2025-04-14 UNITE HERE Local 5 Testimony

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of the setback distance. Furthermore,the existing structure encroaches around two feet into a ten feet "future road widening setback area". The appropriate thing to do now is remediate the encroachment, not give an after-the-fact variance.A Wes Thomas Associates letter informing DPM Acquisition LLC(the current landowner) of the encroachment was dated December 16, 2022.This was months before the two parties entered into a sale and purchase agreement on May 1, 2023, and two years before the LPC approved the SMA permit. As stated above, applicant discovered the issue in the "due-diligence" period but a more specific time frame of their awareness is not disclosed. The applicant attempts to pass "culpability"to County of Hawaii stating, "As such there is culpability on the part of the county in not only allowing or permitting the improvements but subsequently certifying that they were acceptable at their existing location."Applicant claims it is not "fair"that "innocent and unsuspecting parties be made responsible for this costly reduction" The Wes Thomas letter indicates the applicant and/or landowner should have known of the encroachment issue yet still decided to enter into the purchase and sales agreement. In fact,the Wes Thomas letters offers a suggestion that landowner research the legal argument that the 15 feet encroachment of a 20 feet setback is "de minimis" under County Ordinance and Hawaii Revised Statutes. We offer these recommendations: a) Recommendation:The County should request a copy of the purchase and sales agreement to understand timeline of the parties' knowledge of the encroachment and obligations of the parties regarding the encroachment or parcel entitlement process.The County should clarify if the legal responsibility falls on the current landowner, applicant or land surveyors to remediate the setback problem.The County's responsibility now is to remediate the issue now that it is known to the County. b) Recommendation:The County should ask the applicant when and how applicant learned of the encroachment issue. Our search of the public record didn't reveal the exact date of awareness by the applicant, only vague references were given. However, it is clear at the very least,the landowner was made aware in the December 2022 letter from Wes Thomas Associates. c) Recommendation: Clarify if landowner communicated knowledge of the issue prior to the sales and purchase agreement entered into in May 2023. The applicant's request for the zoning variance is inappropriate, sets bad precedent and is bad planning policy for the following reasons and we offer more recommendations to serve public interest: The encroachment was a known issue prior to SMA approval, but our search of the public records shows that debate around the encroachment was limited. For example, Commissioner Noborikawa raised the question during the December 19, 2024 LPC meeting and the applicant's representative responded to it. But there was no substantive concern raised by the Hawaii Planning Department(HPD) staff member presenting on the project.There was also brief reference to the encroachment in the VD Background Report" dated November 23, 2023 that said a setback zoning variance will be requested in the future. The zoning variance request is a judicial decision that should be debated by stakeholders; it should not be treated as a ministerial approval tied to the completed SMA permit. a) Recommendation: It was inappropriate that a SMA permit process was conditioned on a yet-to- occur zoning variance application.The County planning department should not allow this type of precedent. If knowledge of the encroachment (either by applicant and/or landowner) pre-dated the purchase agreement and SMA plan application,then the setback encroachment issue should have been resolved first.The LPC made no promise to the applicant that approval of the variance