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HomeMy WebLinkAbout2014-09-04 Hearing Transcript-Scott Watson Amend SMA 450 WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT SEPTEMBER 4, 2014 Scott Watson (Amend SMA 450) A regularly advertised hearing on the application of was called to order at 3:57 p.m. in the County of Hawai‘i Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i with Chairman Myles Miyasato presiding. COMMISSIONERS PRESENT: Myles Miyasato, Charles Heaukulani, Gregory Henkel, and Raylene Moses. ABSENT AND EXCUSED: Stephen Ono. ALSO PRESENT: Duane Kanuha (Planning Director), Margaret Masunaga (Deputy Corporation Counsel for the Windward Planning Commission), William Brilhante (Deputy Corporation Counsel for the Planning Director) from 1:02 p.m., Daryn Arai (Planning Program Manager), Jeff Darrow (Staff Planner), Maija Jackson (Staff Planner), to 6:30 p.m., Christian Kay (Staff Planner), Sarah Hata-Finley (Commission Secretary), Kim Tanaka (Secretary), to 4:30 p.m., and Melissa Dacayanan (Planning Commission Support Technician), to 4:30 p.m. And approximately 22 people from the public in attendance. APPLICANT: SCOTT WATSON (Amend SMA 450) Continued hearing regarding applicant’s request to amend Condition 11 of Special Management Area (SMA) Use Permit No. 450, which originally allowed the development of an 11-lot subdivision known today as the Pepe‘ekeō Point Subdivision. Condition 11 currently does not allow a house or other substantial structure to be built closer than 40 feet from the top of the sea cliff fronting the ocean. The amendment request is to change this building setback point of reference from the top of the sea cliff to the March 4, 2010 certified shoreline which is located makai, or seaward, of the sea cliff, and applicable to the applicant’s lot only (Lot 23). The subject property (Lot 23) is located at the end of Sugar Mill Road, just east of the Sugar Mill Road/Beach Road intersection, Pepe‘ekeō Point Subdivision, South Hilo, Hawai‘i, TMK: 2-8- 008:151. MIYASATO: Item 7 on the agenda. Unfinished Business, Scott Watson. rd JACKSON: Mr. Chair, this is a continued item from your July 3, 2014 hearing. As you know, we did a site visit today out at the property, and I believe I did do the presentation at the July hearing, but if the Commission would like another orientation, I can go ahead and do that. MIYASATO: Commissioners, anyone need to be reviewed? We’re fine, thank you. JACKSON: Okay. If it’s all right with the Commission then, I’d just like to go over testimony that you have received since the last hearing. 1 EXHIBIT G MIYASATO: That’s fine. JACKSON: So, we have from the Applicant, we have a letter dated today that says Summary of our Positions at the top. I think it’s like a 6-page letter. We have also from the Applicant, a one- page letter that starts with Chris Yuen’s recommended language for amended Condition No. 11. th You should have a letter dated September 4 from Patricia Tummons, that’s a one-page letter. rd You should have a five-page letter dated September 3 from Christopher Yuen. A one-page thth letter with a picture attached from Cory Harden dated September 4, I’m sorry, August 28. th And you should have a one-page letter dated August 28 from Deborah Chang. You should also have—this may have been handed out at the previous hearing, but you should also have a letter from Department of Water Supply, a letter from the Fire Department, a Circuit Court ruling nd dated August 22, 2013. An agreement that was entered into by BJ Leithead-Todd for the County of Hawai‛i, and Steven Strauss, as the Applicant’s attorney, dated May 6, 2013. And, an nd e-mail from Christopher Yuen dated July 2, as well as a one-page letter from Deborah Chang nd dated July 2. And, if any of you don’t have that information, I have extra copies. Are there any questions? MIYASATO: Any questions, Commissioners? Okay, if nobody, there’s no questions for staff, we have four people signed up for testimony. Could I have Patricia Tummons, Chris Yuen, Cory Harden, and Ingrid Nishimoto. Could you all please your right hand? Do you swear or affirm to tell the truth on this matter now and before the Hawai‛i County Planning Commission? TUMMONS, HARDEN, NISHIMOTO: Yes. YUEN: I do. MIYASATO: Could you please, you can start, could you please state— TUMMONS: Did you want Tummons to start first? MIYASATO: Okay, you can go, yeah, that’s fine. TUMMONS: Oh, okay. Thank you. You should have my written testimony. Is this on? Yeah, okay. I ask you to review this application in light of— MIYASATO: --excuse me— TUMMONS: --yes— MIYASATO: Could you please state your name and residence? TUMMONS: Oh yes. Patricia Tummons at 421 Ka‛anini Street in Hilo. I ask that you view this application in light of past conduct of Mr. Watson and then deny it. In 2002, he requested a subdivision of a lot adjoining Pauka‛a Stream. One of the requirements in the SMA permit was that he provide public access to the stream. While he provided the County Planning Department 2 EXHIBIT G with maps showing where public access would be allowed, the house and accompanying structures, including a swimming pool and basketball court, were built with no provision for public access. When the Planning Department investigated this years later, the Planning Department determined it would not be practical to require him now to fulfill that requirement. In that project at Pauka‛a as well as another Watson development at Nīnole, the Planning Department issued numerous fines for work that was done without authorization. One violation, an unpermitted helipad at Nīnole—now, I say in my testimony that it remains unresolved. However, I was informed today by Steve Strauss that that had been resolved. I went to the Planning Department to confirm this. The last notice that Mr. Watson received concerning this violation in 2013 stated that fines as a result of the Planning Department’s own rules were approaching $27,000, and that they were continuing to accrue so long, daily, so long as this violation was unresolved. He ignored those letters until April of this year, and at that time, he and Mr. Brilhante apparently resolved the violation with payment of a fine that was 10 cents on the dollar--$2,300. And the Planning Department was completely left out of the negotiations for this fine. In fact, one of the planners had to e-mail Mr. Brilhante asking what this payment was for. In light of these and other infractions, it’s prudent to take a hard look at statements made earlier today by Mr. Watson when he stated, for example, that his lot extends to the ocean. He was told when he was purchasing it that it was an oceanfront lot. This is contrary to the legal description of the property where metes and bounds description clearly indicates it does not extend to the shore. I point this out since if Mr. Watson’s claim of ownership of the grassy ramp down to the ocean is accepted. There’s nothing but reliance on his goodwill to ensure that public access will be allowed. That reliance has not been earned. Yet, another concerned raised, is that this will almost surely encourage other property owners in this subdivision to seek to extend their own lots seaward at the expense of public access. SMA Use Permit 450 was a product of years of negotiation. It was in place at the time that Watson and his partner purchased the land, and as a long-time developer and an experienced attorney, respectively, they certainly should have been aware of the constraints it imposed. Thank you. MIYASATO: Chris. YUEN: Good afternoon, Members of the Commission. My name is Chris Yuen. I live at, my address is Post Office Box 5, Nīnole, Hawai‛i 96773. I know you’ve had a long day. I’ll try to keep this brief. This really, I see in two parts. There is a public benefit toward the relocation of the easement. This is actually something that I had worked on when I was Planning Director, and unfortunately, I wasn’t able to get this done while I was the Director. The path that the public has been using all these years is different than the metes and bounds of the actual easement. The easement is walkable. It does not pinch off as it stands, but you have to go down a little slope. I think you saw this on the site visit today. You have to go down a little slope, and there’s one point in front of the proposed house site, where it’s perhaps seven feet wide—a little bit narrow. The public has been going along Beach Road, and then turning right to get to the public access and this is where the easement would be relocated. 