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next one – so what we were finally able to do is come to an agreement that it would look like, like
<br />this; and so what Doris agreed to do was actually move back off the, off the shoreline – see this is
<br />the certified shoreline and her property line – so she agreed to move back so that there would be
<br />access, you know, from the right-or-way and to the north. And so that was the plan that we were
<br />going to go forward with in the application for the SMA and the shoreline setback variance.
<br />
<br />Then – would you mind again showing them this photograph – then there was this big surf event
<br />when the surf came and destroyed portions of the wall here in front of the right-of-way and created
<br />this very dangerous situation where the, there was actually crumbling, the front wall was actually
<br />crumbling. And so what we did at that point was we went to the County, as the Director has
<br />pointed out, and we said, “Look, we can go ahead and repair this on an emergency basis because of
<br />the storm damage,” because they actually had to block off the right-of-way. And so Doris, you
<br />know, had Greg file the application for the emergency SMA and shoreline setback variance, and
<br />that related to from here to here. And it’s no accident that it’s here because, as you can see, this is
<br />where the shoreline, the certified shoreline, goes mauka, I mean, goes makai, right, goes makai. So
<br />in this area this, you know, this is all vegetation, this is all hau and kiawe and naupaka, and so the
<br />idea was that if you do the repair in this way and if we drop back here, then she is assured that
<br />people who use the right-of-way can get to this area here without, you know, without having to go
<br />makai of the shoreline. And so, great, so she makes that application and the Department approves
<br />that application, and when they approve that application by a March 28, 2011, decision, they make
<br />the finding that “the proposed project will not hinder lateral access along the shoreline and will not
<br />have an adverse impact on beach processes or on public views,” and they impose 13 conditions on
<br />this shoreline setback variance and the SMA, not including this Condition 3, you know. And so
<br />they find that it doesn’t impair access and they don’t impose the condition. And so we thought,
<br />honestly, that when they got the emergency approval, that it legalized the whole wall, because we
<br />figured a wall, you know, a wall is a single structure, you know. So we felt when we got the
<br />approval, it related to the whole wall, and so we tried to confirm that with the Department and the
<br />Department said, “No, it only related to this portion of the wall and not to this portion, and you still
<br />have to apply to legalize this portion.” And we said, eh, then we said, “Wait a minute, so why
<br />would we do this part, right, if you can still deny that part,” you know. I mean we were going to
<br />wait, you know, and they said, “Well, look, you know, we’ll agree to support your application and
<br />we’ll agree that you don’t have to recertify the shoreline and we’ll go, you know, we’ll go ahead.”
<br />So we made another agreement that Doris would go ahead with applying for the legalization of this
<br />portion, and the Planning Department would support it, and that we would then proceed.
<br />
<br />And so, what they’ve done is, it seems like a simple condition, you know, this Condition 3, but what
<br />Condition 3 says is that if there’s high high-waves – whatever that means, I’m not sure there is any
<br />real content to that – that she can’t prevent people from being anywhere in this area, because they
<br />say it’s up to the 40-foot setback. So basically, if someone decides that they don’t want to get their
<br />feet wet, then they can, they can be anywhere in this area because, because they say she can’t
<br />impede people from using the 40-foot setback for access, and it’s not limited, you know, as to the
<br />time of day or anything else. So what we have is, you know, (Mr. Vitousek briefly discussed the
<br />property occupant’s personal security being jeopardized by this condition as proposed), and we
<br />have the Planning Department proposing a condition that would allow people to walk in this whole
<br />area, night or day, if they feel that somehow they can’t get from here to here without getting their
<br />feet wet. And that’s just not really a reasonable condition, you know. What -. Could you go back
<br />to the aerial photo, please? And the reason it’s not a reasonable condition is because it’s completely
<br />unnecessary. If you look, this is where the right-of-way comes in, okay, and the area makai of the
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<br />EXHIBIT B
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