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HomeMy WebLinkAboutMIN PC 2020/10/06 2018-2020CAT r T(1 ORDER: ROLL CALL: Present: STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS COMMUNI- C A TTnNC ORDER OF RESOLUTIONS: Committee on Planning 30th Session Hawaii County Building 25 Aupuni Street Hilo, Hawai i October 6, 2020 The regular meeting of the Committee on Planning was called to order at 2:36 p.m., in the Council Chambers, Hilo, by Ms. Ashley Kierkiewicz, Chair. Ms. Ashley Kierkiewicz, Chair Ms. Susan L. K. Lee Loy, Vice Chair Mr. Aaron S. Y. Chung, Member (came in later) Ms. Maile Medeiros David, Member (via videoconference from Kona) Ms. Karen Eoff, Member (via videoconference from Kona) Mr. Matt Kaneali`i-Kleinfelder, Member Ms. Valerie T. Poindexter, Member Mr. Herbert M. "Tim" Richards, III, Member Ms. Rebecca Villegas, Member (via videoconference from Kona) The Chair directed the Committee to proceed to the next order of business, Statements from the Public on Agenda Items. The following individual registered to speak and came forward when called by the Chair: Mark Van Pernis: Bill 200 (Comm. 1077); and Bill 201 (Comm. 1078), comment. CHR KIERKIEWICZ: Thank you. I'll be closing public testimony at this time and moving on to business of the day. The Chair directed the Committee to proceed to the next order of business, Communications. (There were none.) The Chair directed the Committee to proceed to the next order of business, Order of Resolutions. CHR KIERKIEWICZ: Mr. Clerk. PC -30 October 6, 2020 Res. 733-20: AUTHORIZES THE EXEMPTION OF CERTAIN CODE REQUIREMENTS, PURSUANT TO SECTIONS 2011-1-38 AND 46-15.1 OF THE HAWAII REVISED STATUTES, FOR WEST KAWILI STREET SENIOR/VETERAN HOUSING IN SOUTH HILO, HAWAII, COVERED BY TAX MAP KEY 2-4-057:030 HKI Kawili LLC seeks certain exemptions from certain code and zoning requirements to facilitate the development of 91 affordable housing units, a managers resident unit, and a community center, located at the corner of West Kawili Street and Kapi`olani Street. Reference: Comm. 1079 Intr. by: Ms. Kierkiewicz (B/R) CHR KIERKIEWICZ: Thank you. May I have a motion to forward Resolution 733-20 to the Council with a positive recommendation? Motion to Approve: Mr. Richards moved to recommend adoption of Res. 733-20. Seconded by Ms. Lee Loy. CHR KIERKIEWICZ: If I could please call forward Housing Administrator Duane Hosaka, and I believe representatives for the applicant are joining us via WebEx and they have a short presentation. (Note: At this time Housing Administrator Duane Hosaka came forward to address the members of the Committee.) MR. HOSAKA: Hi, Duane Hosaka, Office of Housing Administrator. So again we come before you for another 201H project. This is a West Kawili Street Senior Veterans Housing project with 91 affordable units and a manager's unit. This project will remain affordable for the 65 -year lease of the project. And I believe the exemptions that we're asking for is reasonable. And I hope, you know, the Council comes out with a favorable vote at the end. If you have any questions, I can help answer. I believe we have Bob Williams, Marian Gushiken, and Carlson Schultz. CHR KIERKIEWICZ: Thank you, Mr. Hosaka. I believe that the applicant had reached out to let us know that they had a PowerPoint. Jeanette, can we segue into that, please? (Note: At this time, EAH Housing Marian Gushiken, Carson Schultz, and Kevin Carney, came forward and provided a PowerPoint presentation via WebEx to the members of the Committee. For viewing of subject presentation, see the DVD copy of the meeting proceedings on file in the Clerk's Office. A copy of the PowerPoint presentation is made a part of the record, see Comm. 1079. 1.) Page 2 PC -30 October 6, 2020 MS. GUSHIKEN: We're happy to answer any questions. CHR KIERKIEWICZ: Thank you, Ms. Gushiken. Members, any questions for Mr. Hosaka or the applicant? Any questions or comments in Kona? Mr. Kaneali`i-Kleinfelder, go ahead. MR. KANEALI`I-KLEINFELDER: Thank you for your presentation. Thank you, Chair. Just have some simple questions. It looks like under "B", the Veterans' Center/Outpatient Clinic, is that where the 7-11 is currently? MS. GUSHIKEN: The 7-11 is actually just down the street, further off to the right. MR. KANEALI`I-KLEINFELDER: So across from "A" is Waiakea High School, correct? MS. GUSHIKEN: Across Waiakea High School as well as UH Hilo. MR. KANEALI`I-KLEINFELDER: UH Hilo above. I like that you've taken out your request to remove sidewalks because that area has a lot of kids in the mornings and the afternoons. And I appreciate you putting in those safety measures for the, you know, for our keiki. MS. GUSHIKEN: Right. MR. KANEALI`I-KLEINFELDER: Sorry, so "B" is not the 7-11 site? MS. GUSHIKEN: Well, "B" is the proposed future Veterans Clinic site. The 7-11 site is just further down, not quite next door, maybe it is. It is next door. MR. KANEALI`I-KLEINFELDER: It's next door? MS. GUSHIKEN: Correct. MR. KANEALI`I-KLEINFELDER: Okay, I got you, thank you. And then traffic studies, was traffic studies part of this? Because this is a hard area to pull out from, let's say in the mornings. Mornings and afternoons. MS. GUSHIKEN: That was a concern that was raised early on and that's also in part why we proposed the right -in, right -out of West Kawili, the shared main entry. And we did actually do, as part of our Environmental Assessment (EA) approvals, we did do a traffic study that was completed, I think it was last year. And it found that there would be no significant impact with the addition of this project. Page 3 PC -30 October 6, 2020 MR. KANEALI`I-KLEINFELDER: Okay. Thank you, I yield for now. CHR KIERKIEWICZ: Thank you. Any other questions or comments? MS. VILLEGAS: Yes, please. CHR KIERKIEWICZ: Ms. Villegas, go ahead. MS. VILLEGAS: Sure. And just a question, as much as it to the people making the presentation, I suppose it's also to those of you who are more familiar with this area in Hilo. I just note in the exemption request, there's an exemption request for street frontage improvements that would eliminate the need for sidewalks, pavement widening, utility relocation due to cost. And then the second one is installation of streetlights and traffic control devices. So I just kind of want to—it's not in my district, but just wanted to verbally get confirmation that these are wise decisions for this area and in congruence with what is already there, from a planning prospective. If someone from the developer wants to answer that, that's fine too. In looking at the diagrams, it doesn't look like the neighboring area has sidewalks, or streetlights, or whatnot. So I guess I'm just wanting confirmation that it's going to be a priority, that is how things look. MS. LEE LOY: Chair. CHR KIERKIEWICZ: Thank you. Ms. Lee Loy. MS. LEE LOY: Ms. Villegas, this particular project is located in Council District 3. Actually Kawili Street and Kapi`olani Street has large swales. There's no sidewalks on Kawili Street, but there is probably an eight to ten -foot wide bike path and walking area that the kids use. There are sidewalks on the mauka side of Kapi`olani Street for the University, but where this project is located on the corner of Kawili and Kapi`olani, there are no sidewalks, but there is—it's actually a rather large paved area that I've used to run on that side. So to answer your question, are the improvements consistent with what's there? There's no sidewalks there. And so I understand the applicant's request in the exception to not provide the sidewalks. MS. VILLEGAS: My apologies. Can you say that one more time? My brain was whipping, was it a double negative? MS. LEE LOY: Yes. MS. VILLEGAS: You are saying that isyou're approving it in your district that it's okay for that exemption to be taken into consideration? Page 4 PC -30 October 6, 2020 MS. LEE LOY: It was considered. The applicant represented today that they're okay with doing the sidewalks. But your question was, "Is it consistent with what's there?" No, there are no sidewalks there. MS. VILLEGAS: Okay. Great, thank you. MS. LEE LOY: Yeah. MS. VILLEGAS: Thank you, appreciate that. And with that, I yield. CHR KIERKIEWICZ: Thank you. Any other questions or comments? And I did want to provide the applicant with an opportunity to address those comments that were just made. MS. GUSHIKEN: Thank you, Chair. I just wanted to concur with Vice Chair Lee Loy. One of the concerns initially was that if we created the sidewalk on the Kapi`olani Street side, it would be essentially a disconnect fromI mean there's no sidewalk north of it, and as she mentioned, no sidewalk connection to the West Kawili Street side. However, as mentioned, after thinking about it; after hearing about the number of pedestrians that walk through there, and frankly the safety and concerns about getting our kupuna out to that crosswalk area, we thought it would be best to simply install the sidewalk. At least to get folks to that major intersection there at the corner of West Kawili and Kapi`olani Streets. CHR KIERKIEWICZ: Thank you. Can I expect an amendment from Housing related to this request? And I just want to keep in mind that we have a 45 -day clock that's ticking that started in September. And so any amendment that needs to be made needs to come forward and be on the floor for Council to vote on at the next reading. MR. HOSAKA: I'll work with Marian to get it to you. CHR KIERKIEWICZ: Okay, great. MR. HOSAKA: I just want to make a comment to Marian. There's a guardrail right next; there's like a flood canal, and then there's a guardrail. MS. GUSHIKEN: Right. At the corner. MR. HOSAKA: So, yeah, you still want to put in the curb, gutters, sidewalk? MS. GUSHIKEN: Yeah. MR. HOSAKA: Okay. Page 5 PC -30 October 6, 2020 CHR KIERKIEWICZ: Any other questions. Mr. Richards. MR. RICHARDS: Yeah, just a comment concerning the wide walking space or the sidewalk. And this was part of our conversation when we discussed this. And Ala `Ohi`a, which is a street in my district in Waimea, we have the wide walking area, but not necessarily the sidewalk. So I can understand not having a sidewalk. Quite frankly, I think it's better, but I'm curious to see what the amendment will come forth. Thanks, I yield. CHR KIERKIEWICZ: Anyone else? And if I could just get clarification on water, because I don't think it was addressed in this presentation. I saw it in earlier iterations of this resolution, but are you going to be working closely with Department of Water Supply to insure water commitments are made, but based on realistic usage? MS. GUSHIKEN: Yes. We paid our fee and we'll continue to work with them. CHR KIERKIEWICZ: Okay, great. I just want to make sure that you folks know that resource—working with them is available, and they're great partners to work with. MS. GUSHIKEN: Sure. CHR KIERKIEWICZ: Okay, seeing no other questions or comments on the floor, we have a motion on the floor to send Resolution 733-20 to the Council with a positive recommendation. All in favor please say "aye." Vote on Res. 733-20: The motion to recommend adoption of Res. 733-20 was (Approved) carried by the following voice vote: Ayes: Committee Members Chung, David, Eoff, Kaneali`i-Kleinfelder, Lee Loy, Poindexter, Richards, Villegas, and Chair Kierkiewicz – 9. Noes: None. Absent: None. Excused: None. CHR KIERKIEWICZ: Thank you all so much for your hard work on this project. Excellent presentation. Mr. Clerk, moving on to Bills for Ordinances. BILLS FOR The Chair directed the Committee to proceed to the next order of business, ORDINANCES: Bills for Ordinances. Page 6 PC -30 October 6, 2020 Bill 200: AMENDS ORDINANCE NO. 05-115 WHICH RECLASSIFIED LANDS FROM AGRICULTURAL — FIVE ACRES (A -5a) TO NEIGHBORHOOD COMMERCIAL (CN -20) AT PUAPUA`AIKI IST AND PUAPUA`ANUI 1sT, NORTH KONA, HAWAII, COVERED BY TAX MAP KEY 7-5-017:001 (Applicant: Pua`a Development, LLC) (Area: 14.973 Acres) The Leeward Planning Commission forwards its unfavorable recommendation for this amendment, which would allow revisions or time extensions to 11 conditions in the existing change of zone ordinance. The property is located west (makai) of Queen Ka`ahumanu Highway and the Pualani Estates Subdivision, and about 1,400 feet north of the Queen Ka`ahumanu Highway. Reference: Comm. 1077 Intr. by: Ms. Kierkiewicz (B/R) ; and Comm. 1077.1: From Planning Director Michael Yee, dated September 24, 2020, transmitting the draft transcript from the Leeward Planning Commission's August 20, 2020, meeting. CHR KIERKIEWICZ: Thank you, Mr. Clerk, may I have a motion to forward Bill 200 to the Council with a positive recommendation? Motion to Approve: Ms. Villegas moved to recommend passage of Bill 200 on first reading. Seconded by Mr. Richards. CHR KIERKIEWICZ: Will the representative for the applicant please come forward? Mr. Fuke, thank you. And I believe that we have a PowerPoint that's been provided from your office to the Council. (Note: At this time, Planning Consultant Sidney Fuke came forward to address the members of the Committee.) MR. FUKE: Thank you very much, Madam Chair and members of this committee. For the record, my name is Sidney Fuke. I'm a Planning Consultant assisting the applicant. I'd like to also acknowledge the presence of Brian Cook. You know, he's the owner -developer. And also the developer's representative Ken Van Bergen representing Spring Capital. They're both, I guess attending the meeting in the Kona Office and are prepared to any answers that the Committee may have. Because the Suffolk and the Pua`a Development, your Bills 200 and 201 are pretty much one in the same, I'd like to just do a presentation that embraces both projects, in such that it'll save the time when you come to Bill 201. I'm going to do a PowerPoint presentation but mine, you know, after seeing what they just did is really like the elementary version. But forgive me, I'm very computer illiterate. But I think that the PowerPoint presentation is my estimation Page 7 PC -30 October 6, 2020 kind of like helps distill the issues, and saves you reading maybe two trees worth of