3 EXHIBIT G The other, probably the more difficult part of this, is the amendment to the setback. And, what basically the shoreline setback clause—basically, what justifies this is that this really is a physically unique situation where you have this ramp area between the sea cliff and the house site. And, there is, according to the surveyor’s markers, there’s 50 to 55 feet between the actual eroding, potentially eroding, portion of the sea cliff and the house site, which is what we were looking for when this permit was originally granted in 2008. The, there are a number of lots that are actually covered by an entirely different clause as far as what the setbacks should be. I do want to say that you cannot pass this with the language that he proposed as far as the amendment. It has to be changed. The amendment that he had proposed would actually change the wording of the shoreline setback for the other ten lots in the subdivision. This isn’t actually in the application nor is it on your agenda, and so you clearly can’t do that today. It has to be limited to this one lot. And, the language—I did suggest some language that’s a little bit different because if you accept his language, you could potentially build a house that’s actually at the foot of, at the foot of the cliff or along, that’s actually on the cliff, if you accepted the language. So, I do not—I think that the language that the, Steve Strauss has presented does work. I do think and acknowledging Pat Tummons’ testimony, that the Planning Department will have to be vigilant to implement the public access and the other conditions of this permit in this case. MIYASATO: Cory Harden? HARDEN: Cory Harden, Box 10265 in Hilo. Kind of summarizing my written testimony, and I hope the picture of the heliport has gotten passed down. I’m kind of surprised you folks are— continue to consider requests from Mr. Watson cause he keeps violating land protection laws over and over. You know, sometimes when people are bad actors, you just, you know not to go on with permits. Some of the things that Pat Tummons mentioned, there was unpermitted work on a house on the north side of Pauka‛a Stream in 2002, two unpermitted kitchens in 2013, the unpermitted heliport that Chris [sic] talked about, and for that estate, he cleared over seven acres of mac nut trees without a permit, did grading and digging in the shoreline setback area with no permit, concrete, digging trenches, no permit. And he let some soil mounds erode that probably eroded into the ocean and built the largest residential pool ever according to him, with no permit. And originally, at one point he told the County the place was going to be a sod farm. I also would like to know why Watson wrote the Planning Department a note saying Mayor Kenoi asked if you could “cc” him all my info on this matter. And this was after he, Mr. Watson, got fined for several violations. I hope Mr. Watson understands his buildings might fall off the cliff edge. When I mentioned this item to two people, they’ve said oh yeah, I know of a house in Hāmākua that just fell off the edge, and then a second person said oh yeah, I know of another house that fell off the edge recently. And I grew up on Honoli‛i Pali and we had like 15 feet of hala trees between us and the ocean, and I heard those are all gone now. That all fell down into the ocean. I’m also really disappointed that Steve Strauss is representing Mr. Watson. I had hoped Mr. Strauss would, was a defender of the environment after he worked on the Hu Honua issue so I’m 4 EXHIBIT G really surprised to see him here. So, I just hope you’ll all act in the interest of preserving the land and enforcing the laws that protect our land. Thank you. NISHIMOTO: My name is Ingrid Nishimoto, and I live, P.O. Box 90 at Nīnole, Hawai‛i, and I wanted to speak about Special Management Areas. And I know that when you’re given a deed to property you own, that deed gives you specific information as to your property, its exact location, and it would give any specific information if there are other requirements that go with your property. And, you have that, and when you buy it, you’re a buyer. You know what you’ve gotten. And, now, with all of these amendments that come in, I really have some questions. I do know that that deed that for the Pepe‛ekeō property clearly stated that it was subject to not just one but two public access easements, so that was specifically stated on the deed. My questions are to the words “special.” Special Management Area. Does special refer to the developer or the owner of the property. Does special mean that property goes to the special person with very special ideas on what to do, and they do not have to follow all of the building rules and regulations that the rest of us do. Is that what special means? And, I know that Judge Hara, former Planning Commissioners [sic] Chris Yuen and Duane Kanuha, all said no for some of the changes that needed, that the developer wanted to do. So I wondered if special means the special developer is so special they do not have to follow any rules, but to me, I think special refers to the land. It was given that, that designation--Special Management Area, for specific reasons. And it wasn’t just done light-heartedly. When it was done, it was done with consensus and with an understanding of the environment and where that, where it is located. It makes me think of, you know, times when you go shopping, and you stand in line, and you see this child that is whining and throwing a fit. They want a candy bar. They want cookies. And then you see some times the adult will say, no. And then the child learns an important lesson. They learn that no means no at certain times. And then other time, you’ll see it when the child is throwing a tantrum that the adult will just toss in the candy bar and the cookie, and the child is happy. And yet you realize it doesn’t work that way because as time goes on, there will be more and more whining. They’ll be more and more problems. And it just does not work. And already, Scott Watson has developed three properties along the Hāmākua Coast. He hasn’t even gotten beyond Maulua Gulch yet. But out there in Nīnole, I do know that there have been landslides within the last several years very close to that property. And, that pool is not very—about 700 yards away. So, I don’t know, but I—to me, special means there’s a special reason for this land to be considered a management area and a conservation area in Nīnole, and it does not mean that anyone can come in and buy it and do whatever their own special ideas are. Thank you. MIYASATO: Thank you. Commissioners, do you have any questions for the Applicant—or any of the testifiers? Excuse me, could you please raise your right hand? Do you swear or affirm to tell the truth on this matter now before the Hawai‛i County Planning Commission? STRAUSS: I do. OLYMPIA: Yes. MIYASATO: Could you please state your names and residents? 