does. The community would be a poorer place without him. Would we want to diminish his quality of life? Not in the least. We are concerned about traffic. Our permit, the special permit that we applied for we thought would just be the best way to finally get up-to-date and get caught up and legalize the dwellings that we had allowed to be built because people needed them; and we wanted to be generous and take care of people. And that sort of like what happens at a retreat center. So it seemed to be a sort of a fitting category, even though we never had and never would approach it as a profit-making thing for ourselves. The other thing that sort of makes us a little bit like a retreat center is that we both have doctorate degrees in counseling, and some people have found out about that and asked if they could come talk with us about relationship problems they were having, and things like that. And, so, from time to time we€d find ourselves offering consultation to folks 28 and, but we never asked them to pay us anything, either, as we€ve notasked people -. I€ll say we€ve hardly ever asked anybody to pay us anything forstaying at our place; and usually even when money was offered, we€ve declined it. And for our counseling, we€ve just asked people if they would be kind enough to make a check out to some charity that they like; and if they didn€t have one in mind, we€d suggest the Hamakua Music Festival. So that kind of makes it a little bit like a retreat center except not commercial and not big, and with no desire to make it ever any bigger or any different than it has been for the last 10 years. Because we€re still here with our primary goal of enjoying our retirement; and building up a business would not be the way we have of enjoying our retirement. I think that the traffic on our road has been, by anybody€s standard, minimal. Some of it is ours but not really a whole lot; and we don€t have any plans for that ever to be any more than it has been. I think right now there are seven people living on our property at the moment. The most I think we ever had living there over the last 10 years was 14. Onepersonwhoaskedpermissiontobuildahouseis,Ididn€ttellhispartofthestorybut we can skip that, but the short version of it is he took advantage of having six years to live with us at no cost and was able then finally to purchase a house for himself and his wife. And they moved into a house that they bought; and we are now dismantling the house that they had built. I hope that, I apologize for taking a lot of your time; but I hope that helps to sort of clarify what has gone into our being in this mess that we€re in. I know that there€s a lot of alarm because other people have applied for special permits. I know of one that has been mentioned today, and I think that didn€t fly. And I don€t think that if you decided this one was okay to approve that would make you any more likely to approve another one, unless you thought it really had merits. But the fact is our preference would be to just slow this thing down to give us an opportunity to finish exploring any other alternate means of saving the houses that are there, and that means saving the people who are in them who are good people, and to also contribute to the community. Everybody at our place volunteers for the music festival cause they know it€s a good thing, cause they know that Sherry and I care about it so much. We€d just like to be able to, if we can€t create an altruism zoning, at least make use of some provision that exists that we can continue to be of service in a very small way to a few people at home, as we also have always tried to be in the larger community through the Hamakua Music Festival and to the world through our very active support of environmental organizations and so forth. Oh, the other thing I think I should mention is that, yes, sometimes we do provide guest services, not just for people who need a place to live but -. For example, a couple of weeks ago the CEO of one of the world€s most important environmental organizations came to spend a week with us with his wife because he just needed the time out, a time to be in a peaceful, serene place to sort of handle his burnout and then get back to work. And, so, we had that place. And we want to keep it peaceful and serene, not only for visitors like that and for volunteers for the music festival who come and take advantage of a free place to stay with us, but, also, first of all, for ourselves. Charity begins at 29 home. And, so, I hope that clarifies some things. But if you have any questions about anything that has been raised, we want to handle them for you. FUJIKAWA:Commissioners, any questions with the Applicant? SIRACUSA:Yes. FUJIKAWA:Go ahead, Siracusa? SIRACUSAWell, one of the questions I was originally going to ask you was why did you, and the date of corrective action was August 2003 and there had been three time extensions granted. I now understand why you have not taken corrective action all that time, you just can€t say no.