paper. (Note: At this time, Mr. Fuke provided a PowerPoint presentation the members of the Committee. For viewing of subject presentation, see the DVD copy of the meeting proceedings on file in the Clerk's Office. A copy of the PowerPoint Presentation is made a part of the record, see Comm. 1077.2. ) MR. FUKE: The last thing I'd like to leave his body with is that because the department is taking the position that, "Look, you need to have all of these detailed master plans because that would make you consistent with the CDP. And that's what's required in the CDP." And I said, no not really, because I can point you out to a specific section of the Kona CDP and this is what it says, you know, in terms of the streamlining, the permit process, flexible approval, it says, "TOD's (Transient Oriented Development) are floating zones that subsequently need to be anchored by rezoning to a specific area. However, as long as the proposed rezoning conforms with the Kona CDP in terms of general location and concept ..." Now, I tell you, doesn't this generally conform to the location and concept? I would say, yes. Then it kind of continues, "As long as the proposed rezoning conforms with the Kona CDP in terms of general location and concept, the legislative rezoning approval should be expedited." We've been in this process for over a year. Then it goes on to say, "Subsequent refinements in the Master Plan can be done by Administrative approval." This is what the CDP says, and we're saying that we can do that. We'll do it. So having said that, what I submitted to this body, actually in a letter dated September 29h, I believe. I transmitted our letter to the Planning Commission, and in that we had proposed conditions that were different from the applicant's original request. So that was reviewed by the department. CHR KIERKIEWICZ: I'm sorry, Mr. Fuke, I don't mean to interrupt you, but I just want to call out the attention to what you're referring to. So everyone was just provided this recently, but I think there's a discrepancy, the date on the letter you're referring to says, August 3rd, not September. MR. FUKE: I had a transmittal letter to you, it was dated September— CHR KIERKIEWICZ: Yes, and this is what I have, and so this is what was provided to the Council. Did you want to take a look at this? MR. FUKE: I think I know which one is that. So, anyway, like the September 29h letter was something that I had sent to you, but I had attached a copy. And then that copy is what you're transmitting, I mean what you shared with the rest of the Committee Members. And in that letter to the Planning Page 8 PC -30 October 6, 2020 Commission and Planning Director basically, we're saying there like, we're prepared to have conditions that relate specifically to the CDP question. You know, the Master Plan so on and so forth. We're prepared to honor all of the affordable housing obligations that the original developer had committed itself to back in 2005. This is like committing one of the projects to be exclusively rental. And with the proviso that 20 percent be targeted at 80 percent or less. Holding it for a 20-year—minimum 20 -year period. You know these are all of the things that we're saying, and it's reflected in the conditions that were submitted to the Planning Director and Planning Commission that the applicant is willing to do. The Department and the Commission, having reviewed all of the material, I guess in their judgement said, "No it doesn't pass." So that's why we are where we are today. CHR KIERKIEWICZ: Thank you, Mr. Fuke. And I did want to point out that we have members from the Planning Department here: Director Michael Yee as well as Planners, Jeff Darrow and Christian Kay. Gentlemen, did you want to come forward and provide statements as well, or shall I open it up to questions and comments from my colleagues? Members do you have any questions for Mr. Fuke at this point? If not, I'm going to ask Mr. Yee to provide us with some comments on this matter. Okay. Director Yee, go ahead. (Note: At this time, Planning Director Michael Yee, Planning Program Manager Jeff Darrow, and Planner V Christian Kay came forward to address the members of the Committee.) MR. YEE: Good afternoon, Michael Yee, Planning Director. So as a former Planning Director, I highly respect Sid's, you know, body of work and stuff, but he's also here to represent a client. And within his presentation, there's an absence of other details or focus on some of the details, such as the time has expired, and it expired years ago. So they came back in to have to get an extension. During that time when they had, they hadn't accomplished what they needed to accomplish. So they came in and then wanted relief from a bunch of things. We eventually accepted an application last November; went to the Planning Commission with an unfavorable in February, which through a couple of different meetings, we were nudged from the Planning Commission to try to work out a solution with Sid and his client. And during those negotiations, there was a great deal of time pressure to get through the design review of things. And so, where he says, his design was acceptable, there was disagreement with that. In Kona, we have a Design Center and we were insisting that the Design Center be able to review their plans, but the client and Sid gave us a very short timeline to have to do so. And that was unreasonable. And once we couldn't come to Page 9 PC -30 October 6, 2020 deciding on that, Sid and his client decided to move forward with the commission in August, and we proceeded there. And I have to reiterate that it was a unanimous decision by the commission to maintain the unfavorable recommendation. And so as much as Sid wants to paint a picture that his design fits everything, he certainly did not convince the Planning staff, and he certainly couldn't convince the Planning Commission, not a single member, that they had moved in the right direction. That the time pressure to have to come to a decision and the buy -off on everything they wanted to present wasn't reasonable. Again, if I felt like there was more time we could have, but that they made a decision to move forward with the Planning Commission. We couldn't come to a decision around what was an acceptable Master Plan for them. I want to address, in this time where we throw out fear of a decision. So the fear of not making a decision or choosing not to go with the recommendation would result in five -acre lots and reverting back to that is also not necessarily true. Yes, it could revert back. But a Planning Director also has the ability to revert it back to a more appropriate zoning, which I think we all would agree, five acres is not appropriate. And so, if we were going to do something I would be looking at taking a different zoning action than 5 -Ag. And again, that could be a situation, but I don't think that's a reasonable solution to where we're going with this. And so, the fear that somehow we're going to end up with five -acre lots, I don't think is necessarily set in stone by any means. I want to say back when they submitted in November, there was a lot of talk about going to a Project District, and that would give the flexibility that we were looking for a TOD (Transit -Oriented Development). And so within that we couldn't come to an agreement. We came to February; we made adjustments from moving from a Project District idea to rezoning to a CN (Commercial Neighborhood) Zone. That would provide some of the flexibility. So in that time where we were being nudged by the commission to try to negotiate some solutions, the Planning Department backed off of a Project District idea and tried to figure out a zoning that would work for them to give them more flexibility. But again, we needed time to go back to the Design Center to see if this all fit in the TOD concepts, and we weren't being given that time to do so. And so again, we ended up having to go to the commission and ending up with the vote that we had. So it's unfortunate that we sit here with an unfavorable. I think we obviously want development, but just because we don't act on this specific bill doesn't mean it's set in stone that nothing will happen, or we end up with five -acre lots. It takes this option that currently Sid and this client have, and we may have to look at the options down the road. Thank you. Page 10 PC -30 October 6, 2020 CHR KIERKIEWICZ: Thank you, Director Yee. Any questions or comments so far? Ms. Poindexter. MS. POINDEXTER: Yeah, I just want to say that part of the decision, when I'm reading all of this I see that CDP (Community Development Plan) is like plastered all over this place, which I love, because you know how I feel about community development plans and the reasons why they exist. So I appreciate that. So I just wanted to say that, because we're going to have a lot of developments like this coming up on this island. So I hope that everything you do, including like you're doing for this decision, is done across the board with the recognition and respect for the CDP's. Because I know I'm going to get a lot coming up, so I'm respecting that CDP is plastered all over this thing, that you guys are making your decision based on that and using that. So make sure, as well as now and in the future, even if I'm not going to be on the Council, I'm going to be following this. Because I was part of the Hamakua CDP when it was even being developed for years. So I want to make sure that this island and the decisions made are clearly based off of decisions or plans that was done by the communities. So I just want to say I appreciate how your decision was made and based on the information. I also can understand where Mr. Fuke is coming from as well. So I just want to continue to hear from my colleagues. But I just wanted to point that out and I commend you for making sure the CDPs are always in the decision- making process. So, thank you. CHR KIERKIEWICZ: Thank you, Ms. Poindexter. I wanted to check in with my colleagues in Kona because this is a West Hawaii project. Just wanted to check in to see if you had any questions or comments at this time. MS. VILLEGAS: I do have some questions. Thank you. CHR KIERKIEWICZ: Okay, Ms. Villegas, go ahead. MS. VILLEGAS: Sure. I guess, you know, there's a lot of different parties at play in this kind of dance we're doing about what is going to be approved of and what happens with this piece of property. I have a number of questions, and I guess I would start with Mr. Fuke. Can I ask you a quick question? MR. FUKE: Sure. MS. VILLEGAS: Why didn't they get an extension in 2015 when it expired? Thank you, by the way, for creating this simple PowerPoint that creates a timeline of how things came together. Page 11 PC -30 October 6, 2020 MR. FUKE: Sorry, it's not as sophisticated as the first one. So it's a really elementary version. So maybe the next one, if I ever come to a next one, I'll graduate a little bit. But the short answer to your question, and you know, Mr. Cook is over there in the audience. But from what I understand is, so it expired in 2015. And many of the zone change extensions that this Committee or the Council go through, a lot of times it's not like on the date that it expired, that you know, you hear that application. Sometimes it's two years, sometimes it's three years. And in this case here, it's like about four years since its expiration. But part of the reason why based on my understanding with Mr. Cook was that, if you were to file back in 2015, you know, like just around the time that it would have expired, there was very little that he could represent that honestly, to say that "Yes, I have somebody that's going to develop it, or I'm going to do it myself." So he was kind of waiting to have somebody come around so that he could honestly represent that he has somebody waiting in the wing, which is Spring Capital and this so called waiting in the wing guy didn't come around until 2018, 2019. And as a result, then the application was filed. But, that's the best to my knowledge, anyway, Ms. Villegas. MS. VILLEGAS: Okay. So then my next question is and maybe if Mr. Van Bergen would be interested in representing or answering. What is Spring Capital's rush? It seems like many of these issues are caused in part by what Mr. Yee said, is that there's a rush for the timeframe here, which is why basically you guys didn't want to go through the design review process. Yes, please, Mr. Van Bergen. Unless, Mr. Fuke, you want to answer. MR. FUKE: Well, okay, if I can just backup on the Design Center process. First and foremost, unless the Director can clearly show me in the CDP or any ordinance that mandates having a Planning Director approved Master Plan before he will favorably recommend. If he can show me that, then I think that we've got to back off. I've cited to you, the provision of the CDP. We're looking at the same document, and I just read to you. The CDP says basically that subsequent refinements in the Master Plan can be done by administrative approval, okay. So, it's clear. Secondly, I would say this, if there was so much concern about getting the Design Plan review, well when the application was filed back in November or October of last year, why wasn't the application given to the Design Center for review and comment? The other thing I would mention, from my estimation in dealing with projects that have been under the scrutiny of the Design Center, it's atrociously long. And I couldn't really honestly recommend to, you know, my clients to say, "Go to the Page 12 PC -30 October 6, 2020 Design Center, because you will get an accelerated review." You know, in good faith, I could not make that representation to them. You know, in light of the track record. So in our proposal, a proposed recommendation, we are not eliminating the need for or to get the Design Center involved in the process. The proposed condition that we're structuring is saying that, yes, once the plan is submitted, the Design Center, which is an arm of the Planning Department, coordinated by the Planning Department, has a