5 EXHIBIT G STRAUSS: Yes, I’m Steven Strauss. I’m the attorney for the Applicant. I reside at 29-2173 Old Māmalahoa Highway, Hakalau. OLYMPIA: My name is Gary Olympia. I am the Managing Member of Hilo Project LLC. My residence is at 880 Georgetown Place, San Jose, California. WATSON: My name is Scott Watson. I reside at 27-102 Lali Street in Hilo. MIYASATO: Do you have any comments? STRAUSS: I do. Thank you, Mr. Chair. I wanted to start with, kind of out of place, but what we’re asking for after taking into account, the written testimony from Mr. Yuen, which was shared with us earlier, and then I’ll go backwards into the Agreement and how we got here. The language that we would now be seeking the Planning Commission to substitute for Lot 23 for Condition No. 11 is in the first full paragraph. The underlined part is what was—I added, after reading Mr. Yuen’s comments, and that, so the underlining is not something we would include. It’s just to indicate to Mr. Yuen what additional language that I had suggested would be acceptable to the client and it appears to be fine with Mr. Yuen as well. I’ve also shared this with Mr. Kanuha and Mr. Brilhante, the Planning Director and the Planning Department attorney. So, the concern that Mr. Yuen had about the language that was originally proposed could actually lead to additional development even though the footprint of the house is already there, is resolved, we believe by the language here. And, essentially, what it would do is substitute for this lot and this lot only, the 2010 certified shoreline, which as the Commissioners will recall from today’s visit, is the actual shoreline. That’s the shoreline that is accessible at the bottom of the bluff where the ramp goes down where there were former plantation landings and structures before, is frequently not covered by water and is usable for fishermen, kayakers, people that just want to swim and enjoy ocean, there’s really not very many other accessible, if any other accessible areas, within miles of this site that someone can safely get to the ocean. The use of the March 4, 2010, shoreline is consistent with the Planning Department’s current position that they have agreed—and I’ll point that out to you—that for purposes of the consolidation/resubdivision and the relocation of the public access that the 2010 shoreline, certified shoreline, is what should be used. Now, the setback that we had originally proposed would be forty feet back from that consistent with the maximum setbacks that are established by the Planning Commission and enforced by the Planning Director. The current language that we would propose and acceptable to Mr. Yuen would be that the shoreline of December 28, 2002— it actually may be December 22. I have to go back and look. It’s hard to read from the map, but we do have that, and if I can ask Mr. Darrow to produce that certified shoreline, it will help illustrate what we’re looking at. Maybe you can hold this up, Scott. When the shoreline was certified in connection with the subdivision application by Continental Pacific, there was not a formal survey done at that time. Instead, there was an aerial photograph that was used and some lines drawn on the photograph, and the applicant said let’s place the shoreline here. And you’ll see along the redline is what was signed off by then Chairman of the Board of Land and Natural Resources as the, as the certified shoreline which lasts for a year. 6 EXHIBIT G When the Planning Commission granted the SMA permit, they fixed that or attempted to fix that in place forever in saying that’s going to be the shoreline regardless if it’s later certified. The problem arises, is that when you move the shoreline inland, and you provide access based on that inland shoreline, there’s a danger as in this case that it cuts off public access to the actual shoreline so when you define the shoreline as the top of the cliff, you don’t get the shoreline out down at the bottom of the cliff anymore which actually exists. And this was treated as if that did not even exist. So, the area that you saw down there this morning with, with the kayak and the landing and the ramp that goes down, none of that is part of what was termed the certified shoreline in 2002. So, the amendment is designed to allow public access to that shoreline in a formal way, and to recapture the actual shoreline. And for our purposes, for the setback issues, we would agree to use the 2002 shoreline which you have, which is in a map that was provided to you this morning. As the top of the, along the top of the bluff, sometimes they call a sea cliff or pali, and use that shoreline as the setback area only in areas where the actual shoreline exists below. So, the shoreline at the top of the pali where it is inaccessible below remains in place. The 2010 certification kept that portion of the 2002 certified shoreline in place. The change is the addition of the shoreline down below. So, that would change the setbacks that the County has sought to enforce, and I have to give you a little history here. There’s been some question about whether the developer knew this or knew that at the time. They’ve already submitted testimony, sworn testimony, that they did, were not aware of SMA No. 450’s setback requirements at the time that they got their Building Permit. Neither was the Building Division, which told them where they could put the, the foundation for the building, and that’s what was permitted. Neither did the Planning Department, which originally tried to impose a 50-foot shoreline setback, and a 50- or 20-foot sideyard setback for a parcel that didn’t exist, and then walked back those positions later on. There’s an agreement dated May 6, 2013, that you have that resolves all prior issues. The County Planning Department is satisfied, and I need to correct something. Other people have given you testimony that there may have been some impact on public access. There was never any violation dealing with public access at all. There was never any cut off of public access. Public access has been provided throughout, and it has been improved, as recognized by the County’s own Agreement which states in the Background Report first on Exhibit 4, the current public access easement has gaps that do not allow for continuity for pedestrians to access the shoreline. And, in Exhibit 8, they expressly state that the current public access actually prevents access to the shoreline. That’s because of the use of the 2002 certified shoreline in a place that ignored the actual shoreline. Not having impaired any public access, I think you’d be really remiss in holding the developer accountable for something that has not happened. With respect to the public access that is being proposed—Scott, if you would get that—that board behind. Okay, as you saw this morning, there is no existing public access that runs from Beach Road in the subdivision to the shoreline, to the, either the sea bluff or all the way down. This portion exists. This portion does not. This portion exists. This portion does not. And when I say this portion, I am referring, just to make a record for the transcript, I’m talking about the curved portion at the entrance that follows along 7 EXHIBIT G the curve of Beach Road once you enter into the gate, and then the long portion in green that has a jog in the middle that runs along the driveway, and is actually situated on the driveway. And then, in the next condition that we would propose consistent with Mr. Yuen’s comments is quoted in that middle paragraph that you have in front of you, but for the purpose of the audience, that, in exchange—well, there would be a cooperation of a new pedestrian public access, and that’s just what I identified for you. That’s