‚ D.PETTUS:Wehavethatproblem. SIRACUSA:Yousaidyes‚toeverybodywhoaskedtostayon? D.PETTUS:Almosteverybody. SIRACUSA:Allright,almosteverybody.Iwouldsubmitthat,althoughthe Hamakua Music Festival is a wonderful event and I thank you for initiating that, I noticed a lot of your support letters were referring to that. I don€t know how many of those support letters came from people who are your neighbors and who live in Kapulena, I noticed that some from the return addresses did not. Be that as it may, it€s apples and oranges, it seems to me. It has nothing to do, whatever your, you know, your altruistic endeavors have been, this is a land use issue; and I believe that this Commission has to decide on your permit application based strictly on the land use portion -. D. PETTUS:I would agree. SIRACUSA:And I€m looking here at page 8 of, this is within the Background Report, excuse me, of the special permit application under, page 8, No. 3, Housing Element, Goal, Attain safe, sanitary, and livable housing for the residents of the County of Hawaii.‚ It appears to me that unpermitted dwellings such as restored sheds do not qualify as safe, sanitary and livable, nor do they improve and maintain the quality of affordability of the existing housing stock or insure that housing is available to everybody. They don€t meet those qualifications. You put it down there as though you are meeting those qualifications. It doesn€t seem to me that you are. I€m wondering, I saw something about a shed and somebody was living in a shed. Will you go into a little detail about that, please? D. PETTUS:Oh, oh, oh. There was one building, when we first had, in my building, we thought it would be an agricultural storage shed. Then that was right about the time Barbara Simmons said she needed a place, and so she took on the building of that, and it became a residence instead. And, so, actually, the original permit for an Ag 30 storage shed came to naught; and what was actually builtin that spot was Barbara€s place. She found a kit house somewhere and had that put up as her place. SIRACUSA:Okay. My second question was, did you, did the previous owner disclose to you that that structure was unpermitted? D. PETTUS:It was not really mentioned to us at the time that we bought the place. Although during the following year that we let them stay in it, it came to light because, well, anyway, yeah, it came to light. SIRACUSA:Thank you. GRAHAM:I think in general we want to try to stay away from content kind of things under discussion today since presumably this will take place in a contested case hearinginthefuture,so-. FUJIKAWA:Yeah,weshouldproceedwiththe-. GRAHAM:Yeah,so-. FUJIKAWA:Springer? SPRINGER:I€ve heard the Applicant make reference to perhaps seeking an alternative or continuing discussion. And I€m wondering, either from Mr. Pettus or from Mr. Lim, what€s contemplated here, what that looks like, is that aside from the contested case format, or prior to the contested case format? LIM:We would understand that this would be something that would run concurrently and totally separate from the Special Permit application. And so that€s why we€re asking that the Commission establish the standing of the parties; and we were requesting an indefinite continuance on the actual holding of this contested case hearing. SPRINGER:Mr. Chair? FUJIKAWA:Go ahead, Springer. SPRINGER:I would then ask either Mr. Torigoe or Mr. Yuen to just sketch out for the Planning Commission what this might look like, where we would proceed from here given Mr. Lim€s comments. FUJIKAWA:Mr. Yuen? YUEN:I wouldn€t want an indefinite continuance, given that it€s an enforcement situation. Normally, if somebody were applying for a new permit and didn€t have anything on the ground, there wasn€t a violation, we wouldn€t have any problems with the continuance being as long as they€d want it because the applicant is the one 31 who€s waiting to get their project going. So we wouldn€t want an indefinite continuance. A reasonable continuance of a few months, the Department would have no problem with; and, yeah, so we wouldn€t have a problem with it continuing for a few months. SPRINGER:In that case, would we need to make a decision today on whether to outsource, or to handle the case ourselves, or wouldwe be looking for a que from the Applicant to proceed? YUEN:You could wait. FUJIKAWA:Go ahead, Springer. SPRINGER:So, if I understand correctly -. And I suppose we need to check to see if all the parties would concur with the Applicant, Ms. Green and Mr. Washburn wouldconcurtocontinuingthismatteruntilsuchtimeastheDirectorbringsitback before us. Is that a correct process? YUEN:That€s okay. We then, we also have to, you€ll have to request an extension of time on the enforcement matter as well, I believe, right? LIM:And we, so, we€ll request that at this time. YUEN:Okay. FUJIKAWA:Okay. SPRINGER:So, Mr. Chair, Iwould gather that we would need to seek