maximum 30 -day review. Not like an interminable period to review, okay. So, we gave that. That's spelled out in the proposed condition. Then after that then if there's no action or whatever, then the applicant pursuant to that Master Plan that he's prepared; action or no action by the Design Center, will then be used for the basis to file for plan approval. Now we know that the Zoning Code provides a time limit within which plan approval action must be taken by the Planning Director. So that's good. So there's that specific time limit. Relatedly, if you disagree with the director's decision because it's an arbitrary or capricious one, or misuse of their authority, you have an appellate process. You can appeal. All we're saying is, level the playing field. We're not asking for anything more. You want the plan, we'll have a plan, but the level the playing field. Our proposed condition as was submitted to the Planning Commission and Planning Director in that August 3rd letter reflects all of that. Substantively, when you look at it from the land use standpoint, isn't this like an appropriate use? All we're debating is whether we're going to have the bells and whistles to a plan. They can come later. The broad policy decision that this body must make is that, is this area an appropriate land use for what we're proposing? Is this appropriate? If you summarily say, no it's not because it should be used for Agriculture, or it should be kept for Open Space, fine. CHR KIERKIEWICZ: Thank you, Mr. Fuke. You segued into a lot of things, and I know Ms. Villegas was asking for Mr. Van Bergen to provide some context around timeframe and pressures along that front. So Ms. Villegas, has he come forward in Kona, I can't see? MS. VILLEGAS: Yes, Mr. Van Bergen is here. Please go ahead. (Note: At this time, Ken Van Bergen, Spring Capital Group, came forward to address the members of the Committee.) MR. VAN BERGEN: Aloha Madam Chair and Committee members, Ken Van Bergen. So, I guess to answer your question directly Page 13 PC -30 October 6, 2020 CHR KIERKIEWICZ: I'm sorry, could you please speak up? We can't hear you in Hilo. MR. VAN BERGEN: Can you hear me now? CHR KIERKIEWICZ: Yes, great. Thank you. MR. VAN BERGEN: To answer the question directly, Spring Capital is not necessarily in a rush, so we're not pushing for, you know, a particular time. But I would like to just, if I may, give a little background of Spring and my experience with them and just to put it in context. Prior to coming to work with the County back in 2009, I was the development manager of Maryl Group focusing on resort development, involved in those like Kukio and Mauna Kea. And Spring Capital is one of our largest capital partners. They've been developing on the Big Island for about 20 years, and have about $250 million to finish construction, not including their current construction. So, they're a very prominent developer in this particular build. This build is unique because basically, Mr. Cook is applying for the extensive, and really Spring Capital is going to be the partner that builds this. And so it's not a typical situation. Spring Capital entered into a purchase agreement well over a year -and -a -half ago. And one of the conditions was the zoning would get extended. And that's when I think Brian and Mr. Fuke started the process. And they're still willing to close and move forward. So it's been, it's just taken a little bit of time. So I will say that, as Mr. Fuke, you know, iterated, it's an ideal location for the design we have now. And Spring is more than willing to, you know, if they were to buy this land—sit down with the Planning Department worked through any issues and make the project, you know, agreeable on all parts. But at this point, all we can say is, we want to build something there. We want to move forward, but until it's zoning gets extended, we can't close on the land. MS. VILLEGAS: Thank you, Mr. Van Bergen. And I appreciate you saying that because one of the things that came up in a prior land use issue that I had some experience with was the fear that, you know, once entitlements get passed forward, or once timeframes gets extended, that there is actually no legal requirement that the new capital investor actually build this project. And that they bring in something completely different. So what you're saying is, it is the intention of Spring Capital to build the project. Of course, they would have to negotiate and figure out with Planning, and with a planning review and whatnot, to make sure that whatever the issues are that are still deemed incorrect and not in alignment with the that don't encompass the Page 14 PC -30 October 6, 2020 Master Plan that is ideally desired by Planning right now, that that responsibility falls to Spring Capital and they take full responsibility and commit to that? MR. VAN BERGEN: Yeah, so, the short answer is, yes, they want it developed in Mixed -Use, Commercial -Residential project as designed. But subject to change based on what Planning or the County would like to see. And obviously, it has to make, you know, financial sense as well. But at this point, I would just like to, you know, being a developer here in Hawaii and knowing how hard it is to get things developed, I have several projects that are on hold right now due to (inaudible) for financing. This is a real developer with very substantial capital assets that could move very quickly, and they're intending to move quickly. They told me when they first started, when I first got involved about a year -and -a -half ago, that they would like to purchase this and build something quickly in the next five years or so. So we're not buying to hold it. Or they're not buying to as a land bank or anything. They're buying to build. But because we don't own the land (inaudible) don't have the ability to move forward. And a track record that's very substantial on the Big Island as well as California or even Oklahoma. We have a lot of assets in other countries, but here in Hawaii, they've (inaudible). MS. VILLEGAS: I'd be remiss to not mention that there are many constituents in District 7 that are diabolically opposed to any more development in this corridor because of our challenges with parkingI'm sorry not with parking, but with traffic and whatnot. You know, in an ideal circumstance, I would love for something like this that does fall in line with the General Plan and our CDP's to also be in alignment in a timeframe with improvements to our infrastructure and our roadways. And how those things come about, so that it wouldn't add an extra glut. You know, in an ideal world, all of these homes and rentals that are being built would be rented and sold to people who already live on the island and who are looking for places to live and are really struggling finding affordable housing. So I guess some of my confusion came with that, you know, Director Yee mentioned that there was this really big rush to get this pushed through so that had me questioning if there was something happening within Spring Capital's business plan that required that this be purchased faster. And I guess that would thank you, Mr. Van Bergen. I just have a couple more questions, but I'd love to ask them of Mr. Yee, if I could? You can stay there if you'd like if anybody else has questions. Director Yee, are you there? MR. YEE: Yes I am. Page 15 PC -30 October 6, 2020 MS. VILLEGAS: Hi, thanks for being here today. And thanks for your continued support in understanding this process. And you know, it seems to be a real struggle. And being relatively new, this is not my forte by any means. Am I a land planner, or designer, or a lawyer? But I want to see the best for our community happen here. I guess my question to you would be, what's wrong with the Master Plan? Because Mr. Fuke expresses that, you know, his belief is that it does contain everything that's necessary; and beyond that, that there is no requirement that a Master Plan be presented and approved of in order for a time extension. Can you clarify? MR. YEE: So when they came in for that time extension in 2010, 2011, apparently we did warn them to pay attention to the CDP and to the TOD. So I can understand where Sid describes, like they had this plan and it hasn't changed so much, but it's not as if the Planning Department ever said, hey, you're good to go. And I also want to say that we're kind of throwing around Master Plan as it that was an accepted Master Plan. Certainly, the Master Plan as we're talking about it now wasn't the Master Plan that we found acceptable. So though Sid wants to call it a Master Plan from their perspective, that's what we had a problem with. And within that Master Plan, generally speaking, we want to create walkable neighborhoods. And so what's hard to see in let's say, the site plan that he showed you earlier, is the grade differential between the commercial area and the residential area. If there's a grade there, is it going to be so walkable for folks to walk from one part of the residential area up to the commercial? Part of TOD is being able to create the mixed-use things in one area so people aren't walking from one use of commercial area to just residential. Again, nothing was prescribed like it has to be a certain way, but clearly they hadn't changed much from our typical zoning of, you know, commercial goes here; industrial goes over here; residential goes over here. Looking at that plan, it wouldn't have been any different than we do a lot of other zoning here. It wasn't a TOD, per say. So, you know, I don't have a laundry list of exactly what's wrong with it, but that was part of the issue, which was when we were asked to get back together, it was with the idea of, give us a Master Plan, make adjustments. Let's take it to the Design Center which reviews for against TOD guidelines, and for them to be able to provide feedback. You know, kind of what was left out that during these negotiations, we asked for a plan from Sid that we could take to the Design Center, if you give us a plan that kind of has some meat to it, we could expedite through Design Center. So although, yes, the Design Center has a reputation for Page 16 PC -30 October 6, 2020 being excruciatingly long, we were saying, if you give us something we can work with we can expedite it. MS. VILLEGAS: Mr. Yee, can I just ask MR. YEE: But they basically, provided a plan that was so absent of changes that we knew we couldn't move it through Design Center very quickly. Go ahead, Ms. Villegas. MS. VILLEGAS: I just wondered, what's the average timeframe for the Design Center review? MR. YEE: Months to years. MS. VILLEGAS: Months to years? Hence the aversion of Mr. Fuke to recommend to his client. MR. YEE: But I want to be clear that in our negotiations, and granted this opinion thing about what is an acceptable plan that we could take, if they gave us, you know, acceptable that we could push through the Design Center, we were saying we could do it in 45 days. MS. VILLEGAS: Okay, great, thank you. That's where I was trying to get to. And go ahead, I interrupted you with that, but I've just been trying to get a timeframe in my head for what's possible. MR. YEE: Right. So, I laid out some of the design issues around the Master Plan. Again, we're getting into this thing of what is a Master Plan. They present something as a Master Plan. It wasn't an acceptable Master Plan by Planning standards. I also want to add that when they came in for the application, we had asked for a timeline for construction. A phasing timeline which we never received. So we didn't have details around exactly what was going to happen, which led to, you know, concerns of over what was really going to happen. We couldn't understand why we couldn't get a phasing plan. MS. VILLEGAS: Thank you, Mr. Yee. Mr. Van Bergen, what would be your insights or things to add to that statement. MR. VAN BERGEN: Well, like I said earlier, it's a little unusual because the zoning extension for Mr. Cook, but the actual developer is somebody else. But for any developer, Spring Capital or anybody else to come in and give a construction plan and a time without even owning the property, without having any kind of, you know, bids in place, it's just almost impossible to do, because you don't really know what you're building exactly. Because it's just (inaudible) Page 17 PC -30 October 6, 2020 permit it's just kind of an idea. And so, it's just difficult. It's almost impossible to do. So I don't know how that would work. MS. VILLEGAS: Got ya. Thank you. And I guess, you know, I'm going to turn it over to the rest of my colleagues here, but my goal here today in asking these questions was to gain a greater understanding of the background of the property; the intentions of the landowners; potential intentions of the new investor in the property, and you know, the concerns for Planning. Because this does seem like a unique challenge and, you know, yeah. So thank you guys for answering these questions. So not only I can understand it, but the constituents of this district that would be deeply impacted either way by what happens here. And with that I'll yield to the questions and understanding of the rest of my colleagues. CHR KIERKIEWICZ: Thank you, Ms. Villegas. Anyone else in Kona? MS. EOFF: Yes. CHR KIERKIEWICZ: Go ahead, Ms. Eoff. MS. EOFF: Thank you. Yes, so I think we are kind of in a pickle. We understand we have applicants, reputable people, and have good intentions. And we have the Planning Director and the Planning Commission, also we really respect their opinion. And I listened really intently to the Planning Commission meeting on this, not the earlier in the year meeting. I can't remember listening to that one, but I listened on the Zoom meeting or whatever it was the other day on this particular negative outcome, and it was really interesting. I mean there was some hurdles and some awkward moments, but basically, I believe that the commission heard and probably understood even better than we can at this point. A lot of the nuances here. And yet they still unanimously voted to transfer