the green shaded area that is bounded by yellow lines, so you can distinguish it from the existing easements which don’t have yellow lines in their perimeter, that we would agree, and with the Planning Department’s cooperation, to convey that pedestrian access within 240 days after the grant of the amendment, should you choose to grant it. And that would also recognize and have as a condition, the Planning Department is authorized to place reasonable terms on the exact location of that easement. That has essentially already been worked out. This was already surveyed out in connection with the Planning Department’s wishes, and the Planning Department recognizes in several points in the Background Report that, and also in the May 6 Agreement, that this is a much superior access, an improved access. I don’t want to talk too much about the issue of whether there, whether you can actually make access to the shoreline by the area that you saw today. We disagree about that. It’s our position that it—you can’t, and that there is no, there is no document of record that provides for a legal access to that and it’s actually recognized by the County’s own statements. The last portion of that condition would also authorize the Planning Department to substitute for a portion of the proposed new access along Beach Road. This curve in Beach Road here if the Association that owns that road, and it has, it’s a 30-foot wide road in a 60-foot easement, if they were to provide access to the County. If we were able to, and we’ve had discussions with them because that’s an access that’s actually used by pedestrians along the roadway, rather than cutting into a portion of the property here, so, if we can get an access that is suitable and available for the Planning Department, and the Planning Department would be authorized to substitute that access which would essentially be in the area that just follows the curve of Beach Road in the easement. And, so that’s why that provision is in there. It would authorize the County to do that, the Planning Department with no further involvement from the Planning Commission. Now, the last condition that we’re proposing to be as part of this—you can put that down—as part of this amendment really addresses the trust issues that others have brought up based on Mr. Watson’s prior dealings that have nothing to do with this case, but have to do with his prior dealings, and we’re not saying trust us. We’re saying we will provide to the County a quitclaim for the easement—of the portion of the property that extends all the way down to the shoreline that doesn’t currently exist. So, that would be quitclaimed to the County within 240 days. It would be sooner but the County Council has to actually accept that easement, so there’s little bit of delay in time in getting that done. And, the area down here in the actual shoreline has already been surveyed, and it would be a simple problem according to the surveyor to just identify the easement that would be in that area, whether it’s 10 feet wide or a little wider would be subject to negotiation with the Planning, Planning Department. But the Applicant’s goal is to provide safe public access. There’s an issue that’s arisen as to who owns this property, and it is the Applicant’s contention that they own this property. Continental Pacific may say otherwise, but we’re willing to 8 EXHIBIT G quitclaim our interest, easement interest, in this property, and we still intend to obtain the property, clear title from the, Continental Pacific and we’ve been in direct negotiations with them to do that--essentially have them quitclaim any interest that they have. So, regardless from the standpoint of who ultimately is determined to own it, while we have accessed the ability to control access to that portion, we would agree during the period of dependency of that conveyance, until it’s actually given to it, to not restrict any pedestrian public access to and over such area. And no access has been restricted to this point—that has been made available to the public. Signage has been posted and people actually use it on a regular basis, so that would continue. You can put that down. So, that’s where we would start, which is where we would like you to end up, and this addresses the concerns of both the setback and what would happen in the future with regard to guaranteeing these accesses. Now, with respect to the—Jeff, can I ask you to one more time load another file for me? Sorry. With respect to the May 6, 2013, Agreement—in May 6, 2013, after an extended process in negotiations with the Planning Department, and having overcome a series of obstacles, and having satisfied violations—the County was satisfied—I came on board, I think it was about February 2013, and there were no further violations, and there have been none since February 2013, when I intervened on behalf of the Applicant, and committed that I would make sure that there would be no further violations. And we have had none, since then there have been no violations. This Agreement which is between the Applicant and the Planning Director deals with the existing lawsuit. It says you can either, we either suspend on the existing lawsuit that tried to establish what the shoreline setback really meant. What the limits of County authority are, and I think Mr. Heaukulani had some questions about that last time that I can try to answer later. I won’t try to presuppose those questions. But this Agreement recognizes that the access that we are proposing is superior to what exists on the ground now. And at that time, you’ll see—I’ll use this laser—the parties agreed to a 40-foot shoreline setback and they also agreed that that would be used from the 2010 survey. The parties still disagree as the appropriate definitions of shoreline and shoreline setback. We don’t have to resolve those issues now, and this would take care of it with the amended language with Mr. Yuen’s help that we’ve already provided to you. The Planning Department agreed that the landowner was following the requirements to mitigate SHPD issues, and that’s been done. There was no fine for alleged violation regarding a self-fence. That was resolved. There was—agreed that there was a temporary activity—agree that there was a temporary relocation of the public access to be consistent with the proposed consolidation/resubdivision. So what happened was at this time, the County said, yeah, we would like to use the proposed access. We would like to use it on a temporary basis. We want the public to be able to use it, and so that’s what we did, with no other agreements in place. No other commitments apart from this agreement, so that has been in use, actually even before May 2013, but the proposed access is identified here. The public has had the benefit for about a year and a half. It also required the landowner to submit a Special Management Area Use Permit Assessment Application which was done. That’s for the consolidation/resubdivision that redraws the property lines that allows for this public access. And for purposes of review of the pending 9 EXHIBIT G consolidation/resubdivision application, the Planning Department will accept and use the March 4, 2010, certified shoreline survey completed for the Special Management Area Assessment. So, that’s how we got to the County agreeing to use the shoreline including the actual shoreline as defined by the certified shoreline in 2010. So, we got beyond the use of claim that the areas that you saw, that the first access that you went, is where the shoreline actually is. For purposes of this subdivision and reconsolidation and implicitly the SMA permit amendment that we’re seeking here, the County has agreed that the shoreline is actually where the