concurrence from the intervening parties? FUJIKAWA:Yeah, we should. That was Cheryl Green and Gary Washburn. Please step forward. GRAHAM:Could I make a question -? FUJIKAWA:Go ahead. GRAHAM:Question for Commissioner Springer. It seems like in the past we€ve had situations where we did either assign an officer or schedule a contested case hearing, but the parties kind of worked it out in the meantime and we didn€t have it. So I€m wondering why we throw in extra steps rather than making that kind of decision today so that there€s less to do in the future, since we€re all here today. If, you had any reason why that feels helpful to you? SPRINGER:I was just inquiring for clarification, much as you are. I€m not wedded to either course of action. 32 GRAHAM:Thank you. FUJIKAWA:Mr. Torigoe? TORIGOE:Yes, what is the question? You have a question for me, Mr. Chairman? FUJIKAWA:No, I just want to clarify with Springer if you had any questions with the procedures. Anyway -. TORIGOE:So, at this point, Ms. Springer has proposed that we have a continuance of the matter until the Planning Director puts it back on the agenda in order to allow the parties to try and work something out. SPRINGER:Thatwasasuggestion.AndCommissionerGrahamaskedifthere was any advantage in pursuing that course of action, as compared to deciding today if the Planning Commission would take up the hearing or we outsource it. TORIGOE:And, at this point, we€ll call up the Intervenors to see if they had any position with regard to that? FUJIKAWA:That€s correct. The Intervenors? GREEN:Okay. Well, my feeling is whyare we giving Mr. and Mrs. Pettus a continuance when they have had eight years to comply? I don€t understand. And without my attorney€s advice, I say absolutely not. FUJIKAWA:Okay, Mr. Washburn? WASHBURN:I agree with that. I don€t understand, either, why it should be continued. FUJIKAWA:Then that€s your answers. SPRINGER:Then, Mr. Chairman, maybe you can lead us through a discussion on what the preference is, whether to outsource or to hear the matter ourselves. FUJIKAWA:Which way you want to do, do you want to farm it out, Ms. Springer? SPRINGER:There are other Commissioners who might have opinions there. FUJIKAWA:Yeah. McCall? MCCALL:Yeah, my general preference at this point in time would be outsource it. I find it to be useful to have a hearings officer hear it. I believe it allows me 33 to get a better feel for what exactly the issues are. It does prolong the situation somewhat because the hearings officer will make a report to usand then we make a decision and, in general, many times the same issues come up at our decision-making that are going to the hearings officer. But, in my opinion, it allows me to get a better grasp for what the issues truly are. I do also feel, in this case, having a hearings officer might allow the legal issues to perhaps come to fruition a little bit, perhaps, better than it would, than in the case that we are doing it. It also may allow the situation that Mr. Lim is asking for in which some negotiations can occur as things are being set up. So my recommendation would be that we hire a hearings officer. FUJIKAWA:Any comments before we proceed? ALAMEDA:Commissioner, I mean, Chair, could I speak? FUJIKAWA:Goahead. ALAMEDA:Okay,thankyou.Ithinktheideaofoutsourcingis,Iconcurwith Commissioner Graham because then it€ll give us a chance to see the issues on paper and then we also, and correct me if I€m wrong, we€ll also have a chance to, we€ll also have authority in saying yea or nay to that particular decision. So I like that idea. FUJIKAWA:Okay. So is there a motion? MCCALL:If there€s no other comments, I€d make a motion that we -. FUJIKAWA:Springer? You have any comments? SPRINGER:Yeah, I€d like to hear from my colleagues in general with regard to the fiscal condition of the County. I always ask the question about whether or not this is an affordable endeavor by the County, and Mr. Yuen has assured us that we have, the County has that money to accomplish this. I think Commissioner McCall spoke well with regard to an articulation of the legal arguments by outsourcing and the Planning Commission has the opportunity either to concur, or reject a hearing officer, or amend the hearing officer€s recommendation. So I€m not adverse to outsourcing. I€m wondering if Commissioner Graham or Commissioner Siracusa have thoughts on the matter? SIRACUSA:Well, I do. I believe that it really is to the advantage of the Intervenors to go with the hearings officer. And not only while you have an attorney who can ask possibly, you know, more pertinent and legally, legalistic questions than some of us could think of, but it will allow you the time to really separate the facts, legal Findings of Facts part, you know, separate out that from a lot of the fru-fru. And, yeah, I think that€s needed in this particular situation. FUJIKAWA:Graham, you had something to say? 34 GRAHAM:My initial inclination was that the Commission hear rather than