a negative recommendation to this Council. So yeah, it's an interesting situation. And we don't often have negative recommendations, so I kind of want to honor the work that's been put into this. But I also hear that there's been an effort to come to a negotiable point. Not that this has to be some kind of all or nothing or standoff situation. It seems like maybe there's still a possibility for that, and I think we're going to have to work towards that. I understand the message of the Kona CDP. I understand that this area is, you know, in the big picture. And in the long run slated for development and possibly this kind of density. But at this point in time, it's very hard for me to consider adding this much more impact on the already stocked -up traffic in that area. So that is a bigI think Ms. Villegas was stressing that as well. Page 18 PC -30 October 6, 2020 From the community's point of view, this is a very difficult time to support this given the amount of traffic that it can add. And the CDP also calls for concurrent infrastructure. So it doesn't just say, "Oh, yeah, here's where we want development." It says, "Here's where we want development, but we also need the concurrent road infrastructure." And whether it's the developer's proposal for mauka-makai. I don't think that is going to alleviate it. I think it's going to need a larger fix with a parallel kind of bypass type road that the government might have to build eventually. So timing is a big thing here. We don't have to hurry up and build out. We only have a finite amount of property to develop in Kona before we're at a saturation point where everybody's lifestyle is been down the tubes, so I don't want to leave here making, you know, bad decisions. I also feel that it's my job to really consider what's best for the community. I know we need some housing. I don't know exactly where it should be built first. I know I want to look at this time extension process that we keep coming up against. I feel that there's a reason for it, and that's because things do change. Situations change and we need a chance to relook at proposals over time, because things happen at different timeframes than they were expected to and then everything changes down the line and into the future. So we have to be able to review these things. That's what we're doing now. And I think we can get it right, I just don't know how we're going to get there. So I'd like to keep hearing from everybody. But right now I feel like I would, even though it's a tough one, it's a tough thing to do and to say, but I feel like I want to err on the side of the Director and the Planning Commission and their recommendations. And then I do believe that they can find a way to make sure our future benefits the community as well as honors the CDP and the rights of the developer to use their property. So, okay, thank you, I yield. CHR KIERKIEWICZ: Thank you, Ms. Eoff for your comments. Ms. Poindexter. MS. POINDEXTER: Yeah. CHR KIERKIEWICZ: Oh, I'm sorry, Ms. David? MS. POINDEXTER: Oh, okay. CHR KIERKIEWICZ: Ms. David hasn't had a turn yet. Ms. David, do you have comments or questions? MS. DAVID: Thank you, Chair. Did Ms. Poindexter have a turn yet? Page 19 PC -30 October 6, 2020 CHR KIERKIEWICZ: You know what, I'm looking at my notes, and she did. You're right, your turn. MS. DAVID: Okay, great. Thank you, Ms. Poindexter. Yes, I do have a comment or two. In looking at this, I have a question for Spring Capital. Would Spring Capital or could Spring Capital build the original proposal without amending this? You know, the applicant's coming in with certain conditions that they want to change, they want to do Residential now from the original ordinance. But what they proposed like 20 years ago, that development has been extended and extended, and then now in order to move forward they're requesting all these conditions to be amended. But would Spring Capital be able to do the original proposal? I understand that you can't, you know, you don't even own the land, but would you folks be willing to buy the property based on what's already been approved without any conditions? MR. VAN BERGEN: I can't say definitively because I'm not a principal at Spring Capital—it's not my money, so to speak, but I will say that they like the location, and they want to purchase the property with the zoning that was given ten years ago or 14 years ago of Commercial and Residential. And that they're open to a Master Plan that makes sense for the community, and you know, for the development. They're not necessarily for or against the original ordinance. They're just looking for a project that they believe is good. And like I said, the location and the zoning, it would be something they're interested in purchasing. That's why they went to escrow, you know, a year -and -a -half or almost two years ago. If when you say original, you're talking about the school site and the whole—conditions that don't really apply, because since some innovations came in. And there's some things like Ms. Eoff said, things change over time. MS. DAVID: Exactly. MR. VAN BERGEN: But they're definitely open to developing something that makes sense now based on the current needs with the zoning. MS. DAVID: Right. And what I'm thinking is instead of being the third party or waiting for all these negotiations to be done, having Spring Capital being the negotiator with the Planning Department is what I'm thinking, as the landowner, and work on a project that you folks want to, you know, purchase as is, right? And then with whatever the entitlements that came along with it, the extension, then you folks be the negotiator with the Planning Department. MR. VAN BERGEN: Well, that's usually how it works in my understanding. I mean when you have the zoning, you don't necessarily have a definitive, you Page 20 PC -30 October 6, 2020 know, square foot printout of what you're going to build. You have the zoning, then you go to the Planning Department and you create a project that meets the requirements of the zoning. And so, that's kind of their goal, was to buy the land and title and then go, you know, figure out a plan that makes sense. If you're saying move forward with the exact ordinance conditions, that's part of the negotiation, that's part of the process. But what they're not going to do is purchase the land without the entitlements, at least at the price that they're in escrow for because it's based on those entitlements. MS. DAVID: Right. And then these are additional amendments to those entitlements that we're trying to decide now. And the issue with that is that there has been so much time that has passed. And then if you read the report from the Planning Department and the Planning Director is that these requests now bring this project even further, another 20 years from being completed when already this particular project has been on the books for almost 20 years now. And I can see the point, because at least I've seen when developers come in and request amendments, usually they've started something, they've started their project and for some reason, you know, they couldn't complete this aspect of it. And so they want to come in and amend that condition to extend it. That sort of thing. In this case, what I'm hearing and seeing is that, this is not—it missed an extension, an administrative extension, and now it's coming in with a request to even further extension. So I'm having a difficult time with that and I understand your position as the potential buyer. But what I see before us is having to do something based on the recommendations from the department that is advising us that they would like to see certain things. We're not planners, so we really have to take into consideration what the department is requesting. And I'm not sure, it seems that there's a roadblock on what can be given or can be done right now. MR. VAN BERGEN: I don't know if I'd call it a roadblock, but it's definitely a dip in the road, so to speak, you know. But Spring Capital is flexible, and you know, Mr. Cook and Mr. Fuke have been pretty much driving the amendments in the ordinance based on, you know, being under contract themselves, they're trying to make it make sense for everybody. You know, the real question is, I guess from the County Council's standpoint and the Committee's standpoint, is you know, how much do you guys want to see development in Kona? Because I can just tell you for a developer's standpoint, this is real project with real players. And something can happen. What that looks like at the end of the day will depend on what happens with the negotiations with Planning when you go for permits, and plan review, and plan approval. But our hands are kind of tied right now because we don't own the property so we can't get to that second space yet. Page 21 PC -30 October 6, 2020 MS. DAVID: And that is a problem. Well, thank you for that. For now I'm going to yield, because I think I want to listen to my other colleagues' input on this. Thank you, Chair. I yield for now. CHR KIERKIEWICZ: Thank you, Ms. David. At this time, we're going to take a short five-minute recess, so that folks can get a bathroom break and we also need to change our tapes. We are in recess to about 4:11. Recess: At 4:07 p.m., the Chair called for a recess. Reconvene: The meeting reconvened at 4:15 p.m. CHR KIERKIEWICZ: I believe we have a couple of folks here in the Hilo Chambers that have questions. Ms. Lee Loy, go ahead MS. LEE LOY: Thank you, Chair. You know, if I have a tally mark for every time somebody said time, I'd be a millionaire walking out of this meeting today. A lot of time has passed. And so I started to think a little bit through something that Mr. Fuke said about, you know, plan review and setting some benchmarks, because that's what I keep seeing, not only in these types of applications, but other ones when they come to us with a time extension—it's because the conditions of approval are not actionable. There's no timing element; 30 days, but not only for the applicant, but for the department. And so one issue that Mr. Fuke raised was this Design Review Committee, right? And Mr. Yee, you mentioned sometimes it takes months, sometimes it takes years. And so that kind of uncertainty makes it challenging about how much money they're going to invest in master plans, those types of things. And the other part of that that bothered me was the decision-making process. We all know that if we make a decision, and the applicant or the individual doesn't like it, there's an appealable process. But we don't have that built into the review of these design plans. So if they meet the General Plan; if they meet the CDP and we send it to the Design Review Committee, if the applicant doesn't like it, there's no way to further appeal that to the Board of Appeals. And it's all about a process, because these developers have to build those things into a timeline. And when I look at Mr. Fuke's, kind of proposed bill or conditions, some of that is there. So for me there's a lot of good framework. But you also mentioned something about the zoning, right? It doesn't go back to five acres, it something the Director, it says, "Or the Director," right? Then I get a little nervous about that, because then my land use head went to almost a takings issue. And so it's all of that uncertainty around this entire project; started in 2005. Kona CDPs came along, that process took years. Mr. Kay and I had a brief conversation outside about the Kona CDP. We sat on a moratorium for more Page 22 PC -30 October 6, 2020 time, and it seems like all these other plans evolved around this zoning. And so I can understand the applicant kind of, I don't know, "Should we go in for a time extension?" There's so much uncertainty. But when I look at the larger development plans for Kona this was in the development corridor. And I think we're between rocks and hard places right now. I mean we have an unfavorable recommendation from the Planning Department. Is there other options or is that something that the applicant has to come forward with? You mentioned zoning. Mr. Yee, help me understand all these moving pieces and the timing elements, because Mr. Fuke put together what looks like conditions of approval that's workable to the applicant, and I don't know if you folks have had some time to look through that. MR. YEE: So getting back to an original question that Council Member David had asked Ken Van Bergen about, you know, what's your intention to really developing this project? And if the expectation of the buyer was to develop this property, and like you said, there wasn't like set drawings to just go ahead and develop. But you had the zoning for things and the conditions. They could have come in and said, "Okay, we want a time extension, we accept all the conditions," right? But if you're really willing to do what you said you were going to do with the previous entitlements, you would just ask for that. But instead they came and asked for all this relief from all these other issues. Hence, we get into a negotiation around what is then an appropriate project. Understand that the Design Center came up during the middle of the negotiations, not at the beginning of all this. Okay, so, I don't want us to get carried away with having to dissect the inner workings of the Design Center, and some of its failings and some of its successes, right? It certainly doesn't always work, but also trying to make a comparison to a project that's vastly huge compared to Pua`a, Suffolk, and like Palama Nui, a more complex project, it's going to take a little more time, okay. But clearly we had said, and again, we can argue what's an acceptable plan to submit, but we felt that if you give us a plan we could work with, we could expedite through Design Center in a reasonable amount of time and get you back to the Planning Commission. The time issue was always the thing. And so when you ask me, you know, are we willing to? That has always been the case. It wouldn't be the first time. The Planning Commission sent us back to the negotiating table