shoreline is in this section, and I’m pointing to the left hand portion of the photograph. And you will note that the reason we agreed to do this is because it provides—and this is what was signed off on from the County, it provides for an improved, superior access for the shoreline, and that’s what we’re about. Some people will say, no don’t let him change anything. Screw ‘em because of what Mr. Watson may have done in the past on some other area, and to those people, I would say, is it really worth it? Is that vengeful position really worth it when it costs an improved, superior access to the public. And, I think it’s really shortsighted to do that. There was another violation, people talked about violations that was deleted. The County found that the original violation, there was no violation. There were—NOV’s are Notices of Violations and NOVA’s are Notices of Violations Amended—you can see that they changed over time. The County would say one thing at one—then the Planning Department say one thing once and something later on—and this had to do with the County’s claim that without any, any legal basis, and Mr. Yuen can address this as well, the County, in order to try and impose setbacks on the area that I’ve indicated in this, along this pedestrian easement, in back of that, the County tried to claim that this parcel was actually owned by Continental Pacific, and Continental Pacific doesn’t own any parcel adjacent to it. They just said the remnants owned by that is not a legal position, and it’s something as Mr. Yuen states, is complicated, and the County doesn’t, doesn’t really belong in getting involved in who owns that. Their position should be to get improved public access through any means they can. The Agreement also required the landowner to submit an application and revised plot plan that’s been accepted by the County. All the, all the Planning Department, all of that has been covered and disclosed, and then finally, there was a $500 fine that was imposed for some past soil violations. So, that’s where we are with our current status with the County. There are no existing violations. There are no pending violations. This was resolved. It was resolved in a manner to which the County committed, yes, we would like to propose that we obtain this improved public access. We want that from you. The County—the Planning Department officials went out to the Pepe‛ekeō community, presented this proposed plan. I was present. I did not speak, but I was present at that. April Surprenant was present there. I don’t know if Daryn was present there as well. And as it stated in their Background Report, it was generally well received by the people looking at the, from the community that were looking at access issues. And, now, Jeff—I just need the last, the last one. There we go, okay. In the summary of our position which is not on here, there are references to pages of the Background Report that support what I’ve told you. It’s not just me saying this. 10 EXHIBIT G This is what the County Background Report actually states. And, if we look at Pages 2 and 3, Paragraph 6, and I highlighted the ones that I provided to you. There was a discussion about where this survey shoreline which we claim was inaccurate came from, and that this ended in misidentification and may have been due to heavy vegetation not being cleared away prior to survey which reduced visibility in the area. And I think Mr. Yuen also addressed that and said the area was heavily vegetated at that time, and the landing was not, or the ramp was not included in the consideration of the public access. Okay, in the Background Report, it talks about approval of this amendment would establish a 40- foot setback line from the 2010 certified shoreline. That’s true, but for the amended language consistent with Mr. Yuen’s position that we presented you, so the 2010 certified shoreline, the setback line where it exceeds 40 feet. And if you can increase this, when you review it, this is what we’re driving at. When there’s a difference between the existing shoreline as certified in 2010 and the 2002 shoreline, when this distance exceeds 40 feet, the proper setback under the amended language would be the 2002 certified shoreline, and so no construction could occur makai, oceanward, of the 2002 certified shoreline. Mr. Yuen raised an issue as to that if we just used 40 feet back from the shoreline, then there’s a potential for some additional development that could occur in the, in that sloped area, and we’re agreeing that, you know, there should be no additional structures built in that area. So, we’re content to bring the shoreline setback all the way to the 2002 line as shown in the area where the 2010 certified shoreline increases the width of the shoreline area to by more than 40 feet. If you see on, this is on again the County’s Background Report in Paragraph 8, regardless of what may have been told to you today, the County stated that there are gaps in the existing easement alignments that do not provide continuity for pedestrians to access the shoreline. Mr. Yuen and I may disagree about that and whether that exists or not. This is the County’s position, and this was our position as well. It doesn’t really matter because what the County has recognized and what we’ve recognized is the proposed access that we’re asking you to approve through the SMA amendment that we commit to, provides a superior, improved superior access, regardless of whether those gaps exist. Now, there was also a reference on, about an agreement with Continental Pacific. I just want to state that that Agreement is not of record. Not a record title for this parcel. And, again, people may disagree about what that means, but it’s not part of our title, and so the woman who suggested that we knew that such an Agreement exists--we didn’t. It was not present, and it cannot be imposed on us. The County may have a lawsuit against Continental Pacific for damages, but they cannot compel specific performance. They can’t force a subsequent lawyer— a subsequent buyer who purchased for value without knowledge—as Mr. Brilhante would likely tell you as well, to accept a condition that was in an agreement with a prior developer and that was not of record. There was also concern, I reviewed in the transcript the last time, that, about concerns about building what you want and then asking the government agency to help you save you from yourself. That’s not what happened here. There was no violation of setbacks until the County advised later on that there was a setback problem. There was no setback problem when it was first, the structure was first plotted, was first approved by the Building Department, and then 11 EXHIBIT G only later after the County became aware of SMA No. 450, and if you look at their Background Report, they admit that it was not apparent to them at the time that they first dealt with the permitting for this project. So, neither the County Planning Department nor the Applicant was aware of the setback requirements that were imposed by SMA No. 450, and the County Planning Department did not originally use those setbacks in determining where the setback should be for the structure. Only later did the County raise these shoreline setback issues. Excuse me—and finally I want to correct something that Ms. Tummons said. Ms. Tummons said that Mr. Watson ignored the fine, or the notice of violation relative to his helipad, from the County. That’s not true. Mr. Brilhante and I began negotiations upon receipt of that Notice of Violation and we made an offer, and there was some additional information that needed to be gathered and the delay was solely based on our negotiations. He did not ignore that violation. He was concerned