the hearings officer, but I€m certainly not strongly wedded to that. And I also would point out to the people here that, as Commissioners, we can sit in on the hearingswhen it€s held by the hearings officer, which I€ve done in the past and I know some of the Commissioners have. So I€m certainly willing to go along with the feeling of the rest of the Commissioners as we€ve heard it. FUJIKAWA:Is there any other comments or questions, Commissioners? If not, what is your decision? McCall? MCCALL:I€ll make a motion that we hire a hearings officer to hear this. SPRINGER:Second, and discussion that that outsourcing will occur according to all the County hiring practices. FUJIKAWA:Okay. A motion was made by Commissioner McCall and secondedbyCommissionerSpringerthatahearingofficerbehiredtobeinvolvedinthis case. Any questions? Alameda? ALAMEDA:I have a question. What€s the time, the average time that it€ll come back to us? FUJIKAWA:Staff? HAYASHI:Well, the process, first we€ll select a hearing officer, then we€ll need to draw up a contract. So by the time the hearings officer hears the case and comes back with a recommendation for the Planning Commission€s consideration, it€ll probably be between three to four months. Hopefully, we can do it sooner; but that€s probably how it€ll be. ALAMEDA:Thank you. One more question. And the hearing officer will have like what the public testimony and all, what was discussed today, yeah? FUJIKAWA:That€s right. HAYASHI:Correct. ALAMEDA:Okay, thank you. FUJIKAWA:Any other questions, Commissioners? Graham? GRAHAM:Just a question for Mr. Lim. I think the general consensus is that we€ll try to move it along. Are you okay with that? I know you were hoping to work things out and all, and I presume there€s enough slack in there for you to do it. But I just wanted to give you the opportunity to make any comment on that. 35 LIM:We believe so. And if it€s going to be that the Commission€s decision is to bring us back or set thehearings officer€s scheduling pursuant to the Director€s decision, then I think, you know, we can work with him on that. GRAHAM:Thank you. FUJIKAWA:No other questions? Ms. Green? GREEN:Yes, I was just wondering how we and the rest of the community will be notified about the dates, and the time, and all of that. How does that happen? FUJIKAWA:That one there I think the Director can assist on that question. YUEN:Staff will let you know of all the hearing dates. They€ll be setting upallthemeetingsanddates,andtheywillletyouknow. FUJIKAWA:Springer? SPRINGER:Mr.Yuen,couldyoujust,perhaps,sketchoutatentativeschedule like the prehearing meetings and the hearing meetings, just those sorts of things and events? YUEN:I can€t do a schedule in terms of time because we€ve had some trouble finalizing our hearing officer€s contracts. I hope we€ve gotten over that. There€s some issues on how these would be done with the Finance Department. But the sequence of events is that we would, the Department has a committee to select a hearing officer and the Department then gets a hearing officer on board and makes a contract with them about how much they€ll be paid and what they€re expected to do. Then the hearing officer will hold a pre-, typically hold a pre-hearing meeting to set up the date for the hearing, to make sure that everybody can attend, to get, to set deadlines for exchanging witness list and exhibit lists, discuss what the issues are going to be, and then schedule that hearing. And then the hearing will be held typically a day or two for something like this to hear it all out. Then there€ll be a time for, depending on the hearing officer, they may want post-hearing briefs, more written things in writing; and then the hearing officer will issue a decision, I€m sorry, not a decision but a recommended Findings of Fact, Conclusions of Law and Decision for the Commission. FUJIKAWA:Okay. Mr. Torigoe? TORIGOE:Mr. Chair, I just wanted to alert the Intervenors that if you haven€t already gotten a copy of the Planning Commission€s rules, you should see the staff so that you can get a hold of the rules, particulary Rule 4 which relates to a contested case procedure and Rule 6 which relates to special permits. And, of course, you should, you can get, probably consult with legal counsel on what you€re doing or what your rolde should be. 36 FUJIKAWA:Thank you, Mr. Torigoe. Any other questions, Commissioners? We had a motion on the floor. So, Staff, you may go ahead with the roll call. DARROW:Thank you, Mr. Chairman. Commissioner McCall? MCCALL:Aye. DARROW:Commissioner Springer? SPRINGER:Yes. DARROW:Commissioner Alameda? ALAMEDA:Aye. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner Siracusa? SIRACUSA:Aye. DARROW:Commissioner Smith? SMITH:Aye. DARROW:And Mr. Chairman? FUJIKAWA:Aye. DARROW:The motion passes, seven to zero to hire a hearings officer. FUJIKAWA:Thank you. You€ll be informed, Steve. The discussion ended at 12:24 p.m. Respectfully submitted, Sharon M. Nomura, Secretary 37