twice, okay, and it was only under the time pressure not being able to thoroughly vet things and look at review and come to these things that takes months to do but wanted to be done in weeks instead of months was too much to ask. Page 23 PC -30 October 6, 2020 And so, yes, the Planning Department's always willing to take a look at the alternatives. We came back off from a project district and suggested CN zoning, that's still on the table. We could still go on that route and take a look at how we could move pieces around that make more of a better Design TOD project. We need the time to do so, though. So, that's where I stand. And so, you're a millionaire now. MS. LEE LOY: Go ahead, Mr. Fuke. MR. FUKE: If I could. I just wanted to clarify some stuff. You know, as far as the requested amendments, the only substantive amendments were two. One of course, the most critical one was securing the time extension. The other one was to gain relief from the affordable housing obligation that was, you know, over and beyond what's contained in Chapter 11 of the Affordable Housing Code. One condition stipulated that you had to have, on the Suffolk one, was a mandated rental housing project for 20 years, and 20 percent of which had to be rented at 80 percent or below of market. And the other one was saying that, "Look, you had all these affordable housing credits. You cannot apply it to this property." So when we were talking with Spring Capital, they said like, "What is the law?" The law is, you know, the Housing Code. So we said, what was agreed to back in 2005, actually exceeded that. So the short answer was "yes." So they said, like, "Well, we would prefer not having that." So from a substantive standpoint, those were the only two major amendments. Now, we have like a whole bunch of other things. A lot of them were all clarity. Clarity and trying to make some obsolete things, you know, current. You know, those kinds of things. So during the course of the public hearing, it became evident that, you know, we wanted the housing. So very clearly in a very—way upfront, we said, "Okay, we will put that off the table." And then during the course of the negotiation, it became like, "Oh, we needed to have a more detailed Master Plan, and it's got to be done now, rather than later." And so, that's kind of like where we had a total disagreement in terms of the position. They wanted to have a Master Plan approved now, and we're saying it can be done afterwards. No different than Palama Nui's ordinance or Wailani Project District ordinance, you know. And those were Project Districts, larger projects too. And they did have a Master Plan, but not as specific as this tiny little guy. You know and they were larger projects. So we're saying like, we're doing that, you know, we would agree to have a Master Plan. So the question about Master Plan or no Master Plan. We tried to make it very—and I'll restate it again. We're saying we'll do the Master Plan, and we'll have it kind of vetted by the Design Committee and finally approved by the Planning Director. But they don't want to spend $150,000 to do a Master Plan just so that we can come before the Planning Page 24 PC -30 Point of Personal Privilege October 6, 2020 Commission and the County Council and you guys turn it down. You know, so that's the process. So I think, like the disagreement, you know, lies in the process. They're saying now; we're saying afterwards. And on the other hand, if they say now, because statutorily or the plan requires it now, then we say, you win. But right now, unless they can show us, we're saying that it allows us to submit the detailed plan afterwards. MR. CHUNG: Point of personal privilege. He went really fast on that, you know, condition part with the Housing. Sid, can you kind of go over that real slowly so that I can understand. And you also made mention about, and hope you don't mind, I just wanted clarification on this, and you said, you took something off the table. What did you take off the table? But, so try start all over from, you said, you were looking at two amendments. One was the extension, okay. The second one was the Housing. Try go real slowly on that, okay. Because that went real fast. Sorry. MR. FUKE: So the Housing condition on Suffolk, they were going to do exclusively Housing. When it was considered back in 2005, 2006, basically the Council held the developers' feet to the fire. At that time, they said we're going to do rental, and we promise it's going to be used for 20 years, and we promise further that 20 percent is going to be at 80 percent and below. So that was made a condition off the existing ordinance. It also had another condition relating to Housing that stated, that you know, these affordable housing credits you have, in spite of the fact that you can use them based on the Housing Code, the condition says that you can't use it. So when we made the first request, you know, for amendments, those were the two substantive areas. We said we wanted to go back to, like everybody else, let the Housing Code prevail, and not be judged and be imposed by doing something more. And secondly, we wanted the time extension. During the course of the public hearing and the concerns raised by the public and some of the members of the commission related to housing, the developer said, "We'll take that off the table. We'll go back again to the original request. We will not request any amendment to the affordable housing condition. So, we'll go back to 2005." MR. CHUNG: That's what I thought I heard you say. So I just wanted but a lot of things were going right over my head. So okay. Alright. MS. LEE LOY: Thank you, Sid. Because you just brought up the point that I'm glitching on, which is the process. And it sounds like the need for a Master Plan is a qualifier for zoning. And all of the zoning codes that I know does not say Page 25 PC -30 October 6, 2020 that. There's the concurrency law, which requires water. You've got to build the infrastructure. But now to hear this, I'm a little nervous for so many other people out there who would be subject to this, and it's nowhere in our code. MR. FUKE: So therefore, you know, this is a Commercial and Multiple -Family Residential project, so you do your best to kind of like, taking into consideration archeological ground condition, and you come up with, you know, some generalized idea. You know like, if you're going to do a conventional subdivision, you know, like Hilo Hillside or whatever have you, you're going to have as part of the application requirement, you have to submit a preliminary subdivision map just to give you a sense as far as what the project would look like. Then as you go through the hearing and decision making process, there might be a condition to say, you know what, you should have another road over here or another access over here. So what happens then, the developer goes back again and looks at all of these conditions and then have to submit a revised map to the Planning Department for subdivision review. So that's the process. So we're saying, put the same review lens on for this kind of project, no different. MS. LEE LOY: And the reason why this one's a little different is because Palama Nui was big, right? University. This one is under— MR. FUKE: It's aboutaccumatively, it's going to be less than 30 acres. MS. LEE LOY: Under 30, under 50. Okay, I might have more questions as we keep moving. Chair, I yield at this time. CHR KIERKIEWICZ: Sure. Chair Chung. MR. CHUNG: Yeah, given what Sidney just told us, and maybe that's not the complete, you know, set of circumstances, but what do you have to say about that Mike? I mean because you had earlier said, if it was just the matter of the extension, that's one thing, but they also, you know, were asking for relief from other things. But there might be other things, but what I just heard was, what they were asking for in terms of relief was taken off the table. So I just want your position on that. MR. YEE: Michael Yee, Planning Director. So part of the difficulty is there's not this chronology over when these things are being taken on and off the table. You're kind of painting a picture like when we started this, when we accepted the application it was taken off the table back in November. MR. CHUNG: I'm not assuming anything. Page 26 PC -30 October 6, 2020 MR. YEE: I know, but even then, it wasn't taken off the table, you know, come January or February, it wasn't taken off the table, right? There was always adjustments made to it when they could see like things weren't going to go in their favor, and they kept bringing things possibly that the commission could sign off on, okay. So yes, they might have suggested some things at the last commission meeting in August. And I just want to reiterate, it wasn't good enough for all of the members that were voting that day on the commission, okay. There was still not an acceptable situation for them. MR. CHUNG: I can see, yeah, that it was kind of, you know, progressing. MR. YEE: Again, I don't want us to get hung up on like, again things get lost in the chronology. MR. CHUNG: I'm not getting lost in any chronology. MR. YEE: The need for a Master Plan came up later on in the negotiation of trying to expedite a decision on something we could accept. So part of the idea of wanting to have something we could take to the Design Center meant having to do that. If we were following other things like a Project District or going CN zoning, we could have taken that route and taken more time. But because they wanted to expedite, we said, "Okay expediting could mean you're giving us a Master Plan we can take to the Design Center." So I don't want to say, hung up and say, "Hey we were sending them down this path that was sending them into the rabbit hole." We were only approaching that rabbit hole because there was this time pressure to deliver an answer for them. Okay, so I don't want to make it sound like from the beginning we were saying, "You got to go to the Design Center." That was not the case. We were going to the Design Center because we were trying to make adjustments during the period and time the commission was asking us to negotiate, to figure out a path. One of the suggestions was getting a plan that we could take to the Design Center. It wasn't the end-all, but it wasn't the beginning of where we started. MR. CHUNG: I wasn't talking about that, I was just talking about the conditions. You said, I mean, you said that if it was just the extension, that's one thing. And not saying that you would concede that, of course. Then you also said, but it's that they were asking for relief from these other things. That's all I was asking about. MR. YEE: I concur that they pulled that back, yes. Page 27 PC -30 October 6, 2020 MR. CHUNG: Okay, and regardless of when they did it, and even if it was at the back end. You know, for the purpose of massaging things, but with the hopes that perhaps the commission would be more amenable. That's neither here or there, right? The fact is, it's off the table. This is what we're seeing right now. Okay, I just want to make sure that we're dealing with the correct set of facts here. Okay, I just wanted clarification. CHR KIERKIEWICZ: Okay, thank you. Mr. Richards. MR. RICHARDS: Thank you, Chair. Sidney, probably an hour ago now, you said what we're here to decide is, is it an appropriate site to put this type of development or is it better suited for agriculture? The moment someone says agriculture, my ears go up, and I know this is not appropriate for the kind of agriculture that we're talking about. And for me, it makes logical sense that this is the kind of thing we need to do in this area. So what we're coming down to now is conditions and how we apply these conditions. And I get what Planning is saying about this and I get the concern. But listening to colleagues, you know, how do we move this forward? We need housing desperately. We need housing on this island, and we all know that. We need, however you want to categorize it, affordable, attainable; workforce, however you want to say that. Looking through the conditions on this, I agree that not being able to apply the affordable credits, I don't know what the details of that were but that puzzled me. And maybe it was a sign of the times, I'm not sure, that was 15 years ago. However, I still think we need affordable housing in there to some capacity. What I'm bothered by is the timelines. And on a different scale, I'm thinking about the economic recovery of this County and this island. And construction is going to be a portion of that. So looking forward I want to see a way forward coming through this. And I get the concern that you can't vet the whole thing, so how do you give a positive recommendation without vetting it? The other side of the coin is, how do you expect the developer to come forward and invest all this money ahead of time not knowing if they're going to have the entitlement? So we get stuck in this Catch 22. And so, I don't have a solution yet, but I'm listening and I think we need to build this housing. I think we need to build it. I think this is an appropriate place to have it coming forth. The question is how do we get the conditions right so it makes sense? And I think it comes back to the timing issues, and there's that word now you're a little bit more than just a millionaire—which comes back to the overall process problem. I think that's where we're all getting bogged down in. And it's not reasonable to assume Page 28 PC -30 October 6, 2020 that someone can come in with an unlimited checkbook and gamble on whether or not we're going to be able to go forward, because that's not prudent. So the question is that I think this is more of a procedural question than it is actually a "yes" or "no" question. So I get the conundrum here, but what I don't know is how we're going to move through it. So now I'm going to yield, because I want to listen to a little bit more conversation. CHR KIERKIEWICZ: Thank you, Mr. Richards. Mr. Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: It's fun watching you guys go back and forth, because you get ex -director and director. It's been interesting. The project itself, it's 30 acres total, correct, or a little bit less then? At 214.97 or 214.98. Does the State Land Use Commission apply here or this is all Urban? MR. FUKE: It's an Urban district. MR. KANEALI`I-KLEINFELDER: It's all an Urban district. So Land Use is out, we don't have to worry about that. Is that correct? MR. FUKE: That's correct. MR. KANEALI`I-KLEINFELDER: And we're talking about zoning, correct? MR. FUKE: That's correct. MR. KANEALI`I-KLEINFELDER: Which is your contention. This is a zoning issue. MR. FUKE: That's correct. MR. KANEALI`I-KLEINFELDER: So I was looking through the notes in the back. And in the back it looks like the Carpenters Union or PRP (Pacific Resource Partnership) was opposed to this, is that right? They like the unfavorable condition that the Planning Commission put forward? MR. FUKE: That's correct. I saw that the day before the Planning Commission action. MR. KANEALI`I-KLEINFELDER: And then on the Planning Commission though, you have Max Newberg, correct? MR. YEE: That's correct. MR. KANEALI`I-KLEINFELDER: And he voted? Page 29 PC -30 October 6, 2020 MR. YEE: Yes, he did. MR. KANEALI`I-KLEINFELDER: Is that within his rights to vote as a member of the Carpenters Union or PRP? MR. YEE: It wasn't raised as an issue during the commission meeting. MR. KANEALI`I-KLEINFELDER: That's interesting. Okay, I yield, thank you. CHR KIERKIEWICZ: Thank you. Ms. Poindexter. MS. POINDEXTER: Okay, so I am definitely not a planner, of course not. You know, we are policy makers, right? So when you look at the land use portion that's clearly stated in the CDP. It follows what the CDP is on this project. It's the design portion that I think is in question. The sad thing about how this government is set up is that I see it in my opinion that the Planning Director is the one who's holding all the cards. Now we moved into a state where we have a CDP Action Committee, which means there's community involvement in this, right? So with the CDP we fall into the land use portion, we're okay. Now when it comes to the design portion, how do we get instead of the Planning Director holding all the cards, how can we get the community to hold all the cards, right? For me, Sid, you know, that we were talking about a development in Honoka`a, and what I told the developer is they need to come before the CDP Action Committee, because the public gets to chime in on everything. That's where you get the input on whether or not the community could support this, right? And that's what we need, because I'm looking through all the testimonies. There's testimony in favor; there's Living Stones Church, "We want the neighborhood shopping center. This is a good development." Then we have other testimony that they're concerned about roads. But those kind of issues can be addressed with the community input. And what kind of things that they want to see happen. And I've always said that. This is not the first time I'm telling you this, Sid, because we're worked on other things in my area, and I always say, the people have the power. It's their community. Government should get out of the way sometimes and give them the input. I tell that to all the developers. I'm sure the developers cannot wait till I term -out in December. But I'm a stickler about that CDP. You know, when we talk about timeline and how long it took. Everybody has to look at the economy, what happened? In 2008, we tanked. Did we ever recover? I mean when we were thrown into this pandemic, from those years in-between, Page 30 PC -30 October 6, 2020 did we ever recover? I don't think so. We were like a rollercoaster, man, it's crazy. You know, a lot of things were happening on this island. A lot of things, crazy stuff with hurricane seasons, and the volcano, and things throughout that timeline. You're going to expect, things are going to take some time. But this falls within what the CDP is saying. But then, again, time has passed, right? We need to get the community back on the table. We need to start having the Community Development Action Plan Committees, the CDP Action Committees back in operation. Hamakua Community Development, their Action Committee, they've been crying for a meeting; cannot get a meeting, you know. And development is going to start coming up. And come before the Planning Department without the community chiming in. The whole thing is that the community's got to chime in. Now, this would not be the first time. If I vote against this unfavorable recommendation, it's not the first time. I've done it before, where we've as a Council, in fact, we've turned an unfavorable recommendation to a favorable recommendation from the County. We've done that. So I'm concerned that the people are not the ones holding the cards right here. You know, I don't knowI want to hear how other people feel, but I'm leaning now towards supporting the project and supporting this, because regardless of the unfavorable recommendation. And then what Council Member Kaneali' i- Kleinfelder brought up, the other thing that I've talked about before is conflicts of interest when voting. And you brought up something real important, and that person to me, to err on the side of caution, should have recused himself, because of that kind of testimony from a strong organization that kind of helps to oversee them or support them. So, I'm concerned about that, too. It's not smelling okay with me, you know. So I am serious. I'm really thinking of just supporting this project, because like I said, the CDP says that it should be done. As far as the design portion, that's where we kind of don't have the CDP Action Committee input in there. And I know they may say, hey, that's not the CDP's job, or the Action Committee. But you know what, it is. Because the community is going to have to live with this. Planning Directors and their staff, they may go and come every four years. Or if they're lucky, they've got eight years or even more. You know, but it always changes. And the thing is, the people live there. For generations, the people are there. People are going to have to design their communities. That's why the CDP's are in place. So we need to utilize the CDP Action Committees more so now with everything that's going on with development or the lack of, you know. Page 31 PC -30 October 6, 2020 So that's where I stand. I want to see this go through to Council, and if somebody comes and the people from the CDP Action Committee feels like we can just allow the Planning Department and Commission to make decisions for them. I want to hear from them. In fact, I'm going to reach out to a few of them, or all of them, or I don't know. I'll figure out how to do it. So that's where I stand right now. I'm really leaning towards that. So, thank you for both presenting it and you know, I want to respect the Kona Council Member whose district this is in also, but I strongly feel that sometimes politics and government gets in the way of what we really need as a community, so thank you. CHR KIERKIEWICZ: Thank you, Ms. Poindexter. Director Yee. MR. YEE: Yeah, just to address some of the issues. So I don't know about a conflict of interest with Max Newberg, but I want to reiterate, there was a unanimous decision by the commissioners. So even if he recused himself we were probably looking at a unanimous decision. As for CDP Action Committees acting like another Planning Commission, yes, we'll disagree, Council Member Poindexter, that I don't see CDP Action Committees acting like another Planning Commission to vet permits and stuff. However, I will add that by going through the Design Center with the Master Plan, it would have been vetted at the Planning Commission which is a public process. So the public would be able to see a Master Plan and be able to be part of that community input that we all desire. Thank you. CHR KIERKIEWICZ: Thank you, Director. Chair Chung. MR. CHUNG: Thanks, Mike. And first of all, you know, I really do respect you and your department, okay. There's just interesting philosophical types of issues being presented today, yeah. But, not to put you on the spot, or anything, but have you been Planning Director and made any recommendations for time extensions that had already expired during your time here? MR. YEE: Sure, yes. MR. CHUNG: Okay. Because for me, I think logically, hey if the thing expired, it expired, you start the process all over. I mean that's my thinking, but at the same time, I've voted "yes" on a number of these that have expired, right? So I cannot in good conscience say, I'm against, you know, voting in favor of something that's already expired. Although, if you just ask me, I'm thinking, if it expired, it means it's expired, it's pau already. But even you said, you know, you've presided over recommendations from your department to go ahead. And Page 32 PC -30 October 6, 2020 I'm the same. So I don't see anything different. We'll throw it off the table already, right? We already said the conditions that they were asking relief from, they took off the table. I respectfully disagree with your department's position on the Master Plan. Just like Ms. Poindexter pointed out, it puts you guys in a position where you guys are God. Because Me. Lee Loy also said, non -appealable. That type of approach. That's troubling to me, yeah, because you know, when we deal with building permits and others. We want to, you know, the public and developers are members of the public, right? They deserve to see a process that they can understand and move forward through smoothly. And I'm like Mr. Fuke, you know, I was kind of looking at some stuff. If you can show me precisely where it says, you know, that the department's position is correct, absolutely correct now, on the Master Plan issue, then that's another story. But I can't find it. And moreover, this property is crucial to the Kona CDP plans. You know, being within one of those designated TOD area or areas, right? This is real important. If that thing is not developedI mean, and you know, I can see where the department wants some oversight in how things are developed because we want good communities. But at the same time, you cannot dictate everything, you know, in terms of how a development is done. As long as it meets certain requirements, you know, it really should be up to the developer to move forward as long as it's not in contravention to certain requirements. But, you know, that's why there's a lot of philosophical things, but I kind of tend to agree with Ms. Poindexter, you know, it's a good thing. And you know what it provides for. I mean even if someone said, you know, I think it was Ms. Eoff who said, it might not be as good as advertised. But if I've learned one thing sitting in this council room for many years is that Kona really wants mauka-makais. And we just talked about Lako Street that all of a sudden, you know, hey, everything was good at once, and I don't know what happened at the backend. So there's a lot of good things here, it might not be perfect, but I mean, I'm willing to give it a go. That's my feeling. But, Mr. Fuke, I have a question. You know, there's been talk about rushing this thing through. Is there any chance that, you know, your client is willing to talk a little bit more stories with the department? I mean I don't want you guys to go back to the drawing board, because I think we're here already, and if we came up with amendments, it might have to go back to the Planning Commission. That's you know, crazy already. But is there still room for you guys to discuss stuff like Maile brought up? Page 33 PC -30 October 6, 2020 MR. FUKE: To answer your question, there are like a number of reasons and maybe like some of them might be facetious, but you know, I don't intend to get stressed out doing things like this forever. So I was kind of hoping that, you know, by the end of this year, I'm kind of out of here. MR. CHUNG: That's what you've been saying for the last ten years. MR. FUKE: No, no. But in addition to that, you have to look at the two landowners too, Mr. Schuler and you know, Mr. Cook. They're in their 80's already. And so like, you know, if it were back in 2005, they had the stamina and the financial wherewithal, you know, to do the project, except that the economy tanked as Ms. Poindexter pointed out in 2008, and so they did as much as they could. I think that, you know, like those are some of the things. But on the other hand, it's like saying, "Why do we have to go back again?" You know, like preparing and having a Master Plan that's not appealable, or you know, just subject to just, you know, the department's position, and not necessarily, you know, the policy makers, which is this body here. So I understand what you're saying, is that like, what you have right now is a bill that— MR. CHUNG: How about this to cut it short? At least, we'll go talk story over the next two weeks or so. MR. FUKE: I just kind of want to say that you have a bill that's based on the applicant's original proposal. We have submitted a narrative like proposed amendments to that. Amendments that were shared with the Planning Department, that they didn't accept. So, I would like to, you know, respectfully request that this body consider those amendments, and put that like an amendment to Bill 200, and you know, as amended or whatever have you. Because those proposed amendments that I sent in that August 3rd or August 29h letter, you know, reflects exactly like what I was talking about today about taking the housing stuff off the table and having the plan requirement developed exactly how Planning wants it, but after Council Action. Those are all embodied in the proposed amendments. So that's what I requested. And so I understand that if that's going to have to happen that it'll probably have to be like a holdover with this Committee. And as far as that, that would be acceptable to the owner. MR. CHUNG: I yield. MR. YEE: Can I answer couple questions real quick? Time extensions, I want to remind the Council that I came