about it the entire time, and that’s a—that’s what happened. It was not some, some instance of Mr. Watson just ignoring it. And, finally, there are some issues that people have raised about the project falling into the ocean. And if you look at the archaeological survey inventory that was submitted originally with the application, the areas that are being built on, encompass largely areas that have warehouses on them that were built in 1920, and the foundations were still there. This project was certified by a structural engineer, and any safety concerns have already been addressed, and the area that we’re talking about with, above the ramp specifically, is not even impacted by erosion—that erosion occurs down at the shoreline as you can see from where the shoreline is. So, those are my comments. If you have any questions, I’d be happy to try and address them or have the Applicants address them. HEAUKULANI: Steve, I had a couple of questions. You talked right near the end of your presentation about Agreement that was not of record. What Agreement were you referring to? STRAUSS: That’s what the County refers to in its Background Report. A Settlement Agreement with Continental Pacific, and under the terms of that Agreement, Continental Pacific supposedly says whatever is makai of this line, the County gets for access purposes. But, it’s not part of the CC&R’s for the subdivision. It’s not part of the subdivision approval. It’s not part of our deed. It doesn’t appear any where there, and it was only in a file at the County Planning Department that was located after this all began. So, it was not of record anywhere. HEAUKULANI: But, the SMA 450 permit, that is of record. STRAUSS: That is of—not in our deed. It’s not in record of our deed. HEAUKULANI: So you, I mean, that’s really my question, is—you know, I don’t recall the comment about saving Mr. Watson from himself, but I do recall this Commission being individually and collectively concerned by a series of applicants coming in here after they had violated a term of their permit and asking for the amendment to happen. Now, you’ve said today that your clients didn’t know about SMA 450, Condition 11 until the Building Permits were 12 EXHIBIT G pulled, and in your summary, until construction of the residence began. When did they know about SMA 450, Condition 11? STRAUSS: I’ll have Mr. Olympia address that. OLYMPIA: Commissioner—Gary Olympia. Tell me--briefly state as a premise, I went to the title company, and I spent almost two thirds of a day going through the preliminary title report with the title officer. I then proceeded the next day to spend two thirds of a day at the Building—at the Planning Department and was provided 2-1/2 bankers boxes worth of files regarding the subdivision that Continental Pacific did. I went through the preliminary report, the title report, and the CC&R’s with the title officer. Nowhere in any of those documents is there any reference whatsoever to SMA 450, Condition 11. I knew nothing about it. And, the first time that we became aware of it was when the Planning Department sent a letter to myself and Scott, and referenced 450. I knew nothing about it before then, and they knew nothing about it before then. And the proof in the pudding that they did not know is the fact that we had filed our SMA; we had filed a certified survey signed by the State; we had three approvals; we had our plans reviewed; we had a Building Permit issued all before any notice from the County of the existence of 450. And, in the Background Report of the Planning Department, they say unequivocally that they didn’t know about 450 either. And I reference you to specifically Page 7, Paragraph 17, Page 9, Paragraph 42, each in the report of the Planning Department which says they weren’t aware of it either. So— HEAUKULANI: Excuse me, I don’t mean to cut you off, but you’re not really answering my question. My question was very specific. When did Scott Watson or Hilo Project, LLC know about SMA 450, Condition 11? OLYMPIA: When the letter was received from the Planning Department— th WATSON: November 30. OLYMPIA: Yeah, that’s not right, it’s later than that. STRAUSS: It’s in their Background Report. OLYMPIA: Yeah, yeah, it was in November of— WATSON: 2012. OLYMPIA: 2012. And their certified letter that I was sent, that Scott was sent, and that was after we had you know been in construction for—for many months. HEAUKULANI: How many months? WATSON: Two and a half. HEAUKULANI: Where were you in the construction process when you received the letter? 13 EXHIBIT G WATSON: May I— OLYMPIA: The-- STRAUSS: Use the microphone. WATSON: Mr. Commissioner, we were right about to pour the slab. We had approval for the underground plumbing that was installed several weeks before. We got approval for the steel in the structure. It was ready to pour. The County came out, made a surprise inspection the day before I was about to pour it, and stopped us. They pointed out rule 450. We’ve been trying to resolve this ever since. It’s been almost two years. HEAUKULANI: So, you continued with the pour after you had notice? WATSON: No sir, no sir, everything stopped as of November 30th, 2012. OLYMPIA: And that’s important—we’ve done nothing with the Department’s consent in terms of pouring cement, doing anything out there without their consent. We have not continued and disregarded that letter. HEAUKULANI: But your entire affiliation with this property, you were aware that there was a Special Management Use Permit in play, right? OLYMPIA: No. HEAUKULANI: You didn’t realize that you were going to build in that location and that there was an SMA? OLYMPIA: I was unaware totally and completely, and I can look you in the face and honestly say we knew nothing about SMA 450. Nothing. Until that letter. And neither did the Planning Department. And I went through all of the files at the Planning Department— HEAUKULANI: Wait, wait, you’re saying that the Planning Department didn’t know anything about— OLYMPIA: --absolutely— HEAUKULANI: --the fact that there was a Special Management Area Use Permit in play? OLYMPIA: Yes, that’s exactly what I’m saying. And, if you look at their Background Report— HEAUKULANI: --I think that you’re referring to Condition 11 of the permit, but they certainly had knowledge of the use permit in place for construction out at that location. 14 EXHIBIT G OLYMPIA: Nope, they say at the two places that I quote in our summary of position. They say on Page 7, Paragraph 17 and Page 9, Paragraph 42 in the Background Report of the Planning Department that they were unaware of 450 and Condition 11, and we were, too. HEAUKULANI: But, that’s actually not what Paragraph 17, Page 7 says. It says they were not aware of the setback requirements. My question to you was not about the setback requirements in Condition 11 but whether you were aware that there was in place an SMA permit. OLYMPIA: I was not. It was not in our prelim. It was not in our title policy, and it was not in the files that I went over at the Planning Department. I don’t know what more I could do. You’re a lawyer. I was a lawyer at that time, and I was trying to do the due diligence to satisfy myself that we were doing what we were supposed to do. And, there was no condition or limitation ever placed on us until we received that letter after construction had started and after our Building Permit had been issued based upon the location of our residence. And if there’s someplace else you can look, I read the CC&R’s over a dozen times. It’s not in our title report. It’s not in our deed. It’s not in our preliminary title report. Nothing is referenced in the Agreement of Purchase, and as referenced and you can see, Page 2 of the Summary, if you read Condition 11 as quoted on Page 1 of the Background Report, it expressly states that the Applicant, Continental Pacific, shall inform all buyers of the setbacks established under this permit. The Aldersons who testified before you, Mrs. Alderson appeared before you at the continued hearing, and she said that they were unaware of 450 and Condition 11. But, it required that Continental Pacific are to notify—give disclosure of that condition to buyers. That’s an expressed condition of a document that we never received. I can assure you, if I would have seen it, and we would have known about it, we wouldn’t be here today. There’d be no reason for me to do it otherwise. MIYASATO: Commissioners, any further questions for the Applicant? KANUHA: Mr. Chairman? MIYASATO: Yeah— KANUHA: I have a—just a couple of questions here. One of the items in the Commissioners’ files is a copy of the court decision and order? STRAUSS: Yes. KANUHA: Yeah. Can you explain to the Commission how this relates to some of the, some of the questions maybe that Commissioner Heaukulani has been raising? STRAUSS: It really doesn’t. The court’s decision, well, the court case relates to the extent that if the public access realignment is approved through amendment of SMA No. 450 according to the language that we proposed, then the court case will be resolved. The—in the court case, we filed a motion for summary judgment which was denied, but it’s not denied with prejudice. It can be brought back again with some additional information. And Judge Hara had requested some additional information. But, the issues in that case are somewhat different, well, they’re 15 EXHIBIT G different than the issues here. They have to do with County authority to establish, to define what a shoreline is. They have to do with whether the County can establish setbacks, shoreline setbacks, greater than 40 feet, by something other than ordinance. That’s no longer a big issue because the Planning—the former Planning Director—walked back or attempted to impose a 50-foot shoreline on saying I can do it with no authority, and then she abandoned that position, so that’s not a significant issue in that lawsuit at that time. But, there is an issue as to whether the Planning Commission—and maybe others may disagree—but there’s an issue as to whether the Planning Commission can fix a shoreline for all time because the statute that allows for a definition of shoreline requires it to be certified by the Board of Land and Natural Resources. Now, maybe you can fix arbitrary lines, but to say we define the shoreline is something different, and the County has pushed the position in that lawsuit that it really can define what the shoreline is. That’s not consistent with how the Attorney General sees it because it’s a State law requirement. Now, the County can establish shoreline setbacks, but not the shoreline itself. So, that’s a remaining issue in the lawsuit, that doesn’t have to be addressed if this issue is resolved here at the Planning Commission. Those are separate issues but are still live issues. There’s also an issue as to whether a developer and the County can agree, and this is an issue that came up before, a question that came up before in your last hearing, whether the developer and the County can agree to establish a shoreline setback in excess of 40 feet without ordinance, and well, it seems that in some instances they could—there’s a case out of Kona where Judge Ibarra said you can’t, the County you can’t do that—if it impacts adversely the public interest. Because if it violates the public trust doctrine. So, when the County says we’re gonna use the 2002 shoreline, and that’s where we’re gonna make our setbacks, the problem is that it ignores the land down below and so it actually as the County Planning Department has stated, you have discontinuity in the public access, and that’s a direct result from using that 2002 certified shoreline. So, a developer agreement and, with the County that says we’re gonna use a shoreline in excess, a shoreline setback in excess of 40 feet, which is an issue in this, was an issue in this case, may be upheld so long as it is in the public interest. But, when it is not in the public interest, it will likely not be upheld under the public trust doctrine. Again, that’s another issue that goes away if the Planning Commission adopts the proposed realignment through the amendments that we propose. KANUHA: Well, actually Steve, I was trying to link some of the information in the Judge’s Decision to the questions that Commissioner Heaukulani was asking, yeah? Because in the Decision portion of this ruling, there’s language here that both parties acknowledged that the SMA permit conditions became restricted covenants burdening the property. STRAUSS: I don’t agree with that determination made by the Court. KANUHA: But that’s what the Decision says, right? STRAUSS: That’s what this non-final judgment says. KANUHA: But that’s what it says. STRAUSS: That’s what this non-final judgment says, that’s correct— 16 EXHIBIT G KANUHA: --doesn’t it, yeah— STRAUSS: But, that’s not a final judgment. KANUHA: Correct, but doesn’t it also say that— STRAUSS: And let me add one more thing to that, Mr. Kanuha. At the time, the Court did not have the deed in front of it. KANUHA: Okay, that’s another area I guess I want to get to. You know, because it also goes— there’s other sections of that Decision which talked about successors and assigns of the subject property are bound, you know, by conditions of those, the SMA permits. Correct? Yeah. STRAUSS: We don’t disagree with that. The disagreement is that when the SMA condition itself violates State law, that it violates State law both for the successors and assigns as well as the original party. KANUHA: At today’s field trip, we handed out this— STRAUSS: I’ve seen it— KANUHA: --yeah, the map, right? STRAUS: Yes. KANUHA: Which is actually Planning Department’s Exhibit No. 4. STRAUSS: I assume so, yeah, the site plan. KANUHA: Right, the site plan. And on it, in between all of the different depictions of setbacks, property boundaries, etc., there’s an identification of a Lot 23— STRAUSS: --yes— KANUHA: --consisting of 1.18 acres. STRAUSS: Yes. KANUHA: Okay. Then there’s another description of a remnant lot consisting of .490 acres. STRAUSS: Yes. KANUHA: Okay, that’s—are these, are both of these properties owned by the Applicant? 17 EXHIBIT G STRAUSS: The--we would say yes. The property that is of record title is of the one point—I’m sorry, how many acres— KANUHA: 1.18. STRAUSS: Not the .490. But the description in the deed includes not just metes and bounds, but it is identified as an oceanfront property. KANUHA: So, whose property is it? STRAUSS: It’s our property. There’s no adjacent Continental Pacific property— KANUHA: So, if it’s your property, then there shouldn’t be any issue should the Commission favorably consider this. STRAUSS: In terms of what? KANUHA: I beg your pardon? STRAUSS: I’m sorry, issue in terms of what? KANUHA: I haven’t finished. STRAUSS: Oh, okay. KANUHA: Then there shouldn’t be any issue in some conveyance of the easement to that, over and across that remnant piece, if in fact it does belong to you. STRAUSS: That’s correct. KANUHA: Okay, and that’s some of the language that you put in one of your proposed conditions within 240 days. STRAUSS: Yes, we’re prepared to quitclaim an interest in that property. KANUHA: And if you, and if it turns out you don’t have an interest in that property, then what happens? STRAUSS: We would sue Continental Pacific for that property. KANUHA: So, in other words, it’s not resolved then. STRAUSS: That’s correct. That’s correct. However, we have been involved in negotiations with Continental Pacific and do not expect them to maintain the position. Mr. Yuen’s also going to them directly and told them you can’t maintain this position. You can’t have, you can’t claim that you have a remnant parcel that is pertinent to nothing. 