and did a presentation about a year ago around our struggles with time extensions since I've been Planning Director. So we've been very cognizant of the issues. So I think it's a little unfair to say, hey, I make a decision on one time extension, and here I am changing the rules and stuff. Page 34 PC -30 October 6, 2020 We've been upfront with the Council around how we're trying to approach time extensions and the difficulties with them, so it's nothing new. Again, the Master Plan issue, you're kind of holding the Master Plan and our demand for one as if that's what we demanded from the very beginning of this process. This came up as negotiations of trying to expedite a project they wanted. Had they not brought in something that they needed a decision from Planning Commission, we might have followed another thing. And so hanging over our requirement for a Master Plan is not fair when we were given this time pressure to, "Okay, you guys need to give us something that we can decide with the Planning Commission right away." Well, if you do that, one suggestion was Master Plan. So I think it's a little unfair to sit there and say, everything hinged on the Planning Department changing the game by requiring a Master Plan. MR. CHUNG: And who suggested the Master Plan? MR. YEE: That came out of negotiating from the time we were asked back from the Planning Commission to go renegotiate and talking about, how do we move from a project district to a possible CN Zoning instead. And what kind of design might fit in, and the Master Plan came up within that discussion. And then, to be able to kind of vet that through the idea of going through the Design Center with that Master Plan. And being able to do that before we went back to the Planning Commission. And had we followed the timeline that we were looking at doing, we would have gone back to the Planning Commission in the month of October with hopefully a Master Plan that the Design Center could have, you know, approved had they given us something we could work with. MR. CHUNG: Right. And the Design Center, that can go from months to years, right? MR. YEE: However, we had verbally and maybe even in writing committed to expediting within a certain amount of time because we knew they wanted to come back by October, but trying to do it by September was impossible because we were meeting in July. In July negotiations, they wanted us to get back to the Planning Commission by September. Impossible. MR. CHUNG: Yeah. MR. YEE: So I want to be fair. The Master Plan, you're making it sound like the Planning Department created this process that was so unwieldy, that we demanded it when they submitted in November, when that wasn't the case. Page 35 PC -30 October 6, 2020 MR. CHUNG: That's not really what I'm suggesting. Yeah, but at the same time, you know, don't get me wrong, I'm not trying to denigrate the efforts of the department, right? But this really is, you know, because we've deviated from the strict letter of the law in terms of the time extension, then we should basically be looking not at these minor—well, depending on how you look at it, these technicalities. But, what can be provided by that project? Yeah, that's the pure planning aspect. And I'm not a planner or anything like that, but I think all these other things are kind of getting away from the project itself. That's just my thought, anyway. MR. YEE: Yeah, but again, it's also fair for the Planning Department to ask for some kind of timeline and a phasing of which they never provided. We had to have some idea of what they're planning. And so for us to move forward with them just saying, "Hey, give us the entitlements." And that's it, then that's all we've become, is just doing that. MR. CHUNG: That's a good point. Yeah, alright. MR. FUKE: If I can just kind of say just one thing. This is almost turning out like the presidential debate, but we're not screaming because we can kind of mute ourselves. MR. CHUNG: But you guys are not as contentious though, you know. MR. FUKE: But, in terms of the timing. The timing really relates to infrastructure, okay? And it's clear in the conditions that say when your roads got to be done. You know, before you can get occupancy on any residential or any commercial component, what does the condition say? The roads got to be done. What does Water say? You got to have the water; what's the sewer connection requirement? You've got to have that. What other kind of timing do you need? You know, it's just to say that, it's in our wisdom that before you can start commercial, you've got to have residential. I mean, who wants to be able to play economic God for a development? It's hard. MR. CHUNG: It's interesting, though. I meant two very, you know, intelligent people. They got three on their side, though, kind of unfair. Okay, thank you, both of you. CHR KIERKIEWICZ: Thank you. I just want to check with colleagues on the Kona side, any of you have further questions or comments? MS. EOFF: Madam Chair? CHR KIERKIEWICZ: Yes. Page 36 PC -30 October 6, 2020 MS. EOFF: I think, you know, we can go back and forth here for quite a while because as Chairman Chung just said, we have permeable arguments on both sides, and we have reputable people arguing different points. But I wanted to just go back to something Director Yee started to say in his last comments. He was asking for the Design Review process wasn't really the first and main point about trying to give a positive or a negative recommendation to this time extension. There was something earlier that lead him to want to relook at the consistency, I think with the CDP, because it was originally planned prior to the CDP. And then I think this idea of changing the zoning to create a more, I'm not sure what he called it if it was a TOD, or just a walkable community, or whatever; changing the configuration a bit to be more consistent the vision of the CDP. I think that was the original reason why there was a negative recommendation to the original request for the time extension. Like he said, it went through some rendezvous back and forth until they came up with this mediation point that the director was going to kind of give in order to get close to what the CDP recommended. And Mr. Yee, is that correct? Because I'm having a hard time here. I thought I knew how I felt, but I listened to each side. Sidney makes good points and the Planning Director makes good points, but I'm still leaning towards agreeing with the Planning Director and the Planning Commission because I feel there's a lot more here that meets the eye, and I'm getting pretty confused as well. So I want to make, you know, a good decision. I don't know if it's going to be the right decision. And I know we have more time after this meeting, but I was also thinking what Mr. Chung said about, can this be postponed? Can we go back to talk again? Any comments, Mr. Yee? MR. YEE: Yes, so I do want to reiterate that the Kona CDP, when you're in a TOD you need to bring a design forward to the Design Center to be able to be able to vet against the TOD concepts, okay? So it is part of the process that is part of the CDP, okay? So you're right, Ms. Eoff, that in part of our original unfavorable recommendation, we didn't feel as if they addressed the TOD concepts well enough to move forward. Again, as we move forward in trying to negotiate a path, it became more apparent that we wanted to expedite a Master Plan to the Design Center to go run through that process. To sit there and say, no, we would have never required that, is not fair necessarily; that's not accurate either because at some point we should. And so, you're right. And so I do want to reiterate that the CDP does dictate that we go to Design Center on these issues of vetting it against TOD concepts. Page 37 PC -30 October 6, 2020 MS. EOFF: Excuse me, I think the CDP, it's not like a set -in -stone thing. It's got to have, you know, some flexibility with the time and keep things current, which is what kind of coincides with time extension deadlines and trying to review things every five years. So I see this as a, you know, not good at some—well, it's got to be flexible and it's got to kind of be reevaluated. And I do appreciate what Val said about honoring the CDP, which is why I may agree with Mr. Yee that, you know, this particular proposal needs a little more discussion. And I think the reason it's being rushed now, even after their delays of, you know, 10 or 15 years here is because of the potential of the sale. And I just don't feel good about making a decision based on a need to finalize a sale when I think there's things up in the air that needed to be resolved for the benefit of the community, and to be consistent with the CDP. So I don't know how much more we can discuss it. It's just been very confusing for me because like I said, I appreciate what everybody's saying and I guess I'm going to have to go with my gut feeling, though. Thank you. CHR KIERKIEWICZ: Thank you, Ms. Eof£ Anyone else in Kona? MS. VILLEGAS: Yes, please? CHR KIERKIEWICZ: Okay, Ms. Villegas. MS. VILLEGAS: Yeah, wow, around, and around, and around we go. I really respect and honor Mr. Yee's concerns about time extensions and the patterns that have occurred on this island, and how they related to, essentially speculation. It's the concept of, you know, people being able to get all these extensions; keep the entitlements and then sell the property at a fat profit. And I recognize, honor, and appreciate Mr. Yee that, you know, in the last four years, you have been very vocal about recognizing that and doing things within your power to stop that pattern and that cycle. I also recognize under these certain circumstances, having met with property owner and gone through the numbers, and it's my understanding that there isn't a profit margin involved in the sale potentially. This is already a loss in a lot of capacities. So I suppose I'm a little more heartened to approve of it because I don't believe, and I trust that I'm not being misled, that is not a matter of somebody selling in a fat -top emergent in order to, you know, to benefit themselves as they move through this. I wanted to just give Mr. Van Bergen an opportunity to respond to something I had asked earlier. MR. VAN BERGEN: Thank you. I just wanted to bring up, you know, for those of us who were at the Planning Commission meeting, the last one; yes, it was unanimous but it was reluctant. I mean there was an open discussion similar to what's going on now. You can generally see the wanting from much of the Page 38 PC -30 October 6, 2020 commissioners to want to make a solution happen. And unfortunately, our agenda item got pushed late in the day and I had to go to Hilo, so I was listening to it on WebEx on the way over, and I lost the connection right after one of the commission members brought up the union issue, which was kind of a blind -sight to be quite honest with you. And the reason why I mentioned that is the demeanor of the commission changed when that happened. And unfortunately, in an earlier commentary I did mention that Spring Capital had a long history in Hawaii and we have a project going on in Kaloko right now. And I guess this particular commission member researched and found out that it's not a union project, which I didn't know because I'm not involved in that project at all. And I just wanted to say that it was unfortunate, because had I known that would have come up, I would have informed the commission that, you know, when you're a capital investor sometimes it's just money or sometimes you're actually in a development. And that particular project, they do have some capital in it, but they're not running it. But I brought, you know, some developments that they had done over the last 20 years and they've spent over $250 million on union contracts in Kona in 2020 through Maryl Pacific Construction, TDM which was an entity we developed under, Tom Don and Maryl, Tom Don, or (inaudible) with Spring Capital. So even though it wasn't Spring Capital's name, it was Spring Capital money. Had the Planning Commission known that, I'd feel very strongly we'd have a different outcome because that would have never come up. And so, it's just unfortunate, but I wanted to share that with you. MS. VILLEGAS: Thank you, Mr. Van Bergen. I share your concerns for the dance that's done with union representation on commissions. And yeah, that's become a much highlighted issue, especially in the campaign season that we're navigating right now. So I want to acknowledge—the ideal is being able to move forward in a capacity that honors our Planning Department, and honors our Planning Director, and honors the Planning Commission. And, you know, I still have concerns, I suppose, on why it was so urgent that the sale happens, and I don't know what the background circumstances may be for that. But I still do have hope that at some point going through this process, the best can happen. And it really sits heavy on my heart and my mind, because we are setting precedence in so many ways with these decisions. And having grown up being a young advocate; an activist for really, really always wanting to make sure that developments were in alignment with the greatest best need of our community, and as we face these incredibly uncertain times with daily changes in the parameters, the boundaries, and the playing field, what is the best for our community continues to be juggled. Page 39 PC -30 October 6, 2020 But I just this really weighs on my heart because I really want to make sure that we are setting the right precedence. That we are not taking into consideration, the investments made by developers in properties. There's no guarantee in any of those investments that you're going to come out it ahead, necessarily. Same way as there's no guarantee for a lot of us in a lot of things. But that we make sure we're making, setting precedence to honor our community, honor our responsibility to our constituents, and really taking steps moving forward to clarify this process and make sure that everyone can be successful within it when abiding by the rules created there within. And with that I yield. CHR KIERKIEWICZ: Thank you. Mr. Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: Just want to ask a question. And I think this is a little confusing because we have two different bills in front of us, but we're talking about both of them, because they're similar. But that does confuse it a little bit. But, the TIAR (Traffic Impact Assessment Report) was done in 2005. MR. FUKE: No, there was an updated one submitted in conjunction with the time extension because concurrency provision of the Zoning Code requires an updated TIAR at the time of submittal. MR. KANEALI`I-KLEINFELDER: Okay, and when was that? MR. FUKE: It was done, I believe in 2018 or 2019. Pre-COVID. MR. KANEALI`I-KLEINFELDER: Okay, thank you. Okay, that's good because during COVID, it would be not useful. MR. FUKE: Yes, yes. MR. KANEALI`I-KLEINFELDER: But I know the traffic there is really bad, I've been in that many times. MR. FUKE: You know, you probably might have that in that three-inch ream that you have, but there's a letter from the State Department of Transportation (DOT) approving the TIAR. MR. KANEALI`I-KLEINFELDER: Okay, thank you. And then what's getting me about the land use is that what I read in the notes from the Planning Director was originally this was brought in as two smaller parcels to ask for the Urban zoning. Then afterwards, it was brought back as one project, two separate parcels still, but one project. So what he effectively did was bypass the Land Use Commission by coming in with two separate smaller parcels, which I've seen many times in my Page 40 PC -30 October 6, 2020 one -and -a -half years in office. By doing that, you cannot bypass the process, and I don't like that. Honestly, I don't like that at all. I understand there's time involved, but if there was no money to be made in this project, then nobody would be doing it. So I mean, we can cut the crap. There's money involved here for somebody. That's how this works. That's why there's development done because somebody's going to profit off it in some way or another. And there's nothing wrong with that, but I think this just needs to be said. But I do not like the parcelization, is basically what it is. MR. FUKE: Can I MR. KANEALI`I-KLEINFELDER: Yeah, go ahead. MR. FUKE: Thank you. Couple of things. One is that, you know, Pua`a and Suffolk bought the property as is. It was already subdivided. Secondly, is that the question that you raised is very germane in terms of like potentially bypassing the Land Use Commission. All of those discussions were on the table when the Council initially considered the boundary amendment and the rezoning back in 2005. And the Council then in their wisdom determined that, yeah, those uses are, you know, like reclassifying the property to the Urban district, rezoning them accordingly it was like within their authority. And I guess the decision was like, we have the authority; we have home rule, so why should we kick it up to somebody else? So now we're in the situation, we're not asking for further reclassification of any other properties, we're just dealing with these two properties. We're dealing with existing entitlements, but I share and understand, you know, what you're saying. So I guess, bottom line is that, you know, now we are where we are. And from a policy-making standpoint, looking at the CDP and looking at the General Plan, is this an appropriate land use? And if the conclusion is no, then there should be no basis, policy making wise for it to be approved. Hypothetically, if the General Plan had changed, you know, since it was originally approved to change this area to go make it like Open. Then, you know, like one of the conditions for reviewing time extension is you have to ask yourself, is it still consistent with the General Plan. If the General Plan changed it to Open, then obviously the conclusion is, no it's not. So you've got to walk out. Page 41 PC -30 October 6, 2020 MR. KANEALI`I-KLEINFELDER: I appreciate your comment. But, I mean, just to take it back and I don't want to belabor this just, if it came in as two smaller parcels to avoid the Land Use Commission, and then the Council can by right approve the land use and then bring it back to the table after that 10 years later or 15 years later, and say this is one project that has been zoned Urban, we don't have to talk to the Land Use Commission anymore because you've already approved it, you essentially just bypassed the process. Yeah, I don't like that. MR. FUKE: So actually, there were two different developers. One was Suffolk, the other one was Pua`a. You know, sure there is kind of a business relationship, but as it is right now, because they're contiguous, the conditions had to be, it had to fit both projects. MR. KANEALI`I-KLEINFELDER: Understood, but in the beginning, they weren't. Yes? I mean in 2005 when this went into the Land Use Commission, and they're part of the County, they bypassed the Land Use Commission by saying, these are two smaller than 15 acre parcels, which we see again and again. And now we're back to the table with MR. FUKE: Yeah, to which I say, you know, they inherited the properties. I mean, you know, they bought the properties. So they didn't subdivide the land and then come in with the land use petition. The land was already subdivided into, you know, 14 -point something acres. They bought the properties and then they came in for the reclassification and the rezoning. MR. KANEALI`I-KLEINFELDER: But they got the entitlements that existed, like you said, and now we get what we get as far as this bill. Yeah, I don't quite agree with the process that was involved there and I'm going to say that. Thank you for clarifying for the traffic study. It's very important for that area, yeah, thank you. CHR KIERKIEWICZ: Okay, thank you Mr. Kaneali`i-Kleinfelder. We are at 5:18 and I'd like to move forward on this. Thank you everyone for your time and attention today. I did want to address a few things that came up. First Director Yee, you referred to the commission providing a unanimous decision on this. And I take a little issue with it. Mr. Kaneali`i-Kleinfelder pointed out Mr. Max Newberg's involvement and getting a letter of opposition for the project from PRP. Half of the minutes from the commission meeting had to deal with conflicts of interest, potentially from Commissioner Van Pernis. And so I don't feel good about the decision that was made. There was a lot of hesitation. And so, I totally understand and appreciate the unfavorable recommendation that he had put forward, but again, it is a recommendation. We as the Planning Committee and Council Members have the power and authority to Page 42 PC -30 October 6, 2020 make laws; to set the legislation. And so our role is to take into consideration what he had put forth and to have a very robust discussion as we did. And so, I thank you and I appreciate that. Our role is not to vote on a project, but land use. And what's before us is extending CN zoning or reverting back to agricultural. So it's very easy for me. That being said, what I'm hearing from my colleagues is moving this forward and working with the applicant and the developer and Planning Department to make some changes to Bill 200 based on the contents contained in Comm. 1077.3. I just want to make sure everybody has a copy of that transmittal because that is going to be the foundation for amendments to Bill 200. Director Yee, is it acceptable that we as Council Members or myself and perhaps Ms. Villegas work with you as well as Mr. Fuke and others to amend Bill 200 to insure that we are crafting conditions in a way that are amenable to the Planning Department? Because it seems that all bodies want to arrive to a place of compromise. MR. YEE: Yes. CHR KIERKIEWICZ: Okay, great. Thank you. That said, we have a motion on the floor. MS. LEE LOY: Chair. MR. RICHARDS: Restate the motion? CHR KIERKIEWICZ: Sure. The motion on the floor is to forward Bill 200 to the Council with a positive recommendation. That being said, over the next two weeks, myself, Ms. Villegas, will work with the Planning Department, Mr. Fuke, Spring Capital, all the folks that are involved with Pua`a and Suffolk, to amend the bill based on the contents of Comm. 1077.3. Point of MS. POINDEXTER: Point of Clarification. Clarification: CHR KIERKIEWICZ: Yes. MS. POINDEXTER: When we say, moving forward with a positive recommendation, it's a recommendation to agree with the unfavorable recommendation? CHR KIERKIEWICZ: No, that's incorrect. The motion on the floor is to move Bill 200, which we have in our possession to the Council with a positive recommendation. So what was provided to us by the Planning Director and the Planning Commission were just recommendations. Page 43 PC -30 October 6, 2020 What we have before us is an actual bill, but there clearly are some refinements to some of the conditions that need to be made so that all parties can come to a place of compromise and agreement. Ms. Poindexter, we good? Okay, thank you. Ms. Lee Loy. MS. LEE LOY: As we begin to refine this as a suggestion, because we talked about this at the beginning of this Council term, was somehow putting a stop on the clock as it ticks, because we kept seeing a number of time extensions when these applications would go to agencies. The agencies didn't have a timeline on when to return it back, and so the clock kept ticking. And so a lot of times, they were coming in for time extensions not because the applicant was slow to review plans, but the departments and agencies, not only County, and Ms. Kierkiewicz knows this too, with the State Historic Preservation Division, right? Those agencies take a while. And as a suggestion, Ms. Kierkiewicz and for Ms. Villegas, if there's a way to craft some conditions of approval that stops the clock when there is an agency review, and there is no guardrail as to when that plan needs to be reviewed by, like no 30 -day clock, that it's not penalizing the applicant. That would just be my food for thought as we get to a Draft 2 on Bill 200. CHR KIERKIEWICZ: Thank you, I appreciate that mana`o. And you're right, merely all the time extensions that we've had come before us are not due to the applicant not taking any steps to meet the conditions of approval. Oftentimes, you know, these items are stuck in the hands of various departments, County and State level. Anyway, we have a motion on the floor. All in favor to move Bill 200 forward to the Council with a positive recommendation, please say LC " aye. Vote on Bill 200: The motion to recommend passage of Bill 200 on first (Approved) reading was carried by the following voice vote. Ayes: Committee Members Chung, David, Eoff, Kaneali`i-Kleinfelder, Lee Loy, Poindexter Richards, Villegas, and Chair Kierkiewicz — 9. Noes: None. Absent: None. Excused: None. (Ms. David, Ms. Eoff, and Ms. Villegas voted "kanalua," then "aye.") Page 44 PC -30 October 6, 2020 CHR KIERKIEWICZ: Motion carries. I'm sorry, I didn't hear. Kona? Kona, did I hear a "no"? MS. EOFF: No, we're going to go "kanalua, aye" for now, because we're going to look forward to some negotiations. CHR KIERKIEWICZ: Okay, thank you. Let the record reflect, that Ms. Eoff, Ms. David, and Ms. Villegas have voted "kanalua, aye." Thank you. MS. EOFF: Yes, correct. CHR KIERKIEWICZ: We are not quite done yet folks. We have the partner bill to this that we must read into the record and vote on. And because they are companion measures the same will apply. So I want to read that into the record first. Mr. Clerk. Bill 201: AMENDS ORDINANCE NO. 05-113 WHICH RECLASSIFIED LANDS FROM AGRICULTURAL — FIVE ACRES (A -5a) TO MULTIPLE FAMILY RESIDENTIAL (RM -2.5) AT PUAPUA`AIKI IST AND PUAPUA`ANUI 1sT NORTH KONA, HAWAII, COVERED BY TAX MAP KEY 7-5-017:019 (Applicant: Suffolk Investment LLC) (Area: 14.87 Acres) The Leeward Planning Commission forwards its unfavorable recommendation for this amendment, which would allow revisions or time extensions to 11 conditions to the existing change of zone ordinance. The property is located west (makai) of Queen Ka`ahumanu Highway and east (mauka) of Kuakini Highway and the Kahakai Estates Subdivision, approximately 2,200 feet north of the Queen Ka`ahumanu Highway. Reference: Comm. 1078 Intr. by: Ms. Kierkiewicz (B/R) ; and Comm. 1078.1: From Planning Director Michael Yee, dated September 23, 2020, transmitting the draft transcript from the Leeward Planning Commission's August 20, 2020, meeting. CHR KIERKIEWICZ: Thank you, Mr. Clerk. May I have a motion to forward Bill 201 to the Council with a positive recommendation? Motion to Approve: Ms. Villegas moved to recommend passage of Bill 201 on first reading. Seconded by Mr. Richards. Page 45 PC-30 October 6,2020 CHR. KIERKIEWICZ: So similar here, working in partnership with Ms. Villegas, Planning Department, and applicant to amend Bill 201 based on conditions that are articulated in Communication 1077.3 and any other compromise that must be made. MR. FUKE: Scout's honor. CHR. KIERKIEWICZ: Scout's honor. Thank you, Mr. Fuke, I appreciate that. Any questions or comments? Seeing none, all in favor to forward Bill 201 to the Council with a positive recommendation please say "aye." Vote on Bill 201: The motion to recommend passage of Bill 201 on first (Approved) reading was carried by the following voice vote. Ayes: Committee Members Chung, David, Eoff, Kaneali`i-Kleinfelder, Lee Loy, Poindexter Richards, Villegas, and Chair Kierkiewicz—9. Noes: None. Absent: None. Excused: None. CHR. KIERKIEWICZ: Motion carries. Thank you. May I have a motion to adjourn? ADJOURN- There being no further business, at 5:27 p.m., Ms. Lee Loy moved to adjourn the MENT: meeting. Seconded by Mr. Richards and carried by the following voice vote: Ayes: Committee Members Chung, David, Eoff, Kaneali`i-Kleinfelder, Lee Loy, Poindexter, Richards, Villegas, and Chair Kierkiewicz—9. Noes: None. Absent: None. Excused: None. CHR. KIERKIEWICZ: We are adjourned. Thank you. App oved; I M70 Ms. Ashley L. Kierkiewicz, Chair (Date) Planning Committee AK/dt Page 46