18 EXHIBIT G KANUHA: Okay, that’s all I wanted to know. So, in other words, in other words, that’s still in question, so how can you make the representation that you’d be able to convey it? STRAUSS: Because we would quitclaim any interest that we have in that easement. KANUHA: And if you didn’t have any interest, then what? STRAUSS: We’d still quitclaim any interest we’d have in that easement. That’s what a quitclaim is. KANUHA: Okay, thank you. STRAUSS: Again, it is our interest to secure that property and that we’re committed— KANUHA: --you know, I think—I think at the end of the day, that’s the County’s interest, you know. Nevermind, how it gets there, but you know that’s where it really comes down to— STRAUSS: Oh absolutely, but the County doesn’t have standing to sue Continental Pacific for that parcel. Only we do. KANUHA: Well, I guess it depends on what that Agreement between Continental Pacific and the County allegedly shows, what they were supposed to be providing. Correct? STRAUSS: Not in the way I read the Agreement. It does not, it does not claim that they own the parcel in that Agreement. KANUHA: Okay, fair enough. STRAUSS: It doesn’t. It just claims that the County has access to makai areas. That’s what it claims. KANUHA: Okay, thank you. STRAUSS: Sure. MIYASATO: Any further questions for the Applicant? Okay, thank you. STRAUSS: Sure. OLYMPIA: Can I make one comment very briefly? You all must be— STRAUSS: He has to say yes or no. MIYASATO: Go ahead. 19 EXHIBIT G OLYMPIA: You all must be exhausted and saturated. I sat through the 3 hours that you listened to and very disturbing indeed. You have a very difficult job, so listening to this at the end of the day is also adding to that saturation, and I appreciate your patience. This is very important to us, and I would appreciate you considering the summary of our position points. It’s just a page and a half with references to the Background Report and to the Agreement with the County which I think pretty much focuses on the two issues that are important and that is, does what we are proposing to give to the County provide a usable, better, bigger access for the community. I think the answer is yes. And number two—did we know that we were violating an SMA 450, Condition 11? And we absolutely didn’t, and neither did the Planning Department. They wouldn’t have issued us all the approvals and the Building Permit that we got. And we would not have been in the position we are right now. We did not know. And never would I have allowed this to happen if I would have known of Condition 11. And I spent a lot of hours looking through files, being counseled by a title officer to avoid just what we’re talking about today. That’s not my style. That’s not what I want. I want to build something right. I want to build something conforming to all of your rules and regulations, and ever since that letter got to me, we’ve done exactly that. And we will continue to do exactly that. Thank you. KANUHA: Mr. Chairman? MIYASATO: Yeah, go ahead. KANUHA: One last question. The Agreement, effective May 6, 2013. STRAUSS: Yes. KANUHA: That’s not binding on the Commission, is it? STRAUSS: No, it’s not binding on the Commission. That’s between the Planning— KANUHA: --between the Department— STRAUSS: --yeah, it’s binding on the Planning Department and the Applicant, but it’s not binding on the Planning Commission and it doesn’t say that the Planning Commission’s going to do anything. KANUHA: Correct— STRAUSS: --yes. KANUHA: --thank you. MIYASATO: Any further questions, Commissioners? Okay, thank you. STRAUSS: Thank you. MIYASATO: Commissioners, any discussion? If not, I will accept a motion. 20 EXHIBIT G HENKEL: Mr. Chair, I’m a—you know from the visit this morning, I’m convinced that the shoreline access is improved with the amendment and I’m confident of Mr. Strauss’s explanation of the past events, so I would like to move that the Windward Planning Commission approve amendment SMA 450. MIYASATO: I have a motion on the floor. Do I have a second? HENKEL: With Condition 11 added to the motion. KANUHA: Commissioners, Mr. Chairman? MIYASATO: Go ahead. KANUHA: You know, just a point of order, the Department hasn’t provided any recommendation. We’re taking no position, and that was basically because we wanted the benefit of whatever you could glean from the field inspection today. That was the purpose of it, but before you—you know, there’s no recommendation. We haven’t taken a position on this. HENKEL: So, you’re saying that it is optional whether I include Condition 11 or not? KANUHA: You know, this is not to say that the Commission can’t take a position. Okay, they can take a position. If, you know, if it’s a favorable position, then I would hope that you know they provide the opportunity for the staff to present you with some recommendations of conditions, things of that nature, but you know, that’s your call for today. STRAUSS: Mr. Chair, may I make a clarification? MIYASATO: We’re in discussion at this point. STRAUSS: Okay, maybe somebody could ask me. HENKEL: Now, I’m confused as to the action legalese of this being a layman, but let me try to rephrase it, my motion. I would like to move that, to amend Condition 11 of SMA 450, well SMA, Special Management Area 450, Condition 11. KANUHA: Commissioner Henkel, you know just for—you know, just to help you along. The Applicant has submitted language to amend the condition. I believe it’s found on Page 2 of the Background, so if that language is that the language that works for you, then you could work off of that. And then, in addition to that, I believe the Applicant has also today provided several other proposed amendments that could be appetent. HENKEL: Since there hasn’t been a second yet, what I would like to do is withdraw the amendment for now and make a motion to go into executive session so that I can iron out the language with Corporate [sic] Counsel. 21 EXHIBIT G MIYASATO: We have a motion for executive session. Do I have a second? MOSES: Second. MIYASATO: All in favor? COMMISSIONERS: Aye. MIYASATO: Any opposed? Okay, we’re going into executive session. At 5:18 p.m., it was moved by Commissioner Henkel and seconded by Commissioner Moses that the Commission go into executive session to consult with its attorney regarding questions and issues pertaining to the Commission’s powers, duties, privileges, immunities, and liabilities, pursuant to Hawai‘i Revised Statutes Section 92-5. A voice vote was taken of all Commissioners present, and motion carried with four aye votes. At 5:21 p.m. the Commission went into executive session. At 5:29 p.m., it was moved by Commissioner Henkel and seconded by Commissioner Moses that the Commission go out of executive session. A voice vote was taken of all Commissioners present, and motion carried with four aye votes. The hearing reconvened for regular session at 5:30 p.m. MIYASATO: I’d like to call the meeting back to order. HENKEL: I have a motion, Mr. Chair. MIYASATO: Yeah, go ahead. HENKEL: In the interest of improved shoreline management, I move to request to approve the amendment of Condition 11 of Special Management Area 450 as outlined in Chris Yuen’s paper dated 9-4-14 with findings and conditions to be worked out after by the Planning Director and the Applicant. MIYASATO: Okay, I have a motion. Do I have a second? I have a motion on the floor. Do I have a second? If I have no second, amendment fails. The discussion ended at 5:32 p